TERM LOAN AGREEMENT
Dated as of May 28, 1998
among
AZTAR CORPORATION
THE LENDERS HEREIN NAMED
and
BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION, as Administrative Agent
TABLE OF CONTENTS
Article 1 DEFINITIONS AND ACCOUNTING TERMS 2
1.1 Defined Terms
1.2 Use of Defined Terms
1.3 Accounting Terms
1.4 Rounding
1.5 Exhibits and Schedules
1.6 References to "Borrower and its Subsidiaries"
1.7 Miscellaneous Terms
Article 2 LOANS
2.1 Loans-General
2.2 Designation of Interest Periods
2.3 Voluntary Reduction of Commitment
2.4 Automatic Reduction of Commitment
2.5 Optional Termination of Commitment
2.6 Increase of Commitment
2.7 Administrative Agent's Right to Assume Funds Available for Advances
2.8 Collateral and Guaranty
2.9 Senior Indebtedness
Article 3 PAYMENTS AND FEES
3.1 Principal and Interest
3.2 Arrangement Fee
3.3 Upfront Fees
3.4 Agency Fees
3.5 Increased Commitment Costs
3.6 Eurodollar Costs and Related Matters
3.7 Late Payments
3.8 Computation of Interest and Fees
3.9 Non-Banking Days
3.10 Manner and Treatment of Payments
3.11 Funding Sources
3.12 Failure to Charge Not Subsequent Waiver
3.13 Administrative Agent's Right to Assume Payments Will be Made
by Borrower
3.14 Fee Determination Detail
3.15 Survivability
Article 4 REPRESENTATIONS AND WARRANTIES
4.1 Existence and Qualification; Power; Compliance With Laws
4.2 Authority; Compliance With Other Agreements and Instruments
and Government Regulations
4.3 No Governmental Approvals Required
4.4 Subsidiaries
4.5 Financial Statements
4.6 No Other Liabilities; No Material Adverse Changes
4.7 Title to Property
4.8 Intangible Assets
4.9 Public Utility Holding Company Act
4.10 Litigation
4.11 Binding Obligations
4.12 No Default
4.13 ERISA
4.14 Regulations T, U and X; Investment Company Act
4.15 Disclosure
4.16 Tax Liability
4.17 Projections
4.18 Hazardous Materials
4.19 Developed Properties
4.20 Gaming Laws
4.21 Security Interests
Article 5 AFFIRMATIVE COVENANTS (OTHER THAN INFORMATION AND
REPORTING REQUIREMENTS)
5.1 Payment of Taxes and Other Potential Liens
5.2 Preservation of Existence
5.3 Maintenance of Properties
5.4 Maintenance of Insurance
5.5 Compliance With Laws
5.6 Inspection Rights
5.7 Keeping of Records and Books of Account
5.8 Compliance With Agreements
5.9 Use of Proceeds
5.10 Future Collateral
5.11 New Significant Subsidiaries
5.12 Hazardous Materials Laws
5.13 Intercompany Notes
Article 6 NEGATIVE COVENANTS
6.1 Disposition of Property
6.2 Mergers
6.3 Restricted Payments
6.4 Indebtedness
6.5 Liens
6.6 Transactions with Affiliates
6.7 Significant Subsidiaries
6.8 Amendments to Subordinated Obligations
6.9 Amendments to Amended Revolver
Article 7 INFORMATION AND REPORTING REQUIREMENTS
7.1 Financial and Business Information
7.2 Compliance Certificates
Article 8 CONDITIONS
8.1 Initial Advances
Article 9 EVENTS OF DEFAULT AND REMEDIES UPON EVENT OF
DEFAULT
9.1 Events of Default
9.2 Remedies Upon Event of Default
Article 10 THE ADMINISTRATIVE AGENT
10.1 Appointment and Authorization
10.2 Administrative Agent and Affiliates
10.3 Proportionate Interest in any Collateral
10.4 Lenders' Credit Decisions
10.5 Action by Administrative Agent
10.6 Liability of Administrative Agent
10.7 Indemnification
10.8 Successor Administrative Agent
10.9 Foreclosure on Collateral
10.10 No Obligations of Borrower
Article 11 MISCELLANEOUS
11.1 Cumulative Remedies; No Waiver
11.2 Amendments; Consents
11.3 Costs, Expenses and Taxes
11.4 Nature of Lenders' Obligations
11.5 Survival of Representations and Warranties
11.6 Notices
11.7 Execution of Loan Documents
11.8 Binding Effect; Assignment
11.9 Right of Setoff
11.10 Sharing of Setoffs
11.11 Indemnity by Borrower
11.12 Nonliability of the Lenders
11.13 No Third Parties Benefited
11.14 Confidentiality
11.15 Further Assurances
11.16 Integration
11.17 Governing Law
11.18 Severability of Provisions
11.19 Headings
11.20 Time of the Essence
11.21 Foreign Lenders and Participants
11.22 Hazardous Material Indemnity
11.23 Gaming Boards
11.24 Removal of a Lender
11.25 Release of Tropicana Collateral
11.26 Termination; Release of Liens
11.27 Other Lien Releases
11.28 Waiver of Right to Trial by Jury
11.29 Purported Oral Amendments
Exhibits
A - Commitment Assignment and Acceptance
B - Compliance Certificate
C - Confirmation of Guaranty
D - Global Collateral Documents Amendment
E - Global Assignment and Release
F - Intercreditor Agreement
G - Note
H-1- Opinion of Counsel
H-2- Opinion of Counsel
H-3- Opinion of Counsel
H-4- Opinion of Counsel
H-5- Opinion of Counsel
J - Request for Loan
K - Request for Re-Pricing
Schedules
1.1 Lender Commitments
4.3 Governmental Approvals
4.4 Subsidiaries
4.7 Existing Liens and Negative Pledges
4.8 Trademarks and Trade Names
4.10 Material Litigation
4.18 Environmental Matters
4.19 Developed Properties
TERM LOAN AGREEMENT
Dated as of May 28, 1998
This TERM LOAN AGREEMENT ("Agreement") is
entered into by and among Aztar Corporation, a Delaware
corporation ("Borrower"), each lender whose name is set
forth on the signature pages of this Agreement and each
lender which may hereafter become a party to this
Agreement pursuant to Section 11.8 (collectively, the
"Lenders" and individually, a "Lender"), and Bank of
America National Trust and Savings Association, as
Administrative Agent with respect to the following:
A. Borrower (together with certain of its Subsidiaries,
as co-borrowers on a joint and several basis, herein the
"Co-Borrower Subsidiaries") has heretofore entered that
certain Reducing Revolving Loan Agreement dated as of
October 4, 1994 (as amended, the "Prior Revolver") with
the Administrative Agent and the lenders (the "Prior
Lenders") party thereto. The obligations of Borrower (and
the Co-Borrower Subsidiaries) are guaranteed by other
Subsidiaries of Borrower pursuant to a Subsidiary
Guaranty (as defined in the Prior Revolver) and secured
by the Collateral Documents (as defined in the Prior
Revolver).
B. Borrower has requested that the credit facility
created under the Prior Revolver be transformed into two
credit facilities: a reducing revolving credit facility to be
evidenced by an Amended and Restated Reducing
Revolving Loan Agreement of even date herewith (the
"Amended Revolver") and a $50,000,000 term credit
facility to be evidenced by this Agreement, with new
lenders joining either new credit facility and with differing
participation levels for the continuing lenders in the
reducing revolving credit facility. In connection
therewith, the Co-Borrower Subsidiaries will be released
as co-obligors under the Prior Revolver, but will become
party to the Subsidiary Guaranty. The Collateral (as
defined in the Prior Revolver) under the Collateral
Documents will continue to secure the obligations of
Borrower and the Subsidiary Guarantors with respect to
the Amended Revolver and this Agreement on a pari-passu
basis pursuant to an Intercreditor Agreement (defined
below). The Prior Lenders are willing to so transform the
credit facilities as requested by Borrower.
C. Concurrently herewith, pursuant to the Global
Assignment and Release (defined below), the Prior
Lenders have assigned, with the consent of Borrower,
their rights and obligations under the Prior Revolver to the
Lenders under this Agreement and to the Revolver
Lenders (defined below) under the Amended Revolver,
and the Lenders and Revolver Lenders, respectively, have
assumed such rights and obligations as evidenced,
respectively, by this Agreement and the Amended
Revolver. Pursuant to the Global Assignment and
Release, certain of the Prior Lenders will be released from
all further right and obligation under the Prior Revolver
and the Co-Borrower Subsidiaries will be released from
their obligations as co-borrowers under the Prior
Revolver.
D. Concurrently with the Prior Revolver, the Prior
Lenders also extended an amortizing loan credit facility to
Tropicana Enterprises ("TEGP"), a general partnership of
which a Subsidiary of Borrower is a 50% general partner,
pursuant to the Second Amended and Restated Loan
Agreement dated as of October 4, 1994 (the "Prior TEGP
Loan Agreement"). The Prior TEGP Loan Agreement is
secured by its own collateral and not by the Collateral
under the Collateral Documents. The Prior Lenders were
required to maintain the same Pro Rata Share of the
Commitment under the Prior Revolver as under the Prior
TEGP Loan Agreement and that requirement will continue
with respect to the Amended Revolver and the TEGP
Loan Agreement (defined below), but not with respect to
this Agreement. Pursuant to the Global Assignment and
Release, the Prior Lenders will also assign, with the
consent of TEGP, their respective rights and obligations
under the Prior TEGP Loan Agreement to the Lenders
under the TEGP Loan Agreement, and the Lenders will
assume such rights and obligations as evidenced by the
TEGP Loan Agreement.
In consideration of the mutual covenants and agreements
herein contained, the parties hereto covenant and agree as
follows:
Article 1
DEFINITIONS AND ACCOUNTING TERMS
1.1 Defined Terms. As used in this Agreement, the
following terms shall have the meanings set forth below:
"Administrative Agent" means Bank of America National
Trust and Savings Association, when acting in its capacity
as the Administrative Agent under any of the Loan
Documents, or any successor Administrative Agent.
"Administrative Agent's Office" means the Administrative
Agent's address as set forth on the signature pages of this
Agreement, or such other address as the Administrative
Agent hereafter may designate by written notice to
Borrower and the Lenders.
"Advance" means any advance made or to be made by any
Lender to Borrower as provided in Article 2, and includes
each Alternate Base Rate Advance and Eurodollar Rate
Advance.
"Affiliate" means, as to any Person, any other Person
which directly or indirectly controls, or is under common
control with, or is controlled by, such Person. As used in
this definition, "control" (and the correlative terms,
"controlled by" and "under common control with") shall
mean possession, directly or indirectly, of power to direct
or cause the direction of management or policies (whether
through ownership of securities or partnership or other
ownership interests, by contract or otherwise); provided
that, in any event, any Person that owns, directly or
indirectly, 10% or more of the securities having ordinary
voting power for the election of directors or other
governing body of a corporation that has more than
100 record holders of such securities, or 10% or more of
the partnership or other ownership interests of any other
Person that has more than 100 record holders of such
interests, will be deemed to control such corporation,
partnership or other Person.
"Agreement" means this Term Loan Agreement, either as
originally executed or as it may from time to time be
supplemented, modified, amended, restated or extended.
"AIGC" means Aztar Indiana Gaming Corporation, an
Indiana corporation.
"Alternate Base Rate" means, as of any date of
determination, the rate per annum (rounded upwards, if
necessary, to the next 1/100 of 1%) equal to the higher of
(a) the Reference Rate in effect on such date and (b) the
Federal Funds Rate in effect on such date plus 1/2 of 1%
(50 basis points).
"Alternate Base Rate Advance" means, for purposes of
Section 3.6, an Advance deemed extended by a Lender to
Borrower bearing interest at the Alternate Base Rate.
"Amended Revolver" has the meaning set forth in the
Recitals to this Agreement.
"AMGC" means Aztar Missouri Gaming Corporation, a
Missouri corporation.
"Amortization Amount" means (a) with respect to each
Amortization Date during the period commencing
September 30, 1999 and ending June 30, 2004, the sum of
(i) $125,000 plus (ii) an amount equal to .0025 (.25%)
times the amount of any increase in the Commitment
pursuant to Section 2.6 and (b) with respect to each
Amortization Date during the period commencing on
September 30, 2004 and ending on the Maturity Date, the
sum of (i) $11,875,000 plus (ii) an amount equal to
twenty-five percent (25%) of the result obtained by
subtracting (A) that portion of the Amortization Amounts
described in clause (a)(ii) above paid during the period
September 30, 1999 through June 30, 2004 from (B) the
amount of any increase in the Commitment pursuant to
Section 2.6.
"Amortization Date" means September 30, 1999 and each
Quarterly Payment Date thereafter.
"Ancillary Collateral Documents" means such ancillary
documents amending, or providing a memorandum for
recordation of, the Collateral Documents (including
amendments to each of the Deeds of Trust) as the
Administrative Agent reasonably determines are necessary
or desirable, as notified to Borrower at least two (2)
Banking Days prior to the Closing Date.
"ANI" means Adamar of Nevada, a Nevada corporation.
"ANJI" means Adamar of New Jersey, Inc., a New Jersey
corporation.
"Arranger" means BancAmerica ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇.
"Atlantic City Deeds of Trust" means the deeds of trust
and assignment of rents and leases executed and delivered
by ANJI and certain Significant Subsidiaries covering the
Atlantic City Property in the form of Exhibit N to the
Prior Revolver, either as originally executed or as it may
from time to time be supplemented, modified, amended,
extended or supplanted.
"Atlantic City Property" means the real property and
improvements thereon known as the "Tropicana Casino
and Resort" and certain related property, comprised of
(a) a parcel of approximately 4 acres located in Atlantic
City, New Jersey on which the original casino-hotel is
located, (b) a parcel of approximately 3.1 acres located in
Atlantic City, New Jersey on which the expansion portion
of the casino-hotel is located, (c) a parcel of
approximately 1.1 acres located in Atlantic City,
New Jersey on which a transportation center is located,
(d) a parcel of approximately 1.1 acres located in Atlantic
City, New Jersey on which a parking garage is located,
(e) 23 parcels in "Block C-9" aggregating approximately
2.7 acres located in Atlantic City, New Jersey on which a
parking lot is constructed and (f) a parcel of approximately
3.5 acres located in Ventnor, New Jersey on which a
parking lot and minor structures are located.
"Average Life" means, as of the date of determination,
with respect to any debt security, the quotient obtained by
dividing (i) the sum of the products of (x) the numbers of
years (calculated to the nearest one-twelfth of a year) from
the date of determination to the dates of each successive
scheduled principal payment of such debt security
multiplied by (y) the amount of such principal payment by
(ii) the sum of all such principal payments.
"Banking Day" means any Monday, Tuesday, Wednesday,
Thursday or Friday, other than a day on which banks are
authorized or required to be closed in California, Arizona
or New York.
"Borrower" means Aztar Corporation, a Delaware
corporation, and its successors and permitted assigns.
"Capital Lease Obligations" means all monetary
obligations of a Person under any leasing or similar
arrangement which, in accordance with Generally
Accepted Accounting Principles, is classified as a capital
lease.
"Capital Stock" means, with respect to any Person, any
and all shares, interests, participation or other equivalents
(however designated) of capital stock of such Person and
any rights (other than debt securities convertible into
capital stock), warrants or options to acquire such capital
stock.
"Caruthersville Deed of Trust" means the deed of trust
executed and delivered by AMGC covering the
Caruthersville Property in the form of Exhibit H to the
Prior Revolver, either as originally executed or as it may
from time to time be supplemented, modified, amended,
extended or supplemented.
"Caruthersville Property" means a fee simple parcel of
approximately 37 acres located in Caruthersville,
Missouri.
"Cash" means, when used in connection with any Person,
all monetary and non-monetary items owned by that
Person that are treated as cash in accordance with
Generally Accepted Accounting Principles, consistently
applied.
"Certificate of a Responsible Official" means a certificate
signed by a Responsible Official of the Person providing
the certificate.
"Change in Control" means (a) any transaction or series of
related transactions in which any Unrelated Person or two
or more Unrelated Persons acting in concert acquire
beneficial ownership (within the meaning of
Rule 13d-3(a)(1) under the Securities Exchange Act of
1934, as amended), directly or indirectly, of 50% or more
of the outstanding Common Stock, or (b) any event or
circumstance constituting a "change in control" or other
similar occurrence under documentation evidencing or
governing any Indebtedness of Borrower of $25,000,000
or more which results in an obligation of Borrower to
prepay, purchase, offer to purchase, redeem or defease all
or a portion of such Indebtedness. For purposes of the
foregoing, the term "Unrelated Person" means any Person
other than (i) a Subsidiary of Borrower or (ii) an employee
stock ownership plan or other employee benefit plan
covering the employees of Borrower and its Subsidiaries.
"Closing Date" means the time and Banking Day on which
the conditions set forth in Section 8.1 are satisfied or
waived. The Administrative Agent shall notify Borrower
and the Lenders of the date that is the Closing Date.
"Code" means the Internal Revenue Code of 1986, as
amended or replaced and as in effect from time to time.
"Collateral" means all of the collateral covered by the
Collateral Documents.
"Collateral Agent" means the Collateral Agent as such
term is defined in the Intercreditor Agreement.
"Collateral Documents" means, collectively, the Security
Agreement, the Trademark Collateral Assignment, the
Pledge Agreement (Nevada Gaming), the Pledge
Agreement (General), the Deeds of Trust (in the case of
each of the foregoing, as amended by the Global
Collateral Documents Amendment or any Ancillary
Collateral Document) and any other security agreement,
pledge agreement, deed of trust, mortgage or other
collateral security agreement hereafter executed and
delivered by Borrower or the Significant Subsidiaries to
secure the Obligations.
"Commitment" means, subject to Sections 2.3, 2.4
and 2.6, $50,000,000.00. As of the Closing Date, the
respective Pro Rata Shares of the Lenders with respect to
the Commitment are set forth in Schedule 1.1. From and
after the Closing Date, the Pro Rata Shares set forth in
Schedule 1.1 may be subject to assignment pursuant to
Section 11.8, with the portion of any Pro Rata Share so
assigned being reflected in the applicable Commitment
Assignment and Acceptance.
"Commitment Assignment and Acceptance" means a
commitment assignment and acceptance substantially in
the form of Exhibit A.
"Common Stock" means the common stock of Borrower
or its successor by merger.
"Completion Guaranty" means a Guaranty Obligation
given by Borrower or a Restricted Subsidiary to a holder
of Indebtedness of, or an obligee of, a New Venture Entity
which obligates Borrower or the Restricted Subsidiary
(a) to cause the completion of construction of a
New Venture, (b) to provide funding for all or a portion of
any construction cost overruns with respect thereto, and/or
(c) to cause the New Venture Entity to perform any of its
Contractual Obligations (other than in respect of the
repayment of any Indebtedness or other monetary
obligation of the New Venture Entity) to an obligee of the
New Venture Entity.
"Compliance Certificate" means a certificate in the form
of Exhibit B, properly completed and signed by a Senior
Officer of Borrower.
"Confirmation of Guaranty" means the confirmation of
guaranty with respect to the Subsidiary Guaranty executed
by each Significant Subsidiary as of the Closing Date, in
the form of Exhibit C, either as originally executed or as it
may from time to time be supplemented, modified,
amended, extended or supplanted.
"Consolidated Amortization Expense" means, for any
period, amortization expense of Borrower and its
Restricted Subsidiaries, on a consolidated basis, for such
period (including, without limitation, any amortization or
write-offs of deferred financing costs by Borrower and its
Restricted Subsidiaries during such period).
"Consolidated Depreciation Expense" means, for any
period, depreciation expense of Borrower and its
Restricted Subsidiaries, on a consolidated basis, for such
period.
"Consolidated Fixed Charge Coverage Ratio" means, as of
any Transaction Date, the ratio of (i) Consolidated
Operating Cash Flow for the four consecutive Fiscal
Quarters for which financial information in respect thereof
is available immediately prior to such Transaction Date to
(ii) Consolidated Fixed Charges which will accrue during
the then current Fiscal Quarter in which such Transaction
Date occurs (beginning on the first day of such quarter)
and the three Fiscal Quarters immediately subsequent to
the end of such current Fiscal Quarter, provided that, for
the purpose of calculating Consolidated Fixed Charges for
the period described in this clause (ii), (A) the interest rate
on any Indebtedness bearing interest at a rate that is
adjustable based on market rate levels shall be calculated
based on the assumption that the applicable market rate
level in effect on the Transaction Date shall remain
constant throughout such period at the market rate level in
effect on the Transaction Date, (B) adjustments that are
reasonably anticipated to occur during such period to
Consolidated Fixed Charges shall be included in such
calculation (including such adjustments that result from
the scheduled maturity of Indebtedness of Borrower and
its Restricted Subsidiaries) and (C) Indebtedness shall be
included in such calculation that is reasonably anticipated
to be created, incurred, assumed or guaranteed by, or to
otherwise become the obligation of, Borrower or any
Restricted Subsidiary; provided, however, that, for
purposes of calculating the Consolidated Fixed Charge
Coverage Ratio, Consolidated Operating Cash Flow and
Consolidated Fixed Charges shall (x) include the
consolidated operating cash flow and consolidated fixed
charges of any Person to be acquired by Borrower or any
of its Restricted Subsidiaries as a Restricted Subsidiary in
connection with the transaction giving rise to the need to
calculate the Consolidated Fixed Charge Coverage Ratio,
(y) include the consolidated operating cash flow and
consolidated fixed charges of any other Person acquired
during the period described in clause (i) above by
Borrower or by any of its Restricted Subsidiaries as a
Restricted Subsidiary and (z) exclude the consolidated
operating cash flow of any Person directly attributable to
the Property of such Person that was the subject of a
Disposition, on a pro forma basis for the four consecutive
Fiscal Quarters for which financial information in respect
thereof is available immediately prior to such Transaction
Date, in the case of calculating Consolidated Operating
Cash Flow, and for the then current Fiscal Quarter in
which such Transaction Date occurs and the three Fiscal
Quarters immediately subsequent to the end of such Fiscal
Quarter (on the same basis as described in clause (ii)
above), in the case of calculating Consolidated Fixed
Charges. For purposes of the foregoing proviso, the
consolidated operating cash flow and consolidated fixed
charges of any such Person shall be determined on the
same basis as such items are determined for Borrower.
For purposes of each pro forma determination of the
Consolidated Fixed Charge Coverage Ratio in connection
with Section 6.5(a), the proposed new Indebtedness shall
be deemed to be incurred on the first day of the Fiscal
Quarter in which the relevant Transaction Date occurs.
"Consolidated Fixed Charges" means, for any period, the
sum of Consolidated Interest Expense plus the TEGP
Payments.
"Consolidated Income Tax Expense" means, for any
period, the income tax expense of Borrower and its
Restricted Subsidiaries, on a consolidated basis, for such
period (other than income tax expense attributable to
Dispositions).
"Consolidated Interest Expense" means, for any period,
without duplication, (A) the sum of (i) the aggregate
amount of interest recognized by Borrower and its
Restricted Subsidiaries during such period in respect of
Indebtedness of Borrower and its Restricted Subsidiaries
(including, without limitation, all interest capitalized by
Borrower and its Restricted Subsidiaries during such
period and all commissions, discounts and other fees and
charges owed by Borrower and its Restricted Subsidiaries
with respect to letters of credit and bankers' acceptance
financing and the net costs associated with Swap
Agreements of Borrower and its Restricted Subsidiaries),
(ii) the aggregate amount of the interest component of
rentals in respect of Capital Lease Obligations recognized
by Borrower and its Restricted Subsidiaries during such
period, (iii) to the extent any Indebtedness of any Person
is guaranteed by Borrower or any of its Restricted
Subsidiaries, the aggregate amount of interest paid or
accrued by such Person during such period attributable to
any such Indebtedness, (iv) one-third of the rent expense
incurred under noncancelable operating leases (excluding
the TEGP Lease) during such period and (v) the aggregate
amount of Redeemable Dividends recognized by Borrower
and its Restricted Subsidiaries, whether or not declared
during such period, less (B) any amortization or write-off
of deferred financing costs by Borrower and its Restricted
Subsidiaries during such period; in each case after
elimination of intercompany accounts among Borrower
and its Restricted Subsidiaries and to the extent such
expense was deducted in calculating Consolidated Net
Income for such period, as determined in accordance with
Generally Accepted Accounting Principles.
"Consolidated Interest Income" means, for any period,
interest income from all sources of Borrower and its
Restricted Subsidiaries, on a consolidated basis, for such
period.
"Consolidated Net Income" means, for any period, the
aggregate net income of Borrower and its Subsidiaries for
such period on a consolidated basis, determined in
accordance with generally accepted accounting principles,
provided that there shall be excluded therefrom (i) gains
and losses from Dispositions or reserves relating thereto,
(ii) items classified as extraordinary or nonrecurring,
(iii) the income (or loss) of any Unrestricted New Venture
Entity or Joint Venture, except to the extent that the
aggregate amount of cash dividends or other distributions
actually paid during such period to Borrower or any
Restricted Subsidiary by such Unrestricted New Venture
Entity or Joint Venture in respect of its Capital Stock out
of funds legally available therefor exceeds the aggregate
amount of new Investments in such Unrestricted New
Venture Entity or Joint Venture by Borrower or any
Restricted Subsidiary during such period, (iv) except to
the extent includable pursuant to clause (iii), the income
(or loss) of any Person accrued or attributable to any
period prior to the date it becomes a Restricted Subsidiary
or is merged into or consolidated with Borrower or any of
its Restricted Subsidiaries or that Person's assets (or a
portion thereof) are acquired by Borrower or any of its
Restricted Subsidiaries and (v) the income of any
Restricted Subsidiary to the extent that such Restricted
Subsidiary is prevented by any Gaming Laws from paying
such income to Borrower or another Restricted Subsidiary.
"Consolidated Net Rent" means, for any period, without
duplication, an amount equal to the total of: (A) the rent
expense, net of intercompany rent, incurred by HRN
pursuant to the TEGP Lease plus (B) two-thirds of the rent
expense incurred under other noncancelable operating
leases.
"Consolidated Operating Cash Flow" means, for any
period, without duplication, Consolidated Net Income plus
(i) Consolidated Interest Expense plus (ii) Consolidated
Income Tax Expense plus (iii) Consolidated Depreciation
Expense plus (iv) Consolidated Amortization Expense
plus (v) Consolidated Net Rent plus (vi) equity in
unconsolidated Person's losses minus (vii) Consolidated
Interest Income plus (viii) other non-cash items reducing
such Consolidated Net Income, minus (ix) other non-cash
items increasing such Consolidated Net Income, for such
period, all as determined in accordance with Generally
Accepted Accounting Principles.
"Contractual Obligation" means, as to any Person, any
provision of any outstanding security issued by that
Person or of any material agreement, instrument or
undertaking to which that Person is a party or by which it
or any of its Property is bound.
"Currency Agreement" means, with respect to any Person,
any foreign exchange contract, currency swap agreement,
option or futures contract or other similar agreement or
arrangement designed to protect such Person or any of its
Subsidiaries against fluctuations in currency values.
"Debtor Relief Laws" means the Bankruptcy Code of the
United States of America, as amended from time to time,
and all other applicable liquidation, conservatorship,
bankruptcy, moratorium, rearrangement, receivership,
insolvency, reorganization, or similar debtor relief Laws
from time to time in effect affecting the rights of creditors
generally.
"Deeds of Trust" means (a) the Ramada Express Deed of
Trust, (b) the Atlantic City Deeds of Trust, (c) the
Caruthersville Deed of Trust and (d) the Evansville Deed
of Trust.
"Default" means any event that, with the giving of any
applicable notice or passage of time specified in
Section 9.1, or both, would be an Event of Default.
"Default Rate" means the interest rate prescribed in
Section 3.7.
"Designated Deposit Account" means a deposit account to
be maintained by Borrower with Bank of America
National Trust and Savings Association, as from time to
time designated by Borrower by written notification to the
Administrative Agent.
"Designated Eurodollar Market" means, with respect to
any Eurodollar Rate Loan, (a) the London Eurodollar
Market, (b) if prime banks in the London Eurodollar
Market are at the relevant time not accepting deposits of
Dollars or if the Administrative Agent determines in good
faith that the London Eurodollar Market does not
represent at the relevant time the effective pricing to the
Lenders for deposits of Dollars in the London Eurodollar
Market, the Cayman Islands Eurodollar Market or (c) if
prime banks in the Cayman Islands Eurodollar Market are
at the relevant time not accepting deposits of Dollars or if
the Administrative Agent determines in good faith that the
Cayman Islands Eurodollar Market does not represent at
the relevant time the effective pricing to the Lenders for
deposits of Dollars in the Cayman Islands Eurodollar
Market, such other Eurodollar Market as may from time to
time be selected by the Administrative Agent with the
approval of Borrower and the Requisite Lenders.
"Developed Property" means, as of any date of
determination, a casino, hotel, casino/hotel, resort,
casino/resort, riverboat casino, dockside casino, golf
course, entertainment center or similar facility owned by
Borrower or any of the Restricted Subsidiaries (or owned
by a Person in which Borrower or any of the Restricted
Subsidiaries holds a Permitted Investment) and which is at
such date substantially complete and open for business,
other than the TEGP Property.
"Disposition" means the voluntary sale, transfer or other
disposition (including a Sale and Leaseback Transaction)
of any asset of Borrower or any of the Restricted
Subsidiaries other than (a) Cash, Cash Equivalents,
inventory or other assets sold, leased or otherwise
disposed of in the ordinary course of business of Borrower
or a Restricted Subsidiary, (b) equipment sold or
otherwise disposed of where substantially similar
equipment in replacement thereof has theretofore been
acquired, or thereafter within 90 days is acquired, by
Borrower or a Restricted Subsidiary, or where Borrower
or the Restricted Subsidiary determines in good faith that
the failure to replace such equipment will not be
detrimental to the business of Borrower or the Restricted
Subsidiary, (c) a disposition to Borrower or a Restricted
Subsidiary, (d) an issuance of equity interests by a
Wholly-Owned Subsidiary to Borrower or to another
Wholly-Owned Subsidiary, (e) the issuance and sale of
equity interests in an Unrestricted New Venture Entity,
(f) a Permitted Investment and (g) a Restricted Payment
that is permitted under Section 6.4.
