CONSENT TO MERGER AND
INCREASED COMMITMENT AGREEMENT
THIS CONSENT TO MERGER AND INCREASED COMMITMENT
AGREEMENT ("Consent Agreement") is made and entered into as
of the 4th day of October, 1996, by and among AMERISTAR
CASINOS, INC., a Nevada corporation ("Borrower"), ▇▇▇▇▇
FARGO BANK, National Association, successor by merger to
First Interstate Bank of Nevada, N.A. and First Interstate
Bank of Idaho, U.S. BANK OF IDAHO, formerly known as West
One Bank, Idaho, DEPOSIT GUARANTY NATIONAL BANK, NBD BANK,
TRUSTMARK NATIONAL BANK, FIRST NATIONAL BANK OF COMMERCE,
NORWEST BANK OF NEBRASKA, N.A., U.S. BANK OF NEVADA,
ARGENTBANK and MERCHANTS BANK (herein together with their
respective successors and assigns collectively, the
"Lenders") and ▇▇▇▇▇ FARGO BANK, National Association, as
administrative and collateral agent for the Lenders (herein
in such capacity called the "Agent" and together with the
Lenders collectively referred to as the "Banks").
R_E_C_I_T_A_L_S:
WHEREAS:
A. Borrower and Banks entered into a Credit
Agreement dated as of June 1, 1995 (the "Credit Agreement").
In this Consent Agreement all capitalized words and terms
shall have the respective meanings and be construed herein
as provided in Section 1 of the Credit Agreement. This
Consent Agreement shall be deemed to incorporate such words
and terms as a part hereof in the same manner and with the
same effect as if the same were fully set forth herein.
B. Borrower has created Ameristar Casino Las
Vegas, Inc., a Nevada corporation ("ACLVI") as a wholly
owned subsidiary of Borrower. Borrower, ACLVI, Gem Gaming,
Inc., a Nevada corporation ("Gem"), ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, an
individual and in his capacity as trustee of the Karizma
Trust created under that certain Trust Agreement dated July
2, 1991, as amended ("▇▇▇▇▇▇") and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇,
an individual ("Magliarditi" and together with ▇▇▇▇▇▇,
collectively the "Gem Individuals") entered into a Merger
Agreement dated May 30, 1996, as amended by First Amendment
to Merger Agreement dated as of July 2, 1996 and Second
Amendment to Merger Agreement dated as of September 25, 1996
(as may be further amended from time to time, collectively
the "Merger Agreement"), under the terms of which Gem is to
be merged with and into ACLVI with
ACLVI to be the surviving corporation as a wholly owned
subsidiary of Borrower. Upon consummation of the Merger, as
defined in the Merger Agreement, ACLVI will be the owner of
the "Project", as defined in the Merger Agreement. Under
the terms of the Merger Agreement Borrower will acquire
certain other assets and make certain investments more
particularly therein described.
C. Borrower has requested various consents and
waivers from the Banks under the Credit Agreement to enable
the Merger to occur and has further requested that the
aggregate Commitments of the Lenders be increased by the
amount of Four Million Five Hundred Thousand Dollars
($4,500,000.00) from Ninety-Four Million Five Hundred
Thousand Dollars ($94,500,000.00) to Ninety-Nine Million
Dollars ($99,000,000.00).
▇. ▇▇▇▇▇ Fargo Bank, a National Association, has
agreed to fund the increase to the aggregate Commitments in
the amount of Four Million Five Hundred Thousand Dollars
($4,500,000.00), and Banks have agreed to the consents and
waivers hereinafter set forth on the terms and subject to
the conditions hereinafter specified.
NOW, THEREFORE, in consideration of the foregoing
and other good and valuable considerations, the parties
hereto agree to the terms, conditions and provisions set
forth in this Consent Agreement, which shall be deemed
effective as of the Consent Effective Date.
1. Increase of Aggregate Commitments. Pursuant
to Section 2.1A of the Credit Agreement, the aggregate
Commitments shall be and are, as of the Consent Effective
Date, increased from Ninety-Four Million Five Hundred
Thousand Dollars ($94,500,000.00) to Ninety-Nine Million
Dollars ($99,000,000.00) with each Lender's Commitment as
set forth opposite its name on Schedule 2.1 affixed to this
Consent Agreement and by this reference incorporated herein
and made a part hereof, which shall fully restate and
supersede the Schedule 2.1 annexed to the Credit Agreement.
