EXHIBIT 10.3
LOAN AGREEMENT
BETWEEN
CONCORDE CRIPPLE CREEK, INC.
AND
FIRST NATIONAL BANK, AS LENDER
Dated as of July 31, 2002
TABLE OF CONTENTS
SECTION 1. DEFINITIONS............................................................................................4
1.01. Specific Definitions.................................................................................4
1.02. Certain Other Terms.................................................................................13
SECTION 2. THE LOAN..............................................................................................13
2.01. Loan/Disbursements..................................................................................13
2.02. Interest Rate.......................................................................................15
2.03. Late Charge.........................................................................................15
2.04. Terms of Payment....................................................................................15
2.05. Payments............................................................................................15
2.06. Prepayment..........................................................................................15
2.07. Use of Proceeds.....................................................................................15
SECTION 3. SECURITY..............................................................................................16
SECTION 4. REPRESENTATIONS AND WARRANTIES........................................................................17
4.01. Organization, Powers, Etc...........................................................................17
4.02. Authorization of Borrowing, Etc.....................................................................17
4.03. Consents and Approvals..............................................................................17
4.04. Litigation..........................................................................................17
4.05. Compliance with Law.................................................................................18
4.06. Financial Statements................................................................................18
4.07. True and Correct Information........................................................................18
4.08. Loan Not for Purpose of Margin Stock................................................................18
4.09. Loan Not to Acquire a Security......................................................................18
4.10. Licenses; Investigations; Compliance................................................................18
4.11. Intended Use of Project.............................................................................19
4.12. No Usury............................................................................................19
4.13. Participation of Directors, Officers and Employees..................................................19
4.14. Status of the Borrower..............................................................................19
4.15. Agreements..........................................................................................20
4.16. ERISA...............................................................................................20
4.17. No Lien on Facilities or Collateral.................................................................20
4.18. Environmental Impact Statement......................................................................20
4.19. Access..............................................................................................20
4.20. Hazardous Substances Representations of the Borrower................................................20
4.21. Intellectual Property...............................................................................21
4.22. Maintenance of Property.............................................................................21
4.23. Licensure Requirements..............................................................................21
SECTION 5. CONDITIONS PRECEDENT..................................................................................21
5.01. Effectiveness of Agreement..........................................................................21
SECTION 6. COVENANTS.............................................................................................24
6.01. Existence, Properties, Etc..........................................................................24
6.02. Insurance and Bonds.................................................................................24
6.03. Collection of Proceeds..............................................................................26
6.04. Payments of Debt, Taxes, Etc........................................................................26
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6.05. Restrictions on Transfer............................................................................27
6.06. Financial Statements................................................................................27
6.07. Hazardous Substances................................................................................28
6.08. Notice of Litigation................................................................................29
6.09. Change in Nature of Business........................................................................29
6.10. No Defaults.........................................................................................29
6.11. Intentionally Deleted...............................................................................29
6.12. Lien Searches.......................................................................................30
6.13. Further Assurances..................................................................................30
6.14. ERISA...............................................................................................30
6.15. Notice of Events of Default.........................................................................30
6.16. Licenses............................................................................................30
6.17. Conduct of Business.................................................................................30
6.18. Application of Loan Proceeds........................................................................30
6.19. Material Effect.....................................................................................30
6.20. Inspections/Books and Records.......................................................................30
6.21. Compliance with Governmental Requirements and Laws..................................................31
6.22. Regulations T, U and X..............................................................................31
6.23. Merger, Consolidation or Transfer of Assets.........................................................31
6.24. Franchise Agreement.................................................................................32
6.25. Loans or Advances...................................................................................32
6.26. Guaranties..........................................................................................32
6.27. Maintenance of Properties, Etc......................................................................32
6.28. Gaming Compliance/Termination.......................................................................32
6.29. Location of Facilities on Land......................................................................32
6.30. Debt Service Coverage Ratio.........................................................................32
6.31. Net Worth Covenant..................................................................................32
6.32. Additional Indebtedness.............................................................................32
6.33. Liens...............................................................................................33
6.34. No other Facilities.................................................................................31
6.35. Other Restrictions..................................................................................33
6.36. Change of Name or Location of Chief Executive Offices...............................................33
SECTION 7. EVENTS OF DEFAULT.....................................................................................33
SECTION 8. MISCELLANEOUS.........................................................................................36
8.01. No Waiver; Remedies Cumulative......................................................................36
8.02. Notices.............................................................................................36
8.03. Fees/Taxes/Attorneys Fees...........................................................................37
8.04. Indemnification.....................................................................................38
8.05. Compliance Certificate..............................................................................40
8.06. Amendments, Etc.....................................................................................40
8.07. Successors and Assigns Included in Parties..........................................................40
8.08. Binding Effect and Assignment/Third Party Beneficiary...............................................41
8.09. Marshalling; Payments Set Aside.....................................................................41
8.10. Section Titles......................................................................................41
8.11. Reliance by the Lender and Lender...................................................................41
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8.12. Multiple Counterparts...............................................................................41
8.13. Invalid Provisions to Affect No Others..............................................................41
8.14. Number and Gender...................................................................................41
8.15. Time of Essence.....................................................................................41
8.16. Not Joint Ventures..................................................................................41
8.17. Estoppel Certificate................................................................................42
8.18. Notice of Change in Location........................................................................42
8.19. Renewal or Extension................................................................................42
8.20. Tax Identification Number...........................................................................42
8.21. Setoff..............................................................................................42
8.22. Name and Logo.......................................................................................42
8.23. Remedies Cumulative.................................................................................42
8.24. Integration; Conflicting Terms......................................................................42
8.25. Governing Law and Construction......................................................................43
8.26. Adequacy of Note Proceeds...........................................................................43
8.27. Term................................................................................................43
EXHIBIT A LEGAL DESCRIPTION OF LAND.......................................................................A-1
EXHIBIT B PROMISSORY NOTE.................................................................................B-1
EXHIBIT C COMPLIANCE CERTIFICATE..........................................................................C-1
EXHIBIT D ADDITIONAL PERMITTED ENCUMBRANCES...............................................................D-1
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LOAN AGREEMENT
THIS
LOAN AGREEMENT (the "Agreement"), dated as of the date set forth
on the cover hereof, is between Concorde Cripple Creek, Inc. (hereinafter called
the "Borrower"), and First National Bank, a national banking association
(hereinafter called the "Lender").
RECITALS:
WHEREAS, Borrower desires to borrow the amount of $7,600,000.00 (the
"Loan") for the purpose of (i) financing the sum of $6,327,720.00 representing
the purchase of the real property located in Black Hawk,
Colorado, legally
described in Exhibit A attached hereto and commonly known as the Golden Gates
Casino (the "Property"), including all furniture, fixtures, equipment,
improvements and real property, trademarks, tradenames, inventory, accounts and
receivables (the "Assets"); (ii) completing renovations to the improvements
situated on the property and purchasing certain gaming equipment to be located
at and used in connection with the gaming enterprise of Borrower at the Property
in the aggregate amount of $800,000.00; (iii) establishing a $400,000.00 Debt
Service and Replacement Reserve; and (iv) paying certain costs associated with
the transaction including placement and organization fees, expenses incurred by
Lender and Placement Agent in connection with the Loan, including travel,
out-of-pocket disbursements and attorney's fees incurred by Lender and Placement
Agent.
WHEREAS, Lender has agreed to make the Loan to Borrower for such amount
and on the terms provided herein and in the Loan Documents; and
NOW, THEREFORE, in consideration of the foregoing Recitals and the
terms and conditions set forth below, the parties hereto agree as follows:
SECTION 1. DEFINITIONS
1.01. SPECIFIC DEFINITIONS. As used herein, the following terms shall
have the following meanings, with terms defined in the Note, but not this
Agreement, being used with the meanings assigned thereto in the Note:
Accountant: any Person who is a certified public accountant employed or
retained by Borrower and reasonably acceptable to Lender.
Advance: any payment by Lender to Borrower of proceeds of the Loan in
accordance with the terms hereof.
Advance Date: the date on which any Advance occurs.
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Affiliate: with respect to any Person, any other Person who, directly
or indirectly, controls, is controlled by, or is under common control with the
first Person.
Balloon Debt: any Recourse Debt on which the principal is not fully
amortized over its stated term, either in level installments of principal or in
approximately equal payments of principal and interest.
Borrower: Concorde Cripple Creek, Inc., a
Colorado corporation,
together with any successor or assign permitted hereunder and under all Loan
Documents.
Borrower Representative: the officer or officers of Borrower identified
as the Borrower Representative from time to time in writing signed by the
President of Borrower.
Business Day: each day other than a Saturday, a Sunday or other day on
which commercial banks in the city in which the principal office of the Lender
is located is not open for business.
Collateral: the "Collateral" as defined in the Deed of Trust.
Collateral Proceeds: all proceeds received from the enforcement of any
rights or remedies against all or any portion of the Collateral.
Dated Date: the "Dated Date" set forth on the cover hereof.
Debt: collectively, in respect of any Person, any of the following:
(a) all debt of such Person, whether or not represented by
bonds, debentures, Note or securities, for the repayment of money
borrowed (whether or not recourse for payment is available to the whole
of the assets of such Person or only a portion thereof), if and to the
extent such obligations would appear as a liability upon a balance
sheet of such Person prepared in accordance with GAAP;
(b) all deferred obligations of such Person for the payment of
the purchase price of property or assets purchased; all obligations of
such Person representing the balance deferred and unpaid of the
purchase price of any property or interest therein or in respect of
conditional sales, except any such balance that constitutes a trade
payable in the ordinary course of business in connection with obtaining
goods, materials or services;
(c) all guaranties, endorsements, assumptions and other
contingent obligations in respect of, or agreements to purchase or
otherwise acquire, debt of others; and reimbursement obligations of
such person with respect to letters of credit and bankers acceptances
or similar credit obligations;
(d) all obligations under interest rate protection agreements,
foreign currency ▇▇▇▇▇▇ and similar agreements;
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(e) all obligations secured by any mortgage, pledge or lien
existing on property owned in whole or in part by such Person, whether
or not the debt secured thereby shall have been assumed;
(f) all installment purchase contracts, loans secured by
purchase money security interests and lease-purchase agreements or
capital leases (including leases of real property), in each case
computed in accordance with GAAP;
(g) any obligation of such Person (whether or not classified
as debt under GAAP, including an operating lease) entered into for the
purpose of directly or indirectly supporting, credit enhancing or
paying any Debt of another Person, including any agreement to purchase
any asset or obligation and any room rate, occupancy, or operating
guaranty;
(h) any Swap Arrangement (other than a Qualified Swap
Arrangement); and
(i) a guaranty or agreement by such Person (other than by
endorsement of negotiable instruments for collection in the ordinary
course of business), direct or indirect, primary or contingent, in any
manner of any part or all of the obligations of another person of the
type described in clauses (a) through (h) above.
Debt Service: with respect to any outstanding Debt, for any time
period, the aggregate of the payments made or to be made in respect of principal
(whether by maturity, purchase, or amortization), interest, lease payments,
servicing fees, trustee fees, paying agent fees, or similar payments, provided
that, with respect to Balloon Debt, Debt Service shall, for all purposes other
than for the computation under Section 6.30, be computed on a pro-forma basis on
the assumption that the principal of such Debt is retired in equal payments of
principal and interest commencing on the first date that principal is payable
thereon and ending on the stated maturity date of such Debt; and provided
further that Debt Service of any Debt constituting a guarantee or similar
contingent liability shall be determined by reference to the Debt Service of the
Debt guaranteed thereby. For any period that Borrower has entered into a
Qualified Swap Arrangement with respect to interest payable on any principal
amount of Debt, during such period the amount payable thereunder by Borrower
shall be taken into account in calculating Debt Service on such Debt instead of
the stated payments for interest otherwise due on such principal under the terms
of the Debt.
Debt Service and Replacement Reserve or Reserve: shall mean a reserve
account in the initial amount of $400,000 (the "Minimum Balance") to be held
back from the Loan proceeds by Lender and applied by Lender to Debt Service upon
an Event of Default or Default in the payment of principal and accrued interest
due under the Loan Documents. Beginning with the fiscal year ending September
30, 2003 and continuing thereafter during the term of the Loan, the Debt Service
and Replacement Reserve shall be increased annually by Borrower with required
contributions by Borrower equal to 1% of the annual gross revenues of the
Facility, which sum shall be determined and paid in good faith by Borrower
within 30 days of completion of Borrower's annual audited financial statement.
Any amount in excess of the Minimum Balance
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may be applied by Borrower to cover the cost of repairs and replacements to the
Facilities and special capital expenditures (routine, non-major expenditures
that are classified as "Capital Expenditures" under GAAP such as exterior and
interior repainting, resurfacing building walls and floors, resurfacing parking
areas, replacing folding walls and miscellaneous similar expenditures) upon
submission by Borrower of written certification of the chief financial officer
of Borrower, in form and content acceptable to Lender, of such expenditures.
Debt Service Coverage Ratio: with respect to any period, the ratio of:
(i) EBITDA to (ii) Debt Service on all Debt.
Deed of Trust: shall mean the Deed of Trust, Assignment of Leases and
Rents, Security Agreement and Fixture Filing dated of even date herewith given
by Borrower in favor of the Public Trustee of ▇▇▇▇▇▇ County for the benefit of
Lender.
Default: the occurrence of any event that, with the passage of time,
notice, or both, would if not cured constitute an Event of Default hereunder.
Default Rate: the meaning given to such term in Section 2.02(b).
Deposit Accounts: shall mean the Reserve , the Property Improvement
Account and the accounts required to be maintained by the Borrower with the
Lender into which all deposits from the operation of the Borrower's business
shall be deposited, excepting only the amount of cash that is reasonably
necessary to meet the daily cash on hand requirements of the Borrower, which
sums, together with daily deposits of the Borrower, may be maintained at a local
collection bank to be determined by Borrower (the "Collection Bank").
EBITDA means for any period, as determined for the Facilities in
conformity with GAAP, the sum of the amounts for such period of (i) net income,
exclusive of any Net Insurance Proceeds, (ii) interest expense, (iii) provisions
for taxes based on net income, if any, (iv) total depreciation expense, (v)
total amortization expense, and (vi) other non-recurring items reducing net
income but not requiring the expenditure of cash or the transfer of property,
less other non-recurring items increasing net income but not constituting the
receipt of cash or property.
Environmental Audit: a phase I environmental assessment acceptable to
Lender.
