Exhibit 99.1
EXECUTION
[Published Deal CUSIP:__________________]
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Dated as of December 17, 2004
among
GREEN VALLEY RANCH GAMING, LLC
The Lenders and Syndication Agent herein named
and
BANK OF AMERICA, N.A.,
as Administrative Agent
BANC OF AMERICA SECURITIES LLC
and
▇▇▇▇▇ FARGO BANK, N.A.,
as Joint Lead Arrangers and Book Managers
TABLE OF CONTENTS
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Page
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ARTICLE 1 DEFINITIONS AND ACCOUNTING TERMS........................................................................1
1.1 Defined Terms...................................................................................1
1.2 Use of Defined Terms...........................................................................28
1.3 Accounting Terms...............................................................................28
1.4 Rounding.......................................................................................28
1.5 Exhibits and Schedules.........................................................................28
1.6 References to "Borrower and its Subsidiaries"..................................................28
1.7 Miscellaneous Terms............................................................................28
1.8 Letter of Credit Amounts.......................................................................29
ARTICLE 2 LOANS AND LETTERS OF CREDIT............................................................................29
2.1 Loans General..................................................................................29
2.2 Base Rate Loans................................................................................31
2.3 LIBOR Loans....................................................................................31
2.4 Letters of Credit..............................................................................31
2.5 Voluntary Reduction of the Revolving Commitment................................................38
2.6 Mandatory Reductions of the Term Commitment and Prepayments of the Term Commitment.............38
2.7 Optional Increase to the Commitments...........................................................38
2.8 Optional Extensions of Revolving Maturity Date.................................................40
2.9 Administrative Agent's Right to Assume Funds Available for Advances............................41
2.10 Swing Line.....................................................................................41
2.11 Collateral and Guaranty........................................................................43
2.12 Senior Indebtedness............................................................................43
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ARTICLE 3 PAYMENTS AND FEES......................................................................................44
3.1 Principal and Interest.........................................................................44
3.2 Arrangement Fee................................................................................45
3.3 Upfront Fees...................................................................................45
3.4 Commitment Fees................................................................................45
3.5 Letter of Credit Fees..........................................................................45
3.6 Agency Fee.....................................................................................46
3.7 Increased Commitment Costs.....................................................................46
3.8 Eurodollar Costs and Related Matters...........................................................47
3.9 Late Payments..................................................................................50
3.10 Computation of Interest and Fees...............................................................50
3.11 Non Business Days..............................................................................50
3.12 Manner and Treatment of Payments...............................................................50
3.13 Funding Sources................................................................................52
3.14 Failure to Charge Not Subsequent Waiver........................................................52
3.15 Administrative Agent's Right to Assume Payments Will be Made...................................52
3.16 Fee Determination Detail.......................................................................53
3.17 Survivability..................................................................................53
ARTICLE 4 REPRESENTATIONS AND WARRANTIES.........................................................................53
4.1 Existence and Qualification; Power; Compliance With Laws.......................................53
4.2 Authority; Compliance With Other Agreements and Instruments and Government Regulations.........53
4.3 No Governmental Approvals Required.............................................................54
4.4 Subsidiaries...................................................................................54
4.5 Financial Statements...........................................................................54
4.6 No Other Liabilities; No Material Adverse Changes..............................................55
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4.7 Title to Property..............................................................................55
4.8 Intangible Assets..............................................................................55
4.9 Public Utility Holding Company Act.............................................................55
4.10 Litigation.....................................................................................55
4.11 Binding Obligations............................................................................55
4.12 No Default.....................................................................................56
4.13 ERISA..........................................................................................56
4.14 Regulation U; Investment Company Act...........................................................56
4.15 Disclosure.....................................................................................56
4.16 Tax Liability..................................................................................56
4.17 Projections....................................................................................57
4.18 Hazardous Materials............................................................................57
4.19 Gaming Laws....................................................................................57
4.20 Security Interests.............................................................................57
4.21 Tax Shelter Regulations........................................................................58
ARTICLE 5 AFFIRMATIVE COVENANTS..................................................................................58
5.1 Payment of Taxes and Other Potential Liens.....................................................58
5.2 Preservation of Existence......................................................................58
5.3 Maintenance of Properties......................................................................58
5.4 Maintenance of Insurance.......................................................................59
5.5 Compliance With Laws...........................................................................59
5.6 Inspection Rights..............................................................................59
5.7 Keeping of Records and Books of Account........................................................59
5.8 Compliance With Agreements.....................................................................59
5.9 Use of Proceeds................................................................................59
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5.10 New Subsidiaries...............................................................................60
5.11 Hazardous Materials Laws.......................................................................60
ARTICLE 6 NEGATIVE COVENANTS.....................................................................................61
6.1 Payment of Subordinated Obligations............................................................61
6.2 Disposition of Property........................................................................61
6.3 Mergers........................................................................................61
6.4 Hostile Acquisitions...........................................................................61
6.5 Distributions..................................................................................61
6.6 ERISA..........................................................................................62
6.7 Change in Nature of Business...................................................................62
6.8 Liens and Negative Pledges.....................................................................62
6.9 Indebtedness and Guaranty Obligations..........................................................63
6.10 Transactions with Affiliates...................................................................64
6.11 Fixed Charge Coverage Ratio....................................................................64
6.12 Leverage Ratio.................................................................................65
6.13 Capital Expenditures...........................................................................65
6.14 Investments....................................................................................65
6.15 Acquisitions...................................................................................66
6.16 Management Fees................................................................................66
6.17 Amendments to Constituent Documents............................................................66
6.18 Prepayments....................................................................................66
6.19 Synthetic Leases...............................................................................67
6.20 Phase III Project..............................................................................67
ARTICLE 7 CONSTRUCTION PERIOD COVENANTS..........................................................................68
7.1 Construction of Project........................................................................68
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7.2 Construction Requirements......................................................................68
7.3 Construction Services..........................................................................68
7.4 Notice of Changes..............................................................................68
7.5 Construction Progress Reports..................................................................68
7.6 Construction Information.......................................................................68
7.7 Construction, Permits, Licenses and Approvals..................................................68
7.8 Purchase of Materials..........................................................................69
7.9 Purchase of Offsite Materials..................................................................69
7.10 Site Visits....................................................................................69
7.11 Protection Against Lien Claims.................................................................69
7.12 Completion Certificates........................................................................69
7.13 Completion Survey..............................................................................69
ARTICLE 8 INFORMATION AND REPORTING REQUIREMENTS.................................................................70
8.1 Financial and Business Information.............................................................70
8.2 Compliance Certificates........................................................................73
ARTICLE 9 CONDITIONS.............................................................................................74
9.1 Conditions to Closing..........................................................................74
9.2 Any Advance....................................................................................75
9.3 Any Letter of Credit...........................................................................76
ARTICLE 10 DEFAULT AND REMEDIES UPON EVENT OF DEFAULT............................................................77
10.1 Events of Default..............................................................................77
10.2 Remedies Upon Event of Default.................................................................80
ARTICLE 11 ADMINISTRATIVE AGENT..................................................................................83
11.1 Appointment and Authorization of Administrative Agent..........................................83
11.2 Delegation of Duties...........................................................................83
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11.3 Liability of Administrative Agent..............................................................83
11.4 Reliance by Administrative Agent...............................................................84
11.5 Notice of Default..............................................................................84
11.6 Credit Decision; Disclosure of Information by Administrative Agent.............................85
11.7 Indemnification of Administrative Agent........................................................85
11.8 Administrative Agent in its Individual Capacity................................................86
11.9 Successor Administrative Agent.................................................................86
11.10 Administrative Agent May File Proofs of Claim..................................................87
11.11 Other Agents; Arrangers and Managers...........................................................87
11.12 Proportionate Interest in any Collateral.......................................................87
11.13 Foreclosure on Collateral......................................................................88
11.14 Subordination, Non Disturbance and Attornment Agreements.......................................88
11.15 No Obligations of Borrower.....................................................................88
ARTICLE 12 MISCELLANEOUS.........................................................................................89
12.1 Cumulative Remedies; No Waiver.................................................................89
12.2 Amendments; Consents...........................................................................89
12.3 Attorney Costs, Expenses and Taxes.............................................................90
12.4 Nature of Lenders' Obligations.................................................................91
12.5 Survival of Representations and Warranties.....................................................92
12.6 Notices........................................................................................92
12.7 Execution of Loan Documents....................................................................93
12.8 Binding Effect; Assignment.....................................................................93
12.9 Right of Setoff................................................................................96
12.10 Sharing of Setoffs.............................................................................96
12.11 Indemnification by Borrower....................................................................97
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12.12 Nonliability of the Lenders....................................................................97
12.13 No Third Parties Benefited.....................................................................98
12.14 Confidentiality................................................................................98
12.15 Further Assurances.............................................................................99
12.16 Integration...................................................................................100
12.17 Governing Law.................................................................................100
12.18 Severability of Provisions....................................................................100
12.19 Headings......................................................................................100
12.20 Time of the Essence...........................................................................100
12.21 Foreign Lenders and Participants..............................................................100
12.22 Hazardous Material Indemnity..................................................................102
12.23 Gaming Compliance.............................................................................103
12.24 Termination of Make Well Agreement and Greenspun Pledge Agreement.............................103
12.25 Payments Set Aside............................................................................104
12.26 Waiver of Right to Trial by Jury..............................................................104
12.27 Purported Oral Amendments.....................................................................104
Exhibits
A - Assignment Agreement
B - Compliance Certificate
C-1 Revolving Note
C-2 Term Note
D - Pricing Certificate
E - Request for Loan
F - Subordination, Non-Disturbance and Attornment Agreement
G - Lender Consent to Amendment and Restatement
Schedules
2.1 Pro Rata Shares of the Commitments
4.3 Governmental Approvals
4.7 Existing Liens, Negative Pledges and Rights of Others
4.8 Trademarks and Trade Names
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4.10 Material Litigation
4.18 Hazardous Materials Matters
6.9 Existing Indebtedness
6.14 Investments
12.6 Notice Addresses
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SECOND AMENDED AND RESTATED LOAN AGREEMENT
Dated as of December 17, 2004
This SECOND AMENDED AND RESTATED LOAN AGREEMENT is entered into by and
among Green Valley Ranch Gaming, LLC, a Nevada limited liability company
(together with its successors and permitted assigns, the "Borrower"), ▇▇▇▇▇
Fargo Bank, N.A., as Syndication Agent and Joint Lead Arranger and book manager
("▇▇▇▇▇ Fargo"), the Lenders referred to herein, and Bank of America, N.A., as
Administrative Agent. While not a party hereto, Banc of America Securities LLC,
along with ▇▇▇▇▇ Fargo, has served as Joint Lead Arranger and book manager for
the credit facilities described herein. Borrower, Administrative Agent and the
other Lenders, covenant and agree with reference to the following facts:
A. Borrower and Administrative Agent have previously entered into the
Existing Loan Agreement described herein.
B. Effective on the Closing Date, Borrower, Administrative Agent and the
Lenders desire to amend the Existing Loan Agreement as set forth herein to
provide, inter alia (i) for an increase in the amount of the Term Loans to
$200,000,000, (ii) a $50,000,000 reduction of the Revolving Commitment, and
(iii) an extension of the maturity thereof and revisions to the covenants of
Borrower set forth therein.
C. Each of the Term Loans outstanding under the Loan Agreement shall remain
outstanding on the Closing Date and shall continue to be evidenced by the
Existing Term Notes, provided that each Lender providing a portion of the
increase to the Term Loans shall be entitled to the issuance of a new Term Note
to evidence such increased amount.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements herein contained, the parties hereto covenant and agree
as follows:
ARTICLE 1
DEFINITIONS AND ACCOUNTING TERMS
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1.1 Defined Terms. As used in this Agreement, the following terms shall
have the meanings set forth below:
"Acquisition" means any transaction, or any series of related transactions,
by which Borrower and/or any of its Subsidiaries directly or indirectly acquires
any ongoing business or all or substantially all of the assets of any firm,
corporation or division thereof constituting an ongoing business, whether
through a purchase of capital stock or assets, a merger or otherwise.
"Administrative Agent" means Bank of America, 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,
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or such other address as the Administrative Agent hereafter may designate by
written notice to Borrower and the Lenders.
"Advance" means any advance made or to be made by any Lender to Borrower as
provided in Article 2, and includes each Base Rate Advance and LIBOR Advance.
"Affiliate" means, as to any Person, any other Person which directly or
indirectly controls, or is under common control with, or is controlled by, such
Person. As used in this definition, "control" (and the correlative terms,
"controlled by" and "under common control with") shall mean possession, directly
or indirectly, of power to direct or cause the direction of management or
policies (whether through ownership of securities or partnership or other
ownership interests, by contract or otherwise); provided that, in any event, any
Person that owns, directly or indirectly, 10% or more of the securities having
ordinary voting power for the election of directors or other governing body of a
corporation that has more than 100 record holders of such securities, or 10% or
more of the partnership or other ownership interests of any other Person that
has more than 100 record holders of such interests, will be deemed to be an
Affiliate of such corporation, partnership or other Person.
"Agent-Related Persons" means the Administrative Agent, together with its
Affiliates (including, in the case of Bank of America in its capacity as the
Administrative Agent and the Joint Lead Arranger), and the officers, directors,
employees, agents and attorneys-in-fact of such Persons and Affiliates.
"Agreement" means this Second Amended and Restated Loan Agreement, either
as originally executed or as it may from time to time be supplemented, modified,
amended, restated or extended.
"Applicable Margins" means, as of any date of determination:
(a) as to the Term Loans, the following percentages per annum, based
upon the Pricing Level on that date:
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Pricing Level Base Rate Margin LIBOR Margin
------------------------- ------------------------- --------------------------
I 0.500% 1.750%
------------------------- ------------------------- --------------------------
II 0.750% 2.000%
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III 0.750% 2.000%
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(b) as to the Revolving Loans, the following percentages per annum,
based upon the Pricing Level on that date:
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Pricing Level Base Rate Margin LIBOR Margin and Letter of Commitment Fee
------------- ---------------- --------------------------- --------------
Credit Fee Rate
---------------
------------------------- ----------------------- ----------------------------- ------------------------
I 0.250% 1.500% 0.250%
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II 0.375% 1.625% 0.375%
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III 0.500% 1.750% 0.375%
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"Architect" means (a) in respect of the Phase II Project, the Friedmutter
Group, and (b) in respect of the Phase III Contract, the Friedmutter Group or
any other replacement architect which is selected by Borrower and approved by
the Administrative Agent (which approval shall not be unreasonably withheld).
"Architect Contracts" means (a) in respect of the Phase II Project, the
Agreement for Architectural Services, dated as of October 1, 2003, between the
Architect and Borrower, and (b) in respect of the Phase III Project, any other
contract between the relevant Architect and Borrower relating to the design and
construction of the Phase III Project and the preparation of the related
Construction Plans, together with all amendments thereto.
"Assignment Agreement" means an Assignment and Assumption substantially in
the form of Exhibit A.
"Attorney Costs" means and includes all fees, expenses and disbursements of
any law firm or other external counsel and, without duplication, the allocated
cost of internal legal services and all expenses and disbursements of internal
counsel.
"Bank of America" means Bank of America, N.A., its successors and assigns.
"Base Rate" means for any day a fluctuating rate per annum equal to the
higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest
in effect for such day as publicly announced from time to time by Bank of
America as its "prime rate." The "prime 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 such rate announced by Bank of America shall take effect at
the opening of business on the day specified in the public announcement of such
change.
"Base Rate Advance" means an Advance made hereunder and specified to be an
Base Rate Advance in accordance with Article 2.
"Base Rate Loan" means a Loan made hereunder and specified to be an Base
Rate Loan in accordance with Article 2.
"Base Rate Margin" means the applicable per annum percentage set forth in
the definition of "Applicable Margins".
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"Borrower" has the meaning set forth in the preamble to this Agreement.
"Business Day" means any day other than a Saturday, Sunday or other day on
which commercial banks are authorized to close under the Laws of, or are in fact
closed in, the state where the Administrative Agent's Office is located and, if
such day relates to any LIBOR Loan, means any such day on which dealings in
Dollar deposits are conducted by and between banks in the London interbank
eurodollar market.
"Capital Expenditure" means any expenditure that is treated as a capital
expenditure under GAAP, including any amount which is required to be treated as
an asset subject to a Capital Lease Obligation and including interest required
by GAAP to be capitalized with respect to such an expenditure.
"Capital Lease Obligations" means all monetary obligations of a Person
under any leasing or similar arrangement which, in accordance with GAAP, 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
GAAP, consistently applied.
"Cash Equivalents" means, when used in connection with any Person, that
Person's Investments in:
(a) Government Securities due within one year after the date of the
making of the Investment;
(b) readily marketable direct obligations of any State of the United
States of America or any political subdivision of any such State or
any public agency or instrumentality thereof given on the date of such
Investment a credit rating of at least Aa by ▇▇▇▇▇'▇ Investors
Service, Inc. or AA by Standard & Poor's Rating Group (a division of
▇▇▇▇▇▇-▇▇▇▇, Inc.), in each case due within one year from the making
of the Investment;
(c) certificates of deposit issued by, bank deposits in, eurodollar
deposits through, bankers' acceptances of, and repurchase agreements
covering Government Securities executed by any Lender or any bank
incorporated under the Laws of the United States of America, any State
thereof or the District of Columbia and having on the date of such
Investment combined capital, surplus and undivided profits of at least
$250,000,000, or total assets of at least $5,000,000,000, in each case
due within one year after the date of the making of the Investment;
(d) certificates of deposit issued by, bank deposits in, eurodollar
deposits through, bankers' acceptances of, and repurchase agreements
covering Government Securities executed by any Lender or any branch or
office located in the United States of America of a bank incorporated
under the Laws of any jurisdiction outside the United States of
America having on the date of such Investment combined capital,
surplus and undivided profits of at least $500,000,000, or total
assets of at least $15,000,000,000, in each case due within one year
after the date of the making of the Investment;
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(e) repurchase agreements covering Government Securities executed by a
broker or dealer registered under Section 15(b) of the Securities
Exchange Act of 1934, as amended, having on the date of the Investment
capital of at least $50,000,000, due within 90 days after the date of
the making of the Investment; provided that the maker of the
Investment receives written confirmation of the transfer to it of
record ownership of the Government Securities on the books of a
"primary dealer" in such Government Securities or on the books of such
registered broker or dealer, as soon as practicable after the making
of the Investment;
(f) readily marketable commercial paper or other debt securities
issued by corporations doing business in and incorporated under the
Laws of the United States of America or any State thereof or of any
corporation that is the holding company for a bank described in clause
(c) or (d) above given on the date of such Investment a credit rating
of at least P-1 by ▇▇▇▇▇'▇ Investors Service, Inc. or A-1 by Standard
& Poor's Rating Group (a division of McGraw Hill, Inc.), in each case
due within one year after the date of the making of the Investment;
(g) "money market preferred stock" issued by a corporation
incorporated under the Laws of the United States of America or any
State thereof (i) given on the date of such Investment a credit rating
of at least Aa by ▇▇▇▇▇'▇ Investors Service, Inc. and AA by Standard &
Poor's Rating Group (a division of McGraw Hill, Inc.), in each case
having an investment period not exceeding 50 days or (ii) to the
extent that investors therein have the benefit of a standby letter of
credit issued by a Lender or a bank described in clauses (c) or (d)
above; provided that (y) the amount of all such Investments issued by
the same issuer does not exceed $5,000,000 and (z) the aggregate
amount of all such Investments does not exceed $15,000,000; and
(h) a readily redeemable "money market mutual fund" sponsored by a
bank described in clause (c) or (d) hereof, or a registered broker or
dealer described in clause (e) hereof, that has and maintains an
investment policy limiting its investments primarily to instruments of
the types described in clauses (a) through (g) hereof and given on the
date of such Investment a credit rating of at least Aa by ▇▇▇▇▇'▇
Investors Service, Inc. and AA by Standard & Poor's Rating Group (a
division of ▇▇▇▇▇▇-▇▇▇▇, Inc.).
"Casino" means the real property in Henderson, Nevada commonly known as the
Green Valley Ranch Station Casino, together with the related improvements
thereon.
"CC&R's" means the Declaration of Covenants, Conditions and Restrictions of
Green Valley Ranch Commercial dated September 18, 2001 recorded on or about
September 21, 2001 with respect to the Property subject to the Deed of Trust and
surrounding real property.
"Certificate" means a certificate signed by a Senior Officer or Responsible
Official (as applicable) of the Person providing the certificate.
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"Change in Control" means the occurrence of any of (a) a Station Change of
Control, or (b) the failure of Station beneficially to own, directly or
indirectly, fifty percent or more of the membership interests in Borrower,
provided that the reduction of Station's ownership interests therein pursuant to
the terms of the Operating Agreement to a share which is not less than 45% of
the outstanding membership interests shall not constitute a "Change in Control."
"Closing Date" means the time and Business Day on which the conditions set
forth in Section 9.1 are satisfied or waived. The Administrative Agent shall
notify Borrower and the Lenders of the date that is the Closing Date.
"Code" means the Internal Revenue Code of 1986, as amended or replaced and
as in effect from time to time.
"Collateral" means all of the collateral covered by the Collateral
Documents.
"Collateral Documents" means, collectively, the Security Agreement, the
Deed of Trust, the Member Pledge Agreements, and any other security agreement,
pledge agreement, deed of trust, mortgage or other collateral security agreement
hereafter executed and delivered by Borrower or any of its Subsidiaries to
secure the Obligations.
"Commitments" means, the Revolving Commitment, the Term Commitment and any
incremental term loan commitments extended pursuant to Section 2.7.
"Commitment Fee Rate" means the applicable per annum percentage set forth
in the definition of "Applicable Margins".
"Completion Date" means the date upon which the Phase II Project has been
physically substantially completed and is legally open for business to the
general public.
"Completion Guaranty" means the completion guaranty regarding the Phase II
Project executed and delivered by the Members and Station on the Closing Date on
a joint and several basis, either as originally executed or as it may from time
to time be supplemented, modified, amended, extended or supplanted.
"Compliance Certificate" means a certificate in the form of Exhibit B,
properly completed and signed by a Senior Officer of Borrower.
"Construction Budget" means, in respect of each Project, the itemized
schedule delivered by Borrower to the Administrative Agent setting forth on a
line item basis, to the reasonable satisfaction of the Administrative Agent and
the Lenders, all of the anticipated costs (including financing expenses and
Pre-Opening Expenses) of construction of that Project and the acquisition of all
related equipment and fixtures.
"Construction Contract" means, (a) in respect of the Phase II Project,
Borrower's existing Construction Contract with Perini Building Company, and (b)
in respect of the Phase III Contract, the prime construction contract relating
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to the construction of the Project approved by the Administrative Agent pursuant
to Section 6.20, together with all amendments thereto.
"Construction Period" means any period during which active construction of
the Phase II Project or the Phase III Project is being pursued.
"Construction Plans" means (a) in respect of the Phase II Project, the
construction plans heretofore delivered for that Project to the Administrative
Agent pursuant to the Existing Loans Agreement, and (b) in respect of the Phase
III Project, the construction plans and all related drawings, plans and
specifications relating to that Project prepared by or for Borrower, as the same
may be amended or supplemented from time to time, and, if required, submitted to
and approved by the ▇▇▇▇▇ County Building Department, all of which plans and
specifications shall describe and set forth the plans and specifications for the
construction of the Phase III Project and the labor and materials necessary for
the construction thereof.
"Construction Timetable" means the detailed timetable for the construction
of each Project in accordance with the related Construction Plans and
Construction Budget.
"Contractor" means (a) in respect of the Phase II Contract, Perini Building
Company, and (b) in respect of the Phase III Contract, Perini Building Company
or any other replacement general contractor which is selected by Borrower and
approved by the Administrative Agent (which approval shall not be unreasonably
withheld).
"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.
"CSG" means Professional Construction Associates.
"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.
"Deed of Trust" means the amended and restated deed of trust executed and
delivered by Borrower on the Closing Date in respect of the Casino, either as
originally executed or as it may from time to time be supplemented, modified,
amended, extended or supplanted.
"Default" means any event that, with the giving of any applicable notice or
passage of time specified in Section 10.1, or both, would be an Event of
Default.
"Default Rate" means the interest rate prescribed in Section 3.9.
"Defaulting Lender" means any Lender that (a) has failed to fund any
portion of the Loans, participations in the Letter of Credit Usage or
participations in Swing Line Loans required to be funded by it hereunder within
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one Business Day of the date required to be funded by it hereunder, (b) has
otherwise failed to pay over to the Administrative Agent or any other Lender any
other amount required to be paid by it hereunder within one Business Day of the
date when due, unless the subject of a good faith dispute, or (c) has been
deemed insolvent or become the subject of a bankruptcy or insolvency proceeding.
"Designated Deposit Account" means deposit account number 4165344334
maintained by Borrower with ▇▇▇▇▇ Fargo Bank, N.A., or any other account
reasonably approved by the Administrative Agent.
"Designated Eurodollar Market" means, with respect to any LIBOR Loan, (a)
the London Eurodollar Market, (b) if prime banks in the London Eurodollar Market
are at the relevant time not accepting deposits of Dollars or if the
Administrative Agent determines in good faith that the London Eurodollar Market
does not represent at the relevant time the effective pricing to the Lenders for
deposits of Dollars in the London Eurodollar Market, the Cayman Islands
Eurodollar Market or (c) if prime banks in both the London and Cayman Islands
Eurodollar Markets are at the relevant time not accepting deposits of Dollars or
if the Administrative Agent determines in good faith that neither the London nor
the Cayman Islands Eurodollar Market represents at the relevant time the
effective pricing to the Lenders for deposits of Dollars in such Eurodollar
Market, such other Eurodollar Market as may from time to time be selected by the
Administrative Agent with the approval of Borrower and the Requisite Lenders.
"Disposition" means the voluntary sale, transfer or other disposition of
any asset of Borrower other than (a) Cash, Cash Equivalents, inventory or other
assets sold, leased or otherwise disposed of in the ordinary course of business
of Borrower and (b) equipment sold or otherwise disposed of where substantially
similar equipment in replacement thereof has theretofore been acquired, or
thereafter within 90 days is acquired, by Borrower, or where Borrower determines
in good faith that the failure to replace such equipment will not be detrimental
to the business of Borrower.
"Disqualified Equity Interest" means any membership interest, warrants,
options or other rights to acquire a membership interest (but excluding any debt
security which is convertible, or exchangeable, for a membership interest),
which, by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable), or upon the happening of any
event, matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or is redeemable at the option of the holder thereof,
in whole or in part, on or prior to the Term Maturity Date; provided that the
aforementioned interests shall not be a Disqualified Equity Interest if they are
redeemable prior to the Term Maturity Date only if the executive committee of
Borrower determines in its judgment that as a result of a holder or beneficial
owner owning such interests (a) Borrower has lost or may lose any license or
franchise from any Gaming Board held by Borrower or any Subsidiary of Borrower
necessary to conduct any portion of the business of Borrower or (b) any Gaming
Board has taken or may take action to materially restrict or impair the
operations of Borrower, which license, franchise or action is conditioned upon
-8-
some or all of the holders or beneficial owners of such interests being licensed
or found qualified or suitable to own such interests.
"Distribution" means, with respect to any shares of capital stock or any
membership interest or any warrant or option to purchase an equity security or
other equity security issued by a Person, (a) the retirement, redemption,
purchase or other acquisition for Cash or for Property by such Person of any
such security, (b) the declaration or (without duplication) payment by such
Person of any dividend in Cash or in Property on or with respect to any such
security, (c) any Investment by such Person in the holder of 5% or more of any
such security if a purpose of such Investment is to avoid characterization of
the transaction as a Distribution and (d) any other payment in Cash or Property
by such Person constituting a distribution under applicable Laws with respect to
such security.
"Dollars" or "$" means United States dollars.
"EBITDAM" means, with respect to any fiscal period, the sum of (a) the Net
Income for that period, plus (b) any non operating non recurring loss reflected
in such Net Income, minus (c) any non operating non recurring gain reflected in
such Net Income, plus (d) Interest Expense for that period, plus (e) to the
extent deducted in determining Net Income, the aggregate amount of Member Tax
Distributions paid by Borrower and its Subsidiaries during that period, plus (f)
depreciation, amortization and all other non cash expenses of Borrower and its
Subsidiaries for that period, plus (g) Management Fees paid by Borrower and its
Subsidiaries during that period, plus (h) Pre Opening Expenses of Borrower and
its Subsidiaries for that period, in each case as determined in accordance with
GAAP.
"Eligible Assignee" means (a) a Lender; (b) an Affiliate of a Lender; (c) a
Related Fund; and (d) any other Person (other than a natural person) approved by
(i) the Administrative Agent, the Issuing Lender and the Swing Line Lender, and
(ii) unless an Event of Default has occurred and is continuing, the Borrower
(each such approval not to be unreasonably withheld or delayed); provided that
(A) neither the Members nor their Affiliates shall be "Eligible Assignees," (B)
each Eligible Assignee shall be exempt from withholding of tax on interest and
deliver the documents related thereto pursuant to Section 12.21 and (C) to the
extent required under applicable Gaming Laws, each Eligible Assignee must be
registered with, approved by, or not disapproved by (whichever may be required
under applicable Gaming Laws), all applicable Gaming Boards.
"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.
"ERISA Affiliate" means each Person (whether or not incorporated) which is
required to be aggregated with Borrower pursuant to Section 414 of the Code.
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"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.
"Event of Default" shall have the meaning provided in Section 10.1.
"Existing Equity Holders" means ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and their executors, administrators or the legal
representatives of their estates, their heirs, distributees and beneficiaries,
any trust as to which any of the foregoing is a settlor or co settlor and any
corporation, partnership or other entity which is an Affiliate of any of the
foregoing. Existing Equity Holders shall also mean any lineal descendants of
such persons, but only to the extent that the beneficial ownership of the Voting
Stock held by such lineal descendants was directly received (by gift, trust or
sale) from any such person.
"Existing Loan Agreement" means that certain Amended and Restated Loan
Agreement dated as of December 22, 2003, among Borrower, the lenders named
therein and Administrative Agent (as thereafter amended).
"Existing Term Notes" means the Term Loan Notes executed and delivered by
Borrower under the Existing Loan Agreement and outstanding immediately prior to
the Closing Date.
"Federal Funds Rate" means, for any day, the rate per annum equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank on the Business Day next
succeeding such day; provided that (a) if such day is not a Business Day, the
Federal Funds Rate for such day shall be such rate on such transactions on the
next preceding Business Day as so published on the next succeeding Business Day,
and (b) if no such rate is so published on such next succeeding Business Day,
the Federal Funds Rate for such day shall be the average rate (rounded upward,
if necessary, to a whole multiple of 1/100 of 1%) charged to Bank of America on
such day on such transactions as determined by the Administrative Agent.
"Fiscal Quarter" means the fiscal quarter of Borrower ending on each March
31, June 30, September 30 and December 31.
"Fiscal Year" means the fiscal year of Borrower ending on each December 31.
"Fixed Charge Coverage Ratio" means, as of the last day of any Fiscal
Quarter, the ratio of (a) EBITDAM determined for the twelve month period ending
on that date to (b) the sum of (i) scheduled principal payments and prospective
Interest Expense for the four succeeding Fiscal Quarters with respect to all
then outstanding Indebtedness of the Borrower and its Subsidiaries, based upon
the then outstanding principal amounts of such Indebtedness and the interest
rates then applicable to such Indebtedness, plus (ii) Maintenance Capital
Expenditures of Borrower and its Subsidiaries for the fiscal period used in
determining EBITDAM above, plus (iii) Management Fees paid by Borrower and its
Subsidiaries during the same fiscal period, plus (iv) Distributions (including
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Member Tax Distributions) paid by Borrower and its Subsidiaries during the same
fiscal period.
"Foreign Lender" has the meaning specified in Section 12.21(a)(1).
"Fund" means any Person (other than a natural person) that is (or will be)
engaged in making, purchasing, holding or otherwise investing in commercial
loans and similar extensions of credit in the ordinary course of its business.
