CREDIT AGREEMENT Dated as of November 18, 2005 among CC TOLLGATE LLC, a Delaware limited liability company, as Borrower the LENDERS and L/C ISSUER herein named WELLS FARGO BANK, National Association, as Agent Bank
____________________________________________________________________________________________________________________________________________________________
Dated
as of November 18, 2005
among
CC
TOLLGATE LLC, a Delaware limited liability company,
as
Borrower
the
LENDERS and L/C ISSUER herein named
XXXXX
FARGO BANK, National Association,
as
Agent Bank
____________________________________________________________________________________________________________________________________________________________
TABLE
OF CONTENTS
RECITALS 1
ARTICLE
I
- DEFINITIONS 2
Section
1.01. Definitions
2
Section
1.02. Interpretation
and Construction 36
Section
1.03. Use
of
Defined Terms 37
Section
1.04. Cross-References
37
Section
1.05. Exhibits
and Schedules 37
ARTICLE
II - AMOUNT AND TERMS OF THE C/T LOAN 37
Section
2.01. The
C/T
Loan 37
Section
2.02. Term
of
C/T Loan 38
Section
2.03. The
C/T
Note, Interest Rate, Scheduled Amortization and Excess Cash Flow
Payments 38
Section
2.04. Construction
Disbursements 39
ARTICLE
II B - AMOUNT AND TERMS OF THE REVOLVING CREDIT FACILITY 40
Section
2.05. The
Revolving Credit Facility 40
Section
2.06. Use
of
Proceeds of the Revolving Credit Facility 40
Section
2.07. Notice
of
Borrowings 41
Section
2.08. Conditions
of Borrowings 42
Section
2.09. The
Revolving Credit Note and Interest Rate 42
Section
2.10. Issuance
of Letters of Credit 43
ARTICLE
II C - SECURITY, FEES AND OTHER PROVISIONS OF THE BANK FACILITIES 47
Section
2.11. Security
for the Bank Facilities 47
Section
2.12. Place
and
Manner of Payment 47
Section
2.13. Fees
49
Section
2.14. Late
Charges and Default Rate 50
Section
2.15. Net
Payments 50
Section
2.16. Completion
Guaranty Agreement 51
ARTICLE
III - REQUIREMENTS FOR THE OCCURRENCE OF THE CLOSING DATE AND ALL BORROWINGS
AND
CONSTRUCTION DISBURSEMENTS 51
i
A. Closing
Conditions 51
Section
3.01. Credit
Agreement 51
Section
3.02. The
Notes
and Completion Guaranty 52
Section
3.03. Security
Documentation 52
Section
3.04. Other
Loan Documents 52
Section
3.05. Articles
of Organization, Operating Agreement, Resolutions, Certificates of Good
Standing, and Closing Certificate 52
Section
3.06. Opinion
of Counsel 53
Section
3.07. Title
Insurance 53
Section
3.08. Survey
53
Section
3.09. Payment
of Taxes 53
Section
3.10. Insurance
53
Section
3.11. Payment
of Fees and Existing Bank Debt 54
Section
3.12. Reimbursement
for Expenses and Fees 54
Section
3.13. Schedules
54
Section
3.14. Environmental
Reports 54
Section
3.15. No
Injunction or Other Litigation 55
Section
3.16. Additional
Documents and Statements 55
Section
3.17. Subordinations
55
Section
3.18. Notice
of
Borrowing 55
Section
3.19. Certain
Statements 55
Section
3.20 Comfort
Letter 56
|
B.
|
Conditions
Precedent to Initial Construction Disbursement
|
56
|
Section
3.21. Receipt
of Proceeds of Subordinated Debt 56
Section
3.22. Construction
Cost Analysis and Required Borrower Construction Expenditures
56
Section
3.23. Construction
Schedule, Plans and Specifications and Construction Budgets
57
Section
3.24. Construction
Agreements 57
Section
3.25. Architect’s
Contract. 57
Section
3.26. Major
Subcontractor’s Construction Contracts 57
Section
3.27. Evidence
of Availability of Utilities for Construction Projects 57
Section
3.28. Regulatory
Approvals, Permits, Consents, Etc. 58
Section
3.29. Assignment
of Architect’s Contract 58
Section
3.30. Assignment
of Casino General Contractor’s Agreement 58
Section
3.31. Assignment
of Garage General Contractor’s Agreement 58
Section
3.32. Major
Subcontractor Assignments 58
ii
Section
3.33. Soil
Test
Report 58
Section
3.34. Notice
by
Disburser 58
ARTICLE
IV - REPRESENTATIONS AND WARRANTIES 58
Section
4.01. Organization;
Power and Authorization 58
Section
4.02. No
Conflict With, Violation of or Default Under Laws or Other
Agreements 59
Section
4.03. Litigation
59
Section
4.04. Agreements
Legal, Binding, Valid and Enforceable 59
Section
4.05. Information
and Financial Data Accurate; Financial Statements; No Adverse Event
60
Section
4.06. Governmental
Approvals 60
Section
4.07. Payment
of Taxes 60
Section
4.08. Title
to
Properties 61
Section
4.09. No
Untrue
Statements 61
Section
4.10. Brokerage
Commissions 61
Section
4.11. No
Defaults 62
Section
4.12. Availability
of Utility Services 62
Section
4.13. Policies
of Insurance 62
Section
4.14. Management
Agreement and Subordinated Notes 62
Section
4.15. Spaceleases
62
Section
4.16. Equipment
Leases and Contracts 62
Section
4.17. Gaming
Permits 63
Section
4.18. Environmental
Certificate 63
Section
4.19. Investment
Company Act 63
Section
4.20. Public
Utility Holding Company Act 63
Section
4.21. Labor
Relations 63
Section
4.22. Trademarks,
Patents, Licenses, Franchises, Formulas and Copyrights 63
Section
4.23. Contingent
Liabilities 63
Section
4.24. Subsidiaries
64
Section
4.25. The
Construction Projects 64
Section
4.26. General
Contractor Agreements, Architect Contract and Interior Designer’s
Contract 64
ARTICLE
V
- GENERAL COVENANTS OF BORROWER 64
Section
5.01. FF&E
64
Section
5.02. Permits;
Licenses and Legal Requirements 64
Section
5.03. Protection
Against Lien Claims 65
Section
5.04. Restrictions
on Payment or Prepayment of Subordinated Debt and Management Fees
65
iii
Section
5.05. No
Change
in Character of Business or Location of Chief Executive Office
66
Section
5.06. Preservation
and Maintenance of Properties and Assets; Acquisition of Additional
Property 66
Section
5.07. Repair
of
Properties and Assets 66
Section
5.08. Financial
Statements; Reports; Certificates and Books and Records 67
Section
5.09. Insurance
68
Section
5.10. Taxes
73
Section
5.11. Permitted
Encumbrances Only 74
Section
5.12. Advances
74
Section
5.13. Further
Assurances 74
Section
5.14. Indemnification
75
Section
5.15. Inspection
of the Collateral and Appraisal 76
Section
5.16. Compliance
With Other Loan Documents 76
Section
5.17. Suits
or
Actions Affecting Borrower 76
Section
5.18. Compliance
with Gaming Authorities 76
Section
5.19. Tradenames,
Trademarks and Servicemarks 76
Section
5.20. Notice
of
Hazardous Materials 76
Section
5.21. Compliance
with Access Laws 77
Section
5.22. Compliance
with Management Agreement 77
Section
5.23. Interest
Rate Protection 78
ARTICLE
VI - FINANCIAL COVENANTS 78
Section
6.01. Total
Leverage Ratio 78
Section
6.02. Senior
Leverage Ratio 79
Section
6.03. Adjusted
Fixed Charge Coverage Ratio 80
Section
6.04. Minimum
Annualized EBITDAM 80
Section
6.05. Limitation
on Indebtedness 80
Section
6.06. Restriction
on Distributions 82
Section
6.07. Capital
Expenditures Requirements 83
Section
6.08. Contingent
Liability(ies) 84
Section
6.09. Investment
Restrictions 84
Section
6.10. Total
Liens 84
Section
6.11. No
Change
of Control 84
Section
6.12. Sale
of
Assets, Consolidation, Merger, or Liquidation 84
Section
6.13. ERISA
85
Section
6.14. Margin
Regulations 86
Section
6.15. Transactions
with Affiliates 86
Section
6.16. Limitation
of Subsidiaries 86
Section
6.17. Change
in
Accounting Principles 86
iv
ARTICLE
VII - EVENTS OF DEFAULT 87
Section
7.01. Events
of
Default 87
Section
7.02. Default
Remedies 90
Section
7.03. Application
of Proceeds 91
Section
7.04. Notices
92
Section
7.05. Agreement
to Pay Attorney's Fees and Expenses 92
Section
7.06. No
Additional Waiver Implied by One Waiver 92
Section
7.07. Licensing
of Agent Bank and Lenders 92
Section
7.08. Exercise
of Rights Subject to Applicable Law 92
Section
7.09. Discontinuance
of Proceedings 93
ARTICLE
VIII - DAMAGE, DESTRUCTION AND CONDEMNATION 93
Section
8.01. No
Abatement of Payments 93
Section
8.02. Distribution
of Capital Proceeds Upon Occurrence of Fire, Other Perils or
Condemnation 93
ARTICLE
IX - CONSTRUCTION DISBURSEMENT PROCEDURES 95
Section
9.01. Commencement
and Completion of the Construction Projects 95
Section
9.02. Master
Set of Plans and Specifications 96
Section
9.03. Construction
of the Construction Projects Entirely on the Real Property
96
Section
9.04. List
and
Assignment of Major Subcontracts 96
Section
9.05. Construction
Projects Sign 97
Section
9.06. Inspection
of Construction Progress and Lenders’ Consultant 97
Section
9.07. Advance
of Construction Disbursements 97
Section
9.08. Restriction
on Construction Disbursements 98
Section
9.09. Construction
Disbursement Requests and Lien Releases 98
Section
9.10. A
Construction Disbursement Does Not Mean Approval of Work or
Materials 98
Section
9.11. Method
of
Disbursement 99
Section
9.12. Changes
in the Construction Budgets and Work to be Performed Under the Plans and
Specifications 99
Section
9.13. Conditions
Precedent to Construction Disbursement 100
Section
9.14. No
Obligation to See to Proper Application of Construction
Disbursements 102
Section
9.15. No
Construction Disbursements Required in Event of Default 103
Section
9.16. No
Construction Disbursements Required if Cloud on Title Exists
103
v
Section
9.17. Indorsement
from Title Insurance Company 103
Section
9.18. Ownership
of all Materials Used on the Construction Projects 103
Section
9.19. Accuracy
of Representations and Warranties 103
Section
9.20. Waiver
of
Requirements by Requisite Lenders 104
Section
9.21. Disbursement
of Retainage 104
Section
9.22. Construction
Disbursements if a Lender Fails to Provide Funds 106
Section
9.23. Possession
and Completion of Construction 106
ARTICLE
X
- AGENCY PROVISIONS 107
Section
10.01. Appointment.
107
Section
10.02. Nature
of
Duties 108
Section
10.03. Disbursement
of Borrowings and Construction Disbursements 108
Section
10.04. Distribution
and Apportionment of Payments 109
Section
10.05. Rights,
Exculpation, Etc. 111
Section
10.06. Reliance
111
Section
10.07. Indemnification
112
Section
10.08. Agent
Individually 112
Section
10.09. Successor
Agent Bank; Resignation of Agent Bank; Removal of Agent Bank
112
Section
10.10. Consent
and Approvals 113
Section
10.11. Agency
Provisions Relating to Collateral 115
Section
10.12. Lender
Actions Against Collateral
117
Section
10.13. Ratable
Sharing 117
Section
10.14. Delivery
of Documents 118
Section
10.15. Notice
of
Events of Default 118
ARTICLE
XI - GENERAL TERMS AND CONDITIONS 119
Section
11.01. Amendments
and Waivers 119
Section
11.02. Failure
to Exercise Rights 120
Section
11.03. Notices
and Delivery 121
Section
11.04. Modification
in Writing 122
Section
11.05. Other
Agreements 122
Section
11.06. Counterparts
122
Section
11.07. Rights,
Powers and Remedies are Cumulative 123
Section
11.08. Continuing
Representations 123
Section
11.09. Successors
and Assigns 123
Section
11.10. Assignment
of Loan Documents by Borrower or Syndication Interests by Lenders
123
Section
11.11. Action
by
Lenders 125
vi
Section
11.12. Time
of
Essence 125
Section
11.13. Choice
of
Law and Forum 125
Section
11.14. Arbitration
126
Section
11.15. Waiver
of
Jury Trial 126
Section
11.16. Scope
of
Approval and Review 127
Section
11.17. Severability
of Provisions 127
Section
11.18. Cumulative
Nature of Covenants 127
Section
11.19. Cost
to
Prevailing Party 127
Section
11.20. Expenses
127
Section
11.21. Setoff
128
Section
11.22. Confidentiality
129
Section
11.23. Security
and Loan Documentation 129
Section
11.24. Schedules
Attached 129
Schedule
2.01(a) - Schedule
of Lenders' Proportions in Bank Facility
Schedule
2.03(d) - C/T
Loan
Reduction Schedule
Schedule
3.13(b) - Schedule
of Significant Litigation
Schedule
4.15 - Schedules
of Spaceleases
Schedule
4.16 - Schedules
of Equipment Leases and Contracts
Schedule
4.23 - Schedule
of Contingent Liabilities
Schedule
5.09(k) - Schedule
of General Contractor Minimum Insurance Requirements
Section
11.25. Exhibits
Attached 130
Exhibit
A - C/T
Note
|
Exhibit
B
|
-
|
Revolving
Credit Note
|
|
Exhibit
C
|
-
|
Notice
of Borrowing - Form
|
|
Exhibit
D
|
-
|
Construction
Disbursement Request - Form
|
|
Exhibit
E
|
-
|
Payment
Subordination Agreement - Form
|
|
Exhibit
F
|
-
|
Compliance
Certificate - Form
|
|
Exhibit
G
|
-
|
Legal
Opinion - Form
|
|
Exhibit
H
|
-
|
Management
Subordination Agreement - Form
|
|
Exhibit
I
|
-
|
Authorized
Officer Certificate - Form
|
|
Exhibit
J
|
-
|
Closing
Certificate - Form
|
|
Exhibit
K
|
-
|
Assignment
and Assumption Agreement - Form
|
|
Exhibit
L
|
-
|
Real
Property Description
|
|
Exhibit
M
|
-
|
Financial
Requirement Analysis - Form
|
|
Exhibit
N
|
-
|
Lender’s
Disbursement Budget - Form
|
|
Exhibit
O
|
-
|
Completion
Guaranty - Form
|
|
Exhibit
P
|
-
|
Cash
Collateral Pledge Agreement -
Form
|
vii
THIS
CREDIT AGREEMENT ("Credit Agreement") is made and entered into as of the
18th
day of
November, 2005, 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"), each financial institution whose
name is set forth on the signature pages of this Credit Agreement and each
lender which may hereafter become a party to this Credit Agreement pursuant
to
Section 11.10(b) (each individually a "Lender" and collectively the "Lenders"),
XXXXX FARGO BANK, National Association, as the issuer of letters of credit
following the Closing Date (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. In
this
Credit Agreement all capitalized words and terms shall have the respective
meanings and be construed herein as hereinafter provided in Section 1.01 of
this
Credit Agreement and shall be deemed to incorporate such words and terms as
a
part hereof in the same manner and with the same effect as if the same were
fully set forth.
X. Xxxxxxxx
is the owner and developer of the Casino Project and the Parking Garage
Project.
X. Xxxxxxxx
desires to establish a construction and term loan and a revolving credit
facility for the purpose of financing a portion of the costs of the development,
construction, start-up costs, equipping and furnishing of the Construction
Projects and following the Completion Date, to be used for working capital
and
general corporate purposes.
X. Xxxxxxx
are willing to (i) establish the C/T Loan in the principal amount of
Thirty-Two Million Five Hundred Thousand Dollars ($32,500,000.00), and
(ii) establish the Revolving Credit Facility in the principal amount of Two
Million Five Hundred Thousand Dollars ($2,500,000.00) including a letter of
credit subfacility for the issuance of Letters of Credit up to the maximum
aggregate amount of One Million Dollars ($1,000,000.00) at any time outstanding,
in each case, for the uses and purposes hereinafter set forth and on the terms
and subject to the conditions, covenants and understandings hereinafter set
forth and contained in each of the Loan Documents.
1
NOW,
THEREFORE, in consideration of the foregoing, and other valuable considerations
as hereinafter described, the parties hereto do promise, covenant and agree
as
follows:
ARTICLE
I
DEFINITIONS
Section
1.01. Definitions.
For the
purposes of this Credit Agreement, each of the following terms shall have the
meaning specified with respect thereto, unless a different meaning clearly
appears from the context:
"Adjusted
Fixed Charge Coverage Ratio" as of the end of any fiscal period shall mean
with
reference to the Borrower:
|
For
the fiscal period under review the sum of: (i) Annualized EBITDAM,
less (ii) the aggregate amount of actually paid Distributions,
including, without limitation, all Tax Distributions actually paid,
less
(iii) the aggregate amount of Maintenance Capital Expenditures, less
(iv) the aggregate amount of Management Fees paid in
cash
|
Divided
by (¸)
|
The
sum of: (i) actually paid Interest Expense (expensed and capitalized),
plus (ii) principal payments or reductions (without duplication)
required to be made on all outstanding Indebtedness (exclusive of
any
Excess Cash Flow Payments), plus (iii) the current portion of
Capitalized Lease Liabilities, in each case of (i) through (iii)
determined for the fiscal period under
review.
|
"Affiliate",
as applied to any Person, means any other Person directly or indirectly
controlling, controlled by, or under common control with, that Person. For
the
purposes of this definition, "control" (including, with correlative meanings,
the terms "controlling", "controlled by" and "under common control with"),
as
applied to any Person, means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of that
Person, whether through the ownership of voting securities or by contract or
otherwise.
"Agent
Bank" shall mean WFB in its capacity as administrative and collateral agent
for
Lenders and L/C Issuer.
2
"Aggregate
Outstandings" shall mean the aggregate of the Funded C/T Outstandings plus
the
aggregate of the Funded RLC Outstandings and L/C Exposure as of any given
date
of determination
"Aggregate
RLC Commitment" shall mean reference to the aggregate amount committed by
Xxxxxxx for advance to or on behalf of the Borrower as Borrowings under the
Revolving Credit Facility up to the maximum principal amount of Two Million
Five
Hundred Thousand Dollars ($2,500,000.00) at any time outstanding.
"Agreed
Rate" shall mean 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.
"Annualized
EBITDAM" shall mean with reference to the Borrower, as of the last day of
each
Fiscal Quarter (a) EBITDAM for the fiscal period consisting of that Fiscal
Quarter and the three (3) immediately preceding Fiscal Quarters, or
(b) with respect to any such fiscal period in which Borrower has operated
the Casino Facility for at least one (1) full Fiscal Quarter but less than
four
(4) full Fiscal Quarters, such amount as is necessary to reflect the
annualization of EBITDAM using the following calculations:
(i) if
Borrower has operated the Casino Facility for one (1) full Fiscal Quarter,
the
EBITDAM for that Fiscal Quarter shall be multiplied by four (4);
(ii) if
Borrower has operated the Casino Facility for two (2) full Fiscal Quarters,
the
EBITDAM for those Fiscal Quarters shall be multiplied by two (2);
and
(iii) if
Borrower has operated the Casino Facility for three (3) full Fiscal Quarters,
the EBITDAM for those Fiscal Quarters shall be multiplied by four-thirds
(4/3).
"Architect"
shall mean Xxxxxxxx-Xxxxx, P.C., 0000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxx 00000,
the architect that has been engaged by Xxxxxxxx for the purpose of preparing
the
Structural Plans and Specifications for the design of the Construction
Projects.
"Architect's
Consent" shall mean that certain Architect's Consent and Agreement which
is to
be executed by the Architect and delivered to Agent Bank, on behalf of the
Lenders, prior to the Initial Construction Disbursement, for the purpose,
among
other things, of evidencing the Architect's: (i) consent to Assignment of
Architect's Contract; (ii) agreement not to modify the Architect's Contract
without Agent Bank's
3
consent;
and (iii) agreement to continue performance under the Architect's Contract
on behalf of Agent Bank subject to the terms and conditions set forth
therein.
"Architect's
Contract" shall mean the Standard Form of Agreement between Owner and Architect,
AIA Document B141-1997 Part 1 dated December 16, 2004, executed by and between
Architect and Borrower under the terms of which Architect agrees to provide
architectural services in connection with the design of the Construction
Projects including, but not limited to, preparation of the Plans and
Specifications.
"Assigned
Major Subcontract(s)" shall have the meaning set forth in
Section 9.04(b).
"Assignment
and Assumption Agreement" shall mean the document evidencing an assignment
of a
Syndication Interest by any Lender to an Eligible Assignee in the form of the
Assignment, Assumption and Consent Agreement marked "Exhibit K", affixed
hereto and by this reference incorporated herein and made a part
hereof.
"Assignment
of Architect's Contract" shall mean the Assignment of Architect's Contract
with
Plans and Specifications pursuant to which, among other things, Xxxxxxxx's
rights under the Architect's Contract are assigned to Agent Bank on behalf
of
Lenders as additional security for the Bank Facilities.
"Assignment
of Entitlements, Contracts, Rents and Revenues" shall mean the assignment to
be
executed by Borrower on or before the Closing Date, whereby Borrower presently
assigns to Agent Bank on behalf of Lenders, in consideration of Bank Facilities
(reserving a revocable license to retain use and enjoy): (a) all of its
right, title and interest under all Spaceleases and Equipment Leases and
Contracts relating to the Casino Facility, (b) all of its right, title and
interest in and to all permits, licenses and contracts relating to the Casino
Facility, except Gaming Permits and those permits, licenses and contracts which
are unassignable, and (c) all rents, issues, profits, revenues and income from
the Real Property and the Casino Facility and any other business activity
conducted on the Real Property, together with any and all future expansions
thereof, related thereto or used in connection therewith, as such assignment
may
be amended, modified, extended, renewed or restated from time to
time.
"Assignment
of Casino General Contractor's Agreement" shall mean the Assignment of Casino
General Contractor's Agreement under which Xxxxxxxx's rights under the Casino
General Contractor's Agreement are assigned to Agent Bank on behalf of Lenders
as additional security for the Bank Facilities.
"Assignment
of Garage General Contractor's Agreement" shall mean the Assignment of Garage
General Contractor's Agreement under which Borrower's rights
4
under
the
Garage General Contractor's Agreement are assigned to Agent Bank on behalf
of
Lenders as additional security for the Bank Facilities.
"Assignments"
shall mean collective reference to the Assignment of Entitlements, Contracts,
Rents and Revenues, Assignment of Architect's Contract, Assignment of Garage
General Contractor's Agreement, Assignment of Casino General Contractor's
Agreement and Major Subcontractor Assignments.
"Authorized
Officer(s)" shall mean, relative to the Borrower, those of the respective
officers and/or managers whose signatures and incumbency shall have been
certified to Agent Bank and the Banks as required in Section 3.05(iv) of the
Credit Agreement with the authority and responsibility to deliver Notices of
Borrowing, Construction Disbursement Requests, Compliance Certificates and
all
other requests, notices, reports, consents, certifications and authorizations
on
behalf of Xxxxxxxx.
"Available
RLC Borrowings" shall mean, at any time, and from time to time, the aggregate
amount available to Borrower for a Borrowing under the Revolving Credit Facility
or issuance of a Letter of Credit, in each instance not exceeding the amount
of
the Aggregate RLC Commitment, as of each date of determination.
"Bank
Facilities" shall mean collective reference to the C/T Loan and the Revolving
Credit Facility, including the L/C Facility.
"Bank
Facilities Termination" shall mean indefeasible payment in full of all sums
owing under the Bank Facilities and each of the Loan Documents, the occurrence
of the Stated Expiry Date or other termination of all outstanding Letters of
Credit, and the irrevocable termination of: (i) the obligation of Lenders to
advance Borrowings under the Revolving Credit Facility and (ii) the
obligation of L/C Issuer to issue Letters of Credit under the L/C
Facility.
"Banking
Business Day" means, with respect to any Borrowing, Construction Disbursement
or
payment, 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.
"Bankruptcy
Code" shall mean the United States Bankruptcy Code, as amended, 11 U.S.C.
Section 101, et
seq.
"Banks"
shall have the meaning set forth in the Preamble to this Credit
Agreement.
5
"Borrower"
shall have the meaning set forth in the Preamble to this Credit
Agreement.
"Borrower
Construction Budget" shall mean the line item breakdown for those Construction
Completion Costs of the Construction Projects which are not a part of the Casino
General Contractor's Agreement, Casino General Contractor Budget, Garage General
Contractor's Agreement or Garage General Contractor Budget.
"Borrower
Construction Expenditures" shall mean collective reference to the aggregate
amount of funds which may be required to be advanced by Borrower at any time
and
from time to time for payment of the costs and expenses for construction and
development of the Construction Projects in accordance with the Construction
Budgets, other than from the Bank Facilities or from third party purchase money
financing.
"Borrower
Operating Agreement" shall mean collective reference to: (i) the Limited
Liability Company Agreement of Borrower dated as of October 12, 2004, and
(ii) the First Amendment to Limited Liability Company Agreement dated
March 21, 2005, without regard to any amendment or modification thereof
unless made with the written consent of Agent Bank.
"Borrowing(s)"
shall mean such amounts as Borrower may request from Lenders from time to time
to be advanced under the Revolving Credit Facility by Notice of Borrowing during
the Revolving Credit Period in the manner provided in Section 2.07(a) or at
the request of Agent Bank pursuant to Section 2.10.
"CCI"
shall mean Century Casinos, Inc., a Delaware corporation.
"CCI
Subordinated Debt" shall mean the Indebtedness evidenced by the CCI Subordinated
Note.
"CCI
Subordinated Note" shall mean the promissory note executed by Xxxxxxxx dated
August 2, 2005, payable to the order of CCI, in the principal amount of
Four Million Five Hundred Thousand Dollars ($4,500,000.00), which promissory
note and all security documents securing repayment of such promissory note
shall
be subordinated to the Bank Facilities and the Security Documentation by
execution of a Lien and Payment Subordination Agreement in a form acceptable
to
Agent Bank as provided in Section 3.17.
"CCTI"
shall mean Century Casinos Tollgate, Inc., a Delaware corporation.
6
"CCVLLC"
shall mean Central City Venture, LLC, a Colorado limited liability
company.
"CCVLLC
Subordinated Debt" shall mean the Indebtedness evidenced by the CCVLLC
Subordinated Note.
"CCVLLC
Subordinated Note" shall
mean the unsecured promissory note executed by Xxxxxxxx dated December 30,
2004,
payable to the order of the CCVLLC, in the principal amount of One Million
Dollars ($1,000,000.00), which promissory note shall not bear interest in excess
of eight percent (8%) per annum and shall be subordinated to the Bank Facilities
by execution of a Payment Subordination Agreement in a form acceptable to Agent
Bank as provided in Section 3.17.
"C/T
Loan" shall mean the agreement of Lenders to fund Construction Disbursements
up
to the maximum aggregate amount of Thirty-Two Million Five Hundred Thousand
Dollars ($32,500,000.00) during the Construction Period, subject to the terms
and conditions set forth in the Credit Agreement and the C/T Note.
"C/T
Loan
Reduction Schedule" shall mean the C/T Loan Reduction Schedule marked
Schedule 2.03(d) affixed hereto and by this reference incorporated herein
and made a part hereof, setting forth the Scheduled Term Amortization Payments
on each Term Payment Date under the C/T Loan.
"C/T
Note" shall mean the Construction and Term Promissory Note, a copy of which
is
marked "Exhibit B", affixed hereto and by this reference incorporated
herein and made a part hereof, to be executed by Borrower on the Closing Date,
payable to the order of Agent Bank on behalf of the Lenders, evidencing the
C/T
Loan, as the same may be amended, modified, supplemented, replaced, renewed
or
restated from time to time.
"Capital
Expenditures" shall mean, for any period, without duplication, the aggregate
of
all expenditures (whether paid in cash or accrued as liabilities during that
period and including Capitalized Lease Liabilities) by Borrower during such
period that, in conformity with GAAP, are required to be included in or
reflected by the property, plant or equipment or similar fixed or capital asset
accounts reflected in the balance sheet of Borrower (including equipment which
is purchased simultaneously with the trade-in of existing equipment owned by
Borrower to the extent of (a) the gross amount of such purchase price
less
(b) the cash proceeds of trade-in credit of the equipment being traded in
at such time), but excluding capital expenditures made in connection with the
replacement or restoration of assets, to the extent reimbursed or refinanced
from insurance proceeds paid on account of the loss of or damage to the assets
being replaced or restored, or from awards of compensation arising from the
taking by condemnation of or
7
the
exercise of the power of eminent domain with respect to such assets being
replaced or restored.
"Capital
Proceeds" shall mean the net proceeds paid in Cash (after deducting all
reasonable expenses incurred in connection therewith) available to Borrower
from: (i) partial or total condemnation or destruction of any part of the
Collateral, (ii) insurance proceeds received in connection with damage to
or destruction of any part of the Collateral, (iii) the sale or other
disposition of any portion of the Collateral in accordance with the provisions
of this Credit Agreement (not including, however, any proceeds received by
Borrower from a sale of FF&E if such FF&E is replaced by items of
equivalent value and utility, in each case such exclusion to apply only during
any period in which no Event of Default has occurred and is continuing), and
(iv) any other extraordinary receipt of proceeds not in the ordinary course
of business and treated, for accounting purposes, as capital in nature directly
relating to the Collateral.
"Capitalized
Lease Liabilities" means all monetary obligations of the Borrower under any
leasing or similar arrangement which, in accordance with GAAP, would be
classified as capitalized leases, and, for purposes of this Credit Agreement,
the amount of such obligations shall be the capitalized amount thereof,
determined in accordance with GAAP, and the stated maturity thereof shall be
the
date of the last payment of rent or any other amount due under such lease prior
to the first date upon which such lease may be terminated by the lessee without
payment of a penalty.
"Cash"
shall mean, when used in connection with any Person, all monetary and
non-monetary items owned by that Person that are treated as cash in accordance
with GAAP.
"Cash
Collateral Account" shall mean the restricted depository savings account to
be
established by Borrower or Agent Bank on behalf of Borrower with L/C Issuer
at
its offices located at 0000 Xxxxxxx Xxxx, Xxxxx 000, Xxxx, Xxxxxx 00000, or
at
such other office located in the United States as may be designated from time
to
time by L/C Issuer, for the purpose of depositing Cash collateral for the
aggregate L/C Exposure upon the occurrence of any Event of Default.
"Cash
Collateral Pledge Agreement" shall mean the Pledge and Assignment of Savings
Account Agreement to be executed by Borrower in favor of L/C Issuer as of the
Closing Date as the same may be amended or modified from time to time under
the
terms of which all sums held from time to time in the Cash Collateral Account
are pledged in favor of L/C Issuer to secure repayment of any funding required
under any outstanding Letters of Credit, a copy of the form of which Cash
Collateral Pledge Agreement is marked "Exhibit P", affixed to the Credit
Agreement and by this reference incorporated herein and made a part
hereof.
8
"Cash
Equivalents" shall mean, when used in connection with any Person, that Person's
Investments in:
(a) Government
Securities due within one (1) year after the date of the making of the
Investment;
(b) readily
marketable direct obligations of any State of the United States of America
given
on the date of such Investment a credit rating of at least Aa by Xxxxx'x
Investors Service, Inc. or AA by Standard & Poor's Corporation, in each case
due within one (1) year from the making of the Investment;
(c) certificates
of deposit issued by, bank deposits in, eurodollar deposits through, bankers'
acceptance of, and repurchase agreements covering Government Securities executed
by, any bank incorporated under the laws of the United States of America or
any
State thereof and having on the date of such Investment combined capital,
surplus and undivided profits of at least Two Hundred Fifty Million Dollars
($250,000,000.00), or total assets of at least Five Billion Dollars
($5,000,000,000.00), in each case due within one (1) year after the date of
the
making of the Investment;
(d) certificates
of deposit issued by, bank deposits in, eurodollar deposits through, bankers'
acceptances of, and repurchase agreements covering Government Securities
executed by, any branch or office located in the United States of America of
a
bank incorporated under the laws of any jurisdiction outside the United States
of America having on the date of such Investment combined capital, surplus
and
undivided profits of at least Five Hundred Million Dollars ($500,000,000.00),
or
total assets of at least Fifteen Billion Dollars ($15,000,000,000.00) in each
case due within one year after the date of the making of the
Investment;
(e) repurchase
agreements covering Government Securities executed by a broker or dealer
registered under Section 15(b) of the Securities Exchange Act of 1934 having
on
the date of the Investment capital of at least One Hundred Million Dollars
($100,000,000.00), due within thirty (30) days after the date of the making
of
the Investment; provided
that the
maker of the Investment receives written confirmation of the transfer to it
of
record ownership of the Government Securities on the books of a "primary dealer"
in such Government Securities on the books of such registered broker or dealer,
as soon as practicable after the making of the Investment;
9
(f) readily
marketable commercial paper of corporations doing business in and incorporated
under the laws of the United States of America or any State thereof or of any
corporation that is the holding company for a bank described in clauses (c)
or
(d) above given on the date of such Investment a credit rating of at least
P-1
by Xxxxx'x Investors Service, Inc. or A-1 by Standard & Poor's Corporation,
in each case due within three hundred sixty-five (365) days after the date
of
the making of the Investment;
(g) "money
market preferred stock" issued by a corporation incorporated under the laws
of
the United States of America or any State thereof given on the date of such
Investment a credit rating of at least Aa by Xxxxx'x Investors Service, Inc.
or
AA by Standard & Poor's Corporation, in each case having an investment
period not to exceed fifty (50) days; provided
that (i)
the amount of all such Investments issued by the same issuer does not exceed
Five Million Dollars ($5,000,000.00) and (ii) the aggregate amount of all
such Investments does not exceed Fifteen Million Dollars ($15,000,000.00);
and
(h) a
readily
redeemable "money market mutual fund" sponsored by a bank described in clauses
(c) or (d) hereof, or a registered broker or dealer described in clause (e)
hereof, that has and maintains an investment policy limiting its investments
primarily to instruments of the types described in clauses (a) through (g)
hereof and having on the date of such Investment total assets of at least One
Billion Dollars ($1,000,000,000.00).
"Casino
Facility" shall mean the improvements and the casino business and related
activities to be conducted on the Real Property following completion of the
Casino Project.
"Casino
General Contractor" shall mean Sprung Construction, Inc., 0000 Xxxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxx 00000, the general contractor that has been engaged by Borrower
for construction of the Casino Project.
"Casino
General Contractor Budget" shall mean the line item breakdown for construction
costs, materials, labor and other payments to be made under the Casino General
Contractor's Agreement, together with all amendments, revisions and
modifications thereto.
"Casino
General Contractor's Agreement" shall mean the Standard Form of Agreement
Between Owner and Contractor, AIA Document A111-1997 dated April 6, 2005,
executed by and between Borrower and Casino General Contractor for the
10
construction
of the Casino Project consistent with the Casino General Contractor Budget,
together with the General Conditions, AIA Document A201-1997.
"Casino
General Contractor's Consent" shall mean a Contractor's Consent and Agreement
to
be executed by the Casino General Contractor and delivered to Agent Bank, on
behalf of the Lenders, prior to the Initial Construction Disbursement Date,
for
the purpose, among other things, of evidencing the Casino General Contractor's:
(i) consent to the Assignment of Casino General Contractor's Agreement;
(ii) agreement not to modify the Casino General Contractor's Agreement
without Agent Bank's consent; and (iii) agreement to continue performance
under the Casino General Contractor's Agreement on behalf of Agent Bank subject
to the terms and conditions set forth therein.
"Casino
Project" shall mean a renovation of approximately forty-one thousand (41,000)
square feet of existing building space currently contained in eight (8)
individual and distinct historic building structures. The renovation is expected
to yield gaming space for approximately six hundred twenty-five (625) slot
machines (with capacity for eight hundred (800)), approximately twelve (12)
table games and approximately thirty (30) hotel rooms to be located on the
top
floor of the Casino Project. An additional twenty-nine thousand (29,000) square
feet of additional casino space will be designated as new construction, all
substantially in accordance with the Plans and Specifications, which shall
include all items of improvement and related costs as set forth on the
Construction Budgets.
"Central
City" shall mean the City of Central, Colorado, a home rule
municipality.
"Change
of Control" shall mean the occurrence of the following event:
a. CCTI
shall own less than sixty-five percent (65.0%) of the Membership Units, as
defined in the Operating Agreement of Borrower.
"Closing
Certificate" shall have the meaning ascribed to such term in
Section 3.05(v).
"Closing
Date" shall mean the date upon which: (i) each condition precedent required
under Article IIIA of this Credit Agreement has been satisfied or waived and
(ii) the Security Documentation have been filed and/or recorded in
accordance with and in the manner required herein and by the Closing
Instructions; or such other date as to which Agent Bank and Borrower agree
in
writing.
"Closing
Disbursements" shall mean collective reference to disbursements and/or
Borrowings, as applicable, made on the Closing Date from the C/T Loan for the
11
purposes
set forth in Section 2.01(b) and/or the Revolving Credit Facility for the
purposes
set forth in Section 2.06(a)(i).
"Closing
Instructions" shall mean the Closing Instructions to be given by Agent Bank
to
Title Insurance Company at or prior to the Closing Date setting forth the
requirements of Lenders for the issuance of the Title Insurance Policy and
other
conditions for the closing of the Bank Facilities, as may be amended or modified
prior to the Closing Date to the reasonable satisfaction of Agent
Bank.
"Collateral"
shall mean collective reference to all of Xxxxxxxx's right, title and interest
in and to: (i) the Real Property and the personal property, FF&E,
contract rights, leases, stock, intangibles and other interests of the Borrower
which are subject to the liens, pledges and security interests created by the
Security Documentation; (ii) all rights of the Borrower assigned and/or
pledged as additional security pursuant to the terms of the Loan Documents
and
Security Documentation; (iii) any and all other property and/or intangible
rights, interest or benefits inuring to or in favor of the Borrower which are
in
any manner assigned, pledged, encumbered or otherwise hypothecated in favor
of
Agent Bank on behalf of the Lenders to secure payment of the Bank Facilities;
and (iv) any and all proceeds of the foregoing.
"Collateral
Properties" shall
mean collective reference to the real properties, improvements and associated
FF&E which are pledged and encumbered as Collateral securing repayment of
the Bank Facilities from time to time, which shall consist of the Real Property,
together with any other real property or interests therein which may be held
by
Agent Bank from time to time to secure repayment of the Bank Facilities.
"Communications"
shall have the meaning ascribed to such term in Section 11.03(a).
"Completion
Date" shall mean the date upon which: (a) each of the Construction Projects
has been completed in substantial accordance and compliance with the Plans
and
Specifications and in substantial accordance and compliance with the terms
and
conditions of all Governmental Authorities, (b) the Occupancy Date has
occurred, (c) Title Insurance Company has issued its final 101.6
indorsement to the Title Insurance Policy showing no liens, claims or
encumbrances except those approved by Agent Bank upon the consent of Requisite
Lenders, (d) the Opening Date has occurred, and (e) each other condition
applicable to the final release of retainage, as set forth in Section 9.21,
shall have been met, other than with respect to the completion of "Punch List"
items.
"Completion
Guaranty" shall mean that certain Completion Guaranty in the form of "Exhibit
O", affixed hereto and by this reference incorporated herein and made a
12
part
hereof, to be executed by CCI for the benefit of Lenders on or before the
Closing Date.
"Compliance
Certificate" shall mean a compliance certificate as described in Section 5.08(c)
which is more particularly described on "Exhibit F", affixed hereto and by
this
reference incorporated herein and made a part hereof.
"Construction
Budgets" shall mean collective reference to the Lender's Disbursement Budget,
General Contractor Budgets and Borrower Construction Budget.
"Construction
Completion Costs" means, as of any date of determination, an amount equal to
the
remaining unpaid costs, including, without limitation all Hard Costs and Soft
Costs, and including retainage, of causing the Construction Projects to be
completed and opened to the public, together with all other requirements for
the
occurrence of the Completion Date, as determined by Xxxxxxx' Consultant and
Agent Bank from time to time.
"Construction
Completion Deadline" shall have the meaning ascribed to such term in
Section 9.01(a).
"Construction
Cost Analysis" shall mean the review and analysis of the Plans and
Specifications, General Contractor Budgets and Borrower Construction Budget
and
all other related documentation, including, without limitations, the General
Contractor Agreements, Architect's Contract, subcontracts, bids and other
agreements relating to and necessary for the construction of the Construction
Projects and occurrence of the Completion Date, to be made from time to time
by
Xxxxxxx' Consultant and Agent Bank for the purpose of determining the
Construction Completion Costs as of any date of determination.
"Construction
Disbursement Request" shall mean the form to be executed and appropriately
completed by an Authorized Officer and submitted to Agent Bank concurrently
with
each request for the advance by Lenders of a Construction Disbursement under
the
C/T Loan during the Construction Period, a copy of which form is marked
"Exhibit D", affixed hereto and by this reference incorporated herein and
made a part hereof.
"Construction
Disbursements" shall mean such amounts as are advanced by Lenders from time
to
time under the C/T Loan during the Construction Period pursuant to written
request of Borrower by Construction Disbursement Request in the manner provided
in Section 2.04 and as provided in Article IX.
13
“Construction
Documentation” shall mean collective reference to the Construction Schedule,
Plans and Specifications, Construction Budgets, Financial Requirements Analysis,
General Contractor Agreements and Architect's Contract and all other contracts
and agreements relating to the construction of the Construction Projects,
together with all amendments, revisions and modifications thereto.
"Construction
Overage" shall have the meaning set forth in Section 9.13(f) of the Credit
Agreement.
"Construction
Period" shall mean the period commencing on the Closing Date and terminating
on
the Term Out Date.
"Construction
Projects" shall mean collective reference to the Casino Project and the Parking
Garage Project.
"Construction
Schedule" shall mean the anticipated time schedule for completion of the
Construction Projects as shown on a schedule to be delivered to Agent Bank
on or
before the Initial Construction Disbursement Date.
"Contingency
Reserve" shall have the meaning set forth in Section 9.12.
"Contingency
Transaction Ledger" shall have the meaning set forth in Section
9.12.
"Contingent
Liability(ies)" shall mean, as to any Person any obligation of such Person
guaranteeing or having the economic effect of guaranteeing any Indebtedness,
leases or dividends ("primary obligations") of any other Person that is not
a
Borrower hereunder (the "primary obligor") in any manner, whether directly
or
indirectly, including, without limitation, any obligation of such Person,
whether or not contingent, (a) to purchase any such primary obligation or
any property constituting direct or indirect security therefor, (b) to
advance or supply funds (i) for the purchase or payment of any such primary
obligation or (ii) to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency of the
primary obligor, (c) to purchase property, securities or services primarily
for the purpose of assuring the owner of any such primary obligation of the
ability of the primary obligor to make payment of such primary obligation,
(d) to make payment in respect of any net liability arising in connection
with any Interest Rate Xxxxxx, foreign currency exchange agreement, commodity
hedging agreement or any similar agreement or arrangement in any such case
if
the purpose or intent of such agreement is to provide assurance that such
primary obligation will be paid or discharged, or that any agreements relating
thereto will be complied with, or that the holders of such primary obligation
will be protected (in whole or in part) against loss in respect thereof or
(e) otherwise to assure or hold harmless the holder of such primary
14
obligation
against loss in respect thereof; provided, however, that the term Contingent
Liability shall not include endorsements of instruments for deposit or
collection in the ordinary course of business. The amount of any Contingent
Liability shall be deemed to be an amount equal to the stated or determinable
amount of the primary obligation in respect of which such Contingent Liability
is made or, if not stated or determinable, the reasonably anticipated liability
in respect thereof (assuming such Person is required to perform thereunder)
as
determined by such Person in good faith.
"Contractual
Obligation" means, as to any Person, any provision of any outstanding securities
issued by that Person or of any material agreement, instrument or undertaking
to
which that Person is a party or by which it or any of its assets is
bound.
"Contribution
Agreement" shall mean the Contribution Agreement dated as of October 12,
2004, executed by and among CCTI; Tollgate Venture, LLC; KJE Investments, LLC;
CCVLLC; and Borrower.
"Credit
Agreement" shall mean this Credit Agreement together with all Schedules and
Exhibits attached thereto, executed by and between Borrower and Xxxxx setting
forth the terms and conditions of the Bank Facilities, as may be amended,
modified, extended, renewed or restated from time to time.
"Deed
of
Trust" shall mean the Deed of Trust, Fixture Filing and Security Agreement
with
Assignment of Rents to be executed by Borrower on or before the Closing Date
in
favor of Agent Bank on behalf of the Lenders, encumbering the Real Property,
FF&E and other Collateral therein described, for the purpose of securing the
Bank Facilities and Borrower's payment and performance under each of the Loan
Documents (other than the Environmental Certificate), as such deed of trust
may
be amended, modified, extended, renewed or restated from time to time.
"Default"
shall mean the occurrence or non-occurrence, as the case may be, of any event
that with the giving of notice or passage of time, or both, would become an
Event of Default.
"Default
Rate" shall have the meaning set forth in Section 2.14(b).
"Defaulting
Lender" means any Lender which fails or refuses to perform its obligations
under
this Credit Agreement within the time period specified for performance of such
obligation or, if no time frame is specified, if such failure or refusal
continues for a period of five (5) Banking Business Days after notice from
Agent
Bank.
15
"Designated
Deposit Account" shall mean a deposit account to be maintained by Borrower
with
Agent Bank, as from time to time designated in writing by an Authorized
Officer.
"Device
Fee Rebate Agreement" shall mean that certain City of Central, Colorado License
Fee Rebate Agreement dated as of September 7, 2004, executed between
Central City and Xxxx Xxxxxx, as managing member of Tollgate Venture, LLC,
whose
interest has been assigned to Borrower.
"Device
Fee Rebates" shall mean the refund of a portion of the License Fees to be paid
by Borrower to Central City as more particularly described in the Device Fee
Rebate Agreement.
"Disbursement
Plan" shall mean the plan to be agreed upon between Borrower and Agent Bank
prior to the Initial Construction Disbursement Date, setting forth certain
additional requirements with respect to Construction Disbursements under the
C/T
Loan.
"Dispute"
shall have the meaning set forth in Section 11.14(a).
"Distributions"
shall mean and collectively refer to any and all cash dividends on membership
interests (including, without limitation, Tax Distributions), loans, payments,
advances or other distributions, fees or compensation of any kind or character
whatsoever, but shall not include Management Fees and consideration paid for
tangible and intangible assets in an arms length exchange for fair market value,
trade payments made and other payments for liabilities incurred in the ordinary
course of business, including, without limitation, compensation to officers,
directors and employees of Borrower in the ordinary course of
business.
"Documents"
shall have the meaning set forth in Section 11.14(a).
"Dollars"
and "$" means the lawful money of the United States of America.
"EBITDA"
shall mean with reference to any Person, for any Fiscal Period under review,
the
sum of (i) Net Income for that period, including Device Fee Rebates
actually received during that period, plus (ii) Interest Expense (expensed
and capitalized) for that period, plus (iii) the aggregate amount of federal
and
state taxes on or measured by income for that period (whether or not payable
during that period), plus (iv) depreciation, amortization and all other
non-cash expenses for that period, in each case determined in accordance with
GAAP, less (v) all cash and non-cash income (including, but not limited to,
interest income), transfers, loans and advances from CCI or any of its
Subsidiaries, less (vi) all other non-cash income from any source not
specified in
16
(v)
above and, in the case of items (ii), (iii) and (iv), only to the extent
deducted in the determination of Net Income for that period and in the case
of
items (v) and (vi) only to the extent included in the determination of Net
Income for that period.
"EBITDAM"
shall mean EBITDA, plus Management Fees for that period to the extent deducted
in the determination of Net Income for that period.
"ERISA"
shall mean the Employee Retirement Income Security Act of 1974, as amended
from
time to time.
"Eligible
Assignee" means (a) another Lender, (b) with respect to any Lender,
any Affiliate of that Lender, (c) any commercial bank having a combined
capital and surplus of Fifty Million Dollars ($50,000,000.00) or more that
is
(i) organized under the Laws of the United States of America, any State
thereof or the District of Columbia or (ii) organized under the Laws of any
other country which is a member of the Organization for Economic Cooperation
and
Development, or a political subdivision of such a country, provided
that (A)
such bank is acting through a branch or agency located in the United States
of
America and (B) is otherwise exempt from withholding of tax on interest and
delivers Form 1001 or Form 4224 at the time of any assignment, or
(d) a financial institution which is an accredited investor as defined by
the Securities Act of 1934 and is otherwise exempt from withholding tax on
interest at the time of any assignment, (e) any other financial institution
that
meets the requirements set forth in subclauses (c)(i) or (c)(ii) above that
(i)
has a net worth of Fifty Million Dollars ($50,000,000.00) or more, (ii) is
engaged in the business of lending money and extending credit under credit
facilities substantially similar to those extended under this Credit Agreement,
and (iii) is operationally and procedurally able to meet the obligations of
a Lender hereunder to the same degree as a commercial bank, and (f) with
respect to such commercial bank or financial institution as described in (a)
through (e) above, no finding of unsuitability has been made or determined
by
any Gaming Authority or the gaming authorities of any other States of the United
States of America.
"Environmental
Certificate" shall mean the Certificate and Indemnification Regarding Hazardous
Substances to be executed by Borrower on or before the Closing Date, as a
further inducement to the Banks to enter into the Credit Agreement for the
purposes set forth herein, as such Certificate and Indemnification Regarding
Hazardous Substances may be amended, modified, extended, renewed or restated
from time to time.
"Environmental
Reports" shall have the meaning ascribed to such term in the Environmental
Certificate.
"Equipment
Leases and Contracts" shall mean the executed leases and purchase contracts
pertaining to the FF&E, whether now existing or hereinafter entered
17
into,
wherein Borrower is the lessee or vendee, as the case may be, including, without
limitation, those leases and purchase contracts pertaining to the FF&E which
are set forth on the Schedule of Equipment Leases and Contracts designated
as
Schedule 4.16, affixed hereto and by this reference incorporated herein and
made
a part hereof.
"Equity
Contribution" shall mean collective reference to the
voluntary contribution of Cash by a member of the Borrower to the Borrower
in
exchange for additional membership interests so long as such contribution is
not
subject to any return of such capital, except to the extent permitted with
respect to Distributions as provided in Section 6.06.
"Event
of
Default" shall mean any event of default as defined in Section 7.01
hereof.
"Excess
Capital Proceeds" shall have the meaning ascribed to such term in
Section 6.12(c) of this Credit Agreement.
"Excess
Cash Flow" shall mean for any Fiscal Quarter, EBITDAM less (i) the
aggregate amount of Maintenance Capital Expenditures, less (ii) the
aggregate amount of Interest Expense actually paid, less (iii) the
aggregate of Scheduled Term Amortization Payments, less (iv) the aggregate
of
principal payments or reductions (without duplication) required to be made
on
all other outstanding Indebtedness (exclusive of any Excess Cash Flow
Payments).
"Existing
Bank Debt" shall mean the loan advanced by Colorado Business Bank in the
original principal amount of Five Million Dollars ($5,000,000.00) evidenced
by a
Loan Agreement and Promissory Note dated as of April 4, 2005, executed by
Xxxxxxxx in favor of Colorado Business Bank.
"Existing
Bank Debt Security Documents" shall mean collective reference to the Deed of
Trust executed by Xxxxxxxx to the Public Trustee of Xxxxxx County for the
benefit of Colorado Business Bank securing the Existing Bank Debt recorded
April 19, 2005, at Reception Number 125797, together with all other
documents, pledges and instruments securing repayment of the Existing Bank
Debt.
"FF&E"
shall mean collective reference to any and all furnishings, fixtures and
equipment, including, without limitation, all Gaming Devices and associated
equipment, inventories and supplies, which have been installed or are to be
installed and used in connection with the operation of the Casino Facility
or in
connection with any other business operation conducted on the Real Property
and
those items of furniture, fixtures and equipment which have been purchased
or
leased or are hereafter purchased or
18
leased
by
Xxxxxxxx in connection with the Casino Facility and/or in connection with any
other business operation conducted on the Real Property.
"FIRREA"
shall mean the Financial Institutions Reform, Recovery and Enforcement Act
of
1989.
"Federal
Funds Rate" means, as of any date of determination, the rate set forth in the
weekly statistical release designated as H.15(519), or any successor
publication, published by the Federal Reserve Board (including any such
successor, "H.15(519)") for such date opposite the caption "Federal Funds
(Effective)". If for any relevant date such rate is not yet published in
H.15(519), the rate for such date will be the rate set forth in the daily
statistical release designated as the Composite 3:30 p.m. Quotations for
U.S. Government Securities, or any successor publication, published by the
Federal Reserve Bank of New York (including any successor, the "Composite
3:30 p.m. Quotation") for such date under the caption "Federal Funds
Effective Rate". If on any relevant date the appropriate rate for such date
is
not yet published in either H.15(519) or the Composite 3:30 p.m.
Quotations, the rate for such date will be the arithmetic mean of the rates
for
the last transaction in overnight Federal funds arranged prior to 9:00 a.m.
(New York City time) on that date by each of three leading brokers of Federal
funds transactions in New York City selected by the Agent Bank. For purposes
of
the Credit Agreement, any change in the Prime Rate due to a change in the
Federal Funds Rate shall be effective as of the opening of business on the
effective date of such change.
"Fee
Side
Letter" shall mean the Side Letter of Understanding Regarding Fees executed
by
and between Borrower and Agent Bank concerning payment of the fees more
particularly therein described.
"Financial
Covenants" shall mean collective reference to the financial covenants set forth
in Article VI of this Credit Agreement.
"Financial
Requirement Analysis" shall mean the written analysis of the financial
requirements for the construction of each of the Construction Projects to be
prepared by Agent Bank on or before the Closing Date in the form attached hereto
as Exhibit M.
"Financing
Statements" shall mean the Uniform Commercial Code financing statements to
be
filed in the Office of the Secretary of State of the State of Delaware and
in
the Office of the Clerk and Recorder of Xxxxxx County, Colorado, in order to
perfect the security interest granted to Agent Bank on behalf of Lenders under
the Deed of Trust and other Security Documentation in accordance with
requirements of the Colorado Uniform Commercial Code, as such financing
statements may be amended, modified, extended, renewed or restated from time
to
time.
19
"Fiscal
Quarter" shall mean the consecutive three (3) month periods during each Fiscal
Year beginning on January 1, April 1, July 1 and October 1
and ending on March 31, June 30, September 30 and
December 31, respectively.
"Fiscal
Year" shall mean the fiscal year period beginning January 1 of each
calendar year and ending on the following December 31.
"Fiscal
Year End" shall mean December 31 of each calendar year.
"Force
Majeure" means a delay in the work of construction of the Construction Projects
by reason of fire, earthquake, or other acts of God, strike, lockout, acts
of
public enemy, riot, insurrection, governmental action or regulation (other
than
delays caused by non-compliance or violation of any laws or
regulations).
"Funded
C/T Outstandings" shall mean the unpaid principal amount outstanding on the
C/T
Loan as of any given date of determination for Construction Disbursements made
thereunder during the Construction Period.
"Funded
RLC Outstandings" shall mean the unpaid principal amount outstanding on the
Revolving Credit Facility as of any given date of determination for Borrowings
made thereunder, but not including L/C Exposure.
"Funding
Date" shall mean each date upon which Lenders fund Borrowings or Construction
Disbursements requested by Borrower in accordance with the provisions of
Section 2.04 or 2.07, or at the request of Agent Bank pursuant to
Section 2.10.
"GAAP"
means generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board and the American Institute
of
Certified Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board, or in such other statements by such other entity
as
may be in general use by significant segments of the accounting profession,
which are applicable to the circumstances as of the date of
determination.
"Gaming
Authorities" means collective reference to the Division of Gaming of the
Colorado Department of Revenue, the Colorado Limited Gaming Control Commission
and each other agency or other political subdivision which has jurisdiction
over
the gaming activities of Borrower at the Casino Facility.
"Gaming
Devices" shall mean slot machines and other devices which constitute gaming
devices and related equipment as defined by the Gaming Authorities and Gaming
Laws.
20
"Gaming
Laws" shall mean the Colorado Limited Gaming Act and the regulations relating
thereto and all other rules, regulations, statutes and ordinances having
authority or with which compliance is required for the conduct of gambling,
gaming and casino activities at the Casino Facility.