"Disqualified Stock" means any capital stock, warrants,
options or other rights to acquire capital stock (but
excluding any debt security which is convertible, or
exchangeable, for 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, matures 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 the Maturity Date; provided that the
aforementioned interests shall not be Disqualified Stock if
they are redeemable prior to the Maturity Date only (a) if
the board of directors of Borrower determines in its
judgment that as a result of a holder or beneficial owner
owning such interests (i) Borrower or a Subsidiary of
Borrower has lost or may lose any license or franchise
from any Gaming Board held by Borrower or any
Subsidiary of Borrower necessary to conduct any portion
of the business of Borrower or such Subsidiary of
Borrower or (ii) any Gaming Board has taken or may take
action to materially restrict or impair the operations of
Borrower or its Subsidiaries, which license, franchise or
action is conditioned upon some or all of the holders or
beneficial owners of such interests being licensed or found
qualified or suitable to own such interests or (b) because
the holders thereof have the right to require Borrower to
repurchase such capital stock upon the occurrences of a
Change of Control or Disposition (or other like event) if
the terms of such capital stock provide that Borrower may
not repurchase or redeem any such capital stock pursuant
to such provisions unless such repurchase or redemption is
permitted at the time under the Amended Revolver and
this Agreement..
"Distribution" means, with respect to any shares of capital
stock or any warrant or option to purchase an equity
security or other equity security issued by a Person, (i) the
retirement, redemption, purchase or other acquisition for
Cash or for Property by such Person of any such security,
(ii) the declaration or (without duplication) payment by
such Person of any dividend in Cash or in Property on or
with respect to any such security, (iii) any Investment by
such Person in the holder of 5% or more of any such
security if a purpose of such Investment is to avoid
characterization of the transaction as a Distribution and
(iv) any other payment in Cash or Property by such Person
constituting a distribution under applicable Laws with
respect to such security.
"Dollars" or "$" means United States dollars.
"Domestic Reference Lender" means Bank of America
National Trust and Savings Association.
"Eligible Assignee" means (a) another Lender, (b) with
respect to any Lender, any Affiliate of that Lender, (c) any
commercial bank having a combined capital and surplus of
$100,000,000 or more, (d) any (i) savings bank, savings
and loan association or similar financial institution or
(ii) insurance company engaged in the business of writing
insurance which, in either case (A) has a net worth of
$200,000,000 or more, (B) is engaged in the business of
lending money and extending credit under credit facilities
substantially similar to those extended under this
Agreement and (C) is operationally and procedurally able
to meet the obligations of a Lender hereunder to the same
degree as a commercial bank and (e) any other financial
institution (including a mutual fund or other fund) having
total assets of $250,000,000 or more which meets the
requirements set forth in subclauses (B) and (C) of
clause (d) above; provided that (I) each Eligible Assignee
must either (a) be organized under the Laws of the
United States of America, any State thereof or the District
of Columbia or (b) be organized under the Laws of the
Cayman Islands or any country which is a member of the
Organization for Economic Cooperation and
Development, or a political subdivision of such a country,
and (i) act hereunder through a branch, agency or funding
office located in the United States of America and (ii) be
exempt from withholding of tax on interest and deliver the
documents related thereto pursuant to Section 11.21 and
(II) to the extent required under applicable Gaming Laws,
each Eligible Assignee must be registered with, approved
by, or not disapproved by (whichever may be required
under applicable Gaming Laws), all applicable Gaming
Boards (including the New Jersey Casino Control
Commission).
"ERISA" means the Employee Retirement Income
Security Act of 1974, and any regulations issued pursuant
thereto, as amended or replaced and as in effect from time
to time.
"Eurodollar Banking Day" means any Banking Day on
which dealings in Dollar deposits are conducted by and
among banks in the Designated Eurodollar Market.
"Eurodollar Lending Office" means, as to each Lender, its
office or branch so designated by written notice to
Borrower and the Administrative Agent as its Eurodollar
Lending Office. If no Eurodollar Lending Office is
designated by a Lender, its Eurodollar Lending Office
shall be its office at its address for purposes of notices
hereunder.
"Eurodollar Market" means a regular established market
located outside the United States of America by and
among banks for the solicitation, offer and acceptance of
Dollar deposits in such banks.
"Eurodollar Obligations" means eurocurrency liabilities,
as defined in Regulation D or any comparable regulation
of any Governmental Agency having jurisdiction over any
Lender.
"Eurodollar Period" means, as to each Eurodollar Rate
Loan, the period commencing on the date specified by
Borrower pursuant to Section 2.1(b) and ending 1, 2, 3 or
6 months (or, with the written consent of all of the
Lenders, any other period) thereafter, as specified by
Borrower in the applicable Request for Loan; provided
that:
(a) The first day of any Eurodollar Period shall be a
Eurodollar Banking Day;
(b) Any Eurodollar Period that would otherwise end on
a day that is not a Eurodollar Banking Day shall be
extended to the next succeeding Eurodollar Banking Day
unless such Eurodollar Banking Day falls in another
calendar month, in which case such Eurodollar Period
shall end on the next preceding Eurodollar Banking Day;
(c) Borrower may not specify a Eurodollar Period that
extends beyond the next Amortization Date unless the
aggregate principal amount of the Eurodollar Loans
having a Eurodollar Period ending after such Amortization
Date does not exceed the Commitment (after giving effect
to any reduction thereto scheduled to be made on such
Amortization Date pursuant to Section 2.4); and
(d) No Eurodollar Period shall extend beyond the
Maturity Date.
"Eurodollar Rate" means, with respect to any Eurodollar
Rate Loan, the interest rate per annum (rounded upward, if
necessary, to the next 1/100 of 1%) at which deposits in
Dollars are offered by the Eurodollar Reference Lender to
prime banks in the Designated Eurodollar Market at or
about 11:00 a.m. local time in the Designated Eurodollar
Market, two (2) Eurodollar Banking Days before the first
day of the applicable Eurodollar Period in an aggregate
amount approximately equal to the amount of the Advance
made by the Eurodollar Reference Lender with respect to
such Eurodollar Rate Loan and for a period of time
comparable to the number of days in the applicable
Eurodollar Period.
"Eurodollar Rate Loan" means any Loan consisting of the
group of Advances made by the Lenders pursuant to
Sections 2.1(a) or 2.1(b), and any portion thereof for
which the Interest Period is subsequently redesignated
pursuant to Section 2.1(h).
"Eurodollar Reference Lender" means Bank of America
National Trust and Savings Association.
"Evansville Deed of Trust" means the deed of trust
executed and delivered by AIGC covering the Evansville
Property in the form of Exhibit H to the Prior Revolver,
either as originally executed or as it may from time to time
be supplemented, modified, amended, extended or
supplanted.
"Evansville Property" means (a) a fee simple parcel of
approximately 3.6 acres and (b) a leasehold parcel of
approximately 10.2 acres, in both cases located in
Evansville, Indiana.
"Event of Default" shall have the meaning provided in
Section 9.1.
"Existing 11% Subordinated Debt" means the 11% Senior
Subordinated Notes due 2002 issued by Borrower.
"Existing 13 3/4% Subordinated Debt" means the 13 3/4%
Senior Subordinated Notes due 2004 issued by Borrower.
"Existing 13 3/4% Subordinated Debt Indenture" means
the Indenture governing the Existing 13 3/4%
Subordinated Debt, as in effect on the date of this
Agreement, and as the same may from time to time be
supplemented, modified, amended, renewed, extended or
supplanted with the written consent of the Requisite
Lenders.
"Existing Indentures" means the Existing 13 3/4%
Subordinated Debt Indenture and the indenture covering
the Existing 11% Subordinated Debt.
"Federal Funds Rate" means, as of any date of
determination, the rate set forth in the weekly statistical
release designated as H.15(519), or any successor
publication, published by the Federal Reserve Board
(including any such successor, "H.15(519)") for such date
opposite the caption "Federal Funds (Effective)". If for
any relevant date such rate is not yet published in
H.15(519), the rate for such date will be the rate set forth
in the daily statistical release designated as the Composite
3:30 p.m. Quotations for U.S. Government Securities, or
any successor publication, published by the Federal
Reserve Bank of New York (including any such successor,
the "Composite 3:30 p.m. Quotation") for such date under
the caption "Federal Funds Effective Rate". If on any
relevant date the appropriate rate for such date is not yet
published in either H.15(519) or the Composite 3:30 p.m.
Quotations, the rate for such date will be the arithmetic
mean of the rates for the last transaction in overnight
Federal funds arranged prior to 9:00 a.m. (New York City
time) on that date by each of three leading brokers of
Federal funds transactions in New York City selected by
the Administrative Agent. For purposes of this
Agreement, any change in the Alternate Base Rate due to
a change in the Federal Funds Rate shall be effective as of
the opening of business on the effective date of such
change.
"Fiscal Quarter" means the fiscal quarter of Borrower
consisting of a 13 week or 14 week fiscal period ending on
or about each March 31, June 30, September 30 and
December 31.
"Fiscal Year" means the fiscal year of Borrower consisting
of a 52 week or 53 week fiscal period ending on the
Thursday nearest December 31.
"Funded Debt" means, as of any date of determination
(without duplication and on a consolidated basis), the sum
of (a) all principal Indebtedness of Borrower and the
Restricted Subsidiaries and of TEGP for borrowed money
(including debt securities issued by Borrower, any of the
Restricted Subsidiaries or TEGP, but excluding in any
event any contingent obligations with respect to undrawn
letters of credit) on that date plus (b) the aggregate amount
of the principal portion of all Capital Lease Obligations of
Borrower and the Restricted Subsidiaries and of TEGP on
that date.
"Gaming Board" means, collectively, (a) the Nevada
Gaming Commission, (b) the Nevada State Gaming
Control Board, (c) the New Jersey Casino Control
Commission, (d) the New Jersey Division of Gaming
Enforcement, (e) the Indiana Gaming Commission, (f) the
Missouri Gaming Commission and (g) any other
Governmental Agency that holds regulatory, licensing or
permit authority over gambling, gaming or casino
activities conducted by Borrower and the Restricted
Subsidiaries within its jurisdiction.
"Gaming Laws" means all Laws pursuant to which any
Gaming Board possesses regulatory, licensing or permit
authority over gambling, gaming or casino activities
conducted by Borrower and the Restricted Subsidiaries
within its jurisdiction.
"Generally Accepted Accounting Principles" means, as of
any date of determination, accounting principles (a) set
forth as generally accepted in then currently effective
Opinions of the Accounting Principles Board of the
American Institute of Certified Public Accountants, (b) set
forth as generally accepted in then currently effective
Statements of the Financial Accounting Standards Board
or (c) that are then approved by such other entity as may
be approved by a significant segment of the accounting
profession in the United States of America. The term
"consistently applied," as used in connection therewith,
means that the accounting principles applied are consistent
in all material respects with those applied at prior dates or
for prior periods.
"Global Assignment and Release" means the global
assignment and release to be executed and delivered by
the Prior Lenders, the Revolver Lenders, the Lenders and
Borrower as of the Closing Date, in the form of Exhibit E.
"Global Collateral Documents Amendment" means the
Global Collateral Documents Amendment amending the
Collateral Documents to be executed by Borrower and the
Subsidiary Guarantors, in the form of Exhibit D, as of the
Closing Date, together with all ancillary amendments to
the Collateral Documents referred to therein.
"Governmental Agency" means (a) any international,
foreign, federal, state, county or municipal government, or
political subdivision thereof, (b) any governmental or
quasi-governmental agency, authority, board, bureau,
commission, department, instrumentality or public body,
or (c) any court or administrative tribunal of competent
jurisdiction.
"Guaranty Obligation" means, as to any Person, any
(a) guarantee by that Person of Indebtedness of, or other
obligation performable by, any other Person or
(b) assurance given by that Person to an obligee of any
other Person with respect to the performance of an
obligation by, or the financial condition of, such other
Person, whether direct, indirect or contingent, including
any purchase or repurchase agreement covering such
obligation or any collateral security therefor, any
agreement to provide funds (by means of loans, capital
contributions or otherwise) to such other Person, any
agreement to support the solvency or level of any balance
sheet item of such other Person or any "keep-well" or
other arrangement of whatever nature given for the
purpose of assuring or holding harmless such obligee
against loss with respect to any obligation of such other
Person; provided, however, that the term Guaranty
Obligation shall not include endorsements of instruments
for deposit or collection in the ordinary course of
business. The amount of any Guaranty Obligation in
respect of Indebtedness shall be deemed to be an amount
equal to the stated or determinable amount of the related
Indebtedness (unless the Guaranty Obligation is limited by
its terms to a lesser amount, in which case to the extent of
such amount) or, if not stated or determinable, the
maximum reasonably anticipated liability in respect
thereof as determined by the Person in good faith. The
amount of any other Guaranty Obligation shall be deemed
to be zero unless and until the amount thereof has been (or
in accordance with Financial Accounting Standards Board
Statement No. 5 should be) quantified and reflected or
disclosed in the consolidated financial statements (or notes
thereto) of Borrower and the Restricted Subsidiaries.
"Hazardous Materials" means substances defined as
"hazardous substances" pursuant to the Comprehensive
Environmental Response, Compensation and Liability Act
of 1980, 42 U.S.C. section 9601 et seq., or as "hazardous",
"toxic" or "pollutant" substances or as "solid waste"
pursuant to the Hazardous Materials Transportation Act,
49 U.S.C. section 1801, et seq., the Resource Conservation and
Recovery Act, 42 U.S.C. section 6901, et seq., or as "friable
asbestos" pursuant to the Toxic Substances Control Act,
15 U.S.C. section 2601 et seq. or any other applicable
Hazardous Materials Law, in each case as such Laws are
amended from time to time.
"Hazardous Materials Laws" means all Laws governing
the treatment, transportation or disposal of Hazardous
Materials applicable to any of the Real Property.
"HRN" means Hotel Ramada of Nevada, a Nevada
corporation.
"Indebtedness" means, as to any Person (without
duplication), (a) indebtedness of such Person for borrowed
money or for the deferred purchase price of Property
(excluding trade and other accounts payable in the
ordinary course of business in accordance with ordinary
trade terms), including any Guaranty Obligation for any
such indebtedness, (b) indebtedness of such Person of the
nature described in clause (a) that is non-recourse to the
credit of such Person but is secured by assets of such
Person, to the extent of the value of such assets,
(c) Capital Lease Obligations of such Person,
(d) indebtedness of such Person arising under bankers'
acceptance facilities or under facilities for the discount of
accounts receivable of such Person, (e) any direct or
contingent obligations of such Person under letters of
credit issued for the account of such Person and (f) any
net obligations of such Person under Swap Agreements.
"Intercompany Notes" means the intercompany
promissory notes required pursuant to Section 5.13.
"Intercreditor Agreement" means the intercreditor
agreement to be executed and delivered by the
Administrative Agent, on behalf of the Lenders, and the
Term Loan Agent, on behalf of the Term Lenders, in the
form of Exhibit E.
"Interest Differential" means, with respect to any
prepayment of a Eurodollar Rate Loan on a day other than
the last day of the applicable Interest Period and with
respect to any failure to borrow a Eurodollar Rate Loan on
the date or in the amount specified in any Request for
Loan, (a) the Eurodollar Rate payable (or, with respect to
a failure to borrow, the Eurodollar Rate which would have
been payable) with respect to the Eurodollar Rate Loan
minus (b) the Eurodollar Rate on, or as near as practicable
to the date of the prepayment or failure to borrow for a
Eurodollar Rate Loan with an Interest Period commencing
on such date and ending on the last day of the Interest
Period of the Eurodollar Rate Loan so prepaid or which
would have been borrowed on such date.
"Interest Period" means, with respect to any Eurodollar
Rate Loan, the related Eurodollar Period.
"Investment" means, when used in connection with any
Person, any investment by or of that Person, whether by
means of purchase or other acquisition of stock or other
securities of any other Person or by means of a loan,
advance creating a debt, capital contribution, guaranty or
other debt or equity participation of interest in any other
Person, including any partnership and joint venture
interests of such Person. The amount of any Investment
shall be the amount actually invested (minus any return of
capital with respect to such Investment which has actually
been received in Cash or cash equivalents or has been
converted into Cash or cash equivalents), without
adjustment for subsequent increases or decreases in the
value of such Investment.
"▇▇▇▇▇ Partnership Interest" means the general partnership
interest in TEGP held, as of the Closing Date, by Persons
other than ANI.
"▇▇▇▇▇ Transaction" means the acquisition by Borrower or
any of its Subsidiaries of the ▇▇▇▇▇ Partnership Interest.
"Joint Venture" means any Person (other than a Subsidiary
of Borrower) in which any Person other than Borrower or
any of its Subsidiaries has a joint or shared equity interest
with Borrower or any of its Subsidiaries.
"Laws" means, collectively, all international, foreign,
federal, state and local statutes, treaties, rules, regulations,
ordinances, codes and administrative or judicial
precedents.
"Lender" means each lender whose name is set forth in the
signature pages of this Agreement and each lender which
may hereafter become a party to this Agreement pursuant
to Section 2.6 or Section 11.8.
"Lender Disqualification" means, with
respect to any Lender:
(a) the failure of that Lender timely to file pursuant to
applicable Gaming Laws (i) any application requested of
the Lender by any Gaming Board in connection with
licensing required of that Lender as a lender to Borrower
or (ii) any required application or other papers in
connection with determination of the suitability of the
Lender as a lender to Borrower;
(b) the withdrawal by that Lender (except where
requested or permitted, without prejudice, by the Gaming
Board) of any such application or other required papers; or
(c) any final determination by a Gaming Board
pursuant to applicable Gaming Laws (i) that the Lender is
"unsuitable" as a lender to Borrower, (ii) that the Lender
shall be "disqualified" as a lender to Borrower or
(iii) denying a finding of suitability as a lender to
Borrower or denying the issuance to the Lender of any
license required under applicable Gaming Laws to be held
by all lenders to Borrower.
"License Revocation" means the revocation, failure to
renew or suspension of, or the appointment of a receiver,
supervisor or similar official with respect to, any casino,
gambling or gaming license issued by any Gaming Board
covering any casino or gaming facility of Borrower or any
Restricted Subsidiary.
"Lien" means any mortgage, deed of trust, pledge,
hypothecation, assignment for security, security interest,
encumbrance, lien or charge of any kind, whether
voluntarily incurred or arising by operation of Law or
otherwise, affecting any Property, including any
agreement to grant any of the foregoing, any conditional
sale or other title retention agreement, any lease in the
nature of a security interest, and/or the filing of or
agreement to give any financing statement (other than a
precautionary financing statement with respect to a lease
that is not in the nature of a security interest) under the
Uniform Commercial Code or comparable Law of any
jurisdiction with respect to any Property.
"Loan" means the aggregate of the Advances made at any
one time by the Lenders pursuant to Article 2.
"Loan Documents" means, collectively, the Global
Assignment and Release (to the extent it relates to this
Agreement), this Agreement, the Notes, the Subsidiary
Guaranty, the Confirmation of Guaranty, the Collateral
Documents, the Unsecured Environmental Indemnity
(New Jersey), any Secured Swap Agreement, any Request
for Loan, any Compliance Certificate and any other
agreements of any type or nature hereafter executed and
delivered by Borrower or any of the Restricted
Subsidiaries to the Administrative Agent or to any Lender
in any way relating to or in furtherance of this Agreement,
in each case either as originally executed or as the same
may from time to time be supplemented, modified,
amended, restated, extended or supplanted.
"Margin Stock" means "margin stock" as such term is
defined in Regulation G or U.
"Material Adverse Effect" means any set of circumstances
or events which (a) has or could reasonably be expected to
have any material adverse effect whatsoever upon the
validity or enforceability of any Loan Document, (b) is or
could reasonably be expected to be material and adverse
to the business or condition (financial or otherwise) of
Borrower and the Restricted Subsidiaries, taken as a
whole or (c) materially impairs or could reasonably be
expected to materially impair the ability of Borrower and
the Significant Subsidiaries, taken as a whole, to perform
the Obligations, taken as a whole.
"Maturity Date" means June 30, 2005.
"Multiemployer Plan" means any employee benefit plan of
the type described in Section 4001(a)(3) of ERISA to
which Borrower or any of its ERISA Affiliates contribute
or are obligated to contribute.
"Negative Pledge" means a Contractual Obligation that
contains a covenant binding on Borrower or any of the
Restricted Subsidiaries that prohibits Liens on any of its or
their Property, other than (a) any such covenant contained
in a Contractual Obligation granting a Lien permitted
under Section 6.8 which affects only the Property that is
the subject of such permitted Lien and (b) any such
covenant that does not apply to Liens securing the
Obligations.
"Net Cash Proceeds" means, with respect to a Disposition,
(a) the Cash proceeds of such Disposition received by
Borrower of any of the Restricted Subsidiaries net of
(i) the expenses incurred by Borrower or such Restricted
Subsidiaries in connection therewith, (ii) the amount of
any Indebtedness secured by a Lien on the Property which
is the subject thereof which Borrower or such Restricted
Subsidiaries is required to discharge and (iii) the
reasonably estimated income, capital gains and other taxes
payable by Borrower in connection therewith and (b) all
Cash proceeds and collections of Cash received by
Borrower or such Restricted Subsidiaries with respect to
any promissory note or non-Cash Property received by
Borrower or such Restricted Subsidiaries upon such
Disposition.
"Net Income" means, with respect to any fiscal period, the
consolidated net income of Borrower and the Restricted
Subsidiaries for that period, determined in accordance
with Generally Accepted Accounting Principles,
consistently applied.
"New Subordinated Debt" means Indebtedness of
Borrower (and any Guaranty Obligation with respect
thereto given by one or more of the Restricted
Subsidiaries) that (a) is unsecured, (b) has no principal
due or sinking fund requirement applicable prior to
September 30, 2005 and (c) is issued pursuant to an
indenture or other agreement that contains subordination
provisions applicable to such Indebtedness and any such
Guaranty Obligation, including interest blockage
provisions, that (i) are substantially the same as those in
the Existing 13 3/4% Subordinated Debt Indenture,
(ii) are, taken as a whole, at least as favorable to holders
of senior indebtedness and less restrictive on Borrower
and the Restricted Subsidiaries or (iii) have been
approved, in their sole discretion, in writing by the
Requisite Lenders.
"New Venture" means a casino, hotel, casino/hotel, resort,
casino/resort, riverboat casino, dockside casino, golf
course, entertainment center or similar facility (or any site
or proposed site for any of the foregoing) owned or to be
owned by Borrower or any of the Restricted Subsidiaries
(or owned or to be owned by a Person in which Borrower,
any of the Restricted Subsidiaries or a New Venture Entity
owned directly or indirectly by Borrower or any of the
Restricted Subsidiaries holds a Permitted Investment) and
which is not at the Closing Date a Developed Property.
"New Venture Entity" means (a) the Person that directly
owns a New Venture and (b) any holding company for
such a Person whose sole assets consist (directly or
indirectly through another New Venture Entity) of
Investments in that Person.
"Note" means the promissory note made by Borrower to a
Lender evidencing the Advances under that Lender's
Pro Rata Share of the Commitment, substantially in the
form of Exhibit G, either as originally executed or as the
same may from time to time be supplemented, modified,
amended, renewed, extended or supplanted.
"Obligations" means all present and future obligations of
every kind or nature of Borrower or any Significant
Subsidiary at any time and from time to time owed to the
Administrative Agent or the Lenders or any one or more
of them, under any one or more of the Loan Documents,
whether due or to become due, matured or unmatured,
liquidated or unliquidated, or contingent or noncontingent,
including obligations of performance as well as
obligations of payment, and including interest that accrues
after the commencement of any proceeding under any
Debtor Relief Law by or against Borrower or any
Subsidiary or Affiliate of Borrower.
"Opinions of Counsel" means the favorable written legal
opinions of (a) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, special counsel to
Borrower and the Restricted Subsidiaries, (b) ▇▇▇▇▇▇
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, special Nevada counsel to Borrower
and the Restricted Subsidiaries, (c) ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ &
Sandman, special New Jersey counsel to Borrower and the
Restricted Subsidiaries, (d) Ice, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇,
special Indiana counsel to Borrower and the Restricted
Subsidiaries and (e) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, special Missouri
counsel to Borrower and the Restricted Subsidiaries,
substantially in the form of Exhibits ▇-▇, ▇-▇, ▇-▇, ▇-▇
and H-5, respectively, together with copies of all factual
certificates and legal opinions upon which such counsel
has relied.
"Party" means any Person other than the Administrative
Agent and the Lenders, which now or hereafter is a party
to any of the Loan Documents.
"PBGC" means the Pension Benefit Guaranty Corporation
or any successor thereof established under ERISA.
"Pension Plan" means any "employee pension benefit
plan" (as such term is defined in Section 3(2) of ERISA),
other than a Multiemployer Plan, which is subject to
Title IV of ERISA and is maintained by Borrower or any
of its Subsidiaries or to which Borrower or any of its
Subsidiaries contributes or has an obligation to contribute.
"Permitted Investments" means (a) any Investment in
Borrower or in a Wholly-Owned Subsidiary, (b) any
Investment in short term high quality investments of a type
generally considered to be a "cash equivalent", (c) any
Investment by Borrower or any Restricted Subsidiary in a
Person, if as a result of such Investment (i) such Person
becomes a Wholly-Owned Subsidiary or (ii) such Person
is merged, consolidated or amalgamated with or into, or
transfers or conveys substantially all of its assets to, or is
liquidated into, Borrower or a Wholly-Owned Subsidiary,
(d) any Investment made as a result of the receipt of non-
Cash consideration from a Disposition that was made
pursuant to and in compliance with Section 6.1, (e) any
acquisition of assets solely in exchange for the issuance of
equity interests (other than Disqualified Stock) of
Borrower; (f) Investments by Borrower or any Restricted
Subsidiary (whether in the form of Cash or in the form of
a transfer of Property) in one or more Unrestricted
New Venture Entities having an aggregate fair market
value (measured on the date each such Investment was
made and without giving effect to subsequent changes in
value), when taken together with all other Investments
made pursuant to this clause (f) that are at the time
outstanding (net of recoveries received thereon in Cash or
fair market value of Property by Borrower or any
Restricted Subsidiary), not to exceed $150,000,000; and
(g) other Investments in any Person having an aggregate
fair market value (measured on the date each such
Investment was made and without giving effect to
subsequent changes in value), when taken together with all
other Investments made pursuant to this clause (g) that are
at the time outstanding (net of recoveries received thereon
in Cash or fair market value of Property by Borrower or
any Restricted Subsidiary), not to exceed $10,000,000.
"Permitted Liens" means, with respect to any Person,
(i) Liens for taxes, assessments, governmental charges or
claims which are not yet due and payable or are being
contested in good faith by such Person by appropriate
proceedings promptly instituted and diligently conducted
and for which a reserve or other appropriate provision, if
any, as shall be required in accordance with generally
accepted accounting principles shall have been made by
such Person; (ii) statutory Liens of landlords and carriers,
warehousemen, mechanics, suppliers, materialmen,
repairmen, or other like Liens arising in the ordinary
course of business and with respect to amounts not yet
delinquent or being contested in good faith by appropriate
proceedings promptly instituted and diligently conducted
and for which a reserve or other appropriate provision, if
any, as shall be required in accordance with generally
accepted accounting principles shall have been made by
such Person; (iii) Liens incurred or deposits made by such
Person in the ordinary course of business in connection
with worker's compensation, unemployment insurance,
medical insurance and other types of social security and
deposits made by such Person in the ordinary course of
business in connection with other kinds of insurance;
(iv) Liens incurred or deposits made by such Person to
secure the performance of tenders, bids, leases, statutory
obligations, surety and appeal bonds, government
contracts, performance and return-of-money bonds and
other obligations of a like nature incurred in the ordinary
course of business (exclusive of obligations for the
payment of borrowed money); (v) easements, rights-of-
way, restrictions, minor defects or irregularities in title and
other similar charges or encumbrances not interfering in
any material respect with the business of such Person or
any of its Subsidiaries incurred in the ordinary course of
business; (vi) Liens (including extensions and renewals
thereof) upon real or tangible personal property acquired
by such Person after the date of this Indenture; provided
that (a) any such Lien is created solely for the purpose of
securing Indebtedness representing, or incurred to finance,
refinance or refund, all costs (including the cost of
construction) of the item of Property subject thereto,
(b) the principal amount of the Indebtedness secured by
such Lien does not exceed 100% of such cost, (c) such
Lien does not extend to or cover any other Property other
than such item of Property and any improvements on such
item and (d) the incurrence of such Indebtedness is
permitted by Section 6.4; (vii) Liens upon specific items
of inventory or other goods and proceeds of such Person
securing such Person's obligations in respect of bankers'
acceptances issued or created for the account of such
Person in the ordinary course of business to facilitate the
purchase, shipment or storage of such inventory or other
goods; (viii) Liens securing reimbursement obligations
with respect to commercial letters of credit issued for the
account of such Person which encumber documents and
other Property relating to such commercial letters of credit
and the products and proceeds thereof; (ix) Liens in favor
of customs and revenue authorities arising as a matter of
law to secure payment of customs duties in connection
with the importation of goods by such Person; (x) licenses,
leases or subleases granted to others not interfering in any
material adverse respect with the business of such Person
or any of its Subsidiaries; (xi) Liens encumbering Property
or assets of such Person under construction arising from
progress or partial payments by a customer of such Person
or one of its Subsidiaries relating to such Property or
assets; (xii) Liens encumbering customary initial deposits
and margin accounts, and other Liens incurred in the
ordinary course of business and which are within the
general parameters customary in the gaming industry, in
each case securing Swap Agreements or Currency
Agreements; (xiii) Liens encumbering deposits made to
secure obligations arising from statutory or regulatory
requirements of such Person or its Subsidiaries; (xiv) any
interest or title of a lessor in the Property subject to any
Capital Lease obligation or operating lease which, in each
case, is permitted under this Indenture; (xv) Liens securing
obligations to the Administrative Agent pursuant to the
compensation and indemnity provisions of this
Agreement; (xvi) purchase money liens securing payables
arising from the purchase by such Person or any of its
Subsidiaries of any equipment or goods in the ordinary
course of business, provided that such payables do not
constitute Indebtedness; (xvii) Liens arising out of
consignment or similar arrangements for the sale of goods
entered into by such Person or any of its Subsidiaries in
the ordinary course of business; (xviii) Liens for
judgments or orders not giving rise to a Default or Event
of Default; (xix) Liens consisting of any security deposit
required under the TEGP Lease; and (xx) Liens not
specified in the foregoing and not otherwise permitted by
Section 6.5, provided that the aggregate Indebtedness
secured by the Liens under this clause (xx) shall not
exceed $5,000,000 at any time.
