SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
(Mark One)
(X) QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended April 3, 1997
-------------
OR
( ) TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from to
----------- -----------
Commission file number 1-5440
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AZTAR CORPORATION
- ---------------------------------------------------------------
(Exact name of registrant as specified in its charter)
Delaware 86-0636534
- ----------------------------------- -------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2390 East Camelback Road, Suite 400, Phoenix, Arizona 85016
- --------------------------------------------------------------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (602) 381-4100
----------------
Indicate by check mark whether the registrant (1) has filed all
reports required to be filed by Section 13 or 15(d) of the Securities
Exchange Act of 1934 during the preceding 12 months (or for such
shorter period that the registrant was required to file such reports),
and (2) has been subject to such filing requirements for the past 90
days. Yes X No
----- -----
At May 1, 1997, the registrant had outstanding 45,133,601 shares of
its common stock, $.01 par value.
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AZTAR CORPORATION AND SUBSIDIARIES
PART I - FINANCIAL INFORMATION
Item 1. Financial Statements
Page
----
Consolidated Balance Sheets at April 3, 1997 and
January 2, 1997 3
Consolidated Statements of Operations for the quarters
ended April 3, 1997 and March 28, 1996 5
Consolidated Statements of Cash Flows for the quarters
ended April 3, 1997 and March 28, 1996 6
Consolidated Statements of Shareholders' Equity for the
quarters ended April 3, 1997 and March 28, 1996 8
Notes to Consolidated Financial Statements 9
2
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<TABLE>
AZTAR CORPORATION AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS (unaudited)
---------------------------------------
(in thousands, except share data)
<CAPTION>
April 3, January 2,
1997 1997
------------ ------------
<S> <C> <C>
Assets
Current assets:
Cash and cash equivalents $ 31,783 $ 44,131
Accounts receivable, net 37,696 41,723
Refundable income taxes -- 1,201
Inventories 6,818 7,508
Prepaid expenses 9,643 9,772
Deferred income taxes, net 8,980 8,985
---------- ----------
Total current assets 94,920 113,320
Investments in and advances to
unconsolidated partnership 10,105 10,360
Other investments 27,145 26,697
Property and equipment:
Buildings, riverboats and equipment, net 816,990 827,103
Land 93,753 95,747
Construction in progress 6,656 3,820
Leased under capital leases, net 885 389
---------- ----------
918,284 927,059
Deferred income taxes, net 2,472 2,565
Other deferred charges and assets 39,414 39,581
---------- ----------
$1,092,340 $1,119,582
========== ==========
</TABLE>
[FN]
The accompanying notes are an integral part of these financial statements.
3
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<TABLE>
AZTAR CORPORATION AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS (unaudited) (continued)
---------------------------------------
(in thousands, except share data)
<CAPTION>
April 3, January 2,
1997 1997
------------- ------------
<S> <C> <C>
Liabilities and Shareholders' Equity
Current liabilities:
Accounts payable and accruals $ 49,177 $ 66,048
Accrued payroll and employee benefits 23,018 22,571
Accrued interest payable 1,766 13,288
Income taxes payable 1,111 1,112
Current portion of long-term debt 21,881 12,960
Current portion of other long-term
liabilities 3,181 4,259
---------- ----------
Total current liabilities 100,134 120,238
Long-term debt 518,613 527,006
Other long-term liabilities 25,619 27,042
Contingencies and commitments
Series B ESOP convertible preferred stock
(redemption value $6,237 and $7,226) 6,175 6,022
Shareholders' equity:
Common stock, $.01 par value (45,007,684
and 45,000,287 shares outstanding) 489 489
Paid-in capital 411,158 411,158
Retained earnings 47,349 44,846
Less: Treasury stock (17,124) (17,102)
Unearned compensation (73) (117)
---------- ----------
Total shareholders' equity 441,799 439,274
---------- ----------
$1,092,340 $1,119,582
========== ==========
</TABLE>
[FN]
The accompanying notes are an integral part of these financial statements.
4
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<TABLE>
AZTAR CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS (unaudited)
For the periods ended April 3, 1997 and March 28, 1996
---------------------------------------------------------------
(in thousands, except per share data)
<CAPTION>
First Quarter
-------------------
1997 1996
--------- ---------
<S> <C> <C>
Revenues
Casino $157,148 $150,300
Rooms 12,566 11,125
Food and beverage 12,732 12,188
Other 7,310 6,593
-------- --------
189,756 180,206
Costs and expenses
Casino 74,485 72,996
Rooms 7,326 6,428
Food and beverage 13,206 12,603
Other 5,751 6,245
Marketing 19,748 18,284
General and administrative 17,387 17,206
Utilities 3,454 3,039
Repairs and maintenance 5,794 5,716
Provision for doubtful accounts 2,154 1,371
Property taxes and insurance 6,120 5,525
Rent 4,536 3,270
Depreciation and amortization 12,741 11,910
-------- --------
172,702 164,593
-------- --------
Operating income 17,054 15,613
Interest income 510 589
Interest expense (15,801) (13,642)
-------- --------
Income before other items and income taxes 1,763 2,560
Equity in unconsolidated partnership's loss (1,166) (1,189)
-------- --------
Income before income taxes 597 1,371
Income taxes 2,080 (602)
-------- --------
Net income $ 2,677 $ 769
======== ========
Net income per common and common equivalent share $ .05 $ .02
Net income per common share assuming full dilution $ .05 $ .02
Weighted average common shares applicable to:
Net income per common and common equivalent share 45,770 39,235
Net income per common share assuming full dilution 46,699 40,255
</TABLE>
[FN]
The accompanying notes are an integral part of these financial statements.
5
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<TABLE>
AZTAR CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS (unaudited)
For the periods ended April 3, 1997 and March 28, 1996
---------------------------------------------------------------
(in thousands)
<CAPTION>
First Quarter
---------------------
1997 1996
--------- ---------
<S> <C> <C>
Cash Flows from Operating Activities
Net income $ 2,677 $ 769
Adjustments to reconcile net income
to net cash provided by operating activities:
Depreciation and amortization 13,399 12,556
Provision for losses on accounts receivable 2,154 1,371
Loss on reinvestment obligation 217 94
Rent expense (324) (227)
Distribution in excess of equity in income
of partnership 255 278
Deferred income taxes 98 281
Change in assets and liabilities:
(Increase) decrease in accounts receivable 2,226 (5,167)
(Increase) decrease in refundable income taxes 1,201 124
(Increase) decrease in inventories and
prepaid expenses (120) 182
Increase (decrease) in accounts payable,
accrued expenses and income taxes payable (28,126) 3,079
Other items, net 118 509
--------- ---------
Net cash provided by (used in) operating activities (6,225) 13,849
--------- ---------
Cash Flows from Investing Activities
Payments received on notes receivable 634 556
Purchases of property and equipment (3,936) (26,215)
Additions to other long-term assets (1,818) (1,819)
--------- ---------
Net cash provided by (used in) investing activities (5,120) (27,478)
--------- ---------
Cash Flows from Financing Activities
Proceeds from issuance of long-term debt 55,600 58,600
Proceeds from issuance of common stock -- 295
Principal payments on long-term debt (55,701) (35,335)
Principal payments on other long-term liabilities (326) (3,675)
Debt issuance costs (100) --
Preferred stock dividend (352) (368)
Redemption of preferred stock (124) (72)
--------- ---------
Net cash provided by (used in) financing activities (1,003) 19,445
--------- ---------
Net increase (decrease) in cash and cash equivalents (12,348) 5,816
Cash and cash equivalents at beginning of period 44,131 26,527
--------- ---------
Cash and cash equivalents at end of period $ 31,783 $ 32,343
========= =========
</TABLE>
[FN]
The accompanying notes are an integral part of these financial statements.
6
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<TABLE>
AZTAR CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS (unaudited)(continued)
For the periods ended April 3, 1997 and March 28, 1996
---------------------------------------------------------------
(in thousands)
<CAPTION>
First Quarter
-------------------
1997 1996
-------- --------
<S> <C> <C>
Supplemental Cash Flow Disclosures
Summary of non-cash investing and financing activities:
Reduction in land and other long-term liabilities $ 2,000 $ --
Capital lease obligations incurred for property
and equipment 552 --
Tax benefit from stock options and preferred stock
dividend 21 167
Issuance of restricted stock -- 26
Forfeiture of restricted stock 22 13
Cash flow during the period for the following:
Interest paid, net of amount capitalized $ 26,686 $ 3,433
Income taxes paid (refunded) (3,398) 1,031
</TABLE>
[FN]
The accompanying notes are an integral part of these financial statements.
7
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<TABLE>
AZTAR CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF SHAREHOLDERS' EQUITY (unaudited)
For the periods ended April 3, 1997 and March 28, 1996
---------------------------------------------------------------
(in thousands, except number of shares)
<CAPTION>
First Quarter
---------------------
1997 1996
---------- ---------
<S> <C> <C>
Common stock:
Beginning balance $ 489 $ 422
Stock options exercised for 82,607 shares in 1996 -- 1
-------- --------
Ending balance 489 423
-------- --------
Paid-in capital:
Beginning balance 411,158 352,221
Stock options exercised -- 294
Tax benefit from stock options exercised -- 139
Restricted stock -- 26
-------- --------
Ending balance 411,158 352,680
-------- --------
Retained earnings:
Beginning balance 44,846 24,922
Preferred stock dividend, net of income tax
benefit of $21 and $28 (174) (160)
Net income 2,677 769
-------- --------
Ending balance 47,349 25,531
-------- --------
Treasury stock:
Beginning balance (17,102) (17,027)
Forfeiture of 3,334 and 2,000 shares
of restricted stock (22) (13)
-------- --------
Ending balance (17,124) (17,040)
-------- --------
Unearned compensation:
Beginning balance (117) (879)
Restricted stock -- (26)
Amortization 22 104
Forfeiture of restricted stock 22 13
-------- --------
Ending balance (73) (788)
-------- --------
$441,799 $360,806
======== ========
</TABLE>
[FN]
The accompanying notes are an integral part of these financial statements.
8
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AZTAR CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (unaudited)
Note 1: General
- ----------------
The consolidated financial statements reflect all adjustments, such adjust-
ments being normal recurring accruals, which are necessary, in the opinion of
management, for the fair presentation of the results of the interim periods;
interim results, however, may not be indicative of the results for the full
year.
The notes to the interim consolidated financial statements are presented to
enhance the understanding of the financial statements and do not necessarily
represent complete disclosures required by generally accepted accounting
principles. There was no interest capitalized during the quarter ended
1997. The interest that was capitalized during the quarter ended 1996 was
$1,543,000. Capitalized costs related to various development projects,
included in other deferred charges and assets, were $270,000 at April 3,
1997. There were no capitalized costs related to development projects at
January 2, 1997. For additional information regarding significant accounting
policies, long-term debt, lease obligations, and other matters applicable to
the Company, reference should be made to the Company's Annual Report to
Shareholders for the year ended January 2, 1997.
Certain reclassifications have been made in the 1996 Consolidated Statement
of Operations in order to be comparable with the 1997 presentation.
Note 2: Investments in and Advances to Unconsolidated Partnership
- -----------------------------------------------------------------
<TABLE>
Following are summarized operating results for the Company's unconsolidated
partnership, accounted for using the equity method for the periods ended
April 3, 1997 and March 28, 1996 (in thousands):
<CAPTION>
First Quarter
---------------------
1997 1996
-------- --------
<S> <C> <C>
Revenues $ 4,154 $ 4,155
Operating expenses (684) (684)
-------- --------
Operating income 3,470 3,471
Interest expense (1,374) (1,420)
-------- --------
Net income $ 2,096 $ 2,051
======== ========
</TABLE>
9
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AZTAR CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (unaudited) (continued)
Note 3: Long-term Debt
- -----------------------
<TABLE>
At April 3, 1997 and January 2, 1997, long-term debt included (in thousands):
<CAPTION>
1997 1996
--------- ---------
<S> <C> <C>
11% Senior Subordinated Notes Due 2002 $200,000 $200,000
13 3/4% Senior Subordinated Notes Due 2004 177,941 177,904
Reducing revolving credit note ("Credit
Facility"); floating rate, 8.13% at
April 3, 1997; matures December 31, 1999 160,000 160,000
Other notes payable; 7% to 14.6%; maturities
to 2002 1,514 1,521
Obligations under capital leases 1,039 541
--------- ---------
540,494 539,966
Less current portion (21,881) (12,960)
--------- ---------
$518,613 $527,006
========= =========
</TABLE>
On March 13, 1997, the Company entered into a supplemental reducing revolving
loan agreement maturing on March 15, 1999 (the "Supplemental Credit
Facility"). The Company obtained bank commitments under the Supplemental
Credit Facility for $20,000,000. The Supplemental Credit Facility has terms
and imposes restrictions on the Company similar to the Credit Facility. The
availability of funds under the Supplemental Credit Facility will reduce
quarterly beginning on June 30, 1998 by $4,000,000. As of April 3, 1997,
there were no borrowings under the Supplemental Credit Facility.
Note 4: Other Long-term Liabilities
- -------------------------------------
<TABLE>
At April 3, 1997 and January 2, 1997, other long-term liabilities consisted
of (in thousands):
<CAPTION>
1997 1996
-------- --------
<S> <C> <C>
Accrued rent expense $ 11,987 $ 12,311
Obligation to City of Evansville and
other civic and community organizations 5,988 8,300
Deferred compensation and retirement plans 10,330 10,181
Las Vegas Boulevard beautification assessment 495 509
-------- --------
28,800 31,301
Less current portion (3,181) (4,259)
-------- --------
$ 25,619 $ 27,042
======== ========
</TABLE>
10
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AZTAR CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (unaudited) (continued)
Note 5: Income Taxes
- ----------------------
The Company is responsible, with certain exceptions, for the taxes of Ramada
Inc. ("Ramada") through December 20, 1989. The Internal Revenue Service
("IRS") has completed its examinations of the income tax returns for the
years 1986 through 1991 and has settled for all but one issue. A non-
recurring tax benefit of $2,323,000 in the first quarter of 1997 is primarily
related to cash received as a result of the settlement agreement between the
IRS and Ramada. The IRS is examining the income tax returns for the years
1992 and 1993. Management believes that adequate provision for income taxes
and interest has been made in the financial statements.
Note 6: Net Income Per Share
- -----------------------------
Net income per common and common equivalent share is computed based on the
weighted average number of common shares outstanding after consideration of
the dilutive effect of stock options. Net income per common share, assuming
full dilution, is computed based on the weighted average number of common
shares outstanding after consideration of the dilutive effect of stock
options and the assumed conversion of the preferred stock at the stated rate.
Net income for both computations is adjusted for dividends and losses on
redemption on the preferred stock.
Note 7: Contingencies and Commitments
- --------------------------------------
The Company agreed to indemnify Ramada against all monetary judgments in
lawsuits pending against Ramada and its subsidiaries as of the conclusion of
the restructuring of Ramada (the "Restructuring") on December 20, 1989, as
well as all related attorneys' fees and expenses not paid at that time,
except for any judgments, fees or expenses accrued on the hotel business
balance sheet and except for any unaccrued and unreserved aggregate amount up
to $5,000,000 of judgments, fees or expenses related exclusively to the hotel
business. Aztar is entitled to the benefit of any crossclaims or
counterclaims related to such lawsuits and of any insurance proceeds
received. In addition, the Company agreed to indemnify Ramada for various
lease guarantees made by Ramada relating to the restaurant business conducted
through its Marie Callender Pie Shops, Inc. subsidiary. In connection with
these matters, the Company has an accrued liability of $3,925,000 and
$3,931,000 at April 3, 1997 and January 2, 1997, respectively.
The Company is a party to various other claims, legal actions and complaints
arising in the ordinary course of business or asserted by way of defense or
counterclaim in actions filed by the Company. Management believes that its
defenses are substantial in each of these matters and that the Company's
legal posture can be successfully defended without material adverse effect on
its consolidated financial statements.
The Tropicana Las Vegas lease agreement contains a provision that requires
the Company to maintain an additional security deposit with the lessor of
approximately $21,064,000 in cash or a letter of credit if the Tropicana Las
Vegas operation fails to meet certain financial tests. The Company has a 50%
partnership interest in the lessor.
11
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AZTAR CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (unaudited) (continued)
Note 7: Contingencies and Commitments (continued)
- --------------------------------------------------
The Company has severance agreements with certain of its senior executives.
Severance benefits range from a lump-sum cash payment equal to twice the sum
of the executive's annual base salary plus twice the average of the
executive's annual bonuses awarded in the preceding three years plus payment
of the value in his outstanding stock options and vesting and distribution of
any restricted stock to a lump-sum cash payment equal to his base salary. In
certain agreements, the termination must be as a result of a change in
control of the Company. Based upon current salary levels and stock options,
the aggregate commitment under the severance agreements should all these
executives be terminated was approximately $10,900,000 at April 3, 1997.
12
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AZTAR CORPORATION AND SUBSIDIARIES
Item 2. Management's Discussion and Analysis
Financial Condition
On March 13, 1997, the Company entered into a supplemental reducing revolving
loan agreement maturing on March 15, 1999 (the "Supplemental Credit
Facility"). The Company obtained bank commitments under the Supplemental
Credit Facility for $20 million. The Supplemental Credit Facility has terms
and imposes restrictions on the Company similar to the Credit Facility. The
availability of funds under the Supplemental Credit Facility will reduce
quarterly beginning on June 30, 1998 by $4 million. As of April 3, 1997,
there were no borrowings under the Supplemental Credit Facility.
During the first quarter of 1997, the Company borrowed $55.6 million and
repaid $55.6 million under the Credit Facility, leaving an outstanding
balance of $160 million at April 3, 1997. The Company's debt to operating
cash flow ratio as calculated under the Credit Facility was 4.54 to 1 at
April 3, 1997 and the maximum allowable ratio was 5.50 to 1. The Company's
senior debt to operating cash flow ratio was 1.71 to 1 at April 3, 1997 and
the maximum allowable ratio was 2.25 to 1.
Results of Operations
Quarter Ended April 3, 1997 Compared to Quarter Ended March 28, 1996
The Company's consolidated revenues for the 1997 first quarter were $189.8
million, a 5% increase over $180.2 million for the 1996 first quarter.
Consolidated rooms revenue was $1.4 million higher in the 1997 versus 1996
first quarter primarily as a result of the added rooms capacity at Tropicana
Atlantic City due to the opening in April 1996 of a new 604-room hotel tower
and the opening of a 250-room hotel at Casino Aztar Evansville in December
1996. Consolidated operating income for the first quarter of 1997 was $17.1
million, a 9% increase over $15.6 million for the first quarter of 1996.
Improved operating results at Tropicana Atlantic City and Casino Aztar
Evansville were more than sufficient to offset lower operating results at
Tropicana Las Vegas and Ramada Express. The Tropicana Atlantic City results
for the 1996 first quarter were reduced as a result of severe winter weather,
disruption from the construction of the new hotel tower and the enhancements
to the casino and other facilities, and increased costs associated with
promotional programs implemented to increase market share in anticipation of
the opening of the new facilities.
Consolidated interest expense increased by $2.2 million or 16% in the 1997
versus 1996 first quarter primarily as a result of discontinuing the
capitalization of interest as the Company's major construction projects were
completed in phases in 1996.
For a discussion of income taxes, refer to "Note 5: Income Taxes".
13
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AZTAR CORPORATION AND SUBSIDIARIES
TROPICANA ATLANTIC CITY Total revenues at Tropicana Atlantic City were $92.4
million in the 1997 first quarter, up 10% from $83.8 million in the 1996
first quarter. Casino revenue was 8% higher in the 1997 versus 1996 first
quarter, primarily reflecting a 47% increase in games revenue that was
partially offset by a 4% decrease in slot revenue. Slot revenue decreased
due to a reduction in coin redemptions. Rooms revenue was $1.1 million or
101% higher in the 1997 first quarter due to an increase in occupied rooms
primarily attributable to the opening in April 1996 of the new hotel tower
and to an increase in the percentage of rooms occupied on a non-complimentary
basis.
Tropicana Atlantic City had operating income of $8.4 million in the 1997
first quarter, a 31% improvement over $6.4 million in the 1996 first quarter.
The Tropicana Atlantic City results for the 1996 first quarter were reduced
as a result of the factors noted above. Rooms costs were 83% higher in the
1997 versus 1996 first quarter primarily due to increased direct costs
associated with the new hotel tower. Operating income is after rent and
depreciation and amortization expenses. Rent expense increased to $1.4
million in the 1997 first quarter from $0.4 million in the 1996 first quarter
as a result of an increased number of operating leases associated with the
new facilities. Depreciation and amortization was $5.5 million in the first
quarter of 1997 compared to $4.9 million in the first quarter of 1996.
