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EXHIBIT 4.2(a)
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CREDIT AGREEMENT
among
AMERISTAR CASINOS, INC.,
VARIOUS LENDERS,
▇▇▇▇▇ FARGO BANK, N.A.,
as CO-ARRANGER and SYNDICATION AGENT,
BEAR ▇▇▇▇▇▇▇ CORPORATE LENDING INC.,
as DOCUMENTATION AGENT,
DEUTSCHE BANK SECURITIES INC.,
as LEAD ARRANGER and SOLE BOOK MANAGER
and
BANKERS TRUST COMPANY,
as ADMINISTRATIVE AGENT
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Dated as of December 20, 2000
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TABLE OF CONTENTS
Page
SECTION 1. Amount and Terms of Credit............................................................................1
1.01 The Commitments....................................................................................1
1.02 Minimum Amount of Each Borrowing...................................................................5
1.03 Notice of Borrowing................................................................................5
1.04 Disbursement of Funds..............................................................................6
1.05 Notes..............................................................................................6
1.06 Conversions........................................................................................9
1.07 Pro Rata Borrowings................................................................................9
1.08 Interest...........................................................................................9
1.09 Interest Periods..................................................................................10
1.10 Increased Costs, Illegality, etc..................................................................11
1.11 Compensation......................................................................................13
1.12 Change of Lending Office..........................................................................14
1.13 Replacement of Lenders............................................................................14
1.14 Incremental Loan Commitments......................................................................15
SECTION 2. Letters of Credit....................................................................................18
2.01 Letters of Credit.................................................................................18
2.02 Letter of Credit Requests.........................................................................19
2.03 Letter of Credit Participations...................................................................19
2.04 Agreement to Repay Letter of Credit Drawings......................................................21
2.05 Increased Costs...................................................................................22
SECTION 3. Commitment Commission; Fees; Reductions of Commitment................................................23
3.01 Fees..............................................................................................23
3.02 Voluntary Termination and Reduction of Commitments................................................24
3.03 Mandatory Reduction of Commitments................................................................24
SECTION 4. Prepayments; Payments; Taxes.........................................................................26
4.01 Voluntary Prepayments.............................................................................26
4.02 Mandatory Repayments and Commitment Reductions....................................................27
4.03 Method and Place of Payment.......................................................................39
4.04 Net Payments......................................................................................39
SECTION 5. Conditions Precedent to Credit Events on the Initial Borrowing Date..................................42
5.01 Execution of Agreement; Notes.....................................................................42
5.02 Fees, etc.........................................................................................42
5.03 Opinions of Counsel...............................................................................42
5.04 Corporate Documents; Proceedings; etc.............................................................42
(i)
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5.05 Shareholders' Agreements; Management Agreements; Tax Sharing Agreements; Employee Benefit
Plans; Employment Agreements; Collective Bargaining Agreements; Debt Agreements;
Material Contracts; Non-Compete Agreements; Affiliate Contracts................................43
5.06 Consummation of the Transaction...................................................................43
5.07 Pledge Agreement..................................................................................45
5.08 Security Agreement................................................................................46
5.09 Mortgages; Title Insurance; etc...................................................................46
5.10 Adverse Change, etc...............................................................................47
5.11 Solvency Certificate; Insurance...................................................................47
5.12 Financial Statements; Projections; Management Letters.............................................48
5.13 Engineering Reports; Environmental Analyses; Appraisals...........................................48
5.14 Litigation........................................................................................49
5.15 Subsidiary Guaranty...............................................................................49
5.16 Approvals, etc....................................................................................49
5.17 Ship Mortgages....................................................................................50
SECTION 6. Conditions Precedent to All Credit Events............................................................50
6.01 No Default; Representations and Warranties........................................................50
6.02 Notice of Borrowing; Letter of Credit Request.....................................................50
6.03 Facilities Expansion Certificate..................................................................50
SECTION 7. Representations and Warranties.......................................................................51
7.01 Corporate Status..................................................................................51
7.02 Corporate Power and Authority.....................................................................51
7.03 No Violation......................................................................................52
7.04 Governmental Approvals............................................................................52
7.05 Financial Statements; Financial Condition; Undisclosed Liabilities; Projections; etc..............52
7.06 Litigation........................................................................................53
7.07 True and Complete Disclosure......................................................................53
7.08 Use of Proceeds; Margin Regulations...............................................................54
7.09 Tax Returns and Payments..........................................................................54
7.10 Compliance with ERISA.............................................................................55
7.11 The Security Documents............................................................................56
7.12 Representations and Warranties in Documents.......................................................57
7.13 Properties........................................................................................57
7.14 Capitalization....................................................................................57
7.15 Subsidiaries......................................................................................57
7.16 Compliance with Statutes, etc.....................................................................57
7.17 Investment Company Act............................................................................57
7.18 Public Utility Holding Company Act................................................................57
7.19 Labor Relations...................................................................................57
7.20 Patents, Licenses, Franchises and Formulas........................................................58
7.21 Transaction.......................................................................................58
7.22 Indebtedness......................................................................................58
(ii)
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7.23 Intellectual Property.............................................................................59
7.24 Environmental Matters.............................................................................59
7.25 Senior Debt........................................................................................60
SECTION 8. Affirmative Covenants................................................................................60
8.01 Information Covenants.............................................................................60
8.02 Books, Records and Inspections....................................................................63
8.03 Maintenance of Property; Insurance................................................................63
8.04 Corporate Franchises..............................................................................64
8.05 Compliance with Statutes, etc.....................................................................65
8.06 ERISA.............................................................................................65
8.07 End of Fiscal Years; Fiscal Quarters..............................................................66
8.08 Performance of Obligations........................................................................66
8.09 Payment of Taxes..................................................................................66
8.10 Intellectual Property Rights......................................................................66
8.11 Additional Security; Further Assurances...........................................................67
8.12 Permitted Acquisitions............................................................................68
8.13 Compliance with Environmental Laws................................................................70
8.14 Minimum Maintenance Capital Expenditures..........................................................71
SECTION 9. Negative Covenants...................................................................................72
9.01 Liens.............................................................................................72
9.02 Consolidation, Merger, Purchase or Sale of Assets, etc............................................74
9.03 Dividends.........................................................................................76
9.04 Indebtedness......................................................................................76
9.05 Advances, Investments and Loans...................................................................78
9.06 Transactions with Affiliates......................................................................79
9.07 Maximum Capital Expenditures......................................................................80
9.08 Leverage Ratio....................................................................................81
9.09 Senior Leverage Ratio.............................................................................83
9.10 Consolidated Gross Fixed Charge Coverage Ratio....................................................84
9.11 Consolidated Adjusted Fixed Charge Coverage Ratio.................................................86
9.12 Minimum Consolidated Tangible Net Worth...........................................................87
9.13 Limitation on Modifications of Certificate of Incorporation, By-Laws and Certain Other
Agreements; Limitations of Prepayments and Modifications of Indebtedness; etc..................87
9.14 Limitation on Certain Restrictions on Subsidiaries................................................88
9.15 Limitation on Issuance of Capital Stock...........................................................89
9.16 Business..........................................................................................89
9.17 Limitations on Creation/Sale of Subsidiaries and Creation of Joint Ventures.......................89
9.18 No Other Designated Senior Indebtedness...........................................................90
SECTION 10. Events of Default...................................................................................90
10.01 Payments.........................................................................................90
10.02 Representations, etc.............................................................................90
10.03 Covenants........................................................................................90
(iii)
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10.04 Default Under Other Agreements...................................................................90
10.05 Bankruptcy, etc..................................................................................91
10.06 ERISA............................................................................................91
10.07 Security Documents...............................................................................92
10.08 Guaranty.........................................................................................92
10.09 Judgments........................................................................................92
10.10 Gaming Authority.................................................................................92
10.11 Change of Control................................................................................93
SECTION 11. Definitions and Accounting Terms....................................................................93
11.01 Defined Terms....................................................................................93
SECTION 12. The Administrative Agent...........................................................................129
12.01 Appointment.....................................................................................129
12.02 Nature of Duties................................................................................129
12.03 Lack of Reliance on the Administrative Agent....................................................130
12.04 Certain Rights of the Administrative Agent......................................................130
12.05 Reliance........................................................................................130
12.06 Indemnification.................................................................................131
12.07 The Administrative Agent in Its Individual Capacity.............................................131
12.08 Holders.........................................................................................131
12.09 Resignation by the Administrative Agent.........................................................131
12.10 Amendments to Security Documents................................................................132
12.11 Other Agents....................................................................................132
SECTION 13. Miscellaneous......................................................................................132
13.01 Payment of Expenses, etc........................................................................132
13.02 Right of Setoff; Collateral Matters.............................................................133
13.03 Notices.........................................................................................133
13.04 Benefit of Agreement............................................................................134
13.05 No Waiver; Remedies Cumulative..................................................................137
13.06 Payments Pro Rata...............................................................................138
13.07 Calculations; Computations......................................................................138
13.08 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF JURY TRIAL..........................139
13.09 Counterparts....................................................................................140
13.10 Effectiveness...................................................................................140
13.11 Headings Descriptive............................................................................140
13.12 Amendment or Waiver; etc........................................................................140
13.13 Survival........................................................................................141
13.14 Domicile of Loans...............................................................................141
13.15 Confidentiality.................................................................................141
13.16 Registry........................................................................................142
(iv)
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SCHEDULE I Commitments
SCHEDULE II Bank Addresses
SCHEDULE III Real Property
SCHEDULE IV Insurance
SCHEDULE V Existing Liens
SCHEDULE VI Existing Indebtedness
SCHEDULE VII Retained Indebtedness
SCHEDULE VIII Tax Matters
SCHEDULE IX Subsidiaries
SCHEDULE X Intellectual Property
SCHEDULE XI Ship Properties
SCHEDULE XII Environmental Matters
EXHIBIT A Form of Notice of Borrowing
EXHIBIT B-1 Form of A Term Note
EXHIBIT B-2 Form of B Term Note
EXHIBIT B-3 Form of C Term Note
EXHIBIT B-4 Form of RTL Note
EXHIBIT B-5 Form of Revolving Note
EXHIBIT B-6 Form of Swingline Note
EXHIBIT C Form of Letter of Credit Request
EXHIBIT D Form of Section 4.04(b)(ii) Certificate
EXHIBIT E Opinion of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP,
Special Counsel to the Credit Parties
EXHIBIT F Form of Officers' Certificate
EXHIBIT G Form of Pledge Agreement
EXHIBIT H Form of Security Agreement
EXHIBIT I Form of Mortgage
EXHIBIT J Form of Subsidiary Guaranty
EXHIBIT K Form of Assignment and Assumption Agreement
EXHIBIT L Form of Solvency Certificate
EXHIBIT M Form of Ship Mortgage
EXHIBIT N Form of Intercompany Note
EXHIBIT O Form of Incremental Commitment Agreement
(v)
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CREDIT AGREEMENT, dated as of December 20, 2000, among AMERISTAR CASINOS,
INC., a Nevada corporation (the "Borrower"), the Lenders party hereto from time
to time, ▇▇▇▇▇ FARGO BANK, N.A., as Co-Arranger and Syndication Agent, BEAR
▇▇▇▇▇▇▇ CORPORATE LENDING INC., as Documentation Agent, DEUTSCHE BANK SECURITIES
INC., as Lead Arranger and sole Book Manager and BANKERS TRUST COMPANY, as
Administrative Agent (all capitalized terms used herein and defined in Section
11 are used herein as therein defined).
W I T N E S S E T H :
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WHEREAS, subject to and upon the terms and conditions herein set forth, the
Lenders are willing to make available to the Borrower the respective credit
facilities provided for herein;
NOW, THEREFORE, IT IS AGREED:
SECTION 1. Amount and Terms of Credit.
1.01 The Commitments. (a) Subject to and upon the terms and conditions set
forth herein, each Lender with an A Term Loan Commitment severally agrees to
make, on the Initial Borrowing Date, a term loan to the Borrower, which A Term
Loans (i) shall be made and initially maintained as Base Rate Loans (subject to
the option to convert such A Term Loans pursuant to Section 1.06) and (ii) shall
be made by each Lender in that aggregate principal amount as is equal to the A
Term Loan Commitment of such Lender on such date. Once repaid, A Term Loans
borrowed hereunder may not be reborrowed.
(b) Subject to and upon the terms and conditions set forth herein, each
Lender with a B Term Loan Commitment severally agrees to make, on the Initial
Borrowing Date, a term loan to the Borrower, which B Term Loans (i) shall be
made and initially maintained as Base Rate Loans (subject to the option to
convert such B Term Loans pursuant to Section 1.06) and (ii) shall be made by
each Lender in that aggregate principal amount as is equal to the B Term Loan
Commitment of such Lender on such date. Once repaid, B Term Loans incurred
hereunder may not be reborrowed.
(c) Subject to and upon the terms and conditions set forth herein, each
Lender with a C Term Loan Commitment severally agrees to make, on the Initial
Borrowing Date, a term loan to the Borrower, which C Term Loans (i) shall be
made and initially maintained as Base Rate Loans (subject to the option to
convert such C Term Loans pursuant to Section 1.06) and (ii) shall be made by
each Lender in that aggregate principal amount as is equal to the C Term Loan
Commitment of such Lender on such date. Once repaid, C Term Loans incurred
hereunder may not be reborrowed.
(d) Subject to and upon the terms and conditions set forth herein, each
Lender with an RTL Commitment severally agrees, at any time and from time to
time after the Initial Borrowing Date and prior to the RTL Conversion Date, to
make a revolving loan or revolving loans (each, an "RTL Loan" and collectively,
the "RTL Loans") to the Borrower, which RTL Loans (i) shall, at the option of
the Borrower, be Base Rate Loans or, if incurred on or after the
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Eurodollar Loan Availability Date, Eurodollar Loans, provided that, except as
otherwise specifically provided in Section 1.10(b), and subject to the option to
convert such Loans pursuant to Section 1.06, all RTL Loans comprising the same
Borrowing shall at all times be of the same Type, (ii) may be repaid and
reborrowed in accordance with the provisions hereof, provided that, on and after
the RTL Conversion Date, once repaid, RTL Loans incurred hereunder may not be
reborrowed, (iii) shall not exceed for any Lender at any time outstanding the
RTL Commitment of such Lender and (iv) shall not exceed for all Lenders at any
time outstanding the Total RTL Commitment.
(e) Subject to and upon the terms and conditions set forth herein, each
Lender with a Revolving Loan Commitment severally agrees, at any time and from
time to time after the Initial Borrowing Date and prior to the Revolving Loan
Maturity Date, to make a revolving loan or revolving loans (each, a "Revolving
Loan" and collectively, the "Revolving Loans") to the Borrower, which Revolving
Loans (i) shall, at the option of the Borrower, be Base Rate Loans or, if
incurred on or after the Eurodollar Loan Availability Date, Eurodollar Loans,
provided, that except as otherwise specifically provided in Section 1.10(b), and
subject to the option to convert such Loans pursuant to Section 1.06, all
Revolving Loans comprising the same Borrowing shall at all times be of the same
Type, (ii) may be repaid and reborrowed in accordance with the provisions
hereof, (iii) shall not exceed for any Lender at any time outstanding that
aggregate principal amount which when added to the product of (x) such Lender's
Revolving Loan Percentage and (y) the sum of (I) the aggregate amount of all
Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid
with the proceeds of, and simultaneously with the incurrence of, the respective
incurrence of Revolving Loans) at such time and (II) the aggregate principal
amount of all Swingline Loans (exclusive of Swingline Loans which are repaid
with the proceeds of, and simultaneously with the incurrence of, Revolving
Loans) then outstanding, equals the Revolving Loan Commitment of such Lender at
such time and (iv) shall not exceed for all Lenders at any time outstanding the
sum of (I) the aggregate principal amount which, when added to the amount of all
Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid
with the proceeds of, and simultaneously with the incurrence of, Revolving
Loans) at such time and (II) the aggregate principal amount of all Swingline
Loans (exclusive of Swingline Loans which are repaid with the proceeds of, and
simultaneously with the incurrence of, the respective incurrence of Revolving
Loans) then outstanding, equals the Total Revolving Loan Commitment at such
time. Notwithstanding the foregoing, the Borrower may not reborrow Revolving
Loans, Swingline Loans or request that Letters of Credit be issued under the
Total Revolving Loan Commitment if after giving effect thereto the Revolving
Outstandings would exceed an amount equal to the Total Revolving Loan Commitment
(before giving effect to the reduction thereto arising by reason of the
Disposition) less the amount by which the Revolving Loans are repaid with the
proceeds of the Disposition, unless after giving effect thereto, the Leverage
Ratio would be no greater than 5:00 to 1:00 and the Senior Leverage Ratio would
be no greater than 3:00 to 1:00.
(f) Subject to and upon the terms and conditions set forth herein, the
Swingline Lender agrees to make at any time and from time to time after the
Initial Borrowing Date and prior to the Swingline Expiry Date, a loan or loans
(each a "Swingline Loan", and collectively, the "Swingline Loans") to the
Borrower, which Swingline Loans:
(i) shall be made and maintained as Base Rate Loans;
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(ii) may be repaid and reborrowed in accordance with the provisions
hereof;
(iii) unless otherwise agreed by the Swingline Lender, shall be repaid
no later than the date which is five Business Days following the date of
incurrence thereof, provided that if any Defaulting Lender fails to fund a
Revolving Loan requested to refinance such Swingline Loan, the portion of
the Swingline Loan expected to be refinanced by such Defaulting Lender
shall be repaid on or before the tenth Business Day following the date of
the incurrence thereof;
(iv) shall not exceed in aggregate principal amount at any time
outstanding, when combined with (x) the aggregate principal amount of all
Revolving Loans then outstanding and (y) the amount of all Letter of Credit
Outstandings at such time, an amount equal to the Total Revolving Loan
Commitment at such time (after giving effect to any reductions to the Total
Revolving Loan Commitment on such date); and
(v) shall not exceed in aggregate principal amount at any time
outstanding the Maximum Swingline Amount.
The Swingline Lender shall not be obligated to make any Swingline Loans at a
time when a Lender Default exists unless the Swingline Lender has entered into
arrangements satisfactory to it to eliminate the Swingline Lender's risk with
respect to the Lender which is subject of such Lender Default, including by cash
collateralizing such Lender's Percentage of the outstanding Swingline Loans.
Notwithstanding anything to the contrary contained in this Section 1.01(f), the
Swingline Lender shall not make any Swingline Loan after receiving a written
notice from the Borrower or the Required Lenders stating that a Default or an
Event of Default exists and is continuing until such time as the Swingline
Lender shall have received written notice of (i) rescission of such notice from
the party or parties originally delivering such notice, (ii) the waiver of such
Default or Event of Default or (iii) the Administrative Agent in good faith
believes that such Default or Event of Default has ceased to exist.
(g) On any Business Day, the Swingline Lender may, in its sole discretion,
give notice to the Lenders with Revolving Loan Commitments that its outstanding
Swingline Loans shall be funded with a Borrowing of Revolving Loans (provided
that such notice shall be deemed to have been automatically given upon the
occurrence of a Default or an Event of Default under Section 10.05 or upon the
exercise of any of the remedies provided in the last paragraph of Section 10),
in which case a Borrowing of Revolving Loans constituting Base Rate Loans (each
such Borrowing, a "Mandatory Borrowing") shall be made on the immediately
succeeding Business Day from all Lenders with a Revolving Loan Commitment
(without giving effect to any termination and/or reductions thereto pursuant to
the last paragraph of Section 10) pro rata on the basis of their respective
Revolving Loan Percentages (determined before giving effect to any termination
of the Revolving Loan Commitments pursuant to the last paragraph of Section 10)
and the proceeds thereof shall be applied directly to the Swingline Lender to
repay the Swingline Lender for such outstanding Swingline Loans. Each such
Lender hereby irrevocably agrees to make Revolving Loans upon one Business Day's
notice pursuant to each Mandatory Borrowing in the amount and in the manner
specified in the preceding sentence and on the date specified in writing by the
Swingline Lender (i) notwithstanding that the amount of the Mandatory Borrowing
may not comply with the minimum amount for Borrowings otherwise
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required hereunder, (ii) whether any conditions specified in Section 5 or 6 are
then satisfied, (iii) whether a Default or an Event of Default then exists, (iv)
notwithstanding the date of such Mandatory Borrowing and (v) notwithstanding the
amount of the Total Revolving Loan Commitment at such time. In the event that
any Mandatory Borrowing cannot for any reason be made on the date otherwise
required above (including, without limitation, as a result of the commencement
of a proceeding under the Bankruptcy Code with respect to the Borrower), then
each such Lender with a Revolving Loan Commitment hereby agrees that it shall
forthwith purchase (as of the date the Mandatory Borrowing would otherwise have
occurred, but adjusted for any payments received from the Borrower on or after
such date and prior to such purchase) from the Swingline Lender such
participations in the outstanding Swingline Loans as shall be necessary to cause
such Lenders to share in such Swingline Loans ratably based upon their
respective Revolving Loan Percentages (determined before giving effect to any
termination of the Revolving Loan Commitments pursuant to the last paragraph of
Section 10); provided, that (x) all interest payable on the Swingline Loans
shall be for the account of the Swingline Lender until the date as of which the
respective participation is required to be purchased and, to the extent
attributable to the purchased participation shall be payable to the participant
from and after such date and (y) at the time any purchase of participations
pursuant to this sentence is actually made, the purchasing Lender shall be
required to pay the Swingline Lender interest on the principal amount of
participation purchased for each day from and including the day upon which the
Mandatory Borrowing would otherwise have occurred to but excluding the date of
payment for such participation, at the rate otherwise applicable to Revolving
Loans maintained as Base Rate Loans hereunder for each day thereafter.
(h) Subject to Section 1.14 and the other terms and conditions set forth
herein, each Lender with an Incremental Term Loan Commitment severally agrees to
make a term loan or term loans (each, an "Incremental Term Loan" and,
collectively, the "Incremental Term Loans") to the Borrower, which Incremental
Term Loans: (i) only may be incurred pursuant to a single drawing on the
respective Incremental Term Loan Borrowing Date (which date, in any event, shall
be the date set forth in the applicable Incremental Commitment Agreement
pursuant to which such Incremental Term Loans are to be made and shall not be
later than the Incremental Commitment Termination Date); (ii) shall be Term
Loans under the Tranche specified in the applicable Incremental Commitment
Agreement; (iii) except as hereafter provided, shall, at the option of the
Borrower, be incurred and maintained as, and/or converted into, Base Rate Loans
or, if incurred after the Eurodollar Loan Availability Date, Eurodollar Loans,
provided that (x) all Incremental Term Loans made as part of the same Borrowing
shall, unless otherwise specifically provided herein, consist of Incremental
Term Loans of the same Type; and (iv) shall be made by each such Lender in that
aggregate principal amount which does not exceed the Incremental Term Loan
Commitment of such Lender under the relevant Tranche on any such Incremental
Term Loan Borrowing Date (before giving effect to the termination thereof on
such date pursuant to Section 3.03(e)). Once repaid, Incremental Term Loans
incurred hereunder may not be reborrowed.
1.02 Minimum Amount of Each Borrowing. The aggregate principal amount of
each Borrowing of Loans shall not be less than the Minimum Borrowing Amount
applicable thereto; provided that Mandatory Borrowings shall be in the amounts
required by Section 1.01(g). More than one Borrowing may occur on the same date,
but at no time shall there be outstanding more than (x) six Borrowings of
Eurodollar Loans under any one Tranche in the case
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of Revolving Loans and, prior to the RTL Conversion Date, RTL Loans and (y)
three Borrowings of Eurodollar Loans under any one Tranche in the case of Term
Loans and, after the RTL Conversion Date, RTL Loans.
1.03 Notice of Borrowing. (a) Whenever the Borrower desires to make a
Borrowing hereunder (excluding Borrowings of Swingline Loans and Mandatory
Borrowings), it shall give the Administrative Agent at its Notice Office at
least one Business Day's prior written (or telephonic promptly confirmed in
writing) notice of each Base Rate Loan and at least three Business Days' prior
written (or telephonic promptly confirmed in writing) notice of each Eurodollar
Loan to be made hereunder, provided that any such notice shall be deemed to have
been given on a certain day only if given before 12:00 Noon (New York time) on
such day. Each such written notice or written confirmation of telephonic notice
(each a "Notice of Borrowing") shall be given by the Borrower in the form of
Exhibit A, appropriately completed to specify the aggregate principal amount of
the Loans to be made pursuant to such Borrowing, the date of such Borrowing
(which shall be a Business Day), the Tranche of the Loans being made pursuant to
such Borrowing and whether the Loans being made pursuant to such Borrowing are
to be initially maintained as Base Rate Loans or Eurodollar Loans and, if
Eurodollar Loans, the initial Interest Period to be applicable thereto. The
Administrative Agent shall promptly give each Lender which is required to make
Loans of the Tranche specified in the respective Notice of Borrowing, notice of
such proposed Borrowing, of such Lender's proportionate share thereof and of the
other matters required by the immediately preceding sentence to be specified in
the Notice of Borrowing.
(b) (i) Whenever the Borrower desires to make a Borrowing of Swingline
Loans hereunder, it shall give the Swingline Lender, not later than 1:00 p.m.
(New York time) on the date that a Swingline Loan is to be made, written notice
(or telephonic notice confirmed in writing) of each Swingline Loan to be made
hereunder. Each such notice shall specify in each case (a) the date of Borrowing
(which shall be a Business Day) and (b) the aggregate principal amount of
Swingline Loans to be made pursuant to such Borrowing.
(ii) Mandatory Borrowings shall be made upon the notice specified in
Section 1.01(g), with the Borrower irrevocably agreeing, by its incurrence of
any Swingline Loan, to the making of the Mandatory Borrowings as set forth in
Section 1.01(g).
(c) Without in any way limiting the obligation of the Borrower to confirm
in writing any telephonic notice of any Borrowing of Loans, the Administrative
Agent or the Swingline Lender, as the case may be, may act without liability
upon the basis of telephonic notice of such Borrowing, believed by the
Administrative Agent or the Swingline Lender, as the case may be, in good faith
to be from an Authorized Officer of the Borrower prior to receipt of written
confirmation. In each such case, the Borrower hereby waives the right to dispute
the Administrative Agent's and the Swingline Lender's record of the terms of
such telephonic notice of such Borrowing of Loans.
1.04 Disbursement of Funds. Except as otherwise specifically provided in
the second succeeding sentence, no later than 12:00 Noon (New York time) on the
date specified in each Notice of Borrowing (or (x) in the case of Swingline
Loans, no later than the close of business on the date specified pursuant to
Section 1.03(b)(i) or (y) in case of Mandatory
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Borrowings, not later than 12:00 Noon (New York time) on the date specified in
Section 1.01(g)), each Lender with a Commitment of the respective Tranche will
make available its pro rata portion of each such Borrowing requested to be made
on such date (or in the case of Swingline Loans, the Swingline Lender shall make
available the full amount thereof). All such amounts shall be made available in
Dollars and in immediately available funds at the Payment Office of the
Administrative Agent, and the Administrative Agent will make available to the
Borrower at the Payment Office the aggregate of the amounts so made available by
the Lenders (prior to 1:00 P.M. on such day, to the extent of funds actually
received by the Administrative Agent prior to 12:00 Noon on such day). Unless
the Administrative Agent shall have been notified by any Lender prior to the
date of Borrowing that such Lender does not intend to make available to the
Administrative Agent such Lender's portion of any Borrowing to be made on such
date, the Administrative Agent may assume that such Lender has made such amount
available to the Administrative Agent on such date of Borrowing and the
Administrative Agent may, in reliance upon such assumption, make available to
the Borrower a corresponding amount. If such corresponding amount is not in fact
made available to the Administrative Agent by such Lender, the Administrative
Agent shall be entitled to recover such corresponding amount on demand from such
Lender. If such Lender does not pay such corresponding amount forthwith upon the
Administrative Agent's demand therefor, the Administrative Agent shall promptly
notify the Borrower and the Borrower shall immediately pay such corresponding
amount to the Administrative Agent. The Administrative Agent shall also be
entitled to recover on demand from such Lender or the Borrower, as the case may
be, interest on such corresponding amount in respect of each day from the date
such corresponding amount was made available by the Administrative Agent to the
Borrower until the date such corresponding amount is recovered by the
Administrative Agent, at a rate per annum equal to (i) if recovered from such
Lender, (x) at the overnight Federal Funds Rate for the first three days
following the date the relevant amount was made available by the Administrative
Agent and (y) the Base Rate for each day thereafter, and (ii) if recovered from
the Borrower, the rate of interest applicable to the respective Borrowing, as
determined pursuant to Section 1.08. Nothing in this Section 1.04 shall be
deemed to relieve any Lender from its obligation to make Loans hereunder or to
prejudice any rights which the Borrower may have against any Lender as a result
of any failure by such Lender to make Loans hereunder.
1.05 Notes. (a) The Borrower's obligation to pay the principal of, and
interest on, the Loans made by each Lender shall, if requested by such Lender,
be evidenced (i) if A Term Loans, by a promissory note duly executed and
delivered by the Borrower substantially in the form of Exhibit B-1 with blanks
appropriately completed in conformity herewith (each, an "A Term Note" and
collectively, the "A Term Notes"), (ii) if B Term Loans, by a promissory note
duly executed and delivered by the Borrower substantially in the form of Exhibit
B-2 with blanks appropriately completed in conformity herewith (each, a "B Term
Note" and collectively, the "B Term Notes"), (iii) if C Term Loans, by a
promissory note duly executed and delivered by the Borrower substantially in the
form of Exhibit B-3 with blanks appropriately completed in conformity herewith
(each a "C Term Note" and collectively, the "C Term Notes" and, together with
the A Term Notes and the B Term Notes, the "Term Notes"), (iv) if RTL Loans, by
a promissory note duly executed and delivered by the Borrower substantially in
the form of Exhibit B-4, with blanks appropriately completed in conformity
herewith (each, an "RTL Note" and collectively, the "RTL Notes"), (v) if
Revolving Loans, by a promissory note duly executed and delivered by the
Borrower substantially in the form of Exhibit B-5, with blanks appropriately
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completed in conformity herewith (each, a "Revolving Note" and collectively, the
"Revolving Notes") and (vi) if Swingline Loans, by a promissory note duly
executed and delivered by the Borrower substantially in the form of Exhibit B-6,
with blanks appropriately completed in conformity herewith (each, a "Swingline
Note" and collectively, the "Swingline Notes").
(b) The A Term Note issued to each Lender shall (i) be executed by the
Borrower, (ii) be payable to the order of such Lender and be dated the Initial
Borrowing Date (or, in the case of A Term Notes issued after the Initial
Borrowing Date, be dated the date of issuance thereof), (iii) be in a stated
principal amount equal to the respective A Term Loan made by such Lender on the
Initial Borrowing Date (or, in the case of any A Term Note issued after the
Initial Borrowing Date, be in a stated principal amount equal to the outstanding
principal amount of the A Term Loans of such Lender on the date of the issuance
thereof) and be payable in the principal amount of A Term Loans evidenced
thereby, (iv) mature on the A Term Maturity Date, (v) bear interest as provided
in the appropriate clause of Section 1.08 in respect of the Base Rate Loans and
Eurodollar Loans, as the case may be, evidenced thereby, (vi) be subject to
mandatory repayment as provided in Section 4.02(A) and (vii) be entitled to the
benefits of this Agreement and the other Credit Documents.
(c) The B Term Note issued to each Lender shall (i) be executed by the
Borrower, (ii) be payable to the order of such Lender and be dated the Initial
Borrowing Date (or, in the case of B Term Notes issued after the Initial
Borrowing Date, be dated the date of issuance thereof), (iii) be in a stated
principal amount equal to the respective B Term Loan made by such Lender on the
Initial Borrowing Date (or, in the case of any B Term Note issued after the
Initial Borrowing Date, be in a stated principal amount equal to the outstanding
principal amount of the B Term Loans of such Lender on the date of the issuance
thereof) and be payable in the principal amount of B Term Loans evidenced
thereby, (iv) mature on the B Term Maturity Date, (v) bear interest as provided
in the appropriate clause of Section 1.08 in respect of the Base Rate Loans and
Eurodollar Loans, as the case may be, evidenced thereby, (vi) be subject to
mandatory repayment as provided in Section 4.02(A) and (vii) be entitled to the
benefits of this Agreement and the other Credit Documents.
(d) The C Term Note issued to each Lender shall (i) be executed by the
Borrower, (ii) be payable to the order of such Lender and be dated the Initial
Borrowing Date (or, in the case of C Term Notes issued after the Initial
Borrowing Date, be dated the date of issuance thereof), (iii) be in a stated
principal amount equal to the respective C Term Loan made by such Lender on the
Initial Borrowing Date (or, in the case of any C Term Note issued after the
Initial Borrowing Date, be in a stated principal amount equal to the outstanding
principal amount of the C Term Loans of such Lender on the date of the issuance
thereof) and be payable in the principal amount of C Term Loans evidenced
thereby, (iv) mature on the C Term Maturity Date, (v) bear interest as provided
in the appropriate clause of Section 1.08 in respect of Base Rate Loans and
Eurodollar Loans, as the case may be, evidenced thereby, (vi) be subject to
mandatory repayment as provided in Section 4.02(A) and (vii) be entitled to the
benefits of this Agreement and the other Credit Documents.
(e) The RTL Note issued to each Lender shall (i) be executed by the
Borrower, (ii) be payable to the order of such Lender and be dated the Initial
Borrowing Date (or, in the case of RTL Notes issued after the Initial Borrowing
Date, be dated the date of issuance thereof),
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(iii) be in a stated principal amount equal to the RTL Commitment of such Lender
and be payable in the principal amount of the RTL Loans evidenced thereby, (iv)
mature on the RTL Maturity Date, (v) bear interest as provided in the
appropriate clause of Section 1.08 in respect of the Base Rate Loans and
Eurodollar Loans, as the case may be, evidenced thereby, (vi) be subject to
mandatory repayment as provided in Section 4.02(A) and (vii) be entitled to the
benefits of this Agreement and the other Credit Documents.
(f) The Revolving Note issued to each Lender shall (i) be executed by the
Borrower, (ii) be payable to the order of such Lender and be dated the Initial
Borrowing Date (or, in the case of Revolving Notes issued after the Initial
Borrowing Date, be dated the date of issuance thereof), (iii) be in a stated
principal amount equal to the Revolving Loan Commitment of such Lender and be
payable in the principal amount of the Revolving Loans evidenced thereby, (iv)
mature on the Revolving Loan Maturity Date, (v) bear interest as provided in the
appropriate clause of Section 1.08 in respect of the Base Rate Loans and
Eurodollar Loans, as the case may be, evidenced thereby, (vi) be subject to
mandatory repayment as provided in Section 4.02(A) and (vii) be entitled to the
benefits of this Agreement and the other Credit Documents.
(g) The Swingline Note issued to the Swingline Lender shall (i) be executed
by the Borrower, (ii) be payable to the order of the Swingline Lender and be
dated the Initial Borrowing Date (or, in the case of any Swingline Note issued
after the Initial Borrowing Date, be dated the date of issuance thereof), (iii)
be in a stated principal amount equal to the Maximum Swingline Amount and be
payable in the principal amount of the outstanding Swingline Loans evidenced
thereby, (iv) mature on the Swingline Expiry Date, (v) bear interest as provided
in the appropriate clause of Section 1.08 in respect of the Base Rate Loans
evidenced thereby, (vi) be subject to mandatory repayment as provided in Section
4.02(A) and (vii) be entitled to the benefits of this Agreement and the other
Credit Documents.
(h) Each Lender will note on its internal records the amount of each Loan
made by it and each payment in respect thereof and will prior to any transfer of
any of its Notes (if applicable) endorse on the reverse side thereof the
outstanding principal amount of Loans evidenced thereby. Failure to make any
such notation or any error in any such notation or endorsement shall not affect
the Borrower's obligations in respect of such Loans.
(i) Notwithstanding anything to the contrary contained above or elsewhere
in this Agreement, Notes shall only be delivered to Lenders which at any time
specifically request the delivery of such Notes. No failure of any Lender to
request or obtain a Note evidencing its Loans to the Borrower shall affect or in
any manner impair the obligations of the Borrower to pay the Loans (and all
related Obligations) which would otherwise be evidenced thereby in accordance
with the requirements of this Agreement, and shall not in any way affect the
security or guaranties therefor provided pursuant to the various Credit
Documents. Any Lender which does not have a Note evidencing its outstanding
Loans shall in no event be required to make the notations otherwise described in
preceding clause (h). At any time when any Lender requests the delivery of a
Note to evidence any of its Loans, the Borrower shall promptly execute and
deliver to the respective Lender the requested Note or Notes in the appropriate
amount or amounts to evidence such Loans.
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1.06 Conversions. The Borrower shall have the option to convert on any
Business Day occurring on or after the Eurodollar Loan Availability Date, all or
a portion equal to at least the Minimum Borrowing Amount for the relevant
Tranche of the outstanding principal amount of Loans made pursuant to one or
more Borrowings (so long as of the same Tranche) of one or more Types of Loans
into a Borrowing (of the same Tranche) of another Type of Loan (other than
Swingline Loans which may not be converted pursuant to this Section 1.06),
provided that (i) prior to the Syndication Termination Date, no Base Rate Loan
may be converted into a Eurodollar Loan except as otherwise permitted under
Section 1.09(viii), (ii) Eurodollar Loans converted into Base Rate Loans on any
day other than the last day of an Interest Period applicable to the Loans being
converted shall be accompanied by costs set forth in Section 1.11 and no partial
conversion of Eurodollar Loans shall reduce the outstanding principal amount of
such Eurodollar Loans made pursuant to a single Borrowing to less than the
Minimum Borrowing Amount applicable thereto, (iii) Base Rate Loans may only be
converted into Eurodollar Loans if no Default or Event of Default is in
existence on the date of the conversion and (iv) no conversion pursuant to this
Section 1.06 shall result in a greater number of Eurodollar Loans than is
permitted under Section 1.02. Each such conversion shall be effected by the
Borrower by giving the Administrative Agent at its Notice Office prior to 12:00
Noon (New York time) at least three Business Days' (in the case of a conversion
of Base Rate Loans into Eurodollar Loans) and at least one Business Day (in the
case of a conversion of Eurodollar Loans into Base Rate Loans) prior notice
(each a "Notice of Conversion") specifying the Loans to be so converted, the
Borrowing or Borrowings pursuant to which such Loans were made and, if to be
converted into Eurodollar Loans, the Interest Period to be initially applicable
thereto. The Administrative Agent shall give each Lender prompt notice of any
such proposed conversion affecting any of its Loans.
1.07 Pro Rata Borrowings. All Borrowings of Loans of a Tranche under this
Agreement shall be incurred from the Lenders pro rata on the basis of their
Commitments under such Tranche. It is understood that no Lender shall be
responsible for any default by any other Lender of its obligation to make Loans
hereunder and that each Lender shall be obligated to make the Loans provided to
be made by it hereunder, regardless of the failure of any other Lender to make
its Loans hereunder.
1.08 Interest. (a) The Borrower agrees to pay interest in respect of the
unpaid principal amount of each Base Rate Loan from the date the proceeds
thereof are made available to the Borrower until the earlier of (i) the maturity
(whether by acceleration, optional or mandatory or otherwise) of such Base Rate
Loan and (ii) the conversion of such Base Rate Loan to a Eurodollar Loan
pursuant to Section 1.06, at a rate per annum which shall be equal to the sum of
the Applicable Margin plus the Base Rate in effect from time to time.
(b) The Borrower agrees to pay interest in respect of the unpaid principal
amount of each Eurodollar Loan from the date the proceeds thereof are made
available to the Borrower until the earlier of (i) the maturity (whether by
acceleration, optional or mandatory or otherwise) of such Eurodollar Loan and
(ii) the conversion of such Eurodollar Loan to a Base Rate Loan pursuant to
Section 1.06, 1.09 or 1.10, as applicable, at a rate per annum which shall,
during each Interest Period applicable thereto, be equal to the sum of the
Applicable Margin plus the Eurodollar Rate for such Interest Period.
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(c) Overdue principal and, to the extent permitted by law, overdue interest
in respect of each Loan and any other overdue amount payable hereunder shall, in
each case, bear interest at a rate per annum equal to the greater of (x) 2% per
annum in excess of the rate otherwise applicable to Base Rate Loans of the
respective Tranche of Loans from time to time and (y) the rate which is 2% in
excess of the rate then borne by such Loans, in each case with such interest to
be payable on demand.
(d) Accrued (and theretofore unpaid) interest shall be payable (i) in
respect of each Base Rate Loan, quarterly in arrears on each Quarterly Payment
Date, (ii) in respect of each Eurodollar Loan, on the last day of each Interest
Period applicable thereto and, in the case of an Interest Period in excess of
three months, on each date occurring at three month intervals after the first
day of such Interest Period and (iii) in respect of each Term Loan, on any
repayment or prepayment (on the amount repaid or prepaid), and in respect of any
Loan at maturity (whether by acceleration or otherwise) and, after such
maturity, on demand.
(e) Upon each Interest Determination Date, the Administrative Agent shall
determine the Eurodollar Rate for each Interest Period applicable to Eurodollar
Loans and shall promptly notify the Borrower and the Lenders thereof. Each such
determination shall, absent manifest error, be final and conclusive and binding
on all parties hereto.
1.09 Interest Periods. At the time it gives any Notice of Borrowing or
Notice of Conversion in respect of the making of, or conversion into, any
Eurodollar Loan (in the case of the initial Interest Period applicable thereto)
or on the third Business Day prior to the expiration of an Interest Period
applicable to such Eurodollar Loan (in the case of any subsequent Interest
Period), the Borrower shall have the right to elect, by giving the
Administrative Agent notice thereof, the interest period (each an "Interest
Period") applicable to such Eurodollar Loan, which Interest Period shall, at the
option of the Borrower, be a one, two, three or six-month or, in the case of an
Interest Period commencing prior to the Syndication Termination Date, a two-week
period, provided that:
(i) all Eurodollar Loans comprising a Borrowing shall at all times
have the same Interest Period;
(ii) the initial Interest Period for any Eurodollar Loan shall
commence on the date of Borrowing of such Eurodollar Loan (including the
date of any conversion thereto from a Loan of a different Type) and each
Interest Period occurring thereafter in respect of such Eurodollar Loan
shall commence on the day on which the next preceding Interest Period
applicable thereto expires;
(iii) if any Interest Period relating to a Eurodollar Loan begins on a
day for which there is no numerically corresponding day in the calendar
month at the end of such Interest Period, such Interest Period shall end on
the last Business Day of such calendar month;
(iv) if any Interest Period would otherwise expire on a day which is
not a Business Day, such Interest Period shall expire on the next
succeeding Business Day; provided, however, that if any Interest Period for
a Eurodollar Loan would otherwise
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expire on a day which is not a Business Day but is a day of the month
after which no further Business Day occurs in such month, such Interest
Period shall expire on the next preceding Business Day;
(v) unless the Required Lenders otherwise agree, no Interest Period
may be selected at any time when a Default or Event of Default is then in
existence;
(vi) no Interest Period in respect of any Borrowing of Loans of a
Tranche shall be selected which extends beyond the Maturity Date for such
Tranche;
(vii) no Interest Period in respect of any Borrowing under a Tranche
shall be selected which extends beyond any date upon which a mandatory
repayment of Loans under such Tranche will be required to be made under
Section 4.02(A)(b), (c), (d) or (e) if, after giving effect to the
selection of such Interest Period, the aggregate principal amount of Loans
of such Tranche, which have Interest Periods which will expire after such
date will be in excess of the aggregate principal amount of Loans under
such Tranche then outstanding less the aggregate amount of such required
repayment; and
(viii) no Interest Period other than a two-week Interest Period may be
selected prior to the Syndication Termination Date, and such an Interest
Period may only be selected so long as (I) all outstanding Loans that are
maintained as Eurodollar Loans are subject to the same two-week Interest
Period which begins and ends on the same day and (II) the Administrative
Agent has not notified the Borrower that the selection of such an Interest
Period would interfere with the closing of the primary syndication of the
Agreement.
If upon the expiration of any Interest Period applicable to a Borrowing of
Eurodollar Loans, the Borrower has failed to elect, or is not permitted to
elect, a new Interest Period to be applicable to such Eurodollar Loans as
provided above, the Borrower shall be deemed to have elected to convert such
Eurodollar Loans into Base Rate Loans effective as of the expiration date of
such current Interest Period.
1.10 Increased Costs, Illegality, etc. (a) In the event that any Lender
shall have determined (which determination shall, absent manifest error, be
final and conclusive and binding upon all parties hereto but, with respect to
clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes
arising after the date of this Agreement affecting the interbank Eurodollar
market, adequate and fair means do not exist for ascertaining the
applicable interest rate on the basis provided for in the definition of
Eurodollar Rate; or
(ii) at any time, that such Lender shall incur increased costs or
reductions in the amounts received or receivable hereunder with respect to
any Eurodollar Loan because of (x) any change since the date of this
Agreement in any applicable law or governmental rule, regulation, order,
guideline or request (whether or not having the force of law) or in the
interpretation or administration thereof and including the introduction of
any new law or governmental rule, regulation, order, guideline or request,
such as, for
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example, but not limited to: (A) a change in the basis of taxation of
payment to any Lender of the principal of or interest on such Eurodollar
Loan or any other amounts payable hereunder (except for changes in the rate
of tax on, or determined by reference to, the net income or profits of such
Lender, or any corporation controlling such Lender, or any franchise tax
based on the net income or profits of such Lender, or any corporation
controlling such Lender, in either case pursuant to the laws of the United
States of America or the jurisdiction in which it is organized or in which
its principal office or applicable lending office is located or any
subdivision thereof or therein), but without duplication of any amounts
payable in respect of Taxes pursuant to Section 4.04(a), or (B) a change in
official reserve requirements, but, in all events, excluding reserves
required under Regulation D to the extent included in the computation of
the Eurodollar Rate and/or (y) other circumstances since the date of this
Agreement affecting the interbank Eurodollar market or the position of
lenders generally in such market; or
(iii) at any time, that the making or continuance of any Eurodollar
Loan has been made (x) unlawful by any law or governmental rule, regulation
or order, (y) impossible by compliance by any Lender in good faith with any
governmental request (whether or not having force of law) or (z)
impracticable as a result of a contingency occurring after the date of this
Agreement which materially and adversely affects the interbank Eurodollar
market;
then, and in any such event, such Lender (or the Administrative Agent, in the
case of clause (i) above) shall promptly give notice (by telephone confirmed in
writing) to the Borrower and, except in the case of clause (i) above, to the
Administrative Agent of such determination (which notice the Administrative
Agent shall promptly transmit to each of the other Lenders). Thereafter (x) in
the case of clause (i) above, Eurodollar Loans shall no longer be available
until such time as the Administrative Agent notifies the Borrower and the
Lenders that the circumstances giving rise to such notice by the Administrative
Agent no longer exist, and any Notice of Borrowing or Notice of Conversion given
by the Borrower with respect to Eurodollar Loans which have not yet been
incurred (including by way of conversion) shall be deemed rescinded by the
Borrower, (y) in the case of clause (ii) above, the Borrower shall pay to such
Lender, upon written demand therefor, such additional amounts (in the form of an
increased rate of, or a different method of calculating, interest or otherwise
as such Lender in its sole discretion shall determine) as shall be required to
compensate such Lender for such increased costs or reductions in amounts
received or receivable hereunder (a written notice as to the additional amounts
owed to such Lender, showing the basis for the calculation thereof, submitted to
the Borrower by such Lender in good faith shall, absent manifest error, be final
and conclusive and binding on all the parties hereto) and (z) in the case of
clause (iii) above, the Borrower shall take one of the actions specified in
Section 1.10(b) as promptly as possible and, in any event, within the time
period required by law. Each of the Administrative Agent and each Lender agrees
that if it gives notice to the Borrower of any of the events described in clause
(i) or (iii) above, it shall promptly notify the Borrower and, in the case of
any such Lender, the Administrative Agent, if such event ceases to exist. If any
such event described in clause (iii) above ceases to exist as to a Lender, the
obligations of such Lender to make Eurodollar Loans and to convert Base Rate
Loans into Eurodollar Loans on the terms and conditions contained herein shall
be reinstated.
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(b) At any time that any Eurodollar Loan is affected by the circumstances
described in Section 1.10(a)(ii) or (iii), the Borrower may (and in the case of
a Eurodollar Loan affected by the circumstances described in Section
1.10(a)(iii) shall) either (x) if the affected Eurodollar Loan is then being
made initially or pursuant to a conversion, cancel the respective Borrowing by
giving the Administrative Agent telephonic notice (confirmed in writing) on the
same date that the Borrower was notified by the affected Lender or the
Administrative Agent pursuant to Section 1.10(a)(ii) or (iii) or (y) if the
affected Eurodollar Loan is then outstanding, upon at least three Business Days'
written notice to the Administrative Agent, require the affected Lender to
convert such Eurodollar Loan into a Base Rate Loan, provided that, if more than
one Lender is affected at any time, then all affected Lenders must be treated
the same pursuant to this Section 1.10(b).
