EXHIBIT 10.36
CITY OF ST. LOUIS, MISSOURI
and
PORT AUTHORITY OF THE CITY OF ST. LOUIS, MISSOURI
and
PRESIDENT RIVERBOAT CASINO-MISSOURI, INC.
and
MERCANTILE BANK NATIONAL ASSOCIATION
---------------
RELOCATION FUNDING AGREEMENT
Dated as of January 18, 2000
$3,000,000
Funding of Relocation Project Costs
(Admiral Relocation Project)
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TABLE OF CONTENTS
PAGE
Parties......................................................................1
Recitals.....................................................................1
ARTICLE I
DEFINITIONS
Section 1.1. Definitions of Words and Terms................................3
ARTICLE II
REPRESENTATIONS
Section 2.1. Representations and Warranties by the City....................6
Section 2.2. Representations of the Port Authority.........................7
Section 2.3. Representations and Warranties by the Company.................7
Section 2.4. Representations by the Bank...................................8
ARTICLE III
USE OF PROCEEDS AND OBLIGATIONS OF COMPANY
Section 3.1. Agreement to Complete Relocation Project......................8
Section 3.2. Use of Proceeds of the Loan...................................8
Section 3.3. Company to Comply with Lease..................................8
Section 3.4. Construction in General.......................................8
Section 3.5. Access by Project Engineer................................... 9
Section 3.6. General Terms and Conditions of Relocation Project........... 9
Section 3.7. Insurance....................................................10
ARTICLE IV
AGREEMENT TERM; GAMING REVENUE FUND; AND APPLICATION OF GAMING REVENUES
Section 4.1. Agreement Term...............................................10
Section 4.2. Creation of Funds............................................10
Section 4.3. Allocation of Gaming Tax Revenues............................10
ARTICLE V
PAYMENT PROVISIONS
Section 5.1. Payments.....................................................12
Section 5.2. Obligations of City and the Port Authority...................12
Section 5.3. Payments to Constitute Currently Budgeted
Expenditures of City.........................................12
ARTICLE VI
TERMINATION OF AGREEMENT
Section 6.1. Defeasance...................................................12
Section 6.2. Company's Right of Termination...............................13
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ARTICLE VII
DEFAULT AND REMEDIES
Section 7.1. Remedies.....................................................13
Section 7.2. Survival of Obligations......................................13
Section 7.3. Rights and Remedies Cumulative...............................14
Section 7.4. Waiver of Breach.............................................14
Section 7.5. Bank's Exercise of the Bank's Remedies.......................14
Section 7.6. No Acceleration..............................................14
Section 7.7. Delay or Omission Not a Waiver...............................14
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.1. Amendments, Changes and Modifications........................14
Section 8.2. Instruments of Further Assurance.............................15
Section 8.3. Payments Due on Saturdays, Sundays and Holidays..............15
Section 8.4. Severability.................................................15
Section 8.5. Immunity of Officers, Employees and Members of the
City and the Company.........................................15
Section 8.6. Counterparts.................................................15
Section 8.7. Governing Law................................................15
Section 8.8. Notices......................................................15
Section 8.9. Suspension of Mail Service...................................16
Section 8.10. Execution of Loan............................................17
Section 8.11. Cooperation in Provision of Financial Information............17
Section 8.12. Further Authority............................................17
Signatures and Seals........................................................17
Acknowledgments.............................................................18
Exhibit A - Reimbursable Relocation Project Costs
Exhibit B - Description of the Work
Exhibit C - Loan Agreement
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RELOCATION FUNDING AGREEMENT
THIS RELOCATION FUNDING AGREEMENT (the "Agreement"), made and entered into as
of January 18, 2000, by and between the CITY OF ST. LOUIS, MISSOURI, a
municipal corporation and political subdivision of the State of Missouri (the
"City"), the PORT AUTHORITY OF THE CITY OF ST. LOUIS, a political subdivision
of the State of Missouri (the "Port Authority"), PRESIDENT RIVERBOAT CASINO-
MISSOURI, INC., St. Louis, Missouri, a corporation organized and existing
under the laws of the State of Missouri (the "Company") and MERCANTILE BANK
NATIONAL ASSOCIATION, a national banking association duly organized and
existing and authorized under the laws of the United States of America (the
"Bank");
WITNESSETH:
WHEREAS, President Riverboat Casino-Missouri, Inc., a Missouri corporation
(the "Company"), currently conducts gaming operations on The President Casino
on the Admiral (the "Admiral"), which is currently moored at a location in the
City of St. Louis south of the James B. Eads Bridge pursuant to an existing
lease, as heretofore amended (the "Prior Lease"), entered into by the City
under the authority of Ordinance Nos. 58940 and 62638 of the City of St. Louis
(the "City"); and
WHEREAS, the Company desires to relocate the Admiral to certain leased real
property and mooring rights at a site on the Mississippi River within the Port
District of the City of St. Louis located north of the Martin Luther King
Bridge approximately 1,000 feet north of its current mooring site, and to make
necessary improvements in connection with such relocation, including, without
limitation, the construction of a porte cochere, ramps and affiliated
improvements on the improved public wharf and improved mooring arrangements in
the mooring area (collectively, the "Relocation Project") and in connection
therewith to lease from the City and the Port Authority certain real property
and mooring rights at the new mooring site (collectively, the "Leased
Property"); and
WHEREAS, the City, the Port Authority and the Company desire to enter into a
Lease and Sublease Agreement by and among the City, the Port Authority and the
Company (the "Lease") to provide for the lease of the Leased Property to the
Port Authority and the sublease of the Leased Property from the Port Authority
to the Company, for the funding by the Port Authority of a portion of the
costs of the Relocation Project (the "Relocation Project Costs") in the net
amount of $3,000,000 of which $600,000 shall be provided by the Port Authority
and $2,400,000 from the proceeds of a loan to be obtained by the Port
Authority from Mercantile Bank National Association (the "Bank"), and for the
application of the proceeds of the Loan to fund a portion of the Relocation
Project Costs and the Loan Costs; and
WHEREAS, the parties hereto have determined that the Relocation Project will
increase the safety of the public visiting the Admiral and will provide
economic benefit to the citizens of the City through increased revenues
resulting from increased patronage of the Admiral due to improved passenger
access, and that the enhanced public safety and increased economic benefits to
the citizens of the City resulting from the Relocation Project furthers the
City's and the Port Authority's goals, objectives and policies; and
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WHEREAS, it is anticipated that the Company will incur substantial costs and
expenses associated with the Relocation Project (the "Relocation Project
Costs," as defined herein); and
WHEREAS, the City wishes to provide assistance in funding a portion of the
Relocation Project Costs as an incentive to complete the Relocation Project
and further enhance public safety and increase economic benefits to the
citizens of the City; and
WHEREAS, the City is authorized, pursuant to Article VI, Section 19(a) of the
Constitution of the State of Missouri, to exercise all powers which the
General Assembly of the State of Missouri has authority to confer upon any
city; and
WHEREAS, the City proposes to execute and deliver to the Port Authority this
Agreement to provide funding of a portion of the Relocation Project Costs,
pursuant to Article VI, Section 19(a) of the Constitution of the State of
Missouri and the City's home rule charter (collectively, the "Act"), and
Ordinance No. 64803 adopted by the Board of Aldermen on December 10, 1999 (the
"Ordinance"); and
WHEREAS, in order to provide funds to pay a portion of the Relocation Project
Costs the Port Authority shall enter into a Loan Agreement with the Bank
pursuant to which the Port Authority shall serve as an intermediary for a loan
(the "Loan") to provide funds to pay $3,000,000 of the Relocation Project
Costs and the Loan Costs; and
WHEREAS, in order to secure the payment of the principal of and interest on
the Loan, the Loan Agreement shall provide for a Future Advance Leasehold Deed
of Trust to a Trustee for the Bank covering the Port Authority's interest in
the Leased Property and shall further provide that the Bank may foreclose on
its collateral and may exclude the parties hereto from the Leased Property in
the event of a default by the Port Authority under the Loan Agreement; and
WHEREAS, in order to give the City rights in respect of the Leased Property in
the event of a default under the Loan Agreement and documents referenced
therein the City shall enter into an Option Agreement to Purchase Loan with
the Bank; and
WHEREAS, the obligations of the City and the Port Authority pursuant to this
Agreement shall be a special limited obligation of both the City and the Port
Authority payable only from monies annually appropriated by the Board of
Aldermen of the City from the Gaming Revenue Fund, as herein defined, which
shall be escrowed by the City for such purpose into the Gaming Relocation Fund
and from no other City source; and
WHEREAS, the City, the Port Authority, the Company and the Bank agree that all
funds described herein shall be disbursed and collected as described herein.
NOW, THEREFORE, in consideration of the premises and the mutual
representations, covenants and agreements herein set forth, the City, the Port
Authority, and the Company do hereby covenant and agree as follows:
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ARTICLE I
DEFINITIONS
Section 1.1. Definitions of Words and Terms. In addition to words and terms
elsewhere defined herein and therein, the following words and terms as used in
this Relocation Funding Agreement, shall have the following meanings, unless
some other meaning is plainly intended:
"Adjusted Gross Receipts" shall have the meaning of such term as contained in
the Gaming Act.
"Admission Tax" means that portion of the admission fee described in Rev.
Stat. Mo. Section 313.820 (1997) from Gaming Operations which is paid to the
City as home dock city by the State from operations of the Company.
"Admission Tax Base" means $3,240,000.
"Agreement" means this Relocation Funding Agreement, as the same may be from
time to time modified, amended or supplemented in writing by the parties
hereto.
"Agreement Term" means the duration of this Relocation Funding Agreement as
specified in Section 4.1 of this Relocation Funding Agreement.
"Approved Plans" means the plans and specifications for the Relocation Project
for which the City and the Port Authority have given written approval.
"Available Proceeds" means the sum of $3,000,000.
"Bank" means "Mercantile Bank National Association"
"Board of Aldermen" means the Board of Aldermen of the City of St. Louis,
Missouri.
"Business Day" means any day other than (a) a Saturday, Sunday or any other
day on which banking institutions in the city in which the principal corporate
trust office of the Bank is located are required or authorized by law to close
or (b) a day on which the New York Stock Exchange is closed.
"City" means the City of St. Louis, Missouri, a municipal corporation and
political subdivision of the State of Missouri.
"Closing Date" means the date of closing of the Loan.
"Collateral" means the property described in the Loan Agreement attached
hereto as Exhibit C.
"Company" means President Riverboat Casino-Missouri, Inc., a Missouri
corporation, and its successors and assigns and any surviving, resulting or
transferee corporation.
"Contractor", whether in singular or plural form, means those persons or
entities performing Work for the Relocation Project, as such terms are defined
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herein.
"Disbursing Agent" means the Bank.
"Eligible Costs" means those costs and expenses to which Available Proceeds in
the Project Fund may be applied, as more specifically defined in Section
2.3(e) hereof.
"Event of Default" means with respect to this Agreement any event or
occurrence as defined in Section 7.1 hereof.
"Fiscal Year" means the fiscal years of the City beginning on July 1 and
ending on June 30 of the following calendar year.
"Future Advance Leasehold Deed of Trust" means the deed of trust from the
Company, as Trustee for the Bank.
"Gaming Act" means the Excursion Gambling Boats Act of the State of Missouri
contained in Sections 313.800 to 313.850 (both inclusive) of the Revised
Statutes of Missouri (1997), as the same may hereafter be amended, pursuant to
which the Admission Tax and the Home Dock City Tax, respectively, are imposed.
"Gaming Operations" means any operations relating to gaming, gambling,
lotteries, gift enterprises and/or games of skill and chance offered or
conducted at or within the City, including, without limitation, the operation
of any slot machines, roulette tables, card games or other gaming devices or
games permitted under the Gaming Act.
"Gaming Relocation Fund" means the Gaming Relocation Fund created pursuant to
Section 4.2 hereof.
"Gaming Revenue Fund" means the Gaming Revenue Fund created pursuant to
Section 4.2 hereof into which the Gaming Revenues are from time to time
deposited in accordance with this Agreement.