"Gaming
Permits" shall mean collective reference to every license, permit or other
authorization required to own, operate and otherwise conduct gambling, gaming
and casino activities at the Casino Facility, including, without limitation,
all
licenses granted by the Gaming Authorities and all other applicable Governmental
Authorities.
"Garage
General Contractor" shall mean CFC Construction, 0000 Xxxxxx Xxxx Xxxxx, Xxxxx
000, Xxxxxx, Xxxxxxxx 00000, the general contractor that has been engaged by
Borrower for construction of the Parking Garage Project.
"Garage
General Contractor Budget" shall mean the line item breakdown for construction
costs, materials, labor and other payments to be made under the Garage General
Contractor's Agreement, together with all amendments, revisions and
modifications thereto.
"Garage
General Contractor's Agreement" shall mean the Standard Form of Agreement
Between Owner and Contractor, AIA Document A111-1997 dated July 21, 2005,
executed by and between Borrower and General Contractor for the construction
of
the Parking Garage Project consistent with the Garage General Contractor
Budget.
"Garage
General Contractor's Consent" shall mean a Contractor's Consent and Agreement
to
be executed by the Garage General Contractor and delivered to Agent Bank, on
behalf of the Lenders, prior to the Initial Construction Disbursement Date,
for
the purpose, among other things, of evidencing the Garage General Contractor's:
(i) consent to the Assignment of Garage General Contractor's Agreement;
(ii) agreement not to modify the Garage General Contractor's Agreement
without Agent Bank's consent; and (iii) agreement to continue performance
under the Garage General Contractor's Agreement on behalf of Agent Bank subject
to the terms and conditions set forth therein.
"General
Contractor Agreements" shall mean collective reference to the Casino General
Contractor Agreement and the Garage General Contractor Agreement.
"General
Contractor Budgets" shall mean collective reference to the Casino General
Contractor Budget and the Garage General Contractor Budget.
"General
Contractors" shall mean collective reference to the Casino General Contractor
and the Garage General Contractor.
21
"Government
Securities" means readily marketable (a) direct full faith and credit
obligations of the United States of America or obligations guaranteed by the
full faith and credit of the United States of America and (b) obligations of
an
agency or instrumentality of, or corporation owned, controlled or sponsored
by,
the United States of America that are generally considered in the securities
industry to be implicit obligations of the United States of
America.
"Governmental
Authority" or "Governmental Authorities" shall mean any federal, state, county
or municipal governmental agency, board, commission, officer of official whose
consent or approval is required or whose regulations must be followed as a
prerequisite to (i) the construction, operation and/or occupancy of the
Casino Facility, and (ii) the performance of any act or obligation or the
observance of any agreement, provision or condition of whatever nature contained
in the Credit Agreement or in any of the Loan Documents or Security
Documentation.
"Hard
Costs" shall mean those costs which are shown in the Construction Budgets as
a
"construction cost" and any adjustments to such costs pursuant to properly
approved change orders.
"Hazardous
Materials Claims" shall have the meaning set forth in Section 5.20.
"Hazardous
Materials Laws" shall have the meaning set forth in Section 5.20.
"Indebtedness"
of any Person includes all obliga-tions, contingent or otherwise, which in
accordance with GAAP should be classified upon such Person's balance sheet
as
liabilities, but in any event including liabilities of such Person for borrowed
money or other liabilities of such Person secured by any lien existing on
property owned or acquired by such Person, Affiliate or a Subsidiary thereof
(whether or not the liability secured thereby shall have been assumed),
obligations which have been or under GAAP should be capitalized for financial
reporting purposes, and all guaranties, endorse-ments, and other contingent
obligations with respect to Indebtedness of others, including, but not limited
to, any obligations to acquire any of such Indebtedness, to purchase, sell,
or
furnish property or services primarily for the purpose of enabling such other
Person to make payment of any of such Indebtedness, or otherwise to assure
the
owner of any of such Indebtedness against loss with respect
thereto.
"Indemnified
Party" and "Indemnified Parties" shall have the meaning ascribed to such terms
in Section 5.14.
22
"Initial
Construction Disbursement" shall mean the first Construction Disbursement to
be
made by Lenders to Borrower pursuant to the C/T Loan.
"Initial
Construction Disbursement Date" shall mean the date upon which Borrower requests
Lenders to fund the Initial Construction Disbursement.
"Interest
Expense" shall mean with respect to any Person, as of the last day of any fiscal
period under review, the sum of (i) all interest, fees, charges and related
expenses paid or payable (without duplication but including capitalized
interest) for that fiscal period by such Person to a lender in connection with
borrowed money (including any obligations for fees, charges and related expenses
payable to the issuer of any letter of credit) or the deferred purchase price
of
assets that are considered "interest expense" under GAAP, plus (ii) the
portion of the up front costs and expenses for Interest Rate Xxxxxx (to the
extent not included in (i)) fairly allocated to such interest rate xxxxxx
as expenses for such period, plus (iii) the portions of Capital Lease
Liabilities paid or payable with respect to such period that should be treated
as interest in accordance with GAAP.
"Interest
Rate Xxxxxx" shall mean, with respect to any Person, all liabilities of such
Person under interest rate swap agreements, interest rate cap agreements, basis
swap, forward rate agreement and interest collar or floor agreements and all
other agreements or arrangements designed to protect such Person against
fluctuations in interest rates or currency exchange rates.
"Investment"
shall mean, when used in connection with any Person, any investment by or of
that Person, whether by means of purchase or other acquisition of stock or
other
securities of any other Person or by means of a loan, advance creating a debt,
capital contribution, guaranty or other debt or equity participation or interest
in any other Person, including
any
partnership and joint venture interests of such Person. The amount of any
Investment shall be the amount actually invested without adjustment for
subsequent increases or decreases in the value of such Investment.
"L/C
Agreement(s)" shall mean collective reference to the Application and Agreement
for Standby Letter of Credit and addendum(s) thereto executed by an Authorized
Officer of Borrower in favor of L/C Issuer in L/C Issuer's standard form,
setting forth the terms and conditions upon which L/C Issuer shall issue a
Letter(s) of Credit, as the same may be amended or modified from time to
time.
"L/C
Exposure" shall mean the aggregate amount which L/C Issuer may be required
to
fund or is contingently liable for disbursement under all issued and outstanding
Letter(s) of Credit, which amount shall be determined by subtracting from the
aggregate of the Stated Amount of each such Letter(s) of Credit, the principal
23
amount
of
all L/C Reimbursement Obligations which have accrued and have been fully
satisfied as of each date of determination.
"L/C
Facility" shall mean the agreement of L/C Issuer to issue Letters of Credit
subject to the terms and conditions and up to the maximum amounts and duration
as set forth in Section 2.10 of the Credit Agreement.
"L/C
Fee"
shall have the meaning set forth in Section 2.13(c) of the Credit
Agreement.
"L/C
Issuance Date" means each date of issuance of each Letter of Credit
hereunder.
"L/C
Issuer" shall mean WFB in its capacity as the issuer of Letters of Credit under
the L/C Facility following the Closing Date.
"L/C
Reimbursement Obligation(s)" shall mean the obligation of Borrower to reimburse
L/C Issuer for amounts funded or disbursed under a Letter(s) of Credit, together
with accrued interest thereon.
"Laws"
means, collectively, all international, foreign, federal, state and local
statutes, maritime laws, treaties, rules, regulations, ordinances, codes and
administrative or judicial precedents.
"Lender
Reply Period" shall have the meaning set forth in Section 10.10(d).
"Lenders"
shall have the meaning set forth in the Preamble to this Credit Agreement.
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".
"Lenders'
Consultant" shall mean the architectural or engineering firm of Agent Bank's
choice and/or affiliate of Agent Bank to be engaged by Agent Bank in connection
with the construction and development of the Casino Project pursuant to the
Lenders' Consultant Contract at the expense of Borrower.
"Lenders'
Consultant Contract" shall mean the agreement or agreements to be executed
by
and between Agent Bank and Xxxxxxx' Consultant for the purpose set forth herein,
including, without limitation:
24
(a) An
examination of the Plans and Specifications and acceptability of documentation
relating to the Construction Projects;
(b) Periodic
site inspections of the Construction Projects to ascertain that:
(i) Percentage
of construction completed and/or percentage of acceptably-stored materials
are
in accordance with percentages specified on the payment request document (AIA
form G-702 or a form substantially similar thereto which has been first approved
by Agent Bank);
(ii) the
Construction Projects are in compliance in all material respects with governing
construction documentation, ie., plans, specifications, engineering
calculations, geotechnical recommendations, approved change orders, etc.;
and
(c) A
review
of change orders which will physically affect the Construction Projects. This
review will be inclusive of budgetary aspects, including Construction Cost
Analysis from time to time, as well as physical/structural
acceptability.
"Lender's
Disbursement Budget" shall mean the "Lender's Disbursement Budget and
Application for Payment" which is a line item budget showing in reasonable
detail to the satisfaction of Agent Bank and each of the Lenders the anticipated
costs of the developing, constructing, furnishing and equipping the Construction
Projects, including the cost of gaming devices, slot machines and other FF&E
to be used in connection therewith and including all items shown on the General
Contractor Budgets and Borrower Construction Budget initially
completed by the Agent Bank on or before the Closing Date and updated and
delivered concurrently with each Construction Disbursement Request, which shall
include all Hard Costs, Soft Costs, costs of furniture, fixtures and equipment,
and opening costs substantially in the form attached hereto as Exhibit
"N".
"Liabilities
and Costs" means all claims, judgments, liabilities, obligations,
responsibilities, losses, damages (including lost profits), punitive or treble
damages, costs, disbursements and expenses (including, without limitation,
reasonable attorneys', experts' and consulting fees and costs of investigation
and feasibility studies), fines, penalties and monetary sanctions, interest,
direct or indirect, known or unknown, absolute or contingent, past, present
or
future.
"Lien"
means any lien, mortgage, pledge, assignment, security interest, charge or
encumbrance of any kind (including any conditional sale or other title retention
25
agreement,
any lease in the nature thereof, and any agreement to give any security
interest) and any option, trust or other preferential arrangement having the
practical effect of any of the foregoing.
"Loan
Documents" shall mean collective reference to the Credit Agreement, the C/T
Note, the Revolving Credit Note, L/C Agreements, the Security Documentation,
the
Environmental Certificate and all other documents and instruments which may
hereafter be executed and delivered by or on behalf of Borrower or any other
Person in connection with the Bank
Facilities
for the
benefit of Banks or Agent Bank on behalf of the Lenders, as the same may be
amended, modified, supplemented, replaced, renewed or restated from time to
time.
"Maintenance
Capital Expenditures" shall mean collective reference to Capital Expenditures
made to or for the benefit of or for use in connection with the Casino Facility
which are for the purpose of maintaining, repairing and/or replacing existing
assets of the Borrower.
"Major
Subcontractor" shall mean each Subcontractor that is a party to a Major
Subcontract.
"Major
Subcontractor Assignments" shall mean collective reference to the assignments
of
the Assigned Major Subcontracts which are required to be executed by Xxxxxxxx
and delivered to Agent Bank under Section 9.04 (b).
"Major
Subcontractor Consents" shall mean collective reference to the consents to
be
executed by each Major Subcontractor that is a party to an Assigned Major
Subcontract as required under Section 9.04(b).
"Major
Subcontracts" shall mean all contracts or subcontracts executed by a
Subcontractor and either General Contractors or another Subcontractor in
connection with the Construction Projects if the aggregate amount of such
contracts or subcontracts executed by such Subcontractor is equal to or greater
than One Hundred Thousand Dollars ($100,000.00).
"Management
Agreement" shall mean the Casino Services Agreement dated October 12, 2004,
executed by and between Borrower and Operating Manager, as assignee of Century
Resorts International Limited, a Mauritian corporation, setting forth the
management services and compensation of the Operating Manager.
"Management
Fees" shall mean collective reference to all fees and compensation paid or
payable to the Operating Manager under the terms of the Management
Agreement.
26
"Management
Subordination Agreement" shall mean the Subordination Agreement to be executed
by Xxxxxxxx and the Operating Manager concurrently with the execution of the
Management Agreement, pursuant to which the Management Agreement and the
Management Fees payable thereunder are subordinated to the Bank Facilities
and
the Security Documentation, which shall be executed in favor of Agent Bank
on
behalf of the Lenders substantially in the form of the Subordination Agreement
marked "Exhibit H", affixed hereto and by this reference incorporated
herein and made a part hereof.
"Margin
Stock" shall have the meaning provided in Regulation U of the Board of Governors
of the Federal Reserve System.
"Marketable
Securities" shall mean stocks, bonds and other recognized brokerage account
securities and equities for which there is open market trading on each business
day or which can be liquidated for Cash within ninety (90) days.
"Material
Adverse Change" shall mean: (i) any set of circumstances or events which is
material and adverse to the Collateral or the condition (financial or
otherwise), business operations or prospects of (a) the Borrower taken as a
whole, or (b) the ability of Borrower to perform its Obligations under the
Loan Documents, or (c) the ability of Agent Bank or any Lender to
enforce any of its material rights or remedies under any of the Loan Documents,
or (ii) any event or change which has or results in a material adverse
effect upon (a) the validity or priority of any of the Loan Documents, or
(b) the use, occupancy or operation of the Casino Facility.
"Maturity
Date" shall mean the fifth (5th)
annual
anniversary of the Term Out Date.
"Maximum
RLC Availability" shall mean the Aggregate RLC Commitment less the Funded
RLC Outstandings less the aggregate L/C Exposure.
"Net
Income" shall mean with respect to any Person for any fiscal period, the net
income of such Person during such fiscal period determined in accordance with
GAAP.
"Net
Proceeds" shall mean the aggregate cash proceeds received by the Borrower in
respect of any sale, transfer, conveyance or disposition of FF&E, net
of the direct costs relating to such sale, transfer, conveyance or disposition
of FF&E, amounts required to be applied to the repayment of Indebtedness
secured by a Lien on the asset or assets that were the subject of such sale,
transfer, conveyance or disposition of FF&E, any reserve for adjustment in
respect of the sale price of such FF&E or liabilities associated with such
sale, transfer, conveyance or disposition of FF&E and retained by the
Borrower
27
and
all
Indebtedness assumed by the purchaser in connection with such sale, transfer,
conveyance or disposition of FF&E and all taxes paid or payable as a result
of such sale, transfer, conveyance or disposition.
"Non
Pro
Rata Borrowing" means a Borrowing or Construction Disbursement with respect
to
which fewer than all Lenders have funded their respective Pro Rata Shares of
such Borrowing or Construction Disbursement and the failure of the non-funding
Lender or Lenders to fund its or their respective Pro Rata Shares of such
Borrowing or Construction Disbursement constitutes a breach of this Credit
Agreement.
"Nonusage
Fee" shall have the meaning ascribed to such term in Section 2.13(b) of this
Credit Agreement.
"Notes"
shall mean collective reference to the Revolving Credit Note and the C/T
Note.
"Notice"
shall
have the meaning ascribed to such term in Section 11.03(b).
"Notice
of Borrowing" shall have the meaning set forth in Section 2.07.
"Obligations"
means, from time to time, all Indebtedness of Borrower owing to Agent Bank,
any
Lender or any Person entitled to indemnification pursuant to Section 5.14,
or any of their respective successors, transferees or assigns, of every type
and
description, whether or not evidenced by any note, guaranty or other instrument,
arising under or in connection with this Credit Agreement or any other Loan
Document, whether or not for the payment of money, whether direct or indirect
(including those acquired by assignment), absolute or contingent, due or to
become due, now existing or hereafter arising and however acquired. The term
includes, without limitation, all interest, charges, expenses, fees, reasonable
attorneys' fees and disbursements, reasonable fees and disbursements of expert
witnesses and other consultants, and any other sum now or hereinafter chargeable
to Borrower under or in connection with Credit Agreement or any other Loan
Document. Notwithstanding the foregoing definition of "Obligations", Borrower's
obligations under any environmental indemnity agreement constituting a Loan
Document, or any environmental representation, warranty, covenant, indemnity
or
similar provision in this Credit Agreement or any other Loan Document, shall
be
secured by the Collateral only to the extent, if any, specifically provided
in
the Security Documentation.
"Occupancy
Date" shall mean the date upon which Xxxxxx County, Colorado, issues a final
or
temporary Certificate of Occupancy for the use and occupancy of all of the
public areas of the Construction Projects by the public.
28
"Opening
Date" shall mean the date upon which the casino areas in the Casino Facility
are
open for use and occupancy by the public.
"Operating
Manager" shall mean Century Casinos Management, Inc., a Delaware corporation,
who has been engaged by Xxxxxxxx to manage the Casino Facility pursuant to
the
terms and provisions set forth in the Management Agreement.
"Parking
Garage Project" shall mean the pre-cast concrete structure to provide parking
for approximately five hundred (500) cars to be located on the block adjacent
to
the Casino Project, to be connected to the Casino Project with an elevated
pedestrian bridge over Spring Street.
"Payment
Subordination Agreement" shall mean the Payment Subordination Agreement to
be
executed by each Subordinated Debt Holder that intends to loan or advance any
Subordinated Debt to Borrower following the Closing Date, which shall be
executed in favor of Agent Bank on behalf of the Lenders prior to the date
of
incurrence of such Subordinated Debt in each case substantially in the form
of
the Payment Subordination Agreement marked "Exhibit E", affixed hereto and
by
this reference incorporated herein and made a part hereof.
"Pension
Plan" means any "employee pension benefit plan" that is subject to Title IV
of
ERISA and which is maintained for employees of Borrower or any of its
Affiliates.
"Permitted
Encumbrances" shall mean, at any particular time: (i) liens for taxes,
assessments or governmental charges not then due and payable or not then
delinquent, (ii) statutory liens for labor and/or materials and liens for taxes,
assessments or governmental charges the validity of which, in either instance,
are being contested in good faith by Borrower by appropriate proceedings, and
as
provided in Sections 5.03 and 5.10 hereof, respectively, provided that, Borrower
shall have maintained adequate reserves in accordance with GAAP for payment
of
same, (iii) liens created or contemplated by the Security Documentation,
(iv) the liens, encumbrances and restrictions on the Real Property, FF&E and
existing improvements which are shown as exceptions on Schedule B, Part I
of the Title Insurance Policy to be issued by Title Insurance Company as of
the
Closing Date, (v) liens consented to in writing by Lenders, (vi) liens of
legally valid leases for FF&E to the extent permitted under the Credit
Agreement, (vii) purchase money security interests for FF&E up to the limits
set forth in Section 6.05(d), (viii) easements, licenses or rights-of-way,
hereafter granted to any Governmental Authority or public utility providing
services to the Real Property and the Casino Facility, (ix) judgment liens,
writs, warrants, levies, distraints, attachments and other similar process
which
do not constitute an Event of Default, and (x) the
29
Management
Agreement, so long as the Management Subordination Agreement remains in full
force and effect.
"Person"
means an individual, firm, corporation, limited liability company, trust,
association, partnership, joint venture, tribunal or other entity.
"Plans
and Specifications" shall mean the plans and specifications for the development
and construction of the Construction Projects prepared by the Architect and
the
Architect's consultants, as such plans and specifications may be amended from
time to time. Said plans and specifications shall include, but not be limited
to, all plans, maps, sketches, diagrams, surveys, drawings, specifications,
lists, geotechnical reports, structural engineering calculations and all other
engineering reports, data and plans prepared by the Architect and the
Architect's consultants in connection with the structural and exterior
components of the Construction Projects.
"Platform"
shall
have the meaning ascribed to such term in Section 11.03(a).
"Policies
of Insurance" shall mean the insurance to be obtained and maintained by Borrower
throughout the term of this Credit Agreement as provided by Section 5.09
herein.
"Post
Foreclosure Plan" shall have the meaning set forth in
Section 10.11(e).
"Prime
Rate" means at any time, and from time to time, the rate of interest most
recently announced within WFB at its principal office in San Francisco,
California, as its "Prime Rate", with the understanding that WFB's "Prime Rate"
is one of its base rates and serves as the basis upon which effective rates
of
interest are calculated for those loans and extensions of credit making
reference thereto, and is evidenced by the recording thereof after its
announcement in such internal publication or publications as WFB may designate.
Each change in the Prime Rate shall be effective on the day the change is
announced within WFB.
"Pro
Rata
Share" shall mean, with respect to any Lender, a percentage equal to such
Lender's Syndication Interest in the Bank Facilities as set forth on the
Schedule of Lenders' Proportions in Bank Facilities.
"Protective
Advance" means all sums expended as determined by Agent Bank to be necessary
to:
(a) protect the priority, validity and enforceability of the Security
Documentation on, and security interests in, any Collateral and the instruments
evidencing or securing the Obligations, or (b) prevent the value of any
Collateral from being materially diminished (assuming the lack of such a payment
within the necessary time frame could
30
potentially
cause such Collateral to lose value), or (c) protect any of the Collateral
from being materially damaged, impaired, mismanaged or taken, including, without
limitation, any amounts expended in accordance with Section 11.20 or
post-foreclosure ownership, maintenance, operation or marketing of any
Collateral.
"Qualified
Appraisal" shall mean reference to an updated appraisal of the Casino Facility
and Collateral, acceptable to Lenders, prepared at Borrower's expense in
compliance with FIRREA by an appraiser acceptable to Agent Bank.
"R/C
Principal Prepayments" shall have the meaning set forth in
Section 2.12(a).
"Real
Property" shall mean the real property which is more particularly described
on
that certain exhibit marked "Exhibit L", affixed hereto and by this
reference incorporated herein and made a part hereof.
"Related
Entities" shall mean collective reference to all members, employees, Affiliates
and Subsidiaries of the Borrower.
"Related
Receivables" shall mean the aggregate amount of all accounts receivable, notes
receivable, obligations, debts and other sums owing to Borrower from Related
Entities.
"Reportable
Event" shall mean any of the events described in Section 4043(b) of ERISA,
other than an event for which the thirty (30) day notice requirement is waived
by regulations.
"Requisite
Lenders" means, as of any date of determination prior to the occurrence of
an
Event of Default, Lenders holding Syndication Interests equal to or in excess
of
sixty-six and two-thirds percent (66-2/3%) of the Bank Facilities; and at all
times during which an Event of Default has occurred and remains continuing,
Lenders holding a percentage equal to or in excess of sixty-six and two-thirds
percent (66-2/3%) of the Aggregate Outstandings; provided that,
(i) in
determining such percentage at any given time, all then existing Defaulting
Lenders will be disregarded and excluded and the Pro Rata Shares of Lenders
shall be redetermined, for voting purposes only, to exclude the Pro Rata Shares
of such Defaulting Lenders, and (ii) notwithstanding the foregoing, at all
times when two or more Lenders are party to this Credit Agreement, the term
Requisite Lenders shall in no event mean less than two (2) Lenders.
"Retainage"
shall have the meaning ascribed to such term in Section 9.21.
"Retainage
Release Date" shall have the meaning set forth in Section 9.21.
31
"Revolving
Credit Facility" shall mean the agreement of Lenders to establish and fund
a
revolving line of credit, including the L/C Facility, up to the amount of the
Aggregate RLC Commitment, subject to the terms and conditions set forth in
this
Credit Agreement and the Revolving Credit Note.
"Revolving
Credit Note" shall mean the Revolving Credit Promissory Note, a copy of which
is
marked "Exhibit A", affixed hereto and by this reference incorporated
herein and made a part hereof, to be executed by Borrower on the Closing Date,
payable to the order of Agent Bank on behalf of the Lenders, evidencing the
Revolving Credit Facility, as the same may be amended, modified, supplemented,
replaced, renewed or restated from time to time.
"Revolving
Credit Period" shall mean the period commencing on the Closing Date and
terminating on the Maturity Date.
"Revolving
Facility Termination" shall mean indefeasible payment in full of all sums owing
under the Revolving Credit Note and each of the other Loan Documents relating
to
the Revolving Credit Facility and the irrevocable termination of the obligation
of Lenders to advance Borrowings thereunder.
"Schedule
of Lenders' Proportions in Bank Facilities" shall mean the Schedule of Lenders'
Proportions in Bank Facilities, a copy of which is marked
"Schedule 2.01(a)", affixed hereto and by this reference incorporated
herein and made a part hereof, setting forth the respective Syndication Interest
and maximum amount to be funded under each of the C/T Loan and the Revolving
Credit Facility by each Lender, as the same may be amended, modified or restated
from time to time in connection with an Assignment and Assumption
Agreement.
"Schedule
of Significant Litigation" shall mean the Schedule of Significant Litigation,
a
copy of which is set forth as Schedule 3.13(b), affixed hereto and by this
reference incorporated herein and made a part hereof, setting forth the
information described in Section 3.13(b) with respect to each Significant
Litigation.
"Scheduled
Term Amortization Payments" shall mean the amount by which the C/T Loan is
required to be reduced on each Term Payment Date as set forth on the C/T Loan
Reduction Schedule.
"Secured
Interest Rate Hedge(s)" shall mean any Interest Rate Hedge entered into between
a Borrower and any Lender, or Affiliate of any Lender, which is secured by
the
Security Documentation.
32
"Security
Documentation" shall mean collective reference to the Deed of Trust, Assignment
of Entitlements, Contracts, Rents and Revenues, the Financing Statements,
Completion Guaranty, Assignment of Architect's Contract, Assignment of Casino
General Contractor's Agreement, Assignment of Garage General Contractor's
Agreement, Major Subcontractor Assignments and all other documents, instruments
or agreements which are executed or delivered by or on behalf of Borrower,
and
accepted by Agent Bank, on behalf of the Lenders, as security for payment of
the
Bank Facilities.
"Senior
Funded Debt" shall mean with reference to the Borrower for any period the Funded
RLC Outstandings as of the last day of such period, plus the Funded C/T
Outstandings as of the last day of such period, plus the total of both the
long-term and current portions (without duplication) of all other interest
bearing Indebtedness (including Contingent Liabilities, but excluding
Subordinated Debt and accrued but unpaid Management Fees) and Capitalized Lease
Liabilities, in each instance determined as of the last day of such Fiscal
Period.
"Senior
Leverage Ratio" as of the end of any Fiscal Quarter shall mean the ratio
resulting by dividing (a) Senior Funded Debt for the Fiscal Quarter under review
by (b) the sum of Annualized EBITDAM determined as of the end of such Fiscal
Quarter.
"Significant
Litigation" shall mean each action, suit, proceeding, litigation and controversy
involving Borrower involving claims in excess of Five Hundred Thousand Dollars
($500,000.00) or which if determined adversely to the interests of any Borrower,
would result in a Material Adverse Change.
"Soft
Costs" shall mean all costs which are shown in the Construction Budgets, other
than Hard Costs, including, without limitation, the purchase of FF&E and
other items outside the scope of the General Contractor Agreements.
"Spaceleases"
shall mean the executed leases and concession agreements pertaining to the
Casino Facility, the Real Property, or any portion thereof, whether now existing
or hereinafter entered into, wherein Borrower is the lessor, including, without
limitation, those leases and concession agreements which are set forth on the
Schedule of Spaceleases designated as Schedule 4.15, affixed hereto and by
this reference incorporated herein and made a part hereof.
"Stated
Amount" shall mean the maximum amount which L/C Issuer may be required to
disburse to the beneficiary(ies) of a Letter(s) of Credit under the terms
thereof.
33
"Stated
Expiry Date(s)" shall mean the date set forth on the face of a Letter(s) of
Credit as the date when all obligations of L/C Issuer to advance funds
thereunder will terminate, as the same may be extended from time to
time.
"Subcontractor(s)"
means any person(s) or firm(s), other than an employee of either of the General
Contractors, who is engaged by such General Contractor, Borrower or by another
Subcontractor to furnish labor, material, analysis or other services with
respect to a portion of the work, labor, materials and services to be provided:
(i) for either of the General Contractors under one of the General Contractor
Agreements, or (ii) for Borrower or another Subcontractor for work, labor,
materials and services not included in the General Contractor
Agreements.
"Subordinated
Debt" shall mean collective reference to (i) the CCI Subordinated Note,
(ii) the CCVLLC Subordinated Note, and (iii) all other unsecured
Indebtedness, owing by Borrower to a Subordinated Debt Holder which:
(a) has been first approved in writing by Agent Bank, (b) has been
structurally and contractually subordinated to the Bank Facilities prior to
the
incurrence of such Subordinated Debt by execution of a Payment Subordination
Agreement by Xxxxxxxx and the Subordinated Debt Holders in favor of Agent Bank
on behalf of the Lenders, and (c) may only be used for providing working
capital for the Casino Facility.
"Subordinated
Debt Holder(s)" shall mean reference to each Person or Persons who loan or
advance funds to Borrower as Subordinated Debt.
"Subordinated
Notes" shall mean collective reference to the CCI Subordinated Note, the CCVLLC
Subordinated Note and each other promissory note evidencing the repayment of
Subordinated Debt.
"Subsidiary"
shall mean, on the date in question, any Person of which an aggregate of 50%
or
more of the stock of any class or classes (or equivalent interests) is owned
of
record or beneficially, directly or indirectly, by another Person and/or any
of
its Subsidiaries, if the holders of the stock of such class or classes (or
equivalent interests) (a) are ordinarily, in the absence of contin-gencies,
entitled to vote for the election of a majority of the directors (or individuals
performing similar functions) of such Person, even though the right so to vote
has been suspended by the happening of such a contingency, or (b) are entitled,
as such holders, to vote for the election of a majority of the directors (or
individuals performing similar functions) of such Person, whether or not the
right so to vote exists by reason of the happening of a
contingency.
"Syndication
Interest" shall mean the proportionate interest of each Lender in the Bank
Facilities as set forth on the Schedule of Lenders' Proportions in Bank
Facilities, as the same may be amended or restated from time to
time.
34
"Tax
Distribution" shall mean a Distribution made by Borrower to its members to
enable such members to pay taxes on the Net Income of Borrower which shall
not
exceed the actual tax liability of such member and in no event exceed the
maximum tax rate applicable to such member.
"Taxes"
shall have the meaning set forth in Section 2.15.
"Term
Out
Date" shall mean the earlier to occur of (i) the Completion Date, and
(ii) the Construction Completion Deadline.
"Term
Payment Date" shall mean the end of each and every Fiscal Quarter commencing
on
the last day of the first (1st)
full
Fiscal Quarter following the Term Out Date and continuing through the Maturity
Date.
"Term
Period" shall mean the period commencing on the Term Out Date, and terminating
on the Maturity Date.
"Title
Insurance Company" shall mean First American Heritage Title Company, with
offices located at 0000 Xxxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx, as the
issuing agent for First American Title Insurance Company, together with such
reinsurers with direct access as are requested by Agent Bank or other title
insurance company or companies as may be reasonably acceptable to Agent Bank.
"Title
Insurance Policy" shall mean the ALTA Extended Coverage Lenders Policy of Title
Insurance, and the endorsements thereto, which are to be issued by the Title
Insurance Company, as of the Closing Date, in the amount of Thirty-Five Million
Dollars ($35,000,000.00) in favor of Agent Bank, insuring the Deed of Trust
as a
first priority mortgage lien encumbering the Real Property therein described
subject only to the exceptions shown therein in Schedule B, Part One,
together with all such endorsements thereto as are required by Agent Bank,
all
in accordance with the Closing Instructions.
"Total
Funded Debt" shall mean with reference to the Borrower for any period the Funded
RLC Outstandings and L/C Exposure as of the last day of such period, plus the
Funded C/T Outstandings as of the last day of such period, plus the total as
of
the last day of such period of both the long-term and current portions (without
duplication) of all other Indebtedness (including Contingent Liabilities, and
all Indebtedness owing to the Subordinated Lenders under the Subordinated Debt
but excluding accrued but unpaid Management Fees) and Capitalized Lease
Liabilities.
35
"Total
Leverage Ratio" as of the end of any Fiscal Quarter shall mean the ratio
resulting by dividing (a) Total Funded Debt for the Fiscal Quarter under review
by (b) the sum of Annualized EBITDAM determined as of the end of such Fiscal
Quarter.
"Unsuitable
Lender" shall have the meaning set forth in Section 11.10(d).
"WFB"
shall mean Xxxxx Fargo Bank, National Association.
Section
1.02. Interpretation
and Construction.
In this
Credit Agreement, unless the context otherwise requires:
(a) Articles
and Sections mentioned by number only are the respective Articles and Sections
of this Credit Agreement as so numbered;
(b) Words
importing a particular gender mean and include every other gender, and words
importing the singular number mean and include the plural number and
vice
versa;
(c) All
times
specified herein, unless otherwise specifically referred, shall be the time
in
San Francisco, California;
(d) Any
headings preceding the texts of the several Articles and Sections of this Credit
Agreement, and any table of contents or marginal notes appended to copies
hereof, shall be solely for con-venience of reference and shall not constitute
a
part of this Credit Agreement, nor shall they affect its meaning, construction
or effect;
(e) If
any
clause, definition, provision or Section of this Credit Agreement shall be
determined to be apparently contrary to or conflicting with any other clause,
definition, provision or Section of this Credit Agreement then the clause,
definition, provision or Section containing the more specific provisions shall
control and govern with respect to such apparent conflict. The parties hereto
do
agree that each has con-tributed to the drafting of this Credit Agreement and
all Loan Documents and that the provisions herein contained shall not be
construed against either Borrower or Lenders as having been the person or
persons responsible for the preparation thereof;
(f) The
terms
"herein", "hereunder", "hereby", "hereto", "hereof" and any similar terms as
used in the Credit Agreement refer to this Credit Agreement; the term
"heretofore" means before the date of execution of this Credit Agreement; and
the term "hereafter" means after the date of the execution of this Credit
Agreement;
(g) All
accounting terms used herein which are not otherwise specifically defined shall
be used in accordance with GAAP;
36
(h) If
any
clause, provision or Section of this Credit Agreement shall be ruled invalid
or
unenforceable by any court of competent jurisdiction, such holding shall not
invalidate or render unenforceable any of the remaining provisions hereof;
and
(i) Each
reference to this Credit Agreement or any other Loan Document or any of them,
as
used in this Credit Agreement or in any other Loan Document, shall be deemed
a
reference to this Credit Agreement or such Loan Document, as applicable, as
the
same may be amended, modified, supplemented, replaced, renewed or restated
from
time to time.
Section
1.03. Use
of
Defined Terms.
Unless
otherwise defined or the context otherwise requires, terms for which meanings
are provided in this Credit Agreement shall have such meanings when used in
the
C/T Note, Revolving Credit Note and in each Loan Document and other
communication delivered from time to time in connection with this Credit
Agreement or any other Loan Document.
Section
1.04. Cross-References.
Unless
otherwise specified, references in this Credit Agreement and in each other
Loan
Document to any Article or Section are references to such Article or Section
of
this Credit Agreement or such other Loan Document, as the case may be, and,
unless otherwise specified, references in any Article, Section or definition
to
any clause are references to such clause of such Article, Section or
definition.
Section
1.05. Exhibits
and Schedules.
All
Exhibits and Schedules to this Credit Agreement, either as originally existing
or as the same may from time to time be supplemented, modified or amended,
are
incorporated herein by this reference.
ARTICLE
II
AMOUNT
AND TERMS OF THE C/T LOAN
Section
2.01. The
C/T Loan.
a. Subject
to the conditions and upon the terms hereinafter set forth and in accordance
with the terms and provisions of the C/T Note, Lenders severally agree in the
proportions set forth on the Schedule of Lenders' Proportions in Bank
Facilities, marked Schedule 2.01(a) attached hereto and by this reference
incorporated herein and made a part hereof, to lend and advance Construction
Disbursements to Borrower in such amounts as Borrower may request by
Construction Disbursement Request during the Construction Period duly executed
by an Authorized Officer and delivered to Agent Bank from time to time, together
with all other requirements as provided in Section 2.04 and Article IX.
Provided, however, that on the
37
Term
Out
Date, at Borrower's option, either (i) any principal remaining undisbursed
under the C/T Loan shall be advanced toward reduction of the outstanding
principal of the Revolving Credit Facility, or (ii) Borrower shall use Cash
to reduce the Revolving Credit Facility by an amount equal to the principal
remaining undisbursed under the C/T Loan.
b. Borrower
may not reborrow any amounts repaid or prepaid on the C/T Loan. Borrower shall
use the proceeds of the C/T Loan (i) to finance, construct, furnish and
equip the Construction Projects, (ii) to pay other costs and expenses
permitted herein related to the financing (including the payment of any interest
due under the terms of the Credit Agreement), furnishing, equipping and
construction of the Construction Projects, and otherwise as contemplated or
permitted herein for the Construction Projects, and as more particularly
described in the Construction Budgets, (iii) to finance the cost of Gaming
Devices and associated equipment, (iv) to refinance the Existing Bank Debt,
(v) to finance pre-opening and transaction costs, including obligations up
to the cumulative aggregate amount of One Million Dollars ($1,000,000.00) in
consideration for advisory services rendered in connection with the Construction
Projects and the financing of the Construction Projects, and (vi) to pay
the amounts due to CCVLLC upon "Commencement of Construction" as used in the
Contribution Agreement up to the maximum amount of One Million Dollars
($1,000,000.00).
Section
2.02. Term
of C/T Loan.
The C/T
Loan 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 C/T Loan
shall be fully paid and Bank Facilities Termination shall occur. In no event
shall any Lender be liable to fund any amounts under the C/T Loan in excess
of
its respective Syndication Interest in any Construction
Disbursement.
Section
2.03. The
C/T Note, Interest Rate, Scheduled Amortization and Excess Cash Flow
Payments.
a. The
C/T
Loan shall be evidenced by the C/T Note dated as of the Closing Date and shall
bear interest and be due and payable to Agent Bank on behalf of the Lenders
as
provided therein, a copy of which is marked "Exhibit A", affixed hereto and
by this reference incorporated herein and made a part hereof as though fully
set
forth verbatim. Agent Bank shall record the date and amount of each Construction
Disbursement advanced by the Lenders, and the amount of each repayment of
principal made thereunder by Xxxxxxxx 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 Construction Disbursement 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 C/T
Note.
38
b. Interest
shall accrue on the entire outstanding principal balance of the C/T Loan at
the
Agreed Rate. Interest accrued on the unpaid principal balance of the C/T Loan
shall be due and payable on the first day of each and every calendar month
and
on the Maturity Date.
c. Each
determination of the applicable Agreed Rate shall be conclusive and binding
upon
the Borrower, in the absence of manifest or demonstrable error. The Agent Bank
shall, on no less than a monthly basis, deliver to Borrower an invoice statement
showing the payment due and the computations used by the Agent Bank in
determining the Agreed Rate hereunder. Computation
of interest on the C/T Loan shall be calculated on the basis of a year of three
hundred sixty (360) days and the actual number of days elapsed.
d. Commencing
on the last day of the first full Fiscal Quarter following the Term Out Date
and
continuing on the last day of each and every Fiscal Quarter thereafter until
the
Maturity Date, the Scheduled Term Amortization Payments shall be made in the
amounts and on the Term Payment Dates as set forth on the C/T Loan Reduction
Schedule, Schedule 2.03(d) affixed hereto.
e. In
addition to the Scheduled Term Amortization Payments, during the Term Period
Borrower shall pay on or before the sixtieth (60th)
calendar day following each Fiscal Quarter end, commencing on the sixtieth
(60th)
calendar day following the first full Fiscal Quarter following the Term Out
Date, an amount equal to fifty percent (50.0%) of the amount of Excess Cash
Flow
realized by Borrower during such Fiscal Quarter (in each case an "Excess Cash
Flow Payment"). Provided, however, notwithstanding the foregoing, no Excess
Cash
Flow Payment shall be required for any Fiscal Quarter in which Borrower realizes
as of the end of such Fiscal Quarter a Senior Leverage Ratio less than 2.50
to
1.00.
f. All
principal prepayments, including Excess Cash Flow Payments, Capital Proceeds
applied to the C/T Loan under Section 8.02(a) and Excess Capital Proceeds
under Section 6.12(c) received by Agent Bank shall be applied to the last
principal sums falling due under the C/T Loan in the inverse order of
maturity.
Section
2.04. Construction
Disbursements.
a. Subject
to the conditions and upon the terms hereinafter set forth and in accordance
with the terms and provisions of the C/T Note, during the Construction Period
Lenders severally agree to advance Construction Disbursements to Borrower in
proportion to their respective Syndication Interests in such amounts as Borrower
may request from time to time by Construction Disbursement Request, so long
as
Borrower is in full compliance with each of the requirements and conditions
precedent set forth in Articles III B and IX of this Credit Agreement. Provided,
however,
39
upon
the
consent of the Requisite Lenders, Lenders shall advance Construction
Disbursements notwithstanding the existence of less than full compliance
with
the requirements of Article III B or Article IX and Construction
Disbursements so made shall be deemed to have been made pursuant to this
Credit
Agreement.
b. Each
Lender's obligation to advance Construction Disbursements in the proportionate
amount of its Pro Rata Share is several, and not joint or joint and several.
The
failure of any Lender to perform its obligation to advance a Construction
Disbursement in a proportionate amount of such Xxxxxx's Pro Rata Share will
not
relieve any other Lender of its obligation hereunder to advance such
Construction Disbursement in the amount of such other Lender's Pro Rata
Share.
ARTICLE
II B
AMOUNT
AND TERMS OF THE REVOLVING CREDIT FACILITY
Section
2.05. The
Revolving Credit Facility.
a. Subject
to the conditions and upon the terms hereinafter set forth and in accordance
with the terms and provisions of the Revolving Credit Note, on and after the
Closing Date Lenders severally agree in the proportions set forth on the
Schedule of Lenders' Proportions in Bank Facilities to lend and advance
Borrowings to Borrower, up to the Aggregate Commitment in the initial amount
of
Two Million Five Hundred Thousand Dollars ($2,500,000.00), the Closing
Disbursements on the Closing Date and such amounts as Borrower may request
by
Notice of Borrowing duly executed by an Authorized Officer and delivered to
Agent Bank from time to time as provided in Section 2.07, or at the request
of Agent Bank pursuant to Section 2.10.
b. Subject
to the uses and purposes set forth in Section 2.06, on and after the Closing
Date Borrower may borrow, repay and reborrow the Available RLC Borrowings up
to
the Aggregate RLC Commitment from time to time. The Revolving 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 Revolving
Credit Facility shall be fully paid and Bank Facilities Termination shall occur.
In no event shall any Lender be liable to fund any amounts under the Revolving
Credit Facility in excess of its respective Syndication Interest in any
Borrowing.
Section
2.06. Use
of
Proceeds of the Revolving Credit Facility.
Available RLC Borrowings shall be used for the purposes of:
a. On
the
Closing Date:
40
(i) To
the
extent not paid from the proceeds of the C/T Loan, paying in full all fees
due
Agent Bank as set forth in the Fee Side Letter, the reasonable costs, fees
and
expenses of Title Insurance Company incurred in connection with the issuance
of
the Title Insurance Policy, the costs, fees and expenses of the attorneys for
Borrower and the reasonable 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; provided, however, that Xxxxxxxx
shall not be responsible for the attorneys' fees and other costs incurred by
the
Lenders, other than with respect to the attorneys for Agent Bank as described
above.
b. Subsequent
to the Closing Date, to the extent not paid from the proceeds of the C/T
Loan:
(i) financing
pre-opening and transaction costs (including obligations up to the cumulative
aggregate amount of One Million Dollars ($1,000,000.00) in consideration for
advisory services rendered in connection with the Construction Projects and
the
financing of the Construction Projects);
(ii) funding
working capital needs of the Borrower relating to the Casino
Facility;
(iii) funding
ongoing Capital Expenditure requirements of the Borrower relating to the Casino
Facility; and
(iv) for
general corporate purposes of the Borrower.
Section
2.07. Notice
of Borrowings.
a. An
Authorized Officer shall give Agent Bank, no later than 11:00 a.m. on any
Banking Business Day at Agent Bank's office specified in Section 2.07, at least
one (1) full Banking Business Day prior written notice in the form of the Notice
of Borrowing ("Notice of Borrowing"), a copy of which is marked
"Exhibit C", affixed hereto and by this reference incorporated herein and
made a part hereof, for each proposed Borrowing, specifying the date and amount
of each proposed Borrowing. Agent Bank shall give prompt notice of each Notice
of Borrowing to Lenders of the amount to be funded and specifying the Funding
Date. Not later than 11:00 a.m. on the Funding Date specified, each Lender
shall
disburse to Agent Bank the Pro Rata Share of the amount to be advanced by each
such Lender in lawful money of the United
41
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 a.m. from the Lenders
available to Borrower by depositing, prior to 1:00 p.m. on the day so received
(but not prior to the Funding Date), the amounts received from the Lenders
in
the Designated Deposit Account maintained with Agent Bank. No Borrowing may
exceed the Available Borrowings. Each Borrowing shall be in a minimum amount
of
Two Hundred Fifty Thousand Dollars ($250,000.00) and additional amounts in
excess of Two Hundred Fifty Thousand Dollars ($250,000.00) shall be in
increments of One Hundred Thousand Dollars ($100,000.00) or such lesser amount
as equals the Maximum RLC Availability. Borrower shall be entitled to no
more
than five (5) Borrowings during each calendar month, exclusive of Borrowings
made for the sole purpose of funding repayment of an L/C Reimbursement
Obligation.
b. The
failure of any Lender to fund its Pro Rata Share of any Borrowing on any Funding
Date shall neither relieve any other Lender of any obligation hereunder to
fund
its Pro Rata Share of such Borrowing on such Funding Date nor relieve such
Lender which has failed to fund its Pro Rata Share of its obligations to
Borrower 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. The provisions set forth in
Section 11.10(d) shall be applicable to a Defaulting Lender to the same
extent as if such Defaulting Lender was found to be an Unsuitable
Lender.
Section
2.08. Conditions
of Borrowings.
Borrowings will only be made so long as Borrower is in full compliance with
each
of the requirements and conditions precedent set forth in
Article III B of this Credit Agreement, other than Borrowings made at
the request of Agent Bank for the purpose of funding repayment of L/C
Reimbursement Obligations as hereinafter provided. Provided, however, upon
the
consent of Requisite Lenders, Lenders shall advance Borrowings notwithstanding
the existence of less than full compliance with the requirements of Article
III
B and Borrowings so made shall be deemed to have been made pursuant to this
Credit Agreement.
Section
2.09. The
Revolving Credit Note and Interest Rate.
a. The
Revolving Credit Facility shall be further evidenced by the Revolving Credit
Note dated as of the Closing Date payable to the order of Agent Bank on behalf
of the Lenders as provided herein, a copy of which is marked "Exhibit B",
affixed hereto and by this reference incorporated herein and made a part hereof.
Agent Bank shall record manually or electronically the date and amount of each
Borrowing advanced by the Lenders, and the amount of each repayment of principal
made thereunder by Xxxxxxxx and the entry of such records shall be conclusive
absent
42
manifest
or demonstrable 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 Revolving Credit
Note.
b. Interest
shall accrue on the entire outstanding principal balance of the Revolving Credit
Facility at a rate per annum equal to the Agreed Rate. Interest accrued on
the
Funded RLC Outstandings shall be due and payable on the first (1st)
Banking
Business Day of the month following the Closing Date, on the first
(1st)
Banking
Business Day of each successive month thereafter, and on the Maturity
Date.
c. The
applicable Agreed Rate shall be determined by the Agent Bank, and notice thereof
shall be given promptly to Borrower and Lenders. Each determination of the
applicable Agreed Rate shall be conclusive and binding upon the Borrower, in
the
absence of manifest or demonstrable error. The Agent Bank shall, upon written
request of Borrower or any Lender, promptly deliver to Borrower or such Lender,
as the case may be, a statement showing the computations used by the Agent
Bank
in determining any rate hereunder.
d. Computation
of interest on the Revolving Credit Facility 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.
Section
2.10. Issuance
of Letters of Credit.
a. Any
Authorized Officer of Borrower may from time to time following the Closing
Date
request that a Standby Letter of Credit be issued by delivering to L/C Issuer
(with a copy to the Agent Bank) on a Banking Business Day, at least five (5)
Banking Business Days prior to the date of such proposed issuance, an L/C
Agreement in L/C Issuer's then standard form (consistent with the terms of
the
Credit Agreement), completed to the satisfaction of L/C Issuer and such other
certificates as the L/C Issuer may reasonably request; provided, however, that
no Letter of Credit shall be issued (a) if any Default or Event of Default
has
occurred and remains continuing, or (b) if after giving effect to the
issuance thereof, the aggregate Stated Amount of outstanding Letters of Credit
would exceed One Million Dollars ($1,000,000.00), or (c) the Stated Amount
of the requested Letter of Credit exceeds the then Available RLC Borrowings.
Each Letter of Credit shall be issued by the L/C Issuer on the Banking Business
Day specified in the Borrower's application therefor. Each request for a Letter
of Credit and each Letter of Credit shall be subject to the Uniform Customs
and
Practice for Documentary Credits, International Chamber of Commerce Publication
New 1994 Revision No. 500, or any successor publication then in effect. Each
Letter of Credit will be issued for a term not greater than one (1) year and
shall not
43
include
any provision for automatic renewal. In no event shall any Letter of Credit
provide for the reinstatement of the Stated Amount thereof upon reimbursement
or
otherwise. In no event shall any Letter of Credit have a Stated Expiry Date
later than thirty (30) days prior to the Maturity Date. Promptly after receipt
of each request for the issuance of a Letter of Credit and immediately prior
to
the issuance thereof, L/C Issuer shall obtain telephonic verification from
Agent
Bank that the amount of such request does not exceed the then Available RLC
Borrowings. The L/C Issuer shall promptly notify the Agent Bank of the aggregate
L/C Exposure of outstanding Letters of Credit each time there is a change
therein.
b. Upon
presentation of a draft drawn under any Letter of Credit, L/C Issuer shall
promptly notify the Agent Bank and Borrower of the amount under such draft
and
the date upon which such draft is to be funded. On or before two (2) Banking
Business Days following such notice (unless Xxxxxxxx has made other arrangements
acceptable to the L/C Issuer to pay the amount of such draft in full), Borrower
shall advance to L/C Issuer the amount of such draft from Borrower's available
funds or shall request a Borrowing under the Revolving Credit Facility in an
amount sufficient to pay the amount of such draft in full. The Agent Bank,
upon
receipt of such funds from the Lenders, shall automatically provide such amount
to the L/C Issuer for payment of the amount of such draft and the balance of
the
Borrowing shall be deposited in immediately available funds to the Designated
Deposit Account. In the event Borrower fails to advance to L/C Issuer the amount
of such draft from Borrower's available funds or to request a Borrowing within
two (2) Banking Business Days from receipt of the notice as specified above,
on
the third (3rd) Banking Business Day following Agent Bank's receipt of such
notice, Agent Bank shall, without notice to or consent of the Borrower and
without regard to any other conditions precedent for the making of Borrowings
under the Revolving Credit Facility, cause a Borrowing to be made and funded
by
the Lenders under the Revolving Credit Facility and Xxxxxxx agree to fund their
respective Pro Rata Share of such Borrowing in the amount necessary to pay
the
amount of such draft in full. Upon the occurrence of any Event of Default,
L/C
Issuer shall, without notice or further authorization or consent of Borrower
whatsoever, be authorized to immediately cause the Cash Collateral Account
to be
established and funded by Lenders with a Borrowing advanced to Agent Bank equal
to the aggregate amount of the L/C Exposure then outstanding. All amounts held
by L/C Issuer in the Cash Collateral Account shall be held as security for
the
repayment of any L/C Reimbursement Obligation thereafter arising pursuant to
the
terms of the L/C Agreement(s) and the Cash Collateral Pledge Agreement.
Borrowings advanced by Xxxxxxx to pay drafts drawn upon or to secure repayment
of the L/C Exposure under Letters of Credit pursuant to this subsection shall:
(i) constitute Borrowings under the Revolving Credit Facility and
(ii) be subject to all of the provisions of this Credit Agreement
concerning Borrowings under the Revolving Credit Facility, except that such
Borrowings shall be made upon demand of the Agent Bank as set forth above rather
44
than
upon
Notice of Borrowing by Xxxxxxxx and shall be made, notwithstanding anything
in
this Credit Agreement to the contrary, without regard to any other conditions
precedent to the making of Borrowings under the Credit Agreement and
notwithstanding any Default or Event of Default thereunder. All amounts paid
by
L/C Issuer on a draft drawn under any Letter of Credit which has not been
funded
or concurrently reimbursed by Borrower or through a Borrowing as provided
hereinabove, shall bear interest at the Agreed Rate until repaid or reimbursed
to L/C Issuer.
c. In
the
event Agent Bank fails or is restrained, prohibited or restricted from causing
a
Borrowing to be made as provided in (b) above or Lenders are restrained,
prohibited or restricted from funding a Borrowing as provided in (b) above,
or
L/C Issuer is restrained, prohibited or restricted from using the proceeds
held
in the Cash Collateral Account to fund any draft drawn under any Letter of
Credit, the L/C Issuer may by written notice given to Agent Bank not later
than
11:00 a.m. on any Banking Business Day require the Lenders to acquire
participations on the next Banking Business Day in the subject L/C Reimbursement
Obligation. Such notice shall specify the aggregate amount of the L/C
Reimbursement Obligation in which Lenders will participate. Promptly upon
receipt of such notice, Agent Bank will give notice thereof to each Lender,
specifying in such notice such Lender’s applicable Pro Rata Share percentage of
such L/C Reimbursement Obligation. Each Lender hereby absolutely and
unconditionally agrees, upon receipt of notice as provided above, to pay to
Agent Bank , for the account of the L/C Issuer, such Xxxxxx’s Pro Rata Share of
such L/C Reimbursement Obligation. Each Lender acknowledges and agrees that
its
obligation to acquire participations in the L/C Reimbursement Obligation
pursuant to this paragraph is absolute and unconditional and shall not be
affected by any circumstance whatsoever, including the occurrence and
continuance of a Default or an Event of Default, and that each such payment
shall be made without any offset, abatement, withholding or reduction whatsoever
(provided that such payment shall not cause the unpaid balance of principal
owing to such Lender under the Bank Facilities to exceed such Lender’s
Syndication Interest in the Bank Facilities). Each Lender shall comply with
its
obligation under this paragraph by wire transfer of immediately available funds,
in the same manner as provided in Section 2.07 with respect to Borrowings
made by such Lender, and Agent Bank shall promptly pay to the L/C Issuer the
amounts so received by it from the Lenders. Agent Bank shall notify Borrower
of
any participations in any L/C Reimbursement Obligation acquired pursuant to
this
paragraph, and thereafter payments in respect of such L/C Reimbursement
Obligation shall be made to Agent Bank and not to the L/C Issuer. Any amounts
received by the L/C Issuer from Borrower (or other party on behalf of Xxxxxxxx)
in respect of any L/C Reimbursement Obligation after receipt by the L/C Issuer
of the proceeds of a sale of participations therein shall be promptly remitted
to Agent Bank; any such amounts received by Agent Bank shall be promptly
remitted by Agent Bank to the Lenders that shall have made their payments
pursuant to this paragraph and to the L/C Issuer, as their interests may
45
appear.
The purchase of participations in any L/C Reimbursement Obligation pursuant
to
this paragraph shall not relieve Borrower of any default in the payment
thereof.
d. Each
Lender's obligation to advance Borrowings or purchase a participation interest
in the proportionate amount of its Syndication Interest in the Revolving Credit
Facility of any unreimbursed amounts outstanding under any L/C Reimbursement
Obligation pursuant hereto is several, and not joint or joint and several.
The
failure of any Lender to perform its obligation to advance a Borrowing or
purchase a participation interest in a proportionate amount of such Lender's
Syndication Interest of any unreimbursed amounts outstanding under any L/C
Reimbursement Obligation will not relieve any other Lender of its obligation
hereunder to advance such Borrowing in the amount of such other Lender's
proportionate Syndication Interest of such amount, nor relieve the Lender which
has failed to fund of its obligation to fund hereunder. The Borrower agrees
to
accept the Borrowings for payment of Letters of Credit as provided hereinabove,
whether or not such Borrowings could have been made pursuant to the terms of
Article III or any other section of the Credit Agreement.
e. Letters
of Credit shall be used and issued for the benefit of Borrower for the general
corporate purposes of Borrower relating to the Construction Projects and the
Casino Facility.
f. The
obligations of Borrower under this Credit Agreement and any L/C Agreement to
reimburse L/C Issuer for a drawing under a Letter of Credit, and to repay any
drawing under a Letter of Credit funded by any Borrowing under the Revolving
Credit Facility, shall be unconditional and irrevocable, and shall be paid
strictly in accordance with the terms of this Credit Agreement and each such
other L/C Agreement under all circumstances, including the following: (i) any
lack of validity or enforceability of this Credit Agreement or any L/C
Agreement; (ii) the existence of any claim, setoff, defense or other right
that
Borrower may have at any time against any beneficiary or any transferee of
any
Letter of Credit (or any person for whom any such beneficiary or any such
transferee may be acting), L/C Issuer or any other person, whether in connection
with this Credit Agreement, the transactions contemplated hereby or by the
L/C
Agreement or any unrelated transaction; (iii) any draft, demand, certificate
or
other document presented under any Letter of Credit proving to be forged,
fraudulent, invalid or insufficient in any respect or any statement therein
being untrue or inaccurate in any respect; or any loss or delay in the
transmission or otherwise of any document required in order to make a drawing
under any Letter of Credit; or any defense based upon the failure of any drawing
under a Letter of Credit to conform to the terms of the Letter of Credit or
any
non-application or misapplication by the beneficiary of the proceeds of such
drawing; or (iv) any other circumstance or happening whatsoever, whether or
not
similar to any of the foregoing, including any other circumstance that might
otherwise constitute a defense available to, or a discharge of, Borrower;
provided, however, that neither Borrower nor any Lender shall be obligated
to
reimburse L/C
46
Issuer
for any wrongful payment finally determined by a court of competent jurisdiction
to have been made by L/C Issuer as a result of acts or omissions constituting
willful misconduct or gross negligence on the part of L/C Issuer. To the
extent
that any provision of any L/C Agreement is inconsistent with the provisions
of
this Section 2.10, the provisions of this Section 2.10 shall
control.
