CREDIT AGREEMENT
by and among
INTERNATIONAL GAME TECHNOLOGY,
THE LENDERS PARTY HERETO,
THE BANK OF NEW YORK,
as Issuing Bank and as Administrative Agent,
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
as Documentation Agent,
AND
CIBC INC.,
CREDIT LYONNAIS LOS ANGELES BRANCH,
DEUTSCHE BANK AG, NEW YORK BRANCH
and/or CAYMAN ISLANDS BRANCH,
KEYBANK NATIONAL ASSOCIATION
and
UNITED STATES NATIONAL BANK OF OREGON, as Co-Agents
with
BNY CAPITAL MARKETS, INC., as Arranger
________________
$250,000,000
________________
Dated as of May 22, 1997
CREDIT AGREEMENT, dated as of May 22, 1997, by and
among International Game Technology, a Nevada corporation
(the "Borrower"), The Bank of New York, as administrative
agent (the "Administrative Agent") and as the Issuing Bank,
▇▇▇▇▇ Fargo Bank, National Association, as Documentation
Agent, CIBC Inc., Credit Lyonnais Los Angeles Branch,
Deutsche Bank AG, New York Branch and/or Cayman Islands
Branch, KeyBank National Association and United States
National Bank of Oregon, as Co-Agents (in such capacity,
the "Co-Agents", each, a "Co-Agent"), and the lenders party
hereto (together with their respective assigns, the
"Lenders", each a "Lender").
1. DEFINITIONS AND PRINCIPLES OF CONSTRUCTION
1.1. Definitions
As used in this Agreement, terms defined in the
preamble have the meanings therein indicated, and the
following terms have the following meanings:
"ABR Advances": the Revolving Credit Loans (or
any portions thereof), at such time as they (or such
portions) are made and/or being maintained at a rate of
interest based upon the Alternate Base Rate.
"Account Designation Letter": a letter from the
Borrower to the Administrative Agent, duly completed and
signed by an Authorized Signatory of the Borrower and in
form and substance satisfactory to the Administrative
Agent, designating the account to which the Administrative
Agent shall forward the proceeds of any Loans made here
under.
"Accountants": Deloitte & Touche, LLP (or any
successor thereto), or such other firm of certified public
accountants of recognized national standing selected by the
Borrower and reasonably satisfactory to the Administrative
Agent.
"Acquisition": with respect to any Person, the
purchase or other acquisition by such Person, by any means
whatsoever (including through a merger, dividend or oth
erwise and whether in a single transaction or in a series
of related transactions), of (i) any Capital Stock of any
other Person if, immediately thereafter, such other Person
would be either a Subsidiary of such Person or otherwise
under the control of such Person, (ii) any Operating
Entity, or (iii) any Property of any other Person other
than in the ordinary course of business, provided, however,
that no acquisition of all or substantially all of the as
sets of such other Person shall be deemed to be in the ordi
nary course of business.
"Acquisition Cost": with respect to any
Acquisition by any Person, (a) the sum of (i) all cash
consideration paid or agreed to be paid by such Person to
make such Acquisition (inclusive of payments by such Person
of the seller's professional fees and expenses and other
out- of-pocket expenses in connection therewith), plus (ii)
the fair market value of all non-cash consideration paid by
such Person in connection therewith, plus (iii) an amount
equal to the principal or stated amount of all liabilities
assumed or incurred by such Person in connection therewith,
minus (b) cash, if any, acquired as part of such
Acquisition. The principal or stated amount of any
liability assumed or incurred by a Person in connection
with an Acquisition which is a contingent liability shall
be an amount equal to the stated amount of such liability
or, if the same is not stated, such contingent liability
shall be an amount equal to (i) if such contingent
liability is required to be reflected on a balance sheet of
such Person in accordance with GAAP, the amount required to
be so reflected and (ii) if such contingent liability is
not required to be reflected on a balance sheet of such
Person in accordance with GAAP, the maximum reasonably
anticipated amount payable by such Person in respect
thereof as determined by such Person in good faith.
"Additional Letters of Credit": as defined in Sec
tion 2.8(a).
"Advance": an ABR Advance or a Eurodollar
Advance, as the case may be.
"Affected Advance": as defined in Section 3.9.
"Affected Principal Amount": in the event that
(i) the Borrower shall fail for any reason to borrow a
Revolving Credit Loan in respect of which it shall have re
quested a Eurodollar Advance or convert an Advance to a
Eurodollar Advance after it shall have notified the
Administrative Agent of its intent to do so, an amount
equal to the principal amount of such Eurodollar Advance;
(ii) the Borrower shall fail for any reason to borrow a
Competitive Bid Loan in any instance in which it shall have
accepted one or more offers of Competitive Bid Loans, an
amount equal to the principal amount of such accepted
Competitive Bid Loan; (iii) a Eurodollar Advance or a
Competitive Bid Loan shall terminate for any reason prior
to the last day of the Interest Period applicable thereto,
an amount equal to the principal amount of such Eurodollar
Advance or Competitive Bid Loan, as the case may be; and
(iv) the Borrower shall prepay or repay all or any part of
the principal amount of a Eurodollar Advance or a
Competitive Bid Loan prior to the last day of the Interest
Period applicable thereto, an amount equal to the principal
amount of such Eurodollar Advance or Competitive Bid Loan,
as the case may be, so prepaid or repaid.
"Affiliate": as to any Person, any other Person
which, directly or indirectly, is in control of, is
controlled by, or is under common control with, such
Person. For purposes of this definition, control of a
Person shall mean the power, direct or indirect, (i) to
vote 10% or more of the securities or other interests
having ordinary voting power for the election of directors
or other managing Persons thereof or (ii) to direct or
cause the direction of the management and policies of such
Person, whether by contract or otherwise.
"Aggregate Available Commitment Amount": at any
time, the sum at such time of the Available Commitment
Amounts of all Lenders.
"Aggregate Commitment Amount": at any time, the
sum at such time of the Commitment Amounts of all Lenders.
"Aggregate Credit Exposure": at any time, the sum
at such time of (i) the outstanding principal balance of
the Revolving Credit Loans and Competitive Bid Loans of all
Lenders, plus (ii) an amount equal to the Letter of Credit
Exposure of all Lenders.
"Agreement": this Credit Agreement, as the same
may be amended, supplemented or otherwise modified from
time to time.
"Alternate Base Rate": on any date, a rate of
interest per annum equal to the higher of (i) the Federal
Funds Rate in effect on such date plus 1/2 of 1% or (ii)
the BNY Rate in effect on such date.
"Applicable Fee Percentage": with respect to the
Facility Fee and the Letter of Credit Commissions, at all
times during which the applicable Pricing Level set forth
below is in effect, the percentage set forth below next to
such Pricing Level and under the applicable column:
Applicable Fee Percentage
Letter of
Facility Credit
Pricing Level Fee Commissions
Pricing Level I 0.100% 0.200%
Pricing Level II 0.125% 0.200%
Pricing Level III 0.150% 0.250%
Pricing Level IV 0.180% 0.295%
Pricing Level V 0.225% 0.425%
Changes in the Applicable Fee Percentage resulting
from a change (i) in any rating established or deemed to
have been established by Standard & Poor's or Moody's
(other than as a result of a change in the rating system of
either Standard & Poor's or Moody's) shall be effective as
of the date on which such change is first announced
publicly by the rating agency making such change or (ii) in
the Leverage Ratio shall become effective upon the date of
the delivery by the Borrower to the Administrative Agent of
a Compliance Certificate pursuant to Section 7.1(c)
evidencing a change in the Leverage Ratio, provided,
however, that if the Borrower shall fail to deliver a
Compliance Certificate within 45 days after the end of each
of the first three fiscal quarters (or 90 days after the
end of the last fiscal quarter) as required by Section
7.1(c), the Leverage Ratio shall be deemed to be greater
than 2.50:1.00 from and including the 46th day (the 91st
day in the case of the last quarter) after the end of such
fiscal quarter to the date of the delivery by the Borrower
to the Administrative Agent of a Compliance Certificate
demonstrating that the Leverage Ratio is less than or equal
to 2.50:1.00. Notwithstanding the foregoing, no reduction
in the Applicable Fee Percentage shall be effective if any
Default or Event of Default shall have occurred and be
continuing.
"Applicable Lending Office": in respect of any
Lender, (i) in the case of such Lender's Domestic Advances,
its Domestic Lending Office and (ii) in the case of such
Lender's Eurodollar Advances, its Eurodollar Lending
Office.
"Applicable Margin": with respect to the unpaid
principal balance of Eurodollar Advances, in each case at
all times during which the applicable Pricing Level set
forth below is in effect, the percentage set forth below
next to such Pricing Level and under the applicable column,
subject to the provisos set forth below:
Pricing Level Applicable Margin
Pricing Level I 0.200%
Pricing Level II 0.200%
Pricing Level III 0.250%
Pricing Level IV 0.295%
Pricing Level V 0.425%.
Changes in the Applicable Margin resulting from a
change (i) in any rating established or deemed to have been
established by Standard & Poor's or Moody's (other than as
a result of a change in the rating system of either
Standard & Poor's or Moody's) shall be effective as of the
date on which such change is first announced publicly by
the rating agency making such change or (ii) in the
Leverage Ratio shall become effective upon the date of the
delivery by the Borrower to the Administrative Agent of a
Compliance Certificate pursuant to Section 7.1(c)
evidencing a change in the Leverage Ratio, provided,
however, that if the Borrower shall fail to deliver a
Compliance Certificate within 45 days after the end of each
of the first three fiscal quarters (or 90 days after the
end of the last fiscal quarter) as required by Section
7.1(c), the Leverage Ratio shall be deemed to be greater
than 2.50:1.00 from and including the 46th day (the 91st
day in the case of the last quarter) after the end of such
fiscal quarter to the date of the delivery by the Borrower
to the Administrative Agent of a Compliance Certificate
demonstrating that the Leverage Ratio is less than or equal
to 2.50:1.00. Notwithstanding the foregoing, no reduction
in the Applicable Margin shall be effective if any Default
or Event of Default shall have occurred and be continuing.
"Approved Bank": any commercial bank whose (or
whose parent company's) long-term certificates of deposit
are, at the time of any acquisition thereof by the Borrower
or any of its Subsidiaries, accorded one of the two highest
ratings by Standard & Poor's or Moody's.
"Assignment and Acceptance Agreement": an assign
ment and acceptance agreement executed by an assignor and
an assignee pursuant to which such assignor assigns to such
assignee all or any portion of such assignor's Notes and
Commitment, substantially in the form of Exhibit H.
"Authorized Signatory": as to (i) any Person
which is a corporation, the chairman of the board, the
president, any vice president, the chief financial officer
or any other officer (acceptable to the Administrative
Agent) thereof and (ii) any Person which is not a corpora
tion, the general partner or other managing Person
(acceptable to the Administrative Agent) thereof.
"Available Commitment Amount": as of any date and
with respect to any Lender, the amount set forth adjacent
to its name under the heading "Commitment Amount" in
Exhibit A on such date or, in the event that such Lender is
not listed in Exhibit A, the "Commitment Amount" which such
Lender shall have assumed from another Lender in accordance
with Section 11.7 on or prior to such date, as the same may
be adjusted from time to time pursuant to Sections 2.5 or
11.7, provided, however, during the Reserve Period, the
Available Commitment Amount shall be reduced by an amount
equal to the product of (i) the Senior Note Reserve Amount
and (ii) such Lender's Commitment Percentage.
"Benefitted Lender": as defined in Section
11.11(a).
"Bid Rate": as to any Competitive Bid made by a
Lender pursuant to Section 2.4(b), the fixed rate of inter
est offered by such Lender with respect to the Competitive
Bid Loan bid therefor.
"BNY": The Bank of New York.
"BNY Capital Markets": BNY Capital Markets, Inc.
"BNY Rate": a rate of interest per annum equal to
the rate of interest publicly announced in New York City by
BNY from time to time as its prime commercial lending rate,
such rate to be adjusted automatically (without notice) on
the effective date of any change in such publicly announced
rate.
"Borrowing Date": any Business Day on which (i)
the Lenders make Revolving Credit Loans in accordance with
a Borrowing Request, (ii) one or more Lenders make Competi
tive Bid Loans pursuant to Competitive Bids which have been
accepted by the Borrower or (iii) the Issuing Bank issues
an Additional Letter of Credit for the account of the
Borrower.
"Borrowing Request": a request for Revolving
Credit Loans in the form of Exhibit C-1.
"Business Day": for all purposes other than as
set forth in clause (ii) below, (i) any day other than a
Saturday, a Sunday or a day on which commercial banks
located in New York City or Nevada are authorized or
required by law or other governmental action to close, and
(ii) with respect to all notices and determinations in
connection with, and payments of principal and interest on,
Eurodollar Advances, any day which is a Business Day de
scribed in clause (i) above and which is also a day on
which eurodollar funding between banks may be carried on in
London, England.
"Capital Expenditures": with respect to any
Person for any period, the aggregate of all expenditures in
curred by such Person during such period which, in ac
cordance with GAAP, are required to be included in
"Additions to Property, Plant or Equipment" or similar
items reflected on the balance sheet of such Person, pro
vided, however, that "Capital Expenditures" shall not
include (i) Capital Lease Obligations, or (ii) expenditures
of proceeds of insurance settlements in respect of lost,
destroyed or damaged assets, equipment or other property to
the extent such expenditures are made to replace or repair
such lost, destroyed or damaged assets, equipment or other
property within six months of the receipt of such proceeds
or (iii) Acquisition Costs incurred in connection with
Permitted Acquisitions.
"Capital Lease Obligations": with respect to any
Person, obligations of such Person with respect to leases
which are required to be capitalized for financial re
porting purposes in accordance with GAAP.
"Capital Stock": as to any Person, all shares,
interests, partnership interests, limited liability company
interests, participations, rights in or other equivalents
(however designated) of such Person's equity (however
designated) and any rights, warrants or options
exchangeable for or convertible into such shares, inter
ests, participations, rights or other equity.
"Cash Collateral": as defined in Section 2.12.
"Cash Collateral Account": as defined in Section
2.12.
"Cash Equivalents": (i) securities issued or di
rectly and fully guaranteed or insured by the United States
of America or any agency or instrumentality thereof (pro
vided that the full faith and credit of the United States
of America is pledged in full support thereof) having
maturities of not more than one year from the date of the
acquisition thereof by the Borrower or any of its
Subsidiaries, (ii) certificates of deposit and bankers
acceptances of (x) any Lender or (y) any Approved Bank, in
any such case with maturities of not more than one year
from the date of issuance, (iii) commercial paper maturing
in 270 days or less from the date of issuance which, at the
time of the acquisition thereof by the Borrower or any of
its Subsidiaries is accorded one of the two highest ratings
by Standard & Poor's or Moody's; (iv) marketable direct
obligations issued by any state of the United States of
America or any political subdivision of any such state or
any public instrumentality thereof maturing within one year
from the date of acquisition thereof by the Borrower or any
of its Subsidiaries and, at the time of acquisition, having
one of the two highest ratings obtainable from either
Standard & Poor's or Moody's; (v) securities issued by any
Governmental Authority (other than the United States) and
acquired by a Subsidiary of the Borrower as set forth
below, (x) in the case of IGT Europe, by any Governmental
Authority located in Europe and (y) in the case of all
other Subsidiaries of the Borrower (other than Domestic
Subsidiaries) by any Governmental Authority which is the
country in which such Subsidiary is incorporated or any
political subdivision thereof, in each case having, at the
time of acquisition, a rating of A or better by either
Standard & Poor's or Moody's; (vi) auction rate reset
securities with a reset period of ninety-two (92) days or
less at the time of acquisition, having a rating of A or
better by either Standard & Poor's or Moody's; and (vii)
investments in money market funds substantially all the
assets of which are comprised of securities of the types
described in clauses (i) through (vi) above.
"Change of Control": any one or more of the
following events: (i) any "person" or "group" (within the
meaning of Sections 13(d) and 14(d)(2) of the Exchange Act)
shall have become the "beneficial owner" (as defined in
Rule 13d-3 under the Exchange Act) of Voting Shares
entitled to exercise more than 25% of the total power of
all outstanding Voting Shares of the Borrower (including
any Voting Shares which are not then outstanding of which
such person or group is deemed the beneficial owner), (ii)
a change in the composition of the Managing Person of the
Borrower shall have occurred in which the individuals who
constituted the Managing Person of the Borrower at the
beginning of the two year period immediately preceding such
change (together with any other director whose election by
the Managing Person of the Borrower or whose nomination for
election by the shareholders of the Borrower was approved
by a vote of at least a majority of the members of such
Managing Person then in office who either were members of
such Managing Person 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 members of such Managing Person then in office or (iii)
the Borrower ceases to own and control (A) in the case of
Subsidiaries of the Borrower which were wholly-owned on the
Effective Date, at least 95% (90% in the case of IGT Japan)
of the issued and outstanding shares of all classes of
Capital Stock (including Voting Shares) thereof and (B) in
the case of Subsidiaries of the Borrower which were not
wholly-owned on the Effective Date, at least all of the
issued and outstanding shares of all classes of Capital
Stock (including Voting Shares) which were owned by the
Borrower on the Effective Date. For purposes of this
definition, the term "Voting Shares" shall mean all
outstanding shares of any class or classes (however
designated) of Capital Stock of the Borrower entitled to
vote generally in the election of members of the Managing
Person thereof. Notwithstanding the foregoing, it shall
not constitute a Change of Control if the Borrower ceases
to own and control any Subsidiary of the Borrower (other
than IGT) which is permitted to be dissolved pursuant to
Section 7.3.
"Code": the Internal Revenue Code of 1986, as the
same may be amended from time to time, or any successor
thereto, and the rules and regulations issued thereunder,
as from time to time in effect.
"Commitment": in respect of any Lender, such
Lender's undertaking during the Commitment Period to make
Revolving Credit Loans, subject to the terms and conditions
hereof, in an aggregate outstanding principal amount not
exceeding the Commitment Amount of such Lender.
"Commitment Amount": as of any date and with
respect to any Lender, the amount set forth adjacent to its
name under the heading "Commitment Amount" in Exhibit A on
such date or, in the event that such Lender is not listed
in Exhibit A, the "Commitment Amount" which such Lender
shall have assumed from another Lender in accordance with
Section 11.7 on or prior to such date, as the same may be
adjusted from time to time pursuant to Sections 2.5 and
11.7.
"Commitment Percentage": as to any Lender in
respect of such Lender's Commitment and its obligations
with respect to Letters of Credit, the percentage equal to
such Lender's Commitment Amount divided by the Aggregate
Commitment Amount (or, if no Commitments then exist, the
percentage equal to such Lender's Commitment Amount on the
last day upon which Commitments did exist divided by the
Aggregate Commitment Amount on such day).
"Commitment Period": the period from the
Effective Date until the Commitment Termination Date.
"Commitment Termination Date": the earlier of the
Business Day immediately preceding the Maturity Date or
such other date upon which the Commitments shall have been
terminated in accordance with Section 2.5 or Section 9.2.
"Compensatory Interest Payment": as defined in
Section 3.1(c).
"Competitive Bid": an offer by a Lender to make a
Competitive Bid Loan, substantially in the form of Exhibit
K.
"Competitive Bid Accept/Reject Letter": a
notification given by the Borrower pursuant to Section
2.4(c) substantially in the form of Exhibit L.
"Competitive Bid Loan": a Loan from a Lender to
the Borrower made pursuant to Section 2.4.
"Competitive Bid Loan Confirmation": a
confirmation by the Administrative Agent to a Lender of the
acceptance by the Borrower of any Competitive Bid (or
Portion thereof) made by such Lender, substantially in the
form of Exhibit M.
"Competitive Bid Note" and "Competitive Bid
Notes": as defined in Section 2.4(g).
"Competitive Bid Request": a request by the Bor
rower for Competitive Bids, substantially in the form of
Exhibit I.
