Delaware
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0-22290
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84-1271317
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(State or other jurisdiction
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(Commission
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(I.R.S. Employer
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of incorporation)
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File Number)
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Identification Number)
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2860 South Circle Drive, Suite 350, Colorado Springs, CO
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80906
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(Address of principal executive offices)
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(Zip Code)
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Registrant's telephone number, including area code:
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719-527-8300
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1)
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Credit Facility A is a CAD 1.0 million (approximately $1.0 million USD based on the exchange rate in effect on May 23, 2012) revolving credit facility to be used for the costs of the financing, ongoing working capital requirements and operating regulatory requirements.
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2)
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Credit Facility B is a CAD 25.0 million (approximately $24.3 million USD based on the exchange rate in effect on May 23, 2012) committed, non-revolving, reducing standby facility.
Of this CAD 25.0 million, up to CAD 11.0 million (approximately $11.0 million USD based on the exchange rate in effect on May 23, 2012) of the facility is to be used to repay all or part of the Edmonton Mortgage with the remainder available for working capital requirements and general corporate purposes. On May 23, 2012, the Company repaid the outstanding balance of approximately $6.4 million USD on the Edmonton Mortgage. The repayment of the Edmonton Mortgage was funded with a $3.6 million USD borrowing under the credit agreement and $2.8 million USD of cash on hand.
Once the principal balance of an advance under Credit Facility B has been repaid, it cannot be re-borrowed.
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3)
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Credit Facility C is a CAD 2.0 million (approximately $2.0 million USD based on the exchange rate in effect on May 23, 2012) treasury management risk management facility.
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1)
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Advances under Credit Facility A may be in the form of:
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i. | Advances denominated in CAD and bearing interest at the lender’s floating rate for loans made in CAD plus a margin, and/or |
ii. | Advances denominated in US$ and bearing interest at the lender’s floating rate for loans made in US$ plus a margin, and/or |
iii. | Issuances of a CAD Letter of Credit (maximum face value CAD 100,000), bearing interest at floating margin rate. |
2)
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Advances under Credit Facility B may be in the form of:
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3)
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Longer term fixed rates of interest, up to and including the full five year term of the credit agreement, can be achieved through the use of interest rate swaps with a deemed risk up to the maximum amount of Credit Facility C.
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i.
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Not less than 50% of the advances under Credit Facility B must be made under interest rates fixed for not less than two years.
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4)
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Any funds that are not drawn down under either Credit Facility A or B are classified as a CAD Standby Facility.
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SIGNATURE
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Century Casinos, Inc.
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(Registrant)
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Date: May 29, 2012
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By : /s/ Margaret Stapleton
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Margaret Stapleton
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Executive Vice President and Principal Financial/Accounting Officer
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ARTICLE I DEFINED TERMS | 1 | ||
1.1 | Defined Terms | 1 | |
1.2 | Knowledge | 21 | |
1.3 | Accounting Terms and Computations | 21 | |
1.4 | Schedules | 21 |
ARTICLE II CREDIT A | 21 | ||
2.1 | Amount and Available Options | 21 | |
2.2 | Commitment and Revolvement of Credit A | 22 | |
2.3 | Use of Credit A | 22 |
ARTICLE III CREDIT B | 22 | ||
3.1 | Amount and Availment Options | 22 | |
3.2 | Committed and Non-Revolving Credit B | 22 | |
3.3 | Use of Credit B | 22 |
ARTICLE IV CREDIT C | 23 | ||
4.1 | Amount and Availment Options | 23 |
ARTICLE V REPAYMENT AND REDUCTION OF CREDITS | 23 | ||
5.1 | Repayment of Advances | 23 | |
5.2 | Voluntary Reduction of Credits | 24 | |
5.3 | Repayment of Credit B Outstanding Principal and Reduction of Credit B | 24 | |
5.4 | Mandatory Repayments | 25 | |
5.5 | Facility Limits | 25 |
ARTICLE VI INTEREST RATES, FEES AND SECURITY | 26 | ||
6.1 | Interest Rates, Letter of Credit Fees and Bankers' Acceptance Stamping Fees | 26 | |
6.2 | Interest on US Base Rate Advances | 26 | |
6.3 | Interest on LIBOR Advances | 27 | |
6.4 | Standby Fees | 27 | |
6.5 | Structuring Fees | 27 | |
6.6 | Security | 27 |
ARTICLE VII DISBURSEMENT CONDITIONS | 28 | ||
7.1 | Conditions Precedent to the Initial Drawdown | 28 | |
7.2 | Conditions Precedent to Advances | 31 | |
7.3 | Waiver | 31 |
ARTICLE VIII PRIME RATE ADVANCES, BA ADVANCES, LIBOR ADVANCES, US BASE RATE ADVANCES AND LETTER OF CREDIT ADVANCES | 31 | ||
8.1 | Prime Rate Advances | 31 | |
8.2 | US Base Rate Advances | 32 | |
8.3 | Evidence of Indebtedness | 32 | |
8.4 | Conversions | 32 | |
8.5 | Notice of Advances | 32 | |
8.6 | Bankers' Acceptances Power of Attorney | 33 | |
8.7 | Size and Maturity of Bankers' Acceptances and Rollovers | 35 | |
8.8 | BA Advances | 35 | |
8.9 | Payment of Bankers' Acceptances | 35 | |
8.10 | Deemed Advance - Bankers Acceptances | 36 | |
8.11 | Waiver | 36 | |
8.12 | Degree of Care | 36 | |
8.13 | Indemnity | 36 | |
8.14 | Obligations Absolute | 36 | |
8.15 | Telephone Instructions | 37 | |
8.16 | Letters of Credit | 37 | |
8.17 | Letter of Credit Fees | 37 | |
8.18 | Letter of Credit Procedures and Limitations | 37 | |
8.19 | LIBOR Advances | 38 | |
8.20 | LIBOR Periods | 38 | |
8.21 | Early Termination of LIBOR Periods | 38 | |
8.22 | Termination of LIBOR Advances | 39 |
ARTICLE IX REPRESENTATIONS AND WARRANTIES | 39 | ||
9.1 | Representations and Warranties | 39 | |
9.2 | Survival of Representations and Warranties | 43 |
ARTICLE X COVENANTS | 43 | ||
10.1 | Positive Covenants | 43 | |
10.2 | Reporting Requirements | 45 | |
10.3 | Negative Covenants | 46 | |
10.4 | Financial Covenants | 49 |
ARTICLE XI DEFAULT | 49 | ||
11.1 | Events of Default | 49 | |
11.2 | Demand Under the Credits and Termination of Rights | 53 | |
11.3 | Payment of Bankers' Acceptances and Letters of Credit | 53 | |
11.4 | Remedies | 54 | |
11.5 | Saving | 54 | |
11.6 | Perform Obligations | 54 | |
11.7 | Third Parties | 54 | |
11.8 | Remedies Cumulative | 55 | |
11.9 | Set-off or Compensation | 55 |
ARTICLE XII SUCCESSORS AND ASSIGNS | 55 | ||
12.1 | Successors and Assigns | 55 |
ARTICLE XIII MISCELLANEOUS PROVISIONS | 56 | ||
13.1 | Headings and Table of Contents | 56 | |
13.2 | Captialized Terms | 56 | |
13.3 | Severability | 56 | |
13.4 | Number, Gender and Other Terms | 56 | |
13.5 | Amendment, Supplement or Waiver | 57 | |
13.6 | Governing Law | 57 | |
13.7 | This Agreement to Govern | 57 | |
13.8 | Permitted Encumbrances | 57 | |
13.9 | Currency | 57 | |
13.10 | Expenses and Indemnity | 58 | |
13.11 | Manner of Payment and Taxes | 59 | |
13.12 | Increased Costs | 59 | |
13.13 | Interest on MiscellaneousAmounts | 60 | |
13.14 | Address for Notice | 60 | |
13.15 | Promotional Marketing | 60 | |
13.16 | Time of the Essence | 61 | |
13.17 | Further Assurances | 61 | |
13.18 | Term of Agreement | 61 | |
13.19 | Payments on Business Day | 61 | |
13.20 | Interest Act Equivalent | 61 | |
13.21 | Non-Merger | 61 | |
13.22 | Anti-Money Laundering Legislation | 62 | |
13.23 | Joint and Several Liability of the Borrowers | 62 | |
13.24 | Counterparts and Facsmile | 62 | |
13.25 | Entire Agreement | 62 |
1.1
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Defined Terms
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(a)
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all applicable common law and the laws of equity, and all applicable provisions of laws, statutes, rules, guidelines, policies and regulations of any Governmental Authority in effect from time to time whether or not having force of law; and
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(b)
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all judgments, orders, awards, decrees, official directives, writs and injunctions from time to time whether or not in effect of any Governmental Authority in an action, proceeding or matter in which the Person is a party or by which it or its property is bound or having application to the transaction or event.
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(a)
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a day of the year, other than Saturday, Sunday or statutory holiday, on which the Lender is open for business at its main branch in Calgary, Alberta; and
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(b)
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with respect to LIBOR Advances only, a day of the year on which the Lender is generally open for domestic and foreign exchange business at its main branch or office, if any, in London, England, but does not in any event include a Saturday or Sunday or statutory holiday in London, England.
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(a)
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any declaration or payment of dividends, royalties, distributions, fees or management fees of any kind directly or indirectly to any holder of Shares of any Person;
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(b)
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any repurchase, retraction or redemption of Shares of any Person by such Person for cash or Property;
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(c)
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any repayment by a Person of any amount of principal, interest or other amounts in respect of any Funded Debt owed to a holder of Shares of such Person, to any Affiliate of a holder of such Shares or to an Affiliate of such Person;
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(d)
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any loan or advance that is made by a Person to or in favour of a holder of Shares in such Person, to an Affiliate of a holder of such Shares or to an Affiliate of such Person; or
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(e)
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the transfer by a Person of any of its property or assets or the provision of services for consideration of less than fair market value thereof, to any holder of Shares in such Person, to an Affiliate of a holder of such Shares or to any Affiliate of such Person.
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(a)
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income taxes;
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(b)
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Interest Expense;
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(c)
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management fees and royalty payments made to Century Casino by the Consolidating Loan Parties; and
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(d)
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depreciation and amortization expenses.