TROPICANA LAS VEGAS At Tropicana Las Vegas, total revenues were $40.8
million in the 1997 first quarter, a slight decrease from $41.6 million in
the 1996 first quarter. Casino revenues were 3% lower in the 1997 versus
1996 first quarter as a 10% decrease in slot revenue more than offset a 5%
increase in games revenue. Operating income was $0.6 million in the first
quarter of 1997, down 68% from $1.7 million in the first quarter of 1996.
The provision for doubtful accounts was $0.6 million higher in the 1997
versus 1996 first quarter due to an increase in the allowance for potential
uncollectible markers associated with the property's ongoing emphasis on
premium table game business. Operating income is after rent and depreciation
and amortization expenses. Rent expense was $2.3 million in the 1997 first
quarter compared to $2.2 million in the 1996 first quarter. Depreciation and
amortization was $2.2 million in the 1997 first quarter compared to $2.4
million in the 1996 first quarter.
RAMADA EXPRESS At Ramada Express, total revenues were $22.0 million in the
first quarter of 1997, down slightly from $22.1 million in the first quarter
of last year. Operating income was $4.3 million in the 1997 first quarter,
an 8% decrease from $4.7 million in last year's first quarter. Operating
income is after rent and depreciation and amortization expenses. Rent
expense was $0.1 million in both periods. Depreciation and amortization was
$1.8 million in both periods.
14
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<PAGE>
AZTAR CORPORATION AND SUBSIDIARIES
CASINO AZTAR EVANSVILLE Total revenues at Casino Aztar Evansville were $28.4
million in the 1997 first quarter, a 10% increase over $25.9 million in the
1996 first quarter. Casino Aztar Evansville's hotel, which opened in
December 1996, contributed $0.6 million to consolidated rooms revenue.
Operating income was $7.4 million in the first quarter of 1997, a 9%
improvement over $6.8 million in last year's first quarter. Operating
results included $0.2 million of rooms costs associated with the hotel.
Operating income is after rent and depreciation and amortization expenses.
Rent expense was $0.6 million in the 1997 first quarter compared to $0.5
million in the 1996 first quarter. Depreciation and amortization was $2.3
million in the 1997 first quarter compared to $2.0 million in the 1996 first
quarter.
CASINO AZTAR CARUTHERSVILLE Total revenues at Casino Aztar Caruthersville
were $6.2 million in the first quarter of 1997 compared to $6.8 million in
the first quarter of 1996. Casino Aztar Caruthersville had an operating loss
of $0.7 million in both periods. Operating income is after depreciation and
amortization of $0.9 million in the 1997 first quarter compared to $0.8
million in the 1996 first quarter.
Other Matters
In February 1997, the Financial Accounting Standards Board ("FASB") adopted
Statement of Financial Accounting Standards No. 128, Earnings per Share
("SFAS 128"), which supersedes and simplifies the standards for computing
earnings per share ("EPS") previously found in Accounting Principles Board
Opinion No. 15, Earnings per Share ("APB 15"). SFAS 128 replaces net income
per common and common equivalent share with a presentation of net income per
common share. Net income per common share excludes dilution and is computed
by dividing income available to common shareholders by the weighted average
number of common shares outstanding for the period. Net income per common
share assuming full dilution is computed similarly under SFAS 128 as it was
under APB 15, and reflects the potential dilution that could occur if
securities or other contracts to issue common stock were exercised or
converted into common stock or resulted in the issuance of common stock that
then shared in the earnings of the entity. SFAS 128 is effective for
financial statements issued for periods ending after December 15, 1997,
including interim periods; earlier application is not permitted. The Company
will provide the required EPS disclosures in its financial statements
commencing with the fiscal year ended January 1, 1998. SFAS 128 requires
restatement of all prior period EPS data presented. Pursuant to the
provisions of SFAS 128, the Company's net income per common share was $.06
for the 1997 first quarter and $.02 for the 1996 first quarter. The
application of the provisions of SFAS 128 would have no effect on the amounts
reported in the 1997 and 1996 first quarters for net income per common share
assuming full dilution.
15
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AZTAR CORPORATION AND SUBSIDIARIES
PART - II OTHER INFORMATION
Item 1. Legal Proceedings
(a) In connection with Case No. CV-S-94-1126-DAE(RJJ)-BASE FILE (the
"Poulos/Ahearn Case"), Case No. CV-S-95-00923-DWH(RJJ)(the "Schreier
Case") and Case No. CV-S-95-936 LDG(RLH)(the "Cruise Ship Case"), as
reported under Part 1, Item 3 of the Company's Form 10-K for the year
ended January 2, 1997, the defendants (including the Company) moved on
March 21, 1997, to dismiss the consolidated complaint filed on February
14, 1997, for failure to state a claim and on other grounds.
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits
Page No.
----------
10. Supplemental Reducing Revolving Loan Agreement, dated
as of March 13, 1997, among Aztar Corporation, Adamar
of New Jersey, Inc., Ramada Express, Inc. and the
banks therein named; and Bank of America National
Trust and Savings Association, as Managing Agent. *
11. Statement Regarding Computation of Per Share Earnings. *
27. Financial Data Schedule. *
* See exhibit index at page E-1 of this report for a
listing of exhibits filed with this report.
All other exhibits have been omitted because the
information is either not required or not applicable.
(b) The Company did not file any report on Form 8-K during
the quarter ended April 3, 1997.
16
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AZTAR CORPORATION AND SUBSIDIARIES
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on
its behalf by the undersigned thereunto duly authorized.
AZTAR CORPORATION
------------------------------
(Registrant)
Date May 12, 1997 By ROBERT M. HADDOCK
-------------------------- ---------------------------
Robert M. Haddock
Executive Vice President and
Chief Financial Officer
17
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AZTAR CORPORATION AND SUBSIDIARIES
Exhibit Index
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10. Supplemental Reducing Revolving Loan Agreement, dated as
of March 13, 1997, among Aztar Corporation, Adamar of New
Jersey, Inc., Ramada Express, Inc. and the banks therein
named; and Bank of America National Trust and Savings
Association, as Managing Agent.
11. Statement Regarding Computation of Per Share Earnings.
27. Financial Data Schedule.
E-1
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Exhibit 10
SUPPLEMENTAL REDUCING REVOLVING LOAN AGREEMENT
Dated as of March 13, 1997
among
AZTAR CORPORATION
ADAMAR OF NEW JERSEY, INC.
RAMADA EXPRESS, INC.
THE BANKS HEREIN NAMED
and
BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION, as Managing Agent
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TABLE OF CONTENTS
Page
Article 1. DEFINITIONS AND ACCOUNTING TERMS . . . . . . . . . . . 2
1.1 Defined Terms. . . . . . . . . . . . . . . . . . . . . . 2
1.2 Other Definitional Provisions. . . . . . . . . . . . . 6
1.3 Incorporation by Reference . . . . . . . . . . . . . . 7
1.4 Exhibits and Schedules . . . . . . . . . . . . . . . . 7
1.5 Relationship to Primary Loan
Agreement. . . . . . . . . . . . . . . . . . . . . . . . 7
Article 2. LOANS AND LETTERS OF CREDIT. . . . . . . . . . . . . . 8
2.1 Loans-General. . . . . . . . . . . . . . . . . . . . . 8
2.2 Intentionally Omitted. . . . . . . . . . . . . . . . . 9
2.3 Intentionally Omitted. . . . . . . . . . . . . . . . . 9
2.4 Intentionally Omitted. . . . . . . . . . . . . . . . . 9
2.5 Voluntary Reduction of Commitment. . . . . . . . . . . 9
2.6 Automatic Reduction of Commitment. . . . . . . . . . . 9
2.7 Optional Termination of Commitment . . . . . . . . . . 9
2.8 Intentionally Omitted. . . . . . . . . . . . . . . . .10
2.9 Managing Agent's Right to Assume
Funds Available for Advances . . . . . . . . . . . . .10
2.10 Intentionally Omitted . . . . . . . . . . . . . . . .10
2.11 Intentionally Omitted . . . . . . . . . . . . . . . .10
2.12 Collateral and Guaranty . . . . . . . . . . . . . . .10
2.13 Senior Indebtedness . . . . . . . . . . . . . . . . .10
Article 3. PAYMENTS AND FEES. . . . . . . . . . . . . . . . . . .11
3.1 Principal and Interest . . . . . . . . . . . . . . . .11
3.2 Intentionally Omitted. . . . . . . . . . . . . . . . .12
3.3 Upfront Fees . . . . . . . . . . . . . . . . . . . . .12
3.4 Intentionally Omitted. . . . . . . . . . . . . . . . .12
3.5 Commitment Fees. . . . . . . . . . . . . . . . . . . .12
3.6 Other Payment Provisions . . . . . . . . . . . . . . .12
Article 4. REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . .13
Article 5. AFFIRMATIVE COVENANTS (OTHER THAN INFORMATION
AND REPORTING REQUIREMENTS). . . . . . . . . . . . . .14
5.16 Endorsement to Title Insurance
Policies . . . . . . . . . . . . . . . . . . . . . . .14
Article 6. NEGATIVE COVENANTS . . . . . . . . . . . . . . . . . .15
Article 7. INFORMATION AND REPORTING
REQUIREMENTS . . . . . . . . . . . . . . . . . . . . .16
Article 8. CONDITIONS . . . . . . . . . . . . . . . . . . . . . .17
8.1 Initial Advances, Etc. . . . . . . . . . . . . . . . .17
8.2 Any Increasing Advance . . . . . . . . . . . . . . . .19
8.3 Any Advance. . . . . . . . . . . . . . . . . . . . . .20
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Article 9. EVENTS OF DEFAULT AND REMEDIES
UPON EVENT OF DEFAULT . . . . . . . . . . . . . . . .21
9.1 Events of Default. . . . . . . . . . . . . . . . . . .21
9.2 Remedies Upon Event of Default . . . . . . . . . . . .21
Article 10. THE MANAGING AGENT . . . . . . . . . . . . . . . . . .22
Article 11. MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . .23
11.1 Incorporation of Certain Terms. . . . . . . . . . . .23
11.2 Amendments to Primary Loan
Agreement . . . . . . . . . . . . . . . . . . . . . .23
Exhibits
A - Intercreditor Agreement. . . . . . . . . . . . . . . .26
B - Note . . . . . . . . . . . . . . . . . . . . . . . . .42
C - Omnibus Documents Amendment. . . . . . . . . . . . . .45
D - Opinion of Counsel . . . . . . . . . . . . . . . . . .72
E - Request for Loan . . . . . . . . . . . . . . . . . . .84
Schedules
1.1 Bank Commitments N/A
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SUPPLEMENTAL REDUCING REVOLVING LOAN AGREEMENT
Dated as of March 13, 1997
This SUPPLEMENTAL REDUCING REVOLVING LOAN AGREEMENT
("Agreement") is entered into by and among Aztar
Corporation, a Delaware corporation ("Parent"), Adamar of
New Jersey, Inc., a New Jersey corporation ("ANJI"), Ramada
Express, Inc., a Nevada corporation ("REI"), each bank whose
name is set forth on the signature pages of this Agreement
and each lender which may hereafter become a party to this
Agreement pursuant to Section 11.8 (collectively, the
"Banks" and individually, a "Bank"), and Bank of America
National Trust and Savings Association, as Managing Agent.
R E C I T A L S
A. Parent, ANJI, REI (collectively, the
"Borrowers"), the banks whose names are set forth on the
signature pages thereof (collectively, the "Primary Loan
Agreement Bank Group"), Societe Generale and Midlantic Bank,
N.A., as Lead Managers, Bank One Arizona, N A and Credit
Lyonnais, as Co-Agents, Bankers Trust Company, as
Co-Managing Agent, and Bank of America National Trust and
Savings Association, as Managing Agent are parties to that
certain Reducing Revolving Loan Agreement dated as of
October 4, 1994 (as amended through the date hereof, the
"Primary Loan Agreement"), pursuant to which the Primary
Loan Agreement Bank Group provided the Borrowers with
certain secured reducing revolving loan and letter of credit
facilities.
B. The Borrowers have requested that one or more
of the banks that are part of the Primary Loan Agreement
Bank Group provide the Borrowers with an additional,
supplemental $20,000,000 secured reducing revolving credit
facility and the Banks and the Managing Agent are willing to
provide the Borrowers with, and administer, such additional
facility on the terms and conditions hereinafter set forth.
In consideration of the mutual covenants and
agreements herein contained, the parties hereto covenant and
agree as follows:
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Article 1.
DEFINITIONS AND ACCOUNTING TERMS
1.1 Defined Terms. As used in this Agreement,
the following terms shall have the meanings set forth below:
"Advance" means any advance made or to be made by
any Bank to Borrowers as provided in Article 2.
"Agreement" means this Supplemental Reducing
Revolving Loan Agreement, either as originally executed
or as it may from time to time be supplemented,
modified, amended, restated or extended.
"Applicable Alternate Base Rate Margin" means, for
each Pricing Period, the interest rate margin set forth
below (expressed in basis points per annum) opposite
the Applicable Pricing Level for that Pricing Period:
Applicable
Pricing Level Margin
I 0
II 37.50
III 75.00
IV 125.00
V 150.00
"Applicable Pricing Level" means, for each Pricing
Period, the pricing level set forth below opposite the
Annualized Funded Debt Ratio as of the last day of the
Fiscal Quarter most recently ended prior to the
commencement of that Pricing Period:
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Annualized Funded
Pricing Level Debt Ratio
I Less than 2.00 to 1.00
II Equal to or greater than
2.00 to 1.00
but less than 3.00 to
1.00
III Equal to or greater than
3.00 to 1.00
but less than 4.00 to
1.00
IV Equal to or greater than
4.00 to 1.00 but less
than 4.75 to 1.00
V Equal to or greater than
4.75 to 1.00;
provided that in the event that Borrowers do not
deliver a Pricing Certificate with respect to any
Pricing Period prior to the commencement of such
Pricing Period, then until (but only until) such
Pricing Certificate is delivered the Applicable Pricing
Level for that Pricing Period shall be Pricing Level V.
"Bank" means each bank whose name is set forth in
the signature pages of this Agreement and each lender
which may hereafter become a party to this Agreement
pursuant to Section 11.8.
"Closing Date" means the time and Banking Day on
which the conditions set forth in Section 8.1 are
satisfied or waived. The Managing Agent shall notify
Borrowers and the Banks of the date that is the Closing
Date.
"Collateral" means all of the collateral covered
by the Collateral Documents, as amended by the Omnibus
Documents Amendment, other than: (i) any portion of
the capital stock of either REI or HRN; (ii) any gaming
equipment located in the State of Missouri of any of
the Borrowers or of any Subsidiary of any of the
Borrowers; and (iii) any portion of the capital stock
of Aztar Missouri Gaming Corporation, a Missouri
corporation.
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"Commitment" means, subject to Section 2.5,
$20,000,000. As of the Closing Date, the respective
Pro Rata Shares of the Banks with respect to the
Commitment are set forth in Schedule 1.1. From and
after the Closing Date, the Pro Rata Shares set forth
in Schedule 1.1 may be subject to assignment pursuant
to Section 11.8, with the portion of any Pro Rata Share
so assigned being reflected in the applicable
Commitment Assignment and Acceptance. It is
anticipated that, following the Closing Date, the
Commitment may be increased to $25,000,000 by the
addition of one or more additional banks hereunder
(subject to (i) the requirements of Section 6.9(j) of
the Primary Loan Agreement, (ii) if necessary,
appropriate amendments to this Agreement and the other
Loan Documents, and (iii) appropriate endorsements to
the title policies issued by the Title Company), or
otherwise, but nothing contained herein or in the Loan
Documents shall be construed as a commitment by any
Bank to make any such increase to the Commitment or to
arrange for any such increase.
"Default" means any event that, with the giving of
any applicable notice or passage of time specified in
Section 9.1, or both, would be an Event of Default.
"Event of Default" shall have the meaning provided
in Section 9.1.
"Intercreditor Agreement" means the intercreditor
and collateral agency agreement to be entered into by
and among (i) the Managing Agent under the Primary Loan
Agreement, on behalf of the Banks under the Primary
Loan Agreement and (ii) the Managing Agent under this
Agreement, on behalf of the Banks under this Agreement
in the form of Exhibit A, either as originally executed
or as it may from time to time be supplemented,
modified, amended, extended or supplanted.
"Loan" means the aggregate of the Advances made at
any one time by the Banks pursuant to Article 2.
"Loan Documents" means, collectively, this
Agreement, the Notes, the Subsidiary Guaranty, the
Omnibus Documents Amendment, the Collateral Documents,
any Request for Loan, any Compliance Certificate, any
Pricing Certificate and any other agreements of any
type or nature hereafter executed and delivered by
Borrowers or any of the Restricted Subsidiaries to the
Managing Agent or to any Bank in any way relating to or
in furtherance of this Agreement, in each case either
as originally executed or as the same may from time to
time be supplemented, modified, amended, restated,
extended or supplanted.
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"Managing Agent" means Bank of America National
Trust and Savings Association, when acting in its
capacity as the Managing Agent under any of the Loan
Documents, or any successor Managing Agent.
"Managing Agent's Office" means the Managing
Agent's address as set forth on the signature pages of
this Agreement, or such other address as the Managing
Agent hereafter may designate by written notice to
Borrowers and the Banks.
"Maturity Date" means March 15, 1999.
"Note" means the promissory note made by Borrowers
to a Bank evidencing the Advances under that Bank's
Pro Rata Share of the Commitment, substantially in the
form of Exhibit B, either as originally executed or as
the same may from time to time be supplemented,
modified, amended, renewed, extended or supplanted.
"Obligations" means all present and future obliga-
tions of every kind or nature of Borrowers or any
Significant Subsidiary at any time and from time to
time owed to the Managing Agent or the Banks or any one
or more of them, under any one or more of the Loan
Documents, whether due or to become due, matured or
unmatured, liquidated or unliquidated, or contingent or
noncontingent, including obligations of performance as
well as obligations of payment, and including interest
that accrues after the commencement of any proceeding
under any Debtor Relief Law by or against Borrowers or
any Subsidiary or Affiliate of Borrowers.
"Omnibus Documents Amendment" means the omnibus
documents amendment and collateral assignment to be
executed and delivered by Borrowers and the Significant
Subsidiaries, in the form of Exhibit C, either as
ordinally executed or as it may from time to time be
supplemented, modified, amended, extended or
supplanted.
"Opinion of Counsel" means the favorable written
legal opinion of Latham & Watkins, special counsel to
Borrowers and the Restricted Subsidiaries,
substantially in the form of Exhibit D, together with
copies of all factual certificates and legal opinions
upon which such counsel has relied.
"Pricing Period" means (a) the period commencing
on the Closing Date and ending on May 15, 1997, (b) the
period commencing on each May 16 and ending on the next
following August 15, (c) the period commencing on each
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August 16 and ending on the next following November 15,
(d) the period commencing on each November 16 and
ending on the next following February 15 and (e) the
period commencing on each February 16 and ending on the
next following May 15.
"Primary Loan Agreement" has the meaning set forth
in the recitals to this Agreement and includes any
amendments thereto which are the subject of a
corresponding amendment hereto made pursuant to Section
11.2.
"Primary Loan Agreement Bank Group" has the
meaning set forth in the recitals to this Agreement.
"Pro Rata Share" means, with respect to each Bank,
the percentage of the Commitment set forth opposite the
name of that Bank on Schedule 1.1, as such percentage
may be increased or decreased pursuant to a Commitment
Assignment and Acceptance executed in accordance with
Section 11.8.
"Reduction Amount" means, with respect to each
Reduction Date, the amount of $4,000,000 (subject to
the last sentence of Section 2.5).
"Reduction Date" means June 30, 1998 and each
Quarterly Payment Date thereafter.
"Request for Loan" means a written request for a
Loan substantially in the form of Exhibit E, signed by
a Responsible Official of any of Borrowers, on behalf
of Borrowers, and properly completed to provide all
information required to be included therein.
"Requisite Banks" means (a) as of any date of
determination if the Commitment is then in effect,
Banks having in the aggregate 65% or more of the
Commitment then in effect and (b) as of any date of
determination if the Commitment has then been
terminated and there is then any Indebtedness evidenced
by the Notes, Banks holding Notes evidencing in the
aggregate 65% or more of the aggregate Indebtedness
then evidenced by the Notes.
