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EXHIBIT 10.8(l)
PROMISSORY NOTE
1. Promise to Pay. For good and valuable consideration, AMERISTAR
CASINOS, INC., a Nevada corporation ("Borrower"), promises to pay to DOMINIC J.
MAGLIARDITI, an individual ("Lender"), or order, $417,854 with interest on the
unpaid principal balance at eight percent (8%) per annum simple interest
(subject to Paragraph 2) (the "Interest Rate") from the date hereof until paid
in accordance with the terms contained herein. Interest shall be computed on the
basis of a 365-day year and the actual number of days elapsed. Should any
accrued interest not be paid on any Interest Payment Date, it shall thereafter
accrue interest as principal. All payments shall be made by wire to Borrower's
account at Wells Fargo Bank, Las Vegas, Nevada, ABA Routing No. 121000248,
Account No. 0834-944134, or at such other place as the holder of this Note may
from time to time designate. [Wires to the foregoing account at Wells Fargo Bank
may be confirmed by calling (702) 385-8616.] All payments shall be applied first
to accrued interest and then to the principal balance.
2. Payment Schedule. This Note may be prepaid in whole or in part at
any time without penalty. Borrower shall pay interest accruing under this Note
as follows: (a) interest accruing from the date hereof through July 20, 1997
shall be paid (to the extent not previously paid) on July 20, 1997; (b) interest
accruing from and after July 21, 1997 shall be paid (to the extent not
previously paid) on the twentieth (20th) day of each October, January, April and
July thereafter until October 20, 1998; and (c) interest accruing from and after
October 21, 1998 shall be paid (to the extent not previously paid) on the
twentieth (20th) day of each calendar month thereafter until the date (the
"Payment Termination Date") that is the earlier of the Maturity Date or the date
when the principal amount of, and all accrued interest on, this Note has been
paid in full. Each date upon which a payment is required to be made pursuant to
the foregoing provisions of this Section 2 shall be referred to herein as a
"Payment Date." In addition, Borrower shall pay installments of principal as
follows:
(1) On November 20, 1998, Borrower shall pay $61,224 to Lender as
an installment of principal;
(2) On July 20, 1999, Borrower shall pay $30,612 to Lender as an
installment of principal;
(3) On January 20, 2000, Borrower shall pay $30,612 to Lender as
an installment of principal;
(4) On July 20, 2000, Borrower shall pay $30,612 to Lender as an
installment of principal;
(5) On January 20, 2001, Borrower shall pay $30,612 to Lender as
an installment of principal;
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(6) On July 20, 2001, Borrower shall pay $30,612 to Lender as an
installment of principal;
(7) On January 20, 2002, Borrower shall pay $45,918 to Lender as
an installment of principal;
(8) On July 20, 2002, Borrower shall pay $45,918 to Lender as an
installment of principal;
(9) On January 20, 2003, Borrower shall pay $45,918 to Lender as
an installment of principal;
(10) On July 20, 2003, Borrower shall pay $45,918 to Lender as an
installment of principal; and
(11) On January 20, 2004, Borrower shall pay $19,898 to Lender as
an installment of principal.
If on any Payment Date before the Payment Termination Date, Borrower
fails to make any payment of interest or principal to Lender, as required above,
and Borrower fails to cure such failure within ten (10) days after receiving
written notice of such failure from Lender, then, commencing as of the next
Payment Date, the Interest Rate hereunder shall be increased as follows:
(i) With respect to the first such increase, the Interest Rate
shall be increased so that the Interest Rate shall thereafter equal
eleven and four tenths percent (11.4%) per annum simple interest;
(ii) With respect to the second such increase, the Interest
Rate shall be increased so that the Interest Rate shall thereafter
equal fourteen and seven-tenths percent (14.7%) per annum simple
interest; and
(iii) With respect to the third such increase, the Interest
Rate shall be increased so that the Interest Rate shall thereafter
equal eighteen percent (18%) per annum simple interest. The Interest
Rate shall not be increased to a level greater than eighteen percent
(18%) per annum simple interest.