"Person" means any individual or entity, including a
trustee, corporation, limited liability company, general
partnership, limited partnership, joint stock company,
trust, estate, unincorporated organization, business
association, firm, joint venture, Governmental Agency, or
other entity.
"Pledge Agreement (Nevada Gaming)" means the pledge
agreement executed and delivered by Borrower in the
form of Exhibit E to the Prior Revolver, either as
originally executed or as it may from time to time be
supplemented, modified, amended, extended or
supplanted.
"Pledge Agreement (General)" means the pledge
agreement executed and delivered by Borrower and the
Significant Subsidiaries (other than HRN), in the form of
Exhibit F to the Prior Revolver, either as originally
executed or as it may from time to time be supplemented,
modified, amended, extended or supplanted.
"Pledged Collateral (Nevada Gaming)" means the
certificates evidencing (a) 100% of the shares of capital
stock of REI and (b) 49% of the shares of capital stock of
HRN.
"Pledged Collateral (General)" means (a) the certificates
evidencing all of the shares of capital stock held by
Borrower or any of the Significant Subsidiaries in all
Subsidiaries of Borrower other than (i) the shares of
capital stock comprising the Pledged Collateral (Nevada
Gaming), (ii) 100% of the shares of capital stock of ANI,
(iii) 51% of the shares of capital stock of HRN and
(iv) 100% of the shares of AMGC and (b) the
Intercompany Notes.
"Preferred Share Purchase Rights" shall have the meaning
given to the term "Rights" in the Rights Agreement dated
as of December 20, 1989 between Borrower and First
Interstate Bank of Arizona, N.A.
"Prior Revolver" has the meaning set forth in the Recitals
to this Agreement.
"Projections" means the financial projections contained in
the Confidential Information Memorandum distributed by
or on behalf of Borrower to the Lenders on or about
February 6, 1998.
"Property" means any interest in any kind of property or
asset, whether real, personal or mixed, or tangible or
intangible.
"Pro Rata Share" means, with respect to each Lender, the
percentage of the Commitment set forth opposite the name
of that Lender on Schedule 1.1, as such percentage may be
increased or decreased pursuant to a Commitment
Assignment and Acceptance executed in accordance with
Section 11.8.
"Qualified Capital Stock" means Capital Stock not
constituting Disqualified Stock.
"Quarterly Payment Date" means each June 30,
September 30, December 31 and March 31.
"Ramada Express Deed of Trust" means the deed of trust
executed and delivered by REI covering the Ramada
Express Property, in the form of Exhibit H to the Prior
Revolver, either as originally executed or as it may from
time to time be supplemented, modified, amended,
extended or supplanted.
"Ramada Express Property" means the real property and
improvements thereon known as the "Ramada Express
Hotel and Casino" located in Laughlin, Nevada, comprised
of approximately 27.7 acres and related easements and
appurtenances.
"Real Property" means, as of any date of determination,
all real Property then or theretofore owned, leased or
occupied by Borrower or any of the Restricted
Subsidiaries.
"Redeemable Dividend" means, for any dividend payable
with respect to Disqualified Stock, (i) to the extent such
dividend is fully deductible for federal income tax
purposes, the amount of such dividend and (ii) to the
extent such dividend may not be deductible, the quotient
of the amount of such dividend divided by the difference
between one and the maximum statutory federal income
tax rate (expressed as a decimal number between 1 and 0)
then applicable to the issuer of such Disqualified Stock.
"Reference Rate" means the rate of interest publicly
announced from time to time by the Domestic Reference
Lender in San Francisco, California (or other headquarters
city of the Domestic Reference Lender), as its "reference
rate." It is a rate set by the Domestic Reference Lender
based upon various factors including the Domestic
Reference Lender's costs and desired return, general
economic conditions and other factors, and is used as a
reference point for pricing some loans, which may be
priced at, above, or below such announced rate. Any
change in the Reference Rate announced by the Domestic
Reference Lender shall take effect at the opening of
business on the day specified in the public announcement
of such change.
"Regulation D" means Regulation D, as at any time
amended, of the Board of Governors of the Federal
Reserve System, or any other regulation in substance
substituted therefor.
"Regulations T, U and X" means Regulations T, U and X,
as at any time amended, of the Board of Governors of the
Federal Reserve System, or any other regulations in
substance substituted therefor.
"REI" means Ramada Express, Inc., a Nevada corporation.
"Request for Loan" means a written request for a Loan
substantially in the form of Exhibit J, signed by a
Responsible Official of Borrower, on behalf of Borrower,
and properly completed to provide all information
required to be included therein.
"Request for Re-Pricing" means a written request to
designate an Interest Period substantially in the form of
Exhibit K, signed by a Responsible Official of Borrower,
on behalf of Borrower, and properly completed to provide
all information required to be included herein.
"Requirement of Law" means, as to any Person, the
articles or certificate of incorporation and by-laws or other
organizational or governing documents of such Person,
and any Law, or judgment, award, decree, writ or
determination of a Governmental Agency, in each case
applicable to or binding upon such Person or any of its
Property or to which such Person or any of its Property is
subject.
"Requisite Lenders" means (a) as of any date of
determination if the Commitment is then in effect, Lenders
having in the aggregate 65% or more of the Commitment
then in effect and (b) as of any date of determination if the
Commitment has then been terminated and there is then
any Indebtedness evidenced by the Notes, Lenders holding
Notes evidencing in the aggregate 65% or more of the
aggregate Indebtedness then evidenced by the Notes.
"Responsible Official" means (a) when used with
reference to a Person other than an individual, any
corporate officer of such Person, general partner of such
Person, corporate officer of a corporate general partner of
such Person, or corporate officer of a corporate general
partner of a partnership that is a general partner of such
Person, or any other responsible official thereof duly
acting on behalf thereof, and (b) when used with reference
to a Person who is an individual, such Person. The
Lenders shall be entitled to conclusively rely upon any
document or certificate that is signed or executed by a
Responsible Official of Borrower or any of its
Subsidiaries as having been authorized by all necessary
corporate partnership and/or other action on the part of
Borrower or such Subsidiary.
"Restricted Investment" means an Investment other than a
Permitted Investment.
"Restricted Subsidiary" means, as of any date of
determination, all Subsidiaries of Borrower other than
Unrestricted New Venture Entities.
"Revolver" means the revolving credit facility extended to
Borrower under the Amended Revolver.
"Revolver Agent" means the Administrative Agent, as
such term is defined in the Amended Revolver.
"Sale and Leaseback Transaction" means any direct or
indirect arrangement with any Person or to which any
such Person is a party, providing for the leasing to
Borrower or a Restricted Subsidiary of any Property,
whether owned at the date of this Agreement or thereafter
acquired, which has been or is to be sold or transferred by
Borrower or such Restricted Subsidiary to such Person or
to any other Person to whom funds have been or are to be
advanced by such Person on the security of such Property
if, after giving effect to such arrangement, Borrower or a
Restricted Subsidiary operates the business, if any, located
on such Property.
"Secured Swap Agreement" means a Swap Agreement
between Borrower and a Lender (or an Affiliate of a
Lender) that is, by its terms, secured by any of the
Collateral.
"Security Agreement" means the security agreement
executed and delivered by Borrower and the Significant
Subsidiaries (other than HRN), in the form of Exhibit K to
the Prior Revolver, either as originally executed or as it
may from time to time be supplemented, modified,
amended, extended or supplanted.
"Senior Officer" means the (a) chief executive officer,
(b) president, (c) executive vice president, (d) senior vice
president, (e) chief financial officer, (f) treasurer or
(g) assistant treasurer of Borrower.
"Significant Subsidiary" means (a) each Restricted
Subsidiary that holds title to any portion of the Ramada
Express Property, the Atlantic City Property, the
Caruthersville Property and the Evansville Property,
(b) each Restricted Subsidiary that holds title to any
Property acquired after the Closing Date which is required
to be pledged as future Collateral pursuant to Section 5.10
and (c) as of any date of determination, each other
Restricted Subsidiary that had on the last day of the Fiscal
Quarter then most recently ended total assets with a book
value or fair market value of $5,000,000 or more (except
ANI, so long as the ▇▇▇▇▇ Transaction has not occurred).
"Special Eurodollar Circumstance" means the application
or adoption after the Closing Date of any Law or
interpretation, or any change therein or thereof, or any
change in the interpretation or administration thereof by
any Governmental Agency, central bank or comparable
authority charged with the interpretation or administration
thereof, or compliance by any Lender or its Eurodollar
Lending Office with any request or directive (whether or
not having the force of Law) of any such Governmental
Agency, central bank or comparable authority, or the
existence or occurrence of circumstances affecting the
Designated Eurodollar Market generally that are beyond
the reasonable control of the Lenders.
"Subordinated Obligations" means (a) the Existing 11%
Subordinated Debt, (b) the Existing 13 3/4% Subordinated
Debt and (c) any New Subordinated Debt.
"Subsidiary" means, as of any date of determination and
with respect to any Person, any corporation, limited
liability company or partnership (whether or not, in either
case, characterized as such or as a "joint venture"),
whether now existing or hereafter organized or acquired:
(a) in the case of a corporation or limited liability
company, of which a majority of the securities having
ordinary voting power for the election of directors or other
governing body (other than securities having such power
only by reason of the happening of a contingency) are at
the time beneficially owned by such Person and/or one or
more Subsidiaries of such Person, or (b) in the case of a
partnership, of which a majority of the partnership or
other ownership interests are at the time beneficially
owned by such Person and/or one or more of its
Subsidiaries.
"Subsidiary Guaranty" means the continuing guaranty of
the Obligations executed and delivered by the Significant
Subsidiaries, in the form of Exhibit L to the Prior
Revolver, either as originally executed or as it may from
time to time be supplemented, modified, amended,
extended or supplanted.
"Supplemental Loan Agreement" means the $25,000,000
Supplemental Loan Agreement dated as of March 13,
1997 among Borrower and the lenders party thereto.
"Swap Agreement" means a written agreement between
Borrower and one or more financial institutions providing
for "swap", "cap", "collar" or other interest rate protection
with respect to any Indebtedness.
"TEGP" means Tropicana Enterprises, a Nevada general
partnership, in which ANI is a 50% general partner.
"TEGP Lease" means the Amended and Restated Lease
(Tropicana Hotel/Casino) dated November 1, 1984
between TEGP and HRN, as amended.
"TEGP Loan Agreement" means the Second Amended and
Restated Loan Agreement dated as of October 4, 1994
among TEGP, HRN, Bank of America National Trust and
Savings Association, as agent, and the lenders party
thereto, as amended pursuant to the TEGP Loan
Agreement Amendment and otherwise as amended from
time to time. The interests of Bank of America National
Trust and Savings Association, as agent, and the lenders
party thereto under the TEGP Loan Agreement are being
acquired on the Closing Date pursuant to the Global
Assignment and Release.
"TEGP Loan Agreement Amendment" means the
Amendment of even date herewith to the TEGP Loan
Agreement.
"TEGP Loan Refinancings" means any refinancings or
financings of, or related to, the TEGP Loan Agreement or
any refinancings thereof (including, but not limited to, any
Indebtedness owed to Borrower or any Restricted
Subsidiary in connection therewith or any refinancings
thereof), to the extent that the aggregate amount of such
Indebtedness incurred pursuant to such refinancings or
financings does not exceed the outstanding principal
amount under the TEGP Loan Agreement at the Closing
Date.
"TEGP Payments" means, for any period, that portion of
the lease payments made by HRN to TEGP pursuant to the
TEGP Lease that represents the sum of interest expense on
Indebtedness of TEGP payable to Persons other than
Borrower plus amounts distributed in respect of the ▇▇▇▇▇
Partnership Interest.
"TEGP Property" means the Tropicana Resort and Casino
in Las Vegas, Nevada, including the real Property,
improvements and related personal Property.
"Title Company" means Lawyers Title Insurance
Company or such other title insurance company as is
reasonably acceptable to the Administrative Agent.
"to the best knowledge of" means, when modifying a
representation, warranty or other statement of any Person,
that the fact or situation described therein is known by the
Person (or, in the case of a Person other than a natural
Person, known by a Responsible Official of that Person)
making the representation, warranty or other statement, or
with the exercise of reasonable due diligence under the
circumstances (in accordance with the standard of what a
reasonable Person in similar circumstances would have
done) would have been known by the Person (or, in the
case of a Person other than a natural Person, would have
been known by a Responsible Official of that Person).
"Trademark Collateral Assignment" means the trademark
collateral assignment executed and delivered by Borrower
and the Significant Subsidiaries (other than HRN) in the
form of Exhibit M to the Prior Revolver, either as
originally executed or as it may from time to time be
supplemented, modified, amended, extended or
supplanted.
"Transaction Date" means the date of the transaction
giving rise to the need to calculate the Consolidated Fixed
Charge Coverage Ratio or to make any other
determination for purposes of complying with the
provisions of this Agreement, provided that if such
transaction is related to or in connection with any
acquisition of any Person, the Transaction Date shall be
the date on which Borrower or any of its Subsidiaries
enters into an agreement with such Person to effect such
acquisition; provided, however, that if subsequent to the
entering of such agreement Borrower or any of its
Subsidiaries shall amend the terms of such acquisition
with respect to the consideration payable by Borrower or
any of its Subsidiaries in connection with such acquisition,
the Transaction Date shall be the date on which Borrower
or any of its Subsidiaries enters into an agreement with
such Person to effect such amendment. The second
proviso above shall not be applicable if, as of the
Transaction Date with respect to any acquisition,
Borrower could incur at least $1.00 of additional
Indebtedness under Section 6.4 when the Consolidated
Fixed Charge Coverage Ratio is calculated on the basis of
the amended terms of such acquisition and the
Indebtedness to be incurred by Borrower and its Restricted
Subsidiaries in connection therewith.
"Unrestricted New Venture Entity" means (a) any
New Venture Entity in which any single Person other than
Borrower and its Subsidiaries owns an equity interest that
is equal to or larger than the equity interest owned by
Borrower and its Subsidiaries and (b) any other
New Venture Entity (except a Restricted Subsidiary that
owns assets with a value in excess of $5,000,000 at the
time of designation) designated by Borrower to be an
Unrestricted New Venture Entity by written notice thereof
to the Administrative Agent; provided, however,
(i) Borrower may redesignate any Unrestricted
New Venture Entity as a Restricted Subsidiary by written
notice to the Administrative Agent, with such
redesignation to become effective upon the execution of
the Subsidiary Guaranty, the Security Agreement and any
other instruments, documents and agreements reasonably
requested by the Administrative Agent in connection
therewith by the former Unrestricted New Venture Entity
and (ii) if no Default or Event of Default exists, Borrower
may, with the prior written consent of the Requisite
Lenders and each Restricted Subsidiary, redesignate any
Restricted Subsidiary which is a New Venture Entity and
which has assets with a value not in excess of $5,000,000
as an Unrestricted New Venture Entity.
"Unsecured Environmental Indemnity (New Jersey)"
means the unsecured environmental indemnity executed
and delivered by ANJI and the Significant Subsidiaries
which execute the Atlantic City Deeds of Trust
substantially in the form of Exhibit O to the Prior
Revolver, either as originally executed or as it may from
time to time be supplemented, modified, amended,
extended or supplanted.
"Wholly-Owned Subsidiary" means any Restricted
Subsidiary of which 100% of the Capital Stock of, or
other ownership interest in, such Restricted Subsidiary is
at the time owned by Borrower or a Wholly-Owned
Subsidiary.
1.2 Use of Defined Terms. Any defined term used in the
plural shall refer to all members of the relevant class, and
any defined term used in the singular shall refer to any one
or more of the members of the relevant class.
1.3 Accounting Terms. All accounting terms not
specifically defined in this Agreement shall be construed
in conformity with, and all financial data required to be
submitted by this Agreement shall be prepared in
conformity with, Generally Accepted Accounting
Principles applied on a consistent basis, except as
otherwise specifically prescribed herein. In the event that
Generally Accepted Accounting Principles change during
the term of this Agreement such that the covenant
contained in Section 6.4(a) would then be calculated in a
different manner or with different components,
(a) Borrower and the Lenders agree to amend this
Agreement in such respects as are necessary to conform
those covenants as criteria for evaluating Borrower's
financial condition to substantially the same criteria as
were effective prior to such change in Generally Accepted
Accounting Principles and (b) Borrower shall be deemed
to be in compliance with the covenant contained in the
aforesaid Section if and to the extent that Borrower would
have been in compliance therewith under Generally
Accepted Accounting Principles as in effect immediately
prior to such change, but shall have the obligation to
deliver each of the materials described in Article 7 to the
Administrative Agent and the Lenders, on the dates therein
specified, with financial data presented in a manner which
conforms with Generally Accepted Accounting Principles
as in effect immediately prior to such change.
1.4 Rounding. Any financial ratios required to be
maintained by Borrower pursuant to this Agreement shall
be calculated by dividing the appropriate component by
the other component, carrying the result to one place more
than the number of places by which such ratio is
expressed in this Agreement and rounding the result up or
down to the nearest number (with a round-up if there is no
nearest number) to the number of places by which such
ratio is expressed in this Agreement.
1.5 Exhibits and Schedules. All Exhibits and Schedules
to this Agreement, either as originally existing or as the
same may from time to time be supplemented, modified or
amended, are incorporated herein by this reference. A
matter disclosed on any Schedule shall be deemed
disclosed on all Schedules.
1.6 References to "Borrower and its Subsidiaries". Any
reference herein to "Borrower and its Subsidiaries" or the
like shall refer solely to Borrower during such times, if
any, as Borrower shall have no Subsidiaries.
1.7 Miscellaneous Terms. The term "or" is disjunctive;
the term "and" is conjunctive. The term "shall" is
mandatory; the term "may" is permissive. Masculine
terms also apply to females; feminine terms also apply to
males. The term "including" is by way of example and
not limitation.
Article 2
LOANS
2.1 Loans-General.
(a) Subject to the terms and conditions set forth in this
Agreement, on the Closing Date, each Lender shall, pro
rata according to that Lender's Pro Rata Share of the
Commitment, make an Advance to Borrower under the
Commitment in such amount as Borrower may request
that does not result in the aggregate principal amount
outstanding under the Notes exceeding the Commitment.
Amounts repaid may not be re-borrowed under this
Section 2.1(a) or under Section 2.1(b) below.
(b) Subject to the terms and conditions set forth in this
Agreement, on the effective date of any increase in the
Commitment pursuant to Section 2.6, each Lender which
has agreed to commit to a portion of such increase in the
Commitment shall, according to the amount of its agreed
increase in the Commitment, make an Advance to
Borrower under the Commitment in such amount as
Borrower may request that does not result in the aggregate
principal amount outstanding under the Notes exceeding
the Commitment. Any Lender that has not agreed in
writing to commit to a portion of such increase in the
Commitment shall have no obligation under this
Section 2.1(b).
(c) Subject to the next sentence, each Loan shall be
made pursuant to a Request for Loan which shall specify
the requested (i) date of such Loan, (ii) amount of such
Loan, and (iii) the Interest Period for such Loan. Unless
the Administrative Agent has notified, in its sole and
absolute discretion, Borrower to the contrary, a Loan may
be requested by telephone by a Responsible Official of
Borrower, in which case Borrower shall confirm such
request by promptly delivering a Request for Loan in
person or by telecopier conforming to the preceding
sentence to the Administrative Agent. Administrative
Agent shall incur no liability whatsoever hereunder in
acting upon any telephonic request for Loan purportedly
made by a Responsible Official of Borrower, and
Borrower hereby agrees to indemnify the Administrative
Agent from any loss, cost, expense or liability as a result
of so acting. In the case of the initial Loan to be made and
issued on the Closing Date, the related Request for Loan
to be delivered by Borrower shall be delivered to the
Administrative Agent no later than 12:00 noon (California
time), one day before the Closing Date.
(d) Promptly following receipt of a Request for Loan,
the Administrative Agent shall notify each Lender by
telephone or telecopier (and if by telephone, promptly
confirmed by telecopier) of the date of the Loan, the
applicable Interest Period, and that Lender's Pro Rata
Share of the Loan (in the case of a Loan under
Section 2.1(a)) or amount of its portion of the Loan (in the
case of a Loan under Section 2.1(b)). Not later than
11:00 a.m., California time, on the date specified for any
Loan (which must be a Banking Day), each Lender shall
make its Pro Rata Share of the Loan in immediately
available funds available to the Administrative Agent at
the Administrative Agent's Office. Upon satisfaction or
waiver of the applicable conditions set forth in Article 8,
all Advances shall be credited on that date in immediately
available funds to the Designated Deposit Account.
(e) Unless the Requisite Lenders otherwise consent,
each Loan shall be not less than $3,000,000.
(f) The Advances made by each Lender shall be
evidenced by that Lender's Note.
(g) A Request for Loan shall be irrevocable upon the
Administrative Agent's first notification thereof.
(h) Borrower may from time to time redesignate the
Interest Period applicable to a Eurodollar Rate Loan
pursuant to a Request for Re-Pricing, which shall specify
the requested (i) date of designation, (ii) amount of the
Eurodollar Rate Loan to be redesignated and (iii) Interest
Period for such Eurodollar Rate Loan. A Request for
Re-Pricing shall be subject to the same requirements and
other provisions applicable to a Request for Loan set forth
in this Section applicable to a Request for Loan except
that during the period commencing 2 months prior to an
Amortization Date, the minimum amount of a Eurodollar
Rate Loan shall not be greater than the Amortization
Amount for that Amortization Date.
(i) If no Request for Loan or Request for Re-Pricing
(or telephonic request for Loan or re-pricing referred to in
the second sentence of Section 2.1(c), if applicable) has
been made within the requisite notice period set forth in
Section 2.2 prior to the end of the Interest Period for any
Eurodollar Rate Loan, then on the last day of such Interest
Period, such Eurodollar Rate Loan shall be automatically
converted into a Eurodollar Rate Loan with an Interest
Period of 3 months.
2.2 Designation of Interest Periods.
(a) Each request by Borrower to redesignate an Interest
Period shall be made pursuant to a Request for Re-Pricing
(or telephonic or other request for re-pricing referred to in
the second sentence of Section 2.1(c), if applicable)
received by the Administrative Agent, at the
Administrative Agent's Office, not later than 9:00 a.m.,
California time, at least three (3) Eurodollar Banking Days
before the first day of the applicable Eurodollar Period.
(b) On the date which is two (2) Eurodollar Banking
Days before the first day of the applicable Eurodollar
Period, the Administrative Agent shall confirm its
determination of the applicable Eurodollar Rate (which
determination shall be conclusive in the absence of
manifest error) and promptly shall give notice of the same
to Borrower and the Lenders by telephone or telecopier
(and if by telephone, promptly confirmed by telecopier).
(c) Unless the Administrative Agent and the Requisite
Lenders otherwise consent, no more than ten (10) Interest
Periods with respect to Eurodollar Rate Loans shall be in
effect at any one time.
(d) Nothing contained herein shall require any Lender
to fund any Eurodollar Rate Loan in the Designated
Eurodollar Market.
2.3 Voluntary Reduction of Commitment. Borrower shall
have the right, at any time and from time to time, without
penalty or charge, upon at least three (3) Banking Days'
prior written notice by a Responsible Official of Borrower
to the Administrative Agent, voluntarily to reduce,
permanently and irrevocably, in aggregate principal
amounts in an integral multiple of $1,000,000 but not less
than $5,000,000, or to terminate, all or a portion of the
Commitment. The Administrative Agent shall promptly
notify the Lenders of any reduction or termination of the
Commitment under this Section. Any voluntary reduction
of the Commitment under this Section shall be applied to
reduce the remaining Amortization Amounts, each in an
amount that is in the same proportion as such
Amortization Amount bears to the aggregate of such
remaining Amortization Amounts.
2.4 Automatic Reduction of Commitment. Subject to the
last sentence of Section 2.3, on each Amortization Date,
the Commitment shall automatically be reduced by the
Amortization Amount.
2.5 Optional Termination of Commitment. Following the
occurrence of a Change in Control, the Requisite Lenders
may in their sole and absolute discretion elect, during the
thirty (30) day period immediately subsequent to the later
of (a) such occurrence or (b) the earlier of (i) receipt of
Borrower's written notice to the Administrative Agent of
such occurrence or (ii) if no such notice has been received
by the Administrative Agent, the date upon which the
Administrative Agent has actual knowledge thereof, to
terminate the Commitment, in which case the
Commitment shall be terminated effective on the date
which is thirty (30) days subsequent to written notice from
the Administrative Agent to Borrower thereof.
2.6 Increase of Commitment. Borrower may, by
written notice to the Administrative Agent and the
Lenders, increase the Commitment up to $100,000,000;
provided that (a) the Commitment has not theretofore been
voluntarily reduced pursuant to Section 2.3, (b) the
effective date of such increase is not later than April 30,
1999, (c) the obligation to fund the increase in the
Commitment amount is assumed in writing by a Lender or
Lenders then party to this Agreement or by a Person or
Persons that is an Eligible Assignee, in each case
acceptable to Borrower and, in the latter case, reasonably
acceptable to the Administrative Agent, (d) the Eligible
Assignee executes and delivers an agreement of joinder to
this Agreement in form and substance satisfactory to
Borrower and the Administrative Agent, (e) the amount of
such increase, when aggregated with any increase
theretofore or concurrently made in the amount of the
Revolver pursuant to Section 2.8 of the Amended
Revolver, does not exceed $50,000,000 and (f) no such
increase shall increase the amount of the Commitment
held by any other Lender absent the express written
consent of that Lender. The Administrative Agent shall
promptly thereafter prepare and circulate to Borrower and
the Lenders a revised Schedule 1.1 reflecting such
increased Commitment, the revised Pro Rata Shares of the
Lenders.
2.7 Administrative Agent's Right to Assume Funds
Available for Advances. Unless the Administrative Agent
shall have been notified by any Lender no later than
10:00 a.m. on the Banking Day of the proposed funding
by the Administrative Agent of any Loan that such Lender
does not intend to make available to the Administrative
Agent such Lender's portion of the total amount of such
Loan, the Administrative Agent may assume that such
Lender has made such amount available to the
Administrative Agent on the date of the Loan and the
Administrative Agent may, in reliance upon such
assumption, make available to Borrower a corresponding
amount. If the Administrative Agent has made funds
available to Borrower based on such assumption and 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 promptly shall notify Borrower and
Borrower shall pay such corresponding amount to the
Administrative Agent. The Administrative Agent also
shall be entitled to recover from such Lender interest on
such corresponding amount in respect of each day from
the date such corresponding amount was made available
by the Administrative Agent to Borrower to the date such
corresponding amount is recovered by the Administrative
Agent, at a rate per annum equal to the daily Federal
Funds Rate. Nothing herein shall be deemed to relieve
any Lender from its obligation to fulfill its share of the
Commitment or to prejudice any rights which the
Administrative Agent or Borrower may have against any
Lender as a result of any default by such Lender
hereunder.
2.8 Collateral and Guaranty. The Obligations shall be
secured by the Collateral pursuant to the Collateral
Documents and be guaranteed by the Significant
Subsidiaries pursuant to the Subsidiary Guaranty.
2.9 Senior Indebtedness. The Obligations shall be
"Senior Indebtedness" with respect to all Subordinated
Obligations.
Article 3
PAYMENTS AND FEES
3.1 Principal and Interest.
(a)Interest shall be payable on the outstanding daily
unpaid principal amount of each Advance from the date
thereof until payment in full is made and shall accrue and
be payable at the rates set forth or provided for herein
before and after Default, before and after maturity, before
and after judgment, and before and after the
commencement of any proceeding under any Debtor
Relief Law, with interest on overdue interest at the Default
Rate to the fullest extent permitted by applicable Laws.
(b) Interest accrued on each Eurodollar Rate Loan
which is for a term of three months or less shall be due
and payable on the last day of the related Eurodollar
Period. Interest accrued on each other Eurodollar Rate
Loan shall be due and payable on the date which is three
months after the date such Eurodollar Rate Loan was
made (and, in the event that all of the Lenders have
approved a Eurodollar Period of longer than six months,
every three months thereafter through the last day of the
Eurodollar Period) and on the last day of the related
Eurodollar Period. Except as otherwise provided in
Section 3.7, the unpaid principal amount of any Eurodollar
Rate Loan shall bear interest at a rate per annum equal to
the Eurodollar Rate for that Eurodollar Rate Loan plus
2.50% (250 basis points).
(c) If not sooner paid, the principal Indebtedness
evidenced by the Notes shall be payable as follows:
(i) the amount, if any, by which the principal outstanding
Indebtedness evidenced by the Notes at any time exceeds
the Commitment shall be payable immediately;
(ii) the applicable Amortization Amount shall be payable
on each Amortization Date; and
(iii) the principal Indebtedness evidenced by the Notes
shall in any event be payable on the Maturity Date.