"GAAP" means, as of any date of determination, accounting principles (a)
set forth as generally accepted in then currently effective Opinions of the
Accounting Principles Board of the American Institute of Certified Public
Accountants, (b) set forth as generally accepted in then currently effective
Statements of the Financial Accounting Standards Board or (c) that are then
approved by such other entity as may be approved by a significant segment of the
accounting profession in the United States of America. The term "consistently
applied," as used in connection therewith, means that the accounting principles
applied are consistent in all material respects with those applied at prior
dates or for prior periods.
"Gaming Board" means, collectively, (a) the Nevada Gaming Commission, (b)
the Nevada State Gaming Control Board and (c) any other Governmental Agency that
holds regulatory, licensing or permit authority over gambling, gaming or casino
activities conducted by Borrower within its jurisdiction.
"Gaming Laws" means all Laws pursuant to which any Gaming Board possesses
regulatory, licensing or permit authority over gambling, gaming or casino
activities conducted by Borrower within its jurisdiction, including, without
limitation, the Nevada State Gaming Control Act, codified as Nevada Revised
Statutes Chapter 463 and the regulations promulgated thereunder.
"GCR Gaming" means GCR Gaming, LLC, a Nevada limited liability company, and
a Member of Borrower.
"Government Securities" means readily marketable (a) direct full faith and
credit obligations of the United States of America or obligations guaranteed by
the full faith and credit of the United States of America and (b) obligations of
an agency or instrumentality of, or corporation owned, controlled or sponsored
by, the United States of America that are generally considered in the securities
industry to be implicit obligations of the United States of America.
"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 (including any Gaming Board), or (c)
any court or administrative tribunal of competent jurisdiction.
"Guaranty Obligation" means, as to any Person, any (a) guarantee by that
Person of Indebtedness of, or other obligation performable by, any other Person
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or (b) assurance given by that Person to an obligee of any other Person with
respect to the performance of an obligation by, or the financial condition of,
such other Person, whether direct, indirect or contingent, including any
purchase or repurchase agreement covering such obligation or any collateral
security therefor, any agreement to provide funds (by means of loans, capital
contributions or otherwise) to such other Person, any agreement to support the
solvency or level of any balance sheet item of such other Person or any
"keep-well" or other arrangement of whatever nature given for the purpose of
assuring or holding harmless such obligee against loss with respect to any
obligation of such other Person; provided, however, that the term Guaranty
Obligation shall not include endorsements of instruments for deposit or
collection in the ordinary course of business. The amount of any Guaranty
Obligation in respect of Indebtedness shall be deemed to be an amount equal to
the stated or determinable amount of the related Indebtedness (unless the
Guaranty Obligation is limited by its terms to a lesser amount, in which case to
the extent of such amount) or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof as determined by the Person
in good faith. The amount of any other Guaranty Obligation shall be deemed to be
zero unless and until the amount thereof has been (or in accordance with
Financial Accounting Standards Board Statement No. 5 should be) quantified and
reflected in the consolidated balance sheet of Borrower.
"GV Ranch Station" means GV Ranch Station, Inc., a Nevada corporation, and
a Member of Borrower.
"Hazardous Materials" means substances defined as "hazardous substances"
pursuant to the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, 42 U.S.C. ss. 9601 et seq., or as "hazardous", "toxic" or
"pollutant" substances or as "solid waste" pursuant to the Hazardous Materials
Transportation Act, 49 U.S.C. ss. 1801, et seq., the Resource Conservation and
Recovery Act, 42 U.S.C. ss. 6901, et seq., or as "friable asbestos" pursuant to
the Toxic Substances Control Act, 15 U.S.C. ss. 2601 et seq. or any other
applicable Hazardous Materials Law, in each case as such Laws are amended from
time to time.
"Hazardous Materials Laws" means all Laws governing the treatment,
transportation or disposal of Hazardous Materials applicable to any of the Real
Property.
"Indebtedness" means, as to any Person (without duplication), (a)
indebtedness of such Person for borrowed money or for the deferred purchase
price of Property (excluding trade and other accounts payable in the ordinary
course of business in accordance with ordinary trade terms), including any
Guaranty Obligation for any such indebtedness, (b) indebtedness of such Person
of the nature described in clause (a) that is non recourse to the credit of such
Person but is secured by assets of such Person, to the extent of the fair market
value of such assets as determined in good faith by such Person, (c) the portion
of Capital Lease Obligations of such Person required by GAAP to be shown on a
balance sheet of such Person, (d) indebtedness of such Person arising under
bankers' acceptance facilities or under facilities for the discount of accounts
receivable of such Person, (e) any direct or contingent obligations of such
Person under letters of credit issued for the account of such Person, and (f)
the net amount of any obligations of such Person under Swap Agreements, provided
-12-
that in no event shall the obligations of a Person under an operating lease (as
such term is defined under GAAP) or any Synthetic Lease be deemed Indebtedness
of that Person.
"Indemnified Liabilities" has the meaning set forth in Section 12.11.
"Indemnitees" has the meaning set forth in Section 12.11.
"Initial Pricing Period" means the period beginning on the Closing Date and
ending on February 15, 2005.
"Intangible Assets" means assets that are considered intangible assets
under GAAP, including customer lists, goodwill, copyrights, trade names,
trademarks and patents.
"Interest Differential" means, with respect to any prepayment of a LIBOR
Loan on a day other than the last day of the applicable Interest Period and with
respect to any failure to borrow a LIBOR Loan on the date or in the amount
specified in any Request for Loan, (a) LIBOR payable (or, with respect to a
failure to borrow, LIBOR which would have been payable) with respect to the
LIBOR Loan minus (b) LIBOR on, or as near as practicable to the date of the
prepayment or failure to borrow for a LIBOR Loan with an Interest Period
commencing on such date and ending on the last day of the Interest Period of the
LIBOR Loan so prepaid or which would have been borrowed on such date.
"Interest Expense" means, with respect to any Person and as of the last day
of any fiscal period, the sum without duplication of (a) all interest, fees,
charges and related expenses paid or payable (without duplication) for that
fiscal period by that Person to a lender in connection with borrowed money
(including any obligations for fees, charges and related expenses payable to the
issuer of any letter of credit) or the deferred purchase price of assets that
are considered "interest expense" under GAAP plus (b) the portion of rent paid
or payable (without duplication) for that fiscal period by that Person under
Capital Lease Obligations that should be treated as interest in accordance with
Financial Accounting Standards Board Statement No. 13.
"Interest Period" means, as to each LIBOR Loan, a period of 1, 2, 3 or 6
months (or, with the written consent of all of the Lenders, any other period) as
designated by Borrower; provided that (a) the first day of each Interest Period
must be a Business Day, (b) any Interest Period that would otherwise end on a
day that is not a Business Day shall be extended to the next succeeding Business
Day, unless such Business Day falls in the next calendar month, in which case
the Interest Period shall end on the next preceding Business Day, and (c) no
Interest Period may extend beyond the Term Maturity Date.
"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 (minus any return of capital with respect to such Investment
which has actually been received in Cash or Cash Equivalents or has been
-13-
converted into Cash or Cash Equivalents or has resulted in a cancellation or
forgiveness of Indebtedness payable in Cash or Cash Equivalents), without
adjustment for subsequent increases or decreases in the value of such
Investment. An Investment in a Person consisting of the guaranty of an
obligation of such Person shall not be deemed outstanding following the
termination or expiration of such guaranty. Swap Agreements shall not be deemed
Investments.
"ISP" means, with respect to any Letter of Credit, the "International
Standby Practices 1998" published by the Institute of International Banking Law
& Practice (or such later version thereof as may be in effect at the time of
issuance).
"Issuing Lender" means Bank of America or ▇▇▇▇▇ Fargo.
"Joint Lead Arrangers" means Banc of America Securities LLC and ▇▇▇▇▇
Fargo, in their capacities as joint lead arrangers and book managers.
"L/C Advance" means, with respect to each Lender, such Lender's funding of
its participation in any L/C Borrowing in accordance with its Pro Rata Share.
"L/C Borrowing" means an extension of credit resulting from a drawing under
a Letter of Credit which has not been reimbursed on the date when made or
refinanced as a Loan.
"Laws" means, collectively, all international, foreign, federal, state and
local statutes, treaties, rules, regulations, ordinances, codes and
administrative or judicial precedents.
"Lender" has the meaning set forth in the preamble to this Agreement.
"Lending Office" means, as to any Lender, the office or offices of such
Lender described as such in such Lender's Administrative Questionnaire, or such
other office or offices as a Lender may from time to time notify the Borrower
and the Administrative Agent.
"Letter of Credit Application" means an application and agreement for the
issuance or amendment of a Letter of Credit in the form from time to time in use
by the Issuing Lender.
"Letter of Credit Expiration Date" means the day that is seven days prior
to the Revolving Maturity Date then in effect (or, if such day is not a Business
Day, the next preceding Business Day).
"Letter of Credit Fee" means the applicable per annum percentage set forth
in the definition of "Applicable Margins".
"Letter of Credit Usage" means, as of any date of determination, the
aggregate undrawn face amount of outstanding Letters of Credit plus the
aggregate amount of all Unreimbursed Amounts, including all L/C Borrowings.
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"Letters of Credit" means any of the letters of credit issued by the
Issuing Lender under the Revolving Commitment pursuant to Section 2.4 either as
originally issued or as the same may be supplemented, modified, amended,
renewed, extended or supplanted.
"Leverage Ratio" means, as of the last day of each Fiscal Quarter, the
ratio of (a) the sum (without duplication) of (i) all Indebtedness of Borrower
and its Subsidiaries on that date plus (ii) all Guaranty Obligations of Borrower
and its Subsidiaries on that date to (b) EBITDAM for the twelve month period
ending on that date.
"LIBOR" means for any Interest Period with respect to any LIBOR Loan, a
rate per annum determined by the Administrative Agent pursuant to the following
formula:
LIBOR = LIBO Base Rate
--------------------------------------
1.00 - Reserve Percentage
Where, "LIBO Base Rate" means, for such Interest Period:
(a) the rate per annum equal to the rate determined by the
Administrative Agent to be the offered rate that appears on the page
of the Telerate screen (or any successor thereto) that displays an
average British Bankers Association Interest Settlement Rate for
deposits in Dollars (for delivery on the first day of such Interest
Period) with a term equivalent to such Interest Period, determined as
of approximately 11:00 a.m. (London time) 2 Business Days prior to the
first day of such Interest Period, or
(b) if the rate referenced in the preceding clause (a) does not appear
on such page or service or such page or service shall not be
available, the rate per annum equal to the rate determined by the
Administrative Agent to be the offered rate on such other page or
other service that displays an average British Bankers Association
Interest Settlement Rate for deposits in Dollars (for delivery on the
first day of such Interest Period) with a term equivalent to such
Interest Period, determined as of approximately 11:00 a.m. (London
time) 2 Business Days prior to the first day of such Interest Period,
or
(c) if the rates referenced in the preceding clauses (a) and (b) are
not available, the rate per annum determined by the Administrative
Agent as the rate of interest at which deposits in Dollars for
delivery on the first day of such Interest Period in same day funds in
the approximate amount of the LIBOR Loan being made, continued or
converted by Bank of America and with a term equivalent to such
Interest Period would be offered by Bank of America's London Branch to
major banks in the London interbank eurodollar market at their request
at approximately 4:00 p.m. (London time) two Business Days prior to
the first day of such Interest Period.
"LIBOR Advance" means an Advance made hereunder and specified to be a LIBOR
Advance in accordance with Article 2.
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"LIBOR Lending Office" means, as to each Lender, its office or branch so
designated by written notice to Borrower and the Administrative Agent as its
LIBOR Lending Office. If no LIBOR Lending Office is designated by a Lender, its
LIBOR Lending Office shall be its office at its address for purposes of notices
hereunder.
"LIBOR Loan" means a Loan made hereunder and specified to be a LIBOR Loan
in accordance with Article 2.
"LIBOR Margin" means the applicable per annum percentage set forth in the
definition of "Applicable Margins".
"License Revocation" means (a) the revocation, involuntary failure to renew
or suspension of any casino, gambling or gaming license issued by any Gaming
Board covering any casino or gaming facility of Borrower, (b) the appointment by
any Gaming Board of a receiver, supervisor or similar official with respect to
any such gaming facility or (c) the involuntary closure of any such casino or
gaming facility pursuant to an order of any Gaming Board.
"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 currently effective 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 currently
effective agreement to give any financing statement (other than a precautionary
financing statement with respect to a lease that is not in the nature of a
security interest) under the Uniform Commercial Code or comparable Law of any
jurisdiction with respect to any Property.
"Loan" means the aggregate of the Advances made at any one time by the
Lenders pursuant to Article 2.
"Loan Documents" means, collectively, this Agreement, the Notes, the
Completion Guaranty, any Subsidiary Guaranty, the Letters of Credit, the
Collateral Documents, any Secured Swap Agreement, the Member Subordination
Agreement, the Swing Line Note and any other agreements of any type or nature
hereafter executed and delivered by Borrower, the Subsidiaries of Borrower, the
Members, or any Affiliate of the Members to the Administrative Agent, any Lender
or the Swing Line Lender in any way relating to or in furtherance of this
Agreement, in each case either as originally executed or as the same may from
time to time be supplemented, modified, amended, restated, extended or
supplanted.
"Maintenance Capital Expenditure" means a Capital Expenditure for the
maintenance, repair, restoration or refurbishment of Property subject to the
Deed of Trust, excluding any Capital Expenditures which materially adds to or
further improves such Property (including without limitation, the expenditures
contemplated by the Construction Budgets to be made in respect of the Projects).
-16-
"Majority Lenders" means, as of each date of determination (a) if the
Commitments are then in effect Lenders having in the aggregate a majority in
interest of the then effective Commitments, and (b) if the Commitments have then
been terminated, Lenders holding a majority in interest of the aggregate
outstanding Obligations.
"Management Fee" means any fee paid or payable to any Person for
management, auditing, administrative or other similar services provided to
Borrower, however determined.
"Manager" means GV Ranch Station.
"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 had or could reasonably be expected to have any material adverse effect
whatsoever upon the validity or enforceability of any Loan Document (other than
as a result of any action or inaction of the Administrative Agent, any Lender or
any Affiliate of any Lender), (b) has been or could reasonably be expected to be
material and adverse to the business or condition (financial or otherwise) of
Borrower or (c) has materially impaired or could reasonably be expected to
materially impair the ability of Borrower to perform the Obligations.
"Member Pledge Agreements" means the Pledge Agreements executed and
delivered by each of the Members on the Closing Date, either as originally
executed or as they may from time to time be supplemented, modified, amended,
extended or supplanted.
"Member Pledged Collateral" means the membership interests in Borrower held
by each of the Members.
"Member Subordination Agreement" means the amended and restated
subordination agreement executed by each of the Members on the Closing Date,
either as originally executed or as it may from time to time be supplemented,
modified, amended, extended or supplanted.
"Member Tax Distributions" means Distributions by Borrower to its Members
for the payment of federal and state income taxes as permitted under Section
6.5(b).
"Members" means, collectively, GCR Gaming and GV Ranch Station.
"Multiemployer Plan" means any employee benefit plan of the type described
in Section 4001(a)(3) of ERISA to which Borrower or any of its ERISA Affiliates
contributes or is obligated to contribute.
"Negative Pledge" means a Contractual Obligation that contains a covenant
binding on Borrower or any of its Subsidiaries that prohibits Liens on any of
its Property, other than (a) any such covenant contained in a Contractual
Obligation granting a Lien permitted under Section 6.8 which affects only the
-17-
Property that is the subject of such permitted Lien and (b) any such covenant
that does not apply to Liens securing the Obligations.
"Net Cash Proceeds" means, with respect to a Disposition, (a) the Cash
proceeds of such Disposition received by Borrower net of (i) the expenses
incurred by Borrower in connection therewith, (ii) the amount of any
Indebtedness secured by a Lien on the Property which is the subject thereof
which Borrower is required to discharge and (iii) the reasonably estimated
income, capital gains and other taxes payable by Borrower in connection
therewith and (b) all Cash proceeds and collections of Cash received by Borrower
with respect to any promissory note or non Cash Property received by Borrower
upon such Disposition.
"Net Income" means, with respect to any fiscal period, the consolidated net
income of Borrower and its Subsidiaries for that period, determined in
accordance with GAAP, consistently applied.
"New Lenders" has the meaning set forth in Section 2.7(d).
"Notes" means, collectively, the Revolving Notes and the Term Notes, and
includes without limitation the Existing Term Notes.
"Obligations" means all present and future obligations of every kind or
nature of Borrower at any time and from time to time owed to the Administrative
Agent or the Lenders or any one or more of them, under any one or more of the
Loan Documents, whether due or to become due, matured or unmatured, liquidated
or unliquidated, or contingent or noncontingent, including obligations of
performance as well as obligations of payment, and including interest that
accrues after the commencement of any proceeding under any Debtor Relief Law by
or against Borrower.
"Operating Agreement" means the Operating Agreement dated as of March 10,
2000 among the Members, as amended by a First Amendment to Operating Agreement
dated as of September 17, 2001, a Second Amendment to Operating Agreement dated
as of December 19, 2003, and a Third Amendment to Operating Agreement dated as
of December 17, 2004, as the same may be further amended from time to time in
accordance with Section 6.17.
"Opinions of Counsel" means the favorable written legal opinions issued to
the Administrative Agent and the Lenders on the Closing Date of (a) Milbank,
Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, special counsel to Borrower, and (b) ▇▇▇▇▇▇▇
Brignone, special Nevada counsel to Borrower, together with copies of all
factual certificates delivered to such counsel in connection with their
opinions.
"Party" means any Person other than the Administrative Agent, the Lenders,
any Affiliate of any Lender and the trustee under the Deed of Trust, which now
or hereafter is a party to any of the Loan Documents (other than Persons which
are party only to the Member Subordination Agreement or the Letters of Credit).
-18-
"Pension Plan" means any "employee pension benefit plan" (as such term is
defined in Section 3(2) of ERISA), other than a Multiemployer Plan, which is
subject to Title IV of ERISA and is maintained by Borrower or any of its ERISA
Affiliates or to which Borrower or any of its ERISA Affiliates contributes or
has an obligation to contribute.
"Permitted Encumbrances" means:
(a) inchoate Liens incident to construction on or maintenance of
Property; or Liens incident to construction on or maintenance of
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 material Property is
subject to a material impending risk of loss or forfeiture;
(b) Liens for taxes and assessments on Property which are not yet past
due; or Liens for taxes and assessments on 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 Property is subject to a material impending risk of
loss or forfeiture;
(c) minor defects and irregularities in title to any Property which in
the aggregate do not materially impair the fair market value or use of
the Property for the purposes for which it is or may reasonably be
expected to be held;
(d) easements, exceptions, reservations, or other agreements for the
purpose of pipelines, conduits, cables, wire communication lines,
power lines and substations, streets, trails, walkways, drainage,
irrigation, water, and sewerage purposes, dikes, canals, ditches, the
removal of oil, gas, coal, or other minerals, and other like purposes
affecting 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;
(e) easements, exceptions, reservations, or other agreements for the
purpose of facilitating the joint or common use of Property in or
adjacent to a shopping center or similar project affecting 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 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;
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(h) present or future zoning laws and ordinances or other laws and
ordinances restricting the occupancy, use, or enjoyment of 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 material
Property is subject to a material impending risk of loss or
forfeiture;
(j) the CC&R's and any other covenants, conditions, and restrictions
affecting the use of Property which in the aggregate do not materially
impair the fair market value or use of the 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
Property entered into in the ordinary course of business of the Person
owning such 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 business, 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);
(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 Borrower;
(q) Liens consisting of deposits of Property to secure (or in lieu of)
surety, appeal or customs bonds;
(r) Liens created by or resulting from any litigation or legal
proceeding in the ordinary course of business which is currently being
contested in good faith by appropriate proceedings, provided that such
Lien is junior to the Lien of the Collateral Documents, adequate
reserves have been set aside and no material Property is subject to a
material impending risk of loss or forfeiture; and
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(s) other non consensual Liens incurred in the ordinary course of
business but not in connection with the incurrence of any
Indebtedness, which do not in the aggregate, when taken together with
all other Liens, materially impair the fair market value or use of the
Property for the purposes for which it is or may reasonably be
expected to be held.
"Permitted Right of Others" means a Right of Others consisting of (a) 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 fair
market value or use of Property for the purposes for which it is or may
reasonably be expected to be held, (b) an option or right to acquire a Lien that
would be a Permitted Encumbrance, (c) the subordination of a lease or sublease
in favor of a financing entity and (d) a license, or similar right, of or to
Intangible Assets granted in the ordinary course of business.
"Person" means any individual or entity, including a trustee, corporation,
limited liability company, general partnership, limited partnership, joint stock
company, trust, estate, unincorporated organization, business association, firm,
joint venture or Governmental Agency.
"Phase II Project" means the continued construction of an additional hotel
tower at the Casino, providing for approximately 300 additional hotel rooms,
together with additional meeting space and a spa expansion.
"Phase III Project" means additional construction at the Casino generally
consisting of additional hotel rooms and a casino floor expansion, the details
of which shall be approved by and reasonably acceptable to the Administrative
Agent.
"Pre Opening Expenses" means, with respect to any fiscal period, the amount
of expenses (other than Interest Expense) classified as "pre opening expenses"
on the applicable consolidated financial statements of Borrower and its
Subsidiaries for such period, prepared in accordance with GAAP consistently
applied.
"Pricing Certificate" means a certificate in the form of Exhibit D,
properly completed and signed by a Senior Officer.
"Pricing Level" means (a) for the Initial Pricing Period, Pricing Level II
and (b) for each subsequent Pricing Period, the pricing level set forth below
opposite the Leverage Ratio as of the last day of the Fiscal Quarter most
recently ended prior to the commencement of that Pricing Period:
Pricing Level Leverage Ratio
------------- --------------
I Less than 2.00 to 1.00
II Equal to or greater than 2.00 to 1.00 but less
than 2.50 to 1.00
III Equal to or greater than 2.50 to 1.00
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provided that (a) in the event that Borrower does not deliver a Pricing
Certificate with respect to any Pricing Period prior to the commencement of such
Pricing Period, then until (but only until) such Pricing Certificate is
delivered the Pricing Level for that Pricing Period shall be Pricing Level III,
and (b) if any Pricing Certificate is subsequently determined to be in error,
then the resulting change in the Pricing Level shall be made retroactively to
the beginning of the relevant Pricing Period.
"Pricing Period" means, (a) the Initial Pricing Period, and (b) each
subsequent consecutive period of three months commencing on each May 16, August
16, November 16 and February 16.
"Pro Rata Share" means, as of each date of determination, and with respect
to each Lender, the percentage of the Commitments held by that Lender as of that
date. As of the Closing Date, the Pro Rata Shares of the Commitments (after
giving effect to the amendment to the Existing Loan Agreement contemplated
hereby), are as set forth on Schedule 2.1.
"Projects" means, collectively, the Phase II Project and the Phase III
Project.
"Projections" means the financial projections circulated to Lenders as a
part of the Confidential Offering Memorandum dated November, 2004.
"Property" means any interest in any kind of property or asset, whether
real, personal or mixed, or tangible or intangible.
"Quarterly Payment Date" means each December 31, March 31, June 30 and
September 30 following the Closing Date.
"Real Property" means, as of any date of determination, all real Property
then or theretofore owned, leased or occupied by Borrower.
"Regulation D" means Regulation D, as at any time amended, of the Board of
Governors of the Federal Reserve System, or any other regulation in substance
substituted therefor.
"Regulation U" means Regulation U, as at any time amended, of the Board of
Governors of the Federal Reserve System, or any other regulations in substance
substituted therefor.
"Related Fund" means with respect to any Lender, a Fund that invests in
commercial loans and is administered, advised or managed by that Lender or by
the same investment advisor as that Lender or by an Affiliate of such investment
advisor.
"Request for Loan" means a written request for a Loan substantially in the
form of Exhibit E, signed by a Responsible Official of Borrower, on behalf of
Borrower, and properly completed to provide all information required to be
included therein.
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"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, as of any date of determination (a) if the
Commitments are then in effect, both (y) to the extent that Revolving Lenders
would be adversely affected thereby (or to the extent that the Term Lenders
would receive a pricing increase or other benefit not extended to the Revolving
Lenders), the majority in interest of the Revolving Lenders, but including the
Administrative Agent and the Syndication Agent (if then a party hereto) and (z)
the Majority Lenders, and (b) if the Commitments have then been terminated and
there are then any outstanding Obligations, the Majority Lenders.
"Reserve Percentage" means, for any day during any Interest Period, the
reserve percentage (expressed as a decimal, carried out to five decimal places)
in effect on such day, whether or not applicable to any Lender, under
regulations issued from time to time by the Board of Governors of the Federal
Reserve System for determining the maximum reserve requirement (including any
emergency, supplemental or other marginal reserve requirement) with respect to
liabilities or assets consisting of or including Eurocurrency funds or deposits
(currently referred to as "eurocurrency liabilities"). LIBOR for each
outstanding LIBOR Loan shall be adjusted automatically as of the effective date
of any change in the Reserve Percentage.
"Responsible Official" means (a) when used with reference to a Person other
than an individual, any corporate officer or member of such Person, general
partner of such Person, corporate officer or member of a corporate general
partner of such Person, or corporate officer or member of a corporate general
partner of a partnership that is a general partner of such Person, or any other
responsible official thereof duly acting on behalf thereof, and (b) when used
with reference to a Person who is an individual, such Person. The Lenders shall
be entitled to conclusively rely upon any document or certificate that is signed
or executed by a Responsible Official of Borrower or any of its Subsidiaries as
having been authorized by all necessary corporate partnership and/or other
action on the part of Borrower or such Subsidiary; provided that such
Responsible Official has been designated as a Responsible Official for purposes
of this Agreement in a written notice signed by a Senior Officer and delivered
to the Administrative Agent, which notice has not been canceled or superseded.
"Revolving Commitment" means subject to Sections 2.5 or 2.8 , $50,000,000,
or as increased pursuant to Section 2.7.
"Revolving Lender" means each Lender having a Pro Rata Share of the
Revolving Loans, the Letters of Credit, the Swing Line Loans and the Revolving
Commitment.
"Revolving Loans" means the aggregate of the Advances made at any one time
by the Revolving Lenders under the Revolving Commitment.
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"Revolving Maturity Date" means the fifth anniversary of the Closing Date,
provided that the Revolving Maturity Date may be extended in the manner
contemplated by Section 2.8.
"Revolving Notes" means any of the promissory notes made by Borrower to a
Lender evidencing the Advances under that Lender's Pro Rata Share of the
Revolving Commitment, substantially in the form of Exhibit C-1, either as
originally executed or as the same may from time to time be supplemented,
modified, amended, renewed, extended or supplanted.
"Right of Others" means, as to any Property in which a Person has an
interest, any legal or equitable right, title or other interest (other than a
lease or 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) no covenant restricting the use or disposition of
Property of such Person contained in any Contractual Obligation of such Person
and (b) no 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 shall be deemed to constitute a Right of
Others.
"Secured Swap Agreement" means a Swap Agreement between Borrower and a
Lender (or an Affiliate of a Lender) that is secured by a Lien on the Collateral
that complies with the applicable provisions of Section 11.12.
"Security Agreement" means the amended and restated security agreement to
be executed and delivered by Borrower and each of its Subsidiaries on the
Closing Date, either as originally executed or as it may from time to time be
supplemented, modified, amended, extended or supplanted.
"Senior Officer" means (a) the chief executive officer, (b) the president,
(c) any executive vice president, (d) any senior vice president, (e) the chief
financial officer, (f) the treasurer, or (g) the secretary, in each case of
Borrower or the Manager.
"Special Eurodollar Circumstance" means the application or adoption after
the Closing Date of any Law or interpretation, or any change therein or thereof,
or any change in the interpretation or administration thereof by any
Governmental Agency, central bank or comparable authority charged with the
interpretation or administration thereof, or compliance by any Lender or its
LIBOR 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.
"Station" means Station Casinos, Inc., a Nevada corporation, and the owner
of 100% of the equity securities of the Manager.
"Station Change of Control" means an event or series of events by which (i)
Station sells, conveys, transfers or leases, directly or indirectly, all or
substantially all of the properties and assets of Station and its Subsidiaries
to any person, corporation, entity or group, (ii) any "person" (as such term is
used in Section 13(d) and 14(d) of the Securities Exchange Act of 1934) (other
-24-
than the Existing Equity Holders) is or becomes the "beneficial owner" (as
defined in Rules 13d-3 and 13d 5 under such Act, except that a person shall be
deemed to have "beneficial ownership" of all shares that any such person has the
right to acquire, whether such right is exercisable immediately or only after
the passage of time), directly or indirectly of securities representing 40% or
more of the Voting Stock and at such time as the Existing Equity Holders
together shall fail to beneficially own, directly or indirectly, securities
representing at least the same percentage of the combined voting power of the
Voting Stock as is "beneficially owned" by such "person," (iii) Station
consolidates with or merges into another corporation, or any corporation
consolidates with or merges into Station, in either event pursuant to a
transaction in which the outstanding Voting Stock is changed into or exchanged
for cash, securities or other property, other than any such transactions between
Station and its wholly owned Subsidiaries, with the effect that any "person"
(other than the Existing Equity Holders) becomes the "beneficial owner,"
directly or indirectly, of securities representing 40% or more of the combined
voting power of the Voting Stock and at such time as the Existing Equity Holders
together shall fail to beneficially own, directly or indirectly, securities
representing at least the same percentage of the combined voting power of the
Voting Stock as is "beneficially owned" by such "person" or (iv) during any
period of 24 consecutive months, individuals who at the beginning of such period
constituted Station's board of directors (together with any new or replacement
directors whose election by the then incumbent Station's board of directors, or
whose nomination for election by Station's stockholders, was approved by a vote
of at least 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 directors then in office.
"Subordinated Obligations" means (a) all obligations of Borrower or any of
its Subsidiaries to make payments of Management Fees or other amounts under the
Management Agreement to the Manager or any Affiliate thereof, (b) any other
obligation of Borrower or any of its Subsidiaries to any Member or any Affiliate
thereof (other than Member Tax Distributions), and (c) any obligation of
Borrower or any of its Subsidiaries to any other Person that is subordinated by
its terms in right of payment to the Obligations or to all Indebtedness of
Borrower or such Subsidiary, in a manner which is acceptable to the Requisite
Lenders in their sole discretion and the terms of which, including without
limitation the representations, warranties, covenants, defaults, tenor and
pricing, are reasonably acceptable to the Requisite Lenders.
"Subordination, Non Disturbance and Attornment Agreements" means
subordination, non disturbance and attornment agreements entered into by the
Administrative Agent at the request of Borrower with commercial tenants on the
Real Property, substantially in the form of Exhibit F but with such changes
thereto as may be agreed upon by the Administrative Agent in its discretion.
"Subsidiary" means, as of any date of determination and with respect to any
Person, any corporation, limited liability company or partnership (whether or
not, in either case, characterized as such or as a "joint venture"), whether now
existing or hereafter organized or acquired: (a) in the case of a corporation or
-25-
limited liability company, of which a majority of the securities having ordinary
voting power for the election of directors or other governing body (other than
securities having such power only by reason of the happening of a contingency)
are at the time beneficially owned by such Person and/or one or more
Subsidiaries of such Person, or (b) in the case of a partnership, of which a
majority of the partnership or other ownership interests are at the time
beneficially owned by such Person and/or one or more of its Subsidiaries.
"Subsidiary Guaranty" means a continuing guaranty of the Obligations to be
executed and delivered by each Subsidiary of Borrower in accordance with Section
5.10, either as originally executed or as it may from time to time be
supplemented, modified, amended, extended or supplanted.
"Swap Agreement" means a written agreement between Borrower and one or more
financial institutions providing for "swap", "cap", "collar" or other interest
rate protection with respect to any Indebtedness.
"Swing Line" means the revolving line of credit established by the Swing
Line Lender in favor of Borrower pursuant to Section 2.10.