Environmental Laws: any applicable international, federal, state, or
local statute, law, regulation, order, consent, decree, judgment, permit,
license, code, covenant, deed restriction, common law, convention, ordinance or
other requirement relating to public health, safety or the environment,
including, without limitation, those relating to releases, discharges or
emissions to air, water, land or groundwater, to the withdrawal or use of
groundwater, to the use and handling of polychlorinated biphenyls or asbestos,
to the disposal, treatment, storage or management of hazardous or solid waste,
or Hazardous Substances and any regulation, order, notice or demand issued
pursuant to such law, statute or ordinance, in each case applicable to the
property of Borrower or its affiliates, if any, including without limitation, if
applicable, the following: the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended
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by the Superfund Amendments and Reauthorization Act of 1986, the Solid Waste
Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976
and the Hazardous and Solid Waste Amendments of 1984, the Hazardous Materials
Transportation Act, as amended, the Federal Water Pollution Control Act, as
amended by the Clean Water Act of 1976, the Safe Drinking Water Act, the Clean
Air Act, as amended, the Toxic Substances Control Act of 1976, the Occupational
Safety and Health Act of 1977, as amended, the Emergency Planning and Community
Right-to-Know Act of 1986, the National Environmental Policy Act of 1975, the
Oil Pollution Act of 1990, and any similar or implementing federal or state law,
and any federal or state statute and any further amendments to these laws
providing for financial responsibility for cleanup or other actions with respect
to the release or threatened release of Hazardous Substances or crude oil, or
any fraction thereof and all rules and regulations promulgated thereunder.
Equipment: all personal furnishings, equipment and tangible personal
property of any nature, whether now owned Borrower or hereafter acquired, and
located at or used in connection with the Facilities.
Event of Default: an event so defined in Section 7.
Facilities:
collectively.
(1) any gaming facility which is now, or may hereafter
be, acquired, owned, constructed and operated by
Borrower or any Affiliate of Borrower at the
Premises, and
(2) any presently owned or hereafter acquired or
constructed related facilities for dining, food
service and preparation, permanent or temporary
lodging (including hotels, motels and/or recreational
vehicle parks), entertainment and parking.
(3) the Equipment (including the Collateral).
Facilities Enterprise: collectively, all commercial endeavors or other
businesses of Borrower or any Affiliate of Borrower carried at, on or connected
with the Facilities, including, but not limited to, those related to licensed
gaming, lodging and conference facilities, food and beverage service,
entertainment and any other commercial endeavor in or located on the Land.
Financing Statements: one or more financing statements given by
Borrower to Lender, perfecting a security interest in Collateral.
First Advance Date: the date on which Lender makes a Loan Advance.
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GAAP: generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of 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 approved by a significant segment of the accounting
profession, which are applicable to the circumstances as of any date of
determination.
Government Authority: any government body or regulatory authority
exercising jurisdiction over Borrower or the Facilities.
Guarantor(s): shall mean any person or entity jointly and severally
guaranteeing the payment of the Loan. The Guarantors are
Concorde Gaming
Corporation, a
Colorado corporation, ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇.
Guaranty(s): shall mean the respective joint and several Guarantees
executed and delivered by each Guarantor.
Hazardous Substance: any hazardous or toxic material, substance or
waste, pollutant or contaminant that is regulated under any statute, ordinance,
rule or regulation of any local, state, regional or Federal authority having
jurisdiction over the Premises, or its use, including but not limited to any
material substance or waste that is: (a) defined as a hazardous substance under
any Environment Laws; (b) a petroleum hydrocarbon, including crude oil or any
fraction thereof and all petroleum products; (c) PCBs; (d) lead; (e) asbestos;
(f) flammable explosives; (g) infectious materials; (h) radioactive materials;
or (I) defined or regulated as a hazardous substance or hazardous waste under
any rules or regulations promulgated under any of the foregoing Environmental
Laws.
Holder: Lender, or any Person to which the Note in its entirety may be
transferred.
Improvements: the buildings and improvements to the Land.
Insurance Covenants: means the covenants of Borrower under Section
6.02.
Interest Rate: the rate set forth in the Note.
Land: the parcel of land on which the Facilities are located.
Lender: First National Bank, a national banking association, located in
Rapid City, South Dakota, and any successor or assign.
Leverage Ratio: means the ratio of (a) Debt for the quarter ending on
the date of determination to (b) earnings before interest, taxes, capital lease
expense, depreciation and amortization for the rolling four quarter period
ending on the date of determination.
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License: any of the Licenses defined in Section 4.10.
Lien: any security interest, mortgage, pledge, lien, charge,
encumbrance, title retention agreement or analogous instrument, in, of, or on
any of the assets or properties, whether now owned or hereafter acquired,
whether arising by agreement or operation of law, whether or not filed, recorded
or otherwise perfected under applicable law, including any conditional sale or
other title retention agreement, any lease in the nature thereof, any option or
other agreement to sell or give a security interest in and any filing of or
agreement to give any financing statement under the Uniform Commercial Code (or
equivalent statutes) of any jurisdiction.
Loan: the Loan as defined in Section 2.01.
Loan Documents: this
Loan Agreement, the Note, the Deed of Trust,
Assignment of Rents and Leases and Security Agreement, the Financing Statements,
the Subordination Agreement, the Guarantees, and all agreements, instruments and
documents heretofore, herewith or hereafter executed and delivered by Borrower
or any other Person pursuant to, or in connection with, the Loan.
Material Adverse Effect: with respect to any agreement, document,
action or non-action, (i) any material adverse effect on the current business,
operations, revenues, expenses, condition (financial or otherwise) of the
Facilities or the Facilities Enterprise, (ii) a material reduction in the amount
of Collateral for any period in excess of six months, (iii) the creation (other
than through the creation of a Permitted Encumbrance) of a Lien securing any
material liability or obligation on any material portion of the Facilities, the
Collateral, Collateral Proceeds or Net Insurance Proceeds, (iv) a Transfer other
than through the creation of a Permitted Encumbrance) of any material portion of
the Facilities, the Collateral, Collateral Proceeds or Net Insurance Proceeds,
and (v) a release from the Lien created by any Loan Document of any portion of
the Collateral, Collateral Proceeds or Net Insurance Proceeds, other than as
consented to by Lender.
Maturity Date: August 1, 2009.
Monthly Payment Date: the first day of each calendar month, occurring
on or after September 1, 2002.
Negative Covenants: any covenants of Borrower under any of the
following Sections of this Agreement: 6.05, 6.09, 6.10, 6.23, 6.24, 6.25, 6.26,
6.30, 6.33, 6.34, 6.35 or 6.36.
Net Insurance Proceeds: all proceeds of insurance with respect to the
Facilities or the Collateral, net of collection costs and expenses.
Net Worth Ratio: shall mean, as of any date, the ratio of Debt to
Tangible Net Worth.
Note: the Promissory Note of Borrower in the amount of $7,600,000.00
dated of even date herewith substantially in the form attached as EXHIBIT B
hereto.
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Note Principal Balance: at any time with respect to the Note, the total
principal sum payable under such Note, reduced by all repayments of principal on
the Note.
Permitted Encumbrances: any of the following:
(a) a purchase money mortgage or security interest, installment sale
contract, financing lease, or similar encumbrance on personal property
so long as the aggregate principal balances so secured do not exceed
$250,000.00;
(b) Liens permitted under any other Section hereof, the Deed of Trust,
or any document that secures the obligations of Borrower under the Loan
Documents;
(c) clouds on title, title defects or irregularities, utility, access
and other easements and rights-of-way, restrictions and exceptions that
according to a reasonable written certification from an authorized
officer of Borrower shall not materially interfere with or impair the
value, usefulness or integrity of any material portion of the
Facilities, or the present or intended operations thereof;
(d) zoning or similar laws which according to a reasonable written
certification from an authorized officer of Borrower shall not
materially interfere with or impair the value, usefulness or integrity
of any material portion of the Facilities, or the present or intended
operations thereof;
(e) those items identified in EXHIBIT D hereto as additional Permitted
Encumbrances;
(f) Liens on vehicles;
(g) Liens for taxes or assessments or other governmental charges or
levies, either not yet due and payable or which are being contested in
good faith;
(h) non-consensual liens imposed by operation of law including, without
limitation, landlord liens for rent not yet due and payable, and liens
for materialmen, mechanics, warehousemen, carriers, employees, workmen,
repairmen, current wages or accounts payable not yet delinquent, and
arising in the ordinary course of business or being contested in good
faith by appropriate proceedings and subject to maintenance of adequate
reserves.
(i) any item consented to by Lender.
Person: any natural person, corporation, partnership, joint venture,
firm, association, trust, unincorporated organization, limited liability
company, government or governmental agency or political subdivision or any other
entity, whether acting in an individual, fiduciary or other capacity.
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Premises: the Land, together with any Improvements thereon.
Property Improvement Account: means a Deposit Account in the initial
amount of $800,000 to be held back from the Loan proceeds by Lender and advanced
by Lender to Borrower pursuant to Section 2.01(c) hereof.
Qualified Counter Party: means a Person obligated to pay Borrower under
a Qualified Swap Arrangement and who has an unsecured long-term credit rating
from a ▇▇▇▇▇'▇ Investors Services, Inc. or Standard & Poor's Rating Services of
"AA" or "Aa," respectively (or an equivalent rating).
Qualified Swap Arrangement: means with respect to any period and any
payments of interest due on any of designated portion of the principal amount of
any Debt (the "Notional Amount"), a legally binding and enforceable Swap
Arrangement for the entire period between Borrower and a Qualified Counter
Party, with neither party obligated to repay the Notional Amount or any
principal.
Recourse Debt: Debt secured by any interest in, or having recourse to,
all or any portion of the Collateral or the Facilities.
Regulations: all state and federal laws, ordinances, rules, regulations
and orders pertaining to the operation of the Facilities Enterprise, whether now
or hereafter adopted or in effect.
Rolling Fiscal Year: each period of four consecutive fiscal quarters.
Subordination Agreement: the Subordination Agreement of even date
herewith from
Concorde Gaming Corporation in favor of Lender and consented to by
Borrower.
Swap Arrangement: with respect to any period and any designated amount
(the "Notional Amount"), an agreement between Borrower and a third party
pursuant to which Borrower is obligated to make interest-like payments to the
third party on the Notional Amount at a determinable rate, and the third party
is obligated during the period to make similar interest-like payments to
Borrower on the Notional Amount (based on a different rate of or formula for
determining payments).
Tangible Net Worth: shall mean, as of any date, the sum of the capital
stock and additional paid-in capital plus retained earnings (or minus
accumulated deficit) calculated in conformity with GAAP.
Title Policy: shall mean an extended coverage ALTA Lender's Policy of
Title Insurance issued by First American Title Insurance Company ("Title") (Form
1970 or Form 1992 Revised 10-23-92 with the exclusion for creditors rights and
arbitration requirements deleted) and containing such endorsements as Lender may
require and setting forth as exceptions to title those exceptions as may be
approved by Lender.
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Transfer: any sale, pledge, assignment, mortgage, encumbrance, or the
creation of any security interest, consensual lien, hypothecation, transfer or
divestiture, the effect of which is to grant another an interest (including an
interest taken as security) in the Facilities, any Collateral, the shares of
common stock of Borrower, or any portion of any thereof, either directly or
indirectly. Any change in the legal or equitable title of the Facilities or in
the beneficial ownership of the Facilities, whether or not of record and whether
or not for consideration shall be deemed a Transfer.
Unsecured Debt: means Debt that is not Recourse Debt.
1.02. CERTAIN OTHER TERMS. For purposes of this Agreement, all
accounting terms not otherwise defined herein shall have the meanings assigned
to them in conformity with GAAP.
SECTION 2. THE LOAN
2.01. LOAN/DISBURSEMENTS.
(a) Lender, on the terms and conditions stated herein, shall
lend to Borrower the sum of $7,600,000.00 (the "Loan"). The Loan shall
be evidenced by the Note and shall be funded in the manner set forth
herein, less origination fees, the placement fees and transactional
expenses of Placement Agent and Lender, including fees and expenses of
Lender's counsel. Amounts paid or prepaid under the Note may not be
reborrowed.
(b) Notwithstanding any other provision herein, Lender shall
have no obligation of any nature to fund any Advance unless: (i) no
Event of Default has occurred and is continuing; (ii) all
representations and warranties of Borrower in each Loan Document are
true and correct in all material respects; (iii) all conditions set
forth in Section 5.01 as conditions to the effectiveness of this
Agreement (unless waived in connection with the execution of this
Agreement) shall have been satisfied; and (iv) Lender has received a
signed certificate of the President of Borrower stating that after
giving effect to the Loan, the representations and warranties contained
herein are true and accurate and that no Default or Event of Default
exists as of the Advance Date.
(c) Conditions to Advance. It shall be a condition precedent
to all Advances subsequent to the first Advance that all conditions
precedent to the first Advance set forth herein have been satisfied.
Provided the conditions precedent to the first Advance are satisfied,
not more often than monthly, Borrower may submit an application
requesting an Advance of Loan funds from the Property Improvement
Account to pay costs actually incurred in the construction of
Improvements to the Premises as incurred to date less the amount of all
previous Advances for the same. Borrower may request an Advance only
for work and material incorporated in the Improvements and if approved
by Lender, cost of materials to be incorporated in the Premises and
which are securely stored on site, with scheduled insurance against
loss, theft or damage and for which title rests in Borrower free of
liens, other than Permitted Encumbrances, and ii) cost of Equipment to
be installed in the Premises and which is securely stored on site (or
in a bonded warehouse with prepaid storage fees with warehouseman's
receipt delivered to Lender) with scheduled insurance against loss,
theft or damage and for which title rests in Borrower
13
free of liens, other than Permitted Encumbrances. No retainage shall be
deducted from any Advance. Each application for an Advance shall be
submitted to Lender at least ten (10) days prior to the date on which
an Advance is requested. Each application requesting an Advance shall
clearly set forth the amounts due to Borrower out of the requested
Advance and shall be accompanied by:
(a) Waivers of mechanic's liens and materialman's liens for
all work done and all materials furnished to the Premises and
included in the previous application for an Advance delivered
by the respective party or parties performing the work and/or
furnishing the materials.
(b) Such other supporting evidence, including invoices and
receipts as may be reasonably requested by Lender to
substantiate all payments which are to be made out of the
Advance or to substantiate all payments then made in respect
to the Premises.