2. Consent to ACLVI Loan. As part of the Merger
transaction, Borrower intends to loan to ACLVI principal
sums up to the aggregate amount of Sixteen Million Dollars
($16,000,000.00) (the "ACLVI Intercompany Loan") to be
evidenced by a Promissory Note to be executed by ACLVI,
payable to the order of Borrower (the "ACLVI Intercompany
Note"). Banks shall and do hereby, as of the Consent
Effective Date, consent to:
(a) use of the proceeds of Loans under the
Credit Agreement for the funding of advances to ACLVI under
the ACLVI Intercompany Loan up to the maximum aggregate
amount of Sixteen Million Dollars ($16,000,000.00) (consent
required under Section 2.5A of the Credit Agreement);
(b) creation of the Indebtedness evidenced
by the ACLVI Intercompany Loan up to the maximum aggregate
amount of Sixteen Million Dollars ($16,000,000.00) (consent
required under Section 6.1(ii) of the Credit Agreement);
(c) the Investment evidenced by the ACLVI
Intercompany Loan up to the maximum aggregate amount of
Sixteen Million Dollars ($16,000,000.00) (consent required
under Section 6.3(vi) of the Credit Agreement); and
(d) creation of ACLVI as a wholly owned
Subsidiary of Borrower (consent required under Section 6.12
of the Credit Agreement).
3. Capital Contributions to ACLVI. Banks shall
and do hereby, as of the Consent Effective Date, consent to
Borrower funding Capital Contributions to ACLVI up to the
maximum aggregate amount of Five Hundred Thousand Dollars
($500,000.00) (consent required under Section 6.3(vi) of the
Credit Agreement).
4. Consent to Merger and Increased of Authorized
Shares. Banks shall and do hereby, as of the Consent
Effective Date, consent to the Merger of Gem into ACLVI and
to the other transactions contemplated by the terms of the
Merger Agreement (consent required under Section 6.7 of the
Credit Agreement) and to the making of the ACLVI
Intercompany Loan and Capital Contributions to ACLVI as
permitted in Paragraph 3 hereinabove (consent required under
Section 6.7(iv) of the Credit Agreement). Lenders further
shall and do hereby, as of the Consent Effective Date,
consent to the increase of the number of shares of
authorized common voting stock of Borrower from thirty
million (30,000,000) shares to fifty million (50,000,000)
shares (consent required under Section 6.7 of the Credit
Agreement). Banks acknowledge and agree that the "▇▇▇▇▇▇
Note," "Alternative ▇▇▇▇▇▇ Note," "Magliarditi Note" and
"Alternative Magliarditi Note," each as defined in the
Merger Agreement, will not constitute or be construed to be
Indebtedness of Borrower until the occurrence of the
"Settlement Date," as defined in the Merger Agreement.
5. Consent to Licensing "Ameristar" Trademark to
ACLVI. Banks shall and do hereby, as of the Consent
Effective Date, consent to ACLVI's use of the name
"Ameristar" and Borrower's licensing or other permission for
the use of the "Ameristar" tradename and servicemark by
ACLVI (consent required pursuant to Section 6.13 of the
Credit Agreement).
6. Other Related Investments by Borrower. The
Merger Agreement contains provisions requiring Borrower to
purchase a one-half (1/2) interest in a 1982 Cessna Citation
ISP jet aircraft ("Cessna") and a one-half (1/2) interest in a
leased hanger facility located at ▇▇▇▇▇▇▇▇ International
Airport in Las Vegas (the "Hanger"). Borrower and Gem Air,
Inc., a Nevada corporation ("Gem Air"), a corporation wholly
owned by ▇▇▇▇▇▇, have formed Nevada AG Air, L.L.C., Ltd., a
Nevada limited liability company ("Nevada AG"), for the
purpose of owning the leasehold to the Hanger. Borrower has
paid Gem Air Four Hundred Sixty-Six Thousand One Hundred
Twenty-Three Dollars and Seventy-One Cents ($466,123.71) for
the one-half (1/2) interest in the Cessna and has contributed
the sum of Two Hundred Eighty-Nine Thousand Nine Hundred
Forty-Nine Dollars ($289,949.00) plus the cost of the title
insurance to Nevada AG, for an aggregate investment of
approximately Seven Hundred Fifty-Six Thousand Seventy-Two
Dollars ($756,072.00). Lenders shall and do hereby as of
the Consent Effective Date, consent to Borrower's Investment
in the Cessna and Nevada AG up to the maximum aggregate
amount of Seven Hundred Sixty-Five Thousand Dollars
($765,000.00) (consent required under Section 6.3(viii) of
the Credit Agreement).