"Swing Line Lender" means Bank of America, acting through its Las Vegas
Commercial Banking Division.
"Swing Line Loans" means loans made by the Swing Line Lender to Borrower
pursuant to Section 2.10.
"Swing Line Note" means the promissory note executed by Borrower in favor
of the Swing Line Lender in connection with the Swing Line.
"Swing Line Outstandings" means, as of any date of determination, the
aggregate principal Indebtedness of Borrower on all Swing Line Loans then
outstanding.
"Syndication Agent" means ▇▇▇▇▇ Fargo. The capacity of the Syndication
Agent is purely titular in nature, and the Syndication Agent shall have no
rights, duties, liabilities, obligations or responsibilities under the Loan
Documents beyond those of a Lender.
"Synthetic Lease" means, as to any Person, any obligation of such Person
which is classified as an operating lease under GAAP but which is treated under
applicable Law as a financing arrangement secured by a Lien on the assets
subject to such arrangement.
"Term Amortization Amount" means, as to each Quarterly Payment Date,
$500,000, provided that in the event that the amount of the Term Commitment is
hereafter increased in accordance with Section 2.7, then the Term Amortization
Amount shall be increased as to each subsequent Quarterly Payment Date by a
fraction equal to (a) the sum of $200,000,000 plus the principal amount of the
increase to the Term Commitment over (b) $200,000,000.
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"Term Commitment" means subject to Sections 2.6, $200,000,000, or as
increased pursuant to Section 2.7.
"Term Lender" means each Lender having a Pro Rata Share of the Term Loans
and the Term Commitment.
"Term Loans" means the aggregate of the Advances made at any one time by
the Term Lenders under the Term Commitment.
"Term Maturity Date" means the seventh anniversary of the Closing Date.
"Term Notes" means (a) collectively, the Existing Term Notes, and (b) any
of the promissory notes made by Borrower to a Lender evidencing the Advances
under that Lender's Pro Rata Share of the Term Commitment, substantially in the
form of Exhibit C-2, either as originally executed or as the same may from time
to time be supplemented, modified, amended, renewed, extended or supplanted.
"Title Company" means Chicago Title Company, acting through its
representative, Nevada Title Insurance Company, or such other title insurance
company as is reasonably acceptable to the Administrative Agent.
"Title Policy" means Chicago Title Insurance Company ALTA Loan Policy
99-09-0031 JH, dated as of September 24, 2001.
"to the best knowledge of" means, when modifying a representation, warranty
or other statement of any Person, that the fact or situation described therein
is known by the Person (or, in the case of a Person other than a natural Person,
known by a Responsible Official of that Person) making the representation,
warranty or other statement, or with the exercise of reasonable due diligence
under the circumstances (in accordance with the standard of what a reasonable
Person in similar circumstances would have done) would have been known by the
Person (or, in the case of a Person other than a natural Person, would have been
known by a Responsible Official of that Person).
"type", when used with respect to any Loan or Advance, means the
designation of whether such Loan or Advance is an Base Rate Loan or Advance, or
a LIBOR Loan or Advance.
"Unreimbursed Amount" has the meaning set forth in Section 2.4(c)(1).
"Voting Stock" means, as to Station, those shares of the capital stock of
Station entitled to ordinary voting power.
"▇▇▇▇▇ Fargo" shall have the meaning as set forth in the preamble to this
Agreement.
"Wholly Owned Subsidiary" means a Subsidiary of Borrower, 100% of the
capital stock of which is owned, directly or indirectly, by Borrower, except for
director's qualifying or like shares required by applicable Laws.
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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, GAAP
applied on a consistent basis, except as otherwise specifically prescribed
herein. In the event that GAAP change during the term of this Agreement such
that the covenants contained in Sections 6.11 and 6.12 would then be calculated
in a different manner or with different components, (a) Borrower and the Lenders
agree to amend this Agreement in such respects as are necessary to conform those
covenants as criteria for evaluating Borrower's financial condition to
substantially the same criteria as were effective prior to such change in GAAP
and (b) Borrower's shall be deemed to be in compliance with the covenants
contained in the aforesaid Sections if and to the extent that Borrower would
have been in compliance therewith under GAAP as in effect immediately prior to
such change, but shall have the obligation to deliver each of the materials
described in Article 8 to the Administrative Agent and the Lenders, on the dates
therein specified, with financial data presented in a manner which conforms with
GAAP as in effect immediately prior to such change.
1.4 Rounding. Any financial ratios required to be maintained by Borrower
pursuant to this Agreement shall be calculated by dividing the appropriate
component by the other component, carrying the result to one place more than the
number of places by which such ratio is expressed in this Agreement and rounding
the result up or down to the nearest number (with a round up if there is no
nearest number) to the number of places by which such ratio is expressed in this
Agreement.
1.5 Exhibits and Schedules. All Exhibits and Schedules to this Agreement,
either as originally existing or as the same may from time to time be
supplemented, modified or amended, are incorporated herein by this reference. A
matter disclosed on any Schedule shall be deemed disclosed on all Schedules.
1.6 References to "Borrower and its Subsidiaries". Any reference herein to
"Borrower and its Subsidiaries" or the like shall refer solely to Borrower
during such times, if any, as Borrower shall have no Subsidiaries.
1.7 Miscellaneous Terms. With reference to this Agreement and each other
Loan Document, unless otherwise specified herein or in such other Loan Document:
(a) The meanings of defined terms are equally applicable to the
singular and plural forms of the defined terms.
(b) The words "herein," "hereto," "hereof" and "hereunder" and words
of similar import when used in any Loan Document shall refer to such
Loan Document as a whole and not to any particular provision thereof.
(c) Article, Section, Exhibit and Schedule references are to the Loan
Document in which such reference appears.
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(d) The term "including" is by way of example and not limitation.
(e) The term "or" is not exclusive.
(f) The term "documents" includes any and all instruments, documents,
agreements, certificates, notices, reports, financial statements and
other writings, however evidenced, whether in physical or electronic
form.
(g) In the computation of periods of time from a specified date to a
later specified date, the word "from" means "from and including;" the
words "to" and "until" each mean "to but excluding;" and the word
"through" means "to and including."
1.8 Letter of Credit Amounts. Unless otherwise specified, all references
herein to the amount of a Letter of Credit at any time shall be deemed to mean
the maximum face amount of such Letter of Credit after giving effect to all
increases thereof contemplated by such Letter of Credit or the Letter of Credit
Application therefor, whether or not such maximum face amount is in effect at
such time.
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 the
Revolving Maturity Date, each Revolving Lender shall, pro rata
according to that Revolving Lender's Pro Rata Share of the then
applicable Revolving Commitment, make Advances to Borrower under the
Revolving Commitment in such amounts as Borrower may request that do
not result in the sum of (i) the aggregate principal amount under the
Revolving Notes, (ii) the Swing Line Outstandings (after giving effect
to any concurrent payment thereof with the proceeds of such Advances)
and (iii) the Letters of Credit Usage to exceed the then effective
Revolving Commitment. Subject to the limitations set forth herein,
Borrower may borrow, repay and reborrow under the Revolving Commitment
without premium or penalty.
(b) Subject to the terms and conditions set forth in this Agreement,
on the Closing Date each Term Lender shall make a term Advance to
Borrower under the Term Commitment in an amount equal to its Pro Rata
Share of the Term Commitment. Subject to the terms and conditions set
forth in this Agreement, at any time and from time to time following
the Closing Date through the Term Maturity Date, each Term Lender
shall, pro rata according to that Term Lender's Pro Rata Share of the
then applicable Term Commitment, make Advances to Borrower under the
Term Commitment in the amounts which are required to refinance any
then outstanding Advances under the Term Commitment as Borrower may
request which do not result in the aggregate principal amount
outstanding under the Term Notes being in excess of the Term
Commitment. No Advance under the Term Commitment which is repaid may
subsequently be reborrowed, however Borrower may repay loans
outstanding under the Term Commitment without premium or penalty.
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(c) Subject to the next sentence, each Loan shall be made pursuant to
a Request for Loan which shall specify the requested (i) date of such
Loan, (ii) type of Loan, (iii) amount of such Loan, (iv) in the case
of a LIBOR Loan, the Interest Period for such Loan and (v) whether the
Loan is requested under the Term Commitment or the Revolving
Commitment. Unless the Administrative Agent, in its sole and absolute
discretion, has notified Borrower to the contrary, a Loan may be
requested by telephone by a Responsible Official of Borrower, in which
case Borrower shall confirm such request by promptly delivering a
Request for Loan in person or by telecopier conforming to the
preceding sentence to the Administrative Agent. The Administrative
Agent shall incur no liability whatsoever hereunder in acting upon any
telephonic request for Loan purportedly made by a Responsible Official
of Borrower, and Borrower hereby agrees to indemnify the
Administrative Agent from any loss, cost, expense or liability as a
result of so acting.
(d) Promptly following receipt of a Request for Loan, the
Administrative Agent shall notify each Lender by telephone or
telecopier (and if by telephone, promptly confirmed by telecopier) of
the date and type of the Loan, the applicable Interest Period, and
that Lender's Pro Rata Share of the Loan. Not later than 10:00 a.m.,
Nevada 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 9, all Advances shall
be credited on that date in immediately available funds to the
Designated Deposit Account.
(e) Unless the Requisite Lenders otherwise consent, each Loan shall be
not less than $2,000,000 and in an integral multiple of $1,000,000.
(f) The Advances made by each Lender under the Commitments shall be
evidenced by that Lender's Notes. In the case of each Term Lender
which does not advance additional Term Loans on the Closing Date,
their Term Loans shall continue to be evidenced by the Existing Term
Notes.
(g) Subject to Sections 3.8(c) and (d), a Request for Loan shall be
irrevocable upon the Administrative Agent's first notification
thereof.
(h) If no Request for Loan (or telephonic request for Loan referred to
in the second sentence of Section 2.1(c), if applicable) has been made
within the requisite notice periods set forth in Section 2.2 or 2.3
prior to the end of the Interest Period for any LIBOR Loan, then on
the last day of such Interest Period, such LIBOR Loan shall be
automatically converted into an Base Rate Loan in the same amount.
(i) If a Loan is to be made on the same date that another Loan is due
and payable, Borrower or the Lenders, as the case may be, shall make
available to the Administrative Agent the net amount of funds giving
effect to both such Loans and the effect for purposes of this
Agreement shall be the same as if separate transfers of funds had been
made with respect to each such Loan.
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2.2 Base Rate Loans. Each request by Borrower for an 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(c), if applicable) received by
the Administrative Agent, at the Administrative Agent's Office, not later than
9:00 a.m. Nevada 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 LIBOR Loan pursuant to Section 2.3.
2.3 LIBOR Loans.
(a) Each request by Borrower for a LIBOR 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(c), if applicable)
received by the Administrative Agent, at the Administrative Agent's
Office, not later than 9:00 a.m., Nevada time, at least three Business
Days before the first day of the applicable Interest Period.
(b) On the date which is two Business Days before the first day of the
applicable Interest Period, the Administrative Agent shall confirm its
determination of the applicable LIBOR (which determination shall be
conclusive in the absence of manifest error) and promptly shall give
notice of the same to Borrower and the Lenders by telephone or
telecopier (and if by telephone, promptly confirmed by telecopier).
(c) Unless the Administrative Agent and the Requisite Lenders
otherwise consent, no more than ten LIBOR Loans shall be outstanding
at any one time.
(d) No LIBOR Loan may be requested during the continuation of a
Default or Event of Default.
(e) Nothing contained herein shall require any Lender to fund any
LIBOR Advance in the Designated Eurodollar Market.
2.4 Letters of Credit.
(a) Letter of Credit Commitment. Subject to the terms and conditions
of this Agreement (including Section 9.3), Borrower may request from
time to time during the period from the Closing Date through the day
prior to the Letter of Credit Expiration Date that the Issuing Lender,
in reliance upon the agreements of the other Revolving Lenders set
forth in this Section 2.4, issue Letters of Credit for the account of
Borrower, and the Issuing Lender agrees to issue for the account of
Borrower one or more Letters of Credit and to amend Letters of Credit
previously issued by it in accordance with subsection (b) below,
provided that (i) Borrower shall not request that the Issuing Lender
issue any Letter of -------- Credit if, after giving effect to such
issuance, the aggregate outstanding principal evidenced by the
Revolving Notes plus the Letter of Credit Usage plus the Swing Line
Outstandings exceeds the Revolving Commitment, (ii) Borrower shall not
request that the Issuing Lender issue any Letter of Credit if Borrower
would not be in compliance with Sections 6.11 and 6.12, (iii) in no
event shall the Issuing Lender issue any Letter of Credit having an
expiration date after the Revolving Maturity Date, (iv) the Borrower
shall not request any Letter of Credit if, after giving effect to such
issuance, the Letter of Credit Usage would exceed $2,000,000 or any
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limit established by Law after the Closing Date on the Issuing
Lender's ability to issue the requested Letter of Credit at any time,
and (v) prior to the issuance of any Letter of Credit the Issuing
Lender shall request confirmation by telephone from the Administrative
Agent that such Letter of Credit may be issued. Notwithstanding the
foregoing, the Issuing Lender shall not be obligated to issue a Letter
of Credit if, (A) on or prior to the Business Day immediately
preceding the issuance thereof any Revolving Lender has notified the
Issuing Lender in writing that the conditions set forth in Section 9.3
have not been satisfied with respect to the issuance of such Letter of
Credit, (B) any order, judgment or decree of any Governmental Agency
or arbitrator shall by its terms purport to enjoin or restrain the
Issuing Lender from issuing such Letter of Credit, or any Law
applicable to the Issuing Lender or any request or directive (whether
or not having the force of law) from any Governmental Agency with
jurisdiction over the Issuing Lender shall prohibit, or request that
the Issuing Lender refrain from, the issuance of letters of credit
generally or such Letter of Credit in particular or shall impose upon
the Issuing Lender with respect to such Letter of Credit any
restriction, reserve or capital requirement (for which the Issuing
Lender is not otherwise compensated hereunder) not in effect on the
Closing Date, or shall impose upon the Issuing Lender any unreimbursed
loss, cost or expense which was not applicable on the Closing Date and
which the Issuing Lender in good ▇▇▇▇▇ ▇▇▇▇▇ material to it, (C) the
issuance of such Letter of Credit would violate one or more policies
of the Issuing Lender, or (D) the expiry date of such requested Letter
of Credit would occur after the Letter of Credit Expiration Date,
unless all of the Revolving Lenders have approved such expiry date.
(b) Procedures for Issuance and Amendment of Letters of Credit.
(1) Each Letter of Credit shall be issued or amended, as the case
may be, upon the request of the Borrower delivered to the Issuing
Lender (with a copy to the Administrative Agent) in the form of a
Letter of Credit Application, appropriately completed and signed
by a Responsible Official of the Borrower. Such Letter of Credit
Application must be received by the Issuing Lender and the
Administrative Agent not later than 1:00 p.m., Los Angeles time,
at least 3 Business Days (or such later date and time as the
Issuing Lender may agree in a particular instance in its sole
discretion) prior to the proposed issuance date or date of
amendment, as the case may be. In the case of a request for an
initial issuance of a Letter of Credit, such Letter of Credit
Application shall specify in form and detail satisfactory to the
Issuing Lender: (A) the proposed issuance date of the requested
Letter of Credit (which shall be a Business Day); (B) the amount
thereof; (C) the expiry date thereof; (D) the name and address of
the beneficiary thereof; (E) the documents to be presented by
such beneficiary in case of any drawing thereunder; (F) the full
text of any certificate to be presented by such beneficiary in
case of any drawing thereunder; and (G) such other matters as the
Issuing Lender may require. In the case of a request for an
amendment of any outstanding Letter of Credit, such Letter of
Credit Application shall specify in form and detail satisfactory
to the Issuing Lender (W) the Letter of Credit to be amended; (X)
the proposed date of amendment thereof (which shall be a Business
Day); (Y) the nature of the proposed amendment; and (Z) such
other matters as the Issuing Lender may require.
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(2) Promptly after receipt of any Letter of Credit Application,
the Issuing Lender will confirm with the Administrative Agent (by
telephone or in writing) that the Administrative Agent has
received a copy of such Letter of Credit Application from the
Borrower and, if not, the Issuing Lender will provide the
Administrative Agent with a copy thereof. Upon receipt by the
Issuing Lender of confirmation from the Administrative Agent that
the requested issuance or amendment is permitted in accordance
with the terms hereof, then, subject to the terms and conditions
hereof, the Issuing Lender shall, on the requested date, issue a
Letter of Credit for the account of the Borrower or enter into
the applicable amendment, as the case may be, in each case in
accordance with the Issuing Lender's usual and customary business
practices. Immediately upon the issuance of each Letter of
Credit, each Revolving Lender shall be deemed to, and hereby
irrevocably and unconditionally agrees to, purchase from the
Issuing Lender a risk participation in such Letter of Credit in
an amount equal to the product of such Lender's Pro Rata Share
times the amount of such Letter of Credit.
(3) Promptly after its delivery of any Letter of Credit or any
amendment to a Letter of Credit to an advising bank with respect
thereto or to the beneficiary thereof, the Issuing Lender will
also deliver to the Borrower and the Administrative Agent a true
and complete copy of such Letter of Credit or amendment.
(c) Drawings and Reimbursements; Funding of Participations.
(1) Upon receipt from the beneficiary of any Letter of Credit of
any notice of a drawing under such Letter of Credit, the Issuing
Lender shall notify the Borrower and the Administrative Agent
thereof. Not later than 11:00 a.m. Los Angeles time on the date
of any payment by the Issuing Lender under a Letter of Credit
(each such date, an "Honor Date"), the Borrower shall reimburse
the Issuing Lender through the Administrative Agent in an amount
equal to the amount of such drawing. If the Borrower fails to so
reimburse the Issuing Lender by such time, the Administrative
Agent shall promptly notify each Revolving Lender of the Honor
Date, the amount of the unreimbursed drawing (the "Unreimbursed
Amount"), and the amount of such Revolving Lender's Pro Rata
Share thereof. In such event, the Borrower shall be deemed to
have requested a Base Rate Loan to be disbursed on the Honor Date
in an amount equal to the Unreimbursed Amount, without regard to
the minimum and multiples specified in Section 2.1(e) for the
principal amount of Base Rate Loans, but subject to the amount of
the unutilized portion of the Commitments and the conditions set
forth in Section 9.2 (other than the delivery of a Request for
Loan). Any notice given by the Issuing Lender or the
Administrative Agent pursuant to this Section 2.4(c)(1) may be
given by telephone if immediately confirmed in writing; provided
that the lack of such an immediate confirmation shall not affect
the conclusiveness or binding effect of such notice.
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(2) Each Revolving Lender (including the Lender acting as Issuing
Lender) shall upon any notice pursuant to Section 2.4(c)(1) make
funds available to the Administrative Agent for the account of
the Issuing Lender at the Administrative Agent's Office in an
amount equal to its Pro Rata Share of the Unreimbursed Amount not
later than 1:00 p.m. Los Angeles time on the Business Day
specified in such notice by the Administrative Agent, whereupon,
subject to the provisions of Section 2.4(c)(3), each Lender that
so makes funds available shall be deemed to have made an Advance
to the Borrower in such amount. The Administrative Agent shall
remit the funds so received to the Issuing Lender.
(3) With respect to any Unreimbursed Amount that is not fully
refinanced by a Base Rate Loan because the conditions set forth
in Section 9.2 cannot be satisfied or for any other reason, the
Borrower shall be deemed to have incurred from the Issuing Lender
an L/C Borrowing in the amount of the Unreimbursed Amount that is
not so refinanced, which L/C Borrowing shall be due and payable
on demand (together with interest) and shall bear interest at the
Default Rate. In such event, each Revolving Lender's payment to
the Administrative Agent for the account of the Issuing Lender
pursuant to Section 2.4(c)(2) shall be deemed payment in respect
of its participation in such L/C Borrowing and shall constitute
an L/C Advance from such Revolving Lender in satisfaction of its
participation obligation under this Section 2.4.
(4) Until each Revolving Lender funds its Advance or L/C Advance
pursuant to this Section 2.4(c) to reimburse the Issuing Lender
for any amount drawn under any Letter of Credit, interest in
respect of such Lender's Pro Rata Share of such amount shall be
solely for the account of the Issuing Lender.
(5) Each Revolving Lender's obligation to make Advances or L/C
Advances to reimburse the Issuing Lender for amounts drawn under
Letters of Credit, as contemplated by this Section 2.4(c), shall
be absolute and unconditional and shall not be affected by any
circumstance, including (A) any set-off, counterclaim,
recoupment, defense or other right which such Lender may have
against the Issuing Lender, the Borrower or any other Person for
any reason whatsoever; (B) the occurrence or continuance of a
Default, or (C) any other occurrence, event or condition, whether
or not similar to any of the foregoing; provided, however, that
each Revolving Lender's obligation to make Advances pursuant to
this Section 2.4(c) is subject to the conditions set forth in
Section 9.2 (other than delivery by the Borrower of a Request for
Loan). No such making of an L/C Advance shall relieve or
otherwise impair the obligation of the Borrower to reimburse the
Issuing Lender for the amount of any payment made by the Issuing
Lender under any Letter of Credit, together with interest as
provided herein.
(6) If any Revolving Lender fails to make available to the
Administrative Agent for the account of the Issuing Lender any
amount required to be paid by such Revolving Lender pursuant to
the foregoing provisions of this Section 2.4(c) by the time
specified in Section 2.4(c)(2), the Issuing Lender shall be
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entitled to recover from such Revolving Lender (acting through
the Administrative Agent), on demand, such amount with interest
thereon for the period from the date such payment is required to
the date on which such payment is immediately available to the
Issuing Lender at a rate per annum equal to the Federal Funds
Rate from time to time in effect. A certificate of the Issuing
Lender submitted to any Revolving Lender (through the
Administrative Agent) with respect to any amounts owing under
this clause (6) shall be conclusive absent manifest error.
(d) Repayment of Participations.
(1) At any time after the Issuing Lender has made a payment under
any Letter of Credit and has received from any Revolving Lender
such Revolving Lender's L/C Advance in respect of such payment in
accordance with Section 2.4(c), if the Administrative Agent
receives for the account of the Issuing Lender any payment in
respect of the related Unreimbursed Amount or interest thereon
(whether directly from the Borrower or otherwise, including
proceeds of cash collateral applied thereto by the Administrative
Agent), the Administrative Agent will distribute to such
Revolving Lender its Pro Rata Share thereof (appropriately
adjusted, in the case of interest payments, to reflect the period
of time during which such Revolving Lender's L/C Advance was
outstanding) in the same funds as those received by the
Administrative Agent.
(2) If any payment received by the Administrative Agent for the
account of the Issuing Lender pursuant to Section 2.4(c)(1) is
required to be returned under any of the circumstances described
in Section 12.24 (including pursuant to any settlement entered
into by the Issuing Lender in its discretion), each Revolving
Lender shall pay to the Administrative Agent for the account of
the Issuing Lender its Pro Rata Share thereof on demand of the
Administrative Agent, plus interest thereon from the date of such
demand to the date such amount is returned by such Revolving
Lender, at a rate per annum equal to the Federal Funds Rate from
time to time in effect.
(e) Obligations Absolute. The obligation of the Borrower to reimburse
the Issuing Lender for each drawing under each Letter of Credit and to
repay each L/C Borrowing shall be absolute, unconditional and
irrevocable, and shall be paid strictly in accordance with the terms
of this Agreement under all circumstances, including the following:
(1) any lack of validity or enforceability of such Letter of
Credit, this Agreement, or any other agreement or instrument
relating thereto;
(2) the existence of any claim, counterclaim, set-off, defense or
other right that the Borrower may have at any time against any
beneficiary or any transferee of such Letter of Credit (or any
Person for whom any such beneficiary or any such transferee may
be acting), the Issuing Lender or any other Person, whether in
connection with this Agreement, the transactions contemplated
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hereby or by such Letter of Credit or any agreement or instrument
relating thereto, or any unrelated transaction;
(3) any draft, demand, certificate or other document presented
under such Letter of Credit proving to be forged, fraudulent,
invalid or insufficient in any respect or any statement therein
being untrue or inaccurate in any respect; or any loss or delay
in the transmission or otherwise of any document required in
order to make a drawing under such Letter of Credit;
(4) any payment by the Issuing Lender under such Letter of Credit
against presentation of a draft or certificate that does not
strictly comply with the terms of such Letter of Credit; or any
payment made by the Issuing Lender under such Letter of Credit to
any Person purporting to be a trustee in bankruptcy,
debtor-in-possession, assignee for the benefit of creditors,
liquidator, receiver or other representative of or successor to
any beneficiary or any transferee of such Letter of Credit,
including any arising in connection with any proceeding under any
Debtor Relief Law; or
(5) any other circumstance or happening whatsoever, whether or
not similar to any of the foregoing, including any other
circumstance that might otherwise constitute a defense available
to, or a discharge of, the Borrower.
The Borrower shall promptly examine a copy of each Letter of Credit and each
amendment thereto that is delivered to it and, in the event of any claim of
noncompliance with the Borrower's instructions or other irregularity, the
Borrower will within three Business Days notify the Issuing Lender. The Borrower
shall be conclusively deemed to have waived any such claim against the Issuing
Lender and its correspondents unless such notice is given as aforesaid.
(f) Role of Issuing Lender. Each Revolving Lender and the Borrower
agree that, in paying any drawing under a Letter of Credit, the
Issuing Lender shall not have any responsibility to obtain any
document (other than any sight draft, certificates and documents
expressly required by the Letter of Credit) or to ascertain or inquire
as to the validity or accuracy of any such document or the authority
of the Person executing or delivering any such document. None of the
Issuing Lender, any Agent-Related Person nor any of the respective
correspondents, participants or assignees of the Issuing Lender shall
be liable to any Revolving Lender for (i) any action taken or omitted
in connection herewith at the request or with the approval of the
Revolving Lenders, the Requisite Lenders; (ii) any action taken or
omitted in the absence of gross negligence or willful misconduct; or
(iii) the due execution, effectiveness, validity or enforceability of
any document or instrument related to any Letter of Credit or Letter
of Credit Application. The Borrower hereby assumes all risks of the
acts or omissions of any beneficiary or transferee with respect to its
use of any Letter of Credit; provided, however, that this assumption
is not intended to, and shall not, preclude the Borrower's pursuing
such rights and remedies as it may have against the beneficiary or
transferee at law or under any other agreement. None of the Issuing
Lender, any Agent-Related Person, nor any of the respective
correspondents, participants or assignees of the Issuing Lender, shall
be liable or responsible for any of the matters described in clauses
(1) through (5) of Section 2.4(e); provided, however, that anything in
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such clauses to the contrary notwithstanding, the Borrower may have a
claim against the Issuing Lender, and the Issuing Lender may be liable
to the Borrower, to the extent, but only to the extent, of any direct,
as opposed to consequential or exemplary, damages suffered by the
Borrower which the Borrower proves were caused by the Issuing Lender's
willful misconduct or gross negligence or the Issuing Lender's willful
failure to pay under any Letter of Credit after the presentation to it
by the beneficiary of a sight draft and certificate(s) strictly
complying with the terms and conditions of a Letter of Credit. In
furtherance and not in limitation of the foregoing, the Issuing Lender
may accept documents that appear on their face to be in order, without
responsibility for further investigation, regardless of any notice or
information to the contrary, and the Issuing Lender shall not be
responsible for the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign a Letter
of Credit or the rights or benefits thereunder or proceeds thereof, in
whole or in part, which may prove to be invalid or ineffective for any
reason.
(g) Cash Collateral. Upon the request of the Administrative Agent, (i)
if the Issuing Lender has honored any full or partial drawing request
under any Letter of Credit and such drawing has resulted in an L/C
Borrowing, or (ii) if, as of the Letter of Credit Expiration Date, any
Letter of Credit may for any reason remain outstanding and partially
or wholly undrawn, the Borrower shall immediately Cash Collateralize
the then outstanding amount of the Letter of Credit Usage (in an
amount equal to such outstanding amount determined as of the date of
such L/C Borrowing or the Letter of Credit Expiration Date, as the
case may be). For purposes hereof, "Cash Collateralize" means to
pledge and deposit with or deliver to the Administrative Agent, for
the benefit of the Issuing Lender and the Revolving Lenders, as
collateral for the then outstanding amount of the Letter of Credit
Usage, cash or deposit account balances pursuant to documentation in
form and substance satisfactory to the Administrative Agent and the
Issuing Lender (which documents are hereby consented to by the
Revolving Lenders). Derivatives of such term have corresponding
meanings. The Borrower hereby grants to the Administrative Agent, for
the benefit of the Issuing Lender and the Revolving Lenders, a
security interest in all such cash, deposit accounts and all balances
therein and all proceeds of the foregoing. Cash collateral shall be
maintained in blocked, non-interest bearing deposit accounts at Bank
of America.
(h) Applicability of ISP. Unless otherwise expressly agreed by the
Issuing Lender and the Borrower when a Letter of Credit is issued, the
rules of the ISP shall apply to each Letter of Credit.
(i) Conflict with Letter of Credit Application. In the event of any
conflict between the terms hereof and the terms of any Letter of
Credit Application, the terms hereof shall control.
(j) Fees for Modifications. The issuance of any supplement,
modification, amendment, renewal, or extension to or of any Letter of
Credit shall be treated in all respects the same as the issuance of a
new Letter of Credit, except that the Issuing Lender's issuance fees
shall be payable as set forth in the letter agreement referred to in
Section 3.5.
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2.5 Voluntary Reduction of the Revolving Commitment. Borrower 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 by a Responsible Official of
Borrower to the Administrative Agent, voluntarily to reduce, permanently and
irrevocably, in aggregate principal amounts in an integral multiple of $500,000,
but not less than $1,000,000, or to terminate, all or a portion of the then
undisbursed portion of the Revolving Commitment, provided that the Borrower
shall not reduce the Revolving Commitment prior to the Completion Date unless in
connection with the repayment of all of the Obligations. The Administrative
Agent shall promptly notify the Lenders of any reduction or termination of the
Revolving Commitment under this Section. Any voluntary reduction of the
Revolving Commitment under this Section shall be applied to subsequent Quarterly
Payment Dates (to the extent not previously applied) in the order of their
occurrence.
2.6 Mandatory Reductions of the Term Commitment and Prepayments of the Term
Commitment. Borrower shall repay the Term Loans on each Quarterly Payment Date,
commencing with the Quarterly Payment Date occurring on March 31, 2005, in the
related Term Amortization Amount. Subject to Section 3.8(e), the Borrower may
also optionally prepay the Term Loans at any time. Each mandatory prepayment of
the Term Loans shall be applied in the inverse order of their occurrence, but
any optional prepayment shall be applied to installments in the order of their
occurrence.
2.7 Optional Increase to the Commitments.
(a) Provided that no Default or Event of Default then exists, Borrower
may request in writing that the credit facilities described herein be
increased, either by an increase to then effective Revolving
Commitment, Term Commitment, or by additional term loan commitments
having a concurrent or later maturity than the Term Maturity Date, in
each case to an aggregate amount which does not result in the
principal amount of the Commitments being greater than $300,000,000
minus the amount of any permanent reductions to the Commitments which
have then occurred pursuant to Sections 2.5, 2.6 and 2.8(c) provided
that (i) the interest rates payable in connection with any such
increased Commitments consisting of an increase to the Revolving
Commitment shall be the same interest rates payable in connection with
the existing Revolving Commitment, and (ii) the interest rates payable
in connection with any such increased Commitments consisting of
additional term loans shall not bear interest at a rate which is
higher than the Term Loans. Any request under this Section shall be
submitted by Borrower to the Lenders through the Administrative Agent
not less than thirty days prior to the proposed increase, specify the
proposed effective date and amount of such increase to each of the
Commitments, if any, and be accompanied by (i) a Certificate signed by
a Senior Officer of Borrower, stating that no Default or Event of
Default exists as of the date of the request or will result from the
requested increase (ii) written consents to the proposed increase
executed by the Members and Station. The consent of the Lenders, as
such, shall not be required for an increase in the amount of either or
both of the Commitments pursuant to this Section.