"Competitive Interest Period": with respect to
any Competitive Bid Loan, the period commencing on the
Borrowing Date with respect to such Competitive Bid Loan
and ending on the date requested in the Competitive Bid
Request with respect to such Competitive Bid Loan, which
ending date shall not be earlier than seven days after the
Borrowing Date with respect to such Competitive Bid Loan
nor later than 180 days after the Borrowing Date with
respect to such Competitive Bid Loan; provided, however,
that if any Competitive Interest Period would end on a day
other than a Business Day, such Interest Period shall be
extended to the next succeeding Business Day, unless such
next succeeding Business Day would be a date on or after
the Maturity Date, in which case such Competitive Interest
Period shall end on the next preceding Business Day, and
provided further, that no Competitive Interest Period shall
end after the Maturity Date. Interest shall accrue from
and including the first day of a Competitive Interest
Period to, but excluding, the last day of such Competitive
Interest Period.
"Compliance Certificate": a certificate substan
tially in the form of Exhibit E.
"Consolidated": the Borrower and its Subsidiaries
on a consolidated basis in accordance with GAAP.
"Consolidated Debt Service": for any period, the
sum of (i) Consolidated Interest Expense minus interest
expense related to Jackpot Liabilities for such period plus
(ii) all scheduled payments of principal on Consolidated
Total Debt (other than the Loans on the Maturity Date)
during such period plus (iii) all redemptions, mandatory or
otherwise, made during such period of any Capital Stock
described in clause (viii) of the definition "Indebtedness"
of the Borrower or any of its Subsidiaries.
"Consolidated EBITDA": for any period, net income
of the Borrower and its Subsidiaries for such period, de
termined on a Consolidated basis in accordance with GAAP
plus the sum of, without duplication, (i) Consolidated
Interest Expense, (ii) provision for income taxes of the
Borrower and its Subsidiaries and (iii) depreciation and
amortization of the Borrower and its Subsidiaries, each to
the extent deducted in determining such net income for such
period, minus (x) extraordinary gains and losses from
sales, exchanges and other dispositions of Property not in
the ordinary course of business and other non-recurring
items and (y) interest income, each to the extent included
in determining net income for such period.
"Consolidated Fixed Charges": for any period, the
sum of, without duplication, (i) Consolidated Debt Service
for such period, (ii) tax expense for such period of the
Borrower and its Subsidiaries, (iii) Investments in joint
ventures to the extent made in Cash or Cash Equivalents and
(iv) Restricted Payments described in Section 8.6(ii)(A)
made by the Borrower during such period.
"Consolidated Interest Expense": for any period,
the sum of, without duplication, all interest (adjusted to
give effect to all interest rate swap, cap or other
interest rate hedging arrangements and fees and expenses
paid in connection therewith) paid or accrued in respect of
Consolidated Total Debt and Jackpot Liabilities during such
period, all as determined on a Consolidated basis in ac
cordance with GAAP).
"Consolidated Total Assets": as of the date of
any determination, the total amount of all assets of the
Borrower and its Subsidiaries (less depreciation, depletion
and other properly deductible valuation reserves)
determined on a Consolidated basis in accordance with GAAP.
"Consolidated Total Debt": as of any date of
determination, without duplication, (x) the sum of the
Aggregate Credit Exposure, (y) all other Indebtedness of
the Borrower and its Subsidiaries (other than Indebtedness
described in clauses (iv) and (vi) of the definition
thereof and Jackpot Liabilities), in each case determined
on a Consolidated basis in accordance with GAAP.
"Consolidating": the Borrower and its
Subsidiaries taken separately.
"Contingent Obligation": as to any Person (a "sec
ondary obligor"), any obligation of such secondary obligor
(i) guaranteeing or in effect guaranteeing any return on
any investment made by another Person, or (ii) guaranteeing
or in effect guaranteeing any Indebtedness, lease, dividend
or other obligation (a "primary obligation") of any other
Person (a "primary obligor") in any manner, whether
directly or indirectly, including, without limitation, any
obligation of such secondary obligor, whether contingent,
(A) to purchase any primary obligation or any Property
constituting direct or indirect security therefor, (B) to
advance or supply funds (x) for the purchase or payment of
any primary obligation or (y) to maintain working capital
or equity capital of the primary obligor or otherwise to
maintain the net worth or solvency of a primary obligor,
(C) to purchase Property, securities or services primarily
for the purpose of assuring the beneficiary of any primary
obligation of the ability of a primary obligor to make pay
ment of a primary obligation, (D) otherwise to assure or
hold harmless the beneficiary of a primary obligation
against loss in respect thereof, and (E) in respect of the
liabilities of any partnership in which a secondary obligor
is a general partner, except to the extent that such li
abilities of such partnership are nonrecourse to such
secondary obligor and its separate Property, provided,
however, that the term "Contingent Obligation" shall not
include the indorsement of instruments for deposit or col
lection in the ordinary course of business. The amount of
any Contingent Obligation of a Person shall be deemed to be
an amount equal to the stated or determinable amount of a
primary obligation in respect of which such Contingent
Obligation is made or, if not stated or determinable, the
maximum reasonably anticipated liability in respect thereof
as determined by such Person in good faith.
"Control Person": as defined in Section 3.6.
"Conversion Date": the date on which: (i) a
Eurodollar Advance is converted to an ABR Advance, (ii) an
ABR Advance is converted to a Eurodollar Advance or (iii) a
Eurodollar Advance is converted to a new Eurodollar
Advance.
"Default": any event or condition which
constitutes an Event of Default or which, with the giving
of notice, the lapse of time, or any other condition,
would, unless cured or waived, become an Event of Default.
"Disposition": any sale, assignment, transfer or
other disposition by the Borrower or any of its
Subsidiaries, by any means, (i) of the Capital Stock of any
other Person, (ii) of any Operating Entity, (iii) of all or
substantially all of its Property, (iv) of any other
Property other than in the ordinary course of business
(other than inventory, except to the extent subject to a
bulk sale), provided, however, that no such sale, assign
ment, transfer or other disposition of Property (other than
inventory, except to the extent subject to a bulk sale)
shall be deemed to be in the ordinary course of business
(A) if the fair market value thereof is in excess of
$1,000,000, or (B) to the extent that the fair market value
thereof, when aggregated with all other sales, assignments,
transfers and other dispositions made by such Person within
the same fiscal year, exceeds $10,000,000, and then only to
the extent of such excess, if any, or (C) it is the sale,
assignment, transfer or disposition of (1) all or substan
tially all of the Property of such Person or (2) any Operat
ing Entity; or (v) which constitutes an "Asset Disposition"
(as defined in the Note Agreement) and which is made at a
time when the Senior Notes are outstanding. For purposes
of this definition, sales by the Borrower or any of its
Subsidiaries of gaming equipment leased by it to any other
Person and which is sold by the Borrower or any of its
Subsidiaries after the expiration of the lease to any
Person, (including in connection with the exercise by the
lessee of a purchase option) shall be deemed to be the sale
of inventory even though such equipment may be classified
as a fixed asset on a balance sheet of the Borrower or such
Subsidiary, so long as the equipment is of the type which
would be classified as inventory had it been initially sold
rather than leased.
"Disposition Reduction Date": as to any
Disposition with respect to which the Aggregate Commitment
Amount is to be reduced pursuant to Section 8.4(c), the
date which is 180 days after the date of such Disposition.
"Dollars" and "$": lawful currency of the United
States.
"Documentary Letter of Credit": any Letter of
Credit issued by the Issuing Bank hereunder in support of
trade obligations of the Borrower, IGT or any of IGT's
Subsidiaries incurred in the ordinary course of business
and that requires, as a condition to drawing thereunder,
the presentation to the Issuing Bank of negotiable bills of
lading, invoices or other documents as may be specified
therein.
"Domestic Advances": in respect of any Lender,
such Lender's Revolving Credit Loans consisting of ABR Ad
vances or such Lender's Competitive Bid Loans.
"Domestic Lending Office": in respect of (i) any
Lender listed on the signature pages hereof, initially, the
office or offices of such Lender designated as such on
Schedule 1.1; thereafter, such other office of such Lender,
through which it shall be making or maintaining Domestic
Advances, as reported by such Lender to the Administrative
Agent and the Borrower and (ii) in the case of any other
Lender, initially, the office or offices of such Lender
designated as such on Schedule 2 of the Assignment and
Acceptance Agreement or other document pursuant to which it
became a Lender; thereafter, such other office of such
Lender, through which it shall be making or maintaining
Domestic Advances, as reported by such Lender to the
Administrative Agent and the Borrower, provided that any
Lender may so report different Domestic Lending Offices for
all of its ABR Advances and all of its Competitive Bid
Loans, whereupon references to the Domestic Lending Office
of such Lender shall mean either or both of such offices.
"Domestic Subsidiary": any Subsidiary of the Bor
rower which is organized under the laws of the United
States.
"Effective Date": May 22, 1997.
"Eligible Assignee": a Lender, any affiliate of a
Lender and any other bank, insurance company, pension fund,
mutual fund or other financial institution.
"Environmental Laws": any and all federal, state
and local laws relating to the environment, the use,
storage, transporting, manufacturing, handling, discharge,
disposal or recycling of hazardous substances, materials or
pollutants or industrial hygiene, and including, without
limitation, (i) the Comprehensive Environmental Response,
Compensation and Liability Act, as amended, 42 USCA 9601
et seq.; (ii) the Resource Conservation and Recovery Act of
1976, as amended, 42 USCA 6901 et seq.; (iii) the Toxic
Substance Control Act, as amended, 15 USCA 2601 et seq.;
(iv) the Water Pollution Control Act, as amended, 33 USCA
1251 et seq.; (v) the Clean Air Act, as amended, 42 USCA
7401 et seq.; (vi) the Hazardous Materials Transportation
Authorization Act of 1994, as amended, 49 USCA 5101 et
seq. and (vii) all rules, regulations, judgments, decrees,
injunctions and restrictions thereunder and any analogous
state law.
"ERISA": the Employee Retirement Income Security
Act of 1974, as amended from time to time, and the rules
and regulations issued thereunder, as from time to time in
effect.
"ERISA Affiliate": as to any Person, each other
Person (whether or not incorporated) which is required to
be aggregated with such Person pursuant to Section 414 of
the Code.
"Eurodollar Advances": collectively, the
Revolving Credit Loans (or any portions thereof), at such
time as they (or such portions) are made and/or being main
tained at a rate of interest based upon the Eurodollar
Rate.
"Eurodollar Interest Period": with respect to any
Eurodollar Advance requested by the Borrower, the period
commencing on, as the case may be, the Borrowing Date or
Conversion Date with respect to such Eurodollar Advance and
ending one, two, three or six months thereafter as selected
by the Borrower in its irrevocable Borrowing Request or its
irrevocable Notice of Conversion, provided, however, that
(i) if any Eurodollar Interest Period would otherwise end
on a day which is not a Business Day, such Eurodollar Inter
est Period shall be extended to the next succeeding Busi
ness Day unless the result of such extension would be to
carry such Eurodollar Interest Period into another calendar
month, in which event such Eurodollar Interest Period shall
end on the immediately preceding Business Day, (ii) any
Eurodollar Interest Period which begins on the last
Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the calendar
month at the end of such Eurodollar Interest Period) shall
end on the last Business Day of a calendar month and (iii)
no Eurodollar Interest Period shall end after the Maturity
Date. Eurodollar Interest Periods shall be subject to the
provisions of Section 3.4.
"Eurodollar Lending Office": in respect of (i)
any Lender listed on the signature pages hereof, initially,
the office or offices of such Lender designated as such on
Schedule 1.1; thereafter, such other office of such Lender,
through which it shall be making or maintaining Eurodollar
Advances, as reported by such Lender to the Administrative
Agent and the Borrower and (ii) in the case of any other
Lender, initially, the office or offices of such Lender
designated as such on Schedule 2 of the Assignment and Ac
ceptance Agreement or other document pursuant to which it
became a Lender; thereafter, such other office of such
Lender, through which it shall be making or maintaining
Eurodollar Advances, as reported by such Lender to the
Administrative Agent and the Borrower.
"Eurodollar Rate": with respect to the Eurodollar
Interest Period applicable to any Eurodollar Advance, a
rate of interest per annum, as determined by the Administra
tive Agent, obtained by dividing (and then rounding to the
nearest 1/16 of 1% or, if there is no nearest 1/16 of 1%,
then to the next higher 1/16 of 1%):
(a) the rate, as reported by BNY to the
Administrative Agent, quoted by BNY to leading banks in the
interbank eurodollar market as the rate at which BNY is
offering Dollar deposits in an amount equal approximately
to the Eurodollar Advance of BNY to which such Eurodollar
Interest Period shall apply for a period equal to such
Eurodollar Interest Period, as quoted at approximately
11:00 a.m. two Business Days prior to the first day of such
Interest Period, by
(b) a number equal to 1.00 minus the
aggregate of the then stated maximum rates during such
Eurodollar Interest Period of all reserve requirements
(including, without limitation, marginal, emergency,
supplemental and special reserves), expressed as a decimal,
established by the Board of Governors of the Federal
Reserve System and any other banking authority to which BNY
and other major United States money center banks are
subject, in respect of eurocurrency funding (currently re
ferred to as "Eurocurrency Liabilities" in Regulation D of
the Board of Governors of the Federal Reserve System) or in
respect of any other category of liabilities including
deposits by reference to which the interest rate on
Eurodollar Advances is determined or any category of
extensions of credit or other assets which includes loans
by non-domestic offices of any Lender to United States
residents. Such reserve requirements shall include,
without limitation, those imposed under such Regulation D.
Eurodollar Advances shall be deemed to constitute Eu
rocurrency liabilities and as such shall be deemed to be
subject to such reserve requirements without benefit of
credits for proration, exceptions or offsets which may be
available from time to time to any Lender under such Regula
tion D. The Eurodollar Rate shall be adjusted automatically
on and as of the effective date of any change in any such
reserve requirement.
"Event of Default": as defined in Section 9.1.
"Exchange Act": the Securities Exchange Act of
1934, as amended.
"Existing Bank Debt": collectively, the Indebted
ness of the Borrower under the ▇▇▇▇▇ Fargo Loan Documents,
including, without limitation, all outstanding principal,
unpaid and accrued interest, unpaid and accrued fees and
other unpaid sums thereunder.
"Existing Letters of Credit": collectively, the
Letters of Credit listed on Schedule 4.20, each of which
was issued by ▇▇▇▇▇ Fargo.
"Facility Fee": as defined in Section 3.2(a).
"Federal Funds Rate": for any day, a rate per
annum (expressed as a decimal, rounded upwards, if neces
sary, to the next higher 1/100 of 1%) equal to the weighted
average of the rates on overnight federal funds
transactions with members of the Federal Reserve System ar
ranged by federal funds brokers on such day, as published
by the Federal Reserve Bank of New York on the Business Day
next succeeding such day, provided that (i) if the day for
which such rate is to be determined 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 (ii) if
such rate is not so published for any day, the Federal
Funds Rate for such day shall be the average of the
quotations for such day on such transactions received by
BNY as determined by BNY and reported to the Administrative
Agent.
"Fees": as defined in Section 2.11.
"Financial Officer": as to any Person, the chief
financial officer of such Person or such other officer as
shall be satisfactory to the Administrative Agent.
"Financial Statements": as defined in Section
4.13.
"Fixed Charge Coverage Ratio": at any date of
determination, the ratio of (i) Consolidated EBITDA minus
Capital Expenditures (other than Capital Expenditures (not
in excess of $5,000,000) made in connection with the
construction of a facility adjacent to the Borrower's Reno,
Nevada headquarters), to Consolidated Fixed Charges for the
four fiscal quarter period ending on such date or, if such
date is not the last day of a fiscal quarter, for the im
mediately preceding four fiscal quarter period.
"GAAP": generally accepted accounting principles
set forth in the opinions and pronouncements of the
Accounting Principles Board and the American Institute of
Certified Public Accountants and in the statements and
pronouncements of the Financial Accounting Standards Board
or in such other statement by such other entity as may be
approved by a significant segment of the accounting
profession, which are applicable to the circumstances as of
the date of determination, consistently applied.
"Gaming Authority": collectively, (i) the Nevada
Gaming Commission, (ii) the Nevada State Gaming Control
Board, (iii) the Mississippi Gaming Commission and (iv) any
other Governmental Authority that holds regulatory,
licensing or permit authority over gambling, gaming or
casino activities conducted by Borrower and the
Subsidiaries within its jurisdiction.
"Gaming Law": as to any Person, all provisions of
constitutions, statutes, rules, regulations and orders of
Gaming Authorities and other Governmental Authorities
applicable to such Person and its Properties, including,
without limitation, all orders and decrees of all courts
and arbitrators in proceedings or actions to which the
Person in question is a party.
"Gaming License": any license or other permit,
consent, approval or authorization issued by a Gaming
Authority which is necessary for the maintenance and opera
tion by the Borrower or any of its Subsidiaries of any of
its respective businesses.
"Governmental Authority": any foreign, federal,
state, municipal or other government, or any department,
commission, board, bureau, agency, public authority or
instrumentality thereof, or any court or arbitrator,
including, without limitation, any Gaming Authority.
"Hazardous Substance": any hazardous or toxic sub
stance, material or waste, including, but not limited to,
(i) those substances, materials, and wastes listed in the
United States Department of Transportation Hazardous
Materials Table (49 CFR 172.101) or by the Environmental
Protection Agency as hazardous substances (40 CFR Part 302)
and amendments thereto and replacements thereof and (ii)
any substance, pollutant or material defined as, or
designated in, any Environmental Law as a "hazardous
substance," "toxic substance," "hazardous material,"
"hazardous waste," "restricted hazardous waste,"
"pollutant," "toxic pollutant" or words of similar import.
"Highest Lawful Rate": as to any Lender or the
Issuing Bank, the maximum rate of interest, if any, that at
any time or from time to time may be contracted for, taken,
charged or received by such Lender on the Notes held by it
or by the Issuing Bank on the Reimbursement Agreements, as
the case may be, or which may be owing to such Lender or
the Issuing Bank pursuant to the Loan Documents under the
laws applicable to such Lender or the Issuing Bank and this
transaction.
"IGT": IGT, a Nevada corporation and a wholly-
owned Subsidiary of the Borrower.
"IGT Europe": IGT Europe b.v., a Netherlands
corporation and a wholly-owned Subsidiary of the Borrower.
"IGT Japan": IGT-Japan k.k., a Japanese
corporation and a wholly-owned Subsidiary of the Borrower.
"Indebtedness": as to any Person, at a particular
time, all items which constitute, without duplication, (i)
indebtedness for borrowed money, (ii) indebtedness in
respect of the deferred purchase price of Property (other
than trade payables incurred in the ordinary course of busi
ness), (iii) indebtedness evidenced by notes, bonds, deben
tures or similar instruments, (iv) obligations with respect
to any conditional sale or title retention agreement, (v)
indebtedness arising under acceptance facilities and the
amount available to be drawn under all letters of credit is
sued for the account of such Person and, without du
plication, all drafts drawn thereunder to the extent such
Person shall not have reimbursed the issuer in respect of
the issuer's payment thereof, (vi) all liabilities secured
by any Lien on any Property owned by such Person even
though such Person has not assumed or otherwise become
liable for the payment thereof (other than carriers',
warehousemen's, mechanics', repairmen's or other like non-
consensual statutory Liens arising in the ordinary course
of business), (vii) Capital Lease Obligations, (viii) all
obligations of such Person in respect of Capital Stock
subject to mandatory redemption or redemption at the option
of the holder thereof, in whole or in part, and (ix) all
Contingent Obligations of such Person in respect of any of
the foregoing.
"Indemnified Liabilities": as defined in Section
11.5.
"Indemnified Person": as defined in Section 11.8.
"Indemnified Tax": as defined in Section 3.10(a).
"Indemnified Tax Person": as defined in Section
3.10(a).
"Intercompany Indebtedness": loans which are (i)
made by the Borrower to any wholly-owned Subsidiary of the
Borrower or (ii) made by any wholly-owned Subsidiary of the
Borrower to the Borrower or to any other wholly-owned
Subsidiary of the Borrower.