(d) The Notes may, at any time and from time to time,
voluntarily be paid or prepaid in whole or in part without
premium or penalty, except that with respect to any
voluntary prepayment under this Section (i) any partial
prepayment of a Eurodollar Rate Loan shall be not less
than $5,000,000, (ii) the Administrative Agent shall have
received written notice of any prepayment by 9:00 a.m.
California time on the date of prepayment (which must be
a Banking Day) three (3) Banking Days before the date of
prepayment, which notice shall identify the date and
amount of the prepayment and the Loan(s) being prepaid,
(iii) each prepayment of principal of a Eurodollar Rate
Loan shall be accompanied by payment of interest accrued
to the date of payment on the amount of principal paid and
(iv) any payment or prepayment of all or any part of any
Eurodollar Rate Loan on a day other than the last day of
the applicable Interest Period shall be subject to
Section 3.6(e). Any voluntary prepayment under this
Section shall be applied to the remaining Amortization
Amounts, each in an amount that is in the same proportion
as such Amortization Amount bears to the aggregate of
such remaining Amortization Amounts.
3.2 Arrangement Fee. On the Closing Date, Borrower
shall pay to the Arranger an arrangement fee in the amount
heretofore agreed upon by letter agreement dated
February 10, 1998 between Borrower and the Arranger.
Such arrangement fee is for the services of the Arranger in
arranging the credit facilities under this Agreement and is
fully earned when paid. The arrangement fee paid to the
Arranger is solely for its own account and is
nonrefundable.
3.3 Upfront Fees. On the Closing Date, Borrower shall
further pay to the Administrative Agent, for the respective
accounts of the Lenders (other than the Administrative
Agent) pro rata according to their Pro Rata Share of the
Commitment, an upfront fee in an amount set forth in a
letter from the Arranger to each Lender and acknowledged
by that Lender and by Borrower as the applicable upfront
fee for such Lender. Such upfront fees are for the credit
facilities committed by each Lender under this Agreement
and are fully earned when paid. The upfront fees paid to
each Lender are solely for its own account and are
nonrefundable.
3.4 Agency Fees. Borrower shall pay to the
Administrative Agent an agency fee in such amounts and
at such times as heretofore agreed upon by letter
agreement dated February 10, 1998 between Borrower and
the Administrative Agent. The agency fee is for the
services to be performed by the Administrative Agent in
acting as Administrative Agent and is fully earned on the
date paid. The agency fee paid to the Administrative
Agent is solely for its own account and is nonrefundable.
3.5 Increased Commitment Costs. If any Lender shall
determine in good faith that the introduction after the
Closing Date of any applicable law, rule, regulation or
guideline regarding capital adequacy, or any change
therein or any change in the interpretation or
administration thereof by any central bank or other
Governmental Agency charged with the interpretation or
administration thereof, or compliance by such Lender (or
its Eurodollar Lending Office) or any corporation
controlling the Lender, with any request, guideline or
directive regarding capital adequacy (whether or not
having the force of Law) of any such central bank or other
authority, affects or would affect the amount of capital
required or expected to be maintained by such Lender or
any corporation controlling such Lender and (taking into
consideration such Lender's or such corporation's policies
with respect to capital adequacy and such Lender's desired
return on capital) determines in good faith that the amount
of such capital is increased, or the rate of return on capital
is reduced, as a consequence of its obligations under this
Agreement, then, within ten (10) Banking Days after
demand of such Lender, Borrower shall pay to such
Lender, from time to time as specified in good faith by
such Lender, additional amounts sufficient to compensate
such Lender in light of such circumstances, to the extent
reasonably allocable to such obligations under this
Agreement, provided that Borrower shall not be obligated
to pay any such amount which arose prior to the date
which is ninety (90) days preceding the date of such
demand or is attributable to periods prior to the date which
is ninety (90) days preceding the date of such demand.
Any request for compensation by a Lender under this
Section shall set forth the basis upon which it has been
determined that such an amount is due from Borrower, a
calculation of the amount due, and a certification that the
corresponding costs or diminished rate of return on capital
have been incurred or sustained by the Lender. If
Borrower becomes obligated to pay any amount under this
Section to any Lender, that Lender will be subject to
removal in accordance with Section 11.24; provided that
Borrower shall have paid such amount to that Lender and
that Borrower, within the thirty (30) day period following
the date of such payment, shall have notified that Lender
in writing of its intent to so remove the Lender. Each
Lender's determination of such amounts shall be
conclusive in the absence of manifest error.
3.6 Eurodollar Costs and Related Matters.
(a) In the event that any Governmental Agency
imposes on any Lender any reserve or comparable
requirement (including any emergency, supplemental or
other reserve) with respect to the Eurodollar Obligations
of that Lender, Borrower shall pay that Lender within
five (5) Banking Days after demand all amounts necessary
to compensate such Lender (determined as though such
Lender's Eurodollar Lending Office had funded 100% of
its Eurodollar Rate Advance in the Designated Eurodollar
Market) in respect of the imposition of such reserve
requirements. The Lender's determination of such amount
shall be conclusive in the absence of manifest error.
(b) If, after the date hereof, the existence or occurrence
of any Special Eurodollar Circumstance:
(1) shall subject any Lender or its Eurodollar Lending
Office to any tax, duty or other charge or cost with respect
to any Eurodollar Rate Advance, any of its Notes
evidencing Eurodollar Rate Loans or its obligation to
make Eurodollar Rate Advances, or shall change the basis
of taxation of payments to any Lender attributable to the
principal of or interest on any Eurodollar Rate Advance or
any other amounts due under this Agreement in respect of
any Eurodollar Rate Advance, any of its Notes evidencing
Eurodollar Rate Loans or its obligation to make Eurodollar
Rate Advances, excluding (i) taxes imposed on or
measured in whole or in part by its overall net income,
gross income or gross receipts and franchise taxes
imposed on it, by (A) any jurisdiction (or political
subdivision thereof) in which it is organized or maintains
its principal office or Eurodollar Lending Office or
(B) any jurisdiction (or political subdivision thereof) in
which it is "doing business," (ii) any withholding taxes or
other taxes based on gross income imposed by the United
States of America (other than withholding taxes and taxes
based on gross income resulting from or attributable to
any change in any law, rule or regulation or any change in
the interpretation or administration of any law, rule or
regulation by any Governmental Agency) and (iii) any
withholding taxes or other taxes based on gross income
imposed by the United States of America for any period
with respect to which it has failed to provide Borrower
with the appropriate form or forms required by
Section 11.21, to the extent such forms are then required
by applicable Laws;
(2) shall impose, modify or deem applicable any
reserve not applicable or deemed applicable on the date
hereof (including any reserve imposed by the Board of
Governors of the Federal Reserve System, special deposit,
capital or similar requirements against assets of, deposits
with or for the account of, or credit extended by, any
Lender or its Eurodollar Lending Office); or
(3) shall impose on any Lender or its Eurodollar
Lending Office or the Designated Eurodollar Market any
other condition affecting any Eurodollar Rate Advance,
any of its Notes evidencing Eurodollar Rate Loans, its
obligation to make Eurodollar Rate Advances or this
Agreement, or shall otherwise affect any of the same;
and the result of any of the foregoing, as determined in
good faith by such Lender, increases the cost to such
Lender or its Eurodollar Lending Office of making or
maintaining any Eurodollar Rate Advance or in respect of
any Eurodollar Rate Advance, any of its Notes evidencing
Eurodollar Rate Loans or its obligation to make Eurodollar
Rate Advances or reduces the amount of any sum received
or receivable by such Lender or its Eurodollar Lending
Office with respect to any Eurodollar Rate Advance, any
of its Notes evidencing Eurodollar Rate Loans or its
obligation to make Eurodollar Rate Advances (assuming
such Lender's Eurodollar Lending Office had funded
100% of its Eurodollar Rate Advance in the Designated
Eurodollar Market), then, within five (5) Banking Days
after demand by such Lender (with a copy to the
Administrative Agent), Borrower shall pay to such Lender
such additional amount or amounts as will compensate
such Lender for such increased cost or reduction
(determined as though such Lender's Eurodollar Lending
Office had funded 100% of its Eurodollar Rate Advance
in the Designated Eurodollar Market). A statement of any
Lender claiming compensation under this subsection and
setting forth in reasonable detail the additional amount or
amounts to be paid to it hereunder shall be conclusive in
the absence of manifest error.
(c) If, after the date hereof, the existence or occurrence
of any Special Eurodollar Circumstance shall, in the good
faith opinion of any Lender, make it unlawful or
impossible for such Lender or its Eurodollar Lending
Office to make, maintain or fund its portion of any
Eurodollar Rate Loan, or materially restrict the authority
of such Lender to purchase or sell, or to take deposits of,
Dollars in the Designated Eurodollar Market, or to
determine or charge interest rates based upon the
Eurodollar Rate, and such Lender shall so notify the
Administrative Agent, then such Lender's obligation to
make Eurodollar Rate Advances shall be suspended for the
duration of such illegality or impossibility and the
Administrative Agent forthwith shall give notice thereof to
the other Lenders and Borrower. Upon receipt of such
notice, the outstanding principal amount of such Lender's
Eurodollar Rate Advances, together with accrued interest
thereon, automatically shall be converted to Alternate
Base Rate Advances on either (1) the last day of the
Eurodollar Period(s) applicable to such Eurodollar Rate
Advances if such Lender may lawfully continue to
maintain and fund such Eurodollar Rate Advances to such
day(s) or (2) immediately if such Lender may not lawfully
continue to fund and maintain such Eurodollar Rate
Advances to such day(s), provided that in such event the
conversion shall not be subject to payment of a
prepayment fee under Section 3.6(e). Any such Alternate
Base Rate Advance shall bear interest, payable on each
Quarterly Payment Date, at a rate equal to the sum of the
Alternate Base Rate plus 1 1/4% (125 basis points). Each
Lender agrees to endeavor promptly to notify Borrower of
any event of which it has actual knowledge, occurring
after the Closing Date, which will cause that Lender to
notify the Administrative Agent under this Section, and
agrees to designate a different Eurodollar Lending Office
if such designation will avoid the need for such notice and
will not, in the good faith judgment of such Lender,
otherwise be materially disadvantageous to such Lender.
In the event that any Lender is unable, for the reasons set
forth above, to make, maintain or fund its portion of any
Eurodollar Rate Loan, such Lender shall fund such
amount as an Alternate Base Rate Advance for the same
period of time, and such amount shall be treated in all
respects as an Alternate Base Rate Advance. Any Lender
whose obligation to make Eurodollar Rate Advances has
been suspended under this Section shall promptly notify
the Administrative Agent and Borrower of the cessation of
the Special Eurodollar Circumstance which gave rise to
such suspension.
(d) If, with respect to any proposed Eurodollar Rate
Loan:
(1) the Administrative Agent reasonably determines
that, by reason of circumstances affecting the Designated
Eurodollar Market generally that are beyond the
reasonable control of the Lenders, deposits in Dollars (in
the applicable amounts) are not being offered to any
Lender in the Designated Eurodollar Market for the
applicable Eurodollar Period; or
(2) the Requisite Lenders advise the Administrative
Agent that the Eurodollar Rate as determined by the
Administrative Agent (i) does not represent the effective
pricing to such Lenders for deposits in Dollars in the
Designated Eurodollar Market in the relevant amount for
the applicable Eurodollar Period, or (ii) will not
adequately and fairly reflect the cost to such Lenders of
making the applicable Eurodollar Rate Advances;
then the Administrative Agent forthwith shall give notice
thereof to Borrower and the Lenders, whereupon until the
Administrative Agent notifies Borrower that the
circumstances giving rise to such suspension no longer
exist, the obligation of the Lenders to make any future
Eurodollar Rate Advances shall be suspended unless (but
only if clause (2) above is the basis for such suspension)
Borrower notifies the Agent in writing that it elects to pay
the Enhanced Applicable Eurodollar Rate Margin with
respect to all Eurodollar Rate Loans made during such
period. The Enhanced Applicable Eurodollar Rate Margin
shall be the sum of (i) the Applicable Eurodollar Rate
Margin plus (ii) such interest rate margin as the Requisite
Lenders specify is necessary to adjust the Eurodollar Rate
to a rate which represents the effective pricing to such
Lenders for deposits of Dollars in the Designated
Eurodollar Market in the relevant amount for the
applicable Eurodollar Period and which adequately and
fairly reflects the cost to such Lenders of making the
applicable Eurodollar Rate Advances.
(e) Upon payment or prepayment of any Eurodollar
Rate Advance (other than as the result of a conversion
required under Section 3.6(c), on a day other than the last
day in the applicable Eurodollar Period (whether
voluntarily, involuntarily, by reason of acceleration, or
otherwise), or upon the failure of Borrower (for a reason
other than the failure of a Lender to make an Advance) to
borrow on the date or in the amount specified for a
Eurodollar Rate Loan in any Request for Loan, Borrower
shall pay to the appropriate Lender within ten (10)
Banking Days after demand a prepayment fee or failure to
borrow fee, as the case may be (determined as though
100% of the Eurodollar Rate Advance had been funded in
the Designated Eurodollar Market) equal to the sum of:
(1) the principal amount of the Eurodollar Rate
Advance prepaid or not borrowed, as the case may be,
times [the number of days from and including the date of
prepayment or failure to borrow, as applicable, to but
excluding the last day in the applicable Eurodollar
Period], divided by 360, times the applicable Interest
Differential (provided that the product of the foregoing
formula must be a positive number); plus
(2) all out-of-pocket expenses incurred by the Lender
reasonably attributable to such payment, prepayment or
failure to borrow.
Each Lender's determination of the amount of any
prepayment fee payable under this Section shall be
conclusive in the absence of manifest error.
(f) Each Lender agrees to endeavor promptly to notify
Borrower of any event of which it has actual knowledge,
occurring after the Closing Date, which will entitle such
Lender to compensation pursuant to clause (a) or clause
(b) of this Section 3.6, and agrees to designate a different
Eurodollar Lending Office if such designation will avoid
the need for or reduce the amount of such compensation
and will not, in the good faith judgment of such Lender,
otherwise be materially disadvantageous to such Lender.
Any request for compensation by a Lender under this
Section 3.6 shall set forth the basis upon which it has been
determined that such an amount is due from Borrower, a
calculation of the amount due, and a certification that the
corresponding costs have been incurred by the Lender.
(g) If any Lender claims compensation or is excused
from making or continuing Eurodollar Rate Loans under
this Section:
(i) Borrower may at any time, upon at least four
(4) Eurodollar Banking Days' prior notice to the
Administrative Agent and such Lender and upon payment
in full of the amounts provided for in this Section through
the date of such payment plus any prepayment fee
required by Section 3.6(e), pay in full the affected
Eurodollar Rate Advances of such Lender or request that
such Eurodollar Rate Advances be converted to Alternate
Base Rate Advances; and
(ii) In the case where Borrower becomes
obligated to pay any amount under this Section 3.6 to any
Lender, or a Lender is excused from making or continuing
Eurodollar Rate Loans, that Lender will be subject to
removal in accordance with Section 11.24; provided that
Borrower shall have paid such amount to that Lender and
that Borrower, within the thirty (30) day period following
the date of such payment, shall have notified that Lender
in writing of its intent to so remove the Lender.
3.7 Late Payments. If any installment of principal or
interest or any fee or cost or other amount payable under
any Loan Document to the Administrative Agent or any
Lender is not paid when due, it shall thereafter bear
interest at a fluctuating interest rate per annum at all times
equal to the sum of the Eurodollar Rate for a Eurodollar
Rate Loan with an Interest Period of 3 months plus 2.50%
(250 basis points) plus 2%, to the fullest extent permitted
by applicable Laws. Accrued and unpaid interest on past
due amounts (including, without limitation, interest on
past due interest) shall be compounded monthly, on the
last day of each calendar month, to the fullest extent
permitted by applicable Laws.
3.8 Computation of Interest and Fees. Computation of
interest on Eurodollar Rate Loans and all fees under this
Agreement shall be calculated on the basis of a year of
360 days and the actual number of days elapsed.
Borrower acknowledges that such latter calculation
method will result in a higher yield to the Lenders than a
method based on a year of 365 or 366 days. Interest shall
accrue on each Loan for the day on which the Loan is
made; interest shall not accrue on a Loan, or any portion
thereof, for the day on which the Loan or such portion is
paid. Any Loan that is repaid on the same day on which it
is made shall bear interest for one day. Notwithstanding
anything in this Agreement to the contrary, interest in
excess of the maximum amount permitted by applicable
Laws shall not accrue or be payable hereunder or under
the Notes, and any amount paid as interest hereunder or
under the Notes which would otherwise be in excess of
such maximum permitted amount shall instead be treated
as a payment of principal.
3.9 Non-Banking Days. If any payment to be made by
Borrower or any other Party under any Loan Document
shall come due on a day other than a Banking Day,
payment shall instead be considered due on the next
succeeding Banking Day and the extension of time shall
be reflected in computing interest and fees.
3.10 Manner and Treatment of Payments.
(a) Each payment hereunder (except payments
pursuant to Sections 2.9, 3.5, 3.6, 11.3, 11.11 and 11.22)
or on the Notes or under any other Loan Document shall
be made to the Administrative Agent, at the
Administrative Agent's Office, for the account of each of
the Lenders or the Administrative Agent, as the case may
be, in immediately available funds not later than
11:00 a.m., California time, on the day of payment (which
must be a Banking Day). All payments received after
such time, on any Banking Day, shall be deemed received
on the next succeeding Banking Day. The amount of all
payments received by the Administrative Agent for the
account of each Lender shall be immediately paid by the
Administrative Agent to the applicable Lender in
immediately available funds and, if such payment was
received by the Administrative Agent by 11:00 a.m.,
California time, on a Banking Day and not so made
available to the account of a Lender on that Banking Day,
the Administrative Agent shall reimburse that Lender for
the cost to such Lender of funding the amount of such
payment at the Federal Funds Rate. All payments shall be
made in lawful money of the United States of America.
(b) Each payment or prepayment on account of any
Loan shall be applied pro rata according to the outstanding
Advances made by each Lender comprising such Loan.
(c) Each Lender shall use its best efforts to keep a
record of Advances made by it and payments received by
it with respect to each of its Notes and, subject to
Section 10.6(g), such record shall, as against Borrower, be
presumptive evidence of the amounts owing.
Notwithstanding the foregoing sentence, no Lender shall
be liable to any Party for any failure to keep such a record.
(d) Each payment of any amount payable by Borrower
or any other Party under this Agreement or any other Loan
Document shall be made free and clear of, and without
reduction by reason of, any taxes, assessments or other
charges imposed by any Governmental Agency, central
bank or comparable authority, excluding (i) taxes imposed
on or measured in whole or in part by its overall net
income, gross income or gross receipts and franchise taxes
imposed on it, by (A) any jurisdiction (or political
subdivision thereof) in which it is organized or maintains
its principal office or Eurodollar Lending Office or
(B) any jurisdiction (or political subdivision thereof) in
which it is "doing business," (ii) any withholding taxes or
other taxes based on gross income imposed by the United
States of America (other than withholding taxes and taxes
based on gross income resulting from or attributable to
any change in any law, rule or regulation or any change in
the interpretation or administration of any law, rule or
regulation by any Governmental Agency) and (iii) any
withholding taxes or other taxes based on gross income
imposed by the United States of America for any period
with respect to which it has failed to provide Borrower
with the appropriate form or forms required by
Section 11.21, to the extent such forms are then required
by applicable Laws (all such non-excluded taxes,
assessments or other charges being hereinafter referred to
as "Taxes"). To the extent that Borrower is obligated by
applicable Laws to make any deduction or withholding on
account of Taxes from any amount payable to any Lender
under this Agreement, Borrower shall (i) make such
deduction or withholding and pay the same to the relevant
Governmental Agency and (ii) pay such additional amount
to that Lender as is necessary to result in that Lender's
receiving a net after-Tax amount equal to the amount to
which that Lender would have been entitled under this
Agreement absent such deduction or withholding. If and
when receipt of such payment results in an excess
payment or credit to that Lender on account of such
Taxes, that Lender shall promptly refund such excess to
Borrower. If Borrower becomes obligated to pay any
amount under this Section to any Lender, that Lender will
be subject to removal in accordance with Section 11.24;
provided that Borrower shall have paid such amount to
that Lender and that Borrower, within the thirty (30) day
period following the date of such payment, shall have
notified that Lender in writing of its intent to so remove
the Lender.
3.11 Funding Sources. Nothing in this Agreement shall
be deemed to obligate any Lender to obtain the funds for
any Loan or Advance in any particular place or manner or
to constitute a representation by any Lender that it has
obtained or will obtain the funds for any Loan or Advance
in any particular place or manner.
3.12 Failure to Charge Not Subsequent Waiver. Any
decision by the Administrative Agent or any Lender not to
require payment of any interest (including interest arising
under Section 3.7), fee, cost or other amount payable
under any Loan Document, or to calculate any amount
payable by a particular method, on any occasion shall in
no way limit or be deemed a waiver of the Administrative
Agent's or such Lender's right to require full payment of
any interest (including interest arising under Section 3.7),
fee, cost or other amount payable under any Loan
Document, or to calculate an amount payable by another
method that is not inconsistent with this Agreement, on
any other or subsequent occasion.
3.13 Administrative Agent's Right to Assume Payments
Will be Made by Borrower. Unless the Administrative
Agent shall have been notified by Borrower prior to the
date on which any payment to be made by Borrower
hereunder is due that Borrower does not intend to remit
such payment, the Administrative Agent may, in its
discretion, assume that Borrower has remitted such
payment when so due and the Administrative Agent may,
in its discretion and in reliance upon such assumption,
make available to each Lender on such payment date an
amount equal to such Lender's share of such assumed
payment. If Borrower has not in fact remitted such
payment to the Administrative Agent, each Lender shall
forthwith on demand repay to the Administrative Agent
the amount of such assumed payment made available to
such Lender, together with interest thereon in respect of
each day from and including the date such amount was
made available by the Administrative Agent to such
Lender to the date such amount is repaid to the
Administrative Agent at the Federal Funds Rate.
3.14 Fee Determination Detail. The Administrative
Agent, and any Lender, shall provide reasonable detail to
Borrower regarding the manner in which the amount of
any payment to the Administrative Agent and the Lenders,
or that Lender, under Article 3 has been determined,
concurrently with demand for such payment.
3.15 Survivability. All of Borrower's obligations under
Sections 3.5 and 3.6 shall survive for ninety (90) days
following the date on which the Commitment is
terminated and all Loans hereunder are fully paid.
Article 4
REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants to the Lenders, as of the
date hereof and as of the Closing Date, that:
4.1 Existence and Qualification; Power; Compliance With
Laws. Borrower is a corporation duly formed, validly
existing and in good standing under the Laws of Delaware
and is duly qualified or registered to transact business and
is in good standing in each other jurisdiction in which the
conduct of its business or the ownership or leasing of its
Properties makes such qualification or registration
necessary, except where the failure so to qualify or
register and to be in good standing would not constitute a
Material Adverse Effect. Borrower has all requisite
corporate power and authority to conduct its business, to
own and lease its Properties and to execute and deliver
each Loan Document to which it is a Party and to perform
its Obligations. All outstanding shares of capital stock of
Borrower are duly authorized, validly issued, fully paid
and non-assessable, and no holder thereof has any
enforceable right of rescission under any applicable state
or federal securities Laws. Borrower is in compliance
with all Laws and other legal requirements applicable to
its business, has obtained all authorizations, consents,
approvals, orders, licenses and permits from, and has
accomplished all filings, registrations and qualifications
with, or obtained exemptions from any of the foregoing
from, any Governmental Agency that are necessary for the
transaction of its business, except where the failure so to
comply, file, register, qualify or obtain exemptions does
not constitute a Material Adverse Effect.
4.2 Authority; Compliance With Other Agreements and
Instruments and Government Regulations. The execution,
delivery and performance by Borrower and each
Significant Subsidiary of the Loan Documents to which it
is a Party have been duly authorized by all necessary
corporate action, and do not and will not:
(a) Require any consent or approval not heretofore
obtained of any partner, director, stockholder, security
holder or creditor of such Party;
(b) Violate or conflict with any provision of such
Party's charter, articles of incorporation or bylaws, as
applicable;
(c) Result in or require the creation or imposition of
any Lien upon or with respect to any Property now owned
or leased or hereafter acquired by such Party;
(d) Violate any Requirement of Law applicable to such
Party, subject to obtaining the authorizations from, or
filings with, the Governmental Agencies described in
Schedule 4.3; or
(e) Result in a breach of or constitute a default under,
or cause or permit the acceleration of any obligation owed
under, any indenture or loan or credit agreement or any
other Contractual Obligation to which such Party is a
party or by which such Party or any of its Property is
bound or affected;
and neither Borrower nor any Significant Subsidiary is in
violation of, or default under, any Requirement of Law or
Contractual Obligation, or any indenture, loan or credit
agreement described in Section 4.2(e), in any respect that
constitutes a Material Adverse Effect.
4.3 No Governmental Approvals Required. Except as set
forth in Schedule 4.3 or previously obtained or made, no
authorization, consent, approval, order, license or permit
from, or filing, registration or qualification with, any
Governmental Agency is or will be required to authorize
or permit under applicable Laws the execution, delivery
and performance by Borrower and the Significant
Subsidiaries of the Loan Documents to which it is a Party.
All authorizations from, or filings with, any
Governmental Agency described in Schedule 4.3 will be
accomplished as of the Closing Date or such other date as
is specified in Schedule 4.3.
4.4 Subsidiaries.
(a) Schedule 4.4 hereto correctly sets forth the names,
form of legal entity, number of shares of capital stock
issued and outstanding, number of shares owned by
Borrower or a Subsidiary of Borrower (specifying such
owner) and jurisdictions of organization of all Subsidiaries
of Borrower and specifies which thereof, as of the Closing
Date, are Restricted Subsidiaries, Significant Subsidiaries
and Unrestricted New Venture Entities. Except as
described in Schedule 4.4 or Schedule 6.17, Borrower
does not own any capital stock, equity interest or debt
security which is convertible, or exchangeable, for capital
stock or equity interests in any Person. Unless otherwise
indicated in Schedule 4.4, all of the outstanding shares of
capital stock, or all of the units of equity interest, as the
case may be, of each Restricted Subsidiary are owned of
record and beneficially by Borrower, there are no
outstanding options, warrants or other rights to purchase
capital stock of any such Subsidiary, and all such shares or
equity interests so owned are duly authorized, validly
issued, fully paid and non-assessable, and were issued in
compliance with all applicable state and federal securities
and other Laws, and are free and clear of all Liens, except
for Permitted Liens.
(b) Each Significant Subsidiary is a corporation duly
formed, validly existing and in good standing under the
Laws of its jurisdiction of organization, is duly qualified
to do business as a foreign organization and is in good
standing as such in each jurisdiction in which the conduct
of its business or the ownership or leasing of its Properties
makes such qualification necessary (except where the
failure to be so duly qualified and in good standing does
not constitute a Material Adverse Effect), and has all
requisite power and authority to conduct its business and
to own and lease its Properties.
(c) Each Restricted Subsidiary is in compliance with
all Laws and other requirements applicable to its business
and has obtained all authorizations, consents, approvals,
orders, licenses, and permits from, and each such
Subsidiary has accomplished all filings, registrations, and
qualifications with, or obtained exemptions from any of
the foregoing from, any Governmental Agency that are
necessary for the transaction of its business, except where
the failure to be in such compliance, obtain such
authorizations, consents, approvals, orders, licenses, and
permits, accomplish such filings, registrations, and
qualifications, or obtain such exemptions, does not
constitute a Material Adverse Effect.
4.5 Financial Statements. Borrower has furnished to the
Lenders the audited consolidated financial statements of
Borrower and its Subsidiaries for the Fiscal Year ended
January 1, 1998. Such financial statements fairly present
in all material respects the financial condition, results of
operations and changes in financial position of Borrower
and its Subsidiaries as of such date and for such period in
conformity with Generally Accepted Accounting
Principles, consistently applied.
4.6 No Other Liabilities; No Material Adverse Changes.
Borrower and the Restricted Subsidiaries do not have any
material liability or material contingent liability required
under Generally Accepted Accounting Principles to be
reflected or disclosed and not reflected or disclosed in the
balance sheet included in the financial statements
described in Section 4.5, other than liabilities and
contingent liabilities arising in the ordinary course of
business since the date of such financial statements. As of
the Closing Date, no circumstance or event has occurred
that constitutes a Material Adverse Effect since January 1,
1998. As of any date subsequent to the Closing Date, no
circumstance or event has occurred that constitutes a
Material Adverse Effect since the Closing Date.
4.7 Title to Property. Borrower and the Restricted
Subsidiaries have valid title to the Property (other than
assets which are the subject of a Capital Lease Obligation)
reflected in the balance sheet described in Section 4.5(c),
other than items of Property or exceptions to title which
are in each case immaterial to Borrower and the Restricted
Subsidiaries, taken as a whole, and Property subsequently
sold or disposed of in the ordinary course of business, free
and clear of all Liens, other than Liens described in
Schedule 4.7 or permitted by Section 6.5.
4.8 Intangible Assets. Borrower and the Restricted
Subsidiaries own, or possess the right to use to the extent
necessary in their respective businesses, all material
trademarks, trade names, copyrights, patents, patent rights,
computer software, licenses and other Intangible Assets
that are used in the conduct of their businesses as now
operated, and no such Intangible Asset, to the best
knowledge of Borrower, conflicts with the valid
trademark, trade name, copyright, patent, patent right or
Intangible Asset of any other Person to the extent that
such conflict constitutes a Material Adverse Effect.
Schedule 4.8 sets forth all trademarks, trade names and
trade styles used by Borrower or any of its Subsidiaries at
any time within the five (5) year period ending on the
Closing Date.
4.9 Public Utility Holding Company Act. Neither
Borrower nor any Restricted Subsidiary 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.
