EXHIBIT 10.1
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SECOND AMENDED AND RESTATED 364-DAY LOAN AGREEMENT
Dated as of April 25, 2002
among
▇▇▇▇▇▇'▇ ENTERTAINMENT, INC.
as Guarantor
▇▇▇▇▇▇'▇ OPERATING COMPANY, INC.
as initial Borrower
The Lenders, Syndication Agent, Documentation Agents
And Co-Documentation Agents referred to herein
and
BANK OF AMERICA, N.A.,
as Administrative Agent
BANC OF AMERICA SECURITIES LLC
Lead Arranger and Sole Book Manager
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TABLE OF CONTENTS
Page
Article 1 DEFINITIONS AND ACCOUNTING TERMS.....................................1
1.1 Defined Terms...........................................................1
1.2 Use of Defined Terms...................................................22
1.3 Accounting Terms.......................................................22
1.4 Rounding...............................................................23
1.5 Exhibits and Schedules.................................................23
1.6 Miscellaneous Terms....................................................23
Article 2 LOANS AND LETTERS OF CREDIT.........................................24
2.1 Loans-General..........................................................24
2.2 Base Rate Loans........................................................25
2.3 Eurodollar Rate Loans..................................................25
2.4 Voluntary Reduction of Commitment......................................26
2.5 Optional Termination of Commitment.....................................26
2.6 Additional Borrowers...................................................26
2.7 Administrative Agent's Right to Assume Funds Available for Advances....27
2.8 Extension of the Maturity Date.........................................27
Article 3 PAYMENTS AND FEES...................................................29
3.1 Principal and Interest.................................................29
3.2 Arrangement Fee........................................................30
3.3 Upfront Fees...........................................................30
3.4 Facility Fees..........................................................30
3.5 Agency Fees............................................................30
3.6 Increased Commitment Costs.............................................30
3.7 Eurodollar Costs and Related Matters...................................31
3.8 Default Rate...........................................................34
3.9 Computation of Interest and Fees.......................................34
3.10 Non-Business Days......................................................35
3.11 Manner and Treatment of Payments.......................................35
3.12 Funding Sources........................................................36
3.13 Failure to Charge Not Subsequent Waiver................................36
3.14 Administrative Agent's Right to Assume Payments Will
be Made by Borrowers...................................................36
3.15 Fee Determination Detail...............................................36
3.16 Survivability..........................................................36
Article 4 REPRESENTATIONS AND WARRANTIES......................................37
4.1 Existence and Qualification; Power; Compliance With Laws...............37
4.2 Authority; Compliance With Other Agreements and Instruments
and Government Regulations.............................................37
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4.3 No Governmental Approvals Required.....................................38
4.4 Significant Subsidiaries...............................................38
4.5 Financial Statements...................................................39
4.6 No Other Liabilities; No Material Adverse Effect.......................39
4.7 Title to Property......................................................39
4.8 Litigation.............................................................39
4.9 Binding Obligations....................................................39
4.10 No Default.............................................................39
4.11 ERISA..................................................................39
4.12 Regulations T, U and X; Investment Company Act.........................40
4.13 Disclosure.............................................................40
4.14 Tax Liability..........................................................40
4.15 Projections............................................................40
4.16 Hazardous Materials....................................................41
4.17 Gaming Laws............................................................41
4.18 Solvency...............................................................41
Article 5 AFFIRMATIVE COVENANTS...............................................42
5.1 Preservation of Existence..............................................42
5.2 Maintenance of Properties..............................................42
5.3 Maintenance of Insurance...............................................42
5.4 Compliance With Laws...................................................42
5.5 Inspection Rights......................................................42
5.6 Keeping of Records and Books of Account................................43
5.7 Use of Proceeds........................................................43
Article 6 NEGATIVE COVENANTS..................................................44
6.1 Consolidations, Mergers and Sales of Assets............................44
6.2 Hostile Tender Offers..................................................44
6.3 Change in Nature of Business...........................................44
6.4 Liens, Negative Pledges, Sale Leasebacks and Rights of Others..........44
6.5 Total Debt Ratio.......................................................46
6.6 Interest Coverage Ratio................................................46
6.7 Subsidiary Indebtedness................................................46
Article 7 INFORMATION AND REPORTING REQUIREMENTS..............................47
7.1 Financial and Business Information.....................................47
7.2 Compliance Certificates................................................48
Article 8 CONDITIONS..........................................................50
8.1 Initial Advances, Etc..................................................50
8.2 Any Increasing Advance, Etc............................................51
Article 9 EVENTS OF DEFAULT AND REMEDIES UPON EVENT OF DEFAULT................53
9.1 Events of Default......................................................53
9.2 Remedies Upon Event of Default.........................................55
Article 10 THE ADMINISTRATIVE AGENT............................................57
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10.1 Appointment and Authorization..........................................57
10.2 Administrative Agent and Affiliates....................................57
10.3 Proportionate Interest in any Collateral...............................57
10.4 Lenders' Credit Decisions..............................................57
10.5 Action by Administrative Agent.........................................58
10.6 Liability of Administrative Agent......................................58
10.7 Indemnification........................................................59
10.8 Successor Administrative Agent.........................................60
10.9 No Obligations of Parent or Borrowers..................................60
Article 11 MISCELLANEOUS.......................................................61
11.1 Cumulative Remedies; No Waiver.........................................61
11.2 Amendments; Consents...................................................61
11.3 Costs, Expenses and Taxes..............................................62
11.4 Nature of Lenders' Obligations.........................................63
11.5 Survival of Representations and Warranties.............................63
11.6 Notices................................................................63
11.7 Execution of Loan Documents............................................63
11.8 Binding Effect; Assignment.............................................64
11.9 Sharing of Setoffs.....................................................66
11.10 Indemnity by Parent and Borrowers......................................67
11.11 Nonliability of the Lenders............................................68
11.12 No Third Parties Benefited.............................................69
11.13 Confidentiality........................................................69
11.14 Removal of a Lender....................................................69
11.15 Further Assurances.....................................................70
11.16 Integration............................................................70
11.17 Governing Law..........................................................71
11.18 Severability of Provisions.............................................71
11.19 Headings...............................................................71
11.20 Time of the Essence....................................................71
11.21 Foreign Lenders and Participants.......................................71
11.22 Gaming Boards..........................................................71
11.23 Nature of the Borrowers' Obligations...................................72
11.24 Designated Senior Debt.................................................72
11.25 Gaming Regulations.....................................................72
11.26 Waiver of Right to Trial by Jury.......................................72
11.27 Purported Oral Amendments..............................................72
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EXHIBITS
A - Assignment Agreement
B - Compliance Certificate
C - Note
D - Opinion of Counsel
E - Parent Guaranty
F - Request for Loan
G - Election to Become a Borrower
SCHEDULES
4.3 Governmental Approvals
4.4 Significant Subsidiaries
4.7 Existing Liens, Negative Pledges and Rights of Others
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SECOND AMENDED AND RESTATED
364-DAY LOAN AGREEMENT
Dated as of April 25, 2002
This SECOND AMENDED AND RESTATED
364-DAY LOAN AGREEMENT ("Agreement")
is entered into among ▇▇▇▇▇▇'▇ Operating Company, Inc., a Delaware corporation
(the "Company" and the initial "Borrower" hereunder), ▇▇▇▇▇▇'▇ Entertainment,
Inc., a Delaware corporation (the "Parent"), as Guarantor, Bank of America, N.A.
and each lender whose name is set forth on the signature pages of this Agreement
and each other lender which may hereafter become a party to this Agreement
pursuant to Section 11.8 (collectively, the "Lenders" and individually, a
"Lender"), Deutsche Bank Americas Trust Company, as Syndication Agent, CIBC
World Markets Corp. and Societe Generale, as Documentation Agents, Commerzbank
AG and ▇▇▇▇▇ Fargo Bank, N.A., as Co-Documentation Agents and Bank of America,
N.A., as Administrative Agent. While not party to this Agreement, Banc of
America Securities LLC has served as Lead Arranger and Sole Book Manager.
RECITALS
A. Parent, the Company and Marina Associates ("Marina") have
heretofore entered into a
364-Day Loan Agreement dated as of April 30, 1999,
pursuant to which a $300,000,000 credit facility was extended to the Company and
Marina, as borrowers. The credit facilities under such
364-Day Loan Agreement
have heretofore been increased to $328,000,000 and the maturity thereof extended
to April 25, 2002 (such
364-Day Loan Agreement, as amended and restated, the
"Existing Loan Agreement").
B. Marina's status as a Borrower under the Existing Loan Agreement
has heretofore been terminated.
C. Parent and the Company have requested that the Lenders amend and
restate the Existing Loan Agreement in its entirety in the manner set forth
herein and to extend the maturity of the Existing Loan Agreement for an
additional 364 day period.
D. From time to time, Parent and the Company may designate
additional Wholly-Owned Subsidiaries to be additional Borrowers hereunder
pursuant to Section 2.6 hereof, each with an Aggregate Sub-Limit determined as
set forth in that Section.
NOW, THEREFORE, 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:
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"ADMINISTRATIVE AGENT" means Bank of America, N.A., 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 Borrowers and the Lenders.
"ADVANCE" means any Advance made to a Borrower by any Lender in
accordance with its Pro Rata Share pursuant to Section 2.1.
"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, 5% 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 5% 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 or other Person.
"AGGREGATE SUBLIMIT" means with respect to any Subsidiary of Parent
which hereafter becomes a Borrower, such aggregate amount as shall be
established in accordance with Section 2.6.
"AGREEMENT" means this Second Amended and Restated
364-Day Loan
Agreement, either as originally executed or as it may from time to time be
supplemented, modified, amended, restated or extended.
"ASSIGNMENT AGREEMENT" means an Assignment Agreement substantially in
the form of Exhibit A.
"BANK OF AMERICA" means Bank of America, N.A., its successors and
assigns.
"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 (calculated on the
basis of a year of 365 or 366 days and the actual number of days elapsed)
and (b) the Federal Funds Rate in effect on such date (calculated on the
basis of a year of 360 days and the actual number of days elapsed) PLUS 1/2
of 1% (50 basis points).
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"BASE RATE ADVANCE" and "BASE RATE LOAN" mean, respectively, an
Advance or a Loan made hereunder and specified to be a Base Rate Advance or
Loan in accordance with Article 2.
"BORROWERS" means, collectively, Company and each other Wholly-Owned
Subsidiary which is hereafter designated as a Borrower in accordance with
Section 2.6, and their respective successors and permitted assigns. At such
times as no other Person has been so designated as a Borrower, each
reference to the plural, "Borrowers" shall be a reference to the Company.
"BUSINESS DAY" means any Monday, Tuesday, Wednesday, Thursday or
Friday, OTHER THAN a day on which commercial banks are authorized or
required to be closed in
California or New York.
"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.
"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 the occurrence of a Rating Decline in
connection with any of the following events (or, if either of the Debt
Ratings have then declined to below Investment Grade, the occurrence of any
of the following events without the requirement of any further decline in
the Debt Ratings): (i) upon any merger or consolidation of Parent with or
into any person or any sale, transfer or other conveyance, whether direct
or indirect, of all or substantially all of the assets of Parent, on a
consolidated basis, in one transaction or a series of related transactions,
if, immediately after giving effect to such transaction, any person or
group of persons (within the meaning of Section 13 or 14 of the Securities
Exchange Act of 1934, as amended) is or becomes the beneficial owner
(within the meaning of Rule 13d-3 promulgated by the Securities and
Exchange Commission under said Act) of securities representing a majority
of the total voting power of the aggregate outstanding securities of the
transferee or surviving entity normally entitled to vote in the election of
directors, managers, or trustees, as applicable, of the transferee or
surviving entity, (ii) when any person or group of persons (within the
meaning of Section 13 or 14 of the Securities Exchange Act of 1934, as
amended) is or becomes the beneficial owner (within the meaning of Rule
13d-3 promulgated by The Securities and-Exchange Commission under said Act)
of securities representing a majority of total voting power of the
aggregate outstanding securities of Parent normally entitled to vote in the
election of directors of Parent, (iii) when, during any period of 12
consecutive calendar months, individuals who were directors of
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Parent on the first day of such period (together with any new directors
whose election by the board of directors of Parent or whose nomination for
election by the stockholders of Parent was approved by a vote of a majority
of the directors then still in office who were either directors at the
beginning of such period or whose election or nomination for election was
previously so approved) cease for any reason to constitute a majority of
the board of directors of Parent, or (iv) the sale or disposition, whether
directly or indirectly, by Parent of all or substantially all of its
assets.
"CLOSING DATE" means the time and Business Day on which the conditions
set forth in Section 8.1 are satisfied or waived. The Administrative Agent
shall notify the Company and the Lenders of the date that is the Closing
Date.
"CO-DOCUMENTATION AGENTS" means those Lenders listed in the preamble
of this Agreement as such. No Co-Documentation Agent shall have any
additional rights, duties or obligations under this Agreement or the other
Loan Documents by reason of its being a Co-Documentation Agent.
"CODE" means the Internal Revenue Code of 1986, as amended or replaced
and as in effect from time to time.
"COMMITMENT" means, subject to Sections 2.4, 2.5, 2.8 and 11.14,
$332,000,000. As of the Closing Date, each Lender has a Pro Rata Share
equal to the amount of the Note issued to that Lender, which amount is as
set forth in a written advice from the Lead Arranger to such Lender.
"COMPANY" means ▇▇▇▇▇▇'▇ Operating Company, Inc., its successors and
permitted assigns.
"COMPLIANCE CERTIFICATE" means a certificate substantially in the form
of Exhibit B, properly completed and signed on behalf of Borrowers by a
Senior Officer of each Borrower.
"CONFIDENTIAL INFORMATION MEMORANDUM" means the Confidential
Information Memorandum dated April, 2002, distributed to the Lenders in
connection with the credit facilities provided herein.
"CONTINGENT 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", "make-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
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Contingent Obligation shall not include endorsements of instruments for
deposit or collection in the ordinary course of business.
"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.
"CREDITORS" means, collectively, the Administrative Agent, each
Lender, the Syndication Agent, the Documentation Agents, the
Co-Documentation Agents, the Lead Arranger and, where the context requires,
any one or more of them.
"DEBT RATING" means, as of each date of determination, the most
creditworthy credit rating, actual or implicit, assigned to senior
unsecured Indebtedness of Company by S&P or ▇▇▇▇▇'▇, whichever is higher.
"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.
"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 3.8.
"DEFEASED DEBT" means (a) the $58,300,000 aggregate principal amount
of Showboat's First Mortgage Bonds due 2008, (b) the $2,400,000 aggregate
outstanding principal amount of Showboat's Senior Subordinated Notes due
2009, and (c) any other Indebtedness of Parent and its Subsidiaries which,
at any relevant time, is subject to legal or covenant defeasance in a
manner which is reasonably acceptable to the Administrative Agent.
"DESIGNATED DEPOSIT ACCOUNT" means a deposit account to be maintained
by Borrowers with Bank of America, as from time to time designated by
Borrowers by written notification to the Administrative Agent.
"DESIGNATED EURODOLLAR MARKET" means, with respect to any Eurodollar
Rate Loan, (a) the London Eurodollar Market, or (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 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 that the
Cayman Islands Eurodollar Market does not represent at the relevant time
the effective
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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 Borrowers and the
Requisite Lenders.
"DISQUALIFICATION" means, with respect to any Lender:
(a) the failure of that Person timely to file pursuant to applicable
Gaming Laws (i) any application requested of that Person by any Gaming
Board in connection with any licensing required of that Person as a lender
to Borrowers or (ii) any required application or other papers in connection
with determination of the suitability of that Person as a lender to
Borrowers;
(b) the withdrawal by that Person (EXCEPT where requested or
permitted 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 such Person is "unsuitable" as a lender to Borrowers,
(ii) that such Person shall be "disqualified" as a lender to Borrowers or
(iii) denying the issuance to that Person of any license required under
applicable Gaming Laws to be held by all lenders to Borrowers.
"DOCUMENTATION AGENTS" means those Lenders listed in the preamble of
this Agreement as such. No Documentation Agent shall have any additional
rights, duties or obligations under this Agreement or the other Loan
Documents by reason of its being a Documentation Agent.
"DOLLARS" or "$" means United States dollars.
"EBITDA" means, for any period, Net Income for such period before
(i) income taxes, (ii) interest expense, (iii) depreciation and
amortization, (iv) minority interest, (v) extraordinary losses or
gains, (vi) Pre-Opening Expenses, and (vii) nonrecurring non-cash
charges, PROVIDED that, in calculating "EBITDA":
(a) the operating results of each New Project which commences
operations and records not less than one full fiscal quarter's operations
during the relevant period shall be annualized; and
(b) EBITDA shall be adjusted, on a pro forma basis, to include the
operating results of each resort or casino property acquired by Parent and
its Consolidated Subsidiaries during the relevant period and to exclude the
operating results of each resort or casino property sold or otherwise
disposed of by Parent and its Subsidiaries, or whose operations are
discontinued during the relevant period.