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(a)
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in respect of a Bankers' Acceptance, the amount payable to the holder thereof on its maturity; or
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(b)
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in respect of a Letter of Credit, the maximum amount payable to the beneficiary specified therein or any other Person to whom payments may be required to be made pursuant to such Letter of Credit.
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(a)
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EBITDA of the Consolidating Loan Parties for the most recently completed twelve month period less the amount of the Unfinanced Capital Expenditures of the Consolidating Loan Parties incurred during such twelve month period and less Cash Taxes
paid by the Consolidating Loan Parties in such twelve month period, in each case determined on a consolidated basis; to
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(b)
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the sum of scheduled principal payments of Senior Funded Debt of the Consolidating Loan Parties, Interest Expense of the Consolidating Loan Parties, the payments under Capital Leases by the Consolidating Loan Parties for the relevant period, and Distributions paid to Century Casino by the Consolidating Loan Parties.
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(a)
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money borrowed (including, without limitation, by way of overdraft) or indebtedness represented by notes payable, debentures and drafts accepted representing extensions of credit;
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(b)
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bankers' acceptances and similar instruments;
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(c)
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letters of credit, letters of guarantee and surety bonds issued at the request of such Person;
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(d)
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actual amounts owed under Hedge Agreements upon termination of such Hedge Agreements, including without limitation net settlement amounts payable upon maturity and termination payments payable upon termination or early termination, which are not paid when due;
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(e)
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indebtedness secured by any Encumbrance existing on Property of such Person, whether or not the indebtedness secured thereby shall have been assumed;
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(f)
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all obligations (whether or not with respect to the borrowing of money) that are evidenced by bonds, debentures, notes or other similar instruments or that are not so evidenced but that would be considered by GAAP to be indebtedness for borrowed money;
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(g)
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all redemption obligations and mandatory dividend obligations of such Person with respect to any Shares issued by such Person and which are by their terms or pursuant to any contract, agreement or arrangement:
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(i)
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redeemable, retractable, payable or required to be purchased or otherwise retired or extinguished, or convertible into any of the other obligations described in the definition of "Funded Debt" of such Person (A) at a fixed or determinable date, (B) at the option of any holder thereof, or (C) upon the occurrence of a condition not solely within the control and discretion of such Person, or
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(ii)
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convertible into any other securities described in (i) above;
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(h)
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all obligations as lessee under sale and lease-back transactions and Capital Leases;
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(i)
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all obligations of such Person for or in respect of the deferred purchase or acquisition price of property or services (including, without limitation, Purchase Money Obligations);
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(j)
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all obligations upon which interest charges are customarily paid or payable by that Person prior to payment of the principal amount of the obligations in accordance with the terms of such obligations;
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(k)
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all obligations for or in respect of the purchase of any Property or the supply of any services, the purchase price in respect of which has been prepaid by the purchaser before the Property subject to such purchase is delivered or the services subject to such supply is provided to the purchaser; and
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(l)
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any Guarantee (other than by endorsement of negotiable instruments for collection or deposit in the ordinary course of business) in any manner of any part or all of an obligation included in items (a) through (k) above;
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(a)
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any government, parliament or legislature, any regulatory or administrative authority, agency, commission or board and any other statute, rule or regulation making entity having jurisdiction in the relevant circumstances,
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(b)
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any Person acting within and under the authority of any of the foregoing or under a statute, rule or regulation thereof, and
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(c)
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any judicial, administrative or arbitral court, authority, tribunal or commission having jurisdiction in the relevant circumstances.
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(a)
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all interest accrued or payable in respect of such period;
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(b)
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all fees (including standby, letter of credit, guarantee, commitment and bankers' acceptances fees) accrued or payable in respect of such period, prorated (as required) over such period;
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(c)
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any difference between the face amount and the discount proceeds of any bankers' acceptances, commercial paper and other obligations issued at a discount, prorated (as required) over such period; and
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(d)
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the interest component of Capital Lease obligations.
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Senior Funded Debt to EBITDA Ratio
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Period
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Less than or equal to 1.50:1.00
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Level I
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Greater than 1.50:1.00 and less than or equal to 2.00:1.00
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Level II
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Greater than 2.00:1.00
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Level III
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(a)
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in the case of a Rollover, the last day of each LIBOR Period shall also be the first day of the next LIBOR Period;
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(b)
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the last day of each LIBOR Period shall be a Business Day and, if not, the applicable Borrower shall be deemed to have selected a LIBOR Period the last day of which is the first Business Day following the last day of the LIBOR Period selected by the applicable Borrower; and
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(c)
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the last day of each LIBOR Period for each LIBOR Advance shall be on or before the Credit B Maturity Date.
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(a)
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the business, financial condition, operations, property, assets or undertaking of the Borrowers and Guarantors, taken as a whole; provided however, in the case of a matter, event or circumstance which has a material adverse effect on the global or Canadian economy in general, such matter, event or circumstance shall not constitute a "Material Adverse Effect" so long as the Borrowers and Guarantors are otherwise in compliance with their respective covenants and no Default or Event of Default has occurred under this Agreement for the other Credit Documents to which they are a party;
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(b)
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the ability of the Borrowers and Guarantors to pay and perform their Obligations in accordance with this Agreement, any of the Security or any other Credit Documents;
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(c)
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the validity or enforceability of this Agreement or any other Credit Document;
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(d)
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the rights and remedies of the Lender under the Credit Documents; or
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(e)
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the priority ranking of any of the Encumbrances granted by the Security or the rights or remedies intended or purported to be granted to the Lender under or pursuant to the Security.
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(a)
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with respect to any Asset Disposition by Consolidating Loan Parties, the net amount equal to the aggregate amount received in cash (including any cash received by way of deferred payment pursuant to a note, receivable, other non-cash consideration or otherwise, but only as and when such cash is so received) in connection with such Asset Disposition, less the sum of (x) reasonable amounts payable to any Person to discharge Permitted Encumbrances on the assets forming part of the Asset Disposition, and (y) reasonable fees (including, without limitation, reasonable legal fees), commissions and other out-of-pocket expenses incurred or paid for by the Consolidating Loan Parties to any Person in connection with such Asset Disposition (as evidenced by supporting documentation provided to the Lender) , and
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(b)
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with respect to the incurrence of any Funded Debt or the issuance of Shares by the Consolidating Loan Parties, the net amount equal to the aggregate amount received in cash in connection with such incurrence or issuance, less the reasonable fees (including without limitation, reasonable legal fees), commissions and other out-of-pocket expenses owed or paid to any Person (as evidenced by supporting documentation provided to the Lender).
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(a)
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encumbrances for taxes, rates, assessments or other governmental charges or levies not yet due (or if overdue are being contested by such Person diligently and in good faith by appropriate proceedings);
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(b)
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purchase Money Security Interests, Capital Leases and Encumbrances perfected by the financing statements registered against the Consolidating Loan Parties identified in Schedule "E" at the Alberta Personal Property Registry; and which, in respect of the Consolidating Loan Parties, in the aggregate do not at any time secure obligations exceeding $500,000;
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(c)
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inchoate Encumbrances imposed or permitted by laws such as garagemens' liens, carriers' liens, builders' liens, materialmens' liens and other liens, privileges or other charges of a similar nature which relate to obligations not due or delinquent or if due or delinquent are being contested by such Person diligently and in good faith by appropriate proceedings;
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(d)
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encumbrances to secure its assessments or current obligations which are not at the time overdue or otherwise dischargeable by the payment of money, and which are incurred in the ordinary course of its business under workers' compensation laws, unemployment insurance or other social security legislation or similar legislation, provided that such Encumbrances are in amounts commensurate with such current obligations;
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(e)
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encumbrances or any rights of distress reserved in or exercisable under any lease or sublease to which it is a lessee which secure the payment of rent or compliance with the terms of such lease or sublease, provided that such rent is not then overdue and it is then in compliance in all material respects with such terms;
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(f)
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the right reserved to or vested in any Governmental Authority by the terms of any lease, license, grant or Permit or by any statutory or regulatory provision to terminate any such lease, license, grant or permit or to require annual or other periodic payments as a condition of the continuance thereof;
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(g)
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the Security;
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(h)
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Encumbrances registered against title to the lands on which the Calgary Casino and the Edmonton Casino are located as described in Schedule "E" attached hereto; and
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(i)
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other Encumbrances agreed to in writing by the Lender;
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(a)
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the aggregate principal amount of all such indebtedness does not, at any time, exceed $500,000; and
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(b)
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none of the Consolidating Loan Parties or an Affiliate thereof, immediately prior to entering into an agreement for the acquisition of such property or assets, owns or has any interest in, or any entitlement to own, or has any interest in, the property or assets or a portion thereof being so acquired.
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(a)
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the Senior Funded Debt of the Consolidating Loan Parties, at the end of the most recently completed twelve month period, to
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(b)
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the EBITDA of the Consolidating Loan Parties determined for the most recently completed twelve month period.
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(a)
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on any day, the floating annual rate of interest established from time to time by the Lender as the reference rate it will use to determine rates of interest on US Dollar loans to its customers in Canada and designated as its "US Dollar Base Rate"; and
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(b)
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a rate of interest per 365 or 366 day period, as applicable, equal to the Federal Funds Rate plus 100 bps.
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1.2
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Knowledge
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1.3
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Accounting Terms and Computations
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1.4
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Schedules
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2.1
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Amount and Availment Options
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2.2
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Commitment and Revolvement of Credit A
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2.3
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Use of Credit A
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3.1
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Amount and Availment Options
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3.2
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Committed and Non-Revolving Credit B
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3.3
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Use of Credit B
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(a)
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one Drawdown to be made available to Century Resorts Alberta Inc., of up to $11,000,000 for the purpose of repaying all of the CWB Obligations;
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(b)
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for working capital or general corporate purposes of either Borrower or any of their Affiliates, up to $14,000,000, available by way of multiple draws by a Borrower from time to time following the Closing Date; and
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(c)
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any unused portion of the Drawdown permitted in
Subsection
(a)
above
after the full and final payment of the CWB Obligations shall be available to a Borrower or any of their Affiliates by way of multiple draws from time to time thereafter for working capital or general corporate purposes of either Borrower or any of their Affiliates.