"Gaming Revenues" means all revenues and payments received by the City from
the Home Dock City Tax, the Admission Tax and the Rent.
"Home Dock City Tax" means that portion of the tax on Adjusted Gross Receipts
received by the City from the State from operations of the Company as the home
dock city from Gaming Operations, all as defined in Rev. Stat. Mo. Section
313.822(1).
"Home Dock City Tax Base" means $1,240,000.
"Lease" means the Lease and Sublease Agreement dated of even date herewith
between the City, the Company and the Port Authority pursuant to which the
City leased the Leased Property to the Port Authority and the Port Authority
subleased the Leased Property to the Company, or any other agreement pursuant
to which the City or the Port Authority shall lease the Leased Property for
Gaming Operations during the term of this Relocation Funding Agreement.
"Leased Property" means certain real property and certain mooring rights at a
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site on the Mississippi River within the Port District of the City of St.
Louis and the improvements constituting the Relocation Project to be
constructed thereon which was leased by the City to the Port Authority and
subleased to the Company pursuant to the Lease.
"Loan" means the funds provided by the Bank to the Port Authority for the
payment of $2,400,000 of the Relocation Project Costs and the payment of the
Loan Costs which shall be secured by the Collateral and shall bear interest at
the rate of 9.75% per annum.
"Loan Agreement" means the Loan Agreement dated of even date herewith between
the Bank and the Port Authority pursuant to which the Bank will make the Loan
to the Port Authority in the form attached hereto as Exhibit C.
"Loan Costs" means an upfront fee payable to the Bank of 1/2%.
"Mayor" means the Mayor of the City or his/her duly authorized agent.
"Note" means the evidence of indebtedness of the Port Authority to the Bank,
evidencing a loan from the Bank to the Port Authority in the amount of
$2,400,000 which shall bear interest at the rate of 9.75% per annum.
"Ordinance" means that certain Ordinance adopted on December 10, 1999 by the
Board of Aldermen of the City approving the execution and delivery of this
Agreement.
"Person" means any natural person, firm, association, corporation,
partnership, joint stock company, joint venture, trust, unincorporated
organization or firm, a government or any agency or political subdivision
thereof or other public body.
"Port Authority" means the Port Authority of the City of St. Louis, a
political subdivision of the State of Missouri.
"Project Engineer" means the architect and/or engineer designated by the City
and the Port Authority to oversee the Work and review the disbursement
requests.
"Project Fund" means the account established pursuant to Section hereof into
which the Available Proceeds are deposited.
"Relocation Funding Agreement" means this Relocation Funding Agreement dated
as of the date hereof, among the City, the Port Authority and the Company as
from time to time amended in accordance with the provisions of Section 8.1 of
this Agreement.
"Relocation Project" means the site modification and improvements,
construction of mooring anchorages and protective cells, the moving the
Admiral from its current mooring site to the new mooring site and other work
described in Exhibit A hereto.
"Relocation Project Costs" means the sum total of all reasonable or necessary
costs actually incurred in performing the Work and any such costs incidental
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to the implementation of the Relocation Project.
"Rent" means the rent payable to the City and/or the Port Authority pursuant
to the Lease.
"Rent Base" means $1,240,000.
"State" means the State of Missouri.
"Work" means all work and materials necessary to construct the Relocation
Project.
ARTICLE II
REPRESENTATIONS
2.1. Representations and Warranties by the City. The City represents and
warrants to the Company, the Port Authority and the Bank that:
(a) The City is a constitutional charter city and political subdivision of
the State of Missouri. Under the provisions of the Constitution and laws of
the State of Missouri and the City's charter, the City has the lawful power
and authority to enter into the transactions contemplated by this Relocation
Funding Agreement and the Lease and to carry out its obligations hereunder and
thereunder.
(b) By all necessary action of the Board of Aldermen of the City, the City
has been duly authorized to execute and deliver this Relocation Funding
Agreement, the Lease, and the other documents required to be executed and
delivered in connection with the transactions, contemplated hereby, acting by
and through its duly authorized officers. This Relocation Funding Agreement
and the Lease are each a legal, valid and binding obligation of the City
enforceable against the City in accordance with its terms (except as
enforcement may be limited by laws relating to bankruptcy, insolvency or
creditor's rights generally).
(c) THE OBLIGATIONS OF THE CITY, HOWEVER, ARE LIMITED TO THE PROVISIONS OF
THIS RELOCATION FUNDING AGREEMENT AND UNDER NO CIRCUMSTANCES IS THE CITY
FINANCIALLY OBLIGATED EXCEPT AS SPECIFICALLY SET FORTH HEREIN.
Section 2.2. Representations of the Port Authority. The Port Authority
represents and warrants to the Company, the City and the Bank as follows:
(a) The Port Authority is a public corporation duly organized and existing
under the laws of the State of Missouri, and has lawful power and authority to
enter into, execute and deliver the Lease and this Relocation Funding
Agreement and to carry out its obligations thereunder and hereunder.
(b) By all necessary corporate action of its governing board, the Port
Authority has been duly authorized to execute and deliver the Lease, the Loan
Agreement and this Agreement and the other documents required to be executed
and delivered by it in connection with the transaction contemplated hereby,
acting by and through its duly authorized officers and such documents are each
a legal, valid and binding obligation of the Port Authority, enforceable
against the Port Authority in accordance with its terms (except as enforcement
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may be limited by laws relating to bankruptcy, insolvency or creditor's rights
generally).
(c) THE OBLIGATIONS OF THE PORT AUTHORITY, HOWEVER ARE LIMITED TO THE
PROVISIONS OF THE DOCUMENTS SET FORTH IN SUBPARAGRAPH (b) ABOVE AND UNDER NO
CIRCUMSTANCES IS THE PORT AUTHORITY FINANCIALLY OBLIGATED EXCEPT AS
SPECIFICALLY SET FORTH HEREIN.
Section 2.3. Representations and Warranties by the Company. The Company
represents and warrants to the City, the Port Authority and the Bank as
follows:
(a) The Company is a corporation organized and existing under the laws of the
State of Missouri. The Company has the power and authority to own, lease and
operate facilities of the type to be constructed, improved or financed with
the proceeds the Loan and to carry on its business as currently conducted.
The Company has all necessary licenses and permits required in order to carry
on its business as currently conducted and has or will obtain all necessary
licenses and permits in connection with the execution and performance of the
Lease and the Relocation Project.
(b) The Company has lawful power and authority to enter into, execute and
deliver this Relocation Funding Agreement and the Lease and to carry out its
obligations hereunder and thereunder and by all necessary corporate action has
been duly authorized to execute and deliver this Relocation Funding Agreement
and the Lease, acting by and through its duly authorized officers.
(c) This Relocation Funding Agreement and the Lease have been duly
authorized, executed and delivered by the Company and constitute the valid and
legally binding obligations of the Company enforceable in accordance with
their respective terms (except to the extent that the enforcement thereof may
be limited by laws relating to bankruptcy, insolvency or other similar laws
affecting creditors' rights generally).
(d) The execution, delivery and performance by the Company of this Relocation
Funding Agreement and the Lease will not violate any provisions of law or any
applicable judgment, order or regulation of any court or of any public or
governmental body, agency or authority and will not conflict with, or result
in the breach of any of the terms and provisions of, or constitute a default
under, any existing law, court or administrative regulation, decree, order or
the Company's Articles of Incorporation or Bylaws or any indenture, deed of
trust or other agreement or instrument to which the Company is a party or by
which the Company or its properties are bound.
(e) The proceeds of the Loan are to be used only to finance the Relocation
Project Costs and the Loan Costs through the payment thereof or reimbursement
of the Company for payment thereof.
(f) The Company will dismiss with prejudice President Riverboat Casino-
Missouri v. City of St. Louis, Cause No. 974-03125, currently pending in the
Circuit Court for the City of St. Louis, at its cost.
2.4. Representations by the Bank. The Bank represents and warrants to the
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City, the Port Authority and the Company as follows:
(a) The Bank will disburse funds to pay a portion of the Relocation Project
Costs and Loan Costs in consultation with a disbursement advisor.
(b) The Bank represents that it recognizes that the sole source of City
payment for the Loan is that portion of the Gaming Revenue Fund identified for
the repayment of the Loan and that the City has no further obligation therefor
whatsoever.
ARTICLE III
USE OF PROCEEDS AND OBLIGATIONS OF COMPANY
Section 3.1 Agreement to Complete the Relocation Project. The Company will
cause the Relocation Project to be accomplished solely on the Leased Property.
The Company further agrees to cause the construction of the Relocation Project
to be diligently and continuously pursued and to be completed with reasonable
dispatch, and to provide (from its own funds if required) all moneys necessary
to complete the Relocation Project. Neither the City, the Port Authority nor
the Company represents that the proceeds of the Loan will be sufficient to pay
the costs of completing the Relocation Project. The Company's agreement to
complete the Relocation Project shall be the subject of a guaranty of
completion by President Casinos, Inc., which shall be secured by the deposit
by the Company, of $500,000 with an escrow agent pursuant to an escrow
agreement among the Company, the Bank, the Port Authority, and the escrow
agent.
Section 3.2. Use of Proceeds of the Loan. The Port Authority shall disburse
$600,000 to pay Relocation Projects Costs as incurred and shall disburse such
amount before disbursement of the Loan. Disbursements shall be made by the
Port Authority upon receipt of draw requests and evidence of Work performed,
which is reasonably satisfactory to Port Authority in consultation with a
disbursement advisor. Then, the Loan shall be disbursed to pay a portion of
the Relocation Project Costs, as incurred. No disbursements of the Loan shall
be made until necessary approvals and permits required for the Work paid by
the disbursement have been obtained. The Company shall not be obligated to
incur any costs of the Relocation Project until the Loan has been disbursed in
full.
Section 3.3. Company to Comply with Lease. The Company agrees that during
the term of this Relocation Funding Agreement and the Lease it will
continuously operate the Admiral as a revenue producing gaming facility. The
Company will comply with the provisions of the Lease and will not exercise any
right to terminate the Lease throughout the term of this Relocation Funding
Agreement.
Section 3.4. Construction in General. The Company shall with due dispatch
and haste diligently proceed to complete the Relocation Project in a
workmanlike manner, in accordance with the Approved Plans, and free from liens
or claims of liens by any and all Contractors. The Company agrees that the
Work is set forth in the Approved Plans and hereby confirms and warrants to
the parties hereto that such Approved Plans have been reviewed by qualified
and experienced architects and engineers and comply with the applicable law.
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The Company further agrees that the construction of the improvements to the
Relocation project will not deviate from the Approved Plans. The Company
further agrees to bear the full cost and expense over and above the Available
Proceeds to complete the Relocation Project and further acknowledges that the
Work will be completed in a good and workmanlike manner and in accordance with
all applicable law.
Section 3.5. Access by Project Engineer. The Company shall provide the
Project Engineer with full access to the Leased Premises for the purpose of
inspecting the Work for which disbursement is sought.
Section 3.6. General Terms and Conditions of Relocation Project. The
following general terms and conditions shall apply to the Relocation Project
and the Work.
(a) The Company agrees it will not make or permit any material changes,
variations or additions to the Approved Plans without first obtaining written
consent of the Port Authority, acting by and through its Executive Director,
which consent shall not be unreasonably withheld or delayed, and the Company
will not enter into additional contracts for work with respect to the
Relocation Project beyond that which is included in the Approved Plans without
the written consent of the City and the Port Authority. Should any such
change be made or constructed without such approval, the Company shall
indemnify the City and the Port Authority, and hold each of them harmless from
all costs thereof.
(b) The Company agrees that it shall, at no time, permit abandonment or delay
for more than seven (7) consecutive days of the construction of the
improvements to the Relocation Project except for causes beyond its control
and will forthwith remove or discharge any and all Contractors not diligently
proceeding with the assigned Work for reasons within their control.