"ELECTION TO BECOME A BORROWER" means an Election to Become a
Borrower, substantially in the form of Exhibit G to this Agreement,
properly completed and duly executed by each required party thereto.
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"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 which is (i) organized
under the laws of the United States or any state thereof, or (ii) the
domestic branch or agency of any such commercial bank organized under the
laws of a country which is a member of the Organization for Economic
Cooperation and Development, (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 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) otherwise be exempt from
withholding of tax on interest and delivers Form W-8BEN pursuant to Section
11.21 at the time of any assignment pursuant to Section 11.8.
"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 BUSINESS DAY" means any Business 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 Borrowers 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 MARGIN" means, for each Pricing Period, the interest rate
margin set forth below (expressed in basis points) opposite the Pricing
Level for that Pricing Period PLUS or MINUS any then Pricing Adjustment
applicable during that Pricing Period:
Pricing Level Eurodollar Margin
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I 52.00
II 65.00
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III 75.00
IV 85.00
V 105.00
VI 137.50
"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.
"EURODOLLAR PERIOD" means, as to each Eurodollar Rate Loan, the period
commencing on the date specified by any Borrower pursuant to Section 2.1(b)
and ending 1, 2, 3 or 6 months thereafter (or, with the written consent of
all of the Lenders, any other period), as specified by that Borrower in the
applicable Request for Loan; PROVIDED that
(a) The first day of any Eurodollar Period shall be a Eurodollar
Business Day;
(b) Any Eurodollar Period that would otherwise end on a day that is
not a Eurodollar Business Day shall be extended to the next succeeding
Eurodollar Business Day unless such Eurodollar Business Day falls in
another calendar month, in which case such Eurodollar Period shall end on
the next preceding Eurodollar Business Day; and
(c) No Eurodollar Period shall extend beyond the Maturity Date.
"EURODOLLAR QUOTED RATE" means, with respect to any Eurodollar Rate
Loan, the average of the interest rates per annum (rounded upward, if
necessary, to the next 1/16 of 1%) at which deposits in Dollars are offered
by Bank of America to prime banks in the Designated Eurodollar Market at or
about 11:00 a.m. local time in the Designated Eurodollar Market, two
Eurodollar Business Days before the first day of the applicable Eurodollar
Period in an aggregate amount approximately equal to the amount of the
Advances made by Bank of America with respect to such Eurodollar Rate Loan
and for a period of time comparable to the number of days in the applicable
Eurodollar Period. The determination of the Eurodollar Quoted Rate by the
Administrative Agent shall be conclusive in the absence of manifest error.
"EURODOLLAR RATE" means, with respect to any Eurodollar Rate Loan
based on a margin over the Eurodollar Rate, an interest rate per annum
(rounded upward, if necessary, to the nearest 1/16 of one percent)
determined pursuant to the following formula:
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Eurodollar Eurodollar Quoted Rate
Rate = --------------------------
1.00 - Eurodollar Reserve
Percentage
"EURODOLLAR RATE ADVANCE" and "EURODOLLAR RATE LOAN" mean,
respectively, a Advance made hereunder and specified to be a Eurodollar
Rate Advance or Loan in accordance with Article 2.
"EURODOLLAR RESERVE PERCENTAGE" means, with respect to any Eurodollar
Rate Loan, the maximum reserve percentage (expressed as a decimal, rounded
upward to the nearest 1/100th of 1%) in effect on the date the Eurodollar
Quoted Rate for that Eurodollar Rate Loan is determined (whether or not
applicable to any Lender) under regulations issued from time to time by the
Federal Reserve Board for determining the maximum reserve requirement
(including any emergency, supplemental or other marginal reserve
requirement) with respect to eurocurrency funding (currently referred to as
"eurocurrency liabilities") having a term comparable to the Eurodollar
Period for such Eurodollar Rate Loan. The determination by the
Administrative Agent of any applicable Eurodollar Reserve Percentage shall
be conclusive in the absence of manifest error.
"EVENT OF DEFAULT" shall have the meaning provided in Section 9.1.
"EXISTING SENIOR NOTES" means the Company's $500,000,000 in 7.5%
Senior Unsecured Notes due 2009 issued pursuant to the Indenture dated
December 18, 1998 between the Company and IBJ ▇▇▇▇▇▇▇▇▇ Bank and Trust
Company, as Trustee and the First Supplemental Indenture with respect
thereto dated as of January 20, 1999 among the Company, the Parent and IBJ
Whitehall Bank & Trust Company, as Trustee.
"EXISTING SUBORDINATED DEBT" means the Company's $750,000,000 7.875%
Senior Subordinated Notes due 2005 issued pursuant to the Indenture dated
December 9, 1998 among the Company and IBJ ▇▇▇▇▇▇▇▇▇ Bank and Trust
Company, as Trustee and the First Supplemental Indenture with respect
thereto dated as of December 9, 1998 among the Company, the Parent and the
Trustee.
"FACILITY FEE RATE" means, for each Pricing Period, the rate set forth
below (expressed in basis points) opposite the Pricing Level for that
Pricing Period:
Pricing Level Facility Fee Rate
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I 8.00
II 10.00
III 12.50
IV 15.00
V 20.00
VI 25.00
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"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 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 Parent consisting of a
three month fiscal period ending on each March 31, June 30, September 30,
December 31.
"FISCAL YEAR" means the fiscal year of Parent consisting of a twelve
month fiscal period ending on each December 31.
"FIVE YEAR COMMITMENTS" means the lending commitment of the lenders
under the Five Year Loan Agreement.
"FIVE YEAR LOAN AGREEMENT" means the Five Year Loan Agreement dated as
of April 20, 1999, among the Lenders party to this Agreement on the
Effective Date and Bank of America, as Administrative Agent, as amended as
of April 3, 2000 by an Amendment No. 1 thereto, as amended as of April 26,
2001 by an Amendment No. 2 thereto, or hereafter amended.
"GAMING BOARD" means any Governmental Agency that holds regulatory,
licensing or permit authority over gambling, gaming or casino activities
conducted by Parent and its Subsidiaries within its jurisdiction, or before
which an application for licensing to conduct such activities is pending.
"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 Parent and its 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
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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
to those applied at prior dates or for prior periods.
"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.
"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 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., the Hazardous Waste Control Law,
California Health & Safety Code Section 25100, et seq., or in any other
applicable Hazardous Materials Law, in each case as such Laws are amended
from time to time.
"HAZARDOUS MATERIALS LAWS" means all federal, state or local laws,
ordinances, rules or regulations governing the disposal of Hazardous
Materials applicable to any of the Real Property.
"INDEBTEDNESS" means, as to any Person and as of each date of
determination, without duplication, (i) all obligations of such Person for
borrowed money, (ii) all obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments, (iii) all obligations of
such Person to pay the deferred purchase price of property or services,
except trade accounts payable arising in the ordinary course of business,
(iv) all obligations of such Person as lessee which are capitalized in
accordance with Generally Accepted Accounting Principles, (v) all
indebtedness or other obligations secured by a contractual Lien on any
asset of such Person, whether or not such indebtedness or other obligations
are otherwise an obligation of such Person, and (vi) all Contingent
Obligations made by such Person (including by way of provision of letters
of credit or other contingent obligations) with respect to indebtedness or
other obligations of any other Person which constitute "Indebtedness" of a
type or class described in clauses (i) through (v) of this definition.
"INTANGIBLE ASSETS" means assets that are considered intangible assets
under Generally Accepted Accounting Principles, INCLUDING customer lists,
goodwill, computer software, copyrights, trade names, trademarks and
patents.
"INTERCOMPANY DEBT" means any Indebtedness owed by a Subsidiary of
Parent to a Borrower.
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"INTEREST COVERAGE RATIO" means, as of the last day of any Fiscal
Quarter, the RATIO OF (a) EBITDA for the four Fiscal Quarter period ending
on that date to (b) Interest Expense for the same period.
"INTEREST DIFFERENTIAL" means, with respect to any prepayment of a
Eurodollar Rate Loan on a day prior to the last day of the applicable
Eurodollar 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 per annum interest rate payable pursuant to Section 3.1(c) 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 commencing on such date and ending on the last day
of the Eurodollar Period of the Eurodollar Rate Loan so prepaid or which
would have been borrowed on such date.
"INTEREST EXPENSE" means, as of the last day of any fiscal period, the
SUM OF (a) all interest, fees, charges and related expenses paid or payable
(without duplication) for that fiscal period to a lender in connection with
borrowed money or the deferred purchase price of assets that are considered
"interest expense" under Generally Accepted Accounting Principles, PLUS (b)
the portion of rent paid or payable (without duplication) for that fiscal
period under Capital Lease Obligations that should be treated as interest
in accordance with Financial Accounting Standards Board Statement No. 13.
"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 or 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, without adjustment for
subsequent increases or decreases in the value of such Investment.
"INVESTMENT GRADE" means (i) with respect to S&P, a rating of BBB- or
higher, and (ii) with respect to ▇▇▇▇▇'▇, a rating of Baa3 or higher.
"JOINT VENTURE HOLDING COMPANY" means any Subsidiary of Parent which
has no substantial assets other than equity securities, securities
convertible into equity securities and warrants, options or similar rights
to purchase such equity securities or convertible securities (and any
dividends, cash, instruments or other property received in respect of or in
exchange for any of the foregoing), in each case issued by Persons which
are not Subsidiaries of Parent.
"LAWS" means, collectively, all international, foreign, federal, state
and local statutes, treaties, rules, regulations, ordinances, codes and
administrative or judicial precedents.
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"LEAD ARRANGER" means Banc of America Securities, LLC. The Lead
Arranger shall have no duties or obligations under this Agreement or the
other Loan Documents.
"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 Parent or any of
its Subsidiaries.
"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 or other agreement 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, this Agreement, the Notes, the
Parent Guaranty, any Request for Loan, any Compliance Certificate and any
other instruments, documents or agreements of any type or nature hereafter
executed and delivered by Parent or any of its Subsidiaries or Affiliates
to the Administrative Agent or any other Creditor 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.
"MANAGEMENT COMPANY" means any Subsidiary of Parent which has no
substantial assets other than contractual rights to receive fees under
management agreements, development agreements or similar instruments.
"MARGIN STOCK" means "margin stock" as such term is defined in
Regulation 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
condition (financial or otherwise), assets, business or operations of
Parent and its Subsidiaries, taken as a whole, or (c) materially impairs or
could reasonably be expected to materially impair the ability of Parent and
its Subsidiaries, taken as a whole, to perform the Obligations.
"MATURITY DATE" means April 24, 2003, or such later anniversary
thereof as may be established pursuant to Section 2.8.
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"MOODY'S" means ▇▇▇▇▇'▇ Investor Service, Inc., its successors and
assigns.
"MULTIEMPLOYER PLAN" means any employee benefit plan of the type
described in Section 4001(a)(3) of ERISA.
"NEGATIVE PLEDGE" means a Contractual Obligation that contains a
covenant binding on Parent or any of its 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 6.4
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 INCOME" means, with respect to any fiscal period, the
consolidated net income of Parent and its Subsidiaries for that period,
determined in accordance with Generally Accepted Accounting Principles,
consistently applied.
"NET TANGIBLE ASSETS" means, as of each date of determination, the
total amount of assets of Parent its Subsidiaries as of the last day of the
most recent Fiscal Quarter for which financial statements have been
delivered in accordance with Section 7.1, after deducting therefrom (a) all
current liabilities of Parent and its Subsidiaries (excluding (i) the
current portion of long term Indebtedness, (ii) inter-company liabilities,
and (iii) any liabilities which are by their terms renewable or extendable
at the option of the obligor thereon to a time more than twelve months from
the time as of which the amount thereof is being computed), and (b) all
goodwill, trade names, trademarks, patents, unamortized debt discount and
expense and other like intangibles, all as set forth on the latest
consolidated balance sheet of Parent prepared in accordance with Generally
Accepted Accounting Principles.
"NEW PROJECT" means each new hotel - casino, casino or resort project
(as opposed to any project which consists of an extension or redevelopment
of an operating hotel, casino or resort) owned by Parent or its
Subsidiaries having a development and construction budget in excess of
$25,000,000 which hereafter receives a certificate of completion or
occupancy and all relevant gaming and other licenses, and in fact commences
operations.
"NOTE" means the promissory note made by each Borrower to a Lender
evidencing the Advances under that Lender's Pro Rata Share to that
Borrower, substantially in the form of Exhibit C, 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 Parent, Borrowers or any Party at any time and from time to
time owed to the Creditors 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
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any proceeding under any Debtor Relief Law by or against Parent, any
Borrower or any Subsidiary of Parent.
"OPINION OF COUNSEL" means (a) the favorable written legal opinion of
Parent's and Borrower's corporate counsel, ▇▇▇▇ ▇. ▇▇▇▇▇, substantially in
the form of Exhibit D, together with copies of all factual certificates and
legal opinions upon which such counsel has relied.
"PARENT" means ▇▇▇▇▇▇'▇ Entertainment, Inc., a Delaware corporation,
and its permitted successors and assigns.
"PARENT GUARANTY" means the Guaranty executed by Parent on the Closing
Date with respect to the Obligations, substantially in the form of Exhibit
E, either as originally executed or as it may from time to time be
supplemented, modified, amended, restated or extended.
"PARTY" means any Person other than Creditors 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 Parent or any of
its Subsidiaries or to which Parent or any of its Subsidiaries contributes
or has an obligation to contribute.
"PERMITTED ENCUMBRANCES" means:
(a) inchoate Liens incident to construction or maintenance of Real
Property; or Liens incident to construction or maintenance of Real Property
now or hereafter filed of record for which adequate reserves have been set
aside (or deposits made pursuant to applicable Law) and which are being
contested in good faith by appropriate proceedings and have not proceeded
to judgment, PROVIDED that, by reason of nonpayment of the obligations
secured by such Liens, no such Real Property is subject to a material risk
of loss or forfeiture;
(b) Liens for taxes and assessments on and similar charges with
respect to Real Property which are not yet past due; or Liens for taxes and
assessments on Real Property for which adequate reserves have been set
aside and are being contested in good faith by appropriate proceedings and
have not proceeded to judgment, PROVIDED that, by reason of nonpayment of
the obligations secured by such Liens, no material Real Property is subject
to a material risk of loss or forfeiture;
(c) defects and irregularities in title to any Real Property which
in the aggregate do not materially impair the fair market value or use of
the Real Property for the purposes for which it is or may reasonably be
expected to be held;
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(d) easements, exceptions, reservations, or other agreements for the
purpose of pipelines, conduits, cables, wire communication lines, power
lines and substations, streets, trails, walkways, driveways, drainage,
irrigation, water, and sewerage purposes, dikes, canals, ditches, the
removal of oil, gas, coal, or other minerals, and other like purposes
affecting Real Property, facilities, or equipment which in the aggregate do
not materially burden or impair the fair market value or use of such Real
Property for the purposes for which it is or may reasonably be expected to
be held;
(e) easements, exceptions, reservations, or other agreements for the
purpose of facilitating the joint or common use of property which in the
aggregate do not materially burden or impair the fair market value or use
of such property for the purposes for which it is or may reasonably be
expected to be held;
(f) rights reserved to or vested in any Governmental Agency to
control or regulate, or obligations or duties to any Governmental Agency
with respect to, the use of any Real Property;
(g) rights reserved to or vested in any Governmental Agency to
control or regulate, or obligations or duties to any Governmental Agency
with respect to, any right, power, franchise, grant, license, or permit;
(h) present or future zoning laws, building codes and ordinances,
zoning restrictions, or other laws and ordinances restricting the
occupancy, use, or enjoyment of Real Property;
(i) statutory Liens, other than those described in clauses (a) or
(b) above, arising in the ordinary course of business with respect to
obligations which are not delinquent or are being contested in good faith,
PROVIDED that, if delinquent, adequate reserves have been set aside with
respect thereto and, by reason of nonpayment, no property is subject to a
material risk of loss or forfeiture;
(j) covenants, conditions, and restrictions affecting the use of
Real Property which in the aggregate do not materially impair the fair
market value or use of the Real Property for the purposes for which it is
or may reasonably be expected to be held;
(k) rights of tenants under leases and rental agreements covering
Real Property entered into in the ordinary course of business of the Person
owning such Real Property;
(l) Liens consisting of pledges or deposits to secure obligations
under workers' compensation laws or similar legislation, including Liens of
judgments thereunder which are not currently dischargeable;
(m) Liens consisting of pledges or deposits of property to secure
performance in connection with operating leases made in the ordinary course
of
-16-
business to which Parent or any of its Subsidiaries is a party as lessee,
PROVIDED the aggregate value of all such pledges and deposits in connection
with any such lease does not at any time exceed 20% of the annual fixed
rentals payable under such lease;
(n) Liens consisting of deposits of property to secure bids made
with respect to, or performance of, contracts (OTHER THAN contracts
creating or evidencing an extension of credit to the depositor) in the
ordinary course of business;
(o) Liens consisting of any right of offset, or statutory bankers'
lien, on bank deposit accounts maintained in the ordinary course of
business so long as such bank deposit accounts are not established or
maintained for the purpose of providing such right of offset or bankers'
lien;
(p) Liens consisting of deposits of property to secure statutory
obligations of Parent or any of its Subsidiaries in the ordinary course of
its business;
(q) Liens consisting of deposits of property to secure (or in lieu
of) surety, appeal or customs bonds in proceedings to which Parent or any
of its Subsidiaries is a party in the ordinary course of business;
(r) Liens created by or resulting from any litigation or legal
proceeding involving Parent or any of its Subsidiaries in the ordinary
course of its business which is currently being contested in good faith by
appropriate proceedings, PROVIDED that adequate reserves have been set
aside and no material property is subject to a material risk of loss or
forfeiture;
(s) precautionary UCC financing statement filings made in connection
with operating leases and not constituting Liens; and
(t) other non-consensual Liens incurred in the ordinary course of
business but not in connection with an extension of credit, which do not in
the aggregate, when taken together with all other Liens, materially impair
the value or use of the Property of Parent and its Subsidiaries, taken as a
whole.