(c) evidence of appropriate insurance coverage insuring the
materials while in storage and naming Lender as loss payee.
(d) As to each approved Advance for Equipment delivered to the
Premises:
(i) invoices for the same passing good, merchantable
title to the Equipment to the Borrower and including
in the sales price all sales and use taxes, value
added tax, goods and services tax and any other
applicable taxes due with respect to the Equipment,
all freight, shipping and delivery charges; and
(ii) evidence of appropriate insurance coverage
insuring the Equipment while in storage and naming
Lender as loss payee; and
(iii) delivery in the name of the Borrower to the
Premises (or into a bonded warehouse with prepaid
storage fees with warehouseman's receipt delivered to
Lender) in undamaged condition and in a condition
which is ready for immediate installation or adequate
storage at the Premises.
Provided the conditions of the
Loan Agreement are met on the date of an
Advance, Lender shall advance to Borrower the Advance set forth in the
Borrower's application for an Advance. Notwithstanding anything herein
to the contrary, the entire principal balance of the Loan shall bear
interest at the Interest Rate set forth in the Note from and after the
date of Closing. In the event all or any portion of the $800,000.00
amount set aside in the Property Improvement Account are not advanced
to pay for the costs of
14
completing the Improvements within 180 days of the closing, such
remaining balance shall be applied by Lender as a prepayment of the
Note Principal Balance.
2.02. INTEREST RATE.
(a) INTEREST RATE PRIOR TO DEFAULT. Interest shall commence to
accrue with respect to the Note Principal Balance on the Advance Date.
The Note Principal Balance shall bear interest at the Interest Rate,
calculated as provided in the Note.
(b) DEFAULT RATE. If an Event of Default occurs, then, at the
option of Lender, during the entire period during which such Event of
Default shall occur and be continuing, interest shall be payable on the
Note Principal Balance at a default rate as provided in the Note.
2.03. LATE CHARGE.If any payment required under the Note is not paid
within five calendar days after the due date, Borrower agrees to pay a late
charge as provided in the Note. This late charge shall apply individually to all
payments past due and there will be no daily pro rata adjustment. This provision
shall not be deemed to excuse a late payment or be deemed a waiver of any other
rights Lender may have including the right to declare the entire Note Principal
Balance and interest immediately due and payable.
2.04. TERMS OF PAYMENT. The Note shall be payable upon the terms set
forth in the Note. Amounts due hereunder and under the Note shall be a
continuing recourse obligation of Borrower, subject to the terms hereof and the
Note.
2.05. PAYMENTS. All payments and prepayments by Borrower of principal
of and interest on the Note, and all other fees, expenses, and other obligations
under this Agreement payable to Lender on the date hereof, shall be paid by wire
transfer to the Lender, or drawn from collected funds in an account established
at the Lender, on or before the due date.
2.06. PREPAYMENT. At the option of Borrower, the Loan may be prepaid in
whole on any date and in part on any Monthly Payment Date, upon thirty (30) days
prior written notice to Lender, in principal amounts of not less than
$250,000.00. All partial prepayments shall be applied based on the unpaid
principal balance of the Loan first to accrued interest, and then to the
principal balance of the Loan. Upon prepayment in full, interest accrued to the
prepayment date shall be paid on such prepayment date. Prepayments of the Note
Principal Balance shall be applied to principal installments of the Note in
inverse order of maturity; otherwise, no prepayment shall postpone the due dates
or reduce the amount of the Monthly Payments required under the Note.
2.07. USE OF PROCEEDS. The proceeds of the Loan shall be used to: (i)
pay the purchase price for the Property in the amount of $6,327,720.00; (ii) to
fund the Property Improvement Account to be used to pay the costs of completing
certain renovations to the Property and to pay
15
for certain gaming equipment to be purchased by Borrower and used in connection
with the Facilities Enterprise in the aggregate amount of $800,000.00; (iii) to
fund $400,000.000 for the Debt Service and Replacement Reserve Account; and (iv)
to pay costs associated with the transaction, including placement agent fees,
origination fees, fees and expenses of Lender, and Lender's attorneys fees and
expenses.
SECTION 3. SECURITY AND RESERVE
3.01. SECURITY. To secure payment of all obligations of Borrower to
Lender hereunder, and under the Note, Borrower shall execute and deliver the
Deed of Trust.
3.02. RESERVE ACCOUNT. The Lender shall hold back from disbursement of
the Loan proceeds the sum of $1,200,000 to initially establish the required
$400,000.00 Debt Service and Replacement Reserve account under this Agreement
and an additional $800,000.00 to establish the required Property Improvement
Account, representing the anticipated costs to be incurred by Borrower to
complete the Improvements to the Premises. Such funds shall be thereafter
disbursed by Lender as provided in this Agreement. Interest shall accrue and be
payable to Lender by Borrower on the Reserve and the Property Improvement
Account prior to disbursement thereof at the Interest Rate set forth in the
Note, provided, however, that such accounts shall bear interest for Borrower's
benefit at Lender's money market rates. If the Reserve account shall be entirely
disbursed, but the costs or expenses for which such Reserve have been
established shall not have been fully paid and provided for, Lender shall have
the right to hold back from any further disbursement of Loan proceeds funds
sufficient to re-establish the Reserve in an amount sufficient (in Lender's
reasonable judgment) to provide for those costs and expenses thereafter. If at
any time the balance in the Reserve shall fall below the Minimum Balance,
Borrower shall replenish the Reserve within 60 days of written notice. Lender
shall have no obligation to disburse Reserve funds (i) if a Default or an Event
of Default has occurred and is continuing hereunder, or (ii) to disburse Reserve
funds for any other purpose or to any other person other than for which the
Reserve was established, provided if a Default or an Event of Default has
occurred, Lender may disburse the Reserve funds in its discretion to the payment
of the Loan as it may decide. Borrower hereby grants to Lender a first security
interest in the Reserve. Upon exhaustion of the Reserve, Borrower shall deposit
with the Lender sums sufficient to replenish the Reserve. If there is then no
Default or Event of Default under the Loan Documents, at the end of the term of
the Loan the Reserve shall be applied to the Note Principal Balance.
3.03. DEPOSIT ACCOUNTS. The Borrower shall establish a collection
account(s) with a local Collection Bank, and the amounts deposited into such
collection accounts, less an amount reasonably necessary to meet the daily cash
on hand requirements of Borrower, shall be transferred to the Deposit Accounts
with Lender, with such transfer to occur via automated clearing house wire
transfer on the third business day of each week. Borrower shall notify in
writing the Collection Bank and Lender each week of the amount to be transferred
to Lender at least one business day prior to such transfer. Lender shall have a
security interest in all such
16
Deposit Accounts to secure the obligations of the Borrower under the Note and
under this
Loan Agreement.
SECTION 4. REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to Lender as of the Dated Date
that:
4.01. ORGANIZATION, POWERS, ETC.
(a) The Borrower is a corporation duly organized and in good standing
under the laws of the State of
Colorado; (b) the Borrower has full power and
authority to own its properties and to carry on its business as presently
conducted; (c) the Borrower has the power to execute, deliver and perform the
Loan Documents to which it is a party; and (d) for purposes of filing financing
statements evidencing the security interests granted under the Loan Documents,
Borrower's true legal name is "Concorde Cripple Creek, Inc." The chief executive
offices (the primary location where the Borrower manages the main part of its
business operations and other affairs) are located only in the State of
Colorado.
4.02. AUTHORIZATION OF BORROWING, ETC. The execution, delivery and
performance of the Loan Documents and the borrowings hereunder have been duly
authorized by all requisite action of Borrower and any other Government
Authority, and will not violate the Bylaws of Borrower or any provision of law,
any order of any court or other agency of government (whether state or federal),
or any provisions of any indenture, material agreement or other instrument to
which either Borrower is a party or by which it or any of its properties is
bound. The Loan Documents constitute the legal, valid and binding obligations of
Borrower, enforceable against it in accordance with their respective terms,
except as may be limited by bankruptcy, insolvency, reorganization, moratorium
and other similar laws and equitable principles relating to or limiting
creditors' rights generally.
4.03. CONSENTS AND APPROVALS. The authorization, execution and delivery
of the Loan Documents are not and will not be subject to the jurisdiction,
approval or consent of, or to any requirement of registration with or
notification to, any federal, state, or local regulatory body or administrative
agency.
4.04. LITIGATION. There are no actions, suits or proceedings pending,
or to the knowledge of Borrower, overtly threatened against or affecting it, or
the Facilities, or the Collateral, or involving the validity or enforceability
of any of the Loan Documents or the priority of the lien thereof, or any basis
therefor, at law or in equity, or before or by any Government Authority, except
actions, suits and proceedings which, if adversely determined would not have a
Material Adverse Effect; and it is not in default with respect to any order,
writ, injunction, decree or demand of any court or any Government Authority or
other governmental agency or instrumentality.
17
4.05. COMPLIANCE WITH LAW. No consent, approval or authorization of, or
registration, declaration or filing with, any Government Authority that has not
been obtained is required on the part of Borrower in connection with the
execution and delivery of the Loan Documents or the compliance with the terms,
provisions or conditions thereof, or, if so required, such consent, approval or
authorization has been requested and obtained. To Borrower's knowledge, it is
not in violation of or subject to any contingent liability on account of any
statute, law, rule, ordinance, order, writ, injunction or decree.
4.06. FINANCIAL STATEMENTS. Borrower's and each Guarantor's financial
statements that have been presented to Lender fairly present, in all material
respects, the financial position of Borrower and each Guarantor as of such dates
and the results of operations for the periods shown have been prepared in
accordance with GAAP, except, with respect to the interim financial statements,
for the absence of footnotes and normal year-end adjustments.
4.07. TRUE AND CORRECT INFORMATION. No representation or warranty made
by Borrower, nor any statement made in a certificate furnished by Borrower
pursuant to this Agreement or any other Loan Document contains or will contain,
any untrue statement of a material fact or omits or will omit to state any
material fact necessary in order to make the statements contained herein or
therein not misleading and, as to projections or valuations, present a good
faith opinion as to such projections and valuations.
4.08. LOAN NOT FOR PURPOSE OF MARGIN STOCK. Borrower is not engaged in
the business of extending credit for the purpose of purchasing or carrying
margin stock (within the meaning of Regulations T, X and U issued by the Board
of Governors of the Federal Reserve System), and no proceeds of the Loan will be
used to purchase or carry any margin stock or to extend credit to others for the
purpose of purchasing or carrying any margin stock.
4.09. LOAN NOT TO ACQUIRE A SECURITY. No proceeds of the Loan will be
used to acquire any security in any transaction that is subject to Section 13
and 14 of the Securities Exchange Act of 1934.
4.10. LICENSES; INVESTIGATIONS; COMPLIANCE.
(a) LICENSES. Borrower has all requisite power and authority and
now holds all licenses, authorizations, approvals, permits,
franchises, consents, privileges, waivers, and certificates
reasonably necessary to own and operate the Facilities and to
acquire, install, maintain and operate the Collateral (herein
the "Licenses"). Borrower has validly acquired gaming device
licenses. Each such License that is reasonably necessary to
the operation of the Facilities and the Collateral is validly
issued and is, or will be, and will remain in full force and
effect, and the Licenses constitute in all material respects,
all of the authorizations necessary for the operation of the
Facilities and the Collateral, in the same manner as it is
presently conducted and contemplated to be conducted. Borrower
has fulfilled and performed all of its obligations with
respect thereto, and complete and correct copies of all
material Licenses have been delivered to the Lender. To
Borrower's knowledge, no event has occurred that results in,
or after notice or lapse of time or
18
both would result in, suspension, surrender, failure to renew,
revocation or termination of any material License.
(b) INVESTIGATIONS. Borrower is not a party to and Borrower does
not have any knowledge of any investigation, notice of
violation, order or complaint issued by or before any court or
regulatory body or of any other proceedings that could in any
manner result in suspension, surrender, failure to renew,
revocation or termination of any material License or otherwise
threaten or adversely affect the validity or continued
effectiveness of the Licenses of Borrower. Borrower has no
reason to believe that any Licenses will not be renewed in the
ordinary course. Borrower has fully cooperated with every
regulatory body having jurisdiction over any of the Licenses
or the activities of Borrower with respect thereto, including
any State regulatory body, and Borrower has filed all material
reports, applications, documents, instruments, and information
required to be filed by it pursuant to applicable laws, rules
and regulations.
(c) BONDING. Borrower has posted all bonds required under its
Licenses and all Gaming Regulations.
(d) NO OTHER LAWS AND REGULATIONS. Except for
Colorado gaming
statues and regulations, laws and regulations governing dining
establishments and serving liquor, the conduct of Borrower's
business in connection with the Facilities is not subject to
registration with, notification to, or regulation, licensing,
franchising, consent or approval by any state or federal
governmental authority or administrative agency, the laws and
regulations promulgated, or to be promulgated by the State of
Colorado, and except general laws and regulations that are not
related or applicable particularly or uniquely to the
operation of the Facilities, that do not materially restrict
or limit the operation of the Facilities, and with which
Borrower is in substantial compliance.
4.11. INTENDED USE OF PROJECT. The Project and the intended and current
use thereof for the purpose and in the manner contemplated by this Agreement or
any other document related hereto are permitted by and will comply in all
material respects with all presently applicable law.
4.12. NO USURY. The transaction evidenced by this Agreement does not
violate any law pertaining to usury or the payment of interest on loans.
4.13. PARTICIPATION OF DIRECTORS, OFFICERS AND EMPLOYEES. To Borrower's
knowledge, no director, officer, employee or agent of, or consultant to,
Borrower is prohibited by law, by regulation, by contract, or by the terms of
the license, franchise, permit, certificate, approval or consent from
participating in the business of Borrower as director, officer, employee or
agent of, or is the subject of any pending or threatened proceeding, which, if
determined adversely, would or could result in such a prohibition.
4.14. STATUS OF THE BORROWER. Borrower is not insolvent (as such term
is defined in Section 101(32) of the Bankruptcy Code of 1978, as amended) and
will not be rendered insolvent
19
(as such term is defined in Section 101(32) of the Bankruptcy Code of 1978, as
amended) by execution of this Agreement, each Note, or any other Loan Document
or the consummation of the transactions contemplated thereby.
4.15. AGREEMENTS. Borrower is not a party to any agreement or subject
to any charter that would result in a Material Adverse Effect on its business,
properties or assets, operations or condition (financial or otherwise) of the
Facilities Enterprise. Borrower is not in default in the performance, observance
or fulfillment of any of the obligations, covenants or conditions contained in
any agreement or instrument to which it is a party, where such default could
reasonably be expected to have a Material Adverse Effect.