4.10 Litigation. Except for (a) any matter fully covered
as to subject matter and amount (subject to applicable
deductibles and retentions) by insurance for which the
insurance carrier has not asserted lack of subject matter
coverage or reserved its right to do so, (b) any matter, or
series of related matters, involving a claim against
Borrower or any of the Restricted Subsidiaries of less than
$1,000,000, (c) matters of an administrative nature not
involving a claim or charge against Borrower or any of the
Restricted Subsidiaries and (d) matters set forth in
Schedule 4.10, there are as of the Closing Date no
actions, suits, proceedings or investigations pending as to
which Borrower or any of the Restricted Subsidiaries have
been served or have received notice or, to the best
knowledge of Borrower, threatened against or affecting
Borrower or any of the Restricted Subsidiaries or any
Property of any of them before any Governmental
Agency.
4.11 Binding Obligations. Each of the Loan Documents
to which Borrower or the Significant Subsidiaries is a
Party will, when executed and delivered by such Party,
constitute the legal, valid and binding obligation of such
Party, enforceable against such Party in accordance with
its terms, except as enforcement may be limited by Debtor
Relief Laws, Gaming Laws or equitable principles relating
to the granting of specific performance and other equitable
remedies as a matter of judicial discretion.
4.12 No Default. No event has occurred and is
continuing that is a Default or Event of Default.
4.13 ERISA.
(a) With respect to each Pension Plan:
(i) such Pension Plan complies in all material
respects with ERISA and any other applicable Laws to the
extent that noncompliance could reasonably be expected
to have a Material Adverse Effect;
(ii) such Pension Plan has not incurred any
"accumulated funding deficiency" (as defined in
Section 302 of ERISA) that could reasonably be expected
to have a Material Adverse Effect;
(iii) no "reportable event" (as defined in
Section 4043 of ERISA) has occurred that could
reasonably be expected to have a Material Adverse Effect;
and
(iv) Neither Borrower nor any of its Subsidiaries
has engaged in any non-exempt "prohibited transaction"
(as defined in Section 4975 of the Code) that could
reasonably be expected to have a Material Adverse Effect.
(b) Neither Borrower nor any of the Restricted
Subsidiaries has incurred or expects to incur any
withdrawal liability to any Multiemployer Plan that could
reasonably be expected to have a Material Adverse Effect.
4.14 Regulations T, U and X; Investment Company Act.
No part of the proceeds of any Loan hereunder will be
used to purchase or carry, or to extend credit to others for
the purpose of purchasing or carrying, any Margin Stock
in violation of Regulations T, U and X. Neither Borrower
nor any of the Restricted Subsidiaries is or is required to
be registered as an "investment company" under the
Investment Company Act of 1940.
4.15 Disclosure. No written statement made by a Senior
Officer to the Administrative Agent or any Lender in
connection with this Agreement, or in connection with any
Loan, as of the date thereof contained any untrue
statement of a material fact or omitted a material fact
necessary to make the statement made not misleading in
light of all the circumstances existing at the date the
statement was made.
4.16 Tax Liability. Borrower and the Restricted
Subsidiaries have filed all tax returns which are required
to be filed, and have paid, or made provision for the
payment of, all taxes with respect to the periods, Property
or transactions covered by said returns, or pursuant to any
assessment received by Borrower or any of the Restricted
Subsidiaries, except (a) such taxes, if any, as are being
contested in good faith by appropriate proceedings and as
to which adequate reserves (to the extent required by
Generally Accepted Accounting Principles) have been
established and maintained and (b) immaterial taxes so
long as no material Property of Borrower or any of the
Restricted Subsidiaries is in jeopardy of being seized,
levied upon or forfeited.
4.17 Projections. As of the Closing Date, to the best
knowledge of Borrower, the assumptions set forth in the
Projections are reasonable and consistent with each other
and with all facts known to Borrower, and the Projections
are reasonably based on such assumptions. Nothing in
this Section 4.17 shall be construed as a representation or
covenant that the Projections in fact will be achieved.
This representation may not be relied upon by any Lender
that did not receive a copy of the Projections on or before
the Closing Date.
4.18 Hazardous Materials. Except as described in
Schedule 4.18, (a) neither Borrower nor any of the
Restricted Subsidiaries at any time has disposed of,
discharged, released or threatened the release of any
Hazardous Materials on, from or under the Real Property
in violation of any Hazardous Materials Law that would
individually or in the aggregate constitute a Material
Adverse Effect, (b) to the best knowledge of Borrower, no
condition exists that violates any Hazardous Material Law
affecting any Real Property except for such violations that
would not individually or in the aggregate have a Material
Adverse Effect, (c) no Real Property or any portion
thereof is or has been utilized by Borrower or any of the
Restricted Subsidiaries as a site for the manufacture of any
Hazardous Materials and (d) to the extent that any
Hazardous Materials are used, generated or stored by
Borrower or any of the Restricted Subsidiaries on any
Real Property, or transported to or from such Real
Property by Borrower or any of the Restricted
Subsidiaries, such use, generation, storage and
transportation are in compliance in all material respects
with all Hazardous Materials Laws.
4.19 Developed Properties. As of the Closing Date, the
facilities described on Schedule 4.19 comprise all of the
Developed Property owned by Borrower and the
Restricted Subsidiaries.
4.20 Gaming Laws. Borrower and the Restricted
Subsidiaries are in compliance with all applicable Gaming
Laws in all respects which are material to the operations,
businesses and prospects of Borrower and the Restricted
Subsidiaries, taken as a whole.
4.21 Security Interests. The Security Agreement creates a
valid first priority security interest in the Collateral
described therein securing the Obligations (subject only to
Permitted Liens and matters disclosed in Schedule 4.7 and
to such qualifications and exceptions as are contained in
the Uniform Commercial Code with respect to the priority
of security interests perfected by means other than the
filing of a financing statement or with respect to the
creation of security interests in Property to which
Division 9 of the Uniform Commercial Code does not
apply) and all action necessary to perfect the security
interests so created, other than filing of the UCC-1
financing statements delivered to the Collateral Agent
pursuant to Section 8.1 with the appropriate Governmental
Agency have been taken and completed. The Trademark
Collateral Assignment creates a valid first priority
collateral assignment of the Collateral described therein
securing the Obligations and all action necessary to
perfect the collateral assignment so created, other than the
filing thereof with the United States Patent and Trademark
Office, will have been taken and completed. The Pledge
Agreement (Nevada Gaming) creates a valid first priority
security interest in the Pledged Collateral (Nevada
Gaming) and upon delivery of the Pledged Collateral
(Nevada Gaming) to the Collateral Agent (or its designee)
in the State of Nevada all action necessary to perfect the
security interest so created has been taken and completed.
The Pledge Agreement (General) creates a valid first
priority security interest in the Pledged Collateral
(General) and upon delivery of the Pledged Collateral
(General) to the Collateral Agent (or its designee) all
action necessary to perfect the security interest so created
has been taken and completed. Each Deed of Trust
creates a valid Lien in the Collateral described therein
securing the Obligations, other than those arising under
Sections 4.18, 5.12 and 11.22, (subject only to Permitted
Liens and matters described in Schedule 4.7), and all
action necessary to perfect the Lien so created, other than
recordation or filing thereof with the appropriate
Governmental Agencies, have been taken and completed.
Article 5
AFFIRMATIVE COVENANTS
(OTHER THAN INFORMATION AND
REPORTING REQUIREMENTS)
So long as any Advance remains unpaid or any portion of
the Commitment remains in force, Borrower shall, and
shall cause each of the Restricted Subsidiaries to, unless
the Administrative Agent (with the written approval of the
Requisite Lenders) otherwise consents:
5.1 Payment of Taxes and Other Potential Liens. Pay and
discharge promptly all taxes, assessments and
governmental charges or levies imposed upon any of them,
upon their respective Property or any part thereof and
upon their respective income or profits or any part thereof,
except that Borrower and the Restricted Subsidiaries shall
not be required to pay or cause to be paid (a) any tax,
assessment, charge or levy that is not yet past due, or is
being contested in good faith by appropriate proceedings
so long as the relevant entity has established and maintains
adequate reserves (to the extent required by Generally
Accepted Accounting Principles) for the payment of the
same or (b) any immaterial tax so long as no material
Property of Borrower or any of the Restricted Subsidiaries
is in jeopardy of being seized, levied upon or forfeited.
5.2 Preservation of Existence. Preserve and maintain
their respective existences in the jurisdiction of their
formation and all material authorizations, rights,
franchises, privileges, consents, approvals, orders,
licenses, permits, or registrations from any Governmental
Agency that are necessary for the transaction of their
respective business except (a) where the failure to so
preserve and maintain the existence of any Restricted
Subsidiary and such authorizations, rights, franchises,
privileges, consents, approvals, orders, licenses, permits,
or registrations would not constitute a Material Adverse
Effect and (b) that a merger permitted by Section 6.2 shall
not constitute a violation of this covenant; and qualify and
remain qualified to transact business in each jurisdiction in
which such qualification is necessary in view of their
respective business or the ownership or leasing of their
respective Properties except where the failure to so qualify
or remain qualified would not constitute a Material
Adverse Effect.
5.3 Maintenance of Properties. Maintain, preserve and
protect all of their respective Properties in good order and
condition, subject to wear and tear in the ordinary course
of business, and not permit any waste of their respective
Properties, except that the failure to maintain, preserve
and protect a particular item of Property that is not of
significant value, either intrinsically or to the operations of
Borrower and the Restricted Subsidiaries, taken as a
whole, shall not constitute a violation of this covenant.
5.4 Maintenance of Insurance. Maintain liability,
casualty and other insurance (subject to customary
deductibles and retentions) with responsible insurance
companies in such amounts and against such risks as is
carried by responsible companies engaged in similar
businesses and owning similar assets in the general areas
in which Borrower and the Restricted Subsidiaries operate
and, in any event, such insurance as may be required
under the Deeds of Trust.
5.5 Compliance With Laws. Comply, within the time
period, if any, given for such compliance by the relevant
Governmental Agency or Agencies with enforcement
authority, with all Requirements of Law noncompliance
with which constitutes a Material Adverse Effect, except
that Borrower and the Restricted Subsidiaries need not
comply with a Requirement of Law then being contested
by any of them in good faith by appropriate proceedings.
5.6 Inspection Rights. Upon reasonable notice, at any
time during regular business hours and as often as
reasonably requested (but not so as to materially interfere
with the business of Borrower or any of its Subsidiaries)
permit the Administrative Agent or any Lender (through
the Administrative Agent), or any authorized employee,
agent or representative thereof, to examine, audit and
make copies and abstracts from the records and books of
account of, and to visit and inspect the Properties of,
Borrower and its Subsidiaries and to discuss the affairs,
finances and accounts of Borrower and its Subsidiaries
with any of their officers, key employees or accountants
and, upon request, furnish promptly to the Administrative
Agent or any Lender (through the Administrative Agent)
true copies of all financial information made available to
the board of directors or audit committee of the board of
directors of Borrower.
5.7 Keeping of Records and Books of Account. Keep
adequate records and books of account reflecting all
financial transactions in conformity with Generally
Accepted Accounting Principles, consistently applied, and
in material conformity with all applicable requirements of
any Governmental Agency having regulatory jurisdiction
over Borrower or any of the Restricted Subsidiaries.
5.8 Compliance With Agreements. Promptly and fully
comply with all Contractual Obligations under all material
agreements, indentures, leases and/or instruments to which
any one or more of them is a party, whether such material
agreements, indentures, leases or instruments are with a
Lender or another Person, except for any such Contractual
Obligations (a) the performance of which would cause a
Default or (b) then being contested by any of them in good
faith by appropriate proceedings or if the failure to comply
with such agreements, indentures, leases or instruments
does not constitute a Material Adverse Effect.
5.9 Use of Proceeds. Use the proceeds of Loans solely to
refinance or retire existing Indebtedness of Borrower.
5.10 Future Collateral. Upon the acquisition by Borrower
or any Significant Subsidiary of (a) any capital stock of a
new Subsidiary, deliver the certificates evidencing such
capital stock in pledge to the Collateral Agent pursuant to
the Pledge Agreement (Nevada Gaming) or Pledge
Agreement (General), as the case may be, (b) upon
consummation of the ▇▇▇▇▇ Transaction, deliver certificates
evidencing 100% of the shares of capital stock of ANI and
the remaining 51% of the shares of capital stock of HRN
to the Collateral Agent in pledge pursuant to the Pledge
Agreement (Nevada Gaming), subject to prior approvals
required under applicable Gaming Laws, and the Pledge
Agreement (General), as applicable, and (c) any fee
simple interest in real Property or any vessel, vehicle or
other Property which is not subject to the Lien of the
Collateral Documents, execute and deliver to the
Collateral Agent such Collateral Documents as are
appropriate therefor as requested by the Collateral Agent
to create a Lien thereon securing the Obligations and the
Obligations under the Amended Revolver subject in
priority only to Permitted Liens and Liens existing thereon
prior to such acquisition (and not done in contemplation
thereof); provided, however, that such Collateral
Documents shall not be required if Borrower delivers to
the Administrative Agent promptly following any such
acquisition an Officers' Certificate stating that the
aggregate fair market value of such Property plus the
aggregate fair market value of all other Property (except
(a) any gaming license issued under any Gaming Law,
(b) the assets and capital stock of ANI, (c) the assets and
51% of the capital stock of HRN and (d) the gaming
equipment and capital stock of AMGC) owned by
Borrower and the Restricted Subsidiaries that is not
subject to the Lien of the Collateral Documents is less
than $20,000,000.
5.11 New Significant Subsidiaries. Cause each of its
Restricted Subsidiaries which hereafter becomes a
Significant Subsidiary to execute and deliver to the
Administrative Agent an instrument of joinder of the
Subsidiary Guaranty, Security Agreement and the
Trademark Collateral Assignment.
5.12 Hazardous Materials Laws. Keep and maintain all
Real Property and each portion thereof in compliance in
all material respects with all applicable Hazardous
Materials Laws and promptly notify the Administrative
Agent in writing (attaching a copy of any pertinent written
material) of (a) any and all material enforcement, cleanup,
removal or other governmental or regulatory actions
instituted, completed or threatened in writing by a
Governmental Agency pursuant to any applicable
Hazardous Materials Laws, (b) any and all material claims
made or threatened in writing by any Person against
Borrower relating to damage, contribution, cost recovery,
compensation, loss or injury resulting from any Hazardous
Materials and (c) discovery by any Senior Officer of
Borrower of any material occurrence or condition on any
real Property adjoining or in the vicinity of such Real
Property that could reasonably be expected to cause such
Real Property or any part thereof to be subject to any
restrictions on the ownership, occupancy, transferability
or use of such Real Property under any applicable
Hazardous Materials Laws.
5.13 Intercompany Notes. Execute a promissory note
(in a form reasonably acceptable to the Administrative
Agent) evidencing any Indebtedness of Borrower or a
Restricted Subsidiary to any Restricted Subsidiary which
is in an amount of $5,000,000 or more, and cause each
payee of such promissory note to deliver the same to the
Collateral Agent with an endorsement in blank as Pledged
Collateral (General).
Article 6
NEGATIVE COVENANTS
So long as any Advance remains unpaid or any portion of
the Commitment remains in force, Borrower shall not, and
shall not permit any of the Restricted Subsidiaries to,
unless the Administrative Agent (with the written approval
of the Requisite Lenders) otherwise consents:
6.1 Disposition of Property. Make any Disposition of its
Property, whether now owned or hereafter acquired, (a) if,
giving effect thereto, the aggregate book value or fair
market value (whichever is greater) of all Dispositions
made since the Closing Date would exceed $60,000,000 or
(b) that is otherwise prohibited by clause (a) hereof unless
(i) at least 85% of the proceeds from such Disposition are
received in Cash; provided however, that the amount of
(A) any Indebtedness (as shown on Borrower's or such
Subsidiaries' most recent balance sheet or in the notes
thereto) of Borrower or any such Subsidiary that are
assumed by the transferee of any asset in connection with
any Disposition and (B) any deferred payment obligations
received by Borrower or any such Subsidiary as proceeds
of a Disposition that are concurrently with the Disposition
converted into Cash without recourse to Borrower or any
of its Subsidiaries, shall be deemed to be Cash for
purposes of this provision, (ii) Borrower or such
Subsidiary receives consideration at the time of such
Disposition at least equal to the fair market value of the
shares or assets sold (as determined by the Board of
Directors of Borrower and evidenced by a board
resolution) and (iii) the Net Cash Proceeds received by
Borrower or such Subsidiary from such Disposition are
applied as follows: (y) Borrower may, within 12 months
of such Disposition, invest such Net Cash Proceeds in
properties and assets that (as determined by the Board of
Directors) replace the properties and assets that were the
subject of the Disposition or in properties and assets that
will be used in the business of Borrower or its
Subsidiaries existing on the date of this Agreement or in a
business reasonably related thereto and (z) the amount of
such Net Cash Proceeds not invested as set forth in
clause (y) above shall on or prior to the first anniversary
of such Disposition be applied by Borrower to the
prepayment, on a pro rata basis with the prepayment of the
Notes and the permanent reduction of the Commitment
under the Amended Revolver on or prior to the Banking
Day following the date such Net Cash Proceeds are not so
invested, at a price equal to 100% of the principal amount
thereof, plus accrued interest thereon to the date of
prepayment.
6.2 Mergers. Merge or consolidate with or
into any Person, except:
(a) mergers and consolidations of a Subsidiary of
Borrower into Borrower or a Restricted Subsidiary (with
any of Borrower or the Restricted Subsidiary as the
surviving entity) or of Borrower or Restricted Subsidiaries
of Borrower with each other, provided that Borrower and
each of such Subsidiaries have executed such amendments
to the Loan Documents as the Administrative Agent may
reasonably determine are appropriate as a result of such
merger; and
(b) a merger or consolidation of Borrower or any
Restricted Subsidiary with any other Person, provided that
(i) either (A) Borrower or the Restricted Subsidiary is the
surviving entity, or (B) the surviving entity is a
corporation organized under the Laws of a State of the
United States of America or the District of Columbia and,
as of the date of such merger or consolidation, expressly
assumes, by an appropriate instrument, the Obligations of
Borrower or the Restricted Subsidiary, as the case may be,
(ii) giving effect thereto on a pro-forma basis, no Default
or Event of Default exists or would result therefrom, and
(iii) as a result thereof, no Change in Control has
occurred.
6.3 Restricted Payments. (a) Directly or indirectly,
(i) declare or pay any dividend on or make any
distribution or payment on its Capital Stock or to its
stockholders (in their capacity as stockholders) (other than
dividends or distributions payable solely in its Qualified
Capital Stock and, in the case of a Restricted Subsidiary,
dividends or distributions payable to Borrower or a
Wholly Owned Subsidiary), (ii) purchase, redeem or
otherwise acquire or retire for value, any shares of Capital
Stock of Borrower (except, in the case of a Restricted
Subsidiary, from Borrower) or any Subsidiary of
Borrower (other than a Wholly Owned Subsidiary),
(iii) acquire, retire or redeem any Indebtedness of or
otherwise make any Investment in any Affiliate of
Borrower (other than a Permitted Investment) or
(iv) purchase, redeem or otherwise acquire or retire for
value, prior to any scheduled maturity, scheduled
repayment or scheduled sinking fund or mandatory
redemption payment of a Subordinated Obligation or any
other Indebtedness of Borrower or of any Affiliate of
Borrower that is subordinated (whether pursuant to its
terms or by operation of law) in right of payment to the
Notes and which is scheduled to mature (after giving
effect to any and all unconditional (other than as to the
giving of notice) options to extend the maturity thereof) on
or after the Maturity Date, if at the time of any such
declaration, distribution, payment, purchase, redemption,
acquisition or retirement (collectively, the "Restricted
Payments") and after giving effect thereto (including,
without limitation, in calculating on a pro forma basis, as
if such proposed Restricted Payment had been made, the
Consolidated Fixed Charge Coverage Ratio of Borrower
for purposes of clause (y) below):
(x) any Event of Default shall have occurred and be
continuing; or
(y) Borrower could not incur at least $1.00 of
additional Indebtedness pursuant to Section 6.4(a); or
(z) the aggregate amount of Restricted Payments for all
such purposes made subsequent to the Closing Date would
exceed an amount equal to the sum of (i) 50% of
aggregate Consolidated Net Income (or if such aggregate
Consolidated Net Income shall be a deficit, minus 100%
of such deficit) accrued on a cumulative basis in the
period commencing on the Closing Date and ending on the
last day of the Fiscal Quarter immediately preceding the
relevant Transaction Date, (ii) the aggregate net proceeds,
including Cash and the fair market value of Property other
than Cash (as determined in good faith by the Board of
Directors of Borrower, whose determination shall be
conclusive, and evidenced by a resolution of such Board
of Directors filed with the Agent) received by Borrower
from the issuance or sale to any Person (other than a
Subsidiary of Borrower) during the period commencing on
the Closing Date and ending on such Transaction Date of
Qualified Capital Stock of Borrower (other than Capital
Stock of Borrower issued upon conversion of or in
exchange for securities of Borrower and Capital Stock of
Borrower issued in a transaction described in clause
(b)(iv) below, except to the extent of any payment to
Borrower in addition to the securities of Borrower
surrendered), (iii) to the extent not included in (ii) above,
the aggregate net proceeds, including Cash and the fair
market value of Property other than Cash (as determined
in good faith by the Board of Directors of Borrower,
whose determination shall be conclusive, and evidenced
by a resolution of such Board of Directors filed with the
Agent) received by Borrower from the issuance or sale to
any Person (other than a Subsidiary of Borrower) during
the period commencing on the Closing Date and ending on
such Transaction Date, of any debt securities evidencing
Indebtedness of Borrower or of any Disqualified Stock of
Borrower, if, and to the extent that, as of such Transaction
Date such debt securities or Disqualified Stock, as the case
may be, have been converted into, exchanged for or
satisfied by the issuance of Qualified Capital Stock of
Borrower, (iv) to the extent that any Restricted Investment
that was made after the date of this Agreement is sold for
Cash or otherwise liquidated or repaid for Cash, the lesser
of (A) the Cash return of capital with respect to such
Restricted Investment (less the expense of disposition, if
any) and (B) the initial amount of such Restricted
Investment, (v) 50% of any Cash dividends received by
Borrower or a Wholly-Owned Subsidiary after the date of
this Agreement from an Unrestricted New Venture Entity,
to the extent that such dividends were not otherwise
included in Consolidated Net Income of Borrower for
such period and (vi) to the extent that any Unrestricted
New Venture Entity is redesignated as a Restricted
Subsidiary after the date of this Agreement, the fair market
value of the Investment in such Subsidiary by Borrower or
any other Restricted Subsidiary as of the date of such
redesignation; provided, however, that, if Borrower and its
Restricted Subsidiaries have made any Investments during
the period commencing on the Closing Date and ending on
such Transaction Date, the proceeds of which Investments
were used, directly or indirectly, by the recipients thereof
to purchase Qualified Capital Stock of Borrower or other
securities that have been converted into, exchanged for or
satisfied by the issuance of Qualified Capital Stock of
Borrower, the aggregate amount determined under clauses
(ii) and (iii) shall be net of the aggregate amount of such
Investments.
(b) The provisions of this Section 6.3 shall not
prohibit:
(i) Borrower or any Restricted Subsidiary from paying
a dividend on its own Capital Stock within 60 days after
the declaration thereof if, on the date when the dividend
was declared, Borrower or such Restricted Subsidiary, as
the case may be, could have paid such dividend in
compliance with the other provisions of this Section 6.3;
(ii) Borrower or any Restricted Subsidiary from
redeeming or repurchasing its securities in the event that
the holder of such securities has failed to qualify or to be
found suitable or otherwise eligible under a Gaming Law
to remain as a holder of such securities;
(iii) Borrower or any Restricted Subsidiary from
redeeming or purchasing, for an amount not exceeding
$750,000 in the aggregate, all or a portion of the shares of
Class A preferred stock of Ramada New Jersey Holdings
outstanding on the Closing Date;
(iv) the redemption, repurchase, retirement, defeasance
or other payment or acquisition of any Subordinated
Obligation or Capital Stock of Borrower in exchange for,
or out of the net cash proceeds of the substantially
concurrent sale (other than to a Subsidiary of Borrower)
of, other Capital Stock of Borrower (other than any
Disqualified Stock); and
(v) the redemption, repurchase, retirement, defeasance
or other payment or acquisition of Subordinated
Obligations with the net cash proceeds from an incurrence
of New Subordinated Debt;
provided, however, that the aggregate amount of any
payment, dividend, acquisition, redemption or distribution
made by Borrower or any Restricted Subsidiary pursuant
to subsection (b)(i) or (ii) shall be included in any
computation under Section 6.3(a) of the aggregate amount
of Restricted Payments made by Borrower and its
Restricted Subsidiaries, and the aggregate amount of any
payment, dividend, acquisition, redemption or distribution
made by Borrower or any Restricted Subsidiary pursuant
to subsection (b)(iii), (iv) or (v) shall not be included in
any such computation;
(c) So long as no Event of Default shall have occurred
and be continuing, the provisions of this Section 6.3 shall
not prohibit Borrower and its Restricted Subsidiaries from:
(i) acquiring shares of Capital Stock of Borrower (A)
to eliminate fractional shares, (B )from an employee who
has purchased or otherwise acquired shares of Capital
Stock of Borrower under an employee stock option or
employee stock purchase agreement or other plan or
agreement reserving to Borrower the option to repurchase
the shares but in no event for a price greater than the
higher of fair market value or the price at which such
securities were sold by Borrower and (C) pursuant to a
court order, provided that the aggregate consideration paid
by Borrower and its Restricted Subsidiaries pursuant to
subclauses (A) and (B) above shall not exceed $1,000,000
in any Fiscal Year of Borrower;
(ii) declaring or paying any dividend on, or redeeming
or repurchasing, shares of the Series B Preferred Stock in
either case that is or becomes scheduled or required
pursuant to the Series B Preferred Stock outstanding as of
the Closing Date;
(iii) redeeming or purchasing the Preferred Share
Purchase Rights at a price not exceeding $0.01 per right
and $2,000,000 in the aggregate;
(iv) acquiring, retiring or redeeming any Indebtedness
of, or otherwise making any Investment in, TEGP in
connection with the TEGP Loan Agreement, except to the
extent that the aggregate amount of any such Investment in
TEGP in connection with the TEGP Loan Agreement
exceeds the outstanding principal amount owed to third
parties under the TEGP Loan Agreement at the Closing
Date;
(v) purchasing the TEGP Property or the ▇▇▇▇▇
Partnership Interest;
(vi) paying up to $75,000,000 on account of
Subordinated Obligations or for the purchase, redemption
or defeasance thereof; or
(vii) making any Restricted Payment not otherwise
permitted by this Section 6.3, provided that the aggregate
amount of Restricted Payments made pursuant to this
clause (vii) from and after the Closing Date shall not
exceed $30,000,000;
provided, however, that the aggregate amount of any
payment, dividend, acquisition, redemption or distribution
made by Borrower or any Restricted Subsidiary pursuant
to subsection (c)(i), (ii), (iii) or (vii) shall be included in
any computation under Section 6.3(a) of the aggregate
amount of Restricted Payments made by Borrower and its
Restricted Subsidiaries, and the aggregate amount of any
payment, dividend, acquisition, redemption or distribution
made by Borrower or any Restricted Subsidiary pursuant
to subsection (c)(iv), (v) or (vi) shall not be included in
any such computation.
6.4 Indebtedness. (a) Create, incur, assume, guarantee or
otherwise become liable with respect to, or become
responsible for the payment of, any Indebtedness unless,
after giving effect thereto, the Consolidated Fixed Charge
Coverage Ratio of Borrower is greater than 1.9 to 1.
(b) Notwithstanding the foregoing, Borrower and its
Restricted Subsidiaries may incur, create, assume,
guarantee or otherwise become liable with respect to, or
become responsible for the payment of, any or all of the
following: (i) Indebtedness not otherwise permitted
pursuant to clauses (ii) through (xii) below in an aggregate
amount at any time outstanding of up to $50,000,000; (ii)
Indebtedness incurred pursuant to Section 2.6 of this
Agreement, (iii) the Existing 11% Subordinated Debt and
the Existing 13 3/4% Subordinated Debt; (iv) Indebtedness
of Borrower and its Restricted Subsidiaries remaining
outstanding on the Closing Date giving effect to the
contemplated application of the proceeds; (v) Indebtedness
to Borrower or to a Restricted Subsidiary; (vi)
Indebtedness incurred by Borrower or any Restricted
Subsidiary in connection with (a) the construction of any
new facility or facilities related to the gaming business or
any related business of Borrower or any Restricted
Subsidiary or in connection with the expansion by
Borrower or any Restricted Subsidiary of any of its
existing facilities; provided, however, that the aggregate
principal amount of all such Indebtedness incurred on and
subsequent to the Closing Date shall not exceed
$100,000,000, (b) the maintenance, refurbishment or
replacement by Borrower or any Restricted Subsidiary in
the ordinary course of business of assets related to the
gaming business or any related business of Borrower or
any Restricted Subsidiary or (c) the acquisition of slot
machines, gaming tables or other similar gaming
equipment; (vii) Indebtedness under any revolving credit
facility in an aggregate amount of up to $300,000,000;
(viii) Indebtedness incurred to purchase the TEGP
Property or the ▇▇▇▇▇ Partnership Interest or to refinance
any Indebtedness of TEGP; (ix) Indebtedness incurred in
respect of any security deposit under the TEGP Lease; (x)
Indebtedness under Currency Agreements or Swap
Agreements (including any Swap Agreements, the purpose
of which is to alter or replace, or lengthen or shorten the
maturity of, any Swap Agreement previously incurred
pursuant to this clause (x)), provided that such Currency
Agreements or Swap Agreements are related to payment
obligations on Indebtedness otherwise permitted by this
Section 6.4; (xi) Indebtedness incurred in respect of
performance bonds, bankers' acceptances, letters of credit
and surety bonds provided by Borrower or any Restricted
Subsidiary in the ordinary course of business; and (xii)
Indebtedness ("Replacement Indebtedness") the proceeds
of which are used to refinance (a) all or a portion of the
Notes, (b) any other permitted Indebtedness of Borrower
and its Restricted Subsidiaries or (c) permitted successor
or replacement Indebtedness, in each case in a principal
amount (or, if such Replacement Indebtedness does not
require Cash payments prior to maturity, with an original
issue price) not to exceed an amount equal to the
aggregate of the principal amount plus any prepayment
penalties, premiums and accrued and unpaid interest on
the Indebtedness so refinanced and customary fees,
expenses and costs related to the incurrence of such
Replacement Indebtedness, provided that, in the case of
this clause (xii), (1) if the Notes are refinanced in part,
such Replacement Indebtedness is expressly made pari
passu or subordinate in right of payment to the remaining
Notes, (2) if the Indebtedness to be refinanced is
subordinate in right of payment to the Notes, such
Replacement Indebtedness is subordinate in right of
payment to the Notes at least to the extent that the
Indebtedness to be refinanced is subordinate to the Notes,
(3) if the Indebtedness to be refinanced is pari passu in
right of payment to the Notes, such Replacement
Indebtedness is pari passu or subordinate in right of
payment to the Notes at least to the extent that the
Indebtedness to be refinanced is pari passu to the Notes
and (4) if the Notes are refinanced in part or if the
Indebtedness to be refinanced is subordinate in right of
payment to the Notes and scheduled to mature after the
maturity date of the Notes, such Replacement
Indebtedness determined as of the date of incurrence does
not mature prior to the final scheduled maturity date of the
Notes and the Average Life of such Replacement
Indebtedness is equal to or greater than the Average Life
of the remaining Notes.