"Interest Payment Date": (i) as to any ABR
Advance, the last day of each March, June, September and
December commencing on the first of such days to occur
after such ABR Advance is made or any Eurodollar Advance is
converted to an ABR Advance, (ii) as to any Eurodollar
Advance as to which the Borrower has selected a Eurodollar
Interest Period of one, two or three months, the last day
of such Eurodollar Interest Period, (iii) as to any
Eurodollar Advance as to which the Borrower has selected a
Eurodollar Interest Period of six months, the day which is
three months after the first day of such Eurodollar In
terest Period and the last day of such Eurodollar Interest
Period; (iv) as to any Competitive Bid Loan as to which the
Borrower has selected a Competitive Interest Period of 90
days or less, the last day of such Competitive Interest
Period, (v) as to any Competitive Bid Loan as to which the
Borrower has selected a Competitive Interest Period of more
than 90 days, the day which is 90 days after the first day
of such Competitive Interest Period and the last day of
such Competitive Interest Period; and (vi) as to all
Advances and all Competitive Bid Loans, the Maturity Date.
"Interest Period": a Eurodollar Interest Period
or a Competitive Interest Period, as the case may be.
"Interest Rate Protection Arrangement": any
interest rate swap, cap or collar arrangement or any other
derivative product customarily offered by banks or other
financial institutions to their customers in order to
reduce the exposure of such customers to interest rate
fluctuations, as the same may be amended, supplemented or
otherwise modified from time to time.
"Investments": as defined in Section 8.5.
"Invitation to Bid": an invitation to make
Competitive Bids in the form of Exhibit J.
"Issuing Bank": BNY.
"Jackpot Assets": at any date of determination,
the aggregate of all current and long term Investments of
the Borrower and its Subsidiaries (determined on a ▇▇▇▇▇▇▇
dated basis in accordance with GAAP) segregated to fund
Jackpot Liabilities, in each case valued in accordance with
GAAP.
"Jackpot Liabilities": at any date of
determination, the aggregate of all current and long term
liabilities of the Borrower and its Subsidiaries
(determined on a Consolidated basis in accordance with
GAAP) in respect of interlinked progressive systems
jackpots, including, without limitation, Megabucks, Nevada
▇▇▇▇▇▇▇, Fabulous Fifties, High Rollers Quarters Deluxe,
Dollars Gold, Keno Deluxe and other similar systems.
"Jackpot Ratio": at any date of determination,
the ratio of (i) Jackpot Assets held by the Borrower and
its Subsidiaries on such date to (ii) Jackpot Liabilities
on such date.
"Letters of Credit": collectively, the Existing
Letters of Credit and the Additional Letters of Credit,
and, individually, any thereof.
"Letter of Credit Commissions": as defined in Sec
tion 3.2(b).
"Letter of Credit Commitment": the commitment of
the Issuing Bank to issue Additional Letters of Credit
having an aggregate outstanding face amount together with
the Existing Letters of Credit up to the Letter of Credit
Commitment Amount, and the commitment of the Lenders to
participate in the Letter of Credit Exposure as set forth
in Section 2.9.
"Letter of Credit Commitment Amount":
$10,000,000.
"Letter of Credit Exposure": at any time, (i) in
respect of all the Lenders, the sum at such time, without
duplication, of (x) the aggregate undrawn face amount of
the outstanding Letters of Credit, (y) the aggregate amount
of unpaid drafts drawn on all Letters of Credit, and (z)
the aggregate unpaid Reimbursement Obligations (after
giving effect to any Revolving Credit Loans made on such
date to pay any such Reimbursement Obligations), and (ii)
in respect of any Lender, an amount equal to such Lender's
Commitment Percentage multiplied by the amount determined
under clause (i) of this definition.
"Letter of Credit Request": a request in the form
of Exhibit C- 2.
"Leverage Ratio": at any date of determination,
the ratio of (x) Consolidated Total Debt on such date to
(y) Consolidated EBITDA for the four fiscal quarter period
ending on such date or, if such date is not the last day of
a fiscal quarter, for the immediately preceding four fiscal
quarter period.
"Lien": any mortgage, pledge, hypothecation,
assignment, deposit or preferential arrangement,
encumbrance, lien (statutory or other), or other security
agreement or security interest of any kind or nature
whatsoever, including, without limitation, any conditional
sale or other title retention agreement and any capital or
financing lease having substantially the same economic
effect as any of the foregoing.
"Loan": a Revolving Credit Loan or a Competitive
Bid Loan, as the case may be.
"Loan Documents": collectively, this Agreement,
the Notes, the Reimbursement Agreements and all other
agreements, instruments and documents executed or delivered
in connection herewith, in each case as amended,
supplemented or otherwise modified from time to time.
"Loans": the Revolving Credit Loans or the C
ompetitive Bid Loans, as the case may be.
"Managing Person": with respect to any Person
that is (i) a corporation, its board of directors, (ii) a
limited liability company, its board of control, managing
member or members, (iii) a limited partnership, its general
partner, (iv) a general partnership or a limited liability
partnership, its managing partner or executive committee or
(v) any other Person, the managing body thereof or other
Person analogous to the foregoing.
"Margin Stock": any "margin stock", as defined in
Regulation U of the Board of Governors of the Federal
Reserve System, as amended, supplemented or otherwise
modified from time to time.
"Material Adverse Change": a material adverse
change in (i) the financial condition, operations, business
or Property of (A) the Borrower or (B) the Borrower and its
Subsidiaries taken as a whole, (ii) the ability of the
Borrower to perform its obligations under the Loan
Documents or (iii) the ability of the Administrative Agent
and the Lenders to enforce the Loan Documents.
"Material Adverse Effect": a material adverse ef
fect on (i) the financial condition, operations, business
or Property of (A) the Borrower or (B) the Borrower and its
Subsidiaries taken as a whole, (ii) the ability of the
Borrower to perform its obligations under the Loan
Documents or (iii) the ability of the Administrative Agent
and the Lenders to enforce the Loan Documents.
"Maturity Date": May 22, 2002, or such earlier
date on which the Notes shall become due and payable,
whether by acceleration or otherwise.
"Maximum Offer": as defined in Section 2.4(b).
"Maximum Request": as defined in Section 2.4(a).
"Moody's": ▇▇▇▇▇'▇ Investors Service, Inc., or
any successor thereto.
"Multiemployer Plan: any employee benefit plan of
the type described in Section 4001(a)(3) of ERISA.
"Net Proceeds": with respect to any Disposition,
the aggregate gross sales proceeds received by the Borrower
or such Subsidiary in connection with such Disposition
minus the sum of (i) sales and other commissions and legal
and other expenses incurred in connection with such Disposi
tion, (ii) any taxes paid or reasonably estimated by the
Borrower to be payable by the Borrower or such Subsidiary,
as the case may be, in connection therewith within 30 days
after the date thereof, and (iii) the amount of Indebted
ness secured by the Property subject to such Disposition
which, in accordance with the terms governing such Indebted
ness, is required to be repaid upon such Disposition.
"Note": a Revolving Credit Note or a Competitive
Bid Note, as the case may be.
"Note Agreement": the Note Agreement, dated as of
September 30, 1994, among the Borrower and the purchasers
therein named, pursuant to which the Borrower issued
$100,000,000 principal amount 7.84% Senior Notes, due
September 1, 2004, as the same may be amended, supplemented
or otherwise modified from time to time.
"Notes": the Revolving Credit Notes and/or the
Competitive Bid Notes, as the case may be.
"Notice of Conversion": a notice substantially in
the form of Exhibit D.
"Obligations": as defined in Section 2.12.
"Other Taxes": as defined in Section 3.10(c).
"Operating Entity": any Person or any business,
going concern, operating unit, division or segment of a Per
son which is, or could be, operated separate and apart from
(i) the other businesses and operations of such Person, or
(ii) any other line of business or business segment.
"Organizational Documents": as to any Person
which is (i) a corporation, the certificate or articles of
incorporation and by-laws of such Person, (ii) a limited li
ability company, the limited liability company operating
agreement or similar agreement of such Person, (iii) a
partnership, the partnership agreement or similar agreement
of such Person, or (iv) any other form of entity or
organization, the organizational documents analogous to the
foregoing.
"Outstandings": as of any date and with respect
to any Lender or the Issuing Bank, as the case may be, an
amount equal to (a) with respect to such Lender, (i) the
aggregate outstanding principal balance on such date of all
the Loans of such Lender, plus (ii) the excess as of such
date of (A) the aggregate sum of all payments made by such
Lender on or after the Effective Date in participation of
the Reimbursement Obligations, over (B) the aggregate sum
of all reimbursements of such Lender on or after the
Effective Date in respect thereof, and (b) with respect to
the Issuing Bank, the excess of (i) the aggregate sum of
all drafts honored on or after the Effective Date under all
Letters of Credit issued by the Issuing Bank, over (ii) the
aggregate sum of all payments made to the Issuing Bank on
or after the Effective Date by the Borrower and the Lenders
in reimbursement thereof or participation therein, as the
case may be.
"Outstanding Percentage": as of any date and with
respect to any Lender or the Issuing Bank, as the case may
be, a fraction, the numerator of which is the Outstandings
of such Lender or the Issuing Bank, as the case may be, on
such date, and the denominator of which is the aggregate
Outstandings of the Issuing Bank and the Lenders on such
date.
"Pension Plan": any "employee pension benefit
plan" (as such term is defined in Section 3(3) 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 Acquisition": an Acquisition permitted
by Section 8.3.
"Permitted Lien": a Lien permitted to exist under
Section 8.2.
"Person": any individual, firm, partnership,
limited liability company, joint venture, corporation,
association, business enterprise, joint stock company,
unincorporated association, trust, Governmental Authority
or any other entity, whether acting in an individual,
fiduciary, or other capacity, and for the purpose of the
definition of "ERISA Affiliate", a trade or business.
"Portion": as defined in Section 2.4(b).
"Pricing Level": Pricing Level I, Pricing Level
II, Pricing Level III, Pricing Level IV or Pricing Level V,
as applicable. In determining the appropriate Pricing
Level, in the event that the Senior Debt Rating by Standard
& Poor's and Moody's (i) is split-rated by one level, the
higher of such Senior Debt Ratings shall be used and (ii)
is split-rated by more than one level, then the average of
such Senior Debt Ratings shall be used.
"Pricing Level I": the applicable Pricing Level
any time when the Borrower's Senior Debt Rating is equal to
A- or higher by Standard and Poor's or A3 or higher by
Moody's or the Leverage Ratio is less than or equal to
1.00:1.00.
"Pricing Level II": the applicable Pricing Level
any time when the Borrower's Senior Debt Rating is equal to
BBB+ or higher by Standard and Poor's or Baa1 or higher by
Moody's or the Leverage Ratio is less than or equal to
1.50:1.00 but greater than 1.00:1.00 and Pricing Level I is
not applicable.
"Pricing Level III": the applicable Pricing Level
any time when the Borrower's Senior Debt Rating is equal to
BBB or higher by Standard and Poor's or Baa2 or higher by
Moody's or the Leverage Ratio is less than or equal to
2.00:1.00 but greater than 1.50:1.00 and neither Pricing
Level I nor Pricing Level II is applicable.
"Pricing Level IV": the applicable Pricing Level
any time when the Borrower's Senior Debt Rating is equal to
BBB- or higher by Standard and Poor's or Baa3 or higher by
Moody's or the Leverage Ratio is less than or equal to
2.50:1.00 but greater than 2.00:1.00 and neither Pricing
Level I, Pricing Level II nor Pricing Level III is ap
plicable.
"Pricing Level V": the applicable Pricing Level
any time when (i) the Borrower's Senior Debt Rating is
equal to BB+ or lower by Standard and Poor's or Ba1 or
lower by Moody's and neither Pricing Level I, Pricing Level
II, Pricing Level III nor Pricing Level IV is applicable or
(ii) if the Borrower ceases to have a Senior Debt Rating,
at any time when the Leverage Ratio is greater than
2.50:1.00.
"Prohibited Transaction": a transaction which is
prohibited under Section 4975 of the Code or Section 406 of
ERISA and not exempt under Section 4975 of the Code or
Section 408 of ERISA.
"Property": all types of real, personal,
tangible, intangible or mixed property.
"Proposed Bid Rate": as applied to any Remaining
Interest Period with respect to a Lender's Competitive Bid
Loan, the rate per annum that such Lender in good faith
would have quoted to the Borrower had the Borrower
requested that such Lender make a Competitive Bid Loan on
the first day of such Remaining Interest Period, assuming
no Default or Event of Default existed on such day and that
the Borrower had the right to borrow hereunder on such day,
such rate to be determined by such Lender in good faith in
its sole discretion.
"Proposed Lender": as defined in Section 3.12.
"Real Property": all real property owned or
leased by the Borrower or any of its Subsidiaries.
"Regulatory Change": (i) the introduction or
phasing in of any law, rule or regulation after the
Effective Date, (ii) the issuance or promulgation after the
Effective Date of any directive, guideline or request from
any Governmental Authority (whether or not having the force
of law), or (iii) any change after the Effective Date in
the interpretation of any existing law, rule, regulation,
directive, guideline or request by any Governmental
Authority charged with the administration thereof.
"Reimbursement Agreement": as defined in Section
2.8(b).
"Reimbursement Obligation": the obligation of the
Borrower to reimburse the Issuing Bank for amounts drawn
under a Letter of Credit.
"Remaining Interest Period": (i) in the event
that the Borrower shall fail for any reason to borrow a
Revolving Credit Loan in respect of which it shall have
requested a Eurodollar Advance or convert an Advance to a
Eurodollar Advance after it shall have notified the
Administrative Agent of its intent to do so, a period equal
to the Eurodollar Interest Period that the Borrower elected
in respect of such Eurodollar Advance; (ii) in the event
that the Borrower shall fail for any reason to borrow a Com
petitive Bid Loan after it shall have accepted one or more
offers of Competitive Bid Loans, a period equal to the
Competitive Interest Period that the Borrower elected in re
spect of such Competitive Bid Loan; (iii) in the event that
a Eurodollar Advance or a Competitive Bid Loan shall termi
nate for any reason prior to the last day of the Interest
Period applicable thereto, a period equal to the remaining
portion of such Interest Period if such Interest Period had
not been so terminated; or (iv) in the event that the
Borrower shall prepay or repay all or any part of the
principal amount of a Eurodollar Advance or a Competitive
Bid Loan prior to the last day of the Interest Period ap
plicable thereto, a period equal to the period from and in
cluding the date of such prepayment or repayment to but ex
cluding the last day of such Interest Period.
"Required Lenders": at any time (i) prior to the
Commitment Termination Date, Lenders having Commitment
Amounts greater than or equal to 51% of the Aggregate
Commitment Amount, and (ii) at all other times, the Issuing
Bank and the Lenders having Outstandings greater than or
equal to 51% of the aggregate Outstandings of the Issuing
Bank and the Lenders (or, if no there are no Outstandings
at such time, Lenders having Commitment Amounts greater
than or equal to 51% of the Aggregate Commitment Amount on
the last day on which Commitments did exist).
"Reserve Period": the period beginning on the
Effective Date and ending on the earlier of (i) the day on
which the Borrower satisfies the conditions set forth in
Section 5.2 and (ii) September 2, 1997.
"Restricted Payment": as to any Person (i) any
dividend or other distribution, direct or indirect, on
account of any shares of Capital Stock or other equity
interest in such Person now or hereafter outstanding (other
than a dividend payable solely in shares of such Capital
Stock to the holders of such shares) and (ii) any redemp
tion, retirement, sinking fund or similar payment, purchase
or other acquisition, direct or indirect, of any shares of
any class of Capital Stock or other equity interest in such
Person now or hereafter outstanding.
"Revolving Credit Exposure": with respect to any
Lender as of any date, the sum as of such date of (i) the
outstanding principal balance of such Lender's Revolving
Credit Loans, plus (ii) an amount equal to such Lender's
Letter of Credit Exposure.
"Revolving Credit Loan" and "Revolving Credit
Loans": as defined in Section 2.1.
"Revolving Credit Note" and "Revolving Credit
Notes": as defined in Section 2.2.
"SEC": the Securities and Exchange Commission or
any Governmental Authority succeeding to the functions
thereof.
"Senior Debt Rating": at any date, the credit
rating identified by Standard & Poor's or Moody's as the
credit rating which (i) it has assigned to long term senior
debt of the Borrower or (ii) would assign to long term
senior debt of the Borrower were the Borrower to issue or
have outstanding any long term senior debt on such date.
If either (but not both) Moody's or Standard & Poor's shall
cease to be in the business of rating corporate debt obliga
tions, the Pricing Level shall be determined on the basis
of the ratings provided by the other rating agency and the
Leverage Ratio.
"Senior Note Reserve Amount": $100,000,000, as
the same may be reduced from time to time pursuant to
Section 2.5.
"Senior Notes": the 7.84% Senior Notes, due
September 1, 2004, and issued by the Borrower pursuant to
the Note Agreement, as the same may be amended,
supplemented or otherwise modified from time to time.
"Special Counsel": ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP,
special counsel to the Administrative Agent.
"Standard & Poor's": Standard & Poor's Ratings
Services, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., or
any successor thereto.
"Standby Letter of Credit": a Letter of Credit
issued by the Issuing Bank hereunder other than a
Documentary Letter of Credit, including direct-pay Letters
of Credit.
"Submission Deadline": as defined in Section
2.4(b).
"Subsidiary": as to any Person, any corporation,
association, partnership, limited liability company, joint
venture or other business entity of which such Person or
any Subsidiary of such Person, directly or indirectly,
either (i) in respect of a corporation, owns or controls
more than 50% of the outstanding Capital Stock having
ordinary voting power to elect a majority of the Managing
Person, irrespective of whether a class or classes shall or
might have voting power by reason of the happening of any
contingency, or (ii) in respect of an association,
partnership, limited liability company, joint venture or
other business entity, is entitled to share in more than
50% of the profits and losses, however determined.
"Taxes": as defined in Section 3.10(a).
"Tax on the Income": as defined in Section
3.10(a).
"Type": with respect to any Revolving Credit
Loan, the character of such Revolving Credit Loan as an ABR
Advance or a Eurodollar Advance, each of which constitutes
a type of loan.
"United States": the United States of America (in
cluding the States thereof and the District of Columbia).
"Unqualified Amount": as defined in Section
3.1(c).
"Upstream Dividends": as defined in Section 8.11.
"U.S. Person": a citizen or resident of the
United States, a corporation, partnership or other entity
created or organized in or under any laws of the United
States, or any estate or trust that is subject to United
States federal income taxation regardless of the source of
its income.
"▇▇▇▇▇ Fargo": ▇▇▇▇▇ Fargo Bank, National
Association.
"▇▇▇▇▇ Fargo Loan Documents": collectively, (i)
the Credit Agreement, dated as of March 25, 1997, between
the Borrower and ▇▇▇▇▇ Fargo, (ii) the promissory note made
by the Borrower to ▇▇▇▇▇ Fargo pursuant thereto and (iii)
all other documents executed and delivered by the Borrower
or any of its Subsidiaries in connection therewith.
1.2. Principles of Construction
(a) All terms defined in a Loan Document shall
have the meanings given such terms therein when used in the
other Loan Documents or any certificate, opinion or other
document made or delivered pursuant thereto, unless
otherwise defined therein.
(b) As used in the Loan Documents and in any cer
tificate, opinion or other document made or delivered pursu
ant thereto, accounting terms not defined in Section 1.1,
and accounting terms partly defined in Section 1.1, to the
extent not defined, shall have the respective meanings
given to them under GAAP. If at any time any change in
GAAP would affect the computation of any financial ratio or
requirement set forth in this Agreement, the Administrative
Agent, the Lenders and the Borrower shall negotiate in good
faith to amend such ratio or requirement to reflect such
change in GAAP (subject to the approval of the Required
Lenders), provided that, until so amended, (i) such ratio
or requirement shall continue to be computed in accordance
with GAAP prior to such change therein and (ii) the
Borrower shall provide to the Administrative Agent and the
Lenders financial statements and other documents required
under this Agreement or as reasonably requested hereunder
setting forth a reconciliation between calculations of such
ratio or requirement made before and after giving effect to
such change in GAAP.
(c) The words "hereof", "herein", "hereto" and
"hereunder" and similar words when used in a Loan Document
shall refer to such Loan Document as a whole and not to any
particular provision thereof, and Section, schedule and ex
hibit references contained therein shall refer to Sections
thereof or schedules or exhibits thereto unless otherwise
expressly provided therein.