ARTICLE
II C
SECURITY,
FEES AND OTHER PROVISIONS OF THE BANK FACILITIES
Section
2.11. Security
for the Bank
Facilities.
The
Security Documentation shall secure the due and punctual payment and performance
of the terms and provisions of this Credit Agreement, the C/T Note, the
Revolving Credit Note and all of the other Loan Documents. The Security
Documentation required under Section 3.03 and Section 3.04 shall be executed
and
delivered to Agent Bank, on or before the Closing Date, by the respective
parties to each of the Security Documentation and recorded and/or filed as
required by the Closing Instructions.
Section
2.12. Place
and Manner of Payment.
a. All
amounts payable by Borrower to the Lenders shall be made to Agent Bank on behalf
of Lenders pursuant to the terms of this Credit Agreement and the Notes 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:
(i) principal payments which may be required to decrease the Funded RLC
Outstandings and L/C Exposure to an amount equal to or less than the Aggregate
RLC Commitment, or (ii) principal payments to increase the Available RLC
Borrowings to an amount equal to or in excess of Construction Completion Costs
as of any date of determination, Borrower shall not make repayments ("R/C
Principal Prepayments") of the outstanding balance of principal owing under
the
Revolving Credit Note more frequently than three (3) such R/C Principal
Prepayments during each calendar month. Each such R/C Principal Prepayment
shall
be in a minimum amount of One Hundred Thousand Dollars ($100,000.00) (or, if
less, the outstanding principal amount of the Revolving Credit Facility) and
in
increments of Ten Thousand Dollars ($10,000.00) in excess thereof.
b. All
such
amounts payable by Borrower shall be made to Agent Bank at its office located
at
Xxxxx Fargo Bank, Syndications Division, 000 Xxxxx Xxxxxx, Xxxxxx Xxxxx,
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, or at such other address as may be directed
in
writing by Agent Bank from time to time and shall be designated as payments
on
the C/T Loan or the Revolving Credit Facility. If such payment is received
by
Agent Bank prior to 11:00 a.m., Agent Bank shall credit Borrower with such
payment on the day so received and shall promptly disburse to the appropriate
Lenders on the
47
same
day
the Pro Rata Share of payments relating to the C/T Loan or the Revolving
Credit
Facility, as applicable, in immediately available funds. If such payment
is
received by Agent Bank after 11:00 a.m., Agent Bank shall credit Borrower
with
such payment as of the next Banking Business Day and disburse to the Lenders
on
the next Banking Business Day such Pro Rata Share of such payment relating
to
the C/T Loan or the Revolving Credit Facility, as applicable, in immediately
available funds. Any payment on the Bank Facilities made by Borrower to Agent
Bank pursuant to the terms of this Credit Agreement for the account of Lenders
shall constitute payment to the appropriate Lenders. If the C/T Loan or the
Revolving Credit 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. Unless
the Agent Bank receives notice from an Authorized Officer prior to the date
on
which any payment is due to the Lenders that Borrower will not make such payment
in full as and when required, the Agent Bank may assume that Borrower has 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 Borrower has 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.
d. If,
other
than as expressly provided elsewhere herein, any Lender shall obtain any payment
with respect to the Bank
Facilities
(whether
voluntary, involuntary, through the exercise of any right of set-off, or
otherwise) in excess of its Syndication Interest, such Lender shall immediately
(a) notify the Agent Bank of such fact, and (b) purchase from the other
Lenders such participations in the Bank
Facilities
as shall
be necessary to cause such purchasing Lender to share the excess payment with
each of them in proportion to their respective Syndication Interests;
provided,
however, that if all or any portion of such excess payment is thereafter
recovered from the purchasing Lender, such purchase shall to that extent be
rescinded and each other Lender shall repay to the purchasing Lender the
purchase price paid therefor, together with an amount equal to such paying
Xxxxxx's ratable share (according to the proportion of (i) the amount of
such paying Lender's required repayment to (ii) the total amount so
recovered from the purchasing Lender) of any interest or other amount paid
or
payable by the purchasing Lender in respect of the total amount so recovered.
Xxxxxxxx agrees that any Lender so purchasing a participation from another
Lender may, to the fullest extent permitted by law, exercise all its rights
of
payment with respect to such
48
participation
as fully as if such Lender were the direct creditor of Borrower in the amount
of
such participation. The Agent Bank will keep records (which shall be conclusive
and binding in the absence of manifest or demonstrable error) of each
participation purchased under this section and will in each case notify the
Lenders following any such purchases or repayments.
Section
2.13. Fees.
a. On
or
before the Closing Date and on each other applicable date, Borrower shall pay
to
Agent Bank the fees as required in the Fee Side Letter, each of such fees to
be
retained by Agent Bank or distributed to Lenders as set forth in the Fee Side
Letter.
b. Commencing
on the Closing Date and continuing until the Term Out Date with respect to
the
C/T Loan and until the Maturity Date with respect to the Revolving Credit
Facility, Borrower shall be obligated to pay a quarterly nonusage fee (the
"Nonusage Fee") to the Agent Bank for the account of Lenders in the proportions
of their respective Syndication Interests. The Nonusage Fee shall begin to
accrue on the Closing Date and shall be calculated as of the last day of each
Fiscal Quarter thereafter occurring as the product of (i) three-quarters of
one percent (.75%) per annum, multiplied by (ii) as of the end of such
Fiscal Quarter, the daily average during such Fiscal Quarter (except with
respect to the Fiscal Quarter in which the Closing Date occurs, which shall
be
calculated with reference to the daily average during such Fiscal Quarter only
for those number of days following the Closing Date) of the sum of: (A) the
Aggregate RLC Commitment, less the daily average during such Fiscal Quarter
of
the Funded RLC Outstandings, plus (B) Thirty-Two Million Five Hundred Thousand
Dollars ($32,500,000.00), less the daily average during such Fiscal Quarter
of
the Funded Term Outstandings, in each case determined on the basis of a three
hundred sixty (360) day year. Each Nonusage Fee shall be payable in arrears
on a
quarterly basis on or before the fifth (5th)
day
following receipt by Borrower of an invoice from Agent Bank setting forth the
amount of such Nonusage Fee for each applicable Fiscal Quarter, and upon
termination of this Credit Agreement, whether at maturity, by acceleration
or
otherwise. Each Nonusage Fee shall be promptly distributed by Agent Bank to
Lenders in proportion to their respective Syndication Interests in the Bank
Facilities.
c. Concurrently
with the issuance of each Letter of Credit, Borrower shall pay an issuance
fee
to the L/C Issuer ("L/C Fee") in an amount equal to the Stated Amount of each
such Letter of Credit multiplied by two percent (2.0%) per annum, calculated
on
a per annum basis for the number of days elapsing from the issuance date to
the
Stated Expiry Date of each such Letter of Credit, but in no event shall the
L/C
Fee be less than Five Hundred Dollars ($500.00) for each Letter of Credit.
From
each L/C Fee the greater of Five Hundred Dollars ($500.00) or one quarter of
one
49
percent
(.25%) of the Stated Amount of each such Letter of Credit, calculated on
a per
annum basis as provided hereinabove, shall be retained by L/C Issuer for
its own
account and the balance of each L/C Fee shall be promptly distributed by
Agent
Bank to Lenders in proportion to their respective Syndication Interests in
the
Revolving Credit Facility. Fronting, amendment, transfer, negotiation and
other
fees shall also be payable by Borrower for the account of L/C Issuer, as
determined in accordance with L/C Issuer's then current fee policy. All L/C
Fees
paid by Borrower are nonrefundable and shall be deemed fully earned upon
issuance of the applicable Letter of Credit.
Section
2.14. Late
Charges and Default Rate.
a. If
any
payment due under the Notes is not paid within three (3) Banking Business Days
after receipt by Borrower of written notice of such nonpayment from Agent Bank,
Borrower promise to pay a late charge in the amount of four percent (4.0%)
of
the amount of such delinquent payment and Agent Bank need not accept any late
payment made unless it is accompanied by such four percent (4%) 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 Borrower 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 Notes shall commence accruing interest at a rate equal to four percent
(4.0%) over the Applicable Rate otherwise applicable to such Revolving Credit
Note (the "Default Rate") until all Events of Default which may exist have
been
cured, at which time the interest rate shall revert to the Applicable Rate
otherwise accruing pursuant to the terms of such Notes.
c. In
the
event of the occurrence of an Event of Default, Xxxxxxxx agrees to pay all
reasonable costs of collection, including the reasonable attorneys' fees
incurred by Agent Bank, 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
Event of Default. In the event legal action is commenced for the collection
of
any sums owing hereunder or under the terms of the Notes, the Borrower agrees
that any judgment issued as a consequence of such action against Borrower shall
bear interest at a rate equal to the Default Rate until fully paid.
Section
2.15. Net
Payments.
All
payments under this Credit Agreement, the Notes and/or the L/C Reimbursement
Obligation shall be made without set-off, counterclaim, recoupment or defense
of
any kind 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
50
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
any Governmental Authority, 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 this Credit Agreement and the Notes.
A
certificate as to any additional amounts payable to the Lenders under this
Section 2.15 submitted to the Borrower 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 Borrower under this Section
2.15
with respect to past payments shall be due within thirty (30) days following
receipt by the Borrower of such certificate from the Lenders; any such amounts
payable with respect to future payments shall be due within thirty (30) days
after demand with such future payments. With respect to each deduction or
withholding for or on account of any Taxes, the Borrower 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.
Section
2.16. Completion
Guaranty Agreement.
As
additional security for the due and punctual completion and payment for the
costs of completing the Construction Projects on or before the Construction
Completion Deadline, CCI shall execute the Completion Guaranty, a copy of which
is marked "Exhibit O", affixed hereto and by this reference incorporated
herein and made a part hereof.
ARTICLE
III
REQUIREMENTS
FOR THE OCCURRENCE OF THE
CLOSING
DATE AND ALL BORROWINGS AND
CONSTRUCTION
DISBURSEMENTS
A. Closing
Conditions.
The
obligation of each of the Lenders to fund any Borrowing under the Bank
Facilities is subject to the following conditions precedent, each of which
shall
be satisfied on or before November 30, 2005 (unless all of the Lenders, in
their
sole and absolute discretion, shall agree otherwise). The occurrence of the
Closing Date is subject to and contingent upon Agent Bank having received,
in
each case in form and substance reasonably satisfactory to Agent Bank, or in
the
case of an occurrence, action or event, the occurrence of, each of the
following:
Section
3.01. Credit
Agreement.
Executed counterparts of this Credit Agreement in sufficient duplicate originals
for Borrower and each of the Banks.
51
Section
3.02. The
Notes and Completion Guaranty.
a. Each
of
the C/T Note and the Revolving Credit Note duly executed by Xxxxxxxx, payable
to
the order of Agent Bank, on behalf of the Lenders; and
b. The
Completion Guaranty duly executed by CCI.
Section
3.03. Security
Documentation.
The
Security Documentation duly executed by Xxxxxxxx or other party thereto, as
applicable, consisting of the following:
a. Deed
of
Trust;
b. Financing
Statements; and
c. Assignment
of Entitlements, Contracts, Rents and Revenues.
Section
3.04. Other
Loan Documents.
The
following Loan Documents duly executed by Xxxxxxxx consisting of the
following:
a. Environmental
Certificate.
Section
3.05. Articles
of Organization, Operating Agreement, Resolutions, Certificates of Good Standing
and Closing Certificate.
On or
before the Closing Date, Agent Bank shall have received from the Borrower:
(i) a
Certificate of Good Standing issued by the Secretary of State of Delaware and
a
Certificate evidencing qualification to do business in the State of Colorado
issued by the Colorado Secretary of State, each dated within thirty (30) Banking
Business Days of the Closing Date, (ii) a copy of the articles of
organization and operating agreement certified to be true and correct by a
duly
Authorized Officer of Borrower, (iii) an original Consent of Managers
executed by each of the managers of Borrower authorizing Borrower to enter
into
all documents and agreements to be executed by it pursuant to this Credit
Agreement and further authorizing and empowering each officer or manager who
will execute such documents and agreements with the authority and power to
execute such documents and agreements on behalf of Xxxxxxxx,
(iv) designation by corporate certificate ("Authorized Officer
Certificate"), substantially in the form of the Authorized Officer Certificate
marked "Exhibit I", affixed hereto and by this reference incorporated
herein and made a part hereof, of the officers or managers, as applicable,
of
Borrower who are authorized to give Notices of Borrowing, Compliance
Certificates, Construction Disbursement Requests and all other notices,
requests, reports, consents, certifications and authorizations on behalf of
Borrower, each individually an "Authorized Officer" and
52
collectively
the "Authorized Officers", and (v) an original closing certificate
("Closing Certificate"), substantially in the form of the Closing Certificate
marked "Exhibit J", affixed hereto and by this reference incorporated herein
and
made a part hereof, duly executed by an Authorized Officer of
Borrower.
Section
3.06. Opinion
of Counsel.
One or
more opinions of counsel to the Borrower, dated as of the Closing Date and
addressed to the Agent Bank on behalf of itself and each of the Lenders,
together with their respective successors and assigns, substantially in the
form
of the legal opinion marked "Exhibit G", affixed hereto and by this reference
incorporated herein and made a part hereof.
Section
3.07. Title
Insurance.
As of
the Closing Date, the Title Insurance Policy (or proforma commitment for the
issuance thereof) consistent with the requirements of the Closing
Instructions.
Section
3.08. Survey.
If the
Title Insurance Company requires a survey as a condition of issuing the Title
Insurance Policy consistent with the Closing Instructions, a current boundary
and location survey for the Real Property delivered to Agent Bank no less than
ten (10) Banking Business Days prior to the Closing Date, which must (a) be
certified to Agent Bank and the Title Insurance Company, (b) show the Real
Property to be free of encroachments, overlaps, and other survey defects, (c)
show the courses and distances of the lot lines for the Real Property, (d)
show
that all existing improvements are located within said lot and building lines,
and (e) show the location of all above and below ground easements, improvements,
appurtenances, utilities, rights-of-way, water rights and ingress and egress,
by
reference to book and page numbers and/or filed map reference. On or before
the
Closing Date, all other survey requirements of Title Insurance Company for
the
issuance of the Title Insurance Policy.
Section
3.09. Payment
of Taxes.
Evidence satisfactory to Agent Bank that all past and current real and personal
property taxes and assessments which are presently due and payable applicable
to
the Collateral Properties have been paid in full.
Section
3.10. Insurance.
Copies
of declaration pages of each insurance policy, certified to be true and correct
in all respects by an Authorized Officer of Xxxxxxxx, together with original
binders evidencing Borrower as the named insured, and original certificates
of
insurance, loss payee and mortgagee endorsements naming Agent Bank as mortgagee,
loss payee and additional insured as required by the insurance provisions set
forth in Section 5.09 of this Credit Agreement.
53
Section
3.11. Payment
of Fees and Existing Bank Debt.
a. Payment
by Borrower to Agent Bank of the fees to the extent due and payable on the
Closing Date as provided in Section 2.13(a) hereinabove.
b. Payment
in full of the Existing Bank Debt and the full and complete release and
reconveyance of the Existing Bank Debt Security Documents.
Section
3.12. Reimbursement
for Expenses and Fees.
Reimbursement by Borrower for all reasonable fees and out-of-pocket expenses
incurred by Agent Bank in connection with the Bank Facilities, including, but
not limited to, escrow charges, title insurance premiums, recording fees,
reasonable attorney's fees of Xxxxxxxxx & Xxxxxx, LLC and insurance
consultant fees, and all other like fees and expenses remaining unpaid as of
the
Closing Date to the extent then due and payable on the Closing Date, provided
that the amount then invoiced shall not thereafter preclude Borrower's
obligation to pay such costs and expenses relating to the closing of the Bank
Facilities following the Closing Date or to reimburse Agent Bank for the payment
thereof.
Section
3.13. Schedules.
a. The
Schedule of Spaceleases (Schedule 4.15) and Equipment Leases and Contracts
(Schedule 4.16) in each instance setting forth the name of the other party
thereto, a brief description of each spacelease, equipment lease and contract
and the commencement and ending date thereof.
b. A
Schedule of Significant Litigation (Schedule 3.13(b)) involving Borrower,
in each instance setting forth the names of the other parties thereto, a brief
description of such litigation, whether or not such litigation is covered by
insurance and, if so, whether the defense thereof and liability therefor has
been accepted by the applicable insurance company indicating whether such
acceptance of such defenses with or without a reservation of rights, the
commencement date of such litigation and the amount sought to be recovered
by
the adverse parties thereto or the amount which is otherwise in
controversy.
Section
3.14. Environmental
Reports.
a. Each
of
the Environmental Reports previously received by Agent Bank shall be deemed
fully applicable to and relied upon by each of the Lenders in connection with
the establishment of the Bank Facilities. Borrower is in the process of
complying with the recommended actions set forth in the Environmental
Reports.
54
b. Borrower
hereby confirms the representations contained in Sections 2.1 and 2.2 of
the Environmental Certificate are true and correct in all respects.
Section
3.15. No
Injunction or Other Litigation.
No law
or regulation shall prohibit, and no order, judgment or decree of any
Governmental Authority shall, and no litigation shall be pending or threatened
which in the reasonable judgment of the Agent Bank would or would reasonably
be
expected to, enjoin, prohibit, limit or restrain the execution and delivery
of
this Credit Agreement or the making of any advance under the Bank
Facilities.
Section
3.16. Additional
Documents and Statements.
As of
the Closing Date such additional documents, affidavits, certificates and
opinions as Requisite Lenders may reasonably require to insure compliance with
this Credit Agreement.
Section
3.17. Subordinations.
Agent
Bank shall have received:
a. The
duly
executed Management Subordination Agreement, together with a true and correct
copy of the Management Agreement;
b. A
true
and correct copy of the fully executed CCI Subordinated Note and a fully
executed Lien and Payment Subordination Agreement prepared with reference to
the
CCI Subordinated Note and documents securing repayment thereof, in a form and
content acceptable to the Agent Bank; and
c. A
true
and correct copy of the fully executed CCVLLC Subordinated Note and a fully
executed Payment Subordination Agreement prepared with reference to the CCVLLC
Subordinated Note in a form and content acceptable to the Agent
Bank.
Section
3.18. Notice
of Borrowing.
With
respect to any Borrowing (other than in connection with a Construction
Disbursement), the Agent Bank shall have received in accordance with
Section 2.07 on or before such Funding Date an original and duly executed
Notice of Borrowing or facsimile copy thereof, to be promptly followed by an
original. Borrowings requested to be made under the C/T Loan shall be made
by
Construction Disbursement Request in accordance with the terms and procedures
set forth in Section 2.04 and Article IX.
Section
3.19. Certain
Statements.
On the
Closing Date and as of each Funding Date the following statements shall be
true
and correct:
55
a. The
representations and warranties with respect to the Borrower contained in Article
IV hereof (other than representations and warranties which expressly speak
only
as of a different date which shall be true and correct as of such date) are
true
and correct in all material respects as though made on and as of that 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 this Credit Agreement
or
by any other Loan Document, or which is otherwise consented to by Requisite
Lenders;
b. The
representations and certifications contained in the Environmental Certificate
are true and correct in all material respects (other than representations and
warranties which expressly speak only as of a different date which shall be
true
and correct as of such date);
c. Since
the
date of the most recent financial statements referred to in Section 5.08(b),
no
Material Adverse Change shall have occurred; and
d. No
event
has occurred or as a result of any Borrowings or issuance of a Letter of Credit
contemplated hereby would occur and is continuing, or would result from the
making thereof, which constitutes a Default or Event of Default
hereunder.
Section
3.20. Comfort
Letter.
Borrower shall provide Lenders with a "comfort letter" issued by the Colorado
Limited Gaming Control Commission, addressed to Agent Bank on behalf of the
Lenders in a form and content acceptable to Lenders, providing assurances that
the Gaming Authorities are unaware of any significant impediments to the
issuance of the Gaming Permits for the operation of the Casino
Facility.
B. Conditions
Precedent to Initial Construction Disbursement.
In
addition to the requirements set forth in Sections 2.04 and Article IX, the
obligation of each Lender and Agent Bank to advance the Initial Construction
Disbursement is subject to Agent Bank having received, in each case in form
and
substance reasonably satisfactory to Agent Bank, Requisite Lenders and Lenders'
Consultant, or in the case of an occurrence, action or event, the occurrence
of,
each of the following:
Section
3.21. Receipt
of Proceeds of Subordinated Debt.
Borrower shall have received Net Proceeds from Subordinated Debt in an aggregate
amount of no less than Four Million Three Hundred Twenty Thousand Dollars
($4,320,000.00).
Section
3.22. Construction
Cost Analysis and Required Borrower Construction Expenditures.
Borrower shall have demonstrated to the satisfaction of Agent Bank and Lenders'
Consultant, that:
56
a. The
total
construction costs for construction and completion of the Construction Projects
are Thirty-Nine Million Five Hundred Thousand Dollars ($39,500,000.00),
inclusive of capitalized interest;
b. That
each
of the General Contractor Agreements is a cost of work plus a fee with a
negotiated guaranteed maximum price contract, the sum of which is not in excess
of the General Contractor Budgets; and
c. That
Borrower has expended Borrower Construction Expenditures in an aggregate amount
no less than Four Million Five Hundred Thousand Dollars ($4,500,000.00),
including, without limitation, the proceeds of the CCI Subordinated Debt;
and
d. That
the
Construction Completion Costs do not exceed the amount available for
Construction Disbursements under the C/T Loan.
Section
3.23. Construction
Schedule, Plans and Specifications and Construction Budgets.
The
Construction Schedule, the Plans and Specifications, General Contractor Budgets
and the Borrower Construction Budget, each approved by Lenders' Consultant
and
Agent Bank as substantially final and complete and acceptable for the Initial
Construction Disbursement.
Section
3.24. Construction
Agreements.
a. The
Casino General Contractor's Agreement duly executed by the Casino General
Contractor and Borrower.
b. The
Garage General Contractor's Agreement duly executed by the Garage General
Contractor and Borrower.
Section
3.25. Architect's
Contract.
The
Architect's Contract duly executed by Xxxxxxxx and the Architect.
Section
3.26. Major
Subcontractor's Construction Contracts.
A copy
of all Major Subcontractors' construction contracts then executed by and between
Borrower and the Major Subcontractors or by and between a General Contractor
and
the Major Subcontractors.
Section
3.27. Evidence
of Availability of Utilities for Construction Projects.
Evidence of the availability of water, sewer, electric, gas and telephone
service to the Construction Projects adequate for the use and occupation of
the
Construction Projects.
57
Section
3.28. Regulatory
Approvals, Permits, Consents, Etc.
True
and correct copies of all permits, approvals, authorizations and consents by
all
Governmental Authorities permitting the construction of the Construction
Projects in accordance with the Plans and Specifications or evidence that same
can be obtained, together with all supporting documents and materials reasonably
requested by Agent Bank.
Section
3.29. Assignment
of Architect's Contract.
The
Assignment of Architect's Contract duly executed by Xxxxxxxx and Architect
and
the Architect's Consent duly executed by Architect.
Section
3.30. Assignment
of Casino General Contractor's Agreement.
The
Assignment of Casino Contractor's Agreement duly executed by Xxxxxxxx and Casino
General Contractor's Consent duly executed by Casino General
Contractor.
Section
3.31. Assignment
of Garage General Contractor's Agreement.
The
Assignment of Garage Contractor's Agreement duly executed by Xxxxxxxx and Garage
General Contractor's Consent duly executed by Garage General
Contractor.
Section
3.32. Major
Subcontractor Assignments.
A Major
Subcontractor Agreement and Major Subcontractor Consent for each Assigned Major
Subcontract which has been executed as of the Initial Construction Disbursement
Date.
Section
3.33. Soil
Test Report.
A soil
test report reasonably acceptable to Agent Bank, indicating the suitability
of
the Real Property for the construction of the Construction Projects
thereon.
Section
3.34. Notice
by Disburser.
Borrower shall have provided Agent Bank with all information needed by Agent
Bank for the preparation, recordation and mailing of a Notice of Disburser
relating to the Projects, as required by Colorado Revised Statutes,
Section 00-00-000.
ARTICLE
IV
REPRESENTATIONS
AND WARRANTIES
To
induce
Xxxxx to enter into this Credit Agreement, Xxxxxxxx makes the following
representations and warranties:
Section
4.01. Organization;
Power and Authorization.
Borrower is a limited liability company duly organized and validly existing
under the laws of the State of Delaware and is qualified to do business in
the
State of Colorado. Borrower (i) has all requisite limited liability company
power, authority and legal right to execute and
58
deliver
each document, agreement or certificate to which it is a party or by which
it is
bound in connection with the Bank Facilities, to consummate the transactions
and
perform its obligations hereunder and thereunder, and, to own its properties
and
assets and, to own its properties and assets and to carry on and conduct
its
business as presently proposed to be conducted, and (ii) has taken all necessary
action to authorize the execution, delivery and performance of this Credit
Agreement and the other Loan Documents to which it is a party or by which
it is
bound and to consummate the transactions contemplated hereunder and
thereunder.
Section
4.02. No
Conflict With, Violation of or Default Under Laws or Other
Agreements.
Neither
the execution and delivery of this Credit Agreement, the C/T Note, the Revolving
Credit Note or any other Loan Document, or any other agreement, certificate
or
instrument to which Borrower is a party or by which it is bound in connection
with the Bank Facilities, nor the consummation of the transactions contemplated
hereunder or thereunder, nor the compliance with or performance of the terms
and
conditions herein or therein, is prevented by, limited by, conflicts in any
material respect with, or will result in a material breach or violation of,
or a
material default (with due notice or lapse of time or both) under, or the
creation or imposition of any lien, charge, or encumbrance of any nature
whatsoever upon any of their respective property or assets by virtue of, the
terms, conditions or provisions of (a) any indenture, evidence of indebtedness,
loan or financing agreement, or other agreement or instrument of whatever nature
to which Borrower is bound, or (b) any provision of any existing law, rule,
regulation, order, writ, injunction or decree of any court or Governmental
Authority to which Borrower is subject.
Section
4.03. Litigation.
Except
as disclosed on the Schedule of Significant Litigation delivered in connection
with Section 3.13(b), to the best knowledge of Borrower, there is no
action, suit, proceeding, inquiry, hearing or investigation pending or
threatened, in any court of law or in equity, or before any Governmental
Authority, which reasonably would be expected to (a) result in any Material
Adverse Change in the construction and development of the Construction Projects
or in its business, financial condition, properties or operations, (b)
materially adversely affect the Borrower's ability to perform its obligations
under the Credit Agreement and the other Loan Documents, or (c) materially
adversely affect the validity or enforceability of this Credit Agreement and
the
other Loan Documents. To the best knowledge of Borrower, Borrower is not in
violation of or default with respect to any order, writ, injunction, decree
or
demand of any Governmental Authority.
Section
4.04. Agreements
Legal, Binding, Valid and Enforceable.
This
Credit Agreement, the C/T Note, the Revolving Credit Note, the Security
Documentation and all other Loan Documents, when executed and delivered by
Borrower in connection with the Bank Facilities will constitute legal, valid
and
binding obligations of Borrower, enforceable against Borrower in accordance
with
their respective terms, except as may
59
be
limited by bankruptcy, insolvency, reorganization, moratorium and other laws
of
general application relating to or affecting the enforcement of creditors'
rights and the exercise of judicial discretion in accordance with general
principles of equity (regardless of whether enforcement is considered in
a
proceeding in equity or at law).
Section
4.05. Information
and Financial Data Accurate; Financial Statements; No Adverse
Event.
All
information and financial and other data previously furnished in writing by
Borrower in connection with the Bank Facilities was true, correct and complete
in all material respects as of the date furnished (unless subsequently corrected
prior to the date hereof), and there has been no Material Adverse Change with
respect thereto to the date of this Credit Agreement since the dates thereof.
No
information has been omitted which would make the information previously
furnished in such financial statements to Banks misleading or incorrect in
any
material respect to the date of this Credit Agreement. Any and all financial
statements heretofore furnished to Banks by Xxxxxxxx: (a) present fairly in
all
material respects the financial position of Borrower as of their respective
dates and the results of operations and changes in financial position for the
periods to which they apply, and (b) have been prepared in conformity with
GAAP
applied on a consistent basis throughout the periods involved. Since the date
of
the financial statements referred to in this Section 4.05, there has been no
Material Adverse Change in the financial condition, assets, liabilities,
business or operations of Borrower.
Section
4.06. Governmental
Approvals.
All
consents, approvals, orders or authorizations of, or registrations,
declarations, notices or filings with any Governmental Authority which are
required in connection with the valid execution and delivery of this Credit
Agreement and the other Loan Documents by Xxxxxxxx and the performance of any
of
the transactions required or contemplated hereunder, or thereunder, by Xxxxxxxx,
have been obtained or accomplished and are in full force and effect, or to
the
best knowledge of Borrower, can be obtained or accomplished by Borrower. On
and
after the Opening Date, all material consents, approvals, orders or
authorizations of, or registrations, declarations, notices or filings with
any
Governmental Authority which are required by Borrower in connection with the
use
and operation of the Casino Facility shall have been obtained or accomplished
and shall be in full force and effect.
Section
4.07. Payment
of Taxes.
Borrower has duly filed or caused to be filed all federal, state and local
tax
reports and returns which are required to be filed by it and has paid or made
provisions for the payment of, all material taxes, assessments, fees and other
governmental charges which have or may have become due pursuant to said returns
or otherwise pursuant to any assessment received by Borrower except such taxes,
assessments, fees or other governmental charges, if any, as are being contested
in good faith by Borrower by appropriate proceedings and for
60
Section
4.08. Title
to Properties.
Borrower shall have good and marketable title to the Collateral Properties
as of
the Closing Date and at all times during the term of the Bank Facilities.
Borrower has good and marketable title to: (a) all of its properties and
assets reflected in the most recent financial statements referred to in Section
4.05 hereof as owned by it (except those properties and assets disposed of
since
the date of said financial statements in the ordinary course of business or
those properties and assets which are no longer used or useful in the conduct
of
its business), including, but not limited to, Borrower's interest in patents,
trademarks, tradenames, servicemarks, and licenses relating to or pertaining
to
the Collateral Properties or the Casino Facility, and (b) all properties
and assets acquired by it subsequent to the date of the most recent financial
statements referred to in Section 4.05 hereof. All such properties and
assets are not subject to any liens, encumbrances or restrictions except
Permitted Encumbrances. All roads, easements and rights of way necessary for
the
full utilization of the Collateral Properties have been completed and/or
obtained or will be completed and/or obtained on or before the Opening
Date.
Section
4.09. No
Untrue Statements. All
statements, representations and warranties made by Borrower in this Credit
Agreement, any other Loan Document and any other agreement, document,
certificate or instrument previously furnished or to be furnished by Borrower
to
Banks pursuant to the provisions of this Credit Agreement, at the time they
were
made and on and as of the Closing Date: (a) are and shall be true, correct
and
complete in all material respects, (b) do not and shall not contain any untrue
statement of a material fact, and (c) do not and shall not omit to state a
material fact, the absence of which makes the information contained herein
or
therein materially misleading or incomplete in light of the circumstances under
which they were made. Borrower understands that all such statements,
representations and warranties shall be deemed to have been relied upon by
Xxxxx
as a material inducement to establish the Bank Facilities.
Section
4.10. Brokerage
Commissions.
Except
as previously disclosed to Agent Bank in writing, no person is entitled to
receive any brokerage commission, finder's fee or similar fee or payment in
connection with the extensions of credit contemplated by this Credit Agreement.
No brokerage or other fee, commission or compensation is to be paid by Xxxxx
with respect to the extensions of credit contemplated hereby and Xxxxxxxx agrees
to indemnify Banks against any such claims for brokerage fees or commissions
and
to pay all expenses including, without limitation, reasonable attorney's fees
incurred by Xxxxx in connection with the defense of any action or proceeding
brought to collect any such brokerage fees or commissions.
61
Section
4.11. No
Defaults.
Borrower is not in violation of any applicable law and/or regulations, the
violation of which will materially and adversely affect the business, financial
condition or operations of the Casino Facility. Borrower is not in violation
or
default (nor is there any waiver in effect which, if not in effect, would result
in a violation or default) in any material and adverse respect under any
indenture, evidence of indebtedness, loan or financing agreement or other
agreement or instrument of whatever nature to which they are a party or by
which
they are bound (except for any defaults previously brought to Banks' attention
in writing, for which Borrower has received a waiver from Requisite Lenders),
a
default under which would reasonably be expected to result in a Material Adverse
Change.
Section
4.12. Availability
of Utility Services.
All
utility services and facilities necessary for the Construction Projects
including, without limitation, electrical, water, gas and sewage services and
facilities are available at the boundaries of the Real Property.
Section
4.13. Policies
of Insurance.
As of
the Closing Date, each of the copies of the declaration pages, original binders
and certificates of insurance evidencing the Policies of Insurance relating
to
the Construction Projects delivered to Agent Bank by Xxxxxxxx (i) is a true,
correct and complete copy of the respective original thereof as in effect on
the
date hereof, and no amendments or modifications of any of said documents or
instruments not included in such copies have been made, and (ii) has not been
terminated and is in full force and effect. To the best knowledge of Borrower,
Borrower is not in default in the observance or performance of its obligations
under said documents and instruments, and Borrower has done all things required
to be done as of the Closing Date to keep unimpaired its rights
thereunder.
Section
4.14. Management
Agreement and Subordinated Notes.
Each of
the copies of the Management Agreement, CCI Subordinated Note and CCVLLC
Subordinated Note which have been delivered to Agent Bank in accordance with
Section 3.17 are true and correct copies of the originals thereof. Each of
the
Management Agreement, CCI Subordinated Note and CCVLLC Subordinated Note is
in
full force and effect and has not been amended or otherwise modified except
as
set forth by documents delivered to Agent Bank in accordance with Section 3.17
or except as permitted under Section 5.22 with respect to the Management
Agreement.
Section
4.15. Spaceleases.
A
schedule of all executed Spaceleases pertaining to the Casino Facility, or
any
portion thereof, in existence as of the Closing Date, is set forth on
Schedule 4.15 attached hereto.
Section
4.16. Equipment
Leases and Contracts.
Schedules of all executed material Equipment Leases and Contracts pertaining
to
the Casino Facility or
62
any
portion thereof, in existence as of the Closing Date, are set forth on
Schedule 4.16 attached hereto.
Section
4.17. Gaming
Permits. On
and after the Opening Date, the Borrower shall hold all Gaming Permits material
to or required for the conduct of its gaming businesses and the conduct of
games
of chance at the Casino Facility and such Gaming Permits shall not then be
suspended, enjoined or prohibited (for any length of time) by any Gaming
Authority or any other Governmental Authority.
Section
4.18. Environmental
Certificate.
The
representations and certifications contained in the Environmental Certificate
are true and correct in all material respects (other than representations and
warranties which expressly speak only as of a different date which shall be
true
and correct as of such date).
Section
4.19. Investment
Company Act.
Borrower is neither an "investment company" nor a company "controlled" by an
"investment company," within the meaning of the Investment Company Act of 1940,
as amended.
Section
4.20. Public
Utility Holding Company Act.
Borrower is neither a "holding company," nor a "subsidiary company" of a
"holding company," nor an "affiliate" of a "holding company" nor of a
"subsidiary company" of a "holding company," within the meaning of the Public
Utility Holding Company Act of 1935, as amended.
Section
4.21. Labor
Relations.
There
is no strike or work stoppage in existence, or to the best knowledge of Borrower
threatened, involving Borrower or the Construction Projects that reasonably
would be expected to result in a Material Adverse Change.
Section
4.22. Trademarks,
Patents, Licenses, Franchises, Formulas and Copyrights.
Borrower owns all the patents, trademarks, permits, service marks, trade names,
copyrights, licenses, franchises and formulas, or has a valid license or
sublicense of rights with respect to the foregoing, and has obtained assignments
of all leases and other rights of whatever nature, necessary for the present
conduct of its respective businesses, without any known conflict with the rights
of others which, or the failure to obtain which, as the case may be, could
reasonably be expected to result in a Material Adverse Change on the business,
operations, property, assets or condition (financial or otherwise) of
Borrower.
Section
4.23. Contingent
Liabilities.
As of
the Closing Date, Borrower has incurred no material Contingent Liabilities
(any
Contingent Liability in excess of One Million Dollars ($1,000,000.00) being
deemed material) other than those described on Schedule 4.23.
63
Section
4.24. Subsidiaries.
As of
the Closing Date, Borrower does not have any Subsidiaries.
Section
4.25. The
Construction Projects.
On and
after the Initial Construction Disbursement Date, the Construction Projects
will
be carried out and undertaken by in compliance in all material respects with
all
applicable zoning, environmental protection, use and building codes, laws,
rules, regulations and ordinances, including, without limitation, the Americans
with Disabilities Act. The General Contractor Budgets and the Borrower
Construction Budget shall set forth all Construction Completion Costs as of
the
Initial Construction Disbursement Date.
Section
4.26. General
Contractor Agreements, Architect Contract and Interior Designer's
Contract.
The
copies of each of the General Contractor Agreements and the Architect's Contract
relating to the Construction Projects to be delivered to Agent Bank on or before
the Initial Construction Disbursement Date shall be a true, correct and complete
copy of the respective original thereof as in effect on the date thereof, and
no
amendments or modifications of any of said documents or instruments not included
in such copies shall have been made. Each of the General Contractor Agreements
and the Architect's Contract shall not have been terminated and shall be in
full
force and effect. Borrower shall not be in default in the observance or
performance of its obligations under said documents and instruments, except
and
to the extent such default reasonably would not be expected to result in a
Material Adverse Change.
ARTICLE
V
GENERAL
COVENANTS OF BORROWER
To
induce
the Banks to enter into this Credit Agreement, Borrower covenants to Banks
as
follows:
Section
5.01. FF&E.
Borrower shall furnish, fixture and equip the Casino Facility with FF&E it
reasonably deems appropriate for the operation of the Casino Facility. All
FF&E that is purchased and installed in the Casino Facility shall be
purchased free and clear of any liens, encumbrances or claims, other than
Permitted Encumbrances.
Section
5.02. Permits;
Licenses and Legal Requirements.
Borrower shall comply in all material respects with and keep in full force
and
effect, as and when required, all Gaming Permits and all material permits,
licenses and approvals obtained from any Governmental Authorities which are
required for the operation and use of the Casino Facility. Borrower shall comply
in all material respects with all applicable material existing and future laws,
rules, regulations, orders, ordinances and
64
requirements
of all Governmental Authorities, and with all recorded restrictions affecting
the Collateral Properties.
Section
5.03. Protection
Against Lien Claims.
Borrower shall promptly pay and discharge or cause to be paid and discharged
all
claims and liens for labor done and materials and services supplied and
furnished in connection with the Casino Construction Projects in accordance
with
this Section 5.03, except such claims and liens, if any, as are being contested
in good faith by Borrower by appropriate proceedings and for which Borrower
has
maintained adequate reserves for the payment thereof in accordance with GAAP.
If
any mechanic's lien or materialman's lien shall be recorded, filed or suffered
to exist against the Collateral Properties or any interest therein by reason
of
work, labor, services or materials supplied, furnished or claimed to have been
supplied and furnished in connection with the Construction Projects or the
Casino Facility, upon Xxxxxxxx's receipt of written notice from Agent Bank
demanding the release and discharge of such lien, said lien or claim shall
be
paid, released and discharged of record within ninety (90) days following its
receipt of such notice.
Section
5.04. Restrictions
on Payment or Prepayment of Subordinated Debt and Management
Fees.
a. Until
the
occurrence of Bank Facilities Termination, Borrower shall not make any payments
of principal or interest under the CCI Subordinated Note;
b. Until
the
occurrence of Bank Facilities Termination, Borrower shall not make any payment
of principal or interest under the CCVLLC Subordinated Note, except as may
be
expressly permitted under the terms of the Payment Subordination Agreement
(CCVLLC) to be executed and delivered under Section 3.17(c);
c. Until
the
occurrence of Bank Facilities Termination, Borrower shall not make any payments
under the Management Agreement, except as may be expressly permitted under
the
terms of the Management Subordination Agreement to be executed and delivered
under Section 3.17(a); and
d. Borrower
shall not, except with the prior written consent of the Requisite Lenders,
purchase, redeem, retire or otherwise acquire for value, or set apart any money
for a sinking, defeasance or other analogous fund for, the purchase, redemption,
retirement or other acquisition of, or make any voluntary payment or prepayment
of the principal of or interest on, or any other amount owing in respect of,
the
Subordinated Notes or required pursuant to the terms of any other Subordinated
Debt.
65
Section
5.05. No
Change in Character of Business or Location of Chief Executive
Office.
At all
times throughout the term of the Bank Facilities (a) the chief executive
office of Borrower shall be located at 0000X Xxxx Xxxxx Xxxxx, Xxxxxxxx Xxxxxxx,
Xxxxxxxx 00000, provided, however, Xxxxxxxx shall be entitled to move its chief
executive office to another location within the State of Colorado upon no less
than thirty (30) days prior written notice to Agent Bank, (b) the Casino
Facility shall be operated by Borrower, and (c) Borrower shall not effect a
material change in the nature and character of the business at the Casino
Facility as presently contemplated and disclosed to Banks.
Section
5.06. Preservation
and Maintenance of Properties and Assets; Acquisition of Additional
Property.
a. At
all
times following the Completion Date with respect to the Casino Facility, (i)
the
Borrower shall operate, maintain and preserve in all material respects all
rights, privileges, franchises, licenses, Gaming Permits and other properties
and assets necessary to conduct its businesses and the Casino Facility, in
accordance with all applicable governmental laws, ordinances, approvals, rules
and regulations and requirements, including, but not limited to, zoning,
sanitary, pollution, building, environmental and safety laws and ordinances,
rules and regulations promulgated thereunder, and (ii) Borrower shall not
consolidate with, remove, demolish, materially alter, discontinue the use of,
sell, transfer, assign, hypothecate or otherwise dispose of to any Person,
any
part of its properties and assets necessary for the continuance of its business,
as presently conducted and as presently contemplated, other than in the normal
course of business, alterations or modifications as Borrower reasonably expects
to increase the value of the Collateral, or as otherwise permitted pursuant
to
this Credit Agreement.
b. Furthermore,
in the event Borrower, or any Affiliate and/or Related Entity of the Borrower,
shall acquire any other real property or rights to the use of real property
which is: (i) adjacent to any of the Collateral Properties and used in a
material manner in connection with the use and/or operation at the Casino
Facility or (ii) if not so adjacent, necessary and required for the use and
operation of such Casino Facility, Borrower shall concurrently with the
acquisition of such real property or the rights to the use of such real
property, execute or cause the execution of such documents as may be necessary
to add such real property or rights to the use of real property as Collateral
under the Bank Facilities.
Section
5.07. Repair
of Properties and Assets.
At all
times throughout the term of the Bank Facilities, Borrower shall, at its own
cost and expense, (a) maintain, preserve and keep in a manner consistent with
gaming casino operating practices applicable to casino operations operating
in
the Xxxxxx County area, the Collateral Properties and all FF&E owned or
leased by Borrower in good and substantial
66
repair,
working order and condition, ordinary wear and tear excepted, (b) from time
to
time, make or cause to be made, all reasonably necessary and proper repairs,
replacements, renewals, improvements and betterments thereto, and (c) from
time
to time, make such substitutions, additions, modifications and improvements
as
may be necessary and as shall not impair the structural integrity, operating
efficiency and economic value of said assets and properties, except that
the
failure to maintain, preserve or protect a particular item that is not of
significant value or utility shall not constitute a violation of this
Section 5.07. All alterations, replacements, renewals, or additions made
pursuant to this Section 5.07 shall become and constitute a part of said
assets
and property and subject, inter
alia,
to the
provisions of Section 5.01 and subject to the lien of the Loan
Documents.
Section
5.08. Financial
Statements; Reports; Certificates and Books and Records.
Commencing as of the Opening Date and continuing until Bank
Facilities Termination,
Borrower shall, unless the Agent Bank (with the written approval of the
Requisite Lenders) otherwise consents, at Borrower's sole expense, deliver
to
the Agent Bank and each of the Lenders a full and complete copy of each of
the
following and shall comply with each of the following financial
requirements:
a. As
soon
as practicable, and in any event within thirty (30) days after the end of the
first two (2) calendar months during each Fiscal Quarter and within forty-five
(45) days after the end of each Fiscal Quarter (including the last Fiscal
Quarter in any Fiscal Year), the balance sheet, income statement, statement
of
cash flows, statement of retained earnings and operating statement for the
calendar month or Fiscal Quarter under review and reflecting year-to-date
performance of the Borrower and a comparison of the financial performance of
the
Borrower to the prior Fiscal Year's operations and projected results from
operations at the Casino Facility (in each case reconciled with year end audited
statements and compared to budget and prior year period) of the Borrower all
in
reasonable detail. Such financial statements shall be certified by an Authorized
Officer of the Borrower as fairly presenting in all material respects the
financial condition, results of operations and cash flows of the Borrower in
accordance with GAAP (other than footnote disclosures) as at such date and
for
such periods, subject only to normal year-end accruals and audit
adjustments;
b. As
soon
as practicable, and in any event within one hundred twenty (120) days after
the
end of each Fiscal Year, the balance sheet, income statement, statement of
retained earnings and cash flows (reconciled with year end audited statements)
of the Borrower as at the end of such Fiscal year, all in reasonable detail.
Such financial statements shall be prepared in accordance with GAAP and shall
be
accompanied by a report of independent public accountants of recognized standing
selected by Xxxxxxxx and reasonably satisfactory to the Agent Bank (it being
understood that any "Big 4" accounting firm shall be automatically deemed
satisfactory to the Agent Bank), which report shall be prepared in accordance
with generally
67
accepted
auditing standards as of such date, and shall not be subject to any
qualifications or exceptions as to the scope of the audit nor to any other
qualification or exception determined by the Requisite Lenders in their good
faith business judgment to be adverse to the interests of the Banks. Such
financial statements shall be certified by an Authorized Officer of the Borrower
in the same manner as required with respect to financial statements delivered
pursuant to Section 5.08(a);
c. As
soon
as practicable and in any event within forty-five (45) days after the end of
each Fiscal Quarter, a Compliance Certificate signed by an Authorized
Officer;
d. As
soon
as practicable, and in any event no later than sixty (60) days following the
end
of each Fiscal Year, a five (5) year budget (including a Capital Expenditure
budget) and projection by Fiscal Quarter for that Fiscal Year and by Fiscal
Year
for the lesser of the next four (4) succeeding Fiscal Years or until the
Maturity Date, including
for the
first such Fiscal Year, projected balance sheets, statements of operations
and
statements of cash flow and, for the second (2nd) and third (3rd) such Fiscal
Years, projected condensed balance sheets and statements of operations and
cash
flows, of the Borrower and also including a summary of assumptions used in
determining the budget (i.e. revenue growth rate, EBITDA, EBITDA margin,
EBITDAM, EBITDAM margin, maintenance capital expenditures, project capital
expenditures made and distributions), all in reasonable detail;
e. Until
Bank
Facilities
Termination, Borrower shall keep and maintain complete and accurate books and
records in accordance with GAAP, consistently applied. Borrower shall permit
Banks and any authorized representatives of Xxxxx to have reasonable access
to
and to inspect, examine and make copies of the books and records, any and all
accounts, data and other documents of Borrower at all reasonable times upon
the
giving of reasonable notice of such intent. In addition: (i) in the event
of the occurrence of any Default or Event of Default, or (ii) in the event
any Material Adverse Change occurs, Borrower shall promptly, and in any event
within three (3) days after actual knowledge thereof, notify Agent Bank in
writing of such occurrence; and
f. Until
Bank
Facilities
Termination, Borrower shall furnish to Agent Bank, with sufficient copies for
distribution to each of the Banks, any financial information or other
information bearing on the financial status of the Borrower which is reasonably
requested by Agent Bank or Requisite Lenders.
Section
5.09. Insurance.
On and
after the Opening Date, except for the Construction Insurance Coverages set
forth in Subparagraph k hereinbelow which shall be maintained at all times
during the period in which the Construction Projects are under construction
until the Completion Date and continuing until Bank
Facilities
68
Termination,
Borrower shall obtain, or cause to be obtained, and shall maintain or cause
to
be maintained with respect to the Collateral, at its own cost and expense,
and
shall deposit the evidence of the same required hereunder with Agent Bank
on or
before the Opening Date:
a. Property
Insurance.
Borrower shall maintain a special causes of loss (All Risk ISO form or
equivalent), perils policy covering the buildings and improvements, and any
other permanent structures for one hundred percent (100%) of the replacement
cost or a blanket limit with an amount that, at minimum, is sufficient to cover
one hundred percent (100%) of values at the location with the highest values
at
risk (the sufficiency of the blanket limit will be determined at the discretion
of the Agent Bank). Borrower shall maintain a Ten Million Dollar
($10,000,000.00) limit of coverage for the perils of earthquake and Ten Million
Dollars ($10,000,000.00) for the peril of flood covering the Collateral. The
Borrower shall document that full policy limits are available for the peril
of
windstorm. Upon the request of Agent Bank, replacement cost for insurance
purposes will be established by an independent appraiser mutually selected
by
Borrower and Agent Bank. The policy will include agreed amount (waiving
co-insurance), replacement cost valuation and building ordinance endorsements
with a limit at Five Hundred Thousand Dollars ($500,000.00). The policy will
include a standard mortgagee clause (ISO form or equivalent, i.e. Xxxxxxxx's
acts will not impair mortgagee's right to recover, exclusive payment of loss
to
mortgagee and automatic notice of cancellation/non-renewal to mortgagee) and
provide that all losses in excess of Five Hundred Thousand Dollars ($500,000.00)
be adjusted with the Agent Bank. The Borrower waives any and all rights of
subrogation against Banks resulting from losses to property.
b. Personal
Property (including machinery, equipment, furniture, fixtures,
stock).
Borrower shall maintain a special causes of loss ("All Risk") perils property
coverage for all personal property owned, leased or for which Borrower is
legally liable. The coverage will include a lenders' loss payable endorsement
in
favor of Agent Bank.
The
policy providing real property and personal property coverages, as specified
in
5.09(a) and (b) hereinabove, may include a deductible of no more than
Twenty-Five Thousand Dollars
($25,000.00) for
any
single occurrence. Flood and earthquake deductibles can be no more than five
percent (5.0%) of total insurable value, if a separate deductible
applies.
c. Business
Income/Extra Expense.
Borrower shall maintain combined business interruption/extra expense coverage
for the Casino Facility with a limit not less than one hundred percent (100%)
of
the annual net profit plus continuing expenses (including debt service) for
the
Casino Facility. Such coverage shall include an extension for off premises
power
losses with a Five Hundred Thousand Dollar
69
($500,000.00)
limit of coverage and extended period of indemnity of ninety (90) days
endorsement. These coverages may have deductible of no greater than forty-eight
(48) hours, or Twenty-Five Thousand Dollars ($25,000.00), if a separate
deductible applies. This coverage will be specifically endorsed to include
Agent
Bank as Loss Payee.
Real,
Personal Property and Business Income/Rent coverages may be written on a
Blanket, Loss Limit or Specific basis; but the limit of coverage must be
sufficient to cover one hundred percent (100%) of the replacement cost values
required under this Section 5.09.
d. Boiler
and Machinery.
Borrower shall maintain a boiler and machinery policy for the Casino Facility
written on a comprehensive form with a combined direct and indirect limit of
no
less than Ten Million Dollars ($10,000,000.00). The policy shall include
extensions for agreed amount (waiving co-insurance) and replacement cost
valuation. The policy may contain deductibles of no greater than Twenty-Five
Thousand Dollars ($25,000.00) direct and forty-eight (48) hours
indirect.
e. Crime
Insurance.
Borrower shall obtain a comprehensive crime policy, including the following
coverages:
(i) employee
dishonesty -Two Million Dollars
($2,000,000.00);
(ii) money
and
securities (inside) - One Million Dollars
($1,000,000.00);
(iii) money
and
securities (outside) - One Million Dollars
($1,000,000.00);
(iv) depositor's
forgery - One Million Dollars
($1,000,000.00);
(v) computer
fraud - One Million Dollars
($1,000,000.00).
The
policy must be amended so that money is defined to include "tokens and chips"
(as defined by the Gaming Laws). The policy may contain deductibles of no
greater than Fifty Thousand Dollars
($50,000.00) for
employee dishonesty and Twenty-Five Thousand Dollars
($25,000.00) for
all
coverages listed above.
f. Commercial
General Liability (2000 ISO Form or Equivalent).
Borrower shall maintain a commercial general liability policy with a One Million
Dollar ($1,000,000.00) combined single limit for bodily injury and property
damage, including products liability, contractual liability, and all standard
policy form extensions. The policy must provide a Two Million Dollar
($2,000,000.00) general aggregate (per location, if multi-location risk) and
be
written on an "occurrence form". The policy will
70
also
include extensions for liquor legal liability and employee benefits legal
liability coverages. If the general liability policy contains a self-insured
retention, it shall be no greater than Ten Thousand Dollars ($10,000.00)
per
occurrence, with an aggregate retention of no more than Five Hundred Thousand
Dollars ($500,000.00), including expenses. The policy will also be broad
enough
to provide garage liability coverage for the business operation.
The
policy shall be endorsed to include Agent Bank as an additional insured on
behalf of the Banks. Definition of additional insured shall include all
officers, directors, employees, agents and representatives of the additional
insured. The coverage for additional insured shall apply on a primary basis
irrespective of any other insurance whether collectible or not (ISO Endorsement
Form #CG 20261185 Additional Insured - Designated Person or Organization, or
Equivalent).
g. Automobile.
Borrower shall maintain a comprehensive automobile liability insurance policy
written under coverage "symbol 1", providing a One Million Dollar
($1,000,000.00) combined single limit for bodily injury and property damage
covering all owned, non-owned and hired vehicles of the Borrower. If the policy
contains a self insured retention it shall be no greater than Ten Thousand
Dollars ($10,000.00) per occurrence with an aggregate retention of no more
than
Five Hundred Thousand Dollars ($500,000.00), including expenses. The following
additional coverages must be purchased by Xxxxxxxx:
(i) Garagekeepers
Legal Liability.
Five
Hundred Thousand Dollar ($500,000.00) limit for comprehensive and collision
coverages for physical damage to vehicles in the Borrower's care, custody and
control. The policy can be subject to a deductible of no greater than Five
Thousand Dollars ($5,000.00) for each auto and Twenty-Five Thousand Dollars
($25,000.00) for each loss.
h. Workers
Compensation and Employers Liability Insurance.
Borrower shall maintain a standard workers compensation policy covering the
state of Colorado and any other state where the company is operating, including
employers liability coverage subject to a limit of no less than One Million
Dollars ($1,000,000.00) each employee, One
Million Dollars ($1,000,000.00) each
accident, One
Million Dollars ($1,000,000.00) policy
limit. The policy shall include endorsements for voluntary compensation and
stop
gap liability. If the Borrower has elected to self-insure workers compensation
coverage in the State of Colorado (or any other state), the Agent Bank must
be
furnished with a copy of the certificate from the state(s) permitting
self-insurance and evidence of a stop loss excess workers compensation policy
with a specific retention of no greater than Two Hundred Fifty Thousand Dollars
($250,000.00) per occurrence.