Any and all defined terms used in this Agreement without
definition in this Section 1.1 shall have the respective
meanings assigned thereto in the Primary Loan Agreement.
1.2 Other Definitional Provisions. Sections 1.2,
1.3, 1.4, 1.6 and 1.7 of the Primary Loan Agreement are
incorporated herein and made a part hereof by this
reference.
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1.3 Incorporation by Reference. Any provision of
the Primary Loan Agreement that is incorporated by reference
into this Agreement shall be deemed to be amended in such
minor respects as are necessary to make such provision
appropriate in the context of this Agreement rather than the
context of the Primary Loan Agreement. Any defined terms
used in such a provision which is defined in Section 1.1 of
this Agreement shall be incorporated herein using the
defined term in this Agreement, and not the defined term in
the Primary Loan Agreement.
1.4 Exhibits and Schedules. All Exhibits and
Schedules to this Agreement, either as originally existing
or as the same may from time to time be supplemented,
modified or amended, are incorporated herein by this
reference. A matter disclosed on any Schedule shall be
deemed disclosed on all Schedules.
1.5 Relationship to Primary Loan Agreement.
Each of the Banks holds a share of the Commitments under the
Primary Loan Agreement; however the Banks do not constitute
all of the banks that are members of the Primary Bank Group.
Pursuant to (a) Section 3.1(ii)(c), Borrowers must prepay
the principal Indebtedness evidenced by the Notes from time
to time in an amount equal to Borrowers' borrowing
availability under the Primary Loan Agreement, (b) Section
8.2, Borrowers may not obtain an increasing Advance
hereunder while they have borrowing availability under the
Primary Loan Agreement, (c) the Collateral Documents, as
amended by the Omnibus Documents Amendment, and the
Intercreditor Agreement, the Banks and the Banks that are
parties to the Primary Loan Agreement share a pari passu
senior Lien (subject to Permitted Encumbrances) on certain
assets and properties of Borrowers and their Subsidiaries,
and (d) Section 9.1(c), an Event of Default as defined under
the Primary Loan Agreement is an Event of Default under this
Agreement. This Agreement and the Primary Loan Agreement,
however, provide for separate credit facilities, and the
foregoing are the only interrelationships between such
agreements.
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Article 2.
LOANS AND LETTERS OF CREDIT
2.1 Loans-General.
(a) Subject to the terms and conditions set
forth in this Agreement, at any time and from time to
time from the Closing Date through the Maturity Date,
each Bank shall, pro rata according to that Bank's Pro
Rata Share of the then applicable Commitment, make
Advances to Borrowers under the Commitment in such
amounts as Borrowers may request that do not result in
the aggregate principal amount outstanding under the
Notes exceeding the then applicable Commitment.
Subject to the limitations set forth herein, Borrowers
may borrow, repay and reborrow under the Commitment
without premium or penalty.
(b) Subject to the next sentence, each Loan
shall be made pursuant to a Request for Loan which
shall specify the requested (i) date of such Loan and
(ii) amount of such Loan. Unless the Managing Agent
has notified, in its sole and absolute discretion,
Borrowers to the contrary, a Loan may be requested by
telephone by a Responsible Official of Borrowers, in
which case Borrowers shall confirm such request by
promptly delivering a Request for Loan in person or by
telecopier conforming to the preceding sentence to the
Managing Agent. The Managing Agent shall incur no
liability whatsoever hereunder in acting upon any
telephonic request for Loan purportedly made by a
Responsible Official of Borrowers, and Borrowers hereby
agree to indemnify the Managing Agent from any loss,
cost, expense or liability as a result of so acting.
(c) Promptly following receipt of a Request
for Loan, the Managing Agent shall notify each Bank by
telephone or telecopier (and if by telephone, promptly
confirmed by telecopier) of the date of the Loan and
that Bank's Pro Rata Share of the Loan. Not later than
11:00 a.m., California time, on the date specified for
any Loan (which must be a Banking Day), each Bank shall
make its Pro Rata Share of the Loan in immediately
available funds available to the Managing Agent at the
Managing Agent's Office. Upon satisfaction or waiver
of the applicable conditions set forth in Article 8,
all Advances shall be credited on that date in
immediately available funds to the Designated Deposit
Account.
(d) Unless the Requisite Banks otherwise
consent, each Loan shall be not less than $2,000,000.
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(e) The Advances made by each Bank shall be
evidenced by that Bank's Note.
(f) A Request for Loan shall be irrevocable
upon the Managing Agent's first notification thereof.
(g) Each request by Borrowers for a Loan
shall be made pursuant to a Request for Loan (or
telephonic or other request for loan referred to in the
second sentence of Section 2.1(b), if applicable)
received by the Managing Agent, at the Managing Agent's
Office, not later than 9:00 a.m. California time, on
the date (which must be a Banking Day) of the requested
Loan.
2.2 Intentionally Omitted.
2.3 Intentionally Omitted.
2.4 Intentionally Omitted.
2.5 Voluntary Reduction of Commitment. Borrowers
shall have the right, at any time and from time to time,
without penalty or charge, upon at least three (3) Banking
Days' prior written notice by a Responsible Official of
Borrowers to the Managing Agent, voluntarily to reduce,
permanently and irrevocably, in aggregate principal amounts
in an integral multiple of $1,000,000 but not less than
$2,000,000, or to terminate, all or a portion of the then
undisbursed portion of the Commitment. The Managing Agent
shall promptly notify the Banks of any reduction or
termination of the Commitment under this Section. Any
voluntary reduction of the Commitment under this Section
shall be applied to reduce the Reduction Amount for the next
following Reduction Date (to the extent of such reduction)
and thereafter to subsequent Reduction Dates (to the extent
not previously applied) in the order of their occurrence.
2.6 Automatic Reduction of Commitment. Subject
to the last sentence of Section 2.5, on each Reduction Date,
the Commitment shall automatically be reduced by the
applicable Reduction Amount.
2.7 Optional Termination of Commitment.
Following the occurrence of a Change in Control, the
Requisite Banks may in their sole and absolute discretion
elect, during the thirty (30) day period immediately
subsequent to the later of (a) such occurrence or (b) the
earlier of (i) receipt of Borrowers' written notice to the
Managing Agent of such occurrence or (ii) if no such notice
has been received by the Managing Agent, the date upon which
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the Managing Agent has actual knowledge thereof, to
terminate the Commitment, in which case the Commitment shall
be terminated effective on the date which is thirty (30)
days subsequent to written notice from the Managing Agent to
Borrowers thereof.
2.8 Intentionally Omitted.
2.9 Managing Agent's Right to Assume Funds
Available for Advances. Section 2.9 of the Primary Loan
Agreement is incorporated herein and made a part hereof by
this reference.
2.10 Intentionally Omitted.
2.11 Intentionally Omitted.
2.12 Collateral and Guaranty. The Obligations
shall be secured by the Collateral pursuant to the
Collateral Documents, as amended by the Omnibus Documents
Amendment, and guaranteed by the Significant Subsidiaries
pursuant to the Subsidiary Guaranty, as amended by the
Omnibus Documents Amendment.
2.13 Senior Indebtedness. The Obligations shall
be "Senior Indebtedness" with respect to all Subordinated
Obligations and, as set forth more particularly in the
Intercreditor Agreement, shall rank pari passu with the
Obligations of Borrowers to the Banks under the Primary Loan
Agreement.
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Article 3.
PAYMENTS AND FEES
3.1 Principal and Interest.
(a) Interest shall be payable on the
outstanding daily unpaid principal amount of each
Advance from the date thereof until payment in full is
made and shall accrue and be payable at the rates set
forth or provided for herein before and after Default,
before and after maturity, before and after judgment,
and before and after the commencement of any proceeding
under any Debtor Relief Law, with interest on overdue
interest at the Default Rate to the fullest extent
permitted by applicable Laws.
(b) Interest accrued on each Loan on each
Quarterly Payment Date, shall be due and payable on
that day. Except as otherwise provided in
Section 3.10, the unpaid principal amount of each Loan
shall bear interest at a fluctuating rate per annum
equal to the Alternate Base Rate plus the Applicable
Alternate Base Rate Margin. Each change in the
interest rate under this Section 3.1(b) due to a change
in the Alternate Base Rate shall take effect
simultaneously with the corresponding change in the
Alternate Base Rate.
(c) If not sooner paid, the principal
Indebtedness evidenced by the Notes shall be payable as
follows:
(i) the amount, if any, by which the
principal outstanding Indebtedness evidenced by
the Notes, at any time exceeds the then applicable
Commitment, shall be payable immediately;
(ii) the Borrowers shall borrow under
the Primary Loan Agreement at any time that they
have any borrowing availability thereunder, to the
full extent of such borrowing availability, and
shall utilize all of the proceeds of such
borrowings to prepay the principal Indebtedness
evidenced by the Notes; and
(iii) the principal Indebtedness
evidenced by the Notes shall in any event be
payable on the Maturity Date.
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(d) The Notes may, at any time and from time
to time, voluntarily be paid or prepaid in whole or in
part without premium or penalty, except that with
respect to any voluntary prepayment under this Section
(i) any partial prepayment shall be not less than
$2,000,000, and (ii) the Managing Agent shall have
received written notice of any prepayment by 9:00 a.m.
California time on the date of prepayment (which must
be a Banking Day), which notice shall identify the date
and amount of the prepayment and the Loan(s) being
prepaid.
3.2 Intentionally Omitted.
3.3 Upfront Fees. On the Closing Date, Borrowers
shall pay to the Managing Agent, for the respective accounts
of the Banks pro rata according to their Pro Rata Share of
the Commitment, an upfront fee of 1/2 of 1% (50 basis
points) times the Commitment. Such upfront fees are for the
credit facilities committed by each Bank under this
Agreement and are fully earned when paid. The upfront fees
paid to each Bank are solely for its own account and are
nonrefundable.
3.4 Intentionally Omitted.
3.5 Commitment Fees From the Closing Date,
Borrowers shall pay to the Managing Agent, for the ratable
accounts of the Banks pro rata according to their Pro Rata
Share of the Commitment, a commitment fee equal to 1/2 of 1%
(50 basis points) per annum times the average daily amount
by which the Commitment exceeds the aggregate principal
Indebtedness evidenced by the Notes. The commitment fee
shall be payable quarterly in arrears on each Quarterly
Payment Date and on the Maturity Date.
3.6 Other Payment Provisions. Sections 3.8,
3.10, 3.11, 3.12, 3.13, 3.14, 3,15, 3.16, 3.17 and 3.18 of
the Primary Loan Agreement are incorporated herein and made
a part hereof by this reference.
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Article 4.
REPRESENTATIONS AND WARRANTIES
Article 4 of the Primary Loan Agreement is
incorporated herein and made a part hereof by this
reference.
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Article 5.
AFFIRMATIVE COVENANTS
(OTHER THAN INFORMATION AND
REPORTING REQUIREMENTS)
Article 5 of the Primary Loan Agreement (except
for Sections 5.10 and 5.11) is incorporated herein and made
a part hereof by this reference.
5.16 Endorsement to Title Insurance Policies. The
Borrowers shall assist the Managing Agent in obtaining,
within sixty days after the Closing Date, such endorsements
to the title insurance policies issued by the Title Company
in connection with the Primary Loan Agreement as the
Managing Agent may request. As of the date of this
Agreement, the Borrowers have requested the partial release,
in accordance with Section 11.27 of the Primary Loan
Agreement and Article 11 of this Agreement, of certain real
property owned by Ramada New Jersey, Inc.. and leased to
Washington Avenue Mini Storage, LLC, as to which such lessee
is exercising its purchase option. Such real property is
now subject to the Mortgage dated as of December 12, 1994
made by ANJI, Ramada New Jersey, Inc., Atlantic Deauville,
Inc. and Manchester Mall, Inc. in favor of the Managing
Agent (as amended concurrently herewith, the "New Jersey
Mortgage"). Without limitation on the foregoing, the
Borrowers shall in any event provide appropriate
endorsements requested by the Managing Agent to assure the
continued priority and perfection of the lien of the New
Jersey Mortgage following any such release.
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Article 6.
NEGATIVE COVENANTS
Article 6 of the Primary Loan Agreement is
incorporated herein and made a part hereof by this
reference.
15
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Article 7.
INFORMATION AND REPORTING REQUIREMENTS
Article 7 of the Primary Loan Agreement is
incorporated herein and made a part hereof by this
reference. Any document delivered to a Bank, in its
capacity as a Bank under the Primary Loan Agreement, shall
be deemed delivered to such Bank in its capacity as a Bank
under the Agreement.
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Article 8
CONDITIONS
8.1 Initial Advances, Etc.. The obligation of
each Bank to make the initial Advance to be made by it is
subject to the following conditions precedent, each of which
shall be satisfied prior to the making of the initial
Advances (unless all of the Banks, in their sole and
absolute discretion, shall agree otherwise):
(a) The Managing Agent shall have received
all of the following, each of which shall be originals
unless otherwise specified, each properly executed by a
Responsible Official of each party thereto, each dated
as of the Closing Date and each in form and substance
satisfactory to the Managing Agent and its legal
counsel (unless otherwise specified or, in the case of
the date of any of the following, unless the Managing
Agent otherwise agrees or directs):
(1) at least one (1) executed
counterpart of this Agreement, together with
arrangements satisfactory to the Managing Agent
for additional executed counterparts, sufficient
in number for distribution to the Banks and
Borrowers;
(2) Notes executed by Borrowers in
favor of each Bank, each in a principal amount
equal to that Bank's Pro Rata Share of the
Commitment;
(3) the Omnibus Documents Amendment
executed by Borrower and each Significant
Subsidiary;
(4) such financing statements on
Form UCC-1 executed by Borrowers and each
Significant Subsidiary with respect to the
Security Agreement, as amended by the Omnibus
Documents Amendment, as the Managing Agent may
request, and such other agreements, documents and
instruments executed by Borrowers and each
Significant Subsidiary as the Managing Agent may
request to assure that the Liens securing the
Obligations have been duly created and may be duly
perfected;
(5) with respect to Borrowers and each
Significant Subsidiary, such documentation as the
Managing Agent may require to establish the due
organization, valid existence and good standing of
Borrowers and each such Subsidiary, its
17
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qualification to engage in business in each
material jurisdiction in which it is engaged in
business or required to be so qualified, its
authority to execute, deliver and perform any Loan
Documents to which it is a Party, the identity,
authority and capacity of each Responsible
Official thereof authorized to act on its behalf,
including certified copies of articles of incorpo-
ration and amendments thereto, bylaws and
amendments thereto, certificates of good standing
and/or qualification to engage in business, tax
clearance certificates, certificates of corporate
resolutions, incumbency certificates, Certificates
of Responsible Officials, and the like;
(6) the Intercreditor Agreement,
executed by all parties thereto;
(7) the Opinion of Counsel;
(8) such assurances as the Managing
Agent deems appropriate that the relevant Gaming
Boards have approved the transactions contemplated
by the Loan Documents to the extent that such
approval is required by applicable Gaming Laws;
(9) a Pricing Certificate as of the
last day of the most recently ended Fiscal
Quarter;
(10) a Certificate of a Responsible
Official signed by a Senior Officer of Parent
certifying that the conditions specified in
Sections 8.1(d) and 8.1(e) have been satisfied;
and
(11) such other assurances,
certificates, documents, consents or opinions as
the Managing Agent reasonably may require.
(b) The upfront fees payable pursuant to
Section 3.3 shall have been paid.
(c) The reasonable costs and expenses of the
Managing Agent in connection with the preparation of
the Loan Documents payable pursuant to Section 11.3,
and invoiced to Borrowers prior to the Closing Date,
shall have been paid.
(d) The representations and warranties of
Borrowers contained in Article 4 shall be true and
correct.
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(e) Borrowers and any other Parties shall be
in compliance with all the terms and provisions of the
Loan Documents, and after giving effect to the initial
Advance, no Default or Event of Default shall have
occurred and be continuing.
(f) All legal matters relating to the Loan
Documents shall be satisfactory to Sheppard, Mullin,
Richter & Hampton, LLP, special counsel to the Managing
Agent.
(g) The Closing Date shall have occurred on
or before March 17, 1997.
8.2 Any Increasing Advance. The obligation of
each Bank to make any Advance which would increase the prin-
cipal amount outstanding under the Notes, is subject to the
following conditions precedent (unless the Requisite Banks,
in their sole and absolute discretion, shall agree
otherwise):
(a) except (i) for representations and
warranties which expressly speak as of a particular date or
are no longer true and correct as a result of a change which
is permitted by this Agreement or (ii) as disclosed by
Borrowers and approved in writing by the Requisite Banks,
the representations and warranties contained in Article 4
(other than Sections 4.4(a), 4.6 (first sentence), 4.10,
4.17 and 4.19) shall be true and correct on and as of the
date of the Advance as though made on that date;
(b) other than matters described in
Schedule 4.10 to the Primary Loan Agreement or not
required as of the Closing Date to be therein des-
cribed, there shall not be any action, suit, proceeding
or investigation pending as to which Borrowers or the
Restricted Subsidiaries have been served or received
notice or, to the best knowledge of Borrowers,
threatened against or affecting Borrowers or any of the
Restricted Subsidiaries or any Property of any of them
before any Governmental Agency that constitutes a
Material Adverse Effect;
(c) no material adverse change in the
business, condition (financial and otherwise) or
results of operations of Borrowers shall have occurred
since September 26, 1996;
(d) the Borrowers shall have no borrowing
availability under the Primary Loan Agreement;
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(e) the Managing Agent shall have timely
received a Request for Loan in compliance with
Article 2 (or telephonic or other request for Loan
referred to in the second sentence of Section 2.1(b),
if applicable); and
(f) the Managing Agent shall have received,
in form and substance satisfactory to the Managing
Agent, such other assurances, certificates, documents
or consents related to the foregoing as the Managing
Agent or Requisite Banks reasonably may require.
8.3 Any Advance. The obligation of each Bank to
make any Advance (other than an Advance which, if made,
would not increase the outstanding principal Indebtedness
evidenced by the Notes) is subject to the condition
precedent that the Managing Agent shall have timely received
a Request for Loan in compliance with Article 2 (or
telephonic or other request for Loan referred to in the
second sentence of Section 2.1(b), if applicable).
20
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Article 9.
EVENTS OF DEFAULT AND REMEDIES UPON EVENT OF DEFAULT
9.1 Events of Default. The existence or
occurrence of any one or more of the following events,
whatever the reason therefor and under any circumstances
whatsoever, shall constitute an Event of Default:
(a) Borrowers fail to pay any principal on
any of the Notes, or any portion thereof, on the date
when due; or
(b) Borrowers fail to pay any interest on
any of the Notes, or any fees under Sections 3.5, 3.6
or 3.7, or any portion thereof, within five (5) Banking
Days after the date when due; or fail to pay any other
fee or amount payable to the Banks under any Loan
Document, or any portion thereof, within five
(5) Banking Days after demand therefor; or
(c) The occurrence of an Event of Default
under the Primary Loan Agreement.
9.2 Remedies Upon Event of Default. Subject to
the Intercreditor Agreement, Section 9.2 of the Primary Loan
Agreement is incorporated herein and made a part hereof by
this reference.
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Article 10.
THE MANAGING AGENT
Article 10 of the Primary Loan Agreement is
incorporated herein and made a part hereof by this
reference; provided, however, that all defined terms set
forth in such Article 10 that are otherwise defined in this
Agreement shall have the respective meanings set forth in
this Agreement.
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Article 11.
MISCELLANEOUS
11.1 Incorporation of Certain Terms. Article 11
of the Primary Loan Agreement (other than Section 11.25) is
incorporated herein and made a part hereof by this
reference, mutatis mutandis, including, without limitation,
(i) the deletion of any and all references to "Letters of
Credit", "Eurodollar Lending Office" and to any other
defined terms that are inapplicable to the transactions
contemplated under this Agreement, and (ii) the deletion of
the reference to "$5,000,000" set forth in Section
11.8(b)(iii) and the substitution therefor of a reference to
"$2,000,000." All defined terms set forth in Article 11 of
the Primary Loan Agreement that are otherwise defined in
this Agreement shall have the respective meanings set forth
in this Agreement.
11.2 Amendments to Primary Loan Agreement. In the
event of any amendment, modification, restatement or other
alteration of the Primary Loan Agreement or any of the Loan
Documents referred to therein, Borrower shall (and shall
cause its Affiliates to) concurrently amend this Agreement
or the appropriate Loan Document hereunder in the same
manner, mutatis mutandis, if requested by the Requisite
Banks, all at the sole expense of Borrower.