4.16. ERISA. Each employee benefit plan (Plan) covered by Title IV of
the Employee Retirement Income Security Act of 1974 ("ERISA") and the rules and
regulations thereunder maintained, established, sponsored or contributed to by
Borrower or any member of a group that is under common control with Borrower
(Borrower's ERISA Affiliates); (i) complies in all material respects with ERISA
and the Internal Revenue Code of 1986 (the "Code") including without limitation,
all applicable funding standards of Part 3 of Subtitle B of Title I of ERISA or
Section 412 of the Code; (ii) is solvent; and (iii) is not subject to any
termination proceeding. Neither Borrower nor any of its ERISA Affiliates has any
liability under Title IV of ERISA to the Pension Benefit Guaranty Corporation
("PBGC") or any other person with respect to any such Plan; and neither Borrower
nor any of its ERISA Affiliates contributes to or has contributed to any
multi-employer plan (as defined in Section 4001(a)(3) of ERISA) that is a
defined benefit plan.
4.17. NO LIEN ON FACILITIES OR COLLATERAL. Except for the Permitted
Encumbrances, no Lien shall exist on any portion of the Premises and except for
Permitted Encumbrances or as otherwise permitted under the Deed of Trust, no
lien exists on any portion of the Facilities or Collateral.
4.18. ENVIRONMENTAL IMPACT STATEMENT. All required environmental impact
statements and environmental assessments, if any, as required by any Government
Authority or other governmental agency or instrumentality having jurisdiction
over the Premises have been duly filed and approved.
4.19. ACCESS. The Land fronts on a publicly maintained road or street
that is connected by public roadways to a public road and has legal access to
the same through non-cancelable easements or rights-of-way, with Borrower
holding any curb cut permits legally required.
4.20. HAZARDOUS SUBSTANCES REPRESENTATIONS OF BORROWER. Except as may
have been disclosed in the Environmental Audit, as of the date hereof: (a) the
Premises have never been used by Borrower, or, to the knowledge of Borrower as
set forth in the Environmental Audit, by any previous owners or occupants or
current occupants other than Borrower to generate, manufacture, refine,
transport, treat, store, handle or dispose of any Hazardous Substances, other
than as permitted by and in compliance with all environmental Laws, except to
the extent that such non-compliance with such Environmental Laws or such use of
the Premises
20
would not result in a Material Adverse Effect, and to the knowledge of Borrower
as set forth in the Environmental Audit, no such Hazardous Substances exist on
the Premises or in its soil or groundwater, except as permitted by and in
compliance with all Environmental Laws; (b) no portion of the improvements on
the Premises will be or has been constructed with asbestos, asbestos-containing
materials, urea formaldehyde insulation or any other chemical or substance that
has been determined to be a hazard to health or the environment to the extent
that the Environmental Laws would require investigation and cleanup, or such
chemical or substance has been removed; (c) to Borrower's knowledge, there are
no nor have there been electrical transformers or other equipment that have
dielectric fluid-containing polychlorinated biphenyls (PCBs) located in, on or
under the Premises, except as permitted by law and in compliance with all
Environmental Laws; (d) the Premises contain three (3) underground storage tanks
and such underground storage tanks have been abandoned, filled and closed in
accordance with Environmental Laws; and (e) Borrower has not received nor does
it have any knowledge of any summons, citation, directive, letter or other
communication, written or oral, from any local, state or federal government
agency concerning: (i) the existence of Hazardous Substances on the Premises or
in the immediate vicinity; or (ii) the releasing, spilling, leaking, pumping,
pouring, emitting, emptying, or dumping of Hazardous Substances onto the
Premises or into waters or other lands, except to the extent that such existence
of Hazardous Substances is contemplated by the foregoing subclause.
4.21. INTELLECTUAL PROPERTY. Borrower possesses adequate licenses
(including, without limitation, licenses related to computer programs), permits,
franchises, patents, copyrights, trademarks and trade names, or rights thereto,
to conduct its business substantially as now conducted.
4.22. MAINTENANCE OF PROPERTY. Borrower will maintain all Facilities in
good working order and condition, reasonable wear and tear excepted, and make
all proper repairs, replacements, additions and improvements thereto.
4.23. LICENSURE REQUIREMENTS. The
Colorado Limited Gaming Commission
has granted to Borrower all licensing required under the Gaming Regulations
required for Borrower to conduct limited gaming at the Premises. No other
licenses or registrations are necessary or required of either Borrower or Lender
in order for Lender to make the Loan to Borrower, for Borrower to perform its
obligations under the Loan Documents, and for Lender to enforce the obligations
of Borrower under the Loan Documents upon a Default or an Event of Default by
Borrower under the Loan Documents.
SECTION 5. CONDITIONS PRECEDENT
5.01. EFFECTIVENESS OF AGREEMENT. This Agreement shall become effective
upon its execution and delivery by the parties hereto, and when Lender shall
have received each of the following items in form and substance satisfactory to
Lender (or Lender shall have waived such receipt by executing this Agreement);
21
(a) the Loan Documents each duly executed and approved by the
appropriate parties, including, all of such documents being in
full force and effect with no default thereunder;
(b) certificates signed by the President and Secretary of Borrower
as to the incumbency and proper signature of the person or
persons authorized to execute and deliver the Loan Documents
and any other certificates or documents to be delivered by
Borrower in connection therewith;
(c) copies of the following, certified as to authenticity by the
Secretary of Borrower (or any person authorized by law to act
in his or her stead);
(1) Resolution of the Board of Directors of Borrower
authorizing the execution, delivery and performance
of the Loan Documents to which Borrower is a party.
(2) all Licenses for the Facilities.
(3) to the extent not identified above in this Section,
copies of all other agreements or contracts of
Borrower or any Affiliate of Borrower that do or may
materially affect the conduct of gaming activities of
Borrower or the operation of the Facilities,
including any consulting, management, joint venture,
partnership, purchase, financing, mortgage, loan or
equipment transportation agreements, and any lease,
franchise, licensing or easement contracts.
(4) to the extent not identified above in this Section,
copies of all resolutions or other written actions of
Borrower or any Affiliate or any Guarantor relating
to the Loan or the Loan Documents, including those
that relate to or may affect any action relating to:
o the financing, equipping, or operation of
the Facilities;
o the Facilities, including its present or
future financial condition;
o the Collateral and the Land;
o secured financing matters;
o other forms of borrowing or pledging of
Borrower's assets;
o commercial transactions;
o the Guarantees;
22
o permits and Licenses relevant to the
Facilities and the conduct of the operations
of Borrower at the Facilities;
(d) a certificate of the President of Borrower stating that
after giving effect to the Loan, the representations and warranties
contained herein are true and accurate and that no Default or Event of
Default exists as of the date hereof under the Loan Documents;
(e) a copy of the Environmental Audit directed to Lender or
with a certification that Lender may rely upon the Environmental Audit;
(f) a certificate relating to Hazardous Substances with
respect to the Facilities;
(g) UCC lien searches covering the name of Borrower,
reflecting no Liens or encumbrances on the Facilities or Collateral,
other than Permitted Encumbrances;
(h) searches evidencing no bankruptcies, tax liens, or
judgments relating to Borrower, any Affiliate of Borrower or any of the
properties that are not consented to by Lender;
(i) an ALTA survey of the Land, in form and substance
acceptable to Lender;
(j) a fully paid Title Policy written in the full amount of
the Loan amount in form and substance satisfactory to Lender and
written by Title insuring the Premises are marketable, insuring fee
simple title to the Premises vested in Borrower, free and clear from
exceptions for mechanic's liens and materialmen's liens, naming Lender
as an insured and insuring that the Deed of Trust is a valid first lien
in the full amount of the Loan subject only to Permitted Exceptions.
The policy may not contain as so called "Pending Disbursement"
Endorsement;
(k) the written opinion of legal counsel for Borrower as to
the due and valid existence of Borrower; as to the valid and binding
nature of and enforceability with respect to Borrower of all Loan
Documents; as to the absence of defaults and conflicts by Borrower; the
absence of any litigation that could adversely affect the Loan, and as
to such other matters incident to the transaction herein contemplated
as is customary or as Lender may reasonably require including an
opinion that, the Loan Documents doe not violate any applicable usury
laws;
(l) evidence of the insurance coverage required by Section
6.02 hereof;
(m) a closing statement listing the application of funds at
closing, in a form reasonably satisfactory to Lender; and
(n) such other documents, instruments, approvals or opinions
as Lender may reasonably request.
23
SECTION 6. COVENANTS
Borrower covenants and agrees that from the date hereof until payment
in full of the principal of and interest on the Loan, unless the Lender shall
otherwise consent in writing, Borrower will:
6.01. EXISTENCE, PROPERTIES, ETC. So long as any amount remains owing
hereunder or under the
Loan Agreement, cause to be done all things necessary to
preserve and keep in full force and effect its existence, and conduct and
operate its business with respect to the Facilities as contemplated in the Loan
Documents.
6.02. INSURANCE AND BONDS. Borrower shall be required to comply with
this Section on and after the Advance Date, unless otherwise expressly stated in
this Section. Borrower shall obtain and maintain throughout the term of the Loan
such insurance and bonds as Lender may reasonably require with respect to the
Facilities, in forms of coverage and with insurers reasonably acceptable to
Lender, with a current Best's Insurance Guide rating acceptable to Lender, and
with both Borrower and Lender named as insured, as their interests may appear,
including standard waiver of subrogation clauses and written agreement by the
insurer or insurers therein to give Lender thirty (30) days prior written notice
of intent to cancel or to change the terms and conditions of the guidelines,
including but not limited to the following:
6.02.1. WORKER'S COMPENSATION. Worker's compensation coverage in the
required statutory amounts.
6.02.2. BOILER INSURANCE. Broad Form Boiler and Machinery Insurance
covering physical damage to the Facilities, pressure vessels,
pressure piping and other Equipment insurable with full
replacement cost endorsement, and with a maximum deductible of
$5,000.
6.02.3. FLOOD INSURANCE. Flood insurance in the full replacement cost
of the Facilities if the Premises are within the 100-Year
Flood Plain.
6.02.4. HAZARD INSURANCE. All Risk Insurance against loss by fire,
lightning and risk customarily covered by Fire and Extended
Coverage Insurance, including special cause of loss, and such
other hazard insurance as Lender may reasonably require in an
amount equal to the full replacement cost of the Facilities
with standard non-contributing mortgagee clauses, stipulated
value-agreed amount endorsement, and no co-insurance, and with
a maximum deductible of $10,000.
6.02.5 PUBLIC LIABILITY INSURANCE. Comprehensive General Public
Liability Insurance covering the legal liability of Borrower
against claims for bodily injury, death or property damage
occurring on in or about the Facilities
24
with a combined single limit of not less than $7,600,000.00,
with a maximum deductible of $5,000.00; automobile liability
coverage (including coverage for hired and non-owned vehicles)
with a combined single limit of not less than $3,000,000.00,
with a maximum deductible of $25,000.00; and if liquor is sold
on the Premises, Liquor Liability Coverage (Dram Shop
coverage) in the minimum amount of (i) $3,000,000.00 or (ii)
amounts as may be required by applicable law, with a maximum
deductible of $25,000.00.
6.02.6. BUSINESS INTERRUPTION INSURANCE. Insurance covering actual
losses in gross operating earnings of Borrower resulting
directly from necessary interruption of business caused by
risks of direct physical loss of real or personal property
constituting part of the Facilities, subject to policy
exclusions, less charges and expenses that do not necessarily
continue during the interruption of business, for such length
of time as may be required with the exercise of due diligence
and dispatch to rebuild, repair or replace such properties as
have been damaged or destroyed, but not less than six months,
with limits equal to at least 100% of the Maximum Annual Debt
Service for all Debt. Only for purposes of this paragraph, the
Maximum Annual Debt Service on Debt that bears an adjustable
interest rate, the interest rate during the first fiscal year
of Borrower during which the Debt is outstanding shall be
deemed to be 110% of the initial interest rate, and for each
fiscal year thereafter, 110% of the average interest rate on
the Debt during the last preceding fiscal year.
6.02.7 THEFT. Insurance for all losses of Collateral caused by theft
and embezzlement, including endorsements for coverage for
employee theft, premises, transit, depositor's forgery,
computer theft and funds transfer fraud, and money
destruction.
All hazard and casualty insurance policies maintained by Borrower
pursuant to the foregoing provisions of this Section shall provide that any
losses payable thereunder shall be payable to Borrower and Lender as their
interests may appear; provided that the proceeds of business interruption
insurance shall be payable to the Lender. Borrower shall cause the originals or
certified copies of all such insurance to be deposited with Lender or to be
otherwise held as directed by Lender. At least fifteen (15) days prior to the
date on which the premiums on each such policy shall become due and payable,
Borrower shall furnish Lender with proof reasonably satisfactory to Lender of
payment thereof. In the event of loss, Borrower shall immediately give written
notice thereof to Lender.
All proceeds of such insurance are hereby absolutely and
unconditionally assigned, and shall be paid, to Lender for deposit in a separate
account maintained by Lender. Such proceeds shall be applied either (i) to
prepayment of all Secured Obligations in proportion to the principal balance of
each such obligation, with the
25
remainder, if any, bring applied at Borrower's option, or (ii) if no uncured
Even of Default has occurred and if restoration or repair is commenced and can
be completed within six months and the proceeds, together with demonstrated
other funds of Borrower satisfactory to Lender, are sufficient to complete the
restoration or repair of the Facilities, then such proceeds may be directed
towards the restoration or repair of the Facilities, without affecting the
obligations of Borrower hereunder. If Borrower elects to apply any such
insurance proceeds to the restoration or repair of the Facilities, Lender shall
deposit the same in a separate account to be disbursed for the costs of
replacement or restoration of the damage, making such proceeds available to
Borrower for such purposes subject to such customary construction disbursing
conditions as Lender shall reasonably impose (but only if Lender receives
satisfactory evidence that amounts are held sufficient to complete the
replacement and restoration); provided that if such proceeds are less than
$500,000.00, Borrower shall be entitled to receive, hold and apply such proceeds
for such purposes; and in any case, Borrower shall be entitled to receive, hold
and apply such proceeds for such purposes; and in any case, Borrower shall be
obligated to complete the restoration and repair regardless of the amount of
such proceeds. Lender shall not be liable for supervising such restoration or
repair or for supervising the disbursement of such insurance proceeds thereof.
