EXHIBIT 10.13
LOAN MODIFICATION AGREEMENT
THIS LOAN MODIFICATION AGREEMENT ("MODIFICATION AGREEMENT") is entered into this
29th day of August, 2003, by and between: FIRST NATIONAL BANK ("LENDER");
CONCORDE CRIPPLE CREEK, INC., a Colorado corporation ("BORROWER"); and XXXXXXXX
X. XXXX, XXXXXX X. XXXX, AND CONCORDE GAMING CORPORATION, a Colorado corporation
(each a "GUARANTOR" and collectively "GUARANTORS") (Concorde Gaming Corporation
also referred to as "SUBORDINATED CREDITOR").
RECITALS
1. On or about July 31, 2002, Lender, Borrower and Guarantors entered into
the following agreements:
(a) Loan Agreement, a copy of which is attached hereto as Exhibit A;
(b) Promissory Note, a copy of which is attached hereto as Exhibit B;
(c) Deed of Trust, Assignment of Leases and Rents, Security Agreement and
Fixture Filing (also entered into by the Public Trustee of Xxxxxx
County [the "TRUSTEE"]); a copy of which is attached hereto as Exhibit
C;
(d) Guaranty of Xxxxxxxx X. Xxxx and Xxxxxx X. Xxxx, a copy of which is
attached hereto as Exhibit D;
(e) Guaranty of Concorde Gaming Corporation, a copy of which is attached
hereto as Exhibit E;
(f) Subordination Agreement, a copy of which is attached hereto as
Exhibit F.
In addition to the foregoing, Borrowers and Guarantors executed other documents
in connection with the foregoing, including, without limitation, Closing
Certificate of Borrower, Closing Certificate of Concorde Gaming Corporation,
Certificate of No Hazardous Waste, Internal Preauthorized Transfer Agreement. In
addition to and in connection with the foregoing, Xxxxxxxx & Xxxxxxxx LLP, as
counsel for Borrower, issued an opinion of Borrower's counsel opining as to the
matters specified in Paragraph 5.01(k) of the Loan Agreement.
All of the foregoing documents, together with all ancillary documents executed
in connection therewith, will be referred to collectively herein as the "LOAN
DOCUMENTS." The indebtedness and obligations created and memorialized by the
Loan Documents will be referred to herein as the "LOAN."
2. As of the date of this Modification Agreement, amounts owing on the
Loan (assuming the payment due on September 1, 2003 is timely made) are:
(a) Principal in the amount of $7,341,500.42; and
(b) Accrued and unpaid interest of $43,743.10 (as of August 31, 2003);
(c) Total $7,385,243.52
The total set forth above will be referred to herein as the "CURRENT BALANCE."
Borrower's obligation to pay the Current Balance, together with all the other
covenants and obligations of Borrower and/or Guarantors under the Note, the
Security Agreement, and other Loan Documents, is hereby referred to collectively
herein as the "OBLIGATIONS."
3. The original purpose of the Loan was to provide funds for use by
Borrower in constructing certain improvements on and to the Premises. However,
since the date of the loan, Borrower has learned that, due to additional
requirements imposed by the City of Black Hawk, the cost to complete the
construction contemplated in the Loan Agreement exceeded the amount originally
budgeted by Borrower. Therefore, Borrower has requested Lender to advance
additional funds to Borrower to enable completion of the construction.
4. Currently, Lender is holding $460,947.48 in the Property Improvement
Reserve Account. Borrower has estimated that the total amount necessary to
complete construction is $1,294,445.00. Therefore, to complete the construction,
Borrower has requested Lender to advance an additional $800,000, with Borrower
to contribute an additional $33,497.52 plus any additional amounts and overruns
incurred.
6. Lender has agreed to advance such additional on the terms and
conditions set forth below.
AGREEMENT
In consideration of the mutual covenants set forth herein, and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged by the parties, the parties agree as follows:
1. INCORPORATION OF RECITALS. The Recitals set forth herein are
incorporated by reference and the parties represent and warrant that such
Recitals are true and correct.