(c) The Company agrees that in the event construction ceases without good
cause for more than thirty (30) days, the City and the Port Authority shall
have the right, at their option, to enter into the Leased Property an engage
such persons as may be necessary to complete the Work or to protect such
improvements from depreciation, and all amounts expended for such purposes
shall be borne wholly by the Company which shall indemnify and hold the City
and the Port Authority harmless therefor.
(d) The Company agrees to comply with all laws, codes, statutes, regulations
and ordinances of all public authorities having jurisdiction over the
Relocation Project including, but not limited to, zoning ordinances,
environmental laws, building codes, access for the handicapped laws,
occupational health and safety laws, equal employment opportunity laws, etc.
(e) The Company agrees to defend, indemnify and save the City and the Port
Authority, and their respective employees, agents, officers, commissioners and
directors (hereinafter "Releasees") harmless from any and all loses, costs,
damages, expenses and liabilities, including, in the event of litigation,
reasonable attorneys' fees and expenses which they sustain in connection with
the Relocation Project, directly or indirectly, whether relating to personal
injury, death or property damage.
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(f) The parties hereto agree, acknowledge and affirm that this Relocation
Funding Agreement does not create a partnership, a trust relationship, an
agency relationship or any other legal relationship other than that of
independent contracting parties in accordance with this Relocation Funding
Agreement, enforceable at law or in equity in accordance with the laws of the
State of Missouri.
(g) Should the Company breach any provision hereof and fail to correct such
breach within seven (7) business days after receiving written notice thereof
from the City and/or the Port Authority (or within a reasonable period if such
breach cannot be cured within said seven (7) business day period and the
Company has commenced to cure such breach within said seven (7) business day
period and diligently pursues such cure to completion, or should the Port
Authority terminate the Lease, the Company shall be in default hereunder, in
which event, at the City's and the Port Authority's option, this Relocation
Funding Agreement shall terminate and the Disbursing Agent shall disburse the
remaining Available Proceeds first to the Bank to reduce the balance due on
the Note and then to the Port Authority to be applied to remedy any damages
accruing to the Port Authority and the City relating to breach of this
Relocation Funding Agreement and the Lease Agreement. Nothing herein shall in
any way limit or restrict the exercise of the City's and Port Authority's
rights and remedies under the Lease Agreement and/or applicable law.
Section 3.7. Insurance. The Company shall ensure that all Contractors
performing Work carry commercial general liability insurance, builder's risk
and worker's compensation insurance in such amounts as are acceptable to the
City and the Port Authority and naming the City and the Port Authority as
additional insureds for such period of time as Contractor is performing Work.
ARTICLE IV
AGREEMENT TERM; GAMING REVENUE FUND; AND
APPLICATION OF GAMING REVENUES
Section 4.1. Agreement Term. This Relocation Funding Agreement shall be
effective from and after the date hereof and shall continue in force and
effect until the principal of and interest on the Loan has been fully paid.
The Company's obligation to complete the Relocation Project shall survive.
Section 4.2. Creation of Funds. So as to ensure to the greatest extent
possible a source of funds for repayment of the Loan, there is hereby created
and ordered to be established within the treasury of the City a separate and
distinct trust fund to be known as the Gaming Revenue Fund for the purpose of
setting aside the Gaming Revenues and paying the City's Payments pursuant to
this Agreement. All moneys deposited in the Gaming Revenue Fund shall be
applied in accordance with the provisions of this Agreement. The Comptroller
or other financial officer of the City shall keep and maintain adequate
records pertaining to the Gaming Revenue Fund and all disbursements therefrom.
There shall also be established by the Port Authority a separate and distinct
trust fund known as the Gaming Relocation Fund.
Section 4.3. Allocation of Gaming Tax Revenues. During the term of this
Agreement, which term ends in any event upon payment in full of the Loan, the
Gaming Revenues received by the City during each Fiscal Year of the City shall
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be deposited in the Gaming Revenue Fund. Beginning on the first day of the
month following the Effective Date, as defined in the Lease, and on the first
day of each month thereafter, the City shall transfer moneys in the Gaming
Revenue Fund to the Port Authority for deposit in the Gaming Relocation Fund
until the cumulative amounts so transferred during such Fiscal Year equals
$600,000 as follows:
(a) From and after receipt by the City during each Fiscal Year of Rent equal
to the Rent Base, fifty percent (50%) of any payment of Rent received by the
City shall be immediately deposited in the Gaming Relocation Fund;
(b) From and after receipt by the City during each Fiscal Year of Admission
Tax revenues equal to the Admission Tax Base, fifty percent (50%) of all
Admission Tax revenues received by the City shall be immediately deposited in
the Gaming Relocation Fund;
(c) All Home Dock City Tax revenues received by the City during each Fiscal
Year shall be deposited in the Gaming Relocation Fund until the amount of such
deposits from Home Dock City revenues equals $600,000; and
(d) From and after receipt by the City of Home Dock City Tax revenues equal
to the Home Dock City Tax Base (including such revenues deposited in the
Gaming Relocation Fund pursuant to subparagraph (c) above, fifty percent (50%)
of all Home Dock City Tax revenues received by the City shall be immediately
deposited in the Gaming Relocation Fund.
All moneys deposited by the City in the Gaming Revenue Fund, after making the
transfers required by the City in subparagraphs (a) through (d) above, may be
used by the City for any purpose permitted by law. All moneys transferred by
the City to the Port Authority for deposit in the Gaming Relocation Fund shall
be dedicated and applied by the Port Authority solely to repayment of the
Loan.
ARTICLE V
PAYMENT PROVISIONS
Section 5.1. Payments. To provide for the payment of the principal of and
interest on the Loan, the Port Authority shall pay directly to the Bank, on
July 25, 2000, and on the first Business Day of each month thereafter during
the term of this Agreement, all moneys on deposit in the Gaming Relocation
Fund (the "Payments"), as long as the Loan is outstanding and shall pledge the
Collateral to the Bank to secure the payment of the principal of and interest
on the Loan.
Section 5.2. Obligations of City and the Port Authority.
(a) The obligations of the Port Authority under this Agreement to make
payments from the Gaming Relocation Fund to pay the Loan during the Agreement
Term on or before the date the same become due, and the obligations of the
City and the Port Authority to perform all of its other obligations, covenants
and agreements hereunder shall, subject to the provision of subsection (b)
hereof, be absolute and unconditional, without notice or demand, and without
abatement, deduction, set-off, counterclaim, recoupment or defense whatsoever,
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whether now existing or hereafter arising, and irrespective of whether the
Relocation Project shall have been started or completed, or whether the
Company is in default under the Lease or this Agreement, and notwithstanding
any damage to, loss, theft or destruction of the Relocation Project, the
Leased Property, or any part thereof, any failure of consideration, the taking
by eminent domain of title to or of the right of temporary use of all or any
part of the Relocation Project or the Leased Property, legal curtailment of
the Company's use thereof, the eviction or constructive eviction of the
Company, any change in the tax or other laws of the United States of America,
the State of Missouri or any political subdivision thereof, any change in the
Bank's legal organization or status, or any default of the Bank under the Loan
Agreement, and regardless of the invalidity of any action of the Bank, and
regardless of the invalidity of any portion of this Agreement, the Loan
Agreement or the Lease.
(b) NOTWITHSTANDING ANY PROVISION OR COVENANT CONTAINED IN THIS AGREEMENT,
THE CITY IS NOT OBLIGATED TO BUDGET OR APPROPRIATE MONIES TO THE GAMING
RELOCATION FUND EXCEPT FROM THE GAMING REVENUE FUND OR TO PAY THE LOAN EXCEPT
FROM MONIES FROM THE GAMING RELOCATION FUND TO THE GAMING RELOCATION FUND.
THE CITY SHALL BE UNDER NO OBLIGATION TO LEVY ANY TAXES IN ORDER TO RAISE
REVENUES TO PAY THE LOAN.
(c) THE DOCUMENTS FOR THE LOAN SHALL CONTAIN THE FOLLOWING PROVISION:
The Borrower shall not be personally liable for the payment of any sums due
hereunder or under the Loan nor for the performance of any obligations of
Borrower hereunder or under the Loan. No judgment for the repayment of the
liabilities and obligations of Borrower under this Note will be sought or
enforced against Borrower personally or any property of Borrower other than
the Collateral and monies now or hereafter appropriated by the Board of
Aldermen of the City of St. Louis from the Gaming Revenue Fund and designated
for deposit into the Gaming Relocation Fund, to the extent the City shall not
have previously paid such moneys to Bank pursuant to the applicable provisions
of (and as such terms are defined in) this Agreement and any other property of
Borrower furnished or pledged as security under the Loan or under any of the
other agreements in any action to foreclose the Leasehold Deed of Trust or to
otherwise realize upon any other collateral or to collect any amount payable
hereunder or thereunder.
Section 5.3. Payments to Constitute Currently Budgeted Expenditures of City.
The City and the Port Authority acknowledge and agree that the payments from
the Gaming Revenue Fund hereunder shall constitute currently budgeted
expenditures of the City.
ARTICLE VI
TERMINATION OF AGREEMENT
Section 6.1. Defeasance. If the City shall pay and discharge or provide for
the payment or prepayment and discharge of the whole amount of the principal
of and interest on the Loan at the time outstanding, or shall make
arrangements satisfactory to the Bank for such payment or prepayment and
discharge, then and in that case all property, rights and interest hereby
assigned or pledged shall revert to the City, and the right, title and
interest of the Bank, as the assignee of the City and the Port Authority,
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therein shall thereupon cease, terminate and become void; and this Relocation
Funding Agreement, and the covenants of the City contained herein, shall be
discharged and the Port Authority and the Bank, in such case on demand of the
City and at its cost and expense, shall execute and deliver to the City a
proper instrument or proper instruments acknowledging the satisfaction and
termination of this Agreement, and shall assign and transfer or cause to be
assigned or transferred, and shall deliver or cause to be delivered to the
City, all property, including money, then held by the Port Authority or the
Bank other than moneys deposited with the Port Authority or the Bank for the
payment of the principal of or interest on the Loan.
Section 6.2. Company's Right of Termination. At any time prior to the
initial disbursement of the amount to be disbursed by the Port Authority
pursuant to Section 3.2, the Company may, by giving written notice to the
City, the Port Authority and the Bank, abandon the Relocation Project and
terminate this Agreement and the Company's obligations hereunder if the
Company determines, in its sole discretion, that the Relocation Project is no
longer economically feasible or desirable.
ARTICLE VII
DEFAULT AND REMEDIES
Section 7.1. Remedies. If a default by the City, the Company, or the Port
Authority hereunder shall have occurred and be continuing, then the Port
Authority or the Bank may at such party's election, then or at any time
thereafter, and while such default shall continue, take any one or more of the
following actions:
(a) By mandamus or other suit, action or proceedings at law or in equity to
enforce its rights against the parties hereto and their officials, officers,
agents and employees, and to require and compel duties and obligations
required by the provisions of this Agreement or by the Constitution and laws
of the State of Missouri and the United States of America;
(b) By suit, action or other proceedings in equity or at law to require the
parties hereto, their officials, officers, agents and employees to account as
if they were the trustees of an express trust;
(c) By suit, action or other proceedings in equity or at law to enjoin any
acts or things which may be unlawful or in violation of the rights of the Port
Authority or the Bank; and
(d) By suit, action or other proceedings in equity or at law enforce its
rights against the parties hereto and their officials, officers, agents and
employees with respect to the Collateral.
Section 7.2. Survival of Obligations. The City covenants and agrees with the
Port Authority for the benefit of the Bank that the City's obligations under
this Agreement shall survive the cancellation and termination of this
Agreement, for any cause, and that the City shall continue to pay the Payments
and perform all other obligations specified in this Agreement, all at the time
or times provided in this Relocation Funding Agreement; provided, however,
that upon the payment of all Payments required under Article 5.1 hereof, and
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upon the satisfaction and discharge of the Loan by the Port Authority, the
parties' obligations under this Agreement shall thereupon cease and terminate
in full.
Section 7.3. Rights and Remedies Cumulative. The rights and remedies
reserved by the Port Authority and the Bank and the parties hereunder and
those provided by law shall be construed as cumulative and continuing rights.
