EXHIBIT 10.1
TERM LOAN TERMINATION AGREEMENT
THIS AGREEMENT (the “Agreement”),
made and entered into as of this 9 th day of May 2005, by and
between Freemantle
Limited, a corporation organized in the Isle of Man
(“Lender”), the Seneca Nation of Indians, a federally
recognized Indian Tribe and native American sovereign nation (the
“Nation”), and Seneca Niagara Falls Gaming Corporation (the
“Borrower”), a wholly-owned governmental
instrumentality of the Nation with its principal place of business
in the Niagara Territory of the Nation (collectively, the
“Parties”).
W I T N E S S E T
H
WHEREAS, Borrower and Lender have previously
entered into a Term
Loan Agreement dated November 22, 2002, as amended by that certain
Amendment No. 1 to Term Loan Agreement dated December 6, 2002 and
that certain Amendment No. 2 to Term Loan Agreement dated April 22,
2004 (as so amended, the “Loan Agreement”), together
with certain collateral agreements related thereto listed on
Schedule A hereto (the “Collateral Agreements,” and
together with the Loan Agreement, the “Loan
Documents”), whereby Lender has provided to Borrower sums in
the aggregate amount of eighty million dollars ($80,000,000) (the
“Loan”) to finance the development of Seneca Niagara
Falls Casino (the “Casino”);
WHEREAS, each of
the representations and warranties made by the Borrower, the Nation
or both in any of the Loan Documents are true and correct, and no
material default of any of the provisions of the Loan Documents has
occurred;
WHEREAS, Lender and Borrower have come to a
mutual agreement to terminate the Loan Agreement, and to permit the
Borrower to prepay the Loan pursuant to the terms set forth
herein;
WHEREAS, prior to
or concurrently with its execution of this Agreement, the Nation
and the Borrower have adopted the resolutions set forth in Exhibit
A hereto ;
NOW, THEREFORE, for and in consideration of the
mutual promises, covenants and obligations contained herein, the
Parties agree as follows:
ARTICLE I
Conditions
1.
Capitalized terms used but not defined herein shall have the
meanings set forth in the Loan Agreement.
2.
The parties agree that the Loan Documents are in full force and
effect and are enforceable according to their terms, and, except as
specifically modified by this Agreement, the rights of the Lender
as set forth therein have not been released, waived, modified,
altered or in any way diminished by agreement, course of conduct or
otherwise. The Loan Documents shall remain in full force and
effect and, except as specifically modified by this Agreement, (i)
the Loan Documents shall not be modified, waived, impaired,
released, or otherwise altered by this Agreement and (ii) this
Agreement shall not operate to release or impair any security,
right, power, interest, or remedy of the Lender. In the event
that the conditions set forth herein are not satisfied in full and
the closing of this Agreement does not occur as contemplated
herein, the Loan Documents shall remain in full force and effect,
fully enforceable in accordance with their original terms, and
shall be unmodified by this Agreement.
3.
Neither termination of the Loan Agreement nor release of the
Collateral Agreements shall become effective unless and until each
of the following conditions are satisfied:
(a)
Borrower and the Nation shall have both executed, delivered and
fully performed their obligations under this Agreement;
(b)
The resolutions set forth in Exhibit A shall remain in full force
and effect through the closing of this Agreement as set forth
herein; and the press release set forth in Exhibit B hereto shall
have been issued by the Nation and the Borrower to the customary
press contacts utilized by the Nation and the Borrower;
and
(c)
All sums due and payable by Borrower to Lender pursuant to this
Agreement shall have been paid in full in immediately available
funds.
ARTICLE II
Prepayment
Lender and Borrower agree
that Borrower shall prepay the Loan on the Closing Date in
accordance with the terms contained in this
Agreement.
1.
The amount to be prepaid (the “Prepayment Amount”)
shall be an amount equal to (i) the outstanding Loan principal of
$80 million; plus
(ii) the aggregate amount of interest on such principal at the
Interest Rate (as defined below) that would otherwise be
payable,
2
if the Loan were not being
prepaid, in respect of the Prepayment Period, as defined in
paragraph 3 of this Article II.
2.
The “Interest Rate” shall be equal to (1)
one-month LIBOR (as determined in
accordance with the definition set forth in the Loan
Agreement) as in effect three London
banking days prior to the Closing Date (which interest
determination date the parties anticipate will be May 18, 2005,
plus (2) twenty-nine
(29 %) per cent per annum, and shall be calculated in accordance
with the Loan Agreement.
3.
The “Prepayment Period” shall equal (a) the period
extending from the Closing Date (i.e., the date of prepayment)
until the Maturity Date, minus (b) 8.5 months (calculated
from the Maturity Date).
4.
The “Closing Date” shall be May 23,
2005.
5.
On the Closing Date, the Borrower shall, (i) pay the Prepayment
Amount by wire transfer of immediately available funds in U.S.
dollars to an account designated by the Lender, (ii) pay any of
Lender’s expenses then due, (iii) enter into a Marketing Side
Letter Agreement with Whiteswan Limited, an Isle of Man company,
addressing the matters described in Exhibit D and (iv) furnish the
legal opinions described in paragraph 5 of Article V hereof
(collectively, the “Closing Deliveries”). Upon
receipt thereof, Lender shall execute one or more instruments, in
form reasonably satisfactory to the parties, terminating the Loan
Documents, releasing all collateral for the Loan, including amounts
on deposit in the Sinking Fund, and shall instruct First
American Title Insurance Company to release to Borrower all funds
and documents currently held by it in escrow, net of such escrow
agent’s fees and expenses . At its option, the
Borrower may elect to apply amounts on deposit in the Sinking Fund
toward payment of the Prepayment Amount on the Closing
Date.