"PERMITTED RIGHT OF OTHERS" means a Right of Others consisting of (i)
an interest (other than a legal or equitable co-ownership interest, an
option or right to acquire a legal or equitable co-ownership interest and
any interest of a ground lessor under a ground lease), that does not
materially impair the value or use of Property for the purposes for which
it is or may reasonably be expected to be held, (ii) an option or right to
acquire a Lien that would be a Permitted Encumbrance, (iii) the
subordination of a lease or sublease in favor of a financing entity and
(iv) a license, or similar right, of or to Intangible Assets granted in the
ordinary course of business.
"PERSON" means any entity, whether an individual, trustee,
corporation, general partnership, limited partnership, joint stock company,
trust, estate, unincorporated organization, business association, firm,
joint venture, Governmental Agency, or otherwise.
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"PRE-OPENING EXPENSES" means, with respect to any fiscal period, the
amount of expenses (OTHER THAN Interest Expense) incurred with respect to
capital projects which are classified as "pre-opening expenses" on the
applicable financial statements of Parent and its Subsidiaries for such
period, prepared in accordance with Generally Accepted Accounting
Principles.
"PRICING ADJUSTMENT" means, during any Pricing Period, (a) if the
Total Debt Ratio as of the last day of the Fiscal Quarter ending
immediately prior to the commencement of such Pricing Period was greater
than 3.75 to 1.00 but less than or equal to 4.25:1.00, an increase to the
Eurodollar Margin of 7.5 basis points, (b) if the Total Debt Ratio as of
the last day of the Fiscal Quarter ending immediately prior to the
commencement of such Pricing Period was greater than 4.25:1.00, an increase
to the Eurodollar Margin of 15.0 basis points, and (c) if the Total Debt
Ratio as of the last day of the Fiscal Quarter ending immediately prior to
the commencement of such Pricing Period was less than 2.00:1.00, a decrease
to the Eurodollar Margin of 7.5 basis points.
"PRICING LEVEL" means, for each Pricing Period, the pricing level
set forth below opposite the Debt Ratings as of the first day of that
Pricing Period:
▇▇▇▇▇'▇/S&P Rating Applicable Pricing Level
------------------ ------------------------
A-/A3 or higher Pricing Level I
BBB+/Baa1 Pricing Level II
BBB/Baa2 Pricing Level III
BBB-/Baa3 Pricing Level IV
BB+/Ba1 Pricing Level V
BB/Ba2 or lower Pricing Level VI
PROVIDED that if ▇▇▇▇▇'▇ and S&P each assign Debt Ratings which are
associated with different Pricing Levels in the matrix set forth above,
then the applicable Pricing Level shall be the Pricing Level which is one
Pricing Level higher than that associated with the lower of the two Debt
Ratings.
"PRICING PERIOD" means (a) the period commencing on the Closing Date
and ending on May 31, 2002, (b) each subsequent three month period
commencing on each June 1, September 1, December 1 and March 1, and (c) any
shorter period ending on the date upon which the Commitment is terminated.
"PROJECTIONS" means the financial projections contained in the
Confidential Information Memorandum.
"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 held by that Lender.
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"QUARTERLY PAYMENT DATE" means each March 31, June 30, September 30
and December 31.
"RATING DECLINE" means the occurrence of a decrease in the Debt Rating
by either ▇▇▇▇▇'▇ or S&P to below Investment Grade on any date on or within
90 days after the date of the first public notice of (a) the occurrence of
an event described in clauses (i)-(iv) of the definition of "Change in
Control" or (b) the intention by any of the Parent or Borrowers to effect
such an event (which 90-day period shall be extended so long as the Debt
Rating is under publicly announced consideration for possible downgrade by
▇▇▇▇▇'▇ or S&P).
"REAL PROPERTY" means, as of any date of determination, all real
property then or theretofore owned, leased or occupied by Parent or any of
its Subsidiaries.
"REFERENCE RATE" means the rate of interest publicly announced from
time to time by Bank of America as its "reference rate" or the similar
prime rate or reference rate announced by any successor Administrative
Agent. Bank of America's reference rate is a rate set by Bank of America
based upon various factors including Bank of America'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
Bank of America or any successor Administrative Agent shall take effect at
the opening of business on the day specified in the public announcement of
such change.
"REGULATIONS D, T, U AND X" means Regulations D, 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.
"REQUEST FOR LOAN" means a written request for a Loan substantially in
the form of Exhibit F, signed by a Responsible Official of a Borrower, on
behalf of that Borrower, and properly completed to provide all information
required to be included therein.
"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 51% or more
of the Commitment then in effect and (b) as of any date of determination if
the Commitment has then been terminated, Lenders holding 51% of the
aggregate principal amount of the outstanding Loans.
"RESPONSIBLE OFFICIAL" means when used with reference to a Person
other than an individual, any corporate officer of such Person, general
partner of such Person,
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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. Any document or certificate hereunder that
is signed or executed by a Responsible Official of another Person shall be
conclusively presumed to have been authorized by all necessary corporate,
partnership and/or other action on the part of such other Person.
"RIGHT OF OTHERS" means, as to any Property in which a Person has an
interest, any legal or equitable ownership right, title or other interest
(other than a Lien) held by any other Person in that Property, and any
option or right held by any other Person to acquire any such right, title
or other interest in that Property, INCLUDING any option or right to
acquire a Lien; PROVIDED, however, that (a) any covenant restricting the
use or disposition of Property of such Person contained in any Contractual
Obligation of such Person, (b) any provision contained in a contract
creating a right of payment or performance in favor of a Person that
conditions, limits, restricts, diminishes, transfers or terminates such
right, and (c) any residual rights held by a lessor or vendor of Property,
shall not be deemed to constitute a Right of Others.
"S&P" means Standard & Poor's Ratings Group, a division of McGraw
Hill, Inc., its successors and assigns.
"SALE AND LEASEBACK" means, with respect to any Person, the sale of
Property owned by that Person (the "Seller") to another Person (the
"Buyer"), together with the substantially concurrent leasing of such
Property (or any portion thereof) by the Buyer to the Seller.
"SALE AND LEASEBACK OBLIGATION" means, with respect to any Sale and
Leaseback and as of any date of determination, the present value of the
aggregate monetary obligations of the lessee under the lease of the
Property which is the subject of such Sale and Leaseback (discounted at the
interest rate implicit in such lease, compounded annually) for the then
remaining term of such lease (treating all extension options exercisable by
the lessor as having been exercised, but deeming the lease terminated as of
the earliest date upon which the lessee has the option to do so); PROVIDED
that such monetary obligations shall exclude amounts payable in respect of
maintenance, repairs, insurance, taxes, assessments, utilities and similar
charges.
"SENIOR OFFICER" means Parent's and each Borrower's (a) chief
executive officer, (b) president, (c) chief financial officer, (d)
treasurer, (e) vice presidents or (f) secretaries.
"SHOWBOAT" means Showboat, Inc., a Nevada corporation.
"SIGNIFICANT SUBSIDIARY" means, as of any date of determination, each
Subsidiary of Parent that had on the last day of the Fiscal Quarter then
most recently ended total assets (determined in accordance with Generally
Accepted Accounting Principles) of $50,000,000 or more.
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"SPECIAL EURODOLLAR CIRCUMSTANCE" means the application or adoption
after the date hereof 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.
"SOLVENT" as to any Person shall mean that (a) the sum of the assets
of such Person, both at a fair valuation and at present fair saleable
value, exceeds its liabilities, including its probable liability in respect
of contingent liabilities, (b) such Person will have sufficient capital
with which to conduct its business as presently conducted and as proposed
to be conducted and (c) such Person has not incurred debts, and does not
intend to incur debts, beyond its ability to pay such debts as they mature.
For purposes of this definition, "debt" means any liability on a claim, and
"claim" means (x) a right to payment, whether or not such right is reduced
to judgment, liquidated, unliquidated, fixed, contingent, matured,
unmatured, disputed, undisputed, legal, equitable, secured, or unsecured,
or (y) a right to an equitable remedy for breach of performance if such
breach gives rise to a payment, whether or not such right to an equitable
remedy is reduced to judgment, fixed, contingent, matured, unmatured,
disputed, undisputed, secured or unsecured. With respect to any such
contingent liabilities, such liabilities shall be computed at the amount
which, in light of all the facts and circumstances existing at the time,
represents the amount which can reasonably be expected to become an actual
or matured liability.
"SUBORDINATED DEBT" means (a) the Existing Subordinated Debt and (b)
any other Indebtedness of Parent or the Company which is subordinated in
right of payment to the Obligations pursuant to subordination provisions
which are either (i) substantively no less favorable to the Lenders than
the subordination provisions of the Existing Subordinated Debt, or (ii)
otherwise are acceptable to the Requisite Lenders in the exercise of their
sole discretion.
"SUBSIDIARY" means, as of any date of determination and with respect
to any Person, any corporation 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, 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 having ordinary management
power are at the time beneficially owned by such Person and/or one or more
of its Subsidiaries.
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"SYNDICATION AGENT" means Deutsche Bank Trust Companys America, which
shall not have any additional rights, duties or obligations under this
Agreement or the other Loan Documents by reason of its being a Syndication
Agent.
"TOTAL DEBT" means, as of any date of determination, the SUM (without
duplication) of (a) the outstanding principal Indebtedness of Parent and
its Subsidiaries for borrowed money (INCLUDING debt securities issued by
Parent or any of its Subsidiaries) on that date, PLUS (b) the aggregate
amount of all Capital Lease Obligations of Parent and its Subsidiaries on
that date, PLUS (c) all obligations in respect of letters of credit or
other similar instruments for which Parent or any of its Subsidiaries are
account parties or are otherwise obligated, PLUS (d) the aggregate amount
of all Contingent Obligations and other similar contingent obligations of
Parent and its Subsidiaries with respect to any of the foregoing, and PLUS
(e) any obligations of Parent or any of its Subsidiaries to the extent that
the same are secured by a Lien on any of the assets of Parent or its
Subsidiaries. In computing "Total Debt," the amount of any Contingent
Obligation or letter of credit shall be deemed to be zero unless and until
(1) in the case of obligations in respect of letters of credit, a drawing
is made with respect thereto, (2) in the case of any other Contingent
Obligations, demand for payment is made with respect thereto, or (3)
Parent's independent auditors have quantified the amount of Parent's and
its Subsidiaries with respect to letters of credit and Contingent
Obligations as liabilities on Parent's consolidated balance sheet in
accordance with Generally Accepted Accounting Principles (as opposed to
merely noted in the footnotes to any such balance sheet) and the amount of
any such individual liability is in excess of $50,000,000, in which case
the amount thereof shall be deemed to be the amount so quantified from time
to time.
"TOTAL DEBT RATIO" means, as of the last day of any Fiscal Quarter,
the RATIO OF (a) Total Debt on that date, to (b) EBITDA for the four Fiscal
Quarter period ending on that date.
"TYPE", when used with respect to any Loan or Advance, means the
designation of whether such Loan or Advance is a Base Rate Loan or Advance,
or a Eurodollar Rate Loan or Advance.
"WHOLLY-OWNED SUBSIDIARY" means, as to any Person any other Person,
100% of whose capital stock, partnership interests, membership interests or
other forms of equity ownership interest (other than directors qualifying
shares and similar interests) is at the time owned, directly or indirectly,
by such Person.
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
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prescribed herein. In the event that Generally Accepted Accounting Principles
change during the term of this Agreement such that the covenants contained in
Sections 6.5 and 6.6 would then be calculated in a different manner or with
different components, (a) Parent, Borrowers and the Lenders agree to amend this
Agreement in such respects as are necessary to conform those covenants as
criteria for evaluating Parent's consolidated financial condition to
substantially the same criteria as were effective prior to such change in
Generally Accepted Accounting Principles and (b) Parent and Borrowers shall be
deemed to be in compliance with the covenants contained in the aforesaid
Sections during the 90 day period following any such change in Generally
Accepted Accounting Principles if and to the extent that Parent and Borrowers
would have been in compliance therewith under Generally Accepted Accounting
Principles as in effect immediately prior to such change.
1.4 ROUNDING. Any financial ratios required to be maintained by
Parent and Borrowers 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 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.
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Article 2
LOANS AND LETTERS OF CREDIT
2.1 LOANS-GENERAL.
(a) Subject to the terms and conditions set forth in this Agreement,
at any time and from time to time from the Closing Date through and including
the Maturity Date, each Lender shall, pro rata according to that Lender's Pro
Rata Share of the then applicable Commitment, make Advances in Dollars to
Borrowers in such amounts as any Borrower may request PROVIDED that (a) giving
effect to such Advances, the aggregate principal amount of the outstanding Loans
shall not exceed the Commitment at any time and (b) without the consent of all
of the Lenders, the aggregate principal amount of the outstanding Loans to each
Borrower hereafter designated as such pursuant to Section 2.6 plus the
outstanding principal amount of the loans outstanding to such Borrower under the
Five Year Commitment shall not exceed that Borrower's Aggregate Sublimit at any
time. Subject to the limitations set forth herein, each of the Borrowers may
borrow, repay and reborrow under the Commitment without premium or penalty.
(b) Subject to the next sentence, each Loan shall be made pursuant
to a Request for Loan executed by the relevant Borrower which shall specify the
requested (i) date of such Loan, (ii) type of Loan, (iii) amount of such Loan,
and (iv) in the case of a Eurodollar Rate Loan, the Eurodollar Period for such
Loan. Unless the Administrative Agent has notified, in its sole and absolute
discretion, Borrowers to the contrary, a Loan may be requested by telephone by a
Responsible Official of any Borrower, in which case that 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. The
Administrative Agent shall incur no liability whatsoever hereunder in acting
upon any telephonic request for loan purportedly made by a Responsible Official
of a Borrower, and each Borrower hereby jointly and severally (but as between
Borrowers, ratably) agrees to indemnify the Administrative Agent from any loss,
cost, expense or liability as a result of so acting.
(c) 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 identity of the relevant
Borrower, the date and type of the Loan, the applicable Eurodollar Period, and
that Lender's Pro Rata Share of the Loan. Not later than 11:00 a.m.,
California
local time, on the date specified for any Loan (which must be a Business 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.
(d) Unless the Requisite Lenders otherwise consent, each Loan shall
be an integral multiple of $1,000,000 and shall be not less than $10,000,000.
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(e) The Advances made by each Lender to each Borrower shall be
evidenced by a Note issued by that Borrower and made payable to that Lender.
(f) A Request for Loan shall be irrevocable upon the Administrative
Agent's first notification thereof.
(g) If no Request for Loan (or telephonic request for loan referred
to in the second sentence of Section 2.1(b), if applicable) has been made within
the requisite notice periods set forth in Sections 2.2 or 2.3 in connection with
a Loan which, if made and giving effect to the application of the proceeds
thereof, would not increase the outstanding principal Indebtedness evidenced by
the Notes of the relevant Borrower, then that Borrower shall be deemed to have
requested, as of the date upon which the related then outstanding Loan is due
pursuant to Section 3.1(e)(i), a Base Rate Loan in an amount equal to the amount
necessary to cause the outstanding principal Indebtedness evidenced by its Notes
to remain the same and the Lenders shall make the Advances necessary to make
such Loan notwithstanding Sections 2.1(b), 2.2 and 2.3.
2.2 BASE RATE LOANS. Each request by a Borrower for a Base Rate Loan
shall be made pursuant to a Request for Loan (or telephonic or other request for
loan referred to in the second sentence of Section 2.1(b), if applicable)
received by the Administrative Agent, at the Administrative Agent's Office, not
later than 9:00 a.m.
California local time, on the date (which must be a
Business Day) of the requested Base Rate Loan. All Loans shall constitute Base
Rate Loans unless properly designated as a Eurodollar Rate Loan pursuant to
Section 2.3.
2.3 EURODOLLAR RATE LOANS.
(a) Each request by a Borrower for a Eurodollar Rate Loan shall be
made pursuant to a Request for Loan (or telephonic or other request for loan
referred to in the second sentence of Section 2.1(b), if applicable) received by
the Administrative Agent, at the Administrative Agent's Office, not later than
9:00 a.m.,
California local time, at least three Eurodollar Business Days before
the first day of the applicable Eurodollar Period.