No one of them shall be exhausted by the exercise thereof on one or more
occasions. The Port Authority and the Bank and the parties hereto shall each
be entitled to specific performance and injunctive or other equitable relief
for any breach or threatened breach of any of the provisions of this
Agreement, notwithstanding availability of an adequate remedy at law, and each
party hereby waives the right to raise such defense in any proceeding in
equity.
Section 7.4. Waiver of Breach. No waiver of any breach of any covenant or
agreement herein contained shall operate as a waiver of any subsequent breach
of the same covenant or agreement or as a waiver of any breach of any other
covenant or agreement, and in case of a breach by any party hereto of any
covenant, agreement or undertaking by such party, the Port Authority or the
Bank may nevertheless accept from such party any payment or payments hereunder
without in any way waiving such party's right to exercise any of its rights
and remedies as provided herein with respect to any such default or defaults
of such party which were in existence at the time when such payment or
payments were accepted by such party.
Section 7.5. Bank's Exercise of the Bank's Remedies. The parties hereto
agree that the Bank is a third party beneficiary of this Relocation Funding
Agreement. Whenever a default hereunder shall have occurred and be
continuing, the Bank may, exercise any or all of the rights of the Port
Authority or the Bank under this Article, upon notice as required.
Section 7.6. No Acceleration. Notwithstanding anything herein to the
contrary, the Payments under this Relocation Funding Agreement are not subject
to acceleration upon the occurrence of an event of default hereunder.
Section 7.7. Delay or Omission Not a Waiver. No delay or omission of the
Port Authority or the Bank to exercise any right or power accruing upon any
Event of Default shall impair any such right or power, or shall be construed
to be a waiver of any such Event of Default or an acquiescence therein; and
every power and remedy given by this Agreement to the Port Authority or the
Bank may be exercised from time to time and as often as may be deemed
expedient by the Port Authority or the Bank.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.1. Amendments, Changes and Modifications. After the Closing Date
and prior to payment in full of the Loan, this Relocation Funding Agreement,
the Lease and the Loan Agreement may not be amended, changed, modified,
altered or terminated without the written consent of the Bank and the parties
to such agreements.
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Section 8.2. Instruments of Further Assurance. The City covenants that it
will do, execute, acknowledge and deliver, or cause to be done, executed,
acknowledged and delivered, such Agreement, and such further acts,
instruments, financing statements and other documents as the Bank may
reasonably require for the better assuring, pledging and assigning unto the
Bank the property and revenues herein described, to the payment of the
principal of and interest on the Loan.
Section 8.3. Payments Due on Saturdays, Sundays and Holidays. In any case
where the day for any Payment due under this Agreement shall be a Saturday, a
Sunday or a day which is not a Business Day, then payment need not be made on
such date but may be made on the next succeeding Business Day with the same
force and effect as if made on the date fixed for payment, and no interest
shall accrue for the period after such date. In the event Payments due are
not received, the Bank shall give notice to the City of such fact and the City
shall have ten (10) days after receipt of said notice to make the overdue
Payment before the Bank shall declare the City to be in default under this
Relocation Funding Agreement.
Section 8.4. Severability. In the event that any provision of this Agreement
shall be held invalid or unenforceable by any court of competent jurisdiction,
such holding shall not invalidate or render unenforceable any other provision
hereof.
Section 8.5. Immunity of Officers, Employees and Members of the City and the
Company. No recourse shall be had for the payment of the principal of or
interest on the Loan or for any claim based thereon or upon any
representation, obligation, covenant or agreement in this Agreement contained
against any past, present or future officer, member, employee, director,
alderman, official or agent of the City or the Company, or, respectively, of
any successor public or private corporation thereto, as such, either directly
or through the City, the Company, or respectively, any successor public or
private corporation thereto under any rule of law or equity, statute or
constitution or by the enforcement of any assessment or penalty or otherwise,
and all such liability of any such officers, members, employees, councilmen,
officials or agents as such is hereby expressly waived and released as a
condition of and consideration for the execution of this Agreement and the
issuance of the Reimbursement Obligation.
Section 8.6. Counterparts. This Agreement is being executed in any number of
counterparts, each of which is an original and all of which are identical.
Each counterpart of this Agreement is to be deemed an original hereof and all
counterparts collectively are to be deemed but one instrument.
Section 8.7. Governing Law. It is the intention of the parties hereto that
this Relocation Funding Agreement and the rights and obligations of the
parties hereunder shall be governed by and construed and enforced in
accordance with the laws of the State of Missouri.
Section 8.8. Notices. Any notice, demand or other communication required by
this Agreement to be given by either party hereto to the other shall be in
writing and shall be sufficiently given or delivered if dispatched by
certified United States first class mail, postage prepaid, or delivered
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personally,
(i) In the case of the Company, to:
President Riverboat Casino-Missouri, Inc.
802 North First Street
St. Louis, Missouri 63102
Attention: Mr. James A. Zweifel
with a copy to:
Thompson Coburn LLP
One Mercantile Center
St. Louis, Missouri 63101
Attention: Michael Lazaroff, Esq.
(ii) In the case of the City, to:
City of St. Louis
Comptroller
Room 212 City Hall
St. Louis, Missouri 63103
Attention: Comptroller
with a copy to:
City Counselor's Office
Room 314 City Hall
St. Louis, Missouri 63103
Attention: City Counselor
(iii) In the case of the Authority, to:
Port Authority of the City of St. Louis, Missouri
1015 Locust Street, Suite 1200
St. Louis, Missouri 63101
Attention: Port Director
(iv) In the case of the Bank, to:
Mercantile Bank National Association
One Mercantile Center
St. Louis, Missouri 63101
Attention: Mr. James Lally
or to such other address with respect to either party as that party may, from
time to time, designate in writing and forward to the other as provided in
this Section. Said notices shall be deemed received on the third (3rd)
business day after deposit in the United States mail or on the actual date
such notice is delivered.
Section 8.9. Suspension of Mail Service. If, because of the temporary or
permanent suspension of mail service or for any other reason, it is impossible
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or impractical to mail any notice in the manner herein provided, then such
delivery of notice in lieu thereof as shall be made with the approval of the
parties hereto shall constitute a sufficient notice.
Section 8.10. Execution of Loan. The City is hereby authorized to enter into
and the Mayor and Comptroller of the City and/or the President of the Board of
Aldermen and the Register of the City are hereby authorized and directed to
execute and deliver, for and on behalf of and as the act and deed of the City,
such other documents, certificates and instruments as may be necessary or
desirable to carry out and comply with the intent of this Agreement.
Section 8.11. Cooperation in Provision of Financial Information. The City
agrees to cooperate with the Bank in connection with the making of the Loan to
the Port Authority and to provide such financial and other information
regarding the City, the Gaming Revenues, this Agreement, the Lease, and the
transactions contemplated hereby, including audited financial statements and
projections of Gaming Revenues, as may be reasonably requested by the Bank or
its counsel.
Section 8.12. Further Authority. The City shall, and the officers, aldermen,
officials, agents and employees of the City, the Port Authority and the
Company are hereby authorized and directed to, take such further action, and
execute such other documents, certificates and instruments as may be necessary
or desirable to carry out and comply with the intent of this Agreement, and to
carry out, comply with and perform the respective duties of the City, the Port
Authority and the Company with respect to this Relocation Funding Agreement
and the Loan.
IN WITNESS WHEREOF, the City, the Port Authority, the Bank and the Company
have caused this Relocation Funding Agreement to be executed as of the day and
year first above written.
CITY OF ST. LOUIS, MISSOURI
ATTEST:
By: /s/ Clarence Harmon
---------------------------------------
/s/ Rita M. Kropf Mayor
------------------------------
Register
By: /s/ Darlene Green
---------------------------------------
Comptroller
Approved as to form only:
/s/ Thomas J. Ray
------------------------------------------
City Counselor
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PORT AUTHORITY OF THE CITY OF ST. LOUIS
ATTEST:
By: /s/ James W. Suelmann
---------------------------------------
/s/ Mary Giammaneo Chairman
------------------------------
(Assistant) Secretary
PRESIDENT RIVERBOAT CASINO-MISSOURI, INC.
ATTEST:
By: /s/ James A. Zweifel
---------------------------------------
/s/ Ralph J. Vaclavik Executive Vice President
------------------------------
(Assistant) Secretary
MERCANTILE BANK NATIONAL ASSOCIATION
ATTEST:
By: /s/ James B. Lally
/s/ Thomas S. Sherman ---------------------------------------
------------------------------ Vice President
Vice President
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EXHIBIT A
RELOCATION PROJECT COSTS
General Conditions $ 75,900
Design $ 554,151
Marine Construction $ 1,065,000
Plaza/Porte Cochere Const. $ 4,250,000
Ramp/Bridge Construction $ 910,000
Construction Management $ 70,000
Contingency $ 74,949
------------
Total $ 7,000,000
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EXHIBIT B
DESCRIPTION OF THE WORK
Relocation of the Admiral from its current mooring site to a new mooring site
and construction of site modifications and improvements at the new site
including, but not limited to, construction of a drive-up plaza and porte
cochere and installation of enhanced exterior lighting, construction of
mooring anchorages and protective cells and related equipment and related
professional fees and expenses.
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EXHIBIT C
LOAN AGREEMENT
THIS LOAN AGREEMENT (this "Agreement"), is dated and effective as of the 18th
day of January, 2000, by and between MERCANTILE BANK NATIONAL ASSOCIATION
("Bank"), a national banking association with a place of business at One
Mercantile Center, St. Louis, Missouri 63101, and the Port Authority of the
City of St. Louis ("Borrower"), a political subdivision of the State of
Missouri with its principal place of business at 1015 Locust Street, Suite
1200, St. Louis, Missouri 63101.
WHEREAS, Borrower has requested that Bank loan monies to Borrower in
connection with Borrower's obligations under the Relocation Funding Agreement
and;
WHEREAS, Bank is willing to lend monies to Borrower pursuant hereto.
NOW, THEREFORE, in consideration of any loan or advance or grant of credit
hereafter made by Bank to or for the benefit of Borrower and for good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
1. DEFINITIONS AND TERMS
1.1 The following terms and/or phrases shall have the meanings set forth and
shall be applicable to the singular and plural form, giving effect to the
numerical difference; whenever the context so requires, the use of "it" in
reference to Borrower shall mean Borrower as identified at the beginning of
this Agreement:
(A) "Affiliate": any Person that, directly or indirectly, through one or
more intermediaries, controls Borrower (a "Controlling Person") or any Person
(other than Borrower or a subsidiary) which is controlled by or is under
common control with a Controlling Person. As used herein, the term "control"
means possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person, whether through the
ownership of voting securities, by contract or otherwise.
(B) "Borrower's Liabilities": all obligations and liabilities of Borrower to
Bank (including, without limitation, all debts, claims and indebtednesses)
whether primary, secondary, direct, contingent, fixed or otherwise,
heretofore, now and/or from time to time hereafter owing, due or payable,
however evidenced, created, incurred, acquired or owing and however arising,
whether under this Agreement, the Note or any Other Agreements, or by
operation of law or otherwise.
(C) "Borrower's Obligations": all terms, conditions, warranties,
representations, agreements, undertakings, covenants and provisions (other
than Borrower's Liabilities) to be performed, discharged, kept, observed or
complied with by Borrower pursuant to this Agreement or under any Other
Agreements.
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(D) "Business Day": any day other than a Saturday, Sunday or legal holiday
observed by Bank.
(E) "Charges": all Federal, State, County, City and/or other governmental
taxes, levies, assessments, charges, claims or encumbrances upon and/or
relating to Borrower's business, Borrower's ownership and/or use of any of its
assets and/or Borrower's income and/or gross receipts.
(F) "Credit": the definition ascribed to this term in Section 2.1.
(G) "Environmental Law": the definition ascribed to this term in Section
4.1(E).
(H) "Event of Default": the definition ascribed to this term in Section 6.1.
(I) "Gaming Relocation Fund": as defined in the Relocation Funding
Agreement.