2. ACKNOWLEDGMENT OF DEBT. Borrower and Guarantors hereby acknowledge
that: (i) the Note and Loan Documents inure to the benefit of Lender as the
holder of the Note; (ii) Borrower is indebted to the Lender in the amount of the
Current Balance; and (iii) the Obligations of Borrower and Guarantors under the
Note and Loan Documents are valid, binding and fully enforceable against
Borrower and Guarantors in accordance with their respective terms, without
defense, offset or counterclaim.
3. MODIFICATIONS OF LOAN DOCUMENTS.
a. The amount of the Loan as set forth in Paragraph 2.01(a) of the Loan
Agreement is increased to $8,141,500.42.
b. Upon the closing of this Modification, Lender will advance the sum of
$800,000 into the Property Improvement Reserve Account. Advances from
the Property Improvement Reserve Account will be made pursuant to the
Loan Agreement and the other Loan Documents. The Maturity Date and the
Amortization Period will remain as set forth in the Loan Agreement and
Promissory Note. Thus, Borrower acknowledges that the amount of its
monthly payments will increase as a result of the Advances made in
accordance with this Modification Agreement.
4. CONDITIONS TO MODIFICATION. Lender's assent to the terms of this
Modification Agreement is subject to the following conditions:
a. Issuance by Title Company at closing of a lender's policy of title
insurance, in the full amount of the Loan as set forth above, insuring
that he Premises are marketable, insuring fee simple title to the
Premises vested in Borrower, free and clear from exceptions (other than
this Loan) except as approved by Lender in writing, naming Lender as an
insured, and inuring that the Deed of Trust is a valid first lien in
the full amount of the Loan, and otherwise acceptable to Lender in its
sole and absolute discretion;
b. The written opinion of counsel for Borrower as to the items set forth
in Paragraph 5.01(k) of the Loan Agreement;
c. Duly executed resolutions of Borrower and Concorde Gaming Corporation
assenting to the terms and conditions of this Modification Agreement;
d. A certification by Borrower that the representations and warranties
contained in the Loan Agreement continue to be true; and
e. An updated UCC search showing that Lender's UCC financing statement
continues to be in first position.
5. LIMITED MODIFICATION. Except as modified herein, the Loan Agreement,
Security Agreement and other Loan Documents remain in full force and effect
according to their terms and conditions.
6. REAFFIRMATION AND CONSENT BY BORROWER. Borrower hereby: (a) consents
to the terms and execution of this Modification Agreement, and (b) reaffirms the
obligations of Borrower, to Lender under to the terms of the Loan Documents, as
amended or modified herein.
7. REAFFIRMATION AND CONSENT BY GUARANTOR. Each Guarantor hereby: (a)
consents to the terms and execution of this Modification Agreement, and (b)
reaffirms the obligations of each Guarantor, respectively, to Lender under to
the terms of the Guaranty and other Loan Documents, as amended or modified
herein.
8. REAFFIRMATION OF SUBORDINATION AGREEMENT. Subordinated Creditor
hereby: (a) consents to the terms and execution of this Modification Agreement,
and (b) reaffirms the obligations of Subordinated Creditor to Lender under to
the terms of the Subordination Agreement and other Loan Documents, as amended or
modified herein.
9. COSTS. Borrower shall reimburse Lender for all costs and attorneys'
fees incurred by Lender in connection with the preparation of this Modification
Agreement, the recordation and/or filing of the Amendment to Deed of Trust, the
issuance of the updated Title Policy, and all other items necessary for the
completion of the transactions contemplated by this Modification Agreement.