7. Conditions Precedent to Consent Effective
Date. The Consent Effective Date shall be deemed to have
occurred at such time as Agent has received each of the
following documents and each of the following requirements
has occurred:
a. execution and delivery by Borrower,
Banks and each of the Guarantors of twelve (12) counterpart
originals of the Consent Agreement;
b. delivery by ACLVI of a duly authorized
and executed Certificate of Joinder to the Guaranty in the
form of Exhibit A, affixed hereto and by this reference
incorporated herein and made a part hereof;
c. execution by Borrower and delivery to
Agent Bank of a duly authorized and executed Certificate of
Designation of Promissory Note as Pledged Debt in the form
of Exhibit B, affixed hereto and by this reference
incorporated herein and made a part hereof, together with
the original duly executed ACLVI Intercompany Note;
d. delivery to Agent Bank of the stock
certificate or certificates evidencing all of the issued and
outstanding shares of ACLVI and the due authorization and
execution of the Schedule B Pledge Amendment in the form of
Exhibit C, affixed hereto and by this reference incorporated
herein and made a part hereof, in favor of Agent on behalf
of Lenders in which the ACLVI stock is pledged to the Banks
as additional security under the Pledge Agreement;
e. reimbursement to Agent by Borrower for
the reasonable attorneys' fees of ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
incurred in connection with the preparation and execution of
the Consent Agreement; and
f. such other documents, instruments,
legal opinions or conditions as may be reasonably required
by Agent.
8. Representations and Warranties. To induce
Banks to enter into this Consent Agreement, except with
respect to the matters described on the Disclosures marked
"Exhibit D", affixed hereto and by this reference
incorporated herein and made a part hereof, Borrower hereby:
(i) ratifies and reaffirms the representations and
warranties set forth in Section 4 of the Credit Agreement;
(ii) warrants and represents that each such representation
and warranty shall be true and correct as of the Consent
Effective Date, other than representations and warranties
which expressly speak as of a different date which shall be
true and correct as of such date; and (iii) represent and
warrant that, as of the Consent Effective Date, no Default
or Event of Default has occurred and remains continuing.
9. No Other Changes. Except as specifically set
forth herein, the Credit Agreement shall remain unchanged
and in full force and effect.
10. Governing Law. This Consent Agreement shall
be governed by the internal laws of the State of Nevada
without reference to conflicts of laws principles.
11. Counterparts. This Consent Agreement may be
executed in any number of counterparts, all of which taken
together shall constitute one agreement, and any party
hereto may execute this Consent Agreement by signing any
such counterpart.
12. Joinder of Guarantors. Guarantors join in
the execution of this Consent Agreement for the purpose of
acknowledging their consent and agreement to the terms
hereof and for the further purpose of confirming that
notwithstanding the matters set forth in this Consent
Agreement and the joinder of ACLVI as a Guarantor, the
obligations of the Guarantors under the Guaranty shall not
be impaired or affected and the Guaranty is, and shall
continue to be, in full force and effect and is hereby
confirmed and ratified in all respects.
IN WITNESS WHEREOF, the parties hereto have caused
this Consent Agreement to be executed as of the day and year
first above written.
BORROWER:
AMERISTAR CASINOS,
INC., a Nevada corporation
By /s/▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title Senior Vice President
GUARANTORS:
CACTUS PETE'S, INC.
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title Vice President
AMERISTAR CASINO COUNCIL
BLUFFS, INC.
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title Vice President
AMERISTAR CASINO VICKSBURG,
INC.
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title Vice President
AMERISTAR CASINO LAS VEGAS,
INC., a Nevada corporation
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title Vice President
BANKS:
▇▇▇▇▇ FARGO BANK,
National Association,
successor by merger to
First Interstate Bank of
Nevada,
N.A. and First Interstate
Bank of Idaho
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
Title Vice President
U.S. BANK OF IDAHO,
formerly known as West One
Bank, Idaho
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title Senior Vice President
DEPOSIT GUARANTY NATIONAL
BANK
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title Senior Vice President
NBD BANK
By /s/▇▇▇▇▇▇▇ ▇'▇▇▇▇
Title Authorized Agent
TRUSTMARK NATIONAL BANK
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title Vice President
FIRST NATIONAL BANK OF
COMMERCE
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title Vice President
NORWEST BANK OF NEBRASKA,
N.A.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title Asst. Vice President
U.S. BANK OF NEVADA
By /s/ ▇▇▇▇ Imermann
Title Vice President
ARGENTBANK
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Title Vice President
MERCHANTS BANK
By /s/ ▇▇▇▇▇ ▇▇▇▇▇
Title Senior Vice President