(b) Each Lender may approve or reject a request for an increase in the
amount of the Commitments in its sole and absolute discretion and,
absent an affirmative written response within
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thirty days after receipt of such request, shall be deemed to have
rejected the request. The rejection of such a request by any number of
Lenders shall not affect Borrower's right to increase the Commitments
pursuant to this Section.
(c) In responding to a request under this Section, each Lender which
is willing to increase the amount of its Pro Rata Share of the
increased Commitments shall specify the amount of the proposed
increase which it is willing to assume. Each consenting Lender shall
be entitled to participate ratably (based on its Pro Rata Share of the
Commitments before such increase) in any resulting increase in the
Commitments, subject to the right of the Administrative Agent to
adjust allocations of the increased Commitments so as to result in the
amounts of the Pro Rata Shares of the Lenders being in integral
multiples of $100,000.
(d) If the aggregate principal amount offered to be assumed by the
consenting Lenders is less than the amount requested, Borrower may (i)
reject the proposed increase in its entirety, (ii) accept the offered
amounts or (iii) designate new lenders who qualify as Eligible
Assignees and which are reasonably acceptable to the Administrative
Agent as additional Lenders hereunder in accordance with clause (f) of
this Section (each, a "New Lender"), which New Lenders may assume the
amount of the increase in the Commitments that has not been assumed by
the consenting Lenders.
(e) After completion of the foregoing, the Administrative Agent shall
give written notification to the Lenders and any New Lenders of the
increase to the Commitments which shall thereupon become effective.
(f) Each New Lender shall become an additional party hereto as a New
Lender concurrently with the effectiveness of the proposed increase in
the Commitments upon its execution of an instrument of joinder to this
Agreement, consented to by Station and the Members, which is in form
and substance reasonably acceptable to the Administrative Agent and
which, in any event, contains the representations, warranties,
indemnities and other protections afforded to the Administrative Agent
and the other Lenders which would be granted or made by an Eligible
Assignee by means of the execution of an Assignment and Acceptance.
(g) Subject to the foregoing, any increase to the Commitments
requested under this Section shall be effective as of the date
proposed by Borrower and shall be in the principal amount equal to (i)
the amount which consenting Lenders are willing to assume as increases
to the amount of their Pro Rata Share plus (ii) the amount offered by
any New Lenders. Upon the effectiveness of any such increase, each
Loan outstanding under any Commitment which is so increased shall be
refinanced with new Advances reflecting the adjusted Pro Rata Shares
of the Lenders in that Commitment and Borrower shall:
(x) issue replacement Notes to each affected Lender and new
Notes to each New Lender (in each case, as may be requested
by such Lender), and the percentage of Pro Rata Shares of
each Lender will be adjusted to give effect to the increase
in the Commitments;
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(y) execute and deliver to the Administrative Agent such
amendments to the Loan Documents as the Administrative Agent
may reasonably request relating to such increase (including
without limitation, an amendment to the Deed of Trust
reflecting the increase of the amounts secured thereby, and,
in any such case Borrower shall provide to the
Administrative Agent an endorsement to its ALTA lenders
policy of title insurance, in form and substance reasonably
acceptable to the Administrative Agent, insuring the
continued priority and perfection of the Deed of Trust); and
(z) pay to the existing Lenders any breakage costs which are
payable in connection with the refinancing of any Loans in
the manner contemplated by Section 3.10 (it being understood
that in the event of any increase to the Term Commitment,
each LIBOR Loan which is then outstanding under the Term
Commitment shall be refinanced in a manner which results in
each Lender having a Pro Rata Share of the Term Commitment
having a ratable share of each Term Loan which is
outstanding thereunder).
2.8 Optional Extensions of Revolving Maturity Date.
(a) Borrower may request by written notice delivered to the
Administrative Agent, that the Lenders extend the Revolving Maturity
Date (and the Revolving Commitments then in effect) to a date which is
one year after the then current Revolving Maturity Date; provided that
not more than two such extensions shall be permitted. Any request
under this Section shall be submitted by Borrower to the Lenders
through the Administrative Agent not less than ninety days prior to
the proposed extension.
(b) Each Lender may approve or reject a request for an extension of
the Revolving Maturity Date in its sole and absolute discretion and,
absent an affirmative written response within thirty days after
receipt of such request, shall be deemed to have rejected the request.
A request for an extension under this Section shall be rejected if any
number of Lenders holding Pro Rata Shares which are more than 25% of
the Revolving Commitment, in the aggregate, do not approve the
requested extension. The Revolving Maturity Date shall not be deemed
extended as to any Lender which has not approved the extension.
(c) If Lenders holding more than 75% of the Revolving Commitment, but
less than 100% of the Revolving Commitment, approve Borrower's request
for extension of the Revolving Maturity Date, Borrower may (i) reduce
the Revolving Commitment by an amount equal to the aggregate amount of
the Revolving Commitment held by the non-consenting Lenders (and the
Pro Rata Shares of the relevant non-consenting Lenders will thereupon
be terminated), subject to the right of the Administrative Agent to
adjust the amount of the reduction of the Revolving Commitment so as
to result in a reduced amount which is an integral multiple of
$500,000, but not less than $1,000,000, (ii) allow the Revolving
Maturity Date to remain unchanged with respect to the non-consenting
Lenders and to be extended with respect to the consenting Lenders, or
(iii) designate new lenders who qualify as Eligible Assignees and
which are reasonably acceptable to the Administrative Agent and
Borrower to replace any non-consenting Lenders.
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(d) In connection with each extension of the Revolving Maturity Date,
Borrower shall pay each consenting Lender an extension fee in an
amount equal to .10% times such Lender's respective portion of the
Revolving Commitment. No Lender then party to this Agreement or any of
its Affiliates shall be paid a higher fee to obtain their consent to
an extension, unless the same fee rate is paid to all then existing
Lenders. Borrower may also pay to any new Lenders of the type
contemplated by clause (c) such fees as may be mutually agreed upon by
the Borrower and such Lenders.
(e) After completion of the foregoing, the Administrative Agent shall
give written notification to the Lenders and any additional Lenders of
the extension of the Revolving Maturity Date and any changes in the
amount of the Revolving Commitment which shall thereupon become
effective.
2.9 Administrative Agent's Right to Assume Funds Available for Advances.
Unless the Administrative Agent shall have been notified by any Lender
no later than 11:00 a.m., Nevada time, on the Business Day of the
proposed funding by the Administrative Agent of any Loan that such
Lender does not intend to make available to the Administrative Agent
such Lender's portion of the total amount of such Loan, the
Administrative Agent may assume that such Lender has made such amount
available to the Administrative Agent on the date of the Loan and the
Administrative Agent may, in reliance upon such assumption, make
available to Borrower a corresponding amount. If the Administrative
Agent has made funds available to Borrower based on such assumption
and such corresponding amount is not in fact made available to the
Administrative Agent by such Lender, the Administrative Agent shall be
entitled to recover such corresponding amount on demand from such
Lender. If such Lender does not pay such corresponding amount
forthwith upon the Administrative Agent's demand therefor, the
Administrative Agent promptly shall notify Borrower and Borrower shall
pay such corresponding amount to the Administrative Agent. The
Administrative Agent also shall be entitled to recover from such
Lender interest on such corresponding amount in respect of each day
from the date such corresponding amount was made available by the
Administrative Agent to Borrower to the date such corresponding amount
is recovered by the Administrative Agent, at a rate per annum equal to
the daily Federal Funds Rate. Nothing herein shall be deemed to
relieve any Lender from its obligation to fulfill its share of the
Commitments or to prejudice any rights which the Administrative Agent
or Borrower may have against any Lender as a result of any default by
such Lender hereunder.
2.10 Swing Line.
(a) Subject to the terms and conditions of this Agreement, the Swing
Line Lender shall from time to time from the Closing Date through the
day prior to the Revolving Maturity Date make Swing Line Loans to
Borrower in such amounts as Borrower may request, provided that (i)
after giving effect to such Swing Line Loan, the Swing Line
Outstandings do not exceed $10,000,000, (ii) the sum of (x) the
aggregate principal amount under the Revolving Notes, (y) the Swing
Line Outstandings and (z) the Letters of Credit Usage shall not exceed
the then effective Revolving Commitment,
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(iii) without the consent of all of the Lenders, no Swing Line Loan
may be made during the continuation of an Event of Default and (iv)
the Swing Line Lender has not given at least twenty four hours' prior
notice to Borrower that availability under the Swing Line is suspended
or terminated. Borrower may borrow, repay and reborrow under this
Section without premium or penalty. Unless notified to the contrary by
the Swing Line Lender, borrowings under the Swing Line may be made in
amounts which are integral multiples of $100,000 upon telephonic
request by a Responsible Official of Borrower made to the
Administrative Agent not later than 1:00 p.m., Nevada time, on the
Business Day of the requested borrowing (which telephonic request
shall be promptly confirmed in writing by telecopier). Promptly after
receipt of such a request for borrowing, the Administrative Agent
shall provide telephonic verification to the Swing Line Lender that,
after giving effect to such request, availability for Loans will exist
under Section 2.1(a) (and such verification shall be promptly
confirmed in writing by telecopier). Unless notified to the contrary
by the Swing Line Lender, each repayment of a Swing Line Loan shall be
in an amount which is an integral multiple of $100,000. If Borrower
instructs the Swing Line Lender to debit its demand deposit account at
the Swing Line Lender in the amount of any payment with respect to a
Swing Line Loan, or the Swing Line Lender otherwise receives
repayment, after 3:00 p.m., Nevada time, on a Business Day, such
payment shall be deemed received on the next Business Day. The Swing
Line Lender shall promptly notify the Administrative Agent of the
Swing Line Outstandings each time there is a change therein and
promptly notify the Administrative Agent and the Lenders if it
suspends or terminates availability under the Swing Line.
(b) Swing Line Loans shall bear interest at the rate set forth in the
Swing Line Note. Interest shall be payable on such dates, not more
frequent than monthly, as may be specified by the Swing Line Lender
and in any event on the Revolving Maturity Date. The Swing Line Lender
shall be responsible for invoicing Borrower for such interest. The
interest payable on Swing Line Loans is solely for the account of the
Swing Line Lender (subject to clause (d) below).
(c) The Swing Line Loans shall be payable within five Business Days
after demand made by the Swing Line Lender and in any event on the
Revolving Maturity Date.
(d) Upon the making of a Swing Line Loan in accordance with Section
2.10(a), each Lender shall be deemed to have purchased from the Swing
Line Lender a participation therein in an amount equal to that
Lender's Pro Rata Share times the amount of the Swing Line Loan. Upon
demand made by the Swing Line Lender, each Revolving Lender shall,
according to its Pro Rata Share, promptly provide to the Swing Line
Lender its purchase price therefor in an amount equal to its
participation therein. The obligation of each Revolving Lender to so
provide its purchase price to the Swing Line Lender shall be absolute
and unconditional (except only demand made by the Swing Line Lender)
and shall not be affected by the occurrence of a Default or Event of
Default; provided that no Revolving Lender shall be obligated to
purchase its Pro Rata Share of (i) Swing Line Loans to the extent that
Swing Line Outstandings are in excess of $10,000,000 or (ii) to the
extent that the sum of (x) the aggregate principal amount under the
Revolving Notes, (y) the Swing Line Outstandings and (z) the Letters
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of Credit Usage exceeds the then effective Revolving Commitment or
(iii) any Swing Line Loan made (absent the consent of all of the
Lenders) during the continuation of an Event of Default. Each
Revolving Lender that has provided to the Swing Line Lender the
purchase price due for its participation in Swing Line Loans shall
thereupon acquire a pro rata participation, to the extent of such
payment, in the claim of the Swing Line Lender against Borrower for
principal and interest and shall share, in accordance with that pro
rata participation, in any principal payment made by Borrower with
respect to such claim and in any interest payment made by Borrower
(but only with respect to periods subsequent to the date such
Revolving Lender paid the Swing Line Lender its purchase price) with
respect to such claim.
(e) In the event that the Swing Line Outstandings are outstanding ten
consecutive Business Days, then on the next Business Day (unless
Borrower has made other arrangements acceptable to the Swing Line
Lender to pay the Swing Line Outstandings in full), Borrower shall
request a Loan pursuant to Section 2.1(a) sufficient to pay the Swing
Line Outstandings in full. In addition, upon any demand for payment of
the Swing Line Outstandings by the Swing Line Lender (unless Borrower
has made other arrangements acceptable to the Swing Line Lender to
reduce the Swing Line Outstandings to $0), Borrower shall request a
Loan pursuant to Section 2.1(a) sufficient to repay all Swing Line
Outstandings (and, for this purpose, Section 2.1(e) shall not apply).
In each case, the Administrative Agent shall automatically provide the
responsive Advances made by each Revolving Lender to the Swing Line
Lender (which the Swing Line Lender shall then apply to the Swing Line
Outstandings). In the event that Borrower fails to request such a Loan
within the time specified by Section 2.2 on any such date, the
Administrative Agent may, but is not required to, without notice to or
the consent of Borrower, cause Advances to be made by the Revolving
Lenders under the Revolving Commitment in amounts which are sufficient
to reduce the Swing Line Outstandings as required above. The
conditions precedent set forth in Article 9 shall not apply to
Advances to be made by the Lenders pursuant to the three preceding
sentences, but the Lenders shall not be obligated to make such
Advances to the extent that the conditions set forth in Section
2.10(a)(i), (ii), (iii) and (iv) were not satisfied as to any Swing
Line Loan which is part of such Swing Line Outstandings. The proceeds
of such Advances shall be paid directly to the Swing Line Lender for
application to the Swing Line Outstandings.
2.11 Collateral and Guaranty.
The Obligations shall be secured by the Collateral pursuant to the
Collateral Documents. Borrower confirms that the collateral
assignments of the Construction Contract and the Architect Contract
for the Phase II Project executed in connection with the Existing Loan
Agreement shall remain effective to secure the Obligations under this
Agreement. The Obligations shall be supported by the Members pursuant
to the Completion Guaranty, subject to termination thereof in
accordance with its terms.
2.12 Senior Indebtedness.
The Obligations shall be "Senior Indebtedness" with respect to all
Subordinated Obligations.
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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 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 shall be due and payable on that day. Except as otherwise
provided in Section 3.9, the unpaid principal amount of any Base Rate
Loan shall bear interest at a fluctuating rate per annum equal to the
Base Rate plus the applicable Base Rate Margin. 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 LIBOR Loan which is for a term of three
months or less shall be due and payable on the last day of the related
Interest Period. Interest accrued on each other LIBOR Loan shall be
due and payable on the date which is three months after the date such
LIBOR Loan was made (and, in the event that all of the Lenders have
approved a Interest Period of longer than six months, every three
months thereafter through the last day of the Interest Period) and on
the last day of the related Interest Period. Except as otherwise
provided in Section 3.9, the unpaid principal amount of any LIBOR Loan
shall bear interest at a rate per annum equal to LIBOR for that LIBOR
Loan plus the applicable LIBOR Margin.
(d) If not sooner paid, the principal Indebtedness evidenced by the
Notes shall be payable as follows:
(i) the amount, if any, by which the sum of (i) the aggregate
principal amount under the Revolving Notes plus (ii) the Swing
Line Outstandings plus (iii) the Letter of Credit Usage at any
time exceeds the then applicable Revolving Commitment (including
as it may be reduced from time to time pursuant to Sections 2.5
or 2.8) shall in each case be payable immediately;
(ii) the Term Loans shall be payable on each Quarterly Payment
Date in the related Term Amortization Amount;
(iii) the amount by which the principal Indebtedness evidenced by
the Term Notes at any time exceeds the Term Commitment shall be
payable immediately; and
(iv) the principal Indebtedness evidenced by the Notes shall in
any event be payable on the Revolving Maturity Date or Term
Maturity Date, as applicable.
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(e) The Notes may, at any time and from time to time, voluntarily be
paid or prepaid in whole or in part without premium or penalty, except
that with respect to any voluntary prepayment under this Section, (i)
any partial prepayment shall be not less than $1,000,000 and in an
integral multiple of $500,000, (ii) the Administrative Agent shall
have received written notice of any prepayment by 9:00 a.m. Nevada
time on the Business Day prior to the date of prepayment (which must
be a Business Day) in the case of an Base Rate Loan, and, in the case
of a LIBOR Loan, three Business Days before the date of prepayment
(which must be a Business Day), which notice shall identify the date
and amount of the prepayment and the Loan(s) being prepaid, (iii) each
prepayment of principal on any LIBOR Loan shall be accompanied by
payment of interest accrued to the date of payment on the amount of
principal paid, (iv) any payment or prepayment of all or any part of
any LIBOR Loan on a day other than the last day of the applicable
Interest Period shall be subject to Section 3.8(e) and (v) upon any
partial prepayment of a LIBOR Loan that reduces the principal amount
of such Loan below $2,000,000, the remaining portion thereof shall
automatically convert to a Base Rate Loan.
3.2 Arrangement Fee. On the Closing Date, Borrower shall pay to the Joint
Lead Arrangers the arrangement fee as heretofore agreed upon by letter agreement
among Borrower and the Joint Lead Arrangers. Such arrangement fee is for the
services of the Joint Lead Arrangers in arranging the credit facilities under
this Agreement and is fully earned when paid. The arrangement fee paid to the
Joint Lead Arrangers is solely for their own accounts and is nonrefundable.
3.3 Upfront Fees. On the Closing Date, Borrower shall pay to the
Administrative Agent, for the ratable accounts of the Lenders pro rata according
to their respective Pro Rata Shares, upfront fees in the amounts set forth in a
letter agreement with the Administrative Agent. The Administrative Agent shall
promptly pay the Lenders their portion of the upfront fees. The upfront fees
received by each Lender are solely for its own account and are nonrefundable.
3.4 Commitment Fees. From the Closing Date, Borrower shall pay to the
Administrative Agent, for the ratable accounts of the Revolving Lenders pro rata
according to their Pro Rata Shares of the Revolving Commitment, a commitment fee
equal to the daily Commitment Fee Rate per annum times the average daily amount
by which the Revolving Commitment exceeds the sum of (a) the aggregate daily
principal Indebtedness evidenced by the Revolving Notes (but not the Swing Line
Outstandings) plus (b) the Letter of Credit Usage. The commitment fee shall be
payable quarterly in arrears on each Quarterly Payment Date and on the Revolving
Maturity Date.
3.5 Letter of Credit Fees. With respect to each Letter of Credit, Borrower
shall pay the following fees:
(a) concurrently with the issuance of each Letter of Credit, and
annually thereafter in respect of each Letter of Credit having a tenor
in excess of one year or which is renewed for such a tenor, a letter
of credit issuance fee to the Issuing Lender for the sole account of
the Issuing Lender, in an amount set forth in a letter agreement
between Borrower and the Issuing Lender;
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(b) quarterly in arrears on each Quarterly Payment Date and on the
Maturity Date or upon any termination of the Commitment, letter of
credit fees to the Administrative Agent for the ratable account of the
Lenders in accordance with their Pro Rata Shares of the Revolving
Commitment, in an amount equal to the daily maximum amount available
to be drawn under each Letter of Credit times the Letter of Credit
Fee, per annum, which the Administrative Agent shall promptly pay to
the Lenders in accordance with their respective Pro Rata Shares; and
(c) concurrently with each issuance, negotiation, drawing or amendment
of each Letter of Credit, to the Issuing Lender for the sole account
of the Issuing Lender, issuance, negotiation, drawing and amendment
fees in the amounts published from time to time as the Issuing
Lender's scheduled fees for such services.
Each of the fees payable with respect to Letters of Credit under this
Section is earned when due and is nonrefundable.
3.6 Agency Fee. Borrower shall pay to the Administrative Agent an
agency fee in such amounts and at such times as heretofore agreed upon by letter
agreement between Borrower and the Administrative Agent. The agency fee is for
the services to be performed by the Administrative Agent in acting as
Administrative Agent and is fully earned on the date paid. The agency fee paid
to the Administrative Agent is solely for its own account and is nonrefundable.
3.7 Increased Commitment Costs. If any Lender shall determine in good faith
that the introduction after the Closing Date of any applicable law, rule,
regulation or guideline regarding capital adequacy, or any change therein or any
change in the interpretation or administration thereof by any central bank or
other Governmental Agency charged with the interpretation or administration
thereof, or compliance by such Lender (or its LIBOR Lending Office) or any
corporation controlling the Lender, with any request, guideline or directive
regarding capital adequacy (whether or not having the force of Law) of any such
central bank or other authority not imposed as a result of such Lender's or such
corporation's failure to comply with any other Laws, affects or would affect the
amount of capital required or expected to be maintained by such Lender or any
corporation controlling such Lender and (taking into consideration such Lender's
or such corporation's policies with respect to capital adequacy and such
Lender's desired return on capital) determines in good faith that the amount of
such capital is increased, or the rate of return on capital is reduced, as a
consequence of its obligations under this Agreement, then, within ten Business
Days after demand of such Lender, Borrower shall pay to such Lender, from time
to time as specified in good faith by such Lender, additional amounts sufficient
to compensate such Lender in light of such circumstances, to the extent
reasonably allocable to such obligations under this Agreement, provided that
Borrower shall not be obligated to pay any such amount which arose prior to the
date which is ninety days preceding the date of such demand or is attributable
to periods prior to the date which is ninety days preceding the date of such
demand. Each Lender's determination of such amounts shall be conclusive in the
absence of manifest error.
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3.8 Eurodollar Costs and Related Matters.
(a) In the event that any Governmental Agency imposes on any Lender
any reserve or comparable requirement (including any emergency,
supplemental or other reserve) with respect to the liabilities or
assets ---------- consisting of or including Eurocurrency funds or
deposits (currently known as "Euro liabilities") of that Lender within
five Business Days after demand all amounts necessary to compensate
such Lender (determined as though such Lender's LIBOR Lending Office
had funded 100% of its LIBOR Advance in the Designated Eurodollar
Market) in respect of the imposition of such reserve requirements
(provided, that -------- Borrower shall not be obligated to pay any
such amount which arose prior to the date which is ninety days
preceding the date of such demand or is attributable to periods prior
to the date which is ninety days preceding the date of such demand).
The Lender's determination of such amount shall be conclusive in the
absence of manifest error.
(b) If, after the date hereof, the existence or occurrence of any
Special Eurodollar Circumstance:
(1) shall subject any Lender or its LIBOR Lending Office to any
tax, duty or other charge or cost with respect to any LIBOR
Advance, any of its Notes evidencing LIBOR Loans or its
obligation to make LIBOR Advances, or shall change the basis of
taxation of payments to any Lender attributable to the principal
of or interest on any LIBOR Advance or any other amounts due
under this Agreement in respect of any LIBOR Advance, any of its
Notes evidencing LIBOR Loans or its obligation to make LIBOR
Advances (provided, that Borrower shall not be obligated to pay
any such amount -------- which arose prior to the date which is
ninety days preceding the date of such demand or is attributable
to periods prior to the date which is ninety days preceding the
date of such demand), excluding (i) taxes imposed on or measured
in whole or in part by its overall net --------- income by (A)
any jurisdiction (or political subdivision thereof) in which it
is organized or maintains its principal office or LIBOR Lending
Office or (B) any jurisdiction (or political subdivision thereof)
in which it is "doing business" and (ii) any withholding taxes or
other taxes based on gross income imposed by the United States of
America for any period with respect to which it has failed to
provide Borrower with the appropriate form or forms required by
Section 12.21, to the extent such forms are then required by
applicable Laws;
(2) without duplication as to Section 3.8(a), shall impose,
modify or deem applicable any reserve not applicable or deemed
applicable on the date hereof (including any reserve imposed by
the Board of Governors of the Federal Reserve System, special
deposit, capital or similar requirements against assets of,
deposits with or for the account of, or credit extended by, any
Lender or its LIBOR Lending Office); or
(3) shall impose on any Lender or its LIBOR Lending Office or the
Designated Eurodollar Market any other condition affecting any
-▇▇-
▇▇▇▇▇ ▇▇▇▇▇▇▇, any of its Notes evidencing LIBOR Loans, its
obligation to make LIBOR Advances or this Agreement, or shall
otherwise affect any of the same;
and the result of any of the foregoing, as determined in good faith by such
Lender, increases the cost to such Lender or its LIBOR Lending Office of making
or maintaining any LIBOR Advance or in respect of any LIBOR Advance, any of its
Notes evidencing LIBOR Loans or its obligation to make LIBOR Advances or reduces
the amount of any sum received or receivable by such Lender or its LIBOR Lending
Office with respect to any LIBOR Advance, any of its Notes evidencing LIBOR
Loans or its obligation to make LIBOR Advances (assuming such Lender's LIBOR
Lending Office had funded 100% of its LIBOR Advance in the Designated Eurodollar
Market), then, within five Business Days after demand by such Lender (with a
copy to the Administrative Agent), Borrower shall pay to such Lender such
additional amount or amounts as will compensate such Lender for such increased
cost or reduction (determined as though such Lender's LIBOR Lending Office had
funded 100% of its LIBOR Advance in the Designated Eurodollar Market). A
statement of any Lender claiming compensation under this subsection shall be
conclusive in the absence of manifest error.
(c) If, after the date hereof, the existence or occurrence of any
Special Eurodollar Circumstance shall, in the good faith opinion of
any Lender, make it unlawful or impossible for such Lender or its
LIBOR Lending Office to make, maintain or fund its portion of any
LIBOR 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 LIBOR
Advances shall be suspended for the duration of such illegality or
impossibility and the Administrative Agent forthwith shall give notice
thereof to the other Lenders and Borrower. Upon receipt of such
notice, the outstanding principal amount of such Lender's LIBOR
Advances, together with accrued interest thereon, automatically shall
be converted to Base Rate Advances on either (1) the last day of the
Interest Period(s) applicable to such LIBOR Advances if such Lender
may lawfully continue to maintain and fund such LIBOR Advances to such
day(s) or (2) immediately if such Lender may not lawfully continue to
fund and maintain such LIBOR Advances to such day(s), provided that in
such event the conversion shall not be -------- subject to payment of
a prepayment fee under Section 3.8(e). Each Lender agrees to endeavor
promptly to notify Borrower of any event occurring after the Closing
Date of which it has actual knowledge, which will cause that Lender to
notify the Administrative Agent under this Section, and agrees to
designate a different LIBOR Lending Office if such designation will
avoid the need for such notice and will not, in the good faith
judgment of such Lender, otherwise be materially disadvantageous to
such Lender. In the event that any Lender is unable, for the reasons
set forth above, to make, maintain or fund its portion of any LIBOR
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
LIBOR Advances has been suspended under this Section shall promptly
notify the Administrative Agent and Borrower of the cessation of the
Special Eurodollar Circumstance which gave rise to such suspension.
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(d) If, with respect to any proposed LIBOR 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 Interest 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 Interest Period, or (ii) will
not adequately and fairly reflect the cost to such Lenders of
making the applicable LIBOR Advances;
then the Administrative Agent forthwith shall give notice thereof to Borrower
and the Lenders, whereupon until the Administrative Agent notifies Borrower that
the circumstances giving rise to such suspension no longer exist, the obligation
of the Lenders to make any future LIBOR Advances shall be suspended.
(e) Upon payment or prepayment of any LIBOR Advance (other than as the
result of a conversion required under Section 3.8(c)), on a day other
than the last day in the applicable Interest Period (whether
voluntarily, involuntarily, by reason of acceleration, or otherwise),
or upon the failure of Borrower (for a reason other than the breach by
a Lender of its obligation pursuant to Sections 2.1(a) and (b) to make
an Advance or the suspension of any Lender's obligation to make or
maintain LIBOR Loans under Section 3.8) to borrow on the date or in
the amount specified for a LIBOR Loan in any Request for Loan,
Borrower shall pay to the appropriate Lender within ten Business Days
after demand a prepayment fee or failure to borrow fee, as the case
may be (determined as though 100% of the LIBOR Advance had been funded
in the Designated Eurodollar Market) equal to the sum of: ---
(1) the principal amount of the LIBOR Advance prepaid or not
borrowed, as the case may be, times the sum of the number of days
from and including the date of prepayment or failure to borrow,
as applicable, to but excluding the last day in the applicable
Interest Period, divided by 360, times the applicable Interest
Differential (provided that the product of the foregoing formula
must be a positive number); plus
(2) all out of pocket expenses incurred by the Lender reasonably
attributable to such payment, prepayment or failure to borrow.
Each Lender's determination of the amount of any prepayment fee payable under
this Section shall be conclusive in the absence of manifest error.
(f) Each Lender agrees to endeavor promptly to notify Borrower of any
event of which it has actual knowledge, occurring after the Closing
Date, which will entitle such Lender to compensation pursuant to
clause (a) or clause (b) of this Section 3.8, and agrees to designate
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a different LIBOR Lending Office if such designation will avoid the
need for or reduce the amount of such compensation and will not, in
the good faith judgment of such Lender, otherwise be materially
disadvantageous to such Lender. Any request for compensation by a
Lender under this Section 3.8 shall set forth the basis upon which it
has been determined that such an amount is due from Borrower, a
calculation of the amount due, and a certification that the
corresponding costs have been incurred by the Lender.
3.9 Late Payments. During the existence of an Event of Default, upon
written notice to Borrower from the Administrative Agent (with the approval of
the Requisite Lenders), and in any event if any principal or interest or any fee
or cost or other amount payable under any Loan Document to the Administrative
Agent or any Lender is not paid when due, (a) the Loans shall thereafter bear
interest at a rate per annum equal to the sum of (i) the interest rate specified
in Sections 3.1(b) or 3.1(c), whichever is applicable, plus (ii) 2%, and (b)
each other Obligation shall thereafter bear interest at a fluctuating interest
rate per annum at all times equal to the sum of the Base Rate plus the Base Rate
Margin plus 2%, in each case, 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 payable on demand and shall
be compounded monthly, on the last day of each calendar month, to the fullest
extent permitted by applicable Laws.
3.10 Computation of Interest and Fees. Computation of interest on Base Rate
Loans and on Swing Line Loans shall be made on the basis of a year of 365/366
days and actual numbers of days elapsed. Computation of interest on LIBOR Loans
and fees under this Agreement shall be calculated on the basis of a year of 360
days and the actual number of days elapsed. Interest shall accrue on each Loan
for the day on which the Loan is made; interest shall not accrue on a Loan, or
any portion thereof, for the day on which the Loan or such portion is paid. Any
Loan that is repaid on the same day on which it is made shall bear interest for
one day. Notwithstanding anything in this Agreement to the contrary, interest in
excess of the maximum amount permitted by applicable Laws shall not accrue or be
payable hereunder or under the Notes, and any amount paid as interest hereunder
or under the Notes which would otherwise be in excess of such maximum permitted
amount shall instead be treated as a payment of principal.
3.11 Non Business Days. If any payment to be made by Borrower or any other
Party under any Loan Document shall come due on a day other than a 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.
3.12 Manner and Treatment of Payments.
(a) Each payment hereunder (except payments pursuant to Sections 3.7,
3.8, 12.3, 12.11 and 12.22) or on the Notes or under any other Loan
Document shall be made to the Administrative Agent at the
Administrative Agent's Office for the account of the Lenders or the
Administrative Agent, as the case may be, in immediately available
funds not later than 11:00 a.m. Nevada time, on the day of payment
(which must be a Business Day). All payments received after such time,
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on any Business Day, 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., Nevada 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 (in
writing or by an electronic data entry system) of Advances made by it
and payments received by it with respect to each of its Notes and such
record shall, as against Borrower, be presumptive evidence of the
amounts owing. Notwithstanding the foregoing sentence, the failure by
any Lender to keep such a record shall not affect Borrower's
obligation to pay the Obligations.