(c) If at any time after the date of this Agreement any Lender determines
that the introduction of or any change in any applicable law or governmental
rule, regulation, order, guideline, directive or request (whether or not having
the force of law) concerning capital adequacy, or any change in interpretation
or administration thereof by any governmental authority, central bank or
comparable agency, will have the effect of increasing the amount of capital
required or expected to be maintained by such Lender or any corporation
controlling such Lender based on the existence of such Lender's Commitments
hereunder or its obligations hereunder, then the Borrower shall pay to such
Lender, upon its written demand therefor, such additional amounts as shall be
required to compensate such Lender or such other corporation for the increased
cost to such Lender or such other corporation or the reduction in the rate of
return to such Lender or such other corporation as a result of such increase of
capital. In determining such additional amounts, each Lender will act reasonably
and in good faith and will use averaging and attribution methods which are
reasonable, provided that such Lender's reasonable good faith determination of
compensation owing under this Section 1.10(c) shall, absent manifest error, be
final and conclusive and binding on all the parties hereto. Each Lender, upon
determining that any additional amounts will be payable pursuant to this Section
1.10(c), will give prompt written notice thereof to the Borrower, which notice
shall show the basis for calculation of such additional amounts.
1.11 Compensation. The Borrower shall compensate each Lender, upon its
written request (which request shall set forth the basis for requesting such
compensation), for all reasonable losses, expenses and liabilities (including,
without limitation, any loss, expense or liability incurred by reason of the
liquidation or reemployment of deposits or other funds required by such Lender
to fund its Eurodollar Loans but excluding any loss of anticipated profit) which
such Lender may sustain: (i) if for any reason (other than a default by such
Lender or the Administrative Agent) a Borrowing of, or conversion from or into,
Eurodollar Loans does not occur on a date specified therefor in a Notice of
Borrowing or Notice of Conversion (whether or not withdrawn by the Borrower or
deemed withdrawn pursuant to Section 1.10(a) or (b)); (ii) if any repayment
(including any repayment made pursuant to Section 4.02(A) or as a result of an
acceleration of the Loans pursuant to Section 10) or conversion of any of its
Eurodollar Loans occurs on a date which is not the last day of an Interest
Period with respect thereto; (iii) if any prepayment of any of its Eurodollar
Loans is not made on any date specified in a notice of prepayment given by the
Borrower; or (iv) as a consequence of (x) any other default by the Borrower to
repay its Loans when required by the terms of this Agreement or any Note held by
such Lender or (y) any election made pursuant to Section 1.10(b).
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1.12 Change of Lending Office. Each Lender agrees that upon the occurrence
of any event giving rise to the operation of Section 1.10(a)(ii) or (iii),
Section 1.10(c), Section 2.05 or Section 4.04 with respect to such Lender, it
will, if requested by the Borrower, use reasonable efforts (subject to overall
policy considerations of such Lender) to designate another lending office for
any Loans affected by such event, provided that such designation is made on such
terms that such Lender and its lending office suffer no economic, legal or
regulatory disadvantage, with the object of avoiding the consequence of the
event giving rise to the operation of such Section. Nothing in this Section 1.12
shall affect or postpone any of the obligations of the Borrower or the right of
any Lender provided in Sections 1.10, 2.05 and 4.04.
1.13 Replacement of Lenders. (x) If any Lender becomes a Defaulting Lender
or otherwise defaults in its obligations to make Loans or fund Unpaid Drawings,
(y) if any Lender is incurring or is reasonably expected to incur costs which
are or would be material in amount and are associated with a Gaming Authority's
investigation of whether or not such Lender is a Qualified Person, or (z) upon
the occurrence of any event giving rise to the operation of Section 1.10(a)(ii)
or (iii), Section 1.10(c), Section 2.05 or Section 4.04 with respect to any
Lender which results in such Lender charging to the Borrower increased costs in
excess of those being generally charged by the other Lenders, the Borrower shall
have the right, if no Default or Event of Default will exist prior to or
immediately after giving effect to the respective replacement, to either replace
such Lender (the "Replaced Lender") with one or more other Qualified Person or
Persons, none of whom shall constitute a Defaulting Lender at the time of such
replacement (collectively, the "Replacement Lender") reasonably acceptable to
the Administrative Agent, provided that (i) at the time of any replacement
pursuant to this Section 1.13, the Replacement Lender shall enter into one or
more Assignment and Assumption Agreements pursuant to Section 13.04(b) (and with
all fees payable pursuant to said Section 13.04(b) to be paid by the Replacement
Lender) pursuant to which the Replacement Lender shall acquire all of the
Commitments and outstanding Loans of, and in each case participations in Letters
of Credit by, the Replaced Lender and, in connection therewith, shall pay to (x)
the Replaced Lender in respect thereof an amount equal to the sum of (A) an
amount equal to the principal of, and all accrued interest on, all outstanding
Loans of the Replaced Lender, (B) an amount equal to all Unpaid Drawings that
have been funded by (and not reimbursed to) such Replaced Lender, together with
all then unpaid interest with respect thereto at such time and (C) an amount
equal to all accrued, but theretofore unpaid, Fees owing to such Replaced Lender
pursuant to Section 3.01 and (y) any Issuing Lender an amount equal to such
Replaced Lender's Revolving Loan Percentage of any Unpaid Drawing (which at such
time remains an Unpaid Drawing) to the extent such amount was not theretofore
funded by such Replaced Lender and (z) the Swingline Lender an amount equal to
such Replaced Lender's Revolving Loan Percentage of any Mandatory Borrowing to
the extent such amount was not theretofore funded by such replaced Lender; and
(ii) all Obligations of the Borrower owing to the Replaced Lender (other than
those specifically described in clause (i) above in respect of which the
assignment purchase price has been, or is concurrently being, paid) shall be
paid in full to such Replaced Lender concurrently with such replacement. Upon
the execution of the respective Assignment and Assumption Agreements, the
payment of amounts referred to in clauses (i) and (ii) above and, if so
requested by the Replacement Lender, delivery to the Replacement Lender of the
appropriate Note or Notes executed by the Borrower, (x) the Replacement Lender
shall become a Lender hereunder and the Replaced Lender shall cease to
constitute a Lender hereunder, except with respect to indemnification provisions
under
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this Agreement (including, without limitation, Sections 1.10, 1.11, 2.05, 4.04,
13.01 and 13.06), which shall survive as to such Replaced Lender.
1.14 Incremental Loan Commitments. (a) So long as no Default or Event of
Default then exists or would result therefrom, the Borrower shall, in
consultation with the Administrative Agent, have the right to request on one or
more occasions on and after the Initial Borrowing Date and prior to the
Incremental Commitment Termination Date that one or more Lenders (and/or one or
more other Persons which will become Lenders as provided below) provide
Incremental Commitments under any Tranche (other than the RTL Loan Tranche) and,
subject to the terms and conditions contained in this Agreement, make
Incremental Term Loans pursuant thereto or increase its Revolving Loan
Commitment, as the case may be, it being understood and agreed, however, that
(i) no Lender shall be obligated to provide an Incremental Commitment
as a result of any such request by the Borrower, and until such time, if
any, as such Lender has agreed in its sole discretion to provide an
Incremental Commitment and executed and delivered to the Administrative
Agent an Incremental Commitment Agreement as provided in clause (b) of this
Section 1.14, such Lender shall not be obligated to fund any Incremental
Term Loans or increase its Revolving Loan Commitment,
(ii) any Lender (or, in the circumstances contemplated by clause
(viii) below, any other Person which will qualify as a Qualified Person)
may so provide an Incremental Commitment without the consent of any other
Lender,
(iii) each provision of Incremental Commitments pursuant to this
Section 1.14 on a given date shall be in a minimum aggregate amount (for
all Lenders (including in the circumstances contemplated by clause (viii)
below, Qualified Persons who will become Lenders)) of at least $10,000,000,
(iv) the aggregate amount of all Incremental Commitments permitted to
be provided pursuant to this Section 1.14 shall not exceed $50,000,000,
(v) the relevant Incremental Commitment Agreements shall specifically
set forth the Tranche of the Incremental Commitments being provided
thereunder,
(vi) each Lender agreeing to provide an Incremental Commitment under a
Term Loan Tranche, shall make Incremental Term Loans under the Term Loan
Tranche specified in the relevant Incremental Commitment Agreement pursuant
to Section 1.01(h) and such Loans shall thereafter be deemed to be Term
Loans under the relevant Term Loan Tranche for all purposes of this
Agreement and the other Credit Documents,
(vii) the Revolving Loan Commitment of each Lender agreeing to provide
an Incremental Commitment under the Revolving Loan Tranche shall be
increased by the amount of such Incremental Commitment specified in the
relevant Incremental Commitment Agreement effective on the date specified
in such Incremental Commitment Agreement,
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(viii) if, within 10 Business Days after the Borrower has requested
the then existing Lenders (other than Defaulting Lenders) to provide
Incremental Commitments pursuant to this Section 1.14 the Borrower has not
received Incremental Commitments in an aggregate amount equal to that
amount of Incremental Commitments which the Borrower desires to obtain
pursuant to such request (as set forth in the notice provided by the
Borrower as provided below), then the Borrower may, with the consent of the
Administrative Agent (which consent shall not be unreasonably withheld or
delayed), request Incremental Commitments from Persons which would qualify
as Qualified Persons hereunder in an aggregate amount equal to such
deficiency (and with the fees to be paid to such Qualified Person to be no
greater than that to be paid to the then existing Lenders providing
Incremental Commitments), and
(ix) all actions taken by the Borrower pursuant to this Section 1.14
shall be done in coordination with the Administrative Agent.
(b) At the time of any provision of Incremental Commitments pursuant to
this Section 1.14, (i) the Borrower, the Administrative Agent and each such
Lender or other Qualified Person (each an "Incremental Lender") which agrees to
provide an Incremental Commitment shall execute and deliver to the
Administrative Agent an Incremental Commitment Agreement substantially in the
form of Exhibit O (appropriately completed), with the effectiveness of such
Incremental Lender's Incremental Commitment to occur on the date set forth in
such Incremental Commitment Agreement and the payment of any fees (including,
without limitation, any fees payable pursuant to clause (ii) below) required in
connection therewith, (ii) the Administrative Agent shall receive from the
Borrower (or, to the extent agreed to by the Borrower and the respective
Incremental Lender, from such respective Incremental Lender) the payment of a
non-refundable fee of $3,500 for each Qualified Person which becomes a Lender
pursuant to this Section 1.14, (iii) the Borrower and its Subsidiaries shall
have delivered such amendments, modifications and/or supplements to the Security
Documents as are necessary or in the reasonable opinion of the Administrative
Agent, desirable to insure that the additional Obligations to be incurred
pursuant to the Incremental Commitments are secured by, and entitled to the
benefits of, the Security Documents, (iv) the Administrative Agent shall have
received evidence satisfactory to it that the additional Obligations to be
incurred pursuant to the Incremental Commitments are permitted by, and
constitute "Senior Debt" under, the Senior Subordinated Financing Documents and
the Permanent Senior Subordinated Notes Documents; and (v) the Borrower shall
deliver to the Administrative Agent an opinion or opinions, in form and
substance reasonably satisfactory to the Administrative Agent, from counsel to
the Borrower reasonably satisfactory to the Administrative Agent and dated such
date, covering such of the matters set forth in the opinions of counsel
delivered to the Administrative Agent on the Initial Borrowing Date pursuant to
Section 5.03 as may be reasonably requested by the Administrative Agent, and
such other matters as the Administrative Agent may reasonably request. The
Administrative Agent shall promptly notify each Lender as to the effectiveness
of each Incremental Commitment Agreement, and (i) at such time Annex I shall be
deemed modified to reflect the Incremental Commitments of such Incremental
Lenders under the relevant Tranche or Tranches and (ii) to the extent requested
by such Incremental Lenders, the appropriate Notes will be issued, at the
Borrower's expense, to such Incremental Lenders, to be in conformity with the
requirements of Section 1.05 (with appropriate modifications) to the extent
needed to reflect the
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Incremental Term Loans made by such Incremental Lenders or the increased
Revolving Loan Commitment of such Incremental Lender, as the case may be.
(c) In connection with each incurrence of Incremental Term Loans pursuant
to Section 1.01(h), the Lenders and the Borrower hereby agree that,
notwithstanding anything to the contrary contained in this Agreement, the
Borrower and the Administrative Agent may take all such actions as may be
necessary to ensure that all Lenders with outstanding Term Loans under the
relevant Tranche continue to participate in each Borrowing of outstanding Term
Loans under such Tranche (after giving effect to the incurrence of Incremental
Term Loans pursuant to Section 1.01(h) on a pro rata basis, including by adding
the Incremental Term Loans to be so incurred to the then outstanding Borrowings
of Term Loans on a pro rata basis even though as a result thereof such new
Incremental Term Loan (to the extent required to be maintained as Eurodollar
Loans), may effectively have a shorter Interest Period than the then outstanding
Borrowings of Term Loans under such Tranche and it is hereby agreed that (x) to
the extent any then outstanding Borrowings of Term Loans that are maintained as
Eurodollar Loans are affected as a result thereof, any costs of the type
described in Section 1.11 incurred by such Lenders in connection therewith shall
be for the account of the Borrower or (y) to the extent the Incremental Term
Loans to be so incurred are added to the then outstanding Borrowings of Term
Loans which are maintained as Eurodollar Loans, the Lenders that have made such
additional Incremental Term Loans shall be entitled to receive an effective
interest rate on such additional Incremental Term Loans as is equal to the
Eurodollar Rate as in effect two Business Days prior to the incurrence of such
additional Incremental Term Loans plus the then Applicable Margin for such
Tranche of Term Loans until the end of the respective Interest Period or
Interest Periods with respect thereto.
(d) On the effective date of any increase in the Revolving Loan Commitments
pursuant to this Section 1.14, (i) the Borrower shall, in coordination with the
Administrative Agent, repay outstanding Revolving Loans of certain of the
Lenders with a Revolving Loan Commitment, and incur additional Revolving Loans
from certain other Lenders with a Revolving Loan Commitment, in each case to the
extent necessary so that all of the Lenders participate in each outstanding
Borrowing of Revolving Loans pro rata on the basis of their respective Revolving
Loan Commitments (after giving effect to any increase in the Total Revolving
Loan Commitment pursuant to this Section 1.14) and with the Borrower being
obligated to pay to the respective Lenders the costs of the type referred to in
Section 1.11 in connection with any such repayment and/or Borrowing.
SECTION 2. Letters of Credit.
2.01 Letters of Credit. (a) Subject to and upon the terms and conditions
herein set forth, the Borrower may request that any Issuing Lender with a
Revolving Loan Commitment issue, at any time and from time to time on and after
the Initial Borrowing Date and prior to the 30th day preceding the Revolving
Loan Maturity Date, (x) for the account of the Borrower and for the benefit of
any holder (or any trustee, agent or other similar representative for any such
holders) of L/C Supportable Obligations of the Borrower or any of its
Subsidiaries, an irrevocable sight standby letter of credit in a form
customarily used by such Issuing Lender or in such other form as has been
approved by such Issuing Lender (each such standby letter of credit, a "Standby
Letter of Credit") in support of such L/C Supportable Obligations and (y) for
the
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account of the Borrower, an irrevocable sight trade letter of credit in a
form customarily used by such Issuing Lender or in such other form as has been
approved by such Issuing Lender (each such trade letter of credit, a "Trade
Letter of Credit", and each such Trade Letter of Credit and each Standby Letter
of Credit, a "Letter of Credit") in support of customary commercial transactions
of the Borrower and its Subsidiaries.
(b) Each Issuing Lender hereby agrees that it will, at any time and from
time to time on or after the Initial Borrowing Date and prior to the Revolving
Loan Maturity Date, following its receipt of the respective Letter of Credit
Request, issue for the account of the Borrower one or more Letters of Credit (x)
in the case of Standby Letters of Credit, in support of such L/C Supportable
Obligations of the Borrower or any of its Subsidiaries as are permitted to
remain outstanding without giving rise to a Default or Event of Default
hereunder and (y) in the case of Trade Letters of Credit, in support of buyers
of goods as referenced in Section 2.01(a), provided that the respective Issuing
Lender shall be under no obligation to issue any Letter of Credit of the types
described above if at the time of such issuance:
(i) any order, judgment or decree of any governmental authority or
arbitrator shall purport by its terms to enjoin or restrain such Issuing
Lender from issuing such Letter of Credit or any requirement of law
applicable to such Issuing Lender or any request or directive (whether or
not having the force of law) from any governmental authority with
jurisdiction over such Issuing Lender shall prohibit, or request that such
Issuing Lender refrain from, the issuance of letters of credit generally or
such Letter of Credit in particular or shall impose upon such Issuing
Lender with respect to such Letter of Credit any restriction or reserve or
capital requirement (for which such Issuing Lender is not otherwise
compensated) not in effect on the date hereof, or any unreimbursed loss,
cost or expense which was not applicable, in effect or known to such
Issuing Lender as of the date hereof and which such Issuing Lender in good
▇▇▇▇▇ ▇▇▇▇▇ material to it; or
(ii) such Issuing Lender shall have received notice prior to the
issuance of such Letter of Credit of the type described in the penultimate
sentence of Section 2.02(b).
(c) Notwithstanding the foregoing, (i) no Letter of Credit shall be issued
the Stated Amount of which, when added to the Letter of Credit Outstandings
(exclusive of Unpaid Drawings which are repaid on the date of, and prior to the
issuance of, the respective Letter of Credit) at such time would exceed either
(x) $15,000,000 or (y) when added to the aggregate outstanding principal amount
of all Revolving Loans and all Swingline Loans then outstanding, the Total
Revolving Loan Commitment; (ii) each Letter of Credit shall be denominated in
Dollars and shall be issued only on a sight basis; and (iii) each Letter of
Credit shall have an expiry date occurring not later than the earlier of (x) 12
months (or 180 days in the case of Trade Letters of Credit) after such Letter of
Credit's date of issuance, provided that the expiry date of any Standby Letter
of Credit may be automatically extendible for successive periods of up to 12
months and (y) the 30th day prior to the Revolving Loan Maturity Date.
2.02 Letter of Credit Requests. (a) Whenever the Borrower desires that a
Letter of Credit be issued for its account, the Borrower shall give the
Administrative Agent and the respective Issuing Lender at least three Business
Days' (or such shorter period as is acceptable to the respective Issuing Lender)
written notice thereof. In the case of Letters of Credit to be issued
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pursuant to Section 2.01, each notice shall be in the form of Exhibit C (each a
"Letter of Credit Request").
(b) The making of each Letter of Credit Request shall be deemed to be a
representation and warranty by the Borrower that such Letter of Credit may be
issued in accordance with, and will not violate the requirements of, Section
2.01(c). Unless the respective Issuing Lender has received notice from the
Borrower or the Required Lenders before it issues a Letter of Credit that one or
more of the conditions specified in Section 5 or Section 6 are not then
satisfied, or that the issuance of such Letter of Credit would violate Section
2.01(c), then such Issuing Lender may issue the requested Letter of Credit for
the account of the Borrower in accordance with such Issuing Lender's usual and
customary practices. Upon its issuance of or amendment to any Standby Letter of
Credit, each Issuing Lender shall notify the Borrower and the Administrative
Agent, in writing, of such issuance or amendment and such notice shall be
accompanied by a copy of such issuance or amendment. Upon receipt of such
notice, the Administrative Agent shall promptly notify each participating
Lender, in writing, of such issuance or amendment and if any Lender so requests,
the Administrative Agent shall provide copies of such issuance or amendment to
the requesting Lender.
(c) In the event that the Issuing Lender of Trade Letters of Credit is
other than the Administrative Agent, such Issuing Lender will send by facsimile
transmission to the Administrative Agent, promptly on the first Business Day, of
each week, its daily aggregate Letter of Credit stated amount for Trade Letters
of Credit for the previous week. The Administrative Agent shall deliver to each
other Participant, upon each calendar month end, and upon each Letter of Credit
fee payment, a report setting forth for such period the daily aggregate stated
amount available to be drawn under the Trade Letters of Credit issued by all the
Issuing Lenders during such period.
2.03 Letter of Credit Participations. (a) Immediately upon the issuance by
any Issuing Lender of any Letter of Credit, such Issuing Lender shall be deemed
to have sold and transferred to each Lender with a Revolving Loan Commitment,
other than such Issuing Lender (each such Lender, in its capacity under this
Section 2.03, a "Participant"), and each such Participant shall be deemed
irrevocably and unconditionally to have purchased and received from such Issuing
Lender, without recourse or warranty, an undivided interest and participation,
to the extent of such Participant's Percentage in such Letter of Credit, each
drawing made thereunder and the obligations of the Borrower under this Agreement
with respect thereto, and any security therefor or guaranty pertaining thereto
(although the Letter of Credit Fee shall be payable directly to the
Administrative Agent for the account of the Participants as provided in Section
3.01(b) and the Participants shall have no right to receive any portion of any
Facing Fees). Upon any change in the respective Revolving Loan Commitments or
Revolving Loan Percentages of the Lenders pursuant to Section 1.13 or 13.04, it
is hereby agreed that, with respect to all such outstanding Letters of Credit
and Unpaid Drawings, there shall be an automatic adjustment to the
participations pursuant to this Section 2.03 to reflect the new Percentages of
the assignor and assignee Lender or of all Lenders with respective Revolving
Loan Commitments.
(b) In determining whether to pay under any Letter of Credit, such Issuing
Lender shall have no obligation relative to the other Lenders other than to
confirm that any documents required to be delivered under such Letter of Credit
appear to have been delivered and that they
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appear to substantially comply on their face with the requirements of such
Letter of Credit. Any action taken or omitted to be taken by any Issuing Lender
under or in connection with any Letter of Credit if taken or omitted in the
absence of gross negligence or willful misconduct as determined by a court of
competent jurisdiction, shall not create for such Issuing Lender any resulting
liability to the Borrower or any Lender.
(c) In the event that any Issuing Lender makes any payment under any Letter
of Credit and the Borrower shall not have reimbursed such amount in full to such
Issuing Lender pursuant to Section 2.04(a), such Issuing Lender shall promptly
notify the Administrative Agent, which shall promptly notify each Participant of
such failure, and each Participant shall promptly and unconditionally pay to
such Issuing Lender the amount of such Participant's Revolving Loan Percentage
of such unreimbursed payment in Dollars and in same day funds. If the
Administrative Agent so notifies, prior to 11:00 A.M. (New York time) on any
Business Day, any Participant required to fund a payment under a Letter of
Credit, such Participant shall make available to such Issuing Lender in Dollars
such Participant's Revolving Loan Percentage of the amount of such payment on
such Business Day in same day funds. If and to the extent such Participant shall
not have so made its Revolving Loan Percentage of the amount of such payment
available to such Issuing Lender, such Participant agrees to pay to such Issuing
Lender, forthwith on demand such amount, together with interest thereon, for
each day from such date until the date such amount is paid to such Issuing
Lender at the overnight Federal Funds Rate. The failure of any Participant to
make available to such Issuing Lender its Revolving Loan Percentage of any
payment under any Letter of Credit shall not relieve any other Participant of
its obligation hereunder to make available to such Issuing Lender its Revolving
Loan Percentage of any Letter of Credit on the date required, as specified
above, but no Participant shall be responsible for the failure of any other
Participant to make available to such Issuing Lender such other Participant's
Revolving Loan Percentage of any such payment.
(d) Whenever any Issuing Lender receives a payment of a reimbursement
obligation as to which it has received any payments from the Participants
pursuant to clause (c) above, such Issuing Lender shall pay to each Participant
which has paid its Revolving Loan Percentage thereof, in Dollars and in same day
funds, an amount equal to such Participant's share (based upon the proportionate
aggregate amount originally funded by such Participant to the aggregate amount
funded by all Participants) of the principal amount of such reimbursement
obligation and interest thereon accruing after the purchase of the respective
participations.
(e) The obligations of the Participants to make payments to each Issuing
Lender with respect to Letters of Credit issued by it shall be irrevocable and
not subject to any qualification or exception whatsoever and shall be made in
accordance with the terms and conditions of this Agreement under all
circumstances, including, without limitation, any of the following
circumstances:
(i) any lack of validity or enforceability of this Agreement or any of
the other Credit Documents;
(ii) the existence of any claim, setoff, defense or other right which
the Borrower or any of its Subsidiaries may have at any time against a
beneficiary named in a Letter of Credit, any transferee of any Letter of
Credit (or any Person for whom any such
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transferee may be acting), the Administrative Agent, any Issuing
Lender, any Participant, or any other Person, whether in connection with
this Agreement, any Letter of Credit, the transactions contemplated herein
or any unrelated transactions (including any underlying transaction between
the Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any
Letter of Credit proving to be forged, fraudulent, invalid or insufficient
in any respect or any statement therein being untrue or inaccurate in any
respect;
(iv) the surrender or impairment of any security for the performance
or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
2.04 Agreement to Repay Letter of Credit Drawings. (a) The Borrower hereby
agrees to reimburse the respective Issuing Lender, by making payment to the
Administrative Agent in immediately available funds at the Payment Office, for
any payment or disbursement made by it under any Letter of Credit (each such
amount, so paid until reimbursed, an "Unpaid Drawing"), no later than three
Business Days after the date of such payment or disbursement, with interest on
the amount so paid or disbursed by such Issuing Lender, to the extent not
reimbursed prior to 12:00 Noon (New York time) on the date of such payment or
disbursement, from and including the date paid or disbursed to but excluding the
date such Issuing Lender was reimbursed by the Borrower therefor at a rate per
annum which shall be the Base Rate in effect from time to time plus the
Applicable Margin for Revolving Loans maintained as Base Rate Loans; provided,
however, to the extent such amounts are not reimbursed prior to 12:00 Noon (New
York time) on the Business Day following notice of such payment or disbursement,
interest shall thereafter accrue on the amounts so paid or disbursed by such
Issuing Lender (and until reimbursed by the Borrower) at a rate per annum which
shall be the Base Rate in effect from time to time plus the Applicable Margin
for Revolving Loans maintained as Base Rate Loans plus 2%, in each such case,
with interest to be payable on demand. The respective Issuing Lender shall give
the Borrower prompt notice of each Drawing under any Letter of Credit, provided
that the failure to give any such notice shall in no way affect, impair or
diminish the Borrower's obligations hereunder.
(b) The obligations of the Borrower under this Section 2.04 to reimburse
the respective Issuing Lender with respect to drawings on Letters of Credit
(each, a "Drawing") (including, in each case, interest thereon) shall be
absolute and unconditional under any and all circumstances and irrespective of
any setoff, counterclaim or defense to payment which the Borrower may have or
have had against any Lender (including in its capacity as the issuer of the
Letter of Credit or as Participant), or any nonapplication or misapplication by
the beneficiary of the proceeds of such Drawing, the respective Issuing Lender's
only obligation to the Borrower being to confirm that any documents required to
be delivered under such Letter of Credit appear to have been delivered and that
they appear to comply on their face with the requirements of such Letter of
Credit. Any action taken or omitted to be taken by any Issuing Lender under or
in connection with any Letter of Credit if taken or omitted in the absence of
gross negligence or
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willful misconduct as determined by a court of competent jurisdiction, shall not
create for such Issuing Lender any resulting liability to the Borrower.
2.05 Increased Costs. If at any time after the date of this Agreement, the
introduction of or any change in any applicable law, rule, regulation, order,
guideline or request or in the interpretation or administration thereof by any
governmental authority charged with the interpretation or administration
thereof, or compliance by any Issuing Lender or any Participant, or any
corporation controlling such Person, with any request or directive issued after
the date of this Agreement by any such authority (whether or not having the
force of law), shall either (i) impose, modify or make applicable any reserve,
deposit, capital adequacy or similar requirement against letters of credit
issued by any Issuing Lender or participated in by any Participant, or (ii)
impose on any Issuing Lender or any Participant, or any corporation controlling
such Person, any other conditions relating, directly or indirectly, to this
Agreement or any Letter of Credit; and the result of any of the foregoing is to
increase the cost to any Issuing Lender or any Participant of issuing,
maintaining or participating in any Letter of Credit, or reduce the amount of
any sum received or receivable by any Issuing Lender or any Participant
hereunder or reduce the rate of return on its capital with respect to Letters of
Credit (except for changes in the rate of tax on, or determined by reference to,
the net income or profits of such Issuing Lender or such Participant, or any
corporation controlling such Person, or any franchise tax based on the net
income or profits of such Lender or Participant, or any corporation controlling
such Person, in either case pursuant to the laws of the United States of
America, the jurisdiction in which it is organized or in which its principal
office or applicable lending office is located or any subdivision thereof or
therein), but without duplication of any amounts payable in respect of taxes
pursuant to Section 4.04(a), then, upon demand to the Borrower by such Issuing
Lender or any Participant (a copy of which demand shall be sent by such Issuing
Lender or such Participant to the Administrative Agent), the Borrower shall pay
to such Issuing Lender or such Participant such additional amount or amounts as
will compensate such Lender for such increased cost or reduction in the amount
receivable or reduction on the rate of return on its capital. Any Issuing Lender
or any Participant, upon determining that any additional amounts will be payable
pursuant to this Section 2.05, will give prompt written notice thereof to the
Borrower, which notice shall include a certificate submitted to the Borrower by
such Issuing Lender or such Participant (a copy of which certificate shall be
sent by such Issuing Lender or such Participant to the Administrative Agent),
setting forth in reasonable detail the basis for the calculation of such
additional amount or amounts necessary to compensate such Issuing Lender or such
Participant. The certificate required to be delivered pursuant to this Section
2.05 shall, if delivered in good faith and absent manifest error, be final and
conclusive and binding on the Borrower.
SECTION 3. Commitment Commission; Fees; Reductions of Commitment.
3.01 Fees. (a) The Borrower agrees to pay the Administrative Agent for
distribution to each Non-Defaulting Lender (i) in the case of the Total
Revolving Loan Commitment, a commitment commission (the "Revolving Loan
Commitment Commission") for the period from the Initial Borrowing Date to and
including the Revolving Loan Maturity Date (or such earlier date as the Total
Revolving Loan Commitment shall have been terminated), computed at a rate for
each day equal to 1/2 of 1% per annum on the daily average Unutilized Revolving
Loan Commitment of such Non-Defaulting Lender and (ii) in the case of the Total
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RTL Commitment, a commitment commission (the "RTL Commitment Commission" and,
together with the Revolving Loan Commitment Commission, the "Commitment
Commission") for the period from the Initial Borrowing Date to and including the
RTL Conversion Date (or such earlier date as the Total RTL Commitment shall have
been terminated), computed at a rate for each day equal to the Applicable RTL
Commitment Commission Percentage per annum on the daily average Unutilized RTL
Commitment of such Non-Defaulting Lender. Accrued Commitment Commission shall be
due and payable quarterly in arrears on each Quarterly Payment Date and on the
Revolving Loan Maturity Date or the RTL Maturity Date, as the case may be, or
such earlier date upon which the Total Revolving Loan Commitment or the Total
RTL Maturity Date, as the case may be, is terminated.
(b) The Borrower agrees to pay to the Administrative Agent for distribution
to each Non-Defaulting Lender with a Revolving Loan Commitment (based on their
respective Percentages), a fee in respect of each Letter of Credit issued
hereunder (the "Letter of Credit Fee"), for the period from and including the
date of issuance of such Letter of Credit, to and including the termination of
such Letter of Credit computed at a rate per annum equal to the Applicable
Margin for Revolving Loans maintained as Eurodollar Loans as in effect from time
to time on the daily Stated Amount of such Letter of Credit. Accrued Letter of
Credit Fees shall be due and payable quarterly in arrears on each Quarterly
Payment Date and upon the first day on or after the termination of the Total
Revolving Loan Commitment upon which no Letters of Credit remain outstanding.
(c) The Borrower agrees to pay to the respective Issuing Lender, for its
own account, a facing fee in respect of each Letter of Credit issued for its
account hereunder (the "Facing Fee") for the period from and including the date
of issuance of such Letter of Credit to and including the termination of such
Letter of Credit, computed at a rate equal to 1/4 of 1% per annum of the daily
Stated Amount of such Letter of Credit, provided that in no event shall the
annual Facing Fee in respect of any Letter of Credit be less than $500. Accrued
Facing Fees shall be due and payable quarterly in arrears on each Quarterly
Payment Date and upon the first day on or after the termination of the Total
Revolving Loan Commitment upon which no Letters of Credit remain outstanding.
(d) The Borrower shall pay, upon each payment under, issuance of, or
amendment to, any Letter of Credit, such amount as shall at the time of such
event be the administrative charge which the respective Issuing Lender is
generally imposing in connection with such occurrence with respect to letters of
credit.
(e) The Borrower shall pay to the Administrative Agent, for its own
account, such other fees as have been agreed to in writing by the Borrower and
the Administrative Agent.
(f) The Borrower shall pay, at the time of (x) each voluntary prepayment of
the B Term Loans or the C Term Loans and (y) any payment of the B Term Loans and
the C Term Loans from the Permanent Senior Subordinated Notes Prepayment Amount,
in each case on or prior to the second anniversary of the Initial Borrowing
Date, the applicable Term Loan Prepayment Premium.
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3.02 Voluntary Termination and Reduction of Commitments. (a) Upon at least
two Business Days' prior written notice (or telephonic notice confirmed in
writing) to the Administrative Agent at its Notice Office (which notice the
Administrative Agent shall promptly transmit to each of the Lenders), the
Borrower shall have the right, at any time or from time to time, without premium
or penalty, to terminate or partially reduce the Total Unutilized Revolving Loan
Commitment and/or, if prior to the RTL Conversion Date, the Total Unutilized RTL
Commitment, in whole or in part, provided that (x) each such reduction shall
apply proportionately to permanently reduce the Revolving Loan Commitment or RTL
Commitment, as the case may be, of each Lender with such a Commitment, (y) any
partial reduction pursuant to this Section 3.02 shall be in integral multiples
of $5,000,000 and (z) the reduction to the Total Unutilized Revolving Loan
Commitment or Total Unutilized RTL Commitment, as the case may be, shall in no
case be in an amount which would cause the Revolving Loan Commitment or RTL
Commitment, as the case may be, of any Lender to be reduced (as required by the
preceding clause (x)) by an amount which exceeds (I) in the case of the Total
RTL Commitment, the Unutilized RTL Commitment of such Lender as in effect
immediately before giving effect to such reduction or (II) in the case of the
Total Revolving Loan Commitment, the remainder of (x) the Unutilized Revolving
Loan Commitment of such Lender as in effect immediately before giving effect to
such reduction minus (y) such Lender's Percentage of the aggregate principal
amount of Swingline Loans then outstanding.
(b) Notwithstanding the foregoing, the Borrower may not terminate or
partially reduce the Total Unutilized RTL Commitment, in whole or in part, prior
to the RTL Conversion Date if after giving effect thereto the sum of the
outstanding RTL Loans and the Total Unutilized RTL Commitment would be less than
$37,500,000 without the prior written consent of the Required Lenders.
3.03 Mandatory Reduction of Commitments. (a) In addition to any other
mandatory commitment reductions pursuant to this Section 3.03, the Total A Term
Loan Commitment (and the A Term Loan Commitment of each Lender) shall (i)
terminate in its entirety on the Initial Borrowing Date (after giving effect to
the incurrence of A Term Loans on such date) and (ii) prior to the termination
of the Total A Term Loan Commitment as provided in clause (i) above, be reduced
from time to time to the extent required by Section 4.02(A).
(b) In addition to any other mandatory commitment reductions pursuant to
this Section 3.03, the Total B Term Loan Commitment (and the B Term Loan
Commitment of each Lender) shall (i) terminate in its entirety on the Initial
Borrowing Date (after giving effect to the making of the B Term Loans on such
date) and (ii) prior to the termination of the Total B Term Loan Commitment as
provided in clause (i) above, be reduced from time to time to the extent
required by Section 4.02(A).
(c) In addition to any other mandatory commitment reductions pursuant to
this Section 3.03, the Total C Term Loan Commitment (and the C Term Loan
Commitment of each Lender) shall (i) terminate in its entirety on the Initial
Borrowing Date (after giving effect to the making of C Term Loans on such date)
and (ii) prior to the termination of the Total C Term Loan Commitment as
provided in clause (i) above, be reduced from time to time to the extent
required by Section 4.02(A).
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(d) In addition to any other mandatory commitment reductions pursuant to
this Section 3.03, the Total RTL Commitment (and the RTL Commitment of each
Lender) shall (i) terminate in its entirety on the RTL Conversion Date (after
giving effect to the making of RTL Loans on such date) and (ii) prior to the
termination of the Total RTL Commitment as provided in clause (i) above, be
reduced from time to time to the extent required by Section 4.02(A).
(e) In addition to any other mandatory commitment reductions pursuant to
this Section 3.03, the Total Revolving Loan Commitment (and the Revolving Loan
Commitment of each Lender) shall terminate in its entirety on the Revolving Loan
Maturity Date.
(f) In addition to any other mandatory commitment reductions pursuant to
this Section 3.03, the Incremental Term Loan Commitment of each Lender provided
pursuant to a particular Incremental Commitment Agreement shall terminate in its
entirety on the respective Incremental Term Loan Borrowing Date specified in
such Incremental Commitment Agreement (after giving effect to the incurrence of
the Incremental Term Loans on each such date).
(g) In addition to any other mandatory commitment reductions pursuant to
this Section 3.03, the Total Commitment (and the Commitment of each Lender under
each Tranche) shall terminate in its entirety on April 30, 2001 unless the
Transaction has been consummated and the Initial Borrowing Date has occurred on
or prior to such date.
(h) In addition to any other mandatory commitment reductions pursuant to
this Section 3.03, on each date after the Initial Borrowing Date upon which a
mandatory prepayment of Term Loans pursuant to Sections 4.02(A)(f), (g), (h),
(i) or (j) is required (and exceeds in amount the aggregate principal amount of
Term Loans then outstanding) or would be required if Term Loans were then
outstanding, the Total Revolving Loan Commitment and/or the Total RTL Commitment
shall be permanently reduced by the amount, if any, by which the amount required
to be applied pursuant to said Section (determined as if an unlimited amount of
Term Loans were actually outstanding) exceeds the aggregate principal amount of
Term Loans then outstanding in the following manner:
(1) first, if prior to the RTL Conversion Date, to the Total RTL
Commitment; and
(2) second, after the Total RTL Commitment has been terminated or
reduced to zero, to the Total Revolving Loan Commitment.
(i) The Total Revolving Loan Commitment and, if applicable, the Total RTL
Commitment shall be reduced, and the Revolving Loan Commitment or RTL
Commitment, as the case may be, of the respective Former Lender shall be
terminated, in the amount and at the times provided in Section 13.04(d).
(j) In addition to any other mandatory commitment reductions pursuant to
this Section 3.03, on the date of the consummation of the Disposition, the Total
Revolving Loan Commitment shall be reduced by the lesser of (x) $25,000,000 and
(y) the amount by which the Net Asset Sale Proceeds of the Disposition exceed
$25,000,000.
(k) Each reduction to a Commitment under a Tranche pursuant to this Section
3.03 (or pursuant to Section 4.02(A)) shall be applied proportionately to reduce
the Commitment
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under such Tranche of each Lender with such a Commitment, provided that the
reduction to the Total Revolving Loan Commitment from clause (j) of this Section
3.03 shall be applied to the Revolving Commitments of the Designated Lenders on
a pro rata basis. The repayment of the Revolving Loans from the proceeds of the
Disposition shall be applied in a manner such that all of the Lenders with a
Revolving Commitment participate in each Borrowing of Revolving Loans which
remains outstanding following such payment pro rata on the basis of their
respective Revolving Loan Commitments (after giving effect to the reduction of
the Total Revolving Loan Commitment pursuant to Section 3.03(j)).
SECTION 4. Prepayments; Payments; Taxes.
4.01 Voluntary Prepayments. The Borrower shall have the right to prepay the
Loans, without premium or penalty (other than the Term Loan Prepayment Premium,
if applicable), in whole or in part at any time and from time to time on the
following terms and conditions: (i) the Borrower shall give the Administrative
Agent prior to 11:00 A.M. (New York time) at its Notice Office (x) at least one
Business Day's prior written notice (or telephonic notice promptly confirmed in
writing) of its intent to prepay Base Rate Loans (or, in the case of Swingline
Loans prior to 1:00 P.M. (New York time) on the date of such prepayment) and (y)
at least three Business Days' prior written notice (or telephonic notice
promptly confirmed in writing) of its intent to prepay Eurodollar Loans, the
Tranche of Loans to be prepaid, the amount of such prepayment and the Types of
Loans to be prepaid and, in the case of Eurodollar Loans, the specific Borrowing
or Borrowings pursuant to which made, which notice the Administrative Agent
shall promptly transmit to each of the Lenders; (ii) each prepayment shall be in
an aggregate principal amount of at least $5,000,000 and, if greater, in an
integral multiple of $1,000,000 (or in the case of Swingline Loans, $10,000 and,
if greater, in an integral multiple thereof), provided that if any partial
prepayment of Eurodollar Loans made pursuant to any Borrowing shall reduce the
outstanding Eurodollar Loans made pursuant to such Borrowing to an amount less
than the Minimum Borrowing Amount for such Tranche, then such Borrowing shall be
converted at the end of the then current Interest Period into a Borrowing of
Base Rate Loans; (iii) prepayments of Eurodollar Loans made pursuant to this
Section 4.01 made on any day other than the last day of an Interest Period
applicable thereto shall be subject to the provisions of Section 1.11; (iv) each
prepayment in respect of any Loans made pursuant to a Borrowing shall, except as
provided in clause (v) below, be applied pro rata among the Lenders which made
such Loans; (v) at the Borrower's election in connection with any prepayment of
Revolving Loans or, if prior to the RTL Conversion Date, RTL Loans, such
prepayment shall not be applied to the Revolving Loans or RTL Loans, as the case
may be, of a Defaulting Lender; (vi) subject to Section 4.02B, each voluntary
prepayment of Term Loans made pursuant to this Section 4.01 shall be applied to
each Tranche of Term Loans on a pro rata basis (based upon the then outstanding
principal amount of A Term Loans, B Term Loans, C Term Loans and, if applicable,
RTL Loans) and (vii) each voluntary prepayment of Term Loans of a Tranche shall
be applied to reduce the then remaining Scheduled Repayments of the respective
Tranche of Term Loans, pro rata based upon the then remaining amount of such
Scheduled Repayments after giving effect to all prior reductions thereto.
4.02 Mandatory Repayments and Commitment Reductions. (A) (a) (i) On any day
on which the sum of the aggregate outstanding principal amount of the Revolving
Loans, Swingline Loans and the Letter of Credit Outstandings exceeds the Total
Revolving Loan
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Commitment as then in effect, the Borrower shall prepay on such date the
principal of Swingline Loans and after the Swingline Loans have been repaid in
full, the principal of Revolving Loans in an amount equal to such excess. If,
after giving effect to the prepayment of all outstanding Swingline Loans and all
outstanding Revolving Loans, the aggregate amount of the Letter of Credit
Outstandings exceeds the Total Revolving Loan Commitment as then in effect, the
Borrower shall pay to the Administrative Agent at the Payment Office on such
date an amount of cash or Cash Equivalents equal to the amount of such excess
(up to a maximum amount equal to the Letter of Credit Outstandings at such
time), such cash or Cash Equivalents to be held as security for all obligations
of the Borrower under Section 2.04(a) in a cash collateral account to be
established by the Administrative Agent. So long as no Default or Event of
Default is then continuing, such cash or Cash Equivalents shall be released to
the Borrower when such obligations under Section 2.04(a) are satisfied or as may
be necessary to insure that the amount of such cash or Cash Equivalents do not
exceed the Letter of Credit Outstandings.
(ii) On any day prior to the RTL Conversion Date on which the sum of the
aggregate outstanding principal amount of RTL Loans exceeds the Total RTL
Commitment as then in effect, the Borrower shall prepay on such date the
principal of RTL Loans in an amount equal to such excess.
(b) In addition to any other mandatory repayments or commitment reductions
pursuant to this Section 4.02(A), on each date set forth below the Borrower
shall be required to repay A Term Loans, to the extent then outstanding, in an
amount equal to that percentage set forth opposite such date multiplied by the
aggregate principal amount of the A Term Loans (the "A Term Reference Amount")
outstanding on the Initial Borrowing Date (each such repayment, as the same may
be reduced as provided in Sections 4.01 and 4.02(A)(k) or increased pursuant to
the proviso to this clause (b), an "A Term Loan Scheduled Repayment"):
Percentage of A Term
Scheduled Repayment Date Reference Amount
------------------------ ----------------
Quarterly Payment Date 1.25%
in March, 2001
Quarterly Payment Date 1.25%
in June, 2001
Quarterly Payment Date 1.25%
in September, 2001
Quarterly Payment Date 1.25%
in December, 2001
Quarterly Payment Date 2.50%
in March, 2002
Quarterly Payment Date 2.50%
in June, 2002
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Quarterly Payment Date 2.50%
in September, 2002
Quarterly Payment Date 2.50%
in December, 2002
Quarterly Payment Date 5.00%
in March, 2003
Quarterly Payment Date 5.00%
in June, 2003
Quarterly Payment Date 5.00%
in September, 2003
Quarterly Payment Date 5.00%
in December, 2003
Quarterly Payment Date 7.50%
in March, 2004
Quarterly Payment Date 7.50%
in June, 2004
Quarterly Payment Date 7.50%
in September, 2004
Quarterly Payment Date 7.50%
in December, 2004
Quarterly Payment Date 8.75%
in March, 2005
Quarterly Payment Date 8.75%
in June, 2005
Quarterly Payment Date 8.75%
in September, 2005
A Term Maturity Date 8.75%
; provided that (x) A Term Loans and all other amounts owed hereunder with
respect to the A Term Loans shall be paid in full no later than A Term Maturity
Date, and the final installment payable by the Borrower in respect of the A Term
Loans on such date shall be in an amount, if such amount is different from that
specified above, sufficient to repay all amounts owing by the Borrower under
this Agreement with respect to the A Term Loans and (y) if the aggregate
principal amount of the A Term Loans is increased pursuant to Section 1.14, then
each scheduled principal repayment to be made after such increase becomes
effective shall be increased by an
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amount equal to (a) the aggregate principal amount of the increase in the A Term
Loans pursuant to Section 1.14 multiplied by (b) an amount equal to (x) such
scheduled repayment amount divided by (y) the aggregate outstanding principal
amount of the A Term Loans, in each case, immediately prior to giving effect to
the increase in the A Term Loans made pursuant to Section 1.14.
(c) In addition to any other mandatory repayments or commitment reductions
pursuant to this Section 4.02(A), on each date set forth below, the Borrower
shall be required to repay B Term Loans, to the extent then outstanding, in an
amount equal to that percentage set forth opposite such date multiplied by the
aggregate principal amount of the B Term Loans (the "B Term Reference Amount")
outstanding on the Initial Borrowing Date (each such repayment, as the same may
be reduced as provided in Sections 4.01 and 4.02(A)(k) or increased pursuant to
the proviso to this clause (c), a "B Term Loan Scheduled Repayment"):
Percentage of B Term
Scheduled Repayment Date Reference Amount
------------------------ ----------------
Quarterly Payment Date 0.25%
in March, 2001
Quarterly Payment Date 0.25%
in June, 2001
Quarterly Payment Date 0.25%
in September, 2001
Quarterly Payment Date 0.25%
in December, 2001
Quarterly Payment Date 0.25%
in March, 2002
Quarterly Payment Date 0.25%
in June, 2002
Quarterly Payment Date 0.25%
in September, 2002
Quarterly Payment Date 0.25%
in December, 2002
Quarterly Payment Date 0.25%
in March, 2003
Quarterly Payment Date 0.25%
in June, 2003
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Quarterly Payment Date 0.25%
in September, 2003
Quarterly Payment Date 0.25%
in December, 2003
Quarterly Payment Date 0.25%
in March, 2004
Quarterly Payment Date 0.25%
in June, 2004
Quarterly Payment Date 0.25%
in September, 2004
Quarterly Payment Date 0.25%
in December, 2004
Quarterly Payment Date 0.25%
in March, 2005
Quarterly Payment Date 0.25%
in June, 2005
Quarterly Payment Date 0.25%
in September, 2005
Quarterly Payment Date 0.25%
in December, 2005
Quarterly Payment Date 23.75%
in March, 2006
Quarterly Payment Date 23.75%
in June, 2006
Quarterly Payment Date 23.75%
in September, 2006
B Term Maturity Date 23.75%
; provided that (x) B Term Loans and all other amounts owed hereunder with
respect to the B Term Loans shall be paid in full no later than B Term Maturity
Date, and the final installment payable by the Borrower in respect of the B Term
Loans on such date shall be in an amount, if such amount is different from that
specified above, sufficient to repay all amounts owing by the Borrower under
this Agreement with respect to the B Term Loans and (y) if the aggregate
principal amount of the B Term Loans is increased pursuant to Section 1.14, then
each scheduled principal repayment to be made after such increase becomes
effective shall be increased by an
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amount equal to (a) the aggregate principal amount of the increase in the B Term
Loans pursuant to Section 1.14 multiplied by (b) an amount equal to (x) such
scheduled repayment amount divided by (y) the aggregate outstanding principal
amount of the B Term Loans, in each case, immediately prior to giving effect to
the increase in the B Term Loans made pursuant to Section 1.14.
