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EXHIBIT 10(g)
AMENDED AND RESTATED LOAN AGREEMENT
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THIS AMENDED AND RESTATED LOAN AGREEMENT ("LOAN AGREEMENT") is made and
entered into as of the 31st day of January, 1998, by and between ▇▇▇▇▇ FARGO
BANK, NATIONAL ASSOCIATION and THE SUMITOMO BANK, LIMITED, hereinafter
individually referred to as a "LENDER" and collectively called "LENDERS", and
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION, as administrative and collateral agent
for Lenders, herein referred to as the "AGENT BANK", and ZANTE, INC., a Nevada
corporation, hereinafter called "BORROWER", with reference to the following
facts:
A. First Interstate Bank of Nevada, National Association, First
Interstate Bank of California and The Daiwa Bank, Limited, as predecessors to
Lenders, and Borrower have entered into that certain Loan Agreement dated March
31, 1993, as amended by that certain First Amendment to Loan Agreement dated
June 27, 1994 and that certain Second Amendment to Loan Agreement and Term and
Revolving Credit Promissory Note dated October 15, 1996 (collectively, the
"EXISTING LOAN AGREEMENT").
B. Lenders and Borrower now desire to amend and restate the Existing
Loan Agreement as set forth herein.
C. In this Loan Agreement all capitalized words and terms shall have the
respective meanings and be construed herein as hereinafter provided in Section
1.1 of this Loan Agreement and shall be deemed to incorporate such words and
terms as a part hereof in the same manner and with the same effect as if the
same were fully set forth.
D. Borrower is the owner of the Real Property and operates the
Hotel/Casino Operation.
▇. ▇▇▇▇▇ Regent is the owner of 100% of the issued and outstanding
capital stock of Borrower.
▇. ▇▇▇▇▇ Regent has guaranteed Borrower's performance under the Loan,
all subject to the terms and conditions hereinafter set forth.
G. The Loan has been made for the purposes and subject to the terms and
conditions which are hereinafter set forth.
H. Lenders and Borrower now desire to amend and restate the Existing
Loan Agreement and all other loan documents evidencing and/or securing the Loan.
NOW, THEREFORE, in consideration of the foregoing, and other valuable
considerations as hereinafter described, the parties hereto do promise, covenant
and agree to amend and restate in its entirety the Existing Loan Agreement as
follows:
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ARTICLE 1
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DEFINITIONS
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Section 1.1 Definitions. For the purposes of this Loan Agreement, each
of the following terms shall have the meaning specified with respect thereto,
unless a different meaning clearly appears from the context:
"ACCOUNTS" shall have the meaning set forth in Section 8.24
hereof.
"ADDITIONAL DEED OF TRUST" shall mean that certain Deed of Trust,
Fixture Filing and Security Agreement With Assignment of Rents of even date
herewith executed by Borrower as Trustor and
Debtor encumbering the Additional Property.
"ADDITIONAL PROPERTY" shall mean the Austin Arms Apartment
Building, the Personnel Building and the Residence, together with
all improvements thereon.
"ADDITIONAL SUBSIDIARY" shall mean any Subsidiary of Sands Regent other
than Borrower. However, to the extent, and only to the extent, that either
Borrower or Sands Regent are liable for an obligation of an Additional
Subsidiary (whether pursuant to a guaranty or otherwise), with such liability to
be determined in accordance with GAAP, such obligations shall not constitute an
Additional Subsidiary Item.
"ADDITIONAL SUBSIDIARY ITEM" shall mean any income, expense, assets or
liability of an Additional Subsidiary.
"AGENCY AGREEMENT" shall mean the agreement executed by and among
Lenders, as such agreement may be amended from time to time, setting forth the
respective rights, duties and obligations of each of the Lenders in the Loan.
"AGENT BANK" shall mean ▇▇▇▇▇ Fargo Bank, National Association, and its
successors and assigns, in its capacity as agent for Lenders.
"APPRAISAL" shall mean that market value appraisal of the Premises and
the Hotel/Casino Operation performed by ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ International.
"ASSIGNMENT OF EQUIPMENT LEASES, CONTRACTS AND SUBLEASES" shall mean the
assignment dated March 31, 1993 executed by Borrower, as such assignment may be
amended from time to time, as additional security for the Loan, pursuant to
which Borrower assigns to Lenders all of its assignable right, title and
interest under the Equipment Leases and Contracts and Subleases relating to the
Real Property.
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"ASSIGNMENT OF PERMITS, LICENSES AND CONTRACTS" shall mean the
assignment dated March 31, 1993 duly executed by Borrower, as such assignment
may be amended from time to time, as additional security for the Loan, whereby
Borrower assigns to Lenders all of its right, title and interest in and to all
permits, licenses and contracts relating to the Hotel/Casino Operation, except
those gaming permits and licenses and other permits, licenses and contracts
which are unassignable.
"ASSIGNMENT OF LEASES, RENTS AND REVENUES" shall mean the assignment
dated March 31, 1993 duly executed by Borrower, as such assignment may be
amended from time to time, whereby Borrower assigns to Lenders as additional
security for the Loan, all assignable Tenant Leases and all rents, issues,
profits, revenues and income from the Real Property and the Hotel/Casino
Operation and any other business activity conducted by Borrower on the Real
Property, together with any future expansions thereof, related thereto or used
in connection therewith.
"AUSTIN ARMS APARTMENT BUILDING" shall mean that certain parcel of real
property improved with an apartment building more particularly described in
Exhibit "C-3" attached hereto and incorporated herein by reference.
"BANKING BUSINESS DAY" shall mean a day upon which all of the offices
located in the United States (or any successor offices) of each of the Lenders
is open to conduct regular banking business.
"BANKRUPTCY CODE" shall mean the United States Bankruptcy
Code, as amended, 11 U.S.C. Section 101, et seq.
"BORROWER" shall mean Zante, Inc., a Nevada corporation.
"BORROWER'S PERMISSIVE CAPITAL EXPENDITURES" shall mean the expenditures
permitted under Section 5.15(a) hereof.
"BUSINESS PLAN PROJECTIONS" shall mean the business plan projections
(broken down on a quarterly basis) established by Borrower from time to time and
subject to the prior written approval of Lenders, which Lenders may withhold in
Lenders' sole and absolute discretion, which initial Business Plan Projections
are set forth on Exhibit "G" attached hereto and incorporated herein by
reference.
"CAPITAL EXPENDITURES" shall mean, for any period, without duplication,
the aggregate of all expenditures (whether paid in cash or accrued as
liabilities during that period and including capitalized lease liabilities) by
Borrower during such period that, in conformity with GAAP, are required to be
included in or reflected by the property, plant or equipment or similar fixed or
capital asset accounts reflected in the balance sheet of Borrower (including
equipment which is purchased simultaneously with the trade-in of existing
equipment owned by Borrower to the extent of
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(a) the gross amount of such purchase price less (b) the cash proceeds or
trade-in credit of the equipment being traded in at such time), but excluding
capital expenditures made in connection with the replacement or restoration of
assets, to the extent reimbursed or refinanced from insurance proceeds paid on
account of the loss of or damage to the assets being replaced or restored, or
from awards of compensation arising from the taking by condemnation of or the
exercise of the power of eminent domain with respect to such assets being
replaced or restored.
"CAPITAL PROCEEDS" shall mean the net proceeds (after deducting all
reasonable expenses incurred in connection therewith) available to Borrower
from: (i) partial or total condemnation or destruction of any part of the
Premises; (ii) sales of easements, rights-of-way or similar interests in any
portion of the Premises; (iii) insurance proceeds (other than rent insurance and
business interruption insurance) received in connection with damage to or
destruction of the Premises; (iv) the sale or other disposition of any portion
of the Premises in accordance with the provisions of this Loan Agreement, (not
including, however, any proceeds received by Borrower from a sale of FF&E if
such FF&E is replaced by items of equivalent value and utility, in each case
such exclusion to apply only during any period in which no Event of Default has
occurred and is continuing); and (v) any other extraordinary receipt of proceeds
from the sale of Collateral not in the ordinary course of business and treated,
for accounting purposes, as capital in nature.
"CLADIANOS FAMILY" shall mean a collective reference to ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇. and ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and any lineal
descendants of either of them.
"CLOSING DATE" shall mean the date upon which the First Amendment to
Deed of Trust is recorded in the Official Records of Washoe County, Nevada.
"COLLATERAL" shall mean: (i) all of the real and personal property,
FF&E, contract rights, leases, intangibles and other interests of Borrower which
are subject to the lien and security interest of the Deed of Trust and Financing
Statements; (ii) all rights of Borrower assigned pursuant to the terms of the
Assignment of Permits, Licenses and Contracts, Assignment of Equipment Leases,
Contracts and Subleases and the Assignment of Leases, Rents and Revenues; (iii)
any and all other property and/or intangible rights, interests or benefits
inuring to or in favor of Borrower which are in any manner assigned, pledged,
encumbered or otherwise hypothecated in favor of Lenders to secure repayment of
the Loan; and (iv) the Accounts.
"COMPLIANCE CERTIFICATE" shall mean a compliance certificate as
described in Section 5.5(b) which shall be in the form as set forth in Exhibit
"E" attached hereto and incorporated herein by reference.
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"DEED OF TRUST" shall mean the Deed of Trust, Fixture Filing and
Security Agreement With Assignment of Rents dated March 31, 1993, executed by
Borrower as Trustor and Debtor, as such deed of trust may be amended from time
to time, encumbering the Premises, FF&E and other Collateral more particularly
therein described for the purpose of securing Borrower's performance of the
terms and provisions contained in the Note and the Loan Agreement, and recorded
on April 5, 1993 as Instrument No. 1661414 in the Official Records of Washoe
County, Nevada.
"DEFAULT RATE" shall have the meaning set forth in Section 2.7(b).
"DISTRIBUTIONS" shall mean and collectively refer to any and all cash
dividends, loans, management fees, payments, advances, stock redemptions or
repurchases or other distributions, fees or compensation of any kind or
character whatsoever made by Borrower to Sands Regent.
"EBITDA", when used with reference to Borrower and Sands Regent shall
mean the consolidated net income of Borrower and Sands Regent: (i) plus the
consolidated interest expense, federal income taxes, depreciation and
amortization of Borrower and Sands Regent; (ii) excluding the effect, if any, of
Additional Subsidiaries or transactions with Additional Subsidiaries; and (iii)
plus Gulfport Cash Payments.
"EFFECTIVE FEDERAL TAX RATE" of any Person with respect to any fiscal
period shall mean the quotient which results from dividing that Persons' federal
income tax expense for such fiscal period by that Person's net income before
taxes for such fiscal period.
"ENVIRONMENTAL CERTIFICATE" shall mean the Certificate and
Indemnification Regarding Hazardous Substances dated March 13, 1993, as such
certificate and indemnification has been amended and restated by that certain
Amended and Restated Certificate and Indemnification Regarding Hazardous
Substances of even date herewith, executed by Borrower as a further inducement
to Lenders to make the Loan.
"EQUIPMENT LEASES AND CONTRACTS" shall mean the executed leases and
purchase contracts pertaining to FF&E wherein Borrower is the lessee or vendee,
as the case may be. A summary of those Equipment Leases and Contracts (with
respect to contracts, Borrower is only required to list those certain contracts
which involve payments of more than $5,000 per year; provided, however, all
contracts not listed cannot involve in the aggregate payments in excess of
$50,000 per year; the mere fact that Borrower is not required to list all
contracts shall not impair or affect Lenders' security interest in all contracts
related to the Real Property or the Hotel/Casino Operation) is set forth on
Exhibit "D" attached hereto and incorporated herein by reference.
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"ESTOPPEL CERTIFICATE" shall mean an estoppel certificate duly executed
by any third party requested by Lenders (including, without limitation, lessors
under Equipment Leases, tenants under Leases, subtenants under Subleases, and
any other third parties in privity of contract with Borrower).
"ERISA" shall mean the Employees Retirement Income Security Act of 1974,
as amended from time to time.
"EVENT OF DEFAULT" shall mean any event of default as
defined in Section 6.1 hereof.
"EXISTING PATRICIAN INVESTMENT" shall mean the aggregate loans and/or
capital contributions which have been made to the Patrician Subsidiary and/or
GCI by Sands Regent prior to April, 1993.
"EXISTING TITLE INSURANCE COMPANY" shall mean Ticor Title Insurance
Company and its issuing agent Western Title Company, Inc. with offices at ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, together with such reinsurers with
direct access as are requested by Lenders or other title insurance company or
companies as may be acceptable to Lenders.
"EXISTING TITLE INSURANCE POLICY" shall mean the ALTA Extended Coverage
Lender's Policy of Title Insurance and endorsements issued in favor of Lenders
by Existing Title Insurance Company in the amount of $23,609,516.00 insuring
Lenders that, among other things: (i) the Deed of Trust is a first mortgage lien
on the Hotel/Casino Property without exception as to the condition of title or
priority other than the exceptions permitted to be shown as determined by
Lenders, in their sole and absolute discretion; and (ii) the buildings and
foundations on said Real Property do not encroach upon any easement or upon any
property not owned by Borrower except as shown in said policy in exceptions
approved by Lenders.
"FF&E" shall mean any and all furnishings, fixtures and equipment which
have been installed or are to be installed and used in connection with the
operation of the Real Property, including those items of furnishings, fixtures
and equipment which have been purchased or are to be purchased or leased by
Borrower in connection with the Hotel/Casino Operation.
"FINANCING STATEMENTS" shall mean the Uniform Commercial Code Financing
Statements required to be filed with: (i) the Office of the Secretary of State
of Nevada; and (ii) the Office of the Recorder of Washoe County, Nevada, in
order to perfect the security interest granted to Lenders under the Deed of
Trust and other Loan Documents in accordance with the requirements of the Nevada
Uniform Commercial Code.
"FIRST AMENDMENT TO DEED OF TRUST" shall mean that certain First
Amendment to Deed of Trust of even date herewith amending
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the Deed of Trust and to be recorded on the Closing Date in the Official Records
of Washoe County, Nevada.
"FISCAL QUARTER" shall mean reference to each consecutive three month
period during each Fiscal Year beginning at the commencement of each Fiscal
Year.
"FISCAL YEAR" shall mean the fiscal period beginning on the 1st day of
July of each calendar year and ending on the 30th day of June of each calendar
year.
"GAAP" shall mean generally accepted accounting principles, consistently
applied.
"GCI" shall mean Gulfside Casino, Inc., a Mississippi corporation which
is a wholly owned subsidiary of Sands Regent, and the holder of a .006%
ownership interest in the Patrician Joint Venture.
"GOVERNMENTAL AUTHORITY" or "GOVERNMENTAL AUTHORITIES" shall mean any
federal, state, regional, county or municipal governmental agency, board,
commission, officer or official whose consent or approval is required or whose
regulations must be followed as a prerequisite to: (i) the continued
Hotel/Casino Operation on the Premises; or (ii) the performance of any act or
obligation or the observance of any agreement, provision or condition of
whatever nature herein contained.
"GUARANTY" shall mean that certain Guaranty of Loan dated March 31, 1993
executed by Sands Regent guarantying all of the obligations of Borrower in
connection with the Loan, as such guaranty has been amended and restated by that
certain Amended and Restated Guaranty of Loan of even date herewith.
"GULFPORT CASH PAYMENTS" shall mean the cash payments which are received
by the Sands Regent from any or all of the Gulfport Subsidiaries; (i) as
dividend payments; or (ii) in repayment of principal or interest under loans
made to one, or both, such entities by Sands Regent.
"GULFPORT RIVERBOAT PROJECT" shall mean the development and operation of
a riverboat gaming operation in Gulfport, Mississippi as contemplated by the
Patrician Joint Venture.
"GULFPORT SUBSIDIARIES" shall mean a collective reference to GCI, to the
Patrician Subsidiary and to the Patrician Joint Venture.
"HAZARDOUS MATERIALS CLAIMS" shall have the meaning set forth in Section
5.21.
"HAZARDOUS MATERIALS LAWS" shall have the meaning set forth in Section
5.21.
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"HOTEL/CASINO OPERATION" shall mean the hotel and casino business which
is conducted on the Hotel/Casino Property and the Parking Lots and the existing
improvements thereon with any future expansions thereof which are related
thereto.
"HOTEL/CASINO PROPERTY" shall mean those parcels of real property which
are more particularly described in Exhibit "C-1" attached hereto and
incorporated herein by reference.
"INDEBTEDNESS" of any Person includes all obligations, contingent or
otherwise, which in accordance with GAAP should be classified upon such Person's
balance sheet as liabilities, but in any event including liabilities secured by
any lien existing on property owned or acquired by such Person or a Subsidiary
thereof whether or not the liability secured thereby shall have been assumed),
obligations which have been or under GAAP should be capitalized for financial
reporting purposes, and all guaranties, endorsements, and other contingent
obligations with respect to Indebtedness of others, including, but not limited
to, any obligations to acquire any of such Indebtedness, to purchase, sell, or
furnish property or services primarily for the purpose of enabling such other
Person to make payment of any of such Indebtedness, or otherwise to assure the
owner of any of such Indebtedness against loss with respect thereto.
"INTEREST RATE SWAP AGREEMENT" shall mean that certain Interest Rate
Swap Agreement dated March 23, 1994 entered into by ▇▇▇▇▇ Fargo Bank, N.A.
(formerly known as First Interstate Bank of Nevada, N.A.), and Borrower.
"LENDER(S)" shall have the meaning set forth in the Preamble of this
Loan Agreement.
"LETTER OF CREDIT" shall mean that certain irrevocable letter of credit
issued on January 14, 1994 by the predecessor to Agent Bank under No. SB2002 in
favor of the State of Nevada Department of Insurance to meet Borrower's Nevada
state self-insurance requirements.
"LOAN" shall mean a collective reference to the Loan evidenced by this
Loan Agreement, which is in the original principal amount not to exceed
$23,609,516 and which is in the outstanding principal balance as of February 1,
1998 of $10,975,000 to be repaid by Borrower in accordance with the terms of the
Note and the Loan Documents.
"LOAN AGREEMENT" shall mean and refer to the Existing Loan Agreement, as
amended and restated by this Loan Agreement.
"LOAN DOCUMENTS" shall mean the collective reference to this Loan
Agreement, the Note, the Deed of Trust as amended by the First Amendment to Deed
of Trust, the Additional Deed of Trust, the Guaranty, the Assignment of
Equipment Leases, Contracts and Subleases, the Assignment of Permits, Licenses
and Contracts, the
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Assignment of Leases, Rents and Revenues, Financing Statements, the Second Deed
of Trust, the Reimbursement Agreement, the Interest Rate Swap Agreement, the
Pledge, the Second Pledge, any Estoppel Certificates, any subordination,
nondisturbance and attornment agreements covering a Tenant Lease, any fixture
filings and all other instruments and agreements required to be executed by or
on behalf of Borrower or any other Person in connection with the Loan.
"LOAN FEE" shall mean a non-refundable loan fee in the amount of
$100,000, which Borrower has paid to Agent Bank for distribution to Lenders, as
set forth in the Agency Agreement, in consideration for the making of the Loan.
"MATURITY DATE" shall mean January 15, 2000.
"MAXIMUM GULFPORT INVESTMENTS" shall mean an amount which is equal to
the sum of Twenty-One Million Dollars ($21,000,000.00); provided, however, that
the Maximum Gulfport Investment shall not exceed Twenty-Six Million Five Hundred
Thousand Dollars
($26,500,000.00).
"NOTE" shall mean the Term and Revolving Credit Promissory Note dated
March 31, 1993 executed by Borrower, as such note is amended and restated by
that certain Amended and Restated Term Promissory Note of even date herewith and
which note is in the original principal amount not to exceed $23,609,516.00
evidencing the Loan, in the form as set forth in Exhibit "B" attached hereto and
incorporated herein by reference.
"PARKING LOTS" shall mean those two (2) additional parcels of real
property utilized as parking lots and which are more particularly described in
Exhibit "C-2" attached hereto and incorporated herein by reference.
"PARTICIPATION INTEREST" shall mean the proportionate interest of each
Lender in the Loan, as set forth on Exhibit "A" attached hereto and incorporated
herein by reference.
"PATRICIAN JOINT VENTURE" shall mean a joint venture between the
Patrician Subsidiary, Gulfside Casino, Inc. and Artemis, Inc., pursuant to that
certain Memorandum of Agreement under date of December 31, 1992, as amended,
wherein the Patrician Subsidiary, Gulfside Casino, Inc. and Artemis, Inc. agree
to conduct the Gulfport Riverboat Project known as "Copa Casino."
"PATRICIAN SUBSIDIARY" shall mean Patrician, Inc., a Nevada corporation.
"PERMITTED ENCUMBRANCES" shall mean, at any particular time: (i) liens
for taxes, assessments or governmental charges not then due and payable or not
then delinquent; (ii) liens for taxes, assessments or governmental charges the
validity of which are being contested in good faith by Borrower by appropriate
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proceedings, provided that Borrower shall have maintained adequate reserves in
accordance with GAAP; (iii) liens created or contemplated by the Loan Documents;
(iv) the liens, encumbrances and restrictions on the Real Property and existing
improvements which are allowed by Lenders to appear in Schedule B, Part I and II
of the Existing Title Insurance Policy or any other title insurance policy
issued at the Closing Date, and similar easements, rights-of-way, zoning and
similar restrictions and other encumbrances and exceptions to title which do not
in any case or in the aggregate materially interfere with the ordinary conduct
of the business of Borrower or the enjoyment of the Real Property, and rights of
lessees, lessors, vendees and/or vendors pursuant to the Equipment Leases and
Contracts and the Tenant Leases; (v) liens in favor of or consented to in
writing by Lenders; (vi) purchase money security interests for FF&E heretofore
acquired, without limitation, or hereafter acquired, if such purchase money
security interests extend only to the hereafter acquired FF&E and only to the
extent of the lesser of the purchase money loan or the fair market value of the
acquired FF&E; (vii) liens of legally valid leases for FF&E; and (viii)
depository institutions, carriers, warehousemen's, mechanics' and materialmen's
liens and other similar inchoate liens, in each case not yet delinquent, or
being contested in good faith provided that adequate reserves are maintained in
accordance with GAAP for any such lien which is being so contested.
"PERSON" means any individual, firm, corporation, trust, association,
partnership, joint venture, tribunal, bank, investment bank, mutual fund or
other entity.
"PERSONNEL BUILDING" shall mean that certain parcel of real property
improved with an office building as more particularly described in Exhibit "C-4"
attached hereto and incorporated herein by reference.
"PLEDGE" shall mean that certain Pledge and Assignment of even date
herewith covering any and all deposit accounts now or hereafter held by Borrower
in favor of Lenders.
"POLICIES OF INSURANCE" shall mean the insurance to be obtained and
maintained by Borrower as provided by Section 5.6 herein.
"PREMISES" shall mean the Hotel/Casino Property and the Parking Lots,
together with existing improvements and all other improvements or property, both
personal and real which now are or hereafter are situated upon the Hotel/Casino
Property and the Parking Lots or form a part of the Hotel/Casino Operation,
including but not limited to any future expansions thereof.
"QUALIFIED GULFPORT INVESTMENTS" shall mean loans or capital
contributions to the Gulfport Subsidiaries, or either of them, to
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be used in the direct or indirect conduct of the Gulfport Riverboat Project.
"REAL PROPERTY" shall mean that real property which is particularly
described by Exhibits "C-1 through C-5" attached hereto and incorporated herein
by reference, together with all improvements thereon, which shall include the
Hotel/Casino Property, the Parking Lots, the Austin Arms Apartment Building, the
Personnel Building and the Residence.
"REFERENCE RATE" shall mean the rate of interest which ▇▇▇▇▇ Fargo Bank,
National Association, or its successor or assigns, from time to time identifies
and publicly announces as its prime rate and is not necessarily, for example,
the lowest rate of interest which ▇▇▇▇▇ Fargo Bank, National Association,
collects from any borrower or group of borrowers.
"REIMBURSEMENT AGREEMENT" shall mean that certain Reimbursement
Agreement dated January 13, 1993 duly executed by Borrower supporting the Letter
of Credit.
"REPORTABLE EVENT" shall mean a reportable event as defined in Title IV
of ERISA, except actions of general applicability by the Secretary of Labor
under Section 110 of ERISA.
"RESIDENCE" shall mean that certain parcel of real property improved
with a single family residence as more particularly described in Exhibit "C-5"
attached hereto and incorporated herein by reference.
"SANDS GROUP" shall mean a collective reference to Sands Regent and to
Borrower.
"SANDS REGENT" shall mean The Sands Regent, a Nevada corporation.
"SECOND DEED OF TRUST" shall mean that certain Deed of Trust, Fixture
Filing and Security Agreement With Assignment of Rents duly executed by Borrower
in favor of Agent Bank, securing the obligations of Borrower under the Interest
Rate Swap Agreement and the Reimbursement Agreement, to be recorded as of the
Closing Date in the Official Records of Washoe County, Nevada and creating a
priority lien junior only to the Deed of Trust, as amended by the First
Amendment to the Deed of Trust.
"SECOND PLEDGE" shall mean that certain Pledge and Assignment of even
date herewith covering any and all deposit accounts now or hereafter held by
Borrower in favor of Agent Bank.
"SUBSIDIARY" shall mean, on the date in question, any Person of which an
aggregate of 50% or more of the stock of any class or classes (or equivalent
interests) is owned of record or beneficially, directly or indirectly, by
another Person and/or
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any of its Subsidiaries, if the holders of the stock of such class or classes
(or equivalent interests) (a) are ordinarily, in the absence of contingencies,
entitled to vote for the election of a majority of the directors (or individuals
performing similar functions) of such Person, even though the right so to vote
has been suspended by the happening of such a contingency, or (b) are entitled,
as such holders, to vote for the election of a majority of the directors (or
individuals performing similar functions) of such Person, whether or not the
right so to vote exists by reason of the happening of a contingency.
"TENANT LEASES" shall mean and collectively refer to all leases and
rental arrangements wherein Borrower is landlord or lessor for the lease or
rental of portions of the Real Property, a summary of which leases and rental
arrangements is marked Exhibit "F" attached hereto and incorporated herein by
reference. Borrower and Lenders agree and acknowledge that Exhibit "F" shall not
include a list of any residential lease or rental agreement; provided, however,
the fact that Borrower has not listed all residential leases and rental
agreements shall not impact or impair Lenders' security interest therein.
"TERM PERIOD" shall mean the period commencing on the Closing Date and
ending on the Maturity Date.
"YEAR 2000 COMPLIANT" shall mean, in regard to any entity, that all
software, hardware, firmware, equipment, goods or systems utilized by or
material to the business operations or financial condition of such entity, will
properly perform date sensitive functions before, during and after the year
2000.
Section 1.2 Interpretation and Construction. In this Loan
Agreement, unless the context otherwise requires:
(a) Articles and Sections mentioned by number only are the
respective Articles and Sections of this Loan Agreement as so numbered.
(b) Words importing a particular gender mean and include every
other gender, and words importing the singular number mean and include the
plural number and vice versa.
(c) Words importing persons mean and include firms, associations,
partnerships (including limited partnerships), societies, trusts, corporations
or other legal entities, including public or governmental bodies, as well as
natural persons.
(d) All times specified herein, unless otherwise specifically
referred, shall be the time in Reno, Nevada.
(e) Any headings preceding the texts of the several Articles and
Sections of this Loan Agreement, and any table of contents or marginal notes
appended to copies hereof, shall be
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solely for convenience of reference and shall not constitute a part of this Loan
Agreement, nor shall they affect its meaning, construction or effect.
(f) If any clause, provision or Section of this Loan Agreement
shall be ruled invalid or unenforceable by any court of competent jurisdiction,
such holding shall not invalidate or render unenforceable any of the remaining
provisions hereof.
(g) The terms "herein", "hereunder", "hereby", "hereto", "hereof"
and any similar terms as used in the Loan Agreement refer to this Loan
Agreement; the term "heretofore" means before the date of the execution of this
Loan Agreement; and the term "hereafter" means after the date of the execution
of this Loan Agreement.
(h) This Loan Agreement and all matters relating hereto shall be
governed by and construed and interpreted in accordance with the laws of the
State of Nevada.
(i) If any clause, provision or Section of this Loan Agreement
shall be determined to be apparently contrary to or conflicting with any other
clause, provision or Section of this Loan Agreement, then the clause, provision
or Section containing the more specific provisions shall control and govern with
respect to such apparent conflict. The parties hereto agree that each has
contributed to the drafting of this Loan Agreement and in all Loan Documents and
that the provisions herein contained shall not be construed against either
Borrower or Lenders as having been the person or persons responsible for the
preparation thereof.
(j) Except where a different standard is expressly indicated in
this Loan Agreement, all items requiring the consent or approval of Lenders or
Borrower shall be construed as providing that such consent or approval may not
be unreasonably withheld or delayed.
(k) All accounting terms used herein which are not otherwise
specifically defined shall be used in accordance with GAAP.