(J) "Gaming Revenue Fund": as defined in the Relocation Funding Agreement.
(K) "Indebtedness": all obligations and liabilities of Borrower to any
Person other than Bank (including, without limitation, all debts, claims and
indebtednesses) whether primary, secondary, direct, contingent, fixed or
otherwise, heretofore, now and/or from time to time hereafter owing, due or
payable, however evidenced, created, incurred, occurred or owing and howsoever
arising, whether under written or oral agreement, by operation of law, or
otherwise.
(L) "Leasehold Deed of Trust": the definition ascribed to this term in
Section 3.1
(M) "Loans": the definition ascribed to this term in Section 2.1.
(N) "Note": the promissory note in the form attached hereto as Exhibit A to
be executed and delivered by Borrower to Bank in evidence of the Credit (as
defined in Section 2.1).
(O) "Other Agreements": all agreements, instruments and documents,
including, without limitation, loan agreements, security agreements,
guaranties, mortgages, deeds of trust, notes, pledges, applications and
agreements for letters of credit, letters of credit, advises of credit,
bankers acceptances, notices, financing statements and all other written
matter heretofore, now and/or from time to time hereafter executed by and/or
on behalf of Borrower and delivered to Bank, or issued by Bank upon the
application and/or other request of, and on behalf of, Borrower.
(P) "Person": any individual, sole proprietorship, partnership, joint
venture, trust, unincorporated organization, association, corporation,
institution, entity, party or government (whether national, federal, state,
county, city, municipal or otherwise, including, without limitation, any
instrumentality, division, agency, body or department thereof).
(Q) "Relocation Funding Agreement": that certain Relocation Funding
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Agreement dated as of even date herewith, among The City of St. Louis,
Borrower and President Riverboat Casino - Missouri, Inc.
(R) "Termination Date": the date as set forth in Section 7.12.
(S) "Unmatured Event of Default": any event or condition which, with the
lapse of time or giving of notice to Borrower or both, would constitute an
Event of Default.
(T) "Year 2000 Compliant": with respect to any Person, all software,
embedded microchips and/or other computer and/or processing capabilities
utilized by such Person, and/or included in any software, products, goods
and/or services sold and/or leased by such Person, are able to correctly and
properly recognize, interpret, process, calculate, compare, sequence and
manipulate data and date-sensitive functions on and involving all calendar
dates (including, without limitation, dates in and after the year 2000).
1.2 Except as otherwise defined in this Agreement, all accounting words,
terms and/or phrases used herein shall have the meanings customarily given
them in accordance with generally accepted accounting principles.
2. CREDIT: GENERAL TERMS
2.1 Subject to the terms and conditions of this Agreement and the Other
Agreements and provided that an Event of Default or Unmatured Event of Default
does not then exist, Bank agrees to make such loans or advances (individually
a "Loan" and collectively, the "Loans") to Borrower, as Borrower may from time
to time request in accordance with the terms and conditions hereinafter set
forth of up to, but not in excess of, Two Million Four Hundred Thousand
Dollars ($2,400,000), at any time outstanding (the "Credit"). In the event
the outstanding principal balance of the Loans exceeds the limitations set
forth above, Borrower shall immediately and without notice or demand, make the
necessary payments to eliminate such excess. Advances of proceeds of the Loan
are to be made by Bank in accordance with the written disbursement
instructions of Borrower and are to be made not more frequently than once each
month during the term of the Loan.
2.2 Advances of proceeds of the Loan shall be made only with respect to
reimbursable relocation project costs, as described in Exhibit A to the
Relocation Funding Agreement and all proceeds, upon being so advanced, shall
be held in trust for such uses and purposes and none other. No part of the
Loan shall be disbursed for advertising or promotion fees or expenses or
overhead and administrative expenses. Requisitions of Loan proceeds shall
include only amounts actually submitted by or on behalf of Lessee (as defined
below) and its contractors, subcontractors and material suppliers in
connection with the Relocation Project (as such term is defined in the
Relocation Funding Agreement) which amounts have been approved by the
disbursing agent. No requisition shall include a request for funds not
actually due on account of materials supplied and delivered to the job site or
for work and labor not actually performed. Advances of proceeds of the Loan
shall not be made (anything herein to the contrary notwithstanding) at any
time Bank believes, in its discretion, that the Relocation Project will not be
completed within a reasonable period of time and in accordance with plans and
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specifications therefor previously provided to Bank or that the total costs of
the Relocation Project will exceed the total amount allocated thereto by more
than 10% pursuant to such plans and specifications approved by Bank (plus any
equity investments in the Relocation Project made in accordance with the
provisions of this section). Should Bank notify Borrower of an intention to
cease advances of Loan proceeds on the basis that the total costs of the
Relocation Project will exceed the amount allocated thereto pursuant to the
plans and specifications therefor approved by Lender (plus any equity
investment in the Relocation Project made in accordance with the provisions of
this paragraph), Borrower shall direct Lessee, within fifteen (15) days from
the date of such notice to make such equity investment (or additional equity
investment) in the Relocation Project as is necessary to satisfy Bank that the
relevant provisions of this paragraph have been satisfied, and if Lessee fails
to make such equity investment (or additional equity investment) within such
time, such failure shall be deemed an Event of Default under this Agreement.
Advances hereunder shall not be made (anything herein to the contrary
notwithstanding) during any period (i) that Borrower is not in full compliance
with this Agreement, which requires, without limitation, that no Event of
Default and no event which, with the giving of notice or lapse of time, or
both, would constitute such Event of Default shall have occurred and be
continuing, and no such Event of Default would result from the making of an
advance, (ii) that the representations and warranties as set forth herein
shall not be true and correct in all respects on and as of the date requested
for any advance, or (iii) that Borrower shall not have performed all
applicable covenants and agreements hereunder and shall have satisfied all
applicable conditions hereof on and as of the date requested for an advance.
It is expressly understood and agreed that the making of any advance or any
part thereof when Borrower is not entitled to such advance will not constitute
a waiver of compliance with the terms and conditions enumerated herein.
2.3 All Loans made hereunder and other liabilities of Borrower arising
hereunder shall be paid by Borrower on the Termination Date, unless payable
sooner pursuant to the terms of this Agreement and/or the Note, but may, at
Borrower's election, be repaid in whole or in part any time prior to such date
without premium or penalty unless otherwise stated in the Note. Amounts paid
by Borrower in respect of the Loan may not be reborrowed.
2.4 All fees, and all interest payable in respect of the Credit, shall be
computed on the basis of a year of 360 days, and charged for the actual number
of days elapsed. Whenever any payment to be made under this Agreement, the
Note or the Other Agreements shall be due on a non-Business Day, such payment
shall be made on the next succeeding Business Day, and such extension of time
shall be included in the computation of interest due upon the Credit.
2.5 The Loans will be repaid solely from the monies on deposit in the Gaming
Relocation Fund as established by and funded pursuant to the terms of the
Relocation Funding Agreement. Funds on deposit in the Gaming Relocation Fund
will be pledged to the payment of the Loans. On July 25, 2000 and on the 25th
day of each month thereafter during the term of the Relocation Funding
Agreement, Borrower shall pay to Bank all moneys in accordance with and
subject to the limitations as set forth in the Note.
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3. CONDITIONS PRECEDENT TO DISBURSEMENT
3.1 (A) The obligation of Bank to make the initial Loan to Borrower under
the Credit is subject to the condition precedent that Bank shall have received
each of the following, duly executed and in form and substance satisfactory to
Bank:
(i) Duly executed copy of this Agreement;
(ii) Note, payable to the order of Bank and dated as of the date of the
initial Loan;
(iii) Secretary's Certificate;
(iv) Leasehold Deed of Trust (the "Leasehold Deed of Trust") encumbering
Borrower's leasehold interest established pursuant to that certain Lease
Agreement dated of even date herewith among Borrower and The City of St.
Louis, Missouri, as lessors, and President Riverboat Casino Missouri, Inc., as
lessee;
(v) Leasehold mortgagee policy of title insurance insuring the lien of the
Leasehold Deed of Trust;
(vi) Escrow Agreement;
(vii) Guaranty of President Casinos, Inc.;
(viii) Bank shall have received and approved the final plans and
specifications for the Relocation Project together with all building or
construction permits necessary for completion of the Relocation Project,
copies of the construction contracts, budgets, requirements of the Port
Authority and the City and all related construction documentation;
(ix) Such other opinions, documents, certificates or approvals as Bank
reasonably may request; and
(x) Bank shall have received payment of all fees and expenses payable by
President Casino, Inc. and President Riverboat Casino-Missouri, Inc. in
connection with the transactions contemplated by this Agreement and the
related documents.
(B) The obligation of Bank to make the initial Loan and each subsequent Loan
is further subject to satisfaction of the following conditions precedent:
(i) Before and after giving effect to such Loan, no Event of Default or
Unmatured Event of Default shall have occurred and be continuing hereunder;
and
(ii) Before and after giving effect to such Loan, all representations and
warranties of Borrower hereunder and/or under the Other Agreements shall be
true and correct as though made on the date of such Loan.
(iii) Borrower shall cause all requests for advances to be submitted not more
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frequently than monthly to Bank. Bank shall have ten days to process any
request for an advance after it is received, provided the request is in proper
order. Borrower will utilize the requisition form attached hereto as Exhibit
B (and any other supplemental form required by Bank) and submit supporting
invoices in connection with requests for advances and each requisition shall
be signed by the contractor retained to perform such work, and accompanying
affidavits, in forms required by Bank, including, without limitation, Exhibit
B-1, shall be signed by an authorized officer of President Riverboat Casino-
Missouri, Inc. ("Lessee"). Requisitions will detail the application of the
funds being requested and will specify or refer to the contracts, subcontracts
and/or invoices to which the proceeds of the relevant advance will be applied
and will include copies of invoices from the major subcontractors and
suppliers and a general contractor's affidavit in substantially the form of
Exhibit B-2. The accompanying affidavit signed and provided by Lessee shall
show amounts previously drawn, amounts being drawn with such requisition and
amounts to be drawn. Bank may, at its option, withhold disbursements at any
time it is not satisfied that payments for labor and material for the
Relocation Projection are being made from the proceeds of the Loan and that
appropriate receipts and lien waivers have been received for the preceding
advances.
(iv) Appropriate lien waivers respecting the preceding advance shall have
been submitted to Borrower by all contractors, all subcontractors, all
materialmen and all suppliers evidencing disbursement and receipt of each
advance of the Loan proceeds in accordance with the requisition therefor.
Copies of all such lien waivers together with copies of all paid bills and
applications for payment shall be furnished to Bank on the earlier of (a)
thirty (30) days after the disbursement relative thereto or (b) at the time of
the succeeding request for an advance.
(v) The leasehold mortgagee policy of title insurance insuring the lien of
the Leasehold Deed of Trust shall be endorsed by the title insurance company
with no exceptions as to mechanics or materialmen's liens or survey matters
and so as to expressly insure each disbursement by Bank in the aggregate of
all such disbursements against exception for any and all filed or unfiled
liens or encumbrances.
(vi) Lessee shall have certified to Bank that Lessee is proceeding
continuously with the construction and completion of the Relocation Project
and that no defaults or events of default have occurred and are continuing
under any contract or subcontract executed by Lessee in connection therewith.
4. REPRESENTATIONS AND WARRANTIES
4.1 To induce Bank to enter into this Agreement and to make Loans to
Borrower, Borrower makes the following representations and warranties to Bank,
all of which shall survive the execution of this Agreement and the making of
the initial Loan:
(A) Borrower is a public corporation duly organized and existing and in good
standing under the laws of the State of Missouri and has all requisite power
and authority, corporate and/or otherwise, to conduct its business and to own
or lease its properties.