(b) On the date which is two Eurodollar Business 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 Borrowers 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 twenty Eurodollar Rate Loans shall be
outstanding at any one time.
(d) No Eurodollar Rate Loan may be requested during the existence of
a Default or Event of Default.
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(e) No Lender shall be required to obtain the funds necessary to
fund its Eurodollar Rate Advances in the Designated Eurodollar Market or from
any other particular source of funds, rather each Lender shall be free to obtain
such funds from any legal source.
2.4 VOLUNTARY REDUCTION OF COMMITMENT. Borrowers shall have the
right, at any time and from time to time, without penalty or charge, upon at
least three Business Days prior written notice to the Administrative Agent,
voluntarily to reduce or to terminate, permanently and irrevocably, in aggregate
principal amounts in an integral multiple of $1,000,000 but not less than
$10,000,000, all or a portion of the then undisbursed portion of the Commitment,
PROVIDED that any such reduction or termination shall be accompanied by payment
of all accrued and unpaid commitment fees with respect to the portion of the
Commitment being reduced or terminated. The Administrative Agent shall promptly
notify the Lenders of any reduction of the Commitment under this Section.
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 sixty day period immediately subsequent to the
LATER OF (a) such occurrence and (b) the EARLIER of (i) receipt of Borrowers'
written notice to the Administrative Agent of such occurrence and (ii) if no
such notice has been received by the Administrative Agent, the date upon which
the Administrative Agent and the Lenders have actual knowledge thereof, to
terminate the Commitment. In any such case the Commitment shall be terminated
effective on the date which is sixty days subsequent to the date of written
notice from the Administrative Agent to Borrowers thereof, and to the extent
that there are then any Obligations outstanding, the same shall be immediately
due and payable.
2.6 ADDITIONAL BORROWERS. From time to time following the Closing
Date and when no Default or Event of Default exists, Parent and Company (and
each other Borrower then a party to this Agreement) may jointly designate one or
more additional Wholly-Owned Subsidiaries as additional co-borrowers under this
Agreement in accordance with the provisions of this Section. Prior to the
effectiveness of any such designation each such additional Borrower shall have
duly authorized, executed and delivered to the Administrative Agent each of the
following:
(a) an Election to Become a Borrower, setting forth the proposed
Aggregate Sublimit for that Borrower, together with such other documents,
certificates, resolutions, opinions and other assurances as the
Administrative Agent may reasonably require in connection therewith; and
(b) Notes;
Promptly following the submission of the foregoing documents, the Administrative
Agent shall inform the Lenders of the proposed designation and the proposed
Aggregate Sublimit. Unless the Requisite Lenders have objected in writing to the
proposed designee or Aggregate Sublimit within ten Business Days following such
notice from the Administrative Agent (which objection may be in the sole
discretion of each Lender), the Administrative Agent shall notify the Borrowers
that the appointment is accepted, whereupon the proposed new
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Borrower shall be a Borrower for all purposes of this Agreement, with the
Aggregate Sublimit set forth in its Election to Become a Borrower.
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 the Business Day prior to the 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 the relevant Borrower a
corresponding amount. If the Administrative Agent has made funds available to a
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 Borrowers and the relevant 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 that 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 Borrowers may have against any Lender as a
result of any default by such Lender hereunder.
2.8 EXTENSION OF THE MATURITY DATE. The Maturity Date may be
extended for 364 day periods at the request of the Parent and with the written
consent of all of the Lenders (which may be withheld in the sole and absolute
discretion of each Lender) pursuant to this Section. Not earlier than sixty days
prior to the then effective Maturity Date occurs, but not later than March 15 of
each year, the Parent and the Borrowers may deliver to the Administrative Agent
and the Lenders a written request for a 364 day extension of the Maturity Date
together with a Certificate of a Responsible Official signed by a Senior Officer
on behalf of Parent and each Borrower stating that the representations and
warranties contained in Article 4 (OTHER THAN (i) representations and warranties
which expressly speak as of a particular date or are no longer true and correct
as a result of a change which is not a violation of this Agreement, (ii) as
otherwise disclosed by the Parent and the Borrowers and approved in writing by
the Requisite Lenders and (iii) Sections 4.4(a), 4.6 (first sentence), and 4.15)
shall be true and correct on and as of the date of such Certificate. Each Lender
shall notify the Administrative Agent within thirty days (but not sooner than 45
days prior to the Maturity Date) following its receipt of such a Certificate
whether (in its sole and absolute discretion) it consents to such request and
the Administrative Agent shall, after receiving the notifications from all of
the Lenders or the expiration of such period, whichever is earlier, notify
Parent and the Borrowers and the Lenders of the results thereof. If all of the
Lenders have consented, then the Maturity Date shall, effective on the
then-current Maturity Date be extended for 364 days from the then current
Maturity Date.
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If Lenders holding at least 66 2/3% of the Commitment consent to the
request for extension, but one or more Lenders (each a "Non-Consenting Lender")
notify the Administrative Agent that it will not consent to the request for
extension (or fail to notify the Managing Agent in writing of its consent within
the required period), Parent and the Borrowers may (i) cause such Non-Consenting
Lender to be removed as a Lender under this Agreement pursuant to Section
11.14(a), (ii) voluntarily terminate the Pro Rata Share of Non-Consenting Lender
in accordance with Section 11.14(b), or (iii) utilize a combination of the
procedures described in clauses (i) and (ii) of this Section. If such removal is
accomplished by assignment to an Eligible Assignee which has consented to the
requested extension, then the request for extension shall be granted with the
effect as set forth above. If such removal is accomplished by a voluntary
reduction of the Commitment, then the Administrative Agent shall notify all of
the Lenders in writing thereof.
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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 to bear interest at the
Default Rate to the fullest extent permitted by applicable Laws.
(b) Interest accrued on each Base Rate Loan on each Quarterly
Payment Date, and on the date of any prepayment of the Notes pursuant to Section
3.1(f), shall be due and payable on that day. EXCEPT as otherwise provided in
Section 3.8, the unpaid principal amount of any Base Rate Loan shall bear
interest at a fluctuating rate per annum equal to the Base Rate. Each change in
the interest rate under this Section 3.1(b) due to a change in the Base Rate
shall take effect simultaneously with the corresponding change in the Base Rate.
(c) Interest accrued on each Eurodollar Rate Loan having a
Eurodollar Period 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 6 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 Sections
3.1(d) and 3.8, 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 the Eurodollar Margin.
(d) During the existence of a Default or Event of Default, the
Requisite Lenders may determine that any or all then outstanding Eurodollar Rate
Loans shall be converted to Base Rate Loans. Such conversion shall be effective
upon notice to Borrowers from the Requisite Lenders (or from the Administrative
Agent on behalf of the Requisite Lenders) and shall continue so long as such
Default or Event of Default continues to exist.
(e) If not sooner paid, the principal Indebtedness evidenced by the
Notes shall be payable as follows:
(i) the principal amount of each Eurodollar Rate Loan
shall be payable on the last day of the Eurodollar Period for such
Loan;
(ii) the amount, if any, by which the aggregate principal
amount of the outstanding Loans at any time exceed the Commitment
shall be payable immediately, and shall be applied to the Notes; and
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(iii) the principal Indebtedness evidenced by the Notes
shall in any event be payable on the Maturity Date.
(f) 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 3.1(f), (i) any partial
prepayment shall be in an integral multiple of $1,000,000 but not less than
$10,000,000, (ii) the Administrative Agent shall have received written notice of
any prepayment by 9:00 a.m.,
California local time on a Business Day on the date
of prepayment in the case of a Base Rate Loan, and three Business Days, in the
case of a Eurodollar Rate Loan, 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 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 Eurodollar Period shall be subject
to Section 3.7(d).
3.2 ARRANGEMENT FEE. On the Closing Date, Parent and the Borrowers
shall pay to the Administrative Agent, for the sole account of the Arranger, an
arrangement fee in the amount heretofore agreed upon by letter agreement among
Parent, the Borrowers 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 is earned as of the date hereof and
is nonrefundable.
3.3 UPFRONT FEES. On the Closing Date, Parent and the Borrowers
shall pay to the Administrative Agent, for the respective accounts of the
Lenders, upfront fees in the amount described in a letter agreement between the
Company and the Lead Arranger. The amount of such fees have been the subject of
a written advice from the Lead Arranger to each Lender. Such fees are for the
credit facility 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 FACILITY FEES. On the last day of each Pricing Period, Borrowers
shall pay to the Administrative Agent, for the respective accounts of the
Lenders, pro rata according to their Pro Rata Share, a facility fee equal to (a)
the Facility Fee Rate per annum for that Pricing Period TIMES (b) the average
daily amount by of the Commitment (whether drawn or undrawn) during that Pricing
Period.
3.5 AGENCY FEES. Borrowers shall pay to the Administrative Agent an
agency fee in such amounts and at such times as heretofore agreed upon by letter
agreement among Parent, the Borrowers 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.
3.6 INCREASED COMMITMENT COSTS. If any Lender shall determine 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
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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, guidelines 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 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 such
Lender shall promptly give notice to the Borrowers and the Agent of such
determination. Thereafter, the Borrowers shall pay to such Lender, within five
Business Days following written demand therefor (setting forth the additional
amounts owed to such Lender and the basis of the calculation thereof in
reasonable detail), additional amounts sufficient to compensate such Lender in
light of such circumstances, to the extent reasonably allocable to such
obligations under this Agreement. Each Lender shall afford treatment to
Borrowers under this Section which is substantially similar to that which such
Lender affords to its other similarly situated customers.
3.7 EURODOLLAR COSTS AND RELATED MATTERS.
(a) If, after the date hereof, the existence or occurrence of any
Special Eurodollar Circumstance shall:
(1) subject any Lender or its Eurodollar Lending Office to
any tax, duty or other charge or cost with respect to any Eurodollar
Rate Advance, its Notes or its obligation to make Eurodollar Rate
Advances, or shall change the basis of taxation of payments to any
Lender of 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, its Notes or its obligation to make
Eurodollar Rate Advances, EXCLUDING, with respect to each Creditor,
and any Affiliate or Eurodollar Lending Office thereof, (i) taxes
imposed on or measured in whole or in part by its net income or
capital and franchise taxes imposed on it, (ii) any withholding taxes
or other taxes based on net income (other than withholding taxes and
taxes based on net 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 net
income for any period with respect to which it has failed to provide
Borrowers with the appropriate form or forms required by Section
11.21, to the extent such forms are then required by applicable Laws;
(2) impose, modify or deem applicable any reserve not
applicable or deemed applicable on the date hereof (INCLUDING, without
limitation, any reserve imposed by the Board of Governors of the
Federal Reserve System, BUT EXCLUDING the Eurodollar Reserve
Percentage taken into account in calculating the Eurodollar Rate),
special deposit, capital or similar
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requirements against assets of, deposits with or for the account of,
or credit extended by, any Lender or its Eurodollar Lending Office; or
(3) impose on any Lender or its Eurodollar Lending Office
or the Designated Eurodollar Market any other condition materially
affecting any Eurodollar Rate Advance, its Notes, its obligation to
make Eurodollar Rate Advances or this Agreement, or shall otherwise
materially affect any of the same;
and the result of any of the foregoing, as determined 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, its Notes 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, its Notes 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, PROVIDED THAT such Lender makes demand upon Borrowers
(with a copy to the Administrative Agent) within 90 days following the date upon
which it becomes aware of any such event or circumstance, Borrowers shall within
five Business Days 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). Each of the Borrowers hereby
jointly and severally (but as between Borrowers, ratably) indemnifies each
Lender against, and agrees to hold each Lender harmless from and reimburse such
Lender within five Business Days after demand for (without duplication) all
costs, expenses, claims, penalties, liabilities, losses, legal fees and damages
incurred or sustained by each Lender in connection with this Agreement, or any
of the rights, obligations or transactions provided for or contemplated herein,
as a result of the existence or occurrence of any Special Eurodollar
Circumstance. A statement of any Lender claiming compensation under this clause
and setting forth the additional amount or amounts to be paid to it hereunder
shall be conclusive in the absence of manifest error. Each Lender agrees to
endeavor promptly to notify Borrowers of any event of which it has actual
knowledge, occurring after the Closing Date, which will entitle such Lender to
compensation pursuant to this Section 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 judgment of such Lender,
otherwise be materially disadvantageous to such Lender. If any Lender claims
compensation under this Section, Borrowers may at any time, upon at least four
Eurodollar Business 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
3.7(d), pay in full the affected Eurodollar Rate Advances of such Lender or
request that such Eurodollar Rate Advances be converted to Base Rate Advances.
To the extent that any Lender which receives any payment from Borrowers under
this Section later receives any funds which are identifiable as a reimbursement
or rebate of such amount from any other Person, such Lender shall promptly
refund such amount to Borrowers.
(b) If the existence or occurrence of any Special Eurodollar
Circumstance shall, in the opinion of any Lender, make it unlawful, impossible
or impracticable for such
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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, impossibility or impracticability and the Administrative
Agent forthwith shall give notice thereof to the other Lenders and Borrowers.
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 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 3.7(d). Each Lender agrees to endeavor promptly to notify Borrowers 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 3.7(b), and agrees to designate a different Eurodollar Lending Office if
such designation will avoid the need for such notice and will not, in the
judgment of such Lender, otherwise be 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 a Base Rate Advance for the same period of time, and such amount
shall be treated in all respects as a Base Rate Advance. Any Lender whose
obligation to make Eurodollar Rate Advances has been suspended under this
Section 3.7(b) shall promptly notify the Administrative Agent and Borrowers of
the cessation of the Special Eurodollar Circumstance which gave rise to such
suspension.
(c) 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 Borrowers
and the Lenders, whereupon until the Administrative Agent notifies Borrowers
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. If at the time of such notice there is
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then pending a Request for Loan that specifies a Eurodollar Rate Loan, such
Request for Loan shall be deemed to specify a Base Rate Loan.
(d) Upon payment or prepayment of any Eurodollar Rate Advance,
(OTHER than as the result of a conversion required under Section 3.1(d) or
3.7(b)), 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 any 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, Borrowers shall pay to the
appropriate Lender within five Business 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) principal amount of the Eurodollar Rate Advance
prepaid or not borrowed, as the case may be, TIMES the quotient of (A)
the number of days between the date of prepayment or failure to
borrow, as applicable, and the last day in the applicable Eurodollar
Period, DIVIDED BY (B) 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 3.7(d) shall be conclusive in the absence of manifest error.
3.8 DEFAULT RATE. If (a) any installment of principal or interest or
any fee or cost or other amount payable under any Loan Document to any Creditor
is not paid when due, then such overdue Obligations shall, or (b) if any Event
of Default has occurred and remains continuing, then at the option of the
Requisite Lenders, all of the Obligations shall, thereafter bear interest at a
fluctuating interest rate per annum at all times equal to the sum of the Base
Rate 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.
3.9 COMPUTATION OF INTEREST AND FEES. Computation of interest on
Base Rate Loans calculated with reference to the Reference Rate shall be
calculated on the basis of a year of 365 or 366 days, as the case may be, and
the actual number of days elapsed; computation of interest on Base Rate Loans
calculated by reference to the Federal Funds Rate, and 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. Each 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.
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3.10 NON-BUSINESS DAYS. Subject to clause (b) of the definition of
"Eurodollar Period," if any payment to be made by Borrowers or any other Party
under any Loan Document shall come due on a day other than a Business Day,
payment shall instead be considered due on the next succeeding Business Day and
the extension of time shall be reflected in computing interest and fees.
3.11 MANNER AND TREATMENT OF PAYMENTS.
(a) Each payment hereunder (EXCEPT payments pursuant to Sections
3.6, 3.7, 11.3, and 11.10) or on the Notes or under any other Loan Document
shall be made without setoff, counterclaim, recoupment or other deduction of any
kind 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 local time,
on the day of payment (which must be a Business Day). All payments received
after these deadlines shall be deemed received on the next succeeding Business
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 local time, on a
Business Day and not so made available to the account of a Lender on that
Business 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 Borrowers,
be presumptive evidence absent manifest error 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 Borrowers 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, in the case of each Creditor, and any Affiliate or
Eurodollar Lending Office thereof, (i) taxes imposed on or measured in whole or
in part by its net income and franchise taxes imposed on it, (ii) any
withholding taxes or other taxes based on net income (other than withholding
taxes and taxes based on net 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 net income for any period
with respect to which it has failed to provide Borrowers 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 Parent or
any Borrower is obligated by applicable Laws to
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make any deduction or withholding on account of Taxes from any amount payable to
any Lender under this Agreement, Parent or that 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 Parent or the appropriate Borrower.
3.12 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.
3.13 FAILURE TO CHARGE NOT SUBSEQUENT WAIVER. Any decision by the
Creditors not to require payment of any interest (INCLUDING interest arising
under Section 3.8), 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 Creditor's right to require full
payment of any interest (INCLUDING interest arising under Section 3.8), fee,
cost or other amount payable under any Loan Document on any other or subsequent
occasion.