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4.1
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Amount and Availment Options
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5.1
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Repayment of Advances
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5.2
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Voluntary Reduction of Credits
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(a)
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prepaid or otherwise reduced Advances outstanding to the Lender in an amount equal to the amount by which Advances outstanding to the Lender exceeds the amount of the Credit A Facility Limit or the Credit B Facility Limit immediately after the reduction provided for in such notice;
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(b)
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paid all accrued interest and other charges and fees in respect of the Advances being repaid or reduced as aforesaid (including without limitation, amounts payable pursuant to
Section
13.10
); and
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(c)
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paid all amounts required to be paid in connection with the termination of all or any part of any Hedge Agreements required as a result of such repayment of Advances so that the aggregate notional principal amount of all Interest Rate Hedge Agreements does not exceed the Outstanding Principal under Credit B.
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(d)
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any Bankers' Acceptance prior to its maturity date; or
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(e)
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any LIBOR Advance prior to the end of the applicable LIBOR Period unless the Borrowers indemnify the Lender for any loss or expense that the Lender incurs as a result thereof, including any breakage costs, and each such repayment shall be in a minimum amount of US$1,000,000 and in a whole multiples of US$100,000.
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5.3
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Repayment of Credit B Outstanding Principal and Reduction of Credit B
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5.4
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Mandatory Repayments
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(a)
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an amount equal to the Net Proceeds in excess of $500,000 in the aggregate from any Asset Disposition by the Consolidating Loan Parties (other than the sale of inventory in the ordinary course of business and for the purpose of carrying on the same) in any Fiscal Year shall be used to repay Outstanding Principal under Credit B (to be applied in inverse order of maturity) within ten (10) Business Days of receipt, except to the extent that the Net Proceeds from such Asset Disposition are reinvested (other than in cash or Cash Equivalents) in the Business within ninety (90) days of the receipt of such Net Proceeds;
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(b)
|
an amount equal to the Net Proceeds from the incurrence of any Funded Debt or the issuance of Shares by the Consolidating Loan Parties shall be used to repay Outstanding Principal under Credit B (to be applied in inverse order of maturity) within ten (10) Business Days after receipt; and
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(c)
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an amount equal to all proceeds of insurance claims payable to the Consolidating Loan Parties and, for greater certainty, excluding amounts received by the Consolidating Loan Parties from an insurer in respect of third party liability coverage (including, without limitation, coverage for director and officer liability) in respect of any of the Property of the Consolidating Loan Parties ("
Insurance Proceeds
"), shall be used to repay Outstanding Principal under Credit B (to be applied in inverse order of maturity) within ten (10) Business Days after receipt, except to the extent that the Insurance Proceeds are reinvested (other than in cash or Cash Equivalents) in the Business within ninety (90) days of receipt of such Insurance Proceeds.
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5.5
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Facility Limits
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6.1
|
Interest Rates, Letter of Credit Fees and Bankers' Acceptance Stamping Fees
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6.2
|
Interest on US Base Rate Advances
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6.3
|
Interest on LIBOR Advances
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6.4
|
Standby Fees
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6.5
|
Structuring Fees
|
6.6
|
Security
|
(a)
|
fixed and floating charge demand debentures in the principal amount of $35,000,000 to be issued by each of the Consolidating Loan Parties in favour of the Lender;
|
(b)
|
debenture pledge agreements to be executed by each of the Consolidating Loan Parties in connection with the debentures issued to the Lender, as described above;
|
(c)
|
assignments of material leases and material contracts (together with all consents and acknowledgements from the counter parties to such material leases and material contracts as the Lender may reasonably request to be granted by the Consolidating Loan Parties in favour of the Lender);
|
(d)
|
share pledge agreements granted by the Consolidating Loan Parties in favour of the Lender pursuant to which the Shares in each Subsidiary are pledged to the Lender;
|
(e)
|
share pledge agreements to be granted by each holder of Shares in the capital of each Borrower, 1214741, and Century Properties Calgary, in favour of the Lender, pursuant to which such Shares are pledged to the Lender;
|
(f)
|
an assignment of insurance granted by the Consolidating Loan Parties in favour of the Lender, together with a corresponding Certificate of Insurance or Binder confirming the insurance in effect and noting the Lender as first loss payee and additional insured;
|
(g)
|
a guarantee granted by each Borrower to the Lender, pursuant to which such Borrower guarantees the payment and performance of all present and future indebtedness, liabilities and obligations of the other Borrower to the Lender and the Hedge Providers;
|
(h)
|
a guarantee granted by each Guarantor to the Lender pursuant to which such Guarantor guarantees the payment and performance of all present and future indebtedness, liabilities and obligations of the Borrowers to the Lender and the Hedge Providers;
|
(i)
|
postponement and assignment of creditors' claims agreement executed by each holder of Shares in the capital of the Consolidating Loan Parties and any other related parties who have provided loans to any of the Consolidating Loan Parties; and
|
(j)
|
all other assignments, mortgages, charges, pledges, guarantees, debentures and other security agreements, consents and acknowledgments (including negative pledges) from time to time from or granted by the Consolidating Loan Parties in favour of the Lender and the Hedge Providers (or any of them) as the Lender may reasonably require.
|
7.1
|
Conditions Precedent to the Initial Drawdown
|
(a)
|
receipt by the Lender, of the following documents, each in full force and effect, and in form and substance satisfactory to the Lender, acting reasonably:
|
(i)
|
this Agreement, duly executed and delivered by each Borrower;
|
(ii)
|
certified copies of the Constating Documents of each Borrower and each Guarantor;
|
(iii)
|
certificates of incumbency of each Borrower and each Guarantor;
|
(iv)
|
certified copies of the resolutions of the board of directors of each Borrower and each Guarantor authorizing the execution, delivery and performance of its respective obligations under the Credit Documents to which each is a party;
|
(v)
|
a Drawdown Notice duly completed and executed by the Borrowers;
|
(vi)
|
completed environmental checklist in the Lender's standard form with respect to all real estate owned or leased by the Consolidating Loan Parties;
|
(vii)
|
duly executed copies of the Security, duly registered, where applicable;
|
(viii)
|
releases, discharges and postponements (in registrable form where appropriate) covering all Encumbrances affecting the collateral Encumbered by the Security which are not Permitted Encumbrances (including without limitation, releases and discharges of the CWB Debt Documents), if any, or undertakings satisfactory to the Lender to provide such releases, discharges and postponements;
|
(ix)
|
letters of opinion of counsel to the Borrowers and the Guarantors, addressed to the Lender and to Fraser Milner Casgrain LLP relating to, among other things, the subsistence of the Borrowers and the Guarantors, and the due authorization, execution, delivery and enforceability of the Credit Documents to which each is a party; and
|
(x)
|
all operation of account documentation as the Lender may reasonably require;
|
(b)
|
receipt of all Governmental Authority, regulatory, securities and/or other third party consents relating to the Business, including any applicable consents required from AGLC pursuant to the
Gaming and Liquor Act
(Alberta) and its associated Regulations in a form and on terms satisfactory to the Lender;
|
(c)
|
the Borrowers shall have paid all fees, costs and expenses then due in respect of the Credits and the Credit Documents;
|
(d)
|
the Borrowers shall provide to the Lender evidence (in form and substance satisfactory to the Lender) confirming that the Shareholders Equity of the Borrowers is at least $20,000,000.00
|
(e)
|
the Borrowers shall have provided evidence to the Lender (in form and substance satisfactory to the Lender) that the Business carried on by the Consolidating Loan Parties has generated a minimum EBITDA of $7,000,000.00 for the twelve months immediately prior to the Closing Date;
|
(f)
|
the Borrowers shall provide:
|
(i)
|
the Financial Statements including the details of operation for both the Calgary Casino and the Edmonton Casino for not less than the three (3) most recently completed Fiscal Years from the date that the Consolidating Loan Parties began operating the Calgary Casino and the Edmonton Casino;
|
(ii)
|
the most current management prepared interim consolidated Financial Statements; and
|
(iii)
|
a 3 year (on a monthly basis for the first year) financial forecast for both the Calgary Casino and the Edmonton Casino businesses including a statement of cash flows and a detailed Capital Expenditure Budget;
|
(g)
|
each Borrower shall have provided to the Lender a Compliance Certificate confirming that the Senior Funded Debt to EBITDA Ratio of the Consolidating Loan Parties, on the Closing Date shall not be greater than 2.75:1.00 and confirming each Borrower is in compliance with all of the provisions of this Agreement including all other Financial Covenants, on a pro forma basis;
|
(h)
|
receipt of evidence, to the satisfaction of the Lender, that appropriate levels of insurance coverage is in place;
|
(i)
|
the Lender shall be satisfied with the results of the due diligence relating to the Borrowers and Guarantors and their respective officers, including without limitation:
|
(i)
|
all leases and material agreements entered into by the Consolidating Loan Parties;
|
(ii)
|
in respect of the real property owned by the Consolidating Loan Parties:
|
(A)
|
all environmental reviews or reports, including the environmental reviews and reports provided by the Consolidating Loan Parties in connection to the Calgary Casino and the Edmonton Casino (which environmental reviews and reports shall be in form and substance satisfactory to the Lender); and
|
(B)
|
appraisals from real property appraisers for the lands on which each of the Calgary Casino and the Edmonton Casino is located (together with transmittal letters from such appraisers allowing the Lender to rely on such appraisals);
|
(iii)
|
the industry and economic factors associated with the Business;
|
(iv)
|
credit background checks, including satisfactory banker's report from CWB with respect to the Borrowers;
|
(v)
|
review and confirmation of compliance by the Consolidating Loan Parties of compliance with all requirements of AGLC with respect to the operation of the Business, including internal processes and audits with respect to AML Legislation; and
|
(vi)
|
all accounting, tax, business, regulatory, and legal due diligence;
|
(j)
|
Century Resorts Alberta Inc. shall have provided to the Lender evidence of the cancellation of the CWB Credit Agreement and the arrangements for the repayment of all of the CWB Obligations in full on the Closing Date as set out in
Section
3.3(a)
(with
such evidence and arrangements satisfactory to the Lender, acting reasonably); and
|
(k)
|
no event or circumstance shall have occurred that could reasonably be expected to have a Material Adverse Effect.
|
7.2
|
Conditions Precedent to Advances
|
(a)
|
no Event of Default or Default has occurred and is continuing on the date of the Advance, or would result from making the Advance;
|
(b)
|
the representations and warranties in this Agreement and in any of the other Credit Documents shall be true and correct as if made on and as of the Drawdown Date, the Rollover Date or the Conversion Date (as applicable); and
|
(c)
|
the Lender has received timely notice as required under Section
8.5
.