71
i. If
Xxxxxxxx's general liability and automobile policies include a self-insured
retention, it is agreed and fully understood that Borrower is solely responsible
for payment of all amounts due within said self-insured retentions. Any
indemnification/hold harmless provision is extended to cover all liabilities
associated with said self-insured retentions.
j. Umbrella
Liability.
An
Umbrella Liability policy shall be purchased with a limit of not less than
Fifteen Million Dollars ($15,000,000.00) during the Construction Period and
Twenty-Five Million Dollars ($25,000,000.00) during all times on and after
the
Opening Date, providing excess coverage over all limits and coverages indicated
in paragraphs (f), (g) and (h) above. The limits can be obtained by a
combination of primary and excess umbrella policies, provided that all layers
follow form with the underlying policies indicated in (f), (g) and (h) and
are
written on an "occurrence" form. This policy shall be endorsed to include the
Agent Bank as an additional insured on behalf of the Banks, in the same manner
set forth in Section 5.09(f) hereinabove.
k. Construction
Insurance Coverages.
Borrower shall obtain, or cause to be obtained and shall maintain, or caused
to
be maintained with respect to the Construction Projects at all times during
the
period in which the Construction Projects are under construction until the
occurrence of the Completion Date, at its own cost and expense, the following
policies:
(i) Builders
Risk.
All
risk builders risk form providing property coverage during construction on
a
completed value form (representing one hundred percent (100%) of the anticipated
construction cost). The policy will include endorsements extending coverage
for
(a) delay of opening for a period that represents ninety (90) days of the
projected net income; (b) Soft Costs; (c) property in transit;
(d) offsite storage. The policy can be subject to a deductible of no
greater than Ten Thousand Dollars ($10,000.00) for property damage and ten
(10)
days for delay of opening. Agent Bank must be included as mortgagee and loss
payee.
(ii) Owners/Contractors
Protective Liability Policy ("OCP").
During
the Construction Period, OCP policies will be purchased and maintained by
Borrower, or Xxxxxxxx's General Contractors, providing separate liability
coverage for Borrower and Agent Bank. The policy limit of liability will be
no
less than Two Million Dollars ($2,000,000.00).
72
(iii) Contractors/Sub-Contractors
Insurance Requirements.
Borrower shall require that the General Contractors and each Subcontractor
party
to a Major Subcontract with an expected or stated costs in excess of Fifty
Thousand Dollars ($50,000.00) performing work at the Construction Projects
comply with the minimum insurance requirements per Schedule 5.09(k)
attached hereto and by this reference incorporated herein and made a part
hereof.
(iv) On
and
after the Opening Date, the Construction Projects shall be protected by the
insurance coverages required under Section 5.09 a through j.
l. All
policies indicated above shall be written with insurance companies licensed
and
admitted to do business in all states where the Borrower is operating and shall
be rated no lower than "A XII" in the most recent addition of A.M. Best's
and "AA" in the most recent edition of Standard & Poor's, or such other
carrier reasonably acceptable to Agent Bank. All policies discussed above shall
be endorsed to provide that in the event of a cancellation, non-renewal or
material modification, Agent Bank shall receive thirty (30) days prior written
notice thereof. The Borrower shall furnish Agent Bank with certificates of
insurance executed by an authorized agent evidencing compliance with all
insurance provisions discussed above on an annual basis. The Borrower shall
also
furnish the Declaration (Front) page of each policy required hereunder and
the
actual policy endorsements evidencing appropriate status of Agent Bank (as
mortgagee, loss payee and additional insured). Certificates of insurance
executed by an authorized agent of each carrier providing insurance evidencing
continuation of all coverages will be provided on the Closing Date and annually
on or before ten (10) days prior to the expiration of each policy. All
certificates and other notices related to the insurance program shall be
delivered to Agent Bank concurrently with the delivery of such certificates
or
notices to such carrier or to Borrower.
m. Any
other
insurance reasonably requested by Agent Bank or Requisite Lenders in such amount
and covering such risks as may be reasonably required and customary in the
hotel/casino industry in the general location of the Casino Facility. Approval
of any insurance by Agent Bank shall not be a representation of solvency of
any
insurer or the sufficiency of any coverage required under this Credit Agreement.
All requirements are considered minimum in terms of the purchase and maintenance
of insurance under this Credit Agreement.
Section
5.10. Taxes.
Throughout the term of the Bank Facilities, Borrower shall prepare and timely
file or cause to be prepared and timely filed all federal, state and local
tax
returns required to be filed by it, and Borrower shall pay and
73
discharge
prior to delinquency all taxes, assessments and other governmental charges
or
levies imposed upon it, or in respect of any of any of its properties and
assets
except such taxes, assessments and other governmental charges or levies,
if any,
as are being contested in good faith by Xxxxxxxx in the manner which is set
forth for such contests by Section 4.07 herein.
Section
5.11. Permitted
Encumbrances Only.
At all
times throughout the term of the Bank Facilities, Borrower shall not create,
incur, assume or suffer to exist any mortgage, deed of trust, pledge, lien,
security interest, encumbrance, attachment, levy, distraint, or other judicial
process and burdens of every kind and nature except the Permitted Encumbrances
on or with respect to the Collateral, except (a) with respect to matters
described in Sections 5.03 and 5.10 such items as are being contested in
the manner described therein, and (b) with respect to any other items, if any,
as are being contested in good faith by appropriate proceedings and for which
Xxxxxxxx has maintained adequate reserves for the payment thereof.
Section
5.12. Advances.
At any
time during the term of the Bank Facilities, if Borrower should fail (a) to
perform or observe, or (b) to cause to be performed or observed, any covenant
or
obligation of Borrower under this Credit Agreement or any of the other Loan
Documents, and if such failure constitutes an Event of Default then Agent Bank,
upon the giving of reasonable notice may (but shall be under no obligation
to)
take such steps as are necessary to remedy any such non-performance or
non-observance and provide for payment thereof. All amounts advanced by Agent
Bank or Lenders pursuant to this Section 5.12 shall become an additional
obligation of Borrower to Lenders secured by the Deed of Trust and other Loan
Documents, shall reduce the amount of Available Borrowings and shall become
due
and payable by Borrower on the next interest payment date, together with
interest thereon at a rate per annum equal to the Default Rate (such interest
to
be calculated from the date of such advancement to the date of payment thereof
by Borrower).
Section
5.13. Further
Assurances.
Borrower will do, execute, acknowledge and deliver, or cause to be done,
executed, acknowledged and delivered, such amendments or supplements hereto
or
to any of the Loan Documents and such further documents, instruments and
transfers as Requisite Lenders or Agent Bank may reasonably require for the
curing of any defect in the execution or acknowledgement hereof or in any of
the
Loan Documents, or in the description of the Collateral Properties or other
Collateral or for the proper evidencing of giving notice of each lien or
security interest securing repayment of the Bank
Facilities.
Further, upon the execution and delivery of the Deed of Trust and each of the
Loan Documents and thereafter, from time to time, Borrower shall cause the
Deed
of Trust and each of the Loan Documents and each amendment and supplement
thereto to be filed, registered and recorded and to be refiled, re-registered
and re-recorded in such manner and in such places as may be reasonably required
by the Requisite Lenders or Agent Bank, in order to publish notice
74
of
and
fully protect the liens of the Deed of Trust and the Loan Documents and to
protect or continue to perfect the security interests created by the Deed
of
Trust and Loan Documents in the Collateral Properties and Collateral and
to
perform or cause to be performed from time to time any other actions required
by
law and execute or cause to be executed any and all instruments of further
assurance that may be reasonably requested by the Requisite Lenders or Agent
Bank and necessary for such publication, perfection, continuation and
protection.
Section
5.14. Indemnification.
Xxxxxxxx agrees to and does hereby jointly and severally indemnify, protect,
defend and save harmless Agent Bank and each of the Banks and their respective
trustees, officers, employees, agents, attorneys and shareholders (individually
an "Indemnified Party" and collectively the "Indemnified Parties") from and
against any and all losses, damages, expenses or liabilities of any kind or
nature from any suits, claims, or demands, including reason-able counsel fees
incurred in investigating or defending such claim, suffered by any of them
and
caused by, relating to, arising out of, resulting from, or in any way connected
with this Credit Agreement, with any other Loan Document or with the
transactions contemplated herein and thereby; provided, however, Borrower shall
not be obligated to indemnify, protect, defend or save harmless an Indemnified
Party if, and to the extent, the loss, damage, expense or liability was caused
by (a) the gross negligence or intentional misconduct of such Indemnified Party,
(b) an event not caused by the Borrower that occurs after a foreclosure sale,
whether by trustee, judicial sale or otherwise, or (c) the breach of this
Credit Agreement or any other Loan Document by such Indemnified Party or the
breach of any laws, rules or regulation by such Indemnified Party (other than
those breaches of laws arising from Borrower's default). In case any action
shall be brought against any Indemnified Party based upon any of the above
and
in respect to which indemnity may be sought against Borrower, Agent Bank shall
promptly notify Borrower in writing, and Borrower shall assume the defense
thereof, including the employment of counsel selected by Borrower and reasonably
satisfactory to Indemnified Party, the payment of all costs and expenses and
the
right to negotiate and consent to settlement upon the consent of the Indemnified
Party. Upon reasonable determination made by Indemnified Party that such counsel
would have a conflict representing such Indemnified Party and Borrower, the
applicable Indemnified Party shall have the right to employ separate counsel
in
any such action and to participate in the defense thereof. Borrower shall not
be
liable for any settlement of any such action effected without its consent,
but
if settled with Xxxxxxxx's consent, or if there be a final judgment for the
claimant in any such action, Xxxxxxxx agrees to indemnify, defend and save
harmless such Indemnified Parties from and against any loss or liability by
reason of such settlement or judgment. The provisions of this Section 5.14
shall
survive the termination of this Credit Agreement and the repayment of the
Bank
Facilities
and the
assignment or subparticipation of all or any portion of the Syndication Interest
held by any Lender pursuant to Section 11.10.
75
Section
5.15. Inspection
of the Collateral and Appraisal.
At all
times during the term of the Bank
Facilities,
Borrower shall provide or cause to be provided to Banks and any authorized
representatives of Banks, accompanied by representatives of Borrower, the
reasonable right of entry and free access to the Collateral Properties to
inspect same on reasonable prior notice to Borrower. If at any time any
Qualified Appraisal of the Collateral Properties is required to be made by
any
banking regulatory authority or determined to be necessary by Agent Bank or
Requisite Lenders after the occurrence of an Event of Default, Borrower agrees
to pay all fees, costs and expenses incurred by Agent Bank in connection with
the preparation of such Qualified Appraisal.
Section
5.16. Compliance
With Other Loan Documents.
Borrower shall comply with each and every term, condition and agreement, and
shall perform each and every obligation, contained in the Loan
Documents.
Section
5.17. Suits
or Actions Affecting Borrower.
Throughout the term of the Bank
Facilities,
Borrower shall promptly advise Agent Bank in writing within ten (10) days after
Borrower obtains knowledge of (a) any claims, litigation, proceedings or
disputes (whether or not purportedly on behalf of Borrower) against, or to
the
actual knowledge of Borrower, threatened or affecting Borrower which, if
adversely determined, would result in a Material Adverse Change on the
Collateral Properties or the business, operations or financial conditions of
Borrower, (b) any material labor controversy resulting in or threatening to
result in a strike against any of the Collateral Properties or Casino Facility,
or (c) any proposal by any Governmental Authority to acquire any of the
material assets or business of Borrower.
Section
5.18. Compliance
with Gaming Authorities.
Borrower shall comply in all material respects with all applicable statutes,
rules and regulations and shall timely file all reports and disclosures to
all
applicable Gaming Authorities.
Section
5.19. Tradenames,
Trademarks and Servicemarks.
Borrower shall not assign or in any other manner alienate its interests in
any
material tradenames, trademarks or servicemarks relating or pertaining to the
Casino Facility during the term of the Bank
Facilities.
Borrower shall not change its name without first giving at least thirty (30)
days prior written notice to Agent Bank.
Section
5.20. Notice
of Hazardous Materials.
During
the term of the Bank Facilities, within ten (10) days after an executive officer
of Borrower shall have obtained actual knowledge thereof, Borrower shall
promptly advise Agent Bank and each of the Lenders in writing of and deliver
a
copy of: (a) any and all enforcement, clean-up, removal or other governmental
or
regulatory actions instituted or threatened by any Governmental Agency pursuant
to any applicable federal, state or local laws, ordinances or regulations
relating to any Hazardous Materials (as defined in the Environmental
Certificate) affecting the Collateral Properties ("Hazardous Materials
76
Laws");
(b) all written claims made or threatened by any third party against Borrower,
the Collateral Properties, the Casino Facility, or any of them, relating
to
damage, contribution, cost recovery compensation, loss or injury resulting
from
any Hazardous Materials (the matters set forth in clauses (a) and (b) above
are
hereinafter referred to as "Hazardous Materials Claims"); and (c) the discovery
of any occurrence or condition on any real property adjoining or in the vicinity
of the Collateral Properties, the Casino Facility, or any of them, that could
cause Borrower or any part thereof to be held liable under the provisions
of, or
to be otherwise subject to any restrictions on the ownership, occupancy,
transferability or use of the Collateral Properties or the Casino Facility
under, any Hazardous Materials Laws.
Section
5.21. Compliance
with Access Laws.
a. Borrower
agrees that Borrower, the Casino Facility and the Collateral Properties shall
at
all times comply in all material respects with the requirements of the Americans
with Disabilities Act of 1990; the Fair Housing Amendments Act of 1988; and
other federal, state or local laws or ordinances related to disabled access;
or
any statute, rule, regulation, ordinance, order of Governmental Authorities,
or
order or decree of any court adopted or enacted with respect thereto, as now
existing or hereafter amended or adopted (collectively, the "Access Laws").
At
any time, Agent Bank may require a certificate of compliance with the Access
Laws and indemnification agreement in a form reasonably acceptable to Agent
Bank. Agent Bank may also require a certificate of compliance with the Access
Laws from an architect, engineer, or other third party acceptable to Agent
Bank.
b. Xxxxxxxx
agrees to give prompt written notice to Agent Bank of the receipt by Borrower
of
any claims of material violation of any of the Access Laws and of the
commencement of any proceedings or investigations which relate to compliance
with any of the Access Laws.
c. Borrower
shall indemnify, defend and hold harmless Indemnified Parties from and against
any and all claims, demands, damages, costs, expenses, losses, liabilities,
penalties, fines and other proceedings including, without limitation, reasonable
attorneys' fees and expenses arising directly or indirectly from or out of
or in
any way connected with any failure of the Casino Facility or the Collateral
Properties to comply with any of the Access Laws. The obligations and
liabilities of Borrower under this section shall survive Bank
Facilities
Termination, any satisfaction, assignment, judicial or nonjudicial foreclosure
proceeding, or delivery of a deed in lieu of foreclosure.
Section
5.22. Compliance
with Management Agreement.
Until
Bank Facilities Termination, Borrower shall fully perform and comply with or
cause to be performed and complied with all of the respective material
covenants, material terms
77
and
material conditions imposed or assumed by it under the Management Agreement.
Until Bank Facilities Termination, Borrower shall not amend, modify or
terminate, or enter into any agreement to amend, modify or terminate the
Management Agreement without the prior written consent of Agent Bank, which
consent shall not be unreasonably withheld or delayed, or if in the opinion
of
Agent Bank such amendment, modification or termination is materially adverse
to
Borrower, without the prior written consent of the Requisite
Lenders.
Section
5.23. Interest
Rate Protection.
On or
before the Term Out Date, Borrower shall enter into a Secured Interest Rate
Hedge acceptable to Agent Bank for at least seventy-five percent (75%) of the
amount of the Bank Facilities for a period no less than the period commencing
on
the date of such Secured Interest Rate Hedge and ending on the Maturity
Date.
ARTICLE
VI
FINANCIAL
COVENANTS
Until
the
occurrence of Bank Facilities Termination, Xxxxxxxx agrees, as set forth below,
to comply or cause compliance with the following Financial
Covenants.
Section
6.01. Total
Leverage Ratio.
Commencing as of the first full Fiscal Quarter ending subsequent to the Term
Out
Date and continuing as of each Fiscal Quarter end until Bank
Facilities
Termination, the Borrower shall maintain a Total Leverage Ratio no greater
than
the ratios described hereinbelow as of the end of each Fiscal Quarter in
accordance with the following schedule, to be calculated: (i) as of the end
of the first full Fiscal Quarter for a fiscal period consisting of the first
full Fiscal Quarter following the Term Out Date, (ii) as of the end of the
second full Fiscal Quarter for a fiscal period consisting of the first and
second full Fiscal Quarters following the Term Out Date, (iii) as of the
end of the third full Fiscal Quarter for a fiscal period consisting of the
first, second and third full Fiscal Quarters following the Term Out Date, and
(iv) as of the end of the fourth full Fiscal Quarter following the Term Out
Date and as of each Fiscal Quarter end thereafter occurring, for a fiscal period
consisting of each such Fiscal Quarter and the most recently ended three (3)
preceding Fiscal Quarters on a rolling four (4) Fiscal Quarter
basis:
78
|
Fiscal
Quarter End
|
Maximum
Total
Leverage
Ratio
|
|
As
of the end of the first (1st)
full Fiscal Quarter ending subsequent to the Term Out Date and as
of each
Fiscal Quarter end through the fourth (4th)
Fiscal Quarter ending subsequent to the Term Out Date
|
4.75
to 1.00
|
|
As
of the fifth (5th)
through eighth (8th)
Fiscal Quarter ends occurring subsequent to the Term Out
Date
|
4.50
to 1.00
|
|
As
of the ninth (9th)
through twelfth (12th)
Fiscal Quarter ends occurring subsequent to the Term Out Date
|
4.00
to 1.00
|
|
As
of the thirteenth (13th)
through sixteenth (16th)
Fiscal Quarter ends occurring subsequent of the Term Out
Date
|
3.25
to 1.00
|
|
As
of the seventeenth (17th)
Fiscal Quarter end occurring subsequent to the Term Out Date and
as of
each Fiscal Quarter end thereafter occurring until Bank Facilities
Termination
|
2.75
to 1.00
|
Section
6.02. Senior
Leverage Ratio.
Commencing as of the first full Fiscal Quarter ending subsequent to the Term
Out
Date and continuing as of each Fiscal Quarter end until Bank
Facilities
Termination, the Borrower shall maintain a Senior Leverage Ratio no greater
than
the ratios described hereinbelow as of the end of each Fiscal Quarter in
accordance with the following schedule, to be calculated: (i) as of the end
of the first full Fiscal Quarter for a fiscal period consisting of the first
full Fiscal Quarter following the Term Out Date, (ii) as of the end of the
second full Fiscal Quarter for a fiscal period consisting of the first and
second full Fiscal Quarters following the Term Out Date, (iii) as of the
end of the third full Fiscal Quarter for a fiscal period consisting of the
first, second and third full Fiscal Quarters following the Term Out Date, and
(iv) as of the end of the fourth full Fiscal Quarter following the Term Out
Date and as of each Fiscal Quarter end thereafter occurring, for a fiscal period
consisting of each such Fiscal Quarter and the most recently ended three (3)
preceding Fiscal Quarters on a rolling four (4) Fiscal Quarter
basis:
79
|
Fiscal
Quarter End
|
Maximum
Senior
Leverage
Ratio
|
|
As
of the first (1st)
through fourth (4th)
Fiscal Quarter ends occurring subsequent to the Term Out Date
|
4.25
to 1.00
|
|
As
of the fifth (5th)
through eighth (8th)
Fiscal Quarter ends occurring subsequent to the Term Out
Date
|
3.75
to 1.00
|
|
As
of the ninth (9th)
through twelfth (12th)
Fiscal Quarter ends occurring subsequent to the Term Out Date
|
3.25
to 1.00
|
|
As
of the thirteenth (13th)
through sixteenth (16th)
Fiscal Quarter ends occurring subsequent of the Term Out
Date
|
2.75
to 1.00
|
|
As
of the seventeenth (17th)
Fiscal Quarter end occurring subsequent to the Term Out Date and
as of
each Fiscal Quarter end thereafter occurring until Bank Facilities
Termination
|
2.25
to 1.00
|
Section
6.03. Adjusted
Fixed Charge Coverage Ratio.
Commencing as of the first full Fiscal Quarter ending subsequent to the Term
Out
Date and continuing as of each Fiscal Quarter end until Bank
Facilities
Termination, the Borrower shall maintain an Adjusted Fixed Charge Coverage
Ratio
no less than the ratios described hereinbelow as of the end of each Fiscal
Quarter in accordance with the following schedule, to be calculated: (i) as
of the end of the first full Fiscal Quarter for a fiscal period consisting
of
the first full Fiscal Quarter following the Term Out Date, (ii) as of the
end of the second full Fiscal Quarter for a fiscal period consisting of the
first and second full Fiscal Quarters following the Term Out Date, (iii) as
of the end of the third full Fiscal Quarter for a fiscal period consisting
of
the first, second and third full Fiscal Quarters following the Term Out Date,
and (iv) as of the end of the fourth full Fiscal Quarter following the Term
Out Date and as of each Fiscal Quarter end thereafter occurring, for a fiscal
period consisting of each such Fiscal Quarter and the most recently ended three
(3) preceding Fiscal Quarters on a rolling four (4) Fiscal Quarter
basis:
80
|
Fiscal
Quarter End
|
Minimum
Adjusted
Fixed
Charge Coverage
|
|
As
of the first (1st)
through fourth (4th)
Fiscal Quarter ends occurring subsequent to the Term Out
Date
|
1.10
to 1.00
|
|
As
of the fifth (5th)
Fiscal Quarter end occurring subsequent to the Term Out Date and
as of
each Fiscal Quarter end thereafter occurring until Bank Facilities
Termination
|
1.15
to 1.00
|
Section
6.04. Minimum
Annualized EBITDAM.
Commencing as of the first full Fiscal Quarter ending subsequent to the Term
Out
Date and continuing as of each Fiscal Quarter End until the occurrence of Bank
Facilities Termination, the Borrower shall maintain as of the end of each Fiscal
Quarter an Annualized EBITDAM of no less than the amounts described hereinbelow
as of the end of each Fiscal Quarter in accordance with the following
schedule:
|
Fiscal
Quarter End
|
Minimum
Amount of
Annualized
EBITDAM
|
|
As
of the first (1st)
through eighth (8th)
Fiscal Quarter ends occurring subsequent to the Term Out Date
|
$8,000,000.00
|
|
As
of the ninth (9th)
through sixteenth (16th)
Fiscal Quarter ends occurring subsequent to the Term Out
Date
|
$8,250,000.00
|
|
As
of the seventeenth (17th)
Fiscal Quarter end occurring subsequent to the Term Out Date and
as of
each Fiscal Quarter end thereafter occurring until Bank Facilities
Termination
|
$8,500,000.00
|
Section
6.05. Limitation
on Indebtedness.
Borrower shall not owe or incur any Indebtedness, except as specifically
permitted hereinbelow:
a. Funded
Term Outstandings under the C/T Loan;
b. Funded
RLC Outstandings under the Revolving Credit Facility;
c. Secured
Interest Rate Xxxxxx up to the aggregate amount of Thirty-Five Million Dollars
($35,000,000.00) at any time outstanding;
81
d. Secured
purchase money Indebtedness and Capitalized Lease Liabilities relating to
FF&E used and to be used in connection with the Casino Facility up to the
maximum aggregate principal amount of Five Hundred Thousand Dollars
($500,000.00) at any time outstanding;
e. Unsecured
Indebtedness (other than as set forth in (f) and (g) hereinbelow) up to the
maximum aggregate amount of One Million Dollars ($1,000,000.00) at any time
outstanding;
f. Unsecured
trade payable incurred in the ordinary course of business less than one hundred
twenty (120) days past due; and
g. Subordinated
Debt consisting of the following:
(i) The
CCVLLC Subordinated Debt. Notwithstanding anything contained in the Payment
Subordination Agreement executed in connection with the CCVLLC Subordinated
Note, payments otherwise permitted thereunder may only be made and paid so
long
as the Adjusted Fixed Charge Coverage Ratio of the Borrower as of the most
recently ended Fiscal Quarter would comply with the requirements of Section
6.03, calculated on a pro forma basis based on the assumption that the proposed
payment under the CCVLLC Subordinated Note had occurred during the most recently
ended Fiscal Quarter;
(ii) The
CCI
Subordinated Debt;
(iii) Other
unsecured Indebtedness (i) that has met the requirements contained in the
definition of Subordinated Debt, (ii) for which a Payment Subordination
Agreement has been executed by all applicable Persons; and
(iv) Which
does not permit payments or enforcement rights until Bank Facilities Termination
and payment in full of the CCVLLC Subordinated Note and the CCI Subordinated
Note.
Section
6.06. Restriction
on Distributions.
a. Borrower
shall not make any Distributions during any period in which a Default or Event
of Default has occurred and remains continuing; and
b. Subject
to the provisions set forth in Subsection (a) hereinabove, Distributions may
be
paid (i) at the end of the Fiscal Year ending
82
December
31, 2006 as a Tax Distribution for the 2006 Fiscal Year, and (ii) at any
time and from time to time following the occurrence of four (4) full Fiscal
Quarters following the Term Out Date, so long as the Adjusted Fixed Charge
Coverage Ratio of the Borrower as of the most recently ended Fiscal Quarter
would comply with the requirements of Section 6.03, calculated on a pro
forma basis based on the assumption that the payment of such Distributions
had
occurred during the most recently ended Fiscal Quarter.
Section
6.07. Capital
Expenditures Requirements.
Commencing as of the first full Fiscal Quarter ending subsequent to the Term
Out
Date and continuing as of each Fiscal Quarter end until Bank Facilities
Termination, Borrower shall make or cause to be made, Maintenance Capital
Expenditures to the Casino Facility in a minimum aggregate amount equal to
or
greater ("Minimum Maintenance Cap Ex Requirement") than the minimum percentages
described hereinbelow as of the end of each applicable period, as a percentage
of gross gaming revenues derived from the Casino Facility by the Borrower during
each such applicable period, but in no event shall Maintenance Capital
Expenditures made during any applicable period be greater than a maximum
aggregate amount equal to six percent (6%) of gross gaming revenues ("Maximum
Maintenance Cap Ex Limit") derived from the Casino Facility by the Borrower
during each such applicable period:.
|
Fiscal
Quarter End
|
Minimum
Maintenance Cap Ex Requirement
|
Maximum
Maintenance Cap Ex Limit
|
|
As
of the first (1st)
through fourth (4th)
Fiscal Quarter ends occurring subsequent to the Term Out Date
|
1.0%
|
6.0%
|
|
As
of the fifth (5th)
through eighth (8th)
Fiscal Quarter ends occurring subsequent to the Term Out
Date
|
1.5%
|
6.0%
|
|
As
of the ninth (9th)
through twelfth (12th)
Fiscal Quarter ends occurring subsequent to the Term Out Date and
as of
each four consecutive Fiscal Quarter period ending thereafter until
Bank
Facilities Termination
|
2.0%
|
6.0%
|
83
Section
6.08. Contingent
Liability(ies).
The
Borrower shall not directly or indirectly incur any Contingent Liability(ies)
without the prior written consent of Requisite Lenders.
Section
6.09. Investment
Restrictions.
Other
than Investments permitted herein or approved in writing by Requisite Lenders,
the Borrower shall not make any Investments (whether by way of loan, stock
purchase, capital contribution, or otherwise) other than the
following:
a. Cash,
Cash Equivalents and direct obligations of the United States
Government;
b. Prime
commercial paper (AA rated or better);
c. Certificates
of deposit or repurchase agreement issued by a commercial bank having capital
surplus in excess of One Hundred Million Dollars ($100,000,000.00);
d. Money
market or other funds of nationally recognized institutions investing solely
in
obligations described in (a), (b) and (c) above; and
e. Maintenance
Capital Expenditures for the Casino Facility to the extent permitted
herein.
Section
6.10. Total
Liens.
Borrower shall not directly or indirectly, create, incur, assume or permit
to
exist any Lien on or with respect to any of the Collateral, whether now owned
or
hereafter acquired, or any income or profits therefrom, or file or cause the
filing of, or permit to remain in effect, any financing statement or other
similar notice of any Lien with respect to any of the Collateral under the
Uniform Commercial Code of any State or under any similar recording or notice
statute, except Permitted Encumbrances.
Section
6.11. No
Change of Control.
Until
the occurrence of Bank Facilities Termination, no Change of Control shall
occur.
Section
6.12. Sale
of Assets, Consolidation, Merger, or Liquidation.
Other
than as approved in writing by Requisite Lenders, Borrower shall not wind up,
liquidate or dissolve its affairs or enter into any transaction of merger or
consolidation, or convey, sell, lease or otherwise dispose of (or make an
agreement to do any of the foregoing at any time prior to Bank Facilities
Termination) all or any part of its properties or assets, except that the
following shall be permitted:
a. The
Borrower may make sales of inventory in the ordinary course of
business;
84
b. So
long
as no Default or Event of Default shall have occurred and remains continuing
the
Borrower may, in the ordinary course of business and subject to the provisions
of subsection (c) hereinbelow, sell FF&E and other items of
Collateral that are, in Borrower's prudent business judgment, obsolete or no
longer necessary for the Borrower's business objectives;
c. If
the
Borrower should sell, transfer, convey or otherwise dispose of any FF&E and
not within thirty (30) days of such sale, transfer, conveyance or other
disposition replace such FF&E with purchased items of equivalent value and
utility or replace said FF&E with leased FF&E of equivalent value and
utility, to the extent the Net Proceeds thereof not used to replace FF&E
exceed a cumulative aggregate value of Ten Thousand Dollars ($10,000.00) during
any Fiscal Year (the "Excess Capital Proceeds"), the Borrower shall be required
to, prior to thirty (30) days following such sale, transfer, conveyance or
other
disposition; permanently reduce the C/T Loan with a Mandatory Prepayment in
the
amount of the Excess Capital Proceeds, subject, however, to the right of Agent
Bank to verify to its reasonable satisfaction the amount of said Excess Capital
Proceeds.
Section
6.13. ERISA.
Borrower shall not:
a. At
any
time, permit any Pension Plan which is maintained by Borrower or to which
Borrower is obligated to contribute on behalf of its employees, in such case
if
to do so would result in a Material Adverse Change, to:
(i) engage
in
any non-exempt "prohibited transaction", as such term is defined in
Section 4975 of the Code;
(ii) incur
any
material "accumulated funding deficiency", as that term is defined in
Section 302 of ERISA; or
(iii) suffer
a
termination event to occur which may reasonably be expected to result in
liability of Borrower to the Pension Plan or to the Pension Benefit Guaranty
Corporation or the imposition of a lien on the Collateral pursuant to
Section 4068 of ERISA.
b. Fail,
upon Xxxxxxxx becoming aware thereof, promptly to notify the Agent Bank of
the
occurrence of any Reportable Event with respect to any Pension Plan or of any
non-exempt "prohibited transaction" (as defined in Section 4975 of the
Code) with respect to any Pension Plan which is maintained by Borrower or to
which Borrower is obligated to contribute on behalf of its employees or any
trust created thereunder which Reportable Event or prohibited transaction would
result in a Material Adverse Change.
85
c. At
any
time, permit any Pension Plan which is maintained by Borrower or to which
Borrower is obligated to contribute on behalf of its employees to fail to comply
with ERISA or other applicable laws in any respect that would result in a
Material Adverse Effect.
Section
6.14. Margin
Regulations.
No part
of the proceeds of the Bank Facilities will be used by Borrower to purchase
or
carry any Margin Stock or to extend credit to others for the purpose of
purchasing or carrying any Margin Stock. Neither the making of such loans,
nor
the use of the proceeds of such loans will violate or be inconsistent with
the
provisions of Regulations T, U or X of the Board of Governors of the Federal
Reserve System.
Section
6.15. Transactions
with Affiliates.
Borrower shall not engage in any transaction with any Affiliate of Borrower,
other than arms length transactions for fair market value, except to the extent
more favorable to the Borrower. Notwithstanding the foregoing, however, Lenders
shall and do hereby consent to the engagement of the services of an Operating
Manager pursuant to a Management Agreement subject to compliance with the
requirements of Section 5.22 and each of the Subordinated
Notes.
Section
6.16. Limitation
on Subsidiaries.
Borrower shall not create any Subsidiaries without the prior written consent
of
Requisite Lenders.
Section
6.17. Change
in Accounting Principles.
Except
as otherwise provided herein, if any changes in accounting principles from
those
used in the preparation of the most recent financial statements delivered to
Agent Bank pursuant to the terms hereof are hereinafter required or permitted
by
the rules, regulations, pronouncements and opinions of the Financial Accounting
Standards Board or the American Institute of Certified Public Accountants (or
successors thereto or agencies with similar functions) and are adopted by the
Borrower with the agreement of its independent certified public accountants
and
such changes result in a change in the method of calculation of any of the
financial covenants, standards or terms found herein, the parties hereto agree
to enter into negotiations in order to amend such provisions so as to equitably
reflect such changes with the desired result that the criteria for evaluating
the financial condition of Borrower shall be the same after such changes as
if
such changes had not been made; provided, however, that no change in GAAP that
would affect the method of calculation of any of the financial covenants,
standards or terms shall be given effect in such calculations until such
provisions are amended, in a manner satisfactory to Agent Bank and Requisite
Lenders, to so reflect such change in accounting principles.
86
ARTICLE
VII
EVENTS
OF DEFAULT
Section
7.01. Events
of Default.
Any of
the following events and the passage of any applicable notice and cure periods
shall constitute an Event of Default hereunder:
a. Any
representation or warranty made by Borrower pursuant to or in connection with
this Credit Agreement, the C/T Note, the Revolving Credit Note, the
Environmental Certificate, or any other Loan Document or in any report,
certificate, financial statement or other writing furnished by Borrower in
connection herewith, shall prove to be false, incorrect or misleading in any
materially adverse aspect as of the date when made (unless cured within thirty
(30) days of the date when made if such representation or warranty is capable
of
being cured);
b. Borrower
shall have defaulted in the payment of any interest owing hereunder or on the
C/T Note or on the Revolving Credit Note for a period of five (5) days from
the
date that such payment is due or shall have defaulted in the payment of any
principal owing hereunder on the C/T Note or on the Revolving Credit Note for
a
period of two (2) days from the date that such payment is due;
c. Borrower
shall have defaulted under the terms of any other obligation owing Agent Bank,
which default continues beyond any applicable grace period therein contained
and
such failure shall continue for a period of more than ten (10) days after
written notice thereof is delivered to Borrower;
d. Borrower
shall have defaulted in the payment of any late charge, Nonusage Fees, expenses,
indemnities or any other amount owing under any Loan Document or under the
Fee
Side Letter for a period of five (5) days after written notice thereof to
Borrower from Agent Bank;
e. Borrower
shall fail duly and punctually to perform or comply with: (i) any term,
covenant, condition or promise contained in Sections 6.01, 6.02, 6.03,
6.04, 6.05, 6.06, 6.07, 6.08, 6.09, 6.10 or 6.11, or (ii) any other term,
covenant, condition or promise contained in this Credit Agreement, the Notes,
the Deed of Trust or any other Loan Document and, in the case of any term,
covenant, condition or promise covered by this clause (ii), such failure shall
continue thirty (30) days after written notice thereof is delivered to Borrower
by Agent Bank or any Lender of such failure;
f. Any
of
the Security Documentation or any provision thereof: (i) shall cease to be
in full force and effect in any material respect, or (ii) shall cease to give
the Agent Bank in any material respect the liens, rights, powers and privileges
87
purported
to be created thereby, or (iii) the Borrower shall default in the due
performance or observance of any term, covenant or agreement on its part
to be
performed or observed pursuant to the Security Documentation for a period
of
thirty (30) days after written notice thereof is delivered to Borrower by
Agent
Bank of such failure (or such shorter period following such notice as may
be
specifically required in any Loan Document);
g. Borrower
shall commence a voluntary case or other proceeding seeking liquidation,
reorganization or other relief with respect to it or its debts under the
Bankruptcy Code or any bankruptcy, insolvency or other similar law now or
hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official, for all or substantially all
of
its property, or shall consent to any such relief or to the appointment or
taking possession by any such official in any involuntary case or other
proceeding against it;
h. An
involuntary case or other proceeding shall be commenced against Borrower seeking
liquidation, reorganization or other relief with respect to itself or its debts
under the Bankruptcy Code or any bankruptcy, insolvency or other similar law
now
or hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official, for all or substantially all
of
its property, and such involuntary case or other proceeding shall remain
undismissed and unstayed for a period of ninety (90) days;
i. Xxxxxxxx
makes an assignment for the benefit of its creditors or admits in writing its
inability to pay its debts generally as they become due;
j. Borrower
shall fail to make any payment when due (whether by scheduled maturity, required
prepayment, offer to purchase, redemption, acceleration, demand or otherwise,
in
each case beyond the grace period provided with respect to such Indebtedness)
on
any Indebtedness, if the aggregate amount of such Indebtedness is Five Hundred
Thousand Dollars ($500,000.00), or more, or any breach, default or event of
default shall occur, or any other event shall occur or condition shall exist,
under any instrument, agreement or indenture pertaining thereto if the effect
thereof is to accelerate, the maturity of any such Indebtedness; or any such
Indebtedness shall be declared to be due and payable or shall be required to
be
prepaid, purchased or redeemed (other than by a regularly scheduled required
prepayment) prior to the stated maturity thereof, or the holder of any lien
in
any amount, shall commence foreclosure of such lien upon property of Borrower
having a value in excess of Ten Thousand Dollars ($10,000.00) and such
foreclosure shall continue against such property to a date less than thirty
(30)
days prior to the date of the proposed foreclosure sale;
88
k. The
occurrence of any event of default, beyond any applicable grace period, under
the terms of any agreement with any Lender in connection with a Secured Interest
Rate Hedge relating to the Bank Facilities;
l. Borrower
shall be voluntarily or involuntarily divested of title or possession of any
Collateral Property or shall lease or in any other manner, voluntarily or
involuntarily alienate any of its interest in any Collateral Property or any
portion of the Casino Facility, other than the Permitted Encumbrances and as
permitted in Section 5.01;
m. The
occurrence of any Reportable Event with respect to a Pension Plan which Agent
Bank determines in good faith constitutes proper grounds for the termination
of
any Pension Plan by the Pension Benefit Guaranty Corporation or for the
appointment by an appropriate United States District Court of a trustee to
administer any such plan that would result in a Material Adverse Change, should
occur and should continue for thirty (30) days after written notice of such
determination shall have been given to Borrower by Agent Bank;
n. Commencement
against Borrower, any time after the execution of this Credit Agreement, of
any
litigation which is not stayed, bonded, dismissed, terminated or disposed of
to
the satisfaction of Agent Bank within ninety (90) days after its commencement,
and which (i) has a reasonable probability of success, and could, if successful,
in the reasonable opinion of Agent Bank, materially and adversely affect the
priority of the Liens granted Agent Bank by the Deed of Trust in the Collateral
Properties, or (ii) results in the issuance of a preliminary or permanent
injunction which is not dissolved or stayed pending appeal within sixty (60)
days of its issuance and which preliminary or permanent injunction materially
adversely affects Borrower's right to use the Collateral Properties as the
Casino Facility;
o. Failure
to obtain all necessary licenses, consents, approvals and permits necessary
to
operate gaming activities and otherwise operate the Casino Facility prior to
the
Term Out Date or the loss or suspension, other than on account of casualty,
condemnation or other forces majeure, of Borrower's Gaming Permits or the
failure of Borrower to maintain gaming activities at the Casino Facility other
than on account of casualty, condemnation or other forces majeure at least
to
the same general extent as is presently contemplated thereon for a period in
excess of thirty (30) consecutive days;
p. Any
money
judgment, writ or warrant of attachment or similar process involving (i) in
any individual case an amount in excess of One Hundred Thousand Dollars
($100,000.00) or (ii) in the aggregate at any time an amount in excess of
Two Hundred Fifty Thousand Dollars ($250,000.00) (in either case not adequately
covered by insurance as to which a solvent and unaffiliated insurance
89
company
has acknowledged coverage) shall be entered or filed against Borrower or
any of
its respective assets and shall remain unpaid, undischarged, unvacated, unbonded
or unstayed for a period of sixty (60) days (or in any event later than five
(5)
days prior to the date of any proposed sale thereunder);
q. Any
order, judgment or decree shall be entered against Borrower decreeing its
involuntary dissolution or split up and such order shall remain undischarged
and
unstayed for a period in excess of thirty (30) days, or Borrower shall otherwise
dissolve or cease to exist;
r. The
occurrence of any Change of Control;
s. The
Completion Date shall not have occurred on or before the Construction Completion
Deadline; or
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.
Section
7.02. Default
Remedies.
Upon
the occurrence of any Event of Default, Agent Bank may and, upon the consent
or
direction of Requisite Lenders, shall declare the unpaid balance of the Notes,
together with the interest thereon, to be fully due and payable, and Agent
Bank
shall, upon the consent or direction of Requisite Lenders, exercise any or
all
of the following remedies:
a. Terminate
the obligation of Lenders to make any advances for Borrowings and/or
Construction Disbursements and may declare all outstanding unpaid Indebtedness
hereunder and under the Notes and other Loan Documents together with all accrued
interest thereon immediately due and payable without presentation, demand,
protest or notice of any kind. This remedy will be deemed to have been
automatically exercised on the occurrence of any event set out in
Sections 7.01 (g), (h) or (i).
b. Terminate
the obligation of the L/C Issuer to issue Letters of Credit and shall direct
the
Borrower to pay to the L/C Issuer an amount in Cash equal to the then
outstanding L/C Exposure, such Cash to be held by L/C Issuer in the Cash
Collateral Account as security for the repayment of all L/C Reimbursement
Obligations thereafter occurring. This remedy will be deemed to have been
automatically exercised on the occurrence of any event set out in
Sections 7.01(g), (h) or (i).
c. The
Banks
and/or Agent Bank may exercise any and all remedies available to Banks or Agent
Bank under the Loan Documents.
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d. In
the
event Borrower has failed to provide any insurance required under
Section 5.09, Agent Bank may elect at its discretion to purchase such
insurance. All payments made by Agent Bank for the purpose of providing the
insurance coverages required under Section 5.09 shall be deemed amounts
advanced under Section 5.12 of this Credit Agreement.
e. The
Banks
and/or Agent Bank may exercise any other remedies available to Banks or Agent
Bank at law or in equity, including requesting the appointment of a receiver
to
perform any acts required of Borrower under this Credit Agreement, and Borrower
hereby specifically consents to any such request by Xxxxx.
For
the purpose of carrying out
this section and exercising these rights, powers and privileges, Borrower hereby
irrevocably constitutes and appoints Agent Bank as its true and lawful
attorney-in-fact to execute, acknowledge and deliver any instruments and do
and
perform any acts such as are referred to in this paragraph in the name and
on
behalf of Borrower. Agent Bank on behalf of Lenders may exercise one or more
of
Xxxxxxx' remedies simultaneously and all its remedies are nonexclusive and
cumulative. Agent Bank and Lenders shall not be required to pursue or exhaust
any Collateral or remedy before pursuing any other Collateral or remedy. Agent
Bank and Lenders' failure to exercise any remedy for a particular default shall
not be deemed a waiver of (i) such remedy, nor their rights to exercise any
other remedy for that default, nor (ii) their right to exercise that remedy
for
any subsequent default.
Section
7.03. Application
of Proceeds.
All
payments and proceeds received and all amounts held or realized from the sale
or
other disposition of the Collateral Properties and/or Collateral, which are
to
be applied hereunder towards satisfaction of Xxxxxxxx's obligations under the
Bank Facilities, shall be applied in the following order of
priority:
a. First,
to
the payment of all reasonable fees, costs and expenses (including reasonable
attorney's fees and expenses) incurred by Agent Bank and Banks, their agents
or
representatives in connection with the realization upon any of the
Collateral;
b. Next,
to
the payment in full of any other amounts due under this Credit Agreement, the
Deed of Trust, or any other Loan Documents (other than the Notes);
c. Next,
to
the balance of interest remaining unpaid on the Notes on a pro rata
basis;
d. Next,
to
the balance of principal remaining unpaid on the Notes on a pro rata
basis;
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e. Next,
the
balance, if any, of such payments or proceeds to whomever may be legally
entitled thereto.
Section
7.04. Notices.
In
order to entitle Agent Bank and/or Banks to exercise any remedy available
hereunder, it shall not be necessary for Agent Bank and/or Banks to give any
notice, other than such notice as may be required expressly herein or by
applicable law.
Section
7.05. Agreement
to Pay Attorney's Fees and Expenses.
Subject
to the provisions of Section 11.14, upon the occurrence of an Event of
Default, as a result of which Agent Bank shall require and employ attorneys
or
incur other expenses for the collection of payments due or to become due or
the
enforcement or performance or observance of any obligation or agreement on
the
part of Borrower contained herein, Borrower shall, on demand, pay to Agent
Bank
the reasonable fees of such attorneys and such other reasonable expenses so
incurred by Agent Bank.
Section
7.06. No
Additional Waiver Implied by One Waiver.
In the
event any agreement contained in this Credit Agreement should be breached by
either party and thereafter waived by the other party, such waiver shall be
limited to the particular breach so waived and shall not be deemed to waive
any
other breach hereunder.
Section
7.07. Licensing
of Agent Bank and Lenders.
In the
event of the occurrence of an Event of Default hereunder or under any of the
Loan Documents and it shall become necessary, or in the opinion of Requisite
Lenders advisable, for an agent, supervisor, receiver or other representative
of
Agent Bank and Banks to become licensed under the provisions of the laws and/or
regulations of the Colorado Gaming Authorities as a condition to receiving
the
benefit of any Collateral encumbered by the Deed of Trust or other Loan
Documents for the benefit of Lenders or otherwise to enforce their rights
hereunder, Xxxxxxxx hereby gives its consent to the granting of such license
or
licenses and agrees to execute such further documents as may be required in
connection with the evidencing of such consent.
Section
7.08. Exercise
of Rights Subject to Applicable Law.
All
rights, remedies and powers provided by this Article VII may be exercised only
to the extent that the exercise thereof does not violate any applicable
provision of the laws of any Governmental Authority and all of the provisions
of
this Article VII are intended to be subject to all applicable mandatory
provisions of law that may be controlling and to be limited to the extent
necessary so that they will not render this Credit Agreement invalid,
unenforceable or not entitled to be recorded or filed under the provisions
of
any applicable law.
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Section
7.09. Discontinuance
of Proceedings.
In case
Agent Bank and/or Xxxxx shall have proceeded to enforce any right, power or
remedy under this Credit Agreement, the Notes, the Deed of Trust or any other
Loan Document by foreclosure, entry or otherwise, and such proceedings shall
have been discontinued or abandoned for any reason or shall have been determined
adversely to Banks, then and in every such case Borrower, Agent Bank and/or
Banks shall be restored to their former positions and rights hereunder with
respect to the Collateral, and all rights, remedies and powers of Agent Bank
and
Xxxxx shall continue as if such proceedings had not been taken, subject to
any
binding rule by the applicable court or other tribunal in any such
proceeding.
ARTICLE
VIII
DAMAGE,
DESTRUCTION AND CONDEMNATION
Section
8.01. No
Abatement of Payments.
If all
or any part of the Collateral Properties shall be materially damaged or
destroyed, or if title to or the temporary use of the whole or any part of
any
of the Collateral Properties shall be taken or condemned by a competent
authority for any public use or purpose, there shall be no abatement or
reduction in the amounts payable by Borrower hereunder or under the Notes,
and
Borrower shall continue to be obligated to make such payments.
Section
8.02. Distribution
of Capital Proceeds Upon Occurrence of Fire, Other Perils or
Condemnation.
All
monies received from "All Risk" including flood and earthquake insurance
policies covering any of the Collateral Properties or from condemnation or
similar actions in regard to said Collateral Properties, shall be paid directly
to Agent Bank. However, in the event the amount paid to Agent Bank is equal
to
or less than Five Hundred Thousand Dollars ($500,000.00), such amount shall
be
paid directly to Borrower unless an Event of Default shall have occurred and
then be continuing. In the event the amount paid to Agent Bank is greater than
Five Hundred Thousand Dollars ($500,000.00), then at the option of Borrower,
unless an Event of Default has occurred hereunder and is then continuing, in
which case at the option of Requisite Lenders, such amount may be applied to
pay
the outstanding balance of the C/T Loan or the entire amount so collected,
or
any part thereof, may be released to Borrower for repair or replacement of
the
property destroyed or condemned or to reimburse Borrower for the costs of such
repair or replacement incurred prior to the date of such release. In the event
the Borrower elects to, or Lenders are required to, release all or a portion
of
the collected funds to Borrower for such repair or re-placement of the property
destroyed or condemned, such release of funds shall be made in accordance with
the following terms and conditions:
a. The
repairs, replacements and rebuilding shall be made in accordance with plans
and
specifications approved by Requisite Lenders and in
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b. Borrower
shall provide Agent Bank with a detailed estimate of the costs of such repairs
or restora-tions;
c. Borrower
shall satisfy the Requisite Lenders that after the reconstruction is completed,
the value of the Collateral Properties, as determined by the Requisite Lenders
in their reasonable discretion, will not be materially less than the value
of
the Collateral Properties prior to such destruction or condemnation as
determined by the Requisite Lenders pursuant to this Credit Agreement;
d. In
the
Requisite Lenders' sole reasonable opinion, any undisbursed portion of the
Available Borrowings under the Revolving Credit Facility, together with the
amount of such proceeds, is sufficient to pay all costs of reconstruction of
the
Casino Facility or other Collateral Property damaged, destroyed or condemned;
or
if the undisbursed portion of such Revolving Credit Facility is not sufficient,
Borrower shall deposit additional funds with the Agent Bank, sufficient to
pay
such additional costs of reconstructing the Collateral Property;
e. Xxxxxxxx
has delivered to the Agent Bank a construction contract for the work of
reconstruction in form and content, including insurance requirements, acceptable
to the Requisite Lenders with a contractor acceptable to the Requisite
Lenders;
f. The
Requisite Lenders in their reasonable discretion have determined that after
the
work of reconstruction is completed, the Casino Facility or Collateral Property
damaged, destroyed or condemned will produce income sufficient to pay all costs
of operations and maintenance of the applicable Collateral Property with a
reasonable reserve for repairs, and service all debts secured by the applicable
Collateral Property;
g. No
Default or Event of Default has occurred and is continuing hereunder;
h. Borrower
has deposited with the Agent Bank that amount reasonably determined by the
Requisite Lenders (taking into consideration the amount of Borrowings available
and the amount of proceeds, if any, of insurance policies covering property
damage and business interruption, loss or rental income in connection with
the
Casino Facility or Collateral Property damaged, destroyed or condemned accruing
and immediately forthcoming to the Agent Bank) to be sufficient to service
the
Indebtedness secured by the Casino Facility or Collateral Property
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i. Before
commencing any such work, Borrower shall, at its own cost and expense, furnish
Agent Bank with appropriate endorsements, if needed, to the "All Risk" insurance
policy which Borrower is then presently maintaining, and course of construction
insurance to cover all of the risks during the course of such work;
j. Such
work
shall be commenced by Borrower within one hundred twenty (120) days after (i)
settlement shall have been made with the insurance companies or condemnation
proceeds shall have been received, and (ii) all the necessary governmental
approvals shall have been obtained, and such work shall be completed within
a
reasonable time, free and clear of all liens and encumbrances so as not to
interfere with the lien of the Deed of Trust;
k. Disbursements
of such insurance or condemnation proceeds shall be made in the customary manner
used by Agent Bank for the disbursement of construction loans; and
l. That
in
the event the insurance or condemnation proceeds are inadequate to repair or
replace the property destroyed or condemned and Requisite Lenders elect to,
or
are required to release all or a portion of the funds collected for such repair
or replacement, Borrower agrees to deposit with Agent Bank sufficient funds
to
cover the difference between the costs of repair or replacement and the funds
released by Requisite Lenders to Borrower for such repair or replacement of
the
property destroyed.
ARTICLE
IX
CONSTRUCTION
DISBURSEMENT PROCEDURES
Upon
the
satisfaction of all the terms and conditions set forth in Article III A of
this
Credit Agreement on the Closing Date, and satisfaction of all terms and
conditions set forth in Article III B of this Credit Agreement on or before
the
Initial Construction Disbursement Date, Construction Disbursements shall be
disbursed or approved for payment by Lenders in the manner and subject to the
conditions provided hereunder, and subject to the following terms covenants
and
conditions:
Section
9.01. Commencement
and Completion of the Construction Projects.
Borrower will commence the Construction Projects and shall complete the
Construction Projects with due diligence (i) in accordance and compliance
in all material respects with the Plans and Specifications prepared by the
Architect and (ii) in accordance and compliance in all material respects with
the terms and conditions of this
95
Credit
Agreement, and all material requirements of all Governmental Authorities
acting
in or for Xxxxxx County, Colorado. The Completion Date shall occur no later
than
the first annual anniversary of the Closing Date (the "Construction Completion
Deadline"); provided, however, that in the event that the construction of
the
Construction Projects is delayed by reason of the occurrence of one or more
Forces Majeure, upon receipt by Agent Bank of a written notice from Borrower
describing each Force Majeure and setting forth the dates that construction
of
the Construction Projects were delayed by reason of each such Force Majeure,
so
long as each such written notice is received by Agent Bank on or before the
twentieth (20th)
day
following the end of the respective period of delay, the Construction Completion
Deadline shall be extended by the number of days during which construction
of
the Construction Projects was so delayed, but in no event shall the Construction
Completion Deadline be extended beyond sixty (60) calendar
days.
Section
9.02. Master
Set of Plans and Specifications.
A
master set of the final Plans and Specifications shall be furnished to Agent
Bank and Lenders' Consultant at least fifteen (15) Banking Business Days prior
to the Initial Construction Disbursement and shall be held by Agent Bank
throughout the term of the Bank Facilities, and said set of Plans and
Specifications shall govern all matters that may arise with respect to the
construction and completion of the Construction Projects.
Section
9.03. Construction
of the Construction Projects Entirely on the Real Property.
Other
than with respect to the elevated pedestrian bridge over Spring Street to be
constructed as a component of the Parking Garage Project, the Construction
Projects shall be constructed entirely on the Real Property and shall not
encroach upon or overhang any real property, easement (other than Permitted
Encumbrances) or restriction rights owned by any other person or entity unless
such other person or entity has consented or waived such encroachment to the
reasonable satisfaction of Agent Bank and Requisite Lenders.
Section
9.04. List
and Assignment of Major Subcontracts.
a. Borrower
shall furnish to Agent Bank from time to time (but in no event more often than
once monthly) during the Construction Period, within a reasonable time after
written request by Agent Bank, in a form reasonably acceptable to Agent Bank,
a
then current correct list and copy of all material contracts, subcontracts
and
material suppliers (that have not, as of such date been previously delivered
to
Agent Bank), including, without limitation, all Major Subcontracts executed
by
Borrower and/or either General Contractor in connection with the Construction
Projects. Xxxxxxxx agrees that Agent Bank or Xxxxxxx' Consultant may contact
any
such contractor, subcontractor or material supplier to verify any facts
disclosed in the lists.
96
b. Concurrently
with the execution of each Major Subcontract requiring payment thereunder in
excess of Five Million Dollars ($5,000,000.00) in the aggregate (each
individually an "Assigned Major Subcontract" and collectively the "Assigned
Major Subcontracts"), Borrower shall cause such Assigned Major Subcontract
to be
assigned to Agent Bank on behalf of Lenders as additional security for the
Bank
Facilities and the Subcontractor party thereto to consent to such assignment,
each in substantially the form of the Assignment of Casino General Contractor's
Agreement and Casino General Contractor's Consent, or as otherwise reasonably
required by Agent Bank.
Section
9.05. Construction
Projects Sign.
During
the construction of the Construction Projects, Agent Bank may erect a sign
at
the Construction Projects. The size, design, wording and location of such a
sign
shall be subject to Agent Bank's approval. The sign may be erected as soon
as
practical following the Agent Bank's request.
Section
9.06. Inspection
of Construction Progress and Lenders' Consultant.
Designated representatives of Agent Bank, Lenders and Xxxxxxx' Consultant,
shall, at all times during the Construction Period, have the right of reasonable
entry and free access to the Construction Projects and the Real Property and
the
right to inspect all work done, labor performed and materials furnished in
connection with the Construction Projects and the right of reasonable inspection
to inspect all books, contracts and records of Borrower relating to the
Construction Projects. In performing such inspection, Agent Bank, Lenders and
Xxxxxxx' Consultant shall cooperate with Borrower in making suitable
arrangements to minimize disruption of the construction work, and pursuant
to
Borrower's insurance policies and safety and security requirements.
Section
9.07. Advance
of Construction Disbursements.