(d) The phrase "may not" is prohibitive and not
permissive.
(e) Unless the context otherwise requires, words
in the singular number include the plural, and words in the
plural include the singular.
(f) Unless specifically provided in a Loan
Document to the contrary, any reference to a time shall
refer to such time in New York.
(g) Unless specifically provided in a Loan
Document to the contrary, in the computation of periods of
time from a specified date to a later specified date, the
word "from" means "from and including" and the words "to"
and "until" each means "to but excluding".
(h) References in any Loan Document to a fiscal
period shall refer to that fiscal period of the Borrower.
2. AMOUNT AND TERMS OF LOANS AND LETTERS OF CREDIT
2.1. Revolving Credit Loans
Subject to the terms and conditions hereof, each
Lender severally (and not jointly) agrees to make revolving
credit loans (each a "Revolving Credit Loan" and, as the
context may require, collectively with all other Revolving
Credit Loans of such Lender and with the Revolving Credit
Loans of all other Lenders, the "Revolving Credit Loans")
to the Borrower from time to time during the Commitment
Period, provided that immediately after giving effect
thereto (i) such Lender's Revolving Credit Exposure would
not exceed such Lender's Available Commitment Amount, and
(ii) the Aggregate Credit Exposure would not exceed the Ag
gregate Available Commitment Amount. During the Commitment
Period, the Borrower may borrow, prepay in whole or in part
and reborrow under the Commitments, all in accordance with
the terms and conditions of this Agreement. Subject to the
provisions of Sections 2.3 and 3.3, at the option of the
Borrower, Revolving Credit Loans may be made as one or more
(i) ABR Advances, (ii) Eurodollar Advances or (iii) any
combination thereof.
2.2. Revolving Credit Notes
The Revolving Credit Loans made by each Lender
shall be evidenced by a promissory note of the Borrower,
substantially in the form of Exhibit B-1, with appropriate
insertions therein as to date and principal amount (each,
as indorsed or modified from time to time, a "Revolving
Credit Note" and, collectively with the Revolving Credit
Notes of all other Lenders, the "Revolving Credit Notes"),
payable to the order of such Lender for the account of its
Applicable Lending Office, dated the first Borrowing Date.
The outstanding principal balance of the Revolving Credit
Loans shall be due and payable on the Maturity Date.
2.3. Procedure for Borrowing Revolving Credit Loans
(a) The Borrower may borrow under the
Commitments on any Business Day during the Commitment
Period, provided that the Borrower shall notify the Adminis
trative Agent by the delivery of a Borrowing Request, which
shall be sent by telecopy and shall be irrevocable
(confirmed promptly, and in any event within five Business
Days, by the delivery to the Administrative Agent of a
Borrowing Request manually signed by the Borrower), no
later than: 1:30 p.m., three Business Days prior to the re
quested Borrowing Date, in the case of Eurodollar Advances
and 1:30 p.m., on the requested Borrowing Date, in the case
of ABR Advances, specifying (A) the aggregate principal
amount to be borrowed under the Commitments, (B) whether
such borrowing is to be made from the Senior Note Reserve
Amount in connection with the satisfaction of the
conditions set forth in Section 5.2, (C) the requested Bor
rowing Date, (D) whether such borrowing is to consist of
one or more Eurodollar Advances, ABR Advances, or a combina
tion thereof and (E) if the borrowing is to consist of one
or more Eurodollar Advances, the length of the Interest
Period for each such Eurodollar Advance. Each (i)
Eurodollar Advance to be made on a Borrowing Date, when ag
gregated with all amounts to be converted to a Eurodollar
Advance on such date and having the same Interest Period as
such first Eurodollar Advance, shall equal no less than
$2,500,000 or such amount plus a whole multiple of $500,000
in excess thereof, and (ii) each ABR Advance made on each
Borrowing Date shall equal no less than $1,000,000 or such
amount plus a whole multiple of $200,000 in excess thereof
or, if less, the unused portion of the Aggregate Available
Commitment Amount.
(b) Upon receipt of each Borrowing Request, the
Administrative Agent shall promptly notify each Lender
thereof. Subject to its receipt of the notice referred to
in the preceding sentence, each Lender will make the amount
of its Commitment Percentage of the requested Revolving
Credit Loans available to the Administrative Agent for the
account of the Borrower at the office of the Administrative
Agent set forth in Section 11.2 not later than 3:30 p.m. on
the relevant Borrowing Date requested by the Borrower, in
funds immediately available to the Administrative Agent at
such office. The amounts so made available to the
Administrative Agent on such Borrowing Date will then,
subject to the satisfaction of the terms and conditions of
this Agreement, as determined by the Administrative Agent,
be made available on such date to the Borrower by the
Administrative Agent at the office of the Administrative
Agent specified in Section 11.2 by wire transfer to the
bank account specified by the Borrower in the Account
Designation Letter on file with the Administrative Agent,
it being understood that for all purposes under this Agree
ment, the Administrative Agent may rely and shall be fully
protected in relying on an Account Designation Letter until
it receives written instructions from an Authorized Signa
tory of the Borrower to the contrary.
(c) Unless the Administrative Agent shall have
received prior notice from a Lender (by telephone or
otherwise, such notice to be promptly confirmed by telecopy
or other writing) that such Lender will not make available
to the Administrative Agent such Lender's Commitment
Percentage of the Revolving Credit Loans requested by the
Borrower, the Administrative Agent may assume that such
Lender has made such share available to the Administrative
Agent on the Borrowing Date in accordance with this
Section, provided that such Lender received notice of the
requested Revolving Credit Loans from the Administrative
Agent, and the Administrative Agent may, in reliance upon
such assumption, make available to the Borrower on the Bor
rowing Date a corresponding amount. If and to the extent
such Lender shall not have so made its Commitment Per
centage of such Revolving Credit Loans available to the
Administrative Agent and such Lender shall not have
provided such prior notice to the Administrative Agent
pursuant to the previous sentence, such Lender and the Bor
rower severally agree to pay to the Administrative Agent
forthwith on demand such corresponding amount (to the
extent not previously paid by the other), together with in
terest thereon for each day from the date such amount is
made available to the Borrower to the date such amount is
paid to the Administrative Agent, at a rate per annum equal
to, in the case of the Borrower, the applicable interest
rate set forth in Section 3.1 for ABR Advances, and, in the
case of such Lender, at a rate of interest per annum equal
to the Federal Funds Rate for the first three days after
the due date of such payment until the date such payment is
received by the Administrative Agent and the Federal Funds
Rate plus 2% thereafter. Such payment by the Borrower,
however, shall be without prejudice to its rights against
such Lender. If such Lender shall pay to the
Administrative Agent such corresponding amount, such amount
so paid shall constitute such Lender's Revolving Credit
Loan as part of the Revolving Credit Loans for purposes of
this Agreement, which Revolving Credit Loan shall be deemed
to have been made by such Lender on the Borrowing Date
applicable to such Revolving Credit Loans, it being
understood that the Borrower shall have no obligation to
pay interest to such Lender on such corresponding amount to
the extent that it shall have paid interest thereon to the
Administrative Agent for the period during which such
amount was made available to the Borrower by the
Administrative Agent.
(d) If a Lender makes a new Revolving Credit
Loan on a Borrowing Date on which the Borrower is to repay
a Loan from such Lender, such Lender shall apply the
proceeds of such new Revolving Credit Loan to make such
repayment, and only the excess of the proceeds of such new
Revolving Credit Loan over the Loan being repaid need be
made available to the Administrative Agent.
2.4. Competitive Bid Loans; Procedure
(a) The Borrower may, provided no Default or
Event of Default shall then exist or be continuing, make a
request for a Competitive Bid Loan by delivering a
Competitive Bid Request to the Administrative Agent as set
forth below by 1:30 p.m. at least one Business Day prior to
the proposed Borrowing Date. Each Competitive Bid Request
given to the Administrative Agent (which shall promptly on
the same day give notice thereof to each Lender by telecopy
transmission of an Invitation to Bid if the Competitive Bid
Request is not rejected pursuant to this Section) shall be
given in writing by telecopy transmission (confirmed
promptly, and in any event within five Business Days, by
the delivery to the Administrative Agent of a Competitive
Bid Request manually signed by the Borrower), and shall
specify (i) the proposed Borrowing Date, which shall be a
Business Day, (ii) the aggregate amount of the requested
Competitive Bid Loans (the "Maximum Request"), which shall
be in a principal amount equal to $2,500,000 or such amount
plus a whole multiple of $500,000 in excess thereof, (iii)
the Competitive Interest Period(s) therefor and the last
day of each such Competitive Interest Period, and (iv) if
more than one Competitive Interest Period is so specified,
the principal amount allocable to each such Competitive
Interest Period (which amount shall not be less than
$2,500,000 or such amount plus a whole multiple of $500,000
in excess thereof); provided however, that immediately
after giving effect to the requested Competitive Bid Loan,
the Aggregate Credit Exposure shall not exceed the
Aggregate Available Commitment Amount. A Competitive Bid
Request that does not conform substantially to the form of
Exhibit I shall be rejected, and the Administrative Agent
shall promptly notify the Borrower of such rejection. Not
withstanding anything contained herein to the contrary, (i)
not more than three Competitive Interest Periods may be re
quested pursuant to any Competitive Bid Request, and (ii)
not more than eight Competitive Bid Loans may be out
standing in the aggregate at any one time, provided,
however, that at no time shall the number of the
Competitive Interest Periods in respect of outstanding Com
petitive Bid Loans and Eurodollar Interest Periods in
respect of outstanding Eurodollar Advances exceed ten.
(b) Each Lender in its sole discretion may (but
is not obligated to) submit one or more Competitive Bids to
the Administrative Agent not later than 12:00 noon on the
proposed Borrowing Date specified in such Competitive Bid
Request (such time being herein called the "Submission
Deadline"), by telecopy or other writing, and thereby
irrevocably offer to make all or any part (any such part
referred to as a "Portion") of any Competitive Bid Loan
described in the relevant Competitive Bid Request at a rate
of interest per annum (each a "Bid Rate") specified therein
in an aggregate principal amount of not less than
$2,500,000 or such amount plus a whole multiple of $500,000
in excess thereof, provided that Competitive Bids submitted
by BNY may only be submitted if BNY notifies the Borrower
of the terms of its Competitive Bid not later than thirty
minutes prior to the Submission Deadline. Multiple
Competitive Bids may be delivered to the Administrative
Agent by a Lender. The aggregate Portions of Competitive
Bid Loans for any or all Competitive Interest Periods
offered by each Lender in its Competitive Bid may exceed
the Maximum Request contained in the relevant Competitive
Bid Request, provided that each Competitive Bid shall set
forth the maximum aggregate amount of the Competitive Bid
Loans offered thereby which the Borrower may accept (the
"Maximum Offer"), which Maximum Offer shall not exceed the
Maximum Request. If the Administrative Agent has not
received a Competitive Bid from any Lender by the Submis
sion Deadline, such Lender shall be deemed not to have made
a Competitive Bid and shall not be permitted or obligated
to make a Competitive Bid Loan on the proposed Borrowing
Date.
(c) The Administrative Agent shall promptly give
notice by telephone (promptly confirmed by telecopy or
other writing) to the Borrower of all Competitive Bids
received by the Administrative Agent prior to the
Submission Deadline which comply in all material respects
with this Section. The Borrower, shall, in its sole
discretion, but subject to Section 2.4(d), irrevocably
accept or reject any such Competitive Bid (or any Portion
thereof) not later than 12:30 p.m. on the day of the
Submission Deadline by notice to the Administrative Agent
by telephone (confirmed by telecopy or other writing in the
form of a Competitive Bid Accept/Reject Letter promptly the
same day). Promptly upon receipt by the Administrative
Agent of such a Competitive Bid Accept/Reject Letter, the
Administrative Agent will give notice to each Lender that
submitted a Competitive Bid as to the extent, if any, that
such Lender's Competitive Bid shall have been accepted. If
the Administrative Agent fails to receive notice from the
Borrower of its acceptance or rejection of any Competitive
Bids at or prior to 1:00 p.m. on the day of the Submission
Deadline, all such Competitive Bids shall be deemed to have
been rejected by the Borrower, and the Administrative Agent
will give to each Lender that submitted a Competitive Bid
notice of such rejection by telephone on such day. In due
course following the acceptance of any Competitive Bid, the
Administrative Agent shall notify each Lender which submit
▇▇▇ a Competitive Bid, in the form of a Competitive Bid
Loan Confirmation, of the amount, maturity date and Bid
Rate for each Competitive Bid Loan.
(d) If the Borrower accepts a Portion of a
proposed Competitive Bid Loan for a single Competitive
Interest Period at the Bid Rate provided therefor in a
Lender's Competitive Bid, such Portion shall be in a
principal amount of $2,500,000 or such amount plus a whole
multiple of $500,000 in excess thereof (subject to such
lesser allocation as may be made pursuant to the provisions
of this Section 2.4(d)). The aggregate principal amount of
Competitive Bid Loans accepted by the Borrower following
Competitive Bids responding to a Competitive Bid Request
shall not exceed the Maximum Request. The aggregate
principal amount of Competitive Bid Loans accepted by the
Borrower pursuant to a Lender's Competitive Bid shall not
exceed the Maximum Offer therein contained. If the Bor
rower accepts any Competitive Bid Loans or Portion offered
in any Competitive Bid, the Borrower must accept
Competitive Bids (and Competitive Bid Loans and Portions
thereby offered) based exclusively upon the successively
lowest Bid Rates within each Competitive Interest Period
and no other criteria. If two or more Lenders submit Com
petitive Bids with identical Bid Rates for the same Com
petitive Interest Period and the Borrower accepts any
thereof, the Borrower shall, subject to the first three sen
tences of this Section 2.4(d), accept all such Competitive
Bids as nearly as possible in proportion to the amounts of
such Lender's respective Competitive Bids with identical
Bid Rates for such Competitive Interest Period, provided,
that if the amount of Competitive Bid Loans to be so
allocated is not sufficient to enable each such Lender to
make such Competitive Bid Loan (or Portions thereof) in an
aggregate principal amount of $2,500,000 or such amount
plus a whole multiple of $500,000 in excess thereof, the
Borrower shall round the Competitive Bid Loans (or Portions
thereof) allocated to such Lender or Lenders as the
Borrower shall select as necessary to a minimum of
$2,500,000 or such amount plus a whole multiple of $500,000
in excess thereof.
(e) Not later than 3:30 p.m. on the relevant Bor
rowing Date, each Lender whose Competitive Bid was accepted
by the Borrower shall make available to the Administrative
Agent at its office set forth in Section 11.2, in im
mediately available funds, the proceeds of such Lender's
Competitive Bid Loan(s). The amounts so made available to
the Administrative Agent on such Borrowing Date will then,
subject to the satisfaction of the terms and conditions of
this Agreement, as determined by the Administrative Agent,
be made available by the Administrative Agent in like funds
as received on such Borrowing Date to the Borrower by the
Administrative Agent at the office of the Administrative
Agent set forth in Section 11.2 by wire transfer to the
bank account specified by the Borrower in the Account
Designation Letter on file with the Administrative Agent.
(f) All notices required by this Section 2.4
shall be given in accordance with Section 11.2.
(g) The Competitive Bid Loans made by each
Lender shall be evidenced by a promissory note of the
Borrower, substantially in the form of Exhibit B-2 (each,
as indorsed or modified from time to time, a "Competitive
Bid Note" and, collectively with the Competitive Bid Notes
of all other Lenders, the "Competitive Bid Notes"), payable
to the order of such Lender for the account of its
Applicable Lending Office, and dated the Effective Date.
Each Competitive Bid Loan shall be due and payable on the
earlier of (i) the last day of the Competitive Interest
Period applicable thereto and (ii) the Maturity Date.
Competitive Bid Loans may not be prepaid.
2.5. Termination or Reduction of Commitments
(a) Voluntary Reductions. The Borrower shall
have the right, upon at least three Business Days' prior
written notice to the Administrative Agent, (i) at any time
when the Aggregate Credit Exposure shall be zero (and no
Borrowing Request, Letter of Credit Request or Competitive
Bid Request shall be pending), to terminate the Commitments
of all of the Lenders, and (ii) at any time and from time
to time when the Aggregate Commitment Amount shall exceed
the Aggregate Credit Exposure, to permanently reduce the Ag
gregate Commitment Amount by a sum not greater than the
amount of such excess, provided, however, that each such
partial reduction shall be in the amount of $2,500,000 or
such amount plus a whole multiple of $2,500,000 in excess
thereof. In the event that the Borrower elects to reduce
the Aggregate Commitment Amount during the Reserve Period,
unless specified to the contrary in its written notice of
such reduction, such reduction shall first be applied to
reduce the Senior Note Reserve Amount.
(b) Mandatory Reductions Relating to
Dispositions. The Aggregate Commitment Amount shall be
permanently reduced by the amounts, at the times and to the
extent required by Section 8.4(c).
(c) Mandatory Reductions Relating to Redemption
of Senior Notes. In the event that the Borrower has not
satisfied the conditions set forth in Section 5.2 during
the Reserve Period, the Aggregate Commitment Amount shall
be permanently reduced by an amount equal to the Senior
Note Reserve Amount.
(d) In General. Each reduction of the Aggregate
Commitment Amount shall be made by reducing each Lender's
Commitment Amount by an amount equal to such Lender's
Commitment Percentage of such reduction. Simultaneously
with each reduction of the Aggregate Commitment Amount
under this Section, the Borrower shall pay the Facility Fee
accrued on the amount by which the Aggregate Commitment
Amount has been reduced.
2.6. Prepayments of the Loans
(a) Voluntary Prepayments. The Borrower may, at
its option, prepay the Revolving Credit Loans without
premium or penalty (but subject to Section 3.5), in full at
any time or in part from time to time by notifying the
Administrative Agent in writing no later than 1:00 p.m. on
the proposed prepayment date, in the case of Revolving
Credit Loans consisting of ABR Advances and at least three
Business Days prior to the proposed prepayment date, in the
case of Revolving Credit Loans consisting of Eurodollar Ad
vances, specifying whether the Revolving Credit Loans to be
prepaid consist of ABR Advances, Eurodollar Advances, or a
combination thereof, the amount to be prepaid and the date
of prepayment. Each such notice shall be irrevocable and
the amount specified in each such notice shall be due and
payable on the date specified, together with accrued in
terest to the date of such payment on the amount prepaid.
Upon receipt of such notice, the Administrative Agent shall
promptly notify each Lender thereof. Each partial prepay
ment of the Revolving Credit Loans pursuant to this
subsection shall be in an aggregate principal amount of
$2,500,000 or such amount plus a whole multiple of $500,000
in excess thereof, or, if less, the outstanding principal
balance of the Revolving Credit Loans. After giving effect
to any partial prepayment with respect to Eurodollar
Advances which were made (whether as the result of a
borrowing or a conversion) on the same date and which had
the same Interest Period, the outstanding principal balance
of such Eurodollar Advances shall exceed (subject to
Section 3.3) $2,500,000 or such amount plus a whole mul
tiple of $500,000 in excess thereof. Competitive Bid Loans
may not be prepaid.
(b) Mandatory Prepayments of Loans Relating to
Termination of the Commitments and Reductions of the
Aggregate Commitment Amount. Upon any termination of the
Commitments of all of the Lenders, the Borrower shall
prepay the outstanding principal balance of the Revolving
Credit Loans and deposit into the Cash Collateral Account
an amount which would cause the balance on deposit in the
Cash Collateral Account to equal or exceed an amount equal
to (i) the aggregate outstanding principal balance of the
Competitive Bid Loans, plus (ii) the Letter of Credit
Exposure of all Lenders. Upon each reduction of the
Aggregate Commitment Amount, if the Aggregate Credit
Exposure would exceed the Aggregate Commitment Amount as so
reduced, the Borrower shall either (A) prepay the Revolving
Credit Loans, or (B) make a deposit into the Cash Col
lateral Account, or both, so that Aggregate Commitment
Amount as so reduced plus the balance on deposit in the
Cash Collateral Account would exceed the Aggregate Credit
Exposure.