3. Maturity. All unpaid principal and accrued, but unpaid, interest
shall be due and payable on December 31, 2004 (the "Maturity Date").
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4. Subordination.
4.1 Note Subordinated to Senior Indebtedness. Anything herein
to the contrary notwithstanding, each of Borrower and Lender agrees that the
payment of the Obligations with respect to this Note is subordinated, to the
extent and in the manner provided in this Paragraph 4, to the prior payment in
full in cash of all Senior Indebtedness. The provisions of this Paragraph 4 are
made for the benefit of the holders of Senior Indebtedness and holders of Senior
Indebtedness may enforce the provisions of this Paragraph 4 without any need to
demonstrate any reliance hereon.
4.2 No Payment on Note in Certain Circumstances. Unless
Subparagraph 4.3 shall be applicable, upon (i) (A) the occurrence of any default
in the payment of all or any portion then due of principal of, premium, if any,
or interest on any Senior Indebtedness, (B) the occurrence of any event which
entitles one or more persons to act to accelerate the maturity of any Senior
Indebtedness or (C) the existence of any facts or circumstances which would
result in the occurrence of any event described in clause (A) or clause (B) if
Borrower were to make any payment hereunder (any event described in clause (A)
or clause (B) or facts or circumstances described in clause (C), a "Senior
Indebtedness Default") and (ii) receipt by the Lender from the indenture trustee
or other trustee, agent or representative for any Senior Indebtedness (the
"Representative") of written notice of such Senior Indebtedness Default, then no
direct or indirect payments or distribution of any assets of Borrower of any
kind or character shall be made by or on behalf of Borrower on account of the
Obligations on this Note or on account of the purchase or redemption or other
acquisition of this Note whether pursuant to the terms of this Note or upon
acceleration or otherwise unless and until such Senior Indebtedness Default
shall have been cured or waived or shall have ceased to exist, or such Senior
Indebtedness as to which such Senior Indebtedness Default relates shall have
been discharged or paid in full in cash, after which Borrower shall resume
making any and all required payments in respect of this Note, including any
missed payments. In the event that, notwithstanding the foregoing, the Lender or
any holder of this Note shall have received any payment or distribution
prohibited by the foregoing provisions of this Subparagraph 4.2, then such
payment or distribution shall be received, segregated from other funds, and held
in trust by Lender or such other holder of this Note, as the case may be, for
the benefit of, and shall immediately be paid over and delivered forthwith to
the Representatives or as a court of competent jurisdiction shall direct.
4.3 Note Subordinated to Prior Payment of All Senior
Indebtedness on Dissolution, Liquidation or Reorganization of Borrower. Upon any
payment or distribution of assets of Borrower of any kind or character, whether
in cash, property or securities, upon any dissolution, winding-up, total or
partial liquidation or total or partial reorganization of Borrower (including,
without limitation, in bankruptcy, insolvency or receivership proceedings or
upon any assignment for the benefit of creditors or any other marshaling of
assets and liabilities of Borrower and whether voluntary or involuntary):
(a) the holders of all Senior Indebtedness shall first be
entitled to receive payments in full in cash of all amounts payable under Senior
Indebtedness before Lender is entitled to receive any payment with respect to
this Note and until all Obligations with respect to
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the Senior Indebtedness are paid in full in cash, any distribution to which
Lender or any other holder of this Note would be entitled shall be made to the
holders of Senior Indebtedness;
(b) any payment or distribution of assets of Borrower of any
kind or character, whether in cash, property or securities, to which Lender
shall be paid by the liquidating trustee or agent or other person making such a
payment or distribution, directly to the holders of Senior Indebtedness or their
Representative until all Senior Indebtedness remaining unpaid shall have been
paid in full in cash, after giving effect to any concurrent payment or
distribution to the holders of such Senior Indebtedness; and
(c) in the event that, notwithstanding the foregoing, any
payment or distribution of assets or securities of Borrower of any kind or
character, whether in cash, property or securities, shall be received by Lender
or any other holder of this Note on account of principal of, premium, if any, or
interest on this Note before all Senior Indebtedness is paid in full in cash,
such payment or distribution shall be received, segregated from other funds, and
held in trust by Lender or such other holder of this Note, as the case may be,
for the benefit of, and shall immediately be paid over to, the holders of Senior
Indebtedness or their Representative, ratably according to the respective
amounts of Senior Indebtedness held or represented by each, until all Senior
Indebtedness remaining unpaid shall have been paid in full in cash after giving
effect to any concurrent payment or distribution to or for the holders of Senior
Indebtedness.