The
Plans and Specifications, Construction Documentation, Construction Budgets
and
Financial Requirement Analysis shall be reviewed and approved by Agent Bank
as
provided herein. Subject to the requirements of Colorado Revised Statutes
Section 00-00-000, Construction Disburse-ments shall be made to Borrower in
accordance with the Construction Budgets for work performed or materials
supplied to the Construction Projects or suitably stored in bonded warehouses
located in the Denver metro area and in Xxxxxx County, Colorado. Construction
Disbursements for Soft Costs and Hard Costs shall be disbursed in no event
more
than once a month in anticipation of the completion of the Construction Projects
by the end of the Construction Period. For each Construction Disbursement,
Borrower shall submit: (a) a Construction Disbursement Request, to Agent
Bank, Lenders' Consultant and each of the Lenders with the copy to Agent Bank
and Lenders' Consultant accompanied by invoices, statements and other items
relating to such Construction Disbursement Request totaling the amount for
which
each Construction Disbursement is requested, and (b) an updated
97
Xxxxxx's
Disbursement Budget, together with a line item reconciliation of each of
the
Construction Budgets setting forth for each line item the amount paid to
date,
the amounts due and owing but not yet paid by Borrower and budgeted amounts
which have not been paid and are not due and owing. Lenders shall disburse
such
funds monthly in payment of those portions of the Construction Disbursement
Requests which are approved by Agent Bank in a timely manner, but in no event
later than ten (10) Banking Business Days following the date Agent Bank receives
such Construction Disbursement Request in accordance with the requirements
of
Article IX. If the tenth (10th) Banking Business Day following Agent Bank's
receipt of a proper Construction Disbursement Request is not a Banking Business
Day, the Funding Date for such Construction Disbursement shall be the next
Banking Business Day.
Section
9.08. Restriction
on Construction Disbursements.
No
Construction Disbursements may be used by Borrower for the payment of any costs,
expenses or other items which are not set forth on the Construction
Budgets.
Section
9.09. Construction
Disbursement Requests and Lien Releases.
Each
Construction Disbursement Request shall be certified by the Borrower, the
Architect (with respect to items for disbursement to a General Contractor),
and
the applicable General Contractor (with respect to items under the applicable
General Contractor's Agreement) prior to submission to Agent Bank and Lenders'
Consultant. Each Construction Disbursement Request shall be further supported
by
invoices, statements and other items required under the Disbursement Plan and
other forms reasonably requested by Agent Bank (AIA Forms G702 or forms
substan-tially similar thereto if first approved by Agent Bank). Each
subcontractor, material and labor supplier for whose labor or work of
improve-ment such Construction Disbursement is made, together with the
applicable General Contractor, shall, prior to the Construction Disbursement
next requested, execute and deliver labor and/or materialmen mechanics lien
releases in favor of Borrower, Agent Bank and Lenders releasing all lien rights
and claims as of the date of such prior Construction Disbursement to the extent
of payment received.
Section
9.10. A
Construction Disbursement Does Not Mean Approval of Work or
Materials.
Each
Construction Disbursement Request shall be subject to the approval of Agent
Bank
but the making of any Construction Dis-xxxxx-ment or part thereof shall not
constitute an approval or acceptance of the work or material, nor be binding
upon Agent Bank and Lenders, except to the extent that the facts actually are
as
so represented when so approved, nor shall such approval give rise to any
liability or responsibility related to:
(i)
the
quality of the work, the quantity of the work, the rate or progress in
completion of the work, or the sufficiency of materials or labor being supplied
in connection therewith; and
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(ii)
any
errors, omissions, inconsistencies or other defects of any nature in the Plans
and Specifications. Any inspection of the work that Agent Bank, Lenders and
Xxxxxxx' Consultant may choose to make, whether through any consulting engineer,
agent or employee or officer, during the progress of the work shall be solely
for Agent Bank's and Xxxxxxx' information and under no circumstances will any
such inspection be deemed to have been made for the purpose of supervising
or
superintending the work, or for the information or protection of any right
or
interest of any Persons or entities other than Agent Bank and
Lenders.
Section
9.11. Method
of Disbursement.
All
Construction Disburse-ments shall be payable to Borrower or in the sole and
absolute discretion of Agent Bank, upon the occurrence of any Default or as
may
be otherwise required by Colorado Revised Statutes Section 00-00-000,
jointly to Borrower and the applicable General Contractor or other Person to
whom payment is due. However, in no event shall Banks be liable for any liens
or
encumbrances which may be filed against the Real Property, and Xxxxxxxx agrees
to remove any liens or encumbrances filed against the Real Property in
accordance with Section 5.03.
Section
9.12. Changes
in the Construction Budgets and Work to be Performed Under the Plans and
Specifications.
a. The
Lender's Disbursement Budget shall be a line item construction budget for the
Construction Projects (inclusive of all items shown on the General Contractor
Budgets and the Borrower Construction Budget), which budget shall include a
contingency reserve ("Contingency Reserve") as of the Initial Construction
Disbursement Date in the minimum amount of One Million Three Hundred Ninety-Two
Thousand Three Hundred Forty-One Dollars ($1,392,341.00), subject to a budgetary
set aside in the amount of a letter of credit anticipated to be issued under
the
L/C Facility in favor of the City of Central in the amount of Eight Hundred
Thirty-Two Thousand Five Hundred Dollars ($832,500.00). Borrower may make usual
and ordinary changes in the work to be performed under the Plans and
Specifications during the Construction Period provided Borrower shall not
approve any single change order to either of the General Contractor Agreements
or to any Major Subcontract exceeding the amount of One Hundred Seventy-Five
Thousand Dollars ($175,000.00) without the prior written consent of Agent Bank.
All increases to a line item amount as shown on the Lender's Disbursement Budget
shall be deducted from the Contingency Reserve. Any decreases to a line item
amount as shown on the Lender's Disbursement Budget shall be added to the
Contingency Reserve. Borrower shall be entitled to utilize savings in any
completed line item by reallocating such savings to the Contingency Reserve
which shall be reported monthly on a Contingency Transaction Ledger to be
prepared in connection with the Construction Projects. In this regard, Borrower
shall prepare a "Contingency Transaction Ledger" each month which shall detail
increases and
99
decreases
to budget line items and the Contingency Reserve as shown on the Lender's
Disbursement Budget. All change orders to the General Contractor Agreements
or
to any Major Subcontract and changes to budget line items and the Contingency
Reserve shall be detailed on the Contingency Transaction Ledger and Borrower
shall further provide Agent Bank with copies of all change orders for the
portions of the Construction Projects to which such Construction Disbursement
relates.
b. When
the
aggregate of all change orders to the General Contractor Agreements or to any
Major Subcontract and changes to budget line items in connection with the
Construction Projects result in a net decrease to the Contingency Reserve in
the
amount of: (i) fifty percent or more of the amount of the Contingency Reserve
as
set forth in the Financial Requirement Analysis at commencement of construction
of the Construction Projects, Borrower shall not approve any further change
orders to the General Contractor Agreements or any Major Subcontract or any
further changes to budget line items in excess of Thirty-Five Thousand Dollars
($35,000.00) for any single change order or line item change without the prior
written consent of Agent Bank, and (ii) ninety percent (90%) or more of the
amount of the Contingency Reserve as set forth in the Financial Requirement
Analysis at commencement of construction of the Construction Projects, Borrower
shall not approve any further change orders to the General Contractor Agreements
or any Major Subcontract or any further changes to budget line items, regardless
of amount, without the prior written consent of Agent Bank and all additional
costs shall be first approved in writing by Agent Bank.
c. Further,
all re-allocations of line items on the Lender's Disbursement Budget larger
than
the greater of ten percent (10%) of any budgeted line item shall be first
consented to by Agent Bank.
d. Notwithstanding
the foregoing, no structural changes to the Structural Plans and Specifications
(other than minor changes not inconsistent with the Plans and Specifications)
or
reduction in the amount of area shown in the Plans and Specifications for gaming
activities shall be made without the prior written consent of Agent
Bank.
e. Subject
to the provisions set forth hereinabove, within the foregoing limitations,
the
amounts allocated on the Lender's Disbursement Budget for Contingency Reserve
may be allocated amongst the other line item categories at the discretion of
Borrower.
Section
9.13. Conditions
Precedent to Construction Disbursement.
No
Construction Disbursement shall be made to Borrower with respect to the
Construction Projects until each of the following conditions have occurred
or
otherwise been satisfied:
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a. Agent
Bank shall have completed a Construction Cost Analysis as of the applicable
Funding Date and have reviewed and approved as adequate the Plans and
Specifications and all engineering reports and any subsequent change orders
to
the General Contractor Agreements or to any Major Subcontract or modification
to
the Plans and Specifications, Financial Requirement Analysis and the
Construction Budgets, each review of which shall be completed on or before
ten
(10) Banking Business Days after receipt of such Plans and Specifications and/or
engineering reports or modifications thereof, or on or before five (5) Banking
Business Days with respect to change orders to the General Contractor Agreements
or any Major Subcontract which require approval under
Section 9.12(b);
b. Borrower
shall have actually paid for, other than the work of improvement for which
the
Construction Disbursement Request relates, all of the costs of the Construction
Projects as set forth on the itemized Lender's Disbursement Budget (other than
such costs incurred as: (i) have not been billed or invoiced to Borrower,
or (ii) for which Borrower has received such billing or invoice within fifteen
(15) days of such Construction Disbursement Request, or (iii) Borrower disputes
or contests such costs in good faith) for work completed on the Construction
Projects to the date of commencement of the period covered by such Construction
Disbursement Request, less the Retainage required hereby;
c. Borrower
shall have certified to Agent Bank that to the date of such Construction
Disbursement Request the Construction Projects have been constructed in
substantial compliance with the approved Plans and Specifications and any change
orders theretofore issued and in substantial compliance with all necessary
Governmental Authorities, ordinances and regulations;
d. Borrower
shall have certified to Agent Bank, to the best of its knowledge, that the
Construction Projects can be completed in substantial compliance with the Plans
and Specifications and the Construction Budgets for an aggregate amount of
Construction Completion Costs equal to or less than then remaining undisbursed
balance of the C/T Loan;
e. No
Construction Disbursement shall be made to Borrower if, in the opinion of Agent
Bank, the value of the construction in place on the site and materials delivered
and suitably stored on site or in a warehouse in a manner satisfactory to Agent
Bank is less than the total of all costs disbursed in con-nection with the
construction of the Construction Projects. However, Construction Disbursements
shall resume when said value exceeds the total of all costs
disbursed;
f. If
at any
time Agent Bank determines as a result of a Construction Cost Analysis that
as
of the date of such determination the aggregate amount of Construction
Completion Costs exceeds the then remaining undisbursed
101
balance
of the C/T Loan (the amount of such excess, as the same may exist at any
time or
from time to time, being herein referred to as a "Construction Overage"),
Borrower shall have ten (10) days from written notice thereof from Agent
Bank in
which to: (i) increase the Available Borrowings by reducing the Funded RLC
Outstandings by the amount of such Construction Overage, (ii) deposit in an
interest bearing account with Agent Bank, Cash in the amount of such
Construction Overage, which Cash shall be disbursed by Agent Bank for the
payment of such Construction Overages prior to the making of any further
Construction Disbursements, or (iii) make alternative arrangements
satisfactory to Agent Bank for the payment of Borrower Construction Expenditures
in the amount of such Construction Overage. In the event of (ii) above, Borrower
shall have the right to select the type of interest bearing account so as
to
maximize the interest to be earned which shall accrue to the benefit of
Borrower. In the event of a Construction Overage, all Construction Disbursements
for the Construction Projects shall cease until Borrower shall have complied
with the requirements set forth in Subsections 9.13(f)(i), (ii) or (iii)
hereinabove; and
g. Agent
Bank shall have approved each Construction Disbursement Request and/or payments
made by Borrower for items as shown on the Lender's Disbursement
Budget.
By
Borrower requesting Construction Disbursements under this Article IX, Borrower
shall be deemed to have reaffirmed all representations and warranties contained
in Article IV (other than representations and warranties which expressly speak
only as of a different date which shall be true and correct as of such date)
and
confirmed that Borrower is in full compliance with each covenant contained
in
Article V concurrently with the making of each Construction Disbursement
Request, except to the extent that such representations and warranties are
not
true and correct as a result of a change which is permitted by this Credit
Agreement or by any other Loan Document, or which is otherwise consented to
by
Requisite Lenders.
Section
9.14. No
Obligation to See to Proper Application of Construction
Disbursements.
Nothing
contained herein or in any other documents and agreements contemplated hereby
or
executed approximately simultaneously herewith shall impose upon Banks any
obligation to see to the proper application of any Construction Disburse-ments
by Borrower, the Architect, the General Contractors or Subcontractors, and
nothing shall prevent Lenders, at their option, from deducting from any
Construction Disbursements any sums owed to Banks by Borrower for unpaid
interest or principal, or for sums paid and expended by Lenders for taxes,
assessments, insurance and other like payments (after the expiration of any
applicable notice and cure period), pursuant to their rights under the terms
of
this Credit Agreement, the Notes or the Deed of Trust.
102
Section
9.15. No
Construction Disbursements Required in Event of Default.
Lenders
shall not be required to make any Construction Disbursements hereunder if,
at
the time when a Construction Disbursement Request is made, there exists an
Event
of Default hereunder or under any of the other Loan Documents; provided,
however, Lenders may, in their sole discretion upon the approval of Requisite
Lenders, make Construction Disbursements notwithstanding the existence of an
Event of Default and any Construction Disbursements so made shall be deemed
to
have been made pursuant to this Credit Agreement.
Section
9.16. No
Construction Disbursements Required if Cloud on Title Exists.
Lenders
shall not be obligated to make any Construction Disburse-ments while there
is
any lien or encumbrance upon the Real Property, other than the Permitted
Encumbrances or as provided in Sections 5.03 and 5.10 hereof, which, in the
reasonable opinion of counsel for Lenders, may invalidate or have priority
over
the encumbrance, liens and security interests granted pursu-ant to the Deed
of
Trust.
Section
9.17. Indorsement
from Title Insurance Company.
Title
Insurance Company shall update the Title Policy issued as of the Closing Date
in
favor of Lenders promptly, and in any event within thirty (30) calendar days,
following each Construction Disbursement at Borrower's expense insuring Agent
Bank on behalf of Lenders against any further liens, encumbrances or exceptions
to the state of title to the Real Property as of the date of each advance.
Each
such update shall be in the form of a written 122 Indorsement (except for the
final indorsements as provided in Section 9.21) to the Title Policy
together with any other indorsements which Lenders reasonably require.
Additionally, Borrower shall cause Title Insurance Company to issue its 102.5
Foundation Indorsement to the Title Insurance Policy promptly, and in any event
within thirty (30) calendar days, following completion of the foundations for
the Construction Projects as set forth in the Plans and Specifications and
Borrower shall deliver or cause to be delivered an "as built" survey of the
Construction Projects prepared by an engineer acceptable to Agent Bank within
ninety (90) days following the Completion Date.
Section
9.18. Ownership
of all Materials Used on the Construction Projects.
All
materials incorporated into the construction of the Construction Projects,
other
than FF&E leased by Borrower in accordance with this Credit Agreement, shall
have been purchased and paid for in a timely manner so that the absolute
ownership thereof shall have vested in Borrower, subject to any Permitted
Encumbrances, and Borrower shall have furnished to Agent Bank, if required
by
Agent Bank, copies of the contracts, bills of sale, lease or other agreements
under which title or pos-session thereto is claimed.
Section
9.19. Accuracy
of Representations and Warranties.
Lenders
shall not be required to make any Construction Disburse-ments unless and until
the
103
representations
and warranties con-tained in Article IV of this Credit Agreement are true
and
correct, except to the extent that such representations and warranties are
not
true and correct as a result of a change which is permitted by this Credit
Agreement or by any other Loan Document, or which is otherwise consented
to by
Requisite Lenders, in all material respects on and as of the date of such
Construction Disbursement, as though made on and as of such date (other than
representations and warranties which expressly speak only as of a different
date
which shall be true and correct as of such date).
Section
9.20. Waiver
of Requirements by Requisite Lenders.
Lenders
reserve the right, in their sole discretion upon the approval of Requisite
Lenders, from time to time to make any Construction Disbursements without regard
to any condition herein. The Lenders further reserve the right to withhold
any
payment of any state-ments or invoices, payment of which is requested, if,
in
the opinion of the Agent Bank, the percentage of completion is less than
indicated by such statement or invoice.
Section
9.21. Disbursement
of Retainage.
Lenders
shall retain (collectively the "Retainage") from the gross amount approved
for
each Construction Disbursement for Hard Costs made from the proceeds of the
C/T
Loan (i) five percent (5%) of the General Contractor’s portion of such
Construction Disbursement, and (ii) ten percent (10%) of the portions of
such Construction Disbursement relating to labor, materials and services
provided by each Subcontractor until fifty percent (50%) of the Hard Cost
component of the Lender's Disbursement Budget has been expended for work
performed and has been verified by Xxxxxxx' Consultant as substantially in
compliance with the Construction Documentation. Thereafter, so long as no Event
of Default shall have occurred and be continuing, no further Retainage shall
be
retained from Construction Disbursements thereafter made unless Agent Bank
is
otherwise instructed by Borrower. Retainage withheld by Xxxxxxx from the
proceeds of the C/T Loan shall not bear interest and shall be deemed not
disbursed under the C/T Loan until released as provided hereinbelow.
Notwithstanding the foregoing, upon the written request of Xxxxxxxx, Xxxxxxx
agree to release all Retainage for construction costs relating to any
subcontractor at such time as the respective work of such subcontractor is
one
hundred percent (100%) complete, verified to be in substantial compliance with
the Construction Documentation by Xxxxxxx' Consultant and upon such additional
conditions and requirements as may be required by Agent Bank, to Agent Bank's
reasonable satisfaction including, without limitation, final lien releases
and
other evidence that such work will be, with the release of such retention,
fully
paid. All remaining funds held for Retainage by Xxxxxxx shall be released (the
"Retainage Release Date") upon the written request of Borrower, at such time
as:
a. The
Completion Date has occurred with only "Punch List" items remaining to be
completed which do not materially impair the ability of Borrower to occupy
and
operate the Construction Projects for their intended purpose, no single item
104
exceeding
a completion cost in excess of Twenty-Five Thousand Dollars ($25,000.00)
and the
aggregate of such "Punch List" items not exceeding Two Hundred Fifty Thousand
Dollars ($250,000.00) in substantial compliance with the Plans and
Specifications and the terms and requirements of all Governmental Authorities,
including, without limitation, substantial compliance with the Americans
with
Disabilities Act, substantial compliance with which shall be certified to
the
best knowledge of the Architect, after due inquiry and
investigation;
b. The
lien
period for the Construction Projects have expired or the liens have been removed
and Title Insurance Company has issued its final 101.6 indorsement to the Title
Insurance Policy showing no liens, claims or encumbrances except those approved
by Agent Bank upon the consent of Requisite Lenders;
c. Each
of
the Construction Projects have been accepted by Borrower as substantially
complete and certified substantially completed and the "Punch List" shall be
prepared by the Architect and the General Contractors, and approved by the
Lenders' Consultant after an inspection which shall be made within ten (10)
days
following the Completion Date;
d. Each
of
the General Contractors have made a satisfactory account that all payments
required under their respective General Contractor Agreements and Borrower
has
made a satisfactory account that all other Hard Costs shown on the Borrower
Construction Budget and all Soft Costs have been paid in full, with the
exception of the unreleased Retainage, including, but not by way of limitation,
all material and labor costs and have delivered copies of all lien releases
to
Agent Bank and have certified that no claims with respect to the Construction
Projects remain outstanding, including any claims which might give rise to
a
lien or liens against the Construction Projects, except for work described
in
the "Punch List" or as to which Borrower is contesting the validity or
amount;
e. The
Occupancy Date shall have occurred and a copy of the temporary or final
certificate of occupancy (if temporary, Xxxxxxxx agrees to promptly deliver
a
copy of the final certificate of occupancy to Agent Bank when received by
Xxxxxxxx) has been issued to Borrower by the appropriate Governmental Authority
and a copy thereof delivered to Agent Bank and Borrower has taken beneficial
occupancy of each of the Construction Projects, including, without limitation,
all public areas which shall be open for the use and occupancy by the public;
and
f. Xxxxxxxx
has delivered an "as-built" survey of the Construction Projects and an
"as-built" set of plans and specifications of the Construction Projects to
Agent
Bank.
105
From
the
amounts released as provided hereinabove, one hundred fifty percent (150%)
of
the Architect and Agent Bank's reasonable estimate of the cost of completing
the
"Punch List" shall be withheld. Such amounts shall be released monthly upon
Construction Disbursement Request submitted by Borrower. Within forty-five
(45)
days following the Retainage Release Date, Borrower shall (i) certify
completion of the "Punch List", and (ii) cause Title Insurance Company to issue
its final 100, 101.2 and 103.1 indorsements to the Title Insurance Policy
showing no Liens, claims or encumbrances on the Real Property except those
approved by Requisite Lenders.
Section
9.22. Construction
Disbursements if a Lender Fails to Provide Funds.
Borrower acknowledges and agrees that each of the Lenders shall only be
responsible for its respective Pro Rata Share of any Construction Disbursement.
In the event any of the Lenders fail to provide its Pro Rata Share of any
Construction Disbursement, then the remaining Lenders' obligations to provide
their respective Pro Rata Share shall not terminate nor shall Borrower's
obligation to comply with the terms of this Credit Agreement and each of the
Loan Documents terminate. If any Lender defaults in providing its Pro Rata
Share
of any Construction Disbursement, then Agent Bank and Borrower shall use their
best efforts to find a replacement lender.
Section
9.23. Possession
and Completion of Construction.
Upon
the occurrence of any Event of Default, Xxxxxxxx agrees, upon the request of
Agent Bank at the direction of Requisite Lenders, to vacate the Construction
Projects and the Real Property and permit Lenders:
a. To
enter
directly, or through a receiver or other designated representative, into
possession of the Construction Projects;
b. To
perform or cause to be performed any and all work and labor necessary, in the
discretion of Agent Bank, to complete the Construction Projects in accordance
with the Plans and Specifications;
c. To
employ
security watchmen to protect the Construction Projects; and
d. To
advance any portion of the C/T Loan not previously advanced (including any
Retainage and any reserved funds) to the extent necessary or desirable, in
the
sole discretion of Agent Bank, to complete construction of the Construction
Projects without substantial departure from the Plans and Specifications, and
if
the completion requires a larger sum than the unadvanced portion of the C/T
Loan, to advance such additional funds, all of which funds so advanced by
Lenders shall be deemed to have been advanced to Borrower and shall be part
of
the Indebtedness evidenced by the C/T Note and secured by the Security
Documentation. For this purpose, Borrower constitute and appoint Agent Bank
the
true and lawful
106
attorney-in-fact
for Xxxxxxxx, with full power of substitution, to complete the construction
of
the Construction Projects in the name of Xxxxxxxx, and hereby empowers Agent
Bank as such attorney to take all actions that Agent Bank considers necessary
or
desirable in connection therewith, including but not limited to the following:
(i) to use any funds of Borrower, including any balance that may be held
in
escrow and any funds that may remain unadvanced under this agreement, for
the
purpose of completing the Construction Projects in substantially the manner
called for by the Plans and Specifications; (ii) to make such additions,
changes and corrections in the Plans and Specifications as Agent Bank may
consider necessary or desirable to complete the Construction Projects in
substantially the manner contemplated by the Plans and Specifications;
(iii) to employ such contractors, subcontractors, agents, engineers,
architects, inspectors, attorneys and other Persons as Agent Bank may consider
necessary or desirable for such purposes; (iv) to pay, settle or compromise
all existing or future bills and claims that are or may be or become Liens
against the Real Property, or may be necessary or desirable for the completion
of the Construction Projects or the clearance of title to the Real Property;
(v)
to execute in the name of Borrower all applications and certificates that
may be
required by any construction contract; and (vi) to do any act with respect
to the construction of the Construction Projects that Borrower could do on
its
own behalf. This power of attorney is a power coupled with an interest and
cannot be revoked by death or otherwise. Such attorney-in-fact shall also
have
power to prosecute and defend all actions or proceedings in connection with
the
construction of the Construction Projects and to take such action and require
such performance as Agent Bank considers necessary.
ARTICLE
X
AGENCY
PROVISIONS
Section
10.01. Appointment.
a. Each
Lender hereby (i) designates and appoints WFB as the Agent Bank of such Lender
under this Credit Agreement and the Loan Documents, (ii) authorizes and
directs Agent Bank to enter into the Loan Documents other than this Credit
Agreement for the benefit of Lenders, and (iii) authorizes Agent Bank to
take such action on its behalf under the provisions of this Credit Agreement
and
the Loan Documents and to exercise such powers as are set forth herein or
therein, together with such other powers as are reasonably incidental thereto.
Agent Xxxx agrees to act as such on the express conditions contained in this
Article X.
b. The
provisions of this Article X are solely for the benefit of Agent Bank and
Lenders, and Borrower shall not have any rights to rely on or enforce any of
the
provisions hereof (other than as set forth in the provisions of
Sections 10.03, 10.09 and 11.10), provided, however, that the foregoing
shall in no way limit Borrower's
107
obligations
under this Article X. In performing its functions and duties under this Credit
Agreement, Agent Bank shall act solely as Agent Bank of Lenders and does
not
assume and shall not be deemed to have assumed any obligation toward or
relationship of agency or trust with or for Borrower or any other
Person.
Section
10.02. Nature
of Duties.
Agent
Bank shall not have any duties or responsibilities except those expressly set
forth in this Credit Agreement or in the Loan Documents. The duties of Agent
Bank shall be administrative in nature. Subject to the provisions of Sections
10.05 and 10.07, Agent Bank shall administer the Bank
Facilities
in the
same manner as it administers its own loans. Promptly following the
effectiveness of this Credit Agreement, Agent Bank shall send to each Lender
a
duplicate executed original, to the extent the same are available in sufficient
numbers, of the Credit Agreement and a copy of each other Loan Document in
favor
of Xxxxxxx and a copy of the filed or recorded Security Documentation, with
the
originals of the latter to be held and retained by Agent Bank for the benefit
of
all Lenders. Agent Bank shall not have by reason of this Credit Agreement a
fiduciary relationship in respect of any Xxxxxx. Nothing in this Credit
Agreement or any of the Loan Documents, expressed or implied, is intended or
shall be construed to impose upon Agent Bank any obligation in respect of this
Credit Agreement or any of the Loan Documents except as expressly set forth
herein or therein. Each Lender shall make its own independent investigation
of
the financial condition and affairs of the Borrower and the Collateral in
connection with the making and the continuance of the Bank
Facilities
hereunder and shall make its own appraisal of the creditworthiness of the
Borrower and the Collateral, and, except as specifically provided herein, Agent
Bank shall not have any duty or responsibility, either initially or on a
continuing basis, to provide any Lender with any credit or other information
with respect thereto, whether coming into its possession before the Closing
Date
or at any time or times thereafter.
Section
10.03. Disbursement
of Borrowings and Construction Disbursements.
a. Not
later
than the next Banking Business Day following receipt of a Notice of Borrowing
or
a Construction Disbursement, Agent Bank shall send a copy thereof by facsimile
to each other Lender and shall otherwise notify each Lender of the proposed
Borrowing or Construction Disbursement and the applicable Funding Date. Each
Lender shall make available to Agent Bank (or the funding bank or entity
designated by Agent Bank), the amount of such Lender's Pro Rata Share of such
Borrowing or Construction Disbursement in immediately available funds not later
than the times designated in Section 10.03(b). Unless Agent Bank shall have
been
notified by any Lender not later than the close of business (San Francisco
time)
on the Banking Business Day immediately preceding the Funding Date in respect
of
any Borrowing or Construction Disbursement that such Lender does not intend
to
make available to Agent Bank such Xxxxxx's Pro Rata Share of such Borrowing
or
Construction Disbursement,
108
Agent
Bank may assume that such Lender shall make such amount available to Agent
Bank.
If any Lender does not notify Agent Bank of its intention not to make available
its Pro Rata Share of such Borrowing or Construction Disbursement as described
above, but does not for any reason make available to Agent Bank such Lender's
Pro Rata Share of such Borrowing or Construction Disbursement, such Lender
shall
pay to Agent Bank forthwith on demand such amount, together with interest
thereon at the Federal Funds Rate. In any case where a Lender does not for
any
reason make available to Agent Bank such Xxxxxx's Pro Rata Share of such
Borrowing or Construction Disbursement, Agent Bank, in its sole discretion,
may,
but shall not be obligated to, fund to Borrower such Xxxxxx's Pro Rata Share
of
such Borrowing or Construction Disbursement. If Agent Bank funds to Borrower
such Xxxxxx's Pro Rata Share of such Borrowing or Construction Disbursement
and
if such Lender subsequently pays to Agent Bank such corresponding amount,
such
amount so paid shall constitute such Lender's Pro Rata Share of such Borrowing
or Construction Disbursement. Nothing in this Section 10.03(a) shall alter
the respective rights and obligations of the parties hereunder in respect
of a
Defaulting Lender or a Non-Pro Rata Borrowing.
b. Requests
by Agent Bank for funding by Xxxxxxx of Borrowings and Construction
Disbursements will be made by facsimile. Each Lender shall make the amount
of
its Pro Rata Share of such Borrowing or Construction Disbursement available
to
Agent Bank in Dollars and in immediately available funds, to such bank and
account, in San Francisco, California as Agent Bank may designate, not later
than 11:00 a.m. (San Francisco time) on the Funding Date designated in the
Notice of Borrowing or a Construction Disbursement Request with respect to
such
Borrowing, but in no event later than one (1) Banking Business Day notice
following Xxxxxx's receipt of the applicable Notice of Borrowing or Construction
Disbursement.
c. Nothing
in this Section 10.03 shall be deemed to relieve any Lender of its obligation
hereunder to make its Pro Rata Share of Borrowings or Construction Disbursements
on any Funding Date, nor shall any Lender be responsible for the failure of
any
other Lender to perform its obligations to advance its Pro Rata Share of any
Borrowing or Construction Disbursement hereunder, and the Pro Rata Share of
any
Lender shall not be increased or decreased as a result of the failure by any
other Lender to perform its obligation to advance its Pro Rata Share of any
Borrowing.
Section
10.04. Distribution
and Apportionment of Payments.
a. Subject
to Section 10.04(b), payments actually received by Agent Bank for the account
of
Lenders shall be paid to them promptly after receipt thereof by Agent Bank,
but
in any event within one (1) Banking Business Day, provided that Agent Bank
shall
pay to Lenders interest thereon, at the Federal Funds Rate from the Banking
Business Day following receipt of such funds by Agent Bank until such
109
funds
are
paid in immediately available funds to Lenders. Subject to Section 10.04(b),
all
payments of principal and interest in respect of Funded Outstandings, all
payments of the Nonusage fees described in this Credit Agreement, and all
payments in respect of any other Obligations shall be allocated among such
other
Lenders as are entitled thereto, in proportion to their respective Pro Rata
Shares or otherwise as provided herein. Agent Bank shall promptly distribute,
but in any event within one (1) Banking Business Day, to each Lender at its
primary address set forth on the appropriate signature page hereof or on
the
applicable Assignment and Assumption Agreement, or at such other address
as a
Lender may request in writing, such funds as it may be entitled to receive,
provided that Agent Bank shall in any event not be bound to inquire into
or
determine the validity, scope or priority of any interest or entitlement
of any
Lender and may suspend all payments and seek appropriate relief (including,
without limitation, instructions from the Requisite Lenders or all Lenders,
as
applicable, or an action in the nature of interpleader) in the event of any
doubt or dispute as to any apportionment or distribution contemplated hereby.
The order of priority herein is set forth solely to determine the rights
and
priorities of Lenders as among themselves and may at any time or from time
to
time be changed by Lenders as they may elect, in writing in accordance with
Section 11.01, without necessity of notice to or consent of or approval by
Borrower or any other Person. All payments or other sums received by Agent
Bank
for the account of Lenders (including, without limitation, principal and
interest payments, the proceeds of any and all insurance maintained with
respect
to any of the Collateral, and any and all condemnation proceeds with respect
to
any of the Collateral) shall not constitute property or assets of the Agent
Bank
and shall be held by Agent Bank, solely in its capacity as administrative
and
collateral agent for itself and the other Lenders, subject to the Loan
Documents.
b. Notwithstanding
any provision hereof to the contrary, until such time as a Defaulting Lender
has
funded its Pro Rata Share of a Borrowing or Construction Disbursement which
was
previously a Non Pro Rata Borrowing, or all other Lenders have received payment
in full (whether by repayment or prepayment) of the principal due in respect
of
such Non Pro Rata Borrowing or Construction Disbursement, all principal sums
owing to such Defaulting Lender hereunder shall be subordinated in right of
payment to the prior payment in full of all principal, in respect of all Non
Pro
Rata Borrowing or Construction Disbursement in which the Defaulting Lender
has
not funded its Pro Rata Share. This provision governs only the relationship
among Agent Bank, each Defaulting Lender, and the other Lenders; nothing
hereunder shall limit the obligation of Borrower to repay all Borrowings and
Construction Disbursements in accordance with the terms of this Credit
Agreement. The provisions of this section shall apply and be effective
regardless of whether an Event of Default occurs and is then continuing, and
notwithstanding (i) any other provision of this Credit Agreement to the
contrary, (ii) any instruction of Borrower as to its desired application of
payments or (iii) the suspension of such Defaulting Lender's right to vote
on
matters which are subject to
110
the
consent or approval of the Requisite Lenders or all Lenders. No Nonusage
Fees
shall accrue in favor of, or be payable to, such Defaulting Lender from the
date
of any failure to fund Borrowings or Construction Disbursements or reimburse
Agent Bank for any Liabilities and Costs as herein provided until such failure
has been cured, and Agent Bank shall be entitled to (A) withhold or setoff,
and
to apply to the payment of the defaulted amount and any related interest,
any
amounts to be paid to such Defaulting Lender under this Credit Agreement,
and
(B) bring an action or suit against such Defaulting Lender in a court of
competent jurisdiction to recover the defaulted amount and any related interest.
In addition, the Defaulting Lender shall indemnify, defend and hold Agent
Bank
and each of the other Lenders harmless from and against any and all Liabilities
and Costs, plus interest thereon at the Default Rate, which they may sustain
or
incur by reason of or as a direct consequence of the Defaulting Lender's
failure
or refusal to abide by its obligations under this Credit
Agreement.
Section
10.05. Rights,
Exculpation, Etc.
Neither
Agent Bank, any Affiliate of Agent Bank, nor any of their respective officers,
directors, employees, agents, attorneys or consultants, shall be liable to
any
Lender for any action taken or omitted by them hereunder or under any of the
Loan Documents, or in connection herewith or therewith, except that Agent Bank
shall be liable for its gross negligence or willful misconduct. In the absence
of gross negligence or willful misconduct, Agent Bank shall not be liable for
any apportionment or distribution of payments made by it in good faith pursuant
to Section 10.04, and if any such apportionment or distribution is
subsequently determined to have been made in error the sole recourse of any
Person to whom payment was due, but not made, shall be to recover from the
recipients of such payments any payment in excess of the amount to which they
are determined to have been entitled. Agent Bank shall not be responsible to
any
Lender for any recitals, statements, representations or warranties herein or
for
the execution, effectiveness, genuineness, validity, enforceability,
collectibility or sufficiency of this Credit Agreement, any of the Security
Documentation or any of the other Loan Documents, or any of the transactions
contemplated hereby and thereby; or for the financial condition of the Borrower
or any of it Affiliates. Agent Bank shall not be required to make any inquiry
concerning either the performance or observance of any of the terms, provisions
or conditions of this Credit Agreement or any of the Loan Documents or the
financial condition of the Borrower or any of its Affiliates, or the existence
or possible existence of any Default or Event of Default.
Section
10.06. Reliance.
Agent
Bank shall be entitled to rely upon any written notices, statements,
certificates, orders or other documents, telecopies or any telephone message
believed by it in good faith to be genuine and correct and to have been signed,
sent or made by the proper Person, and with respect to all matters pertaining
to
this Credit Agreement or any of the Loan Documents and its duties
111
hereunder
or thereunder, upon advice of legal counsel (including counsel for Xxxxxxxx),
independent public accountant and other experts selected by
it.
Section
10.07. Indemnification.
To the
extent that Agent Bank is not reimbursed and indemnified by Xxxxxxxx, Xxxxxxx
will reimburse, within ten (10) Banking Business Days after notice from Agent
Bank, and indemnify and defend Agent Bank for and against any and all
Liabilities and Costs which may be imposed on, incurred by, or asserted against
it in any way relating to or arising out of this Credit Agreement, the Security
Documentation or any of the other Loan Documents or any action taken or omitted
by Agent Bank or under this Credit Agreement, the Security Documentation or
any
of the other Loan Documents, in proportion to each Lender's Pro Rata Share;
provided that no Lender shall be liable for any portion of such Liabilities
and
Costs resulting from Agent Bank's gross negligence or willful misconduct. The
obligations of Lenders under this Section 10.07 shall survive the payment in
full of all Obligations and the termination of this Credit Agreement. In the
event that after payment and distribution of any amount by Agent Bank to
Lenders, any Lender or third party, including Borrower, any creditor of Borrower
or a trustee in bankruptcy, recovers from Agent Bank any amount found to have
been wrongfully paid to Agent Bank or disbursed by Agent Bank to Lenders, then
Lenders, in proportion to their respective Pro Rata Shares, shall reimburse
Agent Bank for all such amounts. Notwithstanding the foregoing, Agent Bank
shall
not be obligated to advance Liabilities and Costs and may require the deposit
by
each Lender of its Pro Rata Share of any material Liabilities and Costs
anticipated by Agent Bank before they are incurred or made payable.
Section
10.08. Agent
Individually.
With
respect to its Pro Rata Share of the Bank
Facilities
hereunder and the Borrowings and Construction Disbursements made by it, Agent
Bank shall have and may exercise the same rights and powers hereunder and is
subject to the same obligations and liabilities as and to the extent set forth
herein for any other Lender. The terms "Lenders", "Requisite Lenders" or any
similar terms may include Agent Bank in its individual capacity as a Lender
or
one of the Requisite Lenders, but Requisite Lenders shall not include Agent
Bank
solely in its capacity as Agent Bank and need not necessarily include Agent
Bank
in its capacity as a Lender. Agent Bank and any Lender and its Affiliates may
accept deposits from, lend money to, and generally engage in any kind of
banking, trust or other business with Borrower or any of its Affiliates as
if it
were not acting as Agent Bank or Lender pursuant hereto.
Section
10.09. Successor
Agent Bank; Resignation of Agent Bank; Removal of Agent Bank.
a. Agent
Bank may resign from the performance of all its functions and duties hereunder
at any time by giving at least thirty (30) Banking Business Days' prior written
notice to Xxxxxxx and Borrower, and shall automatically
112
cease
to
be Agent Bank hereunder in the event a petition in bankruptcy shall be filed
by
or against Agent Bank or the Federal Deposit Insurance Corporation or any
other
Governmental Authority shall assume control of Agent Bank or Agent Bank's
interests under the Bank Facilities. Further, Lenders (other than Agent Bank)
may unanimously remove Agent Bank at any time upon the occurrence of gross
negligence or wilful misconduct by Agent Bank by giving at least thirty (30)
Banking Business Days' prior written notice to Agent Bank, Borrower and all
other Lenders. Such resignation or removal shall take effect upon the acceptance
by a successor Agent Bank of appointment pursuant to clause (b) or
(c).
b. Upon
any
such notice of resignation by or removal of Agent Bank, the Requisite Lenders
shall appoint a successor Agent Bank which appointment shall be subject to
Xxxxxxxx's consent (other than upon the occurrence and during the continuance
of
any Event of Default), which shall not be unreasonably withheld or delayed.
Any
successor Agent Bank must be a bank (i) the senior debt obligations of
which (or such bank's parent's senior unsecured debt obligations) are rated
not
less than Baa-2 by Xxxxx'x Investors Services, Inc. or a comparable rating
by a
rating agency acceptable to the Requisite Lenders and (ii) which has total
assets in excess of Ten Billion Dollars ($10,000,000,000.00).
c. If
a
successor Agent Bank shall not have been so appointed within said thirty (30)
Banking Business Day period, the retiring or removed Agent Bank, with the
consent of Borrower (other than upon the occurrence and during the continuance
of any Event of Default) (which may not be unreasonably withheld or delayed),
shall then appoint a successor Agent Bank who shall meet the requirements
described in subsection (b) above and who shall serve as Agent Bank until such
time, if any, as the Requisite Lenders, with the consent of Xxxxxxxx (other
than
upon the occurrence and during the continuance of any Event of Default), appoint
a successor Agent Bank as provided above.
Section
10.10. Consent
and Approvals.
a. Each
consent, approval, amendment, modification or waiver specifically enumerated
in
this Credit Agreement as conditioned upon the prior consent or approval of
the
Requisite Lenders shall be evidenced by a written consent or approval delivered
to Agent Bank.
b. Each
consent, approval, amendment, modification or waiver specifically enumerated
in
Section 11.01 (i) through (iii) shall
require the consent of all Lenders.
c. In
addition to the required consents or approvals, Agent Bank may at any time
request instructions from the Requisite Lenders with respect to
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any
actions or approvals which, by the terms of this Credit Agreement or of any
of
the Loan Documents, Agent Bank is permitted or required to take or to grant
without instructions from any Lenders, and if such instructions are promptly
requested, Agent Bank shall be absolutely entitled to refrain from taking
any
action or to withhold any approval and shall not be under any liability
whatsoever to any Person for refraining from taking any action or withholding
any approval under any of the Loan Documents until it shall have received
such
instructions from the Requisite Lenders. Without limiting the foregoing,
no
Lender shall have any right of action whatsoever against Agent Bank as a
result
of Agent Bank acting or refraining from acting under this Credit Agreement,
the
Security Documentation or any of the other Loan Documents in accordance with
the
instructions of the Requisite Lenders or, where applicable, all Lenders.
Agent
Bank shall promptly notify each Lender at any time that the Requisite Lenders
have instructed Agent Bank to act or refrain from acting pursuant
hereto.
d. Each
Lender agrees that any action taken by Agent Bank at the direction or with
the
consent of the Requisite Lenders in accordance with the provisions of this
Credit Agreement or any Loan Document, and the exercise by Agent Bank at the
direction or with the consent of the Requisite Lenders of the powers set forth
herein or therein, together with such other powers as are reasonably incidental
thereto, shall be authorized and binding upon all Lenders, except for actions
specifically requiring the approval of all Lenders. All communications from
Agent Bank to Lenders requesting Lenders' determination, consent, approval
or
disapproval (i) shall be given in the form of a written notice to each Lender,
including notice of the Lender Reply Period described immediately hereinbelow,
(ii) shall be accompanied by a description of the matter or thing as to
which such determination, approval, consent or disapproval is requested, or
shall advise each Lender where such matter or thing may be inspected, or shall
otherwise describe the matter or issue to be resolved, (iii) shall include,
if reasonably requested by a Lender and to the extent not previously provided
to
such Lender, written materials and a summary of all oral information provided
to
Agent Bank by Borrower in respect of the matter or issue to be resolved, and
(iv) shall include Agent Bank's recommended course of action or
determination in respect thereof. Each Lender shall reply promptly, but in
any
event within the number of Banking Business Days designated by Agent Bank in
such request, which shall not be less than three (3) Banking Business Days
(the
"Lender Reply Period"). Unless a Lender shall give written notice to Agent
Bank
that it objects to the recommendation or determination of Agent Bank (together
with a written explanation of the reasons behind such objection) within the
Lender Reply Period, such Lender shall be deemed to have approved of or
consented to such recommendation or determination. With respect to decisions
requiring the approval of the Requisite Lenders or all Lenders, Agent Bank
shall
submit its recommendation or determination for approval of or consent to such
recommendation or determination to all Lenders and upon receiving the required
approval or consent shall follow the course of action or determination
recommended to
114
Lenders
by Agent Bank or such other course of action recommended by the Requisite
Lenders, and each non-responding Lender shall be deemed to have concurred
with
such recommended course of action.
Section
10.11. Agency
Provisions Relating to Collateral.
a. Agent
Bank is hereby authorized on behalf of all Lenders, without the necessity of
any
notice to or further consent from any Lender, from time to time prior to an
Event of Default, to take any action with respect to any Collateral or Loan
Document which may be necessary to perfect and maintain Liens of the Security
Documentation upon the Collateral granted pursuant to the Loan Documents. Agent
Bank may make, and shall be reimbursed by Xxxxxxx (in accordance with their
Pro
Rata Shares), to the extent not reimbursed by Xxxxxxxx, for, Protective
Advance(s) during any one (1) calendar year with respect to the Collateral
up to
the sum of (i) amounts expended to pay real estate taxes, assessments and
governmental charges or levies imposed upon such Collateral, (ii) amounts
expended to pay insurance premiums for policies of insurance related to such
Collateral, and (iii) One Hundred Thousand Dollars ($100,000.00).
Protective Advances in excess of said sum during any calendar year for any
Collateral shall require the consent of the Requisite Lenders. In addition,
Agent Bank is hereby authorized on behalf of all Lenders, without the necessity
of any notice to or further consent from any Lender, to waive the imposition
of
the late fees provided for in Section 2.14(a) up to a maximum of two (2) times
per calendar year, including any extensions.
b. Lenders
hereby irrevocably authorize Agent Bank, at its option and in its discretion,
to
release any Security Documentation granted to or held by Agent Bank upon any
Collateral (i) upon Bank Facilities Termination and repayment and
satisfaction of all Borrowings, Construction Disbursements, and all other
Obligations and the termination of this Credit Agreement, or (ii) if
approved, authorized or ratified in writing by Agent Bank at the direction
of
all Lenders. Agent Bank shall not be required to execute any document to
evidence the release of the Security Documentation granted to Agent Bank for
the
benefit of Lenders herein or pursuant hereto upon any Collateral if, in Agent
Bank's opinion, such document would expose Agent Bank to liability or create
any
obligation or entail any consequence other than the release of such Security
Documentation without recourse or warranty, and such release shall not in any
manner discharge, affect or impair the Obligations or any Security Documentation
upon (or obligations of Borrower in respect of) any property which shall
continue to constitute part of the Collateral.
c. Except
as
provided in this Credit Agreement, Agent Bank shall have no obligation
whatsoever to any Lender or to any other Person to assure that the Collateral
exists or is owned by Borrower or is cared for, protected or insured or has
been
encumbered or that the Security Documentation granted to Agent Bank herein
115
or
in any
of the other Loan Documents or pursuant hereto or thereto have been properly
or
sufficiently or lawfully created, perfected, protected or enforced or are
entitled to any particular priority.
d. Should
Agent Bank (i) employ counsel for advice or other representation (whether or
not
any suit has been or shall be filed) with respect to any Collateral or any
part
thereof, or any of the Loan Documents, or the attempt to enforce any security
interest or Security Documentation on any of the Collateral, or (ii) commence
any proceeding or in any way seek to enforce its rights or remedies under the
Loan Documents, irrespective of whether as a result thereof Agent Bank shall
acquire title to any Collateral, either through foreclosure, deed in lieu of
foreclosure or otherwise, each Lender, upon demand therefor from time to time,
shall contribute its share (based on its Pro Rata Share) of the reasonable
costs
and/or expenses of any such advice or other representation, enforcement or
acquisition, including, but not limited to, fees of receivers or trustees,
court
costs, title company charges, filing and recording fees, appraisers' fees and
fees and expenses of attorneys to the extent not otherwise reimbursed by
Xxxxxxxx; provided that Agent Bank shall not be entitled to reimbursement of
its
attorneys' fees and expenses incurred in connection with the resolution of
disputes between Agent Bank and other Lenders unless Agent Bank shall be the
prevailing party in any such dispute. Any loss of principal and interest
resulting from any Event of Default shall be shared by Xxxxxxx in accordance
with their respective Pro Rata Shares. It is understood and agreed that in
the
event Agent Bank determines it is necessary to engage counsel for Xxxxxxx from
and after the occurrence of an Event of Default, said counsel shall be selected
by Agent Bank.
e. In
the
event that all or any portion of the Collateral is acquired by Agent Bank as
the
result of a foreclosure or the acceptance of a deed or assignment in lieu of
foreclosure, or is retained in satisfaction of all or any part of Borrower's
obligations, title to any such Collateral or any portion thereof shall be held
in the name of Agent Bank or a nominee or subsidiary of Agent Bank, as agent,
for the ratable benefit of Agent Bank and Lenders. Agent Bank shall prepare
a
recommended course of action for such Collateral (the "Post-Foreclosure Plan"),
which shall be subject to the approval of the Requisite Lenders. Unless a Lender
shall give written notice to Agent Bank that it objects to the recommended
Post-Foreclosure Plan or any alternative Post-Foreclosure Plan as set forth
below, within the Lender Reply Period, such Lender shall be deemed to have
approved such Post-Foreclosure Plan. In the event that the Requisite Lenders
do
not approve such Post-Foreclosure Plan, any Lender shall be permitted to submit
an alternative Post-Foreclosure Plan to Agent Bank, and Agent Bank shall submit
any and all such additional Post-Foreclosure Plans to the Lenders for evaluation
and the approval of the Requisite Lenders. In accordance with the approved
Post-Foreclosure Plan, Agent Bank shall manage, operate, repair, administer,
complete, construct, restore or otherwise deal with the Collateral acquired
and
administer all
116
transactions
relating thereto, including, without limitation, employing a management agent,
leasing agent and other agents, contractors and employees, including agents
of
the sale of such Collateral, and the collecting of rents and other sums from
such Collateral and paying the expenses of such Collateral; actions taken
by
Agent Bank with respect to the Collateral, which are not provided for in
the
approved Post-Foreclosure Plan or reasonably incidental thereto, shall require
the consent of the Requisite Lenders by way of supplement to such
Post-Foreclosure Plan. Upon demand therefor from time to time, each Lender
will
contribute its share (based on its Pro Rata Share) of all reasonable costs
and
expenses incurred by Agent Bank pursuant to the Post-Foreclosure Plan in
connection with the construction, operation, management, maintenance, leasing
and sale of such Collateral. In addition, Agent Bank shall render or cause
to be
rendered by the managing agent, to each of the Lenders, monthly, an income
and
expense statement for such Collateral, and each of the Lenders shall promptly
contribute its Pro Rata Share of any operating loss for such Collateral,
and
such other expenses and operating reserves as Agent Bank shall deem reasonably
necessary pursuant to and in accordance with the Post-Foreclosure Plan. To
the
extent there is net operating income from such Collateral, Agent Bank shall,
in
accordance with all applicable Gaming Laws and the Post-Foreclosure Plan,
determine the amount and timing of distributions to Lenders. All such
distributions shall be made to Lenders in accordance with their respective
Pro
Rata Shares. Lenders acknowledge that if title to any Collateral is obtained
by
Agent Bank or its nominee, such Collateral will not be held as a permanent
investment but will be liquidated as soon as practicable. Agent Bank shall
undertake to sell such Collateral, at such price and upon such terms and
conditions as the Requisite Lenders shall reasonably determine to be most
advantageous. Any purchase money mortgage or deed of trust taken in connection
with the disposition of such Collateral in accordance with the immediately
preceding sentence shall name Agent Bank, as agent for Xxxxxxx, as the
beneficiary or mortgagee. In such case, Agent Bank and Lenders shall enter
into
an agreement with respect to such purchase money mortgage defining the rights
of
Xxxxxxx in the same Pro Rata Shares as provided hereunder, which agreement
shall
be in all material respects similar to this Article X insofar as the same
is
appropriate or applicable.
Section
10.12. Lender
Actions Against Collateral.
Each
Lender agrees that it will not take any action, nor institute any actions or
proceedings, against Borrower or any other obligor hereunder, under the Security
Documentation or under any other Loan Documents with respect to exercising
claims against or rights in any Collateral without the consent of the Requisite
Lenders.
Section
10.13. Ratable
Sharing.
Subject
to Section 10.03 and 10.04, Lenders agree among themselves that (i) with respect
to all amounts received by them which are applicable to the payment of the
Obligations, equitable adjustment will be made so that, in effect, all such
amounts will be shared among them ratably in
117
accordance
with their Pro Rata Shares, whether received by voluntary payment, by
counterclaim or cross action or by the enforcement of any or all of the
Obligations, or the Collateral, (ii) if any of them shall by voluntary
payment or by the exercise of any right of counterclaim or otherwise, receive
payment of a proportion of the aggregate amount of the Obligations held by
it
which is greater than its Pro Rata Share of the payments on account of the
Obligations, the one receiving such excess payment shall purchase, without
recourse or warranty, an undivided interest and participation (which it shall
be
deemed to have done simultaneously upon the receipt of such payment) in such
Obligations owed to the others so that all such recoveries with respect to
such
Obligations shall be applied ratably in accordance with their Pro Rata Shares;
provided, that if all or part of such excess payment received by the purchasing
party is thereafter recovered from it, those purchases shall be rescinded
and
the purchase prices paid for such participations shall be returned to that
party
to the extent necessary to adjust for such recovery, but without interest
except
to the extent the purchasing party is required to pay interest in connection
with such recovery. Xxxxxxxx agrees that any Lender so purchasing a
participation from another Lender pursuant to this Section 10.13 may, to
the
fullest extent permitted by law, exercise all its rights of payment with
respect
to such participation as fully as if such Lender were the direct creditor
of
Borrower in the amount of such participation. No Lender shall exercise any
setoff, banker's lien or other similar right in respect to any Obligations
without the prior written approval by Agent Bank.
Section
10.14. Delivery
of Documents.
Agent
Bank shall as soon as reasonably practicable distribute to each Lender at its
primary address set forth on the appropriate counterpart signature page hereof,
or at such other address as a Lender may request in writing, (i) copies of
all
documents to which such Lender is a party or of which is executed or held by
Agent Bank on behalf of such Lender, (ii) all documents of which Agent Bank
receives copies from Borrower pursuant to Article VI and Section 11.03,
(iii) all other documents or information which Agent Bank is required to
send to Lenders pursuant to the terms of this Credit Agreement, (iv) other
information or documents received by Agent Bank at the request of any Lender,
and (v) all notices received by Agent Bank pursuant to Section 5.20. In
addition, within fifteen (15) Banking Business Days after receipt of a request
in writing from a Lender for written information or documents provided by or
prepared by Borrower, Agent Bank shall deliver such written information or
documents to such requesting Lender if Agent Bank has possession of such written
information or documents in its capacity as Agent Bank or as a
Lender.
Section
10.15. Notice
of Events of Default.
Agent
Bank shall not be deemed to have knowledge or notice of the occurrence of any
Default or Event of Default (other than nonpayment of principal of or interest
on the Bank
Facilities)
unless
Agent Bank has received notice in writing from a Lender or Borrower referring
to
this Credit Agreement or the other Loan Documents, describing such event or
condition and
118
expressly
stating that such notice is a notice of a Default or Event of Default. Should
Agent Bank receive such notice of the occurrence of a Default or Event of
Default, or should Agent Bank send Borrower a notice of Default or Event
of
Default, Agent Bank shall promptly give notice thereof to each
Lender.
ARTICLE
XI
GENERAL
TERMS AND CONDITIONS
The
following terms and conditions shall be applicable throughout the term of this
Credit Agreement:
Section
11.01. Amendments
and Waivers.
(a) No amend-ment or modification of any provision of this Credit Agreement
shall be effective without the written agreement of the Requisite Lenders (after
notice to all Lenders) and Borrower (except for rights and priorities of Lenders
as amongst themselves as provided in Section 10.04(a) which do not require
the consent of Borrower), and (b) no termination or waiver of any provision
of this Credit Agreement, or consent to any departure by Borrower therefrom
(except as expressly provided in Section 10.11(a) with respect to waivers of
late fees), shall in any event be effective without the written concurrence
of
Requisite Lenders (after notice to all Lenders), which Requisite Lenders shall
have the right to grant or withhold at their sole discretion, except that the
following amendments, modifications or waivers shall require the consent of
all
Lenders:
(i) modify
any requirement hereunder that any particular action be taken by all the Lenders
or by the Requisite Lenders, modify this Section 11.01 or change the definition
of "Requisite Lenders", or remove Agent Bank, without regard to the vote of
Agent Bank as a Lender, under Section 10.09(a), shall be effective unless
consented to by all of the Lenders;
(ii) increase
the amount of the C/T Loan or the Aggregate RLC Commitment or the Syndication
Interest of any Lender, release any Collateral except as specifically provided
in the Credit Agreement, release CCI from the Completion Guaranty, extend the
Maturity Date or change any provision expressly requiring the consent of all
Lenders; or
(iii) reduce
any fees described in Section 2.13 or extend the due date for, or reduce or
postpone the amount of, any required principal reduction on the Bank
Facilities,
or
reduce the rate of interest or postpone the payment of interest on the
Bank
Facilities,
shall
be made without the consent of all of the Lenders.