(c) In General. Simultaneously with each
prepayment of a Loan, the Borrower shall prepay all accrued
interest on the amount prepaid through the date of
prepayment. Each prepayment under subsection (b) above,
shall be applied (i) first, to the outstanding principal
amount of the Revolving Credit Loans, and (ii) second, to
the outstanding principal amount of the Competitive Bid
Loans, ratably among the Lenders holding Competitive Bid
Loans in proportion to the aggregate principal amount of
Competitive Bid Loans held by each. Unless otherwise speci
fied by the Borrower, each prepayment of Revolving Credit
Loans shall first be applied to ABR Advances. If any pre
payment is made in respect of any Eurodollar Advance, in
whole or in part, prior to the last day of the applicable
Interest Period, the Borrower agrees to indemnify the
Lenders in accordance with Section 3.5.
2.7. Use of Proceeds
The Borrower agrees that the proceeds of the
Loans shall be used solely, directly or indirectly, to (i)
repay the Existing Bank Debt, (ii) pay all of the Fees due
hereunder, (iii) pay the reasonable out-of-pocket fees and
expenses incurred by the Borrower in connection with the
Loan Documents and (iv) for the Borrower's general corpo
rate purposes not inconsistent with the provisions hereof,
including the repurchase of the Capital Stock of the
Borrower, provided, however, that the proceeds of any Loans
made in connection with the satisfaction of the conditions
set forth in Section 5.2, shall be used solely to repay the
Indebtedness under the Senior Notes and related transaction
expenses. Notwithstanding anything to the contrary
contained in any Loan Document, the Borrower agrees that no
part of the proceeds of any Loan will be used, directly or
indirectly, for a purpose which violates any law,
including, without limitation, the provisions of Regula
tions G, T, U or X of the Board of Governors of the Federal
Reserve System, as amended.
2.8. Letter of Credit Sub-Facility
(a) ▇▇▇▇▇ Fargo issued the Existing Letters of
Credit under the Existing ▇▇▇▇▇ Fargo Loan Documents. As
of the Effective Date, each Lender (other than ▇▇▇▇▇ Fargo)
severally assumes a portion of the risk associated with the
Existing Letters of Credit in accordance with its
Commitment Percentage. Subject to the terms and conditions
of this Agreement, the Issuing Bank agrees, in reliance on
the agreement of the other Lenders set forth in Section
2.9, to issue Documentary Letters of Credit and Standby Let
ters of Credit (collectively, the "Additional Letters of
Credit"; each, individually, an "Additional Letter of
Credit") during the Commitment Period for the account of
the Borrower, provided that immediately after the issuance
of each Additional Letter of Credit (i) the Letter of
Credit Exposure of all Lenders (whether or not the con
ditions for drawing under any Letter of Credit have or may
be satisfied) would not exceed the Letter of Credit Com
mitment Amount and (ii) the Aggregate Credit Exposure would
not exceed the Aggregate Commitment Amount. Each
Additional Letter of Credit issued pursuant to this Section
shall have an expiration date which shall be not later than
the earlier of (i) twelve months after the date of issuance
thereof or (ii) ten Business Days before the Maturity Date.
No Additional Letter of Credit shall be issued if the
Administrative Agent, the Issuing Bank or any Lender by
notice to the Administrative Agent no later than 1:00 p.m.
one Business Day prior to the requested date of issuance of
such Letter of Credit, shall have determined that any condi
tion set forth in Section 5 or 6 has not been satisfied.
▇▇▇▇▇ Fargo agrees that it will not agree to or otherwise
permit any amendment or other modification to, waiver
under, or extension of, any Existing Letter of Credit, it
being the intention of the parties that each Existing
Letter of Credit which would otherwise be extended on its
stated expiration date shall be replaced, subject to the
terms and conditions of this Agreement, on such stated
expiration date by an Additional Letter of Credit.
(b) Each Additional Letter of Credit shall be
issued for the account of the Borrower in support of an
obligation of the Borrower in favor if a beneficiary who
has requested the issuance of such Letter of Credit as a
condition to a transaction entered into in connection with
the Borrower's ordinary course of business. The Borrower
shall give the Administrative Agent a Letter of Credit
Request for the issuance of each Additional Letter of
Credit by 1:00 p.m., three Business Days prior to the re
quested date of issuance. Each Letter of Credit Request
shall be accompanied by the Issuing Bank's standard Ap
plication and Agreement for Standby Letter of Credit (each,
a "Reimbursement Agreement") executed by an Authorized
Signatory of the Borrower, and shall specify (i) whether
the requested Letter of Credit is a Documentary Letter of
Credit or a Standby Letter of Credit, (ii) the beneficiary
of such Letter of Credit and the obligations of the Bor
rower in respect of which such Additional Letter of Credit
is to be issued, (iii) the Borrower's proposal as to the
conditions under which a drawing may be made under such
Additional Letter of Credit and the documentation to be
required in respect thereof, (iv) the maximum amount to be
available under such Additional Letter of Credit, and (v)
the requested dates of issuance and expiration. Upon
receipt of such Letter of Credit Request from the Borrower,
the Administrative Agent shall promptly notify the Issuing
Bank and each other Lender thereof. Each Additional Letter
of Credit shall be in form and substance reasonably
satisfactory to the Issuing Bank, with such provisions with
respect to the conditions under which a drawing may be made
thereunder and the documentation required in respect of
such drawing as the Issuing Bank shall reasonably require.
Each Additional Letter of Credit shall be used solely for
the purposes described therein. The Issuing Bank shall, on
the proposed date of issuance and subject to the terms and
conditions of the Reimbursement Agreement and to the other
terms and conditions of this Agreement, issue the requested
Additional Letter of Credit.
(c) Each payment by the Issuing Bank of a draft
drawn under a Letter of Credit shall give rise to an obliga
tion on the part of the Borrower to reimburse the Issuing
Bank immediately for the amount thereof.
2.9. Letter of Credit Participation and Funding Commit
ments
(a) Each Lender hereby unconditionally, ir
revocably and severally (and not jointly) for itself only,
without any notice to or the taking of any action by such
Lender, takes (i) on the Effective Date with respect to
each Existing Letter of Credit and (ii) upon the date of
issuance with respect to each Additional Letter of Credit,
an undivided participating interest in the obligations of
▇▇▇▇▇ Fargo under and in connection with each Existing
Letter of Credit and the Issuing Bank under and in con
nection with each Additional Letter of Credit, in an amount
equal to such Lender's Commitment Percentage of the amount
of such Existing Letter of Credit or Additional Letter of
Credit, as the case may be. Each Lender shall be liable to
▇▇▇▇▇ Fargo or the Issuing Bank for its Commitment
Percentage of the unreimbursed amount of any draft drawn
and honored under each Existing Letter of Credit or
Additional Letter of Credit, respectively. Each Lender
shall also be liable for an amount equal to the product of
its Commitment Percentage and any amounts paid by the
Borrower pursuant to Section 2.8(c) and 2.10 that are
subsequently rescinded or avoided, or must otherwise be
restored or returned. Such liabilities shall be
unconditional and without regard to the occurrence of any
Default or Event of Default or the compliance by the
Borrower with any of its obligations under the Loan
Documents.
(b) ▇▇▇▇▇ Fargo or the Issuing Bank, as the case
may be, will promptly notify the Administrative Agent, and
the Administrative Agent will promptly notify each Lender
(which notice shall be promptly confirmed in writing) of
the date and the amount of any draft presented under any
Letter of Credit with respect to which full reimbursement
of payment is not made by the Borrower as provided in
Section 2.8(c), and forthwith upon receipt of such notice,
such Lender (other than ▇▇▇▇▇ Fargo in its capacity as a
Lender in the case of an unreimbursed drawing under an
Existing Letter of Credit and the Issuing Bank in its
capacity as a Lender in the case of an unreimbursed drawing
under an Additional Letter of Credit) shall make available
to the Administrative Agent for the account of ▇▇▇▇▇ Fargo
or the Issuing Bank, as the case may be, its Commitment
Percentage of the amount of such unreimbursed draft at the
office of the Administrative Agent specified in Section
11.2, in lawful money of the United States and in im
mediately available funds, before 4:00 p.m., on the day
such notice was given by the Administrative Agent, if the
relevant notice was given by the Administrative Agent at or
prior to 1:00 p.m. on such day, and before 12:00 noon, on
the next Business Day, if the relevant notice was given by
the Administrative Agent after 1:00 p.m. on such day. The
Administrative Agent shall distribute the payments made by
each Lender (other than ▇▇▇▇▇ Fargo in its capacity as a
Lender in the case of an unreimbursed drawing under an
Existing Letter of Credit and the Issuing Bank in its
capacity as a Lender in the case of an unreimbursed drawing
under an Additional Letter of Credit) pursuant to the im
mediately preceding sentence to ▇▇▇▇▇ Fargo or the Issuing
Bank, as the case may be, promptly upon receipt thereof in
like funds as received. Each Lender shall indemnify and
hold harmless the Administrative Agent, ▇▇▇▇▇ Fargo and the
Issuing Bank from and against any and all losses,
liabilities (including liabilities for penalties), actions,
suits, judgments, demands, costs and expenses (including,
without limitation, reasonable attorneys' fees and expenses
payable to ▇▇▇▇▇ Fargo or the Issuing Bank, as the case may
be, as the issuer of the relevant Letter of Credit)
resulting from any failure on the part of such Lender to
provide, or from any delay in providing, the Administrative
Agent with such Lender's Commitment Percentage of the
amount of any payment made by ▇▇▇▇▇ Fargo or the Issuing
Bank, as the case may be, under a Letter of Credit in
accordance with this subsection (b) (except in respect of
losses, liabilities or other obligations suffered by ▇▇▇▇▇
Fargo or the Issuing Bank, as the case may be, resulting
from its gross negligence or willful misconduct). If a
Lender does not make available to the Administrative Agent
when due such Lender's Commitment Percentage of any
unreimbursed payment made by ▇▇▇▇▇ Fargo or the Issuing
Bank, as the case may be, under a Letter of Credit (other
than payments made by ▇▇▇▇▇ Fargo or the Issuing Bank, as
the case may be, by reason of its gross negligence or
willful misconduct), such Lender shall be required to pay
interest to the Administrative Agent for the account of
▇▇▇▇▇ Fargo or the Issuing Bank, as the case may be, on
such Lender's Commitment Percentage of such amount at a
rate of interest per annum equal to the Federal Funds Rate
for the first three days after the due date of such pay
ment, and the Federal Funds Rate plus 2% thereafter, until
the date such payment is received by the Administrative
Agent. The Administrative Agent shall distribute such in
terest payments to ▇▇▇▇▇ Fargo or the Issuing Bank, as the
case may be, upon receipt thereof in like funds as re
ceived.
(c) Whenever the Administrative Agent is
reimbursed by the Borrower, for the account of ▇▇▇▇▇ Fargo
or the Issuing Bank, as the case may be, for any payment
under a Letter of Credit and such payment relates to an
amount previously paid by a Lender in respect of its
Commitment Percentage of the amount of such payment under
such Letter of Credit, the Administrative Agent (or ▇▇▇▇▇
Fargo or the Issuing Bank, as the case may be, to the
extent that the Administrative Agent has paid the same to
it) will pay over such payment to such Lender (i) before
4:00 p.m. on the Business Day such payment from the
Borrower is received, if such payment is received at or
prior to 1:00 p.m. on such day, or (ii) before 1:00 p.m. on
the next succeeding Business Day, if such payment from the
Borrower is received after 1:00 p.m. on such day.
2.10. Absolute Obligation With Respect to Letter
of Credit Payments
The Borrower's obligation to reimburse the
Administrative Agent for the account of ▇▇▇▇▇ Fargo or the
Issuing Bank, as the case may be, in respect of a Letter of
Credit for each payment made under or in respect of such
Letter of Credit shall be absolute and unconditional and
joint and several under any and all circumstances and
irrespective of any set-off, counterclaim or defense to pay
ment which the Borrower may have or have had against the
beneficiary of such Letter of Credit, the Administrative
Agent, ▇▇▇▇▇ Fargo or the Issuing Bank, as the case may be,
as issuer of such Letter of Credit, any Lender or any other
Person, including, without limitation, any defense based on
the failure of any drawing to conform to the terms of such
Letter of Credit, any drawing document proving to be
forged, fraudulent or invalid, or the legality, validity,
regularity or enforceability of such Letter of Credit; pro
vided, however, that with respect to any Letter of Credit,
the foregoing shall not relieve ▇▇▇▇▇ Fargo or the Issuing
Bank, as the case may be, of any liability it may have to
the Borrower for any actual damages sustained by the
Borrower arising from a wrongful payment under such Letter
of Credit made as a result of ▇▇▇▇▇ Fargo's or the Issuing
Bank's, as the case may be, gross negligence or willful mis
conduct.
2.11. Payments
(a) Each payment, including each prepayment, of
principal and interest on the Revolving Credit Loans, of
the Facility Fee, the Letter of Credit Commissions and of
all of the other fees to be paid to the Administrative
Agent and the Lenders in connection with this Agreement
(the Facility Fee and the Letter of Credit Commissions,
together with all of such other fees, being sometimes
hereinafter collectively referred to as the "Fees") shall
be made by the Borrower prior to 4:00 p.m. on the date such
payment is due to the Administrative Agent for the account
of the applicable Lenders at the Administrative Agent's
office specified in Section 11.2, in each case in lawful
money of the United States, in immediately available funds
and without set-off or counterclaim. As between the
Borrower and the Lenders, any payment by the Borrower to
the Administrative Agent for the account of the Lenders
shall be deemed to be payment by the Borrower to the
Lenders. The failure of the Borrower to make any such pay
ment by such time shall not constitute a Default, provided
that such payment is made on such due date, but any such
payment made after 4:00 p.m. on such due date shall be
deemed to have been made on the next Business Day for the
purpose of calculating interest on amounts outstanding on
the Revolving Credit Loans. Subject to Section 9.2(b),
promptly upon receipt by the Administrative Agent of each
payment, including each prepayment, pursuant to this Sec
tion, the Administrative Agent shall remit such payment in
like funds as received as follows: (i) in the case of the
Facility Fee and the Letter of Credit Commissions to each
Lender according to its Commitment Percentage, and (ii) in
the case of principal and interest on the Loans, to each
Lender pro rata according to its Outstanding Percentage of
the amount of principal or interest, as the case may be,
which is then due and payable to the Lenders.
(b) If any payment hereunder, under the Notes or
under any Reimbursement Agreement shall be due and payable
on a day which is not a Business Day, the due date thereof
(except as otherwise provided in the definition of
Eurodollar Interest Period) shall be extended to the next
Business Day and (except with respect to payments in
respect of the Fees) interest shall be payable at the
applicable rate specified herein during such extension,
provided, however that if such next Business Day is after
the Maturity Date, any such payment shall be due on the
immediately preceding Business Day.
(c) If the Lenders make Revolving Credit Loans
on a Borrowing Date on which the Borrower is to repay a
Competitive Bid Loan, if so requested in writing by the
Borrower, the Administrative Agent shall apply the
specified portion proceeds of such Revolving Credit Loans
to make such repayment, and only the excess of the proceeds
of such Revolving Credit Loans over the Competitive Bid
Loan being repaid need be made available to the Borrower.
2.12. Cash Collateral Account
At, or at any time before, the time the Borrower
shall be required to make a deposit into the Cash
Collateral Account, the Administrative Agent shall
establish and maintain at its offices at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ in the name of the Borrower but under
the sole dominion and control of the Administrative Agent,
a cash collateral account designated as "International Game
Technology/Cash Collateral Account" (the "Cash Collateral
Account"). The Borrower may from time to time make one or
more deposits into the Cash Collateral Account. The
Borrower hereby pledges to the Administrative Agent for its
benefit, the benefit of the Administrative Agent, the
Issuing Bank and the pro rata benefit of the Lenders, a
Lien on and security interest in the Cash Collateral Ac
count and all sums at any time and from time to time on
deposit therein (the Cash Collateral Account, together with
all sums on deposit therein, being sometimes hereinafter
collectively referred to as the "Cash Collateral"), as col
lateral security for the prompt payment in full when due,
whether at stated maturity, by acceleration or otherwise,
of all the obligations of the Borrower under the Loan
Documents (the "Obligations"). The Borrower agrees that at
any time and from time to time at its expense, it will
promptly execute and deliver to the Administrative Agent
any further instruments and documents, and take any further
actions, that may be necessary or that the Administrative
Agent may reasonably request, in order to perfect and
protect any security interest granted or purported to be
granted hereby or to enable the Administrative Agent to
exercise and enforce its rights and remedies hereunder with
respect to any Cash Collateral. The Borrower agrees that
it will not (i) sell or otherwise dispose of any of the
Cash Collateral, or (ii) create or permit to exist any Lien
upon any of the Cash Collateral, except for Permitted
Liens. The Borrower hereby authorizes the Administrative
Agent, promptly after each drawing under any Letter of
Credit shall become due and payable, to apply any and all
cash on deposit in the Cash Collateral Account towards the
reimbursement of the Issuing Bank for all sums paid in
respect of such drawing, and all other Obligations which
shall then be due and owing.
3. INTEREST, FEES, YIELD PROTECTIONS, ETC.
3.1. Interest Rate and Payment Dates
(a) Prior to Maturity. Except as otherwise
provided in Section 3.1(b) and 3.1(c), prior to maturity,
the Loans shall bear interest on the outstanding principal
balance thereof at the applicable interest rate or rates
per annum set forth below:
ADVANCES/LOANS RATE
Each ABR Advance Alternate Base Rate.
Each Eurodollar Advance Eurodollar Rate applicable
hereto plus the Applicable
Margin.
Each Competitive Bid Loan Competitive Bid Rate applicable
thereto.
(b) Late Charges. Upon the occurrence and during
the continuance of an Event of Default under Sections
9.1(a) or (b), the unpaid principal balance of the Loans
shall bear interest payable on demand at a rate per annum
(whether before or after the entry of a judgment thereon)
equal to (i) in the case of each Competitive Bid Loan, 2%
plus the Alternate Base Rate and (ii) in all other cases,
2% plus the rate which would otherwise be applicable under
Section 3.1(a), and any overdue Reimbursement Obligation,
interest or other amount payable under the Loan Documents
shall bear interest (whether before or after the entry of a
judgment thereon) payable on demand at a rate per annum
equal to 2% plus the Alternate Base Rate.
(c) Highest Lawful Rate. At no time shall the in
terest rate payable on the Loans of any Lender, together
with the Fees and all other amounts payable under the Loan
Documents to such Lender, to the extent the same are con
strued to constitute interest, exceed the Highest Lawful
Rate applicable to such Lender. If with respect to any
Lender for any period during the term of this Agreement,
any amount paid to such Lender under the Loan Documents, to
the extent the same shall (but for the provisions of this
Section) constitute or be deemed to constitute interest,
would exceed the maximum amount of interest permitted by
the Highest Lawful Rate applicable to such Lender during
such period (such amount being hereinafter referred to as
an "Unqualified Amount"), then (i) such Unqualified Amount
shall be applied or shall be deemed to have been applied as
a prepayment of the Loans of such Lender, and (ii) if in
any subsequent period during the term of this Agreement,
all amounts payable under the Loan Documents to such Lender
in respect of such period which constitute or shall be
deemed to constitute interest shall be less than the
maximum amount of interest permitted by the Highest Lawful
Rate applicable to such Lender during such period, then the
Borrower shall pay to such Lender in respect of such period
an amount (each a "Compensatory Interest Payment") equal to
the lesser of (x) a sum which, when added to all such
amounts, would equal the maximum amount of interest
permitted by the Highest Lawful Rate applicable to such
Lender during such period, and (y) an amount equal to the
Unqualified Amount less all other Compensatory Interest Pay
ments made in respect thereof.