Section 1.3 No Other Meaning. Unless otherwise defined or the context
otherwise requires, terms for which meanings are provided in this Loan Agreement
shall have such meanings when used in each of the Loan Documents, notices and
other communication delivered from time to time in connection with this Loan
Agreement or any of the Loan Documents.
Section 1.4 No Other References. Unless otherwise specified, references
in this Loan Agreement and in each of the other Loan Documents to any Article or
Section are references to such Article or Section of this Loan Agreement or such
other of the Loan Documents, as the case may be, and unless otherwise
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specified, references in any Article, Section or definition to any clause or
references to such clause of such Article, Section or definition.
ARTICLE 2
---------
AMOUNT, TERMS AND SECURITY OF THE LOAN
--------------------------------------
Section 2.1 The Loan. Subject to the conditions and upon the terms
hereinafter set forth and in accordance with the terms and provisions of the
Note, Lenders severally agree in the proportions set forth on Exhibit "A"
hereto, to make the Loan. Lenders have advanced funds in the amount of the Loan.
The current outstanding principal balance of the Loan as of February 1, 1998 is
$10,975,000.00. In no event shall any Lender be liable to fund any amounts under
the Loan in excess of its respective Participation Interest. In no event shall
Borrower have the right to reborrow any amounts repaid or prepaid under the
Loan.
Section 2.2 Interest Calculation. Interest shall accrue under the Loan
at the rate, or rates, which are set forth by the Note.
Section 2.3 The Note, Interest Accrual and Repayment. The Loan shall be
evidenced by the Note and shall be payable to the order of Lenders. The amount
of each borrowing of the Loan shall be recorded on Agent Bank's internal data
control systems and each payment of principal and/or interest with respect to
the Loan or any portion thereon, when applied, shall be evidenced by entries
made by Agent Bank in Agent Bank's internal data control system showing the date
and amount of each payment of principal and interest with respect thereto. The
aggregate unpaid balance of principal and interest of the Note as set forth on
the most recent data control system printout of Agent Bank shall be rebuttably
presumptive evidence of the sums owing and unpaid on the Note. The Note shall
bear interest and be due and payable in the manner and at the times set forth
therein, the terms whereof are by this reference incorporated herein and made a
part hereof as though fully set forth.
Section 2.4 Security for the Loan. As security for the due and punctual
payment and performance of the Note and all of the other Loan Documents,
Borrower shall provide the Collateral and the Deed of Trust, the Second Deed of
Trust, the Assignment of Permits, Licenses and Contracts, the Assignment of
Leases, Rents and Revenues, the Assignment of Equipment Leases, Contracts and
Subleases, the Pledge, the Second Pledge and all of the other Loan Documents. As
additional security for the due and punctual payment and performance of the Note
and each of the terms, covenants, representations, warranties and provisions
herein contained, the Loan shall be guaranteed by Sands Regent pursuant to its
execution and delivery of the Guaranty.
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Section 2.5 Place and Manner of Payment. All amounts payable by Borrower
to Lenders hereunder or pursuant to the Note, shall be made on the date when
due, provided that if any payment falls due on a date which is not a Banking
Business Day, it shall be due on the next Banking Business Day in lawful money
of the United States of America and in immediately available funds. All such
amounts payable by Borrower shall be made to Agent Bank by wire transfer of
immediately available funds pursuant to the following wire instructions:
▇▇▇▇▇ Fargo Bank, N.A.
▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ABA ▇▇▇-▇▇▇-▇▇▇
Acct. ▇▇▇▇▇▇▇▇▇▇
Ref: WFBCORP/SYDIC/ZANTE, INC.
If such payment is received by Agent Bank prior to 11:00 a.m. Pacific time, and
is not solely for the account of Agent Bank, Agent Bank shall credit Borrower
with such payment on the day so received and shall disburse to the appropriate
Lenders on the same day such pro rata amounts of payments relating to the Loan
based on the respective proportions the amounts set forth on Exhibit "A" hereto
bear to the aggregate of such amounts set forth in Exhibit "A" hereto, in
immediately available funds. If such payment is received by Agent Bank after
12:00 o'clock noon, Agent Bank shall credit Borrower with such payment as of the
next Banking Business Day and disburse to the appropriate Lenders on the next
Banking Business Day such pro rata amounts of such payment relating to the Loan
based on the respective proportions the amounts set forth on Exhibit "A" hereto
bear to the aggregate of such amounts set forth in Exhibit "A" hereto, in
immediately available funds. Any payment on the Loan made by Borrower to
Agent Bank pursuant to the terms of this Loan Agreement or the Note for the
account of Lenders shall constitute payment to the appropriate Lenders.
Section 2.6 Fees.
(a) Borrower has paid the Loan Fee, in the amount of $100,000, to
Agent Bank for distribution to Lenders as set forth in the Agency Agreement in
consideration for the making of the Loan.
(b) On each anniversary of the recordation of the Deed of Trust
(including April 5, 1998 and April 5, 1999), Borrower shall pay an agency fee to
Agent Bank in the amount of $50,000, in consideration of Agent Bank's acting as
Agent Bank hereunder, which fee shall be retained by Agent Bank for its own
account (the "AGENCY FEE").
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Section 2.7 Late Charges and Default Rate.
(a) If any payment due under the Note is not paid within ten (10)
days following the date such payment is due, Borrower promises to pay a late
charge in the amount of one percent (1%) of the amount of such delinquent
payment and Agent Bank need not accept any late payment made unless it is
accompanied by such one percent (1%) late payment charge.
(b) If any payment due under the Note is not paid within ten (10)
days following the date such payment is due, the total of the unpaid balance of
the principal and the then accrued and unpaid interest owing under the Note
shall collectively and immediately, without any further written notice, commence
accruing interest at a rate equal to three percent (3%) over the Reference Rate
(the "DEFAULT RATE") until such time as all payments and additional interest are
paid.
(c) In the event of the occurrence of an Event of Default,
Borrower agrees to pay all costs of collection, including reasonable attorney's
fees incurred in connection therewith, in addition to and at the time of the
payment of such sum of money and/or the performance of such acts as may be
required to cure such Event of Default. In the event legal action is commenced
for the collection of any sums owing hereunder or under the terms of the Note
Borrower agrees that any judgment issued as a consequence of such action against
Borrower shall bear interest at a rate equal to three percent (3%) over the
Reference Rate until fully paid.
Section 2.8 Voluntary Prepayment. Borrower shall have the right, at any
time, and from time to time, but in no event more often than one (1) time during
any calendar month, to prepay any portion of the unpaid balance of principal
owing under the Note, in whole or in part. Each such prepayment shall be in the
minimum amount of $50,000.00 or additional multiples of $50,000.00, provided
that such limitation shall not apply to prepayments which are made: (i) pursuant
to Section 7.2 below; or (ii) in complete satisfaction of the unpaid principal
amount under the Note. Each prepayment shall be applied in each instance in the
inverse order of maturity of the scheduled principal payments of the Note. No
such prepayment or prepayments, when considered individually or collectively,
shall in any manner reduce or otherwise affect Borrower's obligation to make the
next regularly scheduled monthly payment of principal and/or interest under the
terms of the Note. If Borrower prepays the entire principal amount then
outstanding under the Note, such payment shall be accompanied by a payment equal
to the interest accrued thereon to the date of such prepayment and any other
amount then owing under the terms of the Note. Nothing herein shall be construed
to mean that this provision shall prohibit any Semi-Annual Payment Reduction (as
that phrase is defined in the Note).
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Section 2.9 Net Payments. All payments under this Loan Agreement and the
Note shall be made without set-off or counterclaim and in such amounts as may be
necessary in order that all such payments, after deduction or withholding for or
on account of any present or future taxes, levies, imposts, duties or other
charges of whatsoever nature imposed by the United States or any Governmental
Authority, other than any tax on or measured by the overall gross or net income
of a Lender pursuant to the income tax laws of the United States or any State,
or any jurisdiction where such Lender is organized, resident or doing business
(collectively, the "TAXES"), shall not be less than the amounts otherwise
specified to be paid under this Loan Agreement and the Note. A certificate as to
any additional amounts payable to a Lender under this Section submitted to
Borrower by such Lender shall show in reasonable detail an accounting of the
amount payable and the calculations used to determine in good faith such amount
and shall be conclusive absent manifest error. Any amounts payable by Borrower
under this Section with respect to past payments shall be due within twenty (20)
Banking Business Days following receipt by Borrower of such certificate from
Lenders; any such amounts payable with respect to future payments shall be due
concurrently with such future payments. With respect to each deduction or
withholding for or on account of any taxes, Borrower shall promptly furnish to
Lenders such certificates, receipts and other documents as may be required (in
the reasonable judgment of Lenders) to establish any tax credit to which Lenders
may be entitled. Without in any way affecting any of its rights under this
Section, each Lender agrees that, upon its becoming aware that any of the
present or future payments due it under this Loan Agreement are or will be
subject to deduction for taxes, it will notify Borrower in writing and each
Lender further agrees that it will use reasonable efforts not disadvantageous to
it (in its sole determination) in order to avoid or minimize, as the case may
be, the payment by Borrower of any additional amounts for Taxes pursuant to this
Section. Each Lender represents, to the best of its knowledge, that as of the
Closing Date no such additional taxes or charges are being imposed by the United
States or any Governmental Authority and that no such deductions or withholdings
are required. Each Lender organized outside of the United States shall, within
fifteen (15) days after it becomes a Lender hereunder, provide Borrower with a
duly completed IRS Form 4224 or 1001, as applicable (or successor forms)
properly completed and claiming a complete exemption from withholding or
deduction for or on account of Taxes imposed by the United States. Each such
Lender further agrees to deliver to Borrower on or before the date such form
expires, or after the occurrence of any event requiring any change in the most
recent form delivered by it, any amendments or supplements or additional forms
as may be reasonably requested by Borrower evidencing such exemption, unless an
event has occurred prior to the date on which such documentation is to be
delivered such that, and such Lender notifies Borrower that, it is not entitled
to receive payments without deduction or withholding on account of Taxes imposed
by the United States.
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Section 2.10 Increased Costs. If after the date hereof the adoption of,
or any change in, any applicable law, rule or regulation (including without
limitation Regulation D of the Board of Governors of the Federal Reserve System
and any successor thereto), or any change in the interpretation or
administration thereof by any Governmental Authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by any Lender with any request or directive (whether or not having the force of
law) of any such Governmental Authority, central bank or comparable agency:
(a) With respect to the Loan, shall impose, modify or deem
applicable any reserve imposed by the Board of Governors of the Federal Reserve
System special deposit, capitalization or similar requirement against assets of,
deposits with or for the account of, or credit extended by, any Lender; or
(b) Shall impose on any Lender any other condition affecting the
Loan, the Note or such Lender's obligation to make the Loan;
and the result of any of the foregoing is to increase the cost to (or in the
case of Regulation D or reserve requirements referred to above or a successor
thereto, to impose a cost on) such Lender of making or maintaining the Loan, or
to reduce the rate of return on the Loan or the amount of any sum received or
receivable by such Lender under the Note, then within ten (10) days after demand
by such Lender (which demand shall be accompanied by a certificate setting forth
in reasonable detail the basis of such demand), Borrower shall pay directly to
such Lender such additional amount or amounts as will compensate such Lender for
such increased cost (or in the case of Regulation D or reserve requirements
referred to above or a successor thereto, such costs which may be imposed upon
such Lender) or such reduction in the rate of return or of any sum received or
receivable under the Note. Each Lender agrees to use its best efforts to
minimize such increased or imposed costs or such reduction.
Section 2.11 Borrower's Right to Remove Affected Bank. If: (i) Borrower
receives a notice from any Lender pursuant to this Section, or Borrower is
required to withhold or deduct any Taxes on behalf of any Lender pursuant to
Section 2.9 (each such Lender, an "AFFECTED BANK"); and (ii) as a result of such
notice or withholding obligation Borrower is obligated to pay amounts to or on
behalf of such Affected Bank that are materially greater than such Lender's
Percentage Interest of all payments by Borrower to Lenders (including any other
Affected Banks) hereunder, then Borrower may, within sixty (60) days after the
date on which such notice is given or such withholding obligation arises, so
long as such notice or withholding obligation shall not have been terminated,
and so long as no Event of Default, or event or condition which, with the giving
of notice or the
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passage of time or both, would be an Event of Default hereunder, shall have
occurred and be continuing, elect to terminate such Affected Bank as a party to
this Loan Agreement; provided, that concurrently with such termination: (i)
Borrower shall pay to (or on behalf of, as applicable) such Affected Bank all
interest and fees and other amounts then due and owing to (or on behalf of) such
Affected Bank through such date of termination; (ii) another financial
institution reasonably satisfactory to Borrower and Agent Bank shall agree, as
of such date, to purchase at par and for cash the Participation Interest of the
Affected Bank in the Loans pursuant to an assignment and acceptance agreement
and to become a Lender for all purposes under this Loan Agreement and to assume
all obligations (including all outstanding Loans) of such Affected Bank to be
terminated as of such date; and (iii) all documents and supporting materials
reasonably required by Agent Bank to evidence the substitution of such Affected
Bank shall have been received and approved by Agent Bank as of such date, such
approval not to be unreasonably withheld.
ARTICLE 3
---------
CONDITIONS PRECEDENT
--------------------
Lenders' obligation to enter into this Loan Agreement is subject to
Agent Bank having received prior to or simultaneously with the execution and
delivery of this Loan Agreement, in each case in a form and substance reasonably
satisfactory to Lenders, the following:
Section 3.1 Promissory Note. The Amended and Restated Term Promissory
Note duly executed by Borrower.
Section 3.2 Loan Agreement. This Loan Agreement duly executed by
Borrower, Sands Regent and Lenders.
Section 3.3 Guaranty. The Amended and Restated Guaranty of Loan duly
executed by Sands Regent.
Section 3.4 First Amendment to Deed of Trust. The First Amendment to
Deed of Trust duly executed by Borrower and Lender and acknowledged and recorded
on the Closing Date with the County Recorder of Washoe County, Nevada.
Section 3.5 Additional Deed of Trust. The Additional Deed of Trust duly
executed by Borrower and acknowledged and recorded on the Closing Date with the
County Recorder of Washoe County, Nevada.
Section 3.6 Second Deed of Trust. The Second Deed of Trust duly executed
by Borrower and acknowledged in favor of Agent Bank and recorded on the Closing
Date with the County Recorder of Washoe County, Nevada.
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Section 3.7 Environmental Certificate. The Amended and Restated
Certificate and Indemnification Regarding Hazardous Substances duly executed by
Borrower.
Section 3.8 Pledge. The Pledge duly executed by Borrower in favor of
Lenders.
Section 3.9 Second Pledge. The Second Pledge duly executed by Borrower
in favor of Agent Bank.
Section 3.10 Assignments. The First Amendment to (i) Assignment of
Equipment Leases, Contracts and Subleases, (ii) Assignment of Permits, Licenses
and Contracts and (iii) Assignment of Leases, Rents and Revenues ("LEASES
ASSIGNMENT"), duly executed by Borrower and in the case of the Leases
Assignment, acknowledged with the Leases Assignment recorded on the Closing Date
with the County Recorder of Washoe County, Nevada.
Section 3.11 Financing Statements/Fixture Filings. Appropriate financing
statements and fixture filings as reasonably determined by Lenders duly executed
by Borrower and either recorded with the County Recorder of Washoe County,
Nevada or filed with the Nevada Secretary of State, as appropriate.
Section 3.12 Estoppel Certificates. At Lender's option, Estoppel
Certificates from Roma Franchise Corporation relating to the ▇▇▇▇ ▇▇▇▇'▇
Restaurant operating at the Premises.
Section 3.13 Third Party Consents. Upon Lender's reasonable request,
consents from any third parties deemed necessary by Lenders in order to perfect
assignments and security interests obtained by Lenders in connection with the
Loan.
Section 3.14 Trademarks. Assignment of all trademarks, tradenames and
service marks held by Borrower or its affiliates or used in connection with the
Premises or the Hotel/Casino Operation, in a form and containing terms and
conditions acceptable to Lenders, in their sole and absolute discretion.
Section 3.15 Corporate Resolution and Certificate of Good Standing.
Lenders shall have received the following with respect to each of Borrower and
Sands Regent: (i) a Certificate of Good Standing issued no earlier than five (5)
Banking Business Days prior to the Closing Date by the Secretary of State for
the State of Nevada; and (ii) original Certificate of Corporate Resolution and
Certificate of Incumbency executed by the Secretary of the applicable
corporation and attested to by the President, Vice President, or Treasurer of
such corporation authorizing such corporation to enter into all documents and
agreements to be executed by it pursuant to this Loan Agreement and further
authorizing and empowering the officer or officers who will execute such
documents and agreements with the authority and
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power to execute such documents and agreements on behalf of such corporation.
Section 3.16 Opinion of Counsel. An opinion from counsel(s) of Borrower
and Sands Regent dated as of the Closing Date, to the effect that: (i) Borrower
has the full power and requisite corporate or other authority necessary for the
execution, delivery and performance of its obligations under the Loan Documents
and any other document, agreement, certificate or instrument executed by it in
connection with the Loan; (ii) Sands Regent has the full power and requisite
corporate or other authority necessary for the execution, delivery and
performance of its obligations under the Guaranty and any other document,
agreement, certificate or instrument executed by it in connection with the Loan;
(iii) each Loan Document to which Borrower or Sands Regent is a party and the
Environmental Certificate is valid and binding upon Borrower or Sands Regent, as
the case may be, and enforceable in accordance with its terms except as such
enforcement may be limited by bankruptcy, insolvency reorganization, moratorium
and other laws of general application relating to or affecting the enforcement
of creditors' rights and the exercise of judicial discretion in accordance with
general principles of equity (regardless of whether enforcement is considered in
a proceeding in equity or at law); (iv) Borrower has duly authorized the taking
of any and all action necessary to carry out and give effect to the transactions
contemplated to be performed on its part by this Loan Agreement, the Note, the
Deed of Trust, the Financing Statements, the other Loan Documents, the
Environmental Certificate and any other document, agreement, certificate and
instrument executed by it in connection with the Loan; (v) Sands Regent has duly
authorized the taking of any and all action necessary to carry out and give
effect to the transactions contemplated to be performed on its part by the
Guaranty; and (vi) the transactions contemplated by the Loan Agreement will not
violate the usury laws of the State of Nevada.
Section 3.17 Title Insurance Policy. Endorsements to the Existing Title
Insurance Policy issued by the Existing Title Insurance Company, as determined
by Lenders, in their sole and absolute discretion, and a new title insurance
policy insuring the Additional Deed of Trust and the Second Deed of Trust
containing coverage and in an amount determined by Agent Bank, in its sole and
absolute discretion.
Section 3.18 Appraisal. Receipt by Lenders of the Appraisal which sets
forth a market value in an amount acceptable to Lenders for the Premises and
Hotel/Casino Operation and is acceptable to Lenders on the basis of each of
their respective policies for acceptance of appraisals on real property
collateral, which Appraisal Lenders have received and approved.
Section 3.19 Payment of Taxes. Affidavits, certificates, paid bills or
other assurance, evidencing that all past and current real and personal property
taxes and assessments which
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are presently due and payable applicable to the Real Property have been paid in
full.
Section 3.20 Insurance. Certified copies of the policies, together with
original certificates and loss-payable endorsements in favor of Lenders, of
insurance required by Section 5.6 hereof, accompanied by affidavits,
certificates, paid bills or other documents evidencing that all premium payments
are current.
Section 3.21 Reimbursement for Expenses and Fees. Reimbursement of Agent
Bank by Borrower for all reasonable costs and out-of-pocket expenses incurred by
Agent Bank in connection with the Loan, including, but not limited to, escrow
charges, title insurance premiums, recording fees, attorney's fees (which
attorneys' fees shall include Lenders' counsel fees and Nevada counsel fees
which amount shall not exceed $55,000 (exclusive of costs)), and all other like
expenses remaining unpaid as of the Closing Date. The legal fees of $55,000 is
allocated as follows: $12,500 in fees (exclusive of costs) for the period
prior to February 1, 1998 and $42,500 in fees (exclusive of costs) for the
period following February 1, 1998 through the Closing Date.
Section 3.22 Tenant Leases, Equipment Leases and Contracts. Copies of
all of the Tenant Leases, Equipment Leases and Contracts duly executed by the
parties thereto, with an assignment thereof.
Section 3.23 Hazardous Material Report. A recent environmental audit
report, prepared and certified by an environmental auditor acceptable to
Lenders, certifying that no toxic or hazardous substance, waste, pollutant or
contaminant (as those terms are defined or described in federal or Nevada state
laws) are presently stored or contained on, in or under any portion of the Real
Property or, in the alternative, recent environmental questionnaires completed
by Borrower in a form and containing information acceptable to Lenders.
Section 3.24 Financial Statements. Unaudited or audited financial
statements of the Sands Group dated as of the most recently ended Fiscal Quarter
and/or Fiscal Year, together with a certificate from the President, Vice
President or Treasurer of Borrower which shall state that the financial
condition of the Sands Group has not materially adversely changed since the date
of such financial statements.
Section 3.25 Certain Statements. On and as of the Closing Date the
following statements shall be true and correct:
(a) The representations and warranties contained in Article 4
hereof are true and correct in all material respects;
(b) The representations and certifications contained in the
Environmental Certificate are true and correct; and
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(c) No event has occurred or would occur and is continuing which
constitutes an Event of Default hereunder or would constitute an Event of
Default hereunder but for the requirement that notice be given or time elapsed,
or both.
Section 3.26 Agency Fee. Agent shall have received the Agency Fee which
was due and payable in April, 1997.
Section 3.27 ▇▇▇▇▇ ▇▇▇▇▇▇ Account. Agent shall have received evidence
satisfactory to Agent that a certain account held at ▇▇▇▇▇ ▇▇▇▇▇▇ and identified
as Account No. ▇▇▇-▇▇▇▇▇-▇▇ has been closed and the funds held therein have been
transferred to one of the Accounts.
Section 3.28 Additional Documents. Such additional documents,
affidavits, certificates and opinions as Lenders may reasonably require to
insure compliance with this Loan Agreement.
ARTICLE 4
---------
REPRESENTATIONS AND WARRANTIES
------------------------------
To induce Lenders to enter into this Loan Agreement and to make the Loan
hereunder, Borrower makes the following representations and warranties which
shall be deemed to be continuing representations and warranties so long as any
amount hereunder shall be available for borrowing and until payment in full of
the Note:
Section 4.1 Organization; Power and Authorization. Borrower and Sands
Regent: (i) are each corporations duly organized and validly existing under the
laws of the State of Nevada; (ii) are each authorized to do business in the
State of Nevada; (iii) each have all requisite power, authority and legal right
to execute and deliver any document, agreement or certificate to which it is a
party or by which it is bound in connection with the Loan to consummate the
transactions and perform its obligations hereunder and thereunder, and to own
its properties and assets and to carry on and conduct its business as presently
conducted or proposed to be conducted; and (iv) have each taken all necessary
action to authorize the execution, delivery and performance of this Loan
Agreement and/or the other Loan Documents to which they are a party or by which
they are bound and to consummate the transactions contemplated hereunder and
thereunder.
Section 4.2 No Conflict With Violation of or Default Under Laws or Other
Agreements. Neither the execution and delivery of this Loan Agreement, the Note,
or any other Loan Document, or any other agreement, certificate or instrument to
which Borrower or Sands Regent is a party or by which Borrower or Sands Regent
is bound in connection with the Loan, nor the consummation of the
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transactions contemplated hereunder or thereunder, or the compliance with or
performance of the terms and conditions herein or therein, is prevented by,
limited by, conflicts in any material respect with, or will result in a material
breach or violation of, or a material default (with due notice or lapse of time
or both) under, or the creation or imposition of any material lien, charge, or
encumbrance of any nature whatsoever upon the property or assets of either
Borrower or Sands Regent by virtue of, the terms, conditions or provisions of:
(i) any indenture, evidence of indebtedness, loan or financing agreement, or
other agreement or instrument of whatever nature to which either of them is a
party or by which either of them is bound; or (ii) any provision of any existing
law, rule, regulation, order, writ, injunction or decree of any court or
Governmental Authority to which either them is subject.
Section 4.3 Litigation. To the best knowledge of Borrower, there is no
action, suit, proceeding, inquiry, hearing or investigation pending or
threatened, in any court of law or in equity, or before any Governmental
Authority, wherein an unfavorable determination, decision, decree, ruling or
finding would: (i) result in any material adverse change in the Hotel/Casino
Operation or in Borrower's or Sands Regent's business, financial condition,
properties or operations; (ii) result in any material adverse change in the
business financial condition, properties or operations of Sands Regent; (iii)
materially adversely affect the transactions contemplated by this Loan Agreement
and the other Loan Documents and Borrower's or Sands Regent's ability to perform
their respective obligations hereunder and thereunder; or (iv) materially
adversely affect the validity or enforceability of this Loan Agreement and the
other Loan Documents. To the best knowledge of Borrower, it is not in violation
of or default with respect to any order, writ, injunction, decree or demand of
any such court or Governmental Authority.
Section 4.4 Agreements Legal Binding Valid and Enforceable. This Loan
Agreement, the Note, the Deed of Trust, and all other Loan Documents when
executed and delivered by Borrower and/or Sands Regent (as applicable), in
connection with the Loan will constitute legal, valid and binding obligations of
Borrower and/or Sands Regent, enforceable against Borrower and/or Sands Regent
in accordance with their respective terms, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization, moratorium and other laws of
general application relating to or affecting the enforcement of creditors'
rights and the exercise of judicial discretion in accordance with general
principles of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law).
Section 4.5 Information and Financial Data Accurate; Financial
Statements; No Adverse Change. All information and financial and other data
previously furnished by Borrower in the financial statements referred to in
Section 3.24 hereof is true,
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correct and complete as of the date thereof, and there has been no material
adverse change with respect thereto since the date thereof. No information has
been omitted which would make the information previously furnished in such
financial statements to Lenders misleading or incorrect in any material respect.
Any and all financial statements heretofore furnished to Lenders by Borrower,
pursuant to Section 3.24 hereof: (i) present fairly the financial position of
the entity to which they relate as at their respective dates and the results of
operations and changes in financial position for the periods to which they
apply; and (ii) have been prepared in conformity with GAAP applied on a
consistent basis throughout the periods involved. Since the date of the
financial statements referred to in this Section, there has been no material
adverse change in the financial condition, assets, liabilities, business or
operations of Borrower.
Section 4.6 Governmental Approvals. All timely consents, approvals,
orders or authorizations of, or registrations, declarations, notices or filings
with any Governmental Authority which may be required in connection with the
valid execution and delivery of this Loan Agreement and the other Loan Documents
by Borrower and the carry-out or performance of any of the transactions required
or contemplated hereunder, or thereunder, by Borrower, have been obtained or
accomplished and are in full force and effect, or can be obtained by Borrower.
Section 4.7 Payment of Taxes. Borrower has duly filed or caused to be
filed all federal, state and local tax reports and returns which are required to
be filed by it and has paid or made provisions for the payment of, all taxes,
assessments, fees and other governmental charges which have become due pursuant
to said returns or otherwise pursuant to any assessment received by Borrower
except such taxes, if any, as are being contested in good faith by Borrower by
appropriate proceedings and for which Borrower has maintained adequate reserves
in accordance with GAAP.
Section 4.8 Title to Properties. Borrower has or as of the Closing Date
will have good and marketable title to the Real Property and all of its
properties and assets reflected in the financial statements referred to in
Section 3.24 hereof as owned by it (except those properties and assets disposed
of since the date of said financial statements in the ordinary course of
business or those properties and assets which are no longer used or useful in
the conduct of its business). None of the Collateral is subject to any liens,
encumbrances or restrictions other than Permitted Encumbrances. As of the date
of the financial statements referred to in Section 3.24, none of the property of
Borrower, which is not Collateral, is subject to any material liens,
encumbrances or restrictions other than those liens, encumbrances and
restrictions which are reflected in such financial statements and the notes
thereto.
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Section 4.9 No Untrue Statements. All statements, representations and
warranties made by Borrower concerning either Borrower or Sands Regent in this
Loan Agreement, any other Loan Document and any other agreement, document,
certificate or instrument previously furnished or to be furnished by Borrower to
Lenders under this Loan Agreement: (i) are and shall be true, correct and
complete in all material respects, at the time they were made and on and as of
the Closing Date; (ii) do not and shall not contain any untrue statement of a
material fact; and (iii) do not and shall not omit to state a material fact
necessary in order to make the information contained herein or therein not
misleading or incomplete. Borrower understands that all such statements,
representations and warranties shall be deemed to have been relied upon by
Lenders as a material inducement to make the Loan.
Section 4.10 Brokerage Commissions. Except as previously disclosed in
writing to Lenders, no Person, other than a Lender, or a Person claiming through
a Lender, is entitled to receive any brokerage commission, finder's fee or
similar fee or payment in connection with the consummation of the transactions
contemplated by this Loan Agreement. No brokerage or other fee, commission or
compensation is to be paid by Lenders with respect to the transactions
contemplated hereby, and Borrower agrees to indemnify Lenders against any such
claims for brokerage fees or commissions and to pay all expenses including,
without limitation, reasonable attorney's fees incurred by Lenders in connection
with the defense of any action or proceeding brought to collect any such
brokerage fees or commissions.