In no event shall the Lender be held responsible for failure to pay for
any insurance required hereby or for any loss or damage growing out of a defect
in any policy thereof or growing out of any failure of any insurance company to
pay for any loss or damage insured against or for failure by Lender to obtain
such insurance or to collect the proceeds thereof.
6.03. COLLECTION OF PROCEEDS. Cooperate to obtain for the Lender the
benefits of any insurance, bonds or other proceeds lawfully or equitably payable
to it in connection with the transaction contemplated hereby and the collection
of any indebtedness or obligation of Borrower to Lender incurred hereunder.
6.04. PAYMENTS OF DEBT, TAXES, ETC.
(a) Promptly pay all of its Debt when the same becomes due and payable,
other than for Debt the validity of which is being contested in good faith, and
perform all other obligations with respect to the Facilities and the Facilities
Enterprise, including Debt secured by any portion of the Equipment located at or
used in connection with the Facilities, or any lease of the same, and including
promptly and timely performing all covenants, agreements and promises under the
Note and the other Loan Documents; and (b) promptly pay and discharge or cause
to be paid and discharged promptly all taxes, assessments, and governmental
charges or levies imposed upon it or upon its income and profits, or upon any of
its property, before the same shall become in default, as well as all lawful
claims for labor, materials and supplies or otherwise which, if unpaid, might
become a Lien or charge upon any of such properties; provided, however, that
Borrower shall not be required to pay and discharge or to cause to be paid and
discharged any such tax, assessment, charge, levy or claim so long as (i) the
validity thereof shall be contested in good faith by appropriate proceedings and
Borrower shall have set aside on its books adequate
26
reserves with respect to providing for the payment of any such tax, assessment,
charge, claim or levy to the extent required by its auditors in order to comply
with GAAP, (ii) the non-payment or non-discharge of such tax, assessment,
charge, levy or claim cannot result in a Lien (other than a Permitted
Encumbrance) being imposed against all or any portion of the Premises, or any
Collateral.
6.05. RESTRICTIONS ON TRANSFER. Not effect or permit a Transfer (except
a Transfer that creates a Permitted Encumbrance) without the prior written
consent of Lender; provided that, without Lender's consent, (a) Borrower may
sell or otherwise dispose of Equipment or other personal property constituting
Collateral if and to the extent that (i) such property is promptly replaced with
reasonably equivalent property of equal or greater value that is free of any
Liens or encumbrances other than the Liens provided for in the Deed of Trust and
other than Permitted Encumbrances or (ii) such property is no longer needed or
useful in connection with the operation of the Facilities, and the aggregate
fair market value of such property does not exceed $250,000.00 per year for all
items sold or disposed of pursuant to this clause (ii). Upon Borrower's request,
Lender shall execute and deliver such instruments as may be reasonably necessary
to evidence the release of any property sold or otherwise disposed of by
Borrower as permitted by this Section from the lien and security interest
created by the Deed of Trust
6.06. FINANCIAL STATEMENTS. Furnish Lender with current financial
information regarding Borrower and the Guarantors as Lender may reasonably
require. During the term of the Loan Borrower shall provide to Lender:
(a) ANNUAL AUDIT OF BORROWER. Within ninety (90) days after
the end of Borrower's fiscal year, a copy of Borrower's unaudited
financial statement for the period then ended, and commencing with the
Borrower's fiscal year ending September 30, 2003 and thereafter
throughout the term of the Loan, copies of the Borrower's audited
financial statements including detailed audit reports and management
letters prepared by an Accountant in connection with each fiscal year
audit of the books of Borrower prepared in conformity with GAAP and
other applicable laws and regulations.
(b) QUARTERLY OPERATING STATEMENTS. When available, but no
later than 45 days after the close of each fiscal quarter of the
Borrower, quarterly operating statements of Borrower that are in form
reasonably satisfactory to Lender, provided that if an Event of Default
has occurred and is continuing, such reports shall be delivered for
each calendar month, within 30 days of the end of each month.
Concurrently with the quarterly operating statements delivered pursuant
to this Section (or, in the event of an Event of Default concurrently
with the monthly operating statements delivered with respect to the
last month in a fiscal quarter), a certificate (in the form attached
hereto as Exhibit B) signed by the chief financial officer of Borrower
setting forth the calculation
27
of the Debt Service Coverage Ratio, the Maximum Leverage Ratio and the
Tangible Net Worth Calculation for the Rolling Fiscal Year ending with
such quarter.
(c) SECURITY AUDITS. At the written request of Lender,
Borrower shall deliver to Lender within thirty (30) days of completion
and receipt by Borrower of copies of all security audits, if any, of
all or any portion of the Facilities that were prepared by a Government
Authority and in the possession or control of Borrower or an Affiliate
of Borrower.
(d) ANNUAL FINANCIAL STATEMENTS OF GUARANTORS: Within ninety
(90) days of the end of each fiscal year, each Guarantor shall deliver
to Lender a current financial statement which statement shall include
an itemization of all assets and liabilities scheduled by item and
type, all investments and contingent liabilities adequate to disclose
the net worth of such Guarantor at such point in time. Such financial
statement shall be personally certified and shall be accompanied by the
annual federal income tax returns of each Guarantor, including all
schedules, for the preceding taxable year as filed with the Internal
Revenue Service.
(e) REPORTS TO OTHERS. Within thirty (30) days following
Lender's written request, copies of all reports required by law and
applicable regulations submitted to or received from any federal, state
or local gaming authorities (exclusive of employee background checks or
other information the confidentiality of which must be maintained under
applicable federal or state law or regulation).
(f) OTHER INFORMATION. With reasonable promptness, from time
to time, such other information regarding the operations, business,
affairs and financial condition of Borrower as Lender may reasonably
request, and subject to Borrower's reasonable confidentiality
requirements.
If Borrower fails to furnish any such statements within thirty (30)
days after the date required above, Lender may cause an audit to be made of the
respective books and records at the sole cost and expense of Borrower. Lender
also shall have the right, at reasonable times and upon reasonable notice, to
examine all books, accounts and records relating to the operation of the
Facilities at Borrower's place of safekeeping.
6.07. HAZARDOUS SUBSTANCES. Borrower shall:
(a) (i) comply and require all occupants of the Premises to comply
with all applicable federal, state and local laws, rules,
regulations and orders with respect to the discharge,
generation, removal, transportation, storage and handling of
Hazardous Substances;
(ii) remove any Hazardous Substances existing in or on the
Premises in violation of any Environmental Law promptly upon
discovery of same, in accordance with applicable laws,
ordinances and orders or government authorities having
jurisdiction thereof.
28
(iii) pay or cause to be paid all costs associated with such
removal; and
(iv) indemnify Lender from and against all losses, claims and
costs arising out of the migration of Hazardous Substances
from or through the Premises onto or under other properties;
(b) keep the Premises free of any lien imposed pursuant to any
state or federal law, rule, regulation or order in connection
with the existence of Hazardous Substances on the Premises;
(c) not install or permit to be installed or to exist in or on the
Premises any asbestos, asbestos-containing materials, urea
formaldehyde insulation or any other chemical or substance
that has been determined to be a hazard to health and
environment, except as permitted by and in compliance with all
Environmental Laws;
(d) not cause or permit to exist any release of any Hazardous
Substances onto the Premises or into waters or other lands;
and
(e) give all notifications and prepare all reports required by
Environmental Laws or any other law with respect to Hazardous
Substances existing on, released from or emitted from the
Premises.
6.08. NOTICE OF LITIGATION. Give prompt written notice to Lender of the
commencement of any action, suit or proceeding before any court or arbitrator or
any governmental department, board, agency or other instrumentality directly
affecting the Facilities Enterprise or the Facilities or to which Borrower is a
party in which an adverse determination or result could have a Material Adverse
Effect, stating the nature and status of such action, suit or proceeding.
6.09. CHANGE IN NATURE OF BUSINESS. Not make any material change in the
nature of the business of Borrower conducted at the Facilities as carried on at
the date hereof or as contemplated at the date hereof as previously disclosed in
writing to Lender.
6.10. NO DEFAULTS. Not permit any material breach, default or event of
default to occur with respect to Borrower or any Affiliate under any note,
loan
agreement, indenture, lease, mortgage, contract for deed, security agreement or
other contractual obligation binding upon Borrower, an Affiliate of Borrower,
the Facilities or Collateral that is not cured within the applicable cure
provisions thereof unless such breach, default or event of default will not
result in any material reduction of Collateral or result in a charge or Lien
(other than a Permitted Encumbrance) against the Facilities or Collateral.
6.11. INTENTIONALLY DELETED.
29
6.12. LIEN SEARCHES. Promptly deliver to Lender any and all lien
searches as Lender may request from time to time in connection with the Loan.
6.13. FURTHER ASSURANCES. From time to time at its expense execute and
deliver or endorse any and all instruments, documents, conveyances, assignments
and other agreements and writings, make any records, file any notices, and
obtain any consents, all as may be necessary or appropriate in connection
herewith, that Lender may reasonably request to cure any defects in the
creation, execution and delivery of this Agreement or protect, perfect or
enforce the Loan Documents or the rights of the Lender under this Agreement (but
any failure of the Lender to request Borrower to execute, deliver, or endorse
any such item shall not affect or impair the validity, sufficiency or
enforceability of the Loan Documents, regardless of whether any such item was or
was not executed, delivered or endorsed in a similar context or on any other
occasion).
6.14. ERISA. Comply in all material respects with the Employee
Retirement Income Security Act of 1974 to the extent applicable.
6.15. NOTICE OF EVENTS OF DEFAULT. Furnish to Lender as soon as
possible and in any event within five (5) Business Days after any director,
officer, controller or general manager of Borrower has obtained knowledge of the
occurrence of an Event of Default, or an event that, with the giving of notice
or lapse of time or both would constitute an Event of Default, which is
continuing on the date of such statement, a statement signed by Borrower setting
forth details of such Event of Default or event and the action that Borrower has
taken, is taking or proposes to take to correct the same.
6.16. LICENSES. Obtain and hold all necessary Licenses with respect to
the operations of the Facilities.
6.17. CONDUCT OF BUSINESS. Preserve all the rights, privileges, and
franchises necessary or desirable in the normal conduct of the business of the
Facilities; conduct such business in an orderly, efficient and regular manner;
not assign this Agreement or any interest herein or all or any part of any Loan
to be made hereunder without the prior written consent of Lender, except as may
be otherwise permitted herein.
6.18. APPLICATION OF LOAN PROCEEDS. Use the proceeds of the Loan solely
as set forth in the Recitals hereinabove, or as otherwise approved in writing by
the Lender, and in no event to use any of the Loan proceeds for personal or
illegal purposes.
6.19. MATERIAL EFFECT. Promptly transmit to Lender, upon receipt
thereof, any communication that could affect Lender' security for the Loan or
have a Material Adverse Effect, and promptly respond fully to any inquiry of
Lender made with respect thereto.
6.20. INSPECTIONS/BOOKS AND RECORDS. At all times keep proper books of
record and accounts for the Facilities Enterprise, and, upon 48 hours written
request of Lender, provide any duly authorized representative of Lender access
during normal business hours to, and permit
30
such representative to reasonably examine, copy or make extracts from, any and
all books, records and documents in Borrower's possession or control relating to
the Facilities Enterprise or any of the representations or covenants of Borrower
hereunder or in the Loan Documents (such access to be given immediately upon
request in the case of any emergency or a material change in financial or other
condition of Borrower), excluding, however, any documents that, because of
attorney-client, work product or other privilege or immunity, would not be
subject to production in a civil action under
Colorado law. Lender and Lender's
representatives, shall have the right at all reasonable times to inspect,
examine and copy all books and records of Borrower relating to the Facilities.
6.21. COMPLIANCE WITH GOVERNMENTAL REQUIREMENTS AND LAWS. At all times:
(a) comply promptly with all other permits, laws, statues,
ordinances, orders, rules, codes, regulations, licenses,
authorizations and requirements of all Government Authorities
applicable to the Facilities (or their operation);
(b) obtain or cause to be obtained as promptly as possible any
License and make any filing or registration therewith which at
the time shall be required with respect to the performance of
its obligations under this Agreement or the other Loan
Documents or for the operation of its business as presently
conducted or as contemplated by it; and promptly provide
written notice to Lender of the receipt of any notice of any
investigation or charge of violation thereof from any
Government Authority or of any administrative or adjudicative
proceedings that could reasonably be expected to result in the
termination of any License or could reasonably be expected to
have a Material Adverse Effect, and in such event shall
provide Lender with such additional reports and information as
Lender may reasonably require.
6.22. REGULATIONS T, U AND X. None of the transactions contemplated in
this Agreement (including, without limitation thereof, the use of proceeds from
the Loan) will violate or result in a violation of Section 7 of the Securities
Exchange Act of 1934, as amended, or any regulation issued pursuant thereto,
including, without limitation, Regulations T, U or X of the Board of Governors
of the Federal Reserve System, 12 C.F.R., Chapter II. None of the proceeds from
the Loan will be used to: (i) purchase any security within the meaning of the
Securities Exchange Act of 1934, as amended, or (ii) refinance any borrowing,
the proceeds of which were used to purchase any such security.
6.23. MERGER, CONSOLIDATION OR TRANSFER OF ASSETS. Not to dissolve,
merge with or into or consolidate with any other Person, or to sell, Transfer or
convey all or substantially all of its interest in the Facilities, the
Facilities Enterprise, the shares of the capital stock of Borrower or in the
Collateral to another Person, except as a Permitted Encumbrance, which Permitted
Encumbrance shall in any event be subordinated in all respects to the interests
of the Lender pursuant to the Subordination Agreement (or to a subordination
agreement in form and substance acceptable to Lender in its sole discretion).
31
6.24. FRANCHISE AGREEMENT. Not enter or permit any Affiliate to enter
into any franchise agreement or any amendment to a franchise agreement with
respect to the Facilities that could in any manner result in or could reasonably
be expected to have a Material Adverse Effect, without the consent of the
Lender, which consent shall not be unreasonably withheld.
6.25. LOANS OR ADVANCES. Not make any loan to, or otherwise extend any
credit to Borrower's officers or to any member of any such officer's family or
to any Affiliate of Borrower.
6.26. GUARANTIES. Not assume, guarantee, endorse or otherwise become
liable upon the obligation of any person, firm or corporation except pursuant to
the Loan Documents or by endorsement of negotiable instruments for deposit or
collection in the ordinary course of business.