(d) In General. Interest on (i) ABR Advances to
the extent based on the BNY Rate shall be calculated on the
basis of a 365 or 366-day year (as the case may be), and
(ii) ABR Advances to the extent based on the Federal Funds
Rate, on Eurodollar Advances and on Competitive Bid Loans
shall be calculated on the basis of a 360-day year, in each
case, for the actual number of days elapsed. Except as
otherwise provided in Section 3.1(b), interest shall be pay
able in arrears on each Interest Payment Date and upon each
payment (including prepayment) of the Loans. Any change in
the interest rate on the Revolving Credit Loans resulting
from a change in the Alternate Base Rate or reserve
requirements shall become effective as of the opening of
business on the day on which such change shall become effec
tive. The Administrative Agent shall, as soon as practi
cable, notify the Borrower and the Lenders of the effective
date and the amount of each such change in the BNY Rate,
but any failure to so notify shall not in any manner affect
the obligation of the Borrower to pay interest on the Loans
in the amounts and on the dates required. Each
determination of the Alternate Base Rate or a Eurodollar
Rate by the Administrative Agent pursuant to this Agreement
shall be conclusive and binding on all parties hereto
absent manifest error. The Borrower acknowledges that to
the extent interest payable on ABR Advances is based on the
BNY Rate, such rate is only one of the bases for computing
interest on loans made by the Lenders, and by basing
interest payable on ABR Advances on the BNY Rate, the
Lenders have not committed to charge, and the Borrower has
not in any way bargained for, interest based on a lower or
the lowest rate at which the Lenders may now or in the
future make loans to other borrowers.
3.2. Fees
(a) Facility Fee. The Borrower agrees to pay to
the Administrative Agent, for the account of the Lenders in
accordance with each Lender's Commitment Percentage, a fee
(the "Facility Fee"), during the period from the Effective
Date through the Maturity Date, at a rate per annum equal
to the Applicable Fee Percentage on the average daily Ag
gregate Commitment Amount, regardless of usage. The
Facility Fee shall be payable (i) quarterly in arrears on
the last day of each March, June, September and December
during such period commencing on the first such day fol
lowing the Effective Date, (ii) on the date of any
reduction in the Aggregate Commitment Amount (to the extent
of such reduction) and (iii) on the Maturity Date. The
Facility Fee shall be calculated on the basis of a 360-day
year for the actual number of days elapsed. The
Administrative Agent shall ▇▇▇▇ the Borrower for the amount
due at least two days prior to the date on which such
Facility Fees are due, provided that any failure of the
Administrative Agent to render such ▇▇▇▇ shall in no way
affect the Borrower's obligation to pay such Facility Fees
at such specified times.
(b) Letter of Credit Commissions. The Borrower
agrees to pay to the Administrative Agent, for the account
of the Lenders in accordance with each Lender's Commitment
Percentage, commissions (the "Letter of Credit Commis
sions") in connection with the Letters of Credit for the
period from and including (A) with respect to the
Additional Letters of Credit, the date of issuance of each
thereof to and including the expiration date thereof, and
(B) with respect to the Existing Letters of Credit, the
Effective Date to and including the expiration date of each
thereof, at a rate per annum equal to the Applicable Fee
Percentage in effect on the date of issuance thereof on the
average daily maximum amount available under any
contingency to be drawn under such Letter of Credit. The
Letter of Credit Commissions shall be (i) calculated on the
basis of a 360-day year for the actual number of days
elapsed and (ii) payable quarterly in arrears on the last
day of each March, June, September and December of each
year and on the date that the Commitments shall expire. In
addition to the Letter of Credit Commissions, the Borrower
agrees to pay to the Issuing Bank, for its own account, its
standard fees and charges customarily charged to customers
similar to the Borrower with respect to any Letter of
Credit.
(c) Administrative Agent's and Issuing Bank's
Fees. The Borrower agrees to pay to the Administrative
Agent and the Issuing Bank, for their own respective
accounts, such other fees as have been agreed to in writing
by the Borrower, the Administrative Agent and the Issuing
Bank.
3.3. Conversions
(a) The Borrower may elect from time to time to
convert one or more Eurodollar Advances to ABR Advances by
giving the Administrative Agent at least one Business Day's
prior irrevocable notice of such election, specifying the
amount to be converted, provided, that any such conversion
of Eurodollar Advances shall only be made on the last day
of the Eurodollar Interest Period applicable thereto. In
addition, the Borrower may elect from time to time to
convert (i) ABR Advances to Eurodollar Advances and (ii)
Eurodollar Advances to new Eurodollar Advances by selecting
a new Eurodollar Interest Period therefor, in each case by
giving the Administrative Agent at least three Business
Days' prior irrevocable notice of such election, in the
case of a conversion to Eurodollar Advances specifying the
amount to be so converted and the initial Eurodollar
Interest Period relating thereto, provided that any such
conversion of ABR Advances to Eurodollar Advances shall
only be made on a Business Day and any such conversion of
Eurodollar Advances to new Eurodollar Advances shall only
be made on the last day of the Eurodollar Interest Period
applicable to the Eurodollar Advances which are to be con
verted to such new Eurodollar Advances. Each such notice
shall be irrevocable and shall be given by the delivery by
telecopy of a Notice of Conversion (confirmed promptly, and
in any event within five Business Days, by the delivery to
the Administrative Agent of a Notice of Conversion manually
signed by the Borrower). The Administrative Agent shall
promptly provide the Lenders with notice of each such elec
tion. Advances may be converted pursuant to this Section
in whole or in part, provided that the amount to be con
verted to each Eurodollar Advance, when aggregated with any
Eurodollar Advance to be made on such date in accordance
with Section 2.3 and having the same Eurodollar Interest
Period as such first Eurodollar Advance, shall equal no
less than $2,500,000 or such amount plus a whole multiple
of $500,000 in excess thereof.
(b) Notwithstanding anything in this Agreement
to the contrary, upon the occurrence and during the
continuance of a Default or an Event of Default, the Bor
rower shall have no right to elect to convert any existing
ABR Advance to a new Eurodollar Advance or to convert any
existing Eurodollar Advance to a new Eurodollar Advance.
In such event, all ABR Advances shall be automatically
continued as ABR Advances and all Eurodollar Advances shall
be automatically converted to ABR Advances on the last day
of the Eurodollar Interest Period applicable to such
Eurodollar Advance.
(c) Each conversion shall be effected by each
Lender by applying the proceeds of its new ABR Advance or
Eurodollar Advance, as the case may be, to its Advances (or
portion thereof) being converted (it being understood that
any such conversion shall not constitute a borrowing for
purposes of Sections 4, 5 or 6).
(d) Competitive Bid Loans may not be converted.
3.4. Concerning Eurodollar Interest Periods
Notwithstanding any other provision of any Loan
Document:
(a) If the Borrower shall have failed to
elect a Eurodollar Advance under Section 2.3 or 3.3, as the
case may be, in connection with any borrowing of new
Revolving Credit Loans or expiration of an Eurodollar
Interest Period with respect to any existing Eurodollar
Advance, the amount of the Revolving Credit Loans subject
to such borrowing or such existing Eurodollar Advance shall
thereafter be an ABR Advance until such time, if any, as
the Borrower shall elect a new Eurodollar Advance pursuant
to Section 3.3.
(b) No Eurodollar Interest Period selected
in respect of the conversion of any Eurodollar Advance
comprising a Revolving Credit Loan shall end after the
Maturity Date.
(c) The Borrower shall not be permitted to
have more than ten Eurodollar Advances outstanding at any
one time, it being agreed that each borrowing of a
Eurodollar Advance pursuant to a single Borrowing Request
shall constitute the making of one Eurodollar Advance for
the purpose of calculating such limitation.
3.5. Indemnification for Loss
Notwithstanding anything contained herein to the
contrary, if the Borrower shall fail to borrow or convert
on a Borrowing Date or Conversion Date after it shall have
given notice to do so in which it shall have requested a
Eurodollar Advance, or if the Borrower shall fail to borrow
a Competitive Bid Loan after it shall have accepted one or
more offers therefor pursuant to Section 2.4, or if a
Eurodollar Advance or a Competitive Bid Loan shall be termi
nated for any reason prior to the last day of the Interest
Period applicable thereto, or if, while a Eurodollar
Advance or a Competitive Bid Loan is outstanding, any repay
ment or prepayment of such Eurodollar Advance or
Competitive Bid Loan is made for any reason (including,
without limitation, as a result of acceleration or
illegality) on a date which is prior to the last day of the
Interest Period applicable thereto, the Borrower agrees to
indemnify each Lender against, and to pay on demand
directly to such Lender, any loss or expense suffered by
such Lender as a result of such failure to borrow or
convert, termination, repayment or prepayment, including,
without limitation, an amount, if greater than zero, equal
to:
A x (B-C) x D
360
where:
"A" equals such Lender's (i) pro rata share of the Affected
Principal Amount in the case of a Eurodollar Advance or
(ii) the Affected Principal Amount in the case of a Competi
tive Bid Loan;
"B" equals the Eurodollar Rate (expressed as a decimal),
applicable to such Eurodollar Advances or the Bid Rate ap
plicable to such Competitive Bid Loan;
"C" equals, (i) in the case of a Eurodollar Advance, the
Eurodollar Rate (expressed as a decimal), in effect on or
about the first day of the applicable Remaining Interest Pe
riod, based on the applicable rates offered or bid, as the
case may be, on or about such date, for deposits in an
amount equal approximately to such Lender's pro rata share
of the Affected Principal Amount with a Eurodollar Interest
Period equal approximately to the applicable Remaining
Interest Period, as determined by such Lender, and (ii) in
the case of a Competitive Bid Loan, the Proposed Bid Rate
(based on the rate such Lender would have quoted) in an
amount equal approximately to such Lender's Affected Prin
cipal Amount with a Competitive Interest Period equal ap
proximately to the applicable Remaining Interest Period, as
determined by such Lender;
"D" equals the number of days from and including the first
day of the applicable Remaining Interest Period to but
excluding the last day of such Remaining Interest Period;
and any other out-of-pocket loss or expense (including any
internal processing charge customarily charged by such
Lender) suffered by such Lender in connection with such
Eurodollar Advance or Competitive Bid Loan, including,
without limitation, in liquidating or employing deposits ac
quired to fund or maintain the funding of its pro rata
share of the Affected Principal Amount in the case of a
Eurodollar Advance, or the Affected Principal Amount in the
case of a Competitive Bid Loan, or redeploying funds
prepaid or repaid, in amounts which correspond to its pro
rata share of the Affected Principal Amount in the case of
a Eurodollar Advance, or the Affected Principal Amount in
the case of a Competitive Bid Loan. A statement setting
forth in reasonable detail the calculations of any ad
ditional amounts payable pursuant to this Section submitted
by a Lender or the Administrative Agent, as the case may
be, to the Borrower shall be presumptively correct absent
manifest error. Notwithstanding the foregoing, the
Borrower shall only be obligated to compensate such Lender
or the Administrative Agent for any amount under this
Section arising or occurring during the period commencing
not more than 90 days prior to the date on which the
officer of such Lender or the Administrative Agent, as the
case may be, requests such compensation.
3.6. Capital Adequacy
If the amount of capital required or expected to
be maintained by any Lender or any Person directly or
indirectly owning or controlling such Lender or the Issuing
Bank (each a "Control Person"), shall be affected by the
occurrence of a Regulatory Change and such Lender or the
Issuing Bank shall have determined that such Regulatory
Change shall have had or will thereafter have the effect of
reducing (i) the rate of return on such Lender's or such
Control Person's capital, or (ii) the asset value to such
Lender or the Issuing Bank or such Control Person of the
Loans made or maintained by such Lender, or of the
Reimbursement Obligations or any participation therein, in
any case to a level below that which such Lender or the
Issuing Bank or such Control Person could have achieved or
would thereafter be able to achieve but for such Regulatory
Change (after taking into account such Lender's or the
Issuing Bank's or such Control Person's policies regarding
capital adequacy) by an amount deemed by such Lender or the
Issuing Bank to be material to such Lender or the Issuing
Bank or Control Person, then, within ten days after demand
by such Lender or the Issuing Bank, the Borrower shall pay
to such Lender or the Issuing Bank or such Control Person
such additional amount or amounts as shall be sufficient to
compensate such Lender or the Issuing Bank or such Control
Person, as the case may be, for such reduction. A
statement setting forth in reasonable detail the calcula
tions of any additional amounts payable pursuant to this
Section submitted by a Lender or the Issuing Bank to the
Borrower shall be presumptively correct absent manifest
error. No failure by any Lender or the Issuing Bank to
demand, and no delay in demanding, compensation under this
Section shall constitute a waiver of its right to demand
such compensation at any time, provided, however, that the
Borrower shall not be obligated to compensate a Lender or
the Issuing Bank, as the case may be, for any amount under
this Section arising or occurring during the period
commencing not more than 90 days prior to the date on which
the officer of such Lender or the Issuing Bank, as the case
may be, primarily responsible for the administration of
this Agreement obtains actual knowledge that such Lender or
the Issuing Bank, as the case may be, is entitled to such
compensation.
3.7. Reimbursement for Increased Costs
If any Lender, the Administrative Agent or the
Issuing Bank shall determine that a Regulatory Change:
(a) does or shall subject it to any Taxes
of any kind whatsoever with respect to any Eurodollar
Advances or its obligations under this Agreement to make
Eurodollar Advances, or change the basis of taxation of pay
ments to it of principal, interest or any other amount
payable hereunder in respect of its Eurodollar Advances, or
impose on the Administrative Agent, the Issuing Bank or
such Lender any other condition regarding the Letters of
Credit including any Taxes required to be withheld from any
amounts payable under the Loan Documents (except for
imposition of, or change in the rate of, Tax on the Income
of such Lender); or
(b) does or shall impose, modify or make ap
plicable any reserve, special deposit, compulsory loan, as
sessment, increased cost or similar requirement against
assets held by, or deposits of, or advances or loans by, or
other credit extended by, or any other acquisition of funds
by, any office of such Lender in respect of its Eurodollar
Advances which is not otherwise included in the
determination of a Eurodollar Rate or against any Letters
of Credit issued by the Issuing Bank or participated in by
any Lender;
and the result of any of the foregoing is to increase the
cost to such Lender of making, renewing, converting or
maintaining its Eurodollar Advances or its commitment to
make such Eurodollar Advances, or to reduce any amount re
ceivable hereunder in respect of its Eurodollar Advances,
or to increase the cost to the Issuing Bank of issuing or
maintaining the Letters of Credit or the cost to any Lender
of participating therein or the cost to the Administrative
Agent or the Issuing Bank of performing its respective func
tions hereunder with respect to the Letters of Credit,
then, in any such case, the Borrower shall pay such Lender,
the Administrative Agent, or the Issuing Bank, as the case
may be, within ten days after demand therefor, such ad
ditional amounts as is sufficient to compensate such
Lender, the Issuing Bank or the Administrative Agent, as
the case may be, for such additional cost or reduction in
such amount receivable which such Lender deems to be ma
terial as determined by such Lender, the Issuing Bank or
the Administrative Agent, as the case may be; provided,
however, that nothing in this Section shall require the
Borrower to indemnify the Lenders, the Administrative
Agent, or the Issuing Bank, as the case may be, with
respect to withholding Taxes for which the Borrower has no
obligation under Section 3.10. Notwithstanding the
foregoing, the Borrower shall only be obligated to compen
sate the Administrative Agent, the Issuing Bank or such
Lender for any amount under this Section arising or
occurring during the period commencing not more than 90
days prior to the date on which the officer of the
Administrative Agent, the Issuing Bank or such Lender
primarily responsible for the administration of this
Agreement obtains actual knowledge that such Lender is
entitled to such compensation. A statement setting forth
in reasonable detail the calculations of any additional
amounts payable pursuant to this Section submitted by a
Lender, the Issuing Bank or the Administrative Agent, as
the case may be, to the Borrower shall be presumptively
correct absent manifest error.
3.8. Illegality of Funding
Notwithstanding any other provision hereof, if
any Lender shall reasonably determine that any law, regula
tion, treaty or directive, or any change therein or in the
interpretation or application thereof, shall make it
unlawful for such Lender to make or maintain any Eurodollar
Advance as contemplated by this Agreement, such Lender
shall promptly notify the Borrower and the Administrative
Agent thereof, and (i) the commitment of such Lender to
make such Eurodollar Advances or convert ABR Advances to
Eurodollar Advances shall forthwith be suspended, (ii) such
Lender shall fund its portion of each requested Eurodollar
Advance as an ABR Advance and (iii) such Lender's Revolving
Credit Loans then outstanding as such Eurodollar Advances,
if any, shall be converted automatically to ABR Advances on
the last day of the then current Eurodollar Interest Period
applicable thereto or at such earlier time as may be re
quired by law. If the commitment of any Lender with
respect to Eurodollar Advances is suspended pursuant to
this Section and such Lender shall have obtained actual
knowledge that it is once again legal for such Lender to
make or maintain Eurodollar Advances, such Lender shall
promptly notify the Administrative Agent and the Borrower
thereof and, upon receipt of such notice by each of the
Administrative Agent and the Borrower, such Lender's commit
ment to make or maintain Eurodollar Advances shall be rein
stated.
3.9. Substituted Interest Rate
In the event that the Administrative Agent shall
have determined (which determination shall be conclusive
and binding upon the Borrower) that by reason of cir
cumstances affecting the interbank eurodollar market either
adequate and reasonable means do not exist for ascertaining
the Eurodollar Rate applicable pursuant to Section 3.1 with
respect to any portion of the Revolving Credit Loans that
the Borrower has requested be made as Eurodollar Advances
or Eurodollar Advances that will result from the requested
conversion of any portion of the Advances into or of
Eurodollar Advances (each, an "Affected Advance"), the
Administrative Agent shall promptly notify the Borrower and
the Lenders (by telephone or otherwise, to be promptly
confirmed in writing) of such determination, on or, to the
extent practicable, prior to the requested Borrowing Date
or Conversion Date for such Affected Advances. If the
Administrative Agent shall give such notice, (a) any
Affected Advances shall be made as ABR Advances, (b) the
Advances (or any portion thereof) that were to have been
converted to Affected Advances shall be converted to ABR
Advances and (c) any outstanding Affected Advances shall be
converted, on the last day of the then current Eurodollar
Interest Period with respect thereto, to ABR Advances.
Until any notice under this Section has been withdrawn by
the Administrative Agent (by notice to the Borrower prompt
ly upon the Administrative Agent having determined that
such circumstances affecting the interbank eurodollar
market no longer exist and that adequate and reasonable
means do exist for determining the Eurodollar Rate pursuant
to Section 3.1, no further Eurodollar Advances shall be
required to be made by the Lenders, nor shall the Borrower
have the right to convert all or any portion of the
Revolving Credit Loans to or as Eurodollar Advances.
3.10. Taxes
(a) Payments to be Free and Clear. All payments
by the Borrower under the Loan Documents to or for the ac
count of the Administrative Agent, the Issuing Bank or any
Lender (each, an "Indemnified Tax Person") shall be made
free and clear of, and without any deduction or withholding
for or on account of, any and all present or future income,
stamp or other taxes, levies, imposts, duties, fees,
assessments, deductions, withholdings, or other charges of
whatever nature, now or hereafter imposed, levied,
collected, withheld, or assessed by any jurisdiction, or by
any department, agency, state or other political subdi
vision thereof or therein (collectively, "Taxes"),
excluding as to any Indemnified Tax Person, (i) a Tax on
the Income imposed on such Indemnified Tax Person and (ii)
any interest, fees, additions to tax or penalties for late
payment thereof (each such nonexcluded Tax, an "Indemnified
Tax"). For purposes hereof, "Tax on the Income" shall mean,
as to any Person, a Tax imposed by one of the following
jurisdictions or by any political subdivision or taxing au
thority thereof: (i) the United States, (ii) the jurisdic
tion in which such Person is organized, (iii) the
jurisdiction in which such Person's principal office is lo
cated, or (iv) in the case of each Lender, any jurisdiction
in which such Lender's Applicable Lending Office is lo
cated; which Tax is an income tax or franchise tax imposed
on all or part of the net income or net profits of such
Person or which Tax represents interest, fees, or penalties
for late payment of such an income tax or franchise tax.