(d) Each payment of any amount payable by Borrower under this
Agreement or any other Loan Document (and Borrower shall assure that
each payment made by any other Party under any other Loan Document)
shall be made free and clear of, and without reduction by reason of,
any taxes, assessments or other charges imposed by any Governmental
Agency, central bank or comparable authority, excluding (i) taxes
imposed on or measured in whole or in part by its overall net income
by (A) any jurisdiction (or political subdivision thereof) in which it
is organized or maintains its principal office or LIBOR Lending Office
or (B) any jurisdiction (or political subdivision thereof) in which it
is "doing business" and (ii) any withholding taxes or other taxes
based on gross income imposed by the United States of America for any
period with respect to which that Lender has failed to provide
Borrower with the appropriate form or forms required by Section 12.21,
to the extent such forms are then required by applicable Laws whether
or not such Lender was legally entitled to provide such form or forms
(all such non excluded taxes, assessments or other charges being
hereinafter referred to as "Taxes"). To the extent that Borrower is
obligated by applicable Laws to make any deduction or withholding on
account of Taxes from any amount payable to any Lender under this
Agreement, Borrower shall (i) make such deduction or withholding and
pay the same to the relevant Governmental Agency and (ii) pay such
additional amount to that Lender as is necessary to result in that
Lender's receiving a net after Tax amount equal to the amount to which
that Lender would have been entitled under this Agreement absent such
deduction or withholding. If and when receipt of such payment results
in an excess payment or credit to that Lender on account of such
Taxes, that Lender shall promptly refund such excess to Borrower.
(e) All payments to be made by the Borrower shall be made without
conditions or deduction for any counterclaim, defense, recoupment or
setoff.
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3.13 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.
3.14 Failure to Charge Not Subsequent Waiver. Any decision by the
Administrative Agent or any Lender not to require payment of any interest
(including interest arising under Section 3.9), fee, cost or other amount
payable under any Loan Document, or to calculate any amount payable by a
particular method, on any occasion shall in no way limit or be deemed a waiver
of the Administrative Agent's or such Lender's right to require full payment of
any interest (including interest arising under Section 3.9), fee, cost or other
amount payable under any Loan Document, or to calculate an amount payable by
another method that is not inconsistent with this Agreement, on any other or
subsequent occasion.
3.15 Administrative Agent's Right to Assume Payments Will be Made. Unless
the Borrower or any Lender has notified the Administrative Agent, prior to the
date any payment is required to be made by it to the Administrative Agent
hereunder, that the Borrower or such Lender, as the case may be, will not make
such payment, the Administrative Agent may assume that the Borrower or such
Lender, as the case may be, has timely made such payment and may (but shall not
be so required to), in reliance thereon, make available a corresponding amount
to the Person entitled thereto. If and to the extent that such payment was not
in fact made to the Administrative Agent in immediately available funds, then:
(a) if the Borrower failed to make such payment, each Lender shall
forthwith on demand repay to the Administrative Agent the portion of
such assumed payment that was made available to such Lender in
immediately available funds, 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 in immediately available funds at
the Federal Funds Rate from time to time in effect; and
(b) if any Lender failed to make such payment, such Lender shall
forthwith on demand pay to the Administrative Agent the amount thereof
in immediately available funds, together with interest thereon for the
period from the date such amount was made available by the
Administrative Agent to the Borrower to the date such amount is
recovered by the Administrative Agent (the "Compensation Period") at a
rate per annum equal to the Federal Funds Rate from time to time in
effect. If such Lender pays such amount to the Administrative Agent,
then such amount shall constitute such Lender's Advance included in
the applicable Loan. If such Lender does not pay such amount forthwith
upon the Administrative Agent's demand therefor, the Administrative
Agent may make a demand therefor upon the Borrower, if applicable, and
the Borrower, if applicable, shall pay such amount to the
Administrative Agent, together with interest thereon for the
Compensation Period at a rate per annum equal to the rate of interest
applicable to the applicable Advance. Nothing herein shall be deemed
to relieve any Lender from its obligation to fulfill its Pro Rata
Share of the Commitments or to prejudice any rights which the
Administrative Agent, the Borrower may have against any Lender as a
result of any default by such Lender hereunder.
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A notice of the Administrative Agent to any Lender or the Borrower with respect
to any amount owing under this Section 3.15 shall be conclusive, absent manifest
error.
3.16 Fee Determination Detail. The Administrative Agent, and any Lender,
shall provide reasonable detail to Borrower regarding the manner in which the
amount of any payment to the Administrative Agent and the Lenders, or that
Lender, under Article 3 has been determined, concurrently with demand for such
payment.
3.17 Survivability. All of Borrower's obligations under Sections 3.7 and
3.8 shall survive for the ninety day period following the date on which the
Commitments are terminated and all Loans hereunder are fully paid, and Borrower
shall remain obligated thereunder for all claims under such Sections made by any
Lender to Borrower prior to the expiration of such period.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
------------------------------
In order to induce the Lenders to enter into this Agreement and to extend
credit hereunder, Borrower represents and warrants to the Lenders that:
4.1 Existence and Qualification; Power; Compliance With Laws. Borrower is a
limited liability company duly formed, validly existing and in good standing
under the Laws of Nevada. Each Subsidiary of Borrower hereafter formed by
Borrower is a Person duly formed, validly existing and in good standing under
the Laws of its state of formation. Borrower and each such Subsidiary of
Borrower is duly qualified or registered to transact business and is in good
standing in each other jurisdiction in which the conduct of its business or the
ownership or leasing of its Properties makes such qualification or registration
necessary, except where the failure so to qualify or register and to be in good
standing would not constitute a Material Adverse Effect. Borrower and each such
Subsidiary of Borrower has all requisite power and authority to conduct its
business, to own and lease its Properties and to execute and deliver each Loan
Document to which it is a Party and to perform its Obligations. The chief
executive office of Borrower is located in Nevada. All outstanding members'
interests in Borrower are validly issued, and fully paid, and no holder thereof
has any enforceable right of rescission under any applicable state or federal
securities Laws. Borrower and each such Subsidiary of Borrower is in compliance
with all Laws and other legal requirements applicable to its business, has
obtained all authorizations, consents, approvals, orders, licenses and permits
from, and has accomplished all filings, registrations and qualifications with,
or obtained exemptions from any of the foregoing from, any Governmental Agency
that are necessary for the transaction of its business, except where the failure
so to comply, obtain authorizations, etc., 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 Station, the
Members, Borrower and each Subsidiary of Borrower hereafter formed of the Loan
Documents to which it is a Party have been duly authorized by all necessary
corporate action, and do not and will not:
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(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 articles of
incorporation, organization or other organizational documents,
including without limitation any operating agreements or bylaws;
(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 (other than Liens and
Rights of Others created by the Loan Documents);
(d) violate any Requirement of Law applicable to such Party, subject
to obtaining the authorizations from, or filings with, the
Governmental Agencies described in Schedule 4.3; or
(e) result in a breach of or constitute a default under, or cause or
permit the acceleration of any obligation owed under, any Contractual
Obligation to which such Party is a party or by which such Party or
any of its Property is bound or affected;
and none of Station, the Members, Borrower or any Subsidiary of Borrower is in
violation of, or default under, any Requirement of Law or Contractual
Obligation, including any Contractual Obligation 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 each of Station, the
Members, Borrower and each Subsidiary of Borrower of the Loan Documents to which
it is a Party.
4.4 Subsidiaries. As of the Closing Date, Borrower has no Subsidiaries.
Except as described in Schedule 6.14, Borrower does not own any capital stock,
equity interest or debt security which is convertible, or exchangeable, for
capital stock or equity interests in any Person. Unless otherwise indicated in
Schedule 4.4, all of the outstanding shares of capital stock, or all of the
units of equity interest, as the case may be, of each Subsidiary are owned of
record and beneficially by Borrower, there are no outstanding options, warrants
or other rights to purchase capital stock of any such Subsidiary, and all such
shares or equity interests so owned are duly authorized, validly issued, fully
paid and non assessable, and were issued in compliance with all applicable state
and federal securities and other Laws, and are free and clear of all Liens and
Rights of Others, except for Permitted Encumbrances and Permitted Rights of
Others.
4.5 Financial Statements. Borrower has furnished to the Lenders (a) audited
financial statements of Borrower for the fiscal year ended December 31, 2003,
and (b) the unaudited financial statements of Borrower for the fiscal quarter
ended September 30, 2004. The financial statements described above fairly
present in all material respects the financial condition, results of operations
and changes in financial position of the Persons specified therein, in
conformity with GAAP.
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4.6 No Other Liabilities; No Material Adverse Changes. Borrower does not
have any material liability or material contingent liability required under GAAP
to be reflected or disclosed and 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 thereof.
As of the Closing Date, no circumstance or event has occurred that constitutes a
Material Adverse Effect since December 31, 2003. As of any date subsequent to
the Closing Date, no circumstance or event has occurred that constitutes a
Material Adverse Effect since the Closing Date.
4.7 Title to Property. As of the Closing Date, Borrower has valid title to
its Property (other than assets which are the subject of a Capital Lease
Obligation) reflected in the balance sheet described in Section 4.5(c), other
than items of Property or exceptions to title which are in each case immaterial
to Borrower and 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, Permitted Rights of Others or
Liens permitted by Section 6.8.
4.8 Intangible Assets. Borrower owns, or possesses (or as of any relevant
date will own or possess the same to the extent that it has the present need for
such assets) the right to use to the extent necessary in its business, all
material trademarks, trade names, copyrights, patents, patent rights, computer
software, licenses and other Intangible Assets that are used in the conduct of
its businesses as now operated, and no such Intangible Asset, to the best
knowledge of Borrower, conflicts with the valid trademark, trade name,
copyright, patent, patent right or Intangible Asset of any other Person to the
extent that such conflict constitutes a Material Adverse Effect. Schedule 4.8
sets forth all trademarks, trade names and trade styles used by Borrower as of
the Closing Date.
4.9 Public Utility Holding Company Act. Neither Borrower nor any Subsidiary
of Borrower formed following the Closing Date is a "holding company", or a
"subsidiary company" of a "holding company", or an "affiliate" of a "holding
company" or of a "subsidiary company" of a "holding company", within the meaning
of the Public Utility Holding Company Act of 1935, as amended.
4.10 Litigation. Except for (a) any matter fully covered as to subject
matter and amount (subject to applicable deductibles and retentions) by
insurance for which the insurance carrier has not asserted lack of subject
matter coverage or reserved its right to do so, (b) any matter, or series of
related matters, involving a claim against Borrower or any of its Subsidiaries
of less than $1,000,000, (c) matters of an administrative nature not involving a
claim or charge against Borrower or any of its Subsidiaries and (d) matters set
forth in Schedule 4.10 (none of which may reasonably be expected to have
Material Adverse Effect), there are no actions, suits, proceedings or
investigations pending as to which Borrower or any of its Subsidiaries have been
served or have received notice or, to the best knowledge of Borrower, threatened
against or affecting Borrower or any of its Subsidiaries or any Property of any
of them before any Governmental Agency.
4.11 Binding Obligations. Each of the Loan Documents to which Borrower or
any Subsidiary of Borrower is a Party will, when executed and delivered by such
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Party, constitute the legal, valid and binding obligation of such Party,
enforceable against such Party in accordance with its terms, except as
enforcement may be limited by Debtor Relief Laws, Gaming Laws or equitable
principles relating to the granting of specific performance and other equitable
remedies as a matter of judicial discretion.
4.12 No Default. No event has occurred and is continuing that is a Default
or Event of Default. As of the Closing Date, Borrower is not in default under
the Construction Contract in any material respect and, to the best knowledge of
Borrower, the other counterparties to the Construction Contract are not in
default thereunder in any material respect.
4.13 ERISA.
(a) With respect to each Pension Plan:
(i) such Pension Plan complies in all material respects with
ERISA and any other applicable Laws to the extent that
noncompliance could reasonably be expected to have a Material
Adverse Effect;
(ii) such Pension Plan has not incurred any "accumulated funding
deficiency" (as defined in Section 302 of ERISA) that could
reasonably be expected to have a Material Adverse Effect;
(iii) no "reportable event" (as defined in Section 4043 of ERISA)
has occurred that could reasonably be expected to have a Material
Adverse Effect; and
(iv) neither Borrower nor any of its ERISA Affiliates has engaged
in any non exempt "prohibited transaction" (as defined in Section
4975 of the Code) that could reasonably be expected to have a
Material Adverse Effect.
(b) Neither Borrower nor any of its ERISA Affiliates has incurred or
expects to incur any withdrawal liability to any Multiemployer Plan
that could reasonably be expected to have a Material Adverse Effect.
4.14 Regulation U; 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
Regulation U. Neither Borrower nor any of its Subsidiaries is or is required to
be registered as an "investment company" under the Investment Company Act of
1940.
4.15 Disclosure. No written statement made by a Senior Officer to the
Administrative Agent or any Lender in connection with this Agreement, or in
connection with any Loan, as of the date thereof contained any untrue statement
of a material fact or omitted a material fact necessary to make the statement
made not misleading in light of all the circumstances existing at the date the
statement was made.
4.16 Tax Liability. Borrower and its Subsidiaries have filed all tax
returns which are required to be filed, and have paid, or made provision for the
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payment of, all taxes with respect to the periods, Property or transactions
covered by said returns, or pursuant to any assessment received by Borrower or
any of 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 so long as no material
Property of Borrower or any of its Subsidiaries is at impending risk of being
seized, levied upon or forfeited.
4.17 Projections. As of the Closing Date, Borrower believes that the
assumptions set forth in the Projections are reasonable and consistent with each
other and with all facts known to Borrower, and that the Projections are
reasonably based on such assumptions. Nothing in this Section 4.17 shall be
construed as a representation or covenant that the Projections in fact will be
achieved.
4.18 Hazardous Materials. Except as described in Schedule 4.18, as of the
Closing Date (a) neither Borrower nor any of its Subsidiaries at any time has
disposed of, discharged, released or threatened the release of any Hazardous
Materials on, from or under the Real Property in violation of any Hazardous
Materials Law that would individually or in the aggregate constitute a Material
Adverse Effect, (b) to the best knowledge of Borrower, no condition exists that
violates any Hazardous Material Law affecting any Real Property except for such
violations that would not individually or in the aggregate constitute a Material
Adverse Effect, (c) no Real Property or any portion thereof is or has been
utilized by Borrower as a site for the manufacture of any Hazardous Materials
and (d) to the extent that any Hazardous Materials are used, generated or stored
by Borrower on any Real Property, or transported to or from such Real Property
by Borrower, such use, generation, storage and transportation are in compliance
with all Hazardous Materials Laws except for such non compliance that would not
constitute a Material Adverse Effect or be materially adverse to the interests
of the Lenders.
4.19 Gaming Laws. Borrower is in compliance with all applicable Gaming Laws
except for such non compliance that would not constitute a Material Adverse
Effect.
4.20 Security Interests. Upon the execution and delivery of the Security
Agreement, the Security Agreement will create a valid first priority security
interest in the Collateral described therein securing the Obligations (subject
only to Permitted Encumbrances, Permitted Rights of Others and matters disclosed
in Schedule 4.7 or permitted in Section 6.8 and to such qualifications and
exceptions as are contained in the Uniform Commercial Code with respect to the
priority of security interests perfected by means other than the filing of a
financing statement or with respect to the creation of security interests in
Property to which Article 9 of the Uniform Commercial Code does not apply) and
all action necessary to perfect the security interest so created, other than
filing of the UCC-1 financing statements previously delivered to and filed by
the Administrative Agent in connection with the Existing Loan Agreement with the
appropriate Governmental Agency, have been taken and completed. Upon the
execution and delivery of the Member Pledge Agreements and upon obtaining the
approvals thereof referred to in Schedule 4.3 (which the Borrower agrees to
diligently pursue, and to in any event obtain within 120 days following the
Closing Date), the Member Pledge Agreements will create a valid first priority
security interest in the Member Pledged Collateral and upon delivery of the
Member Pledged Collateral to the Administrative Agent (or its designee) all
action necessary to perfect the security interest so created has been taken and
completed. Upon the execution and delivery of the Deed of Trust, the Deed of
Trust will create a valid Lien in the Collateral described therein securing the
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Obligations, other than those arising under Sections 4.18, 5.11 and 12.22
(subject only to Permitted Encumbrances, Permitted Rights of Others and matters
described in Schedule 4.7 or permitted in Section 6.8), and all action necessary
to perfect the Lien so created, other than recordation or filing thereof with
the appropriate Governmental Agencies, will have been taken and completed.
4.21 Tax Shelter Regulations. The Borrower does not intend to treat the
Loans or Letters of Credit as being a "reportable transaction" (within the
meaning of Treasury Regulation Section 1.6011-4). In the event the Borrower
determines to take any action inconsistent with such intention, it will promptly
notify the Administrative Agent thereof. Accordingly, if the Borrower so
notifies the Administrative Agent, the Borrower acknowledges that one or more of
the Lenders may treat its Loans or its interest in Swing Line Loans or Letters
of Credit as part of a transaction that is subject to Treasury Regulation
Section 301.6112-1, and such Lender or Lenders, as applicable, will maintain the
lists and other records required by such Treasury Regulation.
ARTICLE 5
AFFIRMATIVE COVENANTS
---------------------
(OTHER THAN INFORMATION AND
REPORTING REQUIREMENTS)
So long as any Advance remains unpaid, or any other Obligation remains
unpaid, or any portion of either of the Commitments remains in force, Borrower
shall, and shall cause each of its Subsidiaries to, unless the Administrative
Agent (with the written approval of the Requisite Lenders) otherwise consents:
5.1 Payment of Taxes and Other Potential Liens. Pay and discharge promptly
all taxes, assessments and governmental charges or levies imposed upon any of
them, upon their respective Property or any part thereof and upon their
respective income or profits or any part thereof, except that Borrower shall not
be required to pay or cause to be paid (a) any tax, assessment, charge or levy
that is not yet past due, or is being contested in good faith by appropriate
proceedings so long as the relevant entity has established and maintains
adequate reserves for the payment of the same or (b) any immaterial tax so long
as no material Property of Borrower or any of its Subsidiaries is at material
risk of impending seizure, levy or forfeiture.
5.2 Preservation of Existence. Preserve and maintain their respective
existences in the jurisdiction of their formation and all material
authorizations, rights, franchises, privileges, consents, approvals, orders,
licenses, permits, or registrations from any Governmental Agency that are
necessary for the transaction of their respective business and qualify and
remain qualified to transact business in each jurisdiction in which such
qualification is necessary in view of their respective business or the ownership
or leasing of their respective Properties except where the failure to so qualify
or remain qualified would not constitute a Material Adverse Effect.
5.3 Maintenance of Properties. Maintain, preserve and protect all of their
respective Properties in good order and condition, subject to wear and tear in
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the ordinary course of business, and not permit any waste of their respective
Properties, except that the failure to maintain, preserve and protect a
particular item of Property that is not of significant value, either
intrinsically or to the operations of Borrower and its Subsidiaries, taken as a
whole, shall not constitute a violation of this covenant.
5.4 Maintenance of Insurance. Maintain liability, casualty, workers'
compensation and other insurance (subject to customary deductibles and
retentions) with responsible insurance companies in such amounts and against
such risks as is carried by responsible companies engaged in similar businesses
and owning similar assets in the general areas in which Borrower and its
Subsidiaries operate and, in any event, such insurance as may be required under
the Deed of Trust.
5.5 Compliance With Laws. Comply, within the time period, if any, given for
such compliance by the relevant Governmental Agency or Agencies with enforcement
authority, with all Requirements of Law noncompliance with which constitutes a
Material Adverse Effect, except that Borrower and its Subsidiaries need not
comply with a Requirement of Law then being contested by any of them in good
faith by appropriate proceedings.
5.6 Inspection Rights. Upon reasonable notice, at any time during regular
business hours and as often as reasonably requested (but not so as to materially
interfere with the business of Borrower any of its Subsidiaries), but subject to
the applicable provisions of Gaming Laws, permit the Administrative Agent or any
Lender, or any authorized employee, agent or representative thereof, to examine,
audit and make copies and abstracts from the records and books of account of,
and to visit and inspect the Properties of, Borrower and its Subsidiaries and to
discuss the affairs, finances and accounts of Borrower and its Subsidiaries with
any of their officers, key employees or accountants.
5.7 Keeping of Records and Books of Account. Keep adequate records and
books of account reflecting all financial transactions in conformity with GAAP,
consistently applied, and in material conformity with all applicable
requirements of any Governmental Agency having regulatory jurisdiction over
Borrower or any of its Subsidiaries.
5.8 Compliance With Agreements. Promptly and fully comply with all
Contractual Obligations under all material agreements, indentures, leases and/or
instruments to which any one or more of them is a party, whether such material
agreements, indentures, leases or instruments are with a Lender or another
Person, except for any such Contractual Obligations (a) the performance of which
would cause a Default or (b) then being contested by any of them in good faith
by appropriate proceedings or if the failure to comply with such agreements,
indentures, leases or instruments does not constitute a Material Adverse Effect.
5.9 Use of Proceeds. Use the proceeds of the Loans (i) to finance the
construction and development of the Projects in accordance with the relevant
Construction Plans and Construction Budgets, and other permitted Capital
Expenditures, (ii) to pay fees and expenses associated the transactions
contemplated herein, (iii) refinance the loans under the Existing Loan
Agreement, and (iv) for working capital and general corporate purposes,
including without limitation capitalized interest costs associated with the
development of the Project and the making of Member Tax Distributions permitted
under Section 6.5.
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5.10 New Subsidiaries. Cause any Person which hereafter becomes a
Subsidiary of Borrower to execute and deliver to the Administrative Agent a
Subsidiary Guaranty in a form reasonably acceptable to the Administrative Agent,
a security agreement granting a first Lien on substantially all of its assets
(subject only to Permitted Encumbrances) and other Collateral Documents granting
Liens on all of its other Properties, and (subject to compliance with applicable
Gaming Laws) deliver the certificates evidencing all equity interests in such
Subsidiary to the Administrative Agent in pledge pursuant to a pledge agreement
substantially in the form of the Member Pledge Agreement, and to take such
actions as are required by the Administrative Agent to perfect the Liens of the
Administrative Agent pursuant thereto.
5.11 Hazardous Materials Laws. Keep and maintain all Real Property and each
portion thereof in compliance with all applicable Hazardous Materials Laws
(except for such non compliance that would not constitute a Material Adverse
Effect or be materially adverse to the interests of the Lenders) and promptly
notify the Administrative Agent in writing (attaching a copy of any pertinent
written material) of (a) any and all material enforcement, cleanup, removal or
other governmental or regulatory actions instituted, completed or threatened in
writing by a Governmental Agency pursuant to any applicable Hazardous Materials
Laws, (b) any and all material claims made or threatened in writing by any
Person against Borrower relating to damage, contribution, cost recovery,
compensation, loss or injury resulting from any Hazardous Materials and (c)
discovery by any Senior Officer of any material occurrence or condition on any
real Property adjoining or in the vicinity of such Real Property that could
reasonably be expected to cause such Real Property or any part thereof to be
subject to any restrictions on the ownership, occupancy, transferability or use
of such Real Property under any applicable Hazardous Materials Laws.
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ARTICLE 6
NEGATIVE COVENANTS
------------------
So long as any Advance remains unpaid, or any other Obligation remains
unpaid, or any portion of either of the Commitments remains in force, Borrower
shall not, and shall not permit any of its Subsidiaries to, unless the
Administrative Agent (with the written approval of the Requisite Lenders or, if
required by Section 12.2, of all of the Lenders) otherwise consents:
6.1 Payment of Subordinated Obligations. Pay any (a) principal (including
sinking fund payments) or any other amount (other than scheduled interest
payments) with respect to any Subordinated Obligation, or purchase or redeem (or
offer to purchase or redeem) any Subordinated Obligation, or deposit any monies,
securities or other Property with any trustee or other Person to provide
assurance that the principal or any portion thereof of any Subordinated
Obligation will be paid when due or otherwise to provide for the defeasance of
any Subordinated Obligation except for Management Fees paid in accordance with
Section 6.16, and (b) interest on any Subordinated Obligation except interest
either consisting of additional units of such Subordinated Obligation paid in
kind with respect thereto, and when no Default or Event of Default exists or
would result therefrom and, after giving pro forma effect thereto as of the last
day of the then most recently ended Fiscal Quarter, does not result in Borrower
being in pro forma default of the Fixed Charge Coverage Ratio covenant set forth
in Section 6.11.
6.2 Disposition of Property. Make any Disposition of its Property, whether
now owned or hereafter acquired, except Dispositions of Property having an
aggregate book value or fair market value (whichever is greater) not in excess
of $2,000,000. Any Property which is the subject of a Disposition permitted by
this Section shall be released from the Lien of the Collateral Documents upon
request of Borrower.
6.3 Mergers. Merge or consolidate with or into any Person, except mergers
and consolidations of a Subsidiary of Borrower into Borrower or into another
Subsidiary of Borrower.
6.4 Hostile Acquisitions. Directly or indirectly use the proceeds of any
Loan in connection with the acquisition of part or all of a voting interest of
five percent or more in any corporation or other business entity if such
acquisition is opposed by the board of directors or management of such
corporation or business entity.
6.5 Distributions. Make any Distribution, whether from capital, income or
otherwise, and whether in Cash or other Property, except:
(a) Distributions by a Subsidiary of Borrower to Borrower;
(b) During each Fiscal Year, quarterly Distributions made to the
Members in an amount equal to the federal and state income tax
liability of the Members for such Fiscal Year arising from the tax
attributes of Borrower and its Subsidiaries (determined as if each
Member was subject to the maximum corporate tax rate applicable to
corporations doing business in Nevada), and assuming that the Members
have no offsetting taxable income, losses or other tax attributes for
the Fiscal Year (the "Tax Amount"), provided that in determining the
Tax Amount for any Fiscal Year, any cumulative net loss of Borrower
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for tax purposes (which loss has not been previously used to offset
taxable income in accordance with this sentence) shall be deducted
from the gross taxable income of Borrower in determining the Tax
Amount; further provided that after giving pro forma effect to the
making of such Distribution as of the last day of the then most recent
Fiscal Quarter for which a Compliance Certificate is required to have
been delivered pursuant to Section 8.2, Borrower is in pro forma
compliance with all the covenants set forth in this Section 6 and no
Default or Event of Default exists or would result therefrom; and
(c) Following the Completion Date, other Distributions made when no
Default or Event of Default exists or would result therefrom, provided
that after giving pro forma effect to the making of the Distribution
as of the last day of the then most recent Fiscal Quarter for which a
Compliance Certificate is required to have been delivered pursuant to
Section 8.2, Borrower is in pro forma compliance with all the
covenants set forth in this Article 6.
On or about the fifth day prior to each date on which estimated federal and
state income tax payments are required to be paid by the Members by applicable
laws, Borrower may make the Distributions permitted by clause (b) of this
Section, which together with prior Distributions for the Fiscal Year on account
of the Tax Amount shall not exceed a reasonable estimate of the Tax Amount, but
not to exceed fifty percent of Borrower's aggregate taxable income for such
Fiscal Year. If, at the end of Fiscal Year, the aggregate estimated quarterly
Distributions exceed the actual Tax Amount for such Fiscal Year, future
quarterly tax Distributions shall cease with respect to the affected Member
until the excess amount has been repaid in cash to Borrower by the affected
Member or until it is equal to the amount of any later distributions to which
that Member would otherwise be entitled under this Section. Borrower agrees that
it will promptly enforce any provision in its governing instruments requiring
such recontribution. Borrower further agrees to provide the Administrative Agent
upon request, a certificate of Borrower's independent certified public
accountants or such other documentation required by the Administrative Agent to
substantiate the appropriateness of any amount paid or to be paid to the Members
pursuant to this Section 6.5.
6.6 ERISA. At any time, (a) permit any Pension Plan to (i) engage in any
non exempt "prohibited transaction" (as defined in Section 4975 of the Code),
(ii) fail to comply with ERISA or any other applicable Laws, (iii) incur any
material "accumulated funding deficiency" (as defined in Section 302 of ERISA),
or (iv) terminate in any manner, which, with respect to each event listed above,
could reasonably be expected to result in a Material Adverse Effect, or (b)
withdraw, completely or partially, from any Multiemployer Plan if to do so could
reasonably be expected to result in a Material Adverse Effect.
6.7 Change in Nature of Business. Make any material change in the nature of
the business of Borrower and its Subsidiaries, taken as a whole.
6.8 Liens and Negative Pledges. Create, incur, assume or suffer to exist
any Lien or Negative Pledge of any nature upon or with respect to any of their
respective Properties, or engage in any sale and leaseback transaction with
respect to any of their respective Properties, whether now owned or hereafter
acquired, except:
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(a) Permitted Encumbrances;
(b) Liens and Negative Pledges under the Loan Documents;
(c) Liens and Negative Pledges existing on the Closing Date and
disclosed in Schedule 4.7 and any renewals, extensions or amendments
thereof; provided that the obligations secured or benefited thereby
are not increased;
(d) Liens on Property acquired by Borrower that were in existence at
the time of the acquisition of such Property and were not created in
contemplation of such acquisition and Negative Pledges limited to such
Property;
(e) Liens securing Indebtedness permitted by Section 6.9(e) on and
limited to the capital assets acquired, constructed or financed with
the proceeds of such Indebtedness or with the proceeds of any
Indebtedness directly or indirectly refinanced by such Indebtedness
and related Negative Pledges limited to such capital assets;
(f) Liens consisting of, or on assets owned by other Persons which are
leased to any Borrower under, an operating lease excluded from the
definition of Indebtedness and Negative Pledges limited to such
assets; and
(g) Liens and Negative Pledges existing on the Closing Date securing
Borrower's $2,342,537 portion of the obligations with respect to the
$60,000,000 "local improvement district No. T 4" bond (which encumbers
the ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ generally) which are not delinquent
and which 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 material Property is subject to a
material impending risk of loss or forfeiture.
6.9 Indebtedness and Guaranty Obligations. Create, incur or assume any
Indebtedness or Guaranty Obligation except:
(a) Indebtedness and Guaranty Obligations existing on the Closing Date
and disclosed in Schedule 6.9, and refinancings, renewals, extensions
or amendments that do not increase the amount thereof;
(b) Indebtedness and Guaranty Obligations under the Loan Documents;
(c) Indebtedness owed to Borrower by a Subsidiary of Borrower,
Indebtedness owed to a Wholly Owned Subsidiary of Borrower by Borrower
and Guaranty Obligations with respect thereto;
(d) Indebtedness of Borrower consisting of one or more Swap
Agreements; provided, that the aggregate notional amount of
Indebtedness covered by all Secured Swap Agreements shall not exceed
the principal amount of the Commitments;
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(e) Indebtedness consisting of Capital Lease Obligations or other
Indebtedness otherwise incurred to finance the purchase or
construction of capital assets (which shall be deemed to exist if the
Indebtedness is incurred at or within 180 days before or after the
purchase or construction of the capital asset, or to refinance any
such Indebtedness); provided that (i) the aggregate principal amount
of such Indebtedness outstanding at any time does not exceed
$10,000,000; (ii) upon the incurrence of any such Indebtedness, any
Lien created by the Collateral Documents on such capital assets shall
be terminated and the Administrative Agent shall execute and deliver
such releases of such Lien on such capital assets as Borrower may
request; and (iii) Indebtedness incurred under this Agreement shall
not be deemed for purposes of this clause (f) to have been incurred to
finance the purchase or construction of capital assets or to have
refinanced any such Indebtedness;
(f) other Indebtedness incurred following the Completion Date in the
ordinary course of business in an aggregate principal amount not in
excess of $5,000,000, with payment, pricing and other terms no more
favorable to Borrower than those applicable to the Loans;
(g) Subordinated Obligations incurred when no Default or Event of
Default exists or would result therefrom; and
(h) Guaranty Obligations in support of the obligations of a Subsidiary
of Borrower that are not prohibited by the proviso to this Section;
provided that, notwithstanding the foregoing, Borrower shall not permit any
Subsidiary to create, incur, assume or suffer to exist any Indebtedness or
Guaranty Obligation, except (a) any Subsidiary Guaranty or (b) Indebtedness owed
to Borrower or another Subsidiary of Borrower.