(d) In addition to any other mandatory repayments or commitment reductions
pursuant to this Section 4.02(A), on each date set forth below, the Borrower
shall be required to repay C Term Loans, to the extent then outstanding, in an
amount equal to that percentage set forth opposite such date multiplied by the
aggregate principal amount of the C Term Loans (the "C Term Reference Amount")
outstanding on the Initial Borrowing Date (each such repayment, as the same may
be reduced as provided in Sections 4.01 and 4.02(A)(k) or increased pursuant to
the proviso to this clause (d), a "C Term Loan Scheduled Repayment"):
Percentage of C Term
Scheduled Repayment Date Reference Amount
------------------------ ----------------
Quarterly Payment Date 0.25%
in March, 2001
Quarterly Payment Date 0.25%
in June, 2001
Quarterly Payment Date 0.25%
in September, 2001
Quarterly Payment Date 0.25%
in December, 2001
Quarterly Payment Date 0.25%
in March, 2002
Quarterly Payment Date 0.25%
in June, 2002
Quarterly Payment Date 0.25%
in September, 2002
Quarterly Payment Date 0.25%
in December, 2002
Quarterly Payment Date 0.25%
in March, 2003
Quarterly Payment Date 0.25%
in June, 2003
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Quarterly Payment Date 0.25%
in September, 2003
Quarterly Payment Date 0.25%
in December, 2003
Quarterly Payment Date 0.25%
in March, 2004
Quarterly Payment Date 0.25%
in June, 2004
Quarterly Payment Date 0.25%
in September, 2004
Quarterly Payment Date 0.25%
in December, 2004
Quarterly Payment Date 0.25%
in March, 2005
Quarterly Payment Date 0.25%
in June, 2005
Quarterly Payment Date 0.25%
in September, 2005
Quarterly Payment Date 0.25%
in December, 2005
Quarterly Payment Date 0.25%
in March, 2006
Quarterly Payment Date 0.25%
in June, 2006
Quarterly Payment Date 0.25%
in September, 2006
Quarterly Payment Date 0.25%
in December, 2006
Quarterly Payment Date 23.50%
in March, 2007
Quarterly Payment Date 23.50%
in June, 2007
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Quarterly Payment Date 23.50%
in September, 2007
C Term Maturity Date 23.50%
; provided that (x) C Term Loans and all other amounts owed hereunder with
respect to the C Term Loans shall be paid in full no later than C Term Maturity
Date, and the final installment payable by the Borrower in respect of the C Term
Loans on such date shall be in an amount, if such amount is different from that
specified above, sufficient to repay all amounts owing by the Borrower under
this Agreement with respect to the C Term Loans and (y) if the aggregate
principal amount of the C Term Loans is increased pursuant to Section 1.14, then
each scheduled principal repayment to be made after such increase becomes
effective shall be increased by an amount equal to (a) the aggregate principal
amount of the increase in the C Term Loans pursuant to Section 1.14 multiplied
by (b) an amount equal to (x) such scheduled repayment amount divided by (y) the
aggregate outstanding principal amount of the C Term Loans, in each case,
immediately prior to giving effect to the increase in the C Term Loans made
pursuant to Section 1.14.
(e) In addition to any other mandatory repayments or commitment reductions
pursuant to this Section 4.02(A), on each date set forth below, the Borrower
shall be required to repay RTL Loans, to the extent then outstanding, in an
amount equal to that percentage set forth opposite such date multiplied by the
aggregate principal amount of the RTL Loans (the "RTL Reference Amount")
outstanding on the RTL Conversion Date (each such repayment, as the same may be
reduced as provided in Sections 4.01 and 4.02(A)(k), an "RTL Loan Scheduled
Repayment", and together with each A Term Loan Scheduled Repayment, B Term Loan
Scheduled Repayment and C Term Loan Scheduled Repayment, the "Scheduled
Repayments"):
Percentage of RTL
Scheduled Repayment Date Reference Amount
------------------------ ----------------
Quarterly Payment Date 6.25%
in March, 2003
Quarterly Payment Date 6.25%
in June, 2003
Quarterly Payment Date 6.25%
in September, 2003
Quarterly Payment Date 6.25%
in December, 2003
Quarterly Payment Date 8.75%
in March, 2004
Quarterly Payment Date 8.75%
in June, 2004
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Quarterly Payment Date 8.75%
in September, 2004
Quarterly Payment Date 8.75%
in December, 2004
Quarterly Payment Date 10%
in March, 2005
Quarterly Payment Date 10%
in June, 2005
Quarterly Payment Date 10%
in September, 2005
RTL Maturity Date 10%
; provided that RTL Term Loans and all other amounts owed hereunder with respect
to the RTL Loans shall be paid in full no later than RTL Maturity Date, and the
final installment payable by the Borrower in respect of the RTL Loans on such
date shall be in an amount, if such amount is different from that specified
above, sufficient to repay all amounts owing by the Borrower under this
Agreement with respect to the RTL Loans.
(f) In addition to any other mandatory repayments or commitment reductions
pursuant to this Section 4.02(A), by no later than the Business Day immediately
following each date after the Effective Date upon which the Borrower or any of
its Subsidiaries receives any cash proceeds from any sale or issuance of its
equity securities or any capital contribution, an amount equal to the Required
Equity Percentage of the cash proceeds of the respective sale, issuance or
contribution (net of all reasonable costs associated therewith, including,
without limitation, all due diligence costs and expenses paid for, or reimbursed
by, the Borrower and/or any of its Subsidiaries, underwriting or similar fees,
discounts and commissions, attorneys' fees and expenses paid for, or reimbursed
by, the Borrower and/or any of its Subsidiaries and other costs associated
therewith) shall be applied as a mandatory repayment of principal of outstanding
Term Loans (or, if the Initial Borrowing Date has not yet occurred, such amounts
shall be applied as a mandatory reduction to the Total Term Loan Commitment) in
accordance with the requirements of Sections 4.02(A)(k) and (l), provided the
Excluded Equity Proceeds shall not be required to be applied in accordance with
this Section 4.02(A)(f).
(g) In addition to any other mandatory repayments or commitment reductions
pursuant to this Section 4.02(A), by no later than the Business Day immediately
following each date after the Effective Date upon which the Borrower or any of
its Subsidiaries receives any proceeds from any incurrence by the Borrower or
any of its Subsidiaries of Indebtedness for borrowed money (other than (i)
Indebtedness for borrowed money permitted to be incurred pursuant to Section
9.04 (other than clause (vi) thereof) and (ii) Indebtedness permitted to be
incurred pursuant to clause (vi) of Section 9.04 to the extent such proceeds are
utilized to repay the Subordinated Bridge Loans), an amount equal to 100% of the
cash proceeds of the respective incurrence of Indebtedness (net of all
reasonable costs associated therewith, including, without limitation, all due
diligence costs and expenses paid for, or reimbursed by, the Borrower and/or
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any of its Subsidiaries, any underwriting, agency, structuring or similar fees,
discounts and commissions, attorneys' fees and expenses paid for, or reimbursed
by, the Borrower and/or any of its Subsidiaries, all financing and/or commitment
fees and other costs associated therewith) shall be applied as a mandatory
repayment of principal of outstanding Term Loans (or, if the Initial Borrowing
Date has not yet occurred, such amounts shall be applied as a mandatory
reduction to the Total Term Loan Commitment) in accordance with the requirements
of Sections 4.02(A)(k) and (l).
(h) In addition to any other mandatory repayments or commitment reductions
pursuant to this Section 4.02(A), by no later than the Business Day following
each date after the Effective Date upon which the Borrower or any of its
Subsidiaries receives proceeds from any Asset Sale, an amount equal to 100% of
the Net Asset Sale Proceeds therefrom shall be applied as a mandatory repayment
of principal of outstanding Term Loans (or, if the Initial Borrowing Date has
not yet occurred, such amounts shall be applied as a mandatory reduction to the
Total Term Loan Commitment) in accordance with the requirements of Sections
4.02(A)(k) and (l), provided that (i) the Net Asset Sale Proceeds received in
respect of the Disposition in excess of $25,000,000 shall not be required to be
so applied so long as 100% of such excess Net Asset Sale Proceeds shall be
applied to repay the then outstanding Revolving Loans and (ii) up to an
aggregate of $25,000,000 of Net Asset Sale Proceeds from Asset Sales (other than
the Disposition) shall not be required to be used to so repay Term Loans to the
extent the Borrower elects, as hereinafter provided, to cause such Net Asset
Sale Proceeds to be reinvested in Reinvestment Assets (a "Reinvestment
Election"). The Borrower may exercise its Reinvestment Election (within the
parameters specified in the preceding sentence) with respect to an Asset Sale if
(x) no Default or Event of Default exists and (y) the Borrower delivers a
Reinvestment Notice to the Administrative Agent within two Business Days
following the date of the consummation of the respective Asset Sale, with such
Reinvestment Election being effective with respect to the Net Asset Sale
Proceeds of such Asset Sale equal to the Anticipated Reinvestment Amount
specified in such Reinvestment Notice and, provided, that if all or any portion
of such Net Asset Sale Proceeds not applied to the repayment of Term Loans due
to a Reinvestment Election are not so used within 360 days after the date of
receipt of such Net Asset Sale Proceeds then such remaining portion not used
shall be applied on the date which is 360 days following the date of receipt of
such Net Asset Sale Proceeds as a mandatory repayment of principal of
outstanding Term Loans in accordance with the requirements of Sections
4.02(A)(k) and (l). At the time of the acquisition of any Reinvestment Assets,
the Borrower shall comply and shall cause its Subsidiaries to comply with
Section 8.11, to the extent applicable.
(i) In addition to any other mandatory repayments pursuant to this Section
4.02(A), on each Excess Cash Payment Date, an amount equal to 75% of the Excess
Cash Flow for the relevant Excess Cash Payment Period shall be applied as a
mandatory repayment of principal of outstanding Term Loans in accordance with
the requirements of Sections 4.02(A)(k) and (l).
(j) In addition to any other mandatory repayments or commitment reductions
pursuant to this Section 4.02(A), within five Business Days following each date
on or after the Effective Date upon which the Borrower or any of its
Subsidiaries receives any proceeds from any Recovery Event (other than an
Excluded Recovery Event), an amount equal to 100% of the proceeds from such
Recovery Event (net of reasonable costs including, without limitation, legal
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costs and expenses and taxes incurred in connection with such Recovery Event)
shall be applied as a mandatory repayment of principal of outstanding Term Loans
(or, if the Initial Borrowing Date has not yet occurred, such amounts shall be
applied as a mandatory reduction to the Total Term Loan Commitment) in
accordance with the requirements of Sections 4.02(A)(k) and (l); provided that
such proceeds shall not be required to be so applied on such date to the extent
that the Borrower has delivered a certificate to the Administrative Agent on or
prior to such date stating that such proceeds shall be used to replace or
restore any properties or assets in respect of which such proceeds were paid
within 180 days (or 360 days pursuant to binding commitments with third parties
to complete such replacement or restoration to be entered into within 180 days)
following the date of such Recovery Event and that in the Borrower's reasonable
judgment such replacement or restoration of such properties or assets can indeed
be carried out within such 180-day or 360-day, as the case may be, period (which
certificate shall set forth the estimates of the proceeds to be so expended),
and provided further, that (i) if the amount of such proceeds exceeds
$10,000,000 or a Default under Section 10.01 or an Event of Default exists, then
the entire amount of the proceeds from such Recovery Event and not just the
portion in excess of $10,000,000 shall be deposited with the Administrative
Agent pursuant to a cash collateral arrangement reasonably satisfactory to the
Administrative Agent whereby such proceeds shall be disbursed to the Borrower
from time to time as needed to pay actual costs incurred by it or its applicable
Subsidiary in connection with the replacement or restoration of the respective
properties or assets (pursuant to certification requirements to the effect that
(x) unless the Required Lenders otherwise agree, no Default under Section 10.01
or Event of Default then exists, (y) the Borrower or its applicable Subsidiary
has actually incurred such costs (which certification shall be accompanied by
any paid invoices or invoices required to be paid within five Business Days
thereafter) and (z) the Borrower believes in good faith that it has or will have
sufficient cash from ordinary cash flow, business interruption insurance or from
other sources reasonably satisfactory to the Administrative Agent and that the
Borrower will be receiving regular payments thereunder in such amounts and at
such times as are necessary to satisfy all obligations and expenses of the
Borrower (including, without limitation, all debt service requirements,
including pursuant to this Agreement) without any delay or extension thereof,
for the period from the date of the respective casualty, condemnation or other
event giving rise to the Recovery Event and continuing through the completion of
the replacement or restoration of respective properties or assets), although at
any time while an Event of Default has occurred and is continuing, the Required
Lenders may direct the Administrative Agent (in which case the Administrative
Agent shall, and is hereby authorized by the Borrower to, follow said
directions) to apply any or all proceeds then on deposit in such collateral
account to the repayment of Obligations hereunder, and (ii) if all or any
portion of such proceeds not required to be applied to the repayment of
principal of outstanding Term Loans pursuant to the preceding proviso are not so
used within 180 days (or 360 days if (1) the Borrower has entered into binding
commitments with third parties to complete such replacement or restoration on or
prior to such 180th day and (2) the Borrower believes in good faith that it has
or will have sufficient cash from ordinary cash flow, business interruption
insurance or from other sources reasonably satisfactory to the Administrative
Agent and that the Borrower will be receiving regular payments thereunder in
such amounts and at such times as are necessary to satisfy all obligations and
expenses of the Borrower (including, without limitation, all debt service
requirements, including pursuant to this Agreement) without any delay or
extension thereof, for the period from the date of the respective casualty,
condemnation or other event giving rise to the Recovery Event and continuing
through
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the completion of the replacement or restoration of respective properties or
assets) after the date of the related Recovery Event such remaining portion
shall be applied on the last day of such 180-day or 360-day, as the case may be,
period as a mandatory repayment of principal of outstanding Term Loans as
provided above in this Section 4.02(A)(j) without regard to the provisions of
the preceding proviso.
(k) Each amount required to be applied to repay Term Loans (or to reduce
the Total Term Loan Commitment) pursuant to Sections 4.02(A)(f), (g), (h), (i)
and (j) shall be applied (i) to each Tranche of Term Loans on a pro rata basis
(based upon the then outstanding principal amount of A Term Loans, B Term Loans,
C Term Loans and, following the RTL Conversion Date, the RTL Loans) and (ii) to
reduce the then remaining Scheduled Repayments of the respective Tranche of Term
Loans pro rata based upon the then remaining amount of Scheduled Repayments of
such Tranche of Term Loans after giving effect to all prior reductions thereto,
provided that (x) the Net Asset Sale Proceeds received in respect of the
Disposition which are required to be applied to repay Term Loans shall be
applied to the A Term Loans of the Designated Lenders on a pro rata basis and
(y) the first $50,000,000 of the net proceeds of Permanent Senior Subordinated
Notes in excess of $300,000,000 shall be applied to the B Term Loans and the C
Term Loans (and not to the A Term Loans or the RTL Loans) on a pro rata basis
(based on the then outstanding principal amount of the B Term Loans and the C
Term Loans).
(l) With respect to each repayment of Loans required by this Section
4.02(A), the Borrower may designate the Types of Loans of the respective Tranche
which are to be repaid and, in the case of Eurodollar Loans, the specific
Borrowing or Borrowings of the respective Tranche pursuant to which made,
provided that: (i) repayments of Eurodollar Loans pursuant to this Section
4.02(A) may only be made on the last day of an Interest Period applicable
thereto unless all Eurodollar Loans of the respective Tranche with Interest
Periods ending on such date of required repayment and all Base Rate Loans of the
respective Tranche have been paid in full; (ii) if any repayment of Eurodollar
Loans made pursuant to a single Borrowing under a Tranche shall reduce the
outstanding Eurodollar Loans made pursuant to such Borrowing to an amount less
than the Minimum Borrowing Amount for such Tranche, such Borrowing shall be
converted at the end of the then current Interest Period into a Borrowing of
Base Rate Loans; and (iii) each repayment of any Loans made pursuant to a
Borrowing shall be applied pro rata among the Lenders which made such Loans. In
the absence of a designation by the Borrower as described in the preceding
sentence, the Administrative Agent shall, subject to the above, make such
designation in its sole discretion with a view, but no obligation, to minimize
breakage costs owing under Section 1.11.
(m) Notwithstanding anything to the contrary contained in this Section
4.02(A), (x) so long as no Default or Event of Default then exists, the
Borrower's receipt of Net Asset Sale Proceeds or proceeds of a Recovery Event
shall not require a mandatory prepayment pursuant to clause (f), (g), (h), (i)
or clause (j) of this Section 4.02(A) until the proceeds not so applied by
reason of this clause (x) equals or exceeds $1,000,000 and (y) if the Borrower
is required to apply any portion of asset sale proceeds to prepay or offer to
prepay the Subordinated Bridge Loan or the Permanent Senior Subordinated Notes,
the Borrower shall apply such asset sale proceeds as a mandatory prepayment of
the principal of outstanding Term Loans in accordance with the requirements of
Sections 4.02(A)(k) and (l).
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(B) Waiver of Certain Repayments by B and C Lenders. Notwithstanding
anything to the contrary contained in this Section 4.01, Section 4.02 or
anywhere in this Agreement (including, without limitation, in Section 13.12) the
Lenders with outstanding B Term Loans (the "B Lenders"), and/or C Term Loans
(the "C Lenders") shall have the option to waive (x) a voluntary prepayment of
such Loans pursuant to Section 4.01 (each such prepayment, a "Waivable Voluntary
Prepayment" or (y) a mandatory repayment of such Loans pursuant to Section
4.02(A)(g), (except for a prepayment from the Permanent Senior Subordinated
Notes Prepayment Amount) (h), (i) and/or (j) (each such repayment, a "Waivable
Mandatory Repayment") upon the terms and provisions set forth in this Section
4.02(B). The Borrower shall give to the Administrative Agent written notice of
its intention to make a Waivable Repayment at least [five] Business Days prior
to such repayment, which notice the Administrative Agent shall promptly forward
to all B Lenders and/or C Lenders (indicating in such notice the amount of such
repayment to be applied to each such Lender's outstanding Term Loans under such
Tranches). In the event such B Lender or C Lender, as the case may be, desires
to waive such Lender's right to receive any such Waivable Repayment in whole or
in part, such Lender shall so advise the Administrative Agent no later than the
close of business two Business Days after the date of such notice from the
Administrative Agent, which notice shall also include the amount such Lender
desires to receive in respect of such repayment. If any Lender does not reply to
the Administrative Agent within the two Business Days, it will be deemed not to
have waived any part of such repayment. If any Lender does not specify an amount
it wishes to receive, it will be deemed to have accepted 100% of the total
payment. In the event that any such Lender waives all or part of such right to
receive any such Waivable Repayment, the Administrative Agent shall apply 100%
of the amount so waived by such Lender to the A Term Loans in accordance with
Section 4.02(A)(k) and (l). If the Term Lenders have the right to waive a
voluntary prepayment or mandatory repayment, pursuant to this Section 4.02(B),
the amount of the respective Waivable Voluntary Prepayment or Waivable Mandatory
Repayment, as the case may be, shall be deposited with the Administrative Agent
on the date the voluntary prepayment or mandatory repayment, as the case may be,
would otherwise be required pursuant to the relevant provisions of Section 4.01
or Section 4.02(A)(f), (g), (h), (i), and/or (j), as the case may be (and held
by the Administrative Agent as cash collateral for the B Term Loans or the C
Term Loans, as the case may be, and, but only to the extent B Lenders or C
Lenders, as the case may be, waive their right to receive their share of the
Waivable Voluntary Prepayment or Waivable Mandatory Repayment, as the case may
be, for the benefit of the A Term Loans, in a cash collateral account which
shall permit the investment thereof in Cash Equivalents reasonably satisfactory
to the Administrative Agent until the proceeds are applied to the secured
obligations), and the respective voluntary prepayment or mandatory repayment, as
the case may be, shall not be required to be made until the eighth Business Day
occurring after the date the respective voluntary prepayment or mandatory
repayment, as the case may be, would otherwise have been required to be made
pursuant to any such Section (and with interest continuing to accrue on such
Loans during such period at the rate otherwise provided for herein with respect
to such Loans). Notwithstanding the foregoing, in no event shall the amount of a
Waivable Repayment exceed the aggregate principal amount of A Term Loans that
will be outstanding after Lenders with outstanding A Term Loans receive their
respective shares of voluntary prepayments or mandatory repayments, as the case
may be, pursuant to Section 4.01 or 4.02(k), as the case may be (i.e., before
giving effect to any application of such Waivable Repayment to A Term Loans
pursuant to this Section 4.02(B)).
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4.03 Method and Place of Payment. Except as otherwise specifically provided
herein, all payments under this Agreement or any Note shall be made to the
Administrative Agent for the account of the Lender or Lenders entitled thereto
not later than 12:00 Noon (New York time) (or 1:00 p.m. (New York time) in the
case of Swingline Loans) on the date when due and shall be made in Dollars in
immediately available funds at the Payment Office of the Administrative Agent.
Whenever any payment to be made hereunder or under any Note shall be stated to
be due on a day which is not a Business Day, the due date thereof shall be
extended to the next succeeding Business Day and, with respect to payments of
principal, interest shall be payable at the applicable rate during such
extension.
4.04 Net Payments. (a) All payments made by the Borrower hereunder or under
any Note will be made without set-off, counterclaim or other defense. Except as
provided in Section 4.04(b), all such payments will be made free and clear of,
and without deduction or withholding for, any present or future taxes, levies,
imposts, duties, fees, assessments or other charges of whatever nature now or
hereafter imposed by any jurisdiction or by any political subdivision or taxing
authority thereof or therein with respect to such payments (but excluding,
except as provided in the second succeeding sentence, any tax imposed on or
measured by the net income or net profits of a Lender, or any franchise tax
based on the net income or net profits of a Lender, in either case pursuant to
the laws of the jurisdiction in which it is organized or in which the principal
office or applicable lending office of such Lender is located or any subdivision
thereof or therein) and all interest, penalties or similar liabilities with
respect to such non-excluded taxes, levies, imposts, duties, fees, assessments
or other charges (all such non-excluded taxes, levies, imposts, duties, fees,
assessments or other charges being referred to collectively as "Taxes"). Except
as provided in Section 4.04(b), if any Taxes are so levied or imposed, the
Borrower agrees to pay the full amount of such Taxes, and such additional
amounts as may be necessary so that every payment of all amounts due under this
Agreement or under any Note, after withholding or deduction for or on account of
any Taxes, will not be less than the amount provided for herein or in such Note.
If any amounts are payable in respect of Taxes pursuant to the preceding
sentence of this Section 4.04(a), then the Borrower agrees to reimburse each
Lender, upon the written request of such Lender, for taxes imposed on or
measured by the net income or net profits of such Lender, or any franchise tax
based on the net income or net profits of such Lender, in either case pursuant
to the laws of the jurisdiction in which such Lender is organized or in which
the principal office or applicable lending office of such Lender is located or
under the laws of any political subdivision or taxing authority of any such
jurisdiction in which such Lender is organized or in which the principal office
or applicable lending office of such Lender is located and for any withholding
of income or similar taxes as such Lender shall determine are payable by, or
withheld from, such Lender in respect of such amounts so paid to or on behalf of
such Lender pursuant to the preceding sentence and in respect of any amounts
paid to or on behalf of such Lender pursuant to this sentence. The Borrower will
furnish to the Administrative Agent within 45 days after the date the payment of
any Taxes is due pursuant to applicable law certified copies of tax receipts
evidencing such payment by the Borrower. The Borrower agrees to indemnify and
hold harmless each Lender, and reimburse such Lender upon its written request,
for the amount of any Taxes that arise from the failure of the Borrower to pay
any Taxes when due to the appropriate Tax authority and that become payable by
the Administrative Agent or any Lender as a result of any such failure.
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(b) Each Lender that is not a United States person (as such term is defined
in Section 7701(a)(30) of the Code) for U.S. Federal income tax purposes agrees
to deliver to the Borrower and the Administrative Agent on or prior to the
Effective Date, or in the case of a Lender that is an assignee or transferee of
an interest under this Agreement pursuant to Sections 1.13 or 13.04 (unless the
respective Lender was already a Lender hereunder immediately prior to such
assignment or transfer), on the date of such assignment or transfer to such
Lender, (i) two accurate and complete original signed copies of Internal Revenue
Service Form W-8ECI or Form W-8BEN (with respect to a complete exemption under
an income tax treaty) (or successor forms) certifying to such Lender's
entitlement to a complete exemption from United States withholding tax with
respect to payments to be made under this Agreement and under any Note, or (ii)
if the Lender is not a "bank" within the meaning of Section 881(c)(3)(A) of the
Code and cannot deliver either Internal Revenue Service Form W-8ECI or Form
W-8BEN (with respect to a complete exemption under an income tax treaty)
pursuant to clause (i) above, (x) a certificate substantially in the form of
Exhibit D (any such certificate, a "Section 4.04(b)(ii) Certificate") and (y)
two accurate and complete original signed copies of Internal Revenue Service
Form W-8BEN (with respect to the portfolio interest exemption) (or successor
form) certifying to such Lender's entitlement to a complete exemption from
United States withholding tax with respect to payments of interest to be made
under this Agreement and under any Note. In addition, each Lender agrees that
from time to time after the Effective Date, when a lapse in time or change in
circumstances renders the previous certification obsolete or inaccurate in any
material respect, it will deliver to the Borrower and the Administrative Agent
two new accurate and complete original signed copies of Internal Revenue Service
Form W-8ECI , Form W-8BEN (with respect to the benefits of any income tax
treaty), or Form W-8BEN (with respect to the portfolio interest exemption) and a
Section 4.04(b)(ii) Certificate, as the case may be, and such other forms as may
be required in order to confirm or establish the entitlement of such Lender to a
continued exemption from or reduction in United States withholding tax with
respect to payments under this Agreement and any Note, or it shall immediately
notify the Borrower and the Administrative Agent of its inability to deliver any
such form or Certificate, in which case such Lender shall not be required to
deliver any such form or Certificate pursuant to this Section 4.04(b).
Notwithstanding anything to the contrary contained in Section 4.04(a), but
subject to Section 13.04(b) and the immediately succeeding sentence, (x) the
Borrower shall be entitled, to the extent it is required to do so by law, to
deduct or withhold income or similar taxes imposed by the United States (or any
political subdivision or taxing authority thereof or therein) from interest,
fees or other amounts payable hereunder for the account of any Lender which is
not a United States person (as such term is defined in Section 7701(a)(30) of
the Code) for U.S. Federal income tax purposes to the extent that such Lender
has not provided to the Borrower U.S. Internal Revenue Service Forms that
establish a complete exemption from such deduction or withholding and (y) the
Borrower shall not be obligated pursuant to Section 4.04(a) hereof to gross-up
payments to be made to a Lender in respect of income or similar taxes imposed by
the United States if (I) such Lender has not provided to the Borrower the
Internal Revenue Service Forms required to be provided to the Borrower pursuant
to this Section 4.04(b) or (II) in the case of a payment, other than interest,
to a Lender described in clause (ii) above, to the extent that such Forms do not
establish a complete exemption from withholding of such taxes. Notwithstanding
anything to the contrary contained in the preceding sentence or elsewhere in
this Section 4.04 and except as set forth in Section 13.04(b), the Borrower
agrees to pay additional amounts and to indemnify each Lender in the manner set
forth in Section 4.04(a)
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(without regard to the identity of the jurisdiction requiring the deduction or
withholding) in respect of any amounts deducted or withheld by it as described
in the immediately preceding sentence as a result of any changes after the
Effective Date in any applicable law, treaty, governmental rule, regulation,
guideline or order, or in the interpretation thereof, relating to the deducting
or withholding of such Taxes; provided that the Lender complies with the
foregoing provisions of this Section 4.04(b) with respect to providing forms and
certificates.
(c) If the Borrower pays any additional amount under this Section 4.04 to a
Lender and such Lender determines in its sole discretion that it has actually
received or realized in connection therewith any refund or any reduction of, or
credit against, its Tax liabilities in or with respect to the taxable year in
which the additional amount is paid (a "Tax Benefit"), such Lender shall pay to
the Borrower an amount that the Lender shall, in its sole discretion, determine
is equal to the net benefit, after tax, which was obtained by the Lender in such
year as a consequence of such Tax Benefit; provided, however, that (i) any
Lender may determine, in its sole discretion consistent with the policies of
such Lender, whether to seek a Tax Benefit; (ii) any Taxes that are imposed on a
Lender as a result of a disallowance or reduction (including through the
expiration of any tax credit carryover or carryback of such Lender that
otherwise would not have expired) of any Tax Benefit with respect to which such
Lender has made a payment to the Borrower pursuant to this Section 4.04(c) shall
be treated as a Tax for which the Borrower is obligated to indemnify such Lender
pursuant to this Section 4.04 without any exclusions or defenses; and (iii)
nothing in this Section 4.04(c) shall require the Lender to disclose any
confidential information to the Borrower (including, without limitation, its tax
returns).
SECTION 5. Conditions Precedent to Credit Events on the Initial Borrowing
Date. The obligation of each Lender to make Loans and to participate in Letters
of Credit, and the obligations of each Issuing Lender to issue Letters of
Credit, in each case on the Initial Borrowing Date is subject, at the time of
such Credit Event, to the satisfaction of the following conditions:
5.01 Execution of Agreement; Notes. On or prior to the Initial Borrowing
Date (i) the Effective Date shall have occurred and (ii) there shall have been
delivered to the Administrative Agent for the account of each of the Lenders
which has requested the same, the appropriate Note or Notes executed by the
Borrower, in each case in the amount, maturity and as otherwise provided herein.
5.02 Fees, etc. On the Initial Borrowing Date, the Borrower shall have paid
to the Administrative Agent and the Lenders all costs, fees and expenses
(including, without limitation, legal fees and expenses to the extent invoiced)
payable to the Administrative Agent and the Lenders to the extent then due.
5.03 Opinions of Counsel. On the Initial Borrowing Date, the Administrative
Agent shall have received (i) from ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel
to the Borrower and its Subsidiaries, an opinion addressed to the Administrative
Agent and each of the Lenders and dated the Initial Borrowing Date covering the
matters set forth in Exhibit E, (ii) from local counsel satisfactory to the
Administrative Agent, opinions each of which shall be in form and substance
reasonably satisfactory to the Administrative Agent and the Required
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Lenders and shall cover the perfection of the security interests granted
pursuant to the Security Agreement and the Mortgages and such other matters
incident to the transactions contemplated herein as the Administrative Agent may
reasonably request and (iii) from local gaming counsel reasonably satisfactory
to the Administrative Agent, opinions each of which shall be in form and
substance reasonably satisfactory to the Administrative Agent and the Required
Lenders and shall cover Missouri, Nevada, Mississippi and Iowa Gaming
Regulations and such other matters incident to the transactions contemplated
herein as the Administrative Agent may reasonably request.
5.04 Corporate Documents; Proceedings; etc. (a) On the Initial Borrowing
Date, the Administrative Agent shall have received a certificate, dated the
Initial Borrowing Date, signed by an Authorized Officer of each Credit Party,
and attested to by the Secretary or any Assistant Secretary of such Credit
Party, all in the form of Exhibit F with appropriate insertions, together with
copies of the Certificate of Incorporation and By-Laws of such Credit Party, as
the case may be, and the resolutions, or such other administrative approval, of
such Credit Party, as the case may be, referred to in such certificate, and the
foregoing shall be reasonably acceptable to the Administrative Agent.
(b) On the Initial Borrowing Date, all corporate and legal proceedings and
all instruments and agreements in connection with the transactions contemplated
by this Agreement and the other Documents shall be reasonably satisfactory in
form and substance to the Administrative Agent and the Required Lenders, and the
Administrative Agent shall have received all information and copies of all
documents and papers, including records of corporate proceedings, governmental
approvals, good standing certificates and bring-down telegrams or facsimiles, if
any, which the Administrative Agent reasonably may have requested in connection
therewith, such documents and papers where appropriate to be certified by proper
corporate or governmental authorities.
5.05 Shareholders' Agreements; Management Agreements; Tax Sharing
Agreements; Employee Benefit Plans; Employment Agreements; Collective Bargaining
Agreements; Debt Agreements; Material Contracts; Non-Compete Agreements;
Affiliate Contracts. On or prior to the Effective Date, there shall have been
delivered to the Administrative Agent true and correct copies (which the
Borrower hereby certifies are true and complete copies thereof) of (i) all
agreements (if any) entered into by the Borrower or any of its Subsidiaries
(after giving effect to the Transaction) governing the terms and relative rights
of its capital stock and any agreements entered into by shareholders, relating
to any such entity with respect to its capital stock (collectively, the
"Shareholders' Agreements"), (ii) all agreements (if any) with senior members
of, or with respect to, the management of the Borrower or any of its
Subsidiaries (after giving effect to the Transaction) (collectively, the
"Management Agreements"), (iii) all agreements (if any) relating to the sharing
of tax liabilities and benefits among the Borrower and/or its Subsidiaries (each
a "Tax Sharing Agreement" and collectively, the "Tax Sharing Agreements"), (iv)
all significant "employee benefit plans", as defined in Section 3(3) of ERISA,
and any other material agreements, plans or arrangements, with or for the
benefit of current or former employees of the Borrower or any of its
Subsidiaries or any ERISA Affiliate (the "Employee Benefit Plans"), (v) any
employment agreements for senior management entered into by a Credit Party
(collectively, the "Employment Agreements"), (vi) any collective bargaining
agreements applying or relating to any employee of a Credit Party
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(collectively, the "Collective Bargaining Agreements"), (vii) any agreements
evidencing or relating to Indebtedness in excess of $1,000,000 of a Credit Party
(excluding the Loans) whether or not any such agreement shall remain outstanding
after giving effect to the incurrence of Loans on the Initial Borrowing Date
(collectively, the "Debt Agreements"), (viii) all other material contracts and
licenses of a Credit Party (collectively, the "Material Contracts"), (ix) any
non-compete agreement entered into by a Credit Party and restricting its
operations or business (collectively, the "Non-Compete Agreements") and (x) all
contracts or written agreements entered into between a Credit Party, on the one
hand, and any of its Affiliates (other than a Credit Party) on the other hand
(collectively, the "Affiliate Contracts").
5.06 Consummation of the Transaction. (a) On or prior to the Initial
Borrowing Date, (i) the Borrower shall have consummated a tender offer/consent
solicitation with respect to the outstanding Existing Notes (the "Existing Notes
Tender Offer/Consent Solicitation"), pursuant to which (x) the Borrower shall
offer, subject to the terms and conditions contained in the Existing Notes
Tender Offer/Consent Solicitation, to purchase all of the outstanding Existing
Notes at the cash price set forth in the Existing Notes Tender Offer/Consent
Solicitation and (y) consents shall be solicited to a proposed amendment to the
Existing Notes Indentures on terms and conditions set forth in the Existing
Notes Tender Offer Consent Solicitation, which amendment shall provide for the
substantial elimination of the financial and certain operating covenants
contained in the Existing Notes Indenture (including, without limitation,
limitations on the incurrence of liens, transactions with affiliates and
indebtedness); (ii) the period for tendering Existing Notes pursuant thereto
shall terminate on or prior to the Initial Borrowing Date; (iii) the Borrower
shall have received sufficient consents to authorize the execution and delivery
of the Existing Notes Indenture Supplement; (iv) the Borrower and the trustee
under the Existing Notes Indenture shall have duly executed and delivered the
relevant Existing Notes Indenture Supplement; (v) the Borrower shall have
repurchased or committed to repurchase all of the properly tendered Existing
Notes (which shall in no event be less than a majority in aggregate principal
amount of the Existing Notes), and not theretofore withdrawn, pursuant to the
Existing Notes Tender Offer/Consent Solicitation (the "Existing Notes Tender
Offer Repurchases"); and (vi) the Administrative Agent shall be reasonably
satisfied that the Existing Notes Tender Offer/Consent Solicitation shall be
consummated in accordance with the Existing Notes Tender Offer Documents and all
applicable laws on the Initial Borrowing Date (all of the foregoing, the "Debt
Retirement").
(b) On or prior to the Initial Borrowing Date, there shall have been
delivered to the Lenders copies of all Acquisition Documents, all of which shall
be certified by an Authorized Officer of the Borrower as true and correct and be
in full force and effect and shall be in form and substance as provided to the
Administrative Agent prior to the Effective Date, together with any changes
reasonably satisfactory to the Administrative Agent and the Required Lenders. On
the Initial Borrowing Date, the Acquisition shall have been consummated in
accordance with the Acquisition Documents and all applicable laws. All material
conditions to the Borrower's obligations in the Acquisition Agreement and
related material agreements shall have been satisfied, without waiver or
modification (except with the consent of the Administrative Agent, which consent
shall not be unreasonably withheld).
(c) On or prior to the Initial Borrowing Date, the total commitments, all
letters of credit (if any) issued and any payment obligations under the Existing
Indebtedness (other than
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Retained Indebtedness) shall have been terminated, and all loans and notes
issued thereunder shall have been repaid in full, together with interest
thereon, and all other amounts, including premiums, owing pursuant to the
Existing Indebtedness (other than Retained Indebtedness) shall have been repaid
in full and such Existing Indebtedness shall have been terminated and be of no
further force or effect. On or prior to the Initial Borrowing Date or
concurrently with the making of any Loan, the creditors under all Existing
Indebtedness shall have terminated and released all security interests and Liens
on capital stock of and the assets owned or to be owned by the Borrower or any
of its Subsidiaries (after giving effect to the Transaction) granted in
connection with the Existing Indebtedness (other than Retained Indebtedness).
The Administrative Agent shall have received such releases of security interests
in and Liens on the capital stock of and assets owned or to be owned by the
Borrower and its Subsidiaries (after giving effect to the Transaction) as may
have been requested by the Administrative Agent, which releases shall be in form
and substance reasonably satisfactory to the Administrative Agent. Without
limiting the foregoing, unless otherwise agreed by the Administrative Agent,
there shall have been delivered (i) proper termination statements (Form UCC-3 or
such other termination statements as shall be required by local law) (or
commitments in customary form to deliver such termination statements) for filing
under the UCC of each jurisdiction where a financing statement (Form UCC-1 or
the appropriate equivalent) was filed with respect to the Borrower or any of its
Subsidiaries, or their respective predecessors in interest, in connection with
the security interests created with respect to any Existing Indebtedness and the
documentation related thereto, (ii) terminations or assignments (or commitments
in customary form to deliver such terminations and assignments) of any security
interest in, or Lien on, any Intellectual Property of the Borrower or any of its
Subsidiaries, on which filings have been made, (iii) terminations of all
mortgages, leasehold mortgages and deeds of trust created with respect to
property of the Borrower or any of its Subsidiaries, or their respective
predecessors in interest, in each case to secure the obligations under any
Existing Indebtedness (other than the Retained Indebtedness), all of which shall
be in form and substance reasonably satisfactory to the Required Lenders and
(iv) subject to Section 13.17, all collateral owned by the Borrower and its
Subsidiaries in the possession of any agent, collateral agent or trustee for the
creditors under the Existing Indebtedness or any financial institution party to
any agreement in respect of the Existing Indebtedness (other than Retained
Indebtedness) or any related agreement.
(d) On the Initial Borrowing Date and after giving effect to the
Transaction, none of the Credit Parties shall have any Indebtedness or preferred
stock outstanding except for the Loans, the Subordinated Bridge Loan and the
Retained Indebtedness.
(e) On the Initial Borrowing Date, the Borrower shall have (x) entered into
the Senior Subordinated Financing Agreement and the Senior Subordinated
Financing Agreement shall be in full force and effect and (y) received gross
cash proceeds in a minimum aggregate principal amount equal to $300,000,000 from
the incurrence of the Subordinated Bridge Loans, and the Borrower shall have
utilized such amount to make payments owing in connection with the Transaction
before (or simultaneously with) utilizing proceeds of any Loans for such
purpose. On the Initial Borrowing Date, the Borrower shall have delivered to the
Administrative Agent a true and correct copy of the Senior Subordinated
Financing Agreement, the terms and conditions of which shall be in form and
substance as provided to the Administrative Agent prior to the Effective Date,
together with any changes satisfactory to the Administrative Agent and the
Required Lenders.
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(f) The Administrative Agent shall have received evidence in form, scope
and substance satisfactory to the Required Lenders that the matters set forth in
this Section 5.06 have been satisfied on or prior to the Initial Borrowing Date.
5.07 Pledge Agreement. On the Initial Borrowing Date, the Borrower and its
Subsidiaries shall have duly authorized, executed and delivered a Pledge
Agreement in the form of Exhibit G (such Pledge Agreement, as amended, modified,
extended, renewed, replaced, restated or supplemented from time to time, the
"Pledge Agreement") and shall have delivered to the Collateral Agent, as
Pledgee, all the Pledged Securities referred to therein then owned by such
Credit Party (except as provided in Section 13.17), together with executed and
undated stock powers, in the case of capital stock constituting Pledged
Securities.
5.08 Security Agreement. On the Initial Borrowing Date, the Borrower and
its Subsidiaries shall have duly authorized, executed and delivered a Security
Agreement in the form of Exhibit H (as amended, modified, extended, renewed,
replaced, restated or supplemented from time to time, the "Security Agreement")
covering all of the Borrower's and its Subsidiaries' present and future Security
Agreement Collateral, together with:
(a) proper Financing Statements (Form UCC-1) fully executed for filing
under the UCC or other appropriate filing offices of each jurisdiction as
may be necessary or, in the reasonable opinion of the Collateral Agent,
desirable to perfect the security interests purported to be created by the
Security Agreement;
(b) certified copies of Requests for Information or Copies (Form
UCC-11), or equivalent reports, listing all effective financing statements
that name the Borrower or any of its Subsidiaries as debtor and that are
filed in the jurisdictions referred to in clause (a) above, together with
copies of such other financing statements (none of which shall cover the
Collateral except to the extent evidencing Permitted Liens or in respect of
which the Collateral Agent shall have received termination statements (Form
UCC-3) or such other termination statements as shall be required by local
law);
(c) evidence of the completion (or that such completion will occur
within 10 days of the Initial Borrowing Date) of all other recordings and
filings of, or with respect to, the Security Agreement as may be necessary
or, in the reasonable opinion of the Collateral Agent, desirable to perfect
the security interests intended to be created by the Security Agreement;
and
(d) evidence that all other actions necessary or, in the reasonable
opinion of the Collateral Agent, desirable to perfect and protect the
security interests purported to be created by the Security Agreement have
been taken or will be taken within 10 days of the Initial Borrowing Date.
5.09 Mortgages; Title Insurance; etc. On the Initial Borrowing Date, the
Collateral Agent shall have received:
(a) duly authorized, fully executed, acknowledged, and delivered deeds
of trust, mortgages, leasehold deeds of trust or leasehold mortgages
substantially in the form of Exhibit I (as amended, modified, extended,
renewed, replaced, restated or supplemented
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from time to time, each a "Mortgage" and collectively, the
"Mortgages"), which Mortgages shall cover such of the Real Property owned
or leased by the Borrower and/or its Subsidiaries as shall be designated as
such on Schedule III as a mortgaged property thereunder (each, a "Mortgaged
Property" and collectively, the "Mortgaged Properties"), together with
evidence that counterparts of the Mortgages have been delivered to the
title insurance company insuring the Lien of the Mortgages for recording in
all places to the extent necessary or, in the reasonable opinion of the
Collateral Agent, desirable to effectively create a valid and enforceable
Lien on each Mortgaged Property in favor of the Collateral Agent (or such
other trustee as may be required or desired under local law) for the
benefit of the Secured Creditors;
(b) duly authorized, fully executed, acknowledged, and delivered
subordination, nondisturbance and attornment agreements, assignments of
leases, landlord consents, tenant estoppel certificates, and such other
documents relating to the Mortgages that the Collateral Agent may
reasonably request; and
(c) Extended coverage policies of mortgage title insurance covering
each Mortgaged Property, together with all endorsements reasonably
requested by the Collateral Agent relating thereto issued by title insurers
reasonably satisfactory to the Collateral Agent (the "Mortgage Policies")
in amounts reasonably satisfactory to the Administrative Agent and the
Required Lenders (but not in excess of the value of the respective
Mortgaged Property) assuring the Collateral Agent that the Mortgages on
such Mortgaged Properties are valid and enforceable first priority mortgage
liens on the respective Mortgaged Properties, free and clear of all defects
and encumbrances except Permitted Encumbrances and such Mortgage Policies
shall otherwise be in form and substance reasonably satisfactory to the
Administrative Agent and the Required Lenders and shall include, as
appropriate and to the extent available, an endorsement for future advances
under this Agreement and the Notes and for any other matter that the
Collateral Agent in its reasonable discretion may reasonably request, shall
not include an exception for mechanics' liens, and shall provide for
affirmative insurance (to the extent available) and such reinsurance as the
Collateral Agent in its discretion may reasonably request.
5.10 Adverse Change, etc. On the Initial Borrowing Date, after giving
effect to the Transaction, nothing shall have occurred (and the Lenders shall
have become aware of no facts or conditions not previously known) since June 30,
2000 which (i) could reasonably be expected to have a material adverse effect on
the rights or remedies of the Administrative Agent or the Lenders, or on the
ability of the Credit Parties to perform their respective obligations to the
Administrative Agent and the Lenders or which could reasonably be expected to
have a Material Adverse Effect or (ii) reasonably indicates the inaccuracy in
any material respect of the information previously provided to the
Administrative Agent of the Lenders (taken as a whole) in connection with their
analysis of the Transaction or reasonably indicates that the information
previously provided omitted to disclose any material information.
5.11 Solvency Certificate; Insurance. On or before the Initial Borrowing
Date, the Borrower shall have delivered or shall cause to be delivered to the
Administrative Agent (i) a solvency certificate in the form of Exhibit L from
the chief financial officer or treasurer of the Borrower, which shall be
delivered to each of the Lenders and dated the Initial Borrowing Date,
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stating that, after giving effect to the Transaction and the incurrence of all
financings contemplated herein, the Borrower and its Subsidiaries (on a
consolidated basis) are not insolvent and will not be rendered insolvent by the
Indebtedness incurred in connection herewith, will not be left with unreasonably
small capital with which to engage in their respective businesses and will not
have incurred debts beyond their ability to pay such debts as they mature and
become due and (ii) evidence of insurance complying with the requirements of
Section 8.03 for the business and properties of the Borrower and its
Subsidiaries, in scope, form and substance reasonably satisfactory to the
Administrative Agent and the Required Lenders and naming the Collateral Agent as
an additional insured and/or loss payee, and stating that such insurance shall
not be canceled or revised without 30 days' prior written notice by the insurer
to the Collateral Agent.
5.12 Financial Statements; Projections; Management Letters. (a) On or prior
to the Initial Borrowing Date, the Lenders shall have received (i) unaudited
consolidated balance sheet of the Borrower and its Subsidiaries as of September
30, 2000 and the related statements of income and retained earnings of the
Borrower for the quarter then ended; (ii) unaudited balance sheets of Station
Casino St. ▇▇▇▇▇▇▇ as of September 30, 2000 and the related statements of income
and retained earnings of Station Casino St. ▇▇▇▇▇▇▇ for the quarter then ended;
(iii) unaudited balance sheets of Station Casino Kansas City as of September 30,
2000 and the related statements of income and retained earnings for quarter then
ended; (iv) audited consolidated balance sheets of the Borrower and its
Subsidiaries as of December 31, 1997, December 31, 1998 and December 31, 1999
and the related statements of income and retained earnings and cash flow of each
of the Borrower for the years then ended, together with the notes related
thereto and accompanied by the audit report of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, independent
certified public accountants; (v) unaudited balance sheets of each of the
Acquired Businesses as of December 31, 1997, December 31, 1998 and December 31,
1999 and the related statements of income and retained earnings and cash flow
for the years then ended; and (vi) internal unaudited financial statements of
the Borrower and each Acquired Business as of and for the period ended September
30, 2000. The financial statements described in clauses (i) through (v) above
(x) in the case of income statements only, set forth comparative figures for the
corresponding period in the prior fiscal year; (y) have been prepared in
accordance with GAAP consistently applied (except in each case as described in
the notes thereto and except for the absence of footnotes and to year-end audit
adjustments, in the case of unaudited statements) and (z) and shall not disclose
any material adverse differences in the business, properties, assets,
liabilities, results of operations, condition (financial or otherwise) or
prospects of the Borrower and each Acquired Business from that previously
disclosed to the Lenders.
(b) On or prior to the Initial Borrowing Date, the Lenders shall have
received (i) a pro forma consolidated opening balance sheet of the Borrower and
its Subsidiaries after giving effect to the Transaction and (ii) the Projections
described in Section 7.05(d), which pro forma balance sheet and Projections
shall be in form and substance reasonably satisfactory to the Administrative
Agent and the Required Lenders.
5.13 Engineering Reports; Environmental Analyses; Appraisals. On or prior
to the Initial Borrowing Date, the Borrower shall cause to be delivered to the
Administrative Agent and the Lenders (i) engineering reports with respect to
each of the Specified Casino Properties from ▇▇▇▇▇▇▇ Consultants, Inc., which
shall be in scope, and in form and substance, acceptable to
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the Administrative Agent and the Required Lenders, together with reliance
letters in form and substance satisfactory to the Administrative Agent, (ii)
environmental and hazardous substance analyses reports from (x) RTP
Environmental Associates, Inc. with respect to each of the Specified Casino
Properties and (y) IT Corporation with respect to each of the Acquired
Businesses, which shall be in scope, and in form and substance, acceptable to
the Administrative Agent and the Required Lenders, together with reliance
letters in form and substance satisfactory to the Administrative Agent and (iii)
real estate appraisals with respect to each of the Specified Casino Properties
from HVS International, which shall be in scope, and in form and substance,
acceptable to the Administrative Agent and the Required Lenders, setting forth
an aggregate stabilized appraised value of the Specified Casino Properties
(taken as a whole) of at least an amount satisfactory to the Administrative
Agent, together with reliance letters in form and substance satisfactory to the
Administrative Agent.
5.14 Litigation. On the Initial Borrowing Date, no litigation by any entity
(private or governmental) shall be pending or threatened with respect to this
Agreement, any other Document or any documentation executed in connection
herewith or with respect to the Transaction, or which the Required Lenders shall
determine could reasonably be expected to have a materially adverse effect on
the Transaction or on the performance, business, assets, nature of assets,
liabilities, operations, properties, condition (financial or otherwise) or
prospects of the Borrower and its Subsidiaries taken as a whole (after giving
effect to the Transaction).