6.5 Liens. Create, incur, assume or suffer to exist, any
Lien on or with respect to any of its Property or Capital
Stock, whether now owned or hereafter acquired, or
assign, or permit any Restricted Subsidiary to assign, any
right to receive income, other than: (i) Liens existing as of
the date of this Agreement or arising hereafter pursuant to
the Amended Revolver or this Agreement; (ii) Liens in
favor of Borrower; (iii) Liens securing Indebtedness
(including, without limitation, any obligation, contingent
or otherwise, for borrowed money of any Person secured
by any Lien in respect of Property of Borrower or any
Restricted Subsidiary, even though neither Borrower nor
any Restricted Subsidiary has assumed or become liable
for payment of such obligation) of Borrower or any
Restricted Subsidiary, provided that, with respect to any
Indebtedness that is pari passu with the Notes, the Notes
are secured by Liens equal and ratable to such Liens and,
with respect to Indebtedness that is subordinated to the
Notes, the Notes are secured by Liens that are senior to
such Liens; (iv) Permitted Liens and (v) any Lien on
shares of any equity security or any warrant or option to
purchase an equity security or any security which is
convertible into an equity security issued by Borrower or
any Restricted Subsidiary that holds, directly or indirectly
through a holding company or otherwise, a license under
any Gaming Law of the State of Nevada; provided that
this clause (v) shall apply only so long as the Gaming
Laws of the State of Nevada provide that the creation of
any restriction on the disposition of any of such securities
shall not be effective and, if such Gaming Laws at any
time cease to so provide, then this clause (v) shall be of no
further effect; and provided further that if at any time
Borrower creates or suffers to exist a Lien covering such
securities in favor of the holder of any other Indebtedness,
it will (subject to any approval required under the Gaming
Laws of the State of Nevada) concurrently grant a pari
passu Lien likewise covering such securities in favor of
the Administrative Agent for the benefit of the Lenders.
6.6 Transactions with Affiliates. Enter into any
transaction of any kind with any Affiliate of Borrower
other than (a) salary, bonus, employee stock option and
other compensation arrangements with directors or
officers in the ordinary course of business, (b) transactions
that are fully disclosed to the board of directors of
Borrower and expressly authorized by a resolution of the
board of directors of Borrower which is approved by a
majority of the directors not having an interest in the
transaction, (c) transactions between or among Borrower
and the Restricted Subsidiaries, and (d) transactions on
overall terms at least as favorable to Borrower or the
Restricted Subsidiaries as would be the case in an
arm's-length transaction between unrelated parties of equal
bargaining power.
6.7 Significant Subsidiaries. Permit any Restricted
Subsidiary that is, as of the Closing Date, a Significant
Subsidiary to cease being a Restricted Subsidiary.
6.8 Amendments to Subordinated Obligations. Amend or
modify any of the subordination provisions contained in
Article Ten of the Existing Indentures (or the definitions
of terms used therein) or in the comparable subordination
provisions of any other indenture, agreement or instrument
evidencing or governing any Subordinated Obligation in
any respect that will or may adversely affect the interests
of the Lenders.
6.9 Amendments to Amended Revolver. Amend or
modify any term or provision of the Amended Revolver
that would (a) shorten the maturity date thereof,
(b) accelerate the scheduled reduction dates of the
commitment thereunder, (c) increase any scheduled
reduction amount thereunder or (d) increase any
mandatory prepayment thereunder.
Article 7
INFORMATION AND REPORTING REQUIREMENTS
7.1 Financial and Business Information. So long as any
Advance remains unpaid or any portion of the
Commitment remains in force, Borrower shall, unless the
Administrative Agent (with the written approval of the
Requisite Lenders) otherwise consents, at Borrower's sole
expense, deliver to the Administrative Agent for
distribution by it to the Lenders, a sufficient number of
copies for all of the Lenders of the following:
(a) As soon as practicable, and in any event within
60 days after the end of each Fiscal Quarter (other than
the fourth Fiscal Quarter in any Fiscal Year), (i) the
consolidated balance sheet of Borrower and its
Subsidiaries as at the end of such Fiscal Quarter and the
consolidated statement of operations for such Fiscal
Quarter, and its statement of cash flows for the portion of
the Fiscal Year ended with such Fiscal Quarter and (ii) the
consolidating (in accordance with past consolidating
practices of Borrower) balance sheets and statements of
operations as at and for the portion of the Fiscal Year
ended with such Fiscal Quarter, all in reasonable detail.
Such financial statements shall be certified by a Senior
Officer of Borrower as fairly presenting the financial
condition, results of operations and cash flows of
Borrower and its Subsidiaries in accordance with
Generally Accepted Accounting Principles (other than
footnote disclosures), consistently applied, as at such date
and for such periods, subject only to normal year-end
accruals and audit adjustments;
(b) As soon as practicable, and in any event within
105 days after the end of each Fiscal Year, (i) the
consolidated balance sheet of Borrower and its
Subsidiaries as at the end of such Fiscal Year and the
consolidated statements of operations, stockholders' equity
and cash flows, in each case of Borrower and its
Subsidiaries for such Fiscal Year and (ii) consolidating (in
accordance with past consolidating practices of Borrower)
balance sheets and statements of operations, in each case
as at the end of and for the Fiscal Year, all in reasonable
detail. Such financial statements shall be prepared in
accordance with Generally Accepted Accounting
Principles, consistently applied, and such consolidated
balance sheet and consolidated statements shall be
accompanied by a report of independent public
accountants of recognized standing selected by Borrower
and reasonably satisfactory to the Requisite Lenders,
which report shall be prepared in accordance with
generally accepted auditing standards as at such date, and
shall not be subject to any qualifications or exceptions as
to the scope of the audit nor to any other qualification or
exception determined by the Requisite Lenders in their
good faith business judgment to be adverse to the interests
of the Lenders. Unless such independent public
accountants do not, as a matter of firm policy, generally
provide similar information at the request of their audit
clients, such accountants' report shall be accompanied by a
certificate stating that, in making the examination pursuant
to generally accepted auditing standards necessary for the
certification of such financial statements and such report,
such accountants have obtained no knowledge of any
Default described in Sections 9.1(a), (b), (c), or (f) or, if,
in the opinion of such accountants, any such Default shall
exist, stating the nature and status of such Default;
(c) Promptly after request by the Administrative Agent
or any Lender, copies of any detailed audit reports,
management letters or recommendations submitted to the
board of directors (or the audit committee of the board of
directors) of Borrower by independent accountants in
connection with the accounts or books of Borrower or any
of its Subsidiaries, or any audit of any of them;
(d) Promptly after the same are available, copies of
each annual report, proxy or financial statement or other
report or communication sent to the stockholders of
Borrower, and copies of all annual, regular, periodic and
special reports and registration statements which Borrower
may file or be required to file with the Securities and
Exchange Commission under Section 13 or 15(d) of the
Securities Exchange Act of 1934, as amended, and not
otherwise required to be delivered to the Lenders pursuant
to other provisions of this Section 7.1;
(e) Such other data and information as from time to
time may be reasonably requested by the Administrative
Agent or the Requisite Lenders.
7.2 Compliance Certificates. So long as any Advance
remains unpaid or any portion of the Commitment remains
outstanding, Borrower shall, at Borrower's sole expense,
deliver to the Administrative Agent for distribution by it to
the Lenders concurrently with the financial statements
required pursuant to Sections 7.1(a) and 7.1(b), a
Compliance Certificate signed by a Senior Officer.
Article 8
CONDITIONS
8.1 Initial Advances. The obligation of each Lender to
make the initial Advance to be made by it is subject to the
following conditions precedent, each of which shall be
satisfied prior to the making of the initial Advances
(unless all of the Lenders, in their sole and absolute
discretion, shall agree otherwise):
(a) The Administrative Agent shall have received all of
the following, each of which shall be originals unless
otherwise specified, each properly executed by a
Responsible Official of each party thereto, each dated as
of the Closing Date and each in form and substance
satisfactory to the Administrative Agent and its legal
counsel (unless otherwise specified or, in the case of the
date of any of the following, unless the Administrative
Agent otherwise agrees or directs):
(1) the Global Assignment and Release executed by all
parties thereto;
(2) at least one (1) executed counterpart of this
Agreement, together with arrangements satisfactory to the
Administrative Agent for additional executed counterparts,
sufficient in number for distribution to the Lenders and
Borrower;
(3) Notes executed by Borrower in favor of each
Lender, each in a principal amount equal to that Lender's
Pro Rata Share of the Commitment;
(4) the Confirmation of the Guaranty executed by each
Significant Subsidiary;
(5) the Global Collateral Documents Amendment
executed by Borrower and each Significant Subsidiary
(other than HRN);
(6) such amendments to financing statements on
Form UCC-1 executed by Borrower and each Significant
Subsidiary (other than HRN) with respect to the Global
Collateral Documents Amendment as the Administrative
Agent may request;
(7) Ancillary Collateral Documents, executed by such
Parties as the Administrative Agent specifies;
(8) the Intercreditor Agreement executed by the
Revolver Agent;
(9) with respect to Borrower and each Significant
Subsidiary, such documentation as the Administrative
Agent may require to establish the due organization, valid
existence and good standing of Borrower and each such
Subsidiary, its qualification to engage in business in each
material jurisdiction in which it is engaged in business or
required to be so qualified, its authority to execute, deliver
and perform any Loan Documents to which it is a Party,
the identity, authority and capacity of each Responsible
Official thereof authorized to act on its behalf, including
certified copies of articles of incorporation and
amendments thereto, bylaws and amendments thereto,
certificates of good standing and/or qualification to engage
in business, tax clearance certificates, certificates of
corporate resolutions, incumbency certificates, Certificates
of Responsible Officials, and the like;
(10) the Opinions of Counsel;
(11) assurances from the Title Company that it is
prepared to issue such endorsements to the existing ALTA
lender's policies insuring the Lien of the Deeds of Trust as
may be reasonably requested by the Administrative Agent,
subject only to such exceptions as are reasonably
acceptable to the Administrative Agent, and with such
assurances as the Administrative Agent may reasonably
require from title re-insurers acceptable to the
Administrative Agent;
(12) such assurances as the Administrative Agent deems
appropriate that the relevant Gaming Boards have
approved the transactions contemplated by the Loan
Documents to the extent that such approval is required by
applicable Gaming Laws;
(13) written evidence that the Supplemental Loan
Agreement has been or will be concurrently terminated
and all Liens securing such facility have been or will be
concurrently released;
(14) a Certificate of a Responsible Official certifying
that incurrence by Borrower of the Obligations will not
violate the Existing 11% Subordinated Debt Indenture or
the Existing 13 3/4% Subordinated Debt Indenture;
(15) a Certificate of a Responsible Official signed by a
Senior Officer of Borrower certifying that the conditions
specified in Sections 8.1(g) and 8.1(h) have been satisfied;
and
(16) such other assurances, certificates, documents,
consents or opinions as the Administrative Agent
reasonably may require.
(b) The arrangement fee payable pursuant to
Section 3.2 shall have been paid.
(c) The upfront fees payable pursuant to Section 3.3
shall have been paid.
(d) Any agency fees payable on the Closing Date
pursuant to Section 3.4 shall have been paid.
(e) The reasonable costs and expenses of the
Administrative Agent in connection with the preparation
of the Loan Documents payable pursuant to Section 11.3,
and invoiced to Borrower prior to the Closing Date, shall
have been paid.
(f) Borrower shall have delivered to the trustees under
the Existing Indentures a written statement designating the
Obligations as "Designated Senior Indebtedness" under
such Indentures.
(g) The representations and warranties of Borrower
contained in Article 4 shall be true and correct.
(h) Borrower and any other Parties shall be in
compliance with all the terms and provisions of the Loan
Documents, and giving effect to the initial Advance no
Default or Event of Default shall have occurred and be
continuing.
(i) All legal matters relating to the Loan Documents
shall be satisfactory to Sheppard, Mullin, ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇ LLP, special counsel to the Administrative Agent.
(j) The Closing Date shall have occurred on or before
June 12, 1998.
Article 9
EVENTS OF DEFAULT AND REMEDIES UPON
EVENT OF DEFAULT
9.1 Events of Default. The existence or occurrence of
any one or more of the following events, whatever the
reason therefor and under any circumstances whatsoever,
shall constitute an Event of Default:
(a) Borrower fails to pay any principal on any of the
Notes, or any portion thereof, on the date when due; or
(b) Borrower fails to pay any interest on any of the
Notes, or any fees under Section 3.6, or any portion
thereof, within five (5) Banking Days after the date when
due; or fail to pay any other fee or amount payable to the
Lenders under any Loan Document, or any portion
thereof, within five (5) Banking Days after demand
therefor; or
(c) Borrower fails to comply with any of the covenants
contained in Article 6; or
(d) Borrower, any of the Significant Subsidiaries or
any other Party fails to perform or observe any other
covenant or agreement (not specified in clause (a), (b) or
(c) above) contained in any Loan Document on its part to
be performed or observed within ten (10) Banking Days
after the giving of notice by the Administrative Agent on
behalf of the Requisite Lenders of such Default; or
(e) Any representation or warranty of Borrower or any
of the Significant Subsidiaries made in any Loan
Document, or in any certificate or other writing delivered
by Borrower or such Significant Subsidiary pursuant to
any Loan Document, proves to have been incorrect when
made or reaffirmed in any respect that is materially
adverse to the interests of the Lenders; or
(f) Borrower or any of the Restricted Subsidiaries
(i) fails to pay the principal, or any principal installment,
of any present or future indebtedness (including the
Amended Revolver) for borrowed money of $25,000,000
or more, or any guaranty of present or future indebtedness
for borrowed money of $25,000,000 or more, on its part to
be paid, when due (or within any stated grace period),
whether at the stated maturity, upon acceleration, by
reason of required prepayment or otherwise or (ii) fails to
perform or observe any other term, covenant or agreement
on its part to be performed or observed, or suffers any
event of default to occur, in connection with any present
or future indebtedness (including the Amended Revolver)
for borrowed money of $25,000,000 or more, or of any
guaranty of present or future indebtedness for borrowed
money of $25,000,000 or more, if as a result of such
failure or sufferance any holder or holders thereof (or an
agent or trustee on its or their behalf) has the right to
declare such indebtedness due before the date on which it
otherwise would become due or the right to require
Borrower or any Restricted Subsidiary to redeem or
purchase, or offer to redeem or purchase, all or any
portion of such indebtedness and any such failure to pay,
perform or observe described in clauses (i) or (ii) above
continues (without cure or waiver by the holders of such
indebtedness) for a period of thirty (30) days; or
(g) Any event occurs which gives the holder or holders
of any Subordinated Obligation (or an agent or trustee on
its or their behalf) the right to declare such Subordinated
Obligation due before the date on which it otherwise
would become due, or the right to require the issuer
thereof to redeem or purchase, or offer to redeem or
purchase, all or any portion of any Subordinated
Obligation; or the trustee for, or any holder of, a
Subordinated Obligation breaches any subordination
provision applicable to such Subordinated Obligation; or
(h) Any Loan Document, at any time after its execution
and delivery and for any reason other than the agreement
or action (or omission to act) of the Administrative Agent
or the Lenders or satisfaction in full of all the Obligations
ceases to be in full force and effect or is declared by a
court of competent jurisdiction to be null and void, invalid
or unenforceable in any respect which, in any such event
in the reasonable opinion of the Requisite Lenders, is
materially adverse to the interests of the Lenders; or any
Party thereto denies in writing that it has any or further
liability or obligation under any Loan Document, or
purports to revoke, terminate or rescind same; or
(i) A final judgment against any of Borrower or any of
the Restricted Subsidiaries is entered for the payment of
money in excess of $1,000,000 and, absent procurement
of a stay of execution, such judgment remains unsatisfied
for thirty (30) calendar days after the date of entry of
judgment, or in any event later than five (5) days prior to
the date of any proposed sale thereunder; or any writ or
warrant of attachment or execution or similar process is
issued or levied against all or any material part of the
Property of any such Person and is not released, vacated
or fully bonded within thirty (30) calendar days after its
issue or levy; or
(j) Borrower or any of the Significant Subsidiaries
institutes or consents to the institution of any proceeding
under a Debtor Relief Law relating to it or to all or any
material part of its Property, or admits in writing its
inability to pay its debts as they mature, or makes an
assignment for the benefit of creditors; or applies for or
consents to the appointment of any receiver, trustee,
custodian, conservator, liquidator, rehabilitator or similar
officer for it or for all or any material part of its Property;
or any receiver, trustee, custodian, conservator, liquidator,
rehabilitator or similar officer is appointed without the
application or consent of that Person and the appointment
continues undischarged or unstayed for sixty (60) calendar
days; or any proceeding under a Debtor Relief Law
relating to any such Person or to all or any part of its
Property is instituted without the consent of that Person
and continues undismissed or unstayed for sixty (60)
calendar days; or
(k) The occurrence of an Event of Default (as such
term is or may hereafter be specifically defined in any
other Loan Document) under any other Loan Document;
or
(l) A final judgment is entered by a court of competent
jurisdiction that any Subordinated Obligation is not
subordinated in accordance with its terms to the
Obligations; or
(m) Any Pension Plan maintained by Borrower or any
of its Restricted Subsidiaries is determined to have a
material "accumulated funding deficiency" as that term is
defined in Section 302 of ERISA and the result is a
Material Adverse Effect; or
(n) The occurrence of a License Revocation that
continues for three (3) consecutive calendar days affecting
gaming operations accounting for five percent (5%) or
more of the consolidated gross revenues of Borrower and
the Restricted Subsidiaries.
9.2 Remedies Upon Event of Default. Without limiting
any other rights or remedies of the Administrative Agent
or the Lenders provided for elsewhere in this Agreement,
or the other Loan Documents, or by applicable Law, or in
equity, or otherwise:
(a) Upon the occurrence, and during the continuance,
of any Event of Default other than an Event of Default
described in Section 9.1(j): the Requisite Lenders may
request the Administrative Agent to, and the
Administrative Agent thereupon shall, terminate the
Commitment and/or declare all or any part of the unpaid
principal of all Notes, all interest accrued and unpaid
thereon and all other amounts payable under the Loan
Documents to be forthwith due and payable, whereupon
the same shall become and be forthwith due and payable,
without protest, presentment, notice of dishonor, demand
or further notice of any kind, all of which are expressly
waived by Borrower.
(b) Upon the occurrence of any Event of Default
described in Section 9.1(j): the unpaid principal of all
Notes, all interest accrued and unpaid thereon and all
other amounts payable under the Loan Documents shall be
forthwith due and payable, without protest, presentment,
notice of dishonor, demand or further notice of any kind,
all of which are expressly waived by Borrower.
(c) Upon the occurrence of any Event of Default, the
Lenders and the Administrative Agent, or any of them,
without notice to (except as expressly provided for in any
Loan Document) or demand upon Borrower, which are
expressly waived by Borrower (except as to notices
expressly provided for in any Loan Document), may
proceed (but only with the consent of the Requisite
Lenders) to protect, exercise and enforce their rights and
remedies under the Loan Documents against Borrower and
any other Party and such other rights and remedies as are
provided by Law or equity.
(d) The order and manner in which the Lenders' rights
and remedies are to be exercised shall be determined by
the Requisite Lenders in their sole discretion, and all
payments received by the Administrative Agent and the
Lenders, or any of them, shall be applied first to the costs
and expenses (including reasonable attorneys' fees and
disbursements and the reasonably allocated costs of
attorneys employed by the Administrative Agent or by any
Lender) of the Administrative Agent and of the Lenders,
and thereafter paid pro rata to the Lenders in the same
proportions that the aggregate Obligations owed to each
Lender under the Loan Documents bear to the aggregate
Obligations owed under the Loan Documents to all the
Lenders, without priority or preference among the
Lenders. Regardless of how each Lender may treat
payments for the purpose of its own accounting, for the
purpose of computing Borrower's Obligations hereunder
and under the Notes, payments shall be applied first, to the
costs and expenses of the Administrative Agent and the
Lenders, as set forth above, second, to the payment of
accrued and unpaid interest due under any Loan
Documents to and including the date of such application
(ratably, and without duplication, according to the accrued
and unpaid interest due under each of the Loan
Documents), and third, to the payment of all other
amounts (including principal and fees) then owing to the
Administrative Agent or the Lenders under the Loan
Documents. Amounts due to a Lender under a Secured
Swap Agreement shall be considered a principal amount
for purposes of the preceding sentence. No application of
payments will cure any Event of Default, or prevent
acceleration, or continued acceleration, of amounts
payable under the Loan Documents, or prevent the
exercise, or continued exercise, of rights or remedies of
the Lenders hereunder or thereunder or at Law or in
equity.
Article 10
THE ADMINISTRATIVE AGENT
10.1 Appointment and Authorization. Subject to Section
10.8, each Lender hereby irrevocably appoints and
authorizes the Administrative Agent to take such action as
agent on its behalf (including execution and delivery of
the Intercreditor Agreement) and to exercise such powers
under the Loan Documents as are delegated to the
Administrative Agent by the terms thereof or are
reasonably incidental, as determined by the Administrative
Agent, thereto. This appointment and authorization is
intended solely for the purpose of facilitating the servicing
of the Loans and does not constitute appointment of the
Administrative Agent as trustee for any Lender or as
representative of any Lender for any other purpose and,
except as specifically set forth in the Loan Documents to
the contrary, the Administrative Agent shall take such
action and exercise such powers only in an administrative
and ministerial capacity.
10.2 Administrative Agent and Affiliates. Bank of
America National Trust and Savings Association (and
each successor Administrative Agent) has the same rights
and powers under the Loan Documents as any other
Lender and may exercise the same as though it were not
the Administrative Agent, and the term "Lender" or
"Lenders" includes Bank of America National Trust and
Savings Association in its individual capacity. Bank of
America National Trust and Savings Association (and
each successor Administrative Agent) and its Affiliates
may accept deposits from, lend money to and generally
engage in any kind of banking, trust or other business with
Borrower, any Subsidiary thereof, or any Affiliate of
Borrower or any Subsidiary thereof, as if it were not the
Administrative Agent and without any duty to account
therefor to the Lenders. Bank of America National Trust
and Savings Association (and each successor
Administrative Agent) need not account to any other
Lender for any monies received by it for reimbursement of
its costs and expenses as Administrative Agent hereunder,
or for any monies received by it in its capacity as a Lender
hereunder. The Administrative Agent shall not be deemed
to hold a fiduciary relationship with any Lender and no
implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement
or otherwise exist against the Administrative Agent.
10.3 Proportionate Interest in any Collateral. The
Collateral Agent, on behalf of the Lenders and the
Revolver Lenders, shall hold in accordance with the
Intercreditor Agreement and the Loan Documents all items
comprising the Collateral. Subject to the Administrative
Agent's and the Lenders' rights to reimbursement for their
costs and expenses hereunder (including reasonable
attorneys' fees and disbursements and other professional
services and the reasonably allocated costs of attorneys
employed by the Administrative Agent or a Lender) and
subject to the application of payments in accordance with
Section 9.2(d), each Lender shall have an interest in the
Lenders' interest in the Collateral or interests therein in the
same proportions that the aggregate Obligations owed
such Lender under the Loan Documents bear to the
aggregate Obligations owed under the Loan Documents to
all the Lenders, without priority or preference among the
Lenders.
10.4 Lenders' Credit Decisions. Each Lender agrees that
it has, independently and without reliance upon the
Administrative Agent, any other Lender or the directors,
officers, agents, employees or attorneys of the
Administrative Agent or of any other Lender, and instead
in reliance upon information supplied to it by or on behalf
of Borrower and upon such other information as it has
deemed appropriate, made its own independent credit
analysis and decision to enter into this Agreement. Each
Lender also agrees that it shall, independently and without
reliance upon the Administrative Agent, any other Lender
or the directors, officers, agents, employees or attorneys of
the Administrative Agent or of any other Lender, continue
to make its own independent credit analyses and decisions
in acting or not acting under the Loan Documents.
10.5 Action by Administrative Agent.
(a) Absent actual knowledge of the Administrative
Agent of the existence of a Default, the Administrative
Agent may assume that no Default has occurred and is
continuing, unless the Administrative Agent (or the Lender
that is then the Administrative Agent) has received notice
from Borrower stating the nature of the Default or has
received notice from a Lender stating the nature of the
Default and that such Lender considers the Default to have
occurred and to be continuing.
(b) The Administrative Agent has only those
obligations under the Loan Documents as are expressly set
forth therein.
(c) Except for any obligation expressly set forth in the
Loan Documents and as long as the Administrative Agent
may assume that no Event of Default has occurred and is
continuing, the Administrative Agent may, but shall not be
required to, exercise its discretion to act or not act, except
that the Administrative Agent shall be required to act or
not act upon the instructions of the Requisite Lenders (or
of all the Lenders, to the extent required by Section 11.2)
and those instructions shall be binding upon the
Administrative Agent and all the Lenders, provided that
the Administrative Agent shall not be required to act or
not act if to do so would be contrary to any Loan
Document or to applicable Law or would result, in the
reasonable judgment of the Administrative Agent, in
substantial risk of liability to the Administrative Agent.
(d) If the Administrative Agent has received a notice
specified in clause (a), the Administrative Agent shall
immediately give notice thereof to the Lenders and shall
act or not act upon the instructions of the Requisite
Lenders (or of all the Lenders, to the extent required by
Section 11.2), provided that the Administrative Agent
shall not be required to act or not act if to do so would be
contrary to any Loan Document or to applicable Law or
would result, in the reasonable judgment of the
Administrative Agent, in substantial risk of liability to the
Administrative Agent, and except that if the Requisite
Lenders (or all the Lenders, if required under
Section 11.2) fail, for five (5) Banking Days after the
receipt of notice from the Administrative Agent, to instruct
the Administrative Agent, then the Administrative Agent,
in its sole discretion, may act or not act as it deems
advisable for the protection of the interests of the Lenders.
(e) The Administrative Agent shall have no liability to
any Lender for acting, or not acting, as instructed by the
Requisite Lenders (or all the Lenders, if required under
Section 11.2), notwithstanding any other provision hereof.
10.6 Liability of Administrative Agent. Neither the
Administrative Agent nor any of its directors, officers,
agents, employees or attorneys shall be liable for any
action taken or not taken by them under or in connection
with the Loan Documents, except for their own gross
negligence or willful misconduct. Without limitation on
the foregoing, the Administrative Agent and its directors,
officers, agents, employees and attorneys:
(a) May treat the payee of any Note as the holder
thereof until the Administrative Agent receives notice of
the assignment or transfer thereof, in form satisfactory to
the Administrative Agent, signed by the payee, and may
treat each Lender as the owner of that Lender's interest in
the Obligations for all purposes of this Agreement until
the Administrative Agent receives notice of the assignment
or transfer thereof, in form satisfactory to the
Administrative Agent, signed by that Lender.
(b) May consult with legal counsel (including in-house
legal counsel), accountants (including in-house
accountants) and other professionals or experts selected by
it, or with legal counsel, accountants or other
professionals or experts for Borrower and/or its
Subsidiaries or the Lenders, and shall not be liable for any
action taken or not taken by it in good faith in accordance
with any advice of such legal counsel, accountants or
other professionals or experts.
(c) Shall not be responsible to any Lender for any
statement, warranty or representation made in any of the
Loan Documents or in any notice, certificate, report,
request or other statement (written or oral) given or made
in connection with any of the Loan Documents.
(d) Except to the extent expressly set forth in the Loan
Documents, shall have no duty to ask or inquire as to the
performance or observance by Borrower or its
Subsidiaries of any of the terms, conditions or covenants
of any of the Loan Documents or to inspect any Collateral
or the Property, books or records of Borrower or their
Subsidiaries.
(e) Will not be responsible to any Lender for the due
execution, legality, validity, enforceability, genuineness,
effectiveness, sufficiency or value of any Loan Document,
any other instrument or writing furnished pursuant thereto
or in connection therewith, or any Collateral.
(f) Will not incur any liability by acting or not acting
in reliance upon any Loan Document, notice, consent,
certificate, statement, request or other instrument or
writing believed in good faith by it to be genuine and
signed or sent by the proper party or parties.