Section 4.11 No Defaults. Borrower is not in violation of or in default
with respect to any applicable laws and/or regulations, which violation or
default materially and adversely affects the Real Property or the business,
financial condition, property or operations of Borrower or the Hotel/Casino
Operation. Borrower is not in violation or default (nor is there any waiver in
effect which, if not in effect, would result in a violation or default) in any
material and adverse respect under any indenture, evidence of indebtedness, loan
or financing agreement or other agreement or instrument of whatever nature to
which it is a party or by which it is bound (except for any defaults previously
brought to Lenders' attention in writing, for which Borrower has received a
waiver from Lenders), a default under which materially adversely affect the Real
Property or the business, financial condition, properties or operations of
Borrower or of the Hotel/Casino Operation.
Section 4.12 Employment Retirement Income Security Act of 1974. No
Reportable Event has occurred and is continuing with respect to any Plans under
ERISA, that gives rise to liabilities that materially adversely affect the
financial condition or operations of Borrower or Sands Regent.
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Section 4.13 Policies of Insurance. Each of the copies of the Policies
of Insurance relating to the Real Property, which have been delivered to Lenders
by Borrower: (i) is a true, correct and complete copy of the respective original
thereof as in effect on the date hereof, and no amendments or modifications of
any of said documents or instruments not included in such copies have been made;
and (ii) has not been terminated and is in full force and effect. Borrower is
not in default in the observance or performance of its obligations under said
policies, and Borrower has done all things required to be done as of the date of
this Loan Agreement to keep unimpaired its rights thereunder.
Section 4.14 Equipment Leases and Contracts. A true and complete list of
all executed Equipment Leases and Contracts pertaining to the Real Property, or
any portion thereof, in existence as of the Closing Date, is set forth in
Exhibit "D" attached hereto.
Section 4.15 Tenant Leases. A true and complete list of all executed
Tenant Leases pertaining to the Real Property, or any portion thereof, in
existence as of the Closing Date, is set forth in Exhibit "F" attached hereto.
Section 4.16 Gaming Licenses. To the best knowledge of Borrower, all
gaming licenses required to be held by Borrower are current and in good standing
and Borrower presently holds all gaming licenses necessary for the Hotel/Casino
Operation.
Section 4.17 Environmental Certificate. The representations and
certifications contained in the Environmental Certificate are true and correct.
Section 4.18 Existing Patrician Investment. The amount of the Existing
Patrician Investment is at least $6,800,000.00.
Section 4.19 Governmental Regulations. Borrower is not subject to
regulation under the Investment Company Act of 1940, the Federal Power Act, the
Public Utility Holding Company Act of 1935, the Interstate Commerce Act or any
federal or state statute or regulation limiting its ability to incur
indebtedness for money borrowed.
Section 4.20 Employee Benefit Plans. Other than Borrower's existing
401(k) employer noncontributing retirement plan, Borrower neither maintains nor
participates in any pension, retirement, profit-sharing or similar employee
benefit plan that is subject to any provision of the Employee Retirement Income
Security Act of 1974, as amended from time to time.
Section 4.21 Securities Activities. Borrower is not engaged principally
or significantly in the business of extending credit for the purpose of
purchasing or carrying any "Margin Stock" (as defined in Regulation U of the
Board of Governors of
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the Federal Reserve System in effect from time to time) and not more than
twenty-five percent (25%) of the value of Borrower's assets consists of such
Margin Stock. No part of the proceeds of the Loan will be used to purchase or
carry any Margin Stock or for any other purpose that violates the provisions of
Regulations U or X of the Board of Governors of the Federal Reserve System.
Section 4.22 Management Agreement. No third party management agreement
has been executed by Borrower or otherwise exists affecting the Real Property or
the Hotel/Casino Operation.
Section 4.23 Other Agreements. No other material agreements, contracts
or understandings exist with respect to the Real Property other than as
disclosed in the list of agreements set forth in the exhibits attached to this
Agreement.
Section 4.24 Accounts. Borrower holds no other accounts of any kind or
nature other than the Accounts identified in Exhibit "H" attached hereto.
Borrower is the owner and has possession and control of the Accounts. The
Accounts are genuine, free from liens, adverse claims, set-offs, defaults,
prepayments, defenses or conditions precedent of any kind or character, other
than the rights of setoff provided to Lenders under the Loan Documents and other
than the right of setoff in favor of Prudential Security in connection with
Account No. ORV- 952251-28 held at Prudential Security. No financing statement
covering any of the Accounts is on file in any public office, and Borrower has
not allowed any party to perfect a security interest in any Account by control
or otherwise.
ARTICLE 5
---------
COVENANTS OF BORROWER
---------------------
To induce Lenders to enter into this Loan Agreement, Borrower covenants
to Lenders as follows:
Section 5.1 Permits; Licenses and Legal Requirements. Borrower shall
comply in all material respects with and keep in full force and effect, as and
when required, all permits, licenses and approvals obtained from any
Governmental Authorities which are required for the continued operation and use
of the Premises as a first class hotel/casino facility. Borrower shall comply in
all material respects with all applicable material existing and future laws,
rules, regulations, orders, ordinances and requirements of all Governmental
Authorities, and with all recorded restrictions affecting the Real Property.
Section 5.2 No Change in Character of Business. At all times throughout
the term of the Loan: (i) the Real Property shall be operated by Borrower; and
(ii) Borrower shall not effect a material change in the nature and character of
its business as presently conducted and as presently contemplated.
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Section 5.3 Preservation and Maintenance of Properties and Assets. To
the extent permitted by Sections 5.14 and 5.15, at all times throughout the term
of the Loan: (i) Borrower shall operate, maintain and preserve all material
rights, privileges, franchises, licenses, gaming licenses and other properties
and assets necessary to conduct its business, in accordance with all applicable
governmental laws, ordinances, approvals, rules and regulations and
requirements, including, but not limited to, zoning, sanitary, pollution,
building, environmental and safety laws and ordinances, rules and regulations
promulgated thereunder; and (ii) Borrower shall not remove, demolish, materially
alter, discontinue the use of, sell, transfer, assign, hypothecate or otherwise
dispose of to any Person, any part of its properties and assets necessary for
the continuance of its Hotel/Casino Operation, as presently conducted and as
presently contemplated, other than in the normal course of Borrower's business.
Borrower shall not allow any divestment of Borrower's title in a material
portion of the Collateral, nor shall Borrower allow any involuntary divestment
of Borrower's title in a material portion of the Collateral, unless the value of
such divestment is covered by insurance or by governmental reimbursement.
Section 5.4 Repair of Properties and Assets. To the extent permitted by
Sections 5.14 and 5.15, at all times throughout the term of the Loan, Borrower
shall, at its own cost and expense: (i) maintain, preserve and keep in a manner
consistent with hotel and gaming casino operating practices applicable to a
hotel/casino operation operating in the Reno area, its assets and properties
which are utilized in its Hotel/Casino Operation, including, but not limited to,
the Collateral and all FF&E leased by Borrower in good and substantial repair,
working order and condition, ordinary wear and tear excepted; (ii) from time to
time, make or cause to be made, all necessary and proper repairs, replacements,
renewals, improvements and betterments thereto; and (iii) from time to time,
make such substitutions, additions, modifications and improvements as may be
necessary but so as to not impair the structural integrity and economic value of
said assets and properties. All alterations, replacements, renewals, or
additions made pursuant to this Section shall become and constitute a part of
said assets and property and subject, inter alia, to the provisions of Section
5.3 and subject to the lien of the Deed of Trust and Financing Statements, to
the extent set forth therein.
Section 5.5 Financial Statements: Reports and Books and Records.
(a) At all times throughout the term of the Loan, Borrower and
Sands Regent shall each keep and maintain complete and accurate books and
records in accordance with GAAP, consistently applied. Borrower and Sands Regent
shall each permit Lenders and any authorized representatives of Lenders to have
reasonable access to and to inspect, examine and make copies
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of the books and records, any and all accounts, data and other documents of
Borrower and Sands Regent at all reasonable times upon the giving of reasonable
notice of such intent. In addition: (i) in the event that any Event of Default,
or an event which upon the giving of notice or the passage of time would
constitute an Event of Default occurs; or (ii) in the event of any material
litigation or a material adverse change occurs in the financial condition of
either Borrower or Sands Regent, then in either or both of such events Borrower
and/or Sands Regent shall promptly notify Lenders of such occurrence.
(b) Company prepared unaudited quarterly financial statements of
Borrower and company prepared unaudited quarterly financial statements of Sands
Regent, each including a Balance Sheet and a Statement of Profit and Loss, shall
be submitted to Lenders within forty-five (45) days after the end of each Fiscal
Quarter (collectively the "QUARTERLY FINANCIAL STATEMENTS"). Additionally, the
Quarterly Financial Statements shall be in such a format that they can readily
be reconciled to the Annual Financial Statements (which are referred to below)
for the most recently completed Fiscal Year. Annual audited financial statements
of the Sands Regent, prepared on a consolidated basis, and annual audited
financial statements of Borrower, each including a Balance Sheet and a Statement
of Profit and Loss (collectively the "ANNUAL FINANCIAL STATEMENTS") shall be
submitted by Borrower to Lenders within 120 days of the end of each Fiscal Year,
which Annual Financial Statements shall be certified with an unqualified opinion
by Deloitte & Touche or any other firm of independent certified public
accountants which are first approved by Lenders, together with a copy of the
auditor's letter to management accompanying such reports, if any. Concurrently
with the submission of the Annual Financial Statements such independent
certified public accountants shall additionally furnish to Lenders a Compliance
Certificate, in the form described hereinbelow, certifying that such independent
certified public accountant has no actual knowledge of any Event of Default or
event which with the giving of notice or the passage of time, or both, would
constitute an Event of Default. Within forty-five (45) days after the end of
each Fiscal Quarter, Borrower shall furnish Lenders with a Compliance
Certificate completed and signed by: (i) the Chief Financial Officer of Borrower
declaring whether or not Borrower is in full compliance with all terms,
provisions and covenants required of Borrower in this Loan Agreement; and (ii)
the Chief Financial Officer of Sands Regent declaring whether or not Sands
Regent is in full compliance with all terms, provisions and covenants required
of Sands Regent in this Loan Agreement. A copy of such Compliance Certificate is
marked Exhibit "E", affixed hereto and by this reference incorporated herein and
made a part hereof.
(c) Throughout the term of the Loan, Borrower and/or Sands Regent
shall furnish to Lenders any financial information or other information bearing
on the financial status of the Loan which is reasonably requested by Lenders
through Agent Bank.
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(d) Internally prepared unaudited quarterly financial statements
of the Patrician Joint Venture, including a Balance Sheet and a Statement of
Profit and Loss, shall be submitted to Lenders within sixty (60) days after the
end of each fiscal quarter of the Patrician Joint Venture and annual audited
financial statements of the Patrician Joint Venture, also including a Balance
Sheet and a Statement of Profit and Loss shall be submitted to Lenders within
one hundred twenty (120) days after the end of each fiscal year of the Patrician
Joint Venture, which annual financial statements shall be certified with an
unqualified opinion by a national accounting firm which is commonly referred to
as a "Big Six Accounting Firm" or any other firm of independent certified public
accountants which are first approved by Lenders.
Section 5.6 Insurance. Borrower shall obtain, or cause to be obtained,
and shall maintain or cause to be maintained, at all times throughout the term
of the Loan, at its own cost and expense, and shall deposit with Lenders on or
before the Closing Date, policies or certified copies of policies of fire,
hazard insurance with extended coverage, reasonably acceptable to Lenders,
issued by a company or companies authorized to issue such insurance within the
State of Nevada, insuring all buildings, improvements and contents on the Real
Property in an amount equal to the maximum full insurable value of such
buildings, improvements, furnishings, fixtures and equipment with property
damage, public liability, and such other insurance coverage as Lenders may
reasonably require. Mud and flood insurance shall be obtained to the full extent
if it is required by applicable banking regulations for the insured Real
Property. All policies shall provide that the insurer shall notify Lenders in
writing not less than thirty (30) days prior to the cancellation of any such
policy and afford Lenders the opportunity to cure any default as a result of
which the policy is to be canceled. The property damage and public liability
insurance policies shall name Lenders as additional insureds and shall contain
minimum limits of coverage reasonably acceptable to Lenders. Certified copies of
policies, or certificates thereof, shall be delivered to and held by Lenders and
shall contain a Mortgagee's endorsement naming Lenders as additional loss
payees.
Section 5.7 Taxes. Throughout the term of the Loan, Borrower shall
prepare and timely file all federal, state and local tax returns required to be
filed by it, and Borrower shall promptly pay and discharge when due all taxes,
assessments and other governmental charges or levies imposed upon it, or in
respect of any of its properties and assets except such taxes, if any, as are
being contested in good faith by Borrower as provided in Section 4.7 herein.
Section 5.8 Permitted Encumbrances Only. At all times throughout the
term of the Loan, Borrower shall not create, incur, assume or suffer to exist
any mortgage, deed of trust, pledge, lien, security interest, encumbrance,
attachment, levy,
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distraint, or other judicial process and burdens of every kind and nature except
the Permitted Encumbrances on or with respect to the Collateral and with respect
to matters described in Section 5.7. However, with respect to all tax lien
contests and all other liens involving amounts in excess of $100,000 in the
aggregate, Borrower shall give written notice thereof to Agent Bank promptly
following Borrower's discovery thereof.
Section 5.9 Advances. At any time during the term of the Loan, if
Borrower should fail: (i) to perform or observe; or (ii) to cause to be
performed or observed, any covenant or obligation of Borrower under this Loan
Agreement or any of the other Loan Documents, then Lenders, upon the giving of
reasonable notice, may (but shall be under no obligation to) take such steps as
are necessary to remedy any such non-performance or non-observance and provide
for payment thereof. All amounts advanced by Lenders pursuant to this Section
shall become an additional obligation of Borrower to Lenders secured by the Deed
of Trust and other Loan Documents and shall become due and payable by Borrower
on the next interest payment date after Borrower receives notice of the amount,
together with interest thereon at a rate per annum equal to the Default Rate
(such interest to be calculated from the date of such advancement to the date of
payment thereof by Borrower).
Section 5.10 Further Assurances. Borrower will do, execute, acknowledge
and deliver, or cause to be done, executed, acknowledged and delivered, such
amendments or supplements hereto or to any of the Loan Documents or the
Environmental Certificate and such further documents, instruments and transfers
as Lenders may require for the curing of any defect in the execution or
acknowledgement hereof or in any of the Loan Documents or the Environmental
Certificate, or in the description of the Real Property or other Collateral or
for the proper evidencing of giving notice of each lien or security interest
securing repayment of the Loan. Further, upon the execution and delivery of the
Deed of Trust, each of the other Loan Documents and the Environmental
Certificate and thereafter, from time to time, Borrower shall fully cooperate in
causing the Deed of Trust, each of the other Loan Documents and the
Environmental Certificate and each amendment and supplement thereto to be filed,
registered and recorded and to be refiled, re-registered and re-recorded in such
manner and in such places as may be required by Lenders, in order to publish
notice of and fully protect the liens of the Deed of Trust, the other Loan
Documents and the Environmental Certificate and to protect or continue to
perfect the security interests created by the Deed of Trust and other Loan
Documents in the Real Property and Collateral and to perform or cause to be
performed from time to time any other actions required by law and execute or
cause to be executed any and all instruments of further assurance that may be
necessary for such publication, perfection, continuation and protection.
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Section 5.11 Indemnification. Borrower agrees to and does hereby
indemnify, protect, defend and save harmless each Lender and their respective
trustees, officers, employees, agents, attorneys and shareholders from and
against any and all losses, damages, expenses or liabilities of any kind or
nature from any suits, claims, or demand, including reasonable counsel fees
incurred in investigating or defending such claim, suffered by any of them and
caused by, relating to, arising out of, resulting from, or in any way connected
with this Loan Agreement and the transactions contemplated herein, unless caused
by: (i) the gross negligence or intentional misconduct of such Lender, its
officers, agents, and employees; or (ii) the material breach of this Loan
Agreement by such Lender. In case any action shall be brought against a Lender
based upon any of the above and in respect of which indemnity may be sought
against Borrower, such Lender shall promptly notify Borrower in writing, and
Borrower shall assume the defense thereof, including the employment of counsel
selected by Borrower and reasonably satisfactory to such Lender, the payment of
all costs and expenses and the right to negotiate and consent to settlement.
Upon reasonable determination made by such Lender, such Lender shall have the
right to employ separate counsel in any such action and to participate in the
defense thereof, and Borrower agrees to pay a reasonable attorney's fee of any
such separate counsel, which is employed due to a conflict of interest. Borrower
shall not be liable for any settlement of any such action effected without its
consent, but if settled with Borrower's consent, or if there be a final judgment
for the claimant in any such action, Borrower agrees to indemnify and save
harmless each Lender from and against any loss or liability by reason of such
settlement or judgment, unless such loss or liability is caused by the gross
negligence or intentional misconduct of any Lender, its officers, agents or
employees, or by the material breach of this Loan Agreement by any Lender. The
provisions of this Section shall survive the termination of this Loan Agreement
and the repayment of the Loan. If only one or more (but less than all) of the
Lenders are guilty of gross negligence, intentional misconduct or material
breach of this Loan Agreement, as contemplated by this Section, such conduct
shall not release Borrower from any obligation, which it would otherwise have
hereunder, to indemnify those Lenders which are not guilty of such conduct.
Section 5.12 Inspection of the Real Property. At all times during the
Term Period, Borrower shall provide or cause to be provided to Lenders and any
authorized representatives of Lenders, accompanied by representatives of
Borrower, the reasonable right of entry and free access to the Real Property to
inspect same on reasonable prior notice to Borrower.
Section 5.13 Compliance With Other Loan Documents. Borrower shall comply
with each and every term, condition and agreement contained in the Loan
Documents which are applicable to Borrower.
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Section 5.14 Negative Covenants of Borrower and Sands Regent. Until the
payment in full of all sums owing hereunder or under the Note, Borrower (and/or
where applicable, Sands Regent) agree they will comply or cause compliance with
the following Negative Covenants:
(a) Borrower shall not consolidate with or merge into, or sell
(whether in one transaction or in a series of transactions) all or substantially
all of its assets to any Person without the prior written consent of Lenders.
(b) Borrower shall not create any Subsidiaries without the prior
written consent of Lenders.
(c) Other than as set forth in Section 5.14(d)(bb) hereinbelow,
Borrower shall not make or advance Distributions of any kind or character
whatsoever to Sands Regent without the prior written consent of Lenders.
(d) Other than investments which were held by Borrower prior to
October 3, 1991, Borrower shall not make any investments (whether by way of
loan, stock purchase, capital contribution, or otherwise) or guaranty any
indebtedness other than the following:
(aa) Investments in: (x) obligations backed by the full
faith and credit of the United States Government maturing not more than
one (1) year after the date of acquisition thereof; (y) open market
commercial paper issued by any corporation organized and doing business
under the laws of the United States of America or any State thereof,
with a maturity not in excess of nine (9) months from the date of
acquisition thereof which has the highest credit rating by either
Standard & Poor's Corporation or ▇▇▇▇▇'▇ Investor Service, Inc.; (z)
certificates of deposit issued by any bank, trust company or savings and
loan association organized under the laws of the United States of
America or any State thereof having a combined capital and surplus of
not less than Thirty Million Dollars ($30,000,000.00) and maturing not
more than one (1) year after the date of such acquisition thereof; (xx)
short term repurchase agreements relating to obligations of the kind set
forth in (a) above with commercial banks having a combined capital and
surplus of not less than One Hundred Million Dollars ($100,000,000.00);
(yy) Investment grade (rated "A-" or better by Standard and Poors or
given an equivalent rating by a commonly used bond rating institution)
tax free bonds; and (zz) shares of a money market investment company
registered under the Investment Company Act of 1940 investing primarily
in one or more of the short term instruments in clauses (a) through (e)
above and having assets in excess of One Hundred Million Dollars
($100,000,000.00).
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(bb) Loans to Sands Regent provided that the advanced and
unpaid principal amount under such Loans shall not exceed One Million
Dollars ($1,000,000.00) outstanding at any one time.
(cc) Advances or loans to employees provided that the
aggregate of such advances or loans do not exceed Two Hundred Fifty
Thousand Dollars ($250,000.00) outstanding at any one time.
(dd) Investments received by Borrower in settlement of
disputed obligations with customers or suppliers in the ordinary course
of business.
(ee) Borrower shall be permitted to engage in, or incur
obligations under, the following:
(aaa) Indorsement of negotiable instruments for
deposit or collection in the ordinary course of business.
(bbb) Interest rate or currency swap, cap or collar
agreements entered into by Borrower in the ordinary course of its
business for hedging purposes.
(ccc) Surety and appeal bonds and reimbursement
obligations for letters of credit obtained in the ordinary course
of business.
(e) Other than investments which were held by Sands Regent prior
to October 3, 1991, Sands Regent shall not make any investments (whether by way
of loan, stock purchase, capital contribution, or otherwise) or guaranty any
indebtedness other than the following:
(aa) Investments in: (x) obligations backed by the full
faith and credit of the United States Government maturing not more than
one (1) year after the date of acquisition thereof; (y) open market
commercial paper issued by any corporation organized and doing business
under the laws of the United States of America or any State thereof,
with a maturity not in excess of nine (9) months from the date of
acquisition thereof which has the highest credit rating by either
Standard & Poor's Corporation or ▇▇▇▇▇'▇ Investor Service, Inc.; (z)
certificates of deposit issued by any bank, trust company or savings and
loan association organized under the laws of the United States of
America or any State thereof having a combined capital and surplus of
not less than Thirty Million Dollars ($30,000,000.00) and maturing not
more than one (1) year after the date of such acquisition thereof; (xx)
short term repurchase agreements relating to obligations of the kind set
forth in (a) above with commercial banks having a combined capital and
surplus of not less than One Hundred Million Dollars
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($100,000,000.00); (yy) Investment grade (rated "A-" or better by
Standard and Poors or given an equivalent rating by a commonly used bond
rating institution) tax free bonds; and (zz) shares of a money market
investment company registered under the Investment Company Act of 1940
investing primarily in one or more of the short term instruments in
clauses (a) through (e) above and having assets in excess of One Hundred
Million Dollars ($100,000,000.00).
(bb) Loans or capital contributions to Gulfport
Subsidiaries, or either of them, in an aggregate amount not to exceed an
amount which is determined by subtracting: (i) the amount of the
Existing Patrician Investment; from, (ii) the Maximum Gulfport
Investment; provided that such loans or capital contributions constitute
Qualified Gulfport Investments.
(cc) Loans or capital contributions (other than Qualified
Gulfport Investments) to any Person, provided that the aggregate amount
advanced to all such Persons does not exceed: (i) One Million Dollars
($1,000,000.00); less, (ii) the aggregate amount of capital expenditures
made, additional fixed assets acquired and capital leases entered into
by Sands Regent subsequent to the Closing Date; and less, (iii)
Borrower's Permissive Capital Expenditures.
(dd) Advances or loans to employees provided that the
aggregate of such advances or loans do not exceed Two Hundred Fifty
Thousand Dollars ($250,000.00) outstanding at
any one time.
(ee) Investments received by Sands Regent in settlement of
disputed obligations with customers or suppliers in the ordinary course
of business.
(ff) Sands Regent shall be permitted to engage in, or
incur obligations under, the following:
(aaa) Indorsement of negotiable instruments
for deposit or collection in the ordinary course of
business.
(bbb) Interest rate or currency swap, cap or collar
agreements entered into by Sands Regent in the ordinary course of
its business for hedging purposes.
(ccc) Surety and appeal bonds and reimbursement
obligations for letters of credit obtained in the ordinary course
of business.
Section 5.15 Financial Covenants of Borrower and Sands Regent. Until the
payment in full of all sums owing hereunder or
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under the Note, Borrower (and/or where applicable, Sands Regent) agree they will
comply or cause compliance with the following Financial Covenants:
(a) Notwithstanding the provisions contained in Section 5.3,
Borrower shall not, without the prior written consent of Lenders, make capital
expenditures or acquire additional fixed assets or equipment or enter into
capital leases in an aggregate amount during any applicable Fiscal Year, in an
amount not less than ninety percent (90%) and not more than one hundred ten
percent (110%) of the total amount set forth in the Business Plan Projections,
unless otherwise approved by Lenders in writing. Capital Expenditures shall only
be used for the purpose of improving or maintaining the Premises and shall be
measured by Lenders annually on the Borrower's fiscal year basis.
(b) At all times during the term of the Loan, Borrower must
achieve, on a rolling four quarter basis, EBITDA of at least ninety percent
(90%) of the EBITDA set forth in Borrower's Business Plan Projections.
(c) Borrower shall provide Lenders, on a quarterly basis, with a
reconciliation of actual EBITDA and Capital Expenditures (with supporting
calculations) as compared to the EBITDA and Capital Expenditures line items set
forth in Business Plan Projections.
Section 5.16 Suits or Actions Affecting Borrower. Throughout the term of
the Loan, Borrower shall promptly advise Lenders in writing within ten (10) days
of Borrower's knowledge thereof of: (i) any claims, litigation, proceedings or
disputes against, or to the actual knowledge of Borrower, threatened or
affecting Borrower or Sands Regent, which, if adversely determined, would have a
material adverse effect on the Real Property or the business, operations,
properties or financial conditions of Borrower or Sands Regent; (ii) any
material labor controversy resulting in a strike against the Real Property; or
(iii) any proposal by any Governmental Authority to acquire any of the material
assets or business of Borrower.
Section 5.17 Account Analysis of Operating Accounts. In the event that
the cost to Agent Bank of maintaining any operating and payroll accounts
maintained by Borrower or Sands Regent at a branch of the Agent Bank during the
duration of the Loan exceeds the fee and interest income earned by Agent Bank
with respect to any such account, in accordance with quarterly analysis reports
as prepared and submitted from time to time by Agent Bank to Borrower, then, in
that event, Borrower shall reimburse Agent Bank for each such loss which is so
determined.
Section 5.18 Additional Properties. In the event that any properties
which are now owned or hereafter acquired by Borrower hereafter become part of
the Real Property, Borrower agrees to execute such documents or instruments as
may be requested by
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Lenders for the purpose of encumbering such property as additional Collateral
for the Loan, which documents and instruments shall be negotiated in good faith
and promptly executed by Borrower and delivered to Lenders immediately
thereafter. Furthermore, Borrower agrees to give written notice to Agent Bank
within ten (10) days of the date such property or portions of such property
commence being used in any material respect in connection with the Hotel/Casino
Operation.
Section 5.19 Notice to State Gaming Control Board. Borrower shall make
all required reports and disclosures to the Nevada State Gaming Control Board,
including, but not limited to, reporting this Loan transaction as required by
Regulation 8.130(2) of the Regulations of Nevada Gaming Commission and State
Gaming Control Board. Lenders shall reasonably cooperate with Borrower in
providing any information or signatures required in connection therewith.
Section 5.20 Tradenames, Trademarks and Servicemarks. Borrower shall not
assign or in any other manner alienate its interest in any tradenames,
trademarks or servicemarks relating or pertaining to the Premises or the
Hotel/Casino Operation during the term of the Loan.
Section 5.21 Notice of Hazardous Materials. Within ten (10) days after
an executive officer of Borrower obtaining actual knowledge thereof, Borrower
shall immediately advise Lenders in writing of: (i) any and all enforcement,
clean-up, removal or other governmental or regulatory actions instituted,
completed or threatened pursuant to any applicable federal, state or local laws,
ordinances or regulations relating to any Hazardous Materials (as defined in the
Environmental Certificate) affecting the Real Property ("HAZARDOUS MATERIALS
LAWS"); (ii) all material claims made or threatened by any third party against
Borrower or the Real Property relating to damage, contribution, cost recovery
compensation, loss or injury resulting from any Hazardous Materials (the matters
set forth in clauses (i) and (ii) above are hereinafter referred to as
"HAZARDOUS MATERIALS CLAIMS"); and (iii) the discovery of any occurrence or
condition on any real property adjoining or in the vicinity of the Real Property
that could cause Borrower or any part thereof to be classified as a "borderzone
property" under the provisions of, or to be otherwise subject to any
restrictions on the ownership, occupancy, transferability or use of the Real
Property under, any Hazardous Materials Laws.
Section 5.22 Leases and Contracts. Borrower shall not enter into any
contracts or leases affecting the Real Property without the prior written
consent of Lenders, other than the following:
(a) With respect to leases, Borrower shall be entitled to enter
into space leases within the Real Property so long as such space leases are with
non-affiliated third parties at
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prevailing market rents, consistent with the Business Plan Projections, have a
term of not more than five (5) years, cover no more than 5,000 square feet and
are on Borrower's standard form lease which has been utilized with respect to
the existing leases.