3.14 ADMINISTRATIVE AGENT'S RIGHT TO ASSUME PAYMENTS WILL BE MADE BY
BORROWERS. Unless the Administrative Agent shall have been notified by Borrowers
prior to the date on which any payment to be made by Borrowers hereunder is due
that Borrowers do not intend to remit such payment, the Administrative Agent
may, in its discretion, assume that the appropriate 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 that
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.
3.15 FEE DETERMINATION DETAIL. Each Creditor shall provide reasonable
detail to Parent and the Borrowers regarding the manner in which the amount of
any payment to that Creditor under Article 3 has been determined, concurrently
with demand for such payment.
3.16 SURVIVABILITY. All of the Parent's and the Borrowers'
obligations under Sections 3.6 and 3.7 shall survive for ninety days following
the date on which the Commitment is terminated and all Loans hereunder are fully
paid.
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Article 4
REPRESENTATIONS AND WARRANTIES
Parent and each Borrower represents and warrants to the Creditors, as
of the date hereof, as of the Closing Date, and as of the date of the making of
each Advance that:
4.1 EXISTENCE AND QUALIFICATION; POWER; COMPLIANCE WITH LAWS. Parent
and each of the Borrowers are duly formed, validly existing and in good standing
under the Laws of its jurisdiction of formation. Parent and each of the
Borrowers are 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. Parent and each of the
Borrowers have all requisite corporate or partnership power (as applicable) and
authority to conduct their respective business, to own and lease their
respective 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 Parent and each of the Borrowers 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. Parent and
each of the Borrowers are in compliance with all Laws and other legal
requirements applicable to their respective business, have obtained all
authorizations, consents, approvals, orders, licenses and permits from, and have
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 their 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 Parent and
each Borrower of the Loan Documents to which it is a Party have been duly
authorized by all necessary corporate or partnership action, as applicable, 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 or
Right of Others 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;
(e) Result in a breach by such Party of or constitute a default by
such Party under, or cause or permit the acceleration of any obligation owed
under, any indenture or loan
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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 Parent, Borrowers nor any of their Significant Subsidiaries 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
Parent, Borrowers of the Loan Documents to which any of them 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 SIGNIFICANT SUBSIDIARIES.
(a) Schedule 4.4 hereto correctly sets forth the names, form of
legal entity, percentage of shares of each class of capital stock issued and
outstanding, percentage of shares owned by Parent or a Significant Subsidiary
(specifying such owner) and jurisdictions of organization of each of the
Significant Subsidiaries of Parent. Unless otherwise indicated in Schedule 4.4,
as of the Closing Date all of the outstanding shares of capital stock, or all of
the units of equity interest, as the case may be, of each such Significant
Subsidiary are owned of record and beneficially by the Persons described
therein, there are no outstanding options, warrants or other rights to purchase
capital stock of any such Significant Subsidiary, and all such shares or equity
interests so owned are duly authorized, validly issued, fully paid,
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 and
Rights of Others, except for Permitted Encumbrances and Permitted Rights of
Others.
(b) Each Significant Subsidiary of Parent is 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 Subsidiary of Parent 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.
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4.5 FINANCIAL STATEMENTS. Parent and Borrowers have furnished to the
Lenders the audited consolidated financial statements of Parent and its
Subsidiaries for the Fiscal Year ended December 31, 2001. The financial
statements described above fairly present in all material respects the financial
condition, results of operations and changes in financial position of Parent and
its Subsidiaries as of such dates and for such periods, in conformity with
Generally Accepted Accounting Principles, consistently applied.
4.6 NO OTHER LIABILITIES; NO MATERIAL ADVERSE EFFECT. As of the
Closing Date, Parent and its Subsidiaries do not have any material liability or
material contingent liability not reflected or disclosed 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 December 31, 2001.
4.7 TITLE TO PROPERTY. Parent and its Subsidiaries have valid title
(which may consist of easements or leasehold estates) to the Property reflected
in the financial statements described in Section 4.5, other than immaterial
items of Property and Property subsequently sold or disposed of in the ordinary
course of business, free and clear of all Liens and Rights of Others, OTHER THAN
Liens or Rights of Others described in Schedule 4.7, as permitted by Section
6.4, and any other matters which do not have a Material Adverse Effect.
4.8 LITIGATION. There are no actions, suits, proceedings or
investigations pending as to which Parent or any of its Subsidiaries have been
served or have received notice or, to the knowledge of Parent and the Borrowers,
threatened against or affecting Parent or any of its Subsidiaries or any
Property of any of them before any Governmental Agency in which there is any
reasonable possibility of an adverse decision which could materially adversely
affect the business, consolidated financial position or results of operations of
Parent and its Subsidiaries, taken as a whole, or which in any manner draws into
question the validity or enforceability of the Loan Documents.
4.9 BINDING OBLIGATIONS. Each of the Loan Documents will, when
executed and delivered by Parent and the Borrowers party thereto, 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 or equitable principles relating to the granting of specific
performance and other equitable remedies as a matter of judicial discretion.
4.10 NO DEFAULT. No event has occurred and is continuing that is a
Default or Event of Default.
4.11 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;
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(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 Parent 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 Parent nor any of its 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.
4.12 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 or X. Neither Parent nor any of its Subsidiaries
is or is required to be registered as an "investment company" under the
Investment Company Act of 1940.
4.13 DISCLOSURE. No written statement made by a Senior Officer of
Parent or any Borrower to any Creditor in connection with this Agreement,
including without limitation the statements made in the Confidential Offering
Memorandum, or in connection with any Loan, Advance 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.
4.14 TAX LIABILITY. Parent and its 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 Parent or any
of its Subsidiaries, EXCEPT (a) such taxes, if any, as are being contested in
good faith by appropriate proceedings and as to which adequate reserves have
been established and maintained and (b) immaterial taxes and tax returns so long
as no material item or portion of Property of Parent or any of its Subsidiaries
is in jeopardy of being seized, levied upon or forfeited.
4.15 PROJECTIONS. As of the Closing Date, to the best knowledge of
Parent and the Borrowers, the assumptions set forth in the Projections are
reasonable and consistent with each other and with all facts known to Parent and
the Borrowers, and the Projections are (a) reasonably based on such assumptions
and (b) although a range of possible different assumptions and estimates might
also be reasonable, neither Parent nor the Borrowers are aware of any facts
which would lead them to believe that the assumptions and estimates on which the
Projections were based are not reasonable; provided that no representation or
warranty can be given that the projected results will be realized or with
respect to the ability of Parent and its Subsidiaries to achieve the projected
results and, while the Projections are
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necessarily presented with numerical specificity, the actual results achieved
during the periods presented may differ from the projected results, and such
differences may be material.
4.16 HAZARDOUS MATERIALS. Parent and the Borrowers have reasonably
concluded that Hazardous Materials Laws are unlikely to have a material adverse
effect on the business, financial position, results of operations or prospects
of the Parent and its Subsidiaries, considered as a whole.
4.17 GAMING LAWS. Parent and each of its Subsidiaries are in
compliance in all material respects with all Gaming Laws that are applicable to
them and their businesses.
4.18 SOLVENCY. As of the Closing Date, and giving effect to the
transactions contemplated to occur on the Closing Date, Parent and each of its
Subsidiaries are Solvent.
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Article 5
AFFIRMATIVE COVENANTS
So long as any Advance remains unpaid, or any other Obligation remains
unpaid or unperformed, or any portion of the Commitment remains in force, Parent
and each Borrower shall, and shall cause their respective Subsidiaries to,
unless the Administrative Agent (with the written approval of the Requisite
Lenders) otherwise consents:
5.1 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 where the
failure to so preserve and maintain the existence of any Subsidiary and such
authorizations would not constitute a Material Adverse Effect and EXCEPT that a
merger permitted by Section 6.1 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.
5.2 MAINTENANCE OF PROPERTIES. Maintain, preserve and protect all of
their respective depreciable 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 where the failure to maintain, preserve and
protect a particular item of depreciable Property would not have a Material
Adverse Effect.
5.3 MAINTENANCE OF INSURANCE. Maintain liability, casualty and other
insurance (subject to customary deductibles and retentions) with financially
sound and 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 Parent and its Subsidiaries
operate, and will furnish to the Administrative Agent upon request information
in reasonable detail as to the insurance so carried. Notwithstanding the
foregoing, Parent and its Subsidiaries may self-insure with respect to such
risks with respect to which companies of established reputation engaged in the
same general line of business in the same general area usually self-insure.
5.4 COMPLIANCE WITH LAWS. Comply in all material respects and within
the time period, if any, given for such compliance by the relevant Governmental
Agency or Agencies with enforcement authority, with all Laws and Requirements of
Law, including without limitation Hazardous Materials Laws, ERISA and all Gaming
Laws, EXCEPT that Parent and its Subsidiaries need not comply with a Requirement
of Law then being contested by any of them in good faith by appropriate
proceedings.
5.5 INSPECTION RIGHTS. Upon reasonable notice, at any time during
regular business hours and as often as requested (but not so as to materially
interfere with the business of the Parent or any of its Subsidiaries), permit
the Administrative Agent or any Lender, or any authorized employee, agent or
representative thereof, to examine, audit and
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make copies and abstracts from the records and books of account of, and to visit
and inspect the Properties of, the Parent and its Subsidiaries and to discuss
the affairs, finances and accounts of the Parent and its Subsidiaries with any
of their officers, key employees or accountants and, upon request, furnish
promptly to the Administrative Agent or any Lender true copies of all financial
information made available to the senior management of the Parent.
5.6 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 Parent or any of its Subsidiaries.
5.7 USE OF PROCEEDS. Use the proceeds of Loans for working capital
and general corporate purposes of Parent and its Subsidiaries.
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Article 6
NEGATIVE COVENANTS
So long as any Advance remains unpaid, or any other Obligation remains
unpaid or unperformed, or any portion of the Commitment remains in force, Parent
and each Borrower shall not, and shall not permit any of their respective
Subsidiaries to, unless the Administrative Agent (with the written approval of
the Requisite Lenders) otherwise consents:
6.1 CONSOLIDATIONS, MERGERS AND SALES OF ASSETS. Merge or
consolidate with or into any Person, or sell, lease or otherwise transfer all or
any substantial part of the assets of Parent and its Subsidiaries, taken as a
whole, to any Person, EXCEPT:
(a) mergers and consolidations of a Subsidiary of a Borrower into
that Borrower or a Subsidiary thereof (with that Borrower or the Subsidiary as
the surviving entity) or of Subsidiaries of the Borrowers with each other;
(b) a merger or consolidation of a Borrower or any Subsidiary
thereof with any other Person, PROVIDED that (i) either (A) the Borrower or the
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 and, as of
the date of such merger or consolidation, expressly assumes, by an instrument
satisfactory in form and substance to the Requisite Lenders, the Obligations of
the relevant Borrower or the Subsidiary, as the case may be, (ii) giving effect
thereto, no Default or Event of Default exists or would result therefrom, and
(iii) giving pro forma effect thereto, Borrowers are in compliance with the
covenants set forth in Sections 6.5 and 6.6.
6.2 HOSTILE TENDER OFFERS. Make any offer to purchase or acquire, or
consummate a purchase or acquisition of, 5% or more of the capital stock of any
corporation or other equity securities of any business entity if the board of
directors or management of such corporation or business entity has notified
Parent or any of its Subsidiaries in writing that it opposes such offer or
purchase and such notice has not been withdrawn or superseded.
6.3 CHANGE IN NATURE OF BUSINESS. Make any material change in the
nature of the business of Parent and its Subsidiaries, taken as a whole, or
acquire more than 49% of the capital stock or other equity securities of any
Person which is engaged in a line of business other than the lines of business
reasonably related to or incidental to the business engaged in by Parent and its
Subsidiaries.
6.4 LIENS, NEGATIVE PLEDGES, SALE LEASEBACKS AND RIGHTS OF OTHERS.
Create, incur, assume or suffer to exist any Lien, Negative Pledge or Right of
Others of any nature upon or with respect to any of their respective Properties,
whether now owned or hereafter acquired, or enter into any Sale and Leaseback
with respect to any such Properties EXCEPT:
(a) Permitted Encumbrances and Permitted Rights of Others;
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(b) Liens and Negative Pledges under the Loan Documents and under
the Five Year Loan Agreement;
(c) other existing Liens, Negative Pledges and Rights of Others
existing on the Closing Date and disclosed in Schedule 4.7 (or not required to
be disclosed therein under Section 4.7) and any renewals or extensions thereof;
PROVIDED that the obligations secured or benefited thereby are not increased;
(d) Until the date which is ninety days following the Closing Date,
any Lien, Negative Pledge or Right of Others 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 any Subsidiary of Parent that
holds, directly or indirectly through a holding company or otherwise, a license
to conduct gaming under any Gaming Law, and in the proceeds thereof; PROVIDED
that this clause shall apply only so long as the Gaming Laws of the relevant
jurisdiction 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 shall be of no further effect; and
PROVIDED FURTHER that if at any time Parent or any of its Subsidiaries creates
or suffers to exist a Lien or Negative Pledge covering such securities in favor
of the holder of any other Indebtedness, it will (subject to any approval
required under such Gaming Laws) concurrently grant a pari-passu Lien or
Negative Pledge likewise covering such securities in favor of the Administrative
Agent for the benefit of the Lenders;
(e) Liens on Property acquired or constructed by Parent or any of
its Subsidiaries, and in the proceeds thereof, that (i) were in existence at the
time of the acquisition or construction of such Property or were created at or
within 90 days after such acquisition or construction, and (ii) secure (in the
case of Liens not in existence at the time of acquisition of the Property) only
the unpaid portion of the acquisition or construction price for such Property,
or monies borrowed that were used to pay such acquisition or construction price;
(f) Liens securing Indebtedness (INCLUDING Capital Lease
Obligations) that replaces or refinances Indebtedness secured by Liens permitted
under clause (e); PROVIDED that such Liens cover only the same Property as the
Liens securing the Indebtedness replaced or refinanced;
(g) Liens, Negative Pledges and Rights of Others held by joint
venture partners and any assignees thereof, and lenders thereto and any
assignees thereof, with respect to the interests of Parent and its Subsidiaries
in (i) that joint venture and the proceeds thereof or (ii) the capital stock or
other equity ownership interests held by any Joint Venture Holding Company in
that joint venture and the proceeds thereof, PROVIDED, in each case, that such
Liens, Negative Pledges and Rights of Others shall secure and relate only the
obligations of such joint venture or Contingent Obligations permitted by Section
6.7(g);
(h) Liens, Negative Pledges and Rights of Others in favor of
counterparties to agreements, and assignees thereof, entered into by Parent and
its Subsidiaries in the ordinary course of business on the interests of Parent
and its Subsidiaries under such
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agreements and the proceeds thereof, PROVIDED that such Liens, Negative Pledges
and Rights of Others shall secure and relate only to restrictions on transfer of
the rights of Parent and its Subsidiaries to the holders thereof under the
relevant agreement;
(i) Liens on Cash securing only Defeased Debt;
(j) Liens not otherwise permitted by the foregoing clauses of this
Section encumbering assets of the Parent and its Subsidiaries having an
aggregate fair market value which is not in excess of 10% of Net Tangible Assets
at any time; and
6.5 TOTAL DEBT RATIO. Permit the Total Debt Ratio to exceed
4.50:1.00 as of the last day of any Fiscal Quarter.
6.6 INTEREST COVERAGE RATIO. Permit the Interest Coverage Ratio to
be less than 3.00:1.00 as of the last day of any Fiscal Quarter.
6.7 SUBSIDIARY INDEBTEDNESS. Permit any Subsidiary of Parent which
is not a Borrower hereunder to create, assume, incur or suffer to exist any
Indebtedness or Contingent Obligations with respect to Indebtedness OTHER THAN:
(a) Defeased Debt;
(b) secured Indebtedness (including Capital Lease Obligations) and
Contingent Obligations which are permitted by Sections 6.4(e) or 6.4(f);
(c) unsecured Indebtedness and Contingent Obligations which were
created, assumed or incurred by such Subsidiary prior to its acquisition by
Parent and its Subsidiaries (and not in anticipation of such acquisition) but
not any refinancings, renewals or extensions thereof;
(d) letters of credit, surety bonds and other similar forms of
credit enhancement for such Subsidiaries incurred in the ordinary course of
their business; and
(e) Intercompany Debt, PROVIDED such Indebtedness is not subject to
any Lien (other than Liens in favor of the Administrative Agent and the
Lenders);
(f) Contingent Obligations of Management Companies consisting of
guarantees of Indebtedness of Persons which are the counterparties to any
management agreement, development agreement or other similar instruments to
which such Management Companies are also party, PROVIDED that (i) the assets of
each Management Company issuing any such guarantees shall not exceed 1.0% of Net
Tangible Assets at any time, and (ii) the aggregate amount of assets of all
Subsidiaries issuing guarantees permitted by this Section 6.7(f) shall not
exceed 5% of Net Tangible Assets at any time; and
(g) Contingent Obligations of Joint Venture Holding Companies
consisting of guarantees of Indebtedness of Persons in which such Joint Venture
Holding Companies own equity securities, PROVIDED that the other Persons owning
such equity securities have also ratably guaranteed such Indebtedness.