6.10 Transactions with Affiliates. Enter into any transaction of any kind with
any Affiliate of Borrower other than (a) salary, bonus, employee stock option
and other compensation arrangements and related costs, payroll taxes and other
employee benefits with officers or managers in the ordinary course of business,
(b) transactions that are fully disclosed to the executive committee of Borrower
and expressly authorized by a resolution of the executive committee of Borrower
which is approved by a majority of Borrower's managers not having an interest in
the transaction, (c) transactions with Members or their Affiliates consisting of
reimbursements of amounts expended by such Member or its Affiliates for the
benefit of Borrower or its Subsidiaries that are expressly permitted by the
Operating Agreement and that are in the ordinary course of business; (d) slot
machine sales to and purchases from Station and its Affiliates in an amount not
to exceed $2,000,000 in the aggregate; (e) transactions expressly permitted by
this Agreement, (f) transactions between or among Borrower and its Wholly Owned
Subsidiaries, and (g) transactions on overall terms at least as favorable to
Borrower or its Subsidiaries as would be the case in an arm's length transaction
between unrelated parties of equal bargaining power.
6.11 Fixed Charge Coverage Ratio. Permit the Fixed Charge Coverage Ratio,
as of the last day of any Fiscal Quarter, to be less than the ratio set forth
below opposite such Fiscal Quarter:
Fiscal Quarter Ratio
-------------- -----
Fiscal Quarters ending prior to the 1.25 to 1.00
Completion Date
Fiscal Quarters ending after the 1.10 to 1.00
Completion Date if the Leverage Ratio
is greater than or equal to
2.50 to 1.00
Fiscal Quarters ending after the 1.00 to 1.00
Completion Date if the Leverage
Ratio is less than 2.50 to 1.00
6.12 Leverage Ratio. Permit the Leverage Ratio, as of the last day of any
Fiscal Quarter, to be greater than the ratio set forth below opposite such
Fiscal Quarter:
Fiscal Quarter Ratio
-------------- -----
Closing Date and Fiscal Quarters 3.25 to 1.00
ending December 31, 2004 through
September 30, 2006
Fiscal Quarters ending December 31, 2006 3.00 to 1.00
through September 30, 2007
Fiscal Quarters ending December 31, 2007 2.50 to 1.00
and thereafter
6.13 Capital Expenditures. Make, or become legally obligated to make, any
Capital Expenditure other than:
(a) Capital Expenditures contemplated by the Construction Budget for
the Phase II Project in an aggregate amount not to exceed
$125,000,000;
(b) Capital Expenditures contemplated by the Construction Budget for
the Phase III Project in an aggregate amount not to exceed
$75,000,000; provided that the Administrative Agent has approved the
Phase III Project in the manner required by Section 6.20;
(c) other Capital Expenditures in an aggregate amount not to exceed
(i) $25,000,000 during the Fiscal Year ending on December 31, 2005 and
(ii) $10,000,000 during any subsequent Fiscal Year; provided, however,
the maximum aggregate permitted Capital Expenditures for each Fiscal
Year shall be increased by an amount, not to exceed $5,000,000, equal
to the difference between the maximum aggregate permitted Capital
Expenditures permitted under this clause (c) for the immediately
preceding Fiscal Year and the actual aggregate Capital Expenditures
under this clause (c) for such preceding Fiscal Year.
6.14 Investments. Make or suffer to exist any Investment, other than:
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(a) Investments in existence on the Closing Date and disclosed on
Schedule 6.14;
(b) Investments consisting of Cash and Cash Equivalents;
(c) Investments consisting of advances to officers, directors and
employees of Borrower and its Subsidiaries for travel, entertainment,
relocation and analogous ordinary business purposes;
(d) Investments consisting of or evidencing the extension of credit to
customers or suppliers of Borrower in the ordinary course of business
and any Investments received in satisfaction or partial satisfaction
thereof;
(e) Investments received in connection with the settlement of a bona
fide dispute with another Person;
(f) Investments required by any Gaming Board;
(g) Investments in Wholly Owned Subsidiaries that do not exceed in the
aggregate $5,000,000 outstanding at any time;
(h) Investments consisting of Guaranty Obligations permitted by
Section 6.9; and
(i) Investments in the ordinary course of business in joint ventures
whose sole business is the conduct of restaurant operations at the
Property subject to the Deed of Trust.
6.15 Acquisitions. Make any Acquisitions having an aggregate consideration
in excess of $10,000,000 during the term of this Agreement.
6.16 Management Fees. Pay Management Fees other than Management Fees which
have accrued and are due and payable pursuant to the terms of the Operating
Agreement (including Management Fees the payment of which was deferred from
prior periods), provided that (a) at the time of payment of such Management Fees
no Default or Event of Default exists or would result from such payment, and (b)
giving effect to the making of such payments as of the last day of then most
recently ended Fiscal Quarter for which a Compliance Certificate is required to
have been delivered in accordance with Article 8, Borrower is in pro forma
compliance with each of the covenants set forth in Sections 6.11 and 6.12.
6.17 Amendments to Constituent Documents. Permit the Members to amend or
modify the Operating Agreement or the Articles of Organization of Borrower in a
manner that would affect (a) the amount, timing of payment or calculation of
Management Fees payable by Borrower, or (b) any other provision that may
adversely affect the interests of the Lenders under the Loan Documents.
6.18 Prepayments. Prepay any Indebtedness, or, subject to the last sentence
of this Section, prepay rent under any operating lease, prior to the date when
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the same is due and payable, except (a) prepayments of the Indebtedness under
this Agreement as and when permitted hereby, and (b) other prepayments with
respect to Indebtedness in an aggregate amount not to exceed $5,000,000. For
purposes of this Section, the exercise by Borrower of a purchase option
contained in an operating lease shall not constitute a prepayment of rent;
provided, however, that the exercise of any such option shall be subject to the
limitations on Capital Expenditures set forth in this Agreement.
6.19 Synthetic Leases. Enter into or assume any Synthetic Lease.
6.20 Phase III Project. Enter into the prime construction for the Phase III
Project unless and until:
(a) the Administrative Agent has reasonably approved the identity of
the prime contractor (it being understood that Perini Building Company
shall not require pre-approval);
(b) Borrower has provided the Administrative Agent with a draft of the
prime construction contract, and such contract has been reasonably
approved by the Administrative Agent in writing; and
(c) Borrower has submitted to the Administrative Agent (for its
information only, and not subject to its approval) copies of the
related Construction Plans, Construction Timetable and Construction
Budget for the Phase III Project.
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ARTICLE 7
CONSTRUCTION PERIOD COVENANTS
-----------------------------
During each Construction Period, Borrower shall, unless the Administrative
Agent otherwise consents (in the case of the covenants set forth in Section 7.1
through 7.3 below, with the prior written consent of the Requisite Lenders, and
in the case of each other covenant set forth in this Article 7, following five
Business Days notice to each Lender of any proposed non compliance without
objection by the Requisite Lenders):
7.1 Construction of Project. Proceed diligently and without interruption
(except as may be caused by events outside the control of Borrower) to construct
and furnish the related Project in accordance in all material respects with the
related Construction Plans, Construction Budget and Construction Timetable, and
in any event cause the Completion Date for the Phase II Project to occur not
later than March 31, 2005.
7.2 Construction Requirements. Construct each Project in a good and
workmanlike manner in accordance with sound building practices and the related
Construction Plans, and comply in all material respects with all existing Laws
and requirements of all Governmental Agencies having jurisdiction over the
Project and with all future Laws and requirements that become applicable to that
Project prior to the Completion Date.
7.3 Construction Services. In the case of the Phase II Project only,
continue to engage CSG, at the expense of Borrower, to monitor the construction
of the Phase II Project and provide CSG with such information and access to the
Phase II Project worksite and individuals employed by Borrower, the relevant
Architect and Contractor as it may reasonably request for that purpose, and pay
on a monthly basis the fees and expenses of CSG in accordance with their
engagement. CSG shall not be engaged to monitor the Phase III Project.
7.4 Notice of Changes. Promptly provide the Administrative Agent and, in
the case of the Phase II Project, CSG with copies of all changes to the related
Construction Plan, Construction Budget, Construction Timetable, Construction
Contracts and Architect Contracts.
7.5 Construction Progress Reports. In respect of the Phase II Project,
assist and cooperate with CSG in all respects reasonably requested by CSG in
order to permit CSG to provide such periodic construction progress reports in
respect of the Phase II Project to the Administrative Agent and the Lenders as
may be reasonably requested by the Administrative Agent. In respect of the Phase
III Project, provide the internal reports required by Section 8.1(a)(ii).
7.6 Construction Information. Promptly provide to the Administrative Agent
(and, in respect of the Phase II Project, CSG) such information and documents
respecting the Projects as it may reasonably request from time to time,
including detailed identification of each significant subcontractor or supplier
to the Projects and the nature and dollar amount of the related subcontract or
supply contract.
7.7 Construction, Permits, Licenses and Approvals. Properly obtain, comply
with and keep in effect all permits, licenses and approvals which are
customarily required to be obtained from Governmental Agencies in order to
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construct and occupy the Projects as of the then current stage of construction,
and deliver copies of all such permits, licenses and approvals to the
Administrative Agent promptly following a request therefor.
7.8 Purchase of Materials. Not purchase or contract for any materials,
equipment, furnishings, fixtures or articles of personal property to be placed
or installed on or upon the Project under any security agreement or other
agreement where the seller reserves or purports to reserve title or the right of
removal or repossession (except for such reservations as may arise solely by
operation of Law), or the right to consider such materials personal property
after their incorporation in the work of construction unless the Administrative
Agent in each instance has authorized Borrower to do so in writing.
7.9 Purchase of Offsite Materials. Promptly notify the Administrative Agent
if it purchases (and pays all or a portion of the purchase price therefor) any
construction materials for the Projects that are not located on the Real
Property, or will not be delivered thereto within fifteen days after purchase
(describing such construction materials, the purchase price therefor and the
location thereof) and, if requested by the Administrative Agent, provide to the
Administrative Agent the written acknowledgment of the Person having custody of
such construction materials of the existence of the Lenders' Lien on such
construction materials and the right of the Administrative Agent to have access
to and to remove such construction materials at reasonable times.
7.10 Site Visits. Permit the Administrative Agent, or any Lender, at any
reasonable time to enter and visit the Real Property for the purposes of
performing an appraisal, observing the work of construction and examining all
materials, plans, specifications, working drawings and other matters relating to
the construction of the Projects.
7.11 Protection Against Lien Claims. Promptly pay when due (subject to
applicable retentions) or otherwise discharge all claims and Liens for labor
done and materials and services furnished in connection with the construction of
the Project, except for claims contested in good faith by appropriate
proceedings and without prejudice to the relevant Construction Timetable,
provided that any such claims are covered by such payment bonds or title
insurance policy endorsements as may be requested by the Administrative Agent.
7.12 Completion Certificates. Upon completion of each of the Projects,
provide the Administrative Agent with a written certificate executed by the
Architect and Contractor certifying that the relevant Project has been completed
in all material respects in accordance with the applicable Construction Plan and
complies in all material respects with all applicable zoning, building and land
use Laws and that such Project is ready to be opened for business.
7.13 Completion Survey. As soon as practicable after completion of each
Project, provide the Administrative Agent with an ALTA survey of the Real
Property that (a) sets forth all easements and licenses burdening the Real
Property which are of record or visible from an inspection thereof, and (b)
reflects no encroachments onto the Real Property and no encroachments by that
Project onto adjoining real property.
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ARTICLE 8
INFORMATION AND REPORTING REQUIREMENTS
--------------------------------------
8.1 Financial and Business Information. So long as any Advance remains
unpaid, or any other Obligation remains unpaid, or any portion of either the
Commitments remains in force, Borrower shall, unless the Administrative Agent
(with the written approval of the Requisite Lenders) otherwise consents, at
Borrower's sole expense, deliver to the Administrative Agent for distribution by
it to the Lenders, a sufficient number of copies for all of the Lenders of the
following:
(a) During (i) the Construction Period for the Phase II Project, as
soon as practicable, and in any event by the 20th day of the next
following month, all information requested by CSG for the preparation
of its construction progress report as of the last day of the
preceding calendar month in a form reasonably acceptable to the
Administrative Agent, which report shall compare the status of
construction and amounts expended to the related Construction
Timetable and Construction Budget, and (ii) the Construction Period
for the Phase III Project, not later than the last day of each
calendar month, an internally prepared narrative construction progress
report in respect of the Phase III Project in a form reasonably
acceptable to the Administrative Agent;
(b) As soon as practicable, and in any event by the last day of the
next following month, financial statements of Borrower for the
preceding calendar month (commencing with the first full calendar
month after the Completion Date) in a form reasonably acceptable to
the Administrative Agent, together with a written narrative statement
discussing any significant trends reflected therein signed by a Senior
Officer;
(c) 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), (i) the consolidated balance sheet of Borrower and
its Subsidiaries as at the end of such Fiscal Quarter and the
consolidated statement of operations for such Fiscal Quarter, and its
statement of cash flows for the portion of the Fiscal Year ended with
such Fiscal Quarter and (ii) if applicable and if requested by the
Administrative Agent, the consolidating balance sheets and statements
of operations as at and for the portion of the Fiscal Year ended with
such Fiscal Quarter, all in reasonable detail. Such financial
statements shall be certified by a Senior Officer as fairly presenting
the financial condition, results of operations and cash flows of
Borrower and its Subsidiaries in accordance with GAAP (other than
footnote disclosures), consistently applied, as at such date and for
such periods, subject only to normal year end accruals and audit
adjustments;
(d) As soon as practicable, and in any event within 45 days after the
end of each Fiscal Quarter, a Pricing Certificate setting forth a
preliminary calculation of the Pricing Ratio as of the last day of
such Fiscal Quarter, and providing reasonable detail as to the
calculation thereof, which calculations shall be based on the
preliminary unaudited financial statements of Borrower and its
Subsidiaries for such Fiscal Quarter, and as soon as practicable
thereafter, in the event of any material variance in the actual
calculation of the Pricing Ratio from such preliminary calculation, a
revised Pricing Certificate setting forth the actual calculation
thereof;
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(e) As soon as practicable, and in any event within 120 days after the
end of each Fiscal Year, (i) the consolidated balance sheet of
Borrower and its Subsidiaries as at the end of such Fiscal Year and
the consolidated statements of operations, members' equity and cash
flows, in each case of Borrower and its Subsidiaries for such Fiscal
Year and (ii) if applicable and if requested by the Administrative
Agent, consolidating balance sheets and statements of operations, in
each case as at the end of and for the Fiscal Year, all in reasonable
detail. Such financial statements shall be prepared in accordance with
GAAP, consistently applied, and such consolidated balance sheet and
consolidated statements shall be accompanied by a report of
independent public accountants of recognized standing selected by
Borrower and reasonably satisfactory to the Requisite Lenders, which
report shall be prepared in accordance with generally accepted
auditing standards as at such date, and shall not be subject to any
qualifications or exceptions as to the scope of the audit nor to any
other qualification or exception determined by the Requisite Lenders
in their good faith business judgment to be adverse to the interests
of the Lenders. Such accountants' report shall be accompanied by a
certificate stating that, in making the examination pursuant to
generally accepted auditing standards necessary for the certification
of such financial statements and such report, such accountants have
obtained no knowledge of any Default 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 Borrower's financial calculations as at the end of such
Fiscal Year (which shall accompany such certificate) under Sections
6.11 and 6.12, 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 examination that
would cause them to believe that the same were not calculated by
Borrower in the manner prescribed by this Agreement;
(f) As soon as practicable, and in any event within 45 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 consolidated and consolidating balance sheets, statements of
operations and statements of cash flow and, for the second and third
such Fiscal Years, projected consolidated and consolidating condensed
balance sheets and statements of operations and cash flows, of
Borrower and its Subsidiaries, all in reasonable detail;
(g) Promptly after request by the Administrative Agent or any Lender,
copies of any detailed audit reports, management letters or
recommendations submitted to the executive committee (or the audit
committee of the executive committee) of Borrower by independent
accountants in connection with the accounts or books of Borrower or
any of its Subsidiaries, or any audit of any of them;
(h) Promptly after request by the Administrative Agent or any Lender,
copies of the Nevada "Regulation 6.090 Report" and "6 A Report", and
copies of any written communication to Borrower from any Gaming Board
advising it of a violation of or non compliance with any Gaming Law by
Borrower or any of its Subsidiaries;
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(i) Promptly after request by the Administrative Agent or any Lender,
copies of any other report or other document that was filed by
Borrower with any Governmental Agency;
(j) Promptly upon a Senior Officer becoming aware, and in any event
within ten Business Days after becoming aware, of the occurrence of
any (i) "reportable event" (as such term is defined in Section 4043 of
ERISA) or (ii) "prohibited transaction" (as such term is defined in
Section 406 of ERISA or Section 4975 of the Code) in connection with
any Pension Plan or any trust created thereunder, telephonic notice
specifying the nature thereof, and, no more than five Business Days
after such telephonic notice, written notice again specifying the
nature thereof and specifying what action Borrower is taking or
proposes to take with respect thereto, and, when known, any action
taken by the Internal Revenue Service with respect thereto;
(k) As soon as practicable, and in any event within two Business Days
after a Senior Officer becomes aware of the existence of any condition
or event which constitutes a Default or Event of Default, telephonic
notice specifying the nature and period of existence thereof, and, no
more than two Business Days after such telephonic notice, written
notice again specifying the nature and period of existence thereof and
specifying what action Borrower is taking or proposes to take with
respect thereto;
(l) Promptly upon a Senior Officer becoming aware that (i) any Person
has commenced a legal proceeding with respect to a claim against
Borrower that is $2,000,000 or more in excess of the amount thereof
that is fully covered by insurance, (ii) any creditor under a credit
agreement involving Indebtedness of $2,000,000 or more or any lessor
under a lease involving aggregate rent of $2,000,000 or more has
asserted a default thereunder on the part of Borrower, (iii) any
Person has commenced a legal proceeding with respect to a claim
against Borrower under a contract that is not a credit agreement or
material lease in excess of $2,000,000 or which otherwise may
reasonably be expected to result in a Material Adverse Effect, (iv)
any labor union has notified Borrower of its intent to strike such
Borrower on a date certain and such strike would involve more than 100
employees of Borrower or (v) any Gaming Board has indicated its intent
to consider or act upon a License Revocation or a fine or penalty of
$1,000,000 or more with respect to Borrower, a written notice
describing the pertinent facts relating thereto and what action
Borrower is taking or proposes to take with respect thereto; and
(m) Such other data and information as from time to time may be
reasonably requested by the Administrative Agent, any Lender (through
the Administrative Agent) or the Requisite Lenders.
Borrower hereby acknowledges that (a) the Administrative Agent and/or the
Joint Lead Arrangers will make available to the Lenders and the Issuing Lender
materials and/or information provided by or on behalf of Borrower hereunder
(collectively, "Borrower Materials") by posting Borrower Materials on IntraLinks
or another similar electronic system (the "Platform") and (b) certain of the
Lenders may be "public-side" Lenders (i.e., Lenders that do not wish to receive
material non-public information with respect to Borrower or its securities)
(each, a "Public Lender"). Borrower hereby agrees that (w) all Borrower
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Materials that are to be made available to Public Lenders shall be clearly and
conspicuously marked "PUBLIC" which, at a minimum, shall mean that the word
"PUBLIC" shall appear prominently on the first page thereof; (x) by marking
Borrower Materials "PUBLIC," Borrower shall be deemed to have authorized the
Administrative Agent, the Joint Lead Arrangers, the Issuing Lender and the
Lenders to treat such Borrower Materials as either publicly available
information or not material information (although it may be sensitive and
proprietary) with respect to Borrower or its securities for purposes of United
States Federal and state securities laws; (y) all Borrower Materials marked
"PUBLIC" are permitted to be made available through a portion of the Platform
designated "Public Investor;" and (z) the Administrative Agent and the Joint
Lead Arrangers shall be entitled to treat any Borrower Materials that are not
marked "PUBLIC" as being suitable only for posting on a portion of the Platform
not designated "Public Investor."
8.2 Compliance Certificates. So long as any Advance remains unpaid, or any
other Obligation remains unpaid or unperformed, or any portion of either of the
Commitments remains outstanding, Borrower shall, at Borrower's sole expense,
deliver to the Administrative Agent for distribution by it to the Lenders
concurrently with the financial statements required pursuant to Sections 8.1(c)
and 8.1(e), Compliance Certificates signed by a Senior Officer.
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ARTICLE 9
CONDITIONS
----------
9.1 Conditions to Closing. The effectiveness of this Agreement is subject
to the satisfaction of each of the following conditions precedent (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;
(2) Consents hereto substantially in the form of Exhibit G, which
in the case of each Lender making additional Term Loans on the
Closing Date, shall set forth the amount of such additional Term
Loans.
(3) Revolving Notes executed by Borrower in favor of each
Revolving Lender reflecting the adjusted Pro Rata Shares of the
Revolving Commitment set forth on Schedule 2.1
(4) Term Notes in favor of each Term Lender which has elected to
make additional Term Loans on the Closing Date, each in a
principal amount equal to that Lender's Term Loans;
(5) the amended and restated Security Agreement executed by
Borrower;
(6) Member Pledge Agreements executed by each of the Members;
(7) the amended and restated Completion Guaranty executed by the
Members and Station;
(8) the amended and restated Deed of Trust executed by Borrower;
(9) such documentation as the Administrative Agent may require to
establish the due organization, valid existence and good standing
of Borrower, its qualification to engage in business in each
material jurisdiction in which it is engaged in business or
required to be so qualified, its authority to execute, deliver
and perform any Loan Documents to which it is a Party, the
identity, authority and capacity of each Responsible Official
thereof authorized to act on its behalf, including (if
applicable) certified copies of the Operating Agreement and
amendments thereto, certificates of good standing and/or
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qualification to engage in business, tax clearance certificates,
certificates of corporate or other organizational resolutions,
incumbency certificates, Certificates of Responsible Officials,
and the like;
(10) the Opinions of Counsel;
(11) assurances from the Title Company that it is prepared to
issue a CLTA Form 110.5 Indorsement to the Title Policy insuring
the Lien of the Deed of Trust, subject only to such exceptions as
are reasonably acceptable to the Administrative Agent;
(12) a certificate of insurance issued by Borrower's insurance
carrier or agent with respect to the insurance required to be
maintained pursuant to the Deed of Trust, together with lenders'
loss payable endorsements thereof on Form 438BFU or other form
acceptable to the Administrative Agent;
(13) the Member Subordination Agreement executed by each of the
Members;
(14) a Certificate signed by a Senior Officer certifying that the
conditions specified in Sections 9.1(c) and 9.1(d) have been
satisfied; and
(15) such other assurances, certificates, documents, consents or
opinions as the Administrative Agent reasonably may require.
(b) all fees payable on the Closing Date pursuant to Article 3 shall
have been paid.
(c) The representations and warranties of Borrower contained in
Article 4 shall be true and correct.
(d) Borrower and any other Parties shall be in compliance with all the
terms and provisions of the Loan Documents, and giving effect to the
initial Advance no Default or Event of Default shall have occurred and
be continuing.
(e) All legal matters relating to the Loan Documents shall be
satisfactory to Sheppard, Mullin, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP, special
counsel to the Administrative Agent.
9.2 Any Advance. The obligation of each Lender to make any Advance (and the
obligation of the Issuing Lender to issue any Letter of Credit) is (except as
provided in Sections 2.4 and 2.10) subject to the following conditions precedent
(unless the Requisite Lenders, in their sole and absolute discretion, shall
agree otherwise):
(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 permitted by this Agreement or (ii) as
disclosed by Borrower and approved in writing by the Requisite
Lenders, the representations and warranties contained in Article 4
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(other than Sections 4.4, 4.6 (first and second sentence), 4.8, 4.10,
4.17 and 4.18) shall be true and correct on and as of the date of the
Advance as though made on that date;
(b) other than matters described in Schedule 4.10 or not required as
of the Closing Date to be therein described, or disclosed by Borrower
and approved in writing by the Requisite Lenders, there shall not be
any action, suit, proceeding or investigation pending as to which
Borrower or any of its Subsidiaries has been served or received notice
of or, to the best knowledge of Borrower, threatened against or
affecting Borrower 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(c), if
applicable) or Letter of Credit Application, as applicable; and
(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.
9.3 Any Letter of Credit. The obligation of the Issuing Lender to issue any
Letter of Credit, and the obligation of the other Lenders to participate
therein, are subject to the conditions precedent that (a) the conditions set
forth in Section 9.2 have been satisfied and (b) Borrower shall have certified
that, giving effect to the issuance of the requested Letter of Credit, the
Letter of Credit Usage shall not exceed any limitations set forth in this
Agreement.
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ARTICLE 10
DEFAULT AND REMEDIES UPON EVENT OF DEFAULT
------------------------------------------
10.1 Events of Default. The existence or occurrence of any one or more of
the following events, whatever the reason therefor and under any circumstances
whatsoever, shall constitute an Event of Default:
(a) Borrower fails to pay any principal on any of the Notes, or any
portion thereof, on the date when due; or
(b) Borrower fails to pay any interest on any of the Notes, or any
commitment fee or agency fee under Article 3, or any portion thereof,
within two Business Days after the date when due; or fail to pay any
other fee or amount payable to the Lenders under any Loan Document, or
any portion thereof, within two Business Days after demand therefor;
or
(c) Borrower fails to comply with any of the covenants contained in
Article 6 (other than Section 6.17); or
(d) Borrower fails to comply with Section 8.1(k) in any respect that
is materially adverse to the interests of the Lenders; or
(e) Borrower, any of its Subsidiaries or any other Party fails to
perform or observe any other covenant or agreement (not specified in
clause (a), (b), (c) or (d) above) contained in the Completion
Guaranty or any other Loan Document on its part to be performed or
observed within fifteen 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 Borrower or any of its
Subsidiaries made in any Loan Document, or in any certificate or other
writing delivered by Borrower or such Subsidiary pursuant to any Loan
Document, proves to have been incorrect when made or reaffirmed; or
(g) Borrower or any of its Subsidiaries (i) fails to pay the
principal, or any principal installment, of any present or future
Indebtedness of $5,000,000 or more, or any guaranty of present or
future Indebtedness or under any Swap Agreement, in each case of
$5,000,000 or more, on its part to be paid, when due (or within any
stated grace period), whether at the stated maturity, upon
acceleration, by reason of required prepayment or otherwise or (ii)
fails to perform or observe any other term, covenant or agreement on
its part to be performed or observed, or suffers any event of default
to occur, in connection with any present or future Indebtedness of
$5,000,000 or more, or of any guaranty of present or future
Indebtedness of $5,000,000 or more, if as a result of such failure or
sufferance any holder or holders thereof (or an agent or trustee on
its or their behalf) has the right to declare such Indebtedness due
before the date on which it otherwise would become due or the right to
require Borrower or any of its Subsidiaries to redeem or purchase, or
offer to redeem or purchase, all or any portion of such Indebtedness
(provided, that for the purpose of this clause (g), the amount of a
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Swap Agreement shall be the amount which is then payable by the
counterparty to close out the Swap Agreement); or
(h) Any event occurs which gives the holder or holders of any
Subordinated Obligation (or an agent or trustee on its or their
behalf) the right to declare such Subordinated Obligation due before
the date on which it otherwise would become due, or the right to
require the issuer thereof to redeem or purchase, or offer to redeem
or purchase, all or any portion of any Subordinated Obligation; or the
trustee for, or any holder of, a Subordinated Obligation breaches any
subordination provision applicable to such Subordinated Obligation; or
(i) Any Loan Document (other than a Secured Swap Agreement), at any
time after its execution and delivery and for any reason, other than
the agreement or action (or omission to act) of the Administrative
Agent or the Lenders or satisfaction in full of all the payment
Obligations, or the termination thereof pursuant to its express terms,
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 is materially adverse to the interests of the
Lenders; or any Collateral Document ceases (other than by action or
inaction of the Administrative Agent or any Lender) to create a valid
and effective Lien in any material Collateral covered thereby; or any
Party thereto denies in writing that it has any or further liability
or obligation under any (other than a Secured Swap Agreement) Loan
Document, or purports to revoke, terminate or rescind same; or
(j) A final judgment against Borrower or any of its Subsidiaries is
entered for the payment of money in excess of $5,000,000 (not covered
by insurance or for which an insurer has reserved its rights) 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) Borrower or any of its Subsidiaries institutes or consents to the
institution of any proceeding under a Debtor Relief Law relating to it
or to all or any material part of its Property, or 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
material part of its Property; or any receiver, trustee, custodian,
conservator, liquidator, rehabilitator or similar officer is appointed
without the application or consent of that Person and the appointment
continues undischarged or unstayed for sixty calendar days; or any
proceeding under a Debtor Relief Law relating to any such Person or to
all or any part of its Property is instituted without the consent of
that Person and continues undismissed or unstayed for sixty calendar
days; or
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(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) A final judgment is entered by a court of competent jurisdiction
that any Subordinated Obligation is not subordinated in accordance
with its terms to the Obligations; or
(n) Any Pension Plan maintained by Borrower or any of its ERISA
Affiliates is determined to have a material "accumulated funding
deficiency" as that term is defined in Section 302 of ERISA in excess
of an amount equal to 5% of the consolidated total assets of Borrower
and its Subsidiaries as of the most recently ended Fiscal Quarter; or
(o) The occurrence of a License Revocation that continues for three
consecutive calendar days; or
(p) The failure of the Completion Date to occur prior to March 31,
2005; or
(q) When the Completion Guaranty is in effect, Station (i) fails to
pay the principal, or any principal installment, of any present or
future Indebtedness of $10,000,000 or more, or any guaranty of present
or future Indebtedness or under any Swap Agreement, in each case of
$10,000,000 or more, on its part to be paid, when due (or within any
stated grace period), whether at the stated maturity, upon
acceleration, by reason of required prepayment or otherwise or (ii)
fails to perform or observe any other term, covenant or agreement on
its part to be performed or observed, or suffers any event of default
to occur, in connection with any present or future Indebtedness of
$10,000,000 or more, or of any guaranty of present or future
Indebtedness of $10,000,000 or more, if as a result of such failure or
sufferance any holder or holders thereof (or an agent or trustee on
its or their behalf) has the right to declare such Indebtedness due
before the date on which it otherwise would become due or the right to
require Station to redeem or purchase, or offer to redeem or purchase,
all or any portion of such Indebtedness (provided, that for the
purpose of this clause (q), the amount of a Swap Agreement shall be
the amount which is then payable by the counterparty to close out the
Swap Agreement); or
(r) When the Completion Guaranty is in effect, Station institutes or
consents to the institution of any proceeding under a Debtor Relief
Law relating to it or to all or any material part of its Property, or
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 material part of its Property; or any
receiver, trustee, custodian, conservator, liquidator, rehabilitator
or similar officer is appointed without the application or consent of
Station and the appointment continues undischarged or unstayed for
sixty calendar days; or any proceeding under a Debtor Relief Law
relating to Station or to all or any part of its Property is
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instituted without the consent of Station and continues undismissed or
unstayed for sixty calendar days; or
(s) the occurrence of any Change in Control.
10.2 Remedies Upon Event of Default. Without limiting any other rights or
remedies of the Administrative Agent or the Lenders provided for elsewhere in
this Agreement, or the other Loan Documents, or by applicable Law, or in equity,
or otherwise, subject to applicable Gaming Laws:
(a) Upon the occurrence, and during the continuance, of any Event of
Default other than an Event of Default described in Section 10.1(k) as
to the Borrower:
(1) the Commitments to make Advances and all other obligations of
the Administrative Agent or the Lenders and all rights of
Borrower and any other Parties under the Loan Documents shall be
suspended without notice to or demand upon Borrower, which are
expressly waived by Borrower, except that ------ all of the
Lenders or the Requisite Lenders (as the case may be, in
accordance with Section 12.2) 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 Commitments and such other obligations and
rights and make further Advances, which waiver or determination
shall apply equally to, and shall be binding upon, all the
Lenders;
(2) the Issuing Lender may, with the approval of the
Administrative Agent on behalf of the Requisite Lenders, demand
immediate payment by Borrower of an amount equal to the aggregate
amount of all outstanding Letters of Credit to be held by the
Issuing Lender in an interest bearing cash collateral account as
collateral under the Security Agreement; and
(3) the Requisite Lenders may request the Administrative Agent
to, and the Administrative Agent thereupon shall, terminate the
Commitments and/or declare all or any part of the unpaid
principal of all Notes, all interest accrued and unpaid thereon
and all other amounts payable under the Loan Documents to be
forthwith due and payable, whereupon the same shall become and be
forthwith due and payable, without protest, presentment, notice
of dishonor, demand or further notice of any kind, all of which
are expressly waived by Borrower.