(b) With respect to any other contracts, Borrower shall be
entitled to enter into contracts without the prior written consent of Lenders so
long as such contracts are with non-affiliated third parties at prevailing
market rates, do not have a term longer than five (5) years, do not require
expenditures by Borrower of more than $150,000 per year and are consistent with
the Business Plan Projections.
With respect to the leases and contracts which Borrower is permitted to execute
without the prior written consent of Lenders, Borrower agrees to provide Lenders
with copies of such leases and contracts immediately upon execution thereof.
Section 5.23 Lease Approvals. Subject to Section 5.22, Borrower shall
submit to Lenders any leases of space in the Real Property which are ready for
signature. The tenant and each lease shall be subject to the approval of
Lenders, other than with respect to leases described in Section 5.22, which do
not require prior consent of Lenders. Lenders may request such financial or
other information with respect to the proposed tenant as it shall deem
necessary.
Section 5.24 Books and Records. Borrower shall keep, at its principal
place of business or at the Premises, the records, books of accounting and other
documents, reports and papers relating to the operation of the Real Property.
Lenders shall be entitled, at any reasonable time, to inspect the Real Property,
all records relating thereto, and the books and other financial records of
Borrower and Sands Regent, wherever located, and Borrower shall cooperate with
Lenders in enabling Lenders to accomplish such inspection and permit Lenders to
make such copies as Lenders may request.
Section 5.25 Compliance with Contracts. Borrower shall comply with the
material terms of all Equipment Leases, Leases and Contracts. Borrower will not
materially amend any of the Equipment Leases, Leases and Contracts without the
prior written consent of Lender and will not terminate any of the Equipment
Leases, Leases and Contracts or accept a surrender thereof, or waive, excuse,
condone or in any manner release or discharge any party to any of the Equipment
Leases, Leases and Contracts from the obligations and agreements of such party
to be performed thereunder without the prior written consent of Lenders.
Section 5.26 Title Exceptions. Borrower shall not impose any restrictive
covenants, easements, rights of way or encumbrances upon the Real Property
without the prior written consent of Lenders.
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Section 5.27 Lenders' Expenses. Subsequent to the Closing Date, Borrower
shall pay all reasonable expenses directly or indirectly incurred in connection
with the Loan and its administration and enforcement. All such fees and expenses
shall be paid promptly upon the submission of statements therefor. Upon an Event
of Default, Borrower shall pay all reasonable costs and expenses of any
appraisal or reappraisal of the Premises as required by laws or regulations
affecting Lenders.
Section 5.28 No Further Liens. All equipment, personal property,
fixtures and other property subject to the lien of the security interest granted
to Lenders in the Deed of Trust shall be fully paid for by Borrower, and no
security interest, lien or other encumbrance, other than that granted to Lenders
and the Permitted Encumbrances, shall exist thereon.
Section 5.29 Removal of Liens. If at any time an encumbrance, lien or
charge is placed or claimed upon the Real Property, Borrower shall satisfy and
remove such encumbrance, lien or charge by bonding or by other method
satisfactory to Lenders or cause the Existing Title Insurance Company to provide
affirmative coverage over such liens, as Lenders may require. In addition to all
other rights and remedies of Lenders referred to in this Loan Agreement, if such
encumbrance, lien or charge is not removed within thirty (30) days, Lenders, at
their sole discretion, may pay off the same, and Borrower shall reimburse
Lenders within five (5) days of Lender's demand for payment.
Section 5.30 Notices Received. Borrower shall comply with and promptly
furnish to Lenders true and complete copies of any notices pertaining to the
Real Property by any governmental agency, or any other political subdivision in
which the Real Property is located or which exercises jurisdiction over Borrower
or the Real Property. Borrower shall promptly notify Lenders of any fire or
other casualty or any notice of taking or eminent domain proceeding affecting
the Real Property.
Section 5.31 No Transfer or Further Encumbrance. So long as any amount
or obligation is outstanding by Borrower to Lenders under any of the Loan
Documents, Borrower will not, without the prior written consent of Lenders:
(a) Further Encumbrance. Create, incur, assume, permit or suffer
to exist, after knowledge of the existence thereof, any mortgage, deed of trust,
pledge, lien, hypothecation, charge (fixed or floating), security interest or
other encumbrance whatsoever on the Real Property or any of the Accounts, except
the encumbrances created by and permitted by the Deed of Trust and the Loan
Agreement; or
(b) Transfer of Property. Become a party to any transaction
whereby the Real Property, the Accounts or any portion thereof, or all or any
substantial part of the properties, assets or undertakings of Borrower (whether
legally
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or beneficially owned by Borrower), would become the property of any other
person, whether by way of transfer, sale, conveyance, lease, sale and leaseback,
or otherwise; provided, however, funds from the Accounts may be used in
compliance with the Business Plan Projections; or
(c) Transfer of Entity. Terminate, dissolve, permit or suffer any
transfer of any interest in Borrower or any other action which effects a change
in the ownership, structure, management, or control of Borrower, whether by way
of a change in the identity of any shareholder of Borrower or change in the
ownership or control of any shareholder of Borrower, by merger or otherwise; or
(d) Use. Change the use of the Real Property; or
(e) New Accounts. Establish any new accounts other than the
Accounts, and concurrently with properly establishing any new account, Borrower
shall provide a perfected first priority security interest to Lenders in a
manner acceptable to Lenders, in Lenders' sole and absolute discretion.
Section 5.32 Permits and Warranties. Promptly upon receipt of the same
by Borrower, Borrower shall furnish Lenders with true and complete copies of (a)
all licenses, Permits, approvals, exemptions and other authorizations required
in connection with the Real Property and (b) all warranties and guaranties
received from any party furnishing labor, materials, equipment, fixtures or
furnishings in connection with the Real Property.
Section 5.33 Preservation of Existence. Borrower shall preserve and
maintain its corporate existence, licenses, rights, franchises and privileges in
the jurisdiction of its incorporation and all authorizations, consents,
approvals, orders, licenses, permits or exemptions from, or registrations or
qualifications with, the State of Nevada and any governmental agency that are
necessary for the transaction of its business, and qualify and remain qualified
to do business in Nevada and each other jurisdiction in which such qualification
is necessary in view of its business or the ownership or leasing of its
properties.
Section 5.34 Year 2000 Compliant. Borrower shall perform all acts
reasonably necessary to ensure that (i) Borrower, (ii) any business in which
Borrower holds a substantial interest, (iii) all customers, suppliers and
vendors that are material to Borrower's business, and (iv) Guarantor become Year
2000 Compliant in a timely manner. Such acts shall include, without limitation,
performing a comprehensive review and assessment of all of Borrower's and
Guarantor's systems and adopting a detailed plan, with itemized budget, for the
remediation, monitoring and testing of such systems. Borrower shall, immediately
upon request, provide to Lenders such certifications or other evidence
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of Borrower's and Guarantor's compliance with the terms of this Section as
Lenders may from time to time require.
Section 5.35 Accounts. With respect to the Accounts, Borrower agrees to
the following:
(a) Additional Documents. Borrower shall execute and deliver such
documents as Lenders reasonably deem necessary to create, perfect and continue
the security interest in all Accounts.
(b) Change of Address. Borrower shall not change its chief place
of business or the place where Borrower keeps its records concerning the
Accounts without first giving Lenders written notice of the address to which
Borrower is moving same.
(c) Liens. Borrower agrees not to permit any lien on the Accounts
except in favor of Lenders.
(d) Transfer. Borrower agrees not to sell, hypothecate or
otherwise dispose of any of the Accounts, or any interest therein, without the
prior written consent of Lenders; provided, however, funds from the Accounts may
be used in compliance with the Business Plan Projections.
(e) Records. Borrower shall keep, in accordance with generally
accepted accounting principles, complete and accurate records regarding all
Accounts and shall permit Lenders to inspect the same and make copies thereof at
any reasonable time.
(f) Commingle. Borrower shall not commingle the Accounts with any
other property.
(g) Withdrawal. Upon the occurrence of an Event of Default,
Borrower shall have no rights whatsoever to withdraw any funds from any Account
except in accordance with the Loan Documents and Lenders shall have complete
dominion and control over such Accounts.
(h) Defenses. Borrower shall ensure and take all acts which are
necessary to keep the Accounts free and clear of all defenses, rights of offset
and counterclaims.
ARTICLE 6
---------
EVENTS OF DEFAULT
-----------------
Section 6.1 Events of Default. Any of the following events and the
passage of any applicable notice and cure periods shall constitute an Event of
Default hereunder:
(a) Any representation or warranty made by Borrower pursuant to
or in connection with this Loan Agreement, the Note, the Environmental
Certificate, the Deed of Trust, as amended by
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the First Amendment to Deed of Trust, the Additional Deed of Trust, the Second
Deed of Trust or any other Loan Document or in any report, certificate,
financial statement or other writing furnished by Borrower in connection
herewith, shall prove to be false, incorrect or misleading in any substantial
and material adverse aspect as of the date when made.
(b) Borrower shall have defaulted in the payment of any
installment of principal or interest on the Note or in the payment of any other
amounts due and owing under any Loan Documents, the Reimbursement Agreement or
the Interest Rate Swap Agreement, for a period of five (5) days after notice
thereof to Borrower from Agent Bank.
(c) Borrower shall have defaulted in the payment of any late
charge or any other amount owing under any Loan Document for a period of five
(5) days after notice thereof to Borrower from Agent Bank.
(d) Borrower or the Sands Regent shall fail to observe or perform
any term, covenant, condition or promise contained in this Loan Agreement, the
Note, the Deed of Trust, as amended by the First Amendment to Deed of Trust, the
Additional Deed of Trust, the Second Deed of Trust, the Reimbursement Agreement,
the Interest Rate Swap Agreement or any other Loan Document or the Environmental
Certificate, and such failure continues for a period of more than thirty (30)
days (or such shorter or longer period as may be set out in the Loan Documents,
with respect to such provision) after notice by Agent Bank of such failure.
(e) Borrower or the Sands Regent shall commence a voluntary case
or other proceeding seeking liquidation, reorganization or other relief with
respect to either of them or their respective debts under the Bankruptcy Code or
any bankruptcy, insolvency or other similar law now or hereafter in effect or
seeking the appointment of a trustee, receiver, liquidator, custodian or other
similar official, for any substantial part of either of their property, or shall
consent to any such relief or to the appointment or taking possession by any
such official in any involuntary case or other proceeding against either of
them.
(f) An involuntary case or other proceeding shall be commenced
against Borrower or the Sands Regent seeking liquidation, reorganization or
other relief with respect to either of them or their debts under the Bankruptcy
Code or any bankruptcy, insolvency or other similar law now or hereafter in
effect or seeking the appointment of a trustee, receiver, liquidator, custodian
or other similar official, for any substantial part of either of their property,
and such involuntary case or other proceeding shall remain undismissed and
unstayed for a period of sixty (60) days.
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(g) Borrower or the Sands Regent make an assignment for the
benefit of their respective creditors, or either of them admits in writing its
inability to pay its respective debts as they become due.
(h) Borrower shall fail to pay when due in accordance with its
terms and provisions any other Indebtedness of Borrower which failure materially
impairs the security interests of Lenders and continues beyond the period of
grace, if any, therefor.
(i) The occurrence of an event of default or an event which with
the lapse of time or notice or both would become an event of default under or in
respect of any agreement by which Borrower is bound or which causes or permits
acceleration of any obligation of Borrower under or in respect of any such
agreement which occurrence materially impairs Borrower's ability to repay the
Loan.
(j) The occurrence of any Reportable Event as defined under
ERISA, should occur and should continue for thirty (30) days after written
notice of such determination shall have been given to Borrower by Lenders.
(k) Entry of a judgment or injunctive order against Borrower any
time after the execution of this Loan Agreement, which is not stayed, bonded,
dismissed, terminated or disposed of to Lenders' satisfaction within sixty (60)
days after its entry and which materially adversely affects: (i) the priority of
the encumbrance and security interest granted Lenders in the Real Property; or
(ii) Borrower's right to use the Premises as a first-class hotel/casino
facility.
(l) The loss or suspension, of Borrower's unrestricted gaming
license or the failure of Borrower to maintain gaming activities in the
Hotel/Casino Operation other than on account of force majeure at least to the
same general extent as is presently conducted thereon for a period in excess of
thirty (30) consecutive days.
(m) Any of the Loan Documents or the Environmental Certificate,
for any reason other than: (i) the agreement of Lenders; (ii) the payment in
full of all sums secured by the Deed of Trust, including, without limitation,
the Loan; or (iii) in accordance with the terms thereof, shall cease to provide
for any material rights or remedies which are contemplated thereby (such
materiality to be determined, by Lenders in good faith, with reference to the
aggregate rights and remedies provided by the Loan Documents, the Environmental
Certificate and applicable law).
(n) The Board of Directors of Sands Regent shall fail to include
at least one member of the Cladianos Family.
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(o) The Cladianos Family shall fail to have or retain beneficial
ownership (within the meaning of Section 13(d)(3) of the Securities Exchange Act
of 1934, as amended) of at least ten percent (10%) of the outstanding voting
stock of Sands Regent.
(p) Any person or group of person (within the meaning of Section
13(d)(3) of the Securities Exchange Act of 1934, as amended), other than the
Cladianos Family, or a member of the Cladianos Family, shall acquire or retain
beneficial ownership (within the meaning of Section 13(d)(3) of the Securities
Exchange Act of 1934, as amended) of twenty percent (20%) or more of the
outstanding voting stock of Sands Regent.
(q) Borrower ceases to be a wholly owned subsidiary of Sands
Regent.
Section 6.2 Default Remedies. Upon the occurrence of any Event of
Default, Lenders may, at their option, without any further notice or demand,
declare the unpaid balance of the Note, together with interest thereon and all
other amounts owing under the Loan Documents, to be fully due and payable, and
the obligation to lend will automatically terminate, and may, at their option,
exercise any or all of the following remedies:
(a) Lenders may declare all outstanding unpaid Indebtedness
hereunder and under the Note and other Loan Documents together with all accrued
interest thereon immediately due and payable without presentation, demand,
protest or notice of any kind.
(b) In addition to all rights of setoff or lien against any
monies, securities or other property of Borrower given to Lenders by law,
Lenders will have a right of setoff against all monies, securities and other
property of Borrower now or hereafter in the possession of or on deposit with
Lenders whether held in a general or special account or deposit or for
safekeeping or otherwise; and every such right of setoff may be exercised
without demand upon or notice to Borrower. No right of setoff shall be deemed to
have been waived by any act or conduct on the part of Lenders, or by any neglect
to exercise such right of setoff, or by any delay in doing so; and every right
of setoff shall continue in full force and effect until specifically waived or
released by an instrument in writing executed by Lenders.
(c) Any and all remedies available to Lenders under the Loan
Documents.
(d) Any other remedies available to Lenders at law or in equity,
including requesting the appointment of a receiver to perform any acts required
of Borrower under this Loan Agreement.
For the purpose of carrying out this Section and exercising these
rights, powers and privileges, provided that there is an Event of Default then
existing, Borrower hereby irrevocably
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constitutes and appoints Lenders as its true and lawful attorneys-in-fact to
execute, acknowledge and deliver any instruments and do and perform any acts
such as are referred to in this Section in the name and on behalf of Borrower.
Section 6.3 Application of Proceeds. All payments and proceeds received
and all amounts held or realized from the sale or other disposition of the
Collateral at a foreclosure sale or other foreclosure proceeding shall be
applied in the following order of priority:
(a) First, to the payment of all fees, costs and expenses
(including reasonable attorney's fees and expenses) incurred by Lenders, their
agents or representatives in connection with the realization upon any of the
Collateral.
(b) Next, to the payment in full of any other amounts then due
under this Loan Agreement, the Deed of Trust, or any other Loan Documents (other
than the Note).
(c) Next, to the balance of interest remaining unpaid on the
Note.
(d) Next, to the balance of principal remaining unpaid on the
Note.
(e) Next, the balance, if any, of such payments or proceeds to
whomever may be legally entitled thereto.
Section 6.4 Notices. In order to entitle Lenders to exercise any remedy
available hereunder, it shall not be necessary for Lenders to give any notice,
other than such notice as may be required expressly herein.
Section 6.5 Agreement to Pay Attorney's Fees and Expenses. Upon the
occurrence of an Event of Default, as a result of which Lenders shall require
and employ attorneys or incur other expenses for the collection of payments due
or to become due or the enforcement or performance or observance of any
obligation or agreement on the part of Borrower contained herein, Borrower
shall, on demand, pay to Lenders the reasonable fees of such attorneys and such
other expenses so incurred by Lenders.
Section 6.6 No Additional Waiver Implied by One Waiver. In the event any
agreement contained in this Loan Agreement should be breached by either party
and thereafter waived by the other party, such waiver shall be limited to the
particular breach so waived and shall not be deemed to waive any other breach
hereunder.
Section 6.7 Licensing of Lenders. Upon the occurrence and during the
continuance of an Event of Default hereunder or under any of the Loan Documents,
if it shall become necessary, or in the opinion of Lenders reasonably advisable,
for an agent,
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receiver or other representative of Lenders to become licensed under the
provisions of the laws of the State of Nevada, or rules and regulations adopted
pursuant thereto, as a condition to receiving the benefit of any Collateral
encumbered by the Deed of Trust or other Loan Documents for the benefit of
Lenders or otherwise to enforce their rights hereunder, Borrower does hereby
give its consent to the granting of such license or licenses and agrees to
execute such further documents as may be required in connection with the
evidencing of such consent.
Section 6.8 Exercise of Rights Subject to Applicable Law. All rights,
remedies and powers provided by this Article 6 may be exercised only to the
extent that the exercise thereof does not violate any applicable provision of
the laws of any Governmental Authority and all of the provisions of this Article
6 are intended to be subject to all applicable mandatory provisions of law that
may be controlling and to be limited to the extent necessary so that they will
not render this Loan Agreement invalid, unenforceable or not entitled to be
recorded or filed under the provisions of any applicable law.
ARTICLE 7
---------
DAMAGE, DESTRUCTION AND CONDEMNATION
------------------------------------
Section 7.1 No Abatement of Payments. If all or any part of the
Collateral shall be materially damaged or destroyed, or if title to or the
temporary use of the whole or any part of any of the Collateral shall be taken
or condemned by a competent authority for any public use or purpose, there shall
be no abatement or reduction in the amounts payable by Borrower hereunder or
under the Note, and Borrower shall continue to be obligated to make such
payments.
Section 7.2 Distribution of Capital Proceeds Upon Occurrence of Fire,
Casualty or Condemnation. All monies received from fire, flood and hazard
extended insurance policies covering any of the Collateral or from condemnation
or similar actions in regard to said Collateral, shall be paid directly to Agent
Bank. In the event the amount paid to Agent Bank is equal to or less than One
Million Dollars ($l,000,000), such amount shall be paid to Borrower, unless an
Event of Default shall have occurred hereunder and is continuing, for the
purpose of repairing, replacing or reimbursing of Borrower for the cost of
repairing or replacing the property destroyed or condemned. In the event the
amount paid to Agent Bank exceeds Eight Million Dollars ($8,000,000), then such
amount may be applied by Lenders to reduce the outstanding balance of the Loan
in such order as Lenders may determine, or at the option of Lenders, the entire
amount so collected, or any part thereof, may be released to Borrower for repair
or replacement of the property destroyed or condemned or to reimburse Borrower
for the costs of such repair or replacement incurred prior to the date of such
release. In
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the event the amount paid to Agent Bank is greater than One Million Dollars
($1,000,000), but not more than Eight Million Dollars ($8,000,000) then, at the
option of Borrower, unless an Event of Default has occurred hereunder and is
continuing, in which case at the option of Lenders, such amount may be applied
by Lenders to reduce the outstanding balance of the Loan in such order as
Lenders may determine, or the entire amount so collected, or any part thereof,
may be released to Borrower for repair, replacement or reimbursement of Borrower
for the property destroyed or condemned or to reimburse Borrower for the costs
of such repair or replacement incurred prior to the date of such release. In the
event Lenders elect to, or are required to, release all or a portion of the
collected funds to Borrower for such repair or replacement of the property
destroyed or condemned, such release of funds shall be made in accordance with
the following terms and conditions:
(a) The repairs, replacements and rebuilding shall be made in
accordance with plans and specifications to be reasonably approved by Lenders
and in accordance with all applicable laws, ordinances, rules, regulations and
requirements of Governmental Authorities.
(b) Borrower shall provide Lenders with a detailed estimate of
the costs of such repairs or restorations.
(c) Borrower must satisfy Lenders that after the repair,
replacement or rebuilding is completed, the value of the substituted Collateral,
as determined by Lenders in their reasonable discretion, will not be materially
less than the most recent value of the Collateral prior to the occurrence of the
event occasioning the repair, replacement or rebuilding as determined by Lenders
pursuant to the Loan Agreement.
(d) In Lenders' sole reasonable opinion, any such funds will be
sufficient to pay all costs of repair or replacement of the property destroyed
or condemned; or if such funds will not be sufficient, Borrower must deposit
additional funds with the Agent Bank, sufficient to pay such additional costs of
repairing or replacing the property destroyed or condemned.
(e) Borrower must first deliver to Lenders a construction
contract for the work of repair or replacement in form and content reasonably
acceptable to Lenders with a contractor reasonably acceptable to Lenders.
(f) Lenders in their reasonable discretion must have determined
that after the repair or replacement is completed, the Hotel/Casino Operation
will produce income sufficient to pay all costs of operations and maintenance of
the Real Property with a reasonable reserve for repairs, and service all debts
secured by the Real Property.
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(g) No Event of Default shall have occurred and be continuing
hereunder and no event shall have occurred and be continuing which with notice
and/or lapse of time would constitute an Event of Default hereunder.
(h) Before commencing any such work, Borrower shall, at its own
cost and expense, have furnished Lenders with appropriate endorsements, if
needed, to the fire insurance policy which Borrower is then presently
maintaining to cover all of the risks reasonably expected to occur and commonly
insured against under similar circumstances during the course of such work.
(i) Such repair or replacement shall have been commenced by
Borrower within one hundred twenty (120) days after: (i) settlement shall have
been made with the insurance companies; (ii) all the necessary governmental
approvals shall have been obtained; and (iii) the approvals of Lenders which are
required under this Section. Such repair and replacement shall be completed
within a reasonable time, free and clear of all liens and encumbrances (except
Permitted Encumbrances) so as not to interfere with the lien of the Deed of
Trust.
ARTICLE 8
---------
GENERAL CONDITIONS
------------------
The following conditions shall be applicable throughout the term of this
Loan Agreement:
Section 8.1 Failure to Exercise Rights. Nothing herein contained shall
impose upon Lenders or Borrower any obligation to enforce any terms, covenants
or conditions contained herein. Failure of Lenders or Borrower, in any one or
more instances, to insist upon strict performance by Borrower or Lenders of any
terms, covenants or conditions of this Loan Agreement or the other Loan
Documents shall not be considered or taken as a waiver or relinquishment by
Lenders or Borrower of their right to insist upon and to enforce in the future,
by injunction or other appropriate legal or equitable remedy, strict compliance
by Borrower or Lenders with all the terms, covenants and conditions of this Loan
Agreement and the other Loan Documents. The consent of Lenders or Borrower to
any act or omission by Borrower or Lenders shall not be construed to be a
consent to any other or subsequent act or omission or to waive the requirement
for Lenders' or Borrower's consent to be obtained in any future or other
instance.
Section 8.2 Successors and Assigns. All of the terms, covenants,
warranties and conditions contained in this Loan Agreement shall be binding upon
and inure to the parties hereto and their respective successors and assigns.
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Section 8.3 Notices. Unless otherwise indicated differently, all
notices, payments, requests, reports, information or demand which any party
hereto may desire or may be required to give to any other party hereunder shall
be in writing and shall be personally delivered or sent by telegram, telex,
telecopier or first-class certified or registered United States mail, postage
prepaid, return receipt requested, and sent to the party at its address
appearing below or such other address as any party shall hereafter inform the
other party hereto by written notice given as aforesaid; provided, however,
notices to Lenders requesting disbursements of the Loan proceeds need not be
sent by registered or certified United States mail:
If to Borrower: Zante, Inc.
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Mr. ▇▇▇▇ ▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, CHTD.
Norwest Bank Center
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to Lenders,
c/o Agent Bank: ▇▇▇▇▇ Fargo Bank, National
Association
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Mr. Art Brokx
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: Pillsbury Madison & Sutro LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
All notices, payments, requests, reports, information or demands so given shall
be deemed effective when sent, or, if mailed, upon receipt or the expiration of
the fifth (5th) day following the date of mailing, whichever occurs first,
except that: (a) any notice of change of address shall be effective only upon
receipt by the party to whom said notice is addressed; and (b) notices sent to
the Agent Bank by Borrower pursuant to Article 2 which shall be deemed effective
upon actual receipt (regardless of how such notice is sent).
Section 8.4 Modification in Writing. This Loan Agreement is the entire
agreement between the parties and supersedes all prior agreements whether
written or oral with respect to the
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subject matter hereof, including, but not limited to, the Commitment Letter and
any term sheets furnished by Lenders to Borrower. Neither this Loan Agreement
nor any provision herein may be changed, waived, discharged or terminated
orally, but only by an instrument in writing signed by each of the Lenders, the
Agent Bank and Borrower, except as provided by Section 8.11.
Section 8.5 Incorporation of Terms. Borrower agrees that the Note shall
be made subject to all the terms, covenants, conditions, obligations,
stipulations and agreements contained in this Loan Agreement to the same extent
and effect as if fully set forth in and made a part of the Note, and Borrower
and Lenders agree that this Loan Agreement is made subject to all the terms,
covenants, conditions, obligations, stipulations and agreements contained in the
Note to the same extent and effect as if fully set forth herein and made a part
of this Loan Agreement, until this Loan Agreement is terminated by the repayment
to Lenders of all principal, interest and other sums and expenses due and owing
on the Note. If any provisions in this Loan Agreement are inconsistent with the
provisions of any of the other Loan Documents, this Loan Agreement shall
control.
Section 8.6 Other Agreements. If the terms of any documents,
certificates or agreements delivered in connection with this Loan Agreement are
inconsistent with the terms of the Loan Documents, Borrower shall use its best
efforts to amend such document, certificate or agreement to the satisfaction of
Lenders to remove such inconsistency.
Section 8.7 Counterparts. This Loan Agreement may be executed by the
parties hereto in any number of separate counterparts with the same effect as if
the signatures hereto and hereby were upon the same instrument. All such
counterparts shall together constitute but one and the same document.
Section 8.8 Rights, Powers and Remedies are Cumulative. None of the
rights, powers and remedies conferred upon or reserved to Lenders or Borrower in
this Loan Agreement are intended to be exclusive of any other available right,
power or remedy, but each and every such right, power and remedy shall be
cumulative and not alternative, and shall be in addition to every right, power
and remedy herein specifically given or now or hereafter existing at law, in
equity or by statute. Any forbearance, delay or omission by Lenders or Borrower
in the exercise of any right, power or remedy shall not impair any such right,
power or remedy or be considered or taken as a waiver or relinquishment of the
right to insist upon and to enforce in the future, by injunction or other
appropriate legal or equitable remedy, any of said rights, powers and remedies
given to Lenders or Borrower herein. The exercise of any right or partial
exercise thereof by Lenders or Borrower shall not preclude the further exercise
thereof and the same shall continue in full force and effect until specifically
waived by an instrument in writing executed by Lenders, as the case may be.
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Section 8.9 Continuing Representations. All agreements, representations
and warranties made herein shall survive the execution and delivery of this Loan
Agreement, the making of the Loan hereunder and the execution and delivery of
the Note.
Section 8.10 Assignment of Loan Documents by Borrower. Borrower may not
assign any of its right, title or interest in the Loan Documents and the Loan,
nor may Borrower delegate any of its obligations and duties under the Loan
Documents and the Loan, except as expressly provided herein. Any attempted
assignment or delegation in contravention of the foregoing shall be null and
void.
Section 8.11 Action by Lenders. Whenever Lenders shall have the right to
make an election, or to exercise any right, or their consent shall be required
for any action under this Loan Agreement or the Loan Documents, then such
election, exercise or consent shall be given or made for all Lenders by ▇▇▇▇▇
Fargo Bank, National Association, acting as Agent Bank. Notices, reports and
other documents required to be given by Borrower to Lenders hereunder may be
given by Borrower to Agent Bank on behalf of Lenders and the delivery to Agent
Bank shall constitute delivery to Lenders. In the event any payment or payments
are received by a Lender other than Agent Bank, Borrower consents to such
payments being shared and distributed pursuant to Section 10.04 of the Agency
Agreement, which reads, in its entirety, as follows:
"10.04. Co-Lenders agree not to accept any
payments, proceeds and/or collections directly from
Borrower in connection with the Loan Documents (or any third
party except from Agent Bank) including an exercise of the right
of setoff (with the amount which is so accepted or received by
set off being hereinafter referred to as the "COLLECTED AMOUNT")
unless such receiving Co-Lender immediately forwards such
Collected Amount to Agent Bank for application and distribution
in accordance with the terms of this Agency Agreement or, if such
Collected Amount cannot be forwarded to Agent Bank, such sharing
Co-Lender shall purchase such portion of the interests of other
Lenders as may be necessary to achieve a pro rata sharing with
each of the Lenders in the Loan so that each Lender's
proportionate interest shall remain the same as they were prior
to the receipt of such Collected Amount. It is provided, however,
that if any Lender which has forwarded such Collected Amount to
Agent Bank or which has purchased such portion of the
Participation Interests (the "COLLECTING LENDER") is subsequently
required to return the Collected Amount to Borrower or to the
third party from whom it was received, then, in that event, each
of the Lenders which have received a share of the Collected
Amount (or which have had a portion of their Participation
Interest purchased)
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53
shall reimburse the Collecting Lender for their proportionate
share of the amount which the Collecting Lender is required to
return (and be deemed to repurchase any corresponding
participation purchased from them by the Collecting Lender),
together with their respective pro rata shares of interest
thereon if the Collecting Lender also is required to pay interest
on the amount so returned. Any losses on the Loan shall be shared
by Lenders in accordance with their Participation Interests."