(b) Grossing Up of Payments. If the Borrower or
any other Person is required by any law, rule, regulation,
order, directive, treaty or guideline to make any deduction
or withholding (which deduction or withholding would
constitute an Indemnified Tax) from any amount required to
be paid by the Borrower to or on behalf of an Indemnified
Tax Person under any Loan Document (i) the Borrower shall
pay such Indemnified Tax before the date on which penalties
attach thereto, such payment to be made for its own account
(if the liability to pay is imposed on the Borrower) or on
behalf of and in the name of such Indemnified Tax Person
(if the liability is imposed on such Indemnified Tax
Person), and (ii) the sum payable to such Indemnified Tax
Person shall be increased as may be necessary so that after
making all required deductions and withholdings (including
deductions and withholdings applicable to additional sums
payable under this Section) such Indemnified Tax Person
receives an amount equal to the sum it would have received
had no such deductions or withholdings been made.
Notwithstanding the foregoing, no additional amount shall
be required to be paid to any Indemnified Tax Person under
clause (ii) of the preceding sentence except to the extent
that the requirement to deduct or withhold or the amount
thereof is attributable to (i) the introduction after the
Effective Date of any law, rule or regulation requiring any
Person to withhold or deduct any amount from any payment
under the Loan Documents in respect of an Indemnified Tax
or (ii) any increase after the Effective Date in the rate
of any such withholding or deduction.
(c) Other Taxes. The Borrower agrees to pay any
current or future stamp or documentary taxes or any other
excise or property taxes, charges or similar levies that
arise from any payment made hereunder or from the
execution, delivery or registration of, or any amendment,
supplement or modification of, or any waiver or consent
under or in respect of, the Loan Documents or otherwise
with respect to, the Loan Documents (collectively, the
"Other Taxes").
(d) Evidence of Payment. Within 30 days after
the reasonable request therefor by the Administrative Agent
in connection with any payment of Indemnified Taxes or
Other Taxes, the Borrower will furnish to the
Administrative Agent the original or a certified copy of an
official receipt from the jurisdiction to which payment is
made evidencing payment thereof or, if unavailable, a cer
tificate from a Financial Officer that states that such pay
ment has been made and that sets forth the date and amount
of such payment.
(e) U.S. Tax Certificates. Each Indemnified Tax
Person that is organized under the laws of any jurisdiction
other than the United States or any political subdivision
thereof that is exempt from United States federal
withholding tax, or that is subject to such tax at a
reduced rate under an applicable treaty, with respect to
payments under the Loan Documents shall deliver to the
Administrative Agent for transmission to the Borrower, on
or prior to the Effective Date (in the case of each
Indemnified Tax Person listed on the signature pages
hereof) or on the effective date of the Assignment and Ac
ceptance Agreement or other document pursuant to which it
becomes an Indemnified Tax Person (in the case of each
other Indemnified Tax Person), and at such other times as
the Borrower or the Administrative Agent may reasonably
request Internal Revenue Form 4224 or Form 1001 or other
certificate or document required under United States law to
establish entitlement to such exemption or reduced rate.
The Borrower shall not be required to pay any additional
amount to any such Indemnified Tax Person under subsection
(b) above if such Indemnified Tax Person shall have failed
to satisfy the requirements of the immediately preceding
sentence; provided that if such Indemnified Tax Person
shall have satisfied such requirements on the Effective
Date (in the case of each Indemnified Tax Person listed on
the signature pages hereof) or on the effective date of the
Assignment and Acceptance Agreement or other document
pursuant to which it became an Indemnified Tax Person (in
the case of each other Indemnified Tax Person), nothing in
this subsection shall relieve the Borrower of its obliga
tion to pay any additional amounts pursuant to subsection
(b) in the event that, as a result of any change in ap
plicable law or treaty, such Indemnified Tax Person is no
longer properly entitled to deliver certificates, documents
or other evidence at a subsequent date establishing the
fact that such Indemnified Tax Person is no longer entitled
to such exemption or reduced rate.
3.11. Option to Fund
Each Lender has indicated that, if the Borrower
requests a Eurodollar Advance or such Lender makes a
Competitive Bid Loan to the Borrower, as the case may be,
such Lender may wish to purchase one or more deposits in
order to fund or maintain its funding of its Commitment
Percentage of such Eurodollar Advance or its Competitive
Bid Loan, as the case may be, during the Interest Period
applicable thereto; it being understood that the provisions
of this Agreement relating to such funding are included
only for the purpose of determining the rate of interest to
be paid in respect of such Eurodollar Advance or
Competitive Bid Loan, as the case may be, and any amounts
owing under Sections 3.5 and 3.7. Each Lender shall be
entitled to fund and maintain its funding of all or any
part of each Eurodollar Advance and each Competitive Bid
Loan, as the case may be, in any manner it sees fit, but
all such determinations under Sections 3.5 and 3.7 shall be
made as if each Lender had actually funded and maintained
its Commitment Percentage of each such Eurodollar Advance
or the amount of its Competitive Bid Loan, as the case may
be, during the applicable Interest Period through the pur
chase of deposits in an amount equal to the amount of its
Commitment Percentage of such Eurodollar Advance or the
amount of its Competitive Bid Loan, as the case may be,
having a maturity corresponding to such Interest Period.
Any Lender may fund its Commitment Percentage of each
Eurodollar Advance or its Competitive Bid Loan, as the case
may be, from or for the account of any branch or office of
such Lender as such Lender may choose from time to time.
3.12. Substitution of a Lender
Notwithstanding anything to the contrary
contained herein, if any Lender shall request compensation
pursuant to Sections 3.6, 3.7 or 3.10 in an aggregate
amount in excess of $25,000, then, in each such case, the
Borrower may require that such Lender transfer all of its
right, title and interest under this Agreement and such
Lender's Notes to one or more of the other Lenders or any
other lender identified by the Borrower and reasonably
acceptable to the Administrative Agent (a "Proposed
Lender"), if such Proposed Lender agrees to assume all of
the obligations of such Lender for consideration equal to
the outstanding principal amount of such Lender's Loans,
together with interest thereon to the date of such transfer
and all other amounts payable under the Loan Documents to
such Lender on or prior to the date of such transfer (in
cluding, without limitation, any fees accrued hereunder and
any amounts which would be payable under Section 3.5 as if
all of such Lender's Loans were being prepaid in full on
such date). Subject to the execution and delivery of new
Notes, an instrument of assignment and assumption, and such
other documents as such Lender may reasonably require, such
Proposed Lender shall be a "Lender" for all purposes
hereunder. Without prejudice to the survival of any other
agreement of the Borrower hereunder, the agreements of the
Borrower contained in Sections 3.5, 3.6, 3.7, 11.5 and 11.8
(without duplication of any payments made to such Lender by
the Borrower or the Proposed Lender) shall survive for the
benefit of any Lender replaced under this Section 3.12 with
respect to the time prior to such replacement.
4. REPRESENTATIONS AND WARRANTIES
In order to induce the Administrative Agent and the
Lenders to enter into this Agreement and to make the Loans
and the Issuing Bank to issue the Letters of Credit and the
Lenders to participate therein, the Borrower makes the
following representations and warranties to the
Administrative Agent, the Issuing Bank and each Lender:
4.1. Subsidiaries; Capitalization
As of the Effective Date, the Borrower has only
the Subsidiaries set forth on, and the authorized, issued
and outstanding Capital Stock of the Borrower and each such
Subsidiary is as set forth on, Schedule 4.1. As of the
Effective Date, the Borrower has only the Domestic
Subsidiaries as set forth on Schedule 4.1. As of the
Effective Date, except as set forth on Schedule 4.1, the
shares of, or partnership or other interests in, each
Subsidiary of the Borrower are owned beneficially and of
record by the Borrower or another Subsidiary of the
Borrower, are free and clear of all Liens and are duly
authorized, validly issued, fully paid and nonassessable.
As of the Effective Date, except as set forth on Schedule
4.1, (i) neither the Borrower nor any of its Subsidiaries
has issued any securities convertible into, or options or
warrants for, any common or preferred equity securities
thereof, (ii) there are no agreements, voting trusts or
understandings binding upon the Borrower or any of its
Subsidiaries with respect to the voting securities of the
Borrower or any of its Subsidiaries or affecting in any man
ner the sale, pledge, assignment or other disposition
thereof, including any right of first refusal, option, re
demption, call or other right with respect thereto, whether
similar or dissimilar to any of the foregoing, and (iii)
all of the outstanding Capital Stock of each Subsidiary of
the Borrower is owned by the Borrower or another Subsidiary
of the Borrower.
4.2. Existence and Power
The Borrower is duly organized and validly
existing in good standing under the laws of the State of
Nevada. Each of the Borrower's Subsidiaries is duly orga
nized or formed and, except to the extent that such
Subsidiary has been dissolved in accordance with Section
7.3, validly existing in good standing under the laws of
the jurisdiction of its incorporation or formation, has all
requisite power and authority to own its Property and to
carry on its business as now conducted, and is in good
standing and authorized to do business in each jurisdiction
in which the nature of the business conducted therein or
the Property owned by it therein makes such qualification
necessary, except where such failure to qualify could not
reasonably be expected to have a Material Adverse Effect.
4.3. Authority and Execution
The Borrower has full corporate power and
authority to enter into, execute, deliver and perform the
terms of the Loan Documents all of which have been duly
authorized by all proper and necessary corporate action and
is in full compliance with its Organizational Documents.
The Borrower has duly executed and delivered the Loan Docu
ments.
4.4. Binding Agreement
The Loan Documents (other than the Notes) consti
tute, and the Notes, when issued and delivered pursuant
hereto for value received, will constitute, the valid and
legally binding obligations of the Borrower, enforceable
against the Borrower in accordance with their respective
terms, except as such enforceability may be limited by ap
plicable bankruptcy, insolvency, reorganization or other
similar laws affecting the enforcement of creditors' rights
generally.
4.5. Litigation
Except as set forth on Schedule 4.5, there are no
actions, suits or proceedings at law or in equity or by or
before any Governmental Authority (whether purportedly on
behalf of the Borrower or any of its Subsidiaries) pending
or, to the knowledge of the Borrower, threatened against
the Borrower or any of its Subsidiaries or maintained by
the Borrower or any of its Subsidiaries or which may affect
the Property of the Borrower or any of its Subsidiaries or
any of their respective Properties or rights, which (i)
would reasonably be expected to have a Material Adverse
Effect or (ii) call into question the validity or enforce
ability of, or otherwise seek to invalidate, any Loan Docu
ment.
4.6. Required Consents
Except for consents, authorizations, approvals,
filings and exemptions set forth on Schedule 4.6, all of
which have been obtained, made or waived (other than for
the filing of the Loan Documents with various Gaming Au
thorities, which filings are for informational purposes
only and with respect to which the failure to file the same
would not affect the validity or enforceability of the Loan
Documents), no consent, authorization or approval of,
filing with, notice to, or exemption by, stockholders or
holders of any other equity interest, any Governmental Au
thority or any other Person is required to authorize, or is
required in connection with the execution, delivery and per
formance of the Loan Documents by the Borrower or is
required as a condition to the validity or enforceability
of the Loan Documents.
4.7. Absence of Defaults; No Conflicting Agreements
(a) Neither the Borrower nor any of its
Subsidiaries is in default under any mortgage, indenture,
contract or agreement to which it is a party or by which it
or any of its Property is bound, the effect of which
default would reasonably be expected to have a Material
Adverse Effect. The execution, delivery or carrying out of
the terms of the Loan Documents will not constitute a
default under, or result in the creation or imposition of,
or obligation to create, any Lien upon any Property of the
Borrower or any of its Subsidiaries or result in a breach
of or require the mandatory repayment of or other ac
celeration of payment under or pursuant to the terms of any
such mortgage, indenture, contract or agreement or any
Gaming License.
(b) Neither the Borrower nor any of its
Subsidiaries is in default with respect to any judgment,
order, writ, injunction, decree or decision of any
Governmental Authority which default would reasonably be
expected to have a Material Adverse Effect.
4.8. Compliance with Applicable Laws
The Borrower and each of its Subsidiaries is
complying with all statutes, regulations, rules and orders
of all Governmental Authorities, including, without
limitation, all Gaming Laws, which are applicable to the
Borrower or such Subsidiary, a violation of which would
reasonably be expected to have a Material Adverse Effect.
4.9. Taxes
The Borrower and each of its Subsidiaries has
filed or caused to be filed all tax returns required to be
filed and has paid, or has made adequate provision for the
payment of, all taxes shown to be due and payable on said
returns or in any assessments made against it (other than
those being contested as required under Section 7.4) which
would be material to the Borrower or any of its
Subsidiaries, and no tax Liens have been filed with respect
thereto. The charges, accruals and reserves on the books
of the Borrower and each of its Subsidiaries with respect
to all taxes are, to the best knowledge of the Borrower, ad
equate for the payment of such taxes, and the Borrower
knows of no unpaid assessment which is due and payable
against the Borrower or any of its Subsidiaries or any
claims being asserted which would reasonably be expected to
have a Material Adverse Effect, except such thereof as are
being contested as required under Section 7.4, and for
which adequate reserves have been set aside in accordance
with GAAP.
4.10. Governmental Regulations
Neither the Borrower, any of its Subsidiaries nor
any Person controlled by, controlling, or under common
control with, the Borrower or any of its Subsidiaries, is
subject to regulation under the Public Utility Holding
Company Act of 1935, as amended, the Federal Power Act, as
amended, or the Investment Company Act of 1940, as amended,
or is subject to any statute or regulation which prohibits
or restricts the incurrence of Indebtedness, including,
without limitation, statutes or regulations relative to com
mon or contract carriers or to the sale of electricity,
gas, steam, water, telephone, telegraph or other public
utility services, other than Gaming Laws.
4.11. Federal Reserve Regulations; Use of Loan
Proceeds
Neither the Borrower nor any of its Subsidiaries
is engaged principally, or as one of its important
activities, in the business of extending credit for the
purpose of purchasing or carrying any Margin Stock. After
giving effect to the making of each Loan, Margin Stock will
constitute less than 25% of the assets (as determined by
any reasonable method) of the Borrower and its
Subsidiaries.
4.12. Plans
(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 would 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 would reasonably be expected to have a
Material Adverse Effect;
(iii) no "reportable event" (as defined
in Section 4043 of ERISA) has occurred that would
reasonably be expected to have a Material Adverse Effect;
and
(iv) neither the Borrower nor any of its
ERISA Affiliates has engaged in any non-exempt "prohibited
transactions" (as defined in Section 4975 of the Code) that
would reasonably be expected to have a Material Adverse
Effect.
(b) Neither the Borrower nor any of its ERISA
Affiliates has incurred or expects to occur any withdrawal
liability to any Multiemployer Plan that would reasonably
be expected to have a Material Adverse Effect.
4.13. Financial Statements
The Borrower has heretofore delivered to the
Administrative Agent and the Lenders copies of its Form 10-
K for the fiscal year ending September 30, 1996 containing
the audited Consolidated Balance Sheets of the Borrower and
its Subsidiaries as of September 30, 1996, September 30,
1995 and September 30, 1994, and the related Consolidated
Statements of Income, Cash Flows and Changes in
Stockholder's Equity for the periods then ended, and its
Form 10-Q for the fiscal quarter ended December 31, 1996,
containing the unaudited Consolidated Balance Sheet of the
Borrower and its Subsidiaries for such fiscal quarter, to
gether with the related Consolidated Statements of Income
and Cash Flows for the fiscal quarter then ended (with the
applicable related notes and schedules, the "Financial
Statements"). The Financial Statements fairly present the
Consolidated financial condition and results of the op
erations of the Borrower and its Subsidiaries as of the
dates and for the periods indicated therein and have been
prepared in conformity with GAAP. Except as reflected in
the Financial Statements or in the footnotes thereto,
neither the Borrower nor any of its Subsidiaries has any
obligation or liability of any kind (whether fixed, ac
crued, Contingent, unmatured or otherwise) which, in ac
cordance with GAAP, should have been shown in the Financial
Statements and was not. Since September 30, 1996, the
Borrower and each of its Subsidiaries has conducted its
business only in the ordinary course and there has been no
Material Adverse Change.
4.14. Property
Each of the Borrower and each of its Subsidiaries
has good and marketable title to, or a valid leasehold
interest in, all of its Real Property, and is the owner of,
or has a valid lease of, all personal property, in each
case which is material to the Borrower and its
Subsidiaries, taken as a whole, subject to no Liens, except
Permitted Liens. All leases of Property to the Borrower or
any of its Subsidiaries are in full force and effect, the
Borrower or such Subsidiary, as the case may be, enjoys
quiet and undisturbed possession under all leases of real
property and neither the Borrower nor any of its Subsidiar
ies is in default beyond any applicable grace period of any
provision thereof, the effect of which would reasonably be
expected to have a Material Adverse Effect.
4.15. Authorizations
The Borrower and each of its Subsidiaries
possesses or has the right to use all franchises, licenses
(other than Gaming Licenses) and other rights as are mate
rial and necessary for the conduct of its business, and
with respect to which it is in compliance, with no known
conflict with the valid rights of others which would
reasonably be expected to have a Material Adverse Effect.
No event has occurred which permits or, to the best knowl
edge of the Borrower, after notice or the lapse of time or
both, or any other condition, would reasonably be expected
to permit, the revocation or termination of any such ▇▇▇▇
▇▇▇▇▇, license or other right which revocation or ter
mination would reasonably be expected to have a Material
Adverse Effect.
4.16. Gaming Laws
Each of the Borrower and each of its Subsidiaries
(i) has duly and timely filed all filings which are
required to be filed by it under all applicable Gaming
Laws, the failure to file of which would reasonably be
expected to have a Material Adverse Effect and (ii) is in
all material respects in compliance with all applicable
Gaming Laws, the failure to be in compliance with which
would reasonably be expected to have a Material Adverse
Effect.
4.17. Environmental Matters
(a) Except as set forth on Schedule 4.17, to the
best knowledge of the Borrower, no Hazardous Substances
have been generated or manufactured on, transported to or
from, treated at, stored at or discharged from any Real
Property in violation of any Environmental Laws; no
Hazardous Substances have been discharged into subsurface
waters under any Real Property in violation of any Envi
ronmental Laws; no Hazardous Substances have been dis
charged from any Real Property on or into Property or
waters (including subsurface waters) adjacent to any Real
Property in violation of any Environmental Laws; and there
are not now, nor ever have been, on any Real Property any
underground or above ground storage tanks regulated under
any Environmental Laws.
(b) Except as set forth on Schedule 4.17,
neither the Borrower nor any of its Subsidiaries (i) has
received notice (written or oral) or otherwise learned of
any claim, demand, suit, action, proceeding, event, condi
tion, report, directive, Lien, violation, non-compliance or
investigation indicating or concerning any potential or
actual liability (including, without limitation, potential
liability for enforcement, investigatory costs, cleanup
costs, government response costs, removal costs, remedial
costs, natural resources damages, Property damages, per
▇▇▇▇▇ injuries or penalties) arising in connection with:
(x) any non-compliance with or violation of the require
ments of any applicable Environmental Laws, or (y) the pres
ence of any Hazardous Substance on any Real Property (or
any Real Property previously owned by the Borrower or any
of its Subsidiaries) or the release or threatened release
of any Hazardous Substance into the environment which in
each case cumulatively would reasonably be expected to have
a Material Adverse Effect, (ii) has any threatened or
actual liability in connection with the presence of any
Hazardous Substance on any Real Property (or any Real
Property previously owned by the Borrower or any of its
Subsidiaries) or the release or threatened release of any
Hazardous Substance into the environment which would
reasonably be expected to have a Material Adverse Effect,
(iii) has received notice of any federal or state inves
tigation evaluating whether any remedial action is needed
to respond to the presence of any Hazardous Substance on
any Real Property (or any Real Property previously owned by
the Borrower or any of its Subsidiaries) or a release or
threatened release of any Hazardous Substance into the envi
ronment for which the Borrower or any of its Subsidiaries
is or may be liable, or (iv) has received notice that the
Borrower or any of its Subsidiaries is or may be liable to
any Person under any Environmental Law.
4.18. Absence of Certain Restrictions
No indenture, certificate of designation for pre
ferred stock, agreement or instrument to which the
Borrower, IGT or any of IGT's Subsidiaries is a party
(other than this Agreement), and no provision of any law or
regulation, including, without limitation, any Gaming Law,
applicable to the Borrower, IGT or any of IGT's
Subsidiaries, prohibits or limits in any way, directly or
indirectly the ability of IGT or any Subsidiary of IGT to
make Restricted Payments or repay any Indebtedness to the
Borrower, IGT or to another Subsidiary of IGT.