|
7.3
|
Waiver
|
8.1
|
Prime Rate Advances
|
8.2
|
US Base Rate Advances
|
8.3
|
Evidence of Indebtedness
|
8.4
|
Conversions
|
8.5
|
Notice of Advances
|
8.6
|
Bankers' Acceptances Power of Attorney
|
(a)
|
to sign for and on behalf and in the name of such Borrower as drawer, drafts in the Lender's standard form which are "depository bills" under and as defined in the
Depository Bills and Notes Act
(Canada) (the "
DBNA
") drawn on the Lender payable to a "clearing house" under the DBNA or its nominee for deposit by the Lender with the "clearing house" after acceptance thereof by the Lender, and
|
(b)
|
to fill in the amount, date and maturity date of such drafts;
|
(a)
|
reference to the power of attorney contained in this Section of this Agreement;
|
(b)
|
a Canadian Dollar amount, which shall be the aggregate face amount of the drafts to be accepted by the Lender in respect of a particular BA Advance;
|
(c)
|
a specified period of time as provided in this Agreement which shall be the number of days after the date of acceptance of such drafts that such drafts are to be payable, and the dates of issue and maturity of such drafts; and
|
(d)
|
payment instructions specifying the account number of such Borrower at the Branch of Account at which the BA Discount Proceeds are to be credited.
|
8.7
|
Size and Maturity of Bankers' Acceptances and Rollovers
|
8.8
|
BA Advances
|
8.9
|
Payment of Bankers' Acceptances
|
8.10
|
Deemed Advance - Bankers' Acceptances
|
8.11
|
Waiver
|
8.12
|
Degree of Care
|
8.13
|
Indemnity
|
8.14
|
Obligations Absolute
|
(a)
|
any lack of validity or enforceability of any draft accepted by the Lender as a Bankers' Acceptance; or
|
(b)
|
the existence of any claim, set-off, defense or other right which either Borrower may have at any time against the holder of a Bankers' Acceptance, the Lender or any other Person or entity, whether in connection with this Agreement or otherwise.
|
8.15
|
Telephone Instructions
|
8.16
|
Letters of Credit
|
8.17
|
Letter of Credit Fees
|
8.18
|
Letter of Credit Procedures and Limitations
|
(a)
|
the aggregate Face Amount of all Letters of Credit that may be issued and outstanding shall not at any time exceed $100,000;
|
(b)
|
the term of each Letter of Credit shall not exceed 364 days, with no right of further automatic renewal;
|
(c)
|
the Lender shall not have any obligation to issue a Letter of Credit until:
|
(i)
|
it has been paid the applicable fee(s),
|
(ii)
|
such ancillary documents, including applications and indemnities, as it usually requires for similar transactions have been executed and delivered to it, and
|
(iii)
|
in the case of the Conversion of an existing Advance to a Letter of Credit Advance, the full amount of the Advance being Converted together with all interest, fees and other amounts applicable thereto have been paid to the Lender; and
|
(d)
|
all payments made by the Lender to any Person pursuant to a Letter of Credit shall, unless a Borrower reimburses the Lender for such payment on or before the date it is made, be deemed as and from the date of such payment to be a Prime Rate Advance under Credit A to the Borrower that requested such Letter of Credit Advance, with the proceeds of such Prime Rate Advance being applied against such Borrower’s Obligations to reimburse the Lender for payment made under the applicable Letter of Credit. If the Lender makes a payment of a Letter of Credit in any currency other than Canadian Dollars and the Borrowers do not reimburse the Lender for such payment in such other currency on or before the date the payment is made, the Lender shall convert such payment into Canada Dollars at the applicable Exchange Rate on such date.
|
8.19
|
LIBOR Advances
|
8.20
|
LIBOR Periods
|
8.21
|
Early Termination of LIBOR Periods
|
8.22
|
Termination of LIBOR Advances
|
(a)
|
adequate and reasonable means do not exist for ascertaining the LIBOR Rate applicable to a LIBOR Advance;
|
(b)
|
the LIBOR Rate does not adequately reflect the effective cost to such Lender of making or maintaining a LIBOR Advance, respectively;
|
(c)
|
it cannot readily obtain or retain funds in the London interbank market in order to fund or maintain any LIBOR Advance;
|
(d)
|
it is illegal for the Lender to make or maintain a LIBOR Advance,
|
(e)
|
the right of the Borrowers to request LIBOR Advances from the Lender shall be and remain suspended until the Lender notifies the Borrowers that any condition causing such determination no longer exists, and
|
(f)
|
if the Lender is prevented from maintaining a LIBOR Advance, the Borrowers, or Borrower, as applicable, shall, at their option, either repay the LIBOR Advance to the Lender or convert the LIBOR Advance into other forms of Advance which are permitted by this Agreement, and the Borrowers
, or Borrower, as applicable, shall be responsible for any loss or expense that the Lender incurs as a result, including breakage costs, if such repayment or conversion does not occur on the last day of a LIBOR Period.
|
9.1
|
Representations and Warranties
|
(a)
|
each Consolidating Loan Party is duly organized and validly existing under the laws of the Province of Alberta, or the laws of its organization, each is duly registered to carry on business in each jurisdiction in which it owns Property or carries on a business, and each Consolidating Loan Party has the power and authority to enter into and perform its obligations under each Credit Document to which it is a party;
|
(b)
|
each Consolidating Loan Party has the power and authority to own or lease its Property, to carry on and conduct its Business as presently conducted, to borrow money hereunder and to perform its obligations under each Credit Document to which it is a party;
|
(c)
|
each Consolidating Loan Party has obtained and maintains all Permits necessary for the ownership of its Property and the conduct of its Business in each jurisdiction where it carries on material business or owns material Property;
|
(d)
|
each Consolidating Loan Party is duly authorized to execute and deliver the Credit Documents to which it is a party and to perform its obligations thereunder; and all corporate and other steps and proceedings necessary for the due execution and delivery by it of the Credit Documents to which it is a party and the performance of its obligations thereunder have been taken;
|
(e)
|
the Credit Documents to which each Consolidating Loan Party is a party have been duly executed and delivered by it, and constitute legal, valid and binding obligations, enforceable in accordance with their respective terms, subject to the rights of creditors generally and rules of equity of general application;
|
(f)
|
the execution and delivery by each Consolidating Loan Party of the Credit Documents to which it is a party and the performance by it of its obligations thereunder, do not and will not:
|
(i)
|
contravene, violate or result in a breach of its Constating Documents or any shareholders' agreement (or other similar agreement) relating to it;
|
(ii)
|
contravene, violate or result in a breach of any Applicable Laws;
|
(iii)
|
contravene, violate or result in a breach of any material Contract to which it is a party or to which its Property is bound;
|
(iv)
|
contravene, violate or result in a breach of any resolution of its directors, officers or partners or any committee thereof;
|
(v)
|
constitute, with or without notice or lapse of time or both, an event or circumstance entitling any Person to accelerate or demand the payment of any Funded Debt;
|
(vi)
|
result in the creation or imposition of any Encumbrance on any of its Property other than in favour of the Lender; or
|
(vii)
|
result in any requirement on it to grant any Encumbrance or result in any Person becoming entitled to call for any Encumbrance from it other than in favour of the Lender;
|
(g)
|
no consent, authorization, approval or other action by, and no publication, notice to or filing or registration with, any Governmental Authority is required for the due execution and delivery by any Consolidating Loan Party of any of the Credit Documents to which it is a party and the performance by it of its Obligations thereunder or to ensure the validity or enforceability thereof other than filings and registrations necessary to perfect and protect the Encumbrances constituted by the Security;
|
(h)
|
other than as described in Schedule "C" attached hereto, there are no actions, suits, claims or proceedings (including counterclaims or third party proceedings) existing or, threatened against any Consolidating Loan Party or affecting any of their Property before any Governmental Authority which could reasonably be expected to have a Material Adverse Effect;
|
(i)
|
in respect of each material Contract to which each Consolidating Loan Party is a party, and each material Governmental Authority license, franchise, approval or permit of which each Consolidating Loan Party is a holder:
|
(i)
|
it has not defaulted in any material respect in the performance or observance of any of the terms or conditions contained or referenced therein; and
|
(ii)
|
to the knowledge of the Borrowers, no other party thereto is in default thereunder in any material respect, nor has any such party taken any action to terminate the same;
|
(j)
|
each Consolidating Loan Party is in compliance in all material respects with all Applicable Laws and all material Contracts to which it is a party or by which it is bound and which it shall become a party or become bound;
|
(k)
|
no Event of Default and no Default has occurred and is continuing hereunder or under any of the other Credit Documents;
|
(l)
|
each Consolidating Loan Party has in full force and effect such policies of insurance in such amounts issued by such insurers of recognized standing covering its Property, including, business interruption, replacement cost and environmental damage insurance, as are customarily maintained by Persons engaged in the same or similar business in the locations where its Properties are located;
|
(m)
|
attached hereto as Schedule "D" (as such Schedule may be updated with information provided by the Borrowers to the Lender from time to time) is a complete list of all of the Subsidiaries of Century Casino and the other Loan Parties;
|
(n)
|
the legal name and authorized and issued Shares of each Consolidating Loan Party and each Subsidiary of the Consolidating Loan Parties is set forth in Schedule "D" (as such Schedule may be updated with information provided by the Borrowers to the Lender from time to time). All such issued Shares have been validly issued and are outstanding as fully paid (the consideration is set forth in Schedule "D") and non-assessable Shares of the applicable Subsidiary and none of the Shares have been pledged to any Person except to the Lender;
|
(o)
|
the location of each place of business of each Consolidating Loan Party (including the legal description) and each Subsidiary of the Consolidating Loan Parties or, if it has more than one principal place of business, its chief executive office, is set forth in Schedule "D" (as such Schedule may be updated with information provided by the Borrowers to the Lender from time to time);
|
(p)
|
all of the Financial Statements and financial information which has been furnished to the Lender and this Agreement are complete in all material respects and, to the knowledge of the Responsible Officers of the Borrowers, after reasonable inquiry, fairly present its financial position as of the dates referred to therein and have been prepared in accordance with GAAP;
|
(q)
|
no Consolidating Loan Party is in default in any material respect under any of the Permitted Encumbrances relating to it;
|
(r)
|
the Business and Property of each Consolidating Loan Party are being operated in substantial compliance with Applicable Laws intended to protect the environment (including, without limitation, laws respecting the disposal or emission of Hazardous Materials), to the best of the knowledge of the Responsible Officers of the Borrowers after reasonable inquiry, there are no material breaches thereof and no enforcement actions in respect thereof are threatened or pending, which, in any such case, could reasonably be expected to have a Material Adverse Effect;
|
(s)
|
each Consolidating Loan Party has good and marketable title to its Properties, free and clear of any Encumbrance and adverse claims, other than Permitted Encumbrances;
|
(t)
|
each Consolidating Loan Party has duly filed on a timely basis all tax returns required to be filed by it, and it has paid all Taxes and remittances which are due and payable by it, and has paid all assessments and reassessments, and all other taxes, governmental charges, governmental royalties, penalties, interest and fines claimed against it (except where it is contesting the payment of same in good faith, and it has established to the satisfaction of the Lender a sufficient reserve or, if requested by the Lender (acting reasonably) deposited with a court of competent jurisdiction or assessing authority (or with such other Person as is acceptable to the Lender) sufficient funds or a surety bond, for the total amount claimed, where the application of such reserve, funds or bond would result in the discharge of such claim and the contestation thereof postpones the rights of the applicable Governmental Authority to enforce its collection remedies in respect thereof); all employee source deductions (including income taxes, Employment Insurance and Canada Pension Plan), sales taxes (including federal, provincial and harmonized), payroll taxes and workers compensation payments are currently paid and up to date; each Consolidating Loan Party and each Subsidiary has made adequate provision for, and all required installment payments have been made in respect of, Taxes and remittances payable for the current period for which returns are not yet required to be filed; there are no agreements, waivers or other arrangements providing for an extension of time with respect to the filing of any tax return or the payment of any Taxes or remittances described above; there are no actions or proceedings being taken by Canada Customs and Revenue Agency or any other Governmental Authority to enforce the payment of any Taxes or remittances described above and it has no knowledge of any such actions or proceedings being contemplated by such authorities; and
|
(u)
|
all Funded Debt of each Consolidating Loan Party has been fully disclosed to the Lender.