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(B) The execution, delivery and performance by Borrower of this Agreement and
the Other Agreements are within the powers of Borrower, corporate or
otherwise, have been duly authorized by all necessary corporate action and do
not and will not: (i) violate any provision of any certificate or articles of
incorporation, by-laws, or other agreements of Borrower or of any law, rule,
regulation, order, writ, judgment, injunction, decree, determination or award
binding upon or applicable to Borrower; (ii) require the consent or approval
of, or filing or registration with, any governmental body, agency or
authority; and/or (iii) result in a breach of or constitute a default under,
or result in the imposition of any lien, charge or encumbrance upon any
property of Borrower. This Agreement and the Other Agreements constitute
legal, valid and binding obligations of Borrower enforceable against Borrower
in accordance with their terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization and other similar laws of general
application affecting the enforcement of creditors' rights or by general
principles of equity.
(C) The operations of Borrower comply in all respects with the Comprehensive
Environmental Response, Compensation and Liability Act, any so-called
"Superfund" or "Superlien" law or any other federal, state or local laws,
rules, regulations, orders or decrees (collectively, "Environmental Laws")
relating to, or imposing liabilities or standards of conduct concerning any
hazardous substances, pollutants, contaminants, toxic or dangerous waste,
substance or material defined as such in any Environmental Law. There are no
actions or proceedings which are pending, or to the knowledge of Borrower
threatened, against Borrower under any Environmental Law.
(D) Borrower has and at all times hereafter shall have good and marketable
title to all of its assets, real and personal, free and clear of all liens,
security interests, mortgages, claims and/or encumbrances except those granted
in favor of Bank, those referred to in Section 5.1(A) hereof.
(E) Borrower is not in default with respect to any indenture, loan agreement,
mortgage, deed of trust or similar agreement relating to the borrowing of
monies to which it is a party or by which it is bound.
(F) Borrower has and is in good standing with respect to all governmental
permits, certificates, consents and franchises necessary to continue the
conduct of business conducted by it and to own or lease and operate its
properties as now owned or leased by it.
(G) Borrower is not a party to any agreement, instrument or undertaking, or
subject to any other restriction (i) which materially or adversely affects, or
may in the future so affect, the property, financial condition or business
operations of Borrower, or (ii) under or pursuant to which Borrower is or will
be required to place (or under which any other Person may place) a lien upon
any of its properties to secure payment and/or performance of any liability or
obligation, either upon demand or upon the happening of any condition or
event, with or without demand.
(H) There are no actions or proceedings which are pending or threatened
against Borrower, which (i) relate to the execution, delivery or performance
of this Agreement and/or any of the Other Agreements, or (ii) would cause any
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material adverse change in the property, financial condition or business
operations of Borrower.
(I) The proceeds of any Loan shall be used for proper business purposes and
consistently with all applicable laws and statutes. Borrower is not in the
business of extending credit for the purpose of purchasing or carrying margin
stock (within the meaning of Regulation U issued by the Board of Governors of
the Federal Reserve System), and no proceeds of any Loan shall be used to
purchase or carry any margin stock or to extend credit to others for the
purpose of purchasing or carrying any margin stock.
(J) No information, exhibit or report furnished by Borrower to Bank in
connection with the negotiation, execution or future performance of this
Agreement contains any false or misleading information or misstatement of any
facts.
(K) Borrower has (a) undertaken a detailed inventory, review and assessment
of all areas within its business and operations that could be adversely
affected by the failure of Borrower to be Year 2000 Compliant on a timely
basis, (b) developed a detailed plan and timeline for becoming Year 2000
Compliant on a timely basis and (c) to date, implemented such plan in
accordance with such timetable in all material respects. Borrower reasonably
anticipates that it will be Year 2000 Compliant on a timely basis, except to
the extent such noncompliance could not reasonably be expected to have a
material adverse effect on Borrower or its properties, assets, liabilities,
business, operations, prospects, income or condition (financial or otherwise)
is not aware that any of its key suppliers, vendors or customers will not, on
a timely basis, be Year 2000 Compliant, except to the extent such
noncompliance could not reasonably be expected to have a material adverse
effect on the properties, assets, liabilities, business, operations,
prospects, income or condition (financial or otherwise) of such Person. For
purposes of this paragraph (K), "key suppliers, vendors and customers" refers
to those suppliers, vendors and customers of Borrower whose business failure
could reasonably be expected to have a material adverse effect on Borrower or
its properties, assets, liabilities, business, operations, prospects, income
or condition (financial or otherwise).
5. COVENANTS
5.1 So long as any of Borrower's Liabilities shall remain unpaid, Borrower
shall not do any of the following without the prior written consent of Bank:
(A) Create or permit to be created or allow to exist any mortgage, pledge,
encumbrance or other lien upon or security interest in any property or assets
encumbered by the Leasehold Deed of Trust or held in the Gaming Relocation
Fund.
(B) Liquidate or dissolve, or merge with or into or consolidate with or into
any other Person, or sell, lease, transfer or otherwise dispose of all or any
substantial part of its property, assets or business (other than sales and
leases made in the ordinary course of business), amend, modify or supplement
Borrower's certificate or articles of incorporation, bylaws or other document
evidencing the existence of Borrower as a legal entity.
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(C) Amend or consent to the amendment of the Relocation Funding Agreement.
5.2 So long as any of Borrower's Liabilities shall remain unpaid, Borrower
shall do all of the following or cause the following to be done by third party
sublessee, unless waived in writing by Bank:
(A) Maintain insurance in such amounts and against such risks as are
customary by public corporations engaged in the same or similar businesses and
similarly situated. Borrower will cause the property or assets encumbered by
the Leasehold Deed of Trust to be insured, against loss or damage of the kind
customarily insured against by such corporations, unless higher limits or
coverage are reasonably required in writing by Bank, and cause the lessee
under the lease agreement encumbered by the Leasehold Deed of Trust to carry
adequate liability insurance and other insurance of a kind and in an amount
generally carried by corporations engaged in the same or similar businesses
similarly situated, unless higher limits or coverage are reasonably required
in writing by Bank. UNLESS BORROWER PROVIDES EVIDENCE OF THE INSURANCE
COVERAGE REQUIRED UNDER THIS AGREEMENT AND THE OTHER AGREEMENTS, BANK MAY
PURCHASE INSURANCE AT BORROWER'S EXPENSE TO PROTECT BANK'S INTEREST IN THE
COLLATERAL. THIS INSURANCE MAY, BUT NEED NOT, PROTECT BORROWER'S INTERESTS.
THE COVERAGE THAT BANK PURCHASES MAY NOT PAY ANY CLAIM THAT BORROWER MAY MAKE
OR ANY CLAIM THAT IS MADE AGAINST BORROWER IN CONNECTION WITH THE COLLATERAL.
BORROWER MAY LATER CANCEL ANY INSURANCE PURCHASED BY BANK, BUT ONLY AFTER
PROVIDING EVIDENCE THAT BORROWER HAS OBTAINED INSURANCE AS REQUIRED BY THIS
AGREEMENT AND THE OTHER TRANSACTION DOCUMENTS. IF BANK PURCHASES INSURANCE
FOR THE COLLATERAL, BORROWER WILL BE RESPONSIBLE FOR THE COSTS OF THAT
INSURANCE, INCLUDING THE INSURANCE PREMIUM, INTEREST AND ANY OTHER CHARGES
BANK MAY IMPOSE IN CONNECTION WITH THE PLACEMENT OF INSURANCE, UNTIL THE
EFFECTIVE DATE OF THE CANCELLATION OR EXPIRATION OF THE INSURANCE. THE COSTS
OF THE INSURANCE MAY BE ADDED TO THE BORROWER'S LIABILITIES. THE COSTS OF THE
INSURANCE MAY BE MORE THAN THE COST OF INSURANCE BORROWER MAY BE ABLE TO
OBTAIN ON ITS OWN.
(B) Within twenty (20) days after each calendar quarter, the Borrower will
deliver a report on the deposits and expenditures for the Gaming Revenue Fund
and Gaming Relocation Fund certified as to accuracy by a authorized
representative from the budget or comptroller's office.
(C) Permit representatives of Bank to visit and inspect any of the properties
and examine any of the books and records of Borrower at any reasonable time
and as often as reasonably may be desired.
(D) Possess and maintain all necessary franchises, patents, trademarks,
tradenames, copyrights and licenses to conduct its respective business(es).
(E) Take any and all actions necessary to assure that Borrower will be Year
2000 Compliant as soon as reasonably practical. Borrower will be Year 2000
Compliant by December 31, 1999, except to the extent such noncompliance could
not reasonably be expected to have a material adverse effect on the property,
financial condition or business operations of Borrower. At the request of
Bank, Borrower will from time to time provide Bank with written reports in
form and detail satisfactory to Bank on the status of the efforts of Borrower
to be Year 2000 Compliant.
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(F) Cause to be operated on the real property encumbered by the Leasehold
Deed of Trust a revenue producing gaming facility.
6. DEFAULT
6.1 The occurrence of any one of the following shall constitute a default
("Event of Default") by Borrower under this Agreement:
(A) If Borrower shall fail to pay any of Borrower's Liabilities, when due and
payable, or declared due and payable;
(B) If Borrower shall default in the performance or observance of any of
Borrower's Obligations (not constituting an Event of Default under any other
clause of this Section 6.1);
(C) If any representation, warranty, statement, report or certificate made or
delivered by Borrower, or any of its officers, employees or agents, to Bank is
not true and correct in any material respect when made or deemed made;
(D) If Borrower shall (i) become insolvent, (ii) not be paying their
respective debts generally as such debts become due, (iii) make an assignment
for the benefit of creditors or cause or suffer any of their respective assets
to come within the possession of any receiver, trustee or custodian, (iv) have
a petition filed by or against any of them under the Bankruptcy Reform Act of
1978, as amended, or any similar law or regulation, (v) have any of their
respective assets attached, seized or levied upon or (vi) otherwise become the
subject of any insolvency or creditor enforcement proceedings;
(E) If Borrower shall default in the payment, when due, whether by
acceleration or otherwise, of any Indebtedness of Borrower, and such default
is declared and is not cured within the time, if any, specified therefore in
any agreement governing the same, or any event or condition shall occur which
results in the acceleration of the maturity of any Indebtedness of Borrower or
enables the holder thereof to accelerate the maturity of any such
Indebtedness;
(F) If one or more judgments or decrees shall be entered against Borrower
involving, individually, or in the aggregate, a liability of $10,000.00 or
more and such judgments or decrees shall not have been vacated discharged or
stayed pending appeal within sixty (60) days after the entry thereof;
(G) If this Agreement or any of the Other Agreements, including, without
limitation, the Note, at any time after their respective execution and
delivery, shall cease to be in full force and effect, shall be declared null
and void, shall be revoked or terminated or shall be subject to any contest by
any Person as to their validity and/or enforceability, for any reason, or if
Borrower shall for any reason deny any further liability to Bank hereunder and
thereunder; or
(H) The occurrence of any default or Event of Default under any of the Other
Agreements which is not cured within the time, if any, specified in such Other
Agreement.
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6.2 Upon the occurrence of any Event of Default or upon the occurrence, and
during the continuance of any of the events described in Section 6.1
(notwithstanding Borrower's right to cure same), Bank shall have no further
obligation to, and may then forthwith cease making Loans to or for the benefit
of Borrower under this Agreement and the Other Agreements without any notice
to Borrower. Upon an Event of Default, without notice by Bank to or demand by
Bank of Borrower, Borrower's Liabilities shall be immediately due and payable.
Bank, in its sole discretion, upon an Event of Default may exercise one or
more of the rights and remedies accruing to Bank under this Agreement or any
of the Other Agreements or the Relocation Funding Agreement upon a default by
Borrower.
6.3 Upon the occurrence of an Event of Default under Section 5.2(F) or upon
the occurrence, and during the continuance of the event described in Section
5.2(F) (notwithstanding Borrower's right to cure same), Borrower shall
cooperate with the City of St. Louis and with Bank in an effort to (a) re-
sublet the premises encumbered by the Leasehold Deed of Trust to an entity
which is licensed to operate a revenue producing gaming facility and covenants
to operate such a facility on the subleasehold premises and (b) re-establish
deposits from the Gaming Revenue Fund to the Gaming Relocation Fund in the
manner and in amounts contemplated by Section 4.3 of the Relocation Funding
Agreement.