5.15 Subsidiary Guaranty. On the Initial Borrowing Date, subject to Section
13.17 each Subsidiary of the Borrower (after giving effect to the Transaction)
shall have executed and delivered a guaranty agreement, substantially in the
form of Exhibit J (as amended, modified, extended, renewed, replaced, restated
or supplemented from time to time, the "Subsidiary Guaranty").
5.16 Approvals, etc. (a) On or prior to the Initial Borrowing Date, (i)
except as provided in Section 13.17, all necessary governmental (domestic and
foreign) and third party approvals and consents (including, in any event, (x)
all required Gaming Authority approvals and consents and (y) all shareholder and
board of director approvals and consents) required in connection with the
Transaction and the other transactions contemplated by this Agreement and the
other Credit Documents which are to occur by the Initial Borrowing Date and
otherwise referred to herein or therein shall have been obtained and remain in
full force and effect and all applicable waiting periods shall have expired
without any action being taken by any competent authority which restrains,
prevents or imposes materially adverse conditions upon the consummation of the
Transaction and the other transactions contemplated by this Agreement and (ii)
the Administrative Agent shall have received copies or other evidence reasonably
satisfactory to it of all such approvals and consents. Additionally, there shall
not exist any judgment, order, injunction or other restraint issued or filed or
a hearing seeking injunctive relief or other restraint pending or notified
prohibiting or imposing materially adverse conditions upon the consummation of
the Transaction or the other transactions contemplated by this Agreement or the
other Credit Documents which are to occur by the Initial Borrowing Date.
(b) On or prior to the Initial Borrowing Date, the Administrative Agent
shall be satisfied in its discretion with any conditions or requirements imposed
by the Missouri, Nevada,
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Mississippi and Iowa or other relevant Gaming Authorities upon the Lenders, this
Agreement, the other Documents or the Transaction not disclosed to the Lenders
prior to the Effective Date.
(c) On or prior to the Initial Borrowing Date, and except as provided in
Section 13.17 the Borrower and its Subsidiaries shall have received any
approvals or qualifications required under applicable Gaming Regulations in
connection with this Agreement and the other Credit Documents to be obtained
prior to the Initial Borrowing Date, and the Borrower and the Subsidiary
Guarantors shall have received all other approvals, authorizations or consents
of, or notices to or registrations with any governmental body and required
releases and consents from other appropriate Persons (including, without
limitation, the shareholders of the Borrower) in connection with this Agreement
and the other Credit Documents and shall have provided copies or other
satisfactory evidence of all approvals, authorizations or consents referred to
above to the Administrative Agent to the extent available.
5.17 Ship Mortgages. On the Initial Borrowing Date, the Collateral Agent
shall have received duly authorized, fully executed, acknowledged, and delivered
first preferred ship mortgages substantially in the form of Exhibit M (as
amended, modified, extended, renewed, replaced, restated or supplemented from
time to time, each a "Ship Mortgage" and collectively, the "Ship Mortgages"),
which Ship Mortgages shall cover such of the Ship Properties owned or leased by
the Borrower and/or its Subsidiaries as shall be designated as such on Schedule
XI as a mortgaged ship property thereunder (each, a "Mortgaged Ship Property"
and collectively, the "Mortgaged Ship Properties"), together with evidence that
the Ship Mortgages have been recorded or filed (or will be filed or recorded
within 10 days of the Initial Borrowing Date) in all places to the extent
necessary or, in the reasonable opinion of the Collateral Agent, desirable to
effectively create a valid and enforceable Lien on each Mortgaged Ship Property
in favor of the Collateral Agent (or such other trustee as may be required or
desired under local law) for the benefit of the Secured Creditors.
SECTION 6. Conditions Precedent to All Credit Events. The obligation of
each Lender to make Loans and participate in Letters of Credit (including Loans
made and Letters of Credit issued on the Initial Borrowing Date), and the
obligation of any Issuing Lender to issue any Letter of Credit (including any
Letter of Credit issued on the Initial Borrowing Date), is subject, at the time
of each such Credit Event (except as hereinafter indicated), to the satisfaction
of the following conditions:
6.01 No Default; Representations and Warranties. At the time of each such
Credit Event and also after giving effect thereto (i) there shall exist no
Default or Event of Default and (ii) all representations and warranties
contained herein or in any other Credit Document shall be true and correct in
all material respects with the same effect as though such representations and
warranties had been made on the date of the making of such Credit Event (it
being understood and agreed that any representation or warranty which by its
terms is made as of a specified date shall be required to be true and correct in
all material respects only as of such specified date).
6.02 Notice of Borrowing; Letter of Credit Request. (a) Prior to the making
of each Loan (other than a Swingline Loan or a Mandatory Borrowing), the
Administrative Agent
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shall have received the notice required by Section 1.03(a). Prior to the making
of each Swingline Loan, the Swingline Lender shall have received the notice
referred to in Section 1.03(b).
(b) Prior to the issuance of each Letter of Credit, the Administrative
Agent and the respective Issuing Lender shall have received a Letter of Credit
Request meeting the requirements of Section 2.02.
6.03 Facilities Expansion Certificate. Prior to the making of (i) each RTL
Loan and (ii) at any time if after giving effect to the incurrence or issuance
thereof the aggregate outstanding principal amount of the Revolving Outstandings
shall exceed the Revolving Loan Commitment Sublimit, each Revolving Loan
Swingline Loan and Letter of Credit, the Borrower shall have delivered to the
Administrative Agent a certificate (each, a "Facilities Expansion Certificate"),
which certificate shall (x) state that the proceeds of such RTL Loans or
Revolving Loans, Swingline Loans or Letter of Credit, as the case may be, the
incurrence of which would cause the Revolving Outstandings to exceed the
Revolving Loan Commitment Sublimit, shall be utilized solely to finance the
Facilities Expansion, (y) set forth, in reasonable detail, the purposes for
which the proceeds of such Loans will be utilized and (z) in the case of an RTL
Loan, state that the Revolving Loan Facilities Expansion Amount equals or
exceeds $25,000,000.
The acceptance of the benefit of each Credit Event shall constitute a
representation and warranty by the Borrower to the Administrative Agent and each
of the Lenders that all the conditions specified in Section 5 and in this
Section 6 and applicable to such Credit Event exist as of that time (except to
the extent that any of the conditions specified in Section 5 are required to be
satisfactory to or determined by any Lender, the Required Lenders and/or the
Administrative Agent). All of the Notes, certificates, legal opinions and other
documents and papers referred to in Section 5 and in this Section 6, unless
otherwise specified, shall be delivered to the Administrative Agent at the
Notice Office or to counsel for the Administrative Agent for the account of each
of the Lenders and, except for the Notes, in sufficient counterparts or copies
for each of the Lenders.
SECTION 7. Representations and Warranties. In order to induce the Lenders
to enter into this Agreement and to make the Loans, and issue (or participate
in) the Letters of Credit as provided herein, the Borrower makes the following
representations and warranties, in each case after giving effect to the
Transaction consummated on the Initial Borrowing Date, all of which shall
survive the execution and delivery of this Agreement and the Notes and the
making of the Loans and the issuance of the Letters of Credit, with the
occurrence of each Credit Event on or after the Initial Borrowing Date being
deemed to constitute a representation and warranty that the matters specified in
this Section 7 are true and correct on and as of the Initial Borrowing Date in
all material respects and in all material respects on the date of each such
Credit Event (it being understood and agreed that any representation or warranty
which by its terms is made as of a specified date shall be required to be true
and correct in all material respects only as of such specified date).
7.01 Corporate Status. The Borrower and each of its Subsidiaries (i) is a
duly organized and validly existing corporation in good standing under the laws
of the jurisdiction of its organization, (ii) has the corporate power and
authority to own its property and assets and to transact the business in which
it is engaged and presently proposes to engage and (iii) is duly
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qualified to do business and is in good standing in each jurisdiction where the
conduct of its business requires such qualifications except for failures to be
so qualified which, individually or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect.
7.02 Corporate Power and Authority. Each Credit Party has the corporate
power and authority to execute, deliver and perform the terms and provisions of
each of the Documents to which it is party and has taken all necessary corporate
action, as the case may be, to authorize the execution, delivery and performance
by it of each of such Documents. Each Credit Party has duly executed and
delivered each of the Documents to which it is party, and each of such Documents
constitutes such Credit Party's legal, valid and binding obligation enforceable
in accordance with its terms, except to the extent that the enforceability
thereof may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws generally affecting creditors' rights and by
equitable principles (regardless of whether enforcement is sought in equity or
at law).
7.03 No Violation. Neither the execution, delivery or performance by any
Credit Party of the Documents to which it is a party, nor compliance by it with
the terms and provisions thereof, (i) will contravene any material provision of
any applicable law, statute, rule or regulation or any applicable order, writ,
injunction or decree of any court or governmental instrumentality, (ii) will
conflict with or result in any breach of any of the material terms, covenants,
conditions or provisions of, or constitute a default under, or result in the
creation or imposition of (or the obligation to create or impose) any Lien
(except pursuant to the Security Documents) upon any of the material properties
or assets of the Borrower or any of its Subsidiaries pursuant to the terms of
any material indenture, mortgage, deed of trust, credit agreement or loan
agreement, or any other material agreement, contract or instrument, to which the
Borrower or any of its Subsidiaries is a party or by which it or any of its
property or assets is bound or to which it may be subject or (iii) will violate
any provision of the Certificate of Incorporation or By-Laws of the Borrower or
any of its Subsidiaries.
7.04 Governmental Approvals. Except as provided in Section 13.17, no order,
consent, approval, license, authorization or validation of, or filing, recording
or registration with (except as have been obtained or made prior to the Initial
Borrowing Date or, if later, the date as of which this representation is being
made), or exemption by, any governmental or public body or authority, or any
subdivision thereof, is required to authorize, or is required in connection
with, (i) the execution, delivery and performance of any Document or (ii) the
legality, validity, binding effect or enforceability of any such Document,
except, (x) in the case of any Document other than a Credit Document, in the
case of any failure to obtain where such failure to so obtain would not have a
Material Adverse Effect and (y) the approval of one or more Gaming Authorities
may be required in connection with foreclosure under the Security Documents.
7.05 Financial Statements; Financial Condition; Undisclosed Liabilities;
Projections; etc. (a) The balance sheets, statements of operations, statements
of stockholders' equity, statements of changes in stockholders' equity and
statements of cash flows of the Borrower and its Subsidiaries as furnished to
the Lenders prior to the Effective Date fairly present the financial condition
and operations of the Borrower and its Subsidiaries at and for the periods
indicated. All such financial statements have been prepared in accordance with
GAAP, consistently applied. After giving effect to the Transaction, since June
30, 2000, there has been
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no material adverse change in the business, operations, property, assets,
liabilities, condition (financial or otherwise) or prospects of the Borrower and
its Subsidiaries taken as a whole.
(b) (i) On and as of the Initial Borrowing Date, after giving effect to the
Transaction and to all Indebtedness incurred, and to be incurred, and Liens
created, and to be created, by the Borrower and its Subsidiaries in connection
therewith, (a) the sum of the assets, at a fair valuation, of the Borrower and
its Subsidiaries will exceed their debts; (b) the Borrower and its Subsidiaries
taken as a whole have not incurred and do not intend to incur, and do not
believe that they will incur, debts beyond their ability to pay such debts as
such debts mature; and (c) the Borrower and its Subsidiaries taken as a whole
will have sufficient capital with which to conduct their businesses. For
purposes of this Section 7.05(b), "debt" means any liability on a claim, and
"claim" means (i) right to payment, whether or not such a right is reduced to
judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured,
disputed, undisputed, legal, equitable, secured, or unsecured or (ii) right to
an equitable remedy for breach of performance if such breach gives rise to a
payment, whether or not such right to an equitable remedy is reduced to
judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured
or unsecured.
(c) Except as fully disclosed in the financial statements delivered
pursuant to Section 7.05(a) or as disclosed in writing to the Lenders prior to
the Effective Date, there were as of the Initial Borrowing Date no liabilities
or obligations with respect to the Borrower or any of its Subsidiaries of any
nature whatsoever (whether absolute, accrued, contingent or otherwise and
whether or not due) which, either individually or in aggregate, would be
material to the Borrower or to the Borrower and its Subsidiaries taken as a
whole. As of the Initial Borrowing Date the Borrower does not know of any basis
for the assertion against it of any liability or obligation of any nature
whatsoever that is not fully disclosed in the financial statements delivered
pursuant to Section 7.05(a) which, either individually or in the aggregate,
would reasonably be expected to have a Material Adverse Effect.
(d) On and as of the Initial Borrowing Date, the financial projections
dated as of November 2000 (the "Projections") previously delivered to the
Administrative Agent and the Lenders have been prepared on a basis consistent
with the financial statements referred to in Section 7.05(a) (other than as set
forth or presented in such Projections), and there are no statements or
conclusions in any of the Projections which are based upon or include
information known to the Borrower to be misleading in any material respect or
which fail to take into account material information regarding the matters
reported therein. On the Initial Borrowing Date, the Borrower believed that the
Projections were reasonable estimates of the Borrower's anticipated performance,
based on good faith assumptions and the best information available to the
Borrower as of the date of delivery thereof and as of the Initial Borrowing
Date.
7.06 Litigation. There are no actions, suits or proceedings pending or, to
the best knowledge of the Borrower, threatened (i) with respect to any Document
on the Initial Borrowing Date or (ii) that could reasonably be expected to have
a Material Adverse Effect.
7.07 True and Complete Disclosure. All factual information (taken as a
whole) furnished by or on behalf of the Borrower in writing to the
Administrative Agent or any Lender for purposes of or in connection with this
Agreement, the other Credit Documents or any
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transaction contemplated herein or therein is, and all other such factual
information (taken as a whole) hereafter furnished by or on behalf of the
Borrower in writing to the Administrative Agent or any Lender will be, true and
accurate in all material respects on the date as of which such information is
dated or certified and not incomplete by omitting to state any fact necessary to
make such information (taken as a whole) not misleading in any material respect
at such time in light of the circumstances under which such information was
provided.
7.08 Use of Proceeds; Margin Regulations. (a) All proceeds of the Term
Loans shall be utilized by the Borrower (i) to effect the Transaction and (ii)
to pay fees and expenses related to the Transaction.
(b) Proceeds of (x) RTL Loans and (y) to the extent that the incurrence
thereof would cause Revolving Outstandings to exceed the Revolving Loan
Commitment Sublimit, Revolving Loans, Swingline Loans, and Letters of Credit,
shall be utilized by the Borrower solely (i) to effect the Facilities Expansion
and (ii) to pay fees and expenses related to the Facilities Expansion.
(c) Proceeds of Revolving Loans and Swingline Loans may be utilized,
subject to clause (b) above, (w) to effect the Transaction, (x) to pay fees and
expenses related to the Transaction, (y) for the Borrower's and its
Subsidiaries' general corporate and working capital purposes and (z) to make
payments required in connection with the Facilities Expansion following the
Initial Borrowing Date, provided that no more than $75,000,000 of Revolving
Loans and Swingline Loans may be utilized by the Borrower (i) to effect the
Transaction or (ii) to pay fees and expenses related to the Transaction.
(d) No part of the proceeds of any Loan will be used to purchase or carry
any Margin Stock or to extend credit for the purpose of purchasing or carrying
any Margin Stock. Neither the making of any Loan nor the use of the proceeds
thereof will violate or be inconsistent with the provisions of Regulation T, U
or X of the Board of Governors of the Federal Reserve System.
7.09 Tax Returns and Payments. Each of the Borrower and its Subsidiaries
has timely filed or caused to be timely filed, on the due dates thereof or
within applicable grace periods, with the appropriate taxing authority, all
Federal and all material state and foreign returns, statements, forms and
reports for taxes (the "Returns") required to be filed by or with respect to the
income, properties or operations of the Borrower and/or any of its Subsidiaries.
The Returns accurately reflect in all material respects all liability for taxes
of the Borrower and its Subsidiaries, as the case may be, for the periods
covered thereby. Each of the Borrower and its Subsidiaries has paid all material
taxes payable by them other than taxes which are not delinquent or are being
contested in good faith and for which adequate reserves have been established in
accordance with GAAP. Except as disclosed in the financial statements referred
to in Section 7.05(a), as of the Initial Borrowing Date there is no material
action, suit, proceeding, investigation, audit, or claim now pending or, to the
best knowledge of the Borrower or any of its Subsidiaries, threatened by any
authority regarding any taxes relating to the Borrower or any of its
Subsidiaries. As of the Initial Borrowing Date, except as set forth in Schedule
VII, neither the Borrower nor any of its Subsidiaries has entered into an
agreement or waiver or been requested to enter into an agreement or waiver
extending any statute of limitations relating to the payment
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or collection of taxes of the Borrower or any of its Subsidiaries, or is aware
of any circumstances that would cause the taxable years or other taxable periods
of the Borrower or any of its Subsidiaries not to be subject to the normally
applicable statute of limitations. Neither the Borrower nor any of its
Subsidiaries has incurred, or will incur, any material income tax liability in
connection with the Transaction and the other transactions contemplated hereby
(other than as a result of the operations after the Initial Borrowing Date of
properties acquired in the Transaction).
7.10 Compliance with ERISA. As of the Initial Borrowing Date, neither
Borrower, any Subsidiary or any ERISA Affiliate sponsors, contributes to or
maintains a Plan or has any actual or contingent liability under any Plan. To
the extent that Borrower, any Subsidiary or any ERISA Affiliate becomes the
sponsor, contributes to or maintains a Plan or has any actual or contingent
liability under a Plan, Borrower shall schedule such Plan. To the extent
applicable, each Plan (and each related trust, insurance contract or fund) is in
substantial compliance with its terms and with all applicable laws including,
without limitation, ERISA and the Code; each Plan (and each related trust, if
any) which is intended to be qualified under Section 401(a) of the Code has
received or has applied for a determination letter from the Internal Revenue
Service to the effect that it meets the requirements of Sections 401(a) and
501(a) of the Code; no Reportable Event has occurred with respect to a Plan; to
the knowledge of the Borrower, each of its Subsidiaries and each ERISA
Affiliate, no Plan which is a multiemployer plan (as defined in Section
4001(a)(3) of ERISA) is insolvent or in reorganization; no Plan has a material
Unfunded Current Liability; no Plan has an accumulated or waived funding
deficiency, has permitted decreases in its funding standard account or has
applied for an extension of any amortization period within the meaning of
Section 412 of the Code or Section 302 of ERISA has an accumulated funding
deficiency, within the meaning of such sections of the Code or ERISA, or has
applied for or received a waiver of an accumulated funding deficiency or an
extension of any amortization period, within the meaning of Section 412 of the
Code or Section 303 or 304 of ERISA; all contributions required to be made with
respect to a Plan have been timely made; neither the Borrower nor any of its
Subsidiaries nor any ERISA Affiliate has incurred any material liability
(including any indirect, contingent or secondary liability) to or on account of
a Plan pursuant to Section 409, 502(i), 502(1), 515, 4062, 4063, 4064, 4069,
4201, 4204 or 4212 of ERISA or Section 401(a)(29), 4971 or 4975 of the Code or
reasonably expects to incur any such liability under any of the foregoing
Sections with respect to any Plan; to the knowledge of Borrower, each Subsidiary
and each ERISA Affiliate, no proceedings have been instituted to terminate or
appoint a trustee to administer any Plan which is subject to Title IV of ERISA;
no action, suit, proceeding, hearing, audit or investigation with respect to the
administration, operation or the investment of assets of any Plan (other than
routine claims for benefits) is pending or, to the knowledge of Borrower,
Subsidiary and each ERISA Affiliate, expected or threatened; using actuarial
assumptions and computation methods consistent with Part 1 of subtitle E of
Title IV of ERISA, the aggregate liabilities of the Borrower, its Subsidiaries
and their ERISA Affiliates to all Plans which are multiemployer plans (as
defined in Section 4001(a)(3) of ERISA) in the event of a complete withdrawal
therefrom, as of the close of the most recent fiscal year of each such Plan
ended prior to the date of the most recent Credit Event, would not exceed
$5,000,000; each group health plan (as defined in Section 607(1) of ERISA or
Section 4980B(g)(2) of the Code) which covers or has covered employees or former
employees of the Borrower, any Subsidiary of the Borrower, or any ERISA
Affiliate has at all times been operated in compliance in all material respects
with the provisions of Part 6 of
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subtitle B of Title I of ERISA and Section 4980B of the Code; no lien imposed
under the Code or ERISA on the assets of the Borrower or any Subsidiary of the
Borrower or any ERISA Affiliate exists or is likely to arise on account of any
Plan; and the Borrower and its Subsidiaries may cease contributions to or
terminate any employee benefit plan maintained by any of them without incurring
any material liability.
7.11 The Security Documents. (a) The provisions of the Security Agreement
are effective to create in favor of the Collateral Agent for the benefit of the
Secured Creditors a legal, valid and enforceable security interest in all right,
title and interest of the Credit Parties in the Security Agreement Collateral
described therein, and the Security Agreement, upon the filing of Form UCC-1
financing statements or the appropriate equivalent (which filing, if this
representation is being made more than 10 days after Initial Borrowing Date, has
been made), create a fully perfected lien on, and security interest in, all
right, title and interest in all of the Security Agreement Collateral described
therein which is capable of being perfected with such filings, subject to no
other Liens other than Permitted Liens and Liens to be released in connection
with the Transaction.
(b) The security interests created in favor of the Collateral Agent, as
Pledgee, for the benefit of the Secured Creditors under the Pledge Agreement
constitute first priority perfected security interests in the Pledged Securities
described in the Pledge Agreement, subject to no security interests of any other
Person. No filings or recordings are required in order to perfect (or maintain
the perfection or priority of) the security interests created in the Pledged
Securities and the proceeds thereof under the Pledge Agreement, so long as the
Collateral Agent maintains possession of such Pledged Securities consisting of
certificated securities in the State of New York.
(c) The Mortgages create, as security for the obligations purported to be
secured thereby, a valid and enforceable perfected security interest in and
mortgage lien on all of the Mortgaged Properties in favor of the Collateral
Agent (or such other trustee as may be required or desired under local law) for
the benefit of the Secured Creditors, superior to and prior to the rights of all
third persons (except that the security interest and mortgage lien created in
the Mortgaged Properties may be subject to the Permitted Encumbrances, Permitted
Liens and Liens to be released in connection with the Transaction related
thereto) and subject to no other Liens (other than Liens permitted under Section
9.01). Schedule III contains a true and complete list of each parcel of Real
Property owned or leased by the Borrower and its Subsidiaries on the Initial
Borrowing Date (after giving effect to the Transaction) and the type of interest
therein held by the Borrower or such Subsidiary.
(d) The Ship Mortgages create, as security for the obligations purported to
be secured thereby, a valid and enforceable perfected security interest in and
mortgage lien on all of the Ship Properties in favor of the Collateral Agent (or
such other trustee as may be required or desired under local law) for the
benefit of the Secured Creditors, superior to and prior to the rights of all
third persons (except that the security interest and mortgage lien created in
the Ship Properties may be subject to the Permitted Encumbrances, Permitted
Liens and Liens to be released in connection with the Transaction related
thereto) and subject to no other Liens (other than Liens permitted under Section
9.01). Schedule XI contains a true and complete list of each
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Ship Property owned or leased by the Borrower and its Subsidiaries on the
Initial Borrowing Date and the type of interest therein held by the Borrower or
such Subsidiary.
7.12 Representations and Warranties in Documents. All representations and
warranties of the Borrower and its Subsidiaries set forth in the other Documents
were true and correct in all material respects at the time as of which such
representations and warranties were made (or deemed made).
7.13 Properties. The Borrower and each of its Subsidiaries have good and
valid title to all properties (or a valid leasehold estate with respect to
leased properties) owned by them after giving effect to the Transaction in
accordance with the Transaction Documents, including all property reflected in
the balance sheet of the Borrower referred to in Section 7.05(a) and in the pro
forma balance sheet referred to in Section 5.12 (except for property sold or
otherwise disposed of since the date of such balance sheet in the ordinary
course of business or as otherwise permitted by this Agreement), free and clear
of all Liens, other than (i) as referred to in the balance sheet or in the notes
thereto or in such pro forma balance sheet or (ii) Permitted Liens.
7.14 Capitalization. On the Initial Borrowing Date and after giving effect
to the Transaction and the other transactions contemplated hereby, the
authorized capital stock of the Borrower shall consist of 30,000,000 shares of
common stock, $0.01 par value per share, 20,441,254 of which shares are
outstanding. All such outstanding shares of common stock have been duly and
validly issued, are fully paid and nonassessable and are free of preemptive
rights. As of the Initial Borrowing Date, neither the Borrower nor its
Subsidiaries has outstanding any securities convertible into or exchangeable for
its capital stock or outstanding any rights to subscribe for or to purchase, or
any options for the purchase of, or any agreements providing for the issuance
(contingent or otherwise) of, or any calls, commitments or claims of any
character relating to, its capital stock.
7.15 Subsidiaries. After giving effect to the Transaction, as of the
Effective Date, the Borrower will have no direct or indirect Subsidiaries other
than those listed on Schedule IX.
7.16 Compliance with Statutes, etc. Each of the Borrower and its
Subsidiaries is in compliance with all applicable statutes, regulations and
orders of, and all applicable restrictions imposed by, all governmental bodies,
domestic or foreign, in respect of the conduct of its business and the ownership
of its property, except such noncompliances as could not individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.
7.17 Investment Company Act. Neither the Borrower nor any of its
Subsidiaries is an "investment company" or a company "controlled" by an
"investment company", within the meaning of the Investment Company Act of 1940,
as amended.
7.18 Public Utility Holding Company Act. Neither the Borrower nor any of
its Subsidiaries is a "holding company", or a "subsidiary company" of a "holding
company", or an "affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company" within the meaning of the Public Utility Holding Company
Act of 1935, as amended.
7.19 Labor Relations. Neither the Borrower nor any of its Subsidiaries is
engaged in any unfair labor practice that could reasonably be expected to have a
Material
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Adverse Effect. There is (i) no unfair labor practice complaint pending against
the Borrower or any of its Subsidiaries or, to the best knowledge of the
Borrower, threatened against any of them, before the National Labor Relations
Board, and no significant grievance or significant arbitration proceeding
arising out of or under any collective bargaining agreement is so pending
against the Borrower or any of its Subsidiaries or, to the best knowledge of the
Borrower, threatened against any of them, (ii) no strike, labor dispute,
slowdown or stoppage pending against the Borrower or any of its Subsidiaries or,
to the best knowledge of the Borrower, threatened against the Borrower or any of
its Subsidiaries and (iii) to the best knowledge of the Borrower, no concerted
and continuous effort to organize a union with respect to the employees of the
Borrower or any of its Subsidiaries, except (with respect to any matter
specified in clause (i), (ii) or (iii) above, either individually or in the
aggregate) such as could not reasonably be expected to have a Material Adverse
Effect.
7.20 Patents, Licenses, Franchises and Formulas. Each of the Borrower and
its Subsidiaries owns all material patents, trademarks, permits, service marks,
trade names, copyrights, licenses, franchises and formulas, or rights with
respect to the foregoing, and has obtained assignments of all leases and other
rights of whatever nature, necessary for the present conduct of its business,
without any known conflict with the rights of others which, or the failure to
obtain which, as the case may be, could reasonably be expected to have a
Material Adverse Effect.
7.21 Transaction. As of the Initial Borrowing Date and after giving effect
to the application of the proceeds thereof, the Transaction is being consummated
in all material respects in accordance with the terms of the respective
Transaction Documents and all applicable laws. As of the Initial Borrowing Date,
all consents and approvals of, and filings and registrations with, and all other
actions in respect of, all governmental agencies, authorities or
instrumentalities required in order to make or consummate the Transaction will
have been obtained, given, filed or taken and are or will be in full force and
effect (or effective judicial relief with respect thereto has been obtained),
except (x) where the failure to so obtain, give, file or take would not have a
Material Adverse Effect; and (y) filings of reports of transactions required to
be filed after the Initial Borrowing Date as provided in Section 13.17 and other
matters set forth in Section 13.17. All applicable waiting periods with respect
thereto have or, prior to the time when required, will have, expired without, in
all such cases, any action being taken by any competent authority which
restrains, prevents, or imposes material adverse conditions upon the
Transaction. Additionally, there does not exist any judgment, order or
injunction prohibiting or imposing material adverse conditions upon the
Transaction, or any Credit Event or the performance by any Credit Party of its
obligations under the respective Documents. All actions taken by each Credit
Party pursuant to or in furtherance of the Transaction have been taken in
material compliance with the respective Documents and all applicable laws.
7.22 Indebtedness. Schedule VII sets forth a true and complete list of all
Indebtedness (other than the Loans and Indebtedness incurred under the Senior
Subordinated Financing) of the Credit Parties as of the Initial Borrowing Date
after giving effect to the Transaction and the other transactions contemplated
hereby, in each case showing the aggregate amount thereof and the name of the
respective obligor and any other entity which directly or indirectly guaranteed
such debt (the "Retained Indebtedness").
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7.23 Intellectual Property. Schedule X attached hereto contains a list of
all United States and foreign patents, patent applications, registered and
unregistered trademarks, trade names, service marks and registered copyrights,
owned by, or licensed to any of the Credit Parties as of the Initial Borrowing
Date that is material to the operation of the business of any of the Credit
Parties. Each of the foregoing is collectively defined herein as "Intellectual
Property". The business of each of the Credit Parties as presently conducted
requires no rights under Intellectual Property other than rights owned by the
Credit Parties or licensed to a Credit Party pursuant to a valid and effective
license agreement, except to the extent the failure to possess any such
Intellectual Property rights, individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect. Except as otherwise
disclosed on Schedule X as of the Initial Borrowing Date, the Credit Parties own
all right and interest and full legal, equitable and beneficial ownership in the
Intellectual Property owned by the Credit Parties including, without limitation,
exclusive rights (except for rights granted under any license to any third
party) to use, sell, transfer, assign and license the same. Except as otherwise
disclosed on Schedule X as of the Initial Borrowing Date, no consent of third
parties will be required for the use by the Credit Parties of any Intellectual
Property as a consequence of the consummation of the transactions contemplated
hereby. As of the Initial Borrowing Date, each item of Intellectual Property
owned by the Credit Parties listed on Schedule X has been duly registered with,
filed in, or issued by the appropriate domestic or foreign governmental agency,
to the extent required, and each such registration, filing and issuance remains
in full force and effect. To the knowledge of the Credit Parties, no Person has
infringed or otherwise violated the Credit Parties' right in any of the
Intellectual Property except for any such infringement or violation that,
individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect.
7.24 Environmental Matters. Except for matters that either individually or
in the aggregate could not reasonably be expected to have a Material Adverse
Effect or as is set forth on Schedule XII:
(a) Each of the Borrower and its Subsidiaries has complied and is in
compliance with all applicable Environmental Laws and the requirements of any
permits issued under such Environmental Laws. There are no past, pending or, to
the best knowledge of the Borrower or any of its Subsidiaries, threatened
Environmental Claims against the Borrower or any of its Subsidiaries or any Real
Property currently or, to the best knowledge of the Borrower or any of its
Subsidiaries, previously owned or operated by the Borrower or any of its
Subsidiaries. There are no facts, circumstances, conditions or occurrences on
any Real Property currently owned or operated by the Borrower or any of its
Subsidiaries or, to the best knowledge of the Borrower or any of its
Subsidiaries, on any formerly owned or operated Real Property or any property
adjoining or in the vicinity of any currently owned or operated Real Property
that could reasonably be expected (i) to form the basis of an Environmental
Claim against the Borrower or any of its Subsidiaries or any currently owned or
operated Real Property or (ii) to cause any such Real Property to be subject to
any restrictions on the ownership, occupancy, use or transferability of such
Real Property by the Borrower or any of its Subsidiaries under any applicable
Environmental Law.
(b) Hazardous Materials have not at any time been generated, used, treated
or stored on, or transported to or from, or Released on or from, any Real
Property owned or operated by the Borrower or any of its Subsidiaries except in
compliance with all Environmental
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Laws and reasonably required in connection with the operation, use and
maintenance of any such Real Property by the Borrower's or such Subsidiary's
business. There are not now any underground storage tanks owned or operated by
the Borrower or any of its Subsidiaries located on any Real Property owned or
operated by the Borrower or any of its Subsidiaries.
7.25 Senior Debt. All of the Obligations constitutes "Senior Debt" under
the Subordinated Bridge Loans and Permanent Senior Subordinated Notes.
SECTION 8. Affirmative Covenants. The Borrower hereby covenants and agrees
that on and after the Effective Date and until the Total Commitment and all
Letters of Credit have terminated and the Loans, Notes and Unpaid Drawings,
together with interest, Fees and all other Obligations incurred hereunder and
thereunder, are paid in full:
8.01 Information Covenants. The Borrower will furnish to each Lender:
(a) Monthly Reports. Within 30 days after the end of each fiscal month of
the Borrower, the combined balance sheets of the Borrower and its Consolidated
Subsidiaries as of the end of such month and the related combined statements of
income and statements of cash flows for such month and for the last elapsed
portion of the fiscal year ended with the last day of such month, in each case
setting forth in the statements of income only, the comparative figures for the
corresponding month in the prior fiscal year.
(b) Quarterly Financial Statements. As soon as available and in any event
within 45 days after the close of each of the first three quarterly accounting
periods in each fiscal year of the Borrower (subject to extension in the event
of an SEC 12b-25 filing), the combined balance sheets of the Borrower and its
Consolidated Subsidiaries as of the end of such quarter and the related combined
statements of income and statements of cash flows for such quarter and for the
last elapsed portion of the fiscal year ended with the last day of such quarter
and setting forth in the statements of income only, the comparative figures for
the corresponding quarter in the prior fiscal year and the budgeted figures for
such quarter as set forth in the respective budget delivered pursuant to Section
8.01(e), (ii) the consolidating balance sheets of each of the Borrower's
Subsidiaries as of the end of such quarter and the related consolidating
statements of income and consolidating statements of cash flows for such quarter
and for the elapsed portion of the fiscal year ended with the last day of such
quarter, in each case setting forth in the statements of income only, the
comparative figures for the corresponding quarter in the prior fiscal year and
the budgeted figures for such quarter as set forth in the respective budget
delivered pursuant to Section 8.01(e), and (iii) management's discussion and
analysis of the important operational and financial developments during such
quarterly period in respect of the Borrower and its Subsidiaries.
(c) Annual Financial Statements. Within 90 days after the close of each
fiscal year of the Borrower (subject to extension in the event of an SEC 12b-25
filing), the consolidated balance sheets of the Borrower and its Consolidated
Subsidiaries as at the end of such fiscal year and the related statements of
income and retained earnings and of cash flows for such fiscal year and, setting
forth comparative figures for the preceding fiscal year commencing fiscal year
2000 and certified, in the case of such consolidated statements, by ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ LLP or such other independent certified public accountants of
recognized national standing reasonably acceptable
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to the Administrative Agent, together with a report of such accounting firm
(which report shall be unqualified as to scope) and a statement stating that in
the course of its regular audit of the financial statements of the Borrower and
its Subsidiaries, which audit was conducted in accordance with generally
accepted auditing standards, such accounting firm obtained no knowledge of any
Default or Event of Default under Sections 9.03, 9.04, 9.05 and 9.07 through
9.12, inclusive, which has occurred and is continuing or, if in the opinion of
such accounting firm such a Default or Event of Default has occurred and is
continuing, a statement as to the nature thereof, (ii) the consolidating balance
sheets of each of the Borrower's Subsidiaries at the end of such fiscal year and
the related consolidating statement of income and retained earnings and
statement of cash flows for such fiscal year, in each case setting forth
comparative figures for the preceding fiscal year, and (iii) management's
discussions and analysis of the important operational and financial developments
during such fiscal year in respect of the Borrower and its Subsidiaries.
(d) Management Letters. Promptly after the receipt thereof by the Borrower
or any of its Subsidiaries, a copy of any final "management letter" received by
the Borrower or such Subsidiary from its certified public accountants and
management's responses thereto.
(e) Budgets. No later than 45 days following the commencement of the first
day of each fiscal year of the Borrower, a budget in form reasonably
satisfactory to the Administrative Agent prepared by the Borrower for (x) in the
case of budgeted statements of income, each of the twelve months of such fiscal
year prepared in detail, and (y) in the case of budgeted statements of sources
and uses of cash and balance sheets, for such fiscal year on an annual basis and
prepared in detail and for each of the five years immediately following such
fiscal year prepared in summary form, accompanied by the statement of the Chief
Executive Officer, President, Vice President or Chief Financial Officer of the
Borrower to the effect that, to the best of knowledge of such Person, the budget
is a reasonable estimate of anticipated performance, based on assumptions such
Person believes to be reasonable, for the period covered thereby.
(f) Officer's Certificates. At the time of the delivery of the financial
statements provided for in Section 8.01(b) and (c), a certificate of the Chief
Executive Officer, President, Vice President or Chief Financial Officer of the
Borrower to the effect that, to the best of such officer's knowledge, no Default
or Event of Default has occurred and is continuing or, if any Default or Event
of Default has occurred and is continuing, specifying the nature and extent
thereof, which certificate shall (x) set forth the calculations required to
establish whether the Borrower was in compliance with the provisions of Sections
9.03, 9.04, 9.05, and 9.07 through 9.12, inclusive, at the end of such fiscal
quarter or year, as the case may be, (y) the Applicable Margin for the Margin
Reduction Period commencing with the delivery of the respective financial
statements and (z) if delivered with the financial statements required by
Section 8.01(c), set forth the calculations required to establish whether the
Borrower was in compliance with the provisions of Section 4.02(A)(i) and set
forth the amount of Excess Cash Flow for the respective Excess Cash Payment
Period.
(g) Notice of Default or Litigation. Promptly, and in any event within five
Business Days after an Authorized Officer of the Borrower obtains knowledge
thereof, notice of (i) the occurrence of any event which constitutes a Default
or Event of Default and (ii) any
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litigation or governmental investigation or proceeding (including, without
limitation, any investigation by any Gaming Authority) pending against the
Borrower or any of its Subsidiaries which could reasonably be expected to result
in a Material Adverse Effect.
(h) Other Reports and Filings. Promptly, copies of all (i) financial
information, proxy materials and other information and reports, if any, which
the Borrower or any of its Subsidiaries shall file with the Securities and
Exchange Commission or any successor thereto (the "SEC"), (ii) notices of
default in the observance or performance by the Borrower or any of its
Subsidiaries of any agreement or condition relating to any Indebtedness in a
principal amount equal to or exceeding $5,000,000 in the aggregate (other than
the Obligations) or contained in any instrument or agreement evidencing,
securing or relating thereto and (iii) communications with holders of its public
Indebtedness pursuant to the terms of the documentation governing such public
Indebtedness.
(i) Environmental Matters. Promptly upon, and in any event within thirty
days after, an officer of the Borrower or any of its Subsidiaries obtains
knowledge thereof, notice of one or more of the following environmental matters
which occurs after the Initial Borrowing Date unless such environmental matters
could not, individually or when aggregated with all other such environmental
matters, be reasonably expected to have a Material Adverse Effect:
(i) any material Environmental Claim pending or threatened in writing
against the Borrower or any of its Subsidiaries or any Real Property owned,
operated or occupied by the Borrower or any of its Subsidiaries;
(ii) any condition or occurrence on or arising from any Real Property
owned, operated or occupied by the Borrower or any of its Subsidiaries that
(a) results in material noncompliance by the Borrower or any of its
Subsidiaries with any applicable Environmental Law or (b) would reasonably
be expected to form the basis of a material Environmental Claim against the
Borrower or any of its Subsidiaries or any such Real Property;
(iii) any condition or occurrence on any Real Property owned, operated
or occupied by the Borrower or any of its Subsidiaries that would
reasonably be expected to cause such Real Property to be subject to any
material restrictions on the ownership, occupancy, use or transferability
by the Borrower or any of its Subsidiaries of such Real Property under any
Environmental Law; and
(iv) the taking of any material removal or remedial action in response
to the actual or alleged presence of any Hazardous Material on any Real
Property owned, operated or occupied by the Borrower or any of its
Subsidiaries as required by any Environmental Law or any governmental or
other administrative agency; provided that in any event the Borrower shall
deliver to the Administrative Agent all material notices received by it or
any of its Subsidiaries from any government or governmental agency under,
or pursuant to, CERCLA.
All such notices shall describe in reasonable detail the nature of the claim,
investigation, condition, occurrence or removal or remedial action and the
Borrower's or such Subsidiary's
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response thereto. In addition, the Borrower will provide the Lenders with copies
of all material communications with any government or governmental agency and
all material communications with any Person relating to any Environmental Claim
of which notice is required to be given pursuant to this Section 8.01(i), and
such detailed reports of any such Environmental Claim as to which notice is
required, as may reasonably be requested by the Administrative Agent or the
Lenders.
(j) Notice of Commitment Reductions and Mandatory Repayments. On or prior
to the date of any reduction to the Total Commitment or any mandatory repayment
of outstanding Term Loans pursuant to any of Sections 4.02(f) through (j),
inclusive, the Borrower shall provide written notice of the amount of the
respective reduction or repayment, as the case may be, the calculation thereof
(in reasonable detail) and the event to which the respective reduction or
repayment relates.
(k) Annual Meetings with Lenders. At the request of the Administrative
Agent, the Borrower shall within 120 days after the close of each fiscal year of
the Borrower hold a meeting at a time and place selected by the Borrower and
acceptable to the Administrative Agent with all of the Lenders at which meeting
shall be reviewed the financial results of the previous fiscal year and the
financial condition of the Borrower and the budgets presented for the current
fiscal year of the Borrower and its Subsidiaries.
(l) Other Information. From time to time, such other information or
documents (financial or otherwise) with respect to the Borrower or its
Subsidiaries as any Lender may reasonably request in writing; provided that such
written request shall be delivered by any such Lender to the Administrative
Agent and such other information or documents shall be delivered by the Borrower
to the Administrative Agent who shall promptly deliver same to the Lender making
such written request.
8.02 Books, Records and Inspections. The Borrower will, and will cause each
of its Subsidiaries to, keep proper books of record and account in which full,
true and correct entries in material conformity with generally accepted
accounting principles in the United States and all requirements of law shall be
made of all dealings and transactions in relation to its business and
activities. The Borrower will, and will cause each of its Subsidiaries to,
permit officers and designated representatives of the Administrative Agent or
any Lender to visit and inspect, during regular business hours, upon reasonable
advance notice and under guidance of officers of the Borrower or such
Subsidiary, any of the properties of the Borrower or such Subsidiary, and to
examine the books of account of the Borrower or such Subsidiary and discuss the
affairs, finances and accounts of the Borrower or such Subsidiary with, and be
advised as to the same by, its and their officers, all at such reasonable times
and intervals and to such reasonable extent as the Administrative Agent or such
Lender may request.
8.03 Maintenance of Property; Insurance. (a) Schedule IV sets forth a true
and complete listing of all insurance maintained by the Borrower and its
Subsidiaries as of the Effective Date. The Borrower will, and will cause each of
its Subsidiaries to, (i) keep all property necessary in its business in good
working order and condition (ordinary wear and tear excepted), (ii) maintain
insurance on all its property in at least such amounts and against at least such
risks as is consistent and in accordance with industry practice and (iii)
furnish to each
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Lender, upon written request, full information as to the insurance carried. In
addition to the requirements of the immediately preceding sentence, the Borrower
will at all times cause the liability and hazard insurance of the types
described in Schedule IV to be maintained (with the same scope of coverage as
that described in Schedule IV) at levels which are at least as great as the
respective amount described opposite the respective type of insurance on
Schedule IV under the column headed "Minimum Amount Required to be Maintained".
Notwithstanding the foregoing, if such liability and hazard insurance ceases to
be available or is no longer available on commercially reasonable terms, the
Borrower may, with the consent of the Administrative Agent (not to be
unreasonably withheld), cease to maintain such insurance or maintain such
insurance at levels that are commercially reasonable.
(b) All policies (including Mortgage Policies) or certificates (or
certified copies thereof) with respect to such insurance (i) shall be endorsed
to the Collateral Agent's satisfaction for the benefit of the Collateral Agent
(including, without limitation, by naming the Collateral Agent as loss payee or
as an additional insured), (ii) shall state that such insurance policies shall
not be canceled without 30 days' prior written notice thereof by the respective
insurer to the Collateral Agent, (iii) shall provide that the respective
insurers irrevocably waive any and all rights of subrogation with respect to the
Collateral Agent and the Secured Creditors, (iv) shall contain the standard
non-contributory mortgagee clause endorsement in favor of the Collateral Agent
with respect to hazard insurance coverage, and (v) shall, except in the case of
public liability insurance, business interruption insurance and workers'
compensation insurance, provide that any losses shall be payable notwithstanding
(A) any act or neglect of the Borrower or any of its Subsidiaries, (B) the
occupation or use of the properties for purposes more hazardous than those
permitted by the terms of the respective policy if such coverage is obtainable
at commercially reasonable rates and is of the kind from time to time
customarily insured against by Persons owning or using similar property and in
such amounts as are customary, (C) any foreclosure or other proceeding relating
to the insured properties if such coverage is available at commercially
reasonable rates or (D) any change in the title to or ownership or possession of
the insured properties if such coverage is available at commercially reasonable
rates.
(c) If the Borrower or any of its Subsidiaries shall fail to maintain all
insurance in accordance with this Section 8.03, or if the Borrower or any of its
Subsidiaries shall fail to so endorse and deposit all policies or certificates
with respect thereto, the Administrative Agent and/or the Collateral Agent shall
have the right (but shall be under no obligation) to procure such insurance and
the Borrower agrees to reimburse the Administrative Agent or the Collateral
Agent as the case may be, for all costs and expenses of procuring such
insurance.
8.04 Corporate Franchises. The Borrower will, and will cause each of its
Subsidiaries to, do or cause to be done, all things necessary to preserve and
keep in full force and effect its existence and its material rights, franchises,
licenses and patents; provided, however, that nothing in this Section 8.04 shall
prevent (i) sales of assets (including, without limitation, capital stock of, or
other equity interests in, Subsidiaries of the Borrower) by the Borrower or any
of its Subsidiaries in accordance with Section 9.02, (ii) the withdrawal by the
Borrower or any of its Subsidiaries of their qualification as a foreign
corporation or of their license under any Gaming Regulations in any jurisdiction
where such withdrawal could not reasonably be expected
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to have a Material Adverse Effect or (iii) mergers or consolidations or
liquidations permitted under Section 9.02.
8.05 Compliance with Statutes, etc. The Borrower will, and will cause each
of its Subsidiaries to, comply with all applicable statutes, regulations and
orders of, and all applicable restrictions imposed by, all governmental bodies,
domestic or foreign, in respect of the conduct of its business and the ownership
of its property, except such noncompliances as could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.
8.06 ERISA. To the extent that Borrower, any Subsidiary or any ERISA
Affiliate sponsors, contributes to or maintains a Plan or has any actual or
contingent liability under a Plan, as soon as possible and, in any event, within
ten days after the Borrower or any of its Subsidiaries or any ERISA Affiliate
knows or has reason to know of the occurrence of any of the following, the
Borrower will deliver to each of the Lenders a certificate of an Authorized
Officer of the Borrower setting forth the full details as to such occurrence and
the action, if any, that the Borrower, such Subsidiary or such ERISA Affiliate
is required or proposes to take, together with any notices then required or
proposed to be given to or filed with or by the Borrower, such Subsidiary, the
Plan administrator or such ERISA Affiliate to or with the PBGC or any other
government agency, or a Plan participant and any material notices received by
such Borrower, such Subsidiary or ERISA Affiliate from the PBGC or any other
government agency, or a Plan participant with respect thereto: that a Reportable
Event has occurred (except to the extent that the Borrower has previously
delivered to the Lenders a certificate and notices (if any) concerning such
event pursuant to the next clause hereof); that a contributing sponsor (as
defined in Section 4001(a)(13) of ERISA) of a Plan subject to Title IV of ERISA
is subject to the advance reporting requirement of PBGC Regulation Section
4043.61 (without regard to subparagraph (b)(1) thereof), and an event described
in subsection .62, .63, .64, .65, .66, .67 or .68 of PBGC Regulation Section
4043 is reasonably expected to occur with respect to such Plan within the
following 30 days; that an accumulated funding deficiency, within the meaning of
Section 412 of the Code or Section 302 of ERISA, has been incurred or an
application is in the reasonable opinion of the Borrower, likely to be or has
been made to the Secretary of the Treasury for a waiver or modification of the
minimum funding standard (including any required installment payments) or an
extension of any amortization period under Section 412 or Section 303 or 304 of
ERISA of the Code with respect to a Plan; that any contribution required to be
made with respect to a Plan has not been timely made; that a Plan has been or is
reasonably expected to be terminated, reorganized, partitioned or declared
insolvent under Title IV of ERISA; that a Plan has an Unfunded Current
Liability; that proceedings are in the reasonable opinion of the Borrower likely
to be or have been instituted or notice has been given to terminate or appoint a
trustee to administer a Plan which is subject to Title IV of ERISA; that a
proceeding has been instituted pursuant to Section 515 of ERISA to collect a
delinquent contribution to a Plan; that the Borrower, any of its Subsidiaries or
any ERISA Affiliate will or is reasonably expected to incur any material
liability (including any indirect, contingent or secondary liability) to or on
account of the termination of or withdrawal from a Plan under Section 4062,
4063, 4064, 4069, 4201, 4204 or 4212 of ERISA under Section 401(a)(29), 4971,
4975 or 4980 of the Code or Section 409 or 502(i) or 502(l) of ERISA; or, with
respect to a group health plan (as defined in Section 607(1) of ERISA or Section
4980B(g)(2) of the Code) under section 4980B of the Code; or that the Borrower
or any of its Subsidiaries may incur any material liability pursuant to any
employee welfare benefit plan (as defined in Section 3(1) of ERISA) that
provides benefits to
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retired employees or other former employees (other than as required by Section
601 of ERISA or benefits the full cost of which is borne by the employee or
former employee) or any Plan. The Borrower will deliver to each of the Lenders
copies of any records, documents or other information that must be furnished to
the PBGC with respect to any Plan pursuant to Section 4010 of ERISA. The
Borrower will also deliver to each of the Lenders a complete copy of the annual
report (Form 5500 series) of each Plan (including, to the extent required, the
related financial and actuarial statements and opinions and other supporting
statements, certifications, schedules and information) required to be filed with
the annual report. In addition to any certificates or notices delivered to the
Lenders pursuant to the first sentence hereof, copies of annual reports and any
records, documents or other information required to be furnished to the PBGC or
any other government agency, and any material notices received by the Borrower
or any of its Subsidiaries or any ERISA Affiliate with respect to any Plan shall
be delivered to the Lenders no later than ten days after the date such annual
report has been filed or such records, documents or other information required
to be furnished to the PBGC or any other government agency or such material
notice has been received by the Borrower, the respective Subsidiary or the ERISA
Affiliate, as applicable.