(g) Will not incur any liability for any arithmetical
error in computing any amount paid or payable by the
Borrower or any Subsidiary or Affiliate thereof or paid or
payable to or received or receivable from any Lender
under any Loan Document, including, without limitation,
principal, interest, commitment fees, Advances and other
amounts; provided that, promptly upon discovery of such
an error in computation, the Administrative Agent, the
Lenders and (to the extent applicable) Borrower and/or its
Subsidiaries or Affiliates shall make such adjustments as
are necessary to correct such error and to restore the
parties to the position that they would have occupied had
the error not occurred.
10.7 Indemnification. Each Lender shall, ratably in
accordance with its Pro Rata Share of the Commitment (if
the Commitment is then in effect) or in accordance with
its proportion of the aggregate Indebtedness then
evidenced by the Notes (if the Commitment has then been
terminated), indemnify and hold the Administrative Agent
and its directors, officers, agents, employees and attorneys
harmless against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature
whatsoever (including, without limitation, attorneys' fees
and disbursements and allocated costs of attorneys
employed by the Administrative Agent) that may be
imposed on, incurred by or asserted against it or them in
any way relating to or arising out of the Loan Documents
(other than losses incurred by reason of the failure of
Borrower to pay the Indebtedness represented by the
Notes) or any action taken or not taken by it as
Administrative Agent thereunder, except such as result
from its own gross negligence or willful misconduct.
Without limitation on the foregoing, each Lender shall
reimburse the Administrative Agent upon demand for that
Lender's Pro Rata Share of any out-of-pocket cost or
expense incurred by the Administrative Agent in
connection with the negotiation, preparation, execution,
delivery, amendment, waiver, restructuring, reorganization
(including a bankruptcy reorganization), enforcement or
attempted enforcement of the Loan Documents, to the
extent that Borrower or any other Party is required by
Section 11.3 to pay that cost or expense but fails to do so
upon demand. Nothing in this Section 10.7 shall entitle
the Administrative Agent to recover any amount from the
Lenders if and to the extent that such amount has
theretofore been recovered from Borrower or any of its
Subsidiaries. To the extent that the Administrative Agent
is later reimbursed such cost or expense by Borrower or
any of its Subsidiaries, it shall return the amounts paid to
it by the Lenders in respect of such cost or expense.
10.8 Successor Administrative Agent. The
Administrative Agent may, and at the request of the
Requisite Lenders shall, resign as Administrative Agent
upon thirty (30) days' notice to the Lenders and Borrower.
If the Administrative Agent shall resign as Administrative
Agent under this Agreement, the Requisite Lenders shall
appoint from among the Lenders a successor
Administrative Agent for the Lenders, which successor
Administrative Agent shall be approved by Borrower (and
such approval shall not be unreasonably withheld or
delayed). If no successor Administrative Agent is
appointed prior to the effective date of the resignation of
the Administrative Agent, the Administrative Agent may
appoint, after consulting with the Lenders and the
Borrower, a successor Administrative Agent from among
the Lenders. Upon the acceptance of its appointment as
successor Administrative Agent hereunder, such successor
Administrative Agent shall succeed to all the rights,
powers and duties of the retiring Administrative Agent and
the term "Administrative Agent" shall mean such
successor Administrative Agent and the retiring
Administrative Agent's appointment, powers and duties as
Administrative Agent shall be terminated. After any
retiring Administrative Agent's resignation hereunder as
Administrative Agent, the provisions of this Article 10,
and Sections 11.3, 11.11 and 11.22, shall inure to its
benefit as to any actions taken or omitted to be taken by it
while it was Administrative Agent under this Agreement.
If (a) the Administrative Agent has not been paid its
agency fees under Section 3.6 or has not been reimbursed
for any expense reimbursable to it under Section 11.3, in
either case for a period of at least one (1) year and (b) no
successor Administrative Agent has accepted appointment
as Administrative Agent by the date which is thirty
(30) days following a retiring Administrative Agent's
notice of resignation, the retiring Administrative Agent's
resignation shall nevertheless thereupon become effective
and the Lenders shall perform all of the duties of the
Administrative Agent hereunder until such time, if any, as
the Requisite Lenders appoint a successor Administrative
Agent as provided for above.
10.9 Foreclosure on Collateral. In the event of
foreclosure or enforcement of the Lien created by any of
the Collateral Documents, title to the Collateral covered
thereby shall be taken and held by the Collateral Agent (or
an Affiliate or designee thereof) pro rata for the benefit of
the Lenders and the Revolver Lenders in accordance with
the Intercreditor Agreement and shall be administered in
accordance with the standard form of collateral holding
participation agreement used by the Collateral Agent in
comparable syndicated credit facilities.
10.10 No Obligations of Borrower. Nothing contained in
this Article 10 shall be deemed to impose upon Borrower
any obligation in respect of the due and punctual
performance by the Administrative Agent of its
obligations to the Lenders under any provision of this
Agreement, and Borrower shall have no liability to the
Administrative Agent or any of the Lenders in respect of
any failure by the Administrative Agent or any Lender to
perform any of its obligations to the Administrative Agent
or the Lenders under this Agreement. Without limiting the
generality of the foregoing, where any provision of this
Agreement relating to the payment of any amounts due
and owing under the Loan Documents provides that such
payments shall be made by Borrower to the
Administrative Agent for the account of the Lenders,
Borrower's obligations to the Lenders in respect of such
payments shall be deemed to be satisfied upon the making
of such payments to the Administrative Agent in the
manner provided by this Agreement.
Article 11
MISCELLANEOUS
11.1 Cumulative Remedies; No Waiver. The rights,
powers, privileges and remedies of the Administrative
Agent and the Lenders provided herein or in any Note or
other Loan Document are cumulative and not exclusive of
any right, power, privilege or remedy provided by Law or
equity. No failure or delay on the part of the
Administrative Agent or any Lender in exercising any
right, power, privilege or remedy may be, or may be
deemed to be, a waiver thereof; nor may any single or
partial exercise of any right, power, privilege or remedy
preclude any other or further exercise of the same or any
other right, power, privilege or remedy. The terms and
conditions of Article 8 hereof are inserted for the sole
benefit of the Administrative Agent and the Lenders; the
same may be waived in whole or in part, with or without
terms or conditions, in respect of any Loan or Letter of
Credit without prejudicing the Administrative Agent's or
the Lenders' rights to assert them in whole or in part in
respect of any other Loan.
11.2 Amendments; Consents. No amendment,
modification, supplement, extension, termination or
waiver of any provision of this Agreement or any other
Loan Document, no approval or consent thereunder, and
no consent to any departure by the Borrower or any other
Party therefrom, shall in any event be effective unless in
writing signed by the Requisite Lenders (and, in the case
of any amendment, modification or supplement of or to
any Loan Document to which the Borrower or any
Significant Subsidiary is a Party, signed by each such
Party, and, in the case of any amendment, modification or
supplement to Article 10, signed by the Administrative
Agent), and then only in the specific instance and for the
specific purpose given; and, without the approval in
writing of all the Lenders, no amendment, modification,
supplement, termination, waiver or consent may be
effective:
(a) To amend or modify the principal of, or the amount
of principal, principal prepayments or the rate of interest
payable on, any Note, or the amount of the Commitment
or the Pro Rata Share of any Lender or the amount of any
fee or amount payable to any Lender under the Loan
Documents or to waive an Event of Default consisting of
the failure of Borrower to pay when due principal, interest
or any fee;
(b) To postpone any date fixed for any payment of
principal of, prepayment of principal of or any installment
of interest on, any Note or any installment of any fee, or to
extend the term of the Commitment, or to release the
Subsidiary Guaranty (except with respect to any
Significant Subsidiary which is the subject of a
Disposition permitted hereunder);
(c) to release any material portion of the Collateral
except (i) as expressly provided for in Sections 11.25,
11.26 and 11.27 , (ii) as otherwise expressly provided for
in any Loan Document;
(d) To amend the provisions of the definition of
"Requisite Lenders", Articles 8 or 9 or this Section 11.2,
or
(e) To amend any provision of this Agreement that
expressly requires the consent or approval of all the
Lenders.
Any amendment, modification, supplement, termination,
waiver or consent pursuant to this Section 11.2 shall apply
equally to, and shall be binding upon, all the Lenders and
the Administrative Agent.
11.3 Costs, Expenses and Taxes. Borrower shall pay
within five (5) Banking Days after demand, accompanied
by an invoice therefor, the reasonable costs and expenses
of the Administrative Agent in connection with the
negotiation, preparation, syndication, execution and
delivery of the Loan Documents and any amendment
thereto or waiver thereof. Borrower shall also pay on
demand, accompanied by an invoice therefor, the
reasonable costs and expenses of the Administrative Agent
and the Lenders in connection with the refinancing,
restructuring, reorganization (including a bankruptcy
reorganization) and enforcement or attempted enforcement
of the Loan Documents, and any matter related thereto.
The foregoing costs and expenses shall include filing fees,
recording fees, title insurance fees, appraisal fees, search
fees, and other out-of-pocket expenses and the reasonable
fees and out-of-pocket expenses of any legal counsel
(including reasonably allocated costs of legal counsel
employed by the Administrative Agent or the Lenders (as
a group), independent public accountants and other
outside experts retained by the Administrative Agent or
the Lenders (as a group), whether or not such costs and
expenses are incurred or suffered by the Administrative
Agent or the Lenders (as a group) in connection with or
during the course of any bankruptcy or insolvency
proceedings of Borrower or any Subsidiary thereof. Such
costs and expenses shall also include, in the case of any
amendment or waiver of any Loan Document requested by
Borrower, the administrative costs of the Administrative
Agent reasonably attributable thereto. Borrower shall pay
any and all documentary and other taxes, excluding
(i) taxes imposed on or measured in whole or in part by its
overall net income, gross income or gross receipts and
franchise taxes imposed on it by (A) any jurisdiction (or
political subdivision thereof) in which it is organized or
maintains its principal office or Eurodollar Lending Office
or (B) any jurisdiction (or political subdivision thereof) in
which it is "doing business", (ii) any withholding taxes or
other taxes based on gross income imposed by the United
States of America (other than withholding taxes and taxes
based on gross income resulting from or attributable to
any change in any law, rule or regulation or any change in
the interpretation or administration of any law, rule or
regulation by any Governmental Agency) or (iii) any
withholding taxes or other taxes based on gross income
imposed by the United States of America for any period
with respect to which it has failed to provide Borrower
with the appropriate form or forms required by
Section 11.21, to the extent such forms are then required
by applicable Laws, and all costs, expenses, fees and
charges payable or determined to be payable in connection
with the filing or recording of this Agreement, any other
Loan Document or any other instrument or writing to be
delivered hereunder or thereunder, or in connection with
any transaction pursuant hereto or thereto, and shall
reimburse, hold harmless and indemnify on the terms set
forth in 11.11 the Administrative Agent and the Lenders
from and against any and all loss, liability or legal or other
expense with respect to or resulting from any delay in
paying or failure to pay any such tax, cost, expense, fee or
charge or that any of them may suffer or incur by reason
of the failure of any Party to perform any of its
Obligations. Any amount payable to the Administrative
Agent or any Lender under this Section 11.3 shall bear
interest from the second Banking Day following the date
of demand for payment at the Default Rate.
11.4 Nature of Lenders' Obligations. The obligations of
the Lenders hereunder are several and not joint or joint
and several. Nothing contained in this Agreement or any
other Loan Document and no action taken by the
Administrative Agent or the Lenders or any of them
pursuant hereto or thereto may, or may be deemed to,
make the Lenders a partnership, an association, a joint
venture or other entity, either among themselves or with
the Borrower or any Affiliate of any of Borrower. Each
Lender's obligation to make any Advance pursuant hereto
is several and not joint or joint and several, and in the case
of the initial Advance only is conditioned upon the
performance by all other Lenders of their obligations to
make initial Advances. A default by any Lender will not
increase the Pro Rata Share of the Commitment
attributable to any other Lender. Any Lender not in
default may, if it desires, assume in such proportion as the
nondefaulting Lenders agree the obligations of any Lender
in default, but is not obligated to do so. The
Administrative Agent agrees that it will use its best efforts
either to induce the other Lenders to assume the
obligations of a Lender in default or to obtain another
Lender, reasonably satisfactory to Borrower, to replace
such a Lender in default.
11.5 Survival of Representations and Warranties. All
representations and warranties contained herein or in any
other Loan Document, or in any certificate or other
writing delivered by or on behalf of any one or more of
the Parties to any Loan Document, will survive the making
of the Loans hereunder and the execution and delivery of
the Notes, and have been or will be relied upon by the
Administrative Agent and each Lender, notwithstanding
any investigation made by the Administrative Agent or
any Lender or on their behalf.
11.6 Notices. Except as otherwise expressly provided in
the Loan Documents, all notices, requests, demands,
directions and other communications provided for
hereunder or under any other Loan Document must be in
writing and must be mailed, telegraphed, telecopied,
dispatched by commercial courier or delivered to the
appropriate party at the address set forth on the signature
pages of this Agreement or other applicable Loan
Document or, as to any party to any Loan Document, at
any other address as may be designated by it in a written
notice sent to all other parties to such Loan Document in
accordance with this Section 11.6. Except as otherwise
expressly provided in any Loan Document, if any notice,
request, demand, direction or other communication
required or permitted by any Loan Document is given by
mail it will be effective on the earlier of receipt or the
fourth Banking Day after deposit in the United States mail
with first class or airmail postage prepaid; if given by
telegraph or cable, when delivered to the telegraph
company with charges prepaid; if given by telecopier,
when sent; if dispatched by commercial courier, on the
scheduled delivery date; or if given by personal delivery,
when delivered.
11.7 Execution of Loan Documents. Unless the
Administrative Agent otherwise specifies with respect to
any Loan Document, (a) this Agreement and any other
Loan Document may be executed in any number of
counterparts and any party hereto or thereto may execute
any counterpart, each of which when executed and
delivered will be deemed to be an original and all of
which counterparts of this Agreement or any other Loan
Document, as the case may be, when taken together will
be deemed to be but one and the same instrument and
(b) execution of any such counterpart may be evidenced
by a telecopier transmission of the signature of such party.
The execution of this Agreement or any other Loan
Document by any party hereto or thereto will not become
effective until counterparts hereof or thereof, as the case
may be, have been executed by all the parties hereto or
thereto.
11.8 Binding Effect; Assignment.
(a) This Agreement and the other Loan Documents to
which Borrower is a Party will be binding upon and inure
to the benefit of Borrower, the Administrative Agent, each
of the Lenders, and their respective successors and
assigns, except that, except as permitted in Section 6.3,
Borrower may not assign its rights hereunder or
thereunder or any interest herein or therein without the
prior written consent of all the Lenders. Each Lender
represents that it is not acquiring its Note with a view to
the distribution thereof within the meaning of the
Securities Act of 1933, as amended (subject to any
requirement that disposition of such Note must be within
the control of such Lender). Any Lender may at any time
pledge its Note or any other instrument evidencing its
rights as a Lender under this Agreement to a Federal
Reserve Bank, but no such pledge shall release that
Lender from its obligations hereunder or grant to such
Federal Reserve Bank the rights of a Lender hereunder
absent foreclosure of such pledge.
(b) From time to time following the Closing Date, each
Lender may assign to one or more Eligible Assignees all
or any portion of its Pro Rata Share of the Commitment;
provided that (i) such Eligible Assignee, if not then a
Lender or an Affiliate or Related Fund of the assigning
Lender, shall be approved by the Administrative Agent
and Borrower (neither of which approvals shall be
unreasonably withheld or delayed), (ii) such assignment
shall be evidenced by a Commitment Assignment and
Acceptance, a copy of which shall be furnished to the
Administrative Agent as hereinbelow provided, (iii) except
in the case of an assignment to an Affiliate or Related
Fund of the assigning Lender, to another Lender or of the
entire remaining Commitment of the assigning Lender, the
assignment shall not assign a Pro Rata Share of the
Commitment that is equivalent to less than $3,000,000 and
(iv) the effective date of any such assignment shall be as
specified in the Commitment Assignment and Acceptance,
but not earlier than the date which is five (5) Banking
Days after the date the Administrative Agent has received
the Commitment Assignment and Acceptance. For
purposes of this Section 11.8, a "Related Fund" shall
mean, with respect to any Lender that is a fund that invests
in bank loans, any other fund that invests in bank loans
which is managed or advised by the same investment
advisor as such Lender or by an Affiliate of such
investment advisor. Upon the effective date of such
Commitment Assignment and Acceptance, the Eligible
Assignee named therein shall be a Lender for all purposes
of this Agreement, with the Pro Rata Share of the
Commitment therein set forth and, to the extent of such
Pro Rata Share, the assigning Lender shall be released
from its further obligations under this Agreement.
Borrower agrees that it shall execute and deliver (against
delivery by the assigning Lender to Borrower of its Note)
to such assignee Lender, a Note evidencing that assignee
Lender's Pro Rata Share of the Commitment, and to the
assigning Lender, a Note evidencing the remaining
balance Pro Rata Share retained by the assigning Lender.
(c) By executing and delivering a Commitment
Assignment and Acceptance, the Eligible Assignee
thereunder acknowledges and agrees that: (i) other than
the representation and warranty that it is the legal and
beneficial owner of the Pro Rata Share of the Commitment
being assigned thereby free and clear of any adverse
claim, the assigning Lender has made no representation or
warranty and assumes no responsibility with respect to
any statements, warranties or representations made in or in
connection with this Agreement or the execution, legality,
validity, enforceability, genuineness or sufficiency of this
Agreement or any other Loan Document; (ii) the assigning
Lender has made no representation or warranty and
assumes no responsibility with respect to the financial
condition of Borrower or the performance by Borrower of
the Obligations; (iii) it has received a copy of this
Agreement, together with copies of the most recent
financial statements delivered pursuant to Section 7.1 and
such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to
enter into such Commitment Assignment and Acceptance;
(iv) it will, independently and without reliance upon the
Administrative Agent or any Lender and based on such
documents and information as it shall deem appropriate at
the time, continue to make its own credit decisions in
taking or not taking action under this Agreement; (v) it
appoints and authorizes the Administrative Agent to take
such action and to exercise such powers under this
Agreement as are delegated to the Administrative Agent
by this Agreement; and (vi) it will perform in accordance
with their terms all of the obligations which by the terms
of this Agreement are required to be performed by it as a
Lender.
(d) The Administrative Agent shall maintain at the
Administrative Agent's Office a copy of each Commitment
Assignment and Acceptance delivered to it and a register
(the "Register") of the names and address of each of the
Lenders and the Pro Rata Share of the Commitment held
by each Lender, giving effect to each Commitment
Assignment and Acceptance. The Register shall be
available during normal business hours for inspection by
Borrower or any Lender upon reasonable prior notice to
the Administrative Agent. After receipt of a completed
Commitment Assignment and Acceptance executed by any
Lender and an Eligible Assignee, and receipt of an
assignment fee of $2,500 from such Lender or Eligible
Assignee, the Administrative Agent shall, promptly
following the effective date thereof, provide to Borrower
and the Lenders a revised Schedule 1.1 giving effect
thereto. Borrower, the Administrative Agent and the
Lenders shall deem and treat the Persons listed as Lenders
in the Register as the holders and owners of the Pro Rata
Share of the Commitment listed therein for all purposes
hereof, and no assignment or transfer of any such Pro Rata
Share of the Commitment shall be effective, in each case
unless and until a Commitment Assignment and
Acceptance effecting the assignment or transfer thereof
shall have been accepted by the Administrative Agent and
recorded in the Register as provided above. Prior to such
recordation, all amounts owed with respect to the
applicable Pro Rata Share of the Commitment shall be
owed to the Lender listed in the Register as the owner
thereof, and any request, authority or consent of any
Person who, at the time of making such request or giving
such authority or consent, is listed in the Register as a
Lender shall be conclusive and binding on any subsequent
holder, assignee or transferee of the corresponding Pro
Rata Share of the Commitment.
(e) Each Lender may from time to time grant
participations to one or more lenders or other financial
institutions (including another Lender) in a portion of its
Pro Rata Share of the Commitment; provided, however,
that (i) such Lender's obligations under this Agreement
shall remain unchanged, (ii) such Lender shall remain
solely responsible to the other parties hereto for the
performance of such obligations, (iii) the participating
lenders or other financial institutions shall not be a Lender
hereunder for any purpose except, if the participation
agreement so provides, for the purposes of Sections 3.5,
3.6, 11.11 and 11.22 but only to the extent that the cost of
such benefits to Borrower do not exceed the cost which
Borrower would have incurred in respect of such Lender
absent the participation, (iv) Borrower, the Administrative
Agent and the other Lenders shall continue to deal solely
and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement,
(v) the participation interest shall be expressed as a
percentage of the granting Lender's Pro Rata Share of the
Commitment as it then exists and shall not restrict an
increase in the Commitment, or in the granting Lender's
Pro Rata Share of the Commitment, so long as the amount
of the participation interest is not affected thereby and
(vi) the consent of the holder of such participation interest
shall not be required for amendments or waivers of
provisions of the Loan Documents other than those which
(A) extend any Amortization Date, the Maturity Date or
any other date upon which any payment of money is due
to the Lenders, (B) reduce the rate of interest on the
Notes, any fee or any other monetary amount payable to
the Lenders, (C) reduce the amount of any installment of
principal due under the Notes, or (D) release any material
portion of the Collateral (except as otherwise expressly
provided for in any Loan Document).
(f) Notwithstanding anything in this Section 11.8 to
the contrary, the rights of the Lenders to make
assignments of, and grant participations in, their Pro Rata
Shares of the Commitment shall be subject to the approval
of any Gaming Board, to the extent required by applicable
Gaming Laws, and to compliance with applicable
securities laws.
11.9 Right of Setoff. If an Event of Default has occurred
and is continuing, the Administrative Agent may exercise
its rights under Article 9 of the Uniform Commercial Code
and other applicable Laws and the Administrative Agent
or any Lender may (but only with the consent of the
Requisite Lenders) to the extent permitted by applicable
Laws, apply any funds in any deposit account maintained
with it by Borrower and/or any Property of Borrower in its
possession against the Obligations.
11.10 Sharing of Setoffs. Each Lender severally agrees
that if it, through the exercise of any right of setoff,
banker's lien or counterclaim against Borrower, or
otherwise, receives payment of the Obligations held by it
that is ratably more than any other Lender, through any
means, receives in payment of the Obligations held by that
Lender, then, subject to applicable Laws: (a) the Lender
exercising the right of setoff, banker's lien or counterclaim
or otherwise receiving such payment shall purchase, and
shall be deemed to have simultaneously purchased, from
the other Lender a participation in the Obligations held by
the other Lender and shall pay to the other Lender a
purchase price in an amount so that the share of the
Obligations held by each Lender after the exercise of the
right of setoff, banker's lien or counterclaim or receipt of
payment shall be in the same proportion that existed prior
to the exercise of the right of setoff, banker's lien or
counterclaim or receipt of payment; and (b) such other
adjustments and purchases of participations shall be made
from time to time as shall be equitable to ensure that all of
the Lenders share any payment obtained in respect of the
Obligations ratably in accordance with each Lender's share
of the Obligations immediately prior to, and without
taking into account, the payment; provided that, if all or
any portion of a disproportionate payment obtained as a
result of the exercise of the right of setoff, banker's lien,
counterclaim or otherwise is thereafter recovered from the
purchasing Lender by Borrower or any Person claiming
through or succeeding to the rights of Borrower, the
purchase of a participation shall be rescinded and the
purchase price thereof shall be restored to the extent of the
recovery, but without interest. Each Lender that purchases
a participation in the Obligations pursuant to this
Section 11.10 shall from and after the purchase have the
right to give all notices, requests, demands, directions and
other communications under this Agreement with respect
to the portion of the Obligations purchased to the same
extent as though the purchasing Lender were the original
owner of the Obligations purchased. Borrower expressly
consent to the foregoing arrangements and agree that any
Lender holding a participation in an Obligation so
purchased may exercise any and all rights of setoff,
banker's lien or counterclaim with respect to the
participation as fully as if the Lender were the original
owner of the Obligation purchased.
11.11 Indemnity by Borrower. Borrower agrees to
indemnify, save and hold harmless the Administrative
Agent and each Lender and their directors, officers,
agents, attorneys and employees (collectively the
"Indemnitees") from and against: (a) any and all claims,
demands, actions or causes of action (except a claim,
demand, action, or cause of action for any amount
excluded from the definition of "Taxes" in
Section 3.12(d)) if the claim, demand, action or cause of
action arises out of or relates to any act or omission (or
alleged act or omission) of Borrower, its Affiliates or any
of its officers, directors or stockholders relating to the
Commitment, the use or contemplated use of proceeds of
any Loan, or the relationship of Borrower and the Lenders
under this Agreement; (b) any administrative or
investigative proceeding by any Governmental Agency
arising out of or related to a claim, demand, action or
cause of action described in clause (a) above; and (c) any
and all liabilities, losses, costs or expenses (including
reasonable attorneys' fees and the reasonably allocated
costs of attorneys employed by any Indemnitee and
disbursements of such attorneys and other professional
services) that any Indemnitee suffers or incurs as a result
of the assertion of any foregoing claim, demand, action or
cause of action; provided that no Indemnitee shall be
entitled to indemnification for any loss caused by its own
gross negligence or willful misconduct or for any loss
asserted against it by another Indemnitee. If any claim,
demand, action or cause of action is asserted against any
Indemnitee, such Indemnitee shall promptly notify
Borrower, but the failure to so promptly notify Borrower
shall not affect Borrower's obligations under this Section
unless such failure materially prejudices Borrower's rights
to participate in the contest of such claim, demand, action
or cause of action, as hereinafter provided. Such
Indemnitee may (and shall, if requested by Borrower in
writing) contest the validity, applicability and amount of
such claim, demand, action or cause of action and shall
permit Borrower to participate in such contest. Any
Indemnitee that proposes to settle or compromise any
claim or proceeding for which Borrower may be liable for
payment of indemnity hereunder shall give Borrower
written notice of the terms of such proposed settlement or
compromise reasonably in advance of settling or
compromising such claim or proceeding and shall obtain
Borrower's prior consent (which shall not be unreasonably
withheld or delayed). In connection with any claim,
demand, action or cause of action covered by this
Section 11.11 against more than one Indemnitee, all such
Indemnitees shall be represented by the same legal counsel
(which may be a law firm engaged by the Indemnitees or
attorneys employed by an Indemnitee or a combination of
the foregoing) selected by the Indemnitees and reasonably
acceptable to Borrower; provided, that if such legal
counsel determines in good faith that representing all such
Indemnitees would or could result in a conflict of interest
under Laws or ethical principles applicable to such legal
counsel or that a defense or counterclaim is available to an
Indemnitee that is not available to all such Indemnitees,
then to the extent reasonably necessary to avoid such a
conflict of interest or to permit unqualified assertion of
such a defense or counterclaim, each Indemnitee shall be
entitled to separate representation by legal counsel
selected by that Indemnitee and reasonably acceptable to
Borrower, with all such legal counsel using reasonable
efforts to avoid unnecessary duplication of effort by
counsel for all Indemnitees; and further provided that the
Administrative Agent (as an Indemnitee) shall at all times
be entitled to representation by separate legal counsel
(which may be a law firm or attorneys employed by the
Administrative Agent or a combination of the foregoing).
Any obligation or liability of Borrower to any Indemnitee
under this Section 11.11 shall survive the expiration or
termination of this Agreement and the repayment of all
Loans and the payment and performance of all other
Obligations owed to the Lenders.
11.12 Nonliability of the Lenders. Borrower
acknowledges and agrees that:
(a) Any inspections of any Property of Borrower made
by or through the Administrative Agent or the Lenders are
for purposes of administration of the Loan only and
Borrower is not entitled to rely upon the same (whether or
not such inspections are at the expense of Borrower);
(b) By accepting or approving anything required to be
observed, performed, fulfilled or given to the
Administrative Agent or the Lenders pursuant to the Loan
Documents, neither the Administrative Agent nor the
Lenders shall be deemed to have warranted or represented
the sufficiency, legality, effectiveness or legal effect of the
same, or of any term, provision or condition thereof, and
such acceptance or approval thereof shall not constitute a
warranty or representation to anyone with respect thereto
by the Administrative Agent or the Lenders;
(c) The relationship between Borrower and the
Administrative Agent and the Lenders is, and shall at all
times remain, solely that of Borrower and the Lenders;
neither the Administrative Agent nor the Lenders shall
under any circumstance be construed to be partners or
joint venturers of Borrower or its Affiliates; neither the
Administrative Agent nor the Lenders shall under any
circumstance be deemed to be in a relationship of
confidence or trust or a fiduciary relationship with
Borrower or its Affiliates, or to owe any fiduciary duty to
Borrower or its Affiliates; neither the Administrative
Agent nor the Lenders undertake or assume any
responsibility or duty to Borrower or its Affiliates to
select, review, inspect, supervise, pass judgment upon or
inform Borrower or its Affiliates of any matter in
connection with their Property or the operations of
Borrower or its Affiliates; Borrower and its Affiliates shall
rely entirely upon their own judgment with respect to such
matters; and any review, inspection, supervision, exercise
of judgment or supply of information undertaken or
assumed by the Administrative Agent or the Lenders in
connection with such matters is solely for the protection of
the Administrative Agent and the Lenders and neither
Borrower nor any other Person is entitled to rely thereon;
and
(d) The Administrative Agent and the Lenders shall not
be responsible or liable to any Person for any loss,
damage, liability or claim of any kind relating to injury or
death to Persons or damage to Property caused by the
actions, inaction or negligence of Borrower and/or its
Affiliates and Borrower hereby indemnifies and holds the
Administrative Agent and the Lenders harmless on the
terms set forth in Section 11.11 from any such loss,
damage, liability or claim.
11.13 No Third Parties Benefited. This Agreement is
made for the purpose of defining and setting forth certain
obligations, rights and duties of Borrower, the
Administrative Agent and the Lenders in connection with
the Loans, and is made for the sole benefit of Borrower,
the Administrative Agent and the Lenders, and the
Administrative Agent's and the Lenders' successors and
assigns. Except as provided in Sections 11.8 and 11.11,
no other Person shall have any rights of any nature
hereunder or by reason hereof.