7. MISCELLANEOUS
7.1 Borrower waives the right to direct the application of any and all
payments at any time or times hereafter received by Bank on account of
Borrower's Liabilities and Borrower agrees that Bank shall have the continuing
exclusive right to apply and reapply any and all such payments in such manner
as Bank may deem advisable, notwithstanding any entry by Bank upon any of its
books and records.
7.2 This Agreement and the Other Agreements may not be modified, altered or
amended except by an agreement in writing signed by Borrower and Bank.
Borrower may not sell, assign or transfer this Agreement or the Other
Agreements or any portion thereof, including, without limitation, Borrower's
rights, titles, interests, remedies, powers and/or duties thereunder.
Borrower consents to Bank's grant of participations in or sale, assignment,
transfer or other disposition, at any time or from time to time hereafter, of
this Agreement or the Other Agreements, or any portion thereof, including,
without limitation, Bank's rights, titles, interests, remedies, powers and/or
duties.
7.3 Bank's failure at any time or times hereafter to require strict
performance by Borrower or failure to enforce Bank's rights, under any
provision of this Agreement or the Other Agreements shall not waive, affect or
diminish any right of Bank thereafter to demand strict compliance and
performance therewith or to enforce Bank's rights. Any suspension or waiver
by Bank of an Event of Default shall not suspend, waive or affect any other
Event of Default, whether the same is prior or subsequent thereto and whether
of the same or of a different type. None of the undertakings, agreements,
warranties, covenants and representations of Borrower contained in this
Agreement and the Other Agreements, and no Event of Default by Borrower under
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<PAGE> 144
this Agreement and the Other Agreements, shall be deemed to have been
suspended or waived by Bank unless such suspension or waiver is by an
instrument in writing signed by an officer of Bank and directed to Borrower
specifying such suspension or waiver.
7.4 If any provision of this Agreement or the Other Agreements or the
application thereof is held invalid or unenforceable, the remainder of this
Agreement and the application of such provision to other Persons or
circumstances will not be affected thereby and the provisions of this
Agreement and the Other Agreements shall be severable in any such instance.
7.5 This Agreement and the Other Agreements shall be binding upon and inure
to the benefit of the successors and assigns of Borrower and Bank. This
provision, however, shall not be deemed to modify Section 7.2 hereof.
7.6 Except as otherwise specifically provided in this Agreement, Borrower
waives any and all notice or demand which Borrower might be entitled to
receive with respect to this Agreement by virtue of any applicable statute or
law, and waives presentment, demand and protest and notice of presentment,
protest, default, dishonor, non-payment, maturity, release, compromise,
settlement, extension or renewal of any or all commercial paper, accounts,
contract rights, documents, instruments, chattel paper and guaranties at any
time held by Bank on which Borrower may in any way be liable and hereby
ratifies and confirms whatever Bank may do in this regard.
7.7 [Reserved]
7.8 This Agreement and the Other Agreements are submitted by Borrower to Bank
(for Bank's acceptance or rejection thereof) at Bank's principal place of
business as an offer by Borrower to borrow monies from Bank and shall not be
binding upon Bank or become effective until and unless accepted by Bank, in
writing, at said place of business. If so accepted by Bank, this Agreement
and the Other Agreements shall be deemed to have been made at said place of
business. This Agreement and the Other Agreements shall be governed and
controlled by the internal laws of the State of Missouri as to interpretation,
enforcement, validity, construction, effect and in all other respects, without
reference to principles of choice of law.
7.9 TO INDUCE BANK TO ACCEPT THIS AGREEMENT AND THE OTHER AGREEMENTS,
BORROWER, IRREVOCABLY, AGREES THAT, SUBJECT TO BANK'S SOLE AND ABSOLUTE
ELECTION, ALL ACTIONS OR PROCEEDINGS IN ANY WAY, MANNER OR RESPECT ARISING OUT
OF OR FROM OR RELATED TO THIS AGREEMENT, THE OTHER AGREEMENTS OR THE
COLLATERAL SHALL BE LITIGATED ONLY IN COURTS HAVING SITUS WITHIN THE CITY OF
ST. LOUIS, STATE OF MISSOURI. BORROWER HEREBY CONSENTS AND SUBMITS TO THE
JURISDICTION OF ANY LOCAL, STATE OR FEDERAL COURT LOCATED WITHIN SAID CITY AND
STATE. BORROWER HEREBY WAIVES ANY RIGHT IT MAY HAVE TO TRANSFER OR CHANGE THE
VENUE OF ANY LITIGATION BROUGHT IN ACCORDANCE WITH THIS SECTION. BORROWER AND
BANK IRREVOCABLY WAIVE THE RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY ACTION
IN WHICH BORROWER AND BANK ARE PARTIES.
7.10 If at any time or times hereafter Bank employs counsel (including
attorneys who are employees of Bank and/or any of its affiliates) (A) for
advice or other representation with respect to this Agreement, the Note or the
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<PAGE> 145
Other Agreement or the administration of the Credit, (B) to represent Bank in
any litigation, contest, dispute, suit or proceeding or to commence, defend or
intervene or take any other action in or with respect to any such matter, or
(C) to enforce any rights of Bank against Borrower and/or any Guarantor, the
reasonable costs, fees and expenses incurred by Bank in any manner or way with
respect to the foregoing, shall be part of Borrower's Liabilities, payable by
Borrower to Bank on demand. For purposes of this Agreement "affiliate" of the
Bank shall include but not be limited to Firstar Corporation, a Wisconsin
corporation ("Firstar") and any banking or non-banking subsidiary of Firstar,
whether owned, controlled by, controlling or under common control with Firstar
directly or individually through any subsidiary. If any other action or suit
is brought by a party hereto against the other party hereunder concerning a
matter arising out of this Agreement, the prevailing party shall be entitled
to reimbursement, on demand, of all costs and expenses of suit, including
attorneys' fees.
7.11 To the extent that Bank receives any payment on account of Borrower's
Liabilities, and any such payment(s) or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside,
subordinated and/or required to be repaid to a trustee, receiver or any other
party under any bankruptcy act, state or federal law, common law or equitable
cause, then, to the extent of such payment(s) received, Borrower's
Liabilities, or part thereof intended to be satisfied shall be revived and
continue in full force and effect, as if such payment(s) had not been received
by Bank and applied on account of Borrower's Liabilities.
7.12 This Agreement shall terminate upon payment in full of all amounts due
and owing under the Note unless the Credit is otherwise terminated pursuant to
the terms of this Agreement. Borrower may terminate the Credit at any time
upon written notice to Bank and payment in full of the outstanding principal
balance of, and accrued and unpaid interest on, the Loans and all other of
Borrower's Liabilities under this Agreement. All of Bank's rights and
remedies, the liens and security interest of Bank in the Collateral and all of
Borrower's Liabilities shall survive termination of the Credit extended to
Borrower hereunder until all of the Borrower's Liabilities have been paid in
full. The termination or cancellation of the Credit shall not affect or
impair the liabilities and obligations of Borrower to Bank or Bank's rights
with respect to any Loans and advances made and other Borrower's Liabilities
incurred prior to such termination or with respect to the Collateral.
7.13 All notices, requests and other communications to any party hereunder
shall be in writing and shall be given to such party at its address set forth
on the signature pages hereof or such other address as such party may
hereafter specify. Each such notice, request or other communication shall be
effective (i) if given by mail, 72 hours after such communication is deposited
in the mails with first class postage prepaid, addressed as aforesaid or (ii)
if given by any other means, when delivered at the address specified in this
Section.
7.14 ORAL AGREEMENTS OR COMMITMENTS TO LOAN MONEY, EXTEND CREDIT OR TO
FORBEAR FROM ENFORCING REPAYMENT OF A DEBT INCLUDING PROMISES TO EXTEND OR
RENEW SUCH DEBT ARE NOT ENFORCEABLE. TO PROTECT BORROWER AND BANK FROM
MISUNDERSTANDING OR DISAPPOINTMENT, ANY AGREEMENTS WE REACH COVERING SUCH
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<PAGE> 146
MATTERS ARE CONTAINED IN THIS WRITING WHICH IS THE COMPLETE AND EXCLUSIVE
STATEMENT OF THE AGREEMENT BETWEEN US, EXCEPT AS WE MAY LATER AGREE IN WRITING
TO MODIFY IT.
IN WITNESS WHEREOF, this Agreement has been duly executed as of the day and
year specified at the beginning hereof.
BORROWER:
ATTEST: THE PORT AUTHORITY OF THE CITY OF ST.
LOUIS
(Corporate Seal)
/s/ Mary Giammaneo
------------------------------ By: /s/ James W. Suelmann
Secretary ---------------------------------------
Name: James W. Suelmann
-------------------------------------
Title: Chairman
------------------------------------
Address: 1015 Locust Street, Suite 1200
St. Louis, Missouri 63101
Attn: Nick Nichols
---------------------------
BANK:
MERCANTILE BANK NATIONAL ASSOCIATION
By: /s/ James B. Lally
---------------------------------------
Name: James B. Lally
-------------------------------------
Title: Vice President
------------------------------------
Address: One Mercantile Center
St. Louis, Missouri 63101
Attn: James B. Lally
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<PAGE> 147
Acknowledged and agreed:
SUBLESSEE:
PRESIDENT RIVERBOAT CASINO-MISSOURI, INC.
By: /s/ James A. Zweifel
----------------------------------
Name: James A. Zweifel
--------------------------------
Title: Exec. V.P. & CFO
-------------------------------
Address: 802 N. 1st Street
St. Louis, Missouri 63102
Attn: James A. Zweifel
---------------------
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EXHIBIT A
PROMISSORY NOTE
$2,400,000.00 Date: January 18, 2000
St. Louis, Missouri
FOR VALUE RECEIVED, the undersigned, THE PORT AUTHORITY OF THE CITY OF ST.
LOUIS, a political subdivision of the State of Missouri ("Borrower"), hereby
unconditionally promises to pay to the order of MERCANTILE BANK NATIONAL
ASSOCIATION ("Bank") the principal sum of Two Million Four Hundred Thousand
Dollars ($2,400,000.00), or such lesser sum as may then constitute the
aggregate unpaid principal amount of all Loans made by Bank pursuant to the
Loan Agreement referred to below. The aggregate principal amount of Loans
which Bank shall be committed to have outstanding under this Note at any one
time shall not exceed Two Million Four Hundred Thousand Dollars
($2,400,000.00), subject to the terms and conditions of this Note and the Loan
Agreement.
Borrower further promises to pay to the order of Bank interest on the unpaid
principal balance from time to time outstanding under this Note prior to
maturity at a rate of Nine and Three Quarters of One Percent (9.75%) per
annum. Said interest shall be payable monthly on the twenty-fifth (25th) day
of each month commencing January 25, 2000 and at the maturity of this Note,
whether by reason of acceleration or otherwise.
Pursuant to the terms of the Loan Agreement, Borrower shall remit to Bank all
funds on deposit in the Gaming Relocation Fund. Such payments shall commence
on July 25, 2000, and shall thereafter be payable monthly on the twenty-fifth
day of each month thereafter and at the maturity of this Note, whether by
reason of acceleration or otherwise. All payments received by Bank shall be
applied first to the payment of accrued and unpaid late fees and the costs and
expenses hereinafter described, next to accrued and unpaid interest hereon,
and the remainder to principal. At such time during any fiscal year of the
City of St. Louis commencing with fiscal year 2000/2001, as Bank shall have
received Six Hundred Thousand Dollars ($600,000) in the aggregate in payments
by Borrower from the Gaming Relocation Fund for application to amounts payable
hereunder pursuant to the foregoing sentence, accrued but unpaid interest
hereon shall thereafter be capitalized and added to the principal balance of
this Note on the twenty-fifth day of each month during the remainder of such
fiscal year. Upon commencement of the immediately succeeding fiscal year of
the City of St. Louis, cash interest payments on this Note shall resume in
accordance with the second preceding sentence of this paragraph. On the
Termination Date (as defined in the Loan Agreement) Borrower shall pay to Bank
an amount equal to the entire unpaid principal balance hereunder together with
all unpaid interest with respect thereto.