8.07 End of Fiscal Years; Fiscal Quarters. The Borrower shall cause (i)
each of its fiscal years to end on December 31, and (ii) each of its fiscal
quarters to end on March 31, June 30 and September 30.
8.08 Performance of Obligations. The Borrower will, and will cause each of
its Subsidiaries to, perform all of their obligations under the terms of each
mortgage, indenture, security agreement and other debt instrument by which it is
bound, except such non-performances as could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.
8.09 Payment of Taxes. The Borrower will pay and discharge or cause to be
paid and discharged, and will cause each of its Subsidiaries to pay and
discharge, all taxes, assessments and governmental charges or levies imposed
upon it or upon its income or profits, or upon any properties belonging to it,
in each case on a timely basis, and all lawful claims of governmental
authorities which, if unpaid, might become a lien or charge upon any properties
of the Borrower or any of its Subsidiaries; provided that neither of the
Borrower nor any of its Subsidiaries shall be required to pay any such tax,
assessment, charge, levy or claim which is being contested in good faith and by
proper proceedings if it has maintained adequate reserves with respect thereto
in accordance with GAAP.
8.10 Intellectual Property Rights. The Borrower shall, and shall cause each
of its Subsidiaries to, maintain in full force and effect all material
Intellectual Property rights necessary or appropriate to the business of the
Credit Parties and take no action (including, without limitation, the licensing
of Intellectual Property), or fail to take an action, as the case may be, in
connection with such Intellectual Property rights which could reasonably be
expected to result in a Material Adverse Effect. The Borrower shall, and shall
cause each of its Subsidiaries to, use commercially reasonable efforts to
prosecute all material pending applications filed in connection with perfecting
or seeking to perfect the Intellectual Property rights and take all other
reasonable actions necessary for the protection and maintenance of the material
Intellectual
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Property rights necessary or appropriate to the business of the Credit Parties
at all times from and after the Initial Borrowing Date.
8.11 Additional Security; Further Assurances. The Borrower will, and will
cause each of its Subsidiaries to, grant to the Collateral Agent security
interests and mortgages (an "Additional Mortgage") in such Real Property of the
Borrower or any of its Subsidiaries as are not covered by the original Mortgages
to the extent acquired after the Initial Borrowing Date (including to the extent
acquired through a Permitted Acquisition) and having a fair market value in
excess of $1,000,000 (as determined in good faith by the Borrower), or as may
reasonably be requested from time to time by the Administrative Agent or the
Required Lenders (each such Real Property, an "Additional Mortgaged Property").
(b) The Borrower will, and will cause each of its Subsidiaries to, grant to
the Collateral Agent security interests and mortgages (an "Additional Ship
Mortgage") in such ship, barge or other vessel of the Borrower or any of its
Subsidiaries as are not covered by the original Ship Mortgages to the extent
acquired after the Initial Borrowing Date, and as may reasonably be requested
from time to time by the Administrative Agent or the Required Lenders (each such
Ship Property, an "Additional Ship Mortgaged Property").
(c) In connection with the acquisition of the capital stock of a Person
that becomes a Subsidiary of the Borrower or the formation of a new Subsidiary
of the Borrower, the Borrower shall pledge or cause to be pledged all capital
stock of any such Person so acquired which is owned by the Borrower or any
Subsidiary Guarantor pursuant to the Pledge Agreement and cause such Person to
enter into a guaranty substantially similar to the Subsidiary Guaranty and
additional security documents substantially similar to the Security Documents
(to the extent applicable), all as otherwise set forth in this Section 8.11,
provided that for so long as such Subsidiary does not constitute a Material
Subsidiary the Borrower shall not be required to pledge, or cause to be pledged,
the capital stock of any Subsidiary acquired or created after the Initial
Borrowing Date if such pledge is prohibited by applicable Gaming Regulations.
(d) The Borrower will cause each Subsidiary acquired established or created
after the Initial Borrowing Date to grant to the Collateral Agent a first
priority Lien, subject to Permitted Liens, on all personal property (tangible
and intangible) of such Subsidiary upon terms substantially similar to those set
forth in the Security Documents (including, without limitation, the Pledge
Agreement and the Security Agreement) as appropriate, provided that for so long
as such Subsidiary does not constitute a Material Subsidiary, such Subsidiary
shall not be required to be a Subsidiary Guarantor or grant Liens pursuant to
the Security Documents to the extent any such action is prohibited by applicable
Gaming Regulations.
(e) The Borrower will, and will cause each of its Subsidiaries to, at the
expense of the Borrower, make, execute, endorse, acknowledge, file and/ or
deliver to the Collateral Agent from time to time such vouchers, invoices,
schedules, confirmatory assignments, conveyances, financing statements, transfer
endorsements, powers of attorney, certificates, real property surveys, reports
and other assurances or instruments and take such further steps relating to the
Collateral covered by any of the Security Documents as the Collateral Agent may
reasonably require pursuant to this Section 8.11. Furthermore, the Borrower
shall cause to be delivered to the Collateral Agent such opinions of counsel,
title insurance and other related documents as may
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be reasonably requested by the Collateral Agent to assure itself that this
Section 8.11 has been complied with.
(f) The security interests required to be granted pursuant to this Section
8.11 shall be granted pursuant to security documentation which shall be
substantially similar to the Security Documents already executed and delivered
by the Borrower or its Subsidiaries, as applicable and otherwise reasonably
satisfactory in form and substance to the Administrative Agent and shall
constitute valid and enforceable perfected security interests prior to the
rights of all third Persons and subject to no other Liens except such Liens and
priority as are permitted by Section 9.01. The Additional Security Documents and
other instruments related thereto shall be duly recorded or filed in such manner
and in such places and at such times as are required by law to establish,
perfect, preserve and protect the Liens, in favor of the Collateral Agent for
the benefit of the respective Secured Creditors, required to be granted pursuant
to the Additional Security Documents and all taxes, fees and other charges
payable in connection therewith shall be paid in full by the Borrower. At the
time of the execution and delivery of the Additional Security Documents, the
Borrower shall cause to be delivered to the Collateral Agent such opinions of
counsel, Mortgage Policies, title surveys, real estate appraisals and other
related documents as may be reasonably requested by the Administrative Agent or
the Required Lenders to assure themselves that this Section 8.11 has been
complied with.
(g) The Borrower agrees that each action required above by Section 8.11(a),
(b) and (e) shall be completed as soon as possible, but in no event later than
60 days after such action is requested to be taken by the Administrative Agent
or the Required Lenders. The Borrower further agrees that each action required
by Sections 8.11(c) and (d) shall be completed within 10 days of the creation or
acquisition of a new Subsidiary (or within 10 days of the date a Subsidiary
first becomes a Material Subsidiary, as the case may be).
8.12 Permitted Acquisitions. (a) Subject to the provisions of this Section
8.12 and the requirements contained in the definition of Permitted Acquisition,
the Borrower and any of its Wholly-Owned Domestic Subsidiaries may from time to
time effect Permitted Acquisitions, so long as (in each case except to the
extent the Required Lenders otherwise specifically agree in writing in the case
of a specific Permitted Acquisition):
(i) no Default or Event of Default shall be in existence at the time
of the consummation of the proposed Permitted Acquisition or immediately
after giving effect thereto;
(ii) the Borrower shall have given the Administrative Agent and the
Lenders at least ten Business Days' prior written notice of any Permitted
Acquisition and shall have given the Lenders such other information related
to the Person or business, division or product line being acquired and the
Permitted Acquisition as any Lenders shall reasonably request, including,
without limitation, due diligence materials, organizational documents, good
standing certificates, governmental approvals and consents as the Required
Lenders shall reasonably request;
(iii) calculations are made by the Borrower of compliance with the
covenants contained in Sections 9.08, 9.09, 9.10, 9.11 and 9.12, on a Pro
Forma Basis as if the
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respective Permitted Acquisition (as well as all other Permitted
Acquisitions theretofore consummated) had occurred on the first day of the
relevant calculation period, and such recalculations shall show that such
financial covenants would have been complied with if the Permitted
Acquisition had occurred on the first day of such calculation period;
(iv) the Borrower in good faith believes, based on calculations made
by the Borrower, on a Pro Forma Basis that the financial covenants
contained in Sections 9.08 through 9.12, inclusive, will continue to be met
following the date of the consummation of the respective Permitted
Acquisition;
(v) the Maximum Permitted Consideration payable in connection with the
proposed Permitted Acquisition, when combined with the aggregate Maximum
Permitted Consideration paid in connection with all other Permitted
Acquisitions consummated after the Initial Borrowing Date and on or prior
to the date of the consummation of the proposed Permitted Acquisition does
not exceed $25,000,000;
(vi) all representations and warranties contained herein and in the
other Credit Documents (other than those excepted by the Administrative
Agent with respect to the Permitted Acquisition) shall be true and correct
in all material respects with the same effect as though such
representations and warranties had been made on and as of the date of such
Permitted Acquisition (both before and after giving effect thereto), unless
stated to relate to a specific earlier date, in which case such
representations and warranties shall be true and correct in all material
respects as of such earlier date;
(vii) the Borrower provides to the Administrative Agent and the
Lenders as soon as available but not later than 10 Business Days after the
execution thereof, a copy of any executed purchase agreement or similar
agreement with respect to such Permitted Acquisition;
(viii) after giving effect to such Permitted Acquisition and the
payment of all post-closing purchase price adjustments required (in the
good faith determination of the Borrower) in connection with such Permitted
Acquisition (and all other Permitted Acquisitions for which such purchase
price adjustments may be required to be made) and all Capital Expenditures
(and the financing thereof) reasonably anticipated by the Borrower to be
made in the business acquired pursuant to such Permitted Acquisition within
the 180-day period (such period for any Permitted Acquisition, a
"Post-Closing Period") following such Permitted Acquisition (and in the
businesses acquired pursuant to all other Permitted Acquisitions with
Post-Closing Periods ended during the Post-Closing Period of such Permitted
Acquisition), the Total Unutilized Revolving Loan Commitment shall equal or
exceed $15,000,000;
(ix) the Administrative Agent shall be satisfied in its sole
discretion that the proposed Permitted Acquisition could not reasonably be
expected to result in a material increase in tax (other than taxes on
earnings generated by the relevant Permitted Acquisition), ERISA,
environmental or other contingent liabilities with respect to the Borrower
or any of its Subsidiaries; and
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(x) the Borrower shall have delivered to the Administrative Agent an
officer's certificate executed by an Authorized Officer of the Borrower,
certifying to the best of his knowledge, compliance with the requirements
of preceding clauses (i) through (ix), inclusive, containing the
calculations required by the preceding clauses (iii), (iv), (v) and (viii).
(b) At the time of each Permitted Acquisition involving the creation or
acquisition of a Subsidiary, or the acquisition of capital stock or other equity
interest of any Person, the capital stock or other equity interests thereof
created or acquired in connection with such Permitted Acquisition shall be
pledged for the benefit of the Secured Creditors pursuant to the Pledge
Agreement in accordance with the requirements of Sections 8.11.
(c) The Borrower shall cause each Subsidiary which is formed to effect, or
is acquired pursuant to, a Permitted Acquisition to comply with, and to execute
and deliver, all of the documentation required by, Sections 8.11 to the
satisfaction of the Administrative Agent.
(d) The consummation of each Permitted Acquisition shall be deemed to be a
representation and warranty by the Borrower that the certifications by the
Borrower (or by one or more of its authorized officers) pursuant to Section
8.12(a) are true and correct and that all conditions thereto have been satisfied
and that same is permitted in accordance with the terms of this Agreement, which
representation and warranty shall be deemed to be a representation and warranty
for all purposes hereunder, including, without limitation, Sections 6 and 10.
8.13 Compliance with Environmental Laws. (a) (i) The Borrower will comply,
and will use its best efforts to cause each of its Subsidiaries to comply, with
all Environmental Laws applicable to the ownership or use of its Real Property
now or hereafter owned or operated by the Borrower or any of its Subsidiaries,
will promptly pay or cause to be paid all costs and expenses incurred in
connection with such compliance, and will keep or cause to be kept all such Real
Property free and clear of any Liens imposed pursuant to such Environmental Laws
and (ii) neither the Borrower, nor any of its Subsidiaries will generate, use,
treat, store, release or dispose of, or permit the generation, use, treatment,
storage, release or disposal of Hazardous Materials on any Real Property now or
hereafter owned or operated by the Borrower or any of its Subsidiaries, or
transport or permit the transportation of Hazardous Materials to or from any
such Real Property, except to the extent that the failure to comply with the
requirements specified in clause (i) or (ii) above, either individually or in
the aggregate, could not reasonably be expected to result in liability under
Environmental Laws that could have a Material Adverse Effect. If required to do
so under any applicable legally binding directive or order of any governmental
agency, the Borrower agrees to undertake, and cause each of its Subsidiaries to
undertake, to the extent required under applicable Environmental Laws, any
cleanup, removal, remedial or other action necessary to remove and clean up any
Hazardous Materials from any Real Property owned or operated by the Borrower or
any of its Subsidiaries in accordance with the requirements of all applicable
Environmental Laws and in accordance with such legally binding orders and
directives of all governmental authorities, except to the extent that (x) the
Borrower or such Subsidiary is contesting such order or directive in good faith
and by appropriate proceedings and for which adequate reserves have been
established to the extent required by generally accepted accounting principles
or (y) the failure to take any such action could not reasonably be expected to
have a Material Adverse Effect.
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(b) At the written request of the Administrative Agent or the Required
Lenders, at any time and from time to time as is reasonable after (i) the
Obligations have become due and payable pursuant to Section 10 or (ii) the
Lenders receive notice under Section 8.01(i) for any event for which notice is
required to be delivered with respect to conditions at any Real Property, the
Borrower and its Subsidiaries will provide, at their sole cost and expense, an
environmental site assessment report of reasonable scope and expense concerning
any relevant Real Property now or hereafter owned or operated by the Borrower or
any of its Subsidiaries, prepared by an environmental consulting firm approved
by the Administrative Agent in its reasonable discretion, indicating the
presence or absence of Hazardous Materials and the potential cost of any removal
or remedial action in connection with any Hazardous Materials on such Real
Property. If the Borrower and any of its Subsidiaries fail to provide the same
within 45 days after such request was made, the Administrative Agent may order
the same, and the Borrower and its Subsidiaries, to the extent the Borrower and
any of its Subsidiaries have the authority to do so, shall grant and hereby
grants, to the Administrative Agent and the Lenders and their Administrative
Agents, access to such Real Property and specifically grants the Administrative
Agent and the Lenders an irrevocable non-exclusive license, subject to the
rights of tenants, to undertake such an assessment, all at the Borrower's and
its Subsidiary's expense.
8.14 Minimum Maintenance Capital Expenditures. The Borrower and its
Subsidiaries will make Maintenance Capital Expenditures during each period
commencing on the Initial Borrowing Date and ending on a date set forth below in
an aggregate amount equal to no less than the amount set forth applicable to the
relevant period below:
Period Amount
------ ------
Initial Borrowing Date to and
including the last day of the
Fiscal Year ending December 31, $13,000,000
2001
Initial Borrowing Date to and
including the last day of the
Fiscal Year ending December 31, $28,000,000
2002
Initial Borrowing Date to
and including the last day
of the Fiscal Year ending $43,000,000
December 31, 2003
Initial Borrowing Date to and
including the last day of the
Fiscal Year ending December 31, $58,000,000
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Period Amount
------ ------
2004
Initial Borrowing Date to and
including the last day of the
Fiscal Year ending December 31, $73,000,000
2005
Initial Borrowing Date to and
including the last day of the
Fiscal Year ending December 31, $88,000,000
2006
Initial Borrowing Date to and
including the last day of the
Fiscal Year ending December 31, $103,000,000
2007
SECTION 9. Negative Covenants. The Borrower covenants and agrees that on
and after the Effective Date and until the Total Commitment and all Letters of
Credit have terminated and the Loans, Notes and Unpaid Drawings, together with
interest, Fees and all other Obligations incurred hereunder and thereunder, are
paid in full:
9.01 Liens. The Borrower will not, and will not permit any of its
Subsidiaries to, create, incur, assume or suffer to exist any Lien upon or with
respect to any property or assets (real or personal, tangible or intangible) of
the Borrower or any of its Subsidiaries, whether now owned or hereafter
acquired, or sell any such property or assets subject to an understanding or
agreement, contingent or otherwise, to repurchase such property or assets
(including sales of accounts receivable with recourse to the Borrower or any of
its Subsidiaries), or assign any right to receive income or permit the filing of
any financing statement under the UCC or any other similar notice of Lien under
any similar recording or notice statute; provided that the provisions of this
Section 9.01 shall not prevent the creation, incurrence, assumption or existence
of the following (Liens described below are herein referred to as "Permitted
Liens"):
(i) inchoate Liens for taxes, assessments or governmental charges or
levies not yet due and payable or Liens for taxes, assessments or
governmental charges or levies being contested in good faith and by
appropriate proceedings for which adequate reserves have been established
in accordance with GAAP or Liens for property taxes on property which is to
be abandoned or for which the sole recourse for such tax, assessment or
governmental charge or levy is to such property;
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(ii) Liens in respect of property or assets of the Borrower or any of
its Subsidiaries imposed by law, which were incurred in the ordinary course
of business and do not secure Indebtedness for borrowed money, such as
carriers', warehousemen's, materialmen's and mechanics' liens and other
similar Liens arising in the ordinary course of business, and (x) which do
not in the aggregate materially detract from the value of the Borrower's or
such Subsidiary's property or assets or materially impair the use thereof
in the operation of the business of the Borrower or such Subsidiary or (y)
which are being contested in good faith by appropriate proceedings, which
proceedings have the effect of preventing the forfeiture or sale of the
property or assets subject to any such Lien;
(iii) Liens in existence on the Effective Date which are listed, and
the property subject thereto described, in Schedule V, but only to the
respective date, if any, set forth in such Schedule V for the removal and
termination of any such Liens, plus renewals, replacements and extensions
of such Liens to the extent set forth on Schedule V, provided that (x) the
aggregate principal amount of the Indebtedness, if any, secured by such
Liens does not increase from that amount outstanding at the time of any
such renewal, replacement or extension and (y) any such renewal,
replacement or extension does not encumber any additional assets or
properties of the Borrower or any of its Subsidiaries;
(iv) Permitted Encumbrances;
(v) Liens created pursuant to the Security Documents;
(vi) licenses, leases or subleases granted to other Persons in the
ordinary course of business not materially interfering with the conduct of
the business of the Borrower and its Subsidiaries taken as a whole;
(vii) Liens upon assets subject to Capitalized Lease Obligations to
the extent permitted by Section 9.04(iv), provided that (x) such Liens only
serve to secure the payment of Indebtedness arising under such Capitalized
Lease Obligation (and replacements, extensions, refinancings and renewals
thereof) and (y) the Lien encumbering the assets giving rise to the
Capitalized Lease Obligation does not encumber any other asset of the
Borrower or any Subsidiary of the Borrower;
(viii) Liens placed upon equipment or machinery or other personal or
real property used in the ordinary course of business of the Borrower or
any of its Subsidiaries at the time of acquisition thereof by the Borrower
or any such Subsidiary or within 180 days thereafter to secure Indebtedness
incurred to pay all or a portion of the purchase price thereof and all
renewals, replacements, refinancings or extensions thereof, provided that
(x) Indebtedness secured by Liens permitted by this clause (viii) is
permitted by Section 9.04(iv) and (y) in all events, the Lien encumbering
the equipment or machinery so acquired does not encumber any other asset of
the Borrower or such Subsidiary;
(ix) easements, rights-of-way, restrictions (including zoning
restrictions), encroachments, protrusions and other similar charges or
encumbrances, and minor title deficiencies, in each case whether now or
hereafter in existence, not securing
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Indebtedness for borrowed money and not materially interfering with the
conduct of the business of the Borrower or any of its Subsidiaries;
(x) Liens arising from precautionary UCC financing statement filings
regarding operating leases entered into by the Borrower or any of its
Subsidiaries;
(xi) Liens arising out of the existence of judgments or awards not
constituting an Event of Default under Section 10.09, provided that no cash
or property in excess of $1,000,000 is deposited or delivered to secure the
respective judgment or award;
(xii) statutory, contractual and common law landlords' liens under
leases to which the Borrower or any of its Subsidiaries is a party;
(xiii) Liens (other than any Lien imposed by ERISA) incurred or
deposits made in the ordinary course of business in connection with
workers' compensation, unemployment insurance and other types of social
security, or to secure the performance of tenders, statutory obligations,
surety, stay, customs and appeal bonds, statutory bonds, bids, leases,
government contracts, trade contracts, performance and return of money
bonds and other similar obligations (exclusive of obligations for the
payment of borrowed money);
(xiv) any interest or title of a lessor, sublessor, licensee or
licensor under any lease or license agreement permitted by this Agreement;
(xv) Liens in favor of a banking institution arising as a matter of
law encumbering deposits (including the right of set-off) held by such
banking institutions incurred in the ordinary course of business and which
are within the general parameters customary in the banking industry;
(xvi) Liens arising in connection with transactions relating to
accounts receivable permitted under Section 9.02(xi); and
(xvii) Liens not otherwise permitted by this Section 9.01 so long as
neither (i) the aggregate outstanding principal amount of the obligations
secured thereby nor (ii) the aggregate fair market value (determined as of
the date such Lien is incurred) of the assets subject thereto exceeds (as
to the Borrower and all of its Subsidiaries) $1,000,000 at any one time.
9.02 Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrower
will not, and will not permit any of its Subsidiaries to, wind up, liquidate or
dissolve its affairs or enter into any transaction of merger or consolidation,
or convey, sell, lease or otherwise dispose of (or agree to do any of the
foregoing at any future time) all or any part of its property or assets, or
enter into any sale-leaseback transactions, or purchase or otherwise acquire (in
one or a series of related transactions) any part of the property or assets
(other than purchases or other acquisitions of inventory, materials, equipment
and intangible assets, including property acquired by way of trade or barter
agreements, in the ordinary course of business) of any Person, except that:
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(i) the Borrower and its Subsidiaries may make Capital Expenditures to
the extent not in violation of Section 9.07 or Section 8.14;
(ii) the Borrower and its Subsidiaries may sell, lease or otherwise
dispose of any assets, provided that (a) the aggregate Net Asset Sale
Proceeds of all assets subject to sales or other dispositions pursuant to
this clause (ii) shall not exceed $15,000,000 in any fiscal year of the
Borrower, (b) each such disposition is for fair market value, (c) at least
80% of the consideration received in respect thereof is cash (or Cash
Equivalents) (including assumption of Indebtedness) and (d) the Net Asset
Sale Proceeds of such sale, lease or other disposition are applied and/or
reinvested in accordance with Section 4.02;
(iii) the Borrower and its Subsidiaries may sell, lease, transfer,
convey or otherwise dispose of property, equipment or other assets that is
(a) obsolete or worn out or (b) no longer useful or necessary in the
operation of the business of such Person;
(iv) the Borrower and its Subsidiaries may make Investments to the
extent permitted by Section 9.05;
(v) the Borrower and its Subsidiaries may lease (as lessee) real or
personal property in the ordinary course of business (so long as such lease
does not create a Capitalized Lease Obligation not otherwise permitted by
Section 9.04(iv));
(vi) the Borrower and its Subsidiaries may make sales, conveyances,
dispositions of inventory in the ordinary course of business;
(vii) the Borrower and its Subsidiaries may license or sublicense
software, trademarks, patents and other Intellectual Property in the
ordinary course of business and which do not materially interfere with the
business of the Borrower or any Subsidiary;
(viii) the Borrower or any Subsidiary Guarantor may transfer assets to
or lease assets to or acquire or lease assets from the Borrower or any
other Subsidiary Guarantor (so long as the security interests granted
pursuant to the Security Documents is not, in the reasonable judgment of
the Collateral Agent, adversely affected thereby) or any Subsidiary of the
Borrower may be merged or consolidated with or into, or be liquidated into,
the Borrower or any Subsidiary Guarantor (so long as the Borrower or such
Subsidiary Guarantor is the surviving corporation);
(ix) the Borrower and its Subsidiaries may consummate the Acquisition;
(x) the Borrower and its Subsidiaries may consummate the Disposition
in accordance with the Disposition Documents, provided that the Net Asset
Sale Proceeds therefrom are applied in accordance with Section 4.02;
(xi) the Borrower and its Subsidiaries may sell or discount, in each
case without recourse (except for customary indemnities, representations,
warranties and agreements) and in the ordinary course of business, accounts
receivable arising in the ordinary course of business (x) which are overdue
or (y) which the Borrower may
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reasonably determine are difficult to collect, but only in connection with
the compromise or collection thereof (and not as part of any bulk sale or
financing of receivables);
(xii) the Borrower and its Subsidiaries may make Permitted
Acquisitions so long as such Permitted Acquisitions are effected in
accordance with Section 8.12; and
(xiii) the Borrower may liquidate and dissolve Subsidiaries which are
not Material Subsidiaries.
To the extent the Required Lenders waive the provisions of this Section 9.02
with respect to the sale of any Collateral, or any Collateral is sold as
permitted by this Section 9.02 (other than to another Credit Party or pursuant
to clause (vii) thereof), such Collateral shall be sold free and clear of the
Liens created by the Security Documents, and the Administrative Agent and
Collateral Agent shall be authorized to take any actions deemed appropriate in
order to effect the foregoing and shall, at the request of the Borrower, take
any such actions reasonably appropriate to effect the foregoing.
9.03 Dividends. The Borrower shall not, and shall not permit any of its
Subsidiaries to, authorize, declare or pay any Dividends with respect to the
Borrower or any of its Subsidiaries except that:
(i) any Subsidiary of the Borrower may pay Dividends to the Borrower
or any Wholly-Owned Subsidiary of the Borrower; and
(ii) so long as no Default or Event of Default exists or would result
therefrom, (A) the Borrower may pay amounts required for any repurchase,
redemption or other acquisition for value of any capital stock or options
to acquire capital stock of the Borrower held by any director, officer,
employee or consultant of the Borrower or any of its Subsidiaries pursuant
to any equity subscription agreement or stock option agreement or similar
agreement, or otherwise upon their death, disability, retirement or
termination of employment or departure from the board of directors of the
Borrower (provided that the aggregate price paid for all such repurchased,
redeemed, acquired or retired capital stock and options (other than
payments described in Section 9.03(ii)(B)) shall not exceed (x) $1,000,000
in any twelve-month period or (y) $5,000,000 in the aggregate from and
after the Effective Date), (B) the Borrower may pay amounts required under
the Missouri Stock Option Agreements in effect on the Initial Borrowing
Date if the trading market for Ameristar common stock is not sufficiently
liquid as provided therein and (C) any Non Wholly-Owned Subsidiary of the
Borrower may pay Dividends to its stockholders on a pro rata basis.
9.04 Indebtedness. The Borrower will not, and will not permit any of its
Subsidiaries to, contract, create, incur, assume or suffer to exist any
Indebtedness, except:
(i) Indebtedness incurred pursuant to this Agreement and the other
Credit Documents;
(ii) accrued expenses and current trade accounts payable incurred in
the ordinary course of business;
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(iii) Indebtedness under Interest Rate Protection or Other Hedging
Agreements to the extent entered into pursuant to Section 9.05;
(iv) Indebtedness of the Borrower and any Subsidiary of the Borrower
evidenced by Capitalized Lease Obligations to the extent permitted pursuant
to Section 9.07 and purchase money Indebtedness of the Borrower and the
Subsidiaries of the Borrower secured by Liens permitted under Section
9.01(viii) and any refinancings, renewals or extensions thereof; provided
that the aggregate amount of Indebtedness evidenced by Capitalized Lease
Obligations and the aggregate principal amount of such purchase money
Indebtedness and all such refinancings, renewals or extensions, outstanding
under this clause (iv) at any one time shall not exceed $15,000,000;
(v) Indebtedness of the Borrower, and subordinated guaranties thereof
by the Subsidiary Guarantors, constituting Subordinated Bridge Loans
incurred under the Senior Subordinated Financing Agreement and the other
Senior Subordinated Financing Documents in an aggregate principal amount
not to exceed at any one time outstanding the sum of (x) $300,000,000 plus
(y) the principal amount of additional loans or notes issued in payment of
accrued interest on the Subordinated Bridge Loans pursuant to the Senior
Subordinated Financing Agreement;
(vi) Indebtedness of the Borrower, and subordinated guaranties thereof
by the Subsidiary Guarantors, under the Permanent Senior Subordinated Notes
and the other Permanent Senior Subordinated Notes Documents;
(vii) the Retained Indebtedness and any refinancing, renewals or
extensions thereof (provided that the principal amount thereof is not
increased);
(viii) Contingent Obligations of the Borrower or any Subsidiary as a
guarantor of the lessee under any lease pursuant to which the Borrower or a
Subsidiary is the lessee so long as such lease is otherwise permitted
hereunder;
(ix) (x) the Borrower may make loans or advances to any of its
Subsidiaries that are Subsidiary Guarantors and (y) any Subsidiary of the
Borrower may make loans or advances to the Borrower or to another
Subsidiary of the Borrower that is a Subsidiary Guarantor so long as, in
each case (A) any such loan or advance shall be evidenced by an
Intercompany Note, which Intercompany Note shall be pledged to the
Collateral Agent for the benefit of the Secured Creditors in accordance
with, and to the extent provided by, the Pledge Agreement, and (B) in the
case of any intercompany loans or advances made to the Borrower, the
Intercompany Note shall contain subordination provisions contained in
Exhibit N;
(x) Indebtedness of the Borrower or its Subsidiaries in respect of
performance bonds, bid bonds, appeal bonds, surety bonds and similar
obligations and trade-related letters of credit, in each case provided in
the ordinary course of business, and any extension, renewal or refinancing
thereof to the extent not provided to secure the repayment of other
Indebtedness and to the extent that the amount of refinancing Indebtedness
is not greater than the amount of Indebtedness being refinanced; and
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(xi) Indebtedness arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument drawn against
sufficient funds in the ordinary course of business, provided that such
Indebtedness is extinguished within two Business Days of its incurrence;
and
(xii) additional Indebtedness of the Borrower and its Subsidiaries not
to exceed $5,000,000 in aggregate principal amount outstanding at any time.
9.05 Advances, Investments and Loans. The Borrower will not, and will not
permit any of its Subsidiaries to, directly or indirectly, lend money or credit
or make advances to any Person, or purchase or acquire any stock, obligations or
securities of, or any other interest in, or make any capital contribution to,
any other Person, or purchase or own a futures contract or otherwise become
liable for the purchase or sale of currency or other commodities at a future
date in the nature of a futures contract, or hold any cash or Cash Equivalents
(each of the foregoing an "Investment" and collectively, the "Investments"),
except that the following shall be permitted:
(i) the Borrower and its Subsidiaries may acquire and hold accounts
receivables owing to any of them, if created or acquired in the ordinary
course of business and payable or dischargeable in accordance with
customary terms;
(ii) the Borrower and its Subsidiaries may acquire and hold cash and
Cash Equivalents;
(iii) the Borrower and its Subsidiaries may make loans and advances in
the ordinary course of business to their respective officers, directors and
employees so long as the aggregate principal amount thereof at any time
outstanding (determined without regard to any write-downs or write-offs of
such loans and advances) shall not exceed $5,000,000;
(iv) the Borrower may enter into non-speculative Interest Rate
Protection or Other Hedging Agreements on terms satisfactory to the
Administrative Agent;
(v) the Borrower and any of its Subsidiaries may make Investments
necessary to form Subsidiaries of the Borrower under Section 9.17;
(vi) the Borrower and its Subsidiaries may acquire and own promissory
notes and other similar non-cash consideration received by the Borrower and
its Subsidiaries in connection with dispositions permitted by Section 9.02;
(vii) the Borrower and its Subsidiaries may acquire and own
investments (including debt obligations) received in connection with the
bankruptcy or reorganization of suppliers and customers and in settlement
of delinquent obligations of, and other disputes with, customers and
suppliers arising in the ordinary course of business;
(viii) the Borrower or any Subsidiary may make Investments in any
Subsidiary Guarantor;
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(ix) the Borrower and its Subsidiaries may make Permitted Acquisitions
permitted under Section 9.02(xii);
(x) the Borrower and its Subsidiaries may incur Indebtedness permitted
under Section 9.04; and
(xi) in addition to investments permitted by clauses (i) through (x)
of this Section 9.05, the Borrower and its Subsidiaries may make
Investments on any date in an amount not to exceed the Available Investment
Basket Amount on such date (after giving effect to all prior and
contemporaneous adjustments thereto, except as a result of such
Investment), it being understood and agreed that to the extent the Borrower
or one or more other Credit Parties (after the respective Investment has
been made) receives a cash return from the respective Investment of amounts
previously invested pursuant to this clause (xi) (which cash return may be
made by way of repayment of principal in the case of loans and cash equity
returns (whether as a distribution, dividend or redemption) in the case of
equity investments) or a return in the form of an asset distribution in
respect of the respective Investment of any asset previously contributed
pursuant to this clause (xi), then the amount of such cash return of
investment or the fair market value of such distributed asset (as
determined in good faith by senior management of the Borrower), as the case
may be, shall, upon the Administrative Agent's receipt of a certification
of the amount of the return of investment from an Authorized Officer, apply
to increase the Available Investment Basket Amount, provided that the
aggregate amount of increases to the Available Investment Basket Amount
described above in respect of any Investment shall not exceed the amount
previously invested pursuant to this clause (xi) in such Investment.
9.06 Transactions with Affiliates. The Borrower will not, and will not
permit any of its Subsidiaries to, enter into any transaction or series of
related transactions, whether or not in the ordinary course of business, with
any Affiliate of the Borrower or any of its Subsidiaries, other than in the
ordinary course of business and on terms and conditions substantially as
favorable to the Borrower or such Subsidiary as would reasonably be obtained by
the Borrower or such Subsidiary at that time in a comparable arm's-length
transaction with a Person other than an Affiliate, except that:
(i) Dividends may be paid to the extent provided in Section 9.03;
(ii) loans may be made and other transactions may be entered into by
the Borrower and its Subsidiaries to the extent permitted by Sections 9.02,
9.04 and 9.05;
(iii) customary fees, indemnities and reimbursements may be paid to
non-officer directors of the Borrower;
(iv) the Borrower and its Subsidiaries may enter into and make
payments pursuant to employment arrangements with executive officers and
senior management employees in the ordinary course of business;
(v) the Borrower and its Subsidiaries may make payments pursuant to
employment agreements existing on the Initial Borrowing Date;
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(vi) the Borrower and its Subsidiaries may make payments pursuant to
the Tax Sharing Agreements;
(vii) the Borrower and the Subsidiary Guarantors may enter into
transactions among themselves; and
(viii) the Borrower may issue its capital stock (other than
Disqualified Stock).
9.07 Maximum Capital Expenditures. (a) The Borrower will not, and will not
permit any of its Subsidiaries to, make any Capital Expenditures including
Maintenance Capital Expenditures required to be made pursuant to Section 8.14,
except that during any fiscal period set forth below (taken as one accounting
period) the Borrower and its Subsidiaries may make Capital Expenditures so long
as the aggregate amount of such Capital Expenditures including Maintenance
Capital Expenditures required to be made pursuant to Section 8.14 made under
this Section 9.07(a) does not exceed in any period set forth below the amount
set forth opposite such period below:
Period Amount
------ ------
Initial Borrowing Date to $26,000,000
and including the last day
of the Fiscal Year ending
December 31, 2001
Fiscal Year ending $28,500,000
December 31, 2002
Fiscal Year ending $29,500,000
December 31, 2003
Fiscal Year ending $30,500,000
December 31, 2004
Fiscal Year ending $31,500,000
December 31, 2005
Fiscal Year ending $32,500,000
December 31, 2006
Fiscal Year ending $33,500,000
December 31, 2007
(b) In addition to Capital Expenditures permitted to clause
(a) above, the Borrower and its Subsidiaries may make Capital Expenditures in
connection with (i) the Facilities Expansion provided that the aggregate amount
thereof shall not exceed $110,000,000, (ii) the construction of covered parking
at the Kansas City facility, provided that the aggregate amount thereof shall
not exceed $20,000,000, (iii) the renovation of the Council Bluffs Facility,
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provided that the aggregate amount thereof shall not exceed $8,000,000 and (iv)
the renovation of the Vicksburg Facility provided that the aggregate amount
thereof shall not exceed $9,500,000.
(c) In addition to the Capital Expenditures permitted pursuant to preceding
clauses (a) and (b) above, to the extent that the Capital Expenditures made by
the Borrower and its Subsidiaries in any period set forth in clause (a) above
are less than the amount permitted to be made in such period (without giving
effect to any additional amount available as a result of this clause (c), clause
(b) above or clause (d) below), up to 50% of the amount of such difference may
be carried forward and used to make Capital Expenditures in the succeeding
fiscal year of the Borrower.
(d) In addition to the Capital Expenditures permitted pursuant to preceding
clauses (a), (b) and (c), the Borrower and its Subsidiaries may make additional
Capital Expenditures consisting of (i) the reinvestment of Net Asset Sale
Proceeds of Asset Sales not required to be applied to prepay the Loans pursuant
to Section 4.02(A)(h) as a result of a Reinvestment Election and (ii) the
reinvestment of proceeds of Recovery Events not required to be applied to repay
the Loans pursuant to Section 4.02(A)(j).
9.08 Leverage Ratio. The Borrower will not permit the Leverage Ratio at any
time during a period set forth below to be greater than the ratio set forth
opposite such period below:
Period Ratio
------ -----
Fiscal Quarter ending 5.25:1.00
December 31, 2000
Fiscal Quarter ending 5.25:1.00
March 31, 2001
Fiscal Quarter ending 5.00:1.00
June 30, 2001
Fiscal Quarter ending 5.00:1.00
September 30, 2001
Fiscal Quarter ending 5.00:1.00
December 31, 2001
Fiscal Quarter ending 5.00:1.00
March 31, 2002
Fiscal Quarter ending 5.00:1.00
June 30, 2002
Fiscal Quarter ending 5.00:1.00
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September 30, 2002
Fiscal Quarter ending 5.00:1.00
December 31, 2002
Fiscal Quarter ending 4.75:1.00
March 31, 2003
Fiscal Quarter ending 4.75:1.00
June 30, 2003
Fiscal Quarter ending 4.50:1.00
September 30, 2003
Fiscal Quarter ending 4.25:1.00
December 31, 2003
Fiscal Quarter ending 4.25:1.00
March 31, 2004
Fiscal Quarter ending 4.00:1.00
June 30, 2004
Fiscal Quarter ending 4.00:1.00
September 30, 2004
Fiscal Quarter ending 3.75:1.00
December 31, 2004
Fiscal Quarter ending 3.75:1.00
March 31, 2005
Fiscal Quarter ending 3.50:1.00
June 30, 2005
Fiscal Quarter ending 3.50:1.00
September 30, 2005
Fiscal Quarter ending 3.50:1.00
December 31, 2005
Thereafter 3.50:1.00
9.09 Senior Leverage Ratio. The Borrower will not permit the Senior
Leverage Ratio at any time during a period set forth below to be greater than
the ratio set forth opposite such period below:
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Period Ratio
------ -----
Fiscal Quarter ending 3.25:1.00
December 31, 2000
Fiscal Quarter ending 3.25:1.00
March 31, 2001
Fiscal Quarter ending 3.00:1.00
June 30, 2001
Fiscal Quarter ending 3.00:1.00
September 30, 2001
Fiscal Quarter ending 3.00:1.00
December 31, 2001
Fiscal Quarter ending 3.00:1.00
March 31, 2002
Fiscal Quarter ending 3.00:1.00
June 30, 2002
Fiscal Quarter ending 3.00:1.00
September 30, 2002
Fiscal Quarter ending 3.00:1.00
December 31, 2002
Fiscal Quarter ending 2.75:1.00
March 31, 2003
Fiscal Quarter ending 2.75:1.00
June 30, 2003
Fiscal Quarter ending 2.50:1.00
September 30, 2003
Fiscal Quarter ending 2.25:1.00
December 31, 2003
Fiscal Quarter ending 2.25:1.00
March 31, 2004
Fiscal Quarter ending 2.00:1.00
June 30, 2004
Fiscal Quarter ending 2.00:1.00
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September 30, 2004
Fiscal Quarter ending 1.75:1.00
December 31, 2004
Fiscal Quarter ending 1.75:1.00
March 31, 2005
Fiscal Quarter ending 1.50:1.00
June 30, 2005
Fiscal Quarter ending 1.50:1.00
September 30, 2005
Fiscal Quarter ending 1.50:1.00
December 31, 2005
Thereafter 1.50:1.00
9.10 Consolidated Gross Fixed Charge Coverage Ratio. The Borrower will not
permit the Consolidated Gross Fixed Charge Coverage Ratio for any period of four
consecutive fiscal quarters, in each case taken as one accounting period, ended
on the last day of any fiscal quarter set forth below to be less than the ratio
set forth opposite such fiscal quarter below:
Fiscal Quarter Ratio
-------------- -----
Fiscal Quarter ending 1.50:1.00
December 31, 2000
Fiscal Quarter ending 1.50:1.00
March 31, 2001
Fiscal Quarter ending 1.50:1.00
June 30, 2001
Fiscal Quarter ending 1.50:1.00
September 30, 2001
Fiscal Quarter ending 1.50:1.00
December 31, 2001
Fiscal Quarter ending 1.50:1.00
March 31, 2002
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Fiscal Quarter ending 1.50:1.00
June 30, 2002
Fiscal Quarter ending 1.50:1.00
September 30, 2002
Fiscal Quarter ending 1.50:1.00
December 31, 2002
Fiscal Quarter ending 1.50:1.00
March 31, 2003
Fiscal Quarter ending 1.50:1.00
June 30, 2003
Fiscal Quarter ending 1.75:1.00
September 30, 2003
Fiscal Quarter ending 1.75:1.00
December 31, 2003
Fiscal Quarter ending 1.75:1.00
March 31, 2004
Fiscal Quarter ending 1.75:1.00
June 30, 2004
Fiscal Quarter ending 1.75:1.00
September 30, 2004
Fiscal Quarter ending 2.00:1.00
December 31, 2004
Fiscal Quarter ending 2.00:1.00
March 31, 2005
Fiscal Quarter ending 2.00:1.00
June 30, 2005
Fiscal Quarter ending 2.00:1.00
September 30, 2005
Fiscal Quarter ending 2.00:1.00
December 31, 2005
Thereafter 2.00:1.00
9.11 Consolidated Adjusted Fixed Charge Coverage Ratio. The Borrower will
not permit the Consolidated Adjusted Fixed Charge Coverage Ratio for any period
of four consecutive fiscal quarters, in each case taken as one accounting
period, ended on the last day of
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any fiscal quarter set forth below to be less than the ratio set forth opposite
such fiscal quarter below:
Fiscal Quarter Ratio
-------------- -----
Fiscal Quarter ending 1.50:1.00
December 31, 2000
Fiscal Quarter ending 1.50:1.00
March 31, 2001
Fiscal Quarter ending 1.50:1.00
June 30, 2001
Fiscal Quarter ending 1.50:1.00
September 30, 2001
Fiscal Quarter ending 1.50:1.00
December 31, 2001
Fiscal Quarter ending 1.50:1.00
March 31, 2002
Fiscal Quarter ending 1.50:1.00
June 30, 2002
Fiscal Quarter ending 1.50:1.00
September 30, 2002
Fiscal Quarter ending 1.50:1.00
December 31, 2002
Fiscal Quarter ending 1.50:1.00
March 31, 2003
Fiscal Quarter ending 1.50:1.00
June 30, 2003
Fiscal Quarter ending 1.50:1.00
September 30, 2003
Fiscal Quarter ending 1.50:1.00
December 31, 2003
Fiscal Quarter ending 1.50:1.00
March 31, 2004
Fiscal Quarter ending 1.50:1.00
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June 30, 2004
Fiscal Quarter ending 1.50:1.00
September 30, 2004
Fiscal Quarter ending 1.50:1.00
December 31, 2004
Fiscal Quarter ending 1.50:1.00
March 31, 2005
Fiscal Quarter ending 1.50:1.00
June 30, 2005
Fiscal Quarter ending 1.50:1.00
September 30, 2005
Fiscal Quarter ending 1.50:1.00
December 31, 2005
Thereafter 1.50:1.00
9.12 Minimum Consolidated Tangible Net Worth. The Borrower will not permit
Consolidated Tangible Net Worth at any time to be less than an amount equal to
the sum of (x) $23,000,000 plus (y) the sum of 50% of Consolidated Net Income,
if positive, for each prior fiscal year of the Borrower, if any, ending after
December 31, 2000 plus (z) the amount by which Consolidated Tangible Net Worth
is increased by the proceeds of any capital stock issued, or capital
contributions made, after the Initial Borrowing Date.
9.13 Limitation on Modifications of Certificate of Incorporation, By-Laws
and Certain Other Agreements; Limitations of Prepayments and Modifications of
Indebtedness; etc. The Borrower will not, and will not permit any of its
Subsidiaries to (i) in any manner adverse to the interests of the Lenders,
amend, modify or change its Certificate of Incorporation (except as contemplated
by the Shareholders' Agreements as in effect on the Effective Date) (including,
without limitation, by the filing or modification of any certificate of
designation) or By-Laws, other than any amendments, modifications or changes
which would not be reasonably likely to be materially adverse to the interest of
the Lenders, (ii) amend or modify, or permit the amendment or modification of,
any provision of any Senior Subordinated Financing Document, any Permanent
Senior Subordinated Notes Document or of any agreement (including, without
limitation, any purchase agreement, indenture, loan agreement or security
agreement) relating thereto or make any payment consistent with an amendment
thereof or change thereto, if the effect of such amendment or change is to
increase the interest rate or amount of interest required to be paid in cash on
the Bridge Subordinated Loans or the Permanent Senior Subordinated Notes, change
(to earlier dates) any dates upon which payments of principal or interest are
due thereon, change any event of default or condition to an event of default
with respect thereto (other than to eliminate or decrease the scope of any such
event of default or increase any grace
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period related thereto), change (to earlier dates or greater amounts) the
redemption, mandatory prepayment or defeasance provisions thereof, change the
subordination provisions of such Bridge Subordinated Loans or Permanent Senior
Subordinated Notes, as the case may be (or of any guaranty thereof), or change
any collateral therefor (other than to release such collateral), or if the
effect of such amendment or change, together with all other amendments or
changes made, is to increase materially the obligations of the obligor
thereunder or to confer any additional rights on the holders of such Bridge
Subordinated Loans or Permanent Senior Subordinated Notes, as the case may be
(or a trustee or other representative on their behalf), which could, in the
reasonable judgment of the Administrative Agent, reasonably be expected to be
materially adverse to any Credit Party or Lenders, and (iii) make (or give any
notice in respect thereof) any voluntary or optional payment or prepayment on or
redemption or acquisition for value (including, without limitation, by way of
depositing with the trustee with respect thereto monies or securities before due
for the purpose of paying when due) or exchange of, or any prepayment or
redemption as a result of any asset sale, change of control or similar event of,
any Permanent Senior Subordinated Notes or the Bridge Subordinated Loan,
provided that the Borrower may prepay the Bridge Subordinated Loan from the
proceeds of equity (other than Disqualified Stock) issued by the Borrower or the
Permanent Senior Subordinated Notes.
9.14 Limitation on Certain Restrictions on Subsidiaries. The Borrower will
not, and will not permit any of its Subsidiaries to, directly or indirectly,
create or otherwise cause or suffer to exist or become effective any encumbrance
or restriction on the ability of any such Subsidiary to (a) pay dividends or
make any other distributions on its capital stock or any other interest or
participation in its profits owned by Borrower or any Subsidiary of the
Borrower, or pay any Indebtedness owed to the Borrower or any Subsidiary of the
Borrower, (b) make loans or advances to the Borrower or any Subsidiary of the
Borrower or (c) transfer any of its properties or assets to the Borrower or any
Subsidiary of the Borrower, except for such encumbrances or restrictions
existing under or by reason of (i) applicable law, (ii) this Agreement, the
other Credit Documents and the Transaction Documents, (iii) customary provisions
restricting subletting or assignment of any lease governing a leasehold interest
of the Borrower or any Subsidiary of the Borrower, (iv) customary provisions
restricting assignment of any contract or licensing agreement entered into by
the Borrower or any Subsidiary of the Borrower in the ordinary course of
business, (v) the Senior Subordinated Financing Documents and on and after the
execution and delivery thereof, the Permanent Senior Subordinated Notes
Documents, (vi) purchase money obligations or Capital Lease Obligations (or
refinancings thereof that impose no more restrictive restrictions) for property
acquired in the ordinary course of business that impose restrictions of the
nature described in clause (c) above solely on the property so acquired, (vii)
Permitted Liens on assets securing Indebtedness permitted under Section 9.04,
and (viii) restrictions applicable to Indebtedness or capital stock of a Person
acquired by the Borrower or any Subsidiary as in effect at the time of
acquisition, except if such restriction was in incurred in connection with, or
in contemplation of such acquisition or such restriction applies to the
Borrower, any Subsidiary (other than the Person acquired) or the assets thereof
(other than the assets of the Person so acquired) or any after-acquired
property.