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed as of the date first
above written.
AZTAR CORPORATION
By: NEIL CIARFALIA
_________________________________
Neil Ciarfalia
Treasurer
ADAMAR OF NEW JERSEY, INC.
By: NEIL CIARFALIA
__________________________________
Neil Ciarfalia
Treasurer
RAMADA EXPRESS, INC.
By: N.W. ARMSTRONG, JR.
__________________________________
N.W. Armstrong, Jr.
Title: Vice President & Secretary
_________________________________
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Address for all of the foregoing:
Aztar Corporation
2390 East Camelback Road
Suite 400
Phoenix, Arizona 85016
Attn: Neil Ciarfalia
Treasurer
Telecopier: (602) 381-4108
Telephone: (602) 381-4113
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Managing
Agent
By: PATRICK CARROLL
__________________________________
Patrick Carroll
Vice President
Address:
Bank of America National Trust and
Savings Association
Credit Product (LA 3283)
555 South Flower Street, 10th Floor
Los Angeles, CA 90071
Attn: Patrick Carroll
Telecopier: (213) 228-2641
Telephone: (213) 228-3145
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<PAGE>
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as a Bank
By: JON VARNELL
__________________________________
Jon Varnell, Managing Director
Address:
Bank of America National Trust and
Savings Association
555 South Flower Street, #3283
Los Angeles, California 90071
Attn: Jon Varnell,
Managing Director
Telecopier: (213) 228-2641
Telephone: (213) 228-6181
With a copy to:
Bank of America National Trust and
Savings Association
555 South Flower Street (LA-5777)
Los Angeles, California 90071
Attn: William Newby
Managing Director
Telecopier: (213) 228-3145
Telephone: (213) 228-2438
SOCIETE GENERALE, as a Bank
By J. BLAINE SHAUM
___________________________________
J. Blaine Shaum
Regional Manager
Address:
Societe Generale
2029 Century Park East, Suite 2900
Los Angeles, California 90067
Attention: Donald L. Schubert
Vice President
Telecopier: (310) 551-1537
Telephone: (310) 788-7104
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<PAGE>
Exhibit A to Supplemental Loan Agreement
INTERCREDITOR AND COLLATERAL AGENCY AGREEMENT
THIS INTERCREDITOR AND COLLATERAL AGENCY AGREEMENT
(this "Agreement"), dated as of March 13, 1997, is entered
into by and among Bank of America National Trust and Savings
Association, for itself as a Primary Loan Agreement Bank (as
hereinafter defined) and Managing Agent for the other
Primary Loan Agreement Banks, Bank of America National Trust
and Savings Association, for itself as a Supplemental Loan
Agreement Bank (as hereinafter defined) and as Managing
Agent for the other Supplemental Loan Agreement Banks, and
Bank of America, National Trust and Savings Association as
Collateral Agent for the Primary Loan Agreement Banks and
for the Supplemental Loan Agreement Banks, with reference to
the following facts:
RECITALS
A. Aztar Corporation, a Delaware corporation,
Adamar of New Jersey, Inc., a New Jersey corporation, and
Ramada Express, Inc., a Nevada corporation (collectively,
the "Borrowers"), the banks whose names are set forth on the
signature pages thereof (collectively, the "Primary Loan
Agreement Banks"), Societe Generale and Midlantic Bank,
N.A., as Lead Managers, Bank One Arizona, N A and Credit
Lyonnais, as Co-Agents, Bankers Trust Company, as Co-
Managing Agent, and Bank of America National Trust and
Savings Association, as Managing Agent, are parties to that
certain Reducing Revolving Loan Agreement dated as of
October 4, 1994 (as amended through the date hereof, the
"Primary Loan Agreement"), pursuant to which the Primary
Loan Agreement Banks have provided the Borrowers with
certain secured reducing revolving loan and letter of credit
facilities.
B. The Borrowers have requested that one or more
of the Primary Loan Agreement Banks provide the Borrowers
with an additional, supplemental $25,000,000 secured
reducing revolving loan facility.
C. The banks named on the signature pages
thereof (collectively, the "Supplemental Loan Agreement
Banks"), which include some, but not all, of the Primary
Loan Agreement Banks, and Bank of America National Trust and
Savings Association, as Managing Agent, are willing to enter
into that certain Supplemental Reducing Revolving Loan
Agreement of even date herewith with the Borrowers (the
"Supplemental Loan Agreement") and provide the Borrowers
26
<PAGE>
with their requested supplemental financing, provided that,
among other conditions precedent contained in the
Supplemental Loan Agreement, the parties hereto enter into
this Agreement.
D. To induce the Supplemental Loan Agreement
Banks to enter into the Supplemental Loan Agreement with the
Borrowers and provide the Borrowers with the supplemental
financing contemplated thereunder, the parties hereto are
willing to enter into this Agreement, pursuant to which,
inter alia, the Primary Loan Agreement Banks and the
Supplemental Loan Agreement Banks (sometimes hereinafter
referred to collectively as the "Banks") (i) shall agree as
to the relative priority and enforcement rights of (a) their
respective liens and security interests in the assets and
properties of the Borrowers and of certain subsidiaries of
the Borrowers, and (b) their respective interests in the
Subsidiary Guaranty, and (ii) shall appoint the Collateral
Agent as their common collateral agent to take the actions
described herein with respect to the Collateral (as
hereinafter defined).
NOW, THEREFORE, in consideration of the foregoing
and the mutual covenants contained herein, and for other
good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereby agree
as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions of Certain Terms. As used herein, the
following terms have the meanings set forth below:
"Allocable L/C Share" has the meaning specified in
Section 5. l(g).
"Banks" has the meaning specified in the Recitals
to this Agreement.
"Borrowers" has the meaning specified in the
Recitals to this Agreement.
"Collateral" means, collectively, the Collateral
described in the Primary Loan Agreement and the Collateral
described in the Supplemental Loan Agreement.
"Collateral Accounts" means, collectively, the
Separate Collateral Disbursement Account, the Shared
Collateral Disbursement Account and the L/C Holding Account.
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<PAGE>
"Deposit Notice" has the meaning specified in
Section 5.1(c).
"Disbursement Date" has the meaning specified in
Section 5.1(c).
"L/C Exposure" means, as of any date of
determination, the aggregate maximum available amount which
may be drawn under all Letters of Credit outstanding as of
such date of determination.
"L/C Holding Account" has the meaning set forth in
Section 5.1(a).
"Letter of Credit Disbursement" means a payment or
disbursement made by the Issuing Bank pursuant to a Letter
of Credit.
"Loan Documents" means, collectively, the Loan
Documents described in the Primary Loan Agreement and the
Loan Documents described in the Supplemental Loan Agreement.
"Outstanding Obligations" means, at any time, the
sum of (i) the aggregate Obligations outstanding at such
time under the Primary Loan Agreement, (ii) the aggregate
Obligations outstanding at such time under the Supplemental
Loan Agreement, and (iii) the aggregate reimbursement
obligations in respect of the L/C Exposure outstanding at
such time.
"Primary Loan Agreement" has the meaning specified
in the Recitals to this Agreement.
"Primary Loan Agreement Banks" has the meaning
specified in the Recitals to this Agreement.
"Primary Loan Agreement Banks' Separate
Collateral" means the Collateral described in the Primary
Loan Agreement, other than the Shared Collateral.
"Separate Collateral Disbursement Account" has the
meaning specified in Section 5.1(a).
"Shared Collateral" means the Collateral described
in the Supplemental Loan Agreement.
"Shared Collateral Disbursement Account" has the
meaning specified in Section 5.1(a).
"Subsidiary Guarantor" has the meaning specified
in Section 3.1.
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<PAGE>
"Supplemental Loan Agreement" has the meaning
specified in the Recitals to this Agreement.
"Supplemental Loan Agreement Banks" has the
meaning specified in the Recitals to this Agreement.
Any and all initially capitalized terms used in this
Agreement (including, without limitation, in the Recitals
hereto) without definition shall have the respective
meanings assigned thereto under the Primary Loan Agreement.
1.2 Terms Generally. The definitions in Section 1.1
shall apply equally to both the singular and plural forms of
the terms defined. Whenever the context may require, any
pronoun shall include the corresponding masculine, feminine
and neuter forms. The words "include," "includes" and
"including" shall be deemed to be followed by the phrase
"without limitation." All references herein to Articles and
Sections shall be deemed references to Articles and Sections
of this Agreement unless the context shall otherwise
require.
1.3 Incorporation by Reference. Any provision of
the Primary Loan Agreement that is incorporated by reference
into this Agreement shall be deemed to be amended in such
minor respects as are necessary to make such provision
appropriate in the context of this Agreement rather than the
context of the Primary Loan Agreement. Any defined term
used in such a provision which is defined in Section 1.1 of
this Agreement shall be incorporated herein using the
defined term in this Agreement, and not the defined term in
the Primary Loan Agreement.
ARTICLE II
PRIORITY OF LIENS AND GUARANTIES
2.1 Lien Priorities. The Banks hereby agree that
regardless of the time or order of attachment, the time,
order or manner of perfection, or the time or order of
filing or recording of any financing statements, real
property or vessel mortgages or deeds of trust, notices,
trademark security agreements or any other security interest
or lien perfection document, the Banks shall have the
following respective lien priorities in the Collateral:
(i) the Primary Loan Agreement Banks,
acting through the Collateral Agent, which shall
hold such lien and security interest, shall be the
beneficiaries of a first priority lien on and
security interest in the Primary Loan Agreement
Banks' Separate Collateral, subject only to the
Permitted Encumbrances identified in the Primary
Loan Agreement; and
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<PAGE>
(ii) All of the Banks, acting through
the Collateral Agent, which shall hold such lien
and security interest, shall share a pari passu
first priority lien on and security interest in
the Shared Collateral, subject only to the
Permitted Encumbrances identified in the Primary
Loan Agreement.
2.2 Priority of Guaranties. Notwithstanding the time
or order of the creation of their respective interests
therein, all of the Banks shall have a pari passu interest
in the Subsidiary Guaranty.
ARTICLE III
ENFORCEMENT OF LIENS AND SUBSIDIARY GUARANTY
3.1 Standstill by Supplemental Loan Agreement Banks.
The Collateral Agent hereby agrees (and the Supplemental
Loan Agreement Banks acknowledge such agreement) that it
shall not enforce the liens and interests of the
Supplemental Loan Agreement Banks in the Shared Collateral
or make demand upon any issuer of the Subsidiary Guaranty (a
"Subsidiary Guarantor") in response to any notice of an
Event of Default received from, or on behalf of, one or more
of the Supplemental Loan Agreement Banks unless the
Collateral Agent previously has commenced enforcement of the
liens and security interests of the Primary Loan Agreement
Banks in the Shared Collateral and/or made demand upon such
Subsidiary Guarantor in response to a notice of an Event of
Default received from or on behalf of the Primary Loan
Agreement Banks.
3.2 No Limitation on Other Remedies. Notwithstanding
the limitation contained in Section 3.1, the Collateral
Agent, or the Managing Agent under the Supplemental Loan
Agreement, may take any and all actions, other than
enforcement actions against the Shared Collateral or any
Subsidiary Guarantor, that the Supplemental Loan Agreement
Banks may request to preserve their rights and remedies
under the Loan Documents described in the Supplemental Loan
Agreement, including, without limitation, accelerating the
indebtedness evidenced by the Supplemental Loan Agreement
and the promissory notes issued thereunder, terminating the
Supplemental Loan Agreement and the Supplemental Loan
Agreement Banks' commitment to make additional advances
thereunder, and the like.
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<PAGE>
ARTICLE IV
THE COLLATERAL AGENT
4.1 Appointment of Collateral Agent. Each of the
Banks hereby irrevocably appoints and authorizes Bank of
America National Trust and Savings Association to act as
Collateral Agent pursuant to the terms of the Loan Documents
and this Agreement, and Bank of America National Trust and
Savings Association agrees to act as Collateral Agent for
such Banks, pursuant to the terms of the Loan Documents and
this Agreement.
4.2 Other Agency Provisions. Sections 10.2, 10.3,
10.4, 10.5, 10.6, 10.7, 10.8, 10.9 and 10.10 of the Primary
Loan Agreement are incorporated herein and made a part
hereof by this reference, provided that for the purposes of
this Agreement all references to the "Managing Agent"
contained in such Sections of the Primary Loan Agreement
shall be deemed to be references to the Collateral Agent.
ARTICLE V
PROCEEDS RECEIVED UNDER LOAN DOCUMENTS;
OTHER AMOUNTS RECEIVED FOLLOWING EVENT OF DEFAULT
5.1 Establishment of Collateral Accounts;
Application of Proceeds of Collateral and Subsidiary
Guaranties.
(a) Establishment of Collateral Accounts.
Upon the occurrence of an Event of Default, the
Collateral Agent shall establish and maintain at its
banking office in Los Angeles, California, (or upon
notice to the Banks, such other banking office in
California as it may select, so long as its lien is
continuously perfected as contemplated herein) the
following three segregated collateral accounts:
(i) an account entitled the "Aztar
Primary Bank Group Separate Collateral
Disbursement Account" (the "Separate Collateral
Disbursement Account");
(ii) an account entitled the "Aztar
Shared Collateral Disbursement Account" (the
"Shared Collateral Disbursement Account"); and
(iii) an account entitled the "Aztar
L/C Holding Account" (the "L/C Holding Account").
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<PAGE>
Each such account will be held by the Collateral Agent as
provided in this Agreement and shall at all times be in the
exclusive possession of, and under the control of, the
Collateral Agent, as collateral agent for the Banks.
Neither the Borrowers nor any Subsidiaries (including any
Subsidiary Guarantor) shall have control over any such
account, including any right to withdraw any amounts on
deposit therein, provided that such applicable parties shall
have the right to receive any surplus funds after all
Outstanding Obligations have been paid in full. The
Borrowers hereby grant and assign to the Collateral Agent,
for the benefit of the Banks, as collateral security for the
Outstanding Obligations, all of the Borrowers' right, title
and interest in and to the Collateral Accounts, all funds
from time to time maintained therein, all investments
thereof, all interest, dividends and other amounts earned
thereon and all proceeds thereof.
(b) Deposits into Collateral Accounts.
Except as otherwise explicitly required in any
Collateral Document or by applicable law, the
Collateral Agent shall deposit (i) into the Shared
Collateral Disbursement Account all amounts received by
it in its capacity as Collateral Agent (and not in any
other capacity) in respect of the Shared Collateral,
and (ii) into the Separate Collateral Disbursement
Account all amounts received by it in its capacity as
Collateral Agent (and not in any other capacity) in
respect of the Primary Loan Agreement Banks Separate
Collateral, in each case after the Collateral Agent is
notified in writing by one or more of the Primary Loan
Agreement Banks of the occurrence of an Event of
Default and during the continuance thereof (including
during any dissolution, winding up, liquidation,
reorganization or insolvency proceeding of the
Borrowers or any of them), including all monies
received on account of any sale of or other realization
upon any of such Collateral pursuant to any Collateral
Document and any distributions, adequate protection
payments or similar amounts received in respect of such
Collateral in any insolvency case or proceeding
involving the Borrowers, or any of them, or any
Subsidiary Guarantor, or pursuant to enforcement of the
Subsidiary Guaranties. The Collateral Agent shall be
required to release amounts on deposit in the Shared
Collateral Disbursement Account or in the Separate
Collateral Disbursement Account to the Borrowers or any
Subsidiary Guarantor to the extent required by any of
the Loan Documents or applicable law.
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<PAGE>
(c) Notices to Banks. Not later than the
last day of each month in which any amounts are
deposited into the Shared Collateral Disbursement
Account or into the Separate Collateral Disbursement
Account, the Collateral Agent shall provide written
notice of all such deposits during such month to each
Bank (a "Deposit Notice"), specifying (i) the dates of
such deposits, (ii) the amounts of such deposits, (iii)
the date that the Collateral Agent will make a
disbursement in respect of such deposits (which date
shall be not less than ten (10) nor more than thirty
(30) days after the date of the Deposit Notice (the
"Disbursement Date")), and (iv) the basis upon which
the amount due to each Bank will be calculated.
(d) Determination of Outstanding
Obligations. Following receipt of any Deposit Notice,
each Bank shall, not later than the Banking Day next
preceding the Disbursement Date specified in such
Deposit Notice, deliver to the Collateral Agent and
each other Bank a duly completed certificate, in form
and substance acceptable to the Collateral Agent,
certifying the amount of Outstanding Obligations due
and payable to such Bank as of the date one Banking Day
before the Disbursement Date. The Collateral Agent
shall calculate the proportionate shares of Outstanding
Obligations of each of the Banks in reliance upon such
certificates. Promptly following its determination of
such proportionate shares, and in any event no later
than the applicable Disbursement Date, the Collateral
Agent shall notify the Banks of such determination.
(e) Disbursements to Banks from Shared
Collateral Disbursement Account. On the applicable
Disbursement Date, the Collateral Agent shall disburse
the amount on deposit in the Shared Collateral
Disbursement Account in accordance with the order of
priority set forth in Section 9.2(d) of the Primary
Loan Agreement and in Section 9.2(d) of the
Supplemental Loan Agreement.
(f) Disbursements to Primary Loan Agreement
Banks from Separate Collateral Disbursement Account.
On the applicable Disbursement Date, the Collateral
Agent shall disburse the amount on deposit in the
Separate Collateral Disbursement Account in accordance
with the order of priority set forth in Section 9.2(d)
of the Primary Loan Agreement.
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<PAGE>
Together with the payment of each disbursement from the
Separate Collateral Disbursement Account or the Shared
Collateral Disbursement Account on each Disbursement Date,
the Collateral Agent shall deliver to each Bank a statement
detailing the aggregate amount disbursed to the applicable
Banks, the amount deposited in each Collateral Account and
all deductions therefrom to cover the costs and expenses of
the Collateral Agent and the Banks as permitted under
Section 9.2(d) of the Primary Loan Agreement and under
Section 9.2 of the Supplemental Loan Agreement.
(g) Disbursements From L/C Holding Account.
All amounts deposited in the L/C Holding Account (which
deposits shall be made from the disbursements pursuant
to Sections 5.1(e) and (f) above) shall be deemed to be
allocated to each Letter of Credit taken into account
in the determination of the amount of such deposit,
ratably in accordance with the respective maximum
amounts available to be drawn under all such Letters of
Credit (the amount so allocated to a Letter of Credit
being referred to as its "Allocable L/C Share"). At
such time as (i) any such Letter of Credit expires
undrawn or (ii) the amount available to be drawn under
any such Letter of Credit is irrevocably reduced (other
than by a draw thereon) according to the terms thereof,
in either case causing a reduction in the L/C Exposure,
then the Allocable L/C Share attributable to such
expired Letter of Credit or such reduction in the L/C
Exposure shall be deposited into the Separate
Collateral Disbursement Account and shall be
distributed in accordance with Section 5.1(f). At such
time as any such Letter of Credit is drawn, the
Allocable L/C Share attributable thereto (in an amount
not exceeding the amount of such drawing) shall be
disbursed from the L/C Holding Account by the
Collateral Agent to the Issuing Bank and any amount
drawn on any Letter of Credit not so reimbursed shall
then be deemed to be an Obligation under the Primary
Loan Agreement.
5.2 Investment of Amounts in Collateral Accounts.
Pending the disbursement thereof pursuant to the terms of
this Agreement, all amounts in the Collateral Accounts shall
(to the extent the Collateral Agent deems practical) be
invested by the Collateral Agent in Permitted Investments.
The Collateral Agent shall endeavor to select Permitted
Investments for each Collateral Account that mature prior to
the anticipated date of any distribution to be made from
such Collateral Account.
34
<PAGE>
5.3 Turnover of Collateral Received by Banks. Each
Bank shall promptly put in the custody, possession or
control of the Collateral Agent for disposition or
distribution in accordance with the provisions of Section
5.1 any Collateral or proceeds therefrom over which such
Bank obtains custody, control or possession. Until such
time as each Bank shall have complied with the provisions of
the immediately preceding sentence, such Bank shall be
deemed to hold such Collateral or proceeds in trust for the
parties entitled thereto hereunder.