|
9.2
|
Survival of Representations and Warranties
|
10.1
|
Positive Covenants
|
(a)
|
duly and punctually pay the Obligations due and payable by it at the times and places and in the manner required by the terms thereof;
|
(b)
|
promptly provide the Lender with all information reasonably requested by the Lender from time to time concerning its financial condition, the Business and Property and at all reasonable times and from time to time upon reasonable notice, permit representatives of the Lender to inspect any of the Property of the Consolidating Loan Parties, and to examine and take extracts from the financial books, accounts and records of the Consolidating Loan Parties, including but not limited to accounts and records stored in computer data banks and computer software systems, and to discuss the financial condition of the Consolidating Loan Parties with its senior officers and (in the presence of such of its representatives as it may designate) its auditors, the reasonable expense of all of which shall be paid by the Borrowers, provided that the exercise of the rights of the Lender under this section is not more frequent than is reasonably necessary;
|
(c)
|
maintain insurance on all its Property with financially sound and reputable insurance companies or associations including all-risk property insurance, commercial general liability insurance, product liability insurance and business interruption insurance (with the Lender shown as first mortgagee and loss payee), in amounts and against risks that are determined to be appropriate by the Borrowers acting prudently, furnish to the Lender, on written request, but in any event annually, satisfactory evidence of the insurance carried and notify the Lender of any claims it made under the foregoing insurance policies in excess of $500,000;
|
(d)
|
maintain and preserve its existence, organization and status in each jurisdiction of organization and in each other jurisdiction in which it carries on a business or owns Property and make all corporate, partnership and other filings and registrations necessary in connection therewith;
|
(e)
|
continue to carry on the Business and maintain all of its Property in good repair and working condition and carry on and continuously conduct its Business in an efficient, diligent and businesslike manner and in accordance with standard industry practices;
|
(f)
|
comply with Applicable Laws and obtain and maintain in good standing all Permits necessary for the ownership of its Property and to the conduct of its Business in each jurisdiction where it carries on business or owns material Property, including without limitation, the Permits required by AGLC from time to time and those issued or granted by other Governmental Authorities;
|
(g)
|
duly file on a timely basis all tax returns required to be filed by it, and duly and punctually pay all Taxes and other governmental charges levied or assessed against it or its Property;
|
(h)
|
(i)
|
cause each Subsidiary that becomes a Material Subsidiary, to execute and deliver to the Lender, within 10 Business Days of becoming a Material Subsidiary, the Material Subsidiary Security together with such certificates and opinions of legal counsel to such Material Subsidiary as the Lender may reasonably request;
|
(j)
|
ensure that the Security granted by it to the Lender remains legal, valid, binding and enforceable, in accordance with its terms (subject to Applicable Laws affecting the rights of creditors generally and rules of equity of general application);
|
(k)
|
cooperate with the Lender to permit the Lender to forthwith register, file and record the Security (or notices, financing statements or other registrations in respect thereof) in all proper offices where such registration, filing or recording may be reasonably necessary or advantageous to perfect or protect the security interests constituted by the Security and maintain all such registrations in full force and effect so that the Obligations are secured in priority to all other indebtedness, liabilities or obligations of the Consolidating Loan Parties, except for indebtedness, liabilities, and obligations, secured by Permitted Encumbrances and which are entitled to priority in accordance with Applicable Law;
|
(l)
|
use the Lender exclusively to provide all Cash Management services required by the Consolidating Loan Parties, excluding the automated teller or cash machines located within the Calgary Casino and the Edmonton Casino;
|
(m)
|
provide to the Lender all such further and additional mortgages, charges and security interests that the Lender may reasonably require to effectively mortgage, charge and subject to a security interest all of the present and future Property of the Consolidating Loan Parties;
|
(n)
|
promptly notify the Lender of any Event of Default or any Default of which it becomes aware;
|
(o)
|
promptly notify the Lender of any material adverse change in or the occurrence of a default under any Contract entered into by it;
|
(p)
|
promptly notify the Lender on becoming aware of the occurrence of any litigation, arbitration or other proceeding against or affecting any Loan Party which could reasonably be expected to have a Material Adverse Effect and from time to time provide the Lender with all reasonable information requested by the Lender concerning the status thereof;
|
(q)
|
promptly notify the Lender upon (i) learning of the existence of Hazardous Materials located on, above or below the surface of any land which it controls or contained in the soil or water constituting such land (except those Hazardous Materials which exist or are being stored, used or otherwise handled in substantial compliance with applicable Requirements of Law), and (ii) the occurrence of any release, spill, leak, emission, discharge, leaching, dumping or disposal of Hazardous Materials that has occurred on or from such land which could reasonably be expected to result in costs, expenses or liabilities in excess of $250,000 in any calendar year; and
|
(r)
|
provide the Lender with such other documents, opinions, consents, acknowledgments and agreements as are reasonably necessary to implement this Agreement and the Security from time to time.
|
10.2
|
Reporting Requirements
|
(a)
|
within forty-five (45) days of the end of each Fiscal Quarter (including the end of the fourth Fiscal Quarter), cause to be prepared and delivered to the Lender, interim unaudited consolidated and unconsolidated Financial Statements of the Consolidating Loan Parties, as at the end of such Fiscal Quarter; including year to date results and management discussion and analysis of results, including commentary on variances to amounts contained in each Borrower's operating budget and Capital Expenditure Budget;
|
(b)
|
within sixty (60) days of the end of each Fiscal Quarter, cause to be prepared and delivered to the Lender, interim internally prepared unaudited Financial Statements of Century Casino, as at the end of such Fiscal Quarter; including year to date results and management discussion and analysis of results, including commentary on variances to amounts contained in Century Casino's operating budget and Capital Expenditure Budget;
|
(c)
|
within one hundred and twenty (120) days after the end of each Fiscal Year, cause to be prepared and delivered to the Lender: (i) the annual audited consolidated Financial Statements of Century Casino,
(ii) the annual consolidated Financial Statements of the Consolidating Loan Parties describing in detail the operation of the Edmonton Casino and Calgary Casino which shall be audited by an accounting firm acceptable to the Lender, acting reasonably, and shall be prepared in accordance with GAAP, together with an unqualified audit opinion of such accounting firm; and; (iii) unaudited unconsolidated internally prepared Financial Statements of each Consolidating Loan Party;
|
(d)
|
concurrently with the delivery of its Financial Statements referred to in (a), (b) and (c) above, provide the Lender with Compliance Certificates, signed by the Chief Executive Officer, the Chief Financial Officer, General Manager, Finance Manager or Controller of each Borrower and Century Casino, as applicable, or such other officer of the Borrowers and Century Casino, as applicable and as is acceptable to the Lender, acting reasonably. The Borrowers' Compliance Certificate shall include a detailed calculation of the Borrowers' calculations of the Financial Covenants as at the end of such Fiscal Quarter;
|
(e)
|
at least thirty (30) days before the end of each Fiscal Year, provide the Lender with the following (in such detail and to contain such information as the Lender may reasonably request): (i) an operating budget for the next succeeding Fiscal Year; and (ii) a Capital Expenditure Budget for the next succeeding Fiscal Year, with all of the foregoing to be prepared in accordance with GAAP;
|
(f)
|
promptly provide the Lender with such other information as it may reasonably request respecting the Consolidating Loan Parties; and
|
(g)
|
promptly provide the Lender with notice of any change (financial or otherwise) in the Business, affairs, operations, assets, liabilities (contingent or otherwise) or capital of any of the Consolidating Loan Parties that has or could reasonably be expected to have a Material Adverse Effect.