Section 8.12 Time of Essence. Time shall be of the essence of this Loan
Agreement.
Section 8.13 Governing Law. This agreement is in all respects to be
governed by the laws of the State of Nevada and if any action is taken to
enforce the terms of this Loan Agreement such action shall be commenced and
maintained within the State of Nevada.
Section 8.14 No Joint Venture. In no event shall Lenders be deemed or
construed to be joint venturers or partners of Borrower.
Section 8.15 Severability of Provisions. In the event any one or more of
the provisions contained in this Loan Agreement shall be invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein shall not in any way be affected or
impaired thereby.
Section 8.16 Cumulative Nature of Covenants. All covenants contained
herein are cumulative and not exclusive of each other covenant. Any action
allowed by any covenant shall be allowed only if such action is not prohibited
by any other covenant.
Section 8.17 Costs to Prevailing Party. If any action or proceeding is
brought by any party against any other party under this Loan Agreement or any of
the Loan Documents, the prevailing party shall be entitled to recover such costs
and attorney's fees as the court in such action or proceeding may adjudge
reasonable.
Section 8.18 Loan Documents. The Loan Documents may be held in the name
of ▇▇▇▇▇ Fargo Bank, National Association, its successors and assigns, as the
agent of all Lenders hereunder pursuant to the terms of the Agency Agreement.
Section 8.19 Assignment and Participations. Each Lender shall have the
right to enter into participation agreements with any Person with respect to the
Participation Interest held by it, and/or sell or grant participations in such
Participation Interest to other Persons, but such participations, sales or
grants shall not affect the rights and duties of Lenders hereunder vis-a-vis
Borrower. Upon any sale or assignment of a
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direct interest in the Loan and the Note (rather than merely a participation) to
any other Person, such Person shall be, and be deemed to be, a Lender for all
purposes of the Loan Documents, and each such Lender hereby agrees to be bound
by the Loan Documents, without the necessity of executing any amendment or
modification of this Loan Agreement or any other Loan Document; provided,
however, Borrower agrees to execute any documentation deemed necessary or
convenient by Agent Bank relating to any such sale or assignment, including,
without limitation amendments to the Loan Documents. No such sale or assignment
of a direct interest in the Loan and the Note may be made without the consent of
Agent, which consent shall not be unreasonably withheld. Without notice to
Borrower, Lenders may disclose to any prospective purchaser of the Loan, and of
any securities issued or to be issued by Lenders and to any prospective or
actual pur chaser of any participation or other interest in the Loan or any
other loans made by Lenders to Borrower (whether under this Loan Agreement or
otherwise) any financial or other information, data or material in Lenders'
possession relating to Borrower, the Loan or the Real Property.
Section 8.20 Exhibits Attached. Exhibits are attached
hereto and incorporated herein and made a part hereof as follows:
Exhibit A - Lenders' Proportions in Loan
Exhibit B - Note
Exhibit C - Real Property
Exhibit D - Equipment Leases and Contracts
Exhibit E - Compliance Certificate
Exhibit F - Tenant Leases
Exhibit G - Business Plan Projections
Exhibit H - Accounts
Section 8.21 No Partnership; Indemnity. Lenders shall not be deemed to
be a partner, joint venturer, alter-ego, manager, controlling person or other
business associate or participant of any kind of Borrower in connection with the
Loan or any action taken under this Loan Agreement. Lenders' activities in
connection with the Loan shall not be "outside the scope of the activities of a
lender of money", and Lenders do not intend to ever assume any responsibility to
any person for the quality or safety of the Real Property. Lenders shall not be
deemed responsible for or a participant in any acts, omissions or decisions of
Borrower. Borrower shall indemnify, hold Lenders harmless and defend Lender from
and against any and all loss, cost, damage, expense or liability, including
reasonable attorneys' fees, arising out of or resulting from such a
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construction of the parties and their relationship or resulting from any actual
or alleged defect in the construction of the Real Property. The provisions of
this Section shall survive payment of the Loan.
Section 8.22 Confirmation of Obligations. As of the date hereof and
subject to the terms of this Loan Agreement, Borrower confirms, ratifies and
restates all its obligations, representations and warranties under the Loan
Documents, and agrees to pay the indebtedness evidenced by the Loan Documents
according to the terms and provisions thereof. Subject to the terms of this Loan
Agreement, all of the terms, covenants and provisions of the Loan Documents
shall remain in full force and effect. Without limiting the generality of the
foregoing, Borrower hereby expressly acknowledges and agrees that Borrower does
not have any offsets, claims or defenses whatsoever against any of its
obligations under the Loan Documents. Any references to any of the Loan
Documents contained in the Loan Documents shall mean and include the Loan
Documents, as modified by this Loan Agreement. To the extent any of the
provisions set forth in this Loan Agreement are inconsistent with any of the
provisions of the Loan Documents, the provisions of this Loan Agreement shall
control.
Section 8.23 WAIVER OF RIGHT TO TRIAL BY JURY. EACH PARTY TO THIS LOAN
AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION (a) ARISING UNDER THE LOAN DOCUMENTS,
INCLUDING, WITHOUT LIMITATION, ANY PRESENT OR FUTURE MODIFICATION THEREOF OR (b)
IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE
PARTIES HERETO OR ANY OF THEM WITH RESPECT TO THE LOAN DOCUMENTS (AS NOW OR
HEREAFTER MODIFIED) OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR
DELIVERED IN CONNECTION HEREWITH, OR THE TRANSACTIONS RELATED HERETO OR HERETO,
IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN
CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT
ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT
TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS LOAN AGREEMENT MAY FILE AN
ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN
EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO
TRIAL BY JURY.
Section 8.24 Setoff. In addition to any rights and remedies of the Agent
Bank provided by law, if any Event of Default exists, Agent Bank is authorized
at any time and from time to time, without prior notice to Borrower, any such
notice being waived by Borrower to the fullest extent permitted by law, to
set-off and apply any and all deposits (general or special, time or demand,
provisional or final) at any time held by Agent Bank or any of the Lenders to or
for the credit or the account of Borrower including specifically, without
limitation, those certain accounts listed in Exhibit "H" attached hereto (the
"ACCOUNTS"), against any and all obligations of Borrower under
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the Loan, now or hereafter existing, irrespective of whether or not the Agent
Bank shall have made demand under this Loan Agreement or any Loan Document and
although such amounts owed may be contingent or unmatured. Agent Bank agrees
promptly to notify the Borrower (and Agent Bank shall promptly notify each
Lender) after any such setoff and application made by Agent Bank; provided,
however, that the failure to give such notice shall not affect the validity of
such set-off and application. The rights of Agent Bank under this Section 8.24
are in addition to the other rights and remedies which Agent Bank and Lenders
may have.
IN WITNESS WHEREOF, the parties hereto have caused this Loan Agreement
to be executed as of the day and year first above written.
BORROWER:
ZANTE, INC., a Nevada corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------
Title: Exec. V.P. and CFO
--------------------------
By:
-----------------------------
Name:
--------------------------
Title:
--------------------------
LENDERS:
▇▇▇▇▇ FARGO BANK, THE SUMITOMO BANK, LIMITED
NATIONAL ASSOCIATION
By: /s/ ART BROKY By: /s/ ▇.▇. ▇▇▇▇▇▇▇
---------------------------- --------------------------
Name: Art Broky Name: ▇.▇. ▇▇▇▇▇▇▇
------------------------ -----------------------
Title: VP Title: V.P. & Mgr.
------------------------ ----------------------
By: By: [SIG]
---------------------------- --------------------------
Name: Name: [Sig]
------------------------ -----------------------
Title: Title: [Title]
------------------------ ----------------------
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The undersigned is executing this Loan Agreement as of the 31st day of
January, 1998 with respect to the covenants set forth in Sections 5.14 and 5.15
hereof.
THE SANDS REGENT,
a Nevada corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
----------------------
Title: Exec. V.P. & CFO
---------------------
By:
------------------------
Name:
----------------------
Title:
---------------------
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EXHIBIT A
---------
LOAN PARTICIPATIONS
AMOUNT OF PERCENTAGE OF LOAN
NAME OF LENDER PARTICIPATION TO BORROWER
==============================================================================================
▇▇▇▇▇ Fargo Bank, $ 4,696,694.18 42.79448%
National Association
The Sumitomo Bank, Limited $ 6,278,305.82 57.20552%
-------------- ---------
TOTAL: $10,975,000.00 100.00000%
A-1
59
EXHIBIT B
---------
FORM OF PROMISSORY NOTE
B-1
60
EXHIBIT C-1
-----------
LEGAL DESCRIPTION OF HOTEL/CASINO PROPERTY
C-1
61
EXHIBIT C-2
-----------
LEGAL DESCRIPTION OF PARKING LOTS
C-2
62
EXHIBIT C-3
-----------
LEGAL DESCRIPTION OF AUSTIN ARMS APARTMENT BUILDING
C-3
63
EXHIBIT C-4
-----------
LEGAL DESCRIPTION OF PERSONNEL BUILDING
C-4
64
EXHIBIT C-5
-----------
LEGAL DESCRIPTION OF RESIDENCE
C-5
65
EXHIBIT D
---------
EQUIPMENT LEASES AND CONTRACTS
D-1
66
EXHIBIT E
---------
FORM OF COMPLIANCE CERTIFICATE
TO: ▇▇▇▇▇ Fargo Bank, National Association
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ATT'N: Mr. Art Brokx, Vice President Loan No. 9938418084
COMPLIANCE CERTIFICATE
----------------------
A. Non-Exempt Encumbrances (Section 5.8): Describe each mortgage,
deed of trust, pledge, lien, security interest, encumbrance,
attachment, levy, distraint or other judicial process, if any,
other than Permitted Encumbrances to which the Collateral has
been subject (other than taxes being disputed in good faith in
accordance with Sections 4.7 and 5.7).
B. Financial Covenants (Section 5.14): Attach on a separate sheet
each financial covenant calculation required under Section 5.14
and state whether or not Borrower is in compliance with each
covenant therein set forth and if not, the basis of such
non-compliance.
C. Additional Properties (Section 5.17): State whether or not any of
the additional properties described in Section 5.17 are being
used in any manner in connection with the Hotel/Casino Operation
and, if so, describe in detail the manner in which such
additional properties are so used.
D. Control of Sands Regent and of Borrower (Section 6.1):
State whether there is at least one member of the
Cladianos Family on the Board of Directors of Sand
Regent and then name the member of the Cladianos Family
which holds such position. State the percentage of the
outstanding voting stock of Sands Regent in which the
Cladianos Family retains beneficial ownership (within
the meaning of Section 13(d)(3) of the Securities
Exchange Act of 1934, as amended). State whether any
person or group of persons (within the meaning of
Section 13(d)(3) of the Securities Exchange Act of
1934, as amended) hold beneficial ownership of 20% or
more of the outstanding voting stock of Sands Regent,
to the knowledge of Borrower. Also, state whether any
shares of the Capital Stock of Borrower are owned by
any person or entity other than Sands Regent.
The undersigned, being the Chief Financial Officer of ZANTE, INC., a
Nevada corporation, hereby certifies to ▇▇▇▇▇
▇-▇
▇▇
▇▇▇▇▇ ▇▇▇▇, NATIONAL ASSOCIATION, and THE SUMITOMO BANK, LIMITED ("LENDERS")
that the information and calculations set forth above are true and correct and
that as of the ____ day of ____________, 199_, Zante, Inc., a Nevada
corporation, (is) (is not) in full compliance with the terms, covenants and
provisions contained in that certain Loan Agreement dated the ____ day of
__________, 1998, executed by and among the Lenders above-named and Zante, Inc.,
a Nevada corporation.
The defaults or non-compliance, if any, consist of the following:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
DATED this _____ day of ______________, 19__.
-----------------------
Chief Financial Officer
E-2
68
EXHIBIT F
---------
TENANT LEASES
F-1
69
EXHIBIT G
---------
BUSINESS PLAN PROJECTIONS
G-1
70
EXHIBIT H
---------
ACCOUNTS
H-1
71
AMENDED AND RESTATED TERM PROMISSORY NOTE
-----------------------------------------
$10,975,000.00 January 31, 1998
THIS AMENDED AND RESTATED TERM PROMISSORY NOTE ("NOTE") is dated as of
January 31, 1998 and is entered into by ZANTE, INC., a Nevada corporation
("MAKER") in favor of ▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION and THE SUMITOMO
BANK, LIMITED (collectively "LENDERS") and ▇▇▇▇▇ FARGO BANK, NATIONAL
ASSOCIATION, as administrative and collateral agent for Lenders ("AGENT BANK")
and amends and restates that certain Term and Revolving Credit Promissory Note
dated March 31, 1993 as such note may have been amended from time to time. All
undefined but capitalized terms used herein shall have the same meaning as set
forth in that certain Amended and Restated Loan Agreement ("LOAN AGREEMENT")
dated of even date herewith and entered into by and among Maker, The Sands
Regent, a Nevada corporation ("GUARANTOR") and Lenders.
FOR VALUE RECEIVED, Maker promises to pay to the order of Lenders by
wire transfer of immediately available funds to the main offices of Agent Bank
pursuant to the following wiring instructions:
▇▇▇▇▇ Fargo Bank, N.A.
▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ABA ▇▇▇-▇▇▇-▇▇▇
Acct. ▇▇▇▇▇▇▇▇▇▇
Ref: WFBCORP/SYDIC/ZANTE, INC.
in lawful money of the United States of America, the original principal sum not
to exceed TWENTY-THREE MILLION SIX HUNDRED NINE THOUSAND FIVE HUNDRED SIXTEEN
AND 00/100 DOLLARS ($23,609,516.00), having an outstanding principal balance as
of February 1, 1998 of $10,975,000, together with interest on the outstanding
and unpaid balance of said principal sum, which interest shall accrue at an
annual rate, or rates, hereinafter collectively referred to as the "NOTE RATE".
The Note Rate shall be determined as more particularly set forth below. Interest
shall commence accruing at the Note Rate on February 1, 1998 and shall continue
to accrue at the rates provided for herein until the entire principal balance
under this Note has been fully paid.
Payment under the Loan shall be paid in the following manner ("FIXED
MONTHLY PAYMENT AMOUNT"):
(1) For the period beginning February 1, 1998 through January 31, 1999,
on the first day of each and every month, Maker shall make equal monthly
payments in the amount of One Hundred Twelve Thousand Dollars ($112,000) per
month.
72
(2) For the period beginning February 1, 1999 through and including the
Maturity Date, on the first day of each and every month, Maker shall make
payments in the amount equal to the greater of (a) all accrued and unpaid
interest on the outstanding principal balance of the Loan (other than the
Differential Amount (as defined below) unless required hereunder) or (b) One
Hundred Twenty Thousand Dollars ($120,000) per month.
Interest shall accrue on the outstanding principal balance of the Loan
as follows ("INTEREST AMOUNT"):
(1) For the period beginning February 1, 1998 through January 31, 1999,
the unpaid but outstanding principal balance of the Loan shall accrue interest
at the per annum rate equal to the Reference Rate plus one and one-half percent
(1.5%) per annum; provided, however, the interest rate shall not exceed under
any circumstances eleven percent (11%) per annum.
(2) For the period beginning February 1, 1999 through and including the
Maturity Date, the unpaid but outstanding principal balance of the Loan shall
accrue interest at the per annum rate equal to the Reference Rate plus two and
one-half percent (2.5%) per annum; provided, however, the interest rate shall
not exceed under any circumstances fourteen percent (14%) per annum.
The difference between the Fixed Monthly Payment Amount and the Interest
Amount, if any, shall be applied against the outstanding principal balance of
the Loan and shall serve to reduce the outstanding principal balance of the
Loan. In the event that a shortfall exists between the Fixed Monthly Payment
Amount and the Interest Amount, such shortfall shall be paid immediately upon
demand by Maker to Lenders in accordance with the terms of this Note and the
Loan Agreement.
In addition to the Fixed Monthly Payment Amount, Maker shall pay to
Lenders ("SEMI-ANNUAL PRINCIPAL REDUCTION") semi-annually on June 30 and
December 31 of each calendar year ("SEMI-ANNUAL PAYMENT DATE") of the term of
the Loan, one hundred percent (100%) of available cash and cash equivalents
accumulated or held by Maker in excess of Five Million Five Hundred Thousand
Dollars ($5,500,000). In determining the amounts accumulated or held by Maker in
excess of Five Million Five Hundred Thousand Dollars ($5,500,000), such
calculation shall be based on the average for the thirty (30) days prior to each
such Semi-Annual Payment Date, with such Semi-Annual Principal Reduction made by
Maker to Lenders hereunder to be applied by Lenders to the outstanding unpaid
principal balance of the Loan and shall serve to reduce the principal balance of
the Loan.
Maker and Lenders acknowledge and agree that for the period of July 1,
1997 through and including January 30, 1998, interest
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73
accrued at the rate equal to the Reference Rate plus three percent (3%) per
annum (the "ACCRUAL RATE") while the Maker was only required to pay interest at
the rate equal to the Reference Rate plus three-fourths percent (.75%) per annum
(the "PAY RATE"). The existing interest differential between the Pay Rate and
the Accrual Rate shall be deemed added to the outstanding principal balance of
the Loan and shall be required to be repaid by Maker to Lenders on or prior to
the Maturity Date; provided, however, in the event Maker performs all of its
obligations under the Loan Documents and timely repays all amounts due and owing
to Lenders under the Loan Documents, on or prior to the Maturity Date, such
differential amount (the "DIFFERENTIAL AMOUNT") shall be forgiven by Lenders and
Maker shall not be required to pay such differential amount.
The outstanding principal amount due hereunder, together with all
accrued and unpaid interest thereon, and all other costs, sums and expenses due
hereunder, shall be immediately due and payable on the Maturity Date.
A. GENERAL PROVISIONS.
1. Borrowings. All borrowings hereunder shall be made in
accordance with the terms, provisions and procedures set forth
in the Loan Agreement.
2. Setting and Notice of Rates. The applicable Reference Rate shall be
determined by Agent Bank, and notice thereof shall be given promptly to Maker
upon calculation. Each determination of the applicable Reference Rate shall be
conclusive and binding upon the parties hereto, in the absence of demonstrable
error.
3. Interest Computation. Interest shall be computed for the actual
number of days elapsed, during a period for which interest is calculated, on the
basis of a 360-day year.
4. Security. This Note is secured by, among other things, the Deed of
Trust, as amended by the First Amendment to Deed of Trust, the Additional Deed
of Trust, the Second Deed of Trust and other Collateral as more fully described
in the Loan Agreement.
5. Acceleration. Maker promises and agrees that if any Event of Default
shall occur and be continuing, the whole sum of principal and interest on this
Note which shall then remain unpaid shall, at the option of Lenders, become
forthwith due and payable, although the time of maturity as expressed herein
shall not have arrived. In the event of the occurrence of an Event of Default,
all sums thereafter received shall be applied (i) first, to the payment of all
fees, costs, expenses and advances made by Lenders towards satisfaction of
Maker's obligations under the Loan Documents (including reasonable attorney's
fees and expenses) incurred by Lenders, their agents or representatives in
connection with the collection of all sums
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due under the terms of this Note and/or the realization upon any Collateral
securing repayment hereof, (ii) secondly, to the payment of interest then due,
and (iii) thirdly, to the reduction of the principal sum, and (iv) fourthly, to
Maker.
6. Default Rate. If any payment due hereunder is not paid within ten
(10) days following the date it becomes due, the total of the unpaid balance of
principal and the then accrued unpaid interest shall, at the option of Lenders,
collectively and immediately without further notice to Maker commence accruing
interest at an annual rate equal to the Reference Rate plus three percent (3%)
per annum added to such Reference Rate until such time as all payments and
additional interest are paid, together with the curing of any other Event of
Default which may have occurred, at which time the interest rate shall revert to
the Note Rate.
7. Costs and Fees. In the event of the occurrence of an Event of
Default, the undersigned agrees to pay all costs of collection, including
reasonable attorney's fees incurred by Lenders in connection therewith, in
addition to and at the time of such sum of money and/or the performance of such
acts as may be required to cure such Event of Default. In the event legal action
is commenced for the collection of any sums owing hereunder, the undersigned
agrees that any judgment issued as a consequence of such action against the
Maker hereof shall bear interest at an annual rate equal to the Reference Rate
plus three percent (3%) per annum added to such Reference Rate until fully paid.
8. Late Charges. If any payment due hereunder is not paid within ten
(10) days following the date it becomes due, Maker promises to pay a late charge
or collection charge in the amount of one percent (1%) of the amount of the
payment not so paid.
9. Loan Agreement. This Note is issued under and subject to the terms,
covenants and conditions of the Loan Agreement, which is by this reference
incorporated herein and made a part hereof.
10. Prepayments. The prepayment provisions of the Loan Agreement are
incorporated herein by this reference.
11. Increased Costs. If after the date hereof the adoption of, or any
change in, any applicable law, rule or regulation (including without limitation
Regulation D of the Board of Governors of the Federal Reserve System and any
successor thereto), or any change in the interpretation or administration
thereof by any Governmental Authority, central bank or comparable agency charged
with the interpretation or administration thereof, or compliance by any Lender
with any request or directive (whether or not having the force of law) of
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any such Governmental Authority, central bank or comparable agency:
A. Shall impose, modify or deem applicable any reserve imposed by
the Board of Governors of the Federal Reserve System, special deposit,
capitalization or similar requirement against assets of, deposits with or for
the account of, or credit extended by, any Lender; or
B. Shall impose on any Lender any other condition affecting the
loan evidenced hereby, this Note or such Lender's obligation to make the loan
evidenced hereby;
and the result of any of the foregoing is to increase the cost to (or in the
case of Regulation D or reserve requirements referred to above or a successor
thereto, to impose a cost on) such Lender of making or maintaining the loan
evidenced hereby or to reduce the rate of return on the loan evidenced hereby or
the amount of any sum received or receivable by such Lender under this Note,
then within ten (10) days after demand by such Lender (which demand shall be
accompanied by a certificate setting forth in reasonable detail the basis of
such demand), the Maker shall pay directly to such Lender such additional amount
or amounts as will compensate such Lender for such increased cost (or in the
case of Regulation D or reserve requirements referred to above or a successor
thereto, such costs which may be imposed upon such Lender) or such reduction in
the rate of return or of any sum received or receivable under this Note. Each
Lender agrees to use its best efforts to minimize such increased or imposed
costs or such reduction.
B. DEFINITIONS. When used herein the following terms shall have the
following meaning:
Additional Deed of Trust shall mean the "Additional Deed of Trust" as
that term is defined in the Loan Agreement.
Collateral shall mean the "Collateral" as that term is defined in the
Loan Agreement.
Deed of Trust shall mean the "Deed of Trust" as that term is defined in
the Loan Agreement.
Event of Default shall mean any "Event of Default" as that phrase is
defined in the Loan Agreement.
First Amendment to Deed of Trust shall mean the "First Amendment to Deed
of Trust" as that term is defined in the Loan Agreement.
Loan Documents shall mean the "Loan Documents" as that term is defined
in the Loan Agreement.
Maturity Date shall mean January 15, 2000.
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Note shall mean this Amended and Restated Term Promissory
Note.
Reference Rate shall mean the rate of interest which ▇▇▇▇▇ Fargo Bank,
National Association, or its successor or assigns, from time to time
identifies and publicly announces as its prime rate and is not
necessarily, for example, the lowest rate of interest which ▇▇▇▇▇ Fargo
Bank, National Association, collects from any borrower or group of
borrowers.
Second Deed of Trust shall mean the "Second Deed of Trust" as that term
is defined in the Loan Agreement.
C. MISCELLANEOUS PROVISIONS.
1. Default. Upon any Event of Default, at the option of Lenders, all
amounts due and owing hereunder or under the Loan Agreement or Loan Documents
together with unpaid interest accrued thereon shall at once become due and
payable.
2. Waiver. Maker, and any and all endorsers, guarantors and sureties of
this Note, and all other persons liable or to become liable on this Note,
severally waive presentment for payment, demand, notice of demand and of
dishonor and nonpayment of this Note, notice of intention to accelerate the
maturity of this Note, protest and notice of protest, diligence in collecting,
and the bringing of suit against any other party, and agree to all renewals,
extensions, modifications, partial payments, releases or substitutions of
security, in whole or in part, with or without notice, before or after maturity.
The pleading of any statute of limitations as a defense to any demand against
the makers, endorsers, guarantors and sureties hereof is expressly waived by
each and all such parties to the extent permitted by law.
3. Interest Rate Limitation. Notwithstanding any provision herein or in
any document or instrument now or hereafter securing this Note, the total
liability for payments in the nature of interest shall not exceed the limits now
or hereafter imposed by the applicable laws of the State of Nevada or the United
States of America.
4. Governing Law. This Note has been delivered in Reno, Nevada, and
shall be governed by and construed in accordance with the laws of the State of
Nevada.
5. Partial Invalidity. If any provision of this Note shall be prohibited
by or invalid under any applicable law, such provision shall be ineffective only
to the extent of such prohibition or invalidity, without invalidating the
remainder of such provision or any other provision of this Note.
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6. No Deductions. All payments of principal of and interest on the Loan
shall be made without the right of set-off and without deduction of any present
and future taxes, levies, duties, imposts, deductions, charges or withholdings
imposed by any existing or future law, rule, regulation, treaty, directive or
requirement, whether or not having the force of law, which amounts shall be paid
by Maker. Maker will pay the amounts necessary such that the gross amount of the
principal and interest received by Lender is not less than that required by this
Note and the Loan Agreement. All stamp and documentary taxes shall be paid by
Maker. If, notwithstanding the foregoing, Lender pays such taxes, Maker will
reimburse Lender for the amount paid, as additional interest, within five (5)
days of Lender's demand for payment. Maker will furnish Lender official tax
receipts or other evidence of payment of all such amounts.
7. Restrictions upon Transfer. The Deed of Trust, the Additional Deed of
Trust and the Second Deed of Trust provide in part:
"The Beneficiary may without notice to or consent of Trustor
extend the time of the payment of any indebtedness secured hereby to any
successor in interest of the Trustor without discharging the Trustor
from liability thereon. Except as otherwise permitted in this Section
12, if the Trustor shall sell or convey or create or permit to exist any
mortgage, pledge, security interest or other encumbrance or in any other
manner alienate any Property hereby encumbered or any part thereof, or
shall enter into any agreement for the same, or any interest therein, or
shall be divested of his title in any manner or way, whether voluntary
or involuntary or by merger without the written consent of Beneficiary
being first had and obtained, any indebtedness or obligation secured
hereby, irrespective of the maturity dates expressed in any notes
evidencing the same, at the option of Beneficiary, and upon the giving
of any notice which may be required under the Loan Agreement and the
expiration of any applicable cure period, shall immediately become due
and payable. In the event that Beneficiary does not elect to declare the
Note immediately due and payable, then, unless indicated otherwise in
writing by Beneficiary, Trustor shall nevertheless remain primarily
liable for the obligations under this Deed of Trust and secured by this
Deed of Trust, including without limitation, under the Note and any
other instrument securing the Note. This provision shall apply to each
and every sale, transfer, encumbrance or conveyance, regardless whether
or not Beneficiary has consented to, or waived, Beneficiary's rights
hereunder, whether by action or non-action in connection with any
previous sale, transfer or conveyance. For the purposes hereof, any
change in the identity, structure or control of Trustor, whether by way
of a change in the identity of any
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shareholder of Trustor or a change in the ownership or control of
Trustor or any shareholder of Trustor, by merger or otherwise, shall be
deemed a sale hereunder."
IN WITNESS WHEREOF, this Note has been executed as of the day and year
first hereinabove written.