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Article 7
INFORMATION AND REPORTING REQUIREMENTS
7.1 FINANCIAL AND BUSINESS INFORMATION. So long as any Advance
remains unpaid, or any other Obligation remains unpaid or unperformed, or any
portion of the Commitment remains in force, Parent and the Borrowers shall,
unless the Administrative Agent (with the written approval of the Requisite
Lenders) otherwise consents, deliver to the Administrative Agent and the
Lenders, at Parent's and Borrowers' sole expense:
(a) As soon as practicable, and in any event within 45 days after
the end of each Fiscal Quarter (other than the fourth Fiscal Quarter in any
Fiscal Year), the consolidated balance sheet of Parent and its Subsidiaries as
at the end of such Fiscal Quarter and the consolidated statement of operations
for each Fiscal Quarter, and its statement of cash flows for the portion of the
Fiscal Year ended with such Fiscal Quarter and 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 Parent as fairly
presenting the financial condition, results of operations and cash flows of
Parent 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 prior to the
penultimate Business Day of February in each Fiscal Year, a Certificate of a
Responsible Official setting forth the Total Debt Ratio as of the last day of
the fourth Fiscal Quarter of the preceding year, and providing reasonable detail
as to the calculation thereof, which calculations shall be based on the
preliminary unaudited financial statements of Parent and its Subsidiaries for
such Fiscal Quarter;
(c) As soon as practicable, and in any event within 120 days after
the end of each Fiscal Year, the consolidated balance sheet of Parent and its
Subsidiaries as at the end of such Fiscal Year and the consolidated statements
of operations, shareholders' equity and cash flows, in each case of Parent and
its Subsidiaries for such Fiscal Year as at 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 and opinion of independent public accountants of recognized standing
selected by Parent and reasonably satisfactory to the Requisite Lenders, which
report and opinion shall be prepared in accordance with generally accepted
auditing standards as at such date, and shall not be subject to any
qualifications or exceptions. Such accountants' report and opinion 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 or, if, in the opinion of such accountants, any such
Default shall exist, stating the nature and status of such Default, and stating
that such accountants have reviewed Parent's and Borrowers' financial
calculations as at the end of such Fiscal Year (which shall accompany such
certificate) under Section 6.5 and 6.6, have read such Sections (including the
definitions of all defined terms used therein) and that nothing has come to the
attention of such accountants in the course of such
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examination that would cause them to believe that the same were not calculated
by Parent and the Borrowers in the manner prescribed by this Agreement;
(d) As soon as practicable, and in any event within 90 days after
the commencement of each Fiscal Year, a budget and projection by Fiscal Quarter
for that Fiscal Year and by Fiscal Year for the next four succeeding Fiscal
Years, INCLUDING for the first such Fiscal Year, projected quarterly
consolidated balance sheets, statement of operations and statements of cash flow
and, for the remaining four Fiscal Years, projected annual consolidated
condensed balance sheets and statements of operations and cash flow, of Parent
and its Subsidiaries, all in reasonable detail;
(e) Promptly after the same are available, copies of each annual
report, proxy or financial statement or other report or communication sent to
the shareholders of Parent, and copies of all annual, regular, periodic and
special reports and registration statements which Parent may file or be required
to file with the Securities and Exchange Commission under Sections 13 or 15(d)
of the Securities Exchange Act of 1934 and not otherwise required to be
delivered to the Lenders pursuant to other provisions of this Section;
(f) Promptly after the same are available, copies of the Nevada
"Regulation 6.090 Report" and "6-A Report" and copies of any written
communication to Parent or any of its Subsidiaries from any Gaming Board
advising it of a violation of or non-compliance with, any Gaming Law by Parent
or any of its Subsidiaries;
(g) Promptly after request by any Creditor, copies of any other
report or other document that was filed by Parent or any of its Subsidiaries
with any Governmental Agency;
(h) As soon as practicable, and in any event within three Business
Days after a Senior Officer becomes aware of the existence of any condition or
event which constitutes a Default, telephonic notice specifying the nature and
period of existence thereof, and, no more than three Business Days after such
telephonic notice, written notice again specifying the nature and period of
existence thereof and specifying what action Parent or any of its Subsidiaries
are taking or propose to take with respect thereto;
(i) Promptly upon a Senior Officer becoming aware of any litigation,
governmental investigation or any proceeding, including any litigation or
proceeding by or subject to decision by any Gaming Board) pending (i) against
Parent or any of its Subsidiaries which could reasonably be expected to have a
Material Adverse Effect, (ii) with respect to any material Indebtedness of
Parent or any of its Subsidiaries, or (iii) with respect to the Loan Documents,
notice of the existence of the same; and
(j) Such other data and information as from time to time may be
reasonably requested by any Creditor through the Administrative Agent.
7.2 COMPLIANCE CERTIFICATES. So long as any Advance remains unpaid,
or any other Obligation remains unpaid or unperformed, or any portion of the
Commitment remains outstanding, Parent and Borrowers shall deliver to the
Administrative Agent and the
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Lenders, at Parent's and Borrowers' sole expense, concurrently with the
financial statements required pursuant to Sections 7.1(a) and 7.1(c), a
Compliance Certificate signed on Parent's and Borrowers' behalf by a Senior
Officer.
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Article 8
CONDITIONS
8.1 INITIAL ADVANCES, ETC. 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) at least one 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, Parent and each Borrower;
(2) Notes executed by each Borrower in favor of each
Lender, each in a principal amount equal to that Lender's Pro Rata
Share;
(3) the Parent Guaranty executed by Parent;
(4) with respect to the Parent and each other Borrower,
such documentation as the Administrative Agent may require to
establish the due organization, valid existence and good standing of
Parent and each Borrower, 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, certificates of corporate resolutions,
incumbency certificates and Certificates of Responsible Officials;
(5) the Opinion of Counsel;
(6) 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;
(7) a Certificate of a Responsible Official signed on
Parent's and the Borrowers' behalf by a Senior Officer setting forth
the Total Debt Ratio as of March 31, 2002 and the Debt Rating as of
the Closing Date;
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(8) a Certificate of a Responsible Official signed on
Parent's and the Borrowers' behalf by a Senior Officer certifying that
the conditions specified in Sections 8.1(e) and 8.1(f) have been
satisfied;
(9) a copy of the Parent's and its Subsidiaries' audited
consolidated annual financial statements for the Fiscal Year ended
December 31, 2001; and
(10) such other assurances, certificates, documents,
consents or opinions as the Administrative Agent reasonably may
require.
(b) The initial Loans shall have been used or shall concurrently be
used to refinance the obligations of the Borrowers under the Existing Loan
Agreement.
(c) The arrangement fee, upfront fees and agency fees payable
pursuant to Sections 3.2, 3.3 and 3.5 shall have been paid.
(d) The reasonable costs and expenses of the Administrative Agent
and the Lead Arranger in connection with the preparation of the Loan Documents
payable pursuant to Section 11.3, and invoiced to the Parent prior to the
Closing Date, shall have been paid.
(e) The representations and warranties of Parent and the Borrowers
contained in Article 4 shall be true and correct.
(f) Parent, Borrowers and any other Parties shall be in compliance
with all the terms and provisions of the Loan Documents, and after giving effect
to the initial Advance no Default or Event of Default shall have occurred and be
continuing.
8.2 ANY INCREASING ADVANCE, ETC. The obligation of each Lender to
make any Advance which would increase the aggregate principal amount of the
outstanding Advances is subject to the following conditions precedent:
(a) EXCEPT (i) for representations and warranties which expressly
speak as of a particular date or are no longer true and correct as a result of a
change which is not a violation of the Loan Documents and (ii) as disclosed by
Parent and Borrowers and approved in writing by the Requisite Lenders, the
representations and warranties contained in Article 4 (OTHER THAN Sections
4.4(a), 4.6 (first sentence) and 4.15) shall be true and correct on and as of
the date of the Advance as though made on that date;
(b) there shall not be then pending or threatened any action, suit,
proceeding or investigation against or affecting Parent or any of its
Subsidiaries or any Property of any of them before any Governmental Agency that
constitutes a Material Adverse Effect;
(c) the Administrative Agent shall have timely received a Request
for Loan in compliance with Article 2 (or telephonic or other request for loan
referred to in the second sentence of Section 2.1(b), if applicable) in
compliance with Article 2; and
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(d) the Administrative Agent shall have received, in form and
substance satisfactory to the Administrative Agent, such other assurances,
certificates, documents or consents related to the foregoing as the
Administrative Agent or Requisite Lenders reasonably may require.
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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) Any Borrower fails to pay any principal on any Note, or any
portion thereof, on the date when due; or
(b) Parent or any Borrower fails to pay any interest on any of the
Notes, or any fees under Sections 3.4 or 3.5, or any portion thereof, within
five Business Days after the date when due; or fails to pay any other fee or
amount payable to the Lenders under any Loan Document, or any portion thereof,
within five Business Days after demand therefor; or
(c) Parent or any Borrower fails, immediately upon notice from the
Administrative Agent, to comply with any of the covenants contained in Article 6
(other than the covenant contained in Section 6.3); or
(d) Parent or any Borrower fails to comply with Section 7.1(h) in
any respect that is materially adverse to the interests of the Lenders; or
(e) Parent, any Borrower or any other Party fails to perform or
observe any other covenant or agreement (not specified in clauses (a), (b), (c)
or (d) above) contained in any Loan Document on its part to be performed or
observed within thirty Business Days after the giving of notice by the
Administrative Agent on behalf of the Requisite Lenders of such Default; or
(f) Any representation or warranty of Parent or any Borrower made in
any Loan Document, or in any certificate or other writing delivered by Parent or
any Borrower pursuant to any Loan Document, proves to have been incorrect when
made or reaffirmed; or
(g) Parent or any of its Significant Subsidiaries (i) fails to pay
the principal, or any principal installment, of any present or future
indebtedness for borrowed money of $100,000,000 or more including without
limitation the Five Year Loan Agreement, or any guaranty of present or future
indebtedness for borrowed money of $100,000,000 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 to occur, in connection with any
present or future indebtedness for borrowed money of $100,000,000 or more, or of
any guaranty of present or future indebtedness for borrowed money of
$100,000,000 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
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(h) Any event occurs which gives the holder or holders of any
Subordinated Debt (or an agent or trustee on its or their behalf) the right to
declare such indebtedness 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 Debt; or
(i) Any Loan Document, at any time after its execution and delivery
and for any reason other than the agreement of 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 in writing to revoke, terminate
or rescind same; or
(j) A final judgment against the Parent or any of its Significant
Subsidiaries is entered for the payment of money in excess of $25,000,000 and,
absent procurement of a stay of execution, such judgment remains unsatisfied for
thirty calendar days after the date of entry of judgment, or in any event later
than five 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 calendar days after its issue or
levy; or
(k) The Parent or any of its Significant Subsidiaries institutes or
consents to the institution of any proceeding under a Debtor Relief Law relating
to it or to all or any part of its Property, or is unable 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 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 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 60 calendar days; or
(l) 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
(m) Any determination is made by a court of competent jurisdiction
that any Subordinated Debt is not subordinated in accordance with its terms to
the Obligations, PROVIDED THAT for so long as such determination is effectively
stayed during any pending appeal the same shall not constitute an Event of
Default; or
(n) Any Pension Plan maintained by the Parent or any of its
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
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(o) The occurrence of a License Revocation with respect to a license
issued to Parent or any of its Subsidiaries by any Gaming Board of the States of
New Jersey or Nevada with respect to gaming operations at any gaming facility
accounting for 5% or more of the consolidated gross revenues of Parent and its
Subsidiaries that continues for thirty calendar days.
9.2 REMEDIES UPON EVENT OF DEFAULT. Without limiting any other
rights or remedies of the Creditors provided for elsewhere in this Agreement, or
the 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(k):
(1) the commitment to make Advances and all other
obligations of the Creditors and all rights of Parent, Borrowers and
any other Parties under the Loan Documents shall be suspended without
notice to or demand upon Parent or the Borrowers, which are expressly
waived by Parent and the Borrowers, EXCEPT that all of the Lenders or
the Requisite Lenders (as the case may be, in accordance with Section
11.2) may waive an Event of Default or, without waiving, determine,
upon terms and conditions satisfactory to the Lenders or Requisite
Lenders, as the case may be, to reinstate the Commitment and make
further Advances, which waiver or determination shall apply equally
to, and shall be binding upon, all the Lenders; and
(2) 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
Parent and the Borrowers.
(b) Upon the occurrence of any Event of Default described in Section
9.1(k):
(1) the commitment to make Advances and all other
obligations of the Creditors and all rights of Parent, Borrowers and
any other Parties under the Loan Documents shall terminate without
notice to or demand upon Parent or Borrowers, which are expressly
waived by Parent and Borrowers, EXCEPT that all the Lenders may waive
the Event of Default or, without waiving, determine, upon terms and
conditions satisfactory to all the Lenders, to reinstate the
Commitment and make further Advances, which determination shall apply
equally to, and shall be binding upon, all the Lenders; and
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(2) 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 Parent and Borrowers.
(c) Upon the occurrence of any Event of Default, the Creditors, or
any of them, without notice to (EXCEPT as expressly provided for in any Loan
Document) or demand upon Parent or Borrowers, which are expressly waived by
Borrowers (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
Parent and the Borrowers and any other Parties 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 Creditors, shall be applied first
to the costs and expenses (including attorneys' fees and disbursements and the
allocated costs of attorneys employed by the Administrative Agent) of the
Creditors, 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 the Obligations hereunder and under the Notes, payments shall be
applied FIRST, to the costs and expenses of the Creditors, 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 Creditors under the Loan Documents. 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.
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Article 10
THE ADMINISTRATIVE AGENT
10.1 APPOINTMENT AND AUTHORIZATION. Each Creditor hereby irrevocably
appoints and authorizes the Administrative Agent to take such action as agent on
its behalf 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 Obligations 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 (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 was not the
Administrative Agent, and the term "Lender" or "Lenders" includes Bank of
America in its individual capacity. Bank of America (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
Parent, any Subsidiary thereof, or any Affiliate of Parent, as if it was not the
Administrative Agent and without any duty to account therefor to the Lenders.
Bank of America (and each successor Administrative Agent) need not account to
any other Bank 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 Administrative
Agent, on behalf of all the Lenders, shall hold in accordance with the Loan
Documents all items of any collateral or interests therein hereafter received or
held by the Administrative Agent. Subject to the Administrative Agent's and the
Lenders' rights to reimbursement for their costs and expenses hereunder
(INCLUDING attorneys' fees and disbursements and other professional services and
the allocated costs of attorneys employed by the Administrative Agent or a
Lender), each Lender shall have an interest in the Lenders' interest in any
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 Creditor agrees that it has,
independently and without reliance upon the Administrative Agent, any other
Creditor or the directors, officers, agents, employees or attorneys of any other
Creditor, and instead in reliance upon information supplied to it by or on
behalf of Parent and Borrowers and upon such other information as it has deemed
appropriate, made its own independent credit analysis and decision to enter into
this Agreement. Each Creditor also agrees that it shall, independently and
without reliance upon any other Creditor or the directors, officers, agents,
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employees or attorneys of any other Creditor, 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) The Administrative Agent may assume that no Default or Event of
Default has occurred and is continuing, unless they have received notice from a
Parent or any Borrower stating the nature of the Default or Event of Default or
have received notice from a Lender stating the nature of the Default or Event of
Default and that such Lender considers the Default or Event of 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
Business 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 Creditors.
(e) The Administrative Agent shall have no liability to any Creditor
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:
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(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 Parent 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
Parent 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 Parent or its 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 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 Parent, Borrowers or any Subsidiary
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 Creditors (and, to the extent
applicable, Parent and Borrowers) 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, indemnify and hold the Administrative Agent, the Lead
Arranger and their respective 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
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and disbursements and allocated costs of attorneys employed by the
Administrative Agent or the Lead Arranger) 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 Parent or
Borrowers to pay and perform the Obligations) or any action taken or not taken
by it as Administrative Agent and the Lead Arranger thereunder, EXCEPT such as
result from their own gross negligence or willful misconduct. Without limitation
on the foregoing, each Lender shall reimburse the Administrative Agent and the
Lead Arranger upon demand for that Lender's Pro Rata Share of any out-of-pocket
cost or expense incurred by the Administrative Agent or the Lead Arranger 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
Parent, Borrowers or any other Party fails to do so upon demand.
10.8 SUCCESSOR ADMINISTRATIVE AGENT. The Administrative Agent may,
and at the request of the Requisite Lenders shall, resign as Administrative
Agent upon thirty days notice to the Lenders, Parent and the Borrowers. If the
Administrative Agent resigns 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 Parent and Borrowers (and such approval shall not be unreasonably
withheld). 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, Parent and
Borrowers, 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 (except for any liabilities incurred prior to such termination).
After any retiring Administrative Agent's resignation hereunder as
Administrative Agent, the provisions of this Article 10, and Sections 11.3, and
11.10, 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 no successor
administrative agent has accepted appointment as Administrative Agent by the
date which is thirty 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 NO OBLIGATIONS OF PARENT OR BORROWERS. Nothing contained in this
Article 10 shall be deemed to impose upon Parent or Borrowers 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 Parent and
Borrowers shall have no liability to any Creditor in respect of any failure by
any Creditor to perform any of its obligations to any other Creditor under this
Agreement.