|
10.3
|
Negative Covenants
|
(a)
|
change the nature of the Business and operations of, or conduct any businesses or operations which are materially different from those conducted by the Consolidating Loan Parties on the date hereof (including ceasing to operate the Calgary Casino and Edmonton Casino) or operate its business in a manner that could reasonably be expected to have a Material Adverse Effect;
|
(b)
|
consolidate, amalgamate or merge with any other Person, enter into any corporate reorganization or other transaction intended to effect a consolidation, amalgamation or merger or liquidate, wind-up or dissolve itself, or permit any liquidation, winding-up or dissolution; provided however, that a Consolidating Loan Party may amalgamate with another Consolidating Loan Party, provided the Lender consents to such amalgamation (such consent not to be unreasonably withheld or delayed) provided (i) no Default or Event of Default has occurred that is continuing and no Default or Event of Default would exist after any such amalgamation, and (ii) the Lender is provided with all such acknowledgements, opinions and other documents confirming, among other things, the continued enforceability of this Agreement and the other Credit Documents, as applicable;
|
(c)
|
do or permit anything to adversely affect the ranking or validity of the Security except by incurring a Permitted Encumbrance;
|
(d)
|
change its name, without providing the Lender with prior written notice thereof and promptly taking other steps, if any, as the Lender may, in its discretion reasonably request to permit the Lender to maintain the perfection of the Security with respect to the change in name;
|
(e)
|
permit the chief executive office of any Consolidating Loan Party to be located in any jurisdiction except the State of Colorado or the Province of Alberta, without providing the Lender with prior written notice thereof and promptly taking other steps, if any, as the Lender may, in its discretion, reasonably request to permit the Lender to maintain the perfection of the Security with respect to the change in location;
|
(f)
|
create, incur, assume or permit any Funded Debt to remain outstanding, other than:
|
(i)
|
the Obligations under this Agreement; and
|
(ii)
|
Funded Debt secured by Permitted Encumbrances;
|
(g)
|
provide any Guarantee to any Person, except in respect of the Obligations under this Agreement;
|
(h)
|
permit at any time Purchase Money Obligations of the Consolidating Loan Parties to exceed $500,000 in the aggregate;
|
(i)
|
permit any Consolidating Loan Party to make any Distribution unless in each case, no Default or Event of Default shall have occurred and be continuing or would result, or could reasonably be expected to result after the making or payment of any such Distribution;
|
(j)
|
permit any Consolidating Loan Party to make any Investment, other than Permitted Investments, without the prior written consent of the Lender, which consent shall not be unreasonably withheld;
|
(k)
|
permit any Consolidating Loan Party to create, incur, assume or permit to exist any Encumbrance upon any of the Property of the any Consolidating Loan Party, except Permitted Encumbrances;
|
(l)
|
the Borrowers shall not and shall not permit any other Consolidating Loan Party to affect or agree to affect an Asset Disposition if the Net Proceeds thereof would exceed $200,000 per annum without the prior written consent of the Lender.
|
(m)
|
permit any Consolidating Loan Party to incur any Capital Expenditures, unless such Capital Expenditures are not more than $100,000 in excess of those set out in the Capital Expenditure Budget provided to and approved by the Lender pursuant to Section
10.2(e)
;
|
(n)
|
permit any Consolidating Loan Party to enter into any contracts or material transactions with any non arms-length Person, unless such contract or transaction is on terms and conditions not more onerous to such Consolidating Loan Party than if such contract or transaction was completed at fair market value with an arm's length third party;
|
(o)
|
permit the issuance, sale or transfer of any of the Shares of any Consolidating Loan Party or any other securities, warrants or convertible instruments of any Consolidating Loan Party which give rise to a right to receive any Shares in their capital without the prior written consent of the Lender unless such issuance, sale or transfer is to another Consolidating Loan Party and such Shares are pledged to the Lender with the Certificates evidencing such Shares delivered to the Lender with such endorsements or powers of attorney as the Lender may reasonably request;
|
(p)
|
initiate or participate in the Hostile Acquisition of any Person or any attempt to complete a Hostile Acquisition of any Person;
|
(q)
|
change the capital structure or engage in any capital reorganization of any Consolidating Loan Party;
|
(r)
|
enter into or otherwise become a party to or obligated under any Currency Hedge Agreement, Interest Rate Hedge Agreement or other similar agreement ordinarily designed for the purpose of hedging currency risk or interest rate risk, unless such Currency Hedge Agreement, Interest Rate Hedge Agreement or other agreement is entered into by a Borrower or another Consolidating Loan Party in the ordinary course of business and for the purpose of managing currency risk, exchange rate risk, or interest rate risk of such Borrower or such other Consolidating Loan Party;
|
(s)
|
permit any of the tangible personal Property of the Consolidating Loan Parties to be located in any jurisdiction outside of Canada or outside of any jurisdiction in Canada in which the Lender has not registered or perfected the Encumbrances constituted by the Security, without providing the Lender with at least 60 days prior written notice of the applicable Consolidating Loan Party's intention to locate such personal Property in any such other jurisdiction in Canada. As of the date hereof, the Security has only been registered in the Province of Alberta and the State of Colorado
;
and
|
(t)
|
provide any negative covenant to any future subordinated lender of Funded Debt, that is in addition to, or more onerous or restrictive than the provisions of this Agreement, unless such negative covenant is also provided to the Lender.
|
10.4
|
Financial Covenants
|
(a)
|
ensure that the Senior Funded Debt to EBITDA Ratio is not at any time greater than 3.00:1.00;
|
(b)
|
ensure that the Fixed Charge Coverage Ratio is not at any time less than 1.20:1.00;
|
(c)
|
ensure that the Shareholders' Equity is not at any time less than $20,000,000; and
|
(d)
|
ensure that Capital Expenditures in any Fiscal Year do not exceed $4,000,000 in aggregate, unless the Lender provides its prior written consent, not to be unreasonably withheld.
|
11.1
|
Events of Default
|
(a)
|
A Borrower fails to pay: (i) any amount of principal when due and payable hereunder, (ii) interest within three (3) days after the same becomes due and payable hereunder; and (iii) any other fees or other amounts (other than principal and interest) within ten (10) days after the same becomes due and payable hereunder; or
|
(b)
|
any Consolidating Loan Party defaults under any of the negative covenants in Section
10.3
and such default is not cured or waived by the Lender within ten (10) days from the date of default; or
|
(c)
|
any Consolidating Loan Party defaults under any of the Financial Covenants in Section
10.4
hereof, provided that in the event of a default under the Financial Covenants set out in Section
10.4(a)
and/or
10.4(b)
at any time, the Borrowers shall have thirty (30) days after a Borrower becomes aware of such default (which shall not in any event, be later than thirty (30) days from the date the Senior Funded Debt to EBITDA ratio and/or Senior Fixed Charge Coverage ratio, as applicable, fails to meet the minimum requirements of Section
10.4(a)
and/or
10.4(b)
, as applicable (the "
Ratio Default
")), to cure the Ratio Default (the "
30 Day Cure Period
") by obtaining an equity contribution and/or unsecured shareholder loans that are postponed and subordinated to the payment and performance of the Obligations pursuant to a postponement and subordination agreement in form and substance satisfactory to the Lender, acting reasonably. Such equity contribution and/or unsecured shareholder loans must be received by the Borrowers within the 30 Day Cure Period. The Borrowers shall provide the Lender satisfactory evidence showing that the Ratio Default has been cured including providing evidence of receipt of the equity contribution and/or such unsecured shareholder loans by the Borrowers (as applicable); or
|
(d)
|
any Consolidating Loan Party does not observe or perform any covenant or obligation contained herein or in any other Credit Document to which it is a party in any material respect (not otherwise specifically dealt with in this Section
11.1
) and such breach or omission shall continue unremedied for more than thirty (30) days after the earlier of a Responsible Officer of a Borrower having knowledge of the breach or omission or a Borrower receiving written notice from the Lender of such breach or omission; or
|
(e)
|
any Consolidating Loan Party makes any representation or warranty under any of the Credit Documents to which it is a party which is incorrect or incomplete in any material respect when made or deemed to be made and (i) the incorrect or incomplete representation or warranty is not capable of being remedied by the Consolidating Loan Party, or (ii) if the matter is capable of being remedied by the Consolidating Loan Party, the same shall be continued unremedied for more than ten (10) days after the earlier of a Responsible Officer of a Borrower having actual knowledge of the incorrect or misleading representation or warranty, or a Borrower receiving written notice from the Lender of such incorrect or misleading representation or warranty; or
|
(f)
|
any Consolidating Loan Party defaults in the performance of any of its obligations in respect of Funded Debt (which is not payable on demand) in excess of $1,000,000, and written notice has been provided to a Borrower or such other Consolidating Loan Party of the intention of the holder of such Funded Debt to exercise the remedies available to such holder in respect of such Funded Debt, or in the case of Funded Debt payable on demand, a demand for the payment from a Borrower or other Consolidating Loan Party, as applicable, for Funded Debt in excess of $1,000,000
has been made; or
|
(g)
|
any Loan Party shall:
|
(i)
|
become insolvent, or generally not pay its debts or meet its liabilities as the same become due, or suspend or threaten to suspend the conduct of its business, or admit in writing its inability to pay its debts generally, or declare any general moratorium on payment of its indebtedness or interest thereon, or propose a compromise or arrangement between it and any of its creditors;
|
(ii)
|
make an assignment of its Property for the general benefit of its creditors whether or not under the
Bankruptcy and Insolvency Act
(Canada), or make a proposal (or file a notice of its intention to do so) whether or not under such Act;
|
(iii)
|
institute any proceeding seeking to adjudicate it an insolvent, or seeking liquidation, dissolution, winding-up, reorganization, administration, compromise, arrangement, adjustment, protection, moratorium, relief, stay of proceedings of creditors generally (or any class of creditors), or composition of it or its debts under any other statute, rule or regulation relating to bankruptcy, winding-up, insolvency, reorganization, administration, plans of arrangement, relief or protection of debtors (including the