4.4 Lender to Be Subrogated to Rights of Holders of Senior
Indebtedness. Subject to the payment in full in cash of all Senior Indebtedness,
Lender shall be subrogated to the rights of the holders of Senior Indebtedness
to receive payments or distributions of assets of Borrower applicable to the
Senior Indebtedness until all amounts owing on this Note shall be paid in full
in cash.
4.5 Defined Terms. When used in this Note, the following
capitalized terms shall have the meanings set forth below:
"Existing Senior Indebtedness" means any and all Indebtedness
and other Obligations of Borrower under or evidenced by (i) that certain Credit
Agreement dated as of June 1, 1995 by and among Borrower, as borrower, First
Interstate Bank of Nevada, N.A., as agent, and the Financial Institutions named
therein, as Lenders, as the same may be amended from time to time, or (ii) any
other document or instrument evidencing or securing such Indebtedness,
including, without limitation, that certain Promissory Note due December 31,
2001, dated as of July 5, 1995 and made by Ameristar Casinos, Inc. to First
Interstate Bank of Nevada, N.A., as Agent for the Lenders under the Credit
Agreement referred to above, as the same may be amended from time to time, and
that certain Pledge Security Agreement dated as of June 1, 1995 by and between
Borrower, as Pledgor, and First Interstate Bank of Nevada, N.A., as Agent for
the Lenders under the Credit Agreement referred to above, as the same may be
amended from time to time.
"Hedging Obligations" means, with respect to the Senior
Indebtedness of any Person, the obligations of such Person under (i) interest
rate swap agreements, interest rate cap
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agreements and interest rate collar agreements relating to the Obligations under
the Senior Indebtedness and (ii) other agreements or arrangements designed to
protect such Person against fluctuations in interest rates on such Senior
Indebtedness.
"Indebtedness" means with respect to any person, corporation,
trust, partnership, or other entity (a "Person"), without duplication, (i) all
liabilities, contingent or otherwise, of such Person for borrowed money,
evidenced by bonds, notes, debentures, drafts accepted or similar instruments or
letters of credit, or for the payment of money relating to an obligations under
a lease that is required to be capitalized for financial reporting purposes in
accordance with U.S. generally accepted accounting principals; (ii)
reimbursement obligations of such person with respect to letters of credit;
(iii) all liabilities of others of the kind described in the preceding clause
(i) or clause (ii) that such Person has guaranteed or that is otherwise its
legal liability; and (iii) all obligations of others secured by any mortgage,
pledge, lien, encumbrances, charge or a security interest of any kind to which
any of the properties or assets (including, without limitation, leasehold
interests and any other tangible or intangible property rights) of such Person
are subject, whether or not the obligations secured thereby shall have been
assumed by such Person or shall otherwise be such Person's legal liability.
"Obligations" means all obligations of every nature whether
for principal, reimbursements, interest, fees, expenses, indemnities or
otherwise, and whether primary, secondary, direct, indirect, contingent, fixed
or otherwise (including obligations of performance) under the documentation
governing any Indebtedness.