9.15 Limitation on Issuance of Capital Stock. (a) The Borrower shall not
issue any Disqualified Stock.
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(b) The Borrower will not permit any of its Subsidiaries to issue, any
capital stock or other equity interests (including by way of sales of treasury
stock) or any options or warrants to purchase, or securities convertible into,
capital stock, except (i) for transfers and replacements of then outstanding
shares of capital stock, (ii) for stock splits, stock dividends and similar
issuances which do not decrease the percentage ownership of the Borrower or any
of its Subsidiaries in any class of the capital stock of such Subsidiary, (iii)
to qualify directors to the extent required by applicable law, (iv) in
connection with the creation of Subsidiaries of the Borrower in compliance with
Section 9.17 and (v) to the Borrower or a Wholly-Owned Subsidiary.
9.16 Business. The Borrower will not, and will not permit any of its
Subsidiaries to, engage (directly or indirectly) in any business other than the
type of business in which the Borrower and its Subsidiaries are engaged on the
Effective Date and reasonable extensions thereof.
9.17 Limitations on Creation/Sale of Subsidiaries and Creation of Joint
Ventures. (a) The Borrower shall not establish, create or acquire any additional
Subsidiaries without the prior written consent of the Required Lenders; provided
that (A) the Borrower may establish or create one or more Wholly-Owned
Subsidiaries of the Borrower without such consent so long as, (i) 100% of the
capital stock of any such new Subsidiary is upon the creation, establishment or
acquisition of any such new Subsidiary pledged and delivered to the Collateral
Agent for the benefit of the Secured Creditors under the Pledge Agreement and
(ii) upon the creation or establishment of any such new Subsidiary, such
Subsidiary executes the Additional Security Documents and guaranty required to
be executed by it in accordance with Section 8.11 and (B) the Borrower may
establish or create one or more Non Wholly-Owned Subsidiaries of the Borrower
without such consent so long as (i) the Borrower shall own at least 90% of the
capital stock of any such new Non Wholly-Owned Subsidiary, (ii) capital stock
consisting of 100% of the equity interest of the Borrower in any such new Non
Wholly-Owned Subsidiary is upon the creation, establishment or acquisition of
any such new Non Wholly-Owned Subsidiary pledged and delivered to the Collateral
Agent for the benefit of the Secured Creditors under the Pledge Agreement and
(iii) upon the creation or establishment of any such new Non Wholly-Owned
Subsidiary, such Non Wholly-Owned Subsidiary executes the Additional Security
Documents and guaranty required to be executed by it in accordance with Section
8.11.
(b) The Borrower will not, and will not permit any of its Subsidiaries to,
enter into any Joint Venture except to the extent permitted by Section 9.05(xi).
(c) The Borrower will not, and will not permit any of its Subsidiaries to,
sell or otherwise dispose of any of the capital stock or other equity interests
of any of their respective Subsidiaries, provided that (x) the Borrower or any
of its Subsidiaries may sell or otherwise dispose of 100% of the capital stock
of a Subsidiary of such Person owned by the Borrower and its Subsidiaries so
long as such sale is permitted by Section 9.02 and the Net Asset Sale Proceeds
of such sale or other disposition are applied and/or reinvested in accordance
with Section 4.02 and (y) the Borrower may liquidate and dissolve Subsidiaries
which are not Material Subsidiaries.
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9.18 No Other Designated Senior Indebtedness. The Borrower will not, and
will not permit any Subsidiary to, create or permit the creation after the
Initial Borrowing Date of, any class of "Designated Senior Debt" as defined in
the Senior Subordinated Financing Documents or, on and after the execution and
delivery thereof, in any Permanent Senior Subordinated Notes Document other than
the Obligations.
SECTION 10. Events of Default. Upon the occurrence of any of the following
specified events (each an "Event of Default"):
10.01 Payments. The Borrower shall (i) default in the payment when due of
any principal of any Loan or any Note or (ii) default, and such default shall
continue unremedied for three or more Business Days, in the payment when due of
any Unpaid Drawings or interest on any Loan or Note, or any Fees or any other
amounts owing hereunder, thereunder or under any other Credit Document; or
10.02 Representations, etc. Any representation, warranty or statement made
by any Credit Party herein or in any other Credit Document or in any certificate
delivered pursuant hereto or thereto shall prove to be untrue in any material
respect on the date as of which made or deemed made; or
10.03 Covenants. The Borrower shall (i) default in the due performance or
observance by it of any term, covenant or agreement contained in Sections 7.08,
8.01(g)(i), 8.07, 8.14 or Section 9 or (ii) default in the due performance or
observance by it of any other term, covenant or agreement contained in this
Agreement (other than as described in Section 10.01, 10.02 or 10.03(i)), and
such default shall continue unremedied for a period of 30 days after written
notice to the Borrower by the Administrative Agent or any Lender; or
10.04 Default Under Other Agreements. The Borrower or any of its
Subsidiaries shall (i) default in any payment of any Indebtedness (other than
the Obligations) beyond the period of grace, if any, provided in the instrument
or agreement under which such Indebtedness was created or (ii) default in the
observance or performance of any agreement or condition relating to any
Indebtedness (other than the Obligations) or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other event shall
occur or condition exist, the effect of which default or other event or
condition is to cause, or to permit the holder or holders of such Indebtedness
(or a trustee or agent on behalf of such holder or holders) to cause (determined
without regard to whether any notice is required), any such Indebtedness to
become due or required to be repurchased prior to its stated maturity, provided
that (x) it shall not be a Default or Event of Default under this Section 10.04
unless the aggregate principal amount of all Indebtedness as described in
preceding clauses (i) through (ii), inclusive, is at least $5,000,000; or
10.05 Bankruptcy, etc. The Borrower or any of its Subsidiaries shall
commence a voluntary case concerning itself under Title 11 of the United States
Code entitled "Bankruptcy", as now or hereafter in effect, or any successor
thereto (the "Bankruptcy Code"); or an involuntary case is commenced against the
Borrower or any of its Subsidiaries and the petition is not controverted within
10 days, or is not dismissed within 60 days, after commencement of the case; or
a custodian (as defined in the Bankruptcy Code) is appointed for, or takes
charge of, all
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or substantially all of the property of the Borrower or any of its Subsidiaries,
or the Borrower or any of its Subsidiaries commences any other proceeding under
any reorganization, arrangement, adjustment of debt, relief of debtors,
dissolution, insolvency or liquidation or similar law of any jurisdiction
whether now or hereafter in effect relating to the Borrower or any of its
Subsidiaries, or there is commenced against the Borrower or any of its
Subsidiaries any such proceeding which remains undismissed for a period of 60
days, or the Borrower or any of its Subsidiaries is adjudicated insolvent or
bankrupt; or any order of relief or other order approving any such case or
proceeding is entered; or the Borrower or any of its Subsidiaries suffers any
appointment of any custodian or the like for it or any substantial part of its
property to continue undischarged or unstayed for a period of 60 days; or the
Borrower or any of its Subsidiaries makes a general assignment for the benefit
of creditors; or any corporate action is taken by the Borrower or any of its
Subsidiaries for the purpose of effecting any of the foregoing; or
10.06 ERISA. To the extent that Borrower, any Subsidiary or any ERISA
Affiliate sponsors, contributes to or maintains a Plan or has any actual or
contingent liability under a Plan at any time during the course of a loan under
this Agreement, (a) Any Plan shall fail to satisfy the minimum funding standard
required for any plan year or part thereof under Section 412 of the Code or
Section 302 of ERISA or a waiver of such standard or extension of any
amortization period is sought or granted under Section 412 of the Code or
Section 303 or 304 of ERISA, a Reportable Event shall have occurred, a
contributing sponsor (as defined in Section 4001(a)(13) of ERISA) of a Plan
subject to Title IV of ERISA shall be subject to the advance reporting
requirement of PBGC Regulation Section 4043.61 (without regard to subparagraph
(b)(1) thereof) and an event described in subsection .62, .63, .64, .65, .66,
.67 or .68 of PBGC Regulation Section 4043 shall be reasonably expected to occur
with respect to such Plan within the following 30 days, any Plan which is
subject to Title IV of ERISA shall have had or is reasonably likely to have a
trustee appointed to administer such Plan, any Plan which is subject to Title IV
of ERISA is, shall have been or is likely to be terminated or to be the subject
of termination proceedings under ERISA, any Plan shall have an Unfunded Current
Liability, a contribution required to be made with respect to a Plan has not
been timely made, the Borrower or any of its Subsidiaries or any ERISA Affiliate
has incurred or is reasonably likely to incur a liability to or on account of a
Plan under Section 409, 502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201, 4204
or 4212 of ERISA or Section 401(a)(29), 4971 or 4975 of the Code or on account
of a group health plan (as defined in Section 607(1) of ERISA or Section
4980B(g)(2) of the Code) under Section 4980B of the Code, or the Borrower or any
of its Subsidiaries has incurred or is reasonably likely to incur liabilities
pursuant to one or more employee welfare benefit plans (as defined in Section
3(1) of ERISA) which provide benefits to retired employees or other former
employees (other than as required by Section 601 of ERISA or benefits the full
cost of which are borne by the employee or former employee); (b) there shall
result from any such event or events the imposition of a lien, the granting of a
security interest, or a liability or a material risk of incurring a liability;
and (c) such lien, security interest or liability, individually and/or in the
aggregate has had or could reasonably be expected to have a Material Adverse
Effect; or
10.07 Security Documents. At any time after the execution and delivery
thereof, any of the Security Documents shall cease to be in full force and
effect, or shall cease in any material respect to give the Collateral Agent for
the benefit of the Secured Creditors the Liens, rights, powers and privileges
purported to be created thereby (including, without limitation, a
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perfected security interest in, and Lien on, all of the Collateral), in favor of
the Collateral Agent, superior to and prior to the rights of all third Persons
(except as permitted by Section 9.01), and subject to no other Liens (except as
permitted by Section 9.01), in each case other than release or termination in
accordance with the terms of the Security Documents, or any Credit Party shall
default in the due performance or observance of any term, covenant or agreement
on its part to be performed or observed pursuant to any of the Security
Documents and, other than in the case of any such default which adversely
affects the validity, perfection or priority of any Lien created thereby in any
material respect (each of which defaults shall constitute an Event of Default
without notice or lapse of time), such default shall continue unremedied for a
period of 30 days after written notice to the Borrower by the Administrative
Agent; or
10.08 Guaranty. Any Guaranty or any provision thereof shall cease to be in
full force or effect as to the relevant Guarantor or other party thereunder
(other than in accordance with the express terms thereof) or any Guarantor or
other party thereunder or Person acting by or on behalf of such Guarantor or
such party shall deny or disaffirm such Guarantor's or such party's obligations
under the relevant Guaranty, or any Guarantor or such party shall default in the
due performance or observance of any term, covenant or agreement on its part to
be performed or observed pursuant to any Guaranty; or
10.09 Judgments. One or more judgments or decrees shall be entered against
the Borrower or any of its Subsidiaries involving in the aggregate for the
Borrower and its Subsidiaries a liability (not paid or fully covered by a
reputable and solvent insurance company) and such judgments and decrees either
shall be final and non-appealable or shall not be vacated, discharged or stayed
or bonded pending appeal for any period of 60 consecutive days, and the
aggregate amount of all such judgments exceeds $1,000,000; or
10.10 Gaming Authority. Any Gaming Authority having jurisdiction over any
Material Gaming Facility shall determine that the Borrower or any of its
Subsidiaries that is required to be licensed, registered or qualified under the
Gaming Regulations does not qualify, or that the qualification, registration or
license of any of them with respect to any Material Gaming Facility should be
revoked, not renewed or suspended for more than 30 days, or any such Gaming
Authority shall have appointed a conservator, supervisor or trustee to oversee
any of the operations of any of them; or
10.11 Change of Control. A Change of Control shall occur;
then, and in any such event, and at any time thereafter, if any Event of Default
shall then be continuing, the Administrative Agent, upon the written request of
the Required Lenders, shall by written notice to the Borrower, take any or all
of the following actions, without prejudice to the rights of the Administrative
Agent, any Lender or the holder of any Note to enforce its claims against any
Credit Party (provided that, if an Event of Default specified in Section 10.05
shall occur with respect to the Borrower, the result which would occur upon the
giving of written notice by the Administrative Agent to the Borrower as
specified in clauses (i) and (ii) below shall occur automatically without the
giving of any such notice): (i) declare the Total Commitment terminated,
whereupon all Commitments of each Lender shall forthwith terminate immediately
and any Commitment Commission shall forthwith become due and payable without any
other notice of any kind; (ii) declare the principal of and any accrued interest
in respect of all Loans
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and the Notes and all Obligations owing hereunder and thereunder to be,
whereupon the same shall become, forthwith due and payable without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by
each Credit Party; (iii) terminate any Letter of Credit which may be terminated
in accordance with its terms; (iv) direct the Borrower to pay (and the Borrower
agrees that upon receipt of such notice, or upon the occurrence of an Event of
Default specified in Section 10.05 with respect to the Borrower, it will pay) to
the Collateral Agent at the Payment Office such additional amount of cash, to be
held as security by the Collateral Agent, as is equal to the aggregate Stated
Amount of all Letters of Credit issued for the account of the Borrower and then
outstanding; (v) enforce, as Collateral Agent, all of the Liens and security
interests created pursuant to the Security Documents (subject to compliance with
Gaming Regulations) and (vi) apply any cash collateral held pursuant to Section
4.02(A) in satisfaction of the Obligations.
SECTION 11. Definitions and Accounting Terms.
11.01 Defined Terms. As used in this Agreement, the following terms shall
have the following meanings (such meanings to be equally applicable to both the
singular and plural forms of the terms defined):
"A Term Loan" shall mean each Loan made pursuant to Section 1.01(a) and
each Incremental Term Loan made under the A Term Loan Tranche.
"A Term Loan Commitments" shall mean for each Lender the amount set forth
opposite such Lender's name in Schedule I hereto in the column entitled "A Term
Loan Commitment" as same may be (x) reduced from time to time pursuant to
Sections 3.03, 4.02(A) and/or 10 or (y) adjusted from time to time as a result
of assignments to or from such Lender pursuant to Section 1.13 or 13.04(b).
"A Term Reference Amount" shall have the meaning provided in Section
4.02(A)(b).
"A Term Loan Scheduled Repayments" shall have the meaning provided in
Section 4.02(A)(b).
"A Term Maturity Date" shall mean December 20, 2005.
"A Term Notes" shall have the meaning provided in Section 1.05(a).
"ACLVI" shall mean Ameristar Casino Las Vegas, Inc., a Nevada corporation.
"Acquired Business" shall mean each of Station Casino St. ▇▇▇▇▇▇▇ and
Station Casino Kansas City.
"Acquisition" shall mean the acquisition by the Borrower of the Gaming
Property comprising the ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ businesses of Station.
"Acquisition Documents" shall mean, collectively, (i) that certain Asset
Purchase Agreement dated as of October 17, 2000 by and among Ameristar Casino
Kansas City, Inc., the
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Borrower, Kansas City Station Corporation and Station, and (ii) that certain
Asset Purchase Agreement dated as of October 17, 2000 by and among Ameristar
Casino St. ▇▇▇▇▇▇▇, Inc., the Borrower, St. ▇▇▇▇▇▇▇ Riverfront Station, Inc. and
Station, as in effect on the Effective Date and without giving effect to any
subsequent amendment, modification and supplement thereto made without the prior
written consent of the Required Lenders.
"Additional Ship Mortgage" shall have the meaning provided in Section
8.11(c).
"Additional Ship Mortgaged Property" shall have the meaning provided in
Section 8.11(c).
"Additional Collateral" shall mean all property (whether real or personal)
in which security interests are granted (or have been purported to be granted)
(and continue to be in effect at the time of determination) pursuant to Section
8.11.
"Additional Mortgage" shall have the meaning provided in Section 8.11(b).
"Additional Mortgaged Property" shall have the meaning provided in Section
8.11(b).
"Additional Security Documents" shall mean all mortgages, pledge
agreements, security agreements and other security documents entered into
pursuant to Section 8.11 with respect to Additional Collateral.
"Adjusted Consolidated Net Income" for any period shall mean Consolidated
Net Income for such period (i) plus, without duplication, the sum of the amount
of all net non-cash charges including, without limitation, depreciation,
amortization, deferred tax expense, non-cash interest expense and other non-cash
charges included in arriving at Consolidated Net Income for such period and (ii)
less the sum of, without duplication, (x) the amount of all net non-cash gains
or losses (exclusive of items reflected in Adjusted Consolidated Working
Capital) included in arriving at Consolidated Net Income for such period and (y)
gains or losses from sales of assets (other than sales of inventory in the
ordinary course of business) and Recovery Events included in arriving at
Consolidated Net Income for such period.
"Adjusted Consolidated Working Capital" at any time shall mean Consolidated
Current Assets (but excluding therefrom all cash and Cash Equivalents) less
Consolidated Current Liabilities.
"Administrative Agent" shall mean Bankers Trust Company, in its capacity as
Administrative Agent for the Lenders hereunder, and shall include any successor
to the Administrative Agent appointed pursuant to Section 12.09.
"Affected Eurodollar Loans" shall have the meaning provided in Section
4.02(A)(l).
"Affiliate" shall mean, with respect to any Person, any other Person
(including for purposes of Section 9.06 only, all directors, officers and
partners of such Person) directly or indirectly controlling, controlled by, or
under direct or indirect common control with, such Person;
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provided, however, that for purposes of Section 9.06, an Affiliate of the
Borrower shall include any Person that directly or indirectly owns more than 10%
of any class of the capital stock of the Borrower. A Person shall be deemed to
control another Person if such Person possesses, directly or indirectly, the
power to direct or cause the direction of the management and policies of such
other Person, whether through the ownership of voting securities, by contract or
otherwise.
"Affiliate Contracts" shall have the meaning provided in Section 5.05.
"Agreement" shall mean this Credit Agreement, as amended, modified,
extended, renewed, replaced, restated or supplemented from time to time.
"Anticipated Reinvestment Amount" shall mean, with respect to any
Reinvestment Election, the amount specified in the Reinvestment Notice delivered
by the Borrower in connection therewith as the amount of Net Asset Sale Proceeds
from the related Asset Sale that the Borrower and/or its Subsidiaries intend to
use to purchase, construct or otherwise acquire Reinvestment Assets.
"Applicable Margin" shall mean: (a) with respect to A Term Loans, RTL
Loans, Revolving Loans and Swingline Loans, from and after any Start Date to and
including the corresponding End Date, the respective percentage per annum set
forth below under the respective Type of A Term Loans, RTL Loans, Revolving
Loans or Swingline Loans and opposite the respective Level (i.e., ▇▇▇▇▇ ▇, ▇▇▇▇▇
▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇ 5, ▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇ or Level 8, as the case may be)
indicated to have been achieved on the applicable Test Date for such Start Date
(as shown on the respective officer's certificate delivered pursuant to Section
8.01(f) or the first proviso below):
A Term Loans, RTL Loans, Revolving
Loans A Term Loans, RTL Loans
and Swingline Loans and Revolving Loans
maintained as maintained as
Level Leverage Ration Base Rate Loans Eurodollar Loans
----- --------------- --------------------------------- -----------------------
1 Less than or equal to 0.50% 1.50%
1.00:1.00
2 Greater than 0.75% 1.75%
1.00:1.00 but less
than or equal to
2.00:1.00
3 Greater than 1.00% 2.00%
2.00:1.00 but less
than or equal to
2.50:1.00
4 Greater than 1.25% 2.25%
2.50:1.00 but less
than or equal to
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3.00:1.00
5 Greater than 1.50% 2.50%
3.00:1.00 but less
than or equal to
3.50:1.00
6 Greater than 1.75% 2.75%
3.50:1.00 but less
than or equal to
3.75:1.00
7 Greater than 2.00% 3.00%
3.75:1.00 but less
than or equal to
4.25:1.00
8 Greater than 2.25% 3.25%
4.25:1.00 but less
than or equal to
5.00:1.00
; provided, however, that if the Borrower fails to deliver the financial
statements required to be delivered pursuant to Section 8.01(b) or (c)
(accompanied by the officer's certificate required to be delivered pursuant to
Section 8.01(f) showing the applicable Leverage Ratio on the relevant Test Date)
on or prior to the respective date required by such Sections, then Level 8
pricing shall apply until such time, if any, as the financial statements
required as set forth above and the accompanying officer's certificate have been
delivered showing the pricing for the respective Margin Reduction Period is at a
level which is less than Level 8 (it being understood that, in the case of any
late delivery of the financial statements and officer's certificate as so
required, the Applicable Margin, if any, shall apply only from and after the
date of the delivery of the complying financial statements and officer's
certificate); provided further, that, unless the Majority Grid Lenders otherwise
agree, Level 8 pricing shall apply at any time when any Default under Section
10.01 is in existence or any Event of Default is in existence. Notwithstanding
anything to the contrary contained in the immediately preceding sentence, Level
8 pricing shall apply for the period from the Initial Borrowing Date to but not
including the date which is the first Start Date after the Borrower's fiscal
quarter ending on June 30, 2001;
(b) with respect to B Term Loans maintained as (i) Base Rate Loans, a
percentage per annum equal to 2.75%, and (ii) Eurodollar Loans, a percentage per
annum equal to 3.75%; and
(c) with respect to C Term Loans maintained as (i) Base Rate Loans, a
percentage per annum equal to 3.00%, and (ii) Eurodollar Loans, a percentage per
annum equal to 4.00%.
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"Applicable RTL Commitment Commission Percentage" shall mean (i) for each
day during which clause (ii) below is not applicable, 3/4 of 1% and (ii) for
each day on which the aggregate outstanding principal amount of RTL Loans
exceeds 50% of the Total RTL Commitment, 1/2 of 1%.
"Asset Sale" shall mean the sale, transfer or other disposition by the
Borrower or any of its Subsidiaries to any Person other than the Borrower or any
of its Subsidiaries of any asset of the Borrower or such Subsidiary (other than
sales, transfers or other dispositions (a) in the ordinary course of business of
goods or inventory and/or obsolete, worn out or excess equipment (including
gaming equipment replaced in the ordinary course of business) or intellectual
property, (b) mergers among Credit Parties or where a Credit Party is the
surviving Person permitted by Section 9.02, (c) dispositions to a Credit Party,
(d) the sale or issuance of any capital stock of any Subsidiary of the Borrower
to any Credit Party, (e) dispositions of the trailer park in Vicksburg,
Mississippi to the extent that the Net Asset Sale Proceeds therefrom are less
than $1,250,000, (f) leases or subleases of real or personal property in the
ordinary course of business on commercially reasonable terms to the extent that
the Borrower determines that such property is immaterial and no longer necessary
in the conduct of its business or such lease or sublease is to an operator of a
restaurant, store or other enterprise within or adjacent to a casino facility of
the Borrower or its Subsidiaries or (g) the proceeds of which do not exceed
$500,000 for any transaction or series of related transactions.
"Assignment and Assumption Agreement" shall mean the Assignment and
Assumption Agreement substantially in the form of Exhibit K (appropriately
completed).
"Authorized Officer" of any Credit Party shall mean any of the Chairman of
the Board, the President, the Chief Executive Officer, any Vice President, the
Treasurer, the Secretary, any Assistant Secretary, any Assistant Treasurer, the
Chief Financial Officer or the Controller of such Credit Party or any other
officer of such Credit Party which is designated in writing to the
Administrative Agent, BTCo and the Issuing Lender by any of the foregoing
officers of such Credit Party as being authorized to give such notices under
this Agreement.
"Available Investment Basket Amount" shall mean, on any date of
determination, an amount equal to the sum (without duplication) of (i)
$7,500,000 minus (ii) the aggregate amount of Investments made (including for
such purpose the fair market value of any assets contributed to any Investment
Entity (as determined in good faith by senior management of the Borrower), net
of Indebtedness assigned to, and assumed by, the respective Investment Entity in
connection therewith) pursuant to Section 9.05(xi) after the Effective Date,
minus (iii) the aggregate amount of Indebtedness or other obligations (whether
absolute, accrued, contingent or otherwise and whether or not due) of any
Investment Entity for which the Borrower or any of its Subsidiaries (other than
the respective Investment Entity) is liable on such date of determination, minus
(iv) all payments made by the Borrower or any of its Subsidiaries (other than
the respective Investment Entity) in respect of Indebtedness or other
obligations of the respective Investment Entity (including, without limitation,
payments in respect of obligations described in preceding clause (iii) after the
Effective Date, plus (vi) the amount of any increase to the Available Investment
Basket Amount made after the Effective Date in accordance with the provisions of
Section 9.05(xi).
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"B Lender" shall have the meaning provided in Section 4.02(B).
"B Term Loan" shall mean each Loan made pursuant to Section 1.01(b) and
each Incremental Term Loan made under the B Term Loan Tranche.
"B Term Loan Commitments" shall mean for each Lender the amount set forth
opposite such Lender's name in Schedule I hereto in the column entitled "B Term
Loan Commitment" as same may be (x) reduced from time to time pursuant to
Sections 3.03, 4.02(A) and/or 10 or (y) adjusted from time to time as a result
of assignments to or from such Lender pursuant to Section 1.13 or 13.04(b).
"B Term Loan Scheduled Repayment" shall have the meaning provided in
Section 4.02(A)(c).
"B Term Maturity Date" shall mean December 20, 2006.
"B Term Notes" shall have the meaning provided in Section 1.05(a).
"B Term Reference Amount" shall have the meaning provided in Section
4.02(A)(c).
"Bankruptcy Code" shall have the meaning provided in Section 10.05.
"Base Rate" at any time shall mean the highest of (i) 1/2 of 1% in excess
of the Federal Funds Rate and (ii) the Prime Lending Rate.
"Base Rate Loan" shall mean (i) each Swingline Loan and (ii) each Loan
designated or deemed designated as such by the Borrower at the time of the
incurrence thereof or conversion thereto.
"Borrower" shall have the meaning provided in the first paragraph of this
Agreement.
"Borrowing" shall mean the borrowing of one Type of Loan of a single
Tranche from all the Lenders having Commitments of the respective Tranche (or
from the Swingline Lender in the case of Swingline Loans) on a given date (or
resulting from a conversion or conversions on such date) having in the case of
Eurodollar Loans the same Interest Period, provided that Base Rate Loans
incurred pursuant to Section 1.10(b) shall be considered part of the related
Borrowing of Eurodollar Loans.
"BTCo" shall mean Bankers Trust Company in its individual capacity.
"Business Day" shall mean (i) for all purposes other than as covered by
clause (ii) below, any day except Saturday, Sunday and any day which shall be in
New York City a legal holiday or a day on which banking institutions are
authorized or required by law or other government action to close and (ii) with
respect to all notices and determinations in connection with, and payments of
principal and interest on, Eurodollar Loans, any day which is a Business Day
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described in clause (i) above and which is also a day for trading by and between
banks in the New York interbank Eurodollar market.
"C Lender" shall have the meaning provided in Section 4.02(B).
"C Term Loan" shall mean each Loan made pursuant to Section 1.01(c) and
each Incremental Term Loan made pursuant to the C Term Loan Tranche.
"C Term Loan Commitments" shall mean for each Lender the amount set forth
opposite such Lender's name in Schedule I hereto in the column entitled "C Term
Loan Commitment" as same may be (x) reduced from time to time pursuant to
Sections 3.03, 4.02(A) and/or 10 or (y) adjusted from time to time as a result
of assignments to or from such Lender pursuant to Section 1.13 or 13.04(b).
"C Term Loan Scheduled Repayments" shall have the meaning provided in
Section 4.02(A)(d).
"C Term Maturity Date" shall mean December 20, 2007.
"C Term Notes" shall have the meaning provided in Section 1.05(a).
"C Term Reference Amount" shall have the meaning provided in Section
4.02(A)(d).
"Calculation Date" shall mean the date of the respective Permitted
Acquisition, incurrence, assumption or issuance of Indebtedness, repayment of
Indebtedness, or other event, as the case may be, which gives rise to the
requirement to calculate compliance with the financial covenants under this
Agreement on a Pro Forma Basis.
"Calculation Period" shall mean the Test Period (taken as one accounting
period) most recently ended prior to a given Calculation Date.
"Capital Expenditures" shall mean, with respect to any Person, all
expenditures (excluding barter transactions effected in the ordinary course of
business) by such Person which should be capitalized in accordance with GAAP,
including all such expenditures with respect to fixed or capital assets
(including, without limitation, expenditures for maintenance and repairs which
should be capitalized in accordance with GAAP) and the amount of capital assets
associated with Capitalized Lease Obligations incurred by such Person (which
shall be deemed to include (i) expenditures by such person to acquire stock or
other evidence of beneficial ownership of any other Person for the purpose of
acquiring the capital assets of such Person (to the extent of such capital
assets) and (ii) expenditures for fixed or capital equipment at customers and
property additions).
"Capitalized Lease Obligations" of any Person shall mean all rental
obligations which, under GAAP, are or will be required to be capitalized on the
books of such Person, in each case taken at the amount thereof accounted for as
indebtedness in accordance with GAAP.
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"Cash Equivalents" shall mean, as to any Person, (i) securities issued or
directly and fully guaranteed or insured by the United States or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States is pledged in support thereof) having maturities of not more than one
year from the date of acquisition, (ii) time deposits and certificates of
deposit with maturities of not more than one year from the date of acquisition
by such Person of any commercial bank having, or which is the principal banking
subsidiary of a bank holding company organized under the laws of the United
States, any State thereof, the District of Columbia or any foreign jurisdiction
having capital, surplus and undivided profits aggregating in excess of
$200,000,000, (iii) repurchase obligations with a term of not more than 90 days
for underlying securities of the types described in clause (i) above entered
into with any bank meeting the qualifications specified in clause (ii) above,
(iv) commercial paper issued by any Person incorporated in the United States
rated at least A-1 or the equivalent thereof by Standard & Poor's Corporation or
at least P-1 or the equivalent thereof by ▇▇▇▇▇'▇ Investors Service, Inc. and in
each case maturing not more than one year after the date of acquisition by such
Person, (v) investments in money market funds substantially all of whose assets
are comprised of securities of the types described in clauses (i) through (iv)
above and (vi) demand deposit accounts maintained in the ordinary course of
business not in excess of $1,000,000 in the aggregate.
"CERCLA" shall mean the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980, as amended, 42 U.S.C. Section 9601 et seq., and any
successor thereto.
"Change of Control" shall mean (i) that the ▇▇▇▇▇▇▇ Family Group shall fail
to own or control more than 50% of the Voting Stock of the Borrower or (ii) a
"change of control" or similar event shall occur as provided in any Senior
Subordinated Financing Document or, on and after the execution and delivery
thereof, in any Permanent Senior Subordinated Note Document.
"Code" shall mean the Internal Revenue Code of 1986, as amended from time
to time, and the regulations promulgated and the rulings issued thereunder.
Section references to the Code are to the Code, as in effect at the date of this
Agreement, and to any subsequent provision of the Code, amendatory thereof,
supplemental thereto or substituted therefor.
"Collateral" shall mean all property (whether real or personal) with
respect to which any security interests have been granted (or purported to be
granted) pursuant to any Security Document, including, without limitation, all
Pledge Agreement Collateral, all Security Agreement Collateral, all Mortgaged
Properties, all Ship Properties and all cash and Cash Equivalents delivered as
collateral pursuant to Section 4.02(A) or Section 10 hereof and all Additional
Collateral, if any.
"Collateral Agent" shall mean the Administrative Agent acting as collateral
agent for the Secured Creditors pursuant to the Security Documents.
"Collective Bargaining Agreements" shall have the meaning provided in
Section 5.05.
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"Commitment" shall mean any of the commitments of any Lender, i.e., whether
the Term Loan Commitments, RTL Commitment or Revolving Loan Commitment.
"Commitment Commission" shall have the meaning provided in Section 3.01(a).
"Consolidated Adjusted EBITDA" shall mean, for any period, Consolidated
EBITDA, adjusted by subtracting therefrom the sum of (i) the amount of all cash
payments made or required to be made by the Borrower and its Subsidiaries in
respect of taxes or tax liabilities measured by taxable income for such period
after giving effect to applicable net operating loss and AMT carry forwards and
all other applicable tax credits and (ii) the amount of all cash Dividends
actually paid during such period (including, without limitation, treasury stock
repurchases during such period). Notwithstanding anything to the contrary
contained above, to the extent Consolidated Adjusted EBITDA is to be determined
for any Test Period which ends prior to the first anniversary of the Initial
Borrowing Date, Consolidated Adjusted EBITDA for all portions of such period
occurring prior to the Initial Borrowing Date shall be calculated in accordance
with the definition of Test Period contained herein.
"Consolidated Adjusted Fixed Charge Coverage Ratio" shall mean, for any
period the ratio of (x) Consolidated Adjusted EBITDA for such period to (y)
Consolidated Fixed Charges for such period.
"Consolidated Cash Interest Expense" shall mean, for any period, the total
consolidated interest expense of the Borrower and its Consolidated Subsidiaries
(excluding amortization or write-off of debt discount and debt issuance costs
but including commissions and other fees and charges associated with
Indebtedness and all commissions and other fees and charges owed with respect to
letters of credit and bankers' acceptance financing and net costs under any
Interest Rate Protection or Other Hedging Agreements in respect of interest
rates to the extent such net costs are allocable to such period in accordance
with GAAP) determined on a consolidated basis in accordance with GAAP for such
period and which are required to be paid in cash during that period (calculated
without regard to any limitations on the payment thereof) plus, without
duplication, that portion of Capitalized Lease Obligations of the Borrower and
its Consolidated Subsidiaries determined on a consolidated basis in accordance
with GAAP representing the interest factor for such period and any interest
expense capitalized during such period. Notwithstanding anything to the contrary
contained above, to the extent Consolidated Cash Interest Expense is to be
determined for any Test Period which ends prior to the first anniversary of the
Initial Borrowing Date, Consolidated Cash Interest Expense for all portions of
such period occurring prior to the Initial Borrowing Date shall be calculated in
accordance with the definition of Test Period contained herein.
"Consolidated Current Assets" shall mean, at any time, the consolidated
current assets of the Borrower and its Consolidated Subsidiaries determined on a
consolidated basis in accordance with GAAP.
"Consolidated Current Liabilities" shall mean, at any time, the
consolidated current liabilities of the Borrower and its Consolidated
Subsidiaries determined on a consolidated basis in accordance with GAAP at such
time, but excluding (i) the current portion of any Indebtedness under this
Agreement and any other long-term Indebtedness which would
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otherwise be included therein, (ii) accrued but unpaid interest with respect to
the Indebtedness described in clause (i), and (iii) the current portion of
Capitalized Lease Obligations.
"Consolidated EBIT" shall mean, for any period, the Consolidated Net Income
of the Borrower and its Consolidated Subsidiaries determined on a consolidated
basis in accordance with GAAP, before Consolidated Net Interest Expense,
provision for taxes and non-cash compensation expense and without giving effect
to any extraordinary or unusual or nonrecurring gains or losses.
"Consolidated EBITDA" shall mean, for any period, Consolidated EBIT,
adjusted by adding thereto the amount of all depreciation and amortization
charges and the amount of pre-opening expenses that were deducted in arriving at
Consolidated EBIT for such period. Notwithstanding anything to the contrary
contained above, to the extent Consolidated EBITDA is to be determined for any
Test Period which ends prior to the first anniversary of the Initial Borrowing
Date, Consolidated EBITDA for all portions of such period occurring prior to the
Initial Borrowing Date shall be calculated in accordance with the definition of
Test Period contained herein. Notwithstanding the foregoing, Consolidated EBITDA
shall be determined without giving effect to any gain or loss arising from the
Disposition.
"Consolidated Fixed Charges" shall mean, for any period, the sum, without
duplication, of (i) Consolidated Cash Interest Expense for such period and (ii)
the scheduled principal amount of all amortization payments on all Indebtedness
(including, without limitation, the principal component of all Capitalized Lease
Obligations) of the Borrower and its Subsidiaries for such period (as determined
on the first day of such period). Notwithstanding anything to the contrary
contained above, to the extent Consolidated Fixed Charges is to be determined
for any Test Period which ends prior to the first anniversary of the Initial
Borrowing Date, Consolidated Fixed Charges for all portions of such period
occurring prior to the Initial Borrowing Date shall be calculated in accordance
with the definition of Test Period contained herein.
"Consolidated Gross Fixed Charge Coverage Ratio" shall mean, for any
period, the ratio of (x) Consolidated EBITDA for such period to (y) Consolidated
Fixed Charges for such period.
"Consolidated Indebtedness" shall mean, at any time, without duplication,
the sum of the aggregate outstanding principal amount of all Indebtedness and
the principal component of Capitalized Lease Obligations, of the Borrower and
its Consolidated Subsidiaries determined on a consolidated basis in accordance
with GAAP.
"Consolidated Net Income" shall mean, for any period, net after tax income
of the Borrower and its Consolidated Subsidiaries determined on a consolidated
basis in accordance with GAAP.
"Consolidated Net Interest Expense" shall mean, for any period, the total
interest expense of any Person for such period (calculated without regard to any
limitations on the payment thereof) plus, without duplication, that portion of
Capitalized Lease Obligations of such
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Person representing the interest factor for such period in each case net of the
total consolidated cash interest income of such Person for such period.
"Consolidated Subsidiaries" shall mean, as to any Person, all Subsidiaries
of such Person which are consolidated with such Person for financial reporting
purposes in accordance with GAAP.
"Consolidated Tangible Net Worth" shall mean at any date (i) the sum of all
amounts which, in conformity with GAAP, would be included under the caption
"redeemable preferred stock" and "total stockholders' equity" (or like captions)
on a consolidated balance sheet of the Borrower on and as at such date, less
(ii) any cash Dividends on the capital stock of the Borrower theretofore
declared but not yet paid, but only to the extent not already deducted when
determining the amount specified in clause (i) less (iii) all intangible assets
of the Borrower and its Subsidiaries on such date (other than intangible assets
arising as a result of the Acquisition).
"Contingent Obligation" shall mean, as to any Person, any obligation of
such Person guaranteeing or intended to guarantee any Indebtedness, leases,
dividends or other obligations ("primary obligations") of any other Person (the
"primary obligor") in any manner, whether directly or indirectly, including,
without limitation, any obligation of such Person, whether or not contingent,
(i) to purchase any such primary obligation or any property constituting direct
or indirect security therefor, (ii) to advance or supply funds (x) for the
purchase or payment of any such primary obligation or (y) to maintain working
capital or equity capital of the primary obligor or otherwise to maintain the
net worth or solvency of the primary obligor, (iii) to purchase property,
securities or services primarily for the purpose of assuring the owner of any
such primary obligation of the ability of the primary obligor to make payment of
such primary obli gation or (iv) otherwise to assure or hold harmless the holder
of such primary obligation against loss in respect thereof; provided, however,
that the term Contingent Obligation shall not include endorsements of
instruments for deposit or collection in the ordinary course of business. The
amount of any Contingent Obligation shall be deemed to be an amount equal to the
stated or determinable amount of the primary obligation in respect of which such
Contingent Obligation is made (or, if less, the maximum amount of such primary
obligation for which such Person may be liable pursuant to the terms of the
instrument evidencing such Contingent Obligation) or, if not stated or
determinable, the maximum reasonably anticipated liability in respect thereof
(assuming such Person is required to perform thereunder) as determined by such
Person in good faith.
"CPI" shall mean Cactus Pete's, Inc., a Nevada corporation.
"Credit Documents" shall mean this Agreement and, after the execution and
delivery thereof pursuant to the terms of this Agreement, each Note, each
Security Document and each Subsidiary Guaranty.
"Credit Event" shall mean the making of any Loan or the issuance of any
Letter of Credit.
"Credit Party" shall mean the Borrower and each Subsidiary thereof party to
a Credit Document.
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"Debt Agreements" shall have the meaning provided in Section 5.05.
"Debt Retirement" shall have the meaning provided in Section 5.06(a).
"Default" shall mean any event, act or condition which with notice or lapse
of time, or both, would constitute an Event of Default.
"Defaulting Lender" shall mean any Lender with respect to which a Lender
Default is in effect.
"Designated Lenders" shall mean Bankers Trust Company, ▇▇▇▇▇ Fargo Bank,
N.A. and Bear ▇▇▇▇▇▇▇ Corporate Lending Inc..
"Development Agreement" shall mean that certain Development Agreement dated
April 24, 1995 by and between Kansas City Station Corporation and The Port
Authority of Kansas City, Missouri, as amended.
"Disposition" shall mean the sale by ACLVI of The Reserve to Lake ▇▇▇▇
Station, Inc. pursuant to the Disposition Documents.
"Disposition Documents" shall mean that certain Asset Purchase Agreement
dated as of October 17, 2000 by and among ACLVI, the Borrower, Lake ▇▇▇▇
Station, Inc. and Station, as in effect on the Effective Date and without giving
effect to any subsequent amendment, modification and supplement thereto made
without the prior written consent of the Required Lenders (other than
amendments, modifications and supplements that, when considered either
individually or in the aggregate, are not materially less favorable to the
Company and its Subsidiaries, taken as a whole, or the Lenders with respect
thereto).
"Disqualified Stock" shall mean any capital stock which, by its terms (or
by the terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event (including a Change of Control
Event), (i) matures (excluding any maturity as the result of an optional
redemption by the issuer thereof) or is mandatorily redeemable, pursuant to a
sinking fund obligation or otherwise, or is redeemable at the option of the
holder thereof, in whole or in part, on or prior to December 20, 2008, (ii) is
convertible into or exchangeable (unless at the sole option of the issuer
thereof) for (a) debt securities or (b) any capital stock referred to in (i)
above, in each case at any time prior to the first anniversary of the latest
Maturity Date or (iii) contains any restrictive covenants other than those which
are reasonably satisfactory to the Administrative Agent.
"Dividend" with respect to any Person shall mean that such Person has
declared or paid a dividend or returned any equity capital to its stockholders
or authorized or made any other distribution, payment or delivery of property
(other than common stock of such Person) or cash to its stockholders as such, or
redeemed, retired, purchased or otherwise acquired, directly or indirectly, for
consideration any shares of any class of its capital stock outstanding on or
after the Effective Date (or any options or warrants issued by such Person with
respect to its capital stock), or set aside any funds for any of the foregoing
purposes, or shall have permitted any of its Subsidiaries to purchase or
otherwise acquire for consideration any shares of any class of the capital stock
of such Person outstanding on or after the Effective Date (or any options or
war-
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rants issued by such Person with respect to its capital stock). Without limiting
the foregoing, "Dividends" with respect to any Person shall also include all
payments made or required to be made by such Person with respect to any stock
appreciation rights, plans, equity incentive or achievement plans or any similar
plans or setting aside of any funds for the foregoing purposes to the extent
such payments do not result in a deduction to Consolidated Net Income.
"Documents" shall mean the Credit Documents and the Transaction Documents.
"Dollars" and the sign "$" shall each mean freely transferable lawful money
of the United States.
"Domestic Subsidiary" shall mean each Subsidiary that is incorporated or
organized in the United States or any State thereof.
"Drawing" shall have the meaning provided in Section 2.04(b).
"Effective Date" shall have the meaning provided in Section 13.10.
"Employee Benefit Plan" shall have the meaning provided in Section 5.05.
"Employee Stock Option Plan" shall mean any plan, for the compensation of
management, employees, directors and consultants of the Borrower or any of its
Subsidiaries, or any arrangement for the benefit of management, employees,
directors and consultants of the Borrower or any of its Subsidiaries.
"Employment Agreement" shall have the meaning provided in Section 5.05.
"End Date" shall mean, with respect to any Margin Reduction Period, the
last day of such Margin Reduction Period.
"Environmental Claims" shall mean any and all administrative, regulatory or
judicial actions, suits, written demands, demand letters, written claims, liens,
written notices of non-compliance or violation, investigations or proceedings
arising under any Environmental Law (hereafter "Claims") or any permit issued
under any such law, including, without limitation, (a) any and all Claims by
governmental or regulatory authorities for enforcement, cleanup, removal,
response, remedial or other actions or damages pursuant to any applicable
Environmental Law, and (b) any and all Claims by any third party seeking
damages, contribution, indemnification, cost recovery, compensation or
injunctive relief resulting from Hazardous Materials or arising from alleged
injury or threat of injury to health, safety or the environment.
"Environmental Law" shall mean any applicable Federal, state, provincial,
foreign or local statute, law, rule, regulation or rule of common law now or
hereafter in effect and in each case as amended, and any legally binding
judicial or administrative interpretation thereof, including any judicial or
administrative order, consent decree or judgment relating to the environment,
employee health and safety or Hazardous Materials, including, without
limitation, CERCLA, the Resource Conservation and Recovery Act, as amended, 42
U.S.C. Section 6901, et seq.; the Federal Water Pollution Control Act, 33 U.S.C.
Section 2601 et seq.; the Clean Air Act, 42 U.S.C. Section 7401 et seq.; the
Safe Drinking Water Act, 42 U.S.C. Section 3803 et seq.; the Oil Pollution Act
of
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1990, 33 U.S.C. Section 2701 et seq.; the Hazardous Material Transportation Act,
49 U.S.C. Section 1801 et seq.; and any state and local or foreign counterparts
or equivalents, in each case as amended from time to time.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and rulings issued
thereunder. Section references to ERISA are to ERISA, as in effect at the date
of this Agreement and any subsequent provisions of ERISA, amendatory thereof,
supplemental thereto or substituted therefor.
"ERISA Affiliate" shall mean each person (as defined in Section 3(9) of
ERISA) which together with the Borrower or a Subsidiary of the Borrower would be
deemed to be a "single employer" (i) within the meaning of Section 414(b), (c),
(m) or (o) of the Code or (ii) as a result of the Borrower or a Subsidiary of
the Borrower being or having been a general partner of such person.
"Eurodollar Loan" shall mean each Loan designated as such by the Borrower
at the time of the incurrence thereof or conversion thereto.
"Eurodollar Loan Availability Date" shall mean the fifth Business Day
following the Initial Borrowing Date.
"Eurodollar Rate" shall mean (a) the arithmetic average (rounded to the
nearest 1/16 of 1%) of the offered quotation to first-class banks in the New
York interbank Eurodollar market by the Reference Lender for Dollar deposits of
amounts in immediately available funds comparable to the outstanding principal
amount of the Eurodollar Loan of the Reference Lender with maturities comparable
to the Interest Period applicable to such Eurodollar Loan commencing two
Business Days thereafter as of 10:00 A.M. (New York time) on the date which is
two Business Days prior to the commencement of such Interest Period, divided by
(b) a percentage equal to 100% minus the then stated maximum rate of all reserve
requirements (including, without limitation, any marginal, emergency,
supplemental, special or other reserves required by applicable law) applicable
to any member bank of the Federal Reserve System in respect of Eurocurrency
funding or liabilities as defined in Regulation D (or any successor category of
liabilities under Regulation D).
"Event of Default" shall have the meaning provided in Section 10.
"Excess Cash Flow" shall mean, for any period, the remainder of (a) the sum
of (i) Adjusted Consolidated Net Income for such period and (ii) the decrease,
if any, in Adjusted Consolidated Working Capital from the first day to the last
day of such period, minus (b) the sum of (i) the amount of Capital Expenditures
made by the Borrower and its Subsidiaries on a consolidated basis during such
period pursuant to and in accordance with Sections 9.07(a), (b) and (c), except
to the extent financed with the proceeds of Indebtedness or pursuant to
Capitalized Lease Obligations, (ii) the aggregate amount of permanent principal
payments of Indebtedness for borrowed money of the Borrower and the repayment of
the principal component of Capitalized Lease Obligations of the Borrower and its
Subsidiaries (excluding, without duplication (1) payments with proceeds of
issuances of Indebtedness or equity or with proceeds
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of asset sales, (2) payments of Loans or other Obligations pursuant to Sections
4.02(A)(f), (g), (h) and (j) and (3) payment of the Bridge Subordinated Loans
from the proceeds of the Permanent Senior Subordinated Notes or equity
proceeds), (iii) cash Dividends paid during such period, and (iv) the increase,
if any, in Adjusted Consolidated Working Capital from the first day to the last
day of such period.
"Excess Cash Payment Date" shall mean the date occurring 110 days after the
last day of each fiscal year of the Borrower (beginning with its fiscal year
ending December 31, 2001).
"Excess Cash Payment Period" shall mean with respect to the repayment
required on each Excess Cash Payment Date, the immediately preceding fiscal year
of the Borrower.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
"Excluded Equity Proceeds" shall mean proceeds from the sale or issuance of
equity securities or capital contributions (i) received by a Credit Party or a
Subsidiary receiving an Investment permitted Section 9.05, in each case, from
another Credit Party or (ii) to the extent such proceeds are utilized to repay
the Subordinated Bridge Loans or (iii) received by the Borrower from the
issuance of its common stock (including as a result of the exercise of options
with respect thereto) or options to purchase shares of its common stock, to
officers, directors, consultants and employees of the Borrower and its
subsidiaries in an aggregate amount not to exceed $2,000,000 in any fiscal year.