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Article 11
MISCELLANEOUS
11.1 CUMULATIVE REMEDIES; NO WAIVER. The rights, powers, privileges
and remedies of the Creditors 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 any
Creditor 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 Creditors; the same
may be waived in whole or in part, with or without terms or conditions, in
respect of any Loan without prejudicing the Creditors 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 Parent, Borrowers or any other Party therefrom, may 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
Parent or any Borrower is a party, signed by Parent and that Borrower 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 forgive any principal Obligation, defer any required payment
of any Obligation, reduce the amount or rate of interest payable on any Loan or
Advance without the consent of the affected Lender, increase the amount of the
Commitment or the Pro Rata Share of any Lender or decrease the amount of any
facility fee payable to any Lender, or reduce any other fee or amount payable to
the Creditors under the Loan Documents or to waive an Event of Default
consisting of the failure of any Borrower to pay when due principal, interest or
any facility 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 facility fee, or to extend the term of the Commitment (except
as set forth in Section 2.8);
(c) To amend the provisions of the definition of "Requisite Lenders"
or this Section 11.2 or to amend or waive Section 6.2;
(d) to release or subordinate the Parent Guaranty; 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 of
the Creditors.
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If, in connection with any proposed amendment, modification, supplement,
termination, waiver or consent to any of the provisions hereof as contemplated
by clauses (a) through (d), inclusive, of this Section 11.2, the consent of the
Required Lenders is obtained, but the consent of one or more of the other
Lenders is required and is not obtained, then the Borrowers shall have the right
to (i) replace such non-consenting Lender with one or more Eligible Assignees in
accordance with Section 11.14(a) if such Eligible Assignee consents to the
proposed amendment, modification, supplement, termination, waiver or consent, or
(ii) reduce the Commitment in accordance with Section 11.14(b) or any
combination of the foregoing, provided that each such non-consenting Lender
shall be either replaced as set forth in clause (i) or eliminated as set forth
in clause (ii).
11.3 COSTS, EXPENSES AND TAXES. Each Borrower shall pay within two
Business Days after demand, accompanied by an invoice therefor, the reasonable
costs and expenses of the Administrative Agent and the Lead Arranger in
connection with the negotiation, preparation, syndication, execution and
delivery of the Loan Documents and any amendment thereto or waiver thereof which
is requested by Borrowers or is entered into when any Default or Event of
Default exists. Following any Event of Default, each Borrower shall pay on
demand, accompanied by an invoice therefor, the reasonable costs and expenses of
the Administrative Agent and each of the other Creditors in connection with the
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 allocated costs of legal counsel employed by any
Creditor), independent public accountants and other outside experts retained by
any of the Creditors, whether or not such costs and expenses are incurred or
suffered by the Creditors in connection with or during the course of any
bankruptcy or insolvency proceedings of the Parent 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 the Parent or the Borrowers, the
administrative costs of the Administrative Agent reasonably attributable
thereto. Each Borrower shall pay any and all documentary and other taxes,
EXCLUDING, in the case of each Creditor and its Eurodollar Lending Office
thereof, (i) taxes imposed on or measured in whole or in part by its net income
or capital and franchise taxes imposed on it, (ii) any withholding taxes or
other taxes based on net income (other than withholding taxes and taxes based on
net income resulting from or attributable to any change following the Closing
Date in any law, rule or regulation or any change following the Closing Date in
the interpretation or administration of any law, rule or regulation by any
governmental authority) or (iii) any withholding taxes or other taxes based on
net income for any period with respect to which it has failed to provide the
Parent 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 the Creditors 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
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incur by reason of the failure of any Party to perform any of its Obligations.
Any amount payable to the Creditors under this Section 11.3 shall bear interest
from the second Business 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 Creditors
or any of them pursuant hereto or thereto may, or may be deemed to, make the
Creditors a partnership, an association, a joint venture or other entity, either
among themselves or with Parent, any Borrower or any Affiliate thereof. 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
attributable to any other Lender. Any Lender not in default may, if it desires,
assume in such proportion as a majority in interest of the nondefaulting Lenders
agree the obligations of any Lender in default, but is not obligated to do so.
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 Creditors, notwithstanding any investigation made by the Creditors 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, telecopied or delivered by overnight courier or otherwise 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.
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 third calendar day after deposit in the United States mail with first class
or airmail postage prepaid; if given by telecopier, when sent; 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.
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11.8 BINDING EFFECT; ASSIGNMENT.
(a) This Agreement and the other Loan Documents will be binding upon
and inure to the benefit of Parent, Borrowers, the Creditors, and their
respective successors and assigns, EXCEPT that Parent and Borrowers may not
assign their rights hereunder or thereunder or any interest herein or therein
without the prior written consent of all the Lenders (any purported assignment
by Parent or any Borrower in violation of this Section being VOID AB INITIO).
Each Lender represents that it is not acquiring its Notes 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 Notes must be
within the control of such Lender). Any Lender may at any time pledge its Notes
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 and its Notes; PROVIDED that (i) such Eligible Assignee, if not then a
Lender or an Affiliate of the assigning Lender having a combined capital and
surplus in excess of $100,000,000, shall be approved by each of the
Administrative Agent (which approval shall not be unreasonably withheld) and the
Parent and the Borrowers (which approval shall not be unreasonably withheld and
will not be required if an Event of Default has occurred and remains
continuing), (ii) such assignment shall be evidenced by an Assignment Agreement,
a copy of which shall be furnished to the Administrative Agent, (iii) EXCEPT in
the case of an assignment to an Affiliate 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 which is less than $5,000,000, and
(iv) the effective date of any such assignment shall be as specified in the
Assignment Agreement, but not earlier than the date which is five Business Days
after the date the Administrative Agent has received the Assignment Agreement.
Upon the effective date of such Assignment Agreement, the Eligible Assignee
named therein shall be a Lender for all purposes of this Agreement, with the Pro
Rata Share 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 and the other Loan Documents. Each Borrower agrees that it shall
execute and deliver (against delivery by the assigning Lender to the Borrowers
of its Notes) to such assignee Lender, Notes evidencing that assignee Lender's
Pro Rata Share, and to the assigning Lender, Notes evidencing the remaining
balance Pro Rata Share retained by the assigning Lender.
(c) By executing and delivering an Assignment Agreement, 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 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 the Parent or its Subsidiaries or the
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performance by the Parent or its Subsidiaries of the Obligations; (iii) it has
received a copy of this Agreement and the other Loan Documents, 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 Assignment Agreement;
(iv) it will, independently and without reliance upon any other Creditor 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 and the Loan
Documents 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 a copy of each
Assignment Agreement delivered to it. After receipt of a completed Assignment
Agreement executed by any Lender and an Eligible Assignee, and receipt (except
in the case of the assignment to an Affiliate of the Assignor) of an assignment
fee of $3,500 from such Eligible Assignee, the Administrative Agent shall
confirm the effectiveness of the assignment to the parties thereto, Parent and
Borrowers.
(e) Each Lender may from time to time grant participations in a
portion of its Pro Rata Share, in each case to one or more banks or other
financial institutions (INCLUDING another Lender); PROVIDED, HOWEVER, that (i)
such Lender's obligations under the Loan Documents shall remain unchanged, (ii)
such Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations, (iii) the participating banks 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 3.6,
3.7 and 11.10, but only to the extent that the cost of such benefits to Parent
and Borrowers does not exceed the cost which Parent and the Borrowers would have
incurred in respect of such Lender absent the participation, (iv) Parent, the
Borrowers and the other Creditors 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 not restrict an increase in
the Commitment, or in the granting Lender's Pro Rata Share, 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 the Maturity Date or any other date upon which any payment of money
is due to the Lender granting the participation, (B) reduce the rate of interest
on the Notes of such Lender, any fee or any other monetary amount payable to
that Lender, or (C) reduce the amount of any installment of principal due under
the Notes of that Lender.
(f) Notwithstanding anything in this Section to the contrary, the
rights of the Lenders to make assignment of, and grant participations in, their
Pro Rata Share of the Commitment shall be subject to the approval of any Gaming
Board, to the extent required by applicable Gaming Laws.
(g) Notwithstanding anything to the contrary contained herein, any
Lender (a "Granting Lender") may grant to a special purpose funding vehicle (an
"SPC") of such
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Granting Lender, identified as such in writing from time to time by the Granting
Lender to the Administrative Agent, Parent and the Borrowers, the option to
provide to the Borrowers all or any part of any Loan that such Granting Lender
would otherwise be obligated to make to the Borrowers pursuant to Sections 2.1,
2.2 or 2.3, provided that (i) nothing herein shall constitute a commitment to
make any Loan by any SPC and (ii) if an SPC elects not to exercise such option
or otherwise fails to provide all or any part of such Loan, the Granting Lender
shall be obligated to make such Loan pursuant to the terms hereof. The making of
a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender
to the same extent, and as if, such Loan were made by the Granting Lender. Each
party hereto hereby agrees that no SPC shall be liable for any indemnity or
similar payment obligation under this Agreement (all liability for which shall
remain with the related Granting Lender). In furtherance of the foregoing, each
party hereto hereby agrees (which agreement shall survive the termination of
this Agreement) that, prior to the date that is one year and one day after the
payment in full of all outstanding senior indebtedness of any SPC, it will not
institute against, or join any other person in instituting against, such SPC any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings
or similar proceedings under the laws of the United States or any State thereof,
PROVIDED THAT the Granting Lender for each SPC hereby agrees to indemnify, save,
and hold harmless each other party hereto for any loss, cost, damage and expense
arising out of their inability to institute any such proceeding against its SPC.
In addition, notwithstanding anything to the contrary contained in this Section
11.8, any SPC may (i) with notice to, but without the prior written consent of,
Parent, the Borrowers or the Administrative Agent and without paying any
processing fee therefor, assign all or a portion of its interests in any Loans
to its Granting Lender or to any financial institutions providing liquidity
and/or credit facilities to or for the account of such SPC to fund the Loans
made by such SPC or to support the securities (if any) issued by such SPC to
fund such Loans (but nothing contained herein shall be construed in derogation
of the obligation of the Granting Lender to make Loans hereunder), PROVIDED THAT
neither the consent of the SPC or of any such assignee shall be required for
amendments or waivers of provisions of the Loan Documents except for those
amendments or waivers for which the consent of participants is required under
Section 11.8(e)(vi), and (ii) disclose on a confidential basis (in the same
manner described in Section 11.13) any non-public information relating to its
Loans to any rating agency, commercial paper dealer or provider of a surety,
guarantee or credit or liquidity enhancement to such SPC.
11.9 SHARING OF SETOFFS. Each Lender severally agrees that if it,
through the exercise of any right of setoff, banker's lien or counterclaim
against Parent, any 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
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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 Parent, Borrowers or any Person claiming through or succeeding to the
rights of Parent or Borrowers, 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 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. Parent and each Borrower
expressly consents to the foregoing arrangements and agrees 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.
11.10 INDEMNITY BY PARENT AND BORROWERS. Parent and each Borrower
jointly and severally (but as between Parent and Borrowers, ratably) agrees to
indemnify, save and hold harmless each of the Creditors and the Arranger and
their Affiliates, 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
3.11(d)) arising out of or in connection with this Agreement, the transactions
contemplated hereby or, the use or contemplated use of proceeds of any Loan, or
the relationship of Parent, Borrowers and the Creditors 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 attorneys' fees and the 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 Parent
and Borrowers, but the failure to so promptly notify Parent or Borrowers shall
not affect Parent's and Borrowers' obligations under this Section unless such
failure materially prejudices Parent's or Borrowers' right 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 Parent and the
Borrowers in writing) contest the validity, applicability and amount of such
claim, demand, action or cause of action and shall permit Parent and the
Borrowers to participate in such contest. Any Indemnitee that proposes to settle
or compromise any claim or proceeding for which Parent or the Borrowers may be
liable for payment of indemnity hereunder shall give Parent and the Borrowers
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
Parent's and the Borrowers' prior
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consent (which shall not be unreasonably withheld). In connection with any
claim, demand, action or cause of action covered by this Section 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; 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, 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 the Parent and the Borrowers to any
Indemnitee under this Section 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.
11.11 NONLIABILITY OF THE LENDERS. Parent and each Borrower
acknowledges and agrees that:
(a) Any inspections of any Property of Parent or its Subsidiaries
made by or through the Creditors are solely for purposes of administration of
this Agreement and Parent and the Borrowers are not entitled to rely upon the
same (whether or not such inspections are at the expense of Parent and the
Borrowers);
(b) By accepting, furnishing or approving anything required to be
observed, performed, fulfilled or given to the Creditors pursuant to the Loan
Documents, none of the Creditors 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,
furnishing or approval thereof shall not constitute a warranty or representation
to anyone with respect thereto by the Creditors;
(c) The relationship among Parent, the Borrowers and the Creditors
is, and shall at all times remain, solely that of borrowers, guarantors and
lenders; none of the Creditors shall under any circumstance be construed to be
partners or joint venturers of Parent, Borrowers or their Affiliates; none of
the Creditors shall under any circumstance be deemed to be in a relationship of
confidence or trust or a fiduciary relationship with Parent or its Affiliates,
or to owe any fiduciary duty to Parent or its Affiliates; none of the Creditors
undertakes or assumes any responsibility or duty to Parent or its Affiliates to
select, review, inspect, supervise, pass judgment upon or inform Parent or its
Affiliates of any matter in connection with their Property or the operations of
Parent or its Affiliates; Parent 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 Creditors in connection with such matters is solely for the protection of
the
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Creditors and neither Parent, the Borrowers nor any other Person is entitled to
rely thereon; and
(d) The Creditors 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 Parent and/or its Affiliates and Parent and each Borrower hereby indemnifies
and holds the Creditors harmless from any such loss, damage, liability or claim.
11.12 NO THIRD PARTIES BENEFITED. This Agreement is made for the
purpose of defining and setting forth certain obligations, rights and duties of
Parent, the Borrowers and the Creditors in connection with the Loans, and is
made for the sole benefit of Parent, the Borrowers, the Creditors, and the
Creditors' successors and assigns, and, subject to Section 6.1 successors to
Borrowers by permitted merger. EXCEPT as provided in Sections 11.8 and 11.10, no
other Person shall have any rights of any nature hereunder or by reason hereof.
11.13 CONFIDENTIALITY. Each Creditor agrees to hold any confidential
information that it may receive from Parent and its Subsidiaries pursuant to
this Agreement in confidence, EXCEPT for disclosure: (a) To Affiliates of that
Creditor and to other Creditors; (b) To legal counsel and accountants for Parent
and its Subsidiaries or any Creditor; (c) To other professional advisors to
Parent and its Subsidiaries or any Creditor, provided that the recipient has
accepted such information subject to a confidentiality agreement substantially
similar to this Section 11.13 or has notified such professional advisors of the
confidentiality of such information; (d) To regulatory officials having
jurisdiction over that Creditor; (e) To any Gaming Board having regulatory
jurisdiction over Parent or its Subsidiaries, provided that each Lender agrees
to use its best efforts to notify Parent and the Borrowers of any such
disclosure unless prohibited by applicable Laws; (f) As required by Law or legal
process (PROVIDED THAT the relevant Creditor shall endeavor, to the extent it
may do so under applicable Law, to give Parent and the Borrowers reasonable
prior notice thereof to allow Parent and the Borrowers to seek a protective
order) or in connection with any legal proceeding to which that Creditor, Parent
and any Borrower are adverse parties; and (g) To another financial institution
in connection with a disposition or proposed disposition to that financial
institution of all or part of that Creditor's interests hereunder or a
participation interest in its Notes, provided that the recipient has accepted
such information subject to a confidentiality agreement substantially similar to
this Section. For purposes of the foregoing, "confidential information" shall
mean any information respecting Parent or its Subsidiaries reasonably considered
by Parent and the Borrowers 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
to any Person not associated with Parent or its Affiliates without a
confidentiality agreement substantially similar to this Section. Nothing in this
Section shall be construed to create or give rise to any fiduciary duty on the
part of any Creditor to Parent or the Borrowers.