"Senior Indebtedness" means the principal of, premium, if any,
and interest on, and all other Obligations with respect to, (A) the Existing
Senior Indebtedness and/or (B) any other Indebtedness of Borrower whether
outstanding on the date hereof or hereafter created, incurred, assumed or
guaranteed or in effect guaranteed by Borrower, but with respect to the
Indebtedness described in (B) above, only if the instrument or document
evidencing such Indebtedness expressly provides that such Indebtedness shall be
senior in right of payment to this Note; provided, however, Borrower shall not
enter into any Senior Indebtedness if entering into such Senior Indebtedness
would cause the aggregate outstanding principal balance of all Senior
Indebtedness, immediately following execution and delivery of such Senior
Indebtedness, to exceed $250,000,000 (excluding, for purposes of said maximum,
Hedging Obligations with respect to Senior Indebtedness already counted for
purposes of the calculation). "Senior Indebtedness" shall be deemed to include
for all purposes of this Note interest accruing after the filing of a petition
initiating any proceeding pursuant to any federal, state or foreign bankruptcy
law in accordance with and at the rate (including any rate applicable upon any
Senior Indebtedness Default, to the extent lawful) specified in any document
evidencing the Senior Indebtedness, whether or not the claim for such interest
is allowed as a claim after such filing in any proceeding under such bankruptcy
law. Notwithstanding the foregoing, "Senior Indebtedness" shall not include (i)
Indebtedness of Borrower to any subsidiary of Borrower, (ii) Indebtedness to, or
guaranteed on behalf of, any shareholder, director, officer or employee of
Borrower or of any subsidiary of Borrower (including, without limitation,
amounts owed for compensation), (iii) Indebtedness to trade creditors and other
amounts incurred in connection with obtaining goods, materials or services, (iv)
any liability for federal, state, local or other
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taxes owed or owing by Borrower, and (v) any Indebtedness evidenced by that
certain Promissory Note of even date herewith made by Borrower in favor of
Lender in an original principal amount of $459,180, that certain Promissory Note
of even date herewith made by Borrower in favor of Steven W. Rebeil (in his
capacity as an individual and as trustee of the Karizma Trust created under that
certain Trust Agreement dated July 2, 1991, as amended) in an original principal
amount of $14,540,820, or that certain Promissory Note of even date herewith
made by Borrower in favor of Steven W. Rebeil (in his capacity as an individual
and as trustee of the Karizma Trust created under that certain Trust Agreement
dated July 2, 1991, as amended) in an original principal amount of $13,232,146.
5. Miscellaneous Provisions. No provision of this Note may be
amended, modified, supplemented, changed, waived, discharged or terminated
unless Lender consents thereto in writing. In case any one or more of the
provisions contained in this Note should be held to be invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein shall not in any way be affected or
impaired thereby. In the event of a failure by Borrower prior to the Maturity
Date to pay any amounts due hereunder as and when due, Lender's sole remedy
shall be adjustment of the Interest Rate as set forth in Paragraph 2; Lender
specifically acknowledges and agrees that it shall not have the right prior to
the Maturity Date to accelerate the indebtedness hereunder, or take any other
actions other than those set forth in Paragraph 2 hereof, as a consequence of
any such non-payment. This Note shall be binding upon and inure to the benefit
of Borrower, Lender and their respective successors and assigns. This Note shall
be governed by and construed in accordance with the laws of the State of Nevada.
By accepting this Note, each holder of this Note agrees (a) to be bound by and
to perform all of the obligations of Lender hereunder and (b) that its rights
hereunder are subject to the provisions hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Note as of
June 1, 1997.
BORROWER: LENDER:
AMERISTAR CASINOS, INC.,
a Nevada corporation
/s/ Dominic J. Magliarditi
By: /s/ Thomas M. Steinbauer DOMINIC J. MAGLIARDITI, an individual
Name: Thomas M. Steinbauer
Title: Senior Vice President
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