"Excluded Recovery Event" shall mean (x) any Recovery Event or series of
related Recovery Events the proceeds of which do not exceed $500,000, (y) a
Recovery Event which occurred prior to the Effective Date relating to claims
under one or more insurance policies maintained at any time by the Borrower
and/or its Subsidiaries for reimbursement of prior emergency measures to
minimize loss and prior necessary extra expenses incurred to avoid and reduce
the suspension of business operations and resulting loss of income from business
interruption and related claims at operations in Vicksburg, Mississippi, and (z)
a Recovery Event relating to claims for reimbursement or payment of legal
expenses or damages being litigated in the case of American Guarantee and
Liability Insurance Co. v. Ameristar Casinos, et al., in the United States
District Court for the Southern District of Mississippi, Jackson Division, Civil
Action No. 3:00CV257WS.
"Existing Indebtedness" shall mean the Indebtedness set forth on Schedule
VI hereto (which shall include the Retained Indebtedness).
"Existing Notes" shall mean the Series A and Series B 10 1/2 Senior
Subordinated Notes due 2004 issued by the Borrower under the Existing Notes
Indentures.
"Existing Notes Indenture" shall mean that certain indenture dated as of
July 15, 1997, between the Borrower and First Trust National Association as
trustee.
"Existing Notes Indenture Supplements" shall mean the Supplemental
Indentures' to the Existing Notes Indenture in form and substance satisfactory
to the Administrative Agent
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and entered into by the Borrower and First Trust National Association, as
trustee in connection with the Existing Notes Tender Offer/Consent Solicitation.
"Existing Notes Tender Offer Documents" shall mean the Existing Notes
Indenture Supplement and the Existing Notes Tender Offer/Consent Solicitation,
as in effect on the Initial Borrowing Date and as same may be amended, modified
or supplemented from time to time pursuant to the terms thereof and hereof.
"Existing Notes Tender Offer Repurchases" shall have the meaning provided
in Section 5.06(a)(i).
"Existing Notes Tender Offer/Consent Solicitation" shall have the meaning
set forth in Section 5.06(a)(i).
"Facilities Expansion" shall mean the completion of expansion of the
facilities at Station Casino St. ▇▇▇▇▇▇▇ as described to the Administrative
Agent prior to the Effective Date.
"Facilities Expansion Certificate" shall have the meaning provided in
Section 6.03.
"Facing Fee" shall have the meaning provided in Section 3.01(c).
"Federal Funds Rate" shall mean for any period, a fluctuating interest rate
equal for each day during such period to the weighted average of the rates on
overnight Federal Funds transactions with members of the Federal Reserve System
arranged by Federal Funds brokers, as published for such day (or, if such day is
not a Business Day, for the next preceding Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations for such day on such transactions
received by the Administrative Agent from three Federal Funds brokers of
recognized standing selected by the Administrative Agent.
"Fees" shall mean all amounts payable pursuant to or referred to in Section
3.01.
"Former Lender" shall have the meaning provided in Section 13.04(c).
"Futuresouth Royalty" shall mean the royalty payment required to be made
pursuant to the Asset Purchase and Sale Agreement, dated as of February 15,
2000, by and between Futuresouth, Southboat ▇▇▇▇▇, Inc., Southboat Limited
Partnership and Ameristar Casino St. Louis, Inc., as in effect on the Effective
Date and without giving effect to any subsequent amendment, modification and
supplement thereto made without the prior written consent of the Required
Lenders.
"GAAP" shall have the meaning provided in Section 13.07(a).
"Gaming Authority" shall mean the governmental authorities charged with the
administration and enforcement of the Gaming Regulations.
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"Gaming Business" shall mean the businesses and operations of the Borrower
and its Subsidiaries with respect to, and the properties and assets of the
Borrower and its Subsidiaries used in connection with, the Specified Casino
Properties and any other casinos, hotel casinos or gaming businesses now or in
the future owned by the Borrower or any of its Subsidiaries or in which the
Borrower or any of its Subsidiaries has an interest either through a joint
venture or as a party to a management agreement.
"Gaming Property" of any Person shall mean those properties and assets of
such Person which relate to such Person's casino or hotel casino businesses and
operations.
"Gaming Regulations" shall mean the laws, rules, regulations and orders
applicable to the casino and gaming businesses or activities of the Borrower or
any of its Subsidiaries in any jurisdiction, as in effect from time to time,
including the policies, interpretations and administration thereof by the Gaming
Authorities.
"Guaranteed Obligations" shall mean the irrevocable and unconditional
guaranty made by each Subsidiary Guarantor (i) to each Lender for the full and
prompt payment when due (whether at the stated maturity, by acceleration or
otherwise) of the principal and interest on each Note issued by the Borrower to
such Lender, and Loans made, under the Credit Agreement and all reimbursement
obligations and Unpaid Drawings with respect to Letters of Credit, together with
all the other obligations and liabilities (including, without limitation,
indemnities, fees and interest thereon) of the Borrower to such Lender now
existing or hereafter incurred under, arising out of or in connection with the
Credit Agreement or any other Credit Document and the due performance and
compliance with all the terms, conditions and agreements contained in the Credit
Documents by the Borrower and (ii) to each Lender and each Affiliate of a Lender
which enters into an Interest Rate Protection or Other Hedging Agreement with
the Borrower, which by its express terms are entitled to the benefit of the
Subsidiary Guaranty with the written consent of the Borrower and the
Administrative Agent, the full and prompt payment when due (whether by
acceleration or otherwise) of all obligations of the Borrower owing under any
such Interest Rate Protection or Other Hedging Agreement, whether now in
existence or hereafter arising, and the due performance and compliance with all
terms, conditions and agreements contained therein.
"Guarantor" shall mean each Subsidiary Guarantor.
"Guaranty" shall mean the Subsidiary Guaranty made pursuant to Section
5.15, and any Subsidiary Guaranty executed pursuant to Section 8.11(f).
"Hazardous Materials" shall mean (a) any petrochemical or petroleum
products, radioactive materials, asbestos in any form that is friable, urea
formaldehyde foam insulation, transformers or other equipment that contain
dielectric fluid containing levels of polychlorinated biphenyls, and radon gas;
and (b) any chemicals, materials or substances defined as or included in the
definition of "hazardous substances," "hazardous wastes," "hazardous materials,"
"restricted hazardous materials," "extremely hazardous materials," "restrictive
hazardous wastes," "toxic substances," "toxic pollutants," "contaminants" or
"pollutants," or words of similar meaning and regulatory effect under any
applicable Environmental Law.
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"Incremental Commitment" shall mean a commitment to make additional Term
Loans or increase the Revolving Loan Commitment pursuant to Section 1.14.
"Incremental Commitment Agreement" shall mean an Incremental Commitment
Agreement substantially in the form of Exhibit O (appropriately completed).
"Incremental Commitment Termination Date" shall mean December 31, 2002.
"Incremental Lender" shall have the meaning provided in Section 1.14(b).
"Incremental Term Loan" shall have the meaning provided in Section 1.01(h).
"Incremental Term Loan Borrowing Date" shall mean for any Incremental Term
Loan, the date specified in the respective Incremental Commitment Agreement
pursuant to which such Incremental Term Loans are to be made; provided that no
such date shall occur after the Incremental Commitment Termination Date.
"Incremental Term Loan Commitment" shall mean, for each Incremental Lender,
the commitment of such Incremental Lender to make Incremental Term Loans under a
term Loan Tranche pursuant to Section 1.01(h) on a given Incremental Term Loan
Borrowing Date, as such commitment (x) is set forth in the respective
Incremental Commitment Agreement delivered pursuant to Section 1.14(b) or (y)
may be terminated pursuant to Sections 3.03 and/or 10.
"Indebtedness" shall mean, as to any Person, without duplication, (i) all
indebtedness (including principal, interest, fees and charges) of such Person
for borrowed money or for the deferred purchase price of property or services
(other than, to the extent deferred in the ordinary course of business, deferred
payments in respect of services by employees) due more than 90 days after
acquisition of the property or receipt of services or which is otherwise
represented by a note, (ii) the maximum amount available to be drawn under all
letters of credit issued for the account of such Person and all unpaid drawings
in respect of such letters of credit, (iii) all Indebtedness of the types
described in clause (i), (ii), (iv), (v) or (vi) of this definition secured by
any Lien on any property owned by such Person, whether or not such Indebtedness
has been assumed by such Person (to the extent of the lesser of the amount of
such Indebtedness and the value of the respective property), (iv) Capitalized
Lease Obligations, (v) all Contingent Obligations of such Person, (vi) all
obligations under any Interest Rate Protection or Other Hedging Agreement or
under any similar type of agreement and (vii) all obligations under Synthetic
Leases of such Person. The principal amount of Indebtedness arising from royalty
obligations representing the deferred purchase price of property or services
shall equal the greater of (x) the principal amount thereof as determined in
accordance with GAAP and (y) the present value of the amounts the management of
the Borrower believes in good faith will be required to be paid under such
royalty obligation, provided that in the case of the Futuresouth Royalty, the
principal amount of such Indebtedness shall equal the present value of the
greater of (x) the minimum royalty payments and (y) the amount actually paid in
respect of the Futuresouth Royalty in respect of the most recently ended period.
"Initial Borrowing Date" shall mean the date occurring on or after the
Effective Date on which the initial Borrowing of Term Loans hereunder occurs.
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"Intellectual Property" shall have the meaning provided in Section 7.23.
"Interest Determination Date" shall mean, with respect to any Eurodollar
Loan, the second Business Day prior to the commencement of any Interest Period
relating to such Eurodollar Loan.
"Interest Period" shall have the meaning provided in Section 1.09.
"Interest Rate Protection or Other Hedging Agreement" shall have the
meaning provided in the Security Documents.
"Investment" shall have the meaning provided in Section 9.05.
"Investment Entity" shall mean an Person in which an Investment is made by
the Borrower and its Subsidiaries.
"Issuing Lender" shall mean BTCo or any of its Affiliates including, but
not limited to, Deutsche Bank AG, New York Branch, and, in the event BTCo or
such Affiliate declines to become an Issuing Lender for the purpose of issuing
Letters of Credit pursuant to Section 2, any Lender which at the request of the
Borrower and with the consent of the Administrative Agent agrees, in such
Lender's sole discretion, to become an Issuing Lender for the purpose of issuing
Letters of Credit pursuant to Section 2. On the Initial Borrowing Date, the sole
Issuing Lender is (x) in the case of Standby Letters of Credit, BTCo and (y) in
the case of Trade Letters of Credit, Deutsche Bank AG, New York Branch.
"Joint Venture" shall mean any Person, other than an individual or a
Subsidiary of the Borrower, (i) in which the Borrower or a Subsidiary of the
Borrower holds or acquires an ownership interest (whether by way of capital
stock, partnership or limited liability company interest, or other evidence of
ownership) and (ii) which is engaged in a business permitted under Section 9.16.
"L/C Supportable Obligations" shall mean obligations of the Borrower or its
Subsidiaries incurred in the ordinary course of business including, without
limitation, the Borrower's obligations under the Revenue Bonds Guaranty
Agreement and the Development Agreement.
"Leaseholds" of any Person means all the right, title and interest of such
Person as lessee or licensee in, to and under leases or licenses of land,
improvements and/or fixtures.
"Lender" shall mean each financial institution listed on Schedule I, as
well as any Person which becomes a "Lender" hereunder pursuant to Sections 1.13
and 13.04(b), provided that in any event, each such institution shall be a
Qualified Person.
"Lender Default" shall mean (i) the refusal (which has not been retracted)
of a Lender to make available its portion of any Borrowing (including a
Mandatory Borrowing) or to fund its portion of any unreimbursed payment under
Section 2.03(c) or (ii) a Lender having notified in writing the Borrower and/or
the Administrative Agent that it does not intend to comply with its obligations
under Section 1.01(d), Section 1.01(e), Section 1.01(g) or Section 2.
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"Letter of Credit" shall have the meaning provided in Section 2.01(a).
"Letter of Credit Fee" shall have the meaning provided in Section 3.01(b).
"Letter of Credit Outstandings" shall mean, at any time, the sum of (i) the
aggregate Stated Amount of all outstanding Letters of Credit and (ii) the amount
of all Unpaid Drawings relating to Letters of Credit.
"Letter of Credit Request" shall have the meaning provided in Section
2.02(a).
"Leverage Ratio" shall mean on the date of determination thereof the ratio
of (i) Consolidated Indebtedness on such date to (ii) Consolidated EBITDA for
the Test Period ended on the last day of the fiscal quarter last ended prior to
the date such determination is made, provided that all calculations of
compliance with Section 9.08 and 9.09 shall be on a Pro Forma Basis.
"Lien" shall mean any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), preference, priority or
other security agreement of any kind or nature whatsoever (including, without
limitation, any conditional sale or other title retention agreement, any
financing or similar statement or notice filed under the UCC or any other
similar recording or notice statute, and any lease having substantially the same
effect as any of the foregoing).
"Loan" shall mean each Term Loan, each RTL Loan, each Revolving Loan and
each Swingline Loan.
"Maintenance Capital Expenditures" shall mean any Capital Expenditures by
the Borrower or any of its Subsidiaries that are made to maintain, restore or
refurbish the condition or usefulness of property of the Borrower or any of its
Subsidiaries (including, without limitation, upgrading gaming devices in the
ordinary course of business), or otherwise to support the continuation of such
Person's day-to-day operations as then conducted, but that are not properly
chargeable to repairs and maintenance in accordance with GAAP.
"Majority Grid Lenders" shall mean Non-Defaulting Lenders, the sum of whose
outstanding A Term Loans, RTL Loans (or if prior to the earlier of the RTL
Conversion Date and the termination thereof, RTL Commitments) and Revolving Loan
Commitments (or after the termination thereof, outstanding Revolving Loans and
Revolving Loan Percentage of outstanding Swingline Loans and Letter of Credit
Outstandings) represent an amount greater than 50% of the sum of (x) all
outstanding A Term Loans of Non-Defaulting Lenders, (y) all RTL Loans of
Non-Defaulting Lenders (or if prior to the earlier of the RTL Conversion Date
and the termination thereof, the Total RTL Commitment) and (z) the Total
Revolving Loan Commitment (or after the termination thereof, the sum of the then
total outstanding Revolving Loans and Revolving Loan Percentage of
Non-Defaulting Lenders of the then outstanding Swingline Loans and Letter of
Credit Outstandings at such time) of Non-Defaulting Lenders.
"Majority Lenders" shall mean collectively (and not individually) with
respect to any Tranche, Non-Defaulting Lenders whose outstanding Term Loans of
such Tranche (or, if prior to the Initial Borrowing Date, Term Loan Commitments
of such Tranche) constitute at least
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a majority of the total outstanding Term Loans of such Tranche (or, if prior to
the Initial Borrowing Date, Term Loan Commitments of such Tranche) of all
Non-Defaulting Lenders.
"Management Agreements" shall have the meaning provided in Section 5.05.
"Mandatory Borrowing" shall have the meaning provided in Section 1.01(g).
"Margin Reduction Period" shall mean each period which shall commence on
the date occurring after the Effective Date upon which the respective officer's
certificate is delivered pursuant to Section 8.01(f) and which shall end on the
date of actual delivery of the next officer's certificates pursuant to Section
8.01(f) or the latest date on which such next officer's certificate is required
to be so delivered.
"Margin Stock" shall have the meaning provided in Regulation U.
"Material Adverse Effect" shall mean a material adverse effect on (i) the
business, operations, properties, assets, liabilities, condition (financial or
otherwise) or prospects of the Borrower and its Subsidiaries taken as a whole
(after giving effect to the Transaction), (ii) the ability of the Credit Parties
to perform their material obligations under the Credit Documents or (iii) the
rights and remedies of the Administrative Agent and the Lenders under the Credit
Documents.
"Material Contracts" shall have the meaning provided in Section 5.05.
"Material Gaming Facility" means any gaming facility the absence, loss or
closing of which could reasonably be expected to have a Material Adverse Effect,
including in any event the Specified Casino Properties.
"Material Subsidiary" shall mean each Subsidiary of Borrower now existing
or hereafter acquired or formed by Borrower which, (a) on a consolidated basis
for such Subsidiary and its Subsidiaries, (i) for the four fiscal quarters most
recently ended accounted for more than 1% of the Consolidated EBITDA of the
Borrower and its Subsidiaries, or (ii) as at the end of such four fiscal
quarters, was the owner of more than 1% of the consolidated assets of Company
and its Subsidiaries, (b) owns, supplies, operates or uses any assets or
function necessary for the conduct of business at any Material Gaming Facility,
or (c) owns any material Intellectual Property necessary for the conduct of
business at any of the Material Gaming Facilities; provided that the
Subsidiaries of the Borrower which are not otherwise Material Subsidiaries but
for this proviso shall be Material Subsidiaries to the extent that on a
consolidated basis all such Subsidiaries and their Subsidiaries (i) for the four
fiscal quarters most recently ended accounted for more than 5% of the
Consolidated EBITDA of the Borrower and its Subsidiaries or (ii) as at the end
of such four fiscal quarters were the owner of more than 5% of the consolidated
assets of the Borrower and its Subsidiaries, provided that in any event each
Subsidiary which is required to be a guarantor of the Subordinated Bridge Loans
or the Permanent Senior Subordinated Notes shall be a "Material Subsidiary".
"Maturity Date" shall mean, with respect to any Tranche the final maturity
date under such Tranche (i.e., the A Term Maturity Date, the B Term Maturity
Date, the C Term
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Maturity Date, the RTL Maturity Date, the Revolving Loan Maturity Date and the
Swingline Expiry Date, as the case may be).
"Maximum Permitted Consideration" shall mean, with respect to any Permitted
Acquisition, the sum (without duplication) of (i) the fair market value of
Borrower capital stock issued as consideration in connection with such Permitted
Acquisition, (ii) the aggregate principal amount of all cash paid by the
Borrower or any of its Subsidiaries in connection with such Permitted
Acquisition (including payments of fees and costs and expenses in connection
therewith), and (iii) the fair market value (determined in good faith by senior
management of the Borrower) of all other consideration payable in connection
with such Permitted Acquisition.
"Maximum Swingline Amount" shall mean $10,000,000.
"Minimum Borrowing Amount" shall mean (A) with respect to Base Rate Loans,
(i) for Term Loans of any Tranche, $1,000,000 (and, if greater, in an integral
multiple thereof), (ii) for RTL Loans, $1,000,000 (and, if greater, in an
integral multiple thereof), (iii) for Revolving Loans, $1,000,000 (and, if
greater, in an integral multiple thereof) and (iv) for Swingline Loans,
$1,000,000 (and, if greater, in an integral multiple thereof) and (B) with
respect to Eurodollar Loans, (i) for Term Loans of any Tranche, $10,000,000
(and, if greater, in an integral multiple of $1,000,000), (ii) for RTL Loans,
$10,000,000 (and, if greater, in an integral multiple of $1,000,000) and (iii)
for Revolving Loans, $5,000,000 (and, if greater, in an integral multiple of
$1,000,000).
"Missouri Stock Option Agreements" shall mean the four Non-qualified Stock
Option Agreements dated as of December 18, 2000 between the Borrower on the one
hand, and ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ on the
other hand, in each case as in effect on the Initial Borrowing Date and without
giving effect to any amendment, modification or supplement thereto made without
the prior written consent of the Administrative Agent.
"Mortgage" shall have the meaning provided in Section 5.09(a), and, after
the execution and delivery thereof, shall include each Additional Mortgage
delivered pursuant to Section 8.11.
"Mortgage Policies" shall have the meaning provided in Section 5.09(c).
"Mortgaged Property" shall have the meaning provided in Section 5.09(a)
and, after the execution or delivery thereof, shall include each property
covered by an Additional Mortgage.
"Mortgaged Ship Property" shall have the meaning provided in Section 5.17
and, after the execution or delivery thereof, shall include each property
covered by an Additional Ship Mortgage.
"▇▇▇▇▇▇▇ Family Group" shall mean collective reference to (i) ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇ and their respective executors, administrators,
testamentary trustees, heirs, legatees and beneficiaries, (ii) ▇▇▇▇▇ ▇▇▇▇▇▇▇ or
▇▇▇ ▇▇▇▇▇▇▇ in their respective capacities as a trustee under a revocable trust,
together with each successor trustees thereof, (iii) any corporation,
partnership,
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trust or other Person in which no one has any interest (directly or indirectly)
except for ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇ and any spouse and descendants (whether by
blood or adoption and including stepchildren) and the spouses of any such
natural person and (iv) ▇▇▇▇▇ ▇▇▇▇▇▇▇ or ▇▇▇ ▇▇▇▇▇▇▇ as the executor of the
estate of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ or of any Person named above.
"Net Asset Sale Proceeds" shall mean for any sale, lease, transfer or other
disposition of assets, the gross cash proceeds (including any cash received by
way of deferred payment pursuant to a promissory note, receivable or otherwise,
but only as and when received) received by the Borrower and/or any of its
Subsidiaries from such sale, lease, transfer or other disposition, net of
reasonable transaction costs (including, without limitation, any underwriting,
brokerage or other customary selling commissions and reasonable legal, advisory
and other fees and expenses, including title and recording expenses and
reasonable expenses incurred for preparing such assets for sale, associated
therewith) and payments of unassumed liabilities relating to the assets sold at
the time of, or within 30 days after, the date of such sale, the amount of such
gross cash proceeds required to be used to repay any Indebtedness (other than
Indebtedness of the Lenders pursuant to this Agreement) which is secured by the
respective assets which were sold, and the estimated marginal increase in income
taxes which will be payable in cash by the Borrower's consolidated group with
respect to the fiscal year in which the sale occurs as a result of such sale;
but excluding any portion of any such gross cash proceeds which the Borrower
determines in good faith should be reserved for post-closing adjustments (to the
extent the Borrower delivers to the Lenders a certificate signed by an
Authorized Officer as to such determination), it being understood and agreed
that on the day that all such post-closing adjustments have been determined
(which shall not be later than 60 days following the date of the respective
asset sale), the amount (if any) by which the reserved amount in respect of such
sale or disposition exceeds the actual post-closing adjustments payable by the
Borrower or any of its Subsidiaries shall constitute Net Asset Sale Proceeds on
such date).
"Non-Compete Agreements" shall have the meaning provided in Section 5.05.
"Non-Defaulting Lender" shall mean and include each Lender which is not a
Defaulting Lender.
"Non-Wholly-Owned Subsidiary" shall mean, as to any Person, a Subsidiary of
such Person which is not a Wholly-Owned Subsidiary.
"Note" shall mean each Term Note, each RTL Note, each Revolving Note and
the Swingline Note.
"Notice of Borrowing" shall have the meaning provided in Section 1.03.
"Notice of Conversion" shall have the meaning provided in Section 1.06.
"Notice Office" shall mean the office of the Administrative Agent located
at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, or
such other office as the Administrative Agent may hereafter designate in writing
as such to the other parties hereto.
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"Obligations" shall mean all amounts owing to the Administrative Agent, the
Collateral Agent or any Lender pursuant to the terms of this Agreement or any
other Credit Document.
"Participant" shall have the meaning provided in Section 2.03(a).
"Payment Office" shall mean the office of the Administrative Agent located
at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇▇▇, or
such other office as the Administrative Agent may hereafter designate in writing
as such to the other parties hereto.
"PBGC" shall mean the Pension Benefit Guaranty Corporation established
pursuant to Section 4002 of ERISA, or any successor thereto.
"Permanent Exchange Senior Subordinated Notes" shall mean senior
subordinated notes issued pursuant to the Permanent Senior Subordinated Notes
Indenture, which Permanent Exchange Senior Subordinated Notes are substantially
identical securities to the Permanent Senior Subordinated Notes and shall be
issued pursuant to a registered exchange offer or private exchange offer for the
Permanent Senior Subordinated Notes; provided that in no event will the issuance
of any Permanent Exchange Senior Subordinated Notes increase the aggregate
principal amount of Permanent Senior Subordinated Notes theretofore outstanding
or otherwise result in an increase in an interest rate applicable to the
Permanent Senior Subordinated Notes.
"Permanent Senior Subordinated Notes" shall mean any Indebtedness of the
Borrower evidenced by senior subordinated notes and incurred pursuant to one or
more issuances of such subordinated notes to Refinance all or a portion of the
then outstanding Subordinated Bridge Loans, so long as (a) such refinancing or
renewal does not add guarantors, obligors or security from that which applied to
the Subordinated Bridge Loans, (b) such Indebtedness has substantially the same
(or, from the perspective of the Lenders, more favorable) subordination
provisions as those contained in the Senior Subordinated Financing Agreement,
(c) such Indebtedness does not mature prior to December 31, 2008 and (d) all
other terms of such refinancing (including, without limitation, with respect to
the redemption provisions, maturities, covenants, defaults and remedies), are
reasonably satisfactory to the Administrative Agent and are not, taken as a
whole, materially less favorable to the Borrower than those previously existing
with respect to the Subordinated Bridge Loans; provided that the aggregate
principal amount of any issuance of Permanent Senior Subordinated Notes may not
exceed the principal amount of the Subordinated Bridge Loans unless 100% of the
net cash proceeds of the principal amount of Permanent Senior Subordinated Notes
which exceeds the principal amount of Subordinated Bridge Loans is applied to
repay Term Loans and/or reduce the Total Revolving Loan Commitment and/or the
Total RTL Commitment as provided pursuant to Section 4.02(A)(g). As used herein,
the term "Permanent Senior Subordinated Notes" shall also include any Permanent
Exchange Senior Subordinated Notes issued pursuant to the Permanent Senior
Subordinated Notes Indenture in exchange for theretofore outstanding Permanent
Senior Subordinated Notes as contemplated by the definition of Permanent
Exchange Senior Subordinated Notes. The issuance of Permanent Senior
Subordinated Notes shall be deemed to be a representation and warranty by the
Borrower that all conditions thereto have been satisfied in all material
respects and that same is permitted in accordance with the terms of this
Agreement, which representation
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and warranty shall be deemed to be a representation and warranty for all
purposes hereunder, including, without limitation, Sections 6 and 10.
"Permanent Senior Subordinated Notes Documents" shall mean the Permanent
Senior Subordinated Notes Indenture, the Permanent Senior Subordinated Notes and
each other agreement, document or instrument relating to the issuance of the
Permanent Senior Subordinated Notes.
"Permanent Senior Subordinated Notes Indenture" shall mean any indenture
entered into in connection with the issuance of Permanent Senior Subordinated
Notes.
"Permanent Senior Subordinated Notes Prepayment Amount" shall mean the
first $50,000,000 of the net proceeds of Permanent Senior Subordinated Notes in
excess of $300,000,000.
"Permitted Acquisition" shall mean the acquisition by the Borrower or any
of its Wholly-Owned Domestic Subsidiaries of assets constituting a business,
division or product line of any Person not already a Subsidiary of the Borrower
or any of its Wholly-Owned Subsidiaries or of 100% of the capital stock or other
equity interests of any such Person, provided that (A) those acquisitions that
are structured as stock acquisitions shall be effected through a purchase of at
least 90% of the capital stock or other equity interests of such Person by the
Borrower or such Domestic Wholly-Owned Subsidiary or through a merger between
such Person and a Domestic Wholly-Owned Subsidiary of the Borrower, so that
after giving effect to such merger, at least 90% of the capital stock or other
equity interests of the surviving corporation of such merger is owned by the
Borrower or a Domestic Wholly-Owned Subsidiary, (B) in the case of the
acquisition of at least 90% of the capital stock or other equity interests of
any Person, such Person (the "Acquired Person") shall own no capital stock or
other equity interests of any other Person unless the Acquired Person owns 100%
of the capital stock or other equity interests of such other Person, (C)
substantially all of the business, division or product line acquired pursuant to
the respective Permitted Acquisition, or the business of the Acquired Person and
its Subsidiaries taken as a whole, is in the United States, (D) the assets
acquired, or the business of the Acquired Person and its Subsidiaries, shall be
in a business permitted to be conducted pursuant to Section 9.16 and (E) all
applicable requirements of Section 8.12 applicable to Permitted Acquisitions are
satisfied.
"Permitted Encumbrance" shall mean, with respect to any Mortgaged Property,
such exceptions to title as are set forth in the title insurance policy or title
commitment delivered with respect thereto, all of which exceptions must be
acceptable to the Administrative Agent in its reasonable discretion.
"Permitted Liens" shall have the meaning provided in Section 9.01.
"Person" shall mean any individual, partnership, joint venture, firm,
corporation, association, trust or other enterprise or any government or
political subdivision or any agency, department or instrumentality thereof.
"Plan" shall mean any multiemployer or single-employer plan, as defined in
Section 4001 of ERISA, which is maintained or contributed to by (or to which
there is an
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obligation to contribute of), the Borrower or a Subsidiary of the Borrower or an
ERISA Affiliate, and each such plan with respect to which the Borrower, a
Subsidiary of the Borrower or an ERISA Affiliate maintained, contributed or had
an obligation to contribute to such plan and with respect to which any such
entity has any actual or contingent liability.
"Pledge Agreement" shall have the meaning provided in Section 5.07.
"Pledge Agreement Collateral" shall mean all "Collateral" as defined in the
Pledge Agreement.
"Pledged Securities" shall mean "Pledged Securities" as defined in the
Pledge Agreement.
"Prime Lending Rate" shall mean the rate which Bankers Trust Company
announces from time to time as its prime lending rate, the Prime Lending Rate to
change when and as such prime lending rate changes. The Prime Lending Rate is a
reference rate and does not necessarily represent the lowest or best rate
actually charged to any customer. Bankers Trust Company may make commercial
loans or other loans at rates of interest at, above or below the Prime Lending
Rate.
"Pro Forma Basis" shall mean, in connection with any calculation of
compliance with any financial covenant or financial term, the calculation
thereof after giving effect on a pro forma basis to (i) the assumption,
incurrence or issuance of any Indebtedness (other than revolving Indebtedness,
except to the extent same is incurred to refinance other outstanding
Indebtedness or to finance Permitted Acquisitions) after the first day of the
relevant Calculation Period as if such Indebtedness had been assumed, incurred
or issued (and the proceeds thereof applied) on the first day of the relevant
Calculation Period, (ii) the permanent repayment of any Indebtedness (other than
such revolving Indebtedness) after the first day of the relevant Calculation
Period as if such Indebtedness had been retired or repaid on the first day of
the relevant Calculation Period and (iii) the Permitted Acquisition, if any,
then being consummated as if such Permitted Acquisition (and all other Permitted
Acquisitions consummated after the first day of the relevant Calculation Period
and on or prior to the Calculation Date) had been effected on the first day of
the respective Calculation Period, with the following rules to apply in
connection therewith:
(a) all Indebtedness (x) (other than revolving Indebtedness, except to
the extent same is incurred to finance the Transaction, to refinance other
outstanding Indebtedness, or to finance Permitted Acquisitions) assumed,
incurred or issued after the first day of the relevant Calculation Period
and on or prior to the Calculation Date (whether incurred to finance a
Permitted Acquisition, to refinance Indebtedness or otherwise) shall be
deemed to have been assumed, incurred or issued (and the proceeds thereof
applied) on the first day of the respective Calculation Period and remain
outstanding through the Calculation Date and (y) (other than revolving
Indebtedness unless the commitments with respect thereto have been
terminated) permanently retired or redeemed after the first day of the
relevant Calculation Period shall be deemed to have been retired or
redeemed on the first day of the respective Calculation Period and remain
retired through the Calculation Date;
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(b) all Indebtedness assumed to be outstanding pursuant to preceding
clause (i) shall be deemed to have borne interest (x) at the rate
applicable thereto, in the case of fixed rate Indebtedness or (y) at the
rates which would have been applicable thereto during the respective period
when same was deemed outstanding, in the case of floating rate Indebtedness
(although interest expense with respect to any Indebtedness for periods
while same was actually outstanding during the respective period shall be
calculated using the actual rates applicable thereto while same was
actually outstanding); and
(c) in making any determination of Consolidated EBITDA, pro forma
effect shall be given to any Permitted Acquisition for the respective
period being tested, taking into account, cost savings and expenses which
would otherwise be accounted for as an adjustment pursuant to Article 11 of
Regulation S-X under the Securities Act, as if such cost-savings or
expenses were realized on the first day of the respective period.
Notwithstanding anything to the contrary contained above, (x) for the purposes
of Sections 9.08 and 9.09 pro forma effect (as otherwise provided above) shall
only be given for events or occurrences which occurred during the respective
Test Period but not thereafter and (y) for purposes of Section 8.12, pro forma
effect (as otherwise provided above) shall be given for events or occurrences
which occurred during the respective Calculation Period and thereafter but on or
prior to the respective date of determination.
"Projections" shall have the meaning provided in Section 7.05(d).
"Qualified Person" shall mean, with respect to any Lender party to this
Agreement on the Initial Borrowing Date or that becomes a Lender pursuant to
Section 1.13, 13.04(b) or 13.04(c), any Person which shall not have been found
unsuitable under the Gaming Regulations of any, and which meets the requirements
of all, jurisdictions regulating the Gaming Business of the Borrower and its
Subsidiaries to the extent that the Borrower has so notified the Lenders of such
requirements of such jurisdictions pursuant to Section 13.04(e).
"Quarterly Payment Date" shall mean the last Business Day of each March,
June, September and December commencing with March 2001.
"Real Property" of any Person shall mean all the right, title and interest
of such Person in and to land, improvements and fixtures, including Leaseholds.
"Recovery Event" shall mean the receipt by the Borrower or any of its
Subsidiaries of any (i) cash insurance proceeds payable (x) by reason of theft,
loss, physical destruction or damage or any other similar event with respect to
any property or assets of the Borrower or any of its Subsidiaries and (y) under
any policy of insurance required to be maintained under Section 8.03 or (ii)
condemnation award payable by reason of eminent domain or deed in lieu thereof.
"Reference Lender" shall mean Bankers Trust Company.
"Refinance" shall mean, with respect to any the outstanding Indebtedness,
the issuance of Indebtedness issued or given in exchange for, or the proceeds of
which are used to, extend, refinance, renew, replace, substitute or refund such
theretofore outstanding Indebtedness.
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"Refinanced Indebtedness" shall mean, collectively, all Existing
Indebtedness (other than Retained Indebtedness) repaid in connection with the
Transaction.
"Refinancing" shall mean, collectively, the Debt Retirement and the payment
of all obligations under the Existing Indebtedness (other than Retained
Indebtedness).
"Refinancing Documents" shall mean all documents executed in connection
with the Refinancing.
"Register" shall have the meaning set forth in Section 13.16.
"Regulation D" shall mean Regulation D of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor to all
or a portion thereof establishing reserve requirements.
"Regulation T" shall mean Regulation T of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor to all
or a portion thereof.
"Regulation U" shall mean Regulation U of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor to all
or a portion thereof.
"Regulation X" shall mean Regulation X of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor to all
or a portion thereof.
"Reinvestment Assets" shall mean any capital assets to be employed in the
business of the Borrower and its Subsidiaries or capital stock of a Person that
becomes a Subsidiary Guarantor.
"Reinvestment Election" shall have the meaning provided in Section
4.02(A)(h).
"Reinvestment Notice" shall mean a written notice signed by the Authorized
Officer of the Borrower stating that the Borrower, in good faith, intends and
expects to use all or a specified portion of the Net Asset Sale Proceeds of an
Asset Sale to purchase, construct or otherwise acquire Reinvestment Assets.
"Release" shall mean any spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, dumping, disposing or
migration into the environment.
"Replaced Lender" shall have the meaning provided in Section 1.13.
"Replacement Lender" shall have the meaning provided in Section 1.13.
"Reportable Event" shall mean an event described in Section 4043(c) of
ERISA with respect to a Plan that is subject to Title IV of ERISA other than
those events as to which the 30-day notice period is waived under subsection
.22, .23, .25, .27 or .28 of PBGC Regulation Section 4043.
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"Required Equity Percentage" shall mean (i) at any time that clause (ii)
below is not applicable, 100% and (ii) at any time when the Leverage Ratio is
less than 4.00 to 1.00, 50%.
"Required Lenders" shall mean Non-Defaulting Lenders, the sum of whose
outstanding Term Loans (or, if prior to the Initial Borrowing Date, Term Loan
Commitments), RTL Loans (or, if prior to the RTL Conversion Date, RTL
Commitments) and Revolving Loan Commitments (or after the termination thereof,
outstanding Revolving Loans and Revolving Loan Percentage of outstanding
Swingline Loans and Letter of Credit Outstandings) represent an amount greater
than 50% of the sum of (x) all outstanding Term Loans (or, if prior to the
Initial Borrowing Date, Term Loan Commitments) of Non-Defaulting Lenders, (y)
all outstanding RTL Loans (or, if prior to the RTL Conversion Date, RTL
Commitments) of Non-Defaulting Lenders and (z) the Total Revolving Loan
Commitment (or after the termination thereof, the sum of the then total
outstanding Revolving Loans and Revolving Loan Percentage of Non-Defaulting
Lenders of the then outstanding Swingline Loans and Letter of Credit
Outstandings at such time) of Non-Defaulting Lenders.
"Retained Indebtedness" shall have the meaning provided in Section 7.22.
"Returns" shall have the meaning provided in Section 7.09.
"Revenue Bonds Guaranty Agreement" shall mean that certain Guaranty
Agreement dated as of July 15, 1999 between The ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and Kansas City Station Corporation, as such Guaranty may
be amended, modified or otherwise replaced provided that the obligation of the
Borrower and its Subsidiaries thereunder are not increased.
"Revolving Loan" shall have the meaning provided in Section 1.01(e).
"Revolving Loan Commitment" shall mean, for each Lender, the amount set
forth opposite such Lender's name in Schedule I hereto directly below the column
entitled "Revolving Loan Commitment", as same may be (x) reduced from time to
time pursuant to Sections 3.02, 3.03, 4.02(A) and/or 10, (y) increased pursuant
to Section 1.14 or (z) adjusted from time to time as a result of assignments to
or from such Lender pursuant to Section 1.13 or 13.04(b).
"Revolving Loan Commitment Commission" shall have the meaning provided in
Section 3.01(a).
"Revolving Loan Commitment Sublimit" shall mean, on any date, the sum of
(i) (x) prior to the consummation of the Disposition, $75,000,000 (or
$85,000,000 at any time prior to March 31, 2001) and (y) on and after the
consummation of the Disposition, $50,000,000, (ii) the Revolving Loan Facility
Expansion Amount (as determined before giving effect to any Revolving Loans,
Swingline Loans or Letters of Credit being made or issued on such date) and
(iii) the amount by which the Total Revolving Loan Commitment shall be increased
pursuant to Section 1.14..
"Revolving Loan Facility Expansion Amount" shall mean the aggregate
principal amount of Revolving Loans, Swingline Loans and Letters of Credit the
proceeds of which have been utilized to finance the Facilities Expansion.
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"Revolving Loan Maturity Date" shall mean December 20, 2005.
"Revolving Note" shall have the meaning provided in Section 1.05(a).
"Revolving Outstandings" shall mean, at any time, the sum of the aggregate
principal amount of the Revolving Loans, Swingline Loans and Letter of Credit
Outstanding at such time.
"Revolving Loan Percentage" shall mean, at any time, for each Lender with a
Revolving Loan Commitment, the percentage obtained by dividing such Lender's
Revolving Loan Commitment by the Total Revolving Loan Commitment; provided that,
if the Total Revolving Loan Commitment has been terminated, the Revolving Loan
Percentage of each such Lender shall be determined by dividing such Lender's
Revolving Loan Commitment immediately prior to such termination by the Total
Revolving Loan Commitment immediately prior to such termination.
"RTL Commitment" shall mean, for each Lender, the amount set forth opposite
such Lender's name in Schedule I hereto directly below the column entitled "RTL
Commitment", as same may be (x) reduced from time to time pursuant to Sections
3.02, 3.03, 4.02(A) and/or 10 or (y) adjusted from time to time as a result of
assignments to or from such Lender pursuant to Section 1.13 or 13.04(b).
"RTL Commitment Commission" shall have the meaning provided in Section
3.01(a).
"RTL Conversion Date" shall mean December 31, 2002.
"RTL Loan" shall have the meaning provided in Section 1.01(d).
"RTL Loan Scheduled Repayment" shall have the meaning provided in Section
4.02(A)(e).
"RTL Maturity Date" shall mean December 20, 2005.
"RTL Note" shall have the meaning provided in Section 1.05(a).
"RTL Reference Amount" shall have the meaning provided in Section
4.02(A)(e).
"Scheduled Repayments" shall have the meaning provided in Section
4.02(A)(d).
"SEC" shall mean the Securities and Exchange Commission.
"Section 4.04(b)(ii) Certificate" shall have the meaning provided in
Section 4.04(b).
"Secured Creditors" shall have the meaning assigned that term in the
Security Documents.
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"Securities Act" shall mean the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
"Security Agreement" shall have the meaning provided in Section 5.08 and
include any Additional Security Document delivered pursuant to Section 8.11.
"Security Agreement Collateral" shall mean all "Collateral" as defined in
the Security Agreement.
"Security Document" shall mean and include the Pledge Agreement, the
Security Agreement, each Mortgage, each Ship Mortgage and, after the execution
and delivery thereof, each Additional Mortgage, Additional Ship Mortgage and
each Additional Security Document required to be delivered pursuant to Section
8.11.
"Senior Consolidated Indebtedness" shall mean all Consolidated Indebtedness
other than (x) the Subordinated Bridge Loans and the Permanent Senior
Subordinated Notes and (y) any other Indebtedness which by its terms is
contractually subordinated to any other Indebtedness of the Borrower and its
Subsidiaries.
"Senior Leverage Ratio" shall mean on the date of determination thereof the
Leverage Ratio at such date except that the reference therein to "Consolidated
Indebtedness" shall be deemed to be a reference to "Senior Consolidated
Indebtedness".
"Senior Subordinated Financing" shall mean the credit facilities provided
to the Borrower on a bridge basis pursuant to the Senior Subordinated Financing
Agreement.
"Senior Subordinated Financing Agreement" shall mean that certain loan
agreement dated as of December 20, 2000 by and between the Borrower, the
Subsidiary Guarantors, the lenders named therein and Bankers Trust Company.
"Senior Subordinated Financing Documents" shall mean the Senior
Subordinated Financing Agreement and all other documents executed in connection
with the Senior Subordinated Financing.
"Shareholders' Agreements" shall have the meaning provided in Section 5.05.
"Ship Mortgage" shall have the meaning provided in Section 5.17 and, after
the execution and delivery thereof, shall include each Additional Ship Mortgage
delivered pursuant to Section 8.11.
"Ship Property" shall mean each of the vessels listed on Schedule XI on
which the riverboat casino hotel businesses and related activities of the
Borrower and its Subsidiaries are conducted.
"Specified Casino Properties" shall mean, collectively, the Acquired
Businesses, and the properties of the Borrower known as "Ameristar Vicksburg",
"Ameristar Council Bluffs", "Cactus Pete's" and "The Horseshu".
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"Standby Letter of Credit" shall have the meaning provided in Section
2.01(a).
"Start Date" shall mean, with respect to any Margin Reduction Period, the
first day of such Margin Reduction Period.
"Stated Amount" of each Letter of Credit shall, at any time, mean the
maximum amount available to be drawn thereunder (in each case determined without
regard to whether any conditions to drawing could then be met).
"Station" shall mean Station Casinos, Inc., a Nevada corporation.
"Station Casino Kansas City" shall mean the gaming and entertainment
facility commonly known as Station Casino Kansas City prior to the Acquisition.
"Station Casino St. ▇▇▇▇▇▇▇" shall mean the gaming and entertainment
facility commonly known as Station Casino St. ▇▇▇▇▇▇▇ prior to the Acquisition.
"Subordinated Bridge Loans" shall mean the loans incurred by the Borrower
under the Senior Subordinated Financing Agreement.
"Subsidiary" shall mean, as to any Person, (i) any corporation more than
50% of whose stock of any class or classes having by the terms thereof ordinary
voting power to elect a majority of the directors of such corporation
(irrespective of whether or not at the time stock of any class or classes of
such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time owned by such Person and/or one or
more Subsidiaries of such Person and (ii) any partnership, association, joint
venture or other entity in which such Person and/or one or more Subsidiaries of
such Person has more than a 50% equity interest at the time.
"Subsidiary Guarantor" shall mean each Subsidiary of the Borrower.
"Subsidiary Guaranty" shall have the meaning provided in Section 5.15.
"Substitute Lender" shall have the meaning provided in Section 13.04(c).
"Swingline Expiry Date" shall mean the date which is five Business Days
prior to the Revolving Loan Maturity Date.
"Swingline Lender" shall mean Bankers Trust Company, in its capacity as the
lender of Swingline Loans.
"Swingline Loans" shall have the meaning provided in Section 1.01(f).
"Swingline Note" shall have the meaning provided in Section 1.05(a).
"Syndication Termination Date" shall mean the date which is the earlier of
(i) the 60th day after the Initial Borrowing Date or (ii) the date on which the
Administrative Agent, in its
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sole discretion, determines (and notifies the Borrower) that the primary
syndication (and the resultant addition of institutions as Lenders pursuant to
Section 13.04) has been completed.
"Synthetic Lease" shall mean, as applied to any Person, any lease
(including leases that may be terminated by the lessee at any time) of any
property (whether real, personal or mixed) (x) that is not a capital lease in
accordance with GAAP and (y) in respect of which the lessee retains or obtains
ownership of the property so leased for federal income tax purposes, other than
any such lease under which that Person is the lessor.
"Tax Benefit" shall have the meaning provided in Section 4.04(c).
"Tax Sharing Agreement" shall have the meaning provided in Section 5.05.
"Taxes" shall have the meaning provided in Section 4.04(a).
"Term Loan" shall mean A Term Loans, B Term Loans, C Term Loans and, after
the RTL Conversion Date, RTL Loans.
"Term Loan Commitment" shall mean for each Lender, the A Term Loan
Commitment, B Term Loan Commitment or C Term Loan Commitment, if any, of such
Lender.
"Term Loan Prepayment Premium" shall mean (x) in all cases other than as
covered in clause (y) below, (i) for the period commencing on the Initial
Borrowing Date and ending on the first anniversary of the Initial Borrowing
Date, an amount equal to 2% of the aggregate principal amount of the applicable
prepayment and (ii) for the period commencing on the day after the first
anniversary of the Initial Borrower Date and ending on the second anniversary of
the Initial Borrowing Date, an amount equal to 1% of the aggregate principal
amount of the applicable prepayment and (y) with respect to a payment of the
Term Loans with the Permanent Senior Subordinated Notes Prepayment Amount, an
amount equal to 1% of the aggregate principal amount of the applicable
prepayment.
"Term Notes" shall have the meaning provided in Section 1.05(a).
"Term Loan Tranche" shall mean a Tranche of Term Loans (i.e. the A Term
Loan Tranche, the B Term Loan Tranche, the C Term Loan Tranche and the RTL Loan
Tranche).
"Test Date" shall mean, with respect to any Start Date, the last day of the
most recent fiscal quarter of the Borrower ended immediately prior to such Start
Date.
"Test Period" shall mean for any determination the four consecutive fiscal
quarters then last ended (taken as one accounting period). Notwithstanding
anything to the contrary contained above or in Section 13.07 or otherwise
required by GAAP, in the case of any Test Period ending prior to the first
anniversary of the Initial Borrowing Date, such period shall be a one-year
period ending on the last day of the fiscal quarter last ended, with any
calculations of Consolidated Cash Interest Expense, Consolidated EBITDA,
Consolidated Adjusted EBITDA and Consolidated Fixed Charges for (x) the fiscal
quarters ended on each of March 31, 2000, June 30, 2000 and September 30, 2000,
to be determined as set forth below:
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Fiscal Quarter Consolidated Cash Consolidated Consolidated Consolidated
Ended Interest Expense EBITDA Adjusted EBITDA Fixed Charges
-------------- ----------------- ------------ --------------- -------------
March 31, 2000 $19,165,936 $38,898,154 $38,648,154 $20,853,436
June 30, 2000 $19,165,936 $33,851,471 $33,601,471 $20,853,436
September 30, 2000 $19,165,936 $37,792,881 $37,542,881 $20,853,436
and (y) the fiscal quarter ended on December 31, 2000 to be determined by (i)
taking the actual Consolidated Cash Interest Expense, Consolidated EBITDA,
Consolidated Adjusted EBITDA and the Consolidated Fixed Charges, determined in
accordance with the definitions thereof, for any period beginning on, and ending
after, the Initial Borrowing Date, and (ii) for each day of such fiscal quarter
occurring prior to the Initial Borrowing Date, using a per-day amount of
$210,038, for Consolidated Cash Interest Expense, using a per-day amount of
$417,090, for Consolidated EBITDA, using a per-day amount of $414,351 for
Consolidated Adjusted EBITDA and using a per-day amount of $228,531, for
Consolidated Fixed Charges. In addition, for purposes of the Test Period ended
on December 31, 2000 only, Consolidated EBITDA shall be reduced by $1,500,000
and Consolidated Indebtedness shall be reduced by $68,000,000 for purposes of
determining the Leverage Ratio and the Senior Leverage Ratio.
"The Reserve" shall mean the property of the Borrower known as The Reserve
and located at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇.
"Total A Term Loan Commitment" shall mean, at any time, the sum of the A
Term Loan Commitments of each Lender.
"Total B Term Loan Commitment" shall mean, at any time, the sum of the B
Term Loan Commitments of each Lender.