5.4 Ratable Sharing of Certain Amounts Received by
Banks. Section 11.10 of the Primary Loan Agreement is
incorporated herein and made a part hereof by this
reference.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
Each of the Collateral Agent and each Bank
represents and warrants to the other parties hereto that (a)
the execution, delivery and performance of this Agreement
(i) have been duly authorized by all requisite corporate
action on its part and (ii) will not contravene any
provision of its charter or by-laws or any order of any
court or other governmental authority having applicability
to it or any applicable law, and (b) this Agreement has been
duly executed and delivered by it and constitutes its legal,
valid and binding obligation.
ARTICLE VII
INTERCREDITOR ARRANGEMENTS
7.1 Bankruptcy Proceedings. Nothing contained herein
shall limit or restrict the independent right of any Bank to
initiate an action or actions in any proceeding under a
Debtor Relief Law and to appear or be heard on any matter
before the bankruptcy or other applicable court in any such
proceeding. The Collateral Agent is not entitled to
initiate such actions on behalf of any Bank or to appear and
be heard on any matter before the bankruptcy or other
applicable court in any such proceeding as the
representative of any Bank, unless such action or appearance
has been approved in writing by such Bank. The Collateral
Agent is not authorized in any such proceeding to enter into
any agreement for, or give any authorization or consent with
respect to, the postpetition usage of Collateral, unless
such agreement, authorization or consent has been approved
in writing by the Requisite Banks. This Agreement shall
survive the commencement of any proceeding under a Debtor
Relief Law.
35
<PAGE>
7.2 Waiver of Marshaling. Each of the Supplemental
Loan Agreement Banks waives any right it may now or
hereafter have to require the Collateral Agent to marshal
assets, to exercise rights or remedies in a particular
manner, or to forbear exercising such rights and remedies in
any particular manner or order.
7.3 Further Assurances, etc. Each party hereto shall
execute and deliver such other documents and instruments, in
form and substance reasonably satisfactory to the other
parties hereto, and shall take such other action, in each
case as any other party hereto may reasonably have requested
(at the cost and expense of the Borrowers) to effectuate and
carry out the provisions of this Agreement, including by
recording or filing this Agreement or such other documents
or instruments in such places as the requesting party may
reasonably deem desirable.
ARTICLE VIII
MISCELLANEOUS
8.1 Successors and Assigns. This Agreement shall be
binding on and inure to the benefit of the Collateral Agent,
each of the Banks and their respective successors and
permitted assigns and participants pursuant to Section 11.8
of the Primary Loan Agreement and Section 11.8 of the
Secondary Loan Agreement, as applicable.
8.2 Benefitted Parties. All understandings and
agreements contained herein are solely for the benefit of
the Banks and their respective successors and assigns, and,
notwithstanding the execution of this Agreement by the
Borrowers and the Subsidiary Guarantors solely for the
purpose of acknowledging and consenting to such
understandings and agreements, neither the Borrowers, the
Subsidiary Guarantors nor any other Person other than the
Banks and their respective successors and assigns is
intended to be benefitted in any way by this Agreement.
8.3 Notices. Notices and other communications
provided for herein shall be issued as set forth in
Section 11.6 of the Primary Loan Agreement, with the
understanding that all notices and other communication to be
conveyed hereunder (i) to the Collateral Agent shall be sent
to the notice address specified in the Primary Loan
Agreement for the Managing Agent, and (ii) to the Subsidiary
Guarantors shall be sent to the address set forth below
their signatures to this Agreement.
36
<PAGE>
8.4 Termination. This Agreement and the agency of
the Collateral Agent shall terminate upon the termination of
the Supplemental Loan Agreement in accordance with Section
11.26 thereof.
8.5 APPLICABLE LAW. THIS AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE INTERNAL
LAWS (AND NOT THE CONFLICT OF LAWS RULES) OF THE STATE OF
CALIFORNIA.
8.6 WAIVER OF RIGHT TO TRIAL BY JURY. EACH PARTY TO
THIS AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY
JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING
UNDER THIS AGREEMENT OR IN ANY WAY CONNECTED WITH OR RELATED
OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY
OF THEM WITH RESPECT TO THIS AGREEMENT, OR THE TRANSACTIONS
RELATED HERETO, IN EACH CASE WHETHER NOW EXISTING OR
HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR TORT
OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT
ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE
DECIDED BY A COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY
TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY
OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE
CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR
RIGHT TO TRIAL BY JURY.
8.7 Counterparts; Effectiveness. This Agreement may
be executed in multiple counterparts, each of which shall
constitute an original, but all of which, when taken
together, shall constitute but one and the same instrument.
This Agreement shall become effective on the date on which
each of the following conditions precedent shall have been
satisfied: (i) this Agreement shall have been executed and
delivered by each Bank and the Collateral Agent and
acknowledged by the Borrowers and the Subsidiary Grantors;
and (ii) all conditions precedent to the effectiveness of
the Supplemental Loan Agreement (other than the
effectiveness of this Agreement) shall have been satisfied
or waived in writing.
8.8 Complete Agreement. This Agreement constitutes
the entire agreement between the parties hereto with respect
to the subject matter hereof and supersedes all prior
representations, negotiations, writings, memoranda and
agreements. To the extent any provision of this Agreement
conflicts with any other Loan Document, the provisions of
this Agreement shall be controlling.
37
<PAGE>
IN WITNESS WHEREOF, the Collateral Agent, the
Managing Agent for the Primary Loan Agreement Banks, and the
Managing Agent for the Supplemental Loan Agreement Banks
have caused this Agreement to be executed by their
respective duly authorized officers as of the date first
above written.
The Collateral Agent:
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as
Collateral Agent
By:
_________________________
Patrick Carroll
Vice President
The Managing Agent for the
Primary Loan Agreement Banks:
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as a
Primary Loan Agreement Bank and
as Managing Agent for such Banks
By: _________________________
Patrick Carroll
Vice President
The Managing Agent for the
Supplemental Loan Agreement
Banks:
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as a
Supplemental Loan Agreement Bank
and as Managing Agent for such
Banks
By: _________________________
Patrick Carroll
Vice President
38
<PAGE>
Acknowledged by and Agreed to:
The Borrowers:
AZTAR CORPORATION
By: _________________________
Neil Ciarfalia
Treasurer
ADAMAR OF NEW JERSEY, INC.
By: _________________________
Neil Ciarfalia
Treasurer
RAMADA EXPRESS, INC.
By: _________________________
Title:
_________________________
The Subsidiary Guarantors:
HOTEL RAMADA OF NEVADA
By: _________________________
Title:
_________________________
AZTAR DEVELOPMENT CORPORATION
By: _________________________
Neil Ciarfalia
Treasurer
39
<PAGE>
AZTAR INDIANA GAMING CORPORATION
By: _________________________
Title:
_________________________
AZTAR MISSOURI GAMING CORPORATION
By:
_________________________
Title:
_________________________
ATLANTIC - DEAUVILLE, INC.
By: _________________________
Neil Ciarfalia
Treasurer
ADAMAR GARAGE CORPORATION
By: _________________________
Neil Ciarfalia
Treasurer
MANCHESTER MALL, INC.
By: _________________________
Neil Ciarfalia
Treasurer
40
<PAGE>
RAMADA NEW JERSEY HOLDINGS
CORPORATION
By: _________________________
Neil Ciarfalia
Treasurer
RAMADA NEW JERSEY, INC.
By: _________________________
Title:
_________________________
Address for the Subsidiary
Guarantors:
2390 East Camelback Road, Suite
400
Phoenix, Arizona
Telecopier: (602) 381-4107
Telephone: (602) 381-4100
41
<PAGE>
Exhibit B to Supplemental Reducing Revolving Loan Agreement
PROMISSORY NOTE
$_______________________ March 13, 1997
Los Angeles, California
FOR VALUE RECEIVED, the undersigned jointly and
severally promise to pay to the order of _______________________
(the "Bank"), the principal amount of __________________________
AND NO/100 DOLLARS ($___________________) or such lesser
aggregate amount of Advances as may be made by the Bank with
respect to the Commitment under the Loan Agreement referred to
below, together with interest on the principal amount of each
Advance made hereunder and remaining unpaid from time to time
from the date of each such Advance until the date of payment in
full, payable as hereinafter set forth.
Reference is made to the Supplemental Reducing
Revolving Loan Agreement dated as of March 13, 1997, by and among
the undersigned, as Borrowers, the Banks which are parties
thereto, and Bank of America National Trust and Savings
Association, as Managing Agent for the Banks (the "Loan
Agreement"). Terms defined in the Loan Agreement and not
otherwise defined herein are used herein with the meanings given
those terms in the Loan Agreement. This is one of the Notes
referred to in the Loan Agreement, and any holder hereof is
entitled to all of the rights, remedies, benefits and privileges
provided for in the Loan Agreement as originally executed or as
it may from time to time be supplemented, modified or amended.
The Loan Agreement, among other things, contains provisions for
acceleration of the maturity hereof upon the happening of certain
stated events upon the terms and conditions therein specified.
The principal indebtedness evidenced by this Note shall
be payable as provided in the Loan Agreement and in any event on
the Maturity Date.
Interest shall be payable on the outstanding daily
unpaid principal amount of Advances from the date of each such
Advance until payment in full and shall accrue and be payable at
the rates and on the dates set forth in the Loan Agreement both
before and after default and before and after maturity and
judgment, with interest on overdue principal and interest to bear
interest at the rate set forth in Section 3.10 of the Loan
Agreement, to the fullest extent permitted by applicable Law.
42
<PAGE>
Each payment hereunder shall be made to the Managing
Agent at the Managing Agent's Office for the account of the Bank
in immediately available funds not later than 11:00 a.m. (San
Francisco time) on the day of payment (which must be a Banking
Day). All payments received after 11:00 a.m. (San Francisco
time) on any particular Banking Day shall be deemed received on
the next succeeding Banking Day. All payments shall be made in
lawful money of the United States of America.
The Bank shall use its best efforts to keep a record of
Advances made by it and payments received by it with respect to
this Note, and such record shall be presumptive evidence of the
amounts owing under this Note.
The undersigned hereby promise to pay all costs and
expenses of any rightful holder hereof incurred in collecting the
undersigneds' obligations hereunder or in enforcing or attempting
to enforce any of such holder's rights hereunder, including
reasonable attorneys' fees and disbursements, whether or not an
action is filed in connection therewith.
The undersigned hereby waive presentment, demand for
payment, dishonor, notice of dishonor, protest, notice of protest
and any other notice or formality, to the fullest extent
permitted by applicable Laws.
The undersigned agree that their liability hereunder is
joint and several, absolute and unconditional without regard to
the liability of any other party. All provisions of this Note
shall apply to each of the undersigned. Each of the undersigned
other than Aztar Corporation ("Parent") hereby irrevocably
appoints Parent as its agent for the purpose of (i) requesting
Advances hereunder and (ii) receiving notices with respect
hereto.
THIS NOTE SHALL BE DELIVERED TO AND ACCEPTED BY THE
BANK, OR BY THE MANAGING AGENT ON ITS BEHALF, IN THE STATE OF
CALIFORNIA, AND SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED
IN ACCORDANCE WITH, THE LOCAL LAWS THEREOF.
AZTAR CORPORATION, RAMADA EXPRESS, INC.,
a Delaware corporation a Nevada corporation
By:__________________________ By:_____________________
Neil Ciarfalia
Treasurer Title:__________________
ADAMAR OF NEW JERSEY, INC.,
a New Jersey corporation
By:__________________________
Neil Ciarfalia
Treasurer
43
<PAGE>
SCHEDULE OF COMMITTED ADVANCES AND
PAYMENTS OF PRINCIPAL
Date Amount Interest Amount of Unpaid Notation
of Period Principal Principal Made by
Advance Paid Balance
___________________________________________________
___________________________________________________
___________________________________________________
___________________________________________________
___________________________________________________
___________________________________________________
___________________________________________________
___________________________________________________
___________________________________________________
___________________________________________________
___________________________________________________
___________________________________________________
___________________________________________________
___________________________________________________
___________________________________________________
___________________________________________________
___________________________________________________
___________________________________________________
___________________________________________________
___________________________________________________
44
<PAGE>
Exhibit C to Supplemental Reducing Revolving Loan Agreement
OMNIBUS DOCUMENTS AMENDMENT AND COLLATERAL ASSIGNMENT
THIS OMNIBUS DOCUMENTS AMENDMENT AND COLLATERAL
ASSIGNMENT (this "Amendment"), dated as of March 13, 1997,
is entered into by and among the Borrowers (as hereinafter
defined), Aztar Indiana Gaming Corporation, an Indiana
corporation ("AIGC"), Aztar Missouri Gaming Corporation, a
Missouri corporation ("AMGC"), Atlantic Deauville, Inc., a
New Jersey Corporation ("ADI"), Adamar Garage Corporation, a
Delaware corporation ("AGC"), Manchester Mall, Inc., a New
Jersey corporation ("MMI"), Ramada New Jersey, Inc., a New
Jersey corporation ("RNJI"), Bank of America National Trust
and Savings Association, for itself as a Primary Loan
Agreement Bank (as hereinafter defined) and as Managing
Agent for such banks, Bank of America National Trust and
Savings Association, for itself as a Supplemental Loan
Agreement Bank (as hereinafter defined), and as Managing
Agent for such banks, and Bank of America National Trust and
Savings Association, as Collateral Agent for the Primary
Loan Agreement Banks and the Supplemental Loan Agreement
Banks, with reference to the following facts:
RECITALS
A. Aztar Corporation, a Delaware corporation,
Adamar of New Jersey, Inc., a New Jersey corporation, and
Ramada Express, Inc., a Nevada corporation (collectively,
the "Borrowers"), the banks whose names are set forth on the
signature pages thereof (collectively, the "Primary Loan
Agreement Banks"), Societe Generale and Midlantic Bank N.A.,
as Lead Managers, Bank One, Arizona, N A and Credit
Lyonnais, as Co-Agents, Bankers Trust Company, as Co-
Managing Agent, and Bank of America National Trust and
Savings Association, as Managing Agent (the "Primary Loan
Agreement Managing Agent"), are parties to that certain
Reducing Revolving Loan Agreement dated as of October 4,
1994 (as amended through the date hereof, the "Primary Loan
Agreement"), pursuant to which the Primary Loan Agreement
Banks provided the Borrowers with certain secured reducing
revolving loan and letter of credit facilities.
B. Pursuant to the Collateral Documents
described in, and entered into in connection with, the
Primary Loan Agreement: (i) the Borrowers secured the
payment and performance of their obligations under the
Primary Loan Agreement and the Notes referred to therein by
granting the Primary Loan Agreement Managing Agent a lien on
and security interest in certain assets and properties of
the Borrowers; (ii) certain affiliates of the Borrowers
whose names are set forth on the signature pages thereof
45
<PAGE>
(collectively, the "Subsidiary Guarantors") executed the
Subsidiary Guaranty referred to in the Primary Loan
Agreement in favor of the Primary Loan Agreement Managing
Agent and the Primary Loan Agreement Banks to guaranty the
payment and performance by the Borrowers of their
obligations under the Primary Loan Agreement and the Notes
issued thereunder; and (iii) the Subsidiary Guarantors
executed certain of the Collateral Documents referred to in
the Primary Loan Agreement to secure the payment and
performance of their obligations under such Subsidiary
Guaranty.
C. The Borrowers, certain, but not all, of the
Primary Loan Agreement Banks whose names are set forth in
the signature pages thereof as "Supplemental Loan Agreement
Banks" (collectively, the "Supplemental Loan Agreement
Banks"), and Bank of America National Trust and Savings
Association, as Managing Agent for such banks (in such
capacity, the "Supplemental Loan Agreement Managing Agent")
are entering into a certain Supplemental Reducing Revolving
Loan Agreement of even date herewith (the "Supplemental Loan
Agreement"), pursuant to which the Supplemental Loan
Agreement Banks will provide the Borrowers with an
additional supplemental $20,000,000 secured revolving credit
facility.
D. The parties to this Amendment intend that
the Borrowers' obligations under the Supplemental Loan
Agreement be secured by all of the collateral provided by
the Borrowers to the Primary Loan Agreement Managing Agent
and the Primary Loan Agreement Banks, except for the three
items of collateral specifically referred to and excluded
under the definition of "Collateral" in the Supplemental
Loan Agreement. In addition, the parties hereto intend that
the Borrowers' obligations under the Supplemental Loan
Agreement be subject to the Subsidiary Guaranty and all
collateral security for the Subsidiary Guaranty. In
furtherance of these intentions, the parties desire to amend
the Loan Documents (as defined in the Primary Loan
Agreement) as provided below.
E. Pursuant to a certain Intercreditor
Agreement of even date herewith entered into by the parties
hereto, the Primary Loan Agreement Banks and the
Supplemental Loan Agreement Banks have appointed the
Collateral Agent to act as their common collateral agent
with respect to the collateral provided by the Borrowers and
the Subsidiary Guarantors to: (i) the Primary Loan
Agreement Managing Agent and the Primary Loan Agreement
Banks under the Loan Documents referred to and entered into
in connection with the Primary Loan Agreement and (ii) the
Supplemental Loan Agreement Managing Agent and the
46
<PAGE>
Supplemental Loan Agreement Banks pursuant to the Loan
Documents referred to in, and entered into in connection
with, the Supplemental Loan Agreement. In furtherance of
such intention, the Primary Loan Agreement Managing Agent
and the Supplemental Loan Agreement Managing Agent shall
assign to the Collateral Agent all of the collateral held by
them for the ratable benefit of the Primary Loan Agreement
Banks and of the Supplemental Loan Agreement Banks,
respectively, as provided below.
NOW, THEREFORE, in consideration of the above
premises, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged,
the parties hereby agree as follows:
1. Defined Terms. Any and all initially capitalized
terms used in this Amendment shall have the respective
meanings assigned thereto in the Primary Loan Agreement.
2. Amendments to Primary Loan Agreement and Related
Loan Documents.
A. Amendments to Primary Loan Agreement. The
Primary Loan Agreement is hereby amended as follows:
(1) Amendments to Definitions. The
following new definitions are added to the Primary Loan
Agreement in appropriate alphabetical order:
"Collateral Agent" means Bank of America
National Trust and Savings Association
in its capacity as the Collateral Agent
for the Banks hereunder and for the
Supplemental Loan Agreement Banks.
"Intercreditor Agreement" means that certain
Intercreditor and Collateral Agency Agreement
dated as of March 13, 1997, by and among the
parties hereto, the Subsidiaries that
executed the Subsidiary Guaranty, the parties
to the Supplemental Loan Agreement and the
Collateral Agent.
"Supplemental Loan Agreement" means the
Supplemental Reducing Revolving Loan
Agreement dated as of March 13, 1997, by
and among the Borrowers, the banks whose
names are set forth on the signature
pages thereof, and Bank of America
National Trust and Savings Association,
as Managing Agent for such banks, as
either originally executed or as such
47
<PAGE>
agreement may from time to time be supplemented,
modified, amended, restated or extended.
"Supplemental Loan Agreement Banks"
means, collectively, the banks that are
parties to the Supplemental Loan
Agreement.
The definition of "Loan Documents" is hereby amended by
adding therein the words ", the Intercreditor Agreement"
immediately after the word "Certificate" appearing on the
seventh line of such definition.
(2) Amendment to Events of Default
Provision. Section 9.1(m) of the Primary Loan Agreement is
hereby amended to read in full as follows:
"(m) The occurrence of an Event of
Default (as such term is defined in the
TEGP Loan Agreement) under the TEGP
Initial Loan Agreement or the occurrence
of an Event of Default (as such term is
defined in the Supplemental Loan
Agreement) under the Supplemental Loan
Agreement; or"
B. Amendments to Security Agreement. The
Security Agreement is hereby amended as follows:
(1) Amendment to Preamble. The Preamble is
hereby amended by deleting all the words appearing after the
word "Association" on the eleventh line and by substituting
the following therefor:
", as the Collateral Agent for the ratable
benefit of (i) each of the Banks which are parties
to the Loan Agreement referred to below from time
to time and (ii) each of the Banks which are
parties to the Supplemental Loan Agreement
referred to in the foregoing Loan Agreement from
time to time, as Secured Party, with reference to
the following facts:"
(2) Amendment to Definition of Collateral.
The definition of "Collateral" is hereby amended such that
the proviso at the end of such definition shall read in full
as follows:
"provided that the term 'Collateral', as
used in this Agreement, shall not
include the following: (i) interests
pledged pursuant to the Pledge Agreement
48
<PAGE>
(Nevada Gaming) or the Pledge Agreement (General);
(ii) the Real Property or any interest therein; or
(iii) in respect of the Obligations under and as
defined in the Supplemental Loan Agreement that
are secured hereby, any gaming equipment located
in the State of Missouri of any of the Grantors."