6.
The Borrower shall deliver the Closing Deliveries, and otherwise
satisfy the conditions set forth in this Agreement, provided,
however, that the obligation to pay the Prepayment Amount shall be
an obligation solely of the Borrower and shall not be a recourse
obligation of the Nation, its assets and revenues.
7.
Prior to and including the Closing Date, the Borrower shall
continue to make all interest payments and sinking fund deposits
due and payable at the times and otherwise in accordance with the
terms of the Loan Agreement. All interest that is accrued and
unpaid as of the Closing Date shall be paid on the Closing Date,
and shall be calculated in accordance with the terms of the Loan
Agreement.
8.
Unless otherwise advised by the Lender by notice to the Borrower,
all payments due to Lender shall be made to the following account
by wire transfer:
JP Morgan
Chase Bank, New York Office
For account
of:
3
Westpac
Banking Corporation, Singapore
77 Robinson
Road
#19-00, SIA
Building
Singapore
068896
Account No.
001-1-910213 CHIPS UID 142544
Swift Code:
CHASUS 33
For subsequent
credit to
Freemantle
Limited
Account No.
306845
(Attention:
Mr. Mervin Ho/Ms. Jaslyn Lim)
ARTICLE III
Indemnification
Borrower and the
Nation, subject to the proviso at the end of this paragraph, hereby
jointly and severally indemnify and hold harmless Lender and
its Affiliates,
directors, officers, agents, attorneys and employees (collectively
the “Indemnitees”) from and against all losses, damages, costs and
expenses (including reasonable attorneys’ fees and
disbursements) which may be incurred by Lender in connection with
the Loan, the Loan Documents or this Agreement and the transactions
contemplated therein or herein, including (a) any and all claims, demands, actions
or causes of action that are asserted against any Indemnitee by any
third party, if the claim, demand, action or cause of action
directly or indirectly relates to a claim, demand, action or cause
of action that such Person asserts or may assert against Borrower
(or, to the extent related to the Loan, the Loan Documents or this
Agreement or the transactions contemplated hereby or thereby, any
Affiliate of Borrower or any officer of Borrower); (b) any and all
claims, demands, actions or causes of action by a third party if
the claim, demand, action or cause of action arises out of or
relates to the Loan, the Loan Documents or this Agreement or the
relationship of Borrower and/or the Nation and the Lender under the
Loan Documents or this Agreement or any transaction contemplated
herein or therein, including any action by any party seeking to
interfere with the purposes of this Agreement, whether arising
before or after the Closing Date; (c) any administrative or
investigative proceeding by any Governmental Agency arising out of
or related to a claim, demand, action or cause of action described
in clauses (a) or (b) above; and (d) any and all liabilities,
losses, costs or expenses (including reasonable attorneys’
fees and disbursements and other professional services) that any
Indemnitee suffers or incurs as a result of the assertion of any
foregoing claim, demand, action or cause of action; provided that
no Indemnitee shall be entitled to indemnification for any loss
caused by its own gross negligence or willful misconduct. If
any claim, demand, action or cause of action is asserted against
any Indemnitee, such Indemnitee shall promptly notify Borrower, but
the failure to so promptly notify shall not affect Borrower’s
obligations under this Section unless Borrower is materially
prejudiced thereby (and then only to the extent prejudiced).
Each Indemnitee may
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contest the validity,
applicability and amount of such claim, demand, action or cause of
action with counsel selected by such Indemnitee. Each
Indemnitee is authorized to employ counsel in enforcing its rights
hereunder and in defending any claim, demand, action or cause of
action covered by this Section; provided that each Indemnitee shall
endeavor in connection with any matter covered by this Section
which also involves other Indemnitees, to use reasonable efforts to
avoid unnecessary duplication of effort by counsel for all
Indemnitees. Any obligation or liability of Borrower to any
Indemnitee under this Section shall survive the expiration or
termination of this Agreement, the prepayment of the Loan
contemplated hereby and the payment and performance of all other
obligations under the Loan Documents owed to the Lender.
Notwithstanding the foregoing, the indemnification obligations of
the Nation under this paragraph shall only apply if Borrower is no
longer owner and operator of the Casino.
ARTICLE IV
Waivers , Consents and
Jurisdiction
Lender shall not
by any act, delay, omission or otherwise be deemed to have waived
any of its rights or remedies hereunder, and no waiver shall be
valid unless in writing, signed by Lender, and then only to the
extent therein set forth. A waiver by Lender of any right or
remedy hereunder on any one occasion shall not be construed as a
bar to any right or remedy that Lender would otherwise have had on
any future occasion. Neither failure to exercise nor any
delay in exercising on the part of Lender, any right, power or
privilege hereunder shall preclude any other or further exercise
thereof or the exercise of any other right, power or
privilege.
1.
Waiver by Borrower of Immunity and Consent to Suit .
In accordance with the resolution of the Borrower dated May __,
2005, a copy of which is attached in Exhibit A hereto, the Borrower
hereby , and solely
in favor of Lender, irrevocably waives its sovereign immunity (and
any defense based thereon) from any suit, action or proceeding or
from any legal process (whether through service of notice,
attachment prior to the
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