119
In
connection with any proposed amendment, modification, supplement, extension,
termination, consent or waiver requiring the consent of all Lenders as set
forth
in (i) through (iii) above, if the consent of the Requisite Lenders is obtained,
but the consent of other Lenders whose consent is required is not obtained
(any
such Lender whose consent is not obtained as described in this Section 11.01
being referred to as a "Non-Consenting Lender"), then, so long as the Lender
that is acting as the Agent Bank is not a Non-Consenting Lender, at the
Borrower's request, the Lender that is acting as the Agent Bank or an Eligible
Assignee that is acceptable to the Agent Bank (in either case the "Purchasing
Lender") shall have the right with the Agent Bank's consent and in the Agent
Bank's sole discretion (but shall have no obligation) to purchase from such
Non-Consenting Lender, and such Non-Consenting Lender agrees that it shall,
upon
the Agent Bank's request, sell and assign to the Purchasing Lender all of its
rights and obligations under this Credit Agreement and the other Loan Documents
(including all of its rights and obligations in the Bank Facilities) for an
amount equal to the Non-Consenting Lender's Syndication Interest in the Funded
Outstandings and all accrued interest and fees with respect thereto through
the
date of sale (or such other amounts as may be agreed upon by the Non-Consenting
Lender and the Purchasing Lender). In such event, such Non-Consenting Lender
and
such Purchasing Lender agree to execute an Assignment and Assumption Agreement
to reflect such purchase and sale, but regardless of whether such Assignment
and
Assumption Agreement is executed by such Non-Consenting Lender, such
Non-Consenting Xxxxxx's rights hereunder, except rights under Section 5.14
(i.e.
Indemnification by the Borrower) and 11.14 (i.e. Arbitration) with respect
to
actions prior to such date, shall cease from and after the date of presentation
of the Assignment and Assumption Agreement duly executed by such Purchasing
Lender and tender by the Purchasing Lender of the amount of the purchase
price.
No
amendment, modification, termination or waiver of any provision of Article
X or
any other provision referring to Agent Bank shall be effective without the
written concurrence of Agent Bank, but only if such amendment, modification,
termination or waiver alters the obligations or rights of Agent Bank. Any waiver
or consent shall be effective only in the specific instance and for the specific
purpose for which it was given. No notice to or demand on Borrower in any case
shall entitle Borrower to any other further notice or demand in similar or
other
circumstances. Any amendment, modification, termination, waiver or consent
effected in accordance with this Section 11.01 shall be binding on each
assignee, transferee or recipient of Agent Bank's or any Lender's Syndication
Interest under this Credit Agreement or the Bank Facilities at the time
outstanding. No
modification of Section 2.10 shall be made without the consent of the L/C
Issuer.
Section
11.02. Failure
to Exercise Rights.
Nothing
herein contained shall impose upon Xxxxx or Borrower any obligation to enforce
any terms, covenants or conditions contained herein. Failure of Banks or
Borrower, in any one or more instances, to insist upon strict performance by
Borrower or Banks of any terms, covenants or
120
conditions
of this Credit Agreement or the other Loan Documents, shall not be considered
or
taken as a waiver or relinquishment by Banks or Borrower of their right to
insist upon and to enforce in the future, by injunction or other appropriate
legal or equitable remedy, strict compliance by Borrower or Banks with all
the
terms, covenants and conditions of this Credit Agreement and the other Loan
Documents. The consent of Banks or Borrower to any act or omission by Borrower
or Banks shall not be construed to be a consent to any other or subsequent
act
or omission or to waive the requirement for Banks' or Borrower's consent
to be
obtained in any future or other instance.
Section
11.03. Notices
and Delivery.
a. The
Borrower agrees that the Agent Bank may make any material delivered by the
Borrower to the Agent Bank, as well as any amendments, waivers, consents, and
other written information, documents, instruments and other materials relating
to the Borrower, any of its Subsidiaries or Affiliates, or any other materials
or matters relating to this Credit Agreement, the Notes or any of the
transactions contemplated hereby (collectively, the "Communications") available
to the Lenders by posting such notices on an electronic delivery system (which
may be provided by the Agent Bank, an Affiliate of the Agent Bank, or any Person
that is not an Affiliate of the Agent Bank), such as IntraLinks, or a
substantially similar electronic system (the "Platform"). The Borrower
acknowledges that (i) the distribution of material through an electronic medium
is not necessarily secure and that there are confidentiality and other risks
associated with such distribution, (ii) the Platform is provided "as is" and
"as
available" and (iii) neither the Agent Bank nor any of its Affiliates warrants
the accuracy, completeness, timeliness, sufficiency, or sequencing of the
Communications posted on the Platform. The Agent Bank and its Affiliates
expressly disclaim with respect to the Platform any liability for errors in
transmission, incorrect or incomplete downloading, delays in posting or
delivery, or problems accessing the Communications posted on the Platform and
any liability for any losses, costs, expenses or liabilities that may be
suffered or incurred in connection with the Platform. No warranty of any kind,
express, implied or statutory, including, without limitation, any warranty
of
merchantability, fitness for a particular purpose, non-infringement of third
party rights or freedom from viruses or other code defects, is made by the
Agent
Bank or any of its Affiliates in connection with the Platform.
b. Each
Lender agrees that notice to it (as provided in the next sentence) (a "Notice")
specifying that any Communication has been posted to the Platform shall for
purposes of this Credit Agreement constitute effective delivery to such Lender
of such information, documents or other materials comprising such Communication.
Each Lender agrees (i) to notify, on or before the date such Lender
121
becomes
a
party to this Credit Agreement, the Agent Bank in writing of such Xxxxxx's
e-mail address to which a Notice may be sent (and from time to time thereafter
to ensure that the Agent Bank has on record an effective e-mail address for
such
Lender) and (ii) that any Notice may be sent to such e-mail
address.
c. Notwithstanding
the foregoing, any Communications may be personally served, faxed 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 facsimile
(or
on the next Banking Business Day if such facsimile is received on a non-Banking
Business Day or after 5:00 p.m. on a Banking Business Day) or four (4) Banking
Business Days after deposit in the United States mail (registered or certified,
with postage prepaid and properly addressed). Notices to Agent Bank pursuant
to
Articles II shall not be effective until received by Agent Bank.
d. For
the
purposes hereof, the addresses of the parties hereto (until notice of a change
thereof is delivered as provided in this Section 11.03) shall be as set forth
below each party's name on the signature pages hereof, or, as to each party,
at
such other address as may be designated by such party in an Assignment and
Assumption Agreement or in a written notice to all of the other parties. All
non-electronic deliveries to be made to Agent Bank for distribution to the
Lenders shall be made to Agent Bank at the addresses specified for notice on
the
signature page hereto and in addition, a sufficient number of copies of each
such delivery shall be delivered to Agent Bank for delivery to each Lender
at
the address specified for deliveries on the signature page hereto or such other
address as may be designated by Agent Bank in a written notice.
Section
11.04. Modification
in Writing.
This
Credit Agreement and the other Loan Documents constitute the entire agreement
between the parties and supersede all prior agreements whether written or oral
with respect to the subject matter hereof, including, but not limited to, any
term sheets furnished by any of the Banks to Borrower. Neither this Credit
Agreement, nor any other Loan Documents, nor any provision herein, or therein,
may be changed, waived, discharged or terminated orally, but only by an
instrument in writing signed by the party against whom enforcement of the
change, waiver, discharge or termination is sought.
Section
11.05. Other
Agreements.
If the
terms of any documents, certificates or agreements delivered in connection
with
this Credit Agreement are inconsistent with the terms of the Loan Documents,
Borrower shall use its best efforts to amend such document, certificate or
agreement to the satisfaction of Agent Bank to remove such
inconsistency.
Section
11.06. Counterparts.
To
facilitate execution, this Credit Agreement may be executed in as many
counterparts as may be convenient or
122
required.
It shall not be necessary that the signature of, or on behalf of, each party,
or
that the signature of all persons required to bind any party, appear on each
counterpart. All counterparts shall collectively constitute a single instrument.
It shall not be necessary in making proof of this Credit Agreement to produce
or
account for more than a single counterpart containing the respective signatures
of, or on behalf of, each of the parties hereto. Any signature page to any
counterpart may be detached from such counterpart without impairing the legal
effect of the signatures thereon and thereafter attached to another counterpart
identical thereto except having attached to it additional signature
pages.
Section
11.07. Rights,
Powers and Remedies are Cumulative.
None of
the rights, powers and remedies conferred upon or reserved to Agent Bank, Banks
or Borrower in this Credit Agreement are intended to be exclusive of any other
available right, power or remedy, but each and every such right, power and
remedy shall be cumulative and not alternative, and shall be in addition to
every right, power and remedy herein specifically given or now or hereafter
existing at law, in equity or by statute. Any forbearance, delay or omission
by
Agent Bank, Banks or Borrower in the exercise of any right, power or remedy
shall not impair any such right, power or remedy or be considered or taken
as a
waiver or relinquishment of the right to insist upon and to enforce in the
future, by injunction or other appropriate legal or equitable remedy, any of
said rights, powers and remedies given to Agent Bank, Banks or Borrower herein.
The exercise of any right or partial exercise thereof by Agent Bank, Banks
or
Borrower shall not preclude the further exercise thereof and the same shall
continue in full force and effect until specifically waived by an instrument
in
writing executed by Agent Bank or Banks, as the case may be.
Section
11.08. Continuing
Representations.
All
agreements, representations and warranties made herein shall survive the
execution and delivery of this Credit Agreement, the making of the Bank
Facilities
hereunder and the execution and delivery of each other Loan Document until
and
final payment of all sums owing under the Bank
Facilities
and the
Bank
Facilities
have
been irrevocably terminated.
Section
11.09. Successors
and Assigns.
All of
the terms, covenants, warranties and conditions contained in this Credit
Agreement shall be binding upon and inure to the sole and exclusive benefit
of
the parties hereto and their respective successors and assigns.
Section
11.10. Assignment
of Loan Documents by Borrower or Syndication Interests by
Lenders.
a. This
Credit Agreement and the other Loan Documents to which Borrower is a party
will
be binding upon and inure to the benefit of Borrower, the Agent Bank, each
of
the Banks, and their respective successors and assigns, except
123
that,
Xxxxxxxx may not assign its rights hereunder or thereunder or any interest
herein or therein without the prior written consent of all the Lenders. Any
attempted assignment or delegation in contravention of the foregoing shall
be
null and void. Any Lender may at any time pledge its Syndication Interest
in the
Bank
Facilities,
the
Credit Agreement and the Loan Documents to a Federal Reserve Bank, but no
such
pledge shall release that Lender from its obligations hereunder or grant
to such
Federal Reserve Bank the rights of a Lender hereunder absent foreclosure
of such
pledge.
b. Each
Lender may assign all or any part of its Syndication Interest in the
Bank
Facilities
to any
Affiliate of such Lender which is an Eligible Assignee or to any other Lender
without consent and to one or more financial institutions that are Eligible
Assignees with the prior consent of the Agent Bank and Borrower (so long as
no
Event of Default has occurred and remains continuing), which consents shall
not
be unreasonably withheld or delayed; provided,
however, that the minimum amount of each such assignment shall be Two Million
Five Hundred Thousand Dollars ($2,500,000.00), or such lesser amount as
constitutes the remaining amount of a Lender's Syndication Interest in the
Bank
Facilities
(except
that there shall be no minimum assignment among the Lenders or to their
Affiliates), and each assignee Lender (or assignor if so agreed between the
assignee Lender and such assignor) shall pay to the Agent Bank an assignment
fee
of Three Thousand Five Hundred Dollars ($3,500.00) with respect to each such
assignment. Each such assignment shall be evidenced by an assignment
substantially in the form of the Assignment and Assumption Agreement. Upon
any
such assignment, the assignee financial institution shall become a Lender for
all purposes under the Credit Agreement and each of the Loan Documents and
the
assigning Lender shall be released from its further obligations hereunder to
the
extent of such assignment. Agent Xxxx agrees to give prompt notice to Borrower
of each assignment made under this Section 11.10(b) and to deliver to
Borrower each revision to the Schedule of Lenders' Proportions in Bank
Facilities
made as
a consequence of each such assignment. In no event may any Lender sell all
or
any portion of its Syndication Interest in the C/T Loan or in the Revolving
Credit Facility separate and apart from its Syndication Interest in the other.
Each Lender shall at all times until Bank Facilities Termination hold an equal
Syndication Interest in each of the C/T Loan and the Revolving Credit
Facility.
c. Each
Lender may sell participations for all or any part of its Syndication Interest
in the Bank
Facilities;
provided,
however, that (i) such Lender shall remain responsible for its total
obligations under the Credit Agreement and each of the Loan Documents,
(ii) the Borrower and the Agent Bank shall continue to deal solely with
such Lender in connection with such Lender's rights and obligations under the
Credit Agreement and each of the Loan Documents, and (iii) such Lender
shall not sell any participation under which the participant would have rights
to approve any amendment or waiver relating to the Credit Agreement or any
Loan
Document except to the extent
124
any
such
amendment or waiver would (w) extend the final Maturity Date or the date
for the payment or any installments of fees, principal or interest due in
respect of the Bank
Facilities,
(x) reduce the interest rates or fees applicable to the Bank
Facilities
or
(y) release any material portion of the Collateral. Notwithstanding the
foregoing, the rights of the Lenders to make assignments and to grant
participations shall be subject to the approval by the Gaming Authorities
of the
assignee or participant, to the extent required by applicable Gaming Laws,
and
to applicable securities laws.
d. In
the
event any Lender is found unsuitable as a Lender under the Bank
Facilities
by the
Colorado Gaming Authorities ("Unsuitable Lender"): (a) Agent Bank shall use
its best efforts to find a replacement Lender, (b) Borrower shall have the
right to prepay the C/T Loan and reduce the Aggregate RLC Commitment by the
amount of the Syndication Interest held by the Unsuitable Lender, and any
payments required in connection with such prepayment and reduction shall be
made
to the Unsuitable Lender and not on a pro rata basis to all Lenders until a
replacement Lender, if any, commits to acquire the Syndication Interest of
the
Unsuitable Lender, at which time the balance of the C/T Loan and the Aggregate
RLC Commitment shall be increased by the amount of the prepayment and reduction,
and (c) upon full payment of all outstanding amounts of principal and interest
owing it, such Unsuitable Lender shall execute such documents as may be required
by Agent Bank, Borrower or any applicable gaming authorities to evidence the
termination of its Syndication Interest in the Bank Facilities.
Section
11.11. Action
by Lenders.
Whenever Banks shall have the right to make an election, or to exercise any
right, or their consent shall be required for any action under this Credit
Agreement or the Loan Documents, then such election, exercise or consent shall
be given or made for all Banks by Agent Bank in accordance with the provisions
of Section 11.01. Notices, reports and other documents required to be given
by Xxxxxxxx to Banks hereunder may be given by Borrower to Agent Bank on behalf
of Banks, with sufficient copies for distribution to each of the Banks, and
the
delivery to Agent Bank shall constitute delivery to Banks. In the event any
payment or payments are received by a Lender other than Agent Bank, Borrower
consents to such payments being shared and distributed as provided
herein.
Section
11.12. Time
of Essence.
Time
shall be of the essence of this Credit Agreement.
Section
11.13. Choice
of Law and Forum.
This
Credit Agreement and each of the Loan Documents shall be governed by and
construed in accordance with the internal laws of the State of Nevada without
regard to principles of conflicts of law; provided, however, that Colorado
law
shall govern the perfection and enforcement of the Security Documentation.
Xxxxxxxx further agrees that the full and exclusive forum for the determination
of any action relating to this Credit Agreement, the Loan
125
Documents,
or any other document or instrument delivered in favor of Banks pursuant
to the
terms hereof, other than the Security Documentation, shall be either an
appropriate Court of the State of Nevada or the United States District Court
or
United States Bankruptcy Court for the District of Nevada. The full and
exclusive forum for the determination of any action relating to the Security
Documentation or the Collateral shall either be an appropriate court of the
State of Colorado or the United States District or the United States Bankruptcy
Court for the District of Colorado.
Section
11.14. 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.
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.
Section
11.15. Waiver
of Jury Trial.
TO THE
MAXIMUM EXTENT PERMITTED BY LAW, BORROWER AND EACH OF THE BANKS EACH MUTUALLY
126
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 CREDIT
AGREEMENT, THE NOTES OR ANY OF THE LOAN DOCUMENTS, OR IN ANY WAY CONNECTED
WITH,
RELATED TO, OR INCIDENTAL TO THE DEALINGS OF BORROWER AND BANKS WITH RESPECT
TO
THIS CREDIT AGREEMENT, THE NOTES OR ANY OF THE LOAN DOCUMENTS, 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, XXXXXXXX AND EACH OF THE BANKS EACH
MUTUALLY 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.
Section
11.16. Scope
of Approval and Review.
Any
inspection of the Casino Facility or other documents shall be deemed to be
made
solely for Banks' internal purposes and shall not be relied upon by the Borrower
or any third party. In no event shall Lenders be deemed or construed to be
joint
venturers or partners of Borrower.
Section
11.17. Severability
of Provisions.
In the
event any one or more of the provisions contained in this Credit Agreement
shall
be invalid, illegal or unenforceable in any respect, the validity, legality
and
enforceability of the remaining provisions contained herein shall not in any
way
be affected or impaired thereby.
Section
11.18. Cumulative
Nature of Covenants.
All
covenants contained herein are cumulative and not exclusive of each other
covenant. Any action allowed by any covenant shall be allowed only if such
action is not prohibited by any other covenant.
Section
11.19. Costs
to Prevailing Party.
If any
action or arbitration proceeding is brought by any party against any other
party
under this Credit Agreement or any of the Loan Documents, 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.
Section
11.20. Expenses.
a. Generally.
Xxxxxxxx agrees upon demand to pay, or reimburse Agent Bank for, all of Agent
Xxxx's documented reasonable out-of-pocket
127
costs
and
expenses of every type and nature (including travel expenses incurred by
Agent
Bank both before and after the Closing Date in connection with the sale of
Syndication Interests in the Bank Facilities) incurred by Agent Bank at any
time
(whether prior to, on or after the date of this Credit Agreement) in connection
with (i) any requests for consent, waiver or other modification of any Loan
Document made by Borrower; (ii) the negotiation, preparation and execution
of this Credit Agreement (including, without limitation, the satisfaction
or
attempted satisfaction of any of the conditions set forth in Article III),
the
Security Documentation and the other Loan Documents and the advance of
Borrowings; (iii) the subordination of any Collateral, including title
charges, recording fees and reasonable attorneys' fees and costs incurred
in
connection therewith; (iv) any appraisals performed after the occurrence of
an Event of Default; (v) the creation, perfection or protection of the Security
Documentation on the Collateral (including, without limitation, any fees
and
expenses for title and lien searches, local counsel in various jurisdictions,
filing and recording fees and taxes, duplication costs and corporate search
fees); (vi) all reasonable costs and expenses incurred by Agent Bank in
connection with the sale of Syndication Interests in the Bank Facilities;
and
(vii) the protection, collection or enforcement of any of the Obligations
or the Collateral, including Protective Advances.
b. After
Event of Default.
Borrower further agrees to pay, or reimburse Agent Bank and Lenders, for all
reasonable out-of-pocket costs and expenses, including without limitation
reasonable attorneys' fees and disbursements incurred by Agent Bank or Lenders
after the occurrence of an Event of Default (i) in enforcing any Obligation
or in foreclosing against the Collateral or exercising or enforcing any other
right or remedy available by reason of such Event of Default; (ii) in
connection with any refinancing or restructuring of the credit arrangements
provided under this Credit Agreement in the nature of a "work-out" or in any
insolvency or bankruptcy proceeding; (iii) in commencing, defending or
intervening in any litigation or in filing a petition, complaint, answer, motion
or other pleadings in any legal proceeding relating to Borrower and related
to
or arising out of the transactions contemplated hereby; (iv) in taking any
other action in or with respect to any suit or proceeding (whether in bankruptcy
or otherwise); (v) in protecting, preserving, collecting, leasing, selling,
taking possession of, or liquidating any of the Collateral; or (vi) in
attempting to enforce or enforcing any lien in any of the Collateral or any
other rights under the Security Documentation.
Section
11.21. Setoff.
In
addition to any rights and remedies of the Agent Bank provided by law, if any
Event of Default exists, Agent Bank is authorized at any time and from time
to
time, without prior notice to Borrower, any such notice being waived by the
Borrower to the fullest extent permitted by law, to set-off and apply any and
all deposits (general or special, time or demand, provisional or final) at
any
time held by Agent Bank to or for the credit or the account of Borrower against
any and all
128
obligations
of Borrower under the Bank Facilities, now or hereafter existing, irrespective
of whether or not the Agent Bank shall have made demand under this Credit
Agreement or any Loan Document and although such amounts owed may be contingent
or unmatured. Agent Xxxx agrees promptly to notify the Borrower (and Agent
Bank
shall promptly notify each other Lender) after any such setoff and application
made by Agent Bank; provided, however, that the failure to give such notice
shall not affect the validity of such set-off and application. The rights
of
Agent Bank under this Section 11.21 are in addition to the other rights and
remedies which Agent Bank may have.
Section
11.22. Confidentiality.
Each
Bank agrees to hold any non-public information that it may receive from Borrower
pursuant to this Credit Agreement (or pursuant to any other Loan Document)
in
confidence and consistent with its respective policies for handling material
non-public information, except
for
disclosure: (a) to legal counsel and accountants for Borrower or such Lender;
(b) to the other professional advisors to Borrower or such Lender, provided
that
the recipient has accepted such information subject to a confidentiality
agreement substantially similar to this Section 11.22; (c) to
regulatory officials having jurisdiction over such Lender; (d) to any
Gaming Authority having regulatory jurisdiction over Borrower, provided that
such Xxxxxx agrees to endeavor to notify Borrower of any such disclosure; and
(e) as required by law or legal process or in connection with any legal
proceeding, provided that Lender uses reasonable efforts to notify Borrower
prior to any such disclosure. For purposes of the foregoing, "non-public
information" shall mean any information respecting Borrower reasonably
considered by Borrower to be material and not available to the public,
other
than
(i) information previously filed with any governmental agency and available
to the public, (ii) information which is available to the general public at
the time of use or disclosure, (iii) information which becomes available to
the general public, other than by manner of unauthorized disclosure or use,
or
(iv) information previously published in any public medium from a source
other than, directly or indirectly, Lenders. Nothing in this Section shall
be
construed to create or give rise to any fiduciary duty on the part of Lenders
to
Borrower.
Section
11.23. Security
and Loan Documentation.
The
Security Documentation and other Loan Documents (other than this Credit
Agreement) may be held in the name of WFB as the Agent Bank of all Banks
hereunder pursuant to the terms of this Credit Agreement.
Section
11.24. Schedules
Attached.
Schedules are attached hereto and incorporated herein and made a part hereof
as
follows:
Schedule
2.01(a) - Schedule
of Lenders' Proportions in Bank Facilities
Schedule
2.03(d) - C/T
Loan
Reduction Schedule
129
Schedule
3.13(b) - Schedule
of Significant Litigation
Schedule
4.15 - Schedule
of Spaceleases
Schedule 4.16 - Schedule
of Equipment Leases and Contracts
Schedule
4.23 - Schedule
of Contingent Liabilities
Schedule
5.09(k) - Schedule
of General Contractor Minimum Insurance Requirements
Section
11.25. Exhibits
Attached.
Exhibits are attached hereto and incorporated herein and made a part hereof
as
follows:
Exhibit
A - C/T
Note
Exhibit
B - Revolving
Credit Note
Exhibit
C - Notice
of
Borrowing - Form
Exhibit
D - Construction
Disbursement Request -Form
Exhibit
E - Payment
Subordination Agreement - Form
Exhibit
F - Compliance
Certificate - Form
Exhibit
G - Legal
Opinion - Form
Exhibit
H - Management
Subordination Agreement - Form
Exhibit
I - Authorized
Officer Certificate -Form
Exhibit
J - Closing
Certificate - Form
Exhibit
K -
Assignment
and Assumption Agreement - Form
Exhibit
L - Real
Property Description
Exhibit
M - Financial
Requirement Analysis - Form
Exhibit
N - Lender's
Disbursement Budget - Form
130
Exhibit
O - Completion
Guaranty - Form
Exhibit
P -
Cash
Collateral Pledge Agreement - Form
131
IN
WITNESS WHEREOF, the parties hereto have caused this Credit Agreement to be
executed as of the day and year first above written.
|
BORROWER:
CC
TOLLGATE LLC,
a
Delaware limited liability company
By:
CENTURY
CASINOS TOLLGATE,
INC.,
a Delaware corporation,
its
Managing Member
By:
/s/ Xxxxx Xxxxxxxxx
Xxxxx Xxxxxxxxx,
CEO
and Secretary
Address
for Borrower:
0000
Xxxx Xxxxx Xxxxx
Xxxxxxxx
Xxxxxxx, XX 00000
Attn:
Xxxxx Xxxxxxxxx
Telephone: (000)
000-0000 #000
Facsimile: (000)
000-0000
|
S-1
|
BANKS:
XXXXX
FARGO BANK,
National
Association,
Agent
Bank, Lender and L/C Issuer
By:
/s/ Xxxx Xxxx
Xxxx
Xxxx,
Vice
President
Address:
0000
Xxxxxxx Xxxx, Xxxxx 000
Xxxx,
XX 00000
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
|
S-2
|
XXXXXXXX
BANKFIRST CORP.,
a
Minnesota corporation,
Lender
By:
/s/ Xxxxx Xxxxxxxx
Xxxxx
Xxxxxxxx,
Senior
Vice President
Address: 000
Xxxxx 0xx
Xxxxxx
Xxxxx
0000
Xxxxxxxxxxx, XX 00000
Telephone: (000)
000-0000
Facsimile:
(000) 000-0000
|
S-3
|
ORIX
FINANCIAL SERVICES, INC.,
a
New York corporation,
Lender
By:
/s/ Xxxx X. Xxxxxx
Xxxx
X. Xxxxxx,
Senior
Vice President
Address: 0000
Xxxxxxx Xxxx
Xxxxx 000
0xx
Xxxxx
Xxxxxxxxxx, XX 00000
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
|
S-4
SCHEDULE
OF LENDERS' PROPORTIONS
IN
BANK FACILITIES
AS
OF CLOSING DATE
|
NAME
OF LENDER
|
PROPORTIONATE
SYNDICATION INTEREST IN BANK FACILITIES
|
MAXIMUM
AMOUNT OF PRINCIPAL IN
C/T
LOAN
|
MAXIMUM
AMOUNT OF PRINCIPAL IN REVOLVING CREDIT
FACILITY
|
|
Xxxxx
Fargo Bank, National Association
|
42.8571429
|
$13,928,571.44
|
$1,071,428.57
|
|
Xxxxxxxx
BankFirst Corp.
|
35.0000000
|
11,607,142.86
|
892,857.14
|
|
ORIX
Financial Services, Inc.
|
21.4285714%
|
6,964,285.70
|
535,714.29
|
|
TOTAL
|
100.0%
|
$32,500,000.00
|
$2,500,000.00
|
SCHEDULE
2.01(a)
|
C/T
LOAN REDUCTION SCHEDULE
|
|
|
TERM
PAYMENT DATE -
last
day of applicable Fiscal Quarter
|
SCHEDULED
TERM AMORTIZATION PAYMENTS
|
|
1st
Full Fiscal Quarter following the Term Out Date
|
$
600,000.00
|
|
2nd
Full Fiscal Quarter following the Term Out Date
|
600,000.00
|
|
3rd
Full Fiscal Quarter following the Term Out Date
|
600,000.00
|
|
4th
Full Fiscal Quarter following the Term Out Date
|
600,000.00
|
|
5th
Full Fiscal Quarter following the Term Out Date
|
725,000.00
|
|
6th
Full Fiscal Quarter following the Term Out Date
|
725,000.00
|
|
7th
Full Fiscal Quarter following the Term Out Date
|
725,000.00
|
|
8th
Full Fiscal Quarter following the Term Out Date
|
725,000.00
|
|
9th
Full Fiscal Quarter following the Term Out Date
|
850,000.00
|
|
10th
Full Fiscal Quarter following the Term Out Date
|
850,000.00
|
|
11th
Full Fiscal Quarter following the Term Out Date
|
850,000.00
|
|
12th
Full Fiscal Quarter following the Term Out Date
|
850,000.00
|
|
13th
Full Fiscal Quarter following the Term Out Date
|
1,000,000.00
|
|
14th
Full Fiscal Quarter following the Term Out Date
|
1,000,000.00
|
|
15th
Full Fiscal Quarter following the Term Out Date
|
1,000,000.00
|
|
16th
Full Fiscal Quarter following the Term Out Date
|
1,000,000.00
|
|
17th
Full Fiscal Quarter following the Term Out Date
|
1,100,000.00
|
|
18th
Full Fiscal Quarter following the Term Out Date
|
1,100,000.00
|
|
19th
Full Fiscal Quarter following the Term Out Date
|
1,100,000.00
|
|
Fifth
Annual Anniversary of the Term Out Date
(Maturity
Date)
|
Entire
Unpaid Balance
|
SCHEDULE
2.03(d)
SCHEDULE
OF SIGNIFICANT LITIGATION
None.
SCHEDULE
3.13(b)
SCHEDULE
OF SPACELEASES
None.
SCHEDULE
4.15
SCHEDULE
OF EQUIPMENT LEASES AND CONTRACTS
| 1. |
Standard
Form of Agreement between CC Tollgate LLC and Sprung Construction,
Inc.,
AIA Document A111-1997 dated as of April 6, 2005, together with
the
General Conditions of the Contract for Construction, AIA Document
A201-1997.
|
| 2. |
Standard
Form of Agreement between CC Tollgate LLC and CFC Construction,
AIA
Document A111-1997 dated as of July 21, 2005, together with the
General
Conditions of the Contract for Construction AIA Document
A201-1997.
|
| 3. |
Standard
Form of Agreement between CC Tollgate LLC and Xxxxxxxx-Xxxxx, P.C.,
AIA
Document B141-1997 Part 1 dated December 16,
2004.
|
| 4. |
City
of Central, Colorado, License Fee Rebate Agreement dated as of
September
7, 2004, executed by Central City and Xxxx Xxxxxx, as managing
member of
Tollgate Venture, LLC, which was subsequently assigned to CC Tollgate
LLC
by that certain General Assignment, Bill of Sale and Assumption
Agreement
between Tollgate Venture, LLC and CC Tollgate LLC, dated December
30,
2004.
|
| 5. |
Casino
Services Agreement, by and between CC Tollgate LLC and Century
Casinos
Management, Inc. (as assignee from Century Resorts International
Limited),
dated October 12, 2004.
|
| 6. |
Xxxxxxx
Environmental Management Group, LLC (GEM) Proposal Acceptance and
Work
Authorization, Proposal D-1085-003, accepted February 4, 2005.
|
SCHEDULE
4.16
SCHEDULE
OF CONTINGENT LIABILITIES
None.
SCHEDULE
4.23
SCHEDULE
OF GENERAL CONTRACTOR
MINIMUM
INSURANCE REQUIREMENTS
The
General Contractor and each Major Subcontractor shall obtain and maintain
at
it's own cost and expense throughout the period beginning with the commencement
of construction of the Casino Project and continuing until the Completion
Date,
the following coverages and limits:
1. Property
Insurance.
All
material, equipment and tools (owned, borrowed or leased) of the applicable
General Contractor, Major Subcontractor or its employees will be covered
for one
hundred percent (100%) of the full replacement value thereof. The insurance
policy will be written under a standard Special Causes of Loss ("All Risk")
perils insurance policy. Each contractor shall agree to waive any and all
rights
of subrogation against Borrower for loss or damage to any property required
to
be covered under this provision.
2. Workers
Compensation and Employers Liability Coverage.
A
statutory Workers Compensation policy covering employees in the State of
Colorado and Employers Liability subject to a limit of no less than Five
Hundred
Thousand Dollars ($500,000.00) each employee, Five Hundred Thousand Dollars
($500,000.00), each accident, Five Hundred Thousand Dollars ($500,000.00)
policy
limit.
3. Commercial
General Liability (2000 ISO Form or equivalent).
The
policy shall provide a One Million Dollars ($1,000,000.00) combined single
limit
for Bodily Injury and Property Damage, including Products Liability, Contractual
Liability, Broad Form Property Damage, personal and advertising injury liability
and all standard policy form extensions. The policy must provide a Two Million
Dollar ($2,000,000.00) general aggregate (per project) and be written on
an
"occurrence form". The policy shall be endorsed to include Borrower and Agent
Bank as Additional Insureds. Definition of additional insured shall include
all
officers, employees of Borrower and Agent Bank. The coverage for an additional
insured shall apply on a Primary basis irrespective of any other insurance
whether collectable or not. The policy shall include a severability of interest
clause. The policy will include a specific Waiver of Subrogation provision
in
favor of Xxxxxxxx.
4. Automobile
Liability Insurance (if applicable).
Policy
shall provide Liability insurance under coverage Symbol "1" providing a One
Million Dollar ($1,000,000.00) combined single limit for Bodily Injury and
Property Damage covering all owned, non-owned and hired vehicles of the
applicable General Contractor/Major Subcontractor.
SCHEDULE
5.09(k)
5. Umbrella
Liability.
The
umbrella policy for the General Contractor must be purchased with a limit
no
less than Five Million Dollars
($5,000,000.00)
providing excess coverage over all limits and coverages indicated in paragraphs
2, 3 and 4 above. The umbrella limits for individual Major Subcontractors
and
other individual Subcontractors shall be in amounts reasonably acceptable
to
Agent Bank depending on the size and scope of work to be completed at the
Casino
Project. The limits can be obtained by a combination of Primary and Excess
Umbrella policies, provided that all layers follow form with the underlying
policies. The policies shall be endorsed to include Borrower and Agent Bank
as
an additional insureds as defined under paragraph 3 above.
All
policies discussed above shall be written with insurance companies licensed
and
admitted to do business in the State of Colorado and rated no lower than
AVIII
in the most recent addition of the AM Best's rating guide and "A" in Standard
& Poor's or such other carrier reasonably acceptable to Agent Bank. All
policies discussed above shall be endorsed to provide that in the event of
a
cancellation, non-renewal or material modification, Borrower and Agent Bank
shall receive thirty (30) days prior written notice by certified mail, return
receipt requested.
6. Compliance
Documentation.
The
General Contractor and each Major Subcontractor shall furnish Borrower and
Agent
Bank with Certificates of Insurance evidencing compliance with all insurance
provisions noted above. All certificates or policy termination notices shall
be
delivered to:
Xxxxx
Fargo Bank,
National
Association
Agent
Bank
0000
Xxxxxxx Xxxx, Xxxxx 000
Reno,
NV
89511
Attn:
Xxxx Xxxx, V.P.
7. Indemnification/Hold
Harmless.
Each of
the General Contractor and each Major Subcontractor shall, to the fullest
extent
permitted by law and at its own cost and expense, defend, indemnify and hold
Borrower, its directors, officers, employees, representatives and agents
harmless from and against any and all claims, loss (including attorneys'
fees,
witnesses' fees and all court costs), damages, expense and liability (including
statutory liability), resulting from injury and/or death of any person or
damage
to or loss of any property arising out of any negligent or wrongful act,
error
or omission or breach of contract, in connection with the operations of the
General Contractor or Major Subcontractor, as applicable or their respective
Subcontractors. The foregoing indemnity shall include injury or death of
any
employee of the General Contractor or Major Subcontractor, as applicable
or any
of their Subcontractors and shall not be limited in any way by an amount
or type
of damages, compensation or
benefits
payable under any applicable Workers' Compensation, Disability Benefits
or other
similar employee benefits acts.
8. Incorporation
of Requirements into Contractor Agreements.
Each of
the above insurance requirements and provisions shall be set forth or otherwise
incorporated by reference into the terms of the contractor
agreements.
CONSTRUCTION
AND TERM PROMISSORY NOTE
(C/T
Note)
$32,500,000.00 November
18,
2005
FOR
VALUE
RECEIVED, the undersigned, CC TOLLGATE LLC, a Delaware limited liability company
(the "Borrower") promises to pay to the order of XXXXX FARGO BANK, National
Association, as Agent Bank on behalf of itself and the other Lenders as defined
and described in the Credit Agreement described hereinbelow (each, together
with
their respective successors and assigns, individually being referred as a
"Lender" and collectively as the "Lenders") such sums as Lenders may hereafter
disburse or advance to or for the benefit of the Borrower from time to time
during the Construction Period pursuant to the C/T Loan as defined and described
in the Credit Agreement, hereinafter defined, up to the maximum principal amount
of Thirty-Two Million Five Hundred Thousand Dollars ($32,500,000.00), together
with interest on the principal balance outstanding from time to time at the
rate
or rates set forth in the Credit Agreement.
A. Incorporation
of Credit Agreement.
1. Reference
is made to the Credit Agreement dated concurrently herewith (the "Credit
Agreement"), executed by and among the Borrower, the Lenders and L/C Issuer
therein named, and Xxxxx Fargo Bank, National Association as administrative
and
collateral agent for itself, the Lenders and L/C Issuer (the "Agent"). Terms
defined in the Credit Agreement and not otherwise defined herein are used herein
with the meanings defined for those terms in the Credit Agreement. This is
the
Construction and Term Promissory Note ("C/T Note") referred to in the Credit
Agreement, and any holder hereof is entitled to all of the rights, remedies,
benefits and privileges provided for in the Credit Agreement as originally
executed or as it may from time to time be supplemented, modified or amended.
The Credit Agreement, among other things, contains provisions for acceleration
of the maturity hereof upon the happening of certain stated events upon the
terms and conditions therein specified.
2. The
outstanding principal indebtedness evidenced by this C/T Note shall be payable
as provided in the Credit Agreement and in any event on the Maturity Date as
defined and described in the Credit Agreement.
3. Interest
shall be payable on the outstanding daily unpaid principal amount of each
Construction Disbursement hereunder from the date thereof until payment in
full
and shall accrue and be payable at the rates and on the dates set forth in
the
Credit Agreement both before and after Default and before and after
maturity
Page
1 of 3
EXHIBIT
A
and
judgment, with interest on overdue interest at the Default Rate, to the fullest
extent permitted by applicable law.
4. The
amount of each payment hereunder shall be made to the Agent Bank at the Agent
Bank's office as specified in the Credit Agreement for the account of the
Lenders at the time or times set forth therein, in lawful money of the United
States of America and in immediately available funds.
5. Construction
Disbursements hereunder shall be made in accordance with the terms, provisions
and procedures set forth in the Credit Agreement.
B. Default.
The
"Late Charges and Default Rate" provisions contained in Section 2.13 and
the "Events of Default" provisions contained in Article VII of the Credit
Agreement are hereby incorporated by this reference as though fully set forth
herein.
C. Waiver. Borrower
waives diligence, demand, presentment for payment, protest and notice of
protest.
D. Collection
Costs.
In the
event of the occurrence of an Event of Default, the Borrower agrees to pay
all
reasonable costs of collection, including a reasonable attorney's 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 the
undersigned agrees that any judgment issued as a consequence of such action
against Borrower shall bear interest at a rate equal to the Default Rate until
fully paid.
E. Interest
Rate Limitation.
Notwithstanding any provision herein or in any document or instrument now or
hereafter securing this C/T Note, the total liability for payments in the nature
of interest shall not exceed the limits now imposed by the applicable laws
of
the State of Nevada, State of Colorado or the United States of America.
F. Security.
This
C/T Note is secured by the Security Documentation described in the Credit
Agreement.
G. Governing
Law.
This
C/T Note shall be governed by and construed in accordance with the laws of
the
State of Nevada.
H. Partial
Invalidity.
If any
provision of this C/T Note shall be prohibited by or invalid under any
applicable law, such provision shall be in-effective only to the extent of
such
prohibition or invalidity, without invalidating the remainder of such provision
or any other provision of this Note.
Page
2 of
3
I. No
Conflict with Credit Agreement.
This
C/T Note is issued under, and subject to, the terms, covenants and conditions
of
the Credit Agreement, which Credit Agreement is by this reference incorporated
herein and made a part hereof. No reference herein to the Credit Agreement
and
no provision of this C/T Note or the Credit Agreement shall alter or impair
the
obligations of Borrower, which are absolute and unconditional, to pay the
principal of and interest on this C/T Note at the place, at the respective
times, and in the currency prescribed in the Credit Agreement. If any provision
of this C/T Note conflicts or is inconsistent with any provision of the Credit
Agreement, the provisions of the Credit Agreement shall govern.
IN
WITNESS WHEREOF, this C/T Note has been executed as of the date first
hereinabove written.
|
BORROWER:
CC
TOLLGATE LLC,
a
Delaware limited liability company
By: CENTURY
CASINOS TOLLGATE, INC., a Delaware corporation,
its
Managing Member
By
/s/ Xxxxx Xxxxxxxxx
Xxxxx Xxxxxxxxx,
CEO
and Secretary
|
Page 3 of 3
REVOLVING
CREDIT
PROMISSORY NOTE
$2,500,000.00 November
18, 2005
FOR
VALUE
RECEIVED, the undersigned, CC TOLLGATE LLC, a Delaware limited liability company
(the "Borrower") promises to pay to the order of XXXXX FARGO BANK, National
Association, as Agent Bank on behalf of itself and the other Lenders as defined
and described in the Credit Agreement described hereinbelow (each, together
with
their respective successors and assigns, individually being referred as a
"Lender" and collectively as the "Lenders") such sums as Lenders may hereafter
loan or advance or re-loan to the Borrowers from time to time pursuant to the
Revolving Credit Facility as described in the Credit Agreement, hereinafter
defined up to the maximum principal sum of Two Million Five Hundred Thousand
Dollars ($2,500,000.00) (or such lesser amount of such loans and advances as
may
be outstanding from time to time), the unpaid balance of which shall not exceed
in the aggregate the Aggregate RLC Commitment at any time, together with
interest on the principal balance outstanding from time to time at the rate
or
rates set forth in the Credit Agreement.
A. Incorporation
of Credit Agreement.
1. Reference
is made to the Credit Agreement dated concurrently herewith (as may be amended,
modified, extended, renewed or restated from time to time, the "Credit
Agreement"), executed by and among the Borrower, the Lenders and L/C Issuer
therein named, and Xxxxx Fargo Bank, National Association, as administrative
and
collateral agent for itself, for the Lenders and for L/C Issuer (the "Agent
Bank"). Terms defined in the Credit Agreement and not otherwise defined herein
are used herein with the meanings defined for those terms in the Credit
Agreement. This is the Revolving Credit Promissory Note ("Revolving Credit
Note") referred to in the Credit Agreement, and any holder hereof (in accordance
with the Credit Agreement) is entitled to all of the rights, remedies, benefits
and privileges provided for in the Credit Agreement as originally executed
or as
it may from time to time be supplemented, modified or amended. The Credit
Agreement, among other things, contains provisions for acceleration of the
maturity hereof upon the happening of certain stated events upon the terms
and
conditions therein specified.
2. The
outstanding principal indebtedness evidenced by this Revolving Credit Note
shall
be payable as provided in the Credit Agreement and in any event on the Maturity
Date.
3. Interest
shall be payable on the outstanding daily unpaid principal amount of each
Borrowing hereunder from the date thereof until payment in full and
Page
1
of 3
EXHIBIT
B
shall
accrue and be payable at the rates and on the dates set forth in the Credit
Agreement both before and after Default and before and after maturity and
judgment, with interest on overdue interest to bear interest at the Default
Rate, to the fullest extent permitted by applicable law.
4. The
amount of each payment hereunder shall be made to the Agent Bank at the Agent
Bank's office as specified in the Credit Agreement for the account of the
Lenders at the time or times set forth therein, in lawful money of the United
States of America and in immediately available funds.
5. Borrowings
hereunder shall be made in accordance with the terms, provisions and procedures
set forth in the Credit Agreement.
B. Default.
The
"Late Charges and Default Rate" provisions contained in Section 2.13 and
the "Events of Default" provisions contained in Article VII of the Credit
Agreement are hereby incorporated by this reference as though fully set forth
herein.
C. Waiver. Borrower
waives diligence, demand, presentment for payment, protest and notice of
protest.
D. Collection
Costs.
In the
event of the occurrence of an Event of Default, the Borrower agrees to pay
all
reasonable costs of collection, including reasonable attorneys fees, 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 the undersigned agrees
that any judgment issued as a consequence of such action against Borrower shall
bear interest at a rate equal to the Default Rate until fully paid.
E. Interest
Rate Limitation.
Notwithstanding any provision herein or in any document or instrument now or
hereafter securing this Revolving Credit Note, the total liability for payments
in the nature of interest shall not exceed the limits now imposed by the
applicable laws of the State of Nevada or the United States of America.
F. Security.
This
Revolving Credit Note is secured by the Security Documentation described in
the
Credit Agreement.
G. Governing
Law.
This
Revolving Credit Note has been delivered in Reno, Nevada, and shall be governed
by and construed in accordance with the laws of the State of
Nevada.
H. Partial
Invalidity.
If any
provision of this Revolving Credit Note shall be prohibited by or invalid under
any applicable law, such provision shall be in-effective only
Page
2 of 3
to
the
extent of such prohibition or invalidity, without invalidating the remainder
of
such provision of any other provision of this Revolving Credit
Note.
I. No
Conflict with Credit Agreement.
This
Revolving Credit Note is issued under, and subject to, the terms, covenants
and
conditions of the Credit Agreement, which Credit Agreement is by this reference
incorporated herein and made a part hereof. No reference herein to the Credit
Agreement and no provision of this Revolving Credit Note or the Credit Agreement
shall alter or impair the obligations of Borrower, which are absolute and
unconditional, to pay the principal of and interest on this Revolving Credit
Note at the place, at the respective times, and in the currency prescribed
in
the Credit Agreement. If any provision of this Revolving Credit Note conflicts
or is inconsistent with any provision of the Credit Agreement, the provisions
of
the Credit Agreement shall govern.
IN
WITNESS WHEREOF, this Revolving Credit Note has been executed as of the date
first hereinabove written.
|
BORROWER:
CC
TOLLGATE LLC,
a
Delaware limited liability company
By: CENTURY
CASINOS TOLLGATE, INC., a Delaware corporation,
its
Managing Member
By
/s/ Xxxxx Xxxxxxxxx
Xxxxx Xxxxxxxxx,
CEO
and Secretary
|
Page
3
of 3
FORM
OF
NOTICE
OF BORROWING
TO:
XXXXX
FARGO BANK, National Association, in its capacity as Agent Bank under that
certain Credit Agreement, dated as of November 18, 2005 (as 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 (herein, in such capacity, called 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"). Capitalized terms used herein without definition
shall have the meanings attributed to them in Section 1.01 of the Credit
Agreement.
Pursuant
to Section 2.07(a) of the Credit Agreement, this Notice of Borrowing represents
Borrower's request for a Borrowing under the Revolving Credit Facility to be
advanced on _____________, 200___ (the "Funding Date") from the Lenders (each
to
advance in proportion to their respective Syndication Interests) in the
aggregate principal amount of _________________________________________
($_____________). Proceeds of such Borrowing are to be disbursed on the Funding
Date in immediately available funds to the Designated Deposit Account at Agent
Bank's Branch at __________________, _______, Nevada, Account No.
_________________.
Borrower
hereby certifies that (i) the representations and warranties contained in
Article IV of the Credit Agreement, in each of the Loan Documents and in the
Environmental Certificate (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), shall be true and correct in all
material respects on and as of the Funding Date as though made on and as of
the
Funding 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 the required number of Lenders; (ii) no Default or Event of Default has
occurred and is continuing under the Credit Agreement or will result from the
making of the requested Borrowing; (iii) Borrower has and shall have
satisfied all conditions precedent under Article III of the Credit
Agreement required to be performed by it on or before the Funding Date (unless
otherwise waived pursuant to the terms of the Credit Agreement); (iv) since
the
date of the most recent audited financial statements referred to in Section
5.08
of the Credit Agreement, no Material Adverse Change has or
EXHIBIT
C
shall
have occurred; and (v) the aggregate of all Borrowings does not (and after
giving effect to the requested Borrowing, will not) exceed the Maximum RLC
Availability then in effect.
Borrower
further certifies that as of the Funding Date, without regard to the requested
Borrowing:
A. The
Aggregate RLC Commitment is
$2,500,000.00
B. The
Funded RLC Outstandings are
$__________
C. The
Maximum RLC Availability
(A
minus B) is $__________
The
Borrower has caused this Notice of Borrowing to be executed and delivered,
and
the certification and warranties contained herein to be made, by its Authorized
Officer this ____ day of _____________, 200___.
|
CC
TOLLGATE LLC,
a
Delaware limited liability company
By: CENTURY
CASINOS TOLLGATE, INC.,
a
Delaware corporation,
Its
Managing Member
By /s/
Xxxxx Xxxxxxxxx
Xxxxx
Xxxxxxxxx,
CEO
and Secretary
|
2
CONSTRUCTION
DISBURSEMENT REQUEST
DATE: ____________________________
|
TO:
|
XXXXX
FARGO BANK, National Association, in its capacity as Agent Bank under
that
certain Credit Agreement, dated as of November 18, 2005 (as 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 (herein, in such
capacity,
called 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").
Capitalized terms used herein without definition shall have the meanings
attributed to them in Section 1.01 of the Credit
Agreement.
|
The
Borrower hereby requests that a Construction Disbursement be made in the
aggregate principal amount of $______________________ on __________________,
200__ (the "Requested Funding Date").
Borrower
hereby certifies that as of the Requested Funding Date, without regard to the
requested Construction Disbursement Request:
A. The
amount of the C/T Loan is
$32,500,000.00
B. The
Funded C/T Outstandings are $__________
C. The
Amount Available for Construction
Disbursement
(A minus B) is $__________
D. The
Borrower further certifies
and
warrants that it
estimates
the Construction
Completion
Costs as of the
Requested
Funding Date to be: $__________
E. The
representations and warranties set forth in Article IV of the Credit Agreement
are and will be true and correct as if then made, except to the extent such
EXHIBIT
D
representations
and warranties related solely to an earlier date (in which case such
representations and warranties shall have been true and correct on and as of
such earlier date);
F. No
Default or Event of Default has occurred and remains continuing;
G. No
labor
controversy, litigation, arbitration or governmental investigation or proceeding
is pending or, to the knowledge of Borrower, threatened against Borrower or
affecting Borrower's businesses, operations, assets, revenues, properties or
prospects or which purports to affect the legality, validity or enforceability
of the Credit Agreement, the Notes or any other Loan Document which was not
disclosed by the Borrower pursuant to Section 4.03 of the Credit Agreement
and
no development not so disclosed shall have occurred in any labor controversy,
litigation, arbitration or governmental investigation or proceeding so
disclosed, which, in either event, if adversely determined, reasonably would
be
expected to result in a Material Adverse Change; and
H. Since
the
date of the most recently audited financial statements referred to in Section
5.08 of the Credit Agreement, no Material Adverse Change shall have
occurred.
Attached
hereto or accompanying this Construction Disbursement Request, please find
the
following:
1. Itemized
Draw Request (AIA Forms G-702 or forms substantially similar thereto which
have
been first approved by Agent Bank);
2. Certifications
of Borrower and as appropriate, the Architect;
3. Each
and
every change, amendment, modification and revision to the Borrower Construction
Budget, General Contractor Budgets and Lender's Disbursement Budget made as
of
the date of this Construction Disbursement Request and not previously provided
to Agent Bank; and
4. All
other
data, documents and information required under Article IX of the Credit
Agreement.
The
Borrower hereby certifies and warrants that as of the date hereof all of the
foregoing documents, certificates and data are true, correct and
complete.
Xxxxxxxx
agrees that if prior to the time of the funding of the Construction Disbursement
hereby requested, any matters certified herein by it will not be true and
correct at such time as if then made, it will immediately so notify the Agent
Bank. Except
2
to
the
extent, if any, that prior to the time the Construction Disbursement requested
hereby the Agent Bank shall receive written notice to the contrary from the
Borrower, each matter certified to herein shall be deemed once again to be
certified as true and correct at the date of such Construction Disbursement
as
if then made.
The
Borrower has caused this Construction Disbursement Request to be executed and
delivered and the certification and warranties contained herein to be made,
by
its Authorized Officer as of the day and year first above written.
|
CC
TOLLGATE LLC,
a
Delaware limited liability company
By: CENTURY
CASINOS TOLLGATE, INC., a Delaware corporation,
Its
Managing Member
By
/s/ Xxxxx Xxxxxxxxx
Xxxxx
Xxxxxxxxx,
CEO
and Secretary
|
3
PAYMENT
SUBORDINATION AGREEMENT
THIS
PAYMENT SUBORDINATION AGREEMENT (the "Agreement") is made and entered into
as of
the ____ day of ____________, 2005, by ______________________ (hereinafter
referred to as "Subordinator") and delivered to XXXXX FARGO BANK, National
Association, as administrative and collateral agent ("Agent Bank") on behalf
of
itself and each of the Lenders hereinafter described.
R_E_C_I_T_A_L_S:
WHEREAS:
A. As
of the
date of this Agreement, there is outstanding and owing by CC Tollgate LLC,
a
Delaware limited liability company (the "Company") to Subordinator indebtedness
in the aggregate amount of ____________________ ($____________) (together with
the interest thereon, the "Subordinated Debt") evidenced by that certain
unsecured Promissory Note dated _______________ (the "Subordinated Note"),
a
copy of which is marked "Exhibit A", affixed hereto and by this reference
incorporated herein and made a part hereof, which Subordinated Note executed
by
the Company, payable to the order of Subordinator and other parties, as the
lenders.
Now,
therefore, in and for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the Subordinator, the
Subordinator hereby agrees as follows:
1. The
Company has entered into a Credit Agreement dated as of November 18, 2005 (as
it
may be amended, modified or supplemented from time to time, the "Credit
Agreement") with the Lenders therein named (each, together with their respective
successors and assigns, individually being referred to herein as a "Lender"
and
collectively as the "Lenders"), XXXXX
FARGO BANK, National Association, as the issuer of Letters of Credit (herein,
in
such capacity, called 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, the "Agent Bank" and, together
with the Lenders and L/C Issuer, collectively referred to as the
"Banks"),
under
the terms of which Xxxxx agreed to establish and fund a construction and term
loan ("C/T Loan") in the amount of Thirty-Two Million Five Hundred Thousand
Dollars ($32,500,000.00) and a revolving credit facility (the "Revolving Credit
Facility" and, together with the C/T Loan, collectively, the "Bank Facilities")
in the initial principal amount of Two Million Five Hundred Thousand Dollars
($2,500,000.00) at any time outstanding, all subject to the terms and conditions
set forth in the Credit Agreement. The C/T Loan is evidenced by a
EXHIBIT E
2. The
Subordinated Note may not be transferred or assigned by Subordinator without
the
prior written consent of Agent Bank and, unless so transferred or assigned,
shall be owned by Subordinator at all times free and clear of any lien, pledge,
charge, security interest or other encumbrance.
3. So
long
as any monetary obligation or other obligation or commitment to advance funds
under the Credit Agreement, the Bank Notes or any other Loan Document, as
defined in the Credit Agreement (as such obligations may be amended, modified,
restated, renewed, increased or extended, including, without limitation, post
petition interest whether or not allowed in any insolvency proceedings, and
fees, attorneys costs and indemnities under the Loan Documents, collectively
referred to herein as the "Bank Debt") shall remain unpaid or unfunded, in
whole
or in part, the Subordinator may not:
(a) [Insert
Payment Restrictions];
or
(b) Receive
any payment of interest, directly or indirectly, on the Subordinated Debt,
if:
(i) a
Default
or Event of Default, as defined in the Credit Agreement, shall have occurred
and
is continuing under any Bank Debt; or
(ii) the
making of such payment would create a Default or Event of Default, as defined
in
the Credit Agreement.
4. In
the
event that any such payments of principal and/or interest are made in violation
of the foregoing provisions, such payments shall not be accepted by Subordinator
and, if so accepted, shall be held in trust for the benefit of, and shall be
paid forthwith over and delivered to Agent Bank. The subordination provisions
set forth hereinabove are made for the benefit of Banks and it is understood
by
Company and by Subordinator that Xxxxx will take certain actions in reliance
upon such subordination provisions. It is further understood that Xxxxx'
reliance upon the referenced subordination provisions shall not constitute
a
waiver by Banks of their right to insist upon strict compliance with all
provisions of the Credit Agreement and with all provisions of the Loan Documents
as particularly defined by the Credit Agreement.