After the occurrence of an Event of Default, interest shall be payable on
demand on the outstanding principal balance at a rate equal to four percent
(4%) per annum in excess of the otherwise payable rate. In addition, if
Borrower fails to make any payment of any principal or interest on this Note
when due, Borrower promises to pay to the order of Bank on demand a late fee
in an amount equal to 5% of each late payment. Interest shall be computed on
the basis of a year consisting of 360 days and paid for actual days elapsed.
<PAGE> 149
All required payments shall be made in immediately available funds in lawful
money of the United States of America at the office of Bank situated at 721
Locust Street, St. Louis, Missouri 63101 or at such other place as the holder
may designate in writing. The acceptance by the holder hereof of any
principal or interest due after the date it is due as described above shall
not be held to establish a custom or waive any rights of the holder to enforce
prompt payment of any other principal or interest payments or otherwise.
Bank may record the date and amount of all loans and all payments hereunder in
the records it maintains. Bank's books and records showing the account
between Bank and Borrower shall be conclusive evidence of the amounts
outstanding under this Note in the absence of manifest error.
This Note is referred to in that certain Loan Agreement dated the date hereof
by and between Borrower and Bank to which reference is made for a statement of
additional terms and conditions, including acceleration, which may affect this
Note.
Borrower has the right to prepay this Note in whole or in part at any time
without penalty or premium, provided: (1) all billed and unpaid interest
which has not yet been capitalized shall accompany such prepayment; (2) there
is not a default under any of the terms of this Note at the time of
prepayment; and (3) all prepayments shall be credited and applied to the
installments of principal in inverse order of their stated maturity.
Borrower agrees to pay to Bank, upon demand by Bank, all reasonable costs,
charges and expenses (including, without limitation the reasonable fees and
expenses of any attorney [including but not limited to, any attorney employed
by Bank or any affiliate of Bank] retained by Bank) incurred by Bank in
connection with (a) the collection or enforcement of Borrower's liabilities
and obligations under this Note, (b) the collection and enforcement of Bank's
right in and to any "Collateral" (hereinafter defined), and/or (c) any
litigation, contest, dispute or other proceeding (whether instituted by Bank,
Borrower or any other person or entity) in any way relating to Borrower's
liabilities and obligations hereunder and/or to the Collateral. Borrower's
obligations, as aforesaid, shall survive payment of this Note. For purposes
of this Note, the term "affiliate of Bank" shall mean Firstar Corporation, a
Wisconsin corporation ("Firstar") and any banking or non-banking subsidiary of
Firstar, whether owned or controlled by controlling or under common control
with Firstar directly or indirectly through any subsidiary, and their
respective successors and assigns.
If any other action or suit is brought by a party hereto against the other
party hereunder concerning a matter arising out of this Note, the prevailing
party shall be entitled to reimbursement, on demand, of all costs and expenses
of suit, including attorneys' fees.
Presentment, demand for payment, protest and notice of dishonor and of protest
are hereby severally waived by all parties hereto, whether as maker, endorser
or guarantor to Bank.
The liabilities and obligations of Borrower under this Note shall be secured
by (a) that certain Future Advance Leasehold Deed of Trust of even date
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herewith (the "Deed of Trust") among Borrower, Bank and Tarquad Corporation,
as trustee, and (b) any and all of Bank's security interests, liens or
encumbrances from time to time hereafter granted by Borrower and/or any
endorser or guarantor to Bank, if any (collectively the "Collateral").
If any of the following events ("Events of Default") shall occur: (a) the
Obligor (which term shall mean the undersigned and each other party primarily
or secondarily liable to Bank on this Note) shall fail to make any payment on
this Note as and when the same shall become due and payable; (b) the Obligor
shall fail to perform or observe any terms, conditions, warranties,
representations, undertakings, covenants and provisions to be performed,
discharged, kept, observed or complied with under any agreement, instrument,
document, loan agreement, security agreement, mortgage deeds of trust or any
other written matter heretofore, now and/or from time to time hereafter
executed by or on behalf of the Obligor and delivered to Bank; (c) any Obligor
shall (i) apply for or consent to the appointment of a receiver, trustee,
custodian or liquidator of itself for of all or a substantial part of its
assets, (ii) be unable, or admit in writing its inability, to pay its debts as
they mature, (iii) make a general assignment for the benefit of creditors,
(iv) be adjudicated a bankrupt or insolvent, (v) file a voluntary petition in
bankruptcy, or seek an arrangement with creditors, or take advantage of any
insolvency law or file an answer admitting the material allegations of a
petition filed against itself in any bankruptcy, reorganization or insolvency
proceedings or (vi) take any action to effectuate any of the foregoing; (d) an
injunction, attachment or judgment for an amount in excess of $100,000 shall
be issued against any of the property or assets of any Obligor; (e) any
Obligor shall become insolvent in either the equity or bankruptcy sense of the
term; (f) any Obligor shall have a judgment entered against it by a court
having jurisdiction in the premises, and such judgment shall not be appealed
in good faith or satisfied by such Obligor within thirty (30) days after the
entry of such judgment for an amount in excess of $100,000; (g) any Obligor
shall fail (and such failure shall not have been cured or waived) to perform
or observe any term, provision or condition of, or any other default or event
of default shall occur under, any agreement, document or instrument evidencing
or securing any outstanding indebtedness of such Obligor for borrowed money
(other than this Note) for an amount in excess of $100,000, if the effect of
such failure or default is to cause or permit such indebtedness to be declared
to be due and payable or otherwise accelerated, or to be required to be
prepaid (other than by a regularly scheduled required prepayment), prior to
the stated maturity thereof; (h) a default or event of default shall occur
under or within the meaning of any agreement, document or instrument
evidencing, securing, guaranteeing the payment of or otherwise relating to
this Note or any such agreement, document or instrument shall cease to be in
full force and effect (provided if the guaranty of this Note shall cease to be
in full force and effect, the remedy hereunder shall be to cease making future
advances under this Note); (i) any guaranty of this Note shall be declared
null and void by a court of competent jurisdiction, or if the validity or
enforceability thereof shall be contested or denied by any party thereto, or
if any party thereto shall deny that it has any further liability or
obligation thereunder or if any party thereto shall fail to comply with or
observe any of the terms, provisions or conditions contained in said guaranty
(provided that the only remedy for an event of default under (i) hereunder
shall be to cease making future advances under this Note); (j) any material
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change in the ownership of any Obligor; (k) any Obligor, without the prior
written consent of Bank, becomes a party to any reorganization, merger or
consolidation; (l) death of any Obligor who is a natural person or of any
partner of any Obligor which is a partnership; (m) sale, transfer, assignment
or other conveyance of any real property which is Collateral for this Note
without the prior written consent of Bank; or (n) any Obligor shall be
declared by Bank to be in default on, or pursuant to the terms of, (i) any
other future obligation to Bank, including, without limitation, any loan, line
of credit, revolving credit, guaranty or letter of credit reimbursement
obligation, or (ii) any other present or future agreement purporting to convey
to Bank a lien or encumbrance upon, or a security interest in, any of the
property or assets of such Obligor; then, and in each such event, the holder
of this Note may, at its option, declare the entire outstanding principal
amount of and all billed/due and unpaid interest on this Note and all other
amounts payable by the Borrower hereunder to be immediately due and payable,
whereupon all of the unpaid principal amount, billed/due interest and all such
other amounts shall become and be immediately due and payable, without
presentment, demand, protest or further notice of any kind, all of which are
hereby expressly waived by the Borrower, and the holder of this Note may
exercise any and all other rights and remedies which it may have under any
other agreement, document or instrument evidencing, securing or guaranteeing
the payment of this Note or under applicable law.
To the extent that Bank receives any payment on account of Borrower's
liabilities and any such payment(s) or any part thereof is subsequently
invalidated, declared to be fraudulent or preferential, set aside,
subordinated and/or required to be repaid to a trustee, receiver or any other
party under any bankruptcy act, state or Federal law, common law or equitable
cause, then, to the extent of such payment(s) received, Borrower's liabilities
or part thereof intended to be satisfied and any and all liens, security
interests, mortgages and/or other encumbrances upon or pertaining to any
Collateral of Borrower and theretofore created and/or existing in favor of
Bank as security for the payment of such Borrower's liabilities shall be
revived and continue in full force and effect, as if such payment(s) had not
been received by Bank and applied on account of Borrower's liabilities.
Except as set forth in this paragraph, Borrower shall not be personally liable
for the payment of any sums due hereunder or under the Loan Agreement nor for
the performance of any obligations of Borrower hereunder or under the Loan
Agreement. No judgment for the repayment of the liabilities and obligations
of Borrower under this Note will be sought or enforced against Borrower
personally or any property of Borrower other than the Collateral and moneys
now or hereafter appropriated by the Board of Aldermen of the City of St.
Louis from the Gaming Revenue Fund and designated for deposit into the Gaming
Relocation Fund, to the extent the City shall not have previously paid such
moneys to Bank pursuant to the applicable provisions of (and as such terms are
defined in) the Relocation Funding Agreement and any other property of
Borrower furnished or pledged as security under the Loan Agreement or under
any of the Other Agreements (as defined in the Loan Agreement) in any action
to foreclose the Deed of Trust or to otherwise realize upon any other
Collateral or to collect any amount payable hereunder or thereunder; provided
however, that:
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<PAGE> 152
(a) Nothing herein contained shall be construed as prohibiting Bank from
exercising any and all remedies which the Loan Agreement or the Other
Agreements permit, including the right to bring actions or proceedings against
Borrower and to enter a judgment against Borrower, or to obtain injunctive or
other equitable relief against Borrower in order to prevent a breach of the
Loan Agreement or the Other Agreements, so long as the exercise of any remedy
does not extend to execution against or recovery out of the property of
Borrower other than the Collateral, or, in the case of specific performance or
other injunctive relief, does not require the expenditure of money except out
of the Collateral;
(b) Borrower shall be personally liable for: (i) the commission of fraud or
any material misrepresentation made in connection with the loan evidenced by
this Note; (ii) misappropriation or misapplication of funds associated with
the Collateral or failure to apply funds in accordance with the provisions of
the Loan Agreement or the Other Agreements, including, but not limited to, (w)
lease security deposits and prepaid rents, (x) casualty insurance proceeds and
condemnation awards, (y) amounts collected by Borrower in respect of
judgments, settlements or bankruptcy claims for unpaid rent, and (z) gross
revenues from the Collateral not applied to payment of the expenses of the
Collateral, including, without limitation, real estate taxes, debt service and
other expenditures required by the Loan Agreement and the Other Agreements;
(iii) loss in connection with the Collateral not reimbursed by insurance
resulting from (x) failure to have in effect insurance policies required by
the Loan Agreement or the Other Agreements, (y) the deductible provisions of
any required policy or (z) the successful assertion of any defense or offset
by an insurer under any required policy based on an act or omission by
Borrower or any of its agents, successors or assigns, including successors in
interest; and (iv) the commission of waste in connection with the Collateral.
ORAL AGREEMENTS OR COMMITMENTS TO LOAN MONEY, EXTEND CREDIT OR TO FORBEAR FROM
ENFORCING REPAYMENT OF A DEBT INCLUDING PROMISES TO EXTEND OR RENEW SUCH DEBT
ARE NOT ENFORCEABLE. TO PROTECT BORROWER AND BANK FROM MISUNDERSTANDING OR
DISAPPOINTMENT, ANY AGREEMENTS WE REACH COVERING SUCH MATTERS ARE CONTAINED IN
THIS WRITING, WHICH IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT
BETWEEN US, EXCEPT AS WE MAY LATER AGREE IN WRITING TO MODIFY IT.
THE PORT AUTHORITY OF THE CITY OF ST. LOUIS
By: /s/ James W. Suelmann
----------------------------------------
Print Name: James W. Suelmann
--------------------------------
Title: Chairman
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Address: 1015 Locust Street,
Suite 1200
St. Louis, Missouri 63101
Attn: Nick Nichols
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