(3) Amendment to Definition of Secured
Obligations. The definition of "Secured Obligations" is
hereby amended to read in full as follows:
"Secured Obligations" means,
collectively: (i) any and all present
and future Obligations under the Loan
Agreement of any type or nature of
Grantors or any one or more of them to
the Managing Agent, the Banks, and any
one or more of them, arising under or
relating to the Loan Documents or any
one or more of them, whether due or to
become due, matured or unmatured,
liquidated or unliquidated, or
contingent or noncontingent, including
Obligations of performance as well as
Obligations of payment under the Loan
Agreement, and including interest that
accrues after the commencement of any
bankruptcy or insolvency proceeding by
or against any Grantor; and (ii) any and
all present and future Obligations under
the Supplemental Loan Agreement of any
type or nature of Grantors or any one or
more of them to the Managing Agent under
the Supplemental Loan Agreement, the
Banks under the Supplemental Loan
Agreement, and any one or more of them,
arising under or relating to the Loan
Documents entered into in connection
with the Supplemental Loan Agreement, or
any or more of them, whether due or to
become due, matured or unmatured,
liquidated or unliquidated, or
contingent or noncontingent, including
Obligations of performance under the
Supplemental Loan Agreement as well as
Obligations of payment under the
Supplemental Loan Agreement, and
including interest that accrues after
the commencement of any bankruptcy or
insolvency proceeding by or against any
Grantor.
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<PAGE>
(4) Amendment to Definition of Secured
Party. The definition of "Secured Party" is hereby amended
to read in full as follows:
"Secured Party" means the Collateral
Agent, who shall hold the Liens
andsecurity interests granted hereunder
for the ratable benefit of (i) each of
the Banks which are parties to the Loan
Agreement from time to time and
(ii) each of the Banks which are parties
to the Supplemental Loan Agreement from
time to time. Subject to the terms and
conditions of the Intercreditor
Agreement, any right, remedy, privilege
or power of Secured Party shall be
exercised by the Collateral Agent.
(5) Amendment to Exhibit A. Exhibit A to
the Security Agreement (the Instrument of Joinder) is hereby
amended to read in full as set forth in Attachment "A" to
this Amendment.
C. Amendments to Trademark Collateral
Assignments. The Trademark Collateral Assignment is hereby
amended as follows:
(1) Amendment to Preamble. The Preamble is
hereby amended by deleting all the words appearing after the
word "Association" on the eleventh line thereof and by
substituting the following therefor:
", as the Collateral Agent for the ratable
benefit of (i) each of the Banks which are parties
to the Loan Agreement referred to below from time
to time, and (ii) each of the Banks which are from
time to time parties to the Supplemental Loan
Agreement (as at any time amended, the
"Supplemental Loan Agreement") dated as of March
13, 1997, among the Borrowers described herein,
certain of the Banks under the Loan Agreement, and
Bank of America National Trust and Savings
Association, as Managing Agent, as Secured Party,
with reference to the following facts:"
(2) Amendment to Definition of Secured
Obligations. The definition of "Secured Obligations" is
hereby amended to read in full as follows:
50
<PAGE>
"Secured Obligations" means,
collectively: (i) any and all present
and future Obligations of any type or
nature of Grantors or any one or more of
them to the Managing Agent, the Banks,
and any one or more of them, arising
under or relating to the Loan Documents
entered into in connection with the Loan
Agreement or any one or more of them,
whether due or to become due, matured or
unmatured, liquidated or unliquidated,
or contingent or noncontingent,
including Obligations of performance as
well as Obligations of payment under
such Loan Documents, and including
interest that accrues after the
commencement of any bankruptcy or
insolvency proceeding by or against any
Grantor; and (ii) any and all present
and future Obligations of any type or
nature of Grantors or any one or more of
them to the Managing Agent under the
Supplemental Loan Agreement, the Banks
under the Supplemental Loan Agreement,
and any one or more of them, arising
under or relating to the Loan Documents
entered into in connection with the
Supplemental Loan Agreement, or any one
or more of them, whether due or to
become due, matured or unmatured,
liquidated or unliquidated, or
contingent or noncontingent, including
Obligations of performance as well as
Obligations of payment under the
Supplemental Loan Agreement, and
including interest that accrues after
the commencement of any bankruptcy or
insolvency proceeding by or against any
Grantor.
(3) Amendment to Definition of "Secured
Party". The definition of "Secured Party" is hereby amended
to read in full as follows:
"Secured Party" means the Collateral Agent
who shall receive and hold the assignments made
hereunder for the ratable benefit of (i) each of
the Banks which are parties to the Loan Agreement
from time to time and (ii) each of the Banks which
are parties to the Supplemental Loan Agreement
from time to time. Subject to the terms and
conditions of the Intercreditor Agreement, any
51
<PAGE>
right, remedy, privilege, or power of Secured
Party shall be exercised by the Collateral Agent.
(4) Amendment to Exhibit A. Exhibit A to
the Trademark Collateral Assignment (the Instrument of
Joinder) is hereby amended to read in full as set forth on
Attachment "B" to this Amendment.
D. Amendment to Pledge Agreement (Nevada
Gaming). The Pledge Agreement (Nevada Gaming) is hereby
amended as follows:
(1) Amendment to Preamble. The Preamble is
hereby amended by deleting the words "Managing Agent under
the Loan Agreement hereafter referred to above [sic]"
appearing on the fifth and sixth lines thereof and by
substituting therefor the words "Collateral Agent."
(2) Amendment to Definition of Secured
Party. The definition of Secured Party is hereby amended
to read in full as follows:
"Secured Party" means the Collateral Agent,
which shall hold the pledges and security
interests granted hereunder for the ratable
benefit of each of the Banks which are parties to
the Loan Agreement and the Supplemental Loan
Agreement from time to time. Subject to the terms
hereof and of the Intercreditor Agreement, any
right, remedy, privilege or power of Secured Party
shall be exercised by the Collateral Agent acting
with the consent of the Requisite Banks."
E. Amendments to Pledge Agreement (General).
The Pledge Agreement (General) is hereby amended as follows:
(1) Amendment to Preamble. The Preamble is
hereby amended by deleting all the words appearing after the
word "Association" on the tenth line and by substituting the
following therefor:
", as the Collateral Agent for the ratable
benefit of (i) each of the Banks which are parties
to the Loan Agreement referred to below from time
to time and (ii) each of the Banks which are from
time to time parties to the Supplemental Reducing
Revolving Loan Agreement (as at any time amended,
the "Supplemental Loan Agreement") dated as of
March 13, 1997, among the Borrowers, certain of
the Banks party to the Loan Agreement, and Bank of
America National Trust and Savings Association, as
Managing Agent, as Secured Party, with reference
to the following facts:"
52
<PAGE>
(2) Amendment to Definition of Pledged
Collateral. The definition of "Pledged Collateral" is
hereby amended by adding the following proviso therein at
the end of such definition:
"; provided, however, for the
purposes of the Obligations of the
Grantors under the Supplemental Loan
Agreement secured hereby, no portion of
the capital stock of Aztar Missouri
Gaming Corporation, a Missouri
corporation, shall constitute part of
the Pledged Collateral hereunder."
(3) Amendment to Definition of Secured
Party. The definition of "Secured Party" is hereby amended
to read in full as follows:
"Secured Party" means the
Collateral Agent, which shall hold the
pledges and security interests granted
hereunder for the ratable benefit of
(i) each of the Banks which are parties
to the Loan Agreement from time to time
and (ii) each of the Banks which are
parties to the Supplemental Loan
Agreement from time to time. Subject to
the terms and conditions of the
Intercreditor Agreement, any right,
remedy, privilege or power of Secured
Party shall be exercised by the
Collateral Agent.
(4) Amendment to Secured Obligations
Provision. Section 4 of the Pledge Agreement (General) is
hereby amended to read in full as follows:
"4. Security for Obligations. This
Agreement and the pledge and security interests
granted herein secure the prompt payment, in full
in cash, and full performance of: (i) all
Obligations under the Loan Agreement, whether for
principal, interest, fees, expenses or otherwise,
including, without limitation, all Obligations of
Borrowers now or hereafter existing under the Loan
Documents entered into in connection with the Loan
Agreement, all Obligations of Grantors now or
hereafter existing under this Agreement and all
interests that accrues on all or any part of any
of the Obligations of Borrowers and/or Grantors
under the Loan Agreement after the filing of any
petition or pleading against any Borrower, Grantor
53
<PAGE>
or any other Person for a proceeding under any
Debtor Relief Law; and (ii) all Obligations under
the Supplemental Loan Agreement, whether for
principal, interest, fees, expenses or otherwise,
including, without limitation, all Obligations of
Borrowers now or hereafter existing under the Loan
Documents entered into in connection with the
Supplemental Loan Agreement, all Obligations of
Grantors now or hereafter existing under this
Agreement, and all interest that accrues on all or
any part of any of the Obligations of Borrowers
and/or Grantors after the filing of any petition
or pleading against any Borrower, Grantor or any
other Person for a proceeding under any Debtor
Relief Law."
F. Amendment to Ramada Express Deed of Trust.
The Ramada Express Deed of Trust is hereby amended as
follows:
(1) Amendment to Description of Beneficiary.
The Preamble is hereby amended by deleting the words
"'Managing Agent'" appearing immediately after the word "as"
on the seventh line and by substituting therefor the words
"as 'Collateral Agent.'" The Preamble is hereby further
amended by adding therein, immediately prior to the word
"as" appearing on the ninth line and prior to the
parenthetical, the words "and for the Banks which are
parties to the Supplemental Reducing Revolving Loan
Agreement (as at any time amended, the "Supplemental Loan
Agreement") dated as of March 13, 1997, among the Borrowers,
certain of the Banks party to the Loan Agreement, and Bank
of America National Trust and Savings Association, as
Managing Agent."
(2) Amendment to Secured Obligations
Provision. Section 1.2.1(a) is hereby amended by adding
therein a new clause (viii) as follows:
"(viii) payment and performance of
all obligations of the Borrowers under
the Supplemental Loan Agreement and
under all other Loan Documents described
in the Supplemental Loan Agreement and
entered into in connection therewith;"
G. Amendments to Caruthersville Project Deed of
Trust. The deed of trust dated as of January 31, 1995
executed by AMGC with respect to the Caruthersville Project
is hereby amended as follows:
54
<PAGE>
(1) Amendment to Legend Regarding Total
Principal Amount. The legend appearing on the first page is
hereby amended by deleting the reference to $212,477,346.14"
and substituting therefor a reference to $237,477,346.14".
(2) Amendment to Description of Mortgagee.
The Preamble is hereby amended by deleting the words
"'Managing Agent'" appearing immediately after the word "as"
on the seventh line thereof and by substituting therefor the
words "'Collateral Agent.'" The Preamble is hereby further
amended by adding therein, immediately prior to the word
"as" appearing on the eighth line and prior to the
parenthetical, the words "and for the Banks which are from
time to time parties to the Supplemental Reducing Revolving
Loan Agreement (as at any time amended, the "Supplemental
Loan Agreement") dated as of March 13, 1997, among
Borrowers, certain of the Banks party to the Loan Agreement,
and Bank of America National Trust and Savings Association,
as Managing Agent."
(3) Amendment to Description of Collateral.
Section 1.1(e) is hereby amended by adding the following
therein after the semicolon appearing on the penultimate
line of such Section:
"provided, however, for the purposes of the
Obligations under and as defined in the Supplemental
Loan Agreement that are secured hereby, neither this
Section 1.1(e) nor any other provision of this Deed of
Trust shall be deemed to encumber any gaming equipment
of Trustor located in the State of Missouri;"
(4) Amendment to Secured Obligations
Provision. Section 1.2.1(a) is hereby amended by adding the
following therein, immediately after the word "Beneficiary"
appearing on the sixth line:
", as amended by that certain
Omnibus Documents Amendment and
Collateral Assignment dated as of
March 13, 1997."
Section 1.2.1(a) is hereby further amended by deleting the
word and immediately prior to clause (ix) and by adding
therein a new clause (x) as follows:
"(x) payment and performance of all
obligations of any Borrower under the
Supplemental Loan Agreement and under
any other Loan Document described
therein and entered into in connection
therewith;"
55
<PAGE>
(5) Additional Amendment to Secured
Obligations Provision. Section 1.2.2 is hereby amended by
deleting the reference to $212,477,346.14" and by
substituting the following therefor:
the sum of (i) $212,477,346.14, in respect of the
Reducing Revolving Loan Agreement, and (ii) up to
$25,000,000, in respect of the Supplemental Loan
Agreement,
H. Amendments to Caruthersville Project First
Preferred Ship Mortgage. The First Preferred Ship Mortgage
dated as of August 14, 1995, made by AMGC in favor of the
Primary Loan Agreement Managing Agent with respect to the
Caruthersville Project is hereby amended as follows:
(1) Amendments to the Recitals. Recital A
is hereby amended by adding the following therein at the end
of such Recital:
", and pursuant to the Supplemental
Loan Agreement (as defined below), the
Banks therein named have provided the
Borrowers with a supplemental secured
reducing revolving credit facility in a
principal amount of up to $25,000,000.
As used herein, the term "Supplemental
Loan Agreement" means the Supplemental
Reducing Revolving Loan Agreement, as at
any time amended, dated as of March 13,
1997, among Borrowers, certain of the
Banks party to the Loan Agreement, and
Bank of America National Trust and
Savings Association, as Managing Agent."
Recital B is hereby amended to read as follows:
"B. Owner has guaranteed all of
Borrowers' obligations under the
Reducing Revolving Loan Agreement and
under the Supplemental Loan Agreement
pursuant to that certain Subsidiary
Guaranty ('Guaranty'), dated as of
October 4, 1994 executed by Owner and
the other signatories thereto in favor
of Lender, a copy of which is attached
hereto as Exhibit A, as amended by that
certain Omnibus Documents Amendment and
Collateral Assignment dated as of
March 13, 1997, executed by Owner and
certain of its affiliates in favor of
the Collateral Agent."
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<PAGE>
Recital F is hereby amended to read in full as follows:
"F. The total amount of this
Preferred Mortgage is equal to the sum
of (i) $207,477,345.14 plus interest, in
respect of the Borrowers' obligations
under the Reducing Revolving Loan
Agreement, and (ii) up to $25,000,000
plus interest, in respect of the
Borrowers' obligations under the
Supplemental Loan Agreement, and
performance of mortgage covenants, and
the discharge amount is the same as the
total amount."
(2) Additional Amendments to Amount of
Secured Obligations. The following words are added to the
"Agreement" section, in the first full paragraph on page 3
on the fifth line thereof immediately after the reference to
the word "interest":
", in respect of Borrowers'
obligations under the Reducing Revolving
Loan Agreement and the related Loan
Documents, and up to $25,000,000 and
interest, in respect of Borrowers'
obligations under the Supplemental Loan
Agreement and the related Loan
Documents".
In addition, Article IV is hereby amended to add the
following therein after the reference to "$207,477,346.14"
appearing on the fourth line of the second paragraph
thereof:
", in respect of Borrowers' obligations under
the Reducing Revolving Loan Agreement and the
related Loan Documents, and up to $25,000,000, in
respect of Borrowers' obligations under the
Supplemental Loan Agreement and the related Loan
Documents".
I. Amendments to Evansville Project Mortgage.
The mortgage dated as of March 31, 1996 made by AIGC in
favor of the Primary Loan Agreement Managing Agent with
respect to the Evansville Project is hereby amended as
follows:
(1) Amendment to Definition of Mortgagee.
The preamble to the Evansville Project Deed of Trust is
hereby amended by deleting the words "'Managing Agent'" in
the sixth line thereof and substituting therefor the words
"Collateral Agent", and by adding the following words after
57
<PAGE>
the reference to "Agreement)" on the eighth line thereof:
"and for the Banks which are parties to the
Supplemental Reducing Revolving Loan Agreement (as
at any time amended, the "Supplemental Loan
Agreement") dated as of March 13, 1997, among
Borrowers, certain of the Banks party to the Loan
Agreement, and Bank of America National Trust and
Savings Association, as Managing Agent,"
(2) Amendment to Secured Obligation
Provision. Section 1.2.1(a) is hereby amended by adding
therein after the reference to "Mortgagee" appearing on the
sixth line thereof the following:
"as amended by that certain Omnibus
Collateral Documents Amendment and Collateral
Assignment (as defined in the Loan Agreement)".
In addition, Section 1.2.1(a) is hereby further amended by
deleting the word and immediately prior to clause (viii) and
adding therein a new clause (ix) as follows:
"(ix) Mortgagor's guaranty of payment of all
amounts owing by Borrowers under the Supplemental
Loan Agreement and under any other Loan Documents
as defined in the Supplemental Loan Agreement and
entered into in connection therewith;"
J. Amendments to Evansville Project Leasehold
Mortgage. The Leasehold Mortgage dated as of March 31, 1996
made by AIGC in favor of the Primary Loan Agreement Managing
Agent in respect of the Evansville Project is hereby amended
as follows:
(1) Amendment to Preamble. The Preamble is
hereby amended by deleting the words "Managing Agent" in the
fifth line thereof and substituting therefor the words
"Collateral Agent" and by adding the following therein after
the reference to "Agreement)" appearing on the seventh line:
"and for the Banks which are parties to the
Supplemental Reducing Revolving Loan Agreement (as
at any time amended, the "Supplemental Loan
Agreement") dated as of March 13, 1997, among
Borrowers, certain of the Banks party to the Loan
Agreement, and Bank of America National Trust and
Savings Association, as Managing Agent."
(2) Amendment to Secured Obligations
Provision. Section 1.2.1(a) is hereby amended by deleting
the word and immediately prior to clause (viii) and adding
therein a new clause (ix) therein as follows:
58
<PAGE>
"(ix) payment and performance of all
obligations of any Borrower under the Supplemental
Loan Agreement or under any other Loan Document
defined therein and entered into in connection
therewith;"
K. Amendments to Evansville Project Assignment
of Leases and Rents. The Assignment of Leases and Rents
dated as of March 31, 1996 made by AIGC in favor of the
Primary Loan Agreement Managing Agent in respect of the
Evansville Project is hereby amended as follows:
(1) Amendment to Preamble. The Preamble is
hereby amended by deleting the words "Managing Agent" in the
fifth line of the second paragraph thereof and substituting
therefor the words "Collateral Agent", and by adding the
following therein after the reference to "Agreement)"
appearing on the seventh line of the second paragraph
thereof:
"and for the Banks which are parties to the
Supplemental Reducing Revolving Loan Agreement
(as at any time amended, the "Supplemental Loan
Agreement") dated as of March 13, 1997, among
Borrowers, certain of the Banks party to the Loan
Agreement, and Bank of America National Trust and
Savings Association, as Managing Agent".
(2) Amendment to Secured Obligations
Provision. Paragraph 1 appearing on pages 2 and 3 is hereby
amended by deleting the word "and" immediately prior to
clause (viii) and adding therein a new clause (ix) as
follows:
"(ix) payment and performance of all
obligations of any Borrower under the Supplemental
Loan Agreement or under any other Loan Document
defined in and entered into in connection with the
Supplemental Loan Agreement;"
L. Amendments to Evansville Project First
Preferred Ship Mortgage. First Preferred Ship Mortgage
dated as of February 29, 1996 made by AIGC in favor of the
Primary Loan Agreement Managing Agent is hereby amended as
follows:
(1) Amendments to the Recitals. Recital A
is hereby amended by deleting the period at the end of such
Recital and by adding the following at the end of such
Recital:
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<PAGE>
", and pursuant to the Supplemental
Reducing Revolving Loan Agreement (as at
any time amended, the "Supplemental Loan
Agreement") dated as of March 13, 1997,
among the Borrowers, certain of the
Banks under the Loan Agreement, and Bank
of America National Trust and Savings
Association, as Managing Agent, the
Banks therein named have provided
Borrowers with a supplemental secured
reducing revolving credit facility in a
principal amount of up to $25,000,000."
Recital B is hereby amended to read in full as follows:
"B. Owner has guaranteed all of
Borrowers' obligations under the
Reducing Revolving Loan Agreement and
under the Supplemental Loan Agreement
pursuant to that certain Subsidiary
Guaranty ("Guaranty"), dated as of
October 4, 1994 executed by Owner and
the other signatories thereto in favor
of Lender, a copy of which is attached
hereto as Exhibit A, as amended by that
certain Omnibus Documents Amendment and
Collateral Assignment executed by Owner
and certain of its affiliates in favor
the Managing Agent.