2
5. (a)In
the
event of:
(i) any
insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment,
composition or other similar proceeding relating to any of the Borrower, its
creditors or its property;
(ii) any
proceeding for the liquidation, dissolution or other winding-up of the Borrower,
voluntary or involuntary, whether or not involving insolvency, reorganization
or
bankruptcy proceedings;
(iii) any
assignment by Borrower for the benefit of creditors; or
(iv) any
other
marshalling of the assets of Xxxxxxxx;
all
Bank
Debt (including any interest thereon accruing after the commencement of any
such
proceedings and any other sums or premium due) shall first be paid in full
before any payment or distribution, whether in cash, securities or other
property, shall be made on account of any Subordinated Debt or the Subordinated
Loan Documents and any payment or distribution, whether in cash, securities
or
other property which would otherwise, but for these subordination provisions,
be
payable or deliverable in respect of Subordinated Debt or the Subordinated
Loan
Documents shall be paid or delivered directly to the holders of Bank Debt until
all Bank Debt (including any interest thereon accruing after the commencement
of
any such proceedings) shall have been indefeasibly paid in full.
The
Subordinator shall file in any bankruptcy or other proceeding in which the
filing of claims is required by law, all claims which the Subordinator may
have
against any of the Borrower relating to any Subordinated Debt and will assign
to
the holders of the Bank Debt all rights of the Subordinator thereunder. If
Subordinator does not file any such claim, the holder of the Bank Debt as
attorney-in-fact for Subordinator is hereby authorized to do so in the name
of
Subordinator or, in such holder's discretion, to assign the claim to a nominee
and to cause proof of claim to be filed in the name of such holder's nominee.
The foregoing power of attorney is coupled with an interest and cannot be
revoked. The holder of the Bank Debt or its nominee shall have the sole right
to
accept or reject any plan proposed in any such proceeding and to take any other
action which a party filing a claim is entitled to do. In all such cases,
whether in administration, bankruptcy or otherwise, the person or persons
authorized to pay such claim shall pay to the holder of the Bank Debt the amount
payable on such claim and, to the full extent necessary for that purpose, the
Subordinator hereby assigns to the holder of the Bank Debt all of the
Subordinator's rights to any such payments or distributions to which the
Subordinator would otherwise be entitled.
3
(b) If
any
payment or distribution of any character or any security, whether in cash,
securities or other property, shall be received by the Subordinator in
contravention of any of the terms hereof and before all Bank Debt shall have
been indefeasibly paid in full, such payment or distribution or security shall
be received in trust for the benefit of, and shall be paid over or delivered
and
transferred to, the holder of Bank Debt at the time outstanding for application
to the payment of all Bank Debt remaining unpaid, to the extent necessary to
pay
all such Bank Debt in full. In the event of the failure of the Subordinator
to
endorse or assign any such payment, distribution or security, each holder of
Bank Debt is hereby irrevocably authorized to endorse or assign the
same.
(c)
The
Bank Debt shall not be deemed to have been paid in full unless the holder
thereof shall have indefeasibly received cash in lawful currency of the United
States of America equal to the amount of Bank Debt then outstanding, together
with the occurrence of Bank Facilities Termination, as defined in the Credit
Agreement.
(d)
The
Subordinator will take such action (including, without limitation, the execution
and filing of a financing statement with respect to this Agreement and including
the execution, verification, delivery and filing of proofs of claim, consents,
assignments or other instructions which the holder of Bank Debt may reasonably
require in order to prove and realize upon any rights or claims pertaining
to
Subordinated Debt and to effectuate the full benefit of the subordination
contained herein) as may, in the opinion of counsel designated by the Agent
Bank, be reasonably necessary or appropriate to assure the effectiveness of
the
subordination effected by these provisions.
(e) The
Subordinator understands and acknowledges by its execution hereof that the
actions of the Lenders in connection with the Bank Debt are being or have been
made in reliance upon the subordination of the Subordinated Debt to Bank Debt
as
set forth herein.
6. Subordination
Legend; Further Assurances.
The
Company and the Subordinator will cause each note and instrument (if any)
evidencing the Subordinated Debt to be endorsed with the following
legend:
|
"The
Indebtedness evidenced by this instrument is subordinated to the
prior
payment in cash in full of all Bank Debt (as defined in the Payment
Subordination Agreement, dated as of _____________, 200__) pursuant
to,
and to the extent provided in, the Payment Subordination Agreement
by the
maker hereof and payee named herein in favor of the Agent Bank therein
named and its successors and
assigns."
|
The
Company and Subordinator each hereby agree to mark its respective books of
account in such a manner as shall be effective to give proper notice of the
effect of this
4
Agreement.
The Company and the Subordinator will at their expense and at any time and
from
time to time promptly execute and deliver all further instruments and documents
and take all further action that may be necessary or that the Agent Bank may
reasonably request in order to protect any right or interest granted or
purported to be granted hereunder or to enable the Agent Bank to exercise and
enforce its rights and remedies hereunder.
7. Subject
to the terms of the Credit Agreement:
(a) This
Agreement shall continue in effect so long as any Bank Debt shall remain unpaid
and no action that the holder of the Bank Debt or any of the Borrower, with
or
without the written consent of the holder of the Bank Debt, may take or refrain
from taking with respect to any Bank Debt, any instrument representing the
same,
any Collateral (as defined in the Credit Agreement) therefor, or any agreement
or agreements, including guaranties, in connection therewith, shall affect
this
Agreement or the obligations of the Subordinator hereunder.
(b) All
rights and interests of the Banks hereunder, and all agreements and obligations
of the Subordinator and the Company under this Agreement, shall remain in full
force and effect irrespective of:
(i) any
lack
of validity or enforceability of the Credit Agreement, the Bank Notes or any
other Loan Document, or any agreement or instrument relating
thereto;
(ii) any
change in the time, manner or place of payment of, or in any other term of,
all
or any of the Bank Debt, or any other amendment, modification, revision,
restatement, extension or waiver of or any consent to departure from the Credit
Agreement, the Bank Notes or any other Loan Document;
(iii) any
taking and holding of Collateral or other security or additional guarantees
for
all or any of the Bank Debt; or any amendment, alteration, exchange,
substitution, restatement, transfer, enforcement, waiver, subordination,
termination or release of any Collateral or such guarantees, or any
non-perfection of any Collateral, or any consent to departure from any such
guaranty;
(iv) any
manner of application of Collateral or proceeds thereof, to all or any of the
Bank Debt, or the manner of sale of any Collateral or other
security;
5
(v) any
consent by any of the Banks or any other Person to the change, restructure
or
termination of the corporate structure or existence of the Borrower or the
Subordinator, or any Subsidiary thereof and any corresponding restructure of
the
Bank Debt, or any other restructure or refinancing of the Bank Debt or any
portion thereof;
(vi) any
modification, compounding, compromise, settlement, release by the Banks or
any
of them or any other Person (or by operation of law or otherwise), collection
or
other liquidation of the Bank Debt or of the Collateral or other security in
whole or in part, and any refusal of payment to any Bank in whole or in part,
from any obligor or guarantor in connection with any of the Bank Debt, whether
or not with notice to, or further assent by, or any reservation of rights
against the Subordinator; or
(vii) any
other
circumstance (including, but not limited to, any statute of limitations) which
might otherwise constitute a defense available to, or a discharge of the
Borrower or the Subordinator.
Without
limiting the generality of the foregoing, the Subordinator hereby consents
to
and agrees that the rights of each Bank hereunder, and the enforceability
hereof, shall not be affected by any release of any Collateral or security
from
the liens and security interests created by any of the Loan Documents or any
other agreement whether for purposes of sales or other dispositions of assets
or
for any other purpose. This Agreement shall continue to be effective or be
reinstated, as the case may be, if at any time any payment of any of the Bank
Debt is rescinded or must otherwise be returned by any Bank upon the insolvency,
bankruptcy or reorganization of the Company or otherwise, all as though such
payment had not been made.
(c) The
Subordinator waives the right to require the Banks to proceed against the
Borrower or any other person liable on the Bank Debt, to proceed against or
exhaust any security held from any Borrower or any other person, or to pursue
any other remedy in the Banks' power whatsoever and the Subordinator waives
the
right to have the property of the Borrower first applied to the discharge of
the
Bank Debt. The Banks may, at their election, exercise any right or remedy they
may have against the Borrower or any security held by the Banks, including,
without limitation, the right to foreclosure upon any such security by one
or
more judicial or nonjudicial sales, without affecting or impairing in any way
the obligations of the Subordinator hereunder, except to the extent the Bank
Debt has been paid, and the Subordinator waives any defense arising out of
the
absence, impairment or loss of any right of reimbursement, contribution or
subrogation or any other right or remedy of the Subordinator against the
6
Borrower
or any such security, whether resulting from such election by the Banks or
otherwise. The Subordinator waives any defense arising by reason of any
disability or other defense of the Borrower or by reason of the cessation
from
any cause whatsoever (including, without limitation, any intervention or
omission by the Lender) of the liability either in whole or in part, of the
Borrower to the Banks for the Bank Debt.
(d) Until
the
Bank Debt is fully and indefeasibly paid, the Subordinator shall not proceed
against the Company for the recovery of all or any portion of the Subordinated
Debt, or proceed against or exhaust any security held from the Company or any
other person, or pursue any other right or remedy in the Subordinator's power
whatsoever for the collection of all or any portion of the Subordinated
Debt.
8. In
case
of a breach by the Subordinator of this Agreement, the Subordinator hereby
agrees to be responsible for and to pay all costs and expenses, including,
without limitation, attorneys' fees and costs and accountants' fees, incurred
by
the holder of the Bank Debt in connection with the enforcement by the holder
of
the Bank Debt of its rights or the protection of the holder of the Bank Debt
of
its interests as a result of such breach under this Agreement, whether incurred
pre-trial, at trial or on appeal.
9. Time
shall be of the essence of this Agreement.
10. This
Agreement shall be governed by and construed in accordance with the law of
the
State of Nevada. The parties hereto further agree that, subject to the
Arbitration provisions set forth below in paragraph 11, the full and exclusive
forum for the determination of any action relating to this Agreement shall
be
either an appropriate Court of the State of Nevada or the United States District
Court or United States Bankruptcy Court for the District of Nevada.
11. 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 this Agreement, the Credit Agreement, Bank
Notes, 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.
7
(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.
(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 Documents 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.
12. Waiver
of Jury Trial.
TO THE
MAXIMUM EXTENT PERMITTED BY LAW, BANKS, THE COMPANY AND SUBORDINATOR 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
AGREEMENT, THE CREDIT AGREEMENT, THE BANK NOTES OR ANY OF THE LOAN DOCUMENTS,
OR
IN ANY WAY CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE DEALINGS OF BANKS,
THE COMPANY AND SUBORDINATOR WITH RESPECT TO THIS AGREEMENT, THE CREDIT
AGREEMENT, THE BANK NOTES OR ANY OF THE LOAN DOCUMENTS, 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, BANKS, THE COMPANY AND SUBORDINATOR EACH MUTUALLY
AGREE
THAT ANY SUCH ACTION, CAUSE OF ACTION, CLAIM, DEMAND, OR PROCEEDINGS SHALL
BE
DECIDED BY A BENCH 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.
8
13. In
the
event any one or more of the provisions contained in this Agreement should
be
invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein shall not in any
way
be affected or impaired thereby.
14. The
Company joins in the execution of this Agreement to evidence its agreement
to
the terms hereof and to be legally bound hereby. This Agreement shall be binding
upon the parties hereto and their respective successors and assigns and shall
inure to the benefit of the parties hereto and their respective successors
and
assigns.
IN
WITNESS WHEREOF, the undersigned has executed this Agreement, as of the day
and
year first above written.
|
SUBORDINATOR:
___________________________
By_________________________
Name______________________
Title________________________
COMPANY:
CC
TOLLGATE LLC,
a
Delaware limited liability company
By:
CENTURY
CASINOS TOLLGATE, INC.,
a
Delaware corporation,
Its
Managing Member
By
/s/ Xxxxx Xxxxxxxxx
Xxxxx
Xxxxxxxxx,
CEO
and Secretary
|
AGENT
BANK:
XXXXX
FARGO BANK, National
Association,
as administrative and
collateral
agent on behalf of itself and
each
of the Lenders and L/C Issuer
By
/s/ Xxxx Xxxx
Xxxx
Xxxx,
Vice
President
|
9
STATE
OF
___________ )
)
ss.
COUNTY
OF
_________ )
This
instrument was acknowledged before me on _______________, 2005, by
__________________________ as _____________________________of/for
______________________.
|
__________________________
Notary
Public
|
STATE
OF
___________ )
)
ss.
COUNTY
OF
__________)
This
instrument was acknowledged before me on _______________, 2005, by Xxxxx
Xxxxxxxxx as CEO and Secretary of Century Casinos Tollgate, Inc.
|
__________________________
Notary
Public
|
STATE
OF
NEVADA )
) ss.
COUNTY
OF
WASHOE )
This
instrument was acknowledged before me on _______________, 2005, by Xxxx Xxxx
as
Vice President of Xxxxx Fargo Bank, National Association.
|
__________________________
Notary
Public
|
10
COMPLIANCE
CERTIFICATE
TO: XXXXX
FARGO BANK, National Association,
as
Agent Bank
Reference
is made to that certain Credit Agreement, dated as of November 18, 2005 (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 (herein, in such capacity, called 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"). Terms defined in the Credit Agreement and not
otherwise defined in this Compliance Certificate ("Certificate") shall have
the
meanings defined and described in the Credit Agreement. This Certificate is
delivered in accordance with Section 5.08(c) of the Credit
Agreement.
The
period under review is the Fiscal Quarter ended [INSERT
DATE] ,
together with, unless otherwise indicated, the three (3) immediately preceding
Fiscal Quarters on a rolling four (4) Fiscal Quarter basis.
I.
COMPLIANCE
WITH AFFIRMATIVE COVENANTS
|
A. FF&E
(Section 5.01): Please state whether or not all FF&E has been
purchased and installed in the Casino Facility free and clear of
all
liens, encumbrances or claims, other than Permitted
Encumbrances.
|
yes/no
|
||
|
B. Liens
Filed
(Section 5.03): Report any liens filed against the Casino Facility
and the
amount claimed in such liens. Describe actions being taken with
respect
thereto.
|
EXHIBIT
F
|
C. Subordinated
Debt and Management Fees
(Section 5.04):
|
|||
|
a. Report
the amount of any payments made on the CCVLLC Subordinated Note
during the
fiscal period under review:
|
|||
|
Interest
|
$______________
|
||
|
Principal
|
$______________
|
||
|
Requirement:
Only allowed to extent permitted in the Payment Subordination
Agreement
(CCVLLC).
|
|||
|
b. Report
the amount of payments made on the Management Agreement during
the fiscal
period under review:
|
$______________
|
||
|
Requirement:
Only allowed to extent permitted in the Management Subordination
Agreement.
|
|||
|
c. Report
the amount of any payments made on all other Subordinated Debt
during the
fiscal period under review:
|
|||
|
Interest
|
$______________
|
||
|
Principal
|
$______________
|
||
|
None
permitted.
|
|||
|
D. Additional
Real Property
(Section 5.06): Attach a legal description of any other real property
or rights to the use of real property acquired subsequent to
the Closing
Date which is used in any material manner in connection with
the Casino
Facility and describe such use. Attach evidence that such real
property or
rights to the use of such real property has been added as Collateral
under
the Credit Agreement.
|
_____________
|
||
|
E. Insurance
(Section 5.09):
|
|||
|
a. Has
there been any change in the insurance coverages or the insurance
companies underwriting such insurance coverages since the last
set of
certificates of insurance delivered to Agent Bank?
|
2
|
b. Are
the insurance coverages in place as of the end of the Fiscal
Quarter under
review in compliance with the requriements of
Section 5.09?
|
_____________ | ||
|
c. For
Annual Certificate: Please complete the Insurance Schedule
set forth below
and list all currently effective insurance policies, including
reference
to the policy number, policy expiration date and reference
to each policy
maintained under subsection of Section 5.09 of the Credit Agreement.
Attach a separate sheet if necessary.
|
|||
|
Insurance
Schedule
|
|||
|
Policy
No.
|
Issuer
|
Expiration
Date
|
|
|
F. Permitted
Encumbrances
(Section 5.11): Describe any Lien attachment, levy, distraint
or other
judicial process or burden affecting the collateral other than
the
Permitted Encumbrances. Describe any matters being contested
in the manner
described in Sections 5.03 and 5.10 of the Credit
Agreement.
|
_____________
|
||
|
G. Suits
or Actions
(Section 5.17): Describe on a separate sheet any matters requiring
advice
to Banks under Section 5.17.
|
_____________
|
||
|
H. Tradenames,
Trademarks and Servicemarks
(Section 5.19): Describe on a separate sheet any matters requiring
advice
to Banks under Section 5.19.
|
_____________
|
||
|
I. Notice
of Hazardous Materials
(Section 5.20): State whether or not to your knowledge there
are any
matters requiring notice to Agent Bank under Section 5.20. If so,
attach a detailed summary of such matter(s).
|
______________
|
||
3
|
J. Compliance
with Management Agreement
(Section 5.22): Describe all defaults, if any, which occurred during
the period under review under the Management Agreement. Describe
any
modifications or amendments to the Management Agreement. State
whether or
not such modifications or amendments have been consented to
by Agent Bank
as required under Section 5.22 of the Credit
Agreement.
|
_____________ |
II.
FINANCIAL
COVENANTS OF THE BORROWER
|
A. Total
Leverage
Ratio
(Section 6.01): To be calculated with reference to the Borrower
as of each
Fiscal Quarter commencing with the first full Fiscal Quarter following
the
Term Out Date, to be calculated: (i) as of the end of the first full
Fiscal Quarter for a fiscal period consisting of the first full
Fiscal
Quarter following the Term Out Date, (ii) as of the end of the second
full Fiscal Quarter for a fiscal period consisting of the first
and second
full Fiscal Quarters following the Term Out Date, (iii) as of the end
of the third full Fiscal Quarter for a fiscal period consisting
of the
first, second and third full Fiscal Quarters following the Term
Out Date,
and (iv) as of the end of the fourth full Fiscal Quarter following
the Term Out Date and as of each Fiscal Quarter end thereafter
occurring,
for a fiscal period consisting of each such Fiscal Quarter and
the most
recently ended three (3) preceding Fiscal Quarters on a rolling
four (4)
Fiscal Quarter basis:
|
|||||
|
TOTAL
FUNDED DEBT:
|
|||||
|
a. The
Funded RLC Outstandings and L/C Exposure on the Revolving Credit
Facility
as of the last day of the Fiscal Quarter under review.
|
$
|
||||
4
|
b. Plus
the amount of the Funded C/T Outstandings as of the last day
of the Fiscal
Quarter under review.
|
+ $
|
||||
|
c. Plus
the total, as of the last day of the Fiscal Quarter under review,
of both
the long-term and current portions (without duplication) of all
other
Indebtedness (including Contingent Liabilities and all Indebtedness
owing
to the Subordinated Lenders under the Subordinated Debt but excluding
accrued but unpaid Management Fees).
|
+ $___________
|
||||
|
d. Plus
the total, as of the last day of the Fiscal Quarter under review
of both
the long-term and current portions (without duplication) of all
Capitalized Lease Liabilities.
|
+ $
|
||||
|
e. TOTAL
FUNDED DEBT
(a
+ b + c + d)
|
$
|
||||
|
Divided
(¸)
by:
|
¸
|
||||
|
EBITDAM
To
be calculated on a cumulative basis with respect to the Fiscal
Quarter
under review and the most recently ended three (3) preceding
Fiscal
Quarters on a four (4) Fiscal Quarter basis; provided that until
the
occurrence of four (4) full consecutive Fiscal Quarters following
the Term
Out Date, the calculation of EBITDAM shall be annualized as set
forth
below.
|
|||||
|
f. Net
Income, including Device Fee Rebates actually received.
|
$
|
||||
|
g. Plus
Interest Expense (expensed and capitalized) to the extent deducted
in the
determination of Net Income.
|
+ $___________
|
||||
5
|
h. Plus
the aggregate amount of federal and state taxes on or measured
by income
for the period under review (whether or not payable during
such period) to
the extent deducted in the determination of Net Income.
|
+ $
|
||||
|
i. Plus
depreciation, amortization and all other non-cash expenses
for the period
under review to the extent deducted in the determination of
Net
Income.
|
+ $
|
||||
|
j. Less
all cash and non-cash income (including, but not limited to,
interest
income), transfers, loans and advances from CCI or any of its
Subsidiaries
to the extent added in the determination of Net Income.
|
- $
|
||||
|
k. Less
all other non-cash income from any source not specified in
(j) above to
the extent added in the determination of Net Income.
|
- $
|
||||
|
l. Plus
Management Fees to the extent deducted in the determination
of Net
Income.
|
+ $
|
||||
|
m. Total
Annualized EBITDAM
(f
+ g + h + i - j - k + l)
|
|||||
|
Provided,
however, for the first three (3) full Fiscal Quarters following
the Term
Out Date, Adjusted EBITDAM shall be determined on an annualized
basis
using the following calculations:
|
|||||
|
(i) EBITDAM
for first (1st)
full Fiscal Quarter following the Term Out Date shall be multiplied
by
four (4);
|
|||||
|
(ii) EBITDAM
for the first (1st)
and second (2nd)
full Fiscal Quarters following the Term Out Date shall be multiplied
by
two (2); and
|
|||||
6
|
(iii) EBITDAM
for the first (1st),
second (2nd)
and third (3rd)
full Fiscal Quarters following the Term Out Date shall be
multiplied by
four-thirds (4/3).
|
|||||
|
Total
Leverage Ratio
(e
¸
m)
|
:1.0
|
||||
|
Maximum
Permitted:
|
|||||
|
Fiscal
Quarter End
|
Maximum
Total
Leverage
Ratio
|
||||
|
As
of the end of the first (1st)
full Fiscal Quarter ending subsequent to the Term Out Date
and as of each
Fiscal Quarter end through the fourth (4th)
Fiscal Quarter ending subsequent to the Term Out Date
|
4.75
to 1.00
|
||||
|
As
of the fifth (5th)
through eighth (8th)
Fiscal Quarter ends occurring subsequent to the Term Out
Date
|
4.50
to 1.00
|
||||
|
As
of the ninth (9th)
through twelfth (12th)
Fiscal Quarter ends occurring subsequent to the Term Out
Date
|
4.00
to 1.00
|
||||
|
As
of the thirteenth (13th)
through sixteenth (16th)
Fiscal Quarter ends occurring subsequent of the Term Out
Date
|
3.25
to 1.00
|
||||
|
As
of the seventeenth (17th)
Fiscal Quarter end occurring subsequent to the Term Out Date
and as of
each Fiscal Quarter end thereafter occurring until Bank Facilities
Termination
|
2.75
to 1.00
|
||||
7
|
B. Senior
Leverage Ratio
(Section 6.02): To be calculated with reference to the
Borrower as of the
last day of each Fiscal Quarter commencing with the first
full Fiscal
Quarter following the Term Out Date, to be calculated:
(i) as of the
end of the first full Fiscal Quarter for a fiscal period
consisting of the
first full Fiscal Quarter following the Term Out Date,
(ii) as of the
end of the second full Fiscal Quarter for a fiscal period
consisting of
the first and second full Fiscal Quarters following the
Term Out Date,
(iii) as of the end of the third full Fiscal Quarter for a fiscal
period consisting of the first, second and third full Fiscal
Quarters
following the Term Out Date, and (iv) as of the end of the fourth
full Fiscal Quarter following the Term Out Date and as
of each Fiscal
Quarter end thereafter occurring, for a fiscal period consisting
of each
such Fiscal Quarter and the most recently ended three (3)
preceding Fiscal
Quarters on a rolling four (4) Fiscal Quarter basis:
|
|||||
|
SENIOR
FUNDED DEBT:
|
|||||
|
a. The
Funded RLC Outstandings and L/C Exposure on the Credit
Facility as of the
last day of the Fiscal Quarter under review.
|
$
|
||||
|
b. Plus
the amount of Funded C/T Outstandings as of the last day
of the Fiscal
Quarter under review.
|
+
$
|
||||
|
c. Plus
the total, as of the last day of the Fiscal Quarter under
review, of both
the long-term and current portions (without duplication)
of all other
Indebtedness (including Contingent Liabilities, but excluding
all
Indebtedness owing to the Subordinated Lenders under the
Subordinated Debt
and excluding accrued but unpaid Management Fees).
|
+ $
|
||||
8
|
d. Plus
the total, as of the last day of the Fiscal Quarter under
review of both
the long-term and current portions (without duplication)
of all
Capitalized Lease Liabilities.
|
+ $
|
||||
|
e. TOTAL
SENIOR DEBT
(a
+ b + c + d)
|
$
|
||||
|
Divided
(¸)
by:
|
¸
|
||||
|
f. ANNUALIZED
EBITDAM
(Enter
II A(m) above)
|
$
|
||||
|
g. Senior
Leverage Ratio
(e
¸
f)
|
:1.0
|
||||
|
Maximum
Permitted:
|
|||||
|
Fiscal
Quarter End
|
Maximum
Senior
Leverage
Ratio
|
||||
|
As
of the first (1st)
through fourth (4th)
Fiscal Quarter ends occurring subsequent to the Term
Out Date
|
4.25
to 1.00
|
||||
|
As
of the fifth (5th)
through eighth (8th)
Fiscal Quarter ends occurring subsequent to the Term
Out
Date
|
3.75
to 1.00
|
||||
|
As
of the ninth (9th)
through twelfth (12th)
Fiscal Quarter ends occurring subsequent to the Term
Out Date
|
3.25
to 1.00
|
||||
|
As
of the thirteenth (13th)
through sixteenth (16th)
Fiscal Quarter ends occurring subsequent of the Term
Out
Date
|
2.75
to 1.00
|
||||
|
As
of the seventeenth (17th)
Fiscal Quarter end occurring subsequent to the Term Out
Date and as of
each Fiscal Quarter end thereafter occurring until Bank
Facilities
Termination
|
2.25
to 1.00
|
||||
9
|
C. Adjusted
Fixed Charge Coverage Ratio
(Section 6.03): Commencing as of the first full Fiscal
Quarter end
following the Term Out Date and continuing as of each
Fiscal Quarter end
until Bank Facilities Termination, the Borrower shall
maintain an Adjusted
Fixed Charge Coverage Ratio, to be calculated: (i) as of the end of
the first full Fiscal Quarter for a fiscal period consisting
of the first
full Fiscal Quarter following the Term Out Date, (ii) as of the end
of the second full Fiscal Quarter for a fiscal period
consisting of the
first and second full Fiscal Quarters following the
Term Out Date,
(iii) as of the end of the third full Fiscal Quarter for
a fiscal
period consisting of the first, second and third full
Fiscal Quarters
following the Term Out Date, and (iv) as of the end of the fourth
full Fiscal Quarter following the Term Out Date and
as of each Fiscal
Quarter end thereafter occurring, for a fiscal period
consisting of each
such Fiscal Quarter and the most recently ended three
(3) preceding Fiscal
Quarters on a rolling four (4) Fiscal Quarter basis:
|
|||||
|
Numerator
|
|||||
|
a. Total
Annualized EBITDAM
(Enter
II A(m) above).
|
$
|
||||
|
b. Less
the aggregate amount of actually paid Distributions,
including, without
limitation, all Tax Distributions actually paid.
|
- $
|
||||
|
c. Less
the aggregate amount of Maintenance Capital Expenditures.
|
- $
|
||||
|
d. Less
the aggregate amount of Management Fees paid in cash.
|
- $
|
||||
|
e. Total
Numerator
(a
- b - c - d)
|
$
|
||||
|
Divided
(¸)
by the sum of:
|
|||||
|
Denominator
|
|||||
10
|
f. The
aggregate amount of actually paid Interest Expense
(expensed and
capitalized).
|
$
|
||||
|
g. Plus
the aggregate amount of actually paid principal payments
or reductions
(without duplication) required to be made on all
outstanding Indebtedness
(exclusive of any Excess Cash Flow Payments).
|
+ $
|
||||
|
h. Plus
the current portion of Capitalized Lease Liabilities.
|
+ $
|
||||
|
i. Total
Denominator
(e
+ f + g)
|
$
|
||||
|
Adjusted
Fixed Charge Coverage Ratio (d ¸
h)
|
:1
|
||||
|
Minimum
required:
|
|||||
|
Fiscal
Quarter End
|
Minimum
Adjusted
Fixed
Charge
Coverage
|
||||
|
As
of the first (1st)
through fourth (4th)
Fiscal Quarter ends occurring subsequent to the Term
Out
Date
|
1.10
to 1.00
|
||||
|
As
of the fifth (5th)
Fiscal Quarter end occurring subsequent to the Term
Out Date and as of
each Fiscal Quarter end thereafter occurring until
Bank Facilities
Termination
|
1.15
to 1.00
|
||||
|
D. Minimum
Annualized EBITDAM
(Section 6.04): Commencing with the first full Fiscal
Quarter ending
subsequent to the Term Out Date and continuing as
of each Fiscal Quarter
end set forth Annualized EBITDAM of the Borrower
|
|||||
|
Enter
Total Annualized EBITDAM
(See
II A(m) above):
|
|||||
|
Minimum
Required:
|
|||||
11
|
Fiscal
Quarter End
|
Minimum
Amount
of
Annualized
EBITDAM
|
||||
|
As
of the first (1st)
through eighth (8th)
Fiscal Quarter ends occurring subsequent to the
Term Out Date
|
$8,000,000.00
|
||||
|
As
of the ninth (9th)
through sixteenth (16th)
Fiscal Quarter ends occurring subsequent to the
Term Out
Date
|
$8,250,000.00
|
||||
|
As
of the seventeenth (17th)
Fiscal Quarter end occurring subsequent to the
Term Out Date and as of
each Fiscal Quarter end thereafter occurring until
Bank Facilities
Termination
|
$8,500,000.00
|
||||
|
E. Limitation
on Indebtedness
(Section 6.05):
|
|||||
|
a. Set
forth the aggregate amount of Secured Interest
Rate
Xxxxxx.
|
$
|
||||
|
Maximum
Permitted: $
|
|||||
|
b. Set
forth the aggregate amount of:
|
|||||
|
(i) Secured
purchase money Indebtedness
|
$
|
||||
|
(ii) Capital
Lease Liabilities
|
$
|
||||
|
Total
|
$
|
||||
|
Maximum
aggregate permitted under Section 6.05(d): $500,000.00
|
|||||
|
c. Set
forth aggregate amount of Unsecured Indebtedness
(other than trade
payables and Subordinated Debt).
|
$
|
||||
|
Maximum
Permitted: $1,000,000.00
|
|||||
|
d. Set
forth the aggregate amount of Subordinated Debt
owing by the
Borrower
|
$
|
||||
|
e. Set
forth amount of Subordinated Debt, if any, which
is not
CCVLLC Subordinated Debt or CCI Subordinated Debt.
|
$
|
||||
12
|
f. Set
forth the amount and a brief description of any
Indebtedness of the
Borrower not permitted under Section
6.05.
|
$
|
||||
|
F. Restriction
on Distributions
(Section 6.06):
|
|||||
|
a. Set
forth aggregate amount of Distributions made
by Borrower other than Tax
Distributions.
|
$
|
||||
|
b. Set
forth aggregate amount of Tax Distributions.
|
$
|
||||
|
c. Total
Distributions
(a
+ b)
|
$
|
||||
|
Maximum
Permitted:
|
|||||
|
Attach
on a separate sheet a pro forma calculation of
the Adjusted Fixed Charge
Coverage Ratio of the Borrower as of the most
recently ended Fiscal
Quarter prior to the Fiscal Quarter under review,
based on the assumption
that such Distributions (including Tax Distributions)
had occurred during
such prior Fiscal Quarter.
|
|||||
|
Set
forth the Pro Forma Adjusted Fixed Charge Coverage
Ratio
|
:1.00
|
||||
|
Must
not be less than coverages required under Section
6.03.
|
|||||
|
None
permitted prior to occurrence of December 31, 2006 as a Tax
Distribution for the 2006 Fiscal Year.
|
|||||
|
G. Capital
Expenditures Requirements
(Section 6.07):
|
|||||
|
a. Commencing
as of the first full Fiscal Quarter ending subsequent
to the Term Out Date
and continuing as of each Fiscal Quarter end
until Bank Facilities
Termination, set forth the aggregate amount of
Maintenance Capital
Expenditures to the Casino Facility during the
Fiscal Year under
review
|
$
|
||||
13
|
b. Set
forth the amount of prior Fiscal Year gross
gaming
revenues.
|
$
|
||||
|
Minimum
Maintenance Cap Ex Requirement:
|
|||||
|
Fiscal
Quarter End
|
Minimum
Maintenance
Cap
Ex
Requirement
|
Maximum
Maintenance
Cap
Ex Limit
|
|||
|
As
of the first (1st)
through fourth (4th)
Fiscal Quarter ends occurring subsequent to
the Term Out
Date
|
1.0%
|
6.0%
|
|||
|
As
of the fifth (5th)
through eighth (8th)
Fiscal Quarter ends occurring subsequent to
the Term Out
Dat
|
1.5%
|
6.0%
|
|||
|
As
of the ninth (9th)
through twelfth (12th)
Fiscal Quarter ends occurring subsequent to
the Term Out Date and as of
each four consecutive Fiscal Quarter period
ending thereafter until Bank
Facilities Termination
|
2.0%
|
6.0%
|
|||
|
Maximum
Maintenance Cap Ex Limits:
|
|||||
|
6%
of prior Fiscal Year gross gaming revenues.
|
|||||
|
H. Contingent
Liabilities
(Section 6.08):
|
|||||
|
a. Set
forth the cumulative aggregate amount of Contingent
Liabilities incurred
by the Borrower.
|
$
|
||||
|
Maximum
allowed: None without prior written consent
of Requisite
Lenders.
|
|||||
|
I. Investment
Restrictions
(Section 6.09):
|
|||||
14
|
a. Set
forth the date, amount and a brief description
of each Investment made by
the Borrower not permitted under Section
6.09.
|
$
|
||||
|
J. Total
Liens
(Section 6.10): On a separate sheet describe
in detail any and all Liens
on any assets of the Borrower not
permitted under Section 6.10.
|
|||||
|
K. Change
of Control
(Section 6.11): State whether or not a Change
of Control has
occurred.
|
yes/no
|
||||
|
L. Sale
of Assets, Consolidation, Merger or Liquidation
(Section 6.12):
|
|||||
|
a. On
a separate sheet describe any and all mergers,
consolidations,
liquidations and/or dissolutions not permitted
under Section
6.12.
|
|||||
|
b. With
respect to the determination of Excess Capital
Proceeds, please set forth
the amount of Net Proceeds received by the
Borrower during the current
Fiscal Year from the disposition of FF&E and other items of Collateral
which have not been replaced with purchased
or leased FF&E of
equivalent value and utility.
|
|||||
|
Requirement:
On or before 30 days following such disposition,
must make a Mandatory
Prepayment for amount of Excess Capital Proceeds
in excess of $10,000
during any Fiscal Year.
|
|||||
|
X. XXXXX
(Section 6.13): Describe on a separate sheet
any matters requiring notice
to Agent Bank under Section 6.13.
|
|||||
|
X. Xxxxxx
Regulations
(Section 6.14): Set forth the amount(s) of
and describe on a separate
sheet of paper any proceeds of the Bank Facilities
used by Borrower in
violation of Section 6.14.
|
$
|
||||
|
O. Transactions
with Affiliates
(Section 6.15): Describe on a separate sheet
any transactions with
Affiliates not permitted under Section 6.15.
|
|||||
15
|
P. Limitation
on Subsidiaries
(Section 6.16): On a separate sheet, describe
any Subsidiaries created by
Borrower. State whether or not the creation
of such Subsidiaries has been
consented to by the Requisite Lenders as
required under Section 6.16
of the Credit Agreement.
|
|||||
III.
NONUSAGE
FEE CALCULATION
|
(Section
2.12(b)): To be calculated with respect to the Fiscal Quarter under
review:
|
|
|
a. Aggregate
RLC Commitment, less the daily average of the Funded RLC
Outstandings.
|
$
|
|
b. Until
the occurrence of the Term Out Date, $32,500,000.00 less the daily
average
of the Funded Term Outstandings.
|
$
|
|
c. Amount
of Nonusage.
(a plus
b)
|
$
|
|
d. Applicable
Nonusage Percentage.
|
0.75%
|
|
x. Xxxxx
Nonusage Fee.
(c
times d)
|
$
|
|
f. Number
of days in Fiscal Quarter under review
|
|
|
g. Nonusage
Fee for Fiscal Quarter under review.
(e
¸
360 x f)
|
$
|
IV.
EXCESS
CASH FLOW CALCULATION
Commencing
with the first full Fiscal Quarter ending subsequent to the Term Out Date and
continuing as of each Fiscal Quarter end until Bank Facilities Termination
set
forth the amount, if any, of Excess Cash Flow realized by the Borrower during
such Fiscal Quarter.
16
|
EBITDAM
for the Fiscal Quarter under review:
|
|
|
a. Net
Income, including Device Fee Rebates actually received.
|
$
|
|
b. Plus
Interest Expense (expensed and capitalized) to the extent deducted
in the
determination of Net Income.
|
+ $___________
|
|
c. Plus
the aggregate amount of federal and state taxes on or measured
by income
for the period under review (whether or not payable during such
period) to
the extent deducted in the determination of Net Income.
|
+ $
|
|
d. Plus
depreciation, amortization and all other non-cash expenses for
the period
under review to the extent deducted in the determination of Net
Income.
|
+ $
|
|
e. Less
all cash and non-cash income (including, but not limited to, interest
income), transfers, loans and advances from CCI or any of its Subsidiaries
to the extent added in the determination of Net Income.
|
- $
|
|
f. Less
all other non-cash income from any source not specified in (e)
above to
the extent added in the determination of Net Income.
|
- $
|
|
g. Plus
Management Fees to the extent deducted in the determination of
Net
Income.
|
+ $
|
|
h. EBITDAM
(a
+ b + c + d - e - f + g)
|
$
|
|
i. Less,
the aggregate amount of Maintenance Capital Expenditures
|
- $
|
|
j. Less,
the aggregate amount of Interest Expense actually paid
|
- $
|
17
|
k. Less,
the aggregate of Scheduled Term Amortization Payments.
|
- $
|
|
l. Less,
the aggregate of principal payments or reductions (without duplication)
required to be made on all other outstanding Indebtedness (exclusive
of
any Excess Cash Flow Payments).
|
- $
|
|
m. Total
Excess Cash Flow.
(h - i - j - k - l )
|
$
|
|
n. Excess
Cash Flow Payment.
(m times 50%)
|
$
|
|
Requirement:
Due within 60 days of Fiscal Quarter end unless as of such Fiscal
Quarter
end the Senior Leverage Ratio is less than 2.50 to 1.00. (See II
B(g))
|
V.
PERFORMANCE
OF OBLIGATIONS
A
review
of the activities of the Borrower during the fiscal period covered by the
attached financial statements has been made under my supervision with a view
to
determining whether during such fiscal period any Default or Event of Default
has occurred and is continuing. Except as described in an attached document
or
in an earlier Certificate, to the best of my knowledge, as of the date of this
Certificate, there is no Default or Event of Default that has occurred and
remains continuing.
VI.
NO
MATERIAL ADVERSE CHANGE
To
the
best of my knowledge, except as described in an attached document or in an
earlier Certificate, no Material Adverse Change has occurred since the date
of
the most recent Certificate delivered to the Banks.
18
DATED
this ____ day of _____________, _____.
|
CC
TOLLGATE LLC,
a
Delaware limited liability company
By: CENTURY
CASINOS TOLLGATE, INC., a Delaware corporation,
Its
Managing Member
By
/s/ Xxxxx Xxxxxxxxx
Xxxxx
Xxxxxxxxx,
CEO
and Secretary
|
19
FORM
OF LEGAL OPINION
[Letterhead
of Xxxxxxxx's Counsel]
_______________,
2005
Xxxxx
Fargo Bank,
National
Association,
Agent
Bank, Lender and L/C Issuer
5300
Xxxxxxx Xxxx, Xxxxx 000
Reno,
NV
89511
Attn:
Xxxx Xxxx, V.P.
and
each
of the Banks described on Schedule 1 hereto, and their successors and
assigns
|
Re:
|
Credit
Agreement dated as of November 18, 2005 (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 (herein, in such
capacity,
called the "L/C Issuer") and Xxxxx Fargo Bank, National Association,
as
sole lead arranger, 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")
|
Ladies
and Gentlemen:
We
are
special Colorado counsel to Borrower and Century Casinos, Inc., a Delaware
corporation ("CCI") and have acted in such capacity in connection with the
preparation, execution and delivery of the Credit Agreement and each of the
Loan
Documents. This opinion is delivered to you at the request of Borrower pursuant
to Section 3.06 of the Credit Agreement for the reliance of each of the Banks
and their respective successors and assigns.
EXHIBIT
G
All
capitalized terms which are used herein, and which are not otherwise defined
herein, shall have the meaning which is set forth by Section 1.01 of the Credit
Agreement.
We
have
examined:
| 1. |
the
Credit Agreement;
|
| 2. |
the
Revolving Credit Note;
|
| 3. |
the
Construction and Term Promissory
Note;
|
| 4. |
the
Completion Guaranty
|
| 5. |
the
Assignment of Entitlements, Contracts, Rents and
Revenues;
|
| 6. |
the
Deed of Trust;
|
| 7. |
the
Financing Statements;
|
| 8. |
the
Payment Subordination Agreement
(CCI);
|
| 9. |
the
Payment Subordination Agreement
(CCVLLC);
|
| 10. |
the
Environmental Certificate;
|
| 11. |
the
Assignment, Assumption and Consent;
|
| 12. |
the
Management Subordination Agreement;
|
| 13. |
the
Assignment of Architect's Contract;
|
| 14. |
the
Assignment of Casino General Contractor's
Agreement;
|
| 15. |
the
Assignment of Garage General Contractor’s Agreement; (Documents 1 to 15,
inclusive, are referred to hereinafter as the "Loan
Documents.")
|
| 16. |
Articles
of Organization and Operating Agreement for
Borrower;
|
| 17. |
Articles
of Incorporation and Bylaws for Century Casinos Tollgate, Inc., a
Delaware
corporation ("CCTI");
|
| 18. |
Articles
of Incorporation and Bylaws for
CCI;
|
| 19. |
Good
Standing Certificates of Borrower, CCTI and CCI from the Delaware
Secretary of State and of Borrower and CCTI from the Colorado Secretary
of
State;
|
| 20. |
Resolutions
of the Managers of Borrower and CCTI certified by an Officer of
CCTI;
|
| 21. |
Resolution
of CCI authorizing the execution of the Completion Guaranty;
and
|
| 22. |
Certificate
of the Incumbency of Xxxxxxxx’s Officer and Authorized Manager by an
Officer of CCTI.
|
We
have
assumed the authenticity of all documents submitted to us as originals, the
genuineness of all signatures (other than the signature of members or officers
signing on behalf of Borrower or its manager CCTI and CCI), the legal capacity
of natural persons and the conformity to originals of all copies of all
documents submitted to us. We have relied upon the certificates of all public
officials and corporate officers with respect to the accuracy of all matters
contained therein.
As
used
herein, the phrase "the best of our knowledge" means only such actual knowledge
as we have obtained from consultation with attorneys presently in our firm
whom
we have determined are likely, in the ordinary course of their respective
duties, to have knowledge of the matters covered by such opinions. Except as
expressly provided otherwise herein, we have not conducted any other
investigation or review in connection with the opinions rendered herein,
including without limitation a review of any of our files or the files of
Borrower.
We
are
not expressing any opinion as to the effect of the compliance or noncompliance
of any of the Banks with any state or federal laws or regulations which are
applicable because of the legal or regulatory status, or the nature of the
business of any of the Banks.
Based
on
the foregoing and subject to the qualifications set forth herein, we are of
the
opinion that:
1. Borrower
is a limited liability company and each of CCI and CCTI is a corporation, each
duly formed, validly existing and in good standing under the laws of the State
of Delaware. Each of Borrower, CCTI and CCI (i) have all requisite power to
execute and deliver the Loan Documents, to consummate the transactions and
perform its obligations under the Loan Documents, and to own and operate the
Casino Facility, and (ii) have taken all necessary action to authorize the
execution, delivery and performance of the Loan Documents and to consummate
the
transactions contemplated thereby.
2. Each
of
Borrower, CCTI and CCI have duly authorized the execution, delivery and
performance of the Loan Documents to which it is a party and the taking of
any
and all action necessary to carry out and give effect to the transactions
contemplated to be performed under the Loan Documents.
3. Neither
the execution and delivery of the Loan Documents, nor the consummation of the
transactions contemplated under the Loan Documents, or the compliance with
or
performance of the terms and conditions in the Loan Documents, conflicts in
any
material respect with, or will result in a material breach or violation of,
or a
material default (with due notice or lapse of time or both) under, or the
creation or imposition of any lien, charge, or encumbrance of any nature
whatsoever upon any of their respective property or assets by virtue of, the
terms, conditions or provisions of (a) the Articles of Organization or Operating
Agreement of Borrower, (b) the Articles of Incorporation and Bylaws of CCTI
or
CCI, (c) to the best of our knowledge any indenture, evidence of
indebtedness, loan or financing agreement, or other agreement or instrument
of
whatever nature to which Borrower or CCI is a party or by which Borrower or
CCI
is bound, (d) any provision of any existing Colorado law or regulation, or
(e)
to the best of our knowledge any order, writ, injunction or decree of any
Colorado court or Colorado Governmental Authority to which Borrower or CCI
is
subject, where in the case of (a), (b), (c) or (d) above such breach, violation
or default could reasonably be expected to result in a Material Adverse
Change.
4. Each
of
the Loan Documents to be executed by the Borrower have been duly executed and
delivered by the Borrower and constitute legal, valid and binding obligations
of
the Borrower enforceable against Borrower in accordance with their respective
terms.
5. The
Completion Guaranty has been duly executed and delivered by CCI and constitutes
the legal, valid and binding obligations of CCI enforceable against CCI in
accordance with its terms.
6. The
Deed
of Trust has been fully executed and delivered and will, when recorded in the
office of the County Recorder of Xxxxxx County, Colorado, create a valid and
legally binding: (i) encumbrance lien on the real property Collateral
therein described; and (ii) security interest in the personal property
Collateral therein described. No other filing or other registration of any
document or instrument is necessary or advisable to protect the priority of
the
lien so created in the real property Collateral and it is not necessary to
re-file or re-record the Deed of Trust in order to maintain such priority until
ten years after the debt secured by the Deed of Trust according to the terms
thereof or any recorded extension thereof becomes wholly due. Although there
is
no case law on point, we believe that in the case of installment obligations
the
above-mentioned ten year period runs from the due date of the last
installment.
7. Upon
the
filing of the Financing Statement listing the FF&E and other Collateral
therein described, in the office of the Secretary of State of Delaware, the
security interest granted by the Deed of Trust will be perfected to the extent
that such security interest may be perfected by the filing of a financing
statement in Delaware under the Delaware and Colorado Uniform Commercial Code,
and no refiling or re-recording of such Financing Statement is required in
order
to maintain the security interest of Agent Bank in said Collateral, except
continuation statements which are required to be filed within six (6) months
prior to the expiration of five (5) years from the date of the filing of the
original Financing Statement. The security interest of the Lender in that
portion of the Collateral described in the Deed of Trust which constitutes
fixtures will be perfected upon the recording of the Deed of Trust in the County
Recorder of Xxxxxx County, Colorado.
8. It
is not
necessary under any Gaming Law by reason of the execution, delivery or
performance of the Loan Documents, that Agent Bank or any of the Banks be
licensed, qualified or authorized to carry on business in any such jurisdiction.
All necessary authorizations, consents and approvals of all applicable Gaming
Authorities have been procured by Borrower for the execution and delivery by
them of the Loan Documents, and for the advance of Borrowings and Construction
Disbursements under the Credit Agreement, and for the performance by Borrower
of
its obligations, under the Loan Documents to which it is a party.
9. The
transactions contemplated by the Credit Agreement will not violate the usury
laws of the State of Colorado.
10. A
court
of the State of Colorado (or a federal court sitting in the State of Colorado)
in a properly presented case should give effect to the choice of Nevada law
set
forth in the Loan Documents stated to be governed by Nevada law, except as
to
certain provisions of law that may constitute mandatory provisions of law or
that may embody a strong public policy of the State of Colorado or with respect
to which there may exist a strong governmental interest in the application
of
the laws of the State of Colorado. The foregoing opinion is based on the
assumptions that:
a. The
Loan
Documents provide that they are governed by the internal laws of the State
of
Nevada; and
b. In
selecting the laws of the State of Nevada to govern the Loan Documents, the
Banks acted in good faith and without an intent to evade the law. The
transactions described in the Loan Documents bear a substantial relationship
to
Nevada and a reasonable basis exists for the choice of Nevada law to govern
the
Loan Documents.
The
opinions set forth in Paragraphs (6) and (7) above are further subject to the
additional qualifications that: (a) the enforcement of the Loan Documents
may be subject to bankruptcy, insolvency, reorganization, moratorium or similar
laws now or hereinafter in effect relating to creditors' rights generally;
(b) certain of the provisions contained in the Loan Documents may be
unenforceable in whole or in part, to the extent that any such provision may
contravene the public policy of the State of Nevada or State of Colorado, as
applicable; and (c) certain waivers contained in the Loan Documents may be
unenforceable in whole or in part under the laws of the State of Nevada or
State
of Colorado, as applicable, but the inclusion of such provisions, as described
in (b) and (c) above, does not affect the validity of such Loan Documents and
such Loan Documents contain adequate provisions for enforcing payment of all
monetary obligations thereunder and for the practical realization of the rights
and benefits afforded thereby, provided such enforcement is conducted in
accordance with the procedures established by the laws of the State of Nevada
or
State of Colorado, as applicable. We express no opinion as to the title to
any
real or personal property, or as to the priority of any lien or security
interest created by any of the Loan Documents. Furthermore, in rendering the
opinions hereunder, we have assumed that one, or more, of the Borrower and/or
CCTI, as applicable, have an interest in the Collateral which constitutes
personal property.
This
opinion is rendered to the Banks, and their respective successors and assigns,
in connection with the transactions referred to herein and may not be relied
on
in any other context; nor may it be relied on by any other Person. This opinion
may not be quoted nor may copies hereof be furnished to any other Person without
the prior written consent of the undersigned, except that the Banks, and their
respective successors and assigns, and any of them, may furnish a copy hereof:
(i) to their respective independent auditors and attorneys; (ii) to any
governmental authority or authority having regulatory jurisdiction over Banks,
or their respective successors and assigns; (iii) pursuant to order or
legal process of any court or governmental authority; (iv) in connection
with any legal action to which a Bank, or its successors and assigns, are a
party arising out of the transactions referred to above; or (v) to a third
party in connection with a proposed assignment of any interest in the Loan
Documents.
Sincerely,
AFTER
RECORDING THIS
INSTRUMENT
SHOULD BE
RETURNED
TO:
Xxxxxxx
X. Xxxxxxxxx
Xxxxxxxxx
& Xxxxxx, LLC
4600
Xxxxxxx Xxxx, Xxxxx X000
Reno,
NV
89502
SUBORDINATION
AGREEMENT
(Management
Agreement)
THIS
SUBORDINATION AGREEMENT ("Agreement"), made this 18th
day of
November, 2005, by and among CC TOLLGATE LLC, a Delaware limited liability
company (hereinafter referred to as "Borrower"), party of the first part,
CENTURY CASINOS MANAGEMENT, INC., a Delaware corporation (hereinafter referred
to as "Operator"), party of the second part, and XXXXX FARGO BANK, National
Association, as Agent Bank on behalf of itself and each of the Lenders, as
defined and described in the Credit Agreement, described hereinbelow,
hereinafter referred to as "Agent Bank", party of the third part.
R_E_C_I_T_A_L_S:
WHEREAS:
X. Xxxxxxxx
owns all of that certain real property situate in Central City, Colorado, that
is more particularly described on that certain exhibit marked "Exhibit A",
affixed hereto and by this reference incorporated herein and made a part hereof,
together with all buildings, structures and other improvements constructed
or to
be constructed thereon (hereinafter referred to as the "Casino
Facilities").
B. In
this
Agreement all capitalized words and terms shall have the respective meanings
and
be construed herein as provided in Section 1.01 of the Credit Agreement
dated as of November 18, 2005 (as may be amended, modified, extended,
renewed or restated from time to time, the "Credit Agreement"), executed by
and
among the Borrower and the Lenders and L/C Issuer therein named, and Agent
Bank,
as administrative and collateral agent for itself and for the
Lenders.
EXHIBIT
H
C. Pursuant
to the Credit Agreement and subject to the terms and conditions specified
therein, Lenders have agreed to establish and fund a construction and term
loan
("C/T Loan") in the amount of Thirty-Two Million Five Hundred Thousand Dollars
($32,500,000.00) and a revolving credit facility, including a subfacility for
the issuance of letters of credit (the "Revolving Credit Facility" and, together
with the C/T Loan, collectively, the "Bank Facilities") in the initial principal
amount of Two Million Five Hundred Thousand Dollars ($2,500,000.00) at any
time
outstanding, all subject to the terms and conditions set forth in the Credit
Agreement. The C/T Loan is evidenced by a Construction and Term Note ("C/T
Note") in the principal sum of Thirty-Two Million Five Hundred Thousand Dollars
($32,500,000.00). The Revolving Credit Facility is evidenced by a Revolving
Credit Note (the "Revolving Credit Note" and, together with the C/T Note,
collectively, the "Bank Notes") in the principal sum of Two Million Five Hundred
Thousand Dollars ($2,500,000.00) executed by the Borrower, payable to the order
of Agent Bank on behalf of Lenders. The Bank Facilities are to be secured by
the
Deed of Trust, Financing Statements and Assignment of Entitlements, Contracts,
Rents and Revenues each executed by Borrower in favor of Agent Bank and recorded
in the Official Records of Xxxxxx County, Colorado, together with all other
documents and instruments collectively referred to in the Credit Agreement
and
hereinafter collectively referred to as the "Security
Documentation".
D. On
or
about October 12, 2004, Borrower entered into a Casino Services Agreement with
Century Resorts International Limited, a Mauritian corporation ("CRIL"), which
Casino Services Agreement was assigned by CRIL to Operator by Assignment of
Management Agreement dated as of September 12, 2005 (together with the Casino
Services Agreement, as it may be amended or modified from time to time,
collectively the "Management Agreement"), under
the
terms of which Operator has agreed, in exchange for certain payments,
compensation and considerations therein specified, to provide specified
management services to Borrower in connection with the Casino
Facility.
E. It
is a
condition to establishing the Bank Facilities that the Security Documentation
to
be given in favor of Agent Bank on behalf of Lenders shall unconditionally
be at
all times a lien or charge upon the following (collectively, the "Collateral"):
(i) the Casino Facility; (ii) the present and future tangible and
intangible personal property which is situate at, or used in operation of,
the
Casino Facility; and (iii) the rents, issues, profits, income and revenues
of
the Casino Facility and the activities conducted thereon; all prior and senior
to the rights of Operator under the terms of the Management
Agreement.
F. It
is a
further condition to establishing the Bank Facilities that Operator shall not
receive any payments, service fees or management fees
2
(collectively,
"Management Fees") under the Management Agreement unless the payments owing
Xxxxx under the terms of the Credit Agreement and Notes are current and there
are no Defaults or Events of Default existing under the terms and conditions
of
the Credit Agreement, as more particularly described
hereinbelow.
G. It
is to
the mutual benefit of the parties hereto that Lenders consent to the Management
Agreement and Operator is willing to agree that the Bank Facilities, Credit
Agreement and Security Documentation shall remain at all times prior to Bank
Facilities Termination unconditionally paramount and superior to the rights
and
interests of Operator under the Management Agreement.
H. It
is to
the mutual benefit of the parties hereto that Lenders consent to the Management
Agreement, and Operator is willing to immediately cease receiving payments
under
the Management Agreement if any payment owing Banks is not current under the
terms of the Credit Agreement and Bank Notes and/or there is a Default or Event
of Default existing under the terms of the Credit Agreement, as more
particularly described hereinbelow.
I. The
provisions of Section 1.02 of the Credit Agreement shall be applied to this
Agreement in the same manner as applied therein to the Credit
Agreement.
NOW,
THEREFORE, in consideration of Xxxxxxx' consent to the Management Agreement,
the
mutual benefits accruing to the parties hereto and other good and valuable
considerations, the receipt of which is hereby acknowledged, the parties hereto
do promise, covenant and agree as follows:
1. That
Banks would not consent to the Management Agreement and establish the Bank
Facilities but for this Agreement.