6.27. MAINTENANCE OF PROPERTIES, ETC. Maintain, repair and preserve the
Facilities and all of its properties that are used or useful in the conduct of
its business in good working order and condition, ordinary wear and tear
excepted, and from time to time make or cause to be made all reasonably
necessary and proper replacements, repairs, renewals and improvements so that
the efficiency and value of its properties and facilities will not be materially
impaired.
6.28. GAMING COMPLIANCE/TERMINATION. At all times comply in all
material respects, with all terms and conditions of the Gaming Regulations.
6.29. LOCATION OF FACILITIES ON LAND. At all times locate all parts of
all Facilities on the Land, except for such removal of personal property or
equipment as shall be required for repair or replacement, or, in the case of any
vehicles permanently stored or housed on the Land, used in accordance with their
intended purposes; and except as otherwise agreed to by the Lender.
6.30. DEBT SERVICE COVERAGE RATIO. For each Rolling Fiscal Year, not
permit the Debt Service Coverage Ratio to be less than 1.5 to 1.0.
6.31. TANGIBLE NET WORTH COVENANT. Borrower will at all times during
the term of the Loan maintain a minimum Tangible Net Worth of not less than
$2,500,000.
6.32. MAXIMUM LEVERAGE RATIO. Borrower shall during the term of the
Loan maintain a maximum Leverage Ratio of no more than 4 to 1 as determined at
the end of each fiscal quarter.
6.33. ADDITIONAL INDEBTEDNESS. Not incur, nor permit the incurrence by
Borrower of, any Debt other than as evidenced by this Agreement and the Note,
except current liabilities due within one year from the date of incurrence not
to exceed $250,000.00 in the aggregate at any time incurred in the ordinary
course of operations of Borrower, and other than Permitted Encumbrances.
32
Notwithstanding the foregoing until the Loan is paid in full, together
with all interest accrued and to accrue thereon, no additional Debt, other than
ordinary trade payables, shall be incurred without the written consent of the
Lender if a Default or an Event of Default has occurred and is continuing.
6.34. LIENS. Not incur, or permit the incurrence of, any Liens
(including, any mechanics', laborers' and materialmen's liens) on all or any
portion of the Facilities, other than Permitted Encumbrances, and other than as
otherwise expressly may be permitted hereunder or in any other Loan Document.
6.35. NO OTHER FACILITIES. Not engage in any gaming activity that
competes directly or indirectly with the Facilities.
6.36. OTHER RESTRICTIONS. Not install on the Premises any materials,
equipment, fixtures or other items of personal property which are subject to a
security agreement or other arrangements under which the seller reserves the
right to remove or to repossess such items or to consider them personal property
after their incorporation in the Facilities unless the same shall constitute a
Permitted Encumbrance.
6.37. CHANGE OF NAME OR LOCATION OF CHIEF EXECUTIVE OFFICES. Not change
its name or the location of its chief executive offices (the main place where
Borrower manages the main part of its business operations or other affairs)
without providing notice thereof to the Lender at least 60 days in advance of
such change.
SECTION 7. EVENTS OF DEFAULT
Upon the occurrence of any of the following events (hereinafter called
Events of Default):
(a) any material representation or warranty made herein or in any
of the Loan Documents or any written report, certificate,
financial statement, or other instrument heretofore or at any
time hereafter furnished by or on behalf of Borrower to Lender
shall prove to have been false or misleading in any material
respect when made;
(b) default in the payment of the principal of, interest on or
servicing fee with respect to the Note;
(c) Borrower shall fail to duly and punctually perform or observe
any of the covenants or agreements contained herein (and not
otherwise expressly addressed in this Section), and such
failure to perform continues for a period of thirty (30) days
after written notice thereof given by Lender to Borrower;
provided, that such period shall be extended for a reasonable
period of time for any default that cannot be reasonably cured
within the thirty (30) days after such notice, if in the sole
opinion of the Lender, such failure is capable of being
remedied, Borrower is
33
proceeding promptly, in good faith and with reasonable
diligence to remedy the same and the security of the Lender is
not and will not be materially adversely affected thereby;
(d) the occurrence of a Transfer other than as permitted by
Section 6.05 or otherwise in the Loan Documents;
(e) Borrower shall: (i) apply for or consent to the appointment
of, or the taking of possession by, a receiver, custodian,
trustee or liquidator of itself or of all or a substantial
part of its property; (ii) admit in writing its inability, or
be generally unable to pay its debts as they become due; (iii)
make a general assignment for the benefit of creditors; (iv)
commence a voluntary case under the federal bankruptcy laws
(as now or hereafter in effect); (v) be adjudicated insolvent
or be the subject of an order for relief under any chapter of
the Bankruptcy Code (11 U.S.C. Section 101, et seq.); (vi)
file a petition seeking to take advantage of any other law
relating to bankruptcy, insolvency, reorganization, winding up
or composition or adjustment of debts; or (vii) acquiesce to,
or fail to controvert in a timely manner, any petition filed
against it in an involuntary case under such bankruptcy laws;
(f) a case or other proceeding shall be commenced, without the
application or consent of Borrower, in any court of competent
jurisdiction, seeking the liquidation, reorganization,
dissolution, winding up, or composition or readjustment of
debts, of Borrower, the appointment of a trustee, receiver,
custodian, liquidator or the like of Borrower or of all or any
substantial part of its assets, or any similar action with
respect to Borrower under the federal bankruptcy laws (as now
or hereafter in effect) or any other laws relating to
bankruptcy, insolvency, reorganization, winding up or
composition or adjustment of debts, and such case or
proceeding shall continue undismissed, or unstayed and in
effect, for a period of ninety (90) days, or an order for
relief against Borrower shall be entered in an involuntary
case under such bankruptcy laws;
(g) Borrower shall be dissolved, liquidated or wound up or shall
fail to maintain its respective existence as a going concern
in good standing;
(h) a garnishment summons or writ of attachment is issued against
or served upon Lender for the attachment of any property of
Borrower in Lender's possession or any indebtedness owing to
Borrower, unless appropriate papers are filed by the Borrower
contesting the same within ninety (90) days after the date
Lender provides Borrower with notice of such service or such
shorter period of time as may be reasonable in the
circumstances; or a levy is made under any process on the
Premises and such levy shall not be immediately bonded over
and shall continue unstayed for seventy five (75) days or
more;
34
(i) any judgment shall be entered against Borrower that
substantially impairs the ability of Borrower to perform its
material obligations under and by virtue of the Loan
Documents;
(j) any lien for labor, material, taxes or otherwise is filed
against the Premises and such lien shall not be released or
bonded over to Lender's satisfaction within sixty (60) days
after the date that Lender provides Borrower with notice of
the filing thereof;
(k) any judgment, writ or warrant of attachment or other similar
process is docketed, entered or filed against the Premises,
and such order, judgment, writ of execution or similar process
shall not be vacated, set aside or stayed within sixty (60)
days from the date that Lender provides Borrower with notice
of the entry thereof;
(l) Lender shall reasonably suspect the occurrence of an Event of
Default and Borrower, upon request of Lender specifying such
event of default, shall fail to provide evidence reasonably
satisfactory to Lender that such Event or Events of Default
have not in fact occurred;
(m) Borrower shall fail to provide Lender with financial
information required to be provided hereunder promptly after
it is requested by Lender; or
(n) Borrower shall violate any term or provision of the Gaming
Regulations relating to the Facilities, which violation
materially impairs the continued operation of the Facilities
in substantially the manner in which the Facilities were
operated prior to such violation; or there shall be any
amendment to the Gaming Regulations that materially impairs
the continued operation of the Facilities; any termination,
revocation, suspension or limitation by any Government
Authority of the right of Borrower to lawfully operate any
portion of the Facilities as a gaming facility; or, Borrower,
for any reason, terminates gaming activities at the
Facilities;
(o) default under any of the Insurance Covenants as to the amount
and nature of coverage or under Negative Covenants (except as
to 6.34 with respect to non-consensual Liens);
then, Lender, upon such occurrence or at any time thereafter until such Event of
Default is cured to the written satisfaction of the Lender, may exercise one or
more of the following rights and remedies:
(i) declare all of the principal of, interest on or servicing fees
accrued with respect to the Loan to be immediately due and
payable, and the same shall thereupon be immediately due and
payable, without presentment or other notice or demand;
(ii) without notice or demand, offset any indebtedness Lender or
any of its participants, successors or assigns then owe to
Borrower, whether or not then due,
35
against any obligation then owed to Lender or any of its
participants, successors or assigns by Borrower, whether or
not then due;
(iii) exercise or enforce any and all other rights or remedies
available by law or agreement against Borrower, or against any
other person or property; and
(iv) exercise or enforce any and all other rights or remedies
available under any of the Loan Documents.
Even though the Note and the obligations of Borrower under the
Loan
Agreement are secured by the Deed of Trust, prior to demanding payment and
seeking remedies hereunder, the Lender need not undertake or commence the
enforcement of any remedies available under such agreements. Upon any
nonperformance of any obligation of Borrower under the
Loan Agreement or the
Note, the Lender may proceed directly to enforce hereunder the payment of any
amounts owing by Borrower under the Loan Agreement or the Note.
SECTION 8. MISCELLANEOUS
8.01. NO WAIVER; REMEDIES CUMULATIVE. No failure on the part of the
Lender to exercise and no delay in exercising any right, power or privilege
under any Loan Document shall operate as a waiver thereof, nor shall any single
or partial exercise of any right, power or privilege under any Loan Document
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. The remedies provided in the Loan Documents are
cumulative and not exclusive of any remedies provided by law or in equity or by
statute.
8.02. NOTICES. Notices permitted or required to be given hereunder
shall be deemed sufficient if given by registered or certified mail, postage
prepaid, return receipt requested, addressed to the respective addresses of the
parties or at such other addresses as the respective parties may designate by
like notice from time to time. Notices so given shall be effective upon the
earlier of (a) receipt by the party to which notice is given, or (b) on the
fifth (5th) Business Day following the date such notice was posted. Notice to
the Lender shall be addressed:
36
First National Bank
▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, Branch President
With a copy to:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esquire
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Notices to Borrower shall be addressed to:
Concorde Cripple Creek, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇, Chief Executive Officer
With a copy to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esquire
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
8.03. FEES/TAXES/ATTORNEYS FEES. Borrower shall reimburse the Lender,
upon demand, for all reasonable costs and expenses actually incurred, including
without limitation reasonable attorney's fees paid or incurred by the Lender in
connection with:
8.03.1 the preparation, negotiation or review of the Loan
Documents, the review and analysis of materials
requested from Borrower by the Lender, the rendering
of any opinions reasonably required by the Lender,
and any other services deemed reasonably necessary by
the Lender in connection with the execution and
delivery of the Loan Documents or in connection with
the Advance Date;
8.03.2 the review, negotiation or preparation of any
amendments or modifications to any of the Loan
Documents requested by Borrower or, if an Event of
Default has occurred and is continuing, requested by
Lender, and any other services deemed reasonably
necessary by the Lender in connection therewith; and
37
8.03.3 the enforcement by the Lender during the term hereof
or thereafter of the rights or remedies of the Lender
hereunder or under any Loan Documents, instruments or
agreements related thereto, including without
limitation, costs and expenses of collection in the
Event of Default, and costs and expenses incurred in
connection with any bankruptcy or receivership of
Borrower, whether or not suit is filed with respect
thereto and whether such costs are paid or incurred,
or to be paid or incurred, prior to or after entry of
judgment.
Borrower agrees to pay all stamp, document, transfer, recording or filing taxes
or fees and similar impositions now or hereafter reasonably determined by the
Lender to be payable in connection with the Loan Documents, or any other
documents, instruments or transactions pursuant to or in connection herewith or
therewith, and Borrower agrees to hold the Lender harmless from and against any
and all present or future claims, liabilities or losses with respect to or
resulting from any omission to pay or delay in paying any such taxes, fees or
impositions, unless such omission or delay is due to negligence or willful
misconduct on the part of the Lender. All such expenses, taxes or attorney's
fees shall be payable to the Lender, as applicable, on demand. The obligations
of Borrower under this Section shall survive the repayment of the Note and the
Loan.
8.04. INDEMNIFICATION. Borrower agrees to indemnify and hold harmless
the Lender, the Lender's officers, agents (including outside legal counsel), and
employees, against any and all losses, claims, damages or liability to which the
Lender, the Lender's officers, agents and employees, have incurred under any law
in connection with the carrying out of the transactions contemplated by this
Agreement or any other Loan Documents, other than such losses, claims, damages
or liability caused by the gross negligence or willful misconduct of the Lender,
the Lender's officers, agents and employees, or the conduct of any activity on
the Premises or any accident, injury, death or damage to any person or property
occurring in, on or about the Premises or any street, drive, sidewalk, curb or
passageway adjacent thereto (other than as a result of the act of commission or
omission, including gross negligence or willful misconduct, of any such party),
and to reimburse the Lender, the Lender's officers, agents and employees, for
any out-of-pocket legal and other expenses (including reasonable attorneys'
fees, whether incurred at trial, on appeal, in bankruptcy proceedings, or
otherwise) incurred by the Lender, or the Lender's officers, agents and
employees, in connection with investigating any such losses, claims, damages or
liabilities or in connection with defending any actions relating thereto. The
Lender agrees, at the request and reasonable expense of Borrower, to cooperate
in the making of any investigation in defense of any such claim and promptly to
assert any or all of the rights and privileges and defenses that may available
to the Lender. Borrower further agrees to hold harmless the Lender, and the
Lender's officers, agents and employees, from and against all losses, damages,
penalties, liabilities, or expenses (including reasonable legal fees, whether
incurred at trial, on appeal, in bankruptcy proceedings, or otherwise) due to or
arising out of any misrepresentation of information furnished to the Lender by
Borrower or out of a breach of any covenant, representations or undertaking of
Borrower contained in this Agreement or any other Loan Document. The provisions
of this Section shall survive the payment of the Note and the Loan.