MAKER:
ZANTE, INC.,
a Nevada corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------
Title: Exec. VP and CFO
-----------------------
By:
--------------------------
Name:
-----------------------
Title:
-----------------------
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AMENDED AND RESTATED GUARANTY OF LOAN
-------------------------------------
THIS AMENDED AND RESTATED GUARANTY OF LOAN ("GUARANTY") is dated as of
January 31, 1998 and is entered into by THE SANDS REGENT, a Nevada corporation
("GUARANTOR") and amends and restates that certain Guaranty of Loan dated March
31, 1993 as such guaranty may have been amended from time to time. All undefined
but capitalized terms used herein shall have the same meaning as set forth in
that certain Amended and Restated Loan Agreement dated of even date herewith
("LOAN AGREEMENT") and entered into by and among Guarantor, ZANTE, INC., a
Nevada corporation (hereinafter referred to as "BORROWER"), and Lenders.
Guarantor is executing this Guaranty in connection with that term loan
to Borrower in an original principal amount not to exceed Twenty-Three Million
Six Hundred Nine Thousand Five Hundred Sixteen Dollars ($23,609,516.00), as more
particularly described in the Loan Agreement, with an outstanding unpaid
principal balance of $10,975,000 as of February 1, 1998, with reference to the
following facts:
A. The Recitals set forth in the Loan Agreement are hereby incorporated
herein by this reference as though fully set forth verbatim.
B. For the purpose of this Guaranty, all capitalized terms not otherwise
specifically defined herein shall have the same meaning given them in Section
1.1 of the Loan Agreement as though fully restated verbatim.
C. As an inducement to Lenders to enter into the Loan Agreement with
Borrower, Lenders have required that Guarantor enter into and execute this
Guaranty unconditionally guaranteeing to Lenders all sums owing under the Loan.
D. Guarantor is willing to guarantee fully and unconditionally all sums
owing from time to time under the Loan.
NOW, THEREFORE, in consideration of the Loan made to Borrower and with
the knowledge that Lenders would not enter into the Loan Agreement but for the
promise of Guarantor hereunder, Guarantor hereby represents, warrants, promises
and covenants as follows:
1. Loan Guaranty. Guarantor unconditionally and irrevocably guarantees
Lenders the full and prompt payment and performance of all of Borrower's present
and future indebtedness and monetary and non-monetary obligations under the
Loan, the Note, the Loan Documents, and under all modifications, renewals and
extensions of such instruments collectively, the "GUARANTEED OBLIGATIONS"). All
such indebtedness and obligations shall be payable by Guarantor to Lenders
immediately upon demand. The
80
obligation of Guarantor hereunder shall be an unconditional obligation to make
prompt payment to Lenders irrespective of the genuineness, validity, regularity
or enforceability of any of the Guaranteed Obligations or of any other
circumstance which might otherwise under the laws of any jurisdiction constitute
a legal or equitable discharge of a surety or a guarantor or a bar (in the
nature of a moratorium or otherwise) to the enforcement of Lenders' rights
either: (i) against Borrower in respect of the Guaranteed Obligations; or (ii)
under this Guaranty. The obligations under this Guaranty shall be absolute,
independent and unconditional under any and all circumstances.
2. Expenses. Guarantor agrees to pay all costs and expenses, including
reasonable attorneys' fees, which may be incurred by Lenders in any effort to
collect the Loan or enforce any of the Loan Documents or the obligations of
Guarantor hereunder, whether or not any lawsuit is filed, including, without
limitation, all costs and attorneys' fees incurred by Lenders in any insolvency
proceeding (including, without limitation, any action for relief from the
automatic stay of any bankruptcy proceeding) and in any judicial or nonjudicial
foreclosure action. Such amounts shall bear interest until paid at a rate equal
to the Default Rate.
3. Rights of Lenders. Guarantor authorizes Lenders at any time in their
discretion to renew, compromise, extend, accelerate or otherwise alter any of
the terms of all or any portion of the Loan, or the Loan Documents, to take and
hold any security for all or any portion of the Guaranteed Obligations, and to
accept additional or substituted security, to subordinate, compromise, enforce,
exchange, waive or release any security, to apply such security and direct the
order or manner of sale thereof, to release Borrower from its liability for all
or any portion of the Guaranteed Obligations, to release, substitute, or add any
one or more guarantors or endorsers, to take any other action which might
otherwise release, discharge or make a defense available to Guarantor, and to
assign this Guaranty in whole or in part. Lenders may take any of the foregoing
actions upon any terms and conditions as Lenders may elect, without giving
notice to Guarantor or obtaining the consent of Guarantor and without affecting
the liability of Guarantor to Lenders.
4. Independent Actions - One-Action Waiver. Guarantor's obligations
under this Guaranty are independent of those of Borrower and every other
guarantor of all or any portion of the Guaranteed Obligations. To the fullest
extent permitted by law, Guarantor hereby waives the provisions of NRS 40.430
and authorizes and agrees that Lenders may bring a separate action against
Guarantor without first proceeding against Borrower or any other guarantor or
any other person or any security held by
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Lenders and without pursuing any other remedy. Lenders' rights under this
Guaranty will not be exhausted by any action by Lenders or by any payment made
by Borrower as to the Guaranteed Obligations.
5. Waivers of Defenses. Guarantor waives: (a) all statutes of
limitations as a defense to any action brought against Guarantor by Lenders, to
the fullest extent permitted by law; (b) any defense based upon any legal
disability of Borrower or any discharge or limitation of the liability of
Borrower to Lenders, whether consensual or arising by operation of law or any
bankruptcy, insolvency, or debtor-relief proceeding, or any other cause; (c)
acceptance, notice of acceptance, presentment, demand, protest and notice of any
kind; (d) any other defense which would otherwise be available to a surety; and
(e) all rights of subrogation, all rights to enforce any remedy that Lenders may
have against Borrower, and all rights to participate in any security held by
Lenders for all or any portion of the Guaranteed Obligations.
6. Borrower's Financial Condition. Guarantor assumes full responsibility
for keeping fully informed of the financial condition of Borrower and all other
circumstances affecting Borrower's ability to perform its obligations to Lenders
and agrees that Lenders will have no duty to report to Guarantor any informal on
which Lenders receive about Borrower's financial condition or any circumstances
bearing on Borrower's ability to perform.
7. Right of Setoff. In addition to all rights of setoff or lien against
any monies, securities or other property of Guarantor given to Lenders by law,
Lenders will have a right of setoff against all monies, securities and other
property of Guarantor now or hereafter in the possession of or on deposit with
Lenders whether held in a general or special account or deposit or for
safekeeping or otherwise; and every such right of setoff may be exercised
without demand upon or notice to Guarantor. No right of setoff shall be deemed
to have been waived by any act or conduct on the part of Lenders, or by any
neglect to exercise such right of setoff, or by any delay in doing so; and every
right of setoff shall continue in full force and effect until specifically
waived or released by an instrument in writing executed by Lenders.
8. Impairment of Subrogation Rights. Upon a default of Borrower, Lenders
may elect to non-judicially or judicially foreclose against any Collateral it
holds for all or any portion of the Guaranteed Obligations or other indebtedness
or any part thereof, or exercise any other remedy against Borrower or any
security. No such action by Lenders will release or limit the liability of
Guarantor to Lenders, even if the effect of that action is to deprive Guarantor
of the right to collect reimbursement from Borrower for any sums paid to
Lenders.
9. Subordination. Any indebtedness of Borrower now or hereafter held by
Guarantor is hereby subordinated to the
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indebtedness of Borrower to Lenders; and from and after the occurrence of an
Event of Default under the Loan Agreement and for so long as such Event of
Default shall continue such indebtedness of Borrower to Guarantor, if Lenders so
request, shall be collected, enforced and received by Guarantor as trustee for
Borrower and paid over to Lenders on account of the Guaranteed Obligations to
Lenders but without reducing or affecting in any manner the liability of
Guarantor under the other provisions of this Guaranty.
10. Default. Lenders may declare Guarantor in default under this
Guaranty if Guarantor fails to perform any of its obligations under this
Guaranty or breaches any representation, warranty or covenant made hereunder and
such default or breach shall have remained uncured for a period of ten (10) days
after written notice by Lenders of such default or breach or becomes the subject
of any bankruptcy, insolvency, arrangement, organization or other debtor-relief
proceeding under any federal or state law whether now existing or hereafter
enacted which shall remain undismissed for a period of ninety (90) days.
11. Delay; Cumulative Remedies. No delay or failure by Lenders to
exercise any right or remedy against Borrower or any guarantor will be construed
as a waiver of that right or remedy. All remedies of Lenders against Borrower,
any other guarantor and Guarantor are cumulative.
12. Continuing Guaranty. This is a guaranty of payment and not of
collection, it is intended to be and shall be construed as a continuing guaranty
and shall remain in full force and effect so long as any Guaranteed Obligation
remains outstanding or Lenders remain obligated to advance funds pursuant to
Loan Agreement. If any payment or a part thereof by or for the account of
Borrower to Lenders is rescinded or must otherwise be returned by any of
Lenders, this Guaranty shall continue to be effective, or be reinstated, as to
said payment or a part thereof as if such payment or part thereof had never been
made to Lenders.
13. Payments. Guarantor understands that the obligations of Borrower to
Lenders may at any time and from time to time exceed the aggregate liability of
Guarantor hereunder without impairing this Guaranty. Guarantor shall not be
credited for payment of any of the Guaranteed Obligations unless such payment is
received by Lenders in immediately available funds and is made by Guarantor
after a demand made by Lenders pursuant to this Guaranty. Guarantor agrees that
whenever Guarantor shall make any payment to Lenders hereunder on account of the
liability hereunder, Guarantor will deliver such payment to
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Lenders by wire transfer of immediately available funds pursuant to the
following wire instructions:
▇▇▇▇▇ Fargo Bank, N.A.
▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ABA ▇▇▇-▇▇▇-▇▇▇
Acct. ▇▇▇▇▇▇▇▇▇▇
Ref: WFBCORP/SYDIC/ZANTE, INC.
and notify Lenders in writing that such payment is made under this Guaranty for
such purpose. Lenders, without impairing this Guaranty, may apply payments from
Borrower to the Guaranteed Obligations, or to such other obligations owed by
Borrower to Lenders, in such amounts and in such order as Lenders in their
complete discretion determine. No payment made hereunder by Guarantor to Lenders
shall cause Guarantor to be or become a creditor of Lenders.
14. WAIVER OF RIGHT TO TRIAL BY JURY. EACH PARTY TO THIS GUARANTY HEREBY
EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR
CAUSE OF ACTION (a) ARISING UNDER THE LOAN DOCUMENTS, INCLUDING, WITHOUT
LIMITATION, ANY PRESENT OR FUTURE MODIFICATION THEREOF OR (b) IN ANY WAY
CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR
ANY OF THEM WITH RESPECT TO THE LOAN DOCUMENTS (AS NOW OR HEREAFTER MODIFIED) OR
ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION
HEREWITH, OR THE TRANSACTIONS RELATED HERETO OR HERETO, IN EACH CASE WHETHER NOW
EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR TORT OR
OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A
JURY, AND THAT ANY PARTY TO THIS GUARANTY MAY FILE AN ORIGINAL COUNTERPART OR A
COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE
PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
15. Notices. All notices, demands and other communications between
Lenders and Guarantor pursuant to this Guaranty shall be in writing, shall be
addressed to the appropriate address set forth in this Section, or at such other
place as Lenders or Guarantor, as the case may be, may from time to time
designate in writing by ten (10) days prior written notice thereof, and shall
be: (a) hand-delivered, effective upon receipt; or (b) sent by United States
Express Mail or by private overnight courier, effective upon receipt; or (c)
sent by certified mail, return receipt requested, shall be deposited in the
United States mail, with postage thereon fully prepaid and shall be deemed
effective on the day of actual delivery as shown by the addressee's return
receipt or the expiration of three (3) business days after the date of mailing,
whichever is
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the earlier in time. The addresses of the parties are as follows:
To Guarantor: The Sands Regent
c/o Zante, Inc.
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Mr. ▇▇▇▇ ▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, CHTD.
Norwest Bank Center
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
To Lenders,
c/o Agent Bank: ▇▇▇▇▇ Fargo Bank, National Association
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Mr. Art Brokx
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: Pillsbury Madison & Sutro LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
16. Advice of Counsel. Guarantor has consulted with its attorneys
regarding the terms and conditions and waivers set forth in this Guaranty.
Guarantor's attorneys have advised Guarantor of the true legal consequences of
each waiver set forth in this Guaranty, including the rights Guarantor would
have in the absence of such waivers.
17. Financial or other Benefit or Advantage. Guarantor hereby
acknowledges and warrants that Guarantor has derived or expects to derive a
financial or other benefit or advantage from the Loan and from each and every
renewal, extension, release of collateral or other relinquishment of legal
rights made or granted or to be made or granted by Lenders to Borrower in
connection with the Loan. Guarantor acknowledges that Borrower is not merely the
agent, instrumentality or alter ego of Guarantor, and that Borrower is an
independent and separate business entity, fully and adequately capitalized for
its own business purposes.
18. Miscellaneous. The invalidity or unenforceability of any one or more
provisions of this Guaranty will not affect any other provision. This Guaranty
will be governed by and construed in accordance with the laws of the State of
Nevada and may be amended only by a written instrument executed by
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Guarantor and Lenders. Guarantor further agrees that the full and exclusive
forum and venue for the determination of any action relating to this Guaranty
shall be either an appropriate Court of the State of Nevada or the United States
District Court for the District of Nevada. The provisions of this Guaranty will
bind and benefit the heirs, executors, administrators, legal representatives,
successors and assigns of Guarantor and Lenders. Whenever the context requires,
all terms used in the singular will be construed in the plural and vice versa,
and each gender will include each other gender. Nothing herein contained shall
be deemed or construed to limit, modify or otherwise affect any other guaranty
by Guarantor to Lenders which is not related to the Guaranteed Obligations.
19. Captions. The Section headings contained herein are solely for
convenience of reference and shall not constitute a part of this Guaranty nor
shall they affect the meaning, construction or effect of this Guaranty.
IN WITNESS WHEREOF, Guarantor has executed this Guaranty as of the date
first set forth above.
Guarantor:
THE SANDS REGENT,
a Nevada corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
------------------------
Title: Exec. V.P. and CFO
------------------------
By:
----------------------------
Name:
------------------------
Title:
------------------------
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STATE OF NEVADA )
) ss.
COUNTY OF WASHOE )
On June 1, 1998, before me, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, a Notary Public in and for
the State of NEVADA, personally appeared ▇▇▇▇▇ ▇. ▇▇▇▇, personally known to me
to be the person whose name is subscribed to the within instrument, and
acknowledged to me that he executed the same in his authorized capacity and
that, by his signature on the instrument, the person or the entity upon behalf
of which he acted, executed the instrument.
WITNESS my hand and official seal.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Notary Public in and for said State
(Notarial Seal)
87
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Pillsbury Madison & Sutro LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇., Esq.
FIRST AMENDMENT TO DEED OF TRUST, FIXTURE FILING
AND SECURITY AGREEMENT WITH ASSIGNMENT OF RENTS
-----------------------------------------------
THIS FIRST AMENDMENT TO DEED OF TRUST, FIXTURE FILING AND SECURITY
AGREEMENT WITH ASSIGNMENT OF RENTS ("FIRST AMENDMENT"), is made as of this 31st
day of January, 1998, by and between ZANTE, INC., a Nevada corporation, Debtor
and Trustor, (hereinafter referred to as "TRUSTOR") and WESTERN TITLE COMPANY, a
Nevada corporation, Trustee, (hereinafter referred to as "TRUSTEE"), and ▇▇▇▇▇
FARGO BANK, NATIONAL ASSOCIATION, and THE SUMITOMO BANK, LIMITED, Secured
Parties and Beneficiaries (hereinafter collectively referred to as
"BENEFICIARY") and ▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION, its successors and
assigns, as Agent Bank for Beneficiary ("AGENT BANK"), with reference to the
following facts:
A. Trustor has executed that certain Deed of Trust, Fixture Filing and
Security Agreement with Assignment of Rents dated March 31, 1993 in favor of
First Interstate Bank of Nevada, National Association, First Interstate Bank of
California, and The Daiwa Bank, Limited and recorded on April 5, 1993 as
Instrument No. 1661414 in the Official Records of Washoe County, Nevada ("DEED
OF TRUST") covering that certain property more particularly described therein.
▇. ▇▇▇▇▇ Fargo Bank, National Association, is successor-in-interest to
First Interstate Bank of Nevada, National Association, and First Interstate Bank
of California and The Sumitomo Bank, Limited, is successor-in-interest to The
Daiwa Bank, Limited.
C. All capitalized but undefined terms used herein shall have the same
meaning as set forth in the Deed of Trust.
D. Concurrently herewith, Trustor, The Sands Regent, a Nevada
corporation, and Beneficiary have entered into that certain Amended and Restated
Loan Agreement of even date herewith and that certain Amended and Restated Term
Promissory Note of even date herewith evidencing that certain Loan in the
88
original principal amount of not to exceed Twenty-Three Million Six Hundred Nine
Thousand Five Hundred Sixteen ($23,609,516.00) with an outstanding principal
balance of $10,975,000 as of February 1, 1998.
NOW, THEREFORE, Trustor and Beneficiary hereby desire to amend the Deed
of Trust as set forth herein.
1. All references to "Real Property" in the first three paragraphs under
the heading "DESCRIPTION OF COLLATERAL" shall be deemed revised to refer to
"Land".
2. The legal description of the Land set forth in Exhibit "A" attached
to the Deed of Trust shall be deemed amended by adding additional real property
collateral such that a new legal description shall be deemed added as set forth
on Exhibit A affixed hereto and by this reference incorporated into the Deed of
Trust and herein and made a part thereof and hereof.
3. All of the language after the third full paragraph until the phrase
"SUBJECT, HOWEVER, to the following" under the heading "DESCRIPTION OF
COLLATERAL" shall be deemed deleted and replaced with the following:
"All present and future chattels, furniture, furnishings,
equipment, fixtures, building materials, building contents and building
components, all of every kind and nature, and other tangible personal
property: (i) which is used in connection with, situate in or on,
affixed to, or incorporated into: (aa) any portion of the real property
which is particularly described by 'Exhibit A' hereto (the 'Land'); (bb)
all real property which is adjacent to, or used in connection with, the
Land and in which Trustor now owns or hereafter acquires an interest
(the 'Adjacent Property'); and/or (cc) all tenements, hereditaments and
appurtenances to the Land or the Adjacent Property (the 'Appurtenances'
and, together with the Land and the Adjacent Property, the 'Real
Property'); (ii) which is used in connection with, situate in or on,
affixed to, or incorporated into, any building, structure or other
improvement that is now or that may be hereafter constructed on or under
the Real Property; and/or (iii) in which Trustor otherwise has or
acquires an interest; all including, without limitation: (aa) all
lumber, bricks, cement, masonry, steel, doors, windows, fasteners,
nails, bolts, scaffolding, tools, construction supplies, construction
tools and equipment and all other building materials, supplies and
equipment of any kind or nature; (bb) all air conditioning, heating,
electrical, lighting, fire fighting and fire prevention, plumbing, food
and beverage preparation, laundry, security, sound, signaling,
telephone, television, entertainment stage, window washing, irrigation,
storage, shop, landscaping, signage and other equipment and fixtures, of
whatever kind
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89
or nature, consisting of, without limitation, air conditioners,
compressors, fans, duct work, thermostats, furnaces, boilers, radiators,
burners, wiring, conduits, cables, generators, transformers, switching
gear, lighting fixtures, sprinkler systems and other fire extinguishing
equipment, fire alarms and other fire detection equipment, piping,
pumps, valves, sinks, toilets, tubs, motors, carts, elevators and other
lifts, ovens, refrigerators, dishwashers and dishwashing equipment,
fabric washing and drying equipment, lock and key systems, surveillance
and entry detection systems, speakers, intercoms and public address
systems, hardware, shelving, maintenance and repair equipment and all
other similar items; (cc) all furniture, furnishings, wall coverings,
floor coverings, window coverings, artwork and decorative items
including, without limitation, casino, guest room, bathroom, lobby, bar,
restaurant, storage, retail, meeting, convention, leisure, recreation,
office, administrative and other furniture, furnishings, wall coverings,
floor coverings, window coverings, artwork and decorative items; (dd)
all hotel equipment and supplies, including without limitation,
televisions, radios, telephones, linen, bedding, amenities, carts,
recreational equipment, leisure equipment and all other equipment and
supplies utilized in the occupation or renting of hotel guest rooms and
public areas; (ee) all bar and restaurant equipment and supplies,
including, without limitation, kitchen and bar appliances, pots, pans,
plates, dishes, cups, glasses, serving utensils, cooking utensils and
all other equipment and supplies used in the operation of bars and/or
restaurants; (ff) all casino equipment and supplies including, without
limitation, slot machines, gaming tables, cards, dice, gaming chips,
tokens, player tracking systems, Gaming Devices and Related Equipment as
defined in Nevada Revised Statutes Chapter 463 and all other equipment
and supplies utilized in operation of a casino; (gg) all cabaret, stage
and entertainment equipment and supplies including, without limitation,
stage equipment, sets, spotlights, sound equipment, musical instruments
and other equipment and supplies utilized in the operation of stage and
cabaret shows and other entertainment productions; (hh) all office and
administrative equipment and supplies including, without limitation,
office appliances, filing cabinets, computers, peripheral computer
equipment and other data processing and storage equipment, stationery
and other office supply items, and other office and administrative
equipment and supplies; (ii) all indoor and outdoor pool and
recreational equipment and supplies; (jj) all tools and other
maintenance and repair equipment; (kk) all landscaping equipment and
supplies; and (ll) all equipment and supplies utilized in connection
with any other activity engaged in by Trustor;
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90
All present and future supplies, inventory and merchandise which
is used in connection with, or in the conduct of, the business of
Trustor or in which Trustor has or acquires an interest, including,
without limitation: (i) all present and future goods held for sale or
lease or to be furnished under a contract of service, all raw materials,
work in process and finished goods, all packing materials, supplies and
containers relating to or used in connection with any of the foregoing,
and all bills of lading, warehouse receipts or documents of title
relating to any of the foregoing; (ii) all food stuffs, beverages,
prepared food and other similar items; and (iii) all hotel amenities,
cleaning supplies, office supplies, consumables and similar items;
All present and future goods, which are not otherwise set forth
herein, and which are used in connection with, or in the conduct of, the
business of Trustor or in which Trustor has or acquires an interest;
All present and future accounts, accounts receivable, rentals,
deposits, rights to payment, instruments, documents, chattel paper,
security agreements, guaranties, undertakings, surety bonds, insurance
policies and notes and drafts which are owned, or used in connection
with, or in the conduct of, the business of Trustor, or in which Trustor
has or acquires an interest, however created or arising;
All present and future contracts, or agreements and all other
present and future general intangibles which are owned, or used in
connection with, or in the conduct of, the business of Trustor, or in
which Trustor has or acquires an interest, including, without
limitation: (aa) all leases and purchase contracts for equipment,
furniture and/or fixtures of any kind and character (to the extent that
they may be characterized as personal property rather than real
property) relating to the Real Property and the businesses conducted
thereon; and (bb) all goodwill, choses in action, trade secrets,
customer lists, trademarks, trade names and service marks, patents,
copyrights, technology, processes, and proprietary information which are
owned, or used in connection with, or in the conduct of, the business of
Trustor, or in which Trustor has or acquires an interest (including,
without limitation, the trade names of 'Sands', 'Sands Regency', 'Sands
Regency Hotel and Casino' and/or any derivation thereof including any
and all state and federal registrations thereof);
All present and future deposit, securities, commodities or other
accounts which are owned, or used in connection with, or in the conduct
of, the business of Trustor, or in which Trustor has or acquires an
interest,
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91
including, without limitation, that certain Account No. ORV-952251-28
with Prudential Securities Incorporated held at its Reno, Nevada branch
located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, and
any demand, time, savings, passbook, securities, commodity or like
account maintained with any bank, savings and loan association, credit
union, securities firm or like organization, and all money, cash and
cash equivalents of Trustor, whether or not deposited in any such
account;
To the extent permitted by law, all present and future revenues,
gaming revenues, receipts, payments and income of any other nature,
whatsoever, regardless of whether such items are derived from or
received with respect to hotel rooms, banquet facilities, convention
facilities, retail premises, bars, restaurants, casinos or any other
facilities on the Real Property and regardless of whether such items are
derived from any other source;
All present and future books and records which are owned, or used
in connection with, or in the conduct of, the business of Trustor, or in
which Trustor, has or acquires an interest including, without
limitation, books of account and ledgers of every kind and nature, all
electronically recorded data relating to the business of Trustor, all
receptacles and containers for such records, and all files and
correspondence;
All present and future stocks, bonds, debentures, securities,
subscription rights, options, warrants, puts, calls, certificates,
partnership interests, joint venture interests, investments and/or
brokerage accounts which are owned, or used in connection with, or in
the conduct of, the business of Trustor, or in which Trustor has or
acquires an interest and all rights, preferences, privileges, dividends,
distributions, redemption payments, or liquidation payments with respect
thereto;
All right, title and interest of Trustor in and to all leases,
licenses, concessions, or similar agreements whether or not specifically
herein described (to the extent that they may be characterized as
personal property rather than real property) which now or may hereafter
pertain to the Real Property and all amendments to the same, including,
but not limited to the following: (aa) all payments due and to become
due under such agreements, whether as rent, damages, insurance payments,
condemnation awards, or otherwise; (bb) all claims, rights, powers,
privileges and remedies under such agreements; and (cc) all rights of
the Trustor under such leases to exercise any election or option, or to
give or receive any notice, consent, waiver or approval, or to accept
any surrender of the premises or any part thereof, together with full
power and authority in the name of Trustor or otherwise, to
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92
demand and receive, enforce, collect, or receipt for any or all of the
foregoing, to endorse or execute any checks or any instruments or
orders, to file any claims or to take any action which Beneficiary may
deem necessary or advisable in connection therewith;
All plans, specifications, soil reports, engineering reports,
land planning maps, surveys, and any other reports, exhibits or plans
used or to be used in connection with the construction, planning,
operation or maintenance of the Real Property, together with all
amendments and modifications thereof;
All water rights and conditional water rights that are now, or
may hereafter be, appurtenant to, used in connection with or intended
for use in connection with the Real Property, including, without
limitation: (i) ditch, well, pipeline, spring and reservoir rights,
whether or not adjudicated or evidenced by any well or other permit;
(ii) all rights with respect to groundwater underlying the Real
Property; (iii) any permit to construct any water well, water from which
is intended to be used in connection with the Real Property; and (iv)
all of Trustor's right, title and interest under any decreed or pending
plan of augmentation or water exchange plan;
All present and future accessions, appurtenances, components,
repairs, repair parts, spare parts, replacements, substitutions,
additions, issue and/or improvements to or of or with respect to any of
the foregoing;
All rights, remedies, powers and/or privileges of Trustor with
respect to any of the foregoing; and
Any and all proceeds and products of any of the foregoing,
including, without limitation, all money, accounts, general intangibles,
deposit accounts, documents, instruments, chattel paper, goods,
insurance proceeds, and any other tangible or intangible property
received upon the sale or disposition of any of the foregoing.
The Real Property, Personal Property and other Collateral (now
owned or hereafter acquired and wherever located), hereby encumbered
shall hereinafter collectively be referred to as the 'Property'."
4. The paragraph labeled "First" under the heading "For The Purpose of
Securing" in the Deed of Trust shall be deemed deleted in its entirety and
replaced as follows:
"First: Payment of a principal sum in the current outstanding
principal balance of $10,975,000, together with interest thereon,
according to the terms of that certain
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93
Amended and Restated Term Promissory Note of even date herewith made by
Trustor, payable to the order of Beneficiary, according to the term and
effect of said promissory note, and all renewals, substitutions,
extensions and modifications of said promissory note (hereinafter the
'Note')."
5. The paragraph labeled "Fifth" under the heading "For The Purpose of
Securing" in the Deed of Trust shall be deemed deleted in its entirety and
replaced as follows:
"Fifth: Performance of every obligation, warranty,
representation, covenant, agreement and promise of Trustor contained in
that certain Amended and Restated Loan Agreement dated as of January 31,
1998, by and among Trustor, The Sands Regent, a Nevada corporation, and
Beneficiary, as the same may be hereafter modified or amended
(hereinafter referred to as 'Loan Agreement')."
6. The references to "5.06" and "7.02" in Section 3 of the Deed of Trust
shall be revised to read "5.6" and "7.2", respectively.
7. The following shall be deemed added at the end of Section 12 of the
Deed of Trust as follows:
"In the event that Beneficiary does not elect to declare the Note
immediately due and payable, then, unless indicated otherwise in writing
by Beneficiary, Trustor shall nevertheless remain primarily liable for
the obligations under this Deed of Trust and secured by this Deed of
Trust, including without limitation, under the Note and any other
instrument securing the Note. This provision shall apply to each and
every sale, transfer, encumbrance or conveyance, regardless whether or
not Beneficiary has consented to, or waived, Beneficiary's rights
hereunder, whether by action or non-action in connection with any
previous sale, transfer or conveyance. For the purposes hereof, a change
in Trustor in violation of the Loan Agreement shall be deemed a sale
hereunder and any change in the identity, structure or control of
Trustor, whether by way of a change in the identity of any shareholder
of Trustor or a change in the ownership or control of Trustor or any
shareholder of Trustor, by merger or otherwise, shall be deemed a sale
hereunder."