11.14 Confidentiality. Each Lender agrees to hold any
confidential information that it may receive from
Borrower pursuant to this Agreement in confidence,
except for disclosure: (a) to an Affiliate of that Lender
provided that the recipient has accepted such information
subject to a confidentiality agreement substantially similar
to this Section 11.14, (b) to other Lenders; (c) to legal
counsel and accountants for Borrower or any Lender;
(d) to other professional advisors to Borrower or any
Lender, provided that the recipient has accepted such
information subject to a confidentiality agreement
substantially similar to this Section 11.14; (e) to regulatory
officials having jurisdiction over that Lender; (f) to any
Gaming Board having regulatory jurisdiction over
Borrower or its Subsidiaries, provided that each Lender
agrees to use its best efforts to notify Borrower of any
such disclosure unless prohibited by applicable Laws;
(g) as required by Law or legal process or in connection
with any legal proceeding to which that Lender and
Borrower are adverse parties; and (h) to another financial
institution in connection with a disposition or proposed
disposition to that financial institution of all or part of that
Lender's interests hereunder or a participation interest in
its Note, provided that the recipient has accepted such
information subject to a confidentiality agreement
substantially similar to this Section 11.14. For purposes
of the foregoing, "confidential information" shall mean
any information respecting Borrower or its Subsidiaries
reasonably considered by Borrower to be confidential,
other than (i) information previously filed with any
Governmental Agency and available to the public,
(ii) information previously published in any public
medium from a source other than, directly or indirectly,
that Lender, and (iii) information previously disclosed by
Borrower to any Person not associated with Borrower
without a confidentiality agreement or obligation
substantially similar to this Section 11.14. Nothing in this
Section shall be construed to create or give rise to any
fiduciary duty on the part of the Administrative Agent or
the Lenders to Borrower.
11.15 Further Assurances. Borrower and the Significant
Subsidiaries shall, at their expense and without expense to
the Lenders or the Administrative Agent, do, execute and
deliver such further acts and documents as the Requisite
Lenders or the Administrative Agent from time to time
reasonably require for the assuring and confirming unto
the Lenders or the Administrative Agent of the rights
hereby created or intended now or hereafter so to be, or
for carrying out the intention or facilitating the
performance of the terms of any Loan Document.
11.16 Integration. This Agreement, together with the
other Loan Documents and the letter agreements referred
to in Sections 3.2, 3.3 and 3.4, comprises the complete and
integrated agreement of the parties on the subject matter
hereof and supersedes all prior agreements, written or oral,
on the subject matter hereof. In the event of any conflict
between the provisions of this Agreement and those of any
other Loan Document, the provisions of this Agreement
shall control and govern; provided that the inclusion of
supplemental rights or remedies in favor of the
Administrative Agent or the Lenders in any other Loan
Document shall not be deemed a conflict with this
Agreement. Each Loan Document was drafted with the
joint participation of the respective parties thereto and
shall be construed neither against nor in favor of any
party, but rather in accordance with the fair meaning
thereof.
11.17 Governing Law. Except to the extent otherwise
provided therein, each Loan Document shall be governed
by, and construed and enforced in accordance with, the
local Laws of California.
11.18 Severability of Provisions. Any provision in any
Loan Document that is held to be inoperative,
unenforceable or invalid as to any party or in any
jurisdiction shall, as to that party or jurisdiction, be
inoperative, unenforceable or invalid without affecting the
remaining provisions or the operation, enforceability or
validity of that provision as to any other party or in any
other jurisdiction, and to this end the provisions of all
Loan Documents are declared to be severable.
11.19 Headings. Article and Section headings in this
Agreement and the other Loan Documents are included for
convenience of reference only and are not part of this
Agreement or the other Loan Documents for any other
purpose.
11.20 Time of the Essence. Time is of the essence of the
Loan Documents.
11.21 Foreign Lenders and Participants. Each Lender
that is incorporated or otherwise organized under the Laws
of a jurisdiction other than the United States of America or
any State thereof or the District of Columbia shall deliver
to Borrower (with a copy to the Administrative Agent),
within twenty (20) days after the Closing Date (or after
accepting an assignment or receiving a participation
interest herein pursuant to Section 11.8, if applicable) two
duly completed copies, signed by a Responsible Official,
of either Form 1001 (relating to such Lender and entitling
it to a complete exemption from withholding on all
payments to be made to such Lender by Borrower
pursuant to this Agreement) or Form 4224 (relating to all
payments to be made to such Lender by the Borrower
pursuant to this Agreement) of the United States Internal
Revenue Service or such other evidence (including, if
reasonably necessary, Form W-9) satisfactory to Borrower
and the Administrative Agent that no withholding under
the federal income tax laws is required with respect to
such Lender; provided that it is expressly acknowledged
and agreed that a Lender that is not a "bank" for purposes
of Section 881(c) of the Code and that is claiming
exemption from U.S. federal withholding tax under
Section 871(h) or 881(c) of the Code with respect to
payments of "portfolio interest" may, for purposes of
satisfying the foregoing requirement, deliver a Form W-8,
or any subsequent versions thereof or successors thereto
(and, if such Lender delivers a Form W-8, a certificate
representing that such Lender is not a "bank" for purposes
of Section 881(c) of the Code, is not a 10-percent
shareholder (within the meaning of Section 871(h)(3)(B)
of the Code) of Borrower and is not a controlled foreign
corporation related to Borrower (within the meaning of
Section 864(d)(4) of the Code)). Thereafter and from time
to time, each such Lender shall (a) promptly submit to
Borrower (with a copy to the Administrative Agent), such
additional duly completed and signed copies of one of
such forms (or such successor forms as shall be adopted
from time to time by the relevant United States taxing
authorities) as may then be available under then current
United States laws and regulations to avoid, or such
evidence as is satisfactory to Borrower and the
Administrative Agent of any available exemption from,
United States withholding taxes in respect of all payments
to be made to such Lender by Borrower pursuant to this
Agreement and (b) take such steps as shall not be
materially disadvantageous to it, in the reasonable
judgment of such Lender, and as may be reasonably
necessary (including the re-designation of its Eurodollar
Lending Office, if any) to avoid any requirement of
applicable Laws that Borrower makes any deduction or
withholding for taxes from amounts payable to such
Lender. In the event that Borrower or the Administrative
Agent become aware that a participation has been granted
pursuant to Section 11.8(e) to a financial institution that is
incorporated or otherwise organized under the Laws of a
jurisdiction other than the United States of America, any
State thereof or the District of Columbia, then, upon
request made by Borrower or the Administrative Agent to
the Lender which granted such participation, such Lender
shall cause such participant financial institution to deliver
the same documents and information to Borrower and the
Administrative Agent as would be required under this
Section if such financial institution were a Lender.
11.22 Hazardous Material Indemnity. Borrower hereby
agrees to indemnify, hold harmless and defend (by counsel
reasonably satisfactory to the Administrative Agent) the
Administrative Agent and each of the Lenders and their
respective directors, officers, employees, agents,
successors and assigns from and against any and all
claims, losses, damages, liabilities, fines, penalties,
charges, administrative and judicial proceedings and
orders, judgments, remedial action requirements,
enforcement actions of any kind, and all costs and
expenses incurred in connection therewith (including but
not limited to reasonable attorneys' fees and the
reasonably allocated costs of attorneys employed by the
Administrative Agent or any Lender, and expenses to the
extent that the defense of any such action has not been
assumed by Borrower), arising directly or indirectly out of
(i) the presence on, in, under or about any Real Property
of any Hazardous Materials, or any releases or discharges
of any Hazardous Materials on, under or from any Real
Property and (ii) any activity carried on or undertaken on
or off any Real Property by Borrower or any of its
predecessors in title, whether prior to or during the term of
this Agreement, and whether by Borrower or any
predecessor in title or any employees, agents, contractors
or subcontractors of Borrower or any predecessor in title,
or any third persons at any time occupying or present on
any Real Property, in connection with the handling,
treatment, removal, storage, decontamination, clean-up,
transport or disposal of any Hazardous Materials at any
time located or present on, in, under or about any Real
Property. The foregoing indemnity shall further apply to
any residual contamination on, in, under or about any Real
Property, or affecting any natural resources, and to any
contamination of any Property or natural resources arising
in connection with the generation, use, handling, storage,
transport or disposal of any such Hazardous Materials, and
irrespective of whether any of such activities were or will
be undertaken in accordance with applicable Laws, but the
foregoing indemnity shall not apply to Hazardous
Materials on any Real Property, the presence of which is
caused by the Administrative Agent or the Lenders.
Borrower hereby acknowledges and agrees that,
notwithstanding any other provision of this Agreement or
any of the other Loan Documents to the contrary, the
obligations of Borrower under this Section (and under
Sections 4.18 and 5.14) shall be unlimited corporate
obligations of Borrower and shall not be secured by any
deed of trust on any Real Property. Any obligation or
liability of Borrower to any Indemnitee under this
Section 11.22 shall survive the expiration or termination
of this Agreement and the repayment of all Loans and the
payment and performance of all other Obligations owed to
the Lenders.
11.23 Gaming Boards. The Administrative Agent and
each of the Lenders agree to cooperate with all Gaming
Boards in connection with the administration of their
regulatory jurisdiction over Borrower and its Subsidiaries,
including the provision of such documents or other
information as may be requested by any such Gaming
Board relating to Borrower or any of its Subsidiaries or to
the Loan Documents.
11.24 Removal of a Lender. Borrower shall have the
right to remove a Lender as a party to this Agreement in
accordance with this Section (a) under the circumstances
set forth in Sections 3.5, 3.6 and 3.10(d) or if any
participant permitted by Section 11.8(e) with respect to
such Lender makes a claim for payment under any of such
Sections and (b) if such Lender is the subject of a Lender
Disqualification provided that no Default or Event of
Default then exists. If Borrower is so entitled to remove a
Lender pursuant to this Section, upon notice from
Borrower, the Lender being removed shall execute and
deliver a Commitment Assignment and Acceptance
covering that Lender's Pro Rata Share of the Commitment
in favor of one or more Eligible Assignees designated by
Borrower (and acceptable to the Administrative Agent,
which acceptance shall not be unreasonably delayed or
withheld), subject to payment of a purchase price by such
Eligible Assignee equal to all principal and accrued
interest, fees and other amounts payable to such Lender
under this Agreement through the date of assignment.
11.25 Release of Tropicana Collateral. In the event that
the ▇▇▇▇▇ Transaction is effected such that, pursuant to
Section 5.10, the TEGP Property becomes subject to the
Lien of the Collateral Documents, such Lien may be
released (so long as no Event of Default then exists under
this Agreement or the Amended Revolver) with the written
approval of (a) the Requisite Lenders and (b) the Requisite
Lenders under the Amended Revolver.
11.26 Termination; Release of Liens. Upon (a) the
expiration or termination of the Commitment, (b) the full
and final payment in Cash of the Loans, all interest and
fees with respect thereto, (c) the payment of all amounts
then demanded by any Lender or indemnitee under
Sections 3.5, 3.6, 11.11 and 11.22 and (d) the payment of
all other amounts then due under the Loan Documents, the
Administrative Agent is hereby authorized by the Lenders
to, and the Administrative Agent shall, upon the request of
Borrower, execute and deliver to Borrower discharges
from further compliance with the covenants contained in
Articles 5, 6 and 7 and releases of the Liens created by the
Collateral Documents, and shall return any Property
pledged to the Administrative Agent as Collateral for the
Obligations, notwithstanding the survival of any
provisions of this Agreement herein provided for.
11.27 Other Lien Releases. In addition to the provisions
of Section 11.25, each of the Lenders hereby authorizes
the Administrative Agent to, and the Administrative Agent
shall, release any Lien granted to or held by the
Administrative Agent upon any Collateral (i) sold,
transferred or otherwise disposed of in connection with
any transaction not prohibited by the Loan Documents,
(ii) constituting Property leased to Borrower or its
Subsidiaries under a lease which has expired or been
terminated in a transaction not prohibited by the Loan
Documents or which will concurrently expire and which
has not been, and is not intended by Borrower or the
relevant Subsidiary to be, renewed or extended,
(iii) consisting of an instrument, if the Indebtedness
evidenced by such instrument has been finally repaid in
full and (iv) if approved or consented to by those of the
Lenders required by Section 11.2 or Section 11.25. If the
Collateral so released consists of capital stock of a
Significant Subsidiary, then the Administrative Agent shall
concurrently also release such Significant Subsidiary from
its obligations under the Subsidiary Guaranty. Upon the
request of the Administrative Agent, each Lender shall
promptly provide written confirmation of the authority of
the Administrative Agent to release such Liens upon any
one or more items of Collateral under this Section.
11.28 Waiver of Right to Trial by Jury. EACH PARTY
TO THIS AGREEMENT HEREBY EXPRESSLY
WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION
ARISING UNDER ANY LOAN DOCUMENT OR IN
ANY WAY CONNECTED WITH OR RELATED OR
INCIDENTAL TO THE DEALINGS OF THE PARTY
HERETO OR ANY OF THEM WITH RESPECT TO
ANY LOAN DOCUMENT, OR THE TRANSACTIONS
RELATED THERETO, IN EACH CASE WHETHER
NOW EXISTING OR HEREAFTER ARISING, AND
WHETHER SOUNDING IN CONTRACT OR TORT OR
OTHERWISE; AND EACH PARTY HEREBY AGREES
AND CONSENTS THAT ANY SUCH CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION SHALL
BE DECIDED BY COURT TRIAL WITHOUT A JURY,
AND THAT ANY PARTY TO THIS AGREEMENT
MAY FILE AN ORIGINAL COUNTERPART OR A
COPY OF THIS SECTION WITH ANY COURT AS
WRITTEN EVIDENCE OF THE CONSENT OF THE
SIGNATORIES HERETO TO THE WAIVER OF THEIR
RIGHT TO TRIAL BY JURY.
11.29 Purported Oral Amendments. BORROWER
EXPRESSLY ACKNOWLEDGES THAT THIS
AGREEMENT AND THE OTHER LOAN
DOCUMENTS MAY ONLY BE AMENDED OR
MODIFIED, OR THE PROVISIONS HEREOF OR
THEREOF WAIVED OR SUPPLEMENTED, BY AN
INSTRUMENT IN WRITING THAT COMPLIES WITH
SECTION 11.2. BORROWER AGREES THAT IT WILL
NOT RELY ON ANY COURSE OF DEALING,
COURSE OF PERFORMANCE, OR ORAL OR
WRITTEN STATEMENTS BY ANY
REPRESENTATIVE OF THE ADMINISTRATIVE
AGENT OR ANY LENDER THAT DOES NOT
COMPLY WITH SECTION 11.2 TO EFFECT AN
AMENDMENT, MODIFICATION, WAIVER OR
SUPPLEMENT TO THIS AGREEMENT OR THE
OTHER LOAN DOCUMENTS.
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed as of the date first
above written.
AZTAR CORPORATION
By: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Treasurer
Address:
Aztar Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Treasurer
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Administrative Agent
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Vice President
Address:
Bank of America National Trust and Savings Association
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, 11th Floor, #20529
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Vice President
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as a Lender
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Attorney-In-Fact
Address:
Bank of America National Trust and Savings Association
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
Bank of America National Trust and Savings Association
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
ARCHIMEDES FUNDING, L.L.C., as a Lender
By: ING Capital Advisors, Inc., as Collateral Manager
By ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Senior Vice President
Address:
Archimedes Funding, L.L.C.
c/o ING Capital Advisors, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇, Vice President and Portfolio Manager
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
DEEPROCK & COMPANY, as a Lender
By: ▇▇▇▇▇ ▇▇▇▇▇ Management,
as Investment Advisor
By PAYSON ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Vice President
[Printed Name and Title]
Address:
State Street Bank & Trust Company
Corporate Trust Division
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ or (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
and
▇▇▇▇▇ ▇▇▇▇▇ Management
Attention: Prime Rate Reserves
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
EXHIBIT A
COMMITMENT ASSIGNMENT AND ACCEPTANCE
This COMMITMENT ASSIGNMENT AND
ACCEPTANCE ("Assignment") dated as of ____________, ____ is made
with reference to that certain Term Loan Agreement dated as of May 28, 1998
(as amended, extended, renewed, supplemented or otherwise modified from
time to time, the "Loan Agreement") by and among Aztar Corporation, a
Delaware corporation, ("Borrower"), the lenders from time to time party
thereto (the "Lenders"), and Bank of America National Trust and Savings
Association, as Administrative Agent for itself and for the Lenders.
This Assignment is entered into between
_________________________, the "Assignor" in its capacity as a Lender
under the Loan Agreement and ____________________________, the
"Assignee." The Assignor and Assignee hereby represent, warrant and agree
as follows:
1. Definitions. Capitalized terms used but otherwise not
defined herein shall have the respective meanings assigned to them in
the Loan Agreement. In addition, as used in this Assignment, the
following capitalized terms shall have the meanings set forth below:
"Assigned Pro Rata Share" means that interest in and to all
the Assignor's rights and obligations under the Loan Agreement as of
the date hereof which represents the percentage interest specified in
Item 2 of Schedule A to this Assignment.
"Effective Date" means the effective date of this Assignment
as determined in accordance with Section 10 of this Assignment.
2. Representations and Warranties of the Assignor. The
Assignor represents and warrants as follows:
(a) The Assignor is the legal and beneficial
owner of the Assigned Pro Rata Share. The Assigned Pro Rata Share
is free and clear of any adverse claim.
(b) The Assignor has full power and
authority, and has taken all action necessary, to execute and deliver
this Assignment and any and all other documents required to be executed
by it in connection with this Assignment and to fulfill its obligations
under, and to consummate the transactions contemplated by this Assignment,
and no governmental authorizations or other authorizations are required
in connection herewith.
(c) This Assignment constitutes the legal,
valid and binding obligation of the Assignor.
(d) The Assignor makes no representation or
warranty other than those expressly set forth above and assumes no
responsibility with respect to the financial condition of the Borrower
or its Subsidiaries or the performance by Borrower or its Subsidiaries
of its obligations under the Loan Agreement and the other Loan Documents,
and assumes no responsibility with respect to any statements, warranties
or representations made in or in connection with the Loan Agreement or
the execution, legality, validity, enforceability, genuineness, or
sufficiency the Loan Agreement or any other Loan Document referred to
therein.
3. Representations and Warranties of the Assignee. The
Assignee represents and warrants as follows:
(a) The Assignee has full power and
authority, and has taken all action necessary, to execute and deliver
this Assignment and any and all other documents required to be executed
by it in connection with this Assignment and to fulfill its obligations
under, and to consummate the transactions contemplated by this Assignment,
and no governmental authorizations or other authorizations are required
in connection herewith.
(b) The Assignee has independently and
without reliance upon the Administrative Agent or the Assignor and based on
such documents and information as the Assignee has deemed appropriate,
made its own credit analysis and decision to enter into this Assignment.
The Assignee will, independently and without reliance upon the Administrative
Agent or any Lender, and based upon such documents and information as it
shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under the Loan Agreement.
(c) The Assignee has received copies of the
Loan Agreement together with copies of the financial statements referred to
therein and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Assignment.
(d) The Assignee is an Eligible Assignee.
(e) The Assignee will perform in accordance
with their respective terms all of the obligations which, by the terms of the
Loan Agreement, are required to be performed by it as a Lender.
(f) This Assignment constitutes the legal,
valid and binding obligation of the Assignor.
4. Assignment. On the terms set forth herein, the Assignor, as
of the Effective Date, hereby irrevocably sells, and assigns and transfers
to the Assignee all of the rights and obligations of the Assignor under
the Loan Agreement, the other Loan Documents and Assignor's Note to the
extent of the Assigned Pro Rata Share, and the Assignee irrevocably accepts
such assignment of the rights and assumes such obligations from the
Assignor on such terms as of the Effective Date. As of the Effective Date,
the Assignee shall have the rights and obligations of a "Lender" under the
Loan Documents, and the Assignor shall to the extent provided in this
Assignment relinquish such rights and interest and be released from such
liabilities, duties and obligations under the Loan Documents . The Assignee
hereby appoints and authorizes the Administrative Agent, to take such action
and to exercise such powers as delegated to the Administrative Agent as
are delegated by the Loan Agreement.
5. Payments.
(a) As of the Effective Date, the Assignee
shall pay to the Assignor, in immediately available funds, an amount equal
to the outstanding indebtedness owed to it by the Borrower under the Loan
Agreement with respect to the Assigned Pro Rata Share.
(b) From and after the Effective Date, the
Administrative Agent shall make all payments under the Loan Agreement in
respect of the Assigned Pro Rata Share (including without limitation, all
payments of principal, interest and fees, if applicable, with respect to
thereto) to the Assignee. The Assignee and the Assignor shall make all
appropriate adjustments in payments under the Loan Agreement for periods
prior to the Effective Date between themselves.
6. Notes. The Assignor and the Assignee shall make
appropriate arrangements with the Borrower concurrently with the execution
and delivery hereof so that a replacement or a new Note are issued to the
Assignor and the Assignee as applicable reflecting their respective Pro Rata
Share.
7. Notices. All communications among the parties or notices
in connection herewith shall be in writing and may be hand delivered,
telexed, sent by telecopy, U.S. mail or courier service, to the notice
address as set forth on the signature pages hereof.
8. Counterparts. The Assignment may be executed in any
number of counterparts as by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be
deemed to be an original and all of which taken together shall constitute
but one and the same instrument.
9. Governing Law. THIS ASSIGNMENT SHALL BE
DEEMED TO BE A CONTRACTUAL OBLIGATION UNDER, AND
SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA
WITHOUT REFERENCE TO THE PROVISIONS THEREOF
REGARDING CONFLICTS OF LAW.
10. Effective Date. This Assignment shall become effective on
the date (the "Effective Date") upon which all of the following
conditions are satisfied, provided that for all purposes hereof,
the term "Settlement Date" (as used in Schedule "A" hereto) means
the later of (i) the Settlement Date referred to in Schedule A and
(ii) the Effective Date: (i) the execution of a counterpart hereof
by each of the Assignor and the Assignee; (ii) the execution of a
counterpart hereof by the Borrower and the Administrative Agent as
evidence of their consent hereto to the extent required under
Section 11.8(b) of the Loan Agreement; (iii) the receipt by the
Administrative Agent of the processing and recordation fee referred
to in Section 11.8 of the Loan Agreement; (iv) the Assignee shall
have been (or shall be deemed to have been) recorded in the Register
as provided in Section 11.8(d) of the Loan Agreement; (v) in the
event the Assignee is a not a United States person, the delivery by
the Assignee to the Administrative Agent of such forms, certificates
or other evidence with respect to United States federal income tax
withholding matters as the Assignee may be required to deliver to the
Administrative Agent pursuant to Section 11.21 of the Loan Agreement,
and (vi) the receipt by the Administrative Agent of originals or
telecopies of the counterparts described above and authorization of
delivery thereof.
IN WITNESS WHEREOF, the parties hereto have caused
this agreement to be executed and delivered by their respective officials,
officers or agents thereunto duly authorized, such execution being made as
of the Effective Date in the applicable spaces provided on Schedule A.
SCHEDULE A
TO THE COMMITMENT ASSIGNMENT AND
ACCEPTANCE
1. Name and Date of Loan Agreement: Term
Loan Agreement dated as of May ___, 1998.
2. Assigned Portions:
Term
Loan Commitment
(a) Aggregate Commitments/Loans of All Lenders
$______________
(b) Assigned Pro Rata Share ________%
(c) Amount of Assigned Pro Rata Share $______________
3. Settlement Date: _______________, ______
4. Payment Instructions:
ASSIGNOR: ASSIGNEE:
________________________ _______________________
________________________ _______________________
________________________ _______________________
Attn:_________________ Attn:________________
Ref: _________________ Ref: ________________
5. Notice Address:
ASSIGNOR: ASSIGNEE:
________________________ _______________________
________________________ _______________________
________________________ _______________________
Attn:________________ Attn:________________
Ref: ________________ Ref: ________________
Tel: ________________ Tel: ________________
Fax: ________________ Fax: ________________
6. SIGNATURES:
[NAME OF ASSIGNOR] [NAME OF ASSIGNEE]
as ASSIGNOR as ASSIGNEE
By: _____________________ By: ____________________
_____________________ ____________________
Printed Name & Title Printed Name & Title
Consented to in accordance
with Section 11.8 of the
Loan Agreement
AZTAR CORPORATION,
a Delaware corporation
By: _____________________
_____________________
Printed Name & Title
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Administrative Agent
By: ________________________
________________________
Printed Name & Title
EXHIBIT B
COMPLIANCE CERTIFICATE
TO: BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as Administrative
Agent
Reference is made to that certain Term Loan
Agreement (the "Loan Agreement") dated as of May 28,
1998, by and among Aztar Corporation, a Delaware
corporation ("Borrower"), the Lenders therein named, and
Bank of America National Trust and Savings Association,
as Administrative Agent for itself and the Lenders.
Capitalized terms defined in the Loan Agreement and not
otherwise defined herein shall have the meanings given
them in the Loan Agreement.
This Certificate ("Compliance Certificate")
is delivered in accordance with Section 7.2 of the Loan
Agreement by a Senior Officer of Borrower. This
Certificate is delivered with respect to the Fiscal Quarter
ended ______________, _____ (the "Test Fiscal
Quarter").
I. A review of the activities of Borrower and its
Subsidiaries during the fiscal period covered by this
Certificate has been made under the supervision of the
undersigned with a view to determining whether during
such fiscal period Borrower and its Restricted Subsidiaries
performed and observed all of their respective Obligations.
To the best knowledge of the undersigned, during the
fiscal period covered by this Certificate, all covenants and
conditions have been so performed and observed and no
Default or Event of Default has occurred and is
continuing, with the exceptions set forth below in
response to which Borrower and the Restricted
Subsidiaries have taken or propose to take the following
actions (if none, so state).
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_____________________________________________
II. The undersigned Senior Officer of Borrower
certifies that the information contained herein is derived
from the books and records of Borrower and its
Subsidiaries, as applicable, and that each and every matter
contained herein correctly reflects those books and
records.
III. To the best knowledge of the undersigned no event
or circumstance has occurred that constitutes a Material
Adverse Effect since the date the most recent Compliance
Certificate was executed and delivered, with the
exceptions set forth below (if none, so state).
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
_____________________________________________
Dated: _______________, _____
_______________________________________
_______________________________________
[Printed Name and Title of
Senior
Officer of Aztar
Corporation]
EXHIBIT G
PROMISSORY NOTE
$_______________ May ___, 1998
Los Angeles, California
FOR VALUE RECEIVED, the undersigned promises to pay to
the order of _____________________________________________ (the
"Lender"), the principal amount of
_____________________________________________________ AND
NO/100 DOLLARS ($_________________), payable as hereinafter set forth.
The undersigned promises to pay interest on the principal amount hereof
remaining unpaid from time to time from the date hereof until the date of
payment in full, payable as hereinafter set forth.
Reference is made to the Term Loan Agreement dated as of May
___, 1998, by and among the undersigned, as Borrower, the Lenders which are
parties thereto, and Bank of America National Trust and Savings Association,
as Administrative Agent for the Lenders (as amended, extended, renewed,
supplemented or otherwise modified from time to time, the "Loan
Agreement"). Terms defined in the Loan Agreement and not otherwise defined
herein are used herein with the meanings given those terms in the Loan
Agreement. This is one of the Notes referred to in the Loan Agreement, and
any holder hereof is entitled to all of the rights, remedies, benefits and
privileges provided for in the Loan Agreement as originally executed or as
it may from time to time be supplemented, modified or amended. The Loan
Agreement, among other things, contains provisions for acceleration of the
maturity hereof upon the happening of certain stated events upon the terms
and conditions therein specified.
The principal indebtedness evidenced by this Note shall be
payable in installments as provided in the Loan Agreement and in any
event on June 30, 2005.
Interest shall be payable on the outstanding daily unpaid
principal amount of the Advance from the date thereof until payment in
full and shall accrue and be payable at the rates and on the dates set
forth in the Loan Agreement both before and after default and before and
after maturity and judgment, with interest on overdue principal and
interest to bear interest at the rate set forth in Section 3.7 of the
Loan Agreement, to the fullest extent permitted by applicable Law.
Each payment hereunder shall be made to the Administrative
Agent at the Administrative Agent's Office for the account of the Lender in
immediately available funds not later than 11:00 a.m. (San Francisco time)
on the day of payment (which must be a Banking Day). All payments received
after 11:00 a.m. (San Francisco time) on any particular Banking Day shall be
deemed received on the next succeeding Banking Day. All payments shall be
made in lawful money of the United States of America.
The Lender shall use its best efforts to keep a record of payments
of principal and interest received by it with respect to this Note, and such
record shall be presumptive evidence of the amounts owing under this Note.
The undersigned hereby promises to pay all costs and expenses
of any rightful holder hereof incurred in collecting the undersigned's
obligations hereunder or in enforcing or attempting to enforce any of such
holder's rights hereunder, including reasonable attorneys' fees and
disbursements, whether or not an action is filed in connection therewith.
The undersigned hereby waives presentment, demand for
payment, dishonor, notice of dishonor, protest, notice of protest and any
other notice or formality, to the fullest extent permitted by applicable
Laws.
THIS NOTE SHALL BE DELIVERED TO AND ACCEPTED
BY THE LENDER, OR BY THE ADMINISTRATIVE AGENT ON ITS
BEHALF, IN THE STATE OF CALIFORNIA, AND SHALL BE
GOVERNED BY, AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE LOCAL LAWS THEREOF.
AZTAR CORPORATION,
a Delaware
corporation
By:__________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Treasurer
SCHEDULE OF ADVANCES AND
PAYMENTS OF PRINCIPAL
Date Interest Amount of Unpaid Notation
Period Principal Principal Made by
Paid Balance
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