38
8.04.1 Without limiting the generality of the foregoing,
Borrower shall bear all loss, expense (including reasonable attorneys'
fees, whether incurred at trial, on appeal, in bankruptcy proceedings,
or otherwise), and damage in connection with, and agrees to indemnify
and hold harmless the Lender, and the Lender's officers, agents
(including outside legal counsel) and employees from all claims,
demands and judgments recovered against the Lender, and the Lender's
officers, agents and employees, because of bodily injuries, including
death at any time resulting from any of the foregoing, and because of
damages to property of the Lender, or the Lender's officers, agents,
employees, or others (including loss of use) from any cause whatsoever,
arising out of, or in connection with the acquisition, construction and
installation of the Equipment or the construction, reconstruction or
alteration of Facilities, if due to any act of omission or commission,
including negligence, of Borrower or any lessee of the Facilities or
any part thereof, or any of their respective agents, contractors,
subcontractors, servants, directors, officers, employees, licensees or
invitees; provided such loss, expense and damage were not caused by the
gross negligence or willful misconduct of Lender, of Lender's officers,
agents (including outside legal counsel) and employees. Borrower's
liability hereunder shall not be limited to the extent of such
insurance or subject to any exclusions from coverage in any insurance
policy. The obligations of Borrower under this Section shall survive
the repayment of the Note and the Loan.
8.04.2 Borrower hereby agrees to defend, indemnify and hold
harmless the Lender, and the Lender's directors, officers, employees,
agents (including outside legal counsel), successors and assigns
(Indemnified Parties) from and against any and all claims, losses,
damages, liabilities, judgments, costs and expenses (including, without
limitation, reasonable attorneys' fees and costs incurred in the
investigation, defense and settlement of claims or remediation of
contamination, whether incurred at trial, on appeal, in bankruptcy
proceedings, or otherwise) incurred by the Indemnified Parties as a
result of or in connection with the presence or removal of Hazardous
Substances or as a result of or in connection with activities regulated
under Section 6.07. Borrower shall bear, pay and discharge, as and when
the same become due and payable, any and all such judgments or claims
for damages, penalties or otherwise, against the Indemnified Parties,
shall hold the Indemnified Parties harmless against all claims, losses,
damages, liabilities, costs and expenses, administrative proceedings,
and negotiations of any description with any and all persons, political
subdivisions or government agencies arising out of any of the
occurrences set forth in Section 6.07. These covenants,
representations, warranties and indemnities shall be deemed continuing
covenants, representations, warranties and indemnities running with the
Premises for the benefit of the Lender, and any successors and assigns
of the Lender. The amount of all such indemnified loss, damage, expense
or cost, shall become additional indebtedness secured hereby and shall
become immediately due and payable in full on demand by the Lender,
their successors and assigns. Proceeds of insurance obtained by
Borrower, to the extent paid to the Lender, shall be applied towards
the satisfaction of Borrower's obligations under this Paragraph.
8.04.3 Indemnification Claims. The Borrower shall have the right to
participate in and to control the defense of any claim, action or proceeding
brought by a third party with counsel
39
reasonably acceptable to the Lender at the cost and expense of the Borrower,
including the cost and expense of reasonable attorneys' fees and disbursements
in connection with such defense. No settlement of any such claim or payment in
connection with any such settlement shall be made without the prior consent of
the Borrower, which consent shall not be unreasonably withheld, conditioned or
delayed.
(i) The indemnified parties shall give written notice to
Borrower, as promptly as practicable of (1) the allegation by them of any claim
referred to in this Section 8.04 setting forth to the extent known the amount of
indemnification claimed, (2) the allegation by any third party of the existence
of any matter
The provision of this Section shall survive the payment of the Note and
the Loan.
8.05. COMPLIANCE CERTIFICATE. At the time the quarterly operating
statements are delivered in accordance with Section 6.06 (b) herein, Borrower
agrees to provide to the Lender a certificate of the chief financial officer of
Borrower in substantially the form attached hereto as Exhibit B stating (i)
whether she or he has knowledge of the occurrence of any Event of Default under
any of the Loan Documents or any event that with the giving of the notice or the
passage of time would constitute an Event of Default under any of the Loan
Documents, other than Events of Default previously reported and remedied and, if
so, stating in reasonable detail the facts with respect to such Event of
Default, and (ii) that Borrower is in compliance with each of the
representations and warranties contained in this Agreement and each of the
covenants set forth in this Agreement, except as shall be expressly set forth
herein.
8.06. AMENDMENTS, ETC. No amendment, modification or waiver of any
provision of the Loan Documents and no consent to any departure by Borrower
therefrom shall in any event be effective unless the same shall be in writing
and signed by or on behalf of the Lender, and then such amendment, modification,
waiver or consent shall be effective only in the specific instance and for the
purpose for which given. Neither this Agreement nor any provision hereof 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. That Borrower acknowledges that the Lender
may charge a reasonable fee in connection with their review and consideration of
any proposed amendment to any Loan Document.
8.07. SUCCESSORS AND ASSIGNS INCLUDED IN PARTIES. Whenever in this
Agreement one of the parties hereto is named or referred to, the heirs, legal
representatives, successors and assigns of such parties shall be included and
all covenants and agreements contained in this Agreement by or on behalf of
Borrower or by or on behalf of the Lender shall bind and inure to the benefit of
their respective heirs, legal representatives, successors and assigns, whether
so expressed.
40
8.08. BINDING EFFECT AND ASSIGNMENT/THIRD PARTY BENEFICIARY. This
Agreement shall be binding upon and inure to the benefit of Borrower and the
Lender and their respective successors and permitted assigns, except that
Borrower may not transfer or assign its rights hereunder without the prior
written consent of the Lender.
8.09. MARSHALLING; PAYMENTS SET ASIDE. The Lender shall be under no
obligation to marshal any assets in favor of Borrower or any other Person or
against or in payment of the Loan and other Indebtedness of Borrower to the
Lender. To the extent that Borrower makes a payment or payments to the Lender or
the Lender exercises a right of setoff, and such payment or payments or the
proceeds of such setoff or any part thereof are subsequently invalidated,
declared to be fraudulent or preferential, set aside, or required to be repaid
to a trustee, receiver or any other party under any bankruptcy law, state or
federal law, common law or equitable cause, then to the extent of such recovery,
the obligation or part thereof originally intended to be satisfied shall be
revived and continued in full force and effect as if such payment had not been
made or such enforcement or setoff had not occurred.
8.10. SECTION TITLES. The Section titles contained in this Agreement
shall be without substantive meaning or content of any kind whatsoever and shall
not govern the interpretation of any of the provisions of this Agreement.
8.11. RELIANCE BY THE LENDER. All covenants, agreements,
representations and warranties made herein and in any Loan Document by Borrower
shall, notwithstanding any investigation by the Lender, be deemed to be material
to and to have been relied upon by the Lender, and shall survive the execution
and delivery of this Agreement.
8.12. MULTIPLE COUNTERPARTS. This Agreement may be fully executed in
any number of counterparts, each of which shall be deemed an original and the
same agreement.
8.13. INVALID PROVISIONS TO AFFECT NO OTHERS. If fulfillment of any
provision of this Agreement or of any transaction related to this Agreement
shall, at the time performance of such provision is due, involve transcending
the limit of validity prescribed by applicable law, then, ipso facto, the
obligation to be fulfilled shall be reduced to the limit of such validity
prescribed by applicable law, and such clause or provision shall be deemed
invalid as though not contained in this Agreement, and the remainder of this
Agreement shall remain operative in full force and effect.
8.14. NUMBER AND GENDER. Whenever the singular or plural number,
masculine or feminine or neuter gender is used herein, it shall equally include
the other.
8.15. TIME OF ESSENCE. Time is of the essence in the performance of
this Agreement.
8.16. NOT JOINT VENTURES. The Lender is not, and shall not by reason of
any provision of any of the Loan Documents be deemed to be, a joint venturer
with or partner or agent of Borrower.
41
8.17. ESTOPPEL CERTIFICATE. At any time and from time, within fifteen
(15) Business Days after receipt from the other party hereto of a written
request therefor, Borrower or the Lender, as the case may be, shall prepare,
execute and deliver to such party, and any other party that Borrower or the
Lender, as the case may be, may designate, an estoppel certificate stating: (a)
the amount of the unpaid principal balance and accrued interest secured by the
Deed of Trust on the date thereof; (b) the date upon which the last payment
secured by the Deed of Trust was made and the date the next payment secured by
the Deed of Trust is due; and (c) that the provisions of the Deed of Trust have
not been amended or changed in any manner, that there are no defaults or events
of default then existing under the terms of the Deed of Trust, and that Borrower
has no defenses, claims or offsets against full enforcement hereof according to
the terms hereof, or listing and describing any such amendments, changes,
defaults, events of default, defenses, claims or offsets that do exist.
8.18. NOTICE OF CHANGE IN LOCATION. Borrower shall promptly notify the
Lender of any change in location of Borrower's principal places of business or
the offices where it keeps its records concerning accounts and contract rights.
8.19. RENEWAL OR EXTENSION. All provisions of this Agreement relating
to the Note and the related documents shall apply with equal force and effect to
each Loan Document or related documents hereinafter executed which, in whole or
in part represent a renewal, extension for any period, increase or rearrangement
of any part of any such related documents.
8.20. TAX IDENTIFICATION NUMBER. The federal tax identification number
for Borrower is ▇▇-▇▇▇▇▇▇▇.
8.21. SETOFF. If the unpaid principal amount of the Loan, interest
accrued thereon, or any other amount owing by Borrower under the Loan Documents
shall have become due and payable (by demand, acceleration or otherwise), upon
an Event of Default the Lender shall have the right, in addition to all other
rights and remedies available to them, upon not less than five days prior notice
to Borrower, to set off against, and to appropriate and apply to such due and
payable amounts any debt owing to, and any other funds held in any manner by any
Lender for the account of Borrower. Such right shall exist regardless of the
existence or adequacy of any Collateral, guaranty or any other security, right
or remedy available to the Lender.
8.22. NAME AND LOGO. Borrower hereby consents to the Lender's use of
Borrower's name and logo in the Loan offering book, Loan closing transcript, any
tombstone ads or other promotional materials without any consideration to
Borrower other than the Loan.
8.23. REMEDIES CUMULATIVE. The rights and remedies herein specified of
the parties hereto are cumulative and not exclusive of any rights or remedies
the parties hereto would otherwise have at law or in equity or by statute.
8.24. INTEGRATION; CONFLICTING TERMS. This Agreement, together with the
other Loan Documents, comprises the entire agreement of the parties on the
subject matter hereof and supersedes and replaces all prior agreements, oral and
written, on such subject matter. If any term of any of the other Loan Documents
expressly conflicts with the provisions of this
42
Agreement, the provisions of this Agreement shall control; provided, however,
that the inclusion of supplemental rights and remedies of the Lender in any of
the other Loan Documents shall not be deemed a conflict with this Agreement.
8.25. GOVERNING LAW AND CONSTRUCTION. The Loan Documents shall be
governed by and be construed in accordance with, the internal law of the State
of
Colorado and applicable federal law. Whenever possible, each provision of the
Loan Documents and any other statement, instrument or transaction contemplated
hereby or thereby or relating hereto or thereto shall be interpreted in such
manner as to be effective and valid under such applicable law, but, if any
provision of the Loan Documents or any other statement, instrument or
transaction contemplated hereby or thereby or relating hereto or thereto shall
be held to be prohibited or invalid under such applicable law, such provision
shall be ineffective only to the extent of such prohibition or invalidity,
without invalidating the remainder of such provision or the remaining provisions
of the Loan Documents or any other statement, instrument or transaction
contemplated hereby or thereby or relating hereto or thereto. The parties shall
endeavor in good-faith negotiations to replace any invalid or unenforceable
provisions with a valid provision the economic effect of which comes as close as
possible to that of the invalid, illegal or unenforceable provision.
8.26. ADEQUACY OF NOTE PROCEEDS. The Lender has not made, nor shall it
be deemed to have made, any representation or warranty that the funds to be
advanced hereunder to Borrower are or will be sufficient to fully complete the
acquisition of the Assets or to complete fully the other intended uses by the
Borrower as more specifically set forth above.
8.27. TERM. This Loan Agreement shall have a stated term ending August
1, 2009, but shall be in effect until the Maturity Date or until such later time
as all outstanding obligations under the Note, this Loan Agreement, and the
other Loan Documents have been discharged in full.
43
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
CONCORDE CRIPPLE CREEK, INC.,
A COLORADO CORPORATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇
--------------------------------
Its: President
SIGNATURE PAGE TO LOAN AGREEMENT BETWEEN CONCORDE CRIPPLE CREEK, INC. AND FIRST
NATIONAL BANK
44
FIRST NATIONAL BANK,
A NATIONAL BANKING ASSOCIATION
By: /s/ illegible
--------------------------------
Its: Branch President
[SIGNATURE PAGE TO LOAN AGREEMENT BETWEEN CONCORDE CRIPPLE CREEK, INC. AND FIRST
NATIONAL BANK]
45
EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
A-1
EXHIBIT B
FORM OF NOTE
PROMISSORY NOTE
Dated: July 31, 2002
Maturity Date: August 1, 2009
FOR VALUE RECEIVED, Concorde Cripple Creek, Inc., a Colorado corporation (the
"Borrower"), agrees and promises to pay to the order of First National Bank, a
national banking association (the "Lender"), its endorsees, successors and
assigns (collectively, the "Holder"), at Lender's office at ▇▇▇ ▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, or such other place as the
Holder may from time to time designate, the principal sum of Seven Million Six
Hundred Thousand and no/100 ($7,600,000.00) or so much as may from time to time
be disbursed hereon, together with interest on the Note Principal Balance
(defined below) at the rate of interest hereinafter set forth, in coin or
currency, which, at the time or times of payment, is legal tender for the
payment of public and private debts in the United States of America. This Note
shall be payable in the following manner and on all the following terms and at
the following times:
1. DEFINITIONS. For purposes of this Note the following terms shall
have the following meanings:
Adjustment Date shall mean the first day of the month immediately
following the expiration of each consecutive calendar quarter.
Advance shall mean any payment by the Lender to Borrower of proceeds of
the Loan in accordance with the terms of the Loan Agreement.
Advance Date shall mean the date on which any Lender first makes the
Advance of the Loan pursuant to the Loan Agreement.
Amortization Period means a period of fifteen (15) consecutive calendar
years.
Basis Points shall mean an arithmetic expression of a percentage
measured in hundredths of a percent (e.g. 50 Basis Points equals fifty
hundredths of one percent).
Collateral shall have the definition given such term in the Loan
Agreement and in the Deed of Trust, Assignment of Leases and Rents,
Security Agreement and Fixture Filing.
Governmental Authority shall mean any nation or government, any state,
province or other political subdivision thereof, any central bank (or
similar monetary or regulatory authority) thereof, any entity
exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government, and any
corporation or other
B-1
entity owned or controlled, through stock or capital ownership or
otherwise, by any of the foregoing.