8. Section 14 of the Deed of Trust is deemed deleted in its entirety and
restated as follows:
"Upon the occurrence of any Event of Default as defined in the
Loan Agreement, all sums secured hereby, at the option of Lenders,
without further notice or demand, shall immediately become due and
payable."
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94
9. The first two lines of Section 24 of the Deed of Trust are deleted in
their entirety and replaced as follows:
"Upon the occurrence of an Event of Default as defined
in the Loan Agreement, Trustor shall".
10. The address of the Beneficiary as set forth in Section 26 of the
Deed of Trust shall be deemed amended to read as follows:
"Beneficiary,
c/o Agent Bank: ▇▇▇▇▇ Fargo Bank, National Association
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Mr. Art Brokx
with a copy to: Pillsbury Madison & Sutro LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
11. Except as specifically set forth in this First Amendment, the Deed
of Trust shall remain unchanged and of full force and effect.
12. This First Amendment may be executed in any number of separate
counterparts with the same effect as if the signature pages hereto and hereby
were upon the same instrument. All such
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95
counterparts shall together constitute but one and the same
document.
IN WITNESS WHEREOF, Trustor and Beneficiary have executed this First
Amendment as of the date first set forth above.
DEBTOR and TRUSTOR: BENEFICIARY:
ZANTE, INC., ▇▇▇▇▇ FARGO BANK, NATIONAL
a Nevada corporation ASSOCIATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇ By: /s/ ART BROKY
---------------------------- --------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇ Name: Art Broky
------------------------ -----------------------
Title: Exec. V.P. Title: V.P.
------------------------ -----------------------
By: By:
---------------------------- --------------------------
Name: Name:
------------------------ -----------------------
Title: Title:
------------------------ -----------------------
THE SUMITOMO BANK, LIMITED
By: /s/ ▇.▇. ▇▇▇▇▇▇▇
--------------------------
Name: ▇.▇. ▇▇▇▇▇▇▇
-----------------------
Title: V.P. & Mgr.
-----------------------
By: /s/ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------
Name: ▇. ▇▇▇▇▇▇▇▇▇
-----------------------
Title: V.P. & Mgr.
-----------------------
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96
EXHIBIT A
---------
LEGAL DESCRIPTION OF PROPERTIES
97
DESCRIPTION
All that real property situate in the City of Reno, County of Washoe, State of
Nevada, described as follows:
PARCEL 1:
The South 200 feet of Lots 1, 2 and 3 and all of ▇▇▇▇ ▇, ▇, ▇ ▇▇▇ ▇ ▇▇ ▇▇▇▇▇ 3
of WESTERN ADDITION TO RENO, according to the map thereof, filed in the office
of the County Recorder of Washoe County, State of Nevada, on May 2, 1876.
PARCEL 2:
▇▇▇▇ ▇, ▇ ▇▇▇ ▇▇, ▇▇▇▇▇ ▇, ▇▇ ▇▇▇▇▇▇▇ ADDITION TO RENO, according to the map
thereof, filed in the office of the County Recorder of Washoe County, State of
Nevada, on May 2, 1876.
EXCEPT THEREFROM the Northerly 100 feet of Lot 8 and the Northerly 100 feet of
the East 25 feet of ▇▇▇ ▇, ▇▇▇▇▇ ▇ of WESTERN ADDITION TO RENO, according to
the map thereof, filed in the office of the County Recorder of Washoe County,
State of Nevada, on May 2, 1876.
ALSO EXCEPTING THEREFROM that portion of Lot 10 dedicated to the City of Reno
by document recorded March 14, 1990, as Document No. 1386041.
PARCEL 3:
Lot 12 and the Northerly 140 feet of Lots 13 and 14, Block 3 of WESTERN
ADDITION TO RENO, according to the map thereof, filed in the office of the
County Recorder of Washoe County, State of Nevada, on May 2, 1876.
EXCEPTING THEREFROM that portion dedicated to the City of Reno, by document
recorded May 24, 1988, as Document No. 1248314 and document recorded March 14,
1990, as Document No. 1386041.
PARCEL 4:
That certain parcel of land situate in the West 1/2 of Section 11, Township 19
North, Range 19 East, M.D.B.&M., described as follows:
BEGINNING at the point of intersection of the Northerly line of lands (300.00
feet wide) of Southern Pacific Transportation Company with the center line of
▇▇▇▇▇▇▇ Street (80.00 feet wide), said point bears South 76 degrees 10 minutes
00 seconds West, 40.00 feet from the Southwesterly corner of ▇▇▇ ▇▇. ▇, ▇▇▇▇▇
▇▇. ▇, ▇▇▇▇▇▇▇ ADDITION TO THE TOWN (now City) of Reno, according to the map
thereof, filed in the office of the County Recorder of said County; thence South
13 degrees 50 minutes 00 seconds East along the center line of said ▇▇▇▇▇▇▇
Street, 66.00 feet to a line parallel with and 20.00 feet Northerly of (measured
at right angles) the located center line of said Company's Eastbound main track
(Sacramento to ▇▇▇▇▇); thence North 76 degrees 10 minutes 00 seconds East,
along said parallel line, 760.00 feet to the center line of North Arlington
Street (80.00 feet wide); thence North 13 degrees 50 minutes 00 seconds West
along said center line, 66.00 feet to the Northerly line of land of said
Company; thence South 76 degrees 10 minutes 00 seconds West, 760.00 feet to the
point of beginning.
(Continued)
HOTEL PROPERTY
Page 1 of 3
98
LEGAL DESCRIPTION (continued)
EXCEPTING THEREFROM all minerals and mineral rights, interests, and royalties,
including without limiting the generality thereof, oil, gas, and other
hydrocarbon substances, as well as metallic or other solid minerals located
below 500 feet or more below surface; however, Grantor or its successors and
assigns, shall not have the right for any purpose whatsoever to enter upon,
into or through the surface of said property in connection therewith.
PARCEL 5:
That certain parcel of land situate in the West 1/2 of Section 11, Township 19
North, Range 19 East, M.D.B.&M., described as follows:
BEGINNING at the point of intersection of the Southerly line of land (300.0 feet
wide) of Southern Pacific Transportation Company with the center line of ▇▇▇▇▇▇▇
Street (80.0 feet wide), said point bears South 06 degrees 14 minutes 19 seconds
East, 302.65 feet from the Southwesterly corner of ▇▇▇ ▇▇. ▇, ▇▇▇▇▇ ▇▇. ▇, of
said WESTERN ADDITION; thence North 13 degrees 50 minutes 00 seconds West, along
said center line 180.00 feet to a line parallel with and 20.00 feet Southerly of
(measured at right angles) the located center line of said Company's Westbound
main track (▇▇▇▇▇ to Sacramento); thence North 76 degrees 10 minutes 00 seconds
East, along said parallel line, 760.00 feet to the center line of North
Arlington Street (80.00 feet wide); thence South 13 degrees 50 minutes 00
seconds East along said center line, 80.00 feet to the Easterly prolongation of
the Northerly line of that parcel of land as described in Deed dated June 12,
1933, between Central Pacific Railway Company (now Southern Pacific
Transportation Company) and ▇. ▇▇▇▇▇▇▇, recorded July 12, 1933, in Deed Book 93,
Page 422, as Instrument No. 62975, Records of said County, said line also being
parallel with and 100.00 feet Southerly of (measured at right angles) said
Company's Westbound main track; thence South 76 degrees 10 minutes 00 seconds
West, along said line 209.88 feet to the Northwesterly corner of said property,
as described in said Deed dated June 12, 1933; thence South 13 degrees 50
minutes 00 seconds East along the Westerly line of said described property,
100.00 feet to the Southerly line of lands of said Company; thence South 76
degrees 10 minutes 00 seconds West along said Southerly line 550.12 feet to the
point of beginning.
EXCEPTING THEREFROM all minerals and mineral rights, interests, and royalties,
including without limiting the generality thereof, oil, gas and other
hydrocarbon substances, as well as metallic or other solid minerals located
below 500 feet or more below surface; however, Grantor or its successors and
assigns, shall not have the right for any purpose whatsoever to enter upon,
into or through the surface of said property in connection therewith.
PARCEL 6: (Airspace)
That certain parcel of land situate in the West 1/2 of Section 11, Township 19
North, Range 19 East, M.D.B.&M., described as follows:
All rights in and to the airspace lying above a horizontal plane having an
elevation of 27.00 feet higher than the elevation of the highest point on the
top of the rails of Southern pacific Transportation Company's existing main line
(Continued)
HOTEL PROPERTY
Page 2 of 3
99
LEGAL DESCRIPTION (continued)
tracks as they are established as of the date hereof, above the following
described real property:
That certain strip of land, 54.00 feet wide, described as being bounded on the
West by the center line of ▇▇▇▇▇▇▇ Street (80.00 feet wide), on the East by the
center line of North Arlington Street (80 feet wide), on the North by the
Southerly line of Parcel 1 as herein above described, and on the South by the
Northerly line of Parcel No. 5 as herein above described.
HOTEL PROPERTY
Page 3 of 3
100
DESCRIPTION
All that real property situate in the City of Reno, County of Washoe, State of
Nevada, described as follows:
Lot 11 in Block 3 of the WESTERN ADDITION TO THE CITY OF RENO, Washoe County,
Nevada, according to the official plat thereof, filed in the office of the
County Recorder of Washoe County, State of Nevada, on March 20, 1876; together
with that portion of the Northerly 10 feet of that certain alley known as
▇▇▇▇▇▇ ▇▇▇▇ lying between the southerly extensions of the Westerly and Easterly
lines of said Lot 11 as abandoned by the City of Reno, in that certain Order of
Abandonment, recorded June 20, 1988, Document No. 1254549, in Book 2754, Page
836, Washoe County, Nevada, Official Records.
EXCEPTION THEREFROM that portion dedicated and conveyed to the City of Reno, in
Deed recorded March 14, 1990, in Book 3047, Page 385, as Document No. 1386041,
Official Records.
PARKING LOT PROPERTY #1
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101
DESCRIPTION
All that real property situate in the City of Reno, County of Washoe, State of
Nevada, described as follows:
The North 100 feet of Lot 8 and the North 100 feet of the East 25 feet of ▇▇▇
▇ ▇▇ ▇▇▇▇▇ ▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇, according to the map thereof, filed in
the office of the County Recorder of Washoe County, State of Nevada, on May 2,
1876.
EXCEPTING THEREFROM the following described parcel as was conveyed by ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇, a single woman, to the City of Reno, Nevada, a municipal
corporation, by Deed of Dedication, dated July 30, 1966, recorded August 1,
1966, in Book 195, Page 759, File No. 67029, Official Records, as follows,
to-wit:
BEGINNING at the Northeast corner of Lot 8 in Block 3 of WESTERN ADDITION,
RENO, according to the map thereof, filed in the office of the County Recorder
of Washoe County, State of Nevada, on May 2, 1876; thence Westerly along the
Northern line of said Lot 8 a distance of 15.02 feet; thence Easterly,
Southeasterly and Southerly along the arc of a curve to the right with a radius
of 15.00 feet, a central angle of 90 degrees 04 minutes and an arc length of
23.58 feet; thence Northerly along the Eastern line of said Lot 8 a distance of
15.02 feet to the point of beginning.
PARKING LOT PROPERTY #2
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▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ )
) ss.
COUNTY OF ▇▇▇▇ )
On 6-9, 1998, before me, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, a Notary Public in and for
the State of ILLINOIS, personally appeared ▇.▇. ▇▇▇▇▇▇▇, personally known to me
(or proved to me on the basis of satisfactory evidence) to be the person whose
name is subscribed to the within instrument, and acknowledged to me that he or
she executed the same in his or her authorized capacity and that, by his or her
signature on the instrument, the person or the entity upon behalf of which he or
she acted, executed the instrument.
WITNESS my hand and official seal.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
-----------------------------------
Notary Public in and for said State
(Notarial Seal)
▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ )
) ss.
COUNTY OF ▇▇▇▇ )
On 6-9, 1998, before me, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, a Notary Public in and for
the State of ILLINOIS, personally appeared ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, personally known
to me (or proved to me on the basis of satisfactory evidence) to be the person
whose name is subscribed to the within instrument, and acknowledged to me that
he or she executed the same in his or her authorized capacity and that, by his
or her signature on the instrument, the person or the entity upon behalf of
which he or she acted, executed the instrument.
WITNESS my hand and official seal.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
-----------------------------------
Notary Public in and for said State
(Notarial Seal)
▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇ )
) ss.
COUNTY OF LOS ANGELES )
On June 12, 1998, before me, ▇▇▇▇▇ ▇▇▇▇▇▇▇, a Notary Public in and for
the State of CALIFORNIA, personally appeared ART BROKY, personally known to me
to be the person whose name is subscribed to the within instrument, and
acknowledged to me that he executed the same in his authorized capacity and
that, by his signature on the instrument, the person or the entity upon behalf
of which he acted, executed the instrument.
WITNESS my hand and official seal.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Notary Public in and for said State
(Notarial Seal)
105
STATE OF NEVADA )
) ss.
COUNTY OF WASHOE )
On June 19, 1998, before me, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, a Notary Public in and for
the State of NEVADA, personally appeared ▇▇▇▇▇ ▇. ▇▇▇▇, personally known to me
to be the person whose name is subscribed to the within instrument, and
acknowledged to me that he or she executed the same in his or her authorized
capacity and that, by his or her signature on the instrument, the person or the
entity upon behalf of which he or she acted, executed the instrument.
WITNESS my hand and official seal.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Notary Public in and for said State
(Notarial Seal)
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RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Pillsbury Madison & Sutro LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇., Esq.
DEED OF TRUST, FIXTURE FILING
AND SECURITY AGREEMENT WITH ASSIGNMENT OF RENTS
-----------------------------------------------
THIS DEED OF TRUST, FIXTURE FILING AND SECURITY AGREEMENT WITH
ASSIGNMENT OF RENTS, hereinafter referred to as "DEED OF TRUST", made as of this
31st day of January, 1998, by and between ZANTE, INC., a Nevada corporation,
Debtor and Trustor, (hereinafter referred to as "TRUSTOR") and WESTERN TITLE
COMPANY, a Nevada corporation, Trustee, (hereinafter referred to as "TRUSTEE"),
and ▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION, and THE SUMITOMO BANK, LIMITED,
Secured Parties and Beneficiaries (hereinafter collectively referred to as
"BENEFICIARY") and ▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION, its successors and
assigns, as Agent Bank for Beneficiary ("AGENT BANK").
W I T N E S S E T H:
THAT TRUSTOR:
(i) Grants the following described real property, fixtures and
collateral to Trustee, in trust, with power of sale, to have and to hold the
same unto Trustee and its successors in interest upon the trusts, covenants and
agreements herein expressed; and (ii) Grants a security interest in all of
Trustor's right, title and interest in the following described collateral which
the Trustor now has or may hereafter acquire to Beneficiary pursuant to the
Nevada Uniform Commercial Code--Secured Transactions. Said Real Property
collateral and personal property collateral are described as follows:
DESCRIPTION OF COLLATERAL
All that certain real property, and the interests therein, situated in
the County of Washoe, State of Nevada, that is more particularly described on
that certain exhibit marked Exhibit "A", affixed hereto and by this reference
incorporated herein and made a part hereof, together with all buildings,
structures and all other improvements and fixtures that are, or that may be
hereafter, erected or placed thereon or therein, and
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all and singular the tenements, hereditaments and appurtenances thereunto
belonging, or in any wise appertaining, and the rents, issues and profits
thereof, and all the estate, right, title, property, possession, interest or
other claim or demand, in law or in equity which Trustor now has or may
hereafter acquire, in or to the said property, or any part thereof, with
appurtenances (hereinafter the "LAND");
Together with any and all other rights pertaining to or appurtenant to
the said Real Property, and the interests of Trustor therein;
Together with all water rights and rights to the use of water that are
now or that may be hereinafter used in connection with the said Real Property,
or any part thereof, or any improvements or appurtenances thereto; and
All present and future chattels, furniture, furnishings, equipment,
fixtures, building materials, building contents and building components, all of
every kind and nature, and other tangible personal property: (i) which is used
in connection with, situate in or on, affixed to, or incorporated into: (aa) any
portion of the Land; (bb) all real property which is adjacent to, or used in
connection with, the Land and in which Trustor now owns or hereafter acquires an
interest (the "ADJACENT PROPERTY"); and/or (cc) all tenements, hereditaments and
appurtenances to the Land or the Adjacent Property (the "APPURTENANCES" and,
together with the Land and the Adjacent Property, the "REAL PROPERTY"); (ii)
which is used in connection with, situate in or on, affixed to, or incorporated
into, any building, structure or other improvement that is now or that may be
hereafter constructed on or under the Real Property; and/or (iii) in which
Trustor otherwise has or acquires an interest; all including, without
limitation: (aa) all lumber, bricks, cement, masonry, steel, doors, windows,
fasteners, nails, bolts, scaffolding, tools, construction supplies, construction
tools and equipment and all other building materials, supplies and equipment of
any kind or nature; (bb) all air conditioning, heating, electrical, lighting,
fire fighting and fire prevention, plumbing, food and beverage preparation,
laundry, security, sound, signaling, telephone, television, entertainment stage,
window washing, irrigation, storage, shop, landscaping, signage and other
equipment and fixtures, of whatever kind or nature, consisting of, without
limitation, air conditioners, compressors, fans, duct work, thermostats,
furnaces, boilers, radiators, burners, wiring, conduits, cables, generators,
transformers, switching gear, lighting fixtures, sprinkler systems and other
fire extinguishing equipment, fire alarms and other fire detection equipment,
piping, pumps, valves, sinks, toilets, tubs, motors, carts, elevators and other
lifts, ovens, refrigerators, dishwashers and dishwashing equipment, fabric
washing and drying equipment, lock and key systems, surveillance and entry
detection systems, speakers, intercoms and public
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address systems, hardware, shelving, maintenance and repair equipment and all
other similar items; (cc) all furniture, furnishings, wall coverings, floor
coverings, window coverings, artwork and decorative items including, without
limitation, casino, guest room, bathroom, lobby, bar, restaurant, storage,
retail, meeting, convention, leisure, recreation, office, administrative and
other furniture, furnishings, wall coverings, floor coverings, window coverings,
artwork and decorative items; (dd) all hotel equipment and supplies, including
without limitation, televisions, radios, telephones, linen, bedding, amenities,
carts, recreational equipment, leisure equipment and all other equipment and
supplies utilized in the occupation or renting of hotel guest rooms and public
areas; (ee) all bar and restaurant equipment and supplies, including, without
limitation, kitchen and bar appliances, pots, pans, plates, dishes, cups,
glasses, serving utensils, cooking utensils and all other equipment and supplies
used in the operation of bars and/or restaurants; (ff) all casino equipment and
supplies including, without limitation, slot machines, gaming tables, cards,
dice, gaming chips, tokens, player tracking systems, Gaming Devices and Related
Equipment as defined in Nevada Revised Statutes Chapter 463 and all other
equipment and supplies utilized in operation of a casino; (gg) all cabaret,
stage and entertainment equipment and supplies including, without limitation,
stage equipment, sets, spotlights, sound equipment, musical instruments and
other equipment and supplies utilized in the operation of stage and cabaret
shows and other entertainment productions; (hh) all office and administrative
equipment and supplies including, without limitation, office appliances, filing
cabinets, computers, peripheral computer equipment and other data processing and
storage equipment, stationery and other office supply items, and other office
and administrative equipment and supplies; (ii) all indoor and outdoor pool and
recreational equipment and supplies; (jj) all tools and other maintenance and
repair equipment; (kk) all landscaping equipment and supplies; and (ll) all
equipment and supplies utilized in connection with any other activity engaged in
by Trustor;
All present and future supplies, inventory and merchandise which is used
in connection with, or in the conduct of, the business of Trustor or in which
Trustor has or acquires an interest, including, without limitation: (i) all
present and future goods held for sale or lease or to be furnished under a
contract of service, all raw materials, work in process and finished goods, all
packing materials, supplies and containers relating to or used in connection
with any of the foregoing, and all bills of lading, warehouse receipts or
documents of title relating to any of the foregoing; (ii) all food stuffs,
beverages, prepared food and other similar items; and (iii) all hotel amenities,
cleaning supplies, office supplies, consumables and similar items;
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All present and future goods, which are not otherwise set forth herein,
and which are used in connection with, or in the conduct of, the business of
Trustor or in which Trustor has or acquires an interest;
All present and future accounts, accounts receivable, rentals, deposits,
rights to payment, instruments, documents, chattel paper, security agreements,
guaranties, undertakings, surety bonds, insurance policies and notes and drafts
which are owned, or used in connection with, or in the conduct of, the business
of Trustor, or in which Trustor has or acquires an interest, however created or
arising;
All present and future contracts, or agreements and all other present
and future general intangibles which are owned, or used in connection with, or
in the conduct of, the business of Trustor, or in which Trustor has or acquires
an interest, including, without limitation: (aa) all leases and purchase
contracts for equipment, furniture and/or fixtures of any kind and character (to
the extent that they may be characterized as personal property rather than real
property) relating to the Real Property and the businesses conducted thereon;
and (bb) all goodwill, choses in action, trade secrets, customer lists,
trademarks, trade names and service marks, patents, copyrights, technology,
processes, and proprietary information which are owned, or used in connection
with, or in the conduct of, the business of Trustor, or in which Trustor has or
acquires an interest (including, without limitation, the trade names of "Sands",
"Sands Regency", "Sands Hotel and Casino" and/or any derivation thereof
including any and all state and federal registrations thereof);
All present and future deposit, securities, commodities or other
accounts which are owned, or used in connection with, or in the conduct of, the
business of Trustor, or in which Trustor has or acquires an interest, including,
without limitation, that certain Account No. ORV-952251-28 with Prudential
Securities Incorporated held at its Reno, Nevada branch located at ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, and any demand, time, savings,
passbook, securities, commodity or like account maintained with any bank,
savings and loan association, credit union, securities firm or like
organization, and all money, cash and cash equivalents of Trustor, whether or
not deposited in any such account;
To the extent permitted by law, all present and future revenues, gaming
revenues, receipts, payments and income of any other nature, whatsoever,
regardless of whether such items are derived from or received with respect to
hotel rooms, banquet facilities, convention facilities, retail premises, bars,
restaurants, casinos or any other facilities on the Real Property and regardless
of whether such items are derived from any other source;
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All present and future books and records which are owned, or used in
connection with, or in the conduct of, the business of Trustor, or in which
Trustor, has or acquires an interest including, without limitation, books of
account and ledgers of every kind and nature, all electronically recorded data
relating to the business of Trustor, all receptacles and containers for such
records, and all files and correspondence;
All present and future stocks, bonds, debentures, securities,
subscription rights, options, warrants, puts, calls, certificates, partnership
interests, joint venture interests, investments and/or brokerage accounts which
are owned, or used in connection with, or in the conduct of, the business of
Trustor, or in which Trustor has or acquires an interest and all rights,
preferences, privileges, dividends, distributions, redemption payments, or
liquidation payments with respect thereto;
All right, title and interest of Trustor in and to all leases, licenses,
concessions, or similar agreements whether or not specifically herein described
(to the extent that they may be characterized as personal property rather than
real property) which now or may hereafter pertain to the Real Property and all
amendments to the same, including, but not limited to the following: (aa) all
payments due and to become due under such agreements, whether as rent, damages,
insurance payments, condemnation awards, or otherwise; (bb) all claims, rights,
powers, privileges and remedies under such agreements; and (cc) all rights of
the Trustor under such leases to exercise any election or option, or to give or
receive any notice, consent, waiver or approval, or to accept any surrender of
the premises or any part thereof, together with full power and authority in the
name of Trustor or otherwise, to demand and receive, enforce, collect, or
receipt for any or all of the foregoing, to endorse or execute any checks or any
instruments or orders, to file any claims or to take any action which
Beneficiary may deem necessary or advisable in connection therewith;
All plans, specifications, soil reports, engineering reports, land
planning maps, surveys, and any other reports, exhibits or plans used or to be
used in connection with the construction, planning, operation or maintenance of
the Real Property, together with all amendments and modifications thereof;
All water rights and conditional water rights that are now, or may
hereafter be, appurtenant to, used in connection with or intended for use in
connection with the Real Property, including, without limitation: (i) ditch,
well, pipeline, spring and reservoir rights, whether or not adjudicated or
evidenced by any well or other permit; (ii) all rights with respect to
groundwater underlying the Real Property; (iii) any permit to construct any
water well, water from which is intended to be
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used in connection with the Real Property; and (iv) all of Trustor's right,
title and interest under any decreed or pending plan of augmentation or water
exchange plan;
All present and future accessions, appurtenances, components, repairs,
repair parts, spare parts, replacements, substitutions, additions, issue and/or
improvements to or of or with respect to any of the foregoing;
All rights, remedies, powers and/or privileges of Trustor
with respect to any of the foregoing; and
Any and all proceeds and products of any of the foregoing, including,
without limitation, all money, accounts, general intangibles, deposit accounts,
documents, instruments, chattel paper, goods, insurance proceeds, and any other
tangible or intangible property received upon the sale or disposition of any of
the foregoing.
The Real Property, Personal Property and other Collateral (wherever
located) hereby encumbered shall hereinafter collectively be referred to as the
"PROPERTY".
SUBJECT, HOWEVER, to the following:
(i) The right of Trustor to sell or otherwise dispose of or repair or
replace any Personal Property in the ordinary course of business, free and clear
of the lien hereof;
(ii) The leases and/or purchase money security interests pursuant to
which Trustor has acquired an interest in the fixtures or personally covered
hereby; and
(iii) Any restriction on assignment which may be contained in any
document, instrument or agreement purported to be encumbered hereby.
FOR THE PURPOSE OF SECURING:
First: Payment of a principal sum in the current outstanding principal
balance of $10,975,000.00, together with interest thereon, according to the
terms of that certain Amended and Restated Term Promissory Note of even date
herewith made by Trustor, payable to the order of Beneficiary, according to the
tenor and effect of said promissory note, and all renewals, substitutions,
extensions and modifications of said promissory note (hereinafter the "NOTE").
Second: Payment and performance of every obligation, covenant, promise
and agreement of Trustor herein contained or incorporated herein by reference,
including any sums paid or advanced by Beneficiary pursuant to the terms hereof.
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Third: The expenses and costs incurred or paid by Beneficiary in the
preservation and enforcement of the rights and remedies of Beneficiary and the
duties and liabilities of Trustor hereunder, including, but not by way of
limitation, attorney's fees, court costs, witness fees, expert witness fees,
collection costs, and costs and expenses paid by Beneficiary in performing for
Trustor's account any obligation of said Trustor.
Fourth: Payment of additional sum and interest thereon which may
hereafter be loaned to Trustor when evidenced by a promissory note or notes
which recite that this Deed of Trust is security therefor.
Fifth: Performance of every obligation, warranty, representation,
covenant, agreement and promise of Trustor contained in that certain Amended and
Restated Loan Agreement dated as of January 31, 1998 by and among Trustor, The
Sands Regent, a Nevada corporation, and Beneficiary (hereinafter referred to as
the "LOAN AGREEMENT").
Sixth: Performance of every obligation, warranty, representation,
covenant, agreement and promise of Trustor contained in the Assignment of
Equipment Leases, Contracts and Subleases, the Assignment of Permits, Licenses
and Contracts and the Assignment of Leases, Rents and Revenues as those terms
are defined by the Loan Agreement.
AND THIS INDENTURE FURTHER WITNESSETH:
1. Trustor agrees to properly care for and keep said Property in good
condition and repair; not to remove or demolish any building thereon; to
complete in a good and workmanlike manner any building which may be constructed
thereon, and to pay when due all claims for labor performed and materials
furnished therefor; to comply with all laws, ordinances and regulations relating
to any alterations or improvements made thereon; not to commit or permit any
waste thereof; not to commit, suffer or permit any act to be done in or upon
said Property in violation of any law, covenant, condition or restriction
affecting said Property; to cultivate, irrigate, fertilize, fumigate, prune
and/or do any other act or acts, all in a timely and proper manner, which, from
the character or use of said Property, may be reasonably necessary to keep the
Property in good condition, ordinary wear and tear excepted, the specific
enumerations herein not excluding the general.
2. Trustor agrees to pay and discharge all costs, fees and expenses of
this trust incurred in connection with any default by Trustor.
3. During the continuance of this trust, Trustor shall obtain, or cause
to be obtained, and shall maintain or cause to be maintained, at all times
throughout the term of the Loan, at
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its own cost and expense, and shall deposit with Beneficiary, policies or
certified copies of policies of insurance in accordance with Section 5.6 of the
Loan Agreement. All monies received from fire and hazard extended insurance
policies shall be paid directly to Beneficiary and retained by Beneficiary or
released to Trustor in accordance with Section 7.2 of the Loan Agreement.