2. That
the
Security Documentation securing the Bank Facilities in favor of Banks and any
and all renewals, amendments, modifications, restatements and extensions thereof
shall unconditionally be and remain at all times a lien or charge on the
Collateral and business operations conducted in connection therewith prior
and
superior to all right, title and interest which Operator may have or hereafter
acquire therein under the terms of the Management Agreement. Operator
acknowledges that it is familiar with the terms and conditions of all of the
Security Documentation and hereby consents to execution, delivery, filing and
recording thereof. In this regard it is understood and hereby agreed that,
notwithstanding anything contained in the Management Agreement to the contrary,
upon the consummation of any foreclosure or deed in lieu of foreclosure, the
Management Agreement shall be terminated and of no further force or
effect.
3
3. So
long
as any monetary obligation or other obligation or commitment to advance funds
under the Credit Agreement, the Bank Notes or any other Loan Documents, as
defined in the Credit Agreement (as such obligations may be renamed, increased
or extended, including, without limitation, post petition interest whether
or
not allowed in any insolvency proceedings, and fees, attorney costs and
indemnities under the Loan Documents, collectively the "Bank Debt") shall remain
unpaid or unfunded, in whole or in part, Operator shall not receive any payments
or Management Fees from the Borrower in connection with the Management
Agreement:
(a) if
a
Default or Event of Default, as defined in the Credit Agreement, shall have
occurred and is continuing under any Bank Debt; or
(b) if
the
making of such payment would create a Default or Event of Default, as defined
in
the Credit Agreement.
4. In
the
event that any such payments or Management Fees are made in violation of
Section 3 hereinabove, such payments shall not be accepted by Operator and,
if so accepted, shall be held in trust for the benefit of, and shall be paid
forthwith over and delivered to Agent Bank. The subordination provisions set
forth hereinabove are made for the benefit of Lenders and it is understood
by
Xxxxxxxx and by Operator that Xxxxx will take certain actions in reliance upon
such subordination provisions. It is further understood that Xxxxx' reliance
upon the referenced subordination provisions shall not constitute a waiver
by
Banks of their right to insist upon strict compliance with all provisions of
the
Credit Agreement and with all provisions of the Loan Documents as particularly
defined by the Credit Agreement.
5. (a)In
the
event of:
(i) any
insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment,
composition or other similar proceeding relating to the Borrower, its creditors
or its property;
(ii) any
proceeding for the liquidation, dissolution or other winding-up of the Borrower,
voluntary or involuntary, whether or not involving insolvency, reorganization
or
bankruptcy proceedings;
(iii) any
assignment by the Borrower for the benefit of creditors; or
(iv) any
other
marshalling of the assets of the Borrower;
4
all
Bank
Debt (including any interest thereon accruing after the commencement of any
such
proceedings and any other sums or premium due) shall first be paid in full
before any payment, whether in cash, securities or other property, shall be
made
in connection with the Management Agreement. Any payment or distribution,
whether in cash, securities or other property which would otherwise, but for
these subordination provisions, be payable or deliverable in respect of the
Management Agreement shall be paid or delivered directly to the holders of
Bank
Debt until all Bank Debt (including any interest thereon accruing after the
commencement of any such proceedings) shall have been paid in full.
(b) If
any
payment or distribution of any character or any security, whether in cash,
securities or other property, shall be received by Operator in contravention
of
any of the terms hereof and before all Bank Debt shall have been paid in full,
such payment or distribution or security shall be received in trust for the
benefit of, and shall be paid over or delivered and transferred to, the holder
of Bank Debt at the time outstanding for application to the payment of all
Bank
Debt remaining unpaid, to the extent necessary to pay all such Bank Debt in
full. In the event of the failure of Operator to endorse or assign any such
payment, distribution or security, each holder of Bank Debt is hereby
irrevocably authorized to endorse or assign the same.
(c) The
Bank
Debt shall not be deemed to have been paid in full unless the holder thereof
shall have indefeasibly received cash in lawful currency of the United States
of
America equal to the amount of Bank Debt then outstanding.
(d) Operator
will take such action (including, without limitation, the execution and filing
of a financing statement with respect to this Agreement and including the
execution, verification, delivery and filing of proofs of claim, consents,
assignments or other instructions which the holder of the Bank Debt may require
in order to prove and realize upon any rights or claims pertaining to the
Management Agreement and to effectuate the full benefit of the subordination
contained herein) as may be necessary or appropriate to assure the effectiveness
of the subordination effected by these provisions.
(e) Operator
understands and acknowledges by its execution hereof that the actions of the
Lenders in connection with the Bank Debt are being or have been made in reliance
upon the absolute subordination of the Management Agreement to Bank Debt as
set
forth herein.
6. Subject
to the terms of the Credit Agreement and any amendment, revision, restatement
or
modification thereof:
5
(a) This
Agreement shall continue in effect so long as any Bank Debt shall remain unpaid
or Lenders have any obligation to lend under the Credit Agreement and no action
that the holder of the Bank Debt or the Borrower, with or without the written
consent of the holder of the Bank Debt, may take or refrain from taking with
respect to any Bank Debt, any instrument representing the same, any collateral
therefor, or any agreement or agreements, including guaranties, in connection
therewith, shall affect this Agreement or the obligations of Operator
hereunder.
(b) All
rights and interests of the Lenders hereunder, and all agreements and
obligations of Operator and the Borrower under this Agreement, shall remain
in
full force and effect irrespective of:
(i) any
change in the time, manner or place of payment of, or in any other term of,
all
or any of the Bank Debt, or any other amendment or waiver of or any consent
to
departure from the Credit Agreement, the Bank Notes or any other Loan
Document;
(ii) any
taking and holding of Collateral or other security or additional guarantees
for
all or any of the Bank Debt; or any amendment, alteration, exchange,
substitution, transfer, enforcement, waiver, subordination, termination or
release of any Collateral or such guarantees, or any non-perfection of any
Collateral, or any consent to departure from any such guaranty;
(iii) any
manner of application of Collateral or proceeds thereof, to all or any of the
Bank Debt, or the manner of sale of any Collateral or other
security;
(iv) any
consent by any of the Banks or any other Person to the change, restructure
or
termination of the corporate structure or existence of the Borrower or Operator,
or any Subsidiary thereof and any corresponding restructure of the Bank Debt,
or
any other restructure of the Bank Debt or any portion thereof; or
(v) any
modification, compounding, comprise, settlement, release by the Banks or any
of
them or any other Person (or by operation of law or otherwise), collection
or
other liquidation of the Bank Debt or of the Collateral or other security in
whole or in part, and any refusal of payment to any Bank in whole or in part,
from any obligor or guarantor in
6
connection
with any of the Bank Debt, whether or not with notice to, or further assent
by,
or any reservation of rights against Operator.
Without
limiting the generality of the foregoing, Operator hereby consents to and agrees
that the rights of each Bank hereunder, and the enforceability hereof, shall
not
be affected by any release of any Collateral or security from the liens and
security interests created by any of the Loan Documents or any other agreement
whether for purposes of sales or other dispositions of assets or for any other
purpose. This Agreement shall continue to be effective or be reinstated, as
the
case may be, if at any time any payment of any of the Bank Debt is rescinded
or
must otherwise be returned by any Bank upon the insolvency, bankruptcy or
reorganization of the Borrower or otherwise, all as though such payment had
not
been made.
(c) Operator
waives the right to require the Banks to proceed against the Borrower or any
other person liable on the Bank Debt, to proceed against or exhaust any security
held from the Borrower or any other person, or to pursue any other remedy in
the
Banks' power whatsoever and Operator waives the right to have the property
of
the Borrower first applied to the discharge of the Bank Debt. The Banks may,
at
their election, exercise any right or remedy they may have against the Borrower
or any security held by the Banks, including, without limitation, the right
to
foreclosure upon any such security by one or more judicial or nonjudicial sales,
whether or not every aspect of any such sale is commercially reasonable, without
affecting or impairing in any way the obligations of Operator hereunder, except
to the extent the Bank Debt has been paid, and Operator waives any defense
arising out of the absence, impairment or loss of any right of reimbursement,
contribution or subrogation or any other right or remedy of Operator against
the
Borrower or any such security, whether resulting from such election by the
Lenders.
7. Operator
hereby irrevocably agrees that any legal action or proceedings initiated by
Operator or against it by Lenders or Agent Bank with respect to this Agreement
shall be brought in the courts of the State of Colorado or in the United States
District Courts of Colorado and, by execution and delivery of this Agreement,
Operator consents to such jurisdiction and hereby irrevocably waives any and
all
objections which it may have as to venue in any of the above
courts.
8. Operator
hereby agrees to be responsible for and to pay all costs and expenses,
including, without limitation, attorneys' fees and costs and accountants' fees,
incurred by the holder of the Bank Debt in connection with the successful
enforcement by the holder of the Bank Debt of its rights or the protection
of
the holder of the Bank Debt of its interests under this Agreement, whether
incurred pre-trial, at trial or on appeal.
7
9. This
Agreement and the rights and obligations of the parties hereto shall be governed
by and construed and enforced in accordance with the laws of the State of
Colorado.
10. Xxxxxxxx
joins in the execution of this Agreement to evidence its agreement to the terms
hereof and to be legally bound hereby. This Agreement shall be binding upon
the
parties hereto and their respective successors and assigns and shall inure
to
the benefit of the parties hereto and their respective successors and
assigns.
11. This
Agreement may be executed in any number of counterparts, each of which shall
be
deemed an original and all of which shall constitute one and the same document
with the same effect as if all parties had signed the same signature page.
Any
signature page of this Agreement may be detached from any counterpart of this
Agreement and reattached to any other counterpart of this Agreement identical
in
form hereto but having attached to it one or more additional signature
pages.
12. It
is
understood and agreed that, by virtue of its execution and delivery of this
Agreement, Operator shall not be deemed to be a maker, surety or other obligor
of any of Borrower's Obligations (as defined by the Credit Agreement); however,
nothing contained in this Paragraph 12 shall relieve Operator from its
obligations to comply with the terms and conditions hereof.
IN
WITNESS WHEREOF, the undersigned has executed this Agreement, as of the day
and
year first above written.
|
OPERATOR:
CENTURY
CASINOS MANAGEMENT, INC., a Delaware corporation
By
Name
Title
|
BORROWER:
CC
TOLLGATE LLC,
a
Delaware limited liability company
By: CENTURY
CASINOS TOLLGATE, INC., a Delaware corporation,
Its
Managing Member
By /s/
Xxxxx Xxxxxxxxx
Xxxxx
Xxxxxxxxx,
CEO
and Secretary
|
8
|
AGENT
BANK:
XXXXX
FARGO BANK,
National
Association,
Agent
Bank
By
/s/ Xxxx Xxxx
Xxxx
Xxxx,
Vice
President
|
STATE
OF
___________ )
)
ss.
COUNTY
OF
__________)
This
instrument was acknowledged before me on November ____, 2005, by
_____________________________ as ________________________ of CENTURY CASINOS
MANAGEMENT, INC.
|
__________________________
Notary
Public
|
9
STATE
OF
___________ )
)
ss.
COUNTY
OF
__________ )
This
instrument was acknowledged before me on November ____, 2005, by XXXXX XXXXXXXXX
as CEO and Secretary of CENTURY CASINOS TOLLGATE, INC. the Managing Member
of CC
TOLLGATE LLC.
|
__________________________
Notary
Public
|
STATE
OF
NEVADA )
)
ss.
COUNTY
OF
WASHOE )
This
instrument was acknowledged before me on November ____, 2005, by XXXX XXXX
as Vice President of XXXXX FARGO BANK, NATIONAL ASSOCIATION.
|
__________________________
Notary
Public
|
10
AUTHORIZED
OFFICER'S CERTIFICATE OF
CENTURY
CASINOS TOLLGATE, INC., a Delaware corporation,
IN
ITS CAPACITY AS THE MANAGING MEMBER OF
CC
TOLLGATE LLC, a Delaware limited liability company
The
undersigned hereby certify that the following persons currently have been
authorized to act on behalf of CENTURY CASINOS TOLLGATE, INC., a Delaware
corporation, in its capacity as the Managing Member of CC TOLLGATE LLC, a
Delaware limited liability company (the "Borrower"), holding the positions
indicated next to their names, that the signatures appearing opposite their
names below are true and genuine signatures of such persons, and that each
of
such persons shall be deemed an "Authorized Officer" as defined in and for
the
purposes used in connection with the Credit Agreement (as may be supplemental,
amended or otherwise modified from time to time, the "Credit Agreement"), dated
as of November 18, 2005, executed by and among 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 (herein, in
such
capacity, called the "L/C Issuer") and XXXXX FARGO BANK, National Association,
as arranger, 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"), and such
Authorized Officers are authorized to deliver on behalf of the Borrower the
Notices of Borrowings, Compliance Certificates, Construction Disbursement
Requests and all other notices, requests, reports, consents, certifications
and
authorizations on behalf of the Borrower under the Credit Agreement, and have
been duly authorized by each of the Borrower as "Authorized Officers" for all
purposes under the Credit Agreement and each related Loan Document.
All
capitalized terms used but not otherwise defined in this Certificate shall
have
the same meanings as set forth in the Credit Agreement.
|
NAME
|
POSITION
IN CENTURY CASINOS TOLLGATE, INC.
|
SIGNATURE
|
|
Xxxxxxx
X. Xxxxx
|
Chief
Operating Officer
|
|
|
Xxxxx
Xxxxxxxxx
|
CEO
and Secretary
|
IN
WITNESS WHEREOF, the undersigned secretary of Century Casinos Tollgate, Inc.
has
executed the foregoing Certificate on behalf of Century Casinos Tollgate, Inc.
in its capacity as the Managing Member of Borrower as of the 18th
day of
November, 2005.
|
BORROWER:
CC
TOLLGATE LLC,
a
Delaware limited liability company
By: CENTURY
CASINOS TOLLGATE, INC., a Delaware corporation
its
Managing Member
By
/s/ Xxxxx Xxxxxxxxx
Xxxxx
Xxxxxxxxx,
CEO
and Secretary
|
CLOSING
CERTIFICATE
TO: XXXXX
FARGO BANK, National Association, in its capacity as Agent Bank under that
certain Credit Agreement, dated as of November 18, 2005 (as 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 (herein, in such capacity, called 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"). Capitalized terms used herein without definition
shall have the meanings attributed to them in Section 1.01 of the Credit
Agreement.
THE
UNDERSIGNED, as an Authorized Officer of Xxxxxxxx, does hereby make the
following certifications effective as of the Closing Date pursuant to
Article IIIA of the Credit Agreement:
(a) the
representations and warranties contained in Article IV of the Credit Agreement
and contained in each of the other Loan Documents (other than representations
and warranties which speak only as of a different date, which shall be true
and
correct as of such date) are true and correct on and as of the Closing 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 this Credit Agreement
or
by any other Loan Document, or which is otherwise consented to by Agent Bank
upon the approval of Requisite Lenders;
(b) no
event
(i) has occurred and is continuing or (ii) would occur as a result of any
Borrowing contemplated under the Credit Agreement on the Closing Date, or (iii)
would result from the making thereof, which (in the case of (i), (ii) or (iii)
above) constitutes a Default or Event of Default under the terms of the Credit
Agreement;
(c) Xxxxxxxx
has, as of the Closing Date, performed and complied with all agreements and
conditions that are contained in the Credit Agreement and that the Credit
Agreement requires Borrower to perform and comply with prior to or as of the
advance of the Closing Disbursement;
(d) The
Credit Agreement, the Revolving Credit Note and each of the other Loan Documents
required to be executed and delivered on or prior to the Closing Date have
been
duly authorized by all necessary action of Xxxxxxxx's Board of Managing
EXHIBIT
J
Members
and have been executed and delivered on behalf of Borrower by a duly authorized
representative thereof; and
(e) Concurrently
herewith, Xxxxxxxx has delivered to Agent Bank a true and correct copy of the
articles of organization and operating agreement of the Borrower, together
with
all amendments thereto adopted through the date hereof.
IN
WITNESS WHEREOF, the undersigned have executed this Closing Certificate as
of
the 18th
day of
November, 2005.
|
BORROWER:
CC
TOLLGATE LLC,
a
Delaware limited liability company
By: CENTURY
CASINOS TOLLGATE, INC., a Delaware corporation,
its
Managing Member
By
/s/ Xxxxx Xxxxxxxxx
Xxxxx Xxxxxxxxx,
CEO
and Secretary
|
2
ASSIGNMENT,
ASSUMPTION AND CONSENT AGREEMENT
(Form)
THIS
ASSIGNMENT, ASSUMPTION AND CONSENT AGREEMENT ("Assignment") is made as of the
___ day of _____________, 200__, by and between ________________________________
(hereinafter referred to as "Assignor"), party of the first part, and
____________________________ (hereinafter referred to as "Assignee"), party
of
the second part.
R_E_C_I_T_A_L_S:
A. Reference
is made to that certain Credit Agreement, dated as of November 18, 2005 (as
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 (herein together with their
respective successors and assigns collectively the "Lenders"), XXXXX FARGO
BANK,
National Association, as the issuer of Letters of Credit (herein, in such
capacity, called 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. In
this
Assignment, all capitalized words and terms not otherwise defined herein shall
have the respective meanings to be construed herein as provided in Section
1.01
of the Credit Agreement and any reference to a provision of the Credit Agreement
shall be deemed to incorporate such provision as a part hereof in the same
manner and with the same effect as if the same were fully set forth
herein.
C. As
of the
date of this Assignment and as of the Effective Date, as hereinafter defined,
but before giving effect to the assignment contemplated hereby, Assignor is
and
shall be the owner and holder of a ___________ percent (____%) Syndication
Interest in the Bank Facilities.
D. As
of the
Effective Date, as hereinafter defined, Assignor desires to assign to Assignee
and Assignee desires to assume a ____________ percent (____%) Syndication
Interest in the Bank Facilities.
E. This
Assignment is made, executed and delivered pursuant to Section 11.10 of the
Credit Agreement and shall also constitute notice to Borrower and Agent Bank
of
the assignment and delegation to Assignee of the Syndication Interest
particularly described hereinbelow.
EXHIBIT
K
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 as follows:
1. As
of the
Effective Date, as hereinafter defined, Assignor does hereby transfer, convey,
set over and assign unto Assignee, without recourse, warranty or representation
other than as set forth in Paragraph 5 hereinbelow (the "Assigned
Interest"), $________________ of the outstanding unpaid balance of the Bank
Facilities, representing an undivided _______________ percent (_____%)
Syndication Interest.
2. From
and
after the Effective Date, Assignee shall and does hereby assume and agree to
perform all of the promises and covenants of Assignor as to the Assigned
Interest particularly described in Paragraph 1 hereinabove arising or
performable from and after the Effective Date and further agrees to indemnify
and hold Assignor harmless from any and all liabilities, damages, costs or
expenses which Assignor may incur by reason of the failure of Assignee to fund
or perform any obligation of Assignor as to the Assigned Interest assigned
hereunder arising or performable from and after the Effective Date at the time
and in the manner set forth in the Loan Documents, and does further agree to
assume and be bound by each and every term, condition, provision and covenant
contained in the Credit Agreement and each of the Loan Documents, effective
as
of the Effective Date, to the same extent and manner as if Assignee had
originally been named in the Credit Agreement as a Lender holding the Assigned
Interest therein and Assignee shall be deemed to be a Lender party to the Credit
Agreement for all purposes thereof.
3. The
"Effective Date" as used herein shall mean ___________, 200__, provided that
each of the following conditions precedent have been satisfied on or before
the
Effective Date: (a) Assignor and Assignee have executed this Assignment, (b)
Borrower and Agent Bank have joined in the execution of this Assignment for
the
purpose of evidencing their respective acknowledgment and consent to the
assignment by Assignor of the Assigned Interest in favor of Assignee,
(c) Assignee has delivered to Assignor _______________________ Dollars
($________________) in immediately available funds, and (d) Assignee has
delivered to Agent Bank in immediately available funds the Three Thousand Five
Hundred Dollar ($3,500.00) assignment fee in accordance with Section 11.10b
of the Credit Agreement. Interest accrued but remaining unpaid on the portion
of
the outstanding principal balance under the Bank Facilities which is allocable
to the Assigned Interest assigned hereby and is owing to Assignor as of the
Effective Date shall be prorated to the Effective Date and disbursed by Agent
Bank to Assignor and Assignee, as applicable, from the next payment of accrued
interest under the Notes.
2
4. On
the
Effective Date, the respective aggregate Syndication Interests of the Lenders
in
the Bank Facilities shall be as set forth on the Schedule of Lenders'
Proportions in Bank Facilities, a copy of which is marked "Schedule 2.01(a)"
affixed hereto and by this reference incorporated herein and made a part hereof,
which shall restate the Schedule of Lenders' Proportions in Bank Facilities
attached as Schedule 2.01(a) to the Credit Agreement, and all previous
amendments and reinstatements thereof, for the purpose of showing the Assigned
Interest as a decrease in Assignor's applicable Syndication Interest and
evidencing Assignee's applicable Syndication Interest in the Bank
Facilities.
5. Assignor
represents and warrants that:
a. (i)
it is
the owner of the Assigned Interest being assigned and transferred hereunder
free
and clear of any liens or other charges of any kind, (ii) it is duly
organized and existing and has the full power and authority to take, and has
taken, all action necessary to execute and deliver this Assignment and any
other
documents required or permitted to be executed or delivered by it in connection
with this Assignment and to fulfill its obligations hereunder, (iii) no notices
to, or consents, authorizations or approvals of, any Person are required (other
than any already given or hereby obtained) for its due execution, delivery
and
performance of this Assignment, and apart from any agreements or undertaking
or
filings required by the Credit Agreement, no further action by, or notice to,
or
filing with, any Person is required of it for such execution, delivery or
performance; and (iv) this Assignment has been duly executed and delivered
by it
and constitutes its legal, valid and binding obligations, enforceable against
it
in accordance with the terms hereof, subject, as to enforcement, to bankruptcy,
insolvency, moratorium, reorganization and other laws of general application
relating to or affecting creditors' rights and to general equitable
principles.
b. Assignor
makes no representation or warranty and assumes no responsibility with respect
to any statements, warranties or representations made in or in connection with
the Credit Agreement or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Agreement, the Loan Documents
or
any other instrument or document furnished pursuant thereto. Assignor makes
no
representation or warranty in connection with, and assumes no responsibility
with respect to, the solvency, financial condition or statements of the Borrower
or the performance or observance by the Borrower of any of its obligations
under
the Credit Agreement, the Loan Documents or any other instrument or document
furnished in connection therewith.
6. Assignee
represents and warrants that:
a. (i)
it is
duly organized and existing and it has full power and authority to take, and
has
taken, all action necessary to execute and deliver this
3
Assignment
and any other documents required or permitted to be executed or delivered by
it
in connection with this Assignment, and to fulfill its obligations hereunder;
(ii) no notices to, or consents, authorizations or approvals of, any person
are required (other than any already given or obtained) for its due execution,
delivery and performance of this Assignment; and apart from any agreements
or
undertakings or filings required by the Credit Agreement, no further action
by,
or notice to, or filing with, any person is required of it for such execution,
delivery or performance; (iii) this Assignment has been fully executed and
delivered by it and constitutes its legal, valid and binding obligations,
enforceable against it in accordance with the terms hereof, subject, as to
enforcement, to bankruptcy, insolvency, moratorium, reorganization and other
laws of general application relating to or affecting creditors' rights and
to
general equitable principles; and (iv) it is eligible under the Credit
Agreement to be an assignee in accordance with the terms hereof.
b. (i) under
applicable law and treaties no tax will be required to be withheld by Borrower
or any Bank with respect to any payments to be made to the Assignee under the
Credit Agreement, (ii) it agrees to furnish (if it is organized under the
laws of any jurisdiction other than the United States or any State thereof)
to
the Agent Bank and the Borrower prior to the time that the Agent Bank or
Borrower are required to make any payment of principal, interest or fees
hereunder, duplicate executed original of either U.S. Internal Revenue Service
Form 4224 or U.S. Internal Revenue Service From 1001 (wherein the Assignee
claims entitlement to the benefits of a tax treaty that provides for a complete
exemption from U.S. federal income withholding tax on all payments hereunder)
and agrees to provide new Forms 4224 or 1001 upon the expiration of any
previously delivered form or comparable statements in accordance with applicable
U.S. law and regulations and amendments thereto, duly executed and completed
by
the Assignee, and (iii) it agrees to comply with all applicable U.S. laws
and regulations with regard to such withholding tax exemption.
7. The
Assignee (a) acknowledges that it has received a copy of the Credit Agreement
and the Loan Documents, together with copies of the most recent financial
statements referred to in Section 5.08 of the Credit Agreement, and such
other documents and information as it has deemed appropriate to make its own
credit and legal analysis and decision to enter into this Assignment;
(b) agrees that it will, independently and without reliance upon the
Assignor, the Agent Bank or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its
own
credit and legal decisions in taking or not taking action under the Credit
Agreement; and (c) appoints and authorizes the Agent Bank to take such action
as
agent on its behalf and to exercise such powers under the Credit Agreement
as
are delegated to the Agent Bank by the terms thereof, together with such powers
as are reasonably incidental thereto.
4
8. Assignee
hereby advises Borrower and Agent Bank of the following administrative details
with respect to the Assigned Interest:
a. Address
for notices:
____________________________
____________________________
____________________________
____________________________
b. Telephone:
____________________________
c. Facsimile:
____________________________
d. Payment
(wire) instructions:
____________________________
____________________________
____________________________
9. Borrower
and Agent Bank join in the execution of this Assignment for the purpose of
evidencing and acknowledging their respective consents to the transfer by
Assignor to Assignee of the Assigned Interest and agree to recognize Assignee
as
a Lender under the Credit Agreement and each of the Loan Documents to the same
extent as if Assignee were originally named as a Lender therein as to the
Assigned Interest. Borrower and Agent Bank further agree that as of the
Effective Date and consummation of each of the items specified in
Paragraph 3 hereinabove, Assignor shall be and is hereby fully released and
discharged from all liabilities, responsibilities and obligations with respect
to the Assigned Interest hereby assigned arising or performable on and after
the
Effective Date.
10. Any
interest, commissions, fees and other payments accrued to but excluding the
Effective Date with respect to the Assigned Interest hereby assigned shall
be
for the account of Assignor. Any interest, fees and other payments accrued
on
and after the Effective Date with respect to the Assigned Interest hereby
assigned shall be for the account of the Assignee. Each of the Assignor and
the
Assignee agree that it will hold in trust for the other party any interest
and
other amounts which it may receive to which the
5
other
party is entitled pursuant to the preceding sentence and pay to the other party
any such amounts which it may receive promptly upon receipt.
11. This
Assignment may be signed in any number of counterparts, and signatures to all
counterparts thereto, when assembled together, shall constitute signatures
to
this entire agreement with the same effect as if all signatures were on the
same
document.
12. This
Assignment shall, in all respects, be governed by the laws of the State of
Nevada and if any action is taken to enforce the terms hereof, such action
shall
be commenced and maintained within the State of Nevada.
13. Any
amendment or waiver of any provision of this Assignment shall be in writing
and
signed by the parties hereto. No failure or delay by either party hereto in
exercising any right, power or privilege hereunder shall operate as a waiver
thereof and any waiver of any breach of the provisions of this Assignment shall
be without prejudice to any rights with respect to any other or further breach
thereof.
IN
WITNESS WHEREOF, the parties hereto have executed the foregoing Assignment
as of
the day and year first above written.
|
ASSIGNOR:
____________________________
By__________________________
Title_______________________
|
ASSIGNEE:
____________________________
By__________________________
Title_______________________
|
6
Borrower
and Agent Bank hereby join in the execution of this Assignment for the purpose
of evidencing and acknowledging their respective consent as set forth in
Paragraph 9 above.
DATED
as
of the ____ day of _______________, 200__.
|
BORROWER:
CC
TOLLGATE LLC,
a
Delaware limited liability company
By: CENTURY
CASINOS TOLLGATE, INC., a Delaware corporation
its
Managing Member
By
/s/ Xxxxx Xxxxxxxxx
Xxxxx
Xxxxxxxxx,
CEO
and Secretary
|
|
|
AGENT
BANK:
XXXXX
FARGO BANK,
National
Association
By________________________
Name_____________________
Title_______________________
|
7
LEGAL
DESCRIPTION
All
that
certain real property situate in the County of Xxxxxx, State of Colorado
described as follows:
Lot
1 and
Lot 2,
Xxxxxx
Xxxx-Tollgate Casino Final Plat,
As
shown
on the Plat recorded November 15, 2005, at Reception No. 128127,
City
of
Central,
County
of
Xxxxxx,
State
of
Colorado
FINANCIAL
REQUIREMENT ANALYSIS
BORROWER:
CC Tollgate LLC
Loan
#
CASINO
CONTRACTOR: Sprung Construction, Inc.
GARAGE
CONTRACTOR: CFC Construction
|
(A)
TOTAL COSTS
(b
+ c - d)
|
(B)
COSTS PAID BY BORROWER
|
(C)
COSTS TO BE PAID BY BORROWER
|
(D)
DISBURSEMENT BUDGET (a - b - c)
|
|||
|
1
|
LAND
COSTS
|
|||||
|
*
|
Construction
Cost of Improvements ($____ sq. ft.)
|
|||||
|
*
|
Tenant
Improvement Costs
($____
sq. ft.)
|
|||||
|
*
|
Site
Work Costs
($____
sq. ft.)
|
|||||
|
*
|
Offsite
Costs
($____
sq. ft.)
|
|||||
|
Architect
& Engineering
|
||||||
|
Government
Fees (permits, bonds, etc.)
|
||||||
|
Construction
costs not in Contract
|
||||||
|
Contingency
(___%
of #s 2 thru 5)
|
||||||
|
Other:
|
||||||
|
a.
FF&E
|
||||||
|
b.
|
||||||
|
c.
|
||||||
|
TOTAL
HARD COSTS
(Lines
2 thru 10)
|
||||||
|
Interest
during Loan
|
||||||
|
Taxes
during Loan
|
||||||
|
Insurance
during Loan
|
||||||
|
Construction
Loan Fee
|
||||||
|
Permanent
Loan Fee
|
||||||
|
Title,
Recording & Escrow Expenses
|
||||||
|
Legal
Fees/Bonding
|
||||||
|
Promotion
& Advertising
|
||||||
|
Commission
Expense
|
||||||
|
Organization
Expenses (Developer Overhead)
|
||||||
|
Contingency
(Soft Costs)
|
||||||
|
Other:
|
||||||
|
a.
Appraisal & Review
|
||||||
|
b.
Costing and Inspections
|
||||||
|
c.
Environmental & Review
|
||||||
|
Total
Soft Costs
(Lines
12 thru 23)
|
||||||
|
CUMULATIVE
TOTALS
(Lines
1, 11 & 24)
|
Footnotes:
EXHIBIT
M
TO
CREDIT AGREEMENT
XXXXXX’S
DISBURSEMENT BUDGET
|
DEVELOPER:
CC Tollgate LLC
CASINO
CONTRACTOR: Sprung Construction, Inc.
GARAGE
CONTRACTOR: CFC Construction
|
PROJECT:
Casino and Parking Garage
AGENT
FOR LENDERS: Xxxxx Fargo Bank
|
REQUEST
#:
DATE:
|
|
ITEM
#
|
CLASSIFICATION
|
ORIGINAL
ESTIMATE
|
PREVIOUSLY
APPROVED CHANGES
|
PROPOSED
CHANGES
|
ADJUSTED
CONTRACT
|
PERCENT
COMPLETE
|
COMPLETION
TO DATE
|
PREVIOUS
PAYMENTS
|
THIS
REQUEST
|
CONTRACT
BALANCE
|
RETENTION
|
|
1
|
|||||||||||
|
2
|
|||||||||||
|
3
|
|||||||||||
|
4
|
|||||||||||
|
5
|
|||||||||||
|
6
|
|||||||||||
|
7
|
|||||||||||
|
8
|
|||||||||||
|
9
|
|||||||||||
|
10
|
|||||||||||
|
11
|
|||||||||||
|
12
|
|||||||||||
|
13
|
|||||||||||
|
14
|
|||||||||||
|
15
|
|||||||||||
|
16
|
|||||||||||
|
17
|
|||||||||||
|
18
|
|||||||||||
|
19
|
|||||||||||
|
20
|
|||||||||||
|
21
|
|||||||||||
|
22
|
|||||||||||
|
23
|
|||||||||||
|
24
|
|||||||||||
|
CUMULATIVE
TOTAL COSTS
|
|||||||||||
COMPLETION
GUARANTY
THIS
COMPLETION GUARANTY (this "Completion Guaranty") dated as of November 18, 2005,
is executed and delivered by CENTURY CASINOS, INC., a Delaware corporation
(hereinafter referred to as the "Completion Guarantor"), in favor of XXXXX
FARGO
BANK, National Association, as administrative and collateral agent for those
commercial lending institutions party to the hereinafter-described Credit
Agreement.
R_E_C_I_T_A_L_S:
WHEREAS:
A. Reference
is made to that certain Credit Agreement, dated as of November 18, 2005 (as
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 (herein together with their
respective successors and assigns collectively the "Lenders"), Xxxxx
Fargo Bank, National Association, as the issuer of Letters of Credit (herein,
in
such capacity, called 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 Completion 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. Under
the
terms of the Credit Agreement, a portion of the proceeds of the Credit Facility
are to be used for the purpose of financing a portion of the costs of
constructing the Construction Projects in accordance with the Construction
Budgets and the Plans and Specifications.
D. Under
the
terms of the Credit Agreement, the Borrower is required to cause the Completion
Date of the Construction Projects to occur no later than the Construction
Completion Deadline.
E. As
a
condition precedent to the Lenders establishing the Bank Facilities, Lenders
have required that the Agent Bank, on behalf of the Lenders, shall have received
from the Completion Guarantor a completion guarantee in form and substance
satisfactory to the Agent Bank.
NOW,
THEREFORE, IN CONSIDERATION OF THE BANK FACILITIES ESTABLISHED IN FAVOR OF
BORROWER PURSUANT TO THE CREDIT AGREEMENT AND WITH THE KNOWLEDGE THAT THE
LENDERS WOULD NOT MAKE OR COMMIT TO MAKE OR ESTABLISH THE BANK FACILITIES FOR
THE BENEFIT OF BORROWER BUT FOR THE REPRESENTATIONS, WARRANTIES AND COVENANTS
OF
THE COMPLETION GUARANTOR HEREUNDER, UPON WHICH THE COMPLETION GUARANTOR
ACKNOWLEDGES THAT THE AGENT BANK AND THE LENDERS ARE RELYING IN ENTERING INTO
THE CREDIT AGREEMENT AND ESTABLISHING THE BANK FACILITIES, THE COMPLETION
GUARANTOR HEREBY REPRESENTS, WARRANTS AND COVENANT AS FOLLOWS:
1. Guarantied
Obligations.
The
Completion Guarantor unconditionally and irrevocably guarantees to the Lenders
and the Agent Bank (collectively the "Guarantied Obligations"):
a. to
complete or cause completion of construction of each of the Construction
Projects pursuant to and substantially in accordance and compliance with the
applicable Plans and Specifications, including all off-site work (if any),
in a
timely manner and otherwise in the manner provided in the Credit Agreement
free
of any and all Liens other than the Permitted Encumbrances, in accordance with
all applicable zoning, building, environmental, land use and other laws,
statutes, ordinances, regulations and rules of all Governmental Authorities,
including, without limitation, the following:
(i) to
perform, complete and pay for (or cause to be performed, completed and paid
for), in full when due, the construction of each such Construction Project
and
all other costs and expenses associated therewith;
(ii) If
the
Agent Bank or the Lenders exercise their rights under the Credit Agreement
and
the Deed of Trust to take possession of the Construction Projects and complete
the construction thereof, promptly to reimburse the Agent Bank and the Lenders
for all costs and expenses incurred by them in so taking possession of the
Construction Projects and completing construction or causing completion of
construction of the Construction Projects to occur;
(iii) If
any
mechanics' or materialmen's liens should be filed, or should attach, with
respect to the Construction Projects by reason of the construction thereof,
to
cause the removal of such liens in the manner provided in the Credit
Agreement;
2
(iv) The
payment of all costs and expenses, including attorneys' fees and disbursements,
incurred in enforcing this Completion Guaranty,
b. that
the
Completion Date of the Construction Projects shall occur on or before the
Construction Completion Deadline; and
c. to
not
permit any change in any applicable Plans and Specifications to be made or
any
change order to become effective without the prior approval of the Agent Bank,
except as expressly permitted under the Credit Agreement.
2. Indemnification
of Banks.
Completion Guarantor shall and does hereby indemnify, defend and hold free
and
harmless each of the Agent Bank and the Lenders (each, an "Indemnified Party")
from and against any and all losses, costs, claims, damages, liabilities and
expenses, including court costs and reasonable attorneys' fees, which any
Indemnified Party may sustain by reason of the Completion Guarantor's failure
to
cause prompt and complete performance of the Guarantied Obligations, and shall
pay (or reimburse each Indemnified Party for) any and all costs and expenses
incurred in causing the Completion Date so to occur, or, if the Completion
Date
cannot then occur, to cause it to occur as soon as possible thereafter. The
Agent Bank or any other Indemnified Party will notify the Completion Guarantor
of any legal proceeding brought against an Indemnified Party for which any
Indemnified Party will seek indemnification and the Completion Guarantor shall
have the right to seek to intervene in any such proceedings. Upon the occurrence
of an Event of Default under the Credit Agreement, each of the Agent Bank and
the Lenders may (but without any obligation to do so, and either before,
following or during the institution of any foreclosure or other proceedings
with
respect to the Real Property) exercise any and all remedies described in the
Credit Agreement, provided at law or otherwise available to them, without in
any
way affecting any of their rights hereunder.
3. Waivers.
Completion Guarantor hereby waives, for the benefit of Lenders and Agent
Bank:
a. any
right
to require Agent Bank or Lenders, as a condition of payment or performance
by
Completion Guarantor, to (i) proceed against the Borrower, any other
guarantor of the Bank Facilities or any other Person, (ii) proceed against
or exhaust any security held from the Borrower, any other guarantor of the
Bank
Facilities or any other Person, (iii) proceed against or have resort to any
balance of any deposit account or credit on the books of Agent Bank or any
Lenders in favor of the Borrower or any other Person, or (iv) pursue any
other remedy in the power of Agent Bank or any Lender whatsoever;
3
b. any
defense arising by reason of the incapacity, lack of authority or any disability
or other defense of the Borrower, including, without limitation, any defense
based on or arising out of the lack of validity or the unenforceability of
the
Bank Facilities, the General Contractor Agreements or any agreement or
instrument relating to the Bank Facilities or by reason of the cessation of
the
liability of the Borrower from any cause other than prompt and complete
performance of the Guarantied Obligations;
c. any
defense based upon any statute or rule of law that provides that the obligation
of a surety must be neither larger in amount nor in other respects more
burdensome than that of the principal;
d. any
defense based upon Agent Bank's or any Lender's errors or omissions in the
administration of the Bank Facilities, except for behavior which amounts to
gross negligence or willful misconduct;
e. (i)any
principles or provisions of law, statutory or otherwise, that are or might
be in
conflict with the terms of this Completion Guaranty and any legal or equitable
discharge of Completion Guarantor's obligations hereunder, (ii) the benefit
of
any statute of limitations affecting Completion Guarantor's liability hereunder
or the enforcement hereof, (iii) any rights to set-offs, recoupments and
counterclaims, and (iv) promptness, diligence and any requirement that
Agent Bank or any Lender protect, secure, perfect or insure any security
interest or lien or any property subject thereto;
f. notices,
demands, presentments, protests, notices of protest, notices of dishonor and
notices of any action or inaction, including acceptance of this Completion
Guaranty, notices of default under the Credit Agreement or any agreement or
instrument related thereto, notices of any renewal, extension or modification
of
the Bank Facilities or any agreement related thereto, notice of any Construction
Disbursement or any Construction Disbursement Request received by Agent Bank,
any other extensions of credit to Borrower and any right to consent to any
thereof; and
g. any
defenses or benefits that may be derived from or afforded by law that limit
the
liability of or exonerate guarantors or sureties, or that may conflict with
the
terms of this Completion Guaranty, including without limitation the provisions
of Nevada Revised Statutes Sections 40.430-40.459, 40.475 and 40.485 and any
successor provisions.
4. Absolute
Liability.
Completion Guarantor's liability hereunder shall be in no way affected,
diminished or released by (a) acceptance by the Agent Bank or the Lenders of
security or additional security for the performance by the Borrower of its
obligations under the Credit Agreement or the Loan Documents or any increase,
substitution or change therein, (b) the release by the Agent Bank or the
Lenders of any such security or any withdrawal thereof or decrease therein,
or
(c) the exercise by the
4
5. No
Election.
The
Agent Bank and the Lenders shall have the right, at their option, either before,
during or after commencing foreclosure proceedings (whether judicial or through
a power of sale contained in the Deed of Trust) and before, during and after
pursuing any right or remedy against the Borrower or any other guarantor, to
perform all of the obligations of the Borrower and/or any other guarantor by
or
through any agent, contractor or subcontractor of its or their selection, all
as
they in their sole determination deem proper, and the Completion Guarantor
shall
indemnify, defend and hold the Agent Bank and the Lenders free and harmless
against any and all loss, damage, cost, expense, injury or liability that any
of
them may suffer or incur in connection with the exercise of their rights under
this Completion Guaranty and the completion of construction of the Construction
Projects. Furthermore, neither the Agent Bank nor any of the Lenders shall
have
any obligation to protect or insure any Collateral for the Bank Facilities,
nor
shall any of them have any obligation to perfect its or their security interest
in any Collateral for the Bank Facilities.
6. Direct
Proceeding.
Completion Guarantor hereby waives any right or claim of right to cause the
Agent Bank or the Lenders to proceed against any of the security or Collateral
held by any of them before proceeding against the Completion Guarantor and
the
Completion Guarantor hereby waives any and all legal requirements that the
Banks
shall institute any action or proceeding at law or in equity against the
Completion Guarantor, or anyone else, with respect to the Credit Agreement
or
any of the other documents identified therein or delivered in connection
therewith or the transactions described therein, or with respect to any other
security held by the Agent Bank or the Lenders, as a condition precedent to
bringing any action against the Completion Guarantor upon this Completion
Guaranty.
7. Remedies.
Completion Guarantor hereby agrees that in the event of the failure to complete
construction of the Construction Projects as provided in the Credit Agreement
and Paragraph 1 hereof, the Agent Bank shall be immediately entitled to
enforce the obligations of the Completion Guarantor hereunder after written
notice to Completion Guarantor of such failure. Upon the failure of the
Completion Guarantor, to comply with the covenants and agreements under this
Completion Guaranty, including, but not limited to its covenants to perform
and
complete the Guarantied Obligations, the Agent Bank may, without waiving or
releasing the Completion Guarantor from its obligations hereunder, and without
prejudice to any other right or remedy of the Agent Bank or the Lenders
hereunder, whether or not expressly set forth herein, perform such covenants
or
agreements in respect of which there shall be a default hereunder and in that
regard the Agent Bank may pay such money as it may deem appropriate. All such
monies paid by the Agent Bank as aforesaid, together with interest thereon
at
the Default Rates provided for under the Credit Agreement, shall be due and
payable by the
5
8. Amendments.
No
delay on the part of the Agent Bank or the Lenders in exercising any of their
rights, powers, or privileges or partial or single exercise thereof under the
Credit Agreement or any of the other documents identified therein or delivered
in connection therewith or the transactions described therein shall operate
as a
waiver of any privileges, powers or rights hereunder, and no modifications
or
amendments of this Completion Guaranty shall be deemed to be made by the Agent
Bank or the Lenders unless the same shall be in writing, duly signed by the
Agent Bank, and each such waiver, if any, shall apply only with respect to
the
specified instance involved, and shall in no way impair the rights of the Agent
Bank or the Lenders or the obligations of the Completion Guarantor to such
parties in any other respect at any other time.
9. Subordination.
Until
the Bank Facilities shall have been paid in full and completely performed by
Borrower or otherwise and the Banks obligation to advance funds thereunder
indefeasibly terminated and Bank Facilities Termination shall have occurred,
Completion Guarantor shall withhold exercise of:
a. any
claim, right or remedy, direct or indirect, that Completion Guarantor now has
or
may hereafter have against Borrower or any of its assets in connection with
this
Completion Guaranty or the performance by Completion Guarantor of its
obligations hereunder, in each case whether such claim, right or remedy arises
in equity, under contract, by statute, including without limitation under Nevada
Revised Statutes Section 40.475 or 40.485, under common law or otherwise
and including without limitation (i) any right of subrogation, reimbursement
or
indemnification that Completion Guarantor now has or may hereafter have against
Borrower, (ii) any right to enforce, or to participate in, any claim, right
or
remedy that Agent Bank or any Lender now has or may hereafter have against
Borrower, and (iii) any benefit of, and any right to participate in, any
Collateral or security now or hereafter held by Agent Bank or any Lender,
and
6
b. any
right
of contribution Completion Guarantor may have against any other guarantor of
the
Bank Facilities.
Completion
Guarantor further agrees that, to the extent the agreement to withhold the
exercise of its rights of subrogation, reimbursement, indemnification and
contribution as set forth herein is found by a court of competent jurisdiction
to be void or voidable for any reason, any rights of subrogation, reimbursement
or indemnification Completion Guarantor may have against Borrower or against
any
Collateral or security, and any rights of contribution Completion Guarantor
may
have against any such other guarantor, shall be junior and subordinate to any
rights Agent Bank or Lenders may have against Borrower, to all right, title
and
interest Agent Bank or Lenders may have in any such Collateral or security,
and
to any right Agent Bank or Lenders may have against such other
guarantor.
10. Payments;
Application.
All
payments to be made hereunder by Completion 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 Completion Guarantor
hereunder shall be applied as follows: first, to all reasonable costs and
expenses (including attorneys' fees) incurred by Agent Bank and the Lenders
in
enforcing this Completion Guaranty or in collecting the Guarantied Obligations;
second, to all accrued and unpaid interest, premium, if any, and fees owing
to
Agent Bank and the Lenders constituting Guarantied Obligations; and third,
to
the balance of the Guarantied Obligations.
11. Costs
and Expenses.
Completion Guarantor agrees to pay Xxxxx' 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 Banks' rights and remedies) to collect
or
enforce any of sums owing under this Completion Guaranty whether or not any
lawsuit is filed. Until paid to the Agent Bank and the Lenders such sums will
bear interest at the Default Rate set forth in the Credit
Agreement.
12. Costs
to Prevailing Party.
If any
action or proceeding is brought by any party against any other party under
this
Completion 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.
13. Completion
Notice.
Upon
Completion Guarantor's written request and Agent Bank's confirmation that the
Completion Date has occurred and all costs of constructing the Construction
Projects have been fully paid, Agent Bank shall provide Completion Guarantor,
at
Completion Guarantor's expense, with written confirmation of the completion
of
the Construction Projects and upon such written confirmation
7
14. 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 13) 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:
If
to
Completion Guarantor: 0000
Xxxx
Xxxxx Xxxxx
Colorado
Springs, CO 80906
Attn:
Xxxxx Xxxxxxxxx, Xx.V.P.
With
a
copy to: Xxxx
Xxxxxx, Esq.
Faegre
& Xxxxxx, LLP
0000
Xxxxxxx Xxxxxx, Xxxxx 0000
Denver,
CO 80203
If
to
Lenders
c/o
Agent
Bank: Xxxxx
Fargo Bank,
National
Association
Commercial
Banking Division
0000
Xxxxxxx Xxxx, Xxxxx 000
Reno,
NV
89511
Attn:
Xxxx Xxxx, V.P.
With
a
copy to: Xxxxxxx
X. Xxxxxxxxx, Esq.
Xxxxxxxxx
& Xxxxxx, LLC
0000
Xxxxxxx Xxxx, Xxxxx X000
Reno,
NV
89502
15. Cumulative
Remedies.
No
remedy under this Completion 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 Completion Guaranty, under the
Credit Agreement, the C/T Note, the Revolving Credit Note, the Continuing
Guaranty, or any other Loan Document, and those provided by law. No delay or
omission by Xxxxx to exercise any right under this Completion
8
16. Severability
of Provisions.
Any
provision of this Completion 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.
17. Entire
Agreement; Amendments.
This
Completion Guaranty, together with the Credit Agreement and the Loan Documents,
constitutes the entire agreement between Completion Guarantor and Banks
pertaining to the subject matter contained herein. This Completion 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
Completion Guarantor and Xxxxx. 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 Completion Guaranty shall be deemed
a
waiver of any other, similar or dissimilar, right or default or otherwise
prejudice the rights and remedies hereunder.
18. Successors
and Assigns.
This
Completion Guaranty shall be binding upon Completion Guarantor and its
successors and assigns and shall inure to the benefit of the successors and
assigns of Banks; provided,
however,
Completion Guarantor shall not assign this Completion Guaranty or delegate
any
of its duties hereunder without Xxxxx' prior written consent and any unconsented
to assignment shall be absolutely void. In the event of any assignment or other
transfer of rights by Xxxxx, the rights and benefits herein conferred upon
Banks
shall automatically extend to and be vested in such assignee or other
transferee.
19. Choice
of Law and Venue; Service of Process.
THE
VALIDITY OF THIS COMPLETION GUARANTY, ITS CONSTRUCTION, INTERPRETATION, AND
ENFORCEMENT, AND THE RIGHTS OF COMPLETION GUARANTOR AND BANKS, 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 COMPLETION GUARANTOR WITH RESPECT
TO
THIS COMPLETION 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 COMPLETION GUARANTY, COMPLETION GUARANTOR ACCEPTS, FOR ITSELF AND IN
CONNECTION WITH
9
20. 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.
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.
21. Waiver
of Jury Trial.
TO THE
MAXIMUM EXTENT PERMITTED BY LAW, COMPLETION GUARANTOR AND EACH OF THE BANKS
EACH
MUTUALLY HEREBY EXPRESSLY WAIVE ANY RIGHT TO TRIAL BY JURY OF ANY ACTION, CAUSE
OF ACTION, CLAIM, DEMAND, OR PROCEEDING ARISING
10
22. Counterparts.
To
facilitate execution, this Completion Guaranty may be executed in as many
counterparts as may be convenient or required. It shall not be necessary that
the signature of, or on behalf of, each party, or that the signature of all
persons required to bind any party, appear on each counterpart. All counterparts
shall collectively constitute a single instrument. It shall not be necessary
in
making proof of this Completion Guaranty to produce or account for more than
a
single counterpart containing the respective signatures of, or on behalf of,
each of the parties hereto. Any signature page to any counterpart may be
detached from such counterpart without impairing the legal effect of the
signatures thereon and thereafter attached to another counterpart identical
thereto except having attached to it additional signature pages.
IN
WITNESS WHEREOF, the undersigned have executed and delivered this Completion
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
|
11
STATE
OF )
)
ss.
COUNTY
OF
)
This
instrument was acknowledged before me on November ____, 2005, by XXXXX
XXXXXXXXX as Senior Vice President of CENTURY CASINOS, INC.
|
__________________________
Notary
Public
|
12
PLEDGE
AND ASSIGNMENT OF
SAVINGS
ACCOUNT AGREEMENT
THIS
PLEDGE AND ASSIGNMENT OF SAVINGS ACCOUNT AGREEMENT ("Pledge Agreement") is
made
and entered into as of this 18th
day of
November, 2005, by and among CC TOLLGATE LLC, a Delaware limited liability
company, Debtor and Assignor, hereinafter referred to as "Borrower", party
of
the first part, and XXXXX FARGO BANK, National Association, hereinafter referred
to as "L/C Issuer" party of the second part.
R_E_C_I_T_A_L_S:
WHEREAS:
A. In
this
Pledge Agreement all capitalized words and terms not otherwise specifically
herein defined shall have the respective meanings and be construed herein as
provided in or incorporated into Section 1.01 entitled "Definitions" of the
Credit Agreement (as may be amended, supplemented or otherwise modified from
time to time, the "Credit Agreement"), dated concurrently herewith by and among
Borrower, L/C Issuer and the Banks therein described, and any reference to
a
provision of the 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.
B. Pursuant
to the Credit Agreement, L/C Issuer has agreed, subject to the terms and
conditions specified therein, to issue Letters of Credit on behalf of Borrower
up to the maximum aggregate Stated Amount of One Million Dollars ($1,000,000.00)
at any time outstanding. As security for the prompt payment of each and every
L/C Reimbursement Obligation arising after the occurrence of an Event of
Default, L/C Issuer may establish a restricted depository savings account for
the account of Borrower (the "Cash Collateral Account"). It is a condition
of
the Credit Agreement and the issuance of Letters of Credit that all Borrowings,
Cash, securities and other property of Borrower which may hereafter be deposited
into the Cash Collateral Account be presently and irrevocably pledged and
assigned to L/C Issuer to be held by L/C Issuer in the manner and for the
purposes set forth in the Credit Agreement and L/C Agreements.
NOW,
THEREFORE, in consideration of the Letters of Credit issued and to be issued
by
L/C Issuer for the benefit of Xxxxxxxx, the receipt and sufficiency of which
consideration is hereby acknowledged, the Borrower hereby pledges and assigns
to
L/C Issuer all of its right, title and interest in and to the Cash Collateral
Account and
any
Borrowings, Cash, securities and other property of Borrower hereafter held
or
deposited therein, as follows:
1. Borrower
shall and does hereby agree that L/C Issuer shall have the right, on and after
the occurrence of an Event of Default, to establish and maintain the Cash
Collateral Account for the purpose set forth herein and in the Credit Agreement.
The Borrower by these presents does hereby presently and irrevocably grant,
bargain, sell, assign, transfer and set over unto L/C Issuer, its successors
and
assigns, all of Xxxxxxxx's right, title and interest in and to the Cash
Collateral Account and any Borrowings, Cash, securities and other property
of
Borrower hereafter held or deposited therein on the terms and subject to the
conditions set forth herein.
2. In
addition to all rights of setoff for repayment of any L/C Reimbursement
Obligation against any Borrowings held in the Cash Collateral Account, monies,
securities or other property given to L/C Issuer by law, L/C Issuer shall have
a
right of setoff for the repayment of any L/C Reimbursement Obligation against
any Borrowings, monies, securities and other property of Borrower now or
hereafter held or deposited in the Cash Collateral Account or on deposit with
L/C Issuer whether held in a general or special account or deposit, or for
safekeeping or otherwise; and every such right of setoff for the repayment
of
any L/C Reimbursement Obligation may be exercised without demand upon or notice
to Borrower. No right of setoff shall be deemed to have been waived by any
act
or conduct on the part of L/C Issuer or by any neglect to exercise such right
of
setoff, or by any delay in doing so; and every right of setoff shall continue
in
full force and effect until specifically waived or released by an instrument
in
writing executed by L/C Issuer.
3. No
delay
or failure by L/C Issuer, Agent Bank or any of the Banks to exercise any right
or remedy against the Borrower under the Loan Documents shall be construed
as a
waiver of such right or remedy. All remedies of L/C Issuer, Agent Bank and
Banks
against the Borrower under the Loan Documents are cumulative.
4. This
Pledge Agreement may not be amended, changed or terminated except by an
agreement in writing signed by the party or parties against whom enforcement
of
the change is sought. This Pledge Agreement shall be governed by and construed
in accordance with the laws of the State of Nevada and if any action is taken
to
enforce the terms of this Pledge Agreement such action shall be commenced and
maintained within the State of Nevada.
5. If
and to
the extent that the amounts held from time to time in the Cash Collateral
Account (including any interest) exceed the Stated Amount of all undrawn Letters
of Credit and all unpaid L/C Reimbursement Obligations, L/C Issuer shall, on
or
before ten (10) days following receipt of written request by Borrower, apply
such excess in the order of priority set forth in Section 7.03 of the
Credit Agreement.
2
6. This
Pledge Agreement may be executed in any number of separate counterparts with
the
same effect as if the signatures hereto and hereby were upon the same
instrument. All such counterparts shall together constitute one and the same
document.
IN
WITNESS WHEREOF, the parties hereto have executed the foregoing instrument
on
the day and year first above written.
|
BORROWER:
CC
TOLLGATE LLC,
a
Delaware limited liability company
By: CENTURY
CASINOS TOLLGATE, INC., a Delaware corporation,
its
Managing Member
By
/s/ Xxxxx Xxxxxxxxx
Xxxxx
Xxxxxxxxx,
CEO
and Secretary
|
|
|
L/C
ISSUER:
XXXXX
FARGO BANK,
National
Association,
Agent
Bank
By
/s/ Xxxx Xxxx
Xxxx
Xxxx,
Vice
President
|
3