(b) Upon the occurrence of any Event of Default described in Section
10.1(k) as to the Borrower:
(1) the Commitments to make Advances and all other obligations of
the Administrative Agent or the Lenders and all rights of
Borrower and any other Parties under the Loan Documents shall
terminate without notice to or demand upon Borrower, which are
expressly waived by Borrower, except that all of the Lenders may
waive the Event of Default or, without waiving, determine, upon
terms and conditions satisfactory to all the Lenders, to
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reinstate the Commitments and such other obligations and rights
and make further Advances, which determination shall apply
equally to, and shall be binding upon, all the Lenders;
(2) an amount equal to the aggregate amount of all outstanding
Letters of Credit shall be immediately due and payable to the
Issuing Lender without notice to or demand upon Borrower, which
are expressly waived by Borrower, to be held by the Issuing
Lender in an interest bearing cash collateral account as
collateral under the Security Agreement; and
(3) the unpaid principal of all Notes, all interest accrued and
unpaid thereon and all other amounts payable under the Loan
Documents shall be forthwith due and payable, without protest,
presentment, notice of dishonor, demand or further notice of any
kind, all of which are expressly waived by Borrower.
(c) Upon the occurrence of any Event of Default, the Lenders and the
Administrative Agent, or any of them, without notice to (except as
expressly provided for in any Loan Document) or demand upon Borrower,
which are expressly waived by Borrower (except as to notices expressly
provided for in any Loan Document), may proceed (but only with the
consent of the Requisite Lenders) to protect, exercise and enforce
their rights and remedies under the Loan Documents against Borrower
and any other Party and such other rights and remedies as are provided
by Law or equity.
(d) In addition to any other rights and remedies, if an Event of
Default occurs prior to the Completion Date, the Administrative Agent
and the Lenders shall have the right to (i) obtain the appointment of
a receiver to take possession of the Property subject to the Deed of
Trust (and Borrower agrees not to contest the appointment of such
receiver except in good faith) and (ii) take such steps as the
Administrative Agent and the Lenders reasonably deem necessary or
appropriate to complete construction of each then pending Project,
including making any changes to the related Construction Plan,
Construction Budget or Construction Timetable and/or terminating or
amending any of the Architect Contracts, Construction Contracts or any
other contract or arrangement related to that Project; provided,
however, that the Administrative Agent shall be responsible for any
breach of contract resulting from any such change, termination or
amendment. Any such action shall not be construed as an assumption of
responsibility by the Administrative Agent or the Lenders to complete
a Project, and such steps may be discontinued at any time. Any such
action shall not be construed to make the Administrative Agent or the
Lenders a partner or joint venturer with Borrower. All amounts
expended by the Administrative Agent and the Lenders for the
completion of the Projects shall be deemed additional Advances and
shall be secured by the Collateral Documents.
(e) The order and manner in which the Lenders' rights and remedies are
to be exercised shall be determined by the Requisite Lenders in their
sole discretion, and all payments received by the Administrative Agent
and the Lenders, or any of them, shall be applied first to the costs
and expenses (including reasonable attorneys' fees and disbursements
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and the reasonably allocated costs of attorneys employed by the
Administrative Agent or by any Lender) of the Administrative Agent and
of the Lenders, and thereafter paid pro rata to the Lenders in the
same proportions that the aggregate payment Obligations owed to each
Lender under the Loan Documents bear to the aggregate payment
Obligations owed under the Loan Documents to all the Lenders, without
priority or preference among the Lenders. Regardless of how each
Lender may treat payments for the purpose of its own accounting, for
the purpose of computing Borrower's payment Obligations hereunder and
under the Notes, payments of the proceeds from the exercise of the
Lenders' rights and remedies shall be applied first, to the costs and
expenses of the Administrative Agent and the Lenders, as set forth
above, second, to the payment of accrued and unpaid interest due under
any Loan Documents to and including the date of such application
(ratably, and without duplication, according to the accrued and unpaid
interest due the Lenders under each of the Loan Documents), and third,
to the payment of all other amounts (including principal and fees)
then owing to the Administrative Agent or the Lenders under the Loan
Documents. No application of payments of the proceeds from the
exercise of the Lenders' rights and remedies 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 for the collection or recovery of
all unpaid payment Obligations.
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ARTICLE 11
ADMINISTRATIVE AGENT
--------------------
11.1 Appointment and Authorization of Administrative Agent.
(a) Each Lender hereby irrevocably appoints, designates and authorizes
the Administrative Agent to take such action on its behalf under the
provisions of this Agreement and each other Loan Document and to
exercise such powers and perform such duties as are expressly
delegated to it by the terms of this Agreement or any other Loan
Document, together with such powers as are reasonably incidental
thereto. Notwithstanding any provision to the contrary contained
elsewhere herein or in any other Loan Document, the Administrative
Agent shall not have any duties or responsibilities, except those
expressly set forth herein, nor shall the Administrative Agent have or
be deemed to have any fiduciary relationship with any Lender or
participant, and no implied covenants, functions, responsibilities,
duties, obligations or liabilities shall be read into this Agreement
or any other Loan Document or otherwise exist against the
Administrative Agent. Without limiting the generality of the foregoing
sentence, the use of the term "agent" herein and in the other Loan
Documents with reference to the Administrative Agent is not intended
to connote any fiduciary or other implied (or express) obligations
arising under agency doctrine of any applicable Law. Instead, such
term is used merely as a matter of market custom, and is intended to
create or reflect only an administrative relationship between
independent contracting parties.
(b) The Issuing Lender shall act on behalf of the Lenders with respect
to any Letters of Credit issued by it and the documents associated
therewith, and the Issuing Lender shall have all of the benefits and
immunities (i) provided to the Administrative Agent in this Article 11
with respect to any acts taken or omissions suffered by the Issuing
Lender in connection with Letters of Credit issued by it or proposed
to be issued by it and the applications and agreements for letters of
credit pertaining to such Letters of Credit as fully as if the term
"Administrative Agent" as used in this Article 10 and in the
definition of "Agent-Related Person" included the Issuing Lender with
respect to such acts or omissions, and (ii) as additionally provided
herein with respect to the Issuing Lender.
11.2 Delegation of Duties. The Administrative Agent may execute any of its
duties under this Agreement or any other Loan Document by or through agents,
employees or attorneys-in-fact and shall be entitled to advice of counsel and
other consultants or experts concerning all matters pertaining to such duties.
The Administrative Agent shall not be responsible for the negligence or
misconduct of any agent or attorney-in-fact that it selects in the absence of
gross negligence or willful misconduct.
11.3 Liability of Administrative Agent. No Agent-Related Person shall (a)
be liable for any action taken or omitted to be taken by any of them under or in
connection with this Agreement or any other Loan Document or the transactions
contemplated hereby (except for its own gross negligence or willful misconduct
in connection with its duties expressly set forth herein), or (b) be responsible
in any manner to any Lender or participant for any recital, statement,
representation or warranty made by any Party or any officer thereof, contained
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herein or in any other Loan Document, or in any certificate, report, statement
or other document referred to or provided for in, or received by the
Administrative Agent under or in connection with, this Agreement or any other
Loan Document, or the validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement or any other Loan Document, or for any failure of
any Party or any other party to any Loan Document to perform its obligations
hereunder or thereunder. No Agent-Related Person shall be under any obligation
to any Lender or participant to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, this
Agreement or any other Loan Document, or to inspect the properties, books or
records of any Party or any Affiliate thereof.
11.4 Reliance by Administrative Agent.
(a) The Administrative Agent shall be entitled to rely, and shall be
fully protected in relying, upon any writing, communication,
signature, resolution, representation, notice, consent, certificate,
affidavit, letter, telegram, facsimile, telex or telephone message,
electronic mail message, statement or other document or conversation
believed by it to be genuine and correct and to have been signed, sent
or made by the proper Person or Persons, and upon advice and
statements of legal counsel (including counsel to any Party),
independent accountants and other experts selected by the
Administrative Agent. The Administrative Agent shall be fully
justified in failing or refusing to take any action under any Loan
Document unless it shall first receive such advice or concurrence of
the Requisite Lenders as it deems appropriate and, if it so requests,
it shall first be indemnified to its satisfaction by the Lenders
against any and all liability and expense which may be incurred by it
by reason of taking or continuing to take any such action. The
Administrative Agent shall in all cases be fully protected in acting,
or in refraining from acting, under this Agreement or any other Loan
Document in accordance with a request or consent of the Requisite
Lenders (or such greater number of Lenders as may be expressly
required hereby in any instance) and such request and any action taken
or failure to act pursuant thereto shall be binding upon all the
Lenders.
(b) For purposes of determining compliance with the conditions
specified in Section 8.1, each Lender that has signed this Agreement
shall be deemed to have consented to, approved or accepted or to be
satisfied with, each document or other matter required thereunder to
be consented to or approved by or acceptable or satisfactory to a
Lender unless the Administrative Agent shall have received notice from
such Lender prior to the proposed Closing Date specifying its
objection thereto.
11.5 Notice of Default. The Administrative Agent shall not be deemed to
have knowledge or notice of the occurrence of any Default, except with respect
to defaults in the payment of principal, interest and fees required to be paid
to the Administrative Agent for the account of the Lenders, unless the
Administrative Agent shall have received written notice from a Lender or the
Borrower referring to this Agreement, describing such Default and stating that
such notice is a "notice of default." The Administrative Agent will notify the
Lenders of its receipt of any such notice. The Administrative Agent shall take
such action with respect to such Default as may be directed by the Requisite
Lenders in accordance with Article 9; provided, however, that unless and until
the Administrative Agent has received any such direction, the Administrative
Agent may (but shall not be obligated to) take such action, or refrain from
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taking such action, with respect to such Default as it shall deem advisable or
in the best interest of the Lenders.
11.6 Credit Decision; Disclosure of Information by Administrative Agent.
Each Lender acknowledges that no Agent-Related Person has made any
representation or warranty to it, and that no act by the Administrative Agent
hereafter taken, including any consent to and acceptance of any assignment or
review of the affairs of any Party or any Affiliate thereof, shall be deemed to
constitute any representation or warranty by any Agent-Related Person to any
Lender as to any matter, including whether Agent-Related Persons have disclosed
material information in their possession. Each Lender represents to the
Administrative Agent that it has, independently and without reliance upon any
Agent-Related Person and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the
business, prospects, operations, property, financial and other condition and
creditworthiness of the Parties and their respective Subsidiaries, and all
applicable bank or other regulatory Laws relating to the transactions
contemplated hereby, and made its own decision to enter into this Agreement and
to extend credit to the Borrower and the other Parties hereunder. Each Lender
also represents that it will, independently and without reliance upon any
Agent-Related Person and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under this Agreement and
the other Loan Documents, and to make such investigations as it deems necessary
to inform itself as to the business, prospects, operations, property, financial
and other condition and creditworthiness of the Borrower and the other Parties.
Except for notices, reports and other documents expressly required to be
furnished to the Lenders by the Administrative Agent herein, the Administrative
Agent shall not have any duty or responsibility to provide any Lender with any
credit or other information concerning the business, prospects, operations,
property, financial and other condition or creditworthiness of any of the
Parties or any of their respective Affiliates which may come into the possession
of any Agent-Related Person.
11.7 Indemnification of Administrative Agent. Whether or not the
transactions contemplated hereby are consummated, the Lenders shall indemnify
upon demand each Agent-Related Person (to the extent not reimbursed by or on
behalf of any Party and without limiting the obligation of any Party to do so),
pro rata, and hold harmless each Agent-Related Person from and against any and
all Indemnified Liabilities incurred by it; provided, however, that no Lender
shall be liable for the payment to any Agent-Related Person of any portion of
such Indemnified Liabilities to the extent determined in a final, nonappealable
judgment by a court of competent jurisdiction to have resulted from such
Agent-Related Person's own gross negligence or willful misconduct; provided,
however, that no action taken in accordance with the directions of the Requisite
Lenders shall be deemed to constitute gross negligence or willful misconduct for
purposes of this Section. Without limitation of the foregoing, each Lender shall
reimburse the Administrative Agent upon demand for its ratable share of any
costs or out-of-pocket expenses (including Attorney Costs) incurred by the
Administrative Agent in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in respect of
rights or responsibilities under, this Agreement, any other Loan Document, or
any document contemplated by or referred to herein, to the extent that the
Administrative Agent is not reimbursed for such expenses by or on behalf of the
Borrower. The undertaking in this Section shall survive termination of the
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Commitment, the payment of all other Obligations and the resignation of the
Administrative Agent.
11.8 Administrative Agent in its Individual Capacity. Bank of America and
its Affiliates may make loans to, issue letters of credit for the account of,
accept deposits from, acquire equity interests in and generally engage in any
kind of banking, trust, financial advisory, underwriting or other business with
each of the Parties and their respective Affiliates as though Bank of America
were not the Administrative Agent or the Issuing Lender hereunder and without
notice to or consent of the Lenders. The Lenders acknowledge that, pursuant to
such activities, Bank of America or its Affiliates may receive information
regarding any Party or its Affiliates (including information that may be subject
to confidentiality obligations in favor of such Party or such Affiliate) and
acknowledge that the Administrative Agent shall be under no obligation to
provide such information to them. With respect to its Loans, Bank of America
shall have the same rights and powers under this Agreement as any other Lender
and may exercise such rights and powers as though it were not the Administrative
Agent or the Issuing Lender, and the terms "Lender" and "Lenders" include Bank
of America in its individual capacity.
11.9 Successor Administrative Agent. The Administrative Agent may resign as
Administrative Agent upon 30 days' notice to the Lenders; provided that any such
resignation by Bank of America shall also constitute its resignation as Issuing
Lender and Swing Line Lender. If the Administrative Agent resigns 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 consented to by the Borrower at all times other than during the
existence of an Event of Default (which consent of the Borrower shall not be
unreasonably withheld or delayed). If no successor administrative agent is
appointed prior to the effective date of the resignation of the Administrative
Agent, the Administrative Agent may appoint, after consulting with the Lenders
and the Borrower, a successor administrative agent from among the Lenders. Upon
the acceptance of its appointment as successor administrative agent hereunder,
the Person acting as such successor administrative agent shall succeed to all
the rights, powers and duties of the retiring Administrative Agent, Issuing
Lender and Swing Line Lender and the respective terms "Administrative Agent,"
"L/C Issue" and "Swing Line Lender" shall mean such successor administrative
agent, Letter of Credit issuer and swing line Lender, and the retiring
Administrative Agent's appointment, powers and duties as Administrative Agent
shall be terminated and the retiring Issuing Lender's and Swing Line Lender's
rights, powers and duties as such shall be terminated, without any other or
further act or deed on the part of such retiring Issuing Lender or Swing Line
Lender or any other Lender, other than the obligation of the successor Issuing
Lender to issue letters of credit in substitution for the Letters of Credit, if
any, outstanding at the time of such succession or to make other arrangements
satisfactory to the retiring Issuing Lender to effectively assume the
obligations of the retiring Issuing Lender with respect to such Letters of
Credit. After any retiring Administrative Agent's resignation hereunder as
Administrative Agent, the provisions of this Article 10 and Sections 11.3 and
11.11 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 30 days following a retiring Administrative Agent's notice of
resignation, the retiring Administrative Agent's resignation shall nevertheless
thereupon become effective and the Lenders shall perform all of the duties of
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the Administrative Agent hereunder until such time, if any, as the Requisite
Lenders appoint a successor agent as provided for above.
11.10 Administrative Agent May File Proofs of Claim. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to any Party, the Administrative Agent (irrespective of
whether the principal of any Loan or Letter of Usage shall then be due and
payable as herein expressed or by declaration or otherwise and irrespective of
whether the Administrative Agent shall have made any demand on the Borrower)
shall be entitled and empowered, by intervention in such proceeding or otherwise
(a) to file and prove a claim for the whole amount of the principal
and interest owing and unpaid in respect of the Loans, the Letter of
Credit Usage and all other Obligations that are owing and unpaid and
to file such other documents as may be necessary or advisable in order
to have the claims of the Lenders and the Administrative Agent
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Lenders and the Administrative Agent
and their respective agents and counsel and all other amounts due the
Lenders and the Administrative Agent under Article 3 and Section 11.3)
allowed in such judicial proceeding; and
(b) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Lender to make such payments to the Administrative Agent and, in the event
that the Administrative Agent shall consent to the making of such payments
directly to the Lenders, to pay to the Administrative Agent any amount due for
the reasonable compensation, expenses, disbursements and advances of the
Administrative Agent and its agents and counsel, and any other amounts due the
Administrative Agent under Article 3 and Section 11.3. Nothing contained herein
shall be deemed to authorize the Administrative Agent to authorize or consent to
or accept or adopt on behalf of any Lender any plan of reorganization,
arrangement, adjustment or composition affecting the Obligations or the rights
of any Lender or to authorize the Administrative Agent to vote in respect of the
claim of any Lender in any such proceeding.
11.11 Other Agents; Arrangers and Managers. None of the Lenders or other
Persons identified on the facing page or signature pages of this Agreement as a
"syndication agent," "documentation agent," "co-agent," "book manager," "lead
manager," "arranger," "lead arranger" or "co-arranger" shall have any right,
power, obligation, liability, responsibility or duty under this Agreement other
than, in the case of such Lenders, those applicable to all Lenders as such.
Without limiting the foregoing, none of the Lenders or other Persons so
identified shall have or be deemed to have any fiduciary relationship with any
Lender. Each Lender acknowledges that it has not relied, and will not rely, on
any of the Lenders or other Persons so identified in deciding to enter into this
Agreement or in taking or not taking action hereunder.
11.12 Proportionate Interest in any Collateral. The Administrative Agent,
on behalf of all the Lenders, shall hold in accordance with the Loan Documents
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all items of any collateral or interests therein 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
reasonable attorneys' fees and disbursements and other professional services and
the reasonably allocated costs of attorneys employed by the Administrative Agent
or a Lender) and subject to the application of payments in accordance with
Section 10.2(d), each Lender shall have an interest in the Lenders' interest in
the Collateral or interests therein in the same proportions that the aggregate
Obligations owed such Lender under the Loan Documents bear to the aggregate
Obligations owed under the Loan Documents to all the Lenders, without priority
or preference among the Lenders, except that Obligations owed to any Lender (or
Affiliate of a Lender) under a Secured Swap Agreement shall be secured on a pari
passu basis with all other Obligations up to an amount equal to the
Administrative Agent's then customary credit risk factor for Swap Agreements
times the notional amount of Indebtedness covered by such Secured Swap Agreement
and shall be secured on a subordinate basis as to amounts in excess of such
amount.
11.13 Foreclosure on Collateral. In the event of foreclosure or enforcement
of the Lien created by any of the Collateral Documents, title to the Collateral
covered thereby shall be taken and held by the Administrative Agent (or an
Affiliate or designee thereof) pro rata for the benefit of the Lenders in
accordance with the Obligations outstanding to each of them and shall be
administered in accordance with the standard form of collateral holding
participation agreement used by the Administrative Agent in comparable
syndicated credit facilities, which form shall be reasonably acceptable to the
Requisite Lenders.
11.14 Subordination, Non Disturbance and Attornment Agreements. The
Administrative Agent is hereby authorized (but shall not be obligated to), to
execute and deliver Subordination, Non Disturbance and Attornment Agreements
substantially in the form of Exhibit F hereto with Borrower, any relevant
Subsidiaries thereof and their commercial tenants without prior notice to or
consent by the Lenders, and may following not less than two Business Day's
notice to each Lender with a copy of the proposed agreement (unless the
Requisite Lenders object thereto during such period), enter into Subordination,
Non Disturbance and Attornment Agreements and other related agreements which are
in a form acceptable to the Administrative Agent.
11.15 No Obligations of Borrower. Nothing contained in this Article 11
shall be deemed to impose upon Borrower any obligation in respect of the due and
punctual performance by the Administrative Agent of its obligations to the
Lenders under any provision of this Agreement, and Borrower shall have no
liability to the Administrative Agent or any of the Lenders in respect of any
failure by the Administrative Agent or any Lender to perform any of its
obligations to the Administrative Agent or the Lenders under this Agreement.
Without limiting the generality of the foregoing, where any provision of this
Agreement relating to the payment of any amounts due and owing under the Loan
Documents provides that such payments shall be made by Borrower to the
Administrative Agent for the account of the Lenders, Borrower's obligations to
the Lenders in respect of such payments shall be deemed to be satisfied upon the
making of such payments to the Administrative Agent in the manner provided by
this Agreement.
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ARTICLE 12
MISCELLANEOUS
-------------
12.1 Cumulative Remedies; No Waiver. The rights, powers, privileges and
remedies of the Administrative Agent and the Lenders provided herein or in any
Note or other Loan Document are cumulative and not exclusive of any right,
power, privilege or remedy provided by Law or equity. No failure or delay on the
part of the Administrative Agent or any Lender in exercising any right, power,
privilege or remedy may be, or may be deemed to be, a waiver thereof; nor may
any single or partial exercise of any right, power, privilege or remedy preclude
any other or further exercise of the same or any other right, power, privilege
or remedy. The terms and conditions of Article 9 hereof are inserted for the
sole benefit of the Administrative Agent and the Lenders; the same may be waived
as provided in Section 12.2 in whole or in part, with or without terms or
conditions, in respect of any Loan without prejudicing the Administrative
Agent's or the Lenders' rights to assert them in whole or in part in respect of
any other Loan.
12.2 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 Borrower 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
Borrower or any of its Subsidiaries is a Party, signed by each such Party, and,
in the case of any amendment, modification or supplement to Article 11, 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
affected thereby, no amendment, modification, supplement, termination, waiver or
consent may be effective:
(a) To (i) change the principal of, or the amount of principal of, or
the amount of principal prepayments of, any Note without the consent
of the holder thereof, or to forgive or reduce the amount of any
reimbursement payments due with respect to any Letter of Credit
without the approval of the Issuing Lender and each Revolving Lender,
(ii) decrease the rate of interest payable on any Note without the
consent of the holder thereof, (iii) increase the amount or percentage
of the Pro Rata Share of any Lender or decrease the amount of any
commitment fee payable to any Lender, in each case without the consent
of that Lender, or (iv) decrease the amount of any other fee or amount
payable to any Lender under the Loan Documents without the consent of
that Lender, or (v) waive an Event of Default consisting of the
failure of Borrower to pay when due any principal, interest or any
commitment fee hereunder;
(b) To postpone any date fixed for any payment of principal of,
prepayment of principal of or any installment of interest on, any Note
(including the Swing Line Note), any amount payable to reimburse any
drawing under any Letter of Credit or any installment of any
commitment fee, or to extend the term of either of the Commitments
without the consent of the Lenders having a Pro Rata Share of the
relevant Commitment.
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(c) To release or amend the Completion Guaranty, any Subsidiary
Guaranty, or any material portion of the Collateral, except as
expressly provided for in any Loan Document; provided that (1) the
Administrative Agent shall be authorized to release the Completion
Guaranty at any time following December 1, 2005 upon receipt of a
written request by Members and Station requesting the release of the
Completion Guaranty together with a written certification executed by
a Senior Officer of Borrower certifying that (i) the Project is
substantially physically complete, (ii) there exists no material
dispute related to the construction of the Project and (iii) there is
no Default or Event of Default under this Agreement or any other Loan
Document, and (2) the Administrative Agent is authorized to release
the Lien created by the Collateral Documents on (i) assets secured by
Indebtedness permitted by Section 6.9(f), (ii) assets which are the
subject of a Disposition permitted by Section 6.2, and (iii) assets
the sale, transfer or other disposition of which is not a Disposition,
and shall do so upon request of Borrower subject to such reasonable
and customary requirements as the Administrative Agent may specify;
(d) To amend the provisions of the definition of "Quarterly Payment
Date," "Requisite Lenders," "Revolving Maturity Date," "Term Maturity
Date," or "Completion Date", or to amend any constituent definition in
a manner which results in a substantive change to any of the
definitions listed in this clause (d); or
(e) To amend or waive this Section 12.2, or Sections 6.4, 11.9 or
12.10; or
(f) 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 12.2 shall apply equally to, and shall be binding upon, all the
Lenders and the Administrative Agent. Notwithstanding anything to the contrary
herein, no Defaulting Lender shall have any right to approve or disapprove any
amendment, waiver or consent hereunder, except that the Pro Rata Share of the
Commitments of such Lender may not be increased or extended without the consent
of such Lender.
12.3 Attorney Costs, Expenses and Taxes.
(a) Borrower agrees (i) to pay or reimburse the Administrative Agent
for all costs and expenses incurred in connection with the
development, preparation, negotiation and execution of this Agreement
and the other Loan Documents and any amendment, waiver, consent or
other modification of the provisions hereof and thereof (whether or
not the transactions contemplated hereby or thereby are consummated),
and the consummation and administration of the transactions
contemplated hereby and thereby, including all reasonable Attorney
Costs, and (ii) to pay or reimburse the Administrative Agent and each
Lender for all costs and expenses incurred in connection with the
enforcement, attempted enforcement, or preservation of any rights or
remedies under this Agreement or the other Loan Documents (including
all such costs and expenses incurred during any "workout" or
restructuring in respect of the Obligations and during any legal
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proceeding, including any proceeding under any Debtor Relief Law),
including all Attorney Costs. The foregoing costs and expenses shall
include all search, filing, recording, title insurance and appraisal
charges and fees and taxes related thereto, and other out-of-pocket
expenses incurred by the Administrative Agent and the cost of
independent public accountants and other outside experts retained by
the Administrative Agent or any Lenders. All amounts due under this
Section 12.3 shall be payable within 5 Business Days after demand
therefor. The agreements in this Section shall survive the termination
of the Commitments and repayment of all other Obligations.
(b) Borrower shall pay any and all documentary and other taxes,
excluding (1) taxes imposed on or measured in whole or in part by
overall net income, gross income or gross receipts and franchise taxes
imposed on any Lender by (A) any jurisdiction (or political
subdivision thereof) in which it is organized or maintains its
principal office or LIBOR Lending Office or (B) any jurisdiction (or
political subdivision thereof) in which it is "doing business", (2)
any withholding taxes or other taxes based on gross income imposed by
the United States of America that are not attributable to any change
in any Law or the interpretation or administration of any Law by any
Governmental Agency and (3) any withholding tax or other taxes based
on gross income imposed by the United States of America for any period
with respect to which it has failed to provide Borrower with the
appropriate form or forms required by Section 12.21, to the extent
such forms are then required by applicable Laws, and all costs,
expenses, fees and charges payable or determined to be payable in
connection with the filing or recording of this Agreement, any other
Loan Document or any other instrument or writing to be delivered
hereunder or thereunder, or in connection with any transaction
pursuant hereto or thereto, and shall reimburse, hold harmless and
indemnify on the terms set forth in Section 12.11 the Lenders from and
against any and all loss, liability or legal or other expense with
respect to or resulting from any delay in paying or failure to pay any
such tax, cost, expense, fee or charge or that any of them may suffer
or incur by reason of the failure of any Party to perform any of its
Obligations. Any amount payable to the Administrative Agent or any
Lender under this Section shall bear interest from the second Business
Day following the date of demand for payment at the Default Rate.
12.4 Nature of Lenders' Obligations. The obligations of the Lenders
hereunder to make Loans and to fund participations in Letters of Credit and
Swing Line Loans are several and not joint. The failure of any Lender to make
any Loan or to fund any such participation on any date required hereunder shall
not relieve any other Lender of its corresponding obligation to do so on such
date, and no Lender shall be responsible for the failure of any other Lender to
so make its Loan or purchase its participation. Nothing contained in this
Agreement or any other Loan Document and no action taken by the Administrative
Agent or the Lenders or any of them pursuant hereto or thereto may, or may be
deemed to, make the Lenders a partnership, an association, a joint venture or
other entity, either among themselves or with Borrower or any Affiliate of
Borrower. Each Lender's obligation to make any Advance pursuant hereto is
several and not joint or joint and several, and in the case of the initial
Advance only is conditioned upon the performance by all other Lenders of their
obligations to make initial Advances. A default by any Lender will not increase
the Pro Rata Share of the Commitments attributable to any other Lender. Any
Lender not in default may, if it desires, assume in such proportion as the
nondefaulting Lenders agree the obligations of any Lender in default, but is not
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obligated to do so. The Administrative Agent agrees that it will use its best
efforts either to induce the other Lenders to assume the obligations of a Lender
in default or to obtain another Lender, reasonably satisfactory to Borrower, to
replace such a Lender in default.
12.5 Survival of Representations and Warranties. All representations and
warranties made hereunder and in any other Loan Document or other document
delivered pursuant hereto or thereto or in connection herewith or therewith
shall survive the execution and delivery hereof and thereof. Such
representations and warranties have been or will be relied upon by the
Administrative Agent and each Lender, regardless of any investigation made by
the Administrative Agent or any Lender or on their behalf and notwithstanding
that the Administrative Agent or any Lender may have had notice or knowledge of
any Default at the time of any Letter of Credit, and shall continue in full
force and effect as long as any Loan or any other Obligation hereunder shall
remain unpaid or unsatisfied or any Letter of Credit shall remain outstanding.
12.6 Notices.
(a) General. Unless otherwise expressly provided herein, all notices
and other communications provided for hereunder shall be in writing
(including by facsimile transmission). All such written notices shall
be mailed, faxed or delivered to the applicable address, facsimile
number or (subject to subsection (c) below) electronic mail address,
and all notices and other communications expressly permitted hereunder
to be given by telephone shall be made to the applicable telephone
number, as follows:
(1) if to the Borrower, the Administrative Agent, the Issuing
Lender or the Swing Line Lender, to the address, facsimile
number, electronic mail address or telephone number specified for
such Person on Schedule 12.6 or to such other address, facsimile
number, electronic mail address or telephone number as shall be
designated by such party in a notice to the other parties; and
(2) if to any other Lender, to the address, facsimile number,
electronic mail address or telephone number specified in its
Administrative Questionnaire or to such other address, facsimile
number, electronic mail address or telephone number as shall be
designated by such party in a notice to the Borrower, the
Administrative Agent, the Issuing Lender and the Swing Line
Lender.
All such notices and other communications shall be deemed to be given or made
upon the earlier to occur of (i) actual receipt by the relevant party hereto and
(ii) (A) if delivered by hand or by courier, when signed for by or on behalf of
the relevant party hereto; (B) if delivered by mail, 4 Business Days after
deposit in the mails, postage prepaid; (C) if delivered by facsimile, when sent
and receipt has been confirmed by telephone; and (D) if delivered by electronic
mail (which form of delivery is subject to the provisions of subsection (c)
below), when delivered; provided, however, that notices and other communications
to the Administrative Agent, the Issuing Lender and the Swing Line Lender
pursuant to Article 2 shall not be effective until actually received by such
Person. In no event shall a voicemail message be effective as a notice,
communication or confirmation hereunder.
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(b) Effectiveness of Facsimile Documents and Signatures. Loan
Documents may be transmitted or signed by facsimile. The effectiveness
of any such documents and signatures shall, subject to applicable Law,
have the same force and effect as manually-signed originals and shall
be binding on all Parties, the Administrative Agent and the Lenders.
The Administrative Agent may also require that any such documents and
signatures be confirmed by a manually-signed original thereof;
provided, however, that the failure to request or deliver the same
shall not limit the effectiveness of any facsimile document or
signature.
(c) Limited Use of Electronic Mail. Electronic mail and Internet and
intranet websites may be used only to distribute routine
communications, such as financial statements and other information as
provided in Section 8.1, and to distribute Loan Documents for
execution by the parties thereto, and may not be used for any other
purpose.