11.14 REMOVAL OF A LENDER. Parent and the Borrowers shall have the
right to remove a Lender as a party to this Agreement pursuant to this Section
in the event that such
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Lender (a) refuses to consent to an extension of the Maturity Date requested by
Parent and the Borrowers in accordance with Section 2.8 which has been consented
to by Lenders holding Pro Rata Share equal to or greater than 66 2/3% of the
Commitment, or (b) requests compensation under Section 3.6 or Section 3.7 which
has not been requested by all other Lenders, in each case by written notice to
the Administrative Agent and such Lender within 60 days following any such
refusal or request or (c) refuses to consent to certain proposed changes,
waivers, modifications, supplements, terminations, waivers or consents with
respect to this Agreement which have been approved by the Required Lenders as
provided in Section 11.2, PROVIDED that no Default or Event of Default then
exists, or (d) is the subject of a Disqualification. If Parent and the Borrowers
are entitled to remove a Lender pursuant to this Section either:
(a) The Lender being removed shall within five Business Days after
such notice execute and deliver an Assignment Agreement covering that Lender's
Pro Rata Share in favor of one or more Eligible Assignees designated by Parent
and the Borrowers and reasonably acceptable to the Administrative Agent, 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 the Assignment Agreement; or
(b) Parent and the Borrowers may reduce the Commitment pursuant to
Section 2.4 (and, for this purpose, the numerical requirements of such Section
shall not apply) by an amount equal to that Lender's Pro Rata Share, pay and
provide to such Lender the amount required by clause (a) above and release such
Lender from its Pro Rata Share (subject, however, to the requirement that all
conditions set forth in Section 8.2 are met as of the date of such reduction),
in which case the percentage Pro Rata Shares of the remaining Lenders shall be
ratably increased (but without any increase in the Dollar amount of the Pro Rata
Shares of such Lenders).
11.15 FURTHER ASSURANCES. Parent and its Subsidiaries shall, at their
expense and without expense to the Creditors, do, execute and deliver such
further acts and documents as any Creditor from time to time reasonably requires
for the assuring and confirming unto the Creditors 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, 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 Creditors 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.
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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, without regard to the choice of
laws or conflicts of laws principles thereof.
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, and each holder
of a participation interest herein, that is incorporated under the Laws of a
jurisdiction other than the United States of America or any state thereof shall
deliver to Parent (with a copy to the Administrative Agent), within twenty days
after the Closing Date (or after accepting an Assignment Agreement 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 Person and entitling it to a complete exemption from
withholding on all payments to be made to such Person by Parent and the
Borrowers pursuant to this Agreement) or Forms W8-ECI or W8-BEN (relating to all
payments to be made to such Person by Parent and the Borrowers pursuant to this
Agreement) of the United States Internal Revenue Service or such other evidence
(INCLUDING, if reasonably necessary, Form W-9) satisfactory to Parent and the
Borrowers and the Administrative Agent that no withholding under the federal
income tax laws is required with respect to such Person. Thereafter and from
time to time, each such Person shall (a) promptly submit to Parent (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 Parent and the Borrowers and the Administrative Agent of
any available exemption from, United States withholding taxes in respect of all
payments to be made to such Person by Parent and the Borrowers 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 Parent or the Borrowers
make any deduction or withholding for taxes from amounts payable to such Person.
11.22 GAMING BOARDS. The Creditors agree to cooperate with all Gaming
Boards in connection with the administration of their regulatory jurisdiction
over Parent and its Subsidiaries, INCLUDING the provision of such documents or
other information as may be
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requested by any such Gaming Board relating to Parent or any of its Subsidiaries
or to the Loan Documents.
11.23 NATURE OF THE BORROWERS' OBLIGATIONS. The Company hereby agrees
that it shall be liable for all of the Obligations on a joint and several basis,
notwithstanding which of the Borrowers may have directly received the proceeds
of any particular Loan or Advance. Notwithstanding anything to the contrary set
forth herein, the principal liability of each Borrower hereafter designated
under Section 2.6 for Loans shall be limited to Loans made to that Borrower
under the Aggregate Sublimit of that Borrower. Each of the Borrowers
acknowledges and agrees that, for purposes of the Loan Documents, Parent and its
Subsidiaries constitute a single integrated financial enterprise and that each
receives a benefit from the availability of credit under this Agreement.
Borrowers each waive all defenses arising under the Laws of suretyship, to the
extent such Laws are applicable, in connection with their obligations under this
Agreement.
11.24 DESIGNATED SENIOR DEBT. Parent and each Borrower hereby
irrevocably designate the Obligations and this Agreement as "Designated Senior
Indebtedness" and "Senior Indebtedness" within the meanings given to those terms
in Section 1.1 of the Supplemental Indenture dated December 9, 1998 entered into
with respect to the Existing Subordinated Debt among the Company, Parent and IBJ
▇▇▇▇▇▇▇▇▇ Bank & Trust Company.
11.25 GAMING REGULATIONS. Each party to this Agreement hereby
acknowledges that the consummation of the transactions contemplated by the Loan
Documents is subject to applicable Gaming Laws (and Parent and Borrower
represent and warrant that all requisite approvals necessary thereunder to enter
into the transactions contemplated hereby have been duly obtained).
11.26 WAIVER OF RIGHT TO TRIAL BY JURY. EACH SIGNATORY 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 SIGNATORIES
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 SIGNATORY 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 SIGNATORY 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.
11.27 PURPORTED ORAL AMENDMENTS. PARENT AND EACH BORROWER EXPRESSLY
ACKNOWLEDGE 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. PARENT AND EACH BORROWER
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AGREES THAT IT WILL NOT RELY ON ANY COURSE OF DEALING, COURSE OF PERFORMANCE, OR
ORAL OR WRITTEN STATEMENTS BY ANY REPRESENTATIVE OF ANY OF THE CREDITORS THAT
DOES NOT COMPLY WITH SECTION 11.2 TO EFFECT AN AMENDMENT, MODIFICATION, WAIVER
OR SUPPLEMENT TO THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the date first above written.
▇▇▇▇▇▇'▇ ENTERTAINMENT, INC.
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ /s/
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Senior Vice President, Chief
Financial Officer and Treasurer
▇▇▇▇▇▇'▇ OPERATING COMPANY, INC.
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ /s/
--------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Senior Vice President, Chief
Financial Officer and Treasurer
Address for notices for Parent and Borrower:
▇ ▇▇▇▇▇▇'▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President and Treasurer
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
BANK OF AMERICA, N.A., as Administrative Agent
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ /s/
--------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Vice President
Address:
Bank of America, N.A.
CA9-706-17-54
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
BANK OF AMERICA, N.A. as a Lender
By: ▇▇▇▇▇ ▇▇▇▇▇ /s/
--------------------------------------
▇▇▇▇▇ ▇▇▇▇▇, Managing Director
Address:
Bank of America, N.A.
CA9-706-17-54
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇, Managing Director
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
Bank of America, N.A.
CA9-706-17-54
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇, Managing Director
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
THE BANK OF NEW YORK
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ /s/
--------------------------------------
Title: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Vice President
-----------------------------------
Address for notices:
The Bank of New York
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ or 6877
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
THE BANK OF NOVA SCOTIA
By: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ /s/
--------------------------------------
Title: Director
-----------------------------------
Address for notices:
The Bank of Nova Scotia
Atlanta Agency
Suite 2700
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
DEUTSCHE BANK TRUST COMPANY AMERICAS
By: ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ /s/
--------------------------------------
Title: Managing Director
-----------------------------------
By:
--------------------------------------
Title:
-----------------------------------
Address for notices:
Deutsche Bank Trust Company Americas
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇ ▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
CIBC INC.
By: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ /s/
--------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Managing Director
CIBC World Markets Corp., AS AGENT
Address for notices:
CIBC World Markets Corp.
Two Paces West
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
CIBC World Markets Corp.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
CITICORP USA, INC.
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ /s/
--------------------------------------
Title: Director
-----------------------------------
Address for notices:
Citicorp USA, Inc.
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Director
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
COMERICA WEST INCORPORATED
By: ▇▇▇ ▇▇▇▇ Chua
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Title: Corporate Banking Representative
-----------------------------------
Address for notices:
Comerica West Incorporated
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▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attn.: ▇▇▇ ▇▇▇▇ Chua
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
COMMERZBANK AG, NEW YORK AND GRAND CAYMAN BRANCHES
By: Christian Jagenberg /s/
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Title: Christian Jagenberg, SVP and Manager
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By: ▇▇▇▇▇ ▇▇▇▇▇ /s/
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Title: ▇▇▇▇▇ ▇▇▇▇▇, AVP
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Address for notices:
Commerzbank AG - Los Angeles Branch
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Attn.: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
WHITNEY NATIONAL BANK
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ /s/
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Title: Senior Vice President
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By:
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Title:
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Address for notices:
Whitney National Bank
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Attn.: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
JPMORGAN CHASE BANK
By: ▇▇▇▇ ▇. Mix /s/
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Title: Vice-President
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Address for notices:
JPMorgan Chase Bank
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▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn.: ▇▇▇▇ ▇. Mix
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
LANDESBANK SCLESWIG-HOLSTEIN GIROZENTRALE KIEL
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇▇▇▇▇ /s/
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Title: Assessor Vice President
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Address for notices:
Landesbank Scleswig-Holstein Girozentrale ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇
Dept. 733
Attn.: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile: (____) 49 431 900 2751___________
Telephone: (____) ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇___________
FIRST TENNESSEE BANK NATIONAL ASSOCIATION
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇. /s/
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Title: SVP
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Address for notices:
First Tennessee Bank National Association
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▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn.: ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇., Senior Vice President
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
WACHOVIA BANK, NATIONAL ASSOCIATION
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇ /s/
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Title: Vice President
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Address for notices:
Wachovia Bank, National Association
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▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇▇ ▇▇▇▇▇, Vice President
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
HIBERNIA NATIONAL BANK
By: ▇▇▇▇ ▇. Wales /s/
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Title: Vice President
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Address for notices:
Hibernia National Bank
Hibernia National Bank
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▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn.: ▇▇▇▇ ▇. Wales, Vice President
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
KEYBANK NATIONAL ASSOCIATION
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ /s/
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Title: Senior Vice President
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Address for notices:
KeyBank National Association
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇.▇., ▇▇▇▇▇ ▇▇▇▇▇, ▇▇: WA-31-18-0512
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
SOCIETE GENERALE
By: ▇▇▇▇▇▇ ▇. Day /s/
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Title: ▇▇▇▇▇▇ ▇. Day, Managing Director
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Address for notices:
Societe Generale
Four Embarcadero Center, Suite 1200
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Attn.: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇ FARGO BANK, N.A.
By: ▇▇▇ ▇▇▇▇▇▇ /s/
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Title: Vice President
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By:
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Title:
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Address for notices:
▇▇▇▇▇ Fargo Bank, N.A.
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▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attn.: ▇▇▇ ▇▇▇▇▇▇, Vice President
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
BNP PARIBAS
By: ▇▇▇▇▇▇ ▇▇ /s/
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Title: Director
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By: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ /s/
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Title: Director
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Address for notices:
BNP PARIBAS
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▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn.: ▇▇▇▇▇▇ ▇. ▇. ▇▇, Director
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
SCHEDULE 4.3
GOVERNMENTAL APPROVALS
Approval by the Nevada Gaming Commission upon the recommendation of the Nevada
State Gaming Control Board of all restrictions on the transfer of and agreements
not to encumber the stock or other equity securities of ▇▇▇▇▇▇'▇ Las Vegas, Inc.
and ▇▇▇▇▇▇'▇ ▇▇▇▇▇▇▇▇, Inc.
SCHEDULE 4.4
SIGNIFICANT SUBSIDIARIES
NAME ENTITY TYPE JURISDICTION OWNERSHIP
---------------------------------------- --------------------------- ------------ ----------------------------------------
▇▇▇▇▇▇'▇ Operating Company, Inc.(1) Corporation ▇▇ ▇▇▇▇▇▇'▇ Entertainment, Inc./100%
▇▇▇▇▇▇'▇ Las Vegas, Inc. Corporation NV ▇▇▇▇▇▇'▇ Operating Company, Inc./100%
Players International, Inc. Corporation NV ▇▇▇▇▇▇'▇ Operating Company, Inc./100%
Players Resources, Inc. Corporation NV Players International, Inc./100%
▇▇▇▇▇▇'▇ Lake ▇▇▇▇▇▇▇, LLC Limited Liability Company NV Players Lake ▇▇▇▇▇▇▇ Riverboat, Inc./10%;
Players LC, Inc./90%
▇▇▇▇▇▇'▇ Laughlin, Inc. Corporation NV ▇▇▇▇▇▇'▇ Operating Company, Inc./100%
▇▇▇▇▇▇'▇ Illinois Corporation Corporation NV ▇▇▇▇▇▇'▇ Operating Company, Inc./100%
Rio Properties, Inc. Corporation NV Rio Hotel & Casino, Inc./100%
Rio Hotel & Casino, Inc. Corporation NV ▇▇▇▇▇▇'▇ Operating Company, Inc./100%
Cinderlane, Inc. Corporation NV Rio Properties, Inc./100%
▇▇▇▇▇▇'▇ Operating Company Memphis, Inc. Corporation ▇▇ ▇▇▇▇▇▇'▇ Operating Company, Inc./100%
Showboat, Inc. Corporation NV ▇▇▇▇▇▇'▇ Operating Company, Inc./100%
Showboat Operating Company Corporation NV Showboat, Inc./100%
----------
(1) This includes the divisions ▇▇▇▇▇▇'▇ North Kansas City LLC, ▇▇▇▇▇▇'▇
Shreveport Investment Company, LLC, Red River Entertainment of Shreveport
Partnership in Commendam, Reno, and Tahoe.
NAME ENTITY TYPE JURISDICTION OWNERSHIP
---------------------------------------- --------------------------- ------------ ------------------------------------------
Atlantic City Showboat, Inc. Corporation NJ Ocean Showboat, Inc.
Southern Illinois Riverboat/Casino Corporation IL Players Holding, Inc./100%
Cruises, Inc.
▇▇▇▇▇▇'▇ Atlantic City, Inc. Corporation NJ ▇▇▇▇▇▇'▇ Operating Company, Inc./100%
▇▇▇▇▇▇'▇ New Jersey, Inc. Corporation NJ ▇▇▇▇▇▇'▇ Operating Company, Inc./100%
Harveys Casino Resorts Corporation NV ▇▇▇▇▇▇'▇ Operating Company, Inc./100%
Harveys Iowa Management Company, Inc. Corporation NV Harveys Casino Resorts/100%
Harveys Tahoe Management Company, Inc. Corporation NV Harveys Casino Resorts/100%
Marina Associates General Partnership NJ ▇▇▇▇▇▇'▇ Atlantic City, Inc./48.65%;
▇▇▇▇▇▇'▇ New Jersey, Inc./51.34%
▇▇▇▇▇▇'▇ Maryland Heights LLC Limited Liability Company ▇▇ ▇▇▇▇▇▇'▇ Operating Company, Inc./54.45%;
▇▇▇▇▇▇'▇ Maryland Heights Operating
Company/0.55%; Players Maryland Heights,
Inc./4.5%; Players Maryland Heights
Nevada, Inc./40.50%
Tunica Partners II LP Limited Partnership ▇▇ ▇▇▇▇▇▇'▇ Tunica Corporation/83%;
▇▇▇▇▇▇'▇ Vicksburg Corporation/17%
Des Plaines Development Limited Limited Partnership IL ▇▇▇▇▇▇'▇ Illinois Corporation/80%;
Partnership Des Plaines Development Corporation/20%
Showboat Marina Casino Partnership Partnership IN Showboat Marina Partnership/99%;
Showboat Marina Investment
NAME ENTITY TYPE JURISDICTION OWNERSHIP
---------------------------------------- --------------------------- ------------ ------------------------------------------
Partnership/1%
Showboat Indiana Investment Limited Limited Partnership NV Showboat Indiana, Inc./1%;
Partnership Showboat Operating Company/99%
SCHEDULE 4.7
LIENS AND RIGHTS OF OTHERS
Mortgage and Security Agreement dated January 29, 1998 securing
$100,000,000 loan to Showboat Land LLC in favor of Column Financial, Inc.
Rights of countersigning partners to acquire partnership interests granted
in Limited Partnership Agreement of Des Plaines Development Limited Partnership
dated February 28, ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇'▇ ▇▇▇▇▇▇▇▇ Corporation and ▇▇▇▇ ▇.
▇▇▇▇▇▇▇; First Amendment to Limited Partnership Agreement of Des Plaines Limited
Partnership dated as of October 5, 1992, and as further amended.
Right granted to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ to purchase 8.140% of Waterfront
Entertainment and Development, Inc. (and 1.5% of any of Borrower's or its
Affiliate's interest in a gaming venture in ▇▇▇▇ County, Illinois) as set forth
in the Repurchase Agreement dated as of February 26, 1999, between ▇▇▇▇▇▇'▇
Operating Company, Inc., and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇.
Right granted to ▇▇▇▇▇ ▇▇▇▇▇▇ to purchase 5.430% of Waterfront
Entertainment and Development, Inc. (and 1.0005% of any of Borrower's or its
Affiliate's interest in a gaming venture in ▇▇▇▇ County, Illinois) as set forth
in the Repurchase Agreement dated as of February 26, 1999, between ▇▇▇▇▇▇'▇
Operating Company, Inc., and ▇▇▇▇ ▇▇▇▇▇▇.
Right granted to the Estate of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ to purchase 5.430% of
Waterfront Entertainment and Development, Inc. (and 1.0005% of any Borrower's or
its Affiliate's interest in a gaming venture in ▇▇▇▇ County, Illinois) as set
forth in the Repurchase Agreement dated as of February 26, 1999, between
▇▇▇▇▇▇'▇ Operating Company, Inc., and the Estate of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, deceased.
Matters excepted from coverage under title insurance policies or that would
be shown by a current survey.