Bankruptcy and Insolvency Act
(Canada), the
Companies' Creditors Arrangement Act
(Canada) and any applicable
Business Corporations Act
or
Company Act
);
|
(iv)
|
apply for the appointment of, or the taking of possession by, a receiver, interim receiver, administrative receiver, receiver/manager, custodian, administrator, trustee, liquidator or other similar official for it or any material part of its Property; or
|
(v)
|
(h)
|
if any petition shall be filed, application made or other proceeding instituted by a third party against or in respect of any Loan Party:
|
(i)
|
seeking to adjudicate it an insolvent, or seeking a declaration that an act of bankruptcy has occurred;
|
(ii)
|
seeking a receiving order against it including under the
Bankruptcy and Insolvency Act
(Canada);
|
(iii)
|
seeking liquidation, dissolution, winding-up, reorganization, administration, compromise, arrangement, adjustment, protection, moratorium, relief, stay of proceedings of creditors generally (or any class of creditors), or composition of it or its debts under any statute, rule or regulation relating to bankruptcy, winding-up, insolvency, reorganization, administration, plans of arrangement, relief or protection of debtors (including the
Bankruptcy and Insolvency Act
(Canada), the
Companies' Creditors Arrangement Act
(Canada) and any applicable
Business Corporations Act
or
Company Act
); or
|
(iv)
|
seeking the entry of an order for relief or the appointment of a receiver, interim receiver, administrative receiver, receiver/manager, custodian, administrator, trustee, liquidator or other similar official for it or any material part of its Property,
|
(i)
|
if Property of any Loan Party having a fair market value in excess of $1,000,000
shall be seized (including by way of execution, attachment, garnishment or distraint) or any Encumbrance thereon shall be enforced, or such Property shall become subject to any receivership, or any charging order or equitable execution of a court, or any writ of enforcement, writ of execution or distress warrant with respect to obligations in excess of $1,000,000 shall exist in respect of any Loan Party or such Property, or any receiver, sheriff, civil enforcement agent or other Person shall become lawfully entitled to seize or distrain upon any such Property pursuant to the
Workers' Compensation Act
(Alberta), the
Civil Enforcement Act
(Alberta), the
Personal Property Security Act
(Alberta) or any other Applicable Laws whereunder similar remedies are provided, and in any case such seizure, execution, attachment, garnishment, distraint, receivership, charging order or equitable execution, or other seizure or right, shall continue in effect and not released or discharged for more than ten (10) days; or
|
(j)
|
if one or more judgments for the payment of money in the aggregate in excess of $1,000,000 from time to time, and not substantially covered by insurance, shall be rendered by a court of competent jurisdiction against any Loan Party and such party shall not have (i) provided for its discharge in accordance with its terms within ten (10) days from the date of entry thereof, or (ii) procured a stay of execution thereof within five (5) Business Days from the date of entry thereof and within such period, or such longer period during which execution of such judgment shall have been stayed, appealed such judgment and caused the execution thereof to be stayed during such appeal; or
|
(k)
|
if any material provision of any Credit Document shall at any time cease to be in full force and effect, be declared to be void or voidable or shall be repudiated, or the validity or enforceability thereof shall at any time be contested by any Loan Party, or any Loan Party shall deny that it has any or any further liability or obligation thereunder; or
|
(l)
|
there is, in the opinion of the Lender, acting reasonably, an event or circumstance with respect to a Loan Party which would reasonably be expected to have a Material Adverse Effect; or
|
(m)
|
(i)
|
a Person or group of Persons, acting jointly or in concert, acquires, directly or indirectly (other than by way of security for a bona fide debt), Shares of such Loan Party to which are attached more than 30% of the votes that may be cast to elect the directors of such Loan Party; or
|
(ii)
|
a Person or group of Persons, acting jointly or in concert, acquires, directly or indirectly (other than by way of security for a bona fide debt), a sufficient number of Shares of such Loan Party that the votes attached to those shares are sufficient, if exercised, to elect a majority of the directors (or other equivalent Person with respect to any Loan Party that is not a Corporation) of such Loan Party; or
|
(n)
|
if any Permits required to operate the Calgary Casino and Edmonton Casino under Applicable Laws is revoked, cancelled, withdrawn, are not renewed or ceases to be in force under Applicable Laws for whatever reason.
|
11.2
|
Demand Under the Credits and Termination of Rights
|
11.3
|
Payment of Bankers' Acceptances and Letters of Credit
|
11.4
|
Remedies
|
11.5
|
Saving
|
11.6
|
Perform Obligations
|
11.7
|
Third Parties
|
11.8
|
Remedies Cumulative
|
11.9
|
Set-Off or Compensation
|
12.1
|
Successors and Assigns
|
13.1
|
Headings and Table of Contents
|
13.2
|
Capitalized Terms
|
13.3
|
Severability
|
13.4
|
Number, Gender and other Terms
|
(a)
|
any reference herein to any Person shall be construed to include such Person's successors and permitted assigns;
|
(b)
|
the words "herein", "hereof" and "hereunder", and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof;
|
(c)
|
unless otherwise expressly stated, all references herein to Sections and Schedules shall be construed to refer to Sections of, and Schedules to, this Agreement; and
|
(d)
|
the words "asset" and "property" shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible, real and personal, properties and undertakings, including cash, securities, accounts and contract rights.
|
13.5
|
Amendment, Supplement or Waiver
|
13.6
|
Governing Law
|
13.7
|
This Agreement to Govern
|
13.8
|
Permitted Encumbrances
|
13.9
|
Currency
|
13.10
|
Expenses and Indemnity
|
13.11
|
Manner of Payment and Taxes
|
13.12
|
Increased Costs
|
13.13
|
Interest on Miscellaneous Amounts
|
13.14
|
Address for Notice
|
13.15
|
Promotional Marketing
|
13.16
|
Time of the Essence
|
13.17
|
Further Assurances
|
13.18
|
Term of Agreement
|
13.19
|
Payments on Business Day
|
13.20
|
Interest Act Equivalent
|
13.21
|
Non-Merger
|
13.22
|
Anti-Money Laundering Legislation
|
13.23
|
Joint and Several Liability of the Borrowers
|
13.24
|
Counterparts and Facsimile
|
13.25
|
Entire Agreement
|
TO:
|
Bank of Montreal
|
||
Corporate Finance
|
|||
9
th
Floor, First Canadian Centre
|
|||
350 – 7
th
Avenue S.W.
|
|||
Calgary, Alberta T2P 3N9
|
|||
Attention:
|
Senior Manager
|
1.
|
Reference is made to the credit agreement made as of April 11, 2012 among
Century Resorts Alberta Inc. and Century Casino Calgary Inc.
, as borrowers (collectively, the "
Borrowers
") and Bank of Montreal, as lender (the "
Lender
") as amended, supplemented, restated or replaced from time to time (the "
Credit Agreement
"). All terms and expressions used herein but not otherwise defined, shall have the same meanings herein as are ascribed thereto in the Credit Agreement.
|
2.
|
I, [name], in my capacity as Chief Executive Officer/Chief Financial Officer/Controller of [Century Casino Calgary Inc./Century Resorts Alberta Inc.] and not in any personal capacity, hereby certify that as of the date hereof:
|
(a)
|
the representations and warranties set forth in the Credit Agreement are true and correct on the date hereof;
|
(b)
|
the Consolidating Loan Parties have performed or observed or caused to be performed or observed the covenants set forth in the Credit Agreement to be performed or observed by each other to the date hereof; and
|
(c)
|
there has not occurred any unremedied Default or Event of Default;
|
3.
|
As at [insert March 31, June 30, September 30 or December 31, as applicable], 20____:
|
(a)
|
the Senior Funded Debt to EBITDA Ratio is •:•, and
|
(b)
|
the Fixed Charge Coverage Ratio is •:•, and
|
(c)
|
the Shareholders' Equity of the Borrowers is in the amount of $<>.
|
4.
|
The Consolidated Total Assets of the Subsidiaries of the Loan Parties (other than Century Casino) that are not Material Subsidiaries does not exceed 10% of the Consolidated Total Assets of the Consolidating Loan Parties. Attached hereto as Exhibit B is a detailed calculation of the Consolidated Total Assets of the Subsidiaries that are not Material Subsidiaries and the Consolidated Total Assets of the Consolidating Loan Parties.
|
5.
|
The consolidated total revenue for the most recent four Fiscal Quarters of the Subsidiaries of the Loan Parties (other than Century Casino) that are not Material Subsidiaries does not exceed 10% of the consolidated total revenue of the Consolidating Loan Parties for such four Fiscal Quarters. Attached hereto as Exhibit C is a detailed calculation of the consolidated total revenue of the Subsidiaries of the Loan Parties (other than Century Casino) that are not Material Subsidiaries and the consolidated total revenue of the Consolidating Loan Parties.
|
CENTURY RESORTS ALBERTA INC.
|
||
Name:
|
||
Title:
|
||
[Or, as applicable]
|
||
CENTURY CASINO CALGARY INC.
|
||
Name:
|
||
Title:
|
TO:
|
Bank of Montreal
|
||
Corporate Finance
|
|||
9
th
Floor, First Canadian Centre
|
|||
350 – 7
th
Avenue S.W.
|
|||
Calgary, Alberta T2P 3N9
|
|||
Attention:
|
Senior Manager
|
||
Facsimile:
|
(403) 234-1688
|
1.
|
Reference is made to the credit agreement made as of April 11, 2012 among
Century Resorts Alberta Inc. and Century Casino Calgary Inc.
, as borrowers (collectively, the "
Borrowers
") and Bank of Montreal, as lender (the "
Lender
"), as amended, supplemented, restated or replaced from time to time (the "
Credit Agreement
"). All terms and expressions used herein but not otherwise defined, shall have the same meanings herein as ascribed thereto in the Credit Agreement.
|
2.
|
Pursuant to
[Section 2.1/3.1]
of the Credit Agreement, [Century Resorts Alberta Inc. and/or Century Casino Calgary Inc.] hereby request(s) the following Drawdown under the provisions of
[Credit A/Credit B]
:
|
(a)
|
Drawdown Date/Conversion Date/Rollover Date:
|
(b)
|
Total Amount of Drawdown/Conversion/Rollover:
|
(c)
|
Type of Advance:
|
(d)
|
Maturity Date (if applicable):
|
(e)
|
Account(s) to be credited (if applicable):
|
(f)
|
Special Instructions (if any):
|
3.
|
The representations and warranties set forth in the Credit Agreement are true and correct on the date hereof.
|
4.
|
The Consolidating Loan Parties have performed or observed or caused to be performed or observed the covenants set forth in the Credit Agreement to be performed or observed by them to the date hereof.
|
5.
|
There has not occurred any unremedied Default or Event of Default and after giving effect to the Advance requested hereby, no Default or Event of Default is expected to occur.
|
1.
|
Century Calgary Properties Inc.
|
a.
|
as Plaintiff - there are no material proceedings.
|
b.
|
as Defendant – there are no material proceedings.
|
2.
|
Century Casino Calgary Inc.
|
a.
|
as Plaintiff - there are no material proceedings.
|
b.
|
as Defendant:
|
i.