(d) Reliance by Administrative Agent and Lenders. The Administrative
Agent and the Lenders shall be entitled to rely and act upon any
notices (including telephonic requests for Loans and Swing Line Loans)
that, in the reasonable judgment of the Administrative Agent and the
Lenders, are purportedly given by or on behalf of the Borrower even if
(i) such notices were not made in a manner specified herein, were
incomplete or were not preceded or followed by any other form of
notice specified herein, or (ii) the terms thereof, as understood by
the recipient, varied from any confirmation thereof. The Borrower
shall indemnify each Agent-Related Person and each Lender from all
losses, costs, expenses and liabilities resulting from the reliance by
such Person on each notice that, in the reasonable judgment of such
Agent-Related Person, is purportedly given by or on behalf of the
Borrower. All telephonic notices to and other communications with the
Administrative Agent may be recorded by the Administrative Agent, and
each of the parties hereto hereby consents to such recording.
12.7 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.
12.8 Binding Effect; Assignment.
(a) This Agreement and the other Loan Documents to which Borrower is a
Party will be binding upon and inure to the benefit of Borrower, the
Administrative Agent, each of the Lenders, and their respective
successors and assigns, except that Borrower may not assign their
rights hereunder or thereunder or any interest herein or therein
without the prior written consent of all the Lenders. Any attempted
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assignment by Borrower in contravention of this Section 12.8(a) shall
be null and void. 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). Notwithstanding any other limitation set forth in this
Section, any Lender may assign or pledge a security interest in all or
any portion of its rights under this Agreement to secure obligations
of such Lender, (i) to any Federal Reserve Bank, to secure obligations
to any Federal Reserve Bank pursuant to Regulation A of the Board of
Governors of the Federal Reserve System and any Operating Circular
issued by such Federal Reserve Bank and (ii) in the case of any Lender
that is fund that invests in bank loans, to any holders of obligations
owed, or securities issued, by such Lender including to any trustee
for, or any other representative of, such holders, provided that no
such pledge or assignment shall release the assigning Lender from any
of its obligations hereunder or substitute any such pledgee or
assignee for such Lender as a party hereto.
(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; provided that (i) such Eligible Assignee, if not then a
Lender, an Affiliate of the assigning Lender, or a Related Fund shall
be approved by each of the Administrative Agent and (if no Event of
Default then exists) Borrower (neither of which approvals shall be
unreasonably withheld or delayed), (ii) such assignment shall be
evidenced by an Assignment Agreement, a copy of which shall be
furnished to the Administrative Agent as hereinbelow provided, (iii)
except in the case of an assignment to an Affiliate of the assigning
Lender, to another Lender or to a Related Fund of a Lender, or of the
entire remaining Commitments of the assigning Lender, the assignment
shall not assign a Pro Rata Share of the Commitments that is
equivalent to less than $1,000,000, 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. Borrower agrees that it
shall execute and deliver (against delivery by the assigning Lender to
Borrower of its relevant Notes) to such assignee Lender, Notes
evidencing that assignee Lender's Pro Rata Share, and to the assigning
Lender, a Note or Notes evidencing the remaining balance Pro Rata
Share of the Commitments, if any, 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
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condition of Borrower or the performance by Borrower of the
Obligations; (iii) it has received a copy of this Agreement, together
with copies of the most recent financial statements delivered pursuant
to Section 8.1 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 the Administrative Agent or any Lender and based
on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not
taking action under this Agreement; (v) it appoints and authorizes the
Administrative Agent to take such action and to exercise such powers
under this Agreement as are delegated to the Administrative Agent by
this Agreement; and (vi) it will perform in accordance with their
terms all of the obligations which by the terms of this Agreement are
required to be performed by it as a Lender.
(d) The Administrative Agent shall maintain at the Administrative
Agent's Office a copy of each Assignment Agreement delivered to it and
a register (the "Register") of the names and address of each of the
Lenders and the Pro Rata Share held by each Lender, giving effect to
each Assignment Agreement. The Register shall be available during
normal business hours for inspection by Borrower or any Lender upon
reasonable prior notice to the Administrative Agent. After receipt of
a completed Assignment Agreement executed by any Lender and an
Eligible Assignee, and receipt of an assignment fee of $3,500 from
such Lender or Eligible Assignee, the Administrative Agent shall,
promptly following the effective date thereof, notify the Borrower of
the effectiveness thereof, provided that only one such fee shall be
payable with respect to two or more simultaneous assignments by or to
any Lender to or from its Related Funds. Borrower, the Administrative
Agent and the Lenders shall deem and treat the Persons listed as
Lenders in the Register as the holders and owners of the Pro Rata
Share listed therein for all purposes hereof, and no assignment or
transfer of any such Pro Rata Share shall be effective, in each case
unless and until an Assignment Agreement effecting the assignment or
transfer thereof shall have been accepted by the Administrative Agent
and recorded in the Register as provided above. Prior to such
recordation, all amounts owed with respect to the applicable Pro Rata
Share shall be owed to the Lender listed in the Register as the owner
thereof, and any request, authority or consent of any Person who, at
the time of making such request or giving such authority or consent,
is listed in the Register as a Lender shall be conclusive and binding
on any subsequent holder, assignee or transferee of the corresponding
Pro Rata Share.
(e) Each Lender may from time to time grant participations to one or
more Lenders or other financial institutions (including another
Lender) in a portion of its Pro Rata Share; provided, however, that
(i) such Lender notifies the Administrative Agent and Borrower in
writing at least five Business Days in advance of granting such a
participation, which notice shall identify the proposed participant,
(ii) the proposed participant (if not then a Lender or an Affiliate of
the granting Lender) shall be approved by each of the Administrative
Agent and (if no Event of Default then exists) Borrower (neither of
which approvals shall be unreasonably withheld or delayed), (iii) such
Lender's obligations under this Agreement shall remain unchanged, (iv)
such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations, (v) the participating
Lenders or other financial institutions shall not be a Lender
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hereunder for any purpose except, if the participation agreement so
provides, for the purposes of Sections 3.7, 3.8, 12.3, 12.11 and 12.22
but only to the extent that the cost of such benefits to Borrower does
not exceed the cost which Borrower would have incurred in respect of
such Lender absent the participation, (vi) Borrower, the
Administrative Agent and the other Lenders shall continue to deal
solely and directly with such Lender in connection with such Lender's
rights and obligations under this Agreement, (vii) the participation
interest shall be expressed as a percentage of the granting Lender's
Pro Rata Share as it then exists and shall not restrict an increase in
the Commitments, or in the granting Lender's Pro Rata Share, so long
as the amount of the participation interest is not affected thereby
and (viii) the consent of the holder of such participation interest
shall not be required for amendments or waivers of provisions of the
Loan Documents other than those which (A) extend any Quarterly Payment
Date, the Term Maturity Date, the Revolving Maturity Date or any other
date upon which any payment of money is due to the Lenders, (B) reduce
the rate of interest on the Notes, any fee or any other monetary
amount payable to the Lenders, (C) reduce the amount of any
installment of principal due under the Notes in which such participant
has an interest, or (D) release the Completion Guaranty or any
material portion of the Collateral (except as otherwise expressly
provided for in any Loan Document).
(f) Notwithstanding anything in this Section 12.8 to the contrary, the
rights of the Lenders to make assignments of, and grant participations
in, their Pro Rata Shares of the Commitments shall be subject to the
approval of any Gaming Board, to the extent required by applicable
Gaming Laws, and to compliance with applicable securities laws.
12.9 Right of Setoff. If an Event of Default has occurred and is
continuing, the Administrative Agent or any Lender (but in each case only with
the consent of the Requisite Lenders) may (a) exercise its rights under Article
9 of the Uniform Commercial Code and other applicable Laws and (b) to the extent
permitted by applicable Laws, apply any funds in any deposit account maintained
with it by Borrower and/or any Property of Borrower in its possession against
the Obligations.
12.10 Sharing of Setoffs. Each Lender severally agrees that if it, through
the exercise of any right of setoff, Lender's lien or counterclaim against
Borrower, or otherwise, receives payment of the Obligations held by it that is
ratably more than any other Lender, through any means, receives in payment of
the Obligations held by that Lender, then, subject to applicable Laws: (a) the
Lender exercising the right of setoff, banker's lien or counterclaim or
otherwise receiving such payment shall purchase, and shall be deemed to have
simultaneously purchased, from each of the other Lenders a participation in the
Obligations held by the other Lenders and shall pay to the other Lenders 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
in the same proportion that existed prior to the exercise of the right of
setoff, banker's lien or counterclaim or receipt of payment; and (b) such other
adjustments and purchases of participations shall be made from time to time as
shall be equitable to ensure that all of the Lenders share any payment obtained
in respect of the Obligations ratably in accordance with each Lender's share of
the Obligations immediately prior to, and without taking into account, the
payment; provided that, if all or any portion of a disproportionate payment
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obtained as a result of the exercise of the right of setoff, banker's lien,
counterclaim or otherwise is thereafter recovered from the purchasing Lender by
Borrower or any Person claiming through or succeeding to the rights of Borrower,
the purchase of a participation shall be rescinded and the purchase price
thereof shall be restored to the extent of the recovery, but without interest.
Each Lender that purchases a participation in the Obligations pursuant to this
Section 12.10 shall from and after the purchase have the right to give all
notices, requests, demands, directions and other communications under this
Agreement with respect to the portion of the Obligations purchased to the same
extent as though the purchasing Lender were the original owner of the
Obligations purchased. Borrower expressly 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.
12.11 Indemnification by Borrower. Whether or not the transactions
contemplated hereby are consummated, Borrower shall indemnify and hold harmless
each Agent-Related Person, each Lender and their respective Affiliates,
directors, officers, employees, counsel, agents and attorneys-in-fact
(collectively the "Indemnitees") from and against any and all liabilities,
obligations, losses, damages, penalties, claims, demands, actions, judgments,
suits, costs, expenses and disbursements (including Attorney Costs) of any kind
or nature whatsoever which may at any time be imposed on, incurred by or
asserted against any such Indemnitee in any way relating to or arising out of or
in connection with (a) the execution, delivery, enforcement, performance or
administration of any Loan Document or any other agreement, letter or instrument
delivered in connection with the transactions contemplated thereby or the
consummation of the transactions contemplated thereby, (b) any Commitment, Loan
or Letter of Credit or the use or proposed use of the proceeds therefrom
(including any refusal by the Issuing Lender to honor a demand for payment under
a Letter of Credit if the documents presented in connection with such demand do
not strictly comply with the terms of such Letter of Credit) or (c) any actual
or prospective claim, litigation, investigation or proceeding relating to any of
the foregoing, whether based on contract, tort or any other theory (including
any investigation of, preparation for, or defense of any pending or threatened
claim, investigation, litigation or proceeding) and regardless of whether any
Indemnitee is a party thereto (all the foregoing, collectively, the "Indemnified
Liabilities"); provided that such indemnity shall not, as to any Indemnitee, be
available to the extent that such liabilities, obligations, losses, damages,
penalties, claims, demands, actions, judgments, suits, costs, expenses or
disbursements are determined by a court of competent jurisdiction by final and
nonappealable judgment to have resulted from the gross negligence or willful
misconduct of such Indemnitee. No Indemnitee shall be liable for any damages
arising from the use by others of any information or other materials obtained
through IntraLinks or other similar information transmission systems in
connection with this Agreement, nor shall any Indemnitee have any liability for
any indirect or consequential damages relating to this Agreement or any other
Loan Document or arising out of its activities in connection herewith or
therewith (whether before or after the Closing Date). All amounts due under this
Section 12.11 shall be payable within 10 Business Days after demand therefor.
The agreements in this Section shall survive the resignation of the
Administrative Agent, the replacement of any Lender, the termination of the
Commitments and the repayment, satisfaction or discharge of all the other
Obligations.
12.12 Nonliability of the Lenders. Borrower acknowledges and agrees that:
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(a) Any inspections of any Property of Borrower made by or through the
Administrative Agent or the Lenders are for purposes of administration
of the Loan only and Borrower is not entitled to rely upon the same
(whether or not such inspections are at the expense of Borrower);
(b) By accepting or approving anything required to be observed,
performed, fulfilled or given to the Administrative Agent or the
Lenders pursuant to the Loan Documents, neither the Administrative
Agent nor the Lenders shall be deemed to have warranted or represented
the sufficiency, legality, effectiveness or legal effect of the same,
or of any term, provision or condition thereof, and such acceptance or
approval thereof shall not constitute a warranty or representation to
anyone with respect thereto by the Administrative Agent or the
Lenders;
(c) The relationship between Borrower and the Administrative Agent and
the Lenders is, and shall at all times remain, solely that of
borrowers and lenders; neither the Administrative Agent nor the
Lenders shall under any circumstance be construed to be partners or
joint venturers of Borrower or its Affiliates; neither the
Administrative Agent nor the Lenders shall under any circumstance be
deemed to be in a relationship of confidence or trust or a fiduciary
relationship with Borrower or its Affiliates, or to owe any fiduciary
duty to Borrower or its Affiliates; neither the Administrative Agent
nor the Lenders undertake or assume any responsibility or duty to
Borrower or its Affiliates to select, review, inspect, supervise, pass
judgment upon or inform Borrower or its Affiliates of any matter in
connection with their Property or the operations of Borrower or its
Affiliates; Borrower and its Affiliates shall rely entirely upon their
own judgment with respect to such matters; and any review, inspection,
supervision, exercise of judgment or supply of information undertaken
or assumed by the Administrative Agent or the Lenders in connection
with such matters is solely for the protection of the Administrative
Agent and the Lenders and neither Borrower nor any other Person is
entitled to rely thereon; and
(d) The Administrative Agent and the Lenders shall not be responsible
or liable to any Person for any loss, damage, liability or claim of
any kind relating to injury or death to Persons or damage to Property
caused by the actions, inaction or negligence of Borrower and/or its
Affiliates and Borrower hereby indemnifies and holds the
Administrative Agent and the Lenders harmless on the terms set forth
in Section 12.11 from any such loss, damage, liability or claim.
12.13 No Third Parties Benefited. This Agreement is made for the purpose of
defining and setting forth certain obligations, rights and duties of Borrower,
the Administrative Agent and the Lenders in connection with the Loans, and is
made for the sole benefit of Borrower, the Administrative Agent and the Lenders,
and the Administrative Agent's and the Lenders' successors and assigns. Except
as provided in Sections 12.8, 12.11, and 12.14 no other Person shall have any
rights of any nature hereunder or by reason hereof.
12.14 Confidentiality. Each of the Administrative Agent, the Lenders, the
Swing Line Lender and the Issuing Lender agrees to hold any confidential
information that it may receive from Borrower, Station, GCR Gaming, GV Ranch
Station, Inc. and their respective Affiliates pursuant to this Agreement in
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confidence, except for disclosure: (a) to other Lenders; (b) to legal counsel
and accountants for Borrower, Station, GCR Gaming, their Affiliates or any
Lender; (c) to other professional advisors to Borrower, Station, GCR Gaming,
their Affiliates or any Lender, provided that the recipient has accepted such
information subject to a confidentiality agreement with provisions substantially
similar to this Section 12.14; (d) to regulatory officials having jurisdiction
over that Lender; (e) to any Gaming Board having regulatory jurisdiction over
Borrower or its Subsidiaries or over Station, GCR Gaming or their respective
Affiliates, provided that each Lender agrees to notify the affected party of any
such disclosure unless prohibited by applicable Laws; (f) as required by Law or
legal process, provided that each Lender agrees to notify the affected party of
any such disclosures unless prohibited by applicable Laws, or in connection with
any legal proceeding to which that Lender and Borrower, GCR Gaming, Station or
their respective Affiliates are adverse parties; (g) to another financial
institution in connection with a disposition or proposed disposition to that
financial institution of all or part of that Lender's interests hereunder or a
participation interest in its Notes, provided that the recipient has accepted
such information subject to a confidentiality agreement with provisions
substantially similar to this Section 12.14; (h) to the National Association of
Insurance Commissioners; (i) to a nationally recognized credit rating agency
provided that each Lender agrees to notify the affected party of any such
disclosures, and (j) to any direct or indirect contractual counterparty in swap
agreements or such contractual counterparty's advisor (so long as such
contractual counterparty or professional advisor to such contractual
counterparty agrees to be bound by the provisions of this Section 12.14. For
purposes of the foregoing, "confidential information" shall mean any information
respecting a Person reasonably considered by that Person to be confidential,
other than (i) information previously filed with any Governmental Agency and
available to the public, (ii) information previously published in any public
medium from a source other than, directly or indirectly, that Lender, and (iii)
information previously disclosed by that Person to any other Person not
associated with the disclosing Person without a confidentiality agreement or
obligation substantially similar to this Section 12.14. Nothing in this Section
shall be construed to create or give rise to any fiduciary duty on the part of
the Administrative Agent or the Lenders to any Person. Notwithstanding anything
herein to the contrary, "confidential information" shall not include, and the
Administrative Agent and each Lender may disclose without limitation of any
kind, any information with respect to the "tax treatment" and "tax structure"
(in each case, within the meaning of Treasury Regulation Section 1.6011-4) of
the transactions contemplated hereby and all materials of any kind (including
opinions or other tax analyses) that are provided to the Administrative Agent or
such Lender relating to such tax treatment and tax structure; provided that with
respect to any document or similar item that in either case contains information
concerning the tax treatment or tax structure of the transaction as well as
other information, this sentence shall only apply to such portions of the
document or similar item that relate to the tax treatment or tax structure of
the Loans, Letters of Credit and transactions contemplated hereby. Nothing in
this Section shall be construed to create or give rise to any fiduciary duty on
the part of the Lenders to Borrower or any other Party.
12.15 Further Assurances. Borrower and its Subsidiaries shall, at their
expense and without expense to the Lenders or the Administrative Agent, do,
execute and deliver such further acts and documents as the Requisite Lenders or
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the Administrative Agent from time to time reasonably require for the assuring
and confirming unto the Lenders or the Administrative Agent of the rights hereby
created or intended now or hereafter so to be, or for carrying out the intention
or facilitating the performance of the terms of any Collateral Document.
12.16 Integration. This Agreement, together with the other Loan Documents
and the letter agreements referred to in Sections 3.2, 3.3 and 3.5, comprises
the complete and integrated agreement of the parties on the subject matter
hereof and supersedes all prior agreements, written or oral, on the subject
matter hereof. In the event of any conflict between the provisions of this
Agreement and those of any other Loan Document, the provisions of this Agreement
shall control and govern; provided that the inclusion of supplemental rights or
remedies in favor of the Administrative Agent or the Lenders in any other Loan
Document shall not be deemed a conflict with this Agreement. Each Loan Document
was drafted with the joint participation of the respective parties thereto and
shall be construed neither against nor in favor of any party, but rather in
accordance with the fair meaning thereof.
12.17 Governing Law. Except to the extent otherwise provided therein, each
Loan Document shall be governed by, and construed and enforced in accordance
with, the Laws of California applicable to contracts made and performed in
California.
12.18 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.
12.19 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.
12.20 Time of the Essence. Time is of the essence of the Loan Documents.
12.21 Foreign Lenders and Participants.
(a) Tax Forms.
(1) Each Lender that is not a "United States person" within the
meaning of Section 7701(a)(30) of the Code (a "Foreign Lender")
shall deliver to the Administrative Agent, prior to receipt of
any payment subject to withholding under the Code (or upon
accepting an assignment of an interest herein), two duly signed
completed copies of either IRS Form W-8BEN or any successor
thereto (relating to such Foreign Lender and entitling it to an
exemption from, or reduction of, withholding tax on all payments
to be made to such Foreign Lender by the Borrower pursuant to
this Agreement) or IRS Form W-8ECI or any successor thereto
(relating to all payments to be made to such Foreign Lender by
the Borrower pursuant to this Agreement) or such other evidence
satisfactory to the Borrower and the Administrative Agent that
such Foreign Lender is entitled to an exemption from, or
reduction of, U.S. withholding tax, including any exemption
pursuant to Section 881(c) of the Code. Thereafter and from time
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to time, each such Foreign Lender shall (A) promptly submit 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 the Borrower and the Administrative Agent of
any available exemption from or reduction of, United States
withholding taxes in respect of all payments to be made to such
Foreign Lender by the Borrower pursuant to this Agreement, (B)
promptly notify the Administrative Agent of any change in
circumstances which would modify or render invalid any claimed
exemption or reduction, and (C) 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 Lending Office) to avoid any requirement of
applicable Laws that the Borrower make any deduction or
withholding for taxes from amounts payable to such Foreign
Lender.
(2) Each Foreign Lender, to the extent it does not act or ceases
to act for its own account with respect to any portion of any
sums paid or payable to such Lender under any of the Loan
Documents (for example, in the case of a typical participation by
such Lender), shall deliver to the Administrative Agent on the
date when such Foreign Lender ceases to act for its own account
with respect to any portion of any such sums paid or payable, and
at such other times as may be necessary in the determination of
the Administrative Agent (in the reasonable exercise of its
discretion), (A) two duly signed completed copies of the forms or
statements required to be provided by such Lender as set forth
above, to establish the portion of any such sums paid or payable
with respect to which such Lender acts for its own account that
is not subject to U.S. withholding tax, and (B) two duly signed
completed copies of IRS Form W-8IMY (or any successor thereto),
together with any information such Lender chooses to transmit
with such form, and any other certificate or statement of
exemption required under the Code, to establish that such Lender
is not acting for its own account with respect to a portion of
any such sums payable to such Lender.
(3) The Borrower shall not be required to pay any additional
amount to any Foreign Lender under Section 3.12(d) (A) with
respect to any taxes required to be deducted or withheld on the
basis of the information, certificates or statements of exemption
such Lender transmits with an IRS Form W-8IMY pursuant to this
Section 12.21(a) or (B) if such Lender shall have failed to
satisfy the foregoing provisions of this Section 12.21(a);
provided that if such Lender shall have satisfied the requirement
of this Section 12.21(a) on the date such Lender became a Lender
or ceased to act for its own account with respect to any payment
under any of the Loan Documents, nothing in this Section 12.21(a)
shall relieve the Borrower of its obligation to pay any amounts
pursuant to Section 3.12(d) in the event that, as a result of any
change in any applicable law, treaty or governmental rule,
regulation or order, or any change in the interpretation,
administration or application thereof, such Lender is no longer
properly entitled to deliver forms, certificates or other
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evidence at a subsequent date establishing the fact that such
Lender or other Person for the account of which such Lender
receives any sums payable under any of the Loan Documents is not
subject to withholding or is subject to withholding at a reduced
rate.
(4) The Administrative Agent may, without reduction, withhold any
Taxes required to be deducted and withheld from any payment under
any of the Loan Documents with respect to which the Borrower is
not required to pay additional amounts under this Section
12.21(a).
(b) Form W-9. Upon the request of the Administrative Agent, each
Lender that is a "United States person" within the meaning of Section
7701(a)(30) of the Code shall deliver to the Administrative Agent two
duly signed completed copies of IRS Form W-9. If such Lender fails to
deliver such forms, then the Administrative Agent may withhold from
any interest payment to such Lender an amount equivalent to the
applicable back-up withholding tax imposed by the Code, without
reduction.
(c) Withholding. If any Governmental Agency asserts that the
Administrative Agent did not properly withhold or backup withhold, as
the case may be, any tax or other amount from payments made to or for
the account of any Lender, such Lender shall indemnify the
Administrative Agent therefor, including all penalties and interest,
any taxes imposed by any jurisdiction on the amounts payable to the
Administrative Agent under this Section, and costs and expenses
(including Attorney Costs) of the Administrative Agent. The obligation
of the Lenders under this Section shall survive the termination of the
Commitment, repayment of all other Obligations hereunder and the
resignation of the Administrative Agent.
12.22 Hazardous Material Indemnity. Borrower hereby agrees to indemnify,
hold harmless and defend (by counsel reasonably satisfactory to the
Administrative Agent) the Administrative Agent and each of the Lenders and their
respective directors, officers, employees, agents, successors and assigns from
and against any and all claims, losses, damages, liabilities, fines, penalties,
charges, administrative and judicial proceedings and orders, judgments, remedial
action requirements, enforcement actions of any kind, and all costs and expenses
incurred in connection therewith (including but not limited to reasonable
attorneys' fees and the reasonably allocated costs of attorneys employed by the
Administrative Agent or any Lender, and expenses to the extent that the defense
of any such action has not been assumed by Borrower), arising directly or
indirectly out of (i) the presence on, in, under or about any Real Property of
any Hazardous Materials, or any releases or discharges of any Hazardous
Materials on, under or from any Real Property and (ii) any activity carried on
or undertaken on or off any Real Property by Borrower or any of its predecessors
in title, whether prior to or during the term of this Agreement, and whether by
Borrower or any predecessor in title or any employees, agents, contractors or
subcontractors of Borrower or any predecessor in title, or any third persons at
any time occupying or present on any Real Property, in connection with the
handling, treatment, removal, storage, decontamination, clean up, transport or
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disposal of any Hazardous Materials at any time located or present on, in, under
or about any Real Property. The foregoing indemnity shall further apply to any
residual contamination on, in, under or about any Real Property, or affecting
any natural resources, and to any contamination of any Property or natural
resources arising in connection with the generation, use, handling, storage,
transport or disposal of any such Hazardous Materials, and irrespective of
whether any of such activities were or will be undertaken in accordance with
applicable Laws, but the foregoing indemnity shall not apply to Hazardous
Materials on any Real Property, the presence of which is caused by the
Administrative Agent or the Lenders. Borrower hereby acknowledges and agrees
that, notwithstanding any other provision of this Agreement or any of the other
Loan Documents to the contrary, the obligations of Borrower under this Section
(and under Sections 4.18 and 5.11) shall be unlimited corporate obligations of
Borrower and shall not be secured by any Lien on any Real Property. Any
obligation or liability of Borrower to any Indemnitee under this Section 12.22
shall survive the expiration or termination of this Agreement and the repayment
of all Loans and the payment and performance of all other Obligations owed to
the Lenders.
12.23 Gaming Compliance. The Administrative Agent and each of the Lenders
agree to cooperate with all Gaming Boards in connection with the administration
of their regulatory jurisdiction over Borrower and its Subsidiaries, including
the provision of such documents or other information as may be requested by any
such Gaming Board relating to Borrower or any of its Subsidiaries or to the Loan
Documents.
(a) This Agreement and all other Loan Documents are subject to the
Gaming Laws. The Administrative Agent and each of the Lenders
acknowledge and understand that (a) they are subject to being called
forward by the Gaming Boards, in their discretion, for licensing or a
finding of suitability as a lender to a gaming licensee; (b) all
rights, remedies and powers in or under this Agreement and the other
Loan Documents with respect to Collateral (including Member Pledged
Collateral) and the ownership and --------- operation of gaming
facilities may be exercised only to the extent that the exercise
thereof does not violate any applicable mandatory provisions of the
Gaming Laws; and (c) all provisions of this Agreement and the other
Loan Documents relative to Collateral (including Member Pledged
Collateral) and the ownership and operation of gaming facilities are
intended to be subject to the Gaming Laws and to be limited solely to
the extent necessary to not render the provisions of this Agreement
and the other Loan Documents invalid or unenforceable, in whole or in
part.
(b) Subject to the release of any Collateral as contemplated by any of
the Loan Documents, the Administrative Agent (or one or more agents or
sub agents of the Administrative Agent) shall, to the extent required
by applicable Gaming Laws, retain possession of all Member Pledged
Collateral delivered to it within the State of Nevada at a location
designated to the Gaming Boards.
12.24 Termination of Make Well Agreement and Greenspun Pledge Agreement. As
of the date hereof, the Amended and Restated Make Well Agreement dated December
22, 2003 by the Members and Station in favor of the Administrative Agent and the
Pledge Agreement dated December 22, 2003 by GCR Gaming Guarantor, LLC in favor
of the Administrative Agent shall be deemed terminated and of no further force
and effect. Further, any and all ancillary agreements, covenants, obligations
from GCR Gaming Guarantor, LLC or GCR Gaming Guarantor II, LLC in any way
related to the Commitments or the Loan Documents are terminated as of the date
hereof (if not earlier terminated pursuant to the terms thereof). In addition,
the Administrative Agent is authorized to execute and delivery any documentation
required to effectuate such termination.
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12.25 Payments Set Aside. To the extent that any payment by or on behalf of
the Borrower made to the Administrative Agent or any Lender, or the
Administrative Agent or any Lender exercises its right of set-off, and such
payment or the proceeds of such set-off or any part thereof is subsequently
invalidated, declared to be fraudulent or preferential, set aside or required
(including pursuant to any settlement entered into by the Administrative Agent
or such Lender in its discretion) to be repaid to a trustee, receiver or any
other party, in connection with any proceeding under any Debtor Relief Law or
otherwise, then (a) to the extent of such recovery, the obligation or part
thereof originally intended to be satisfied shall be revived and continued in
full force and effect as if such payment had not been made or such set-off had
not occurred, and (b) each Lender severally agrees to pay to the Administrative
Agent upon demand its applicable share of any amount so recovered from or repaid
by the Administrative Agent, plus interest thereon from the date of such demand
to the date such payment is made at a rate per annum equal to the Federal Funds
Rate from time to time in effect.
12.26 Waiver of Right to Trial by Jury. EACH PARTY TO THIS AGREEMENT HEREBY
EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR
CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH OR
RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES 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 FOUNDED IN CONTRACT OR
TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT
A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR
A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE
SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY TO THE FULLEST
EXTENT PERMITTED BY LAW.
12.27 Purported Oral Amendments. BORROWER EXPRESSLY ACKNOWLEDGES THAT THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS TO WHICH IT IS A PARTY MAY ONLY BE
AMENDED OR MODIFIED, OR THE PROVISIONS HEREOF OR THEREOF WAIVED OR SUPPLEMENTED,
BY AN INSTRUMENT IN WRITING THAT COMPLIES WITH SECTION 12.2. BORROWER AGREES
THAT IT WILL NOT RELY ON ANY COURSE OF DEALING, COURSE OF PERFORMANCE, OR ORAL
OR WRITTEN STATEMENTS BY ANY REPRESENTATIVE OF THE ADMINISTRATIVE AGENT OR ANY
LENDER THAT DOES NOT COMPLY WITH SECTION 12.2 TO EFFECT AN AMENDMENT,
MODIFICATION, WAIVER OR SUPPLEMENT TO THIS AGREEMENT OR THE OTHER LOAN
DOCUMENTS.
12.28 USA PATRIOT ACT. Each Lender that is subject to the Act (as
hereinafter defined) and the Administrative Agent (for itself and not on behalf
of any Lender) hereby notifies the Borrower that pursuant to the requirements of
the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)) (the "Act"), it is required to obtain, verify and record information that
identifies the Borrower, which information includes the name and address of the
Borrower and other information that will allow such Lender or the Administrative
Agent, as applicable, to identify the Borrower in accordance with the Act.
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[THIS SPACE INTENTIONALLY LEFT BLANK SIGNATURE PAGES TO FOLLOW]
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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.
GREEN VALLEY RANCH GAMING, LLC,
a Nevada limited liability company
By: GV Ranch Station, Inc.
Its: Manager and a Member
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: Senior Vice President and Treasurer
By: GCR Gaming, LLC
Its: Member
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Manager
Address for Borrower:
c/o Station Casinos, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Executive Vice President
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to
GCR Gaming, LLC
c/o ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
BANK OF AMERICA, N.A.,
as Administrative Agent
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Assistant Vice President
Address:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Assistant Vice President
Agency Management Officer II
GCIB Agency Management Central I
Bank of America, N.A.
Mail Code: ▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
214/209-4129 Direct
214/290-9432 FAX
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▇▇▇▇▇ FARGO BANK, N.A.,
as Co-Lead Arranger and Syndication Agent
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇, Vice President
Address:
▇▇▇▇▇ ▇. ▇▇▇▇, Vice President
▇▇▇▇▇ Fargo Bank, N.A.
Gaming Division, Fourth Floor
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
702/791-6351 direct
702/791-6365 FAX
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