Recital F is hereby amended to read in full as follows:
"F. The total amount of this
Preferred Mortgage is equal to the sum
of (i) $207,477,345.14 plus interest, in
respect of the Borrowers' obligations
under the Reducing Revolving Loan
Agreement, and (ii) up to $25,000,000
plus interest, in respect of the
Borrowers' obligations under the
Supplemental Loan Agreement, and
performance of mortgage covenants, and
the discharge amount is the same as the
total amount."
(2) Additional Amendment to Amount of
Secured Obligations. The following words are added to the
"Agreement" section, in the first full paragraph on page 3
on the fifth line thereof immediately after the reference to
the word "interest":
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<PAGE>
", in respect of Borrowers' obligations under
the Reducing Revolving Loan Agreement and the
related Loan Documents and up to $25,000,000 and
interest, in respect of Borrowers' obligations
under the Supplemental Loan Agreement and the
related Loan Documents".
In addition, Article IV is hereby amended to add the
following therein after the reference to "$207,477,346.14"
appearing on the fourth line of the second paragraph
thereof:
", in respect of Borrowers' obligations under
the Reducing Revolving Loan Agreement and the
related Loan Documents, and up to $25,000,000, in
respect of Borrowers' obligations under the
Supplemental Loan Agreement and the related Loan
Documents".
M. Amendments to Mortgage on Ventnor and Egg
Harbor Properties. The Mortgage dated as of December 2,
1994 and made by ANJI, ADI, MMI and RNJI in favor of the
Primary Loan Agreement Managing Agent in respect of the
Block C-9 Lots located in the cities of Ventnor and Egg
Harbor, New Jersey is hereby amended as follows:
(1) Amendment to Preamble. The Preamble is
hereby amended by deleting the words "Managing Agent"
appearing on the eighth line and substituting therefor the
words "Collateral Agent", and by adding the following words
immediately prior to the word "as" appearing on the tenth
line thereof:
", and the Banks that are parties to the
Supplemental Reducing Revolving Loan Agreement (as
at any time amended, the "Supplemental Loan
Agreement") dated as of March 13, 1997, among
Borrowers, certain of the Banks party to the Loan
Agreement, and Bank of America National Trust and
Savings Association, as Managing Agent".
(2) Amendment to Secured Obligations
Provisions. Section 1.2.1(a) is hereby amended by deleting
the word and immediately prior to clause (viii) and adding
therein a new clause (ix) as follows:
"(ix) payment and performance of all
obligations of ANJI and the other Borrowers under
the Supplemental Loan Agreement and under any
other Loan Document as defined in, and entered
into in connection with, the Supplemental Loan
Agreement;"
61
<PAGE>
Section 1.2.2(a) is hereby amended by deleting the word and
immediately prior to clause (viii) and adding therein a new
clause (ix) as follows:
(ix) payment and performance of all obligations of
ADI under the Guaranty with respect to the
obligations of Borrowers under the Supplemental
Loan Agreement and under any other Loan Documents
as defined in, and entered into in connection
with, the Supplemental Loan Agreement;
Section 1.2.3(a) is hereby amended by deleting the word and
immediately prior to clause (viii) and adding therein a new
clause (ix) as follows:
(ix) payment and performance of all obligations of
MMI under the Guaranty with respect to the
obligations of Borrowers under the Supplemental
Loan Agreement and under any other Loan Documents
as defined in, and entered into in connection
with, the Supplemental Loan Agreement;
Section 1.2.4(a) is hereby amended by deleting the word and
immediately prior to clause (viii) and adding therein a new
clause (ix) as follows:
(ix) payment and performance of all obligations of
RNJI under the Guaranty with respect to the
obligations of Borrowers under the Supplemental
Loan Agreement and under any other Loan Documents
as defined in, and entered into in connection
with, the Supplemental Loan Agreement;
N. Amendments to the Assignment of Leases,
Rents, Income and Profits for the Ventnor and Egg Harbor
Properties. The Assignment of Leases, Rents, Income and
Profits dated as of December 2, 1994 made by ANJI, ADI, MMI
and RNJI in favor of the Primary Loan Agreement Managing
Agent in respect of the Ventnor and Egg Harbor, New Jersey
Properties is hereby amended as follows:
(1) Amendment to Preamble. The Preamble is
hereby amended by deleting the words "Managing Agent"
appearing on the fifth line of the second paragraph thereof
and substituting therefor the words "Collateral Agent", and
by adding the following words therein after the reference to
"Agreement)" appearing on the seventh line of the second
paragraph thereof:
62
<PAGE>
", and the Banks that are parties to the
Supplemental Reducing Revolving Loan Agreement (as
at any time amended, the "Supplemental Loan
Agreement") dated as of March 13, 1997, among
Borrowers, certain of the Banks party to the Loan
Agreement, and Bank of America National Trust and
Savings Association, as Managing Agent".
(2) Amendments to ANJI Secured Obligation
Provisions. Paragraph 1 of the assignment purpose provision
making reference to ANJI is hereby amended by deleting the
word and immediately prior to clause (viii) thereof and
adding a new clause (ix) therein as follows:
(ix) payment and performance of all obligations of
ANJI and the other Borrowers under the
Supplemental Loan Agreement and under each Loan
Document defined therein and entered into in
connection therewith;"
(3) Amendments to Other Secured Obligation
Provisions. Paragraph 1 of the assignment purpose
provisions making reference to ADI, MMI and RNJI are each
hereby amended by deleting the word and immediately prior to
clause (viii) thereof and adding a new clause (ix) therein
as follows:
(ix) payment and performance of all obligations of
ADI, MMI and RNJI under the Guaranty as it relates
the obligations of the Borrowers under the
Supplemental Loan Agreement and under each Loan
Document defined therein and entered into in
connection therewith;"
O. Amendment to the Mortgage for Atlantic City
Casinos, Garage and Transportation Center. The Mortgage,
dated as of December 2, 1994, made by ANJI, ADI and AGC in
favor of the Primary Loan Agreement Managing Agent relating
to the Atlantic City Casinos, Garage and Transportation
Center is hereby amended as follows:
(1) Amendment to Definition of Beneficiary.
The Preamble is hereby amended by deleting the words
"'Managing Agent'" appearing immediately after the word "as"
on the seventh line thereof and by substituting therefor the
words "'Collateral Agent.'" The Preamble is hereby further
amended by adding therein, immediately prior to the word
"as" appearing on the ninth line, the words "and for the
Banks which are parties to the Supplemental Reducing
Revolving Loan Agreement (as at any time amended, the
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<PAGE>
"Supplemental Loan Agreement") dated as of March 13, 1997,
among Borrowers, certain of the Banks party to the Loan
Agreement, and Bank of America National Trust and Savings
Association, as Managing Agent."
(2) Amendment to Secured Obligations
Provisions. Section 1.2.1 (a) is hereby amended by deleting
the word and immediately prior to clause (viii) thereof and
adding therein a new clause (ix) as follows:
(ix) payment and performance of all obligations of
ANJI and the other Borrowers under the
Supplemental Loan Agreement and under any other
Loan Document as defined in, and entered into in
connection with, the Supplemental Loan Agreement;"
Section 1.2.2(a) is hereby amended by deleting the word and
immediately prior to clause (viii) and adding therein a new
clause (ix) as follows:
(ix) payment and performance of all obligations of
ADI under the Guaranty with respect to the
obligations of Borrowers under the Supplemental
Loan Agreement and under any other Loan Documents
as defined in, and entered into in connection
with, the Supplemental Loan Agreement;
Section 1.2.3(a) is hereby amended by deleting the word and
immediately prior to clause (viii) and adding therein a new
clause (ix) as follows:
(ix) payment and performance of all obligations of
AGC under the Guaranty with respect to the
obligations of Borrowers under the Supplemental
Loan Agreement and under any other Loan Documents
as defined in, and entered into in connection
with, the Supplemental Loan Agreement;
P. Amendments to the Assignment of Leases,
Rents, Income and Profits for Atlantic City Casinos, Garage
and Transportation Center. The Assignment of Leases, Rents,
Income and Profits dated as of December 2, 1994 made by
ANJI, ADR and AGC in favor of the Primary Loan Agreement
Managing Agent relating to the Atlantic City Casinos, Garage
and Transportation Center is hereby amended as follows:
(1) Amendment to Preamble. The Preamble is
hereby amended by deleting the words "Managing Agent"
appearing on the fifth line of the second paragraph thereof
and by adding the following words therein after the
reference to "Agreement)" appearing on the seventh line of
the second paragraph thereof:
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<PAGE>
", and the Banks that are parties to the
Supplemental Reducing Revolving Loan Agreement (as
at any time amended, the "Supplemental Loan
Agreement") dated as of March 13, 1997, among
Borrowers, certain of the Banks party to the Loan
Agreement, and Bank of America National Trust and
Savings Association, as Managing Agent".
(2) Amendment to ANJI Secured Obligations
Provisions. Paragraph 1 of the assignment purpose
provisions contained in such document is hereby amended by
deleting the word and immediately prior to clause (viii)
thereof and adding therein a new clause (ix) as follows:
(ix) payment and performance of all obligations of
ANJI and the other Borrowers under the
Supplemental Loan Agreement and under any other
Loan Document as defined therein or entered into
in connection therewith;"
(3) Amendments to Other Secured Obligation
Provisions. Paragraph 1 of the assignment purpose
provisions making reference to ADR and AGC are each hereby
amended by deleting the word and immediately prior to clause
(viii) thereof and adding a new clause (ix) therein as
follows:
(ix) payment and performance of all obligations of
ADR and AGC under the Guaranty as it relates to
the obligations of the Borrowers under the
Supplemental Loan Agreement and under each Loan
Document defined therein and entered into in
connection therewith;"
Q. Amendments to Subsidiary Guaranty. The
Subsidiary Guaranty is hereby amended as follows:
(1) Amendment to Preamble. The Preamble is
hereby amended by deleting the words "Managing Agent"
appearing on the eighth line and by substituting therefor
the words "Collateral Agent", and by adding the following
words after the word "below" appearing on the penultimate
line thereof:
", and the Banks that are parties to the
Supplemental Loan Agreement referred to below".
(2) Amendment to Recitals. Recital A is
hereby amended by adding the following to the end of such
Recital:
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<PAGE>
", and pursuant to that certain Supplemental
Reducing Revolving Loan Agreement dated as of
March 13, 1997, among the Borrowers, the Banks
therein named, and Bank of America National Trust
and Savings Association, as Managing Agent (such
Supplemental Reducing Revolving Loan Agreement, as
it may hereinafter be amended, extended, renewed,
supplemented, or otherwise modified from time to
time, being the "Supplemental Loan Agreement"),
the Banks which are parties thereto are making
certain credit facilities available to Borrowers.
(3) Amendment to Guarantied Obligations
Definition. The definition of "Guarantied Obligations" is
hereby amended by adding the following words therein after
the reference to "Loan Documents" on the fourth line of such
definition:
"described in the Reducing Revolving Loan
Agreement or under one or more of the Loan
Documents described in the Supplemental Loan
Agreement".
(4) Amendment to Definition of Lender. The
definition of "Lender" is hereby amended to read in full as
follows:
"Lender" means the Collateral Agent, the Banks
parties to the Reducing Revolving Loan Agreement,
and the Banks parties to the Supplemental Loan
Agreement, and each of them, and any one or more
of them. Subject to the terms of the
Intercreditor Agreement, any right, remedy,
privilege or power of Lender may be exercised by
the Collateral Agent, by the Requisite Banks under
the Reducing Revolving Loan Agreement, or by any
Bank party to the Reducing Revolving Loan
Agreement acting with the consent of such
Requisite Banks.
(5) Amendment to Exhibit A. Exhibit A to
the Subsidiary Guaranty (the Instrument of Joinder) is
hereby amended to read in full as set forth on Attachment
"C" to this Amendment.
3. Assignment of Collateral Documents and Subsidiary
Guaranty to the Collateral Agent. Pursuant and subject to
the terms of the Intercreditor Agreement, the Banks under
the Primary Loan Agreement and the Banks under the
Supplemental Loan Agreement have appointed the Collateral
Agent to act as their agent for purposes of, inter alia, (i)
holding and enforcing the collateral and security interests
granted by the Borrowers and the Subsidiary Guarantors for
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<PAGE>
the ratable benefit of such Banks under the Loan Documents
referred to in such Intercreditor Agreement, and (ii)
holding and enforcing the Subsidiary Guaranty. In
furtherance of such appointment, the Managing Agent under
the Primary Loan Agreement hereby assigns and transfers,
without recourse, to the Collateral Agent, and the
Collateral Agent hereby accepts and assumes, without
recourse, from such Managing Agent, all of the Managing
Agent's rights and obligations under each of the Collateral
Documents described in the Primary Loan Agreement and under
the Subsidiary Guaranty (collectively, the "Assigned
Agreements"). From and after the date hereof, (i) the
Collateral Agent shall be deemed to be a party to and bound
by the provisions of the Assigned Agreements and shall have
the rights and obligations of the Managing Agent thereunder
and in connection therewith, and (ii) the Managing Agent
shall relinquish its rights and be released from its
obligations under the Assigned Agreements, except the
Managing Agent shall continue to have the benefit of any
indemnities and similar rights provided in the Assigned
Agreements with respect to actions taken by it prior to the
date hereof.
4. Otherwise Not Affected. Except as expressly
amended and supplemented by this Amendment, the terms and
conditions of the Assigned Agreements, the Loan Documents
relating to the Primary Loan Agreement and the Loan
Documents relating to the Supplemental Loan Agreement shall
remain unaltered, are hereby reaffirmed, and shall continue
in full force and effect.
IN WITNESS WHEREOF, the parties have executed this
Amendment by their respective duly authorized officers as of
the date first above written.
AZTAR CORPORATION
By_________________________________
Neil Ciarfalia
Treasurer
ADAMAR OF NEW JERSEY, INC.
By_________________________________
Neil Ciarfalia
Treasurer
RAMADA EXPRESS, INC.
By________________________________
Title:____________________________
67
<PAGE>
AZTAR INDIANA GAMING CORPORATION,
an Indiana corporation
By________________________________
Title:____________________________
AZTAR MISSOURI GAMING CORPORATION,
a Missouri corporation
By________________________________
Title:____________________________
ATLANTIC DEAUVILLE, INC., a New
Jersey Corporation
By________________________________
Title:____________________________
ADAMAR GARAGE CORPORATION, a
Delaware corporation
By________________________________
Title:____________________________
The Managing Agent for the Primary
Loan Agreement Banks:
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as a Primary
Loan Agreement Bank and as Managing
Agent for such Banks
By_________________________________
Patrick Carroll
Vice President
68
<PAGE>
Managing Agent for the Supplemental
Loan Agreement Banks:
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as a
Supplemental Loan Agreement Bank
and as Managing Agent for such
Banks
By_________________________________
Patrick Carroll
Vice President
Collateral Agent:
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Collateral
Agent for the Primary Loan
Agreement Banks and for the
Supplemental Loan Agreement Banks
By__________________________
Patrick Carroll
Vice President
69
<PAGE>
State of California )
)
County of Los Angeles )
On March __, 1997, before me, __________________________,
Notary Public, personally appeared ________________________,
___ personally known to me or ___ proved to me on the basis
of satisfactory evidence to be the person(s) whose name(s)
is/are subscribed to the within instrument and acknowledged
to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s), or the entity
upon behalf of which the person(s) acted, executed the
instrument.
WITNESS my hand and official seal.
_______________________________
70
<PAGE>
State of California )
)
County of Los Angeles )
On March __, 1997, before me, _________________________,
Notary Public, personally appeared ________________________,
___ personally known to me or ___ proved to me on the basis
of satisfactory evidence to be the person(s) whose name(s)
is/are subscribed to the within instrument and acknowledged
to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s), or the entity
upon behalf of which the person(s) acted, executed the
instrument.
WITNESS my hand and official seal.
_______________________________
71
<PAGE>
Exhibit D to Supplemental Reducing Revolving Loan Agreement
[LATHAM & WATKINS LETTERHEAD]
March 17, 1997
Bank of America National Trust and Savings
Association, as Managing Agent
555 South Flower Street, #3283
Los Angeles, California 90071
and the Banks identified on
Schedule 1 attached hereto
Re: Supplemental Reducing Revolving Loan
Agreement, dated as of March 13, 1997, among Aztar
Corporation, Adamar of New Jersey, Inc., Ramada
Express, Inc., the Banks identified on Schedule 1
attached hereto, and Bank of America National
Trust and Savings Association, as Managing Agent
Ladies and Gentlemen:
We have acted as special counsel to Aztar Corporation, a
Delaware corporation (the "Company"), and its Subsidiaries in
connection with that certain Supplemental Reducing Revolving Loan
Agreement, dated as of March 13, 1997 (the "Supplemental Loan
Agreement"), among the Company, Adamar of New Jersey, Inc.,
Ramada Express, Inc. (collectively, the "Borrowers"), the Banks
identified on Schedule 1 attached hereto, and Bank of America
National Trust and Savings Association, as Managing Agent.
This opinion is rendered to you pursuant to Section 8.1(a)(7)
of the Supplemental Loan Agreement. Capitalized terms defined in
the Supplemental Loan Agreement, used herein and not otherwise
defined herein, shall have the meanings given them in the
Supplemental Loan Agreement.
As such counsel, we have examined such matters of fact and
questions of law as we have considered appropriate for purposes
of rendering the opinions expressed below, except where a
statement is qualified as to knowledge or awareness, in which
case we have made no or limited inquiry as specified below. We
have examined, among other things, the following:
(a) the Supplemental Loan Agreement;
(b) the following documents to which the Company and/or
one or more of its subsidiaries identified in Schedule 2 (the
"Specified Subsidiaries") are party:
72
<PAGE>
(1) the Promissory Notes, dated March 13, 1997, and
payable severally and individually to each of the Banks
listed on Schedule 1 attached hereto, executed by the
Borrowers;
(2) the Omnibus Documents Amendment and Collateral
Assignment, dated as of March 13, 1997 (the "Omnibus
Amendment), executed by the Borrowers, certain of the
Specified Subsidiaries, Bank of America National Trust and
Savings Association, for itself as a Primary Loan Agreement
Bank and Managing Agent for the other Primary Loan Agreement
Banks, Bank of America National Trust and Savings
Association, for itself as a Supplemental Loan Agreement
Bank and as Managing Agent for the other Supplemental Loan
Agreement Banks, and Bank of America National Trust and
Savings Association as Collateral Agent for the Primary Loan
Agreement Banks and for the Supplemental Loan Agreement
Banks;
(c) the Intercreditor and Collateral Agency Agreement,
dated as of March 13, 1997, executed by Bank of America National
Trust and Savings Association, for itself as a Primary Loan
Agreement Bank and Managing Agent for the other Primary Loan
Agreement Banks, Bank of America National Trust and Savings
Association, for itself as a Supplemental Loan Agreement Bank and
as Managing Agent for the other Supplemental Loan Agreement
Banks, and Bank of America National Trust and Savings Association
as Collateral Agent for the Primary Loan Agreement Banks and for
the Supplemental Loan Agreement Banks;
(d) the indenture, dated as of October 8, 1992, between
the Company and Bank of America National Trust and Savings
Association, as trustee, relating to the Company's 11% Senior
Subordinated Notes Due 2002, and the indenture, dated as of
October 1, 1994, between the Company and American Bank National
Association, as trustee, relating to the Company's 13.75% Senior
Subordinated Notes Due 2004 (together, the "Subordinated Debt
Indentures"); and
(e) the Certificate of Incorporation and Bylaws (the
"Governing Documents") of the Company, and of Aztar Development
Corporation, a Delaware corporation, Adamar Garage Corporation, a
Delaware corporation, and Ramada New Jersey Holdings Corporation,
a Delaware corporation (the "Delaware Subsidiaries").
The documents described in subsections (a) - (c) above
are referred to herein collectively as the "Specified Loan
Documents." As used in this opinion, the "UCC" shall mean the
Uniform Commercial Code as now in effect in the State of
California.
73
<PAGE>
In our examination, we have assumed the genuineness of
all signatures (other than those of officers of the Company or a
Specified Subsidiary on the Specified Loan Documents), the legal
capacity of all natural persons executing documents, the
authenticity of all documents submitted to us as originals, and
the conformity to authentic original documents of all documents
submitted to us as copies.
We have been furnished with, and with your consent have
relied upon, certificates of officer(s) of the Company and the
Specified Subsidiaries with respect to certain factual matters.
In addition, we have obtained and relied upon such certificates
and assurances from public officials as we have deemed necessary.