|
Action No: Q1103 10472 – Century Casino Calgary Inc. vs. Switzer, Stephen Michael, Switzer, Jackie (Statement of Claim - Damages) (October 17, 2011) (insured claim)
|
3.
|
1214741 Alberta Ltd.
|
a.
|
as Plaintiff - there are no material proceedings.
|
b.
|
as Defendant:
|
i.
|
Action No: Q1012 00448 – 1214741 Alberta Ltd. vs. Pickard, Nancy (Statement Claim – Damages) (insured claim)
|
4.
|
Century Resorts Alberta Inc.
|
a.
|
as Plaintiff - there are no material proceedings.
|
b.
|
as Defendant – :
|
i.
|
Action No: Q0603 15497 – Dwayne Kalke v. Century Resorts Alberta Inc. (Orig Notice Civil Miscell)
|
1.
|
Subsidiaries of Century Casinos Inc. are:
|
a.
|
Century Casinos Europe GmbH;
|
b.
|
Century Resorts International Ltd.;
|
c.
|
Century Calgary Properties Inc.;
|
d.
|
Century Casino Calgary Inc.;
|
e.
|
1214741 Alberta Ltd.; and
|
f.
|
Century Resorts Alberta Inc.
|
2.
|
Century Resorts Alberta Inc. does not have any Subsidiaries.
|
3.
|
Century Casino Calgary Inc. does not have any Subsidiaries.
|
1.
|
Century Calgary Properties Inc.
|
a.
|
Issued Shares
|
A.
|
1,000 Class “A” Common Shares – Century Casinos Europe GmbH
|
B.
|
51,488 Class “D” Preferred Shares – Century Casinos Europe GmbH
|
b.
|
Authorized Shares
|
A.
|
The Corporation is authorized to issue an unlimited number of Class “A” Common Shares, an unlimited number of Class “B” Common Shares, an unlimited number of Class “C” Preferred Shares, an unlimited number of Class “D” Preferred Shares and an unlimited number of Class “E” Shares.
|
2.
|
Century Casino Calgary Inc.
|
a.
|
Issued Shares
|
A.
|
51 Class A Shares – Century Casinos Europe GmbH
|
B.
|
49 Class A Shares – Century Casinos Europe GmbH
|
b.
|
Authorized Shares
|
A.
|
The Corporation is authorized to issue an unlimited number of Class A Shares, an unlimited number of Class B Shares, an unlimited number of Class C Shares, an unlimited number of Class D Shares and an unlimited number of Class E Shares.
|
3.
|
1214741 Alberta Ltd.
|
a.
|
Issued Shares
|
A.
|
100 Class “A” Voting Shares - Century Resorts International Ltd.
|
b.
|
Authorized Shares
|
A.
|
The Corporation is authorized to issue an unlimited number of Class “A” Common Voting Shares, an unlimited number of Class “B” Common Voting Shares, an unlimited number of Class “C” Common Non-Voting Shares, an unlimited number of Class “D” Preferred Non-Voting Shares, an unlimited number of Class “E” Preferred Non-Voting Shares and an unlimited number of Class “F” Preferred Voting Shares.
|
4.
|
Century Resorts Alberta Inc.
|
a.
|
Issued Shares
|
A.
|
1,000 Class “A” Voting Shares – Century Resorts International Ltd.
|
b.
|
Authorized Shares
|
A.
|
The Corporation is authorized to issue an unlimited number of Class A Voting Shares and an unlimited number of Class B Non-voting Shares.
|
1.
|
Century Calgary Properties Inc.
|
a.
|
Principal Place of Business: 1010 42
nd
Ave SE, in Calgary, Alberta
|
b.
|
Chief Executive Office: 2860 S. Circle Dr. STE 350, Colorado Springs, CO 80906
|
2.
|
Century Casino Calgary Inc.
|
a.
|
Principal Place of Business: 1010 42
nd
Ave SE, in Calgary, Alberta
|
b.
|
Chief Executive Office: 2860 S. Circle Dr. STE 350, Colorado Springs, CO 80906
|
3.
|
1214741 Alberta Ltd.
|
a.
|
Principal Place of Business: 13103 Fort Road, in Edmonton, Alberta
|
b.
|
Chief Executive Office: 2860 S. Circle Dr. STE 350, Colorado Springs, CO 80906
|
4.
|
Century Resorts Alberta Inc.
|
a.
|
Principal Place of Business: 13103 Fort Road, in Edmonton, Alberta
|
b.
|
Chief Executive Office: 2860 S. Circle Dr. STE 350, Colorado Springs, CO 80906
|
1.
|
The following encumbrances registered against title to the lands described as Plan 8368HA Block 24 (the "Calgary Casino Lands"):
|
(a)
|
Instrument Number 5559HU, being a Utility Right of Way in favour of The City of Calgary with respect to the N. 17 Ft. of E 651.73 Ft. Over Spur Line
|
(b)
|
Instrument Number 771 147 064 being the Calgary International Airport Zoning Regulations
|
(c)
|
Instrument Number 001 350 435 being a Caveat relating to an Encroachment Agreement
|
(d)
|
Instrument Number 071 501 501 being a Restrictive Covenant
|
2.
|
The following encumbrances registered against title to the lands described as Plan 8121HN Block 4, containing two and twenty nine hundredths (2.29) acres more or less excepting the south two hundred and thirty six and twenty seven one hundredths (236.27) feet containing one and four hundredths (1.04) acres more or less (the "Calgary Casino Parking Lot"):
|
(a)
|
Instrument Number 771 147 064 being the Calgary International Airport Zoning Regulations
|
(b)
|
Instrument Number 071 501 501 being a Restrictive Covenant
|
3.
|
The following encumbrances registered against title to the lands described as Plan 8121HN Block 4, the South 236.27 feet, containing 0.421 hectares (1.04 acres) more or less (the "Ancillary Calgary Casino Building Lands"):
|
(a)
|
Instrument Number 771 147 064 being the Calgary International Airport Zoning Regulations
|
(b)
|
Instrument Number 071 501 501 being a Restrictive Covenant
|
4.
|
The following encumbrances registered against title to the lands described as Plan 8368HA Block 26 (the "Calgary Casino Leased Lands"):
|
(a)
|
Instrument Number 771 147 064 being the Calgary International Airport Zoning Regulations
|
(b)
|
Instrument Number 111 273 795 being a Caveat relating to the lease entered into by Century Casino Calgary Inc., as tenant and The City of Calgary, as landlord.
|
(a)
|
Instrument Number 772 070 677, being a Caveat in favour of The City of Edmonton with respect to an agreement between The City of Edmonton and Mix Investments Limited prohibiting the use of the lands for residential purposes
|
(b)
|
Instrument Number 772 209 868 being a Utility Right of Way in favour of The City of Edmonton
|
(c)
|
Instrument Number 062 354 452 being a Utility Right of Way in favour of The ATCO Gas and Pipelines Ltd.
|
(d)
|
Instrument Number 072 434 856 being a Utility Right of Way in favour of The Epcor Distribution & Transmission Inc.
|
(e)
|
Instrument Number 092 125 527, being a Caveat in favour of Century Resorts Alberta Inc. re Lease Interest
|
(f)
|
Instrument Number 112 274 273 being a Utility Right of Way in favour of The City of Edmonton
|
1.
|
Century Casino Calgary Inc.
|
a.
|
Registration No. 11020917234 re Security Agreement registered February 9, 2011; Groupex Systems Canada Inc. is the Secured Party; the Collateral taken are beverage dispensers and installation kits (including 4 large carbonators and 4 cold plates) totaling a value of $10,728.00.
|
2.
|
Century Resorts Alberta Inc.
|
a.
|
Registration No. 06091104999 re Security Agreement registered September 11 2006; GE VFS Canada Limited Partnership is the Secured Party. The Collateral taken are all goods which are security systems and CCTV together with all replacements and substitutions thereof and all parts, accessories, accessions and attachments thereto and all proceeds which are accounts, goods chattel paper, securities, documents of title, instruments, money, intangibles, crops or insurance proceeds (
Reference Lease No. 4448597-001
).
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b.
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Registration No. 06092719191 - See 2(a) above (Registered September 27, 2006 and Reference Lease No. 4448597003).
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c.
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Registration No. 06092720462 – See 2(a) above (Registered September 27, 2006 and Reference Lease No. 4448597002).
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3.
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Frank Sisson’s Silver Dollar Ltd. (predecessor to Century Casino Calgary Inc.)
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a.
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Registration No 08022220889 re Security Agreement registered February 22, 2008. Bank of Montreal is the Secured Party. The Collateral taken is “LF269 – short term investment certificate No. 0012-9569-046 proceeds – all present and after acquired property”.
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4.
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Searched by Registration No – 7100930242 re Security Agreement registered October 9, 2007. Access Cash General Partnership is the Secured Party and Century Casino is the Debtor. The Collateral taken are ten ATMs and Cash within, a vault and the cash within, and two currency counters with the descriptions as follows:
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Century Casino front entrance #1, Terminal ID EMS81167, Model RL5115, Serial # LRL5115062627854, ATM and Cash within;
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Century Casino front entrance #2, Terminal ID EMS81168, Model RL5115, Serial # LRL5115062627956, ATM and Cash within;
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Century Casino customer services, Terminal ID EMS81169, Model RL5115, Serial # LRL5115062627922, ATM and Cash within;
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Century Casino cage #1, Terminal ID EMS81170, Model RL5115, Serial # LRL5115062627939, ATM and Cash within;
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Century Casino cage #2, Terminal ID EMS81171, Model RL5115, Serial # LRL5115062627905, ATM and Cash within;
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Century Casino slots #1, Terminal ID EMS81172, Model RL5115, Serial # LRL5115062627871, ATM and Cash within;
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Century Casino slots #2, Terminal ID EMS81173, Model RL5115, Serial # LRL5115062627837, ATM and Cash within;
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Century Casino washroom, Terminal ID EMS81174, Model RL5115, Serial # LRL5115062627888, ATM and Cash within;
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Century Casino back entrance, Terminal ID EMS81175, Model RL5115, Serial # LRL5115062627820, ATM and Cash within;
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Century Casino high roller room, Terminal ID EMS81166, Model RL5114, Serial # LRL5114071653961, ATM and Cash within;
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Vault, serial number inside door – 120397XX0-009, vault and cash within; and
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Two (2) currency counters NMB200
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