Interest Rate shall mean the Interest Rate as defined in Section 3
below.
Lender shall mean First National Bank, a national banking association,
located in Rapid City, South Dakota, or its successors and assigns, or
any Holder from time to time of the Note who is a Lender under the
terms of the Loan Agreement, including any successor and assign.
Loan shall mean the Loan defined in the Loan Agreement, evidenced by
the Note.
Loan Agreement shall mean the Loan Agreement of even date herewith
entered into between Borrower and Lender.
Maturity Date shall mean the last day of the 84th month following the
date hereof or such earlier date as this Note may be declared due and
payable by Holder in accordance with its terms, but not later than
August 1, 2009.
Monthly Payment Date shall mean September 1, 2002, and the first day of
each calendar month thereafter.
Note shall mean this Note and any other promissory note evidencing the
Loan.
Note Principal Balance shall mean at any time with respect to this
Note, the total principal amount of Advances under this Note, reduced
by all repayments of principal on this Note.
Prime Rate means the daily fluctuating rate per annum which is publicly
announced from time to time in the Money Rates section of the Wall
Street Journal as being its so-called "prime rate" thereafter in
effect, with change in the Prime Rate automatically, immediately, and
without notice, changing the Prime Rate thereafter applicable. If more
than one Prime Rate is published in the Wall Street Journal for a day,
the average of the Prime Rates so published shall be used and such
average shall be rounded up to the nearest one quarter of one percent
(.25%). If the Wall Street Journal ceases to publish the Prime Rate,
the Holder may select a comparable publication or service that
publishes such Prime Rate, or its equivalent, and if such Prime Rate is
no longer published, then the rate publicly announced by one of the ten
largest money center banks in the United Sates (as selected by the
Holder in its discretion) as its "prime" or "reference" rate shall be
substituted.
Promissory Note or Note means this Promissory Note.
Capitalized terms used herein that are not defined herein or elsewhere in this
Note shall have the same meaning as such terms are used in the Loan Agreement.
B-2
2. DISBURSEMENTS. The proceeds of the Loan shall be disbursed only upon
satisfaction of the conditions set forth in the Loan Agreement.
3. INTEREST RATE. On and after the Advance Date, until the Maturity
Date, the Note Principal Balance at the close of each day shall bear interest at
the following per annum rates of interest (Interest Rate):
a. Interest Rate. From and after the date hereof and continuing
up to and including the Maturity Date the Principal Balance
shall bear interest at an annual rate which is equal to 300
Basis Points plus the Prime Rate as published or announced on
the Adjustment Date or the date immediately preceding the
Adjustment Date if not published or announced on the
Adjustment Date, but in no event shall the Interest Rate be
greater than 12.00% or less than 8.00%. The annual rate then
in effect with respect to this Note is hereafter referred to
as the "Interest Rate."
b. Default Rate. If an Event of Default occurs, then, at the
option of the Lender, during the entire period during which
such Event of Default shall occur and be continuing, interest
shall be payable on the Note Principal Balance at a per annual
rate of interest equal to the lesser of; (i) the maximum
lawful rate of interest permitted to be paid on this Note; or
(ii) four percent (4%) plus the rate that would otherwise
apply under paragraph (a) above, whether or not payment of the
Loan has been accelerated.
4. BASIS OF COMPUTATION. Interest shall be computed by multiplying the
actual number of days elapsed in the period for which interest is calculated by
a daily rate based on a 360 day year. Interest shall commence to accrue on the
Note Principal Balance of this Promissory Note on the first date that the
Advance is funded by the Holder of this Promissory Note
5. LATE CHARGE. If any payment required hereunder is not paid within
five calendar days after the due date Borrower agrees to pay a late charge of
$.05 per $1.00 of each unpaid payment to defray the costs of the Lender incident
to collecting such late payment. This late charge shall apply individually to
all payments past due and there will be no daily pro rata adjustment. This
provision shall not be deemed to excuse a late payment or be deemed a waiver of
any other rights the Holder may have.
6. TERMS OF PAYMENT. Commencing September 1, 2002, and continuing
thereafter on each Monthly Payment Date up to and including the Maturity Date,
the Note Principal Balance shall be payable in consecutive monthly installments
of Principal and accrued interest thereon at the Interest Rate. Each monthly
payment shall be in an amount sufficient to fully amortize the then unpaid
Principal Balance hereof at the then current Interest Rate by the Amortization
Period.
B-3
All outstanding principal of and interest on this Note shall be due and
payable on the Maturity Date. Notwithstanding the foregoing, the Principal
Balance shall be payable on such earlier date as payment hereunder shall have
been accelerated by virtue of the occurrence of an Event of Default in
accordance with the provisions of the Loan Agreement at which time the entire
unpaid Principal Balance hereof and all accrued and unpaid interest thereon, and
all other charges payable pursuant to the terms hereof shall in any event be
fully due and payable.
7. APPLICATION OF PAYMENTS. So long as a Default does not exist, all
payments on the Loan shall be applied first to any costs of collection, then to
late charges, then to interest and then to the Note Principal Balance and all
accrued unpaid interest thereon.
If a Default exists, the Lender may apply any payments received to any
sums due under this Note in accordance with the terms of the Loan Agreement.
Amounts paid or prepaid under this Note may not be reborrowed.
8. PREPAYMENTS. At the option of Borrower, the Note may be prepaid in
whole on any date and in part on any Monthly Payment Date, upon thirty (30) days
prior written notice to Lender, in principal amounts of not less than
$250,000.00. All partial prepayments shall be applied based on the unpaid
principal balance of the Loan first to accrued interest, and then to the Note
Principal Balance. Upon prepayment in full, interest accrued to the prepayment
date shall be paid on such prepayment date. Prepayments of the Note Principal
Balance shall be applied to principal installments of the Note in inverse order
of maturity; otherwise, no prepayment shall postpone the due dates or reduce the
amount of the Monthly Payments required under the Note. .
9. INTENTIONALLY OMITTED.
10. SECURITY. The payment and performance of the Note are secured by
the Deed of Trust, Assignment of Leases and Rents, Security Agreement and
Fixture Filing dated as of the date hereof.
11. DEFAULT. If (i) a default be made in any payment when due in
accordance with the terms and conditions of this Note or (ii) any other Event of
Default occurs, the entire Note Principal Balance, together with accrued
interest thereon and late charges, if any, shall become immediately due and
payable at the option of the Lender.
12. MONTHLY SERVICING FEE. A Servicing Fee (the "Servicing Fee") on the
unpaid Principal Balance of this Note from time to time outstanding, computed on
the same basis as interest pursuant to Section 3 shall accrue with respect to
Principal from the date hereof at a per annum rate equal to one-quarter of one
percent (.25%). Such Servicing Fee shall be payable by Borrower to Lender on
each Monthly Payment Date.
13. TIME OF ESSENCE; NO WAIVER; REMEDIES CUMULATIVE; SEVERABILITY. Time
is of the essence. No delay or omission in the exercise of any right hereunder
or under any Loan Document shall operate as a waiver of such right or of any
other remedy under this Promissory Note or any Loan Document. A waiver on any
one occasion shall
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not be construed as a bar to or waiver of any such right or remedy on a future
occasion. All rights and remedies of Holder under the terms of this Promissory
Note, under the terms of the Loan Documents, and under any statutes or rules of
law shall be cumulative and, may be exercised successively or concurrently. Any
provision of this Promissory Note that may be unenforceable or invalid under any
law shall be ineffective to the extent of such unenforceability or invalidity
without affecting the enforceability or validity of any other provision hereof.
14. COSTS OF COLLECTION. In the event of any Default hereunder Borrower
agrees to pay the costs of collection, including court costs, arbitration
proceedings, and reasonable attorneys' fees (prior to trial or arbitration, at
arbitration, at trial, and on appeal) incurred in collecting the debt secured
hereby, or in exercising or defending, or obtaining the right to exercise, the
rights of Holder hereunder, under the Loan Agreement or under or with respect to
any other Loan Document, whether an arbitration proceeding or action to compel
arbitration or enforce an arbitration award be brought or not, and in
bankruptcy, insolvency, arrangement, reorganization and other debtor-relief
proceedings, in other court proceedings brought in accordance with the Loan
Documents, and all reasonable costs and expenses incurred by Holder or the
Lender in protecting or preserving the property and interests which are subject
to the Loan Documents.
15. WAIVER OF PRESENTMENT, ETC. Except as otherwise provided in the
Loan Documents, demand for payment, presentment for payment, protest, notice of
protest, notice of non-payment, notice of dishonor, notice to accelerate
maturity, notice of acceleration of maturity, notice of intent to foreclose on
any Collateral (as defined in the Loan Agreement) securing this Note, all other
notices diligence in collection as to each and every payment due hereunder, and
all other requirements necessary to charge or hold Borrower to any obligation
hereunder are waived. Consent is given to any extension or alteration of the
time or terms of payment hereof, any renewal, any release of all or any part of
the security given for the payment hereof, any acceptance of additional security
of any kind, and any release of, or resort to, any party liable for payment
hereof.
16. SAVINGS CLAUSE. Notwithstanding anything to the contrary set forth
in this instrument, if at any time until payment in full of all of the
indebtedness due hereunder, the interest rate on such indebtedness exceeds the
highest rate of interest permissible under any law that a court of competent
jurisdiction shall, in a final determination, deem applicable hereto (the
"Maximum Lawful Rate"), then in such event and so long as the Maximum Lawful
Rate would be so exceeded, the interest rate shall be equal to the Maximum
Lawful Rate; provided, however, that if at any time thereafter the interest rate
is less than the Maximum Lawful Rate Borrower shall continue to pay interest
hereunder at the Maximum Lawful Rate until such time as the total interest
received by the Holder from the making of advances hereunder is equal to the
total interest the Holder would have received had the interest rate been (but
for the operation of this paragraph) the interest rate payable since the initial
funding of the Loan. Thereafter, the interest rate payable hereunder shall be
the interest rate provided for in this instrument unless and until the interest
rate so provided for again exceeds the Maximum Lawful Rate, in which event this
paragraph shall again apply. In no event shall the total interest received by
the Holder pursuant to the term hereof exceed the amount such Holder could
lawfully have received had the interest
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due hereunder been calculated for the full terms hereof at the Maximum Lawful
Rate. If a court of competent jurisdiction, notwithstanding the provisions of
this paragraph, make a final determination that the Holder has received interest
in excess of the Maximum Lawful Rate, the Holder shall, to the extent permitted
by applicable law, promptly apply such excess first to any interest due and not
yet paid under this instrument, then to the outstanding Note Principal Balance
due under this instrument and thereafter shall refund any excess to Borrower or
as a court of competent jurisdiction may otherwise order.
17. GOVERNING LAW. This Note shall be construed in accordance with and
governed by the internal laws of the State of Colorado and applicable federal
law. Whenever possible, each provision of this Note and any other statement,
instrument or transaction contemplated hereby or thereby or relating hereto or
thereto shall be interpreted in such manner as to be effective and valid under
such applicable law, but, if any provision of this Note or any other statement,
instrument or transaction contemplated hereby or thereby or relating hereto or
thereto shall be held to be prohibited or invalid under such applicable law,
such provision shall be ineffective only to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Note or any other statement, instrument or
transaction contemplated hereby or thereby or relating hereto or thereto. The
parties shall endeavor in good-faith negotiations to replace any invalid,
illegal or unenforceable provisions with a valid provision the economic effect
of which comes as close as possible to that of the invalid, illegal or
unenforceable provision.
18. INTEGRATION; CONFLICTING TERMS. This Note, together with the other
Loan Documents, comprises the entire agreement of the parties on the subject
matter hereof and supersedes and replaces all prior agreements, oral and
written, on such subject matter. If any term of any of the other Loan Documents
expressly conflicts with the provisions of this Note or the Loan Agreement, the
provisions of the Loan Agreement shall control, and if any term of the Loan
Agreement shall expressly conflict with a provision of this Note, the provisions
of this Note shall control; provided, however, that the inclusion of
supplemental rights and remedies of Lender in any of the other Loan Documents
shall not be deemed a conflict between the Loan Agreement or this Note, and (ii)
the inclusion of supplemental provisions pertaining to or benefiting Borrower in
the Loan Agreement or in any of the other Loan Documents shall not be deemed a
conflict between the Loan Agreement, such other Loan Documents and this Note.
Executed as of the date first above written.
CONCORDE CRIPPLE CREEK, INC.,
A COLORADO CORPORATION
By:
--------------------------------
Its: President
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EXHIBIT C
COMPLIANCE CERTIFICATE
DATED
---------------------
I, the Chief Financial Officer of Concorde Cripple Creek, Inc. (the
"Borrower"), do hereby provide this Compliance Certificate in connection with
that certain Loan Agreement dated July 31, 2002, by and between Borrower and
Lender (the "Loan Agreement").
I certify, on behalf of Borrower, except as I may set forth in any
Attachment A hereto, that as of the date hereof:
(1) Each of the representations and warranties contained in
Section 4 of the Loan Agreement, if not qualified by a
reference to materiality are true and correct in all material
respects, and if so qualified, are true and correct in all
respects as of the date hereof.
(2) Borrower is in compliance with each of the covenants contained
in Section 6 of the Loan Agreement.
(3) No event has occurred and is continuing that constitutes an
Event of Default under the Loan Agreement, or would constitute
an Event of Default but for the requirement that notice be
given or time elapse or both.
I further certify on behalf of Borrower:
(a) EBITDA. For the Rolling Fiscal Year ended ________, EBITDA
was $____________________ (based on the Schedule I attached hereto).
(b) Debt Service Coverage Ratio. For the Rolling Fiscal Year
ended _________, the Debt Service Coverage Ratio was ___ to 1.0.
(c) Tangible Net Worth Ratio. At _________, 200__ (the last
day of the most recent fiscal quarter) the Debt to Net Worth Ratio of
Borrower on such date was ___ to 1.0.
(d) Leverage Ratio. At ____________, 200__ (the last day of
the most recent fiscal quarter) the Leverage Ratio of the Borrower on
such date was __ to ___.
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There [is] [is not] an Attachment A hereto.
----------------------------------
By
-------------------------------
Its: Chief Financial Officer
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EXHIBIT D
ADDITIONAL PERMITTED ENCUMBRANCES
See attached Schedule B-Section 2 of Title Insurance Commitment
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