"Total C Term Loan Commitment" shall mean, at any time, the sum of the C
Term Loan Commitments of each Lender.
"Total Commitment" shall mean the sum of the Total Term Loan Commitment,
the Total RTL Commitment and the Total Revolving Loan Commitment.
"Total Revolving Loan Commitment" shall mean, at any time, the sum of the
Revolving Loan Commitments of each of the Lenders.
"Total RTL Commitment" shall mean, at any time, the sum of the RTL
Commitments of each of the Lenders.
"Total Term Loan Commitment" shall mean, at any time, the sum of the A Term
Loan Commitments, the B Term Loan Commitments and the C Term Loan Commitments of
each of the Lenders.
"Total Unutilized Revolving Loan Commitment" shall mean, at any time, the
sum of the Unutilized Revolving Loan Commitments of each of the Lenders.
"Total Unutilized RTL Commitment" shall mean, at any time, the sum of the
Unutilized RTL Commitments of each of the Lenders.
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"Trade Letter of Credit" shall have the meaning provided in Section
2.01(a).
"Tranche" shall mean the respective facility and commitments utilized in
making Loans hereunder, with there being six separate Tranches, i.e., A Term
Loans, B Term Loans, C Term Loans, RTL Loans, Revolving Loans and Swingline
Loans.
"Transaction" shall mean the Acquisition, the Refinancing, the incurrence
of the Senior Subordinated Financing and the incurrence of Loans on the Initial
Borrowing Date.
"Transaction Documents" shall mean the Acquisition Documents, the Senior
Subordinated Financing Documents, the Refinancing Documents and all other
documents effectuating the Transaction or executed in connection therewith.
"Type" shall mean the type of Loan determined with regard to the interest
option applicable thereto, i.e., whether a Base Rate Loan or a Eurodollar Loan.
"UCC" shall mean the Uniform Commercial Code as from time to time in effect
in the relevant jurisdiction.
"Unfunded Current Liability" of any Plan shall mean the amount, if any, by
which the value of the accumulated plan benefits under the Plan, determined on a
plan termination basis in accordance with actuarial assumptions at such time
consistent with those prescribed by the PBGC for purposes of Section 4044 of
ERISA, exceeds the fair market value of all plan assets allocable to such
liabilities under Title IV of ERISA (excluding any accrued but unpaid
contributions).
"United States" and "U.S." shall each mean the United States of America.
"Unpaid Drawing" shall have the meaning provided in Section 2.04(a).
"Unutilized Revolving Loan Commitment" with respect to any Lender, at any
time, shall mean such Lender's Revolving Loan Commitment at such time less (i)
the aggregate outstanding principal amount of Revolving Loans made by such
Lender plus (ii) such Lender's Percentage of all Letter of Credit Outstandings.
"Unutilized RTL Commitment" with respect to any Lender, at any time, shall
mean such Lender's RTL Commitment at such time less the aggregate outstanding
principal amount of RTL Loans made by such Lender.
"Voting Stock" shall mean, as to any Person, any class or classes of
capital stock of such Person pursuant to which the holders thereof have the
general voting power under ordinary circumstances to elect at least a majority
of the Board of Directors of such Person, or any class or classes of capital
stock convertible into such stock at the option of the holders thereof.
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"Waivable Mandatory Repayment" shall have the meaning provided in Section
4.02(B).
"Waivable Repayment" shall mean either a Waivable Voluntary Prepayment or a
Waivable Mandatory Repayment.
"Waivable Voluntary Prepayment" shall have the meaning provided in Section
4.02(B).
"Wholly-Owned Domestic Subsidiary" shall mean each Wholly-Owned Subsidiary
of the Borrower incorporated or organized under the laws of the United States or
any State thereof.
"Wholly-Owned Subsidiary" shall mean, as to any Person, (i) any corporation
100% of whose capital stock (other than director's qualifying shares) is at the
time owned by such Person and/or one or more Wholly-Owned Subsidiaries of such
Person and (ii) any partnership, association, joint venture or other entity in
which such Person and/or one or more Wholly-Owned Subsidiaries of such Person
has a 100% equity interest at such time. Any reference to a Wholly-Owned
Subsidiary, unless expressly to a Wholly-Owned Subsidiary of another Person,
shall mean a Wholly-Owned Subsidiary of the Borrower.
"Withdrawal Period" shall have the meaning provided in Section 13.04(d).
SECTION 12. The Administrative Agent.
12.01 Appointment. The Lenders hereby designate Bankers Trust Company as
Administrative Agent (for purposes of this Section 12, the term "Administrative
Agent" shall include Bankers Trust Company in its capacity as Collateral Agent
pursuant to the Security Documents) to act as specified herein and in the other
Credit Documents. Each Lender hereby irrevocably authorizes, and each holder of
any Note by the acceptance of such Note shall be deemed irrevocably to
authorize, the Administrative Agent to take such action on its behalf under the
provisions of this Agreement, the other Credit Documents and any other
instruments and agreements referred to herein or therein and to exercise such
powers and to perform such duties hereunder and thereunder as are specifically
delegated to or required of the Administrative Agent by the terms hereof and
thereof and such other powers as are reasonably incidental thereto. The
Administrative Agent may perform any of its duties hereunder by or through its
respective officers, directors, agents, employees or affiliates.
12.02 Nature of Duties. The Administrative Agent shall not have any duties
or responsibilities except those expressly set forth in this Agreement and the
Security Documents. Neither the Administrative Agent nor any of its respective
officers, directors, agents, employees or affiliates shall be liable for any
action taken or omitted by it or them hereunder or under any other Credit
Document or in connection herewith or therewith, unless caused by its or their
gross negligence or willful misconduct. The duties of the Administrative Agent
shall be mechanical and administrative in nature; the Administrative Agent shall
not have by reason of this Agreement or any other Credit Document a fiduciary
relationship in respect of any Lender or the holder of any Note; and nothing in
this Agreement or any other Credit Document, expressed or implied, is intended
to or shall be so construed as to impose upon the Administrative Agent any
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obligations in respect of this Agreement or any other Credit Document except as
expressly set forth herein or therein.
12.03 Lack of Reliance on the Administrative Agent. Independently and
without reliance upon the Administrative Agent, each Lender and the holder of
each Note, to the extent it deems appropriate, has made and shall continue to
make (i) its own independent investigation of the financial condition and
affairs of the Borrower and its Subsidiaries in connection with the making and
the continuance of the Loans and the taking or not taking of any action in
connection herewith and (ii) its own appraisal of the creditworthiness of the
Borrower and its Subsidiaries and, except as expressly provided in this
Agreement, the Administrative Agent shall not have any duty or responsibility,
either initially or on a continuing basis, to provide any Lender or the holder
of any Note with any credit or other information with respect thereto, whether
coming into its possession before the making of the Loans or at any time or
times thereafter. The Administrative Agent shall not be responsible to any
Lender or the holder of any Note for any recitals, statements, information,
representations or warranties herein or in any document, certificate or other
writing delivered in connection herewith or for the execution, effectiveness,
genuineness, validity, enforceability, perfection, collectibility, priority or
sufficiency of this Agreement or any other Credit Document or the financial
condition of the Borrower and its Subsidiaries or be required to make any
inquiry concerning either the performance or observance of any of the terms,
provisions or conditions of this Agreement or any other Credit Document, or the
financial condition of the Borrower and its Subsidiaries or the existence or
possible existence of any Default or Event of Default.
12.04 Certain Rights of the Administrative Agent. If the Administrative
Agent shall request instructions from the Required Lenders with respect to any
act or action (including failure to act) in connection with this Agreement or
any other Credit Document, the Administrative Agent shall be entitled to refrain
from such act or taking such action unless and until the Administrative Agent
shall have received instructions from the Required Lenders; and the
Administrative Agent shall not incur liability to any Person by reason of so
refraining provided, however, that this shall not affect the obligations of the
Administrative Agent or any Lender to the Borrower. Without limiting the
foregoing, neither any Lender nor the holder of any Note shall have any right of
action whatsoever against the Administrative Agent as a result of the
Administrative Agent acting or refraining from acting hereunder or under any
other Credit Document in accordance with the instructions of the Required
Lenders.
12.05 Reliance. The Administrative Agent shall be entitled to rely, and
shall be fully protected in relying, upon any note, writing, resolution, notice,
statement, certificate, telex, teletype or telecopier message, cablegram,
radiogram, order or other document or telephone message signed, sent or made by
any Person that the Administrative Agent believed to be the proper Person, and,
with respect to all legal matters pertaining to this Agreement and any other
Credit Document and its duties hereunder and thereunder, upon advice of counsel
selected by the Administrative Agent.
12.06 Indemnification. To the extent the Administrative Agent is not
reimbursed and indemnified by the Borrower, the Lenders will reimburse and
indemnify the Administrative Agent, in proportion to their respective
"percentages" as used in determining the Required Lenders, for and against any
and all liabilities, obligations, losses, damages, penalties, claims,
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actions, judgments, costs, expenses or disbursements of whatsoever kind or
nature which may be imposed on, asserted against or incurred by the
Administrative Agent in performing its respective duties hereunder or under any
other Credit Document, in any way relating to or arising out of this Agreement
or any other Credit Document; provided that no Lender shall be liable for any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from the
Administrative Agent's gross negligence or willful misconduct.
12.07 The Administrative Agent in Its Individual Capacity. With respect to
its obligation to make Loans under this Agreement, the Administrative Agent
shall have the rights and powers specified herein for a "Lender" and may
exercise the same rights and powers as though it were not performing the duties
specified herein; and the term "Lenders", "Required Lenders", "Majority
Lenders", "Majority Grid Lenders", "holders of Notes" or any similar terms
shall, unless the context clearly otherwise indicates, include the
Administrative Agent in its individual capacity. The Administrative Agent may
accept deposits from, lend money to, and generally engage in any kind of
banking, trust or other business with any Credit Party or any Affiliate of any
Credit Party as if it were not performing the duties specified herein, and may
accept fees and other consideration from the Borrower or any other Credit Party
for services in connection with this Agreement and otherwise without having to
account for the same to the Lenders.
12.08 Holders. The Administrative Agent may deem and treat the payee of any
Note as the owner thereof for all purposes hereof unless and until a written
notice of the assignment, transfer or endorsement thereof, as the case may be,
shall have been filed with the Administrative Agent. Any request, authority or
consent of any Person who, at the time of making such request or giving such
authority or consent, is the holder of any Note shall be conclusive and binding
on any subsequent holder, transferee, assignee or indorsee, as the case may be,
of such Note or of any Note or Notes issued in exchange therefor.
12.09 Resignation by the Administrative Agent. (a) The Administrative Agent
may resign from the performance of all its functions and duties hereunder and/or
under the other Credit Documents at any time by giving 15 Business Days' prior
written notice to the Borrower and the Lenders. Such resignation shall take
effect upon the appointment of a successor Administrative Agent pursuant to
clauses (b) and (c) below or as otherwise provided below.
(b) Upon any such notice of resignation, the Lenders shall appoint a
successor Administrative Agent hereunder or thereunder who shall be a commercial
bank or trust company reasonably acceptable to the Borrower and eligible to act
as such under Gaming Regulations as a Qualified Person.
(c) If a successor Administrative Agent shall not have been so appointed
within such 15 Business Day period, the Administrative Agent, with the consent
of the Borrower, shall then appoint a successor Administrative Agent eligible to
act as such under Gaming Regulations as a Qualified Person who shall serve as
Administrative Agent hereunder or thereunder until such time, if any, as the
Lenders appoint a successor Administrative Agent as provided above.
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(d) If no successor Administrative Agent has been appointed pursuant to
clause (b) or (c) above by the 20th Business Day after the date such notice of
resignation was given by the Administrative Agent, the Administrative Agent's
resignation shall become effective and the Required Lenders shall thereafter
perform all the duties of the Administrative Agent hereunder and/or under any
other Credit Document until such time, if any, as the Lenders appoint a
successor Administrative Agent as provided above.
12.10 Amendments to Security Documents. The Collateral Agent is authorized
to enter into such amendments to the Security Documents as are necessary or, in
the opinion of the Collateral Agent, to insure that the Collateral thereunder
secures all of the obligations intended to be secured thereby (including,
without limitation, additional extensions of credit under the Incremental
Commitments and the Interest Rate Protection or Other Hedging Agreements.
12.11 Other Agents. No Person listed on the signature pages hereto as a
Co-Arranger, Syndication Agent, Documentation Agent, Lead Arranger or Sole Book
Manager shall have any obligations hereunder in its capacity as such.
SECTION 13. Miscellaneous.
13.01 Payment of Expenses, etc. (a) The Borrower shall: (i) whether or not
the transactions herein contemplated are consummated, pay all reasonable
out-of-pocket costs and expenses of the Administrative Agent (including, without
limitation, the reasonable fees and disbursements of White & Case LLP and local
counsel) in connection with the preparation, execution and delivery of this
Agreement and the other Credit Documents and the documents and instruments
referred to herein and therein and any amendment, waiver or consent relating
hereto or thereto, of the Administrative Agent in connection with its
syndication efforts with respect to this Agreement and, following an Event of
Default, each of the Lenders in connection with the enforcement of this
Agreement and the other Credit Documents and the documents and instruments
referred to herein and therein (including, without limitation, the reasonable
fees and disbursements of counsel for the Administrative Agent and, following an
Event of Default, for each of the Lenders including any reasonable allocated
costs of in-house counsel); (ii) pay and hold each of the Lenders harmless from
and against any and all present and future stamp, excise and other similar taxes
with respect to the foregoing matters (including, without limitation,
Mississippi personal property tax) and save each of the Lenders harmless from
and against any and all liabilities with respect to or resulting from any delay
or omission (other than to the extent attributable to such Lender) to pay such
taxes; and (iii) defend, protect, indemnify and hold harmless the Administrative
Agent and each Lender, and each of their respective officers, directors,
employees, representatives and agents from and hold each of them harmless
against any and all liabilities, obligations (including removal or remedial
actions), losses, damages, penalties, claims, actions, judgments, suits, costs,
expenses and disbursements (including reasonable attorneys' and consultants'
fees and disbursements) incurred by, imposed on or assessed against any of them
as a result of, or arising out of, or in any way related to, or by reason of,
(a) any investigation, litigation or other proceeding (whether or not the
Administrative Agent or any Lender is a party thereto) related to the entering
into and/or performance of this Agreement or any other Credit Document or the
use of any Letter of Credit or the proceeds of any Loans hereunder or the
consummation of any transactions contemplated herein (including, without
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limitation, the Transaction) or in any other Credit Document or the exercise of
any of their rights or remedies provided herein or in the other Credit
Documents, or (b) any non-compliance with any Environmental Law relating to any
Real Property at any time owned or operated by the Borrower or any of its
Subsidiaries; (c) the actual or alleged generation, presence or Release of
Hazardous Materials on or from, or the transportation of Hazardous Materials to
or from, any Real Property owned or at any time operated by the Borrower or any
of its Subsidiaries; (d) any Environmental Claim relating to the Borrower or any
of its Subsidiaries or any Real Property owned or at any time operated by the
Borrower or any of its Subsidiaries, including, in each case, without
limitation, the reasonable fees and disbursements of counsel and other
consultants incurred in connection with any such investigation, litigation or
other proceeding. To the extent that the undertaking to indemnify, pay or hold
harmless the Administrative Agent or any Lender set forth in the preceding
sentence may be unenforceable because it is violative of any law or public
policy, the Borrower shall make the maximum contribution to the payment and
satisfaction of each of the indemnified liabilities which is permissible under
applicable law.
(b) The Borrower further agrees to pay the reasonable legal fees of gaming
counsel for the Administrative Agent in Missouri, Nevada, Mississippi and Iowa
and any other relevant state or other jurisdiction and all reasonable costs
(including costs of investigation) associated with any qualification (or
exemption or waiver therefrom) of any Lender under, or compliance in connection
with the Gaming Regulations in connection with the syndication under this
Agreement.
13.02 Right of Setoff; Collateral Matters. In addition to any rights now or
hereafter granted under applicable law or otherwise, and not by way of
limitation of any such rights, upon any amount becoming due and payable by the
Borrower hereunder (whether at stated maturity, by acceleration or otherwise),
each Lender is hereby authorized at any time or from time to time, without
presentment, demand, protest or other notice of any kind to the Borrower or to
any other Person, any such notice being hereby expressly waived, to set off and
to appropriate and apply any and all deposits (general or special) and any other
Indebtedness at any time held or owing by such Lender (including, without
limitation, by branches and agencies of such Lender wherever located) to or for
the credit or the account of the Borrower against and on account of the
Obligations and liabilities of the Borrower to such Lender under this Agreement
or under any of the other Credit Documents, including, without limitation, all
interests in Obligations purchased by such Lender pursuant to Section 13.06(b),
and all other claims of any nature or description arising out of or connected
with this Agreement or any other Credit Document, irrespective of whether or not
such Lender shall have made any demand hereunder and although said Obligations,
liabilities or claims, or any of them, shall be contingent or unmatured.
13.03 Notices. Except as otherwise expressly provided herein, all notices
and other communications provided for hereunder shall be in writing (including
telegraphic, telex, telecopier or cable communication) and mailed, telegraphed,
telexed, telecopied, cabled or delivered: if to the Borrower, at the Borrower's
address specified opposite its signature below; if to any Lender, at its address
specified on Schedule II; and if to the Administrative Agent, at its Notice
Office; or, as to any Credit Party or the Administrative Agent, at such other
address as shall be designated by such party in a written notice to the other
parties hereto and, as to each Lender, at such other address as shall be
designated by such Lender in a written notice to the Borrower and the
Administrative Agent. All such notices and communications shall, when
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mailed, be effective (5) Business Days after deposit in the mails, and when
telegraphed, telexed, telecopied, or cabled or sent by overnight courier, be
effective one Business Day after dispatch, except that notices and
communications to the Administrative Agent and the Borrower shall not be
effective until received by the Administrative Agent or the Borrower, as the
case may be.
13.04 Benefit of Agreement. (a) This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the respective successors and
assigns of the parties hereto; provided, however, no Credit Party may assign or
transfer any of its rights, obligations or interest hereunder or under any other
Credit Document without the prior written consent of the Lenders (it being
understood that this Section 13.04 shall not prevent a merger or consolidation
otherwise permitted by this Agreement) and, provided further, that, although any
Lender may transfer, assign or grant participations in its rights hereunder,
such Lender shall remain a "Lender" for all purposes hereunder (and may not
transfer or assign all or any portion of its Commitments hereunder except as
provided in Section 13.04(b)) and the transferee, assignee or participant, as
the case may be, shall not constitute a "Lender" hereunder and, provided
further, that no Lender shall transfer or grant any participation under which
the participant shall have rights to approve any amendment to or waiver of this
Agreement or any other Credit Document except to the extent such amendment or
waiver would (i) extend the final scheduled maturity of any Loan, Note or Letter
of Credit (unless such Letter of Credit is not extended beyond the Revolving
Loan Maturity Date) in which such participant is participating, or reduce the
rate or extend the time of payment of interest or Fees thereon (except (x) in
connection with a waiver of applicability of any post-default increase in
interest rates and (y) any amendment or modification that is not agreed to by
each Lender directly affected thereby to the financial definitions in this
Agreement or to Section 13.07(a) shall not constitute a reduction in the rate of
interest or fees for purposes of this clause (i), notwithstanding the fact that
such amendment or modification would otherwise actually result in such a
reduction, so long as the primary purpose (as determined in good faith by the
Borrower and the Administrative Agent) of the respective amendment or
modification was not to decrease the pricing pursuant to this Agreement) or
reduce the principal amount thereof, or increase the amount of the participant's
participation over the amount thereof then in effect (it being understood that a
waiver of any Default or Event of Default or of a mandatory reduction in the
Total Commitment shall not constitute a change in the terms of such
participation, and that an increase in any Commitment or Loan shall be permitted
without the consent of any participant if the participant's participation is not
increased as a result thereof), (ii) consent to the assignment or transfer by
the Borrower of any of its rights and obligations under this Agreement or (iii)
release all or substantially all of the Collateral under all of the Security
Documents (except as expressly provided in the Credit Documents) supporting the
Obligations in which such participant is participating. In the case of any such
participation, the participant shall not have any rights under this Agreement or
in respect of such participation to be those set forth in the agreement executed
by such Lender in favor of the participant relating thereto) and all amounts
payable by the Borrower hereunder shall be determined as if such Lender had not
sold such participation.
(b) Notwithstanding the foregoing, any Lender (or any Lender together with
one or more other Lenders) may (x) assign all or a portion of its Revolving Loan
Commitment (and related outstanding Obligations hereunder) and/or its
outstanding Term Loans (or, if prior to the Initial Borrowing Date, Term Loan
Commitment) and/or its outstanding RTL Loans (or, if prior
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to the RTL Conversion Date, RTL Commitment) to (i) its parent company and/or any
affiliate of such Lender which is at least 50% owned by such Lender or its
parent company or to one or more Lenders or (ii) in the case of any Lender that
is a fund that invests in bank loans, any other fund that invests in bank loans
and is managed by the same investment advisor of any Lender or by an Affiliate
of such investment advisor and (y) assign all, or if less than all, a portion
equal to at least (A) in the case of assignments of A Term Loans, RTL Loans or
Revolving Loans, $5,000,000 and (B) in the case of B Term Loans and C Term
Loans, $2,500,000 in the aggregate for the assigning Lender or assigning
Lenders, of such Revolving Loan Commitments and/or outstanding principal amount
of Term Loans (or, if prior to the Initial Borrowing Date, Term Loan Commitment)
and/or outstanding principal amount of RTL Loans (or, if prior to the RTL
Conversion Date, RTL Commitment) hereunder to one or more Qualified Persons
(treating any fund that invests in bank loans and any other fund that invests in
bank loans and is managed by the same investment advisor of such fund or by an
Affiliate of such investment advisor as a single Qualified Person), each of
which assignees shall become a party to this Agreement as a Lender by execution
of an Assignment and Assumption Agreement, provided that, (i) at such time
Schedule I shall be deemed modified to reflect the Commitments (and/or
outstanding Term Loans and/or RTL Loans, as the case may be) of such new Lender
and of the existing Lenders, (ii) upon surrender of the old Notes, new Notes
will be issued, at the Borrower's expense, to such new Lender and to the
assigning Lender, such new Notes to be in conformity with the requirements of
Section 1.05 (with appropriate modifications) to the extent needed to reflect
the revised Commitments (and/or outstanding Term Loans and/or RTL Loans, as the
case may be) and requested by such new Lender and/or assigning Lender, (iii) the
consent of the Administrative Agent and, with respect to assignments of
Revolving Loans and/or Revolving Loan Commitments, each Issuing Lender shall be
required in connection with any such assignment pursuant to clause (y) of this
Section 13.04(b) (which consent shall not be unreasonably withheld or delayed),
(iv) unless an Event of Default shall have occurred and is continuing, the
consent of the Borrower shall be required in connection with any such assignment
pursuant to clause (y) of this Section 13.04(b) (such consent not to be
unreasonably withheld or delayed), it being understood and agreed that for the
first fifteen (15) days following the Initial Borrowing Date, the consent of the
Borrower shall not be required in connection with any such assignments to the
extent occurring in connection with the primary syndication of this facility and
(v) the Administrative Agent shall receive at the time of each such assignment,
from the assigning or assignee Lender, the payment of a non-refundable
assignment fee of $3,500 and, provided further, that such transfer or assignment
will not be effective until recorded by the Administrative Agent on the Register
pursuant to Section 13.16 hereof. To the extent of any assignment pursuant to
this Section 13.04(b), the assigning Lender shall be relieved of its obligations
hereunder with respect to its assigned Commitments. At the time of each
assignment pursuant to this Section 13.04(b) to a person which is not already a
Lender hereunder and which is not a United States person (as such term is
defined in Section 7701(a)(30) of the Code) for Federal income tax purposes, the
respective assignee Lender shall provide to the Borrower and the Administrative
Agent the appropriate Internal Revenue Service Forms (and, if applicable a
Section 4.04(b)(ii) Certificate) described in Section 4.04(b). To the extent
that an assignment of all or any portion of a Lender's Commitments and related
outstanding Obligations pursuant to Section 1.13 or this Section 13.04(b) would,
at the time of such assignment, result in increased costs under Section 1.10,
1.11, 2.05 or 4.04 from those being charged by the respective assigning Lender
prior to such assignment, then the Borrower shall not be obligated to pay such
increased
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costs (although the Borrower shall be obligated to pay any other increased costs
of the type described above resulting from changes after the date of the
respective assignment).
(c) If any Gaming Authority shall determine that any Lender is not
qualified as an approved financial source or otherwise does not meet the
standards pursuant to the Gaming Regulations in the relevant jurisdiction, or
any Gaming Authority with jurisdiction over the Gaming Business of the Borrower
and its Subsidiaries shall determine that any Lender does not meet its
suitability standards (in any such case, a "Former Lender"), the Administrative
Agent and each Issuing Lender or the Borrower shall have the right (but not the
duty) to designate a lender or lenders (in each case, a "Substitute Lender",
which may be any Lender or Lenders that agree to become a Substitute Lender)
that has agreed to assume the rights and obligations of the Former Lender,
subject to receipt by the Administrative Agent of evidence satisfactory to the
Administrative Agent that such Substitute Lender is a Qualified Person, or has a
reasonable basis for a belief that the Substitute Lender is eligible to be a
Qualified Person, and compliance with Gaming Regulations. The Substitute Lender
shall assume the rights and obligations of the Former Lender under this
Agreement pursuant to an Assignment and Assumption Agreement, which assumption
shall be required to comply with, and shall become effective in accordance with,
the provisions of Section 13.04(b), provided that the purchase price to be paid
by the Substitute Lender to the Administrative Agent for the account of the
Former Lender for such assumption shall equal the sum of (i) the unpaid
principal amount of any Notes held or Loans made by the Former Lender plus
accrued interest thereon plus (ii) the Former Lender's pro rata share of the
aggregate amount of Drawings under all Letters of Credit that have not been
reimbursed by the Borrower, plus accrued interest thereon, plus (iii) such
Former Lender's pro rata share of accrued Fees to the date of the assumption,
and, provided further, the Borrower shall pay all obligations owing to the
Former Lender under the Credit Documents (including all obligations, if any,
owing pursuant to Section 1.11, but excluding those amounts in respect of which
the purchase price is being paid as provided above). Each Lender agrees that if
it becomes a Former Lender, upon payment to it by the Borrowers of all such
amounts, if any, owing to it under the Credit Documents, it will execute and
deliver an Assignment and Assumption Agreement upon payment of such purchase
price.
(d) Notwithstanding the provisions of subsection (c) of this Section 13.04,
but subject to applicable Gaming Regulations if any Lender becomes a Former
Lender, and if the Administrative Agent or the Borrower fails to find a
Substitute Lender pursuant to subsection (c) of this Section within any time
period specified by the appropriate Gaming Authority for the withdrawal of a
Former Lender (the "Withdrawal Period"), the Borrower shall immediately (i)
prepay in full the outstanding principal amount of each Note held or Loan made
by such Former Lender, together with accrued interest thereon to the earlier of
(x) the date of payment or (y) the last day of any Withdrawal Period, and (ii)
at the option of the Borrower either (A) place an amount equal to such Former
Lender's Percentage in each Letter of Credit in a separate cash collateral
account with the Administrative Agent for each outstanding Letter of Credit,
which amount will be applied by the Administrative Agent to satisfy the
Borrower's reimbursement obligations to the respective Issuing Lender in respect
of Drawings under the applicable Letter of Credit or (B) if no Default or Event
of Default then exists, terminate the Revolving Loan Commitment (and, if
applicable, RTL Commitment) of such Former Lender at which time the other
Lenders' Revolving Percentages will be automatically adjusted as a result
thereof, provided that the option specified in this clause (B) may only be
exercised if, immediately after giving
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effect thereto, no Lender's outstanding Revolving Loans, when added to the
product of (a) such Lender's Revolving Percentage and (b) the sum of (I) the
aggregate amount of all Letter of Credit Outstandings at such time and (II) the
aggregate amount of all Swingline Loans then outstanding, would exceed such
Lender's Revolving Loan Commitment at such time.
(e) Subject to the last sentence of this Section 13.04(e), each Lender
agrees that all participations and assignments made hereunder shall be subject
to, and made in compliance with, all Gaming Regulations applicable to lenders.
Each Lender agrees further that it will not grant participations or assignments
(other than to funds that invest in bank loans and are managed by the same
investment advisor of such assigning Lender) prior to receiving notice from the
Administrative Agent that it has completed the primary syndication of this
facility. The Administrative Agent shall provide such notice to the Lenders and
the Borrower promptly after completing such primary syndication. The Borrower
hereby acknowledges that unless the Borrower has provided the Lenders with a
written opinion of counsel as to the suitability standards applicable to lenders
of any relevant Gaming Authority with jurisdiction over the Gaming Business of
the Borrower and its Subsidiaries, no Lender shall have the responsibility of
determining whether or not a potential assignee of such Lender would be a
Qualified Person under the Gaming Regulations of any such jurisdiction.
(f) Nothing in this Agreement shall prevent or prohibit any Lender from
pledging its Loans and Notes hereunder to a Federal Reserve Lender in support of
borrowings made by such Lender from such Federal Reserve Bank and, with notice
to the Administrative Agent, any Lender which is a fund may pledge all or any
portion of its Loans and Notes to its trustee in support of its obligations to
its trustee.
13.05 No Waiver; Remedies Cumulative. No failure or delay on the part of
the Administrative Agent or any Lender or any holder of any Note in exercising
any right, power or privilege hereunder or under any other Credit Document and
no course of dealing between the Borrower or any other Credit Party and the
Administrative Agent or any Lender or the holder of any Note shall operate as a
waiver thereof; nor shall any single or partial exercise of any right, power or
privilege hereunder or under any other Credit Document preclude any other or
further exercise thereof or the exercise of any other right, power or privilege
hereunder or thereunder. The rights, powers and remedies herein or in any other
Credit Document expressly provided are cumulative and not exclusive of any
rights, powers or remedies which the Administrative Agent or any Lender or the
holder of any Note would otherwise have. No notice to or demand on any Credit
Party in any case shall entitle any Credit Party to any other or further notice
or demand in similar or other circumstances or constitute a waiver of the rights
of the Administrative Agent or any Lender or the holder of any Note to any other
or further action in any circumstances without notice or demand.
13.06 Payments Pro Rata. (a) Except as otherwise provided in this
Agreement, the Administrative Agent agrees that promptly after its receipt of
each payment from or on behalf of the Borrower in respect of any Obligations
hereunder, it shall distribute such payment to the Lenders (other than any
Lender that has consented in writing to waive its pro rata share of any such
payment) pro rata based upon their respective shares, if any, of the Obligations
with respect to which such payment was received.
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(b) Each of the Lenders agrees that, if it should receive any amount
hereunder (whether by voluntary payment, by realization upon security, by the
exercise of the right of setoff or lender's lien, by counterclaim or cross
action, by the enforcement of any right under the Credit Documents, or
otherwise), which is applicable to the payment of the principal of, or interest
on, the Loans, Unpaid Drawings, Commitment Commission or Letter of Credit Fees,
of a sum which with respect to the related sum or sums received by other Lenders
is in a greater proportion than the total of such Obligation then owed and due
to such Lender bears to the total of such Obligation then owed and due to all of
the Lenders immediately prior to such receipt, then such Lender receiving such
excess payment shall purchase for cash without recourse or warranty from the
other Lenders an interest in the Obligations of the respective Credit Party to
such Lenders in such amount as shall result in a proportional participation by
all the Lenders in such amount; provided that if all or any portion of such
excess amount is thereafter recovered from such Lender, such purchase shall be
rescinded and the purchase price restored to the extent of such recovery, but
without interest.
(c) Notwithstanding anything to the contrary contained herein, the
provisions of the preceding Sections 13.06(a) and (b) shall be subject to the
express provisions of this Agreement which require, or permit, differing
payments to be made to Non-Defaulting Lenders as opposed to Defaulting Lenders.
13.07 Calculations; Computations. (a) The financial statements to be
furnished to the Lenders pursuant hereto shall be made and prepared in
accordance with generally accepted accounting principles in the United States
consistently applied throughout the periods involved (except as set forth in the
notes thereto or as otherwise disclosed in writing by the Borrower to the
Lenders and except that monthly and quarterly financial statements may not
include notes and are subject to year-end adjustments); provided that, except as
otherwise specifically provided herein, all computations of Excess Cash Flow and
all computations determining compliance with Sections 9.07 through 9.12,
inclusive, and the Applicable Margin shall utilize accounting principles and
policies in conformity with those used to prepare the historical financial
statements delivered to the Lenders pursuant to Section 7.05(a) (with the
foregoing generally accepted accounting principles, subject to the preceding
proviso, herein called "GAAP"). In the event of any changes ("Accounting
Changes") in accounting principles required by the promulgation of any rule,
regulation, pronouncement or opinion of the Financial Accounting Standards Board
of the American Institute of Certified Public Accountants or, if applicable, the
SEC, if such Accounting Changes result in a change in the method of calculation
of financial covenants, standards or terms of this Agreement, then the Borrower
and the Administrative Agent agree to enter into negotiations in order to amend
such provisions of this Agreement so as to equitably reflect such Accounting
Changes with the desired result that the criteria for evaluating the Borrower's
financial condition shall be the same after such Accounting Changes as if such
Accounting Changes had not been made. Until such time as such an amendment shall
have been executed and delivered by the Borrower, the Administrative Agent and
the Required Lenders, all financial covenants standards and terms in this
Agreement shall continue to be calculated as if such Accounting Changes had not
occurred.
(b) All computations of interest payable at the Eurodollar Rate, Commitment
Commission and Fees hereunder shall be made on the basis of a year of 360 days
for the actual number of days (including the first day but excluding the last
day) occurring in the period for
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which such interest, Commitment Commission or Fees are payable. All computations
of interest payable at the Base Rate shall be made on the basis on a year of 365
(or 366, as applicable) days for the actual number of days (including the first
day but excluding the last day) occurring in the period for which such interest
is payable.
13.08 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF JURY
TRIAL. (a) THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL, EXCEPT AS OTHERWISE
PROVIDED IN CERTAIN OF THE MORTGAGES, BE CONSTRUED IN ACCORDANCE WITH AND BE
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK. ANY LEGAL ACTION OR PROCEEDING
WITH RESPECT TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT MAY BE BROUGHT IN
THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN
DISTRICT OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, THE
BORROWER HEREBY IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY,
GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS. THE
BORROWER FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF
THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF
COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO ANY CREDIT
PARTY AT ITS ADDRESS SET FORTH OPPOSITE ITS SIGNATURE BELOW. NOTHING HEREIN
SHALL AFFECT THE RIGHT OF THE ADMINISTRATIVE AGENT UNDER THIS AGREEMENT, ANY
LENDER OR THE HOLDER OF ANY NOTE TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED
BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST ANY CREDIT
PARTY IN ANY OTHER JURISDICTION.
(b) THE BORROWER HEREBY IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY NOW
OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF THE AFORESAID ACTIONS OR
PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER
CREDIT DOCUMENT BROUGHT IN THE COURTS REFERRED TO IN CLAUSE (a) ABOVE AND HEREBY
FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT
THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN
AN INCONVENIENT FORUM.
(c) EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES ALL
RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT
OF OR RELATING TO THIS AGREEMENT, THE OTHER CREDIT DOCUMENTS OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY.
13.09 Counterparts. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A set of counterparts
executed by all the parties hereto shall be lodged with the Borrower and the
Administrative Agent.
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13.10 Effectiveness. This Agreement shall become effective on the date (the
"Effective Date") on which the Borrower, the Administrative Agent and each of
the Lenders shall have signed a counterpart hereof (whether the same or
different counterparts) and shall have delivered the same to the Administrative
Agent at its Notice Office or, in the case of the Lenders, shall have given to
the Administrative Agent telephonic (confirmed in writing), written or telex
notice (actually received) at such office that the same has been signed and
mailed to it. The Administrative Agent will give the Borrower and each Lender
prompt written notice of the occurrence of the Effective Date.
13.11 Headings Descriptive. The headings of the several sections and
subsections of this Agreement are inserted for convenience only and shall not in
any way affect the meaning or construction of any provision of this Agreement.
13.12 Amendment or Waiver; etc. Neither this Agreement nor any other Credit
Document nor any terms hereof or thereof may be changed, waived, discharged or
terminated unless such change, waiver, discharge or termination is in writing
signed by the respective Credit Parties party thereto and the Required Lenders,
provided that no such change, waiver, discharge or termination shall, without
the consent of each Lender (other than a Defaulting Lender) with Obligations
being directly affected, (i) extend the final scheduled maturity of any Loan or
Note or extend the Stated Maturity of any Letter of Credit beyond the Revolving
Loan Maturity Date, or reduce the rate or extend the time of payment of
interest, Fees or Term Loan Prepayment Premium thereon (except (x) in connection
with a waiver of applicability of any post-default increase in interest rates
and (y) any amendment or modification that is not agreed to by each Lender
directly affected thereby to the financial definitions in this Agreement or to
Section 13.07(a) shall not constitute a reduction in the rate of interest or
fees for purposes of this clause (i), notwithstanding the fact that such
amendment or modification would otherwise actually result in such a reduction,
so long as the primary purpose (as determined in good faith by the Borrower and
the Administrative Agent) of the respective amendment or modification was not to
decrease the pricing pursuant to this Agreement), or reduce the principal amount
thereof (except to the extent repaid in cash), (ii) release all or substantially
all of the Collateral (except as expressly provided in the Credit Documents)
under all the Security Documents or release all or substantially all of the
Guarantors, (iii) amend, modify or waive any provision of this Section 13.12,
(iv) reduce the percentage specified in the definition of Required Lenders (it
being understood that, with the consent of the Required Lenders, additional
extensions of credit pursuant to this Agreement may be included in the
determination of the Required Lenders on substantially the same basis as the
extensions of Term Loans, RTL Commitments and Revolving Loan Commitments are
included on the Effective Date) or (v) consent to the assignment or transfer by
the Borrower of any of its rights and obligations under this Agreement; provided
further, that no such change, waiver, discharge or termination shall (1)
increase the Commitments of any Lender over the amount thereof then in effect
without the consent of such Lender (it being understood that waivers or
modifications of conditions precedent, covenants, Defaults or Events of Default
or of a mandatory reduction in the Total Commitment shall not constitute an
increase of the Commitment of any Lender, and that an increase in the available
portion of any Commitment of any Lender shall not constitute an increase in the
Commitment of such Lender), (2) without the consent of the Swingline Lender,
amend, modify or waive any provision relating to the rights or obligations of
the Swingline Lender or with respect to Swingline Loans (including, without
limitation, the obligations of the other Lenders with
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Revolving Loan Commitments to fund Mandatory Borrowings), (3) without the
consent of the Administrative Agent, amend, modify or waive any provision of
Section 2 or alter its rights or obligations with respect to Letters of Credit,
(4) without the consent of the Administrative Agent, amend, modify or waive any
provision of Section 12 as same applies to the Administrative Agent or any other
provision as same relates to the rights or obligations of the Administrative
Agent, (5) without the consent of the Collateral Agent, amend, modify or waive
any provision relating to the rights or obligations of the Collateral Agent, and
(6) without the consent of the Majority Lenders of any Tranche of Term Loans,
amend the definition of Majority Lenders with respect to such Tranche, or this
clause (6), or alter the required application of any prepayments or repayments
(or commitment reductions), as between the various Tranches, pursuant to Section
4.01 or 4.02(A) (excluding Sections 4.02(A)(b), (c), (d) or (e)) with respect to
such Tranche (although the Required Lenders may waive, in whole or in part, any
such prepayment, repayment or commitment reduction, except pursuant to Sections
4.02(A)(b), (c), (d) or (e), so long as the application, as amongst the various
Tranches, of any such prepayment, repayment or commitment reduction which is
still required to be made is not altered) or reduce the amount of, or extend the
date of, any Scheduled Repayment with respect to such Tranche.
13.13 Survival. All indemnities set forth herein including, without
limitation, in Sections 1.10, 1.11, 2.05, 4.04, 13.01 and 13.06 shall survive
the execution, delivery and termination of this Agreement and the Notes and the
making and repayment of the Loans.
13.14 Domicile of Loans. Each Lender may transfer and carry its Loans at,
to or for the account of any office, Subsidiary or Affiliate of such Lender.
Notwithstanding anything to the contrary contained herein, to the extent that a
transfer of Loans pursuant to this Section 13.14 would, at the time of such
transfer, result in increased costs under Section 1.10, 1.11, 2.05 or 4.04 from
those being charged by the respective Lender prior to such transfer, then the
Borrower shall not be obligated to pay such increased costs (although the
Borrower shall be obligated to pay any other increased costs of the type
described above resulting from changes giving rise to such increased costs after
the date of the respective transfer to the extent such costs would have been
applicable had such transfer not occurred).
13.15 Confidentiality. (a) Subject to the provisions of clause (b) of this
Section 13.15, each Lender agrees that it will not disclose without the prior
consent of the Borrower (other than to its employees, auditors, advisors or
counsel or to another Lender if the Lender or such Lender's holding or parent
company in its sole discretion determines that any such party should have access
to such information in connection with this Agreement and the Transaction,
provided such Persons shall be subject to the provisions of this Section 13.15
to the same extent as such Lender) any information with respect to the Borrower
or any of its Subsidiaries which is now or in the future furnished pursuant to
this Agreement or any other Credit Document, provided that any Lender may
disclose any such information (a) as has become generally available to the
public, (b) as may be required or appropriate in any report, statement or
testimony submitted to any municipal, state or Federal regulatory body having or
claiming to have jurisdiction over such Lender or to the Federal Reserve Board
or the Federal Deposit Insurance Corporation or similar organizations (whether
in the United States or elsewhere) or their successors, (c) as may be required
or appropriate in respect to any summons or subpoena or in connection with any
litigation, (d) in order to comply with any law, order, regulation or ruling
applicable to such Lender, (e) to the Administrative Agent or the Collateral
Agent, (f) to any
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prospective or actual transferee or participant in connection with any
contemplated transfer or participation of any of the Notes or Commitments or any
interest therein by such Lender, provided that such prospective transferee
agrees with such Lender on terms and conditions substantially the same as those
contained in this Section 13.15 and (g) to any Person (or such Person's
investment advisor) with whom such Lender has entered into or proposes to enter
into (in each case either directly or indirectly) any credit swap agreement with
respect to such Lender's Loans and/or Commitments, provided such Person (and
such investment advisor, if any) agrees to be bound by the confidentiality
provisions contained in this Section 13.15.
(b) The Borrower hereby acknowledges and agrees that each Lender may share
with any of its affiliates any information related to the Borrower or any of its
Subsidiaries (including, without limitation, any nonpublic customer information
regarding the creditworthiness of the Borrower and its Subsidiaries, if the
Lender or such Lender's holding or parent company in its sole judgment
determines that any such party should have access to such information in
connection with this Agreement and the Transaction, provided such Persons shall
be subject to the provisions of this Section 13.15 to the same extent as such
Lender and provided such sharing of information is undertaken in connection with
this Agreement and the Transaction.
13.16 Registry. The Borrower hereby designates the Administrative Agent to
serve as the Borrower's agent, solely for purposes of this Section 13.16, to
maintain a register (the "Register") on which it will record the Commitments
from time to time of each of the Lenders, the Loans made by each of the Lenders
and each repayment in respect of the principal amount of the Loans of each
Lender. The entries in the Register shall be conclusive, absent manifest error.
Failure to make any such recordation, or any error in such recordation shall not
affect the Borrower's obligations in respect of such Loans. With respect to any
Lender, the transfer of the Commitments of such Lender and the rights to the
principal of, and interest on, any Loan made pursuant to such Commitments shall
not be effective until such transfer is recorded on the Register maintained by
the Administrative Agent with respect to ownership of such Commitments and Loans
and prior to such recordation all amounts owing to the transferor with respect
to such Commitments and Loans shall remain owing to the transferor. The
registration of assignment or transfer of all or part of any Commitments and
Loans shall be recorded by the Administrative Agent on the Register only upon
the acceptance by the Administrative Agent of a properly executed and delivered
Assignment and Assumption Agreement pursuant to Section 13.04(b). Coincident
with the delivery of such an Assignment and Assumption Agreement to the
Administrative Agent for acceptance and registration of assignment or transfer
of all or part of a Loan, or as soon thereafter as practicable, the assigning or
transferor Lender shall surrender the Note evidencing such Loan, and thereupon
one or more new Notes in the same aggregate principal amount shall be issued to
the assigning or transferor Lender and/or the new Lender. The Borrower agrees to
indemnify the Administrative Agent from and against any and all losses, claims,
damages and liabilities of whatsoever nature which may be imposed on, asserted
against or incurred by the Administrative Agent in performing its duties under
this Section 13.16 except for gross negligence or willful misconduct.
13.17 Post-Closing Actions. Notwithstanding anything to the contrary
contained in this Agreement or the other Credit Documents, the parties hereto
acknowledge and agree that on the Initial Borrowing Date, (i) the capital stock
of ACLVI and CPI shall not be pledged pursuant to Section 5.07 of this
Agreement, and restrictions on transfers and agreements not to
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encumber stock of ACLVI and CPI shall be inapplicable, and (ii) ACLVI shall not
be required by this Agreement or any other Credit Document to become a
Subsidiary Guarantor or a party to the Security Documents. The Borrower hereby
agrees that the Borrower shall use its commercially reasonable efforts to obtain
the necessary approvals from the applicable Gaming Authority in order to pledge
or cause to be pledged all capital stock of ACLVI and CPI pursuant to the Pledge
Agreement and to cause the restrictions on transfers and agreements not to
encumber stock of ACLVI and CPI to be applicable by no later than March 31,
2001. It is understood and agreed that (x) in the event the Disposition has not
occurred on or prior to March 31, 2001, on such date, and subject to receipt of
approval from the applicable Gaming Authority, the Borrower shall pledge or
cause to be pledged all capital stock of ACLVI pursuant to the Pledge Agreement
and cause such Person to enter into a guaranty substantially similar to the
Subsidiary Guaranty and additional security documents substantially similar to
the Security Documents (to the extent applicable) granting a Lien on its assets
(including, without limitation, The Reserve) and (y) the Borrower shall cause
the stock of CPI to pledged to the Collateral Agent pursuant to the Pledge
Agreement as promptly as possible following receipt of the approval therefore
from the relevant Gaming Authority.
In addition, the parties hereto acknowledge that certain notice filings
with respect to the Transaction need to be completed following the Initial
Borrowing Date pursuant to the Gaming Regulations applicable to the Borrower and
its Subsidiaries. The Borrower agrees to complete all such filings in a timely
manner and to notify the Administrative Agent upon the completion thereof.
All provisions of this Credit Agreement and the other Credit Documents
(including, without limitation, all conditions precedent, representations,
warranties, covenants, events of default and other agreements herein and
therein) shall be deemed modified to the extent necessary to effect the
foregoing (and to permit the taking of the actions and the satisfaction of the
conditions described above within the time periods required hereby (and, rather
than as otherwise provided in the Credit Documents)); provided, that (x) to the
extent any representation and warranty would not be true because the foregoing
actions were not taken, or conditions were not satisfied, on the Initial
Borrowing Date, the respective representation and warranty shall be required to
be true and correct in all material respects at the time the respective action
is taken or condition is satisfied (or was required to be taken or satisfied) in
accordance with the foregoing provisions of this Section 13.17 and (y) all
representations and warranties relating to the Security Documents shall be
required to be true immediately after the actions required to be taken, or the
conditions required to be satisfied, by this Section 13.17 have been taken or
satisfied (or were required to be taken or satisfied).
13.18 Application of Gaming Regulations. This Agreement is
subject to the Gaming Regulations and laws involving the sale and distribution
of liquor (the "Liquor Laws"). Without limiting the foregoing, the
Administrative Agent and the Lenders acknowledge that (i) they are subject to
being called forward by the Gaming Authorities or such other governmental
authorities enforcing the Liquor Laws, in their discretion, for licensing or a
finding of suitability or to file or provide other information, and (ii) all
rights, remedies and powers in or under this Agreement may be exercised only to
the extent that the exercise thereof does not violate any applicable provisions
of the Gaming Regulations and Liquor Laws and only to the extent that required
approvals (including prior approvals) are obtained from the requisite Gaming
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Authorities and such other governmental authorities. The Administrative Agent
and the Lenders agree to cooperate with all Gaming Authorities and such other
governmental authorities in connection with the provision of such documents or
other information as may be requested by such Gaming Authorities and such other
governmental authorities.
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IN WITNESS WHEREOF, the parties hereto have caused their duly authorized
officers to execute and deliver this Agreement as of the date first above
written.
Address:
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AMERISTAR CASINOS, INC.
Ameristar Casinos, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Attention: Chief Financial Officer Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President
of Legal Affairs
Fax: ▇▇▇-▇▇▇-▇▇▇▇
with copies to:
Ameristar Casinos Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Senior Vice President of Legal Affairs
Fax: ▇▇▇-▇▇▇-▇▇▇▇
and
▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇, Esq.
Fax: ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ BANKERS TRUST COMPANY,
New York, New York 10006 Individually and as
Tel: (▇▇▇) ▇▇▇-▇▇▇▇ Administrative Agent
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Title: Principal
150
▇▇▇▇▇ FARGO BANK, N.A.
Individually and as Co-Arranger
and Syndication Agent
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
151
BEAR ▇▇▇▇▇▇▇ CORPORATE LENDING INC.
Individually and as Documentation
Agent
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Managing Director
152
NATIONAL CITY BANK
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
153
THE CIT GROUP/EQUIPMENT FINANCING, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Assistant Vice President/Credit