We are opining herein as to the effect on the subject
transactions only of the federal laws of the United States, the
internal laws of the State of California, and the General
Corporation Law of the State of Delaware, and we express no
opinion with respect to the applicability thereto, or the effect
thereon, of the laws of any other jurisdiction or, in the case of
Delaware, any other laws or as to any matters of municipal law or
the laws of any other local agencies within any state.
Our opinions set forth in paragraph 4 below are based
upon our consideration of only those statutes, rules and
regulations which, in our experience, are normally applicable to
borrowers and guarantors in secured loan transactions.
Subject to the foregoing and the other matters set forth
herein, and in reliance thereon, it is our opinion that, as of
the date hereof:
1. Each of the Company and the Delaware Subsidiaries
has been duly incorporated and is validly existing and in good
standing under the laws of the State of Delaware, with corporate
power and authority to conduct its business as now conducted and
to own, or hold under lease, its assets and to enter into the
Specified Loan Documents and perform its obligations thereunder.
2. The execution, delivery and performance of the
Specified Loan Documents to which the Company or any Delaware
Subsidiary is a party have been duly authorized by all necessary
corporate action of such party, and the Specified Loan Documents
to which the Company or any Delaware Subsidiary is a party have
been duly executed and delivered by such party.
3. Each of the Specified Loan Documents to which the
Company or any Specified Subsidiary is a party constitutes a
legally valid and binding obligation of such party, enforceable
against it in accordance with its terms.
74
<PAGE>
4. The execution and delivery of the Specified Loan
Documents by the Company and the Specified Subsidiaries party
thereto, the borrowing of Loans under the Supplemental Loan
Agreement on the Closing Date in an amount up to the amount
available under the Supplemental Loan Agreement for funding as
Loans on the Closing Date, the repayment of such Loans, and the
granting of security interests and liens pursuant to the
Specified Loan Documents as security for repayment do not:
(a) violate any present federal or California statute,
rule or regulation applicable to the Company or
any of the Specified Subsidiaries (including,
without limitation, Regulations G, T, U or X of
the Board of Governors of the Federal Reserve
System),
(b) result in the breach of or a default under, or
require the creation of any security interest or
lien pursuant to, the Subordinated Debt
Indentures; but we call your attention
specifically to the provisions of Section 705 of
each of the Subordinated Debt Indentures, which
limit the amount of Indebtedness (as defined in
the Subordinated Debt Indentures) which the
Company and its Restricted Subsidiaries (as
defined therein) are permitted to create, incur,
assume, guarantee or otherwise become liable with
respect to, or become responsible for the payment
of, and we inform you that compliance with the
limitations therein set forth should be confirmed
by you whenever the Company or any such Restricted
Subsidiary creates, incurs, assumes, guarantees or
otherwise becomes liable with respect to, or
becomes responsible for the payment of, any
Indebtedness (as defined therein) owed to you or
arising under any of the Specified Loan Documents,
(c) violate or conflict with the provisions of the
Governing Documents, or
(d) require any consents, approvals, authorizations,
registrations, declarations or filings by the
Company or any Specified Subsidiary under any
present federal or California statute, rule or
regulation applicable to the Company or any
Specified Subsidiary except (i) the filing of
financing statements, (ii) compliance with federal
and state securities laws in connection with any
sale of any portion of the Pledged Shares or
Pledged Notes (as defined in paragraphs 6 and 7
below), and (iii) those, if any, required under
Gaming Laws.
75
<PAGE>
No opinion is expressed in this paragraph 4 as to the
application of Section 548 of the federal Bankruptcy Code
and comparable provisions of state law or of any antifraud
laws, antitrust or trade regulation laws, or Gaming Laws.
5. The provisions of the Collateral Documents
which were amended pursuant to the Omnibus Amendment, as so
amended, are effective to create valid security interests in
favor of the Collateral Agent for the benefit of the Supplemental
Loan Agreement Banks in that portion of the collateral (other
than the Pledged Shares and Pledged Notes referred to in
paragraphs 6 and 7 below) described in such Collateral Documents,
as so amended, which (i) as to the Supplemental Loan Agreement
Banks secures the Obligations under the Supplemental Loan
Agreement as therein set forth and (ii) is subject to Division 9
of the UCC (the "Collateral") as security for the payment, to the
extent set forth therein, of all obligations described therein as
secured thereby.
6. Assuming that the Collateral Agent has taken
delivery in the State of California of, and continues to hold in
the State of California, the shares of capital stock listed on
Schedule 1 to the Pledge Agreement (General), as amended by the
Omnibus Amendment, (the "Pledged Shares"), delivered to the
Collateral Agent pursuant to the Pledge Agreement (General), as
so amended, with undated stock powers duly indorsed in blank, in
the State of California, the Pledge Agreement (General) creates a
valid and perfected security interest in favor of the Collateral
Agent for the benefit of the Supplemental Loan Agreement Banks in
the rights in such Pledged Shares (other than the capital stock
of Aztar Missouri Gaming Corporation) which the Company and each
Specified Subsidiary party as Grantor to the Pledge Agreement
(General), as so amended, has or has actual authority to convey,
as security, to the extent set forth in the Pledge Agreement
(General), as so amended, for the payment of the obligations
described therein as secured thereby.
7. If and to the extent that, and assuming that,
the promissory notes listed on Schedule 2 to the Pledge Agreement
(General), as amended by the Omnibus Amendment, (the "Pledged
Notes") are "instruments" within the meaning of Division 9 of the
UCC (as to which we express no opinion) and further assuming that
the Collateral Agent has taken possession of, and continues to
possess, the Pledged Notes, duly indorsed and delivered, in the
State of California and holds the Pledged Notes in the State of
California, the Pledge Agreement (General), as so amended,
creates a valid and perfected security interest in favor of the
Collateral Agent for the benefit of the Supplemental Loan
Agreement Banks in the rights in the Pledged Notes which the
Company and each Specified Subsidiary party as Grantor to the
Pledge Agreement (General), as so amended, has or has actual
authority to convey, as security, to the extent set forth in the
76
<PAGE>
Pledge Agreement (General), as so amended, for the payment of the
obligations described therein as secured thereby.
8. Neither the Company nor any of the Specified
Subsidiaries is an "investment company" as such term is defined
in the Investment Company Act of 1940, as amended, or a "holding
company", or a "subsidiary company" of a "holding company", or an
affiliate of a "holding company" or of a "subsidiary company" of
a "holding company", within the meaning of the Public Utility
Holding Company Act of 1935, as amended.
The opinions expressed in paragraph 3 do not include any
opinions with respect to the perfection or priority of any
security interest or lien. The opinions expressed in paragraphs
3, 4, 5, 6, and 7 above are further subject to the following
limitations, qualifications and exceptions:
(a) the effect of bankruptcy, insolvency, reorganization,
moratorium, or other similar laws now or hereafter in effect
relating to or affecting the rights or remedies of creditors;
(b) the effect of general principles of equity, including,
without limitation, concepts of materiality, reasonableness, good
faith and fair dealing and the possible unavailability of
specific performance or injunctive relief, regardless of whether
enforcement is considered in a proceeding in equity or at law;
(c) certain rights, remedies and waivers contained in the
Specified Loan Documents may be limited or rendered ineffective
by applicable California laws or judicial decisions governing
such provisions, but such laws or judicial decisions do not
affect the validity or enforceability of the Specified Loan
Documents as a whole;
(d) we express no opinion as to the validity or
enforceability of any provision of the Specified Loan Documents
that permits an increase in the rate of interest or the
collection of a late charge or prepayment premium in the event of
a delinquency or default;
(e) the unenforceability under certain circumstances of
provisions indemnifying a party against liability for its own
wrongful or negligent acts or where such indemnification is
contrary to public policy or prohibited by law;
(f) the unenforceability under certain circumstances of
contractual provisions respecting self-help or summary remedies
without notice or opportunity for hearing or correction;
(g) the effect of the provisions of the UCC which require a
secured party, in any disposition of personal property
collateral, to act in good faith and in a commercially reasonable
manner;
77
<PAGE>
(h) we express no opinion as to the applicability to the
transaction discussed herein of the Fair Labor Standards Act, 29
U.S.C. par. 201 et seq., which may, under certain circumstances,
preclude the sale or shipment in interstate commerce of certain
items of the Collateral unless and until all relevant payroll
obligations are met; and
(i) we have not been requested to express and, with your
permission, do not render any opinion as to (A) the applicability
of Section 548 of the Bankruptcy Code or applicable state law
(including, without limitation, Section 3439 et seq., of the
California Civil Code relating to fraudulent transfers and
obligations), or (B) the applicability of Section 547 of the
Bankruptcy Code or applicable state law relating to preferences,
to (i) the obligations of any or all of the Borrowers under the
Supplemental Loan Agreement or (ii) the obligations of the
Company or any Subsidiary of the Company under any of the other
Specified Loan Documents; and we assume, with your permission,
that each of you has obtained, and has relied and will rely
exclusively upon, such opinions of your own legal counsel as you
may consider appropriate with respect to such matters.
In rendering the opinions expressed in paragraph 4 insofar
as they require interpretation of the Subordinated Debt
Indentures (i) we have assumed with your permission that all
courts of competent jurisdiction would enforce such agreements as
written but would apply the internal laws of the State of
California without giving effect to any choice of law provisions
contained therein or any choice of law principles which would
result in application of the internal laws of any other state,
(ii) to the extent that any questions of legality or legal
construction have arisen in connection with our review, we have
applied the laws of the State of California in resolving such
questions and (iii) we express no opinion with respect to the
effect of any action or inaction by the Company or by any
Subsidiary of the Company under the Specified Loan Documents or
the Subordinated Debt Indentures which may result in a breach or
default under the Subordinated Debt Indentures. We advise you
that the Subordinated Debt Indentures provide that the laws of
the State of New York shall govern as to certain matters, that
such laws may vary substantially from the law assumed to govern
for purposes of this opinion, and that this opinion may not be
relied upon as to whether or not a breach or default would occur
under the law actually governing the Subordinated Debt
Indentures.
Our opinions in paragraphs 5, 6 and 7 are also subject to
the following assumptions, exceptions, limitations and
qualifications:
(i) we express no opinion as to the priority of any
security interest or lien;
78
<PAGE>
(ii) we express no opinion as to the creation, validity
or perfection of any security interest that is not governed by,
or that is excluded from coverage by, Division 9 of the UCC;
(iii) we express no opinion as to the perfection of any
security interest in "investment property" by "filing" (as those
terms are defined in the UCC);
(iv) we have assumed that each Grantor under the
Collateral Documents has "rights" in the Collateral and that
"value" has been given, as contemplated by Section 9203 of the
UCC;
(v) we have assumed that none of the Collateral
consists of consumer goods, crops growing or to be grown, timber
to be cut, minerals or the like (including oil and gas) or
accounts resulting from the sale of minerals or the like at the
wellhead or the minehead, beneficial interests in a trust or
decedent's estate, letters of credit, items which are subject to
a statute or treaty of the United States which provides for a
national or international registration or a national or
international certificate of title or which specifies a place of
filing different from that specified in the UCC for filing of the
security interest, or any other items excluded from the coverage
of the UCC by Section 9104 thereof;
(vi) we call to your attention the fact that the
perfection of a security interest in proceeds (as defined in the
UCC) of collateral is governed and restricted by Section 9306 of
the UCC;
(vii) we have assumed that the security interests in any
portion of the Collateral constituting "inventory of a retail
merchant" (within the meaning of Section 9102 of the UCC) secure
a debt as to which the secured party has made no restriction as
to use of funds, other than those which are commercially
reasonable and made in good faith, as contemplated by Section
9102(5)(b) of the UCC;
(viii) we express no opinion as to whether the phrase
"all personal property" or similarly general phrases used in the
Collateral Documents would be held to describe any particular
items of collateral;
(ix) we call to your attention the fact that under the
UCC, with certain limited exceptions, the effectiveness of a
properly filed financing statement will lapse five years after
the date of filing thereof and your security interest will become
unperfected, unless a continuation statement is filed within six
months prior to the end of such five-year period. We also call
to your attention the fact that perfection of security interests
under the UCC in any of the Collateral will be terminated as to
any Collateral acquired by a Grantor more than four (4) months
79
<PAGE>
after such Grantor changes its name, identity or corporate
structure to such an extent as to make a properly filed financing
statement seriously misleading, unless a new appropriate
financing statement or an appropriate amendment to such properly
filed financing statement indicating the new name, identity or
corporate structure of such Grantor is properly filed before the
expiration of four (4) months after such change;
(x) we have assumed that neither the Managing Agent,
the Collateral Agent, nor any Bank have expressly or by
implication waived or agreed to any modification of any of their
rights or interests under the Specified Loan Documents; and
(xi) we have assumed that (i) Bank of America National
Trust and Savings Association has the corporate power and
authority and is permitted under its Articles of Incorporation
and Bylaws to act as Collateral Agent for the Primary Loan
Agreement Banks and for the Supplemental Loan Agreement Banks
under the Specified Loan Documents, (ii) the power and authority
of Bank of America National Trust and Savings Association to so
act as Collateral Agent is not subject to restrictions imposed by
applicable law or regulation or by contract (other than the
Specified Loan Documents), (iii) Bank of America National Trust
and Savings Association has received all requisite consents to so
act as Collateral Agent from the Requisite Banks (as defined
therein) under the Primary Loan Agreement, and (iv) the Loan
Documents to which the Primary Loan Agreement Banks are a party
constitute their legally valid and binding obligations,
enforceable against them in accordance with their terms.
To the extent that the obligations of the Company or any
Specified Subsidiary may be dependent upon such matters, we
assume for purposes of this opinion that: all parties to the
Specified Loan Documents other than the Company and the Specified
Subsidiaries have complied with any applicable requirement to
file returns and pay taxes under the Franchise Tax Law of the
State of California; all parties to the Specified Loan Documents
other than the Company and the Delaware Subsidiaries are duly
incorporated, validly existing and in good standing under the
laws of their respective jurisdictions of incorporation; all
parties to the Specified Loan Documents other than the Company
and the Delaware Subsidiaries have the requisite corporate power
and authority to execute and deliver the Specified Loan Documents
and to perform their respective obligations under the Specified
Loan Documents to which they are a party; the Specified Loan
Documents to which such parties other than the Company and the
Delaware Subsidiaries are a party have been duly authorized,
executed and delivered by such parties; and the Specified Loan
Documents to which such parties other than the Company and the
Specified Subsidiaries are a party constitute their legally valid
and binding obligations, enforceable against them in accordance
80
<PAGE>
with their terms. We express no opinion as to compliance by any
parties to the Specified Loan Documents with any state or federal
laws or regulations applicable to the subject transactions
because of the nature of their business.
This opinion is rendered only to you and is solely for your
benefit in connection with the transactions covered hereby. This
opinion may not be relied upon by you for any other purpose, or
furnished to, quoted to or relied upon by any other person, firm
or corporation for any purpose, without our prior written
consent. At your request, we hereby consent to reliance hereon
by any future participants or assigns of your interest in the
Supplemental Loan Agreement as expressly permitted by Section
11.8 of the Supplemental Loan Agreement; provided that you have
notified such participant or assign that this opinion speaks only
as of the date hereof and to its addressee and that we have no
responsibility or obligation to update this opinion, to consider
its applicability or correctness to other than its addressee, or
to take into account changes in law, facts or any other
development of which we may later become aware.
Very truly yours,
LATHAM & WATKINS
81
<PAGE>
SCHEDULE 1
BANK COMMITMENTS
Bank of America National Trust
and Savings Association $10,000,000
Societe Generale $10,000,000
82
<PAGE>
SCHEDULE 2
SPECIFIED SUBSIDIARIES
Ramada Express, Inc. Borrower
Adamar of New Jersey, Inc. Borrower
Hotel Ramada of Nevada Guarantor
Aztar Development Corporation Guarantor
Aztar Indiana Gaming Corporation Guarantor
Aztar Missouri Gaming Corporation Guarantor
Ramada New Jersey, Inc. Guarantor
Atlantic-Deauville, Inc. Guarantor
Adamar Garage Corporation Guarantor
Ramada New Jersey Holdings Corporation Guarantor
Manchester Mall, Inc. Guarantor
83
<PAGE>
EXHIBIT E
REQUEST FOR LOAN
1. This REQUEST FOR LOAN is executed and delivered
by Aztar Corporation, a Delaware corporation ("Parent"), on
behalf of itself, Adamar of New Jersey, Inc., a New Jersey
corporation, and Ramada Express, Inc., a Nevada corporation
(collectively, "Borrowers" and individually, "Borrower") to Bank
of America National Trust and Savings Association, as Managing
Agent, pursuant to that certain Supplemental Reducing Revolving
Loan Agreement (as amended, modified or extended, the
"Agreement") dated as of March ___, 1997, among Borrowers, the
Banks that are parties thereto, and Managing Agent. Any terms
used herein and not defined herein shall have the meanings set
forth for such terms in the Agreement.
2. Borrowers hereby request that the Banks make a
Loan pursuant to the Agreement as follows:
(a) Amount of Requested Loan: $______________
(b) Date of Requested Loan: _________________
3. In connection with this request, Borrowers
certify that:
(a) If this Request for Loan is for a Loan which will
increase the principal amount outstanding under the Notes, now
and as of the date of the requested Loan, except (i) for
representations and warranties which expressly speak as of a
particular date or which are no longer true and correct as a
result of a change permitted by the Agreement or (ii) as dis-
closed by Borrowers and approved in writing by the Requisite
Banks, each representation and warranty made by Borrowers in
Article 4 of the Agreement (other than Sections 4.4(a), 4.6
(first sentence), 4.10, 4.17 and 4.19) will be true and
correct, both immediately before and after giving effect to
such Loan, as though such representations and warranties were
made on and as of that date;
(b) If this Request for Loan is for a Loan which will
increase the principal amount outstanding under the Notes,
other than matters described in Schedule 4.10 to the Primary
Loan Agreement or not required as of the Closing Date to be
described therein, there is not any action, suit, proceeding or
investigation pending as to which Borrowers or the Restricted
Subsidiaries have been served or received notice or, to the
best knowledge of Borrowers, threatened against or affecting
Borrowers or any of the Restricted Subsidiaries or any Property
84
<PAGE>
of any of them before any Governmental Agency that constitutes a
Material Adverse Effect; and
(c) If this Request for Loan is for a Loan which will
result in an increase in the principal amount outstanding under
the Notes, no Default or Event of Default presently exists or
will have occurred and be continuing as a result of the Loan.
4. This Request for Loan is executed on ___________,
19___, by a Responsible Official of Parent, on behalf of all
Borrowers. The undersigned, in such capacity, hereby certifies
each and every matter contained herein to be true and correct.
AZTAR CORPORATION,
a Delaware corporation
By:___________________________
Title:________________________
85
<PAGE>
<PAGE> Exhibit 11
<TABLE>
AZTAR CORPORATION AND SUBSIDIARIES
STATEMENT REGARDING COMPUTATION OF PER SHARE EARNINGS
For the periods ended April 3, 1997 and March 28, 1996
---------------------------------------------------------------
(in thousands, except per share data)
<CAPTION>
First Quarter
------------------
1997 1996
--------- --------
<S> <C> <C>
Net income $ 2,677 $ 769
Deduct: preferred stock dividend and
losses on redemption (net of income
taxes credited to retained earnings) (174) (160)
-------- --------
Net income applicable to computation $ 2,503 $ 609
======== ========
Weighted average common shares
assuming no dilution 45,005 38,286
Common equivalent shares
Additional shares applicable to
stock options based on the
weighted average market price 765 949
-------- --------
Weighted average common shares
applicable to net income per
common and common equivalent share 45,770 39,235
Additional shares applicable to
stock options based on the market
close price at the end of the period -- 42
Conversion of preferred stock at
the stated rate 929 978
-------- --------
Weighted average common shares
assuming full dilution 46,699 40,255
======== ========
Net income per common and common
equivalent share $ .05 $ .02
Net income per common share assuming
full dilution $ .05 $ .02
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This schedule contains summary financial information extracted from the
Consolidated Balance Sheet at April 3, 1997 and the Consolidated Statement of
Operations for the year-to-date period ended April 3, 1997 and is qualified in
its entirety by reference to such financial statements.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> JAN-1-1998
<PERIOD-END> APR-3-1997
<CASH> 31,783
<SECURITIES> 0
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6,175
0
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<INCOME-TAX> (2,080)
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<EPS-PRIMARY> .05
<EPS-DILUTED> .05
</TABLE>