4. Trustor agrees to pay before default or delinquency, all taxes and
assessments affecting said Property, or any part thereof, and all other charges
and encumbrances which now are or shall hereafter be or appear to be a lien
prior to the lien of this Deed of Trust, provided, however, (i) that Trustor may
contest in good faith the validity or amount of any such tax, assessment, or
charge by appropriate proceedings provided by law, including payment thereof
under protest, if required under applicable law, and (ii) that upon final
determination with respect to any such contested tax, assessment or governmental
charge, Trustor will promptly pay any sums found to be due thereon.
5. As additional security, Trustor assigns to Beneficiary its respective
interests as lessor in any and all leases of said Property, or any portion
thereof, now or hereafter entered into by Trustor and gives to and confers upon
Beneficiary the right, power and authority during the continuation of this
trust, to collect the rents, issues and profits of said Property and any
business activity conducted thereon, reserving unto Trustor the right at all
times other than during the continuance of any Event of Default as defined in
the Loan Agreement, to collect and retain such rents, issues and profits as they
may become due and payable. Upon the occurrence and during the continuance of
any Event of Default as defined in the Loan Agreement, Beneficiary may at any
time by a receiver to be appointed by a court, enter upon and take possession of
said Property, or any part thereof, ▇▇▇ for or otherwise collect such rents,
issues and profits, including those past due or unpaid, and apply the same, less
costs and expenses of operation and collection, including reasonable attorney's
fees, upon any indebtedness and/or obligations secured hereby, and in such order
as is required under the Loan Agreement. The entering upon and taking possession
of said Property, or any part thereof, the collection of such rents, issues and
profits or the application thereof as aforesaid, shall not cure or constitute a
waiver of any default or notice of default hereunder or invalidate any act done
pursuant to such notice. The assignment set forth by this Section 5 is a present
assignment, for security purposes only.
6. Trustor hereby represents that, to the best of its knowledge, and to
the extent of its interest therein, it is the beneficial owner of the Property,
and there is no assignment or pledge of any leases of, or rentals or income
from, said Property now in effect, except Permitted Encumbrances as defined
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in the Loan Agreement, and covenants that, until said indebtedness is fully
paid, it will not make any such assignment or pledge to anyone other than
Beneficiary and the Permitted Encumbrances as defined in the Loan Agreement.
7. Should the Trustor fail to make any payment or perform any act which
it is obligated to make or perform hereby, then the Trustee, or Beneficiary, at
the election of either of them, after the giving of reasonable notice to the
Trustor, or any successor in interest of the Trustor, and without releasing
Trustor from any obligation hereunder, may make such payment or perform such act
and incur any liability, or expend whatever amounts, in its reasonable
discretion, it may deem necessary therefor. All sums incurred or expended by the
Trustee, or Beneficiary, under the terms hereof, shall become due and payable by
the Trustor to the Beneficiary, on the next interest or installment payment date
(which occurs after Borrower's receipt of notice of such amounts) under the
promissory note secured hereby and shall bear interest until paid at an annual
percentage rate equal to the default rate expressed on the Note secured hereby.
In no event shall payment by Trustee or Beneficiary be construed as a waiver of
the default occasioned by Trustor's failure to make such payment or payments.
8. Trustor promises and agrees that if, during the existence of this
trust, there be commenced or pending any suit or action affecting said Property,
or any part thereof, or the title thereto, or if any adverse claim for or
against said Property, or any part thereof, be made or asserted, it will appear
in and defend any such matter purporting to affect the security and will pay all
costs and damages arising because of such action.
9. Any award of damages in connection with any condemnation for public
use of, or injury to said Property, or any part thereof, shall be paid directly
to Beneficiary and shall be retained by Beneficiary or released to Trustor in
accordance with Article VII of the Loan Agreement.
10. By accepting payment of any sum secured hereby after its due date,
Beneficiary does not waive its right either to require prompt payment, when due,
of all other sums so secured or to declare default, as herein provided, for
failure to so pay.
11. At any time, and from time to time, without liability therefor and
without notice to Trustor, upon written request of Beneficiary and presentation
of this Deed of Trust and the Note secured hereby for endorsement, and without
affecting the effect of this Deed of Trust upon the remainder of said Property,
Trustee may: reconvey to Trustor any part of said Property; consent in writing
to the making of any map or plat thereof;
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join in granting any easement thereon, or join in any extension agreement or
subordination agreement in connection herewith.
12. The Beneficiary may without notice to or consent of Trustor extend
the time of the payment of any indebtedness secured hereby to any successor in
interest of the Trustor without discharging the Trustor from liability thereon.
Except as otherwise permitted in the Loan Agreement, or this Section 12, if the
Trustor shall sell or convey or create or permit to exist any mortgage, pledge,
security interest or other encumbrance or in any other manner alienate any
Property hereby encumbered or any part thereof, or shall enter into any
agreement for the same, or any interest therein, or shall be divested of his
title in any manner or way, whether voluntary or involuntary or by merger
without the written consent of Beneficiary being first had and obtained, any
indebtedness or obligation secured hereby, irrespective of the maturity dates
expressed in any notes evidencing the same, at the option of Beneficiary, and
upon the giving of any notice which may be required under the Loan Agreement and
the expiration of any applicable cure period, shall immediately become due and
payable. In the event that Beneficiary does not elect to declare the Note
immediately due and payable, then, unless indicated otherwise in writing by
Beneficiary, Trustor shall nevertheless remain primarily liable for the
obligations under this Deed of Trust and secured by this Deed of Trust,
including without limitation, under the Note and any other instrument securing
the Note. This provision shall apply to each and every sale, transfer,
encumbrance or conveyance, regardless whether or not Beneficiary has consented
to, or waived, Beneficiary's rights hereunder, whether by action or non-action
in connection with any previous sale, transfer or conveyance. For the purposes
hereof, a change in Trustor in violation of the Loan Agreement shall be deemed a
sale hereunder and any change in the identity, structure or control of Trustor,
whether by way of a change in the identity of any shareholder of Trustor or a
change in the ownership or control of Trustor or any shareholder of Trustor, by
merger or otherwise, shall be deemed a sale hereunder.
13. Upon receipt of written request from Beneficiary reciting that all
obligations under the Note and any other notes secured hereby, and all other
sums then due and owing and secured hereby, have been paid and upon surrender of
this Deed of Trust and the Note secured hereby to Trustee for cancellation and
retention, or such other disposition as Trustee, in its sole discretion, may
choose, and upon payment of its fees, the Trustee shall reconvey, without
warranty or recourse and at the expense of Trustor, the Property then held
hereunder, and the assignment set forth by Section 5 above shall be of no
further force or effect. he recitals in such reconveyance of any matters of fact
shall be conclusive proof of the truth thereof. The
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Grantee in such reconveyance may be described in general terms as "the person or
persons legally entitled thereto".
14. Upon the occurrence of any Event of Default as defined in the Loan
Agreement, all sums secured hereby, at the option of Lenders, without further
notice or demand, shall immediately become due and payable.
15. If any mechanic's lien or materialman's lien shall be recorded,
filed or suffered to exist against the premises or any interest therein by
reason of any work, labor, services or materials supplied, furnished or claimed
to have been supplied and furnished in connection with any work of improvement
upon the Property, said lien or claim shall be paid, released and discharged of
record within sixty (60) days after the filing or recording thereof, or Trustor
shall have caused said mechanic's lien or materialman's lien to be released of
record pursuant to the provisions set forth in the Nevada Revised Statutes
108.2413, et. seq., within one-hundred fifty (150) days of the date of the
recordation of the mechanic's lien or materialman's lien in the office of the
County Recorder of Washoe County, Nevada.
16. That if, during the existence of the trust, there be commenced or
pending any suit or action which would, if adversely determined, have a material
adverse affect on the Property, or any part thereof, or the title thereto, or if
any material adverse claim for or against the Property, or any part thereof, be
made or asserted, the Trustee or Beneficiary, unless such suit or action is
being contested in good faith by Trustor and Trustor shall have established and
maintained adequate reserves in accordance with Generally Accepted Accounting
Principles for the full payment and satisfaction of such suit or action if
determined adversely to Trustor, may appear or intervene in the suit or action
and retain counsel therein and defend same, or otherwise take such action
therein as they may be advised, and may settle or compromise same or the adverse
claim; and in that behalf and for any of the purposes may pay and expend such
sums of money as the Trustee or Beneficiary may reasonably deem to be necessary
and such sums shall be obligations of Trustor and shall be secured by this Deed
of Trust.
17. Upon the occurrence of any Event of Default as defined in the Loan
Agreement, and if the notice of breach and election to sell, required by Chapter
107 of the Nevada Revised Statutes, be first recorded, then Trustee, its
successors or assigns, on demand by Beneficiary, shall sell the above-granted
premises, in order to accomplish the objects of these trusts, in the manner
following, namely:
The Trustee shall first give notice of the time and place of such sale,
in the manner provided by the laws of this State
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for the sale of real property under execution, and may from time to time
postpone such sale by such advertisement as it may deem reasonable, or without
further advertisement, by proclamation made to the persons assembled at the time
and place previously appointed and advertised for such sale, and on the day of
sale so advertised, or to which such sale may have been postponed, the Trustee
may sell the property so advertised, at public auction, at the time and place
specified in the notice, either in the county in which the property, or any part
thereof, to be sold, is situated, or at the principal office of the Trustee
located in Washoe County, in its discretion, to the highest cash bidder. The
Beneficiary, obligee, creditor, or the holder or holders of the Note secured
hereby may bid (including by credit bid) and purchase at such sale. The
Beneficiary may, after recording the notice of breach and election, waive or
withdraw the same or any proceedings thereunder, and shall thereupon be restored
to their former position and have and enjoy the same rights as though such
notice had not been recorded.
18. That the Trustee, upon such sale, shall make (without warranty),
execute and, after due payment made, deliver to purchaser or purchasers, his or
their heirs or assigns, a deed or deeds of the premises so sold which shall
convey to the purchaser all the title of the Trustor in the trust premises, and
shall apply the proceeds of the sale thereof in accordance with the terms and
conditions of the Loan Agreement.
19. That in the event of a sale of the Property conveyed or transferred
in trust, or any part thereof, and the execution of a deed or deeds therefor
under such trust, the recital therein of default, and of recording notice of
breach and election of sale, and of the elapsing of the 3-month period, and of
the giving of notice of sale, and of a demand by Beneficiary that such sale
should be made, shall be conclusive proof of such default, recording, election,
elapsing of time, and of the due giving of such notice, and that the sale was
regularly and validly made on due and proper demand by Beneficiary; and any such
deed or deeds with such recitals therein shall, absent manifest error, be
effectual and conclusive against Trustor, its successors and assigns, and all
other persons; and the receipt for the purchase money recited or contained in
any deed executed to the purchaser as aforesaid shall be sufficient discharge to
such purchaser from all obligation to see to the proper application of the
purchase money, according to the trusts aforesaid.
20. That the Beneficiary or assigns may, from time to time, appoint
another trustee, or trustees, to execute the trust created by this Deed of Trust
or other conveyance in trust.
Upon the recording of such certified copy or executed and acknowledged
instrument, the new trustee or trustees shall be vested with all the title,
interest, powers, duties and trusts
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in the premises vested in or conferred upon the original trustee. If there be
more than one trustee, either may act alone and execute the trusts upon the
request of the Beneficiary, and all his acts thereunder shall be deemed to be
the acts of all trustees, and the recital in any conveyance executed by such
sole trustee of such request shall be conclusive evidence thereof, and of the
authority of such sole trustee to act.
21. This Deed of Trust applies to, inures to the benefit of, and binds
all parties hereto, their heirs, legatees, devisees, administrators, executors,
successors, and assigns. It is expressly agreed that the Trust created hereby is
irrevocable by Trustor.
22. Trustee accepts this trust when this Deed of Trust, duly executed
and acknowledged, is made a public record as provided by law, reserving,
however, unto the Trustee, the right to resign from the duties and obligations
imposed herein whenever Trustee, in its sole discretion, deems such resignation
to be in the best interest of the Trustee. Written notice of such resignation
shall be given to Trustor and Beneficiary.
23. The rights and remedies of Beneficiary upon the Occurrence of one or
more Events of Default as defined in the Loan Agreement (whether such rights and
remedies are conferred by statute, by rule of law, by this Deed of Trust, or
otherwise) may be exercised by Beneficiary, in the sole discretion of
Beneficiary, either alternatively, concurrently, or consecutively in any order.
The exercise by Beneficiary or Trustee at the express direction of Beneficiary,
of any one or more of such rights and remedies shall not be construed to be an
election of remedies nor a waiver of any other rights and remedies Beneficiary
might have unless, and limited to the extent that, Beneficiary shall so elect or
so waive by an instrument in writing delivered to Trustee. Without limiting the
generality of the foregoing, to the extent that this Deed of Trust covers both
Real Property and Personal Property, Beneficiary may, in the sole discretion of
Beneficiary, either alternatively, concurrently, or consecutively in any order:
(a) Proceed as to both the Real Property and Personal Property in
accordance with Beneficiary's rights and remedies in respect of the Real
Property; or
(b) Proceed as to the Real Property in accordance with
Beneficiary's rights and remedies in respect of the Real Property and proceed as
to the Personal Property in accordance with Beneficiary's rights and remedies in
respect of the Personal Property.
Beneficiary may, in the sole discretion of Beneficiary, appoint Trustee
as the agent of Beneficiary for the purpose of
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disposition of the Personal Property in accordance with the Nevada Uniform
Commercial Code--Secured Transactions.
If Beneficiary should elect to proceed as to both the Real Property and
Personal Property collateral in accordance with Beneficiary's rights and
remedies in respect to the Real Property:
(a) All the Real Property and all the Personal Property may be
sold, in the manner and at the time and place provided in this Deed of Trust, in
one lot, or in separate lots consisting of any combination or combinations of
Real Property and Personal Property, as the Beneficiary may elect, in the sole
discretion of Beneficiary.
(b) Trustor acknowledges and agrees that a disposition of the
Personal Property collateral in accordance with Beneficiary's rights and
remedies in respect of Real Property, as hereinabove provided, is a commercially
reasonable disposition of the collateral.
If Beneficiary should elect to proceed as to the Personal Property
collateral in accordance with Beneficiary's rights and remedies in respect of
Personal Property, Beneficiary shall have all the rights and remedies conferred
on a secured party by NRS 104.9501 to NRS 104.9507, both inclusive.
24. Upon the occurrence of an Event of Default as defined in the Loan
Agreement, Trustor shall be deemed to have appointed and does hereby appoint
Beneficiary the attorney-in-fact of Trustor to prepare, sign, file and record
one or more financing statements; any documents of title or registration, or
like papers, and to take any other action deemed necessary, useful or desirable
by Beneficiary to perfect and preserve Beneficiary's security interest against
the rights or interests of third persons.
25. Trustor acknowledges and agrees that this Deed of Trust shall be
governed by and construed in accordance with the laws of the State of Nevada.
26. This Deed of Trust is intended to be a fixture filing under NRS
104.9402. The address of Beneficiary from which information may be obtained
concerning the security interest granted hereunder and the mailing address of
Trustor are as follows:
Beneficiary,
c/o Agent Bank: ▇▇▇▇▇ Fargo Bank, National Association
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Mr. Art Brokx
-14-
120
with a copy to: Pillsbury Madison & Sutro LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Trustor: ZANTE, INC.,
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇
27. This Deed of Trust has been executed pursuant to and is subject to
the terms of the Loan Agreement executed concurrently herewith and Trustor
agrees to observe and perform all provisions contained therein.
IN WITNESS WHEREOF, Trustor has executed this instrument the day and
year first above written.
DEBTOR and TRUSTOR:
ZANTE, INC.,
a Nevada corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
------------------------
Title: Exec. V.P. and CFO
------------------------
By:
----------------------------
Name:
------------------------
Title:
------------------------
-15-
121
EXHIBIT A
---------
LEGAL DESCRIPTION OF PROPERTIES
122
DESCRIPTION
All that real property situate in the City of Reno, County of Washoe, State of
Nevada, described as follows:
All that portion of Lots 13 and 14, in Block 3 of WESTERN ADDITION, Reno,
according to the map thereof, filed in the office of the County Recorder of
Washoe County, State of Nevada, on May 2, 1876, described as follows:
BEGINNING at a point on the East line of ▇▇▇▇▇▇▇ Street, 140 feet Southerly
from the Northeast corner of said Lot 14; thence Southerly along the East line
of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ feet; thence at right angles Easterly 103 feet; thence at
right angles Northerly 60 feet; thence at right angles Westerly 103 feet to the
point of beginning.
APARTMENT BUILDING
Page 1 of 1
123
DESCRIPTION
All that real property situate in the City of Reno, County of Washoe, State of
Nevada, described as follows:
The East 70 feet of the South 100 feet of ▇▇▇ ▇ ▇▇ ▇▇▇▇▇ ▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇▇, according to the map thereof, filed in the office of the County Recorder
of Washoe County, State of Nevada, on May 2, 1876, and being more particularly
described as follows:
BEGINNING at the Southeast corner of said Lot 7 in Block 2; thence Westerly
along the Southerly line of said Lot 7, a distance of 70 feet; thence Northerly,
parallel to the Easterly line of said Lot 7, a distance of 100 feet; thence
Easterly and parallel to the Southerly line of said Lot 7, a distance of 70 feet
to the Easterly line of said Lot 7; thence Southerly along the Easterly line of
said Lot 7, a distance of 100 feet to the point of beginning.
RESIDENCE
Page 1 of 1
124
STATE OF NEVADA )
) ss.
COUNTY OF WASHOE )
On June 1, 1998, before me, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, a Notary Public in and for
the State of NEVADA, personally appeared ▇▇▇▇▇ ▇. ▇▇▇▇, personally known to me
to be the person whose name is subscribed to the within instrument, and
acknowledged to me that he executed the same in his authorized capacity and
that, by his signature on the instrument, the person or the entity upon behalf
of which he acted, executed the instrument.
WITNESS my hand and official seal.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Notary Public in and for said State
(Notarial Seal)
125
Loan No.
------
PLEDGE AND ASSIGNMENT
TO: ▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION
THE SUMITOMO BANK, LIMITED
PLEDGE AND ASSIGNMENT. For valuable consideration and as further security for
the payment of the Indebtedness (as defined below), the undersigned,
ZANTE, INC., a Nevada corporation ("DEBTOR"), hereby grants, assigns,
pledges and transfers to ▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION and THE
SUMITOMO BANK, LIMITED (collectively, "LENDERS") and ▇▇▇▇▇ FARGO BANK,
NATIONAL ASSOCIATION, as administrative and collateral agent for Lenders
(herein referred to as the "AGENT BANK" and together with the Lenders,
collectively, the "BANKS"), all present and future "deposit accounts"
which are owned, or used in connection with, or in the conduct of, the
business of Debtor, including, without limitation, the following accounts
(collectively called "COLLATERAL"):
Those certain accounts described in Exhibit "A" attached hereto located at Agent
Bank and any interest accruing thereon and all renewals and replacements
thereof, and any demand, time, savings, passbook, securities, commodities or
like account maintained with any bank, savings and loan association, credit
union, securities firm or like organization.
OBLIGATIONS SECURED. The obligations secured hereby are the payment and
performance of: (a) all obligations under that certain Amended and
Restated Term Loan Agreement, dated as of January 31, 1998, by and between
Lenders and Debtor, in connection with a loan in the original principal
amount of $23,609,516.00 having an outstanding principal balance as of
February 1, 1998 of $10,975,000, and any other documents executed in
connection therewith, as all such documents have been amended from time to
time (collectively, the "LOAN DOCUMENTS"), (b) all present and future
Indebtedness of Debtor to Lenders; (c) all obligations of Debtor and
rights of Lenders under this Agreement; and (d) all present and future
obligations of Debtor to Lenders of other kinds. The word "INDEBTEDNESS"
is used herein in its most comprehensive sense and includes any and all
advances, debts, obligations and liabilities of Debtor, or any of them,
heretofore, now or hereafter made, incurred or created, whether voluntary
or involuntary and however arising, whether due or not due, absolute or
contingent, liquidated or unliquidated, determined or undetermined, and
whether Debtor may be liable individually or jointly, or whether recovery
upon such Indebtedness may be or hereafter become unenforceable.
TERMINATION. The Agreement will terminate upon the performance of all
obligations of Debtor to Lenders, including without limitation, the
payment of all Indebtedness of Debtor to Lenders.
OBLIGATIONS OF LENDERS. While Debtor is not in default, Lenders will release all
Collateral for use by Debtor for the purpose of allowing Debtor to conduct
its business consistent with the "Business Plan Projections," as defined
in the Loan Documents.
REPRESENTATIONS AND WARRANTIES. Debtor represents and warrants to Lenders that:
(a) Debtor is the owner and has possession or control of the Collateral;
(b) all Collateral is genuine, free from liens, adverse claims, setoffs,
default, prepayment, defenses and conditions precedent of any kind or
character, except as heretofore disclosed to Lenders in writing; (c) all
statements contained herein and, where applicable, in the Collateral are
true and complete; and (d) no financing statement covering any of the
Collateral, and naming any secured party other than Lenders, is on file in
any public office.
Page 1 of 4
126
Loan No.
------
COVENANTS OF DEBTOR.
Debtor agrees in general: (i) to pay Indebtedness secured hereby when due; (ii)
to indemnify Lenders against all losses, claims, demands, liabilities and
expenses of every kind caused by property subject hereto; (iii) to pay all
costs and expenses, including reasonable attorneys' fees, incurred by
Lenders in the perfection, preservation, realization, enforcement and
exercise of its rights, powers and remedies hereunder; (iv) to permit
Lenders to exercise their powers; (v) to execute and deliver such
documents as Lenders deem necessary to create, perfect and continue the
pledge and assignment contemplated hereby; and (vi) not to change its
chief place of business or the place where Debtor keeps its records
concerning the Collateral without first giving Lenders written notice of
the address to which Debtor is moving same.
Debtor agrees with regard to the Collateral: (i) not to permit any lien on the
Collateral except in favor of Lenders; (ii) not to sell, hypothecate or
otherwise dispose of any of the Collateral, or any interest therein,
without the prior written consent of Lenders; (iii) to keep, in accordance
with generally accepted accounting principles, complete and accurate
records regarding all Collateral, and to permit Lenders to inspect the
same and make copies thereof at any reasonable time; (iv) not to commingle
Collateral with other property; (v) that upon the occurrence of an Event
of Default, Debtor shall have no rights whatsoever to withdraw any funds
from any deposit account pledged to Lenders hereunder except in accordance
herewith and that Lenders have complete dominion and control over all such
deposit accounts; (vi) to provide any service and do any other acts which
may be necessary to keep the Collateral free and clear of all defenses,
rights of offset and counterclaims; and (vii) not to establish any other
deposit accounts other than those deposit accounts described in the first
paragraph of this Agreement.
Debtor agrees not to establish any new accounts without the prior written
consent of Lenders and, concurrently with properly establishing such new
account, Debtor shall provide a pledge and assignment of such accounts to
Lenders in a manner acceptable to Lenders, in Lenders' sole and absolute
discretion.
EVENTS OF DEFAULT. The occurrence of any of the following shall constitute an
"EVENT OF DEFAULT" under this Agreement: (a) any default in the payment or
performance of any obligation, or any defined event of default, under (i)
the Loan Documents or any contract or instrument evidencing any
Indebtedness, or (ii) any other loan agreement between Debtor and Lenders
relating to or executed in connection with any Indebtedness; (b) any
representation or warranty made by Debtor herein shall prove to be
incorrect in any material respect when made; (c) Debtor shall fail to
observe or perform any obligation or agreement contained herein; and (d)
any attachment or like levy on any material property of Debtor.
REMEDIES. Upon the occurrence of any Event of Default, Lenders shall have the
right to (i) declare immediately due and payable all or any Indebtedness
secured hereby and to terminate any commitments to make loans or otherwise
extend credit to Debtor, (ii) liquidate the Collateral and/or (ii) setoff
any and all sums held or deposited in the Collateral. All rights, powers,
privileges, and remedies of Lenders shall be cumulative. No delay, failure
or discontinuance of Lenders in exercising any right, power, privilege or
remedy hereunder shall affect or operate as a waiver of such right, power,
privilege or remedy; nor shall any single or partial exercise of any such
right, power, privilege or remedy preclude, waive or otherwise affect any
other or further exercise thereof or the exercise of any other right,
power, privilege or remedy. Any waiver, permit, consent or approval of any
kind by Lenders of any default hereunder, or any such waiver of any
provisions or conditions hereof, must be in writing and shall be effective
only to the extent set forth in writing.
Page 2 of 4
127
Loan No.
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DISPOSITION OF COLLATERAL. Upon the transfer of all or any part of the
Indebtedness, Lenders may transfer all or any part of the Collateral and
shall be fully discharged thereafter from all liability and responsibility
with respect to any of the foregoing so transferred, and the transferee
shall be vested with all rights and powers of Lenders hereunder with
respect to any of the foregoing so transferred; but with respect to any
Collateral not so transferred, Lenders shall retain all rights, powers,
privileges and remedies herein given. Any proceeds of any disposition of
the Collateral, or any part thereof, may be applied by Lenders to the
payment of expenses incurred by Lenders in connection with the foregoing,
including reasonable attorneys' fees, and the balance of such proceeds may
be applied by Lenders toward the payment of the Indebtedness in such order
of application as Lenders may from time to time elect.
COSTS, EXPENSES AND ATTORNEYS' FEES. Upon an Event of Default, Debtor shall pay
to Lenders immediately upon demand the full amount of all payments,
advances, charges, costs and expenses, including reasonable attorneys'
fees, to include outside counsel fees and all allocated costs of Lenders'
in-house counsel), incurred by Lenders in exercising any right, power,
privilege or remedy conferred by this Agreement or in the enforcement
thereof, including any of the foregoing incurred in connection with any
bankruptcy proceeding relating to Debtor or the valuation of the
Collateral, including without limitation, the seeking of relief from or
modification of the automatic stay or the negotiation and drafting of a
cash collateral order. All of the foregoing shall be paid to Lenders by
Debtor with interest at a rate per annum equal to Agent Bank's Prime Rate
plus three percent (3%) in effect from time to time. The "PRIME RATE" is a
base rate that Agent Bank from time to time establishes and which serves
as the basis upon which effective rates of interest are calculated for
those loans making reference thereto.
MISCELLANEOUS. Presentment, protest, notice of protest, notice of dishonor and
notice of nonpayment are waived; any right to direct the application of
payments of security for Indebtedness of Debtor hereunder, or indebtedness
of customers of Debtor, and any right to require proceedings against
others or to require exhaustion of security are waived; and consent to
extensions, forbearances or alterations of the terms of Indebtedness, the
release or substitution of security, and the release of guarantors is
given with respect to Collateral subject to this Agreement; provided
however, that in each instance, Lenders believe in good faith that the
action in question is commercially reasonable in that it does not
unreasonably increase the risk of nonpayment of the Indebtedness to which
the action applies. Until all Indebtedness shall have been paid in full,
Debtor shall have no right of subrogation or contribution, and Debtor
hereby waives any benefit of or any right to participate in any of the
Collateral or any other security now or hereafter held by Lenders.
NOTICES. All notices or demands of any kind which Lenders may be required or
desire to serve upon Debtor under the terms of this Agreement shall be
served upon Debtor by personal service or by mailing a copy thereof by
first class mail, postage prepaid, addressed to Debtor at the address set
forth below or at such other address as Debtor shall designate by written
notice to Lenders. Service by mail shall be determined to be complete at
the expiration of the second day after the date of mailing.
GOVERNING LAW; SUCCESSORS, ASSIGNS. This Agreement shall be governed by and
construed in accordance with the laws of the State of Nevada, and shall be
binding upon and inure to the benefit of the heirs, executors,
administrators, legal representatives, successors and assigns of the
parties.
Page 3 of 4
128
Loan No.
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SEVERABILITY OF PROVISIONS. If any provision of this Agreement shall be held to
be prohibited by or invalid under applicable law, such provision shall be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or any remaining provisions
of this Agreement.
IN WITNESS WHEREOF, this Agreement has been duly executed as of January 31,
1998.
ZANTE, INC.,
a Nevada corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
------------------------
Title: Exec. V.P. and CFO
------------------------
By:
----------------------------
Name:
------------------------
Title:
------------------------
Page 4 of 4
129
Loan No.
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EXHIBIT A
---------
ACCOUNTS
130
Bank Account Listing
--------------------
GL # Description ▇▇▇▇▇ Fargo
---- ----------- -----------
1210 Zante, Inc.- Operating 4159-571785
1212 Zante, Inc.- Travel Agent 4159-571744
1215 Zante, Inc.- Dental Plan 4159-571769
1220 Zante, Inc.- Payroll 4159-571777
1222 Zante, Inc.- EFT 4435-611777
1230-1233 Zante, Inc.- Mastercard/Visa 4159-571751
Security Account Listing
------------------------
Prudential Security Acct # Description
-------------------------- -----------
ORV-952251-28 Zante, Inc. Security Account