10. MISCELLANEOUS
a. The new address for notice to borrower's counsel is:
Xxxxx X. Xxxxxx
Xxxxxxx, Xxxxxxx & Xxxxx, PLC
1400 AT&T Tower
000 Xxxxxxxxx Xxx.
Xxxxxxxxxxx, XX 00000
(000) 000-0000 (Phone)
(000) 000-0000 (Fax)
xxx@xxxxxx.xxx (e-mail)
b. Unless otherwise defined herein, all capitalized terms herein bear the
definition assigned in the Loan Agreement or, if not defined therein,
the other Loan Documents.
c. This Modification Agreement represents the only agreement among the
parties, other than the Loan Documents, concerning the subject matter
hereof, and supersedes all prior agreements, whether oral or written,
relating thereto. No purported amendment, modification, or waiver of
any provision hereof shall be binding unless set forth in a written
document signed by all parties (in the case of amendments or
modifications) or by the party to be charged thereby (in the case of
waivers). Any waiver shall be limited to the provisions thereof and the
circumstance or advance made specifically made subject thereto and
shall not be deemed a waiver of any other term hereof or of the same
circumstance or event upon any reoccurrence thereof.
d. This Modification Agreement and relations between the parties hereunder
shall be governed by and construed and enforced in accordance with the
laws of the State of Colorado.
e. This Modification Agreement shall be binding upon Borrower, its heirs,
personal representatives, successors, assigns, employees and other
representatives. This Modification Agreement shall continue in full
force and effect unless until terminated by written agreement of all
parties hereto. Nothing in this Modification Agreement, express or
implied, is intended to confer on any person other than the parties to
this Modification Agreement or their respective heirs, representatives,
successors, or assigns any rights, remedies, obligations, or
liabilities under or by reason of this Modification Agreement.
f. In the event any provision of this Modification Agreement is held
invalid by a court of competent jurisdiction, the remaining provisions
shall nonetheless be enforceable according to their terms. Any
provision held overbroad as written shall be deemed amended to narrow
its application to the extent necessary to make the provision
enforceable under applicable law, and enforced as amended. This
Modification Agreement shall be construed without regard to any
presumption or other rule requiring construction hereof against the
party causing this Modification Agreement to be drafted.
g. This Modification Agreement may be executed in counterparts and by
different parties on different counterparts with the same effect as if
signatures thereto were on the same instrument. This Modification
Agreement shall be effective and binding upon all parties hereto at
such time as all of the parties have executed one or more counterparts
of this Modification Agreement.
h. The undersigned, by their execution hereof, state that this document
has been read by them, it has been executed by them after conferring
with legal counsel or after having a full opportunity to do so, and
that the undersigned understand and fully agree to each, all and every
provision hereof, and hereby acknowledge a receipt of a copy hereof.
i. EACH OF THE UNDERSIGNED AND LENDER (BY ACCEPTANCE HEREOF), TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY KNOWINGLY,
VOLUNTARILY, AND INTENTIONALLY WAIVES ANY RIGHT TO A TRIAL BY JURY
IN RESPECT OF ANY LITIGATION BASED ON THIS MODIFICATION AGREEMENT, THE
LOAN, OR ANY OTHER LOAN DOCUMENT, OR ANY OTHER DOCUMENT EXECUTED IN
CONNECTION WITH THIS NOTE, OR ARISING OUT OF, UNDER, OR IN CONNECTION
THEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER ORAL OR WRITTEN), OR ACTIONS OF ANY PARTY. THIS PROVISION IS A
MATERIAL INDUCEMENT FOR LENDER TO ENTER INTO THE TRANSACTIONS EVIDENCED
HEREBY.
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IN WITNESS WHEREOF, the parties have executed this Modification Agreement as of
the day and year first above written.
LENDER: BORROWER:
First National Bank Concorde Cripple Creek, Inc.
By: /s/ Xxxx Xxxxxxxxxxx By: /s/ Xxxxx X. Xxxx
------------------------- --------------------------------
Xxxx Xxxxxxxxxxx Xxxxx X. Xxxx
Its: Branch President Its: President
GUARANTORS: GUARANTOR AND SUBORDINATED CREDITOR:
Concorde Gaming Corporation
/s/ Xxxxxxxx X. Xxxx By: /s/ Xxxxx X. Xxxx
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XXXXXXXX X. XXXX Xxxxx X. Xxxx
Its: President
/s/ Xxxxxx X. Xxxx
-----------------------------
XXXXXX X. XXXX