4.19. No Misrepresentation
No representation or warranty contained in any
Loan Document and no certificate or report from time to
time furnished by the Borrower or any of its Subsidiaries
in connection with the transactions contemplated thereby,
contains or will contain a misstatement of material fact,
or, to the best knowledge of the Borrower, omits or will
omit to state a material fact required to be stated in
order to make the statements therein contained not mis
leading in the light of the circumstances under which made,
provided that any projections or pro-forma financial
information contained therein are based upon good faith
estimates and assumptions believed by the Borrower to be
reasonable at the time made, it being recognized by the
Administrative Agent, the Issuing Bank and the Lenders that
such projections as to future events are not to be viewed
as facts, and that actual results during the period or
periods covered thereby may differ from the projected re
sults.
4.20. Existing Letters of Credit
The Existing Letters of Credit set forth on
Schedule 4.20 constitute all of the letters of credit
issued for the account of the Borrower or any of its
Subsidiaries which are outstanding on the Effective Date.
5. CONDITIONS TO FIRST LOANS OR THE ISSUANCE OF FIRST LET
TERS OF CREDIT ON THE FIRST BORROWING DATE; CONDITIONS TO
LOANS FROM THE SENIOR NOTE RESERVE AMOUNT
5.1. Conditions to First Loans or the Issuance of the
First Letters of Credit
In addition to the conditions precedent set forth
in Section 6, the obligation of each Lender to make Loans
or the Issuing Bank to issue Letters of Credit on the first
Borrowing Date and the Lenders to participate therein shall
be subject to the fulfillment of the following conditions
precedent:
(a) Evidence of Action. The Administrative
Agent shall have received a certificate, dated the first
Borrowing Date, of the Secretary or Assistant Secretary of
the Borrower (i) attaching a true and complete copy of the
resolutions of its Managing Person and of all documents evi
dencing all necessary corporate action (in form and
substance satisfactory to the Administrative Agent) taken
by it to authorize the Loan Documents and the transactions
contemplated thereby, (ii) attaching a true and complete
copy of its Organizational Documents, (iii) setting forth
the incumbency of its officer or officers who may sign such
Loan Documents, including therein a signature specimen of
such officer or officers and (iv) attaching a certificate
of good standing of the Secretary of State of the
jurisdiction of its formation and of each other juris
diction in which it is qualified to do business, except in
the case of such other jurisdictions in which the failure
to be in good standing in such jurisdiction would not have
a Material Adverse Effect.
(b) This Agreement. The Administrative
Agent shall have received counterparts of this Agreement
signed by each of the parties hereto (or receipt by the
Administrative Agent from a party hereto of a telecopy sig
nature page signed by such party which shall have agreed to
promptly provide the Administrative Agent with originally
executed counterparts hereof).
(c) Notes. The Administrative Agent shall
have received the Revolving Credit Notes and the Com
petitive Bid Notes, duly executed by an Authorized Signa
tory of the Borrower.
(d) Approvals and Consents. Except for
notices required to be given to Gaming Authorities after
the execution and delivery of this Agreement, which notices
are for informational purposes only and the failure to give
the same will not affect the validity or enforceability of
the Loan Documents, all approvals and consents of all Per
sons required to be obtained in connection with the consum
mation of the transactions contemplated by the Loan
Documents, including, without limitation, any required con
sents or approvals of any Gaming Authority, shall have been
obtained and shall be in full force and effect, and all
required notices have been given and all required waiting
periods shall have expired, and the Administrative Agent
shall have received a certificate, in all respects satisfac
tory to the Administrative Agent, of an executive officer
of the Borrower to the foregoing effects.
(e) Payment of Existing Bank Debt. Prior to
or simultaneously with the making of any Loans or the
issuance of Additional Letters of Credit on the first
Borrowing Date, except in respect of the Existing Letters
of Credit, the Borrower shall have fully repaid all
Existing Bank Debt, all agreements with respect thereto
shall have been cancelled or terminated, all Liens, if any,
securing the same shall have been terminated, and the
Administrative Agent shall have received satisfactory
evidence thereof.
(f) Pro-Forma Compliance Certificate. The
Administrative Agent shall have received a Compliance
Certificate (prepared on a pro-forma basis after giving
effect to the consummation of the transactions contemplated
by the Loan Documents) certified by a Financial Officer of
the Borrower.
(g) Opinions of Counsel to the Borrower and
its Subsidiaries. The Administrative Agent shall have
received (i) an opinion of ▇▇▇▇▇ ▇▇▇▇▇, Esq., General
Counsel to the Borrower and its Subsidiaries and (ii) an
opinion of O'Melveny & ▇▇▇▇▇, LLP, special counsel to the
Borrower and its Subsidiaries, each addressed to the
Administrative Agent, the Issuing Bank and the Lenders (and
permitting Special Counsel to rely thereon), and dated the
first Borrowing Date, substantially in the form of Exhibit
F and F-1, respectively.
(h) Opinion of Special Counsel. The
Administrative Agent shall have received an opinion of
Special Counsel, addressed to the Administrative Agent, the
Issuing Bank and the Lenders and dated the first Borrowing
Date substantially in the form of Exhibit G.
(i) Certain Agreements. The Administrative
Agent shall have received a fully executed copy of each of
the Note Agreement and the ▇▇▇▇▇ Fargo Loan Documents, in
each case certified to be a true and complete copy thereof
by the Secretary or Assistant Secretary of the Borrower,
each of which shall be in form and substance satisfactory
to the Administrative Agent.
(j) Property, Public Liability and Other
Insurance. The Administrative Agent shall have received a
certificate of all insurance maintained by the Borrower and
its Subsidiaries in form and substance reasonably satis
factory to the Administrative Agent.
(k) Account Designation Letter. The
Administrative Agent shall have received an Account
Designation Letter, together with written instructions from
an Authorized Officer of the Borrower, including wire
transfer information, directing the payment of the proceeds
of the initial Loans to be made hereunder.
(l) Fees. All fees payable to the
Administrative Agent, the Issuing Bank and the Lenders on
the first Borrowing date shall have been paid.
(m) Fees and Expenses of Special Counsel.
The fees and expenses of Special Counsel in connection with
the preparation, negotiation and closing of the Loan Docu
ments shall have been paid.
5.2. Conditions to Loans or Letters of Credit Made
from the Senior Note Reserve Amount
In addition to the conditions precedent set forth
in Section 6, the obligation of each Lender to make Loans
or the Issuing Bank to issue Letters of Credit out of the
Senior Note Reserve Amount, and the Lenders to participate
therein shall be subject to the fulfillment of the
following conditions precedent on or before September 2,
1997:
(a) Payment of Senior Notes. Prior to or
simultaneously with the making of any Loans or the issuance
of Additional Letters of Credit under the Senior Note
Reserve Amount, the Borrower shall have fully repaid all
Indebtedness in respect of the Senior Notes and the Note
Agreement and all other agreements with respect thereto
shall have been cancelled or terminated, and the
Administrative Agent shall have received satisfactory
evidence thereof.
(b) Pro-Forma Compliance Certificate. The
Administrative Agent shall have received a Compliance
Certificate (prepared on a pro-forma basis after giving
effect to the repayment of the Senior Notes and the
borrowing of Loans in connection therewith) certified by a
Financial Officer of the Borrower.
6. CONDITIONS OF LENDING - ALL LOANS AND LETTERS OF
CREDIT
The obligation of each Lender to make any Loan or the
Issuing Bank to issue any Letter of Credit on a Borrowing
Date and each Lender to participate therein is subject to
the satisfaction of the following conditions precedent as
of the date of such Loan or the issuance of such Letter of
Credit, as the case may be:
6.1. Compliance
On each Borrowing Date and after giving effect to
the Loans to be made and the Letters of Credit to be issued
thereon (i) there shall exist no Default or Event of De
fault and (ii) the representations and warranties contained
in the Loan Documents shall be true and correct with the
same effect as though such representations and warranties
had been made on such Borrowing Date, except to the extent
such representations and warranties specifically relate to
an earlier date, in which case such representations and
warranties shall have been true and correct on and as of
such earlier date. Each borrowing by the Borrower and each
request by the Borrower for the issuance of a Letter of
Credit shall constitute a certification by the Borrower as
of such Borrowing Date that each of the foregoing matters
is true and correct in all respects.
6.2. Borrowing Request; Letter of Credit Request
With respect to the Revolving Credit Loans to be
made, and the Letters of Credit to be issued, on each
Borrowing Date, the Administrative Agent shall have re
ceived, (i) in the case of Revolving Credit Loans, a
Borrowing Request and, (ii) in the case of Additional
Letters of Credit, a Letter of Credit Request, in each case
duly executed by an Authorized Signatory of the Borrower.
6.3. Other Documents
The Administrative Agent shall have received such
other documents as the Administrative Agent or the Lenders
shall reasonably request.
7. AFFIRMATIVE COVENANTS
The Borrower agrees that, so long as this Agreement is
in effect, any Commitment or the Letter of Credit
Commitment is continuing, any Loan or Reimbursement
Obligation (contingent or otherwise) in respect of any
Letter of Credit remains outstanding and unpaid, or any
other amount is owing under any Loan Document to any
Lender, the Issuing Bank or the Administrative Agent, the
Borrower shall:
7.1. Financial Statements and Information
Maintain, and cause each of its Subsidiaries to
maintain, a standard system of accounting in accordance
with GAAP, and furnish or cause to be furnished to the Ad
ministrative Agent and each Lender:
(a) As soon as available, but in any event
within 90 days after the end of each fiscal year, a copy of
its Consolidated and Consolidating Balance Sheets as at the
end of such fiscal year, together with the related Con
solidated and Consolidating Statements of Income, Changes
in Stockholders' Equity and Cash Flows as of and through
the end of such fiscal year, setting forth in each case in
comparative form the figures for the preceding fiscal year.
The Consolidated Balance Sheet and Consolidated Statement
of Income, Change in Stockholders' Equity and Cash Flow
shall be audited and certified without qualification by the
Accountants, which certification shall (i) state that the
examination by such Accountants in connection with such Con
solidated financial statements has been made in accordance
with generally accepted auditing standards and,
accordingly, included such tests of the accounting records
and such other auditing procedures as were considered
necessary in the circumstances, and (ii) include the
opinion of such Accountants that such Consolidated ▇▇▇▇▇
cial statements have been prepared in accordance with GAAP
in a manner consistent with prior fiscal periods, except as
otherwise specified in such opinion. The Consolidating
Balance Sheets and Consolidating Statements of Income, Changes
in Stockholders' Equity and Cash Flows shall be certified
by a Financial Officer of the Borrower, as being complete
and correct in all material respects and as presenting
fairly the Consolidating financial condition and the
Consolidating results of operations of the Borrower and its
Subsidiaries. Notwithstanding any of the foregoing, the
Borrower may satisfy its obligation to furnish Consolidated
and Consolidating Balance Sheets and Consolidated and
Consolidating Statements of Income, Changes in
Stockholders' Equity and Cash Flows by furnishing copies of
the Borrower's annual report on Form 10-K in respect of
such fiscal year, together with the financial statements
required to be attached thereto, provided the Borrower is
required to file such annual report on Form 10-K with the
SEC and such filing is actually made.
(b) As soon as available, but in any event
within 45 days after the end of each of the first three
fiscal quarters of each fiscal year, a copy of the ▇▇▇▇▇▇▇
dated and Consolidating Balance Sheets of the Borrower as
at the end of each such quarterly period, together with the
related Consolidated and Consolidating Statements of Income
and Cash Flows for such period and for the elapsed portion
of the fiscal year through such date, setting forth in each
case in comparative form the figures for the corresponding
periods of the preceding fiscal year, certified by a
Financial Officer of the Borrower, as being complete and
correct in all material respects and as presenting fairly
the Consolidated and Consolidating financial condition and
the Consolidated and Consolidating results of operations of
the Borrower and its Subsidiaries. Notwithstanding any of
the foregoing, the Borrower may satisfy its obligation to
furnish quarterly Consolidated Balance Sheets and Con
solidated Statements of Income and Cash Flows by furnishing
copies of the Borrower's quarterly report on Form 10-Q in
respect of such fiscal quarter, together with the financial
statements required to be attached thereto, provided the
Borrower is required to file such quarterly report on Form
10-Q with the SEC and such filing is actually made.
(c) Compliance Certificate. Within 45 days
after the end of each of the first three fiscal quarters
(90 days after the end of the last fiscal quarter), a
Compliance Certificate, certified by a Financial Officer of
the Borrower.
(d) Such other information as the
Administrative Agent or any Lender may reasonably request
from time to time.
7.2. Certificates; Other Information
Furnish to the Administrative Agent and each
Lender:
(a) Prompt written notice if: (i) any In
debtedness of the Borrower or any of its Subsidiaries in an
aggregate amount in excess of $5,000,000 is declared or
shall become due and payable prior to its stated maturity,
or is called and not paid when due, (ii) a default shall
have occurred under, or the holder or obligee of, any note
(other than the Notes), certificate, security or other
evidence of Indebtedness, with respect to any other
Indebtedness of the Borrower or any of its Subsidiaries has
the right to declare Indebtedness in an aggregate amount in
excess of $5,000,000 due and payable prior to its stated
maturity, (iii) there shall occur and be continuing a
Default or an Event of Default, or (iv) a Change of Control
shall occur or the Borrower shall have entered into any
agreement or other arrangement which, on the consummation
thereof, will result in a Change of Control;
(b) Prompt written notice of: (i) any cita
tion, summons, subpoena, order to show cause or other
document naming the Borrower or any of its Subsidiaries a
party to any proceeding before any Governmental Authority
which would reasonably be expected to have a Material
Adverse Effect or which calls into question the validity or
enforceability of any of the Loan Documents, and include
with such notice a copy of such citation, summons, sub
poena, order to show cause or other document, (ii) any
lapse or other termination of any material license, permit,
franchise or other authorization issued to the Borrower or
any of its Subsidiaries by any Person or Governmental
Authority, or (iii) any refusal by any Person or
Governmental Authority to renew or extend any such material
license, permit, franchise or other authorization, which
lapse, termination, refusal or dispute would reasonably be
expected to have a Material Adverse Effect;
(c) Promptly upon becoming available,
copies of all (i) registration statements, regular,
periodic or special reports, schedules and other material
which the Borrower or any of its Subsidiaries may now or
hereafter be required to file with or deliver to any securi
ties exchange or the SEC and (ii) material news releases
and annual reports relating to the Borrower or any of its
Subsidiaries;
(d) Prompt written notice in the event that
the Borrower, any of its Subsidiaries or any ERISA
Affiliate becomes aware of the occurrence of any (i) "re
portable 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, specifying the nature thereof and
specifying what action the Borrower, its Subsidiaries or
any ERISA Affiliate is taking or proposes to take with
respect thereto, and, when known, any action taken by the
Internal Revenue Service with respect thereto;
(e) Prompt written notice of any order, no
▇▇▇▇, claim or proceeding received by, or brought against,
the Borrower or any of its Subsidiaries, or with respect to
any of the Real Property, under any Environmental Law which
would reasonably be expected to have a Material Adverse
Effect; and
(f) Such other information as the
Administrative Agent or any Lender shall reasonably request
from time to time.
7.3. Legal Existence
Except as may otherwise be permitted by Sections
8.3 and 8.4, maintain, and cause each of its Subsidiaries
to maintain, its corporate, partnership or analogous
existence, as the case may be, in good standing in the
jurisdiction of its incorporation or formation and in each
other jurisdiction in which the failure so to do would
reasonably be expected to have a Material Adverse Effect;
provided, however, that any Subsidiary of Borrower (other
than IGT) may be dissolved if such dissolution could not
reasonably be expected to have a Material Adverse Effect.
7.4. Taxes
Pay and discharge when due, and cause each of its
Subsidiaries so to do, all Taxes upon or with respect to
the Borrower or such Subsidiary and all Taxes upon the
income, profits and Property of the Borrower and its
Subsidiaries, which if unpaid, would reasonably be expected
to have a Material Adverse Effect or become a Lien on
Property of the Borrower or such Subsidiary (other than a
Lien described in Section 8.2(i)), unless and to the extent
only that such Taxes shall be contested in good faith and
by appropriate proceedings diligently conducted by the
Borrower or such Subsidiary and, provided further, that the
Borrower shall give the Administrative Agent prompt notice
of such contest and that such reserve or other appropriate
provision as shall be required by the Accountants in ac
cordance with GAAP shall have been made therefor.
7.5. Insurance
Maintain, and cause each of its Subsidiaries to
maintain, with financially sound and reputable insurance
companies insurance in at least such amounts and against at
least such risks (but including in any event public
liability, product liability and business interruption
coverage) as are usually insured against in the same
general area by companies engaged in the same or a similar
business; and furnish to the Administrative Agent, upon
written request, full information as to the insurance
carried.
7.6. Performance of Obligations
Pay and discharge when due, and cause each of its
Subsidiaries so to do, all lawful Indebtedness, obligations
and claims for labor, materials and supplies or otherwise
which, if unpaid, (i) would reasonably be expected to have
a Material Adverse Effect, or (ii) might become a Lien upon
Property of the Borrower or any of its Subsidiaries other
than a Permitted Lien, unless and to the extent only that
the validity of such Indebtedness, obligation or claim
shall be contested in good faith and by appropriate proceed
ings diligently conducted, and provided that the Borrower
shall give the Administrative Agent prompt notice of any
such contest and that such reserve or other appropriate
provision as shall be required by the Accountants in accord
ance with GAAP shall have been made therefor.
7.7. Condition of Property
At all times, maintain, protect and keep in good
repair, working order and condition (ordinary wear and tear
excepted), and cause each of its Subsidiaries so to do, all
Property necessary to the operation of the Borrower's or
such Subsidiary's business, except to the extant that any
failure to do the same would not reasonably be expected to
have a Material Adverse Effect.
7.8. Observance of Legal Requirements
Observe and comply in all respects, and cause
each of its Subsidiaries so to do, with all laws
(including, without limitation, Environmental Laws),
ordinances, orders, judgments, rules, regulations,
certifications, franchises, permits, licenses (including,
without limitation, Gaming Licenses), directions and
requirements of all Governmental Authorities, which now or
at any time hereafter may be applicable to it, a violation
of which would reasonably be expected to have a Material
Adverse Effect, except such thereof as shall be contested
in good faith and by appropriate proceedings diligently
conducted by it, provided that the Borrower shall give the
Administrative Agent prompt notice of such contest and that
such reserve or other appropriate provision as shall be
required by the Accountants in accordance with GAAP shall
have been made therefor.
7.9. Inspection of Property; Books and Records; Discus
sions
At all reasonable times, upon reasonable prior no
▇▇▇▇, permit representatives of the Administrative Agent
and each Lender at their expense to visit the offices of
the Borrower and each of its Subsidiaries, to examine the
books and records thereof and Accountants' reports relating
thereto, and to make copies or extracts therefrom, to
discuss the affairs of the Borrower and each such
Subsidiary with the respective officers thereof, and to
examine and inspect the Property of the Borrower and each
such Subsidiary and to meet and discuss the affairs of the
Borrower and each such Subsidiary with the Accountants, pro
vided that after the occurrence and during the continuance
of an Event of Default (whether or not the Commitments have
been terminated and whether or not the Loans have been
accelerated) all expenses of any visit, inspection or
examination pursuant to this Section shall be paid by the
Borrower.
7.10. Authorizations
Maintain, and cause each of its Subsidiaries to
maintain, in full force and effect, all licenses,
franchises, permits, licenses (including, without
limitation, Gaming Licenses), authorizations and other
rights as are necessary for the conduct of its business,
except to the extent that the failure to so maintain could
not reasonably be expected to have a Material Adverse
Effect.
7.11. Financial Covenants
(a) Leverage Ratio. Maintain at all times a
Leverage Ratio of not more than 3.00:1.00.
(b) Fixed Charge Coverage Ratio. Maintain at all
times a Fixed Charge Coverage Ratio of not less than
1.15:1.00.
(c) Jackpot Ratio. Maintain at all times a
Jackpot Ratio of not less than 1.00:1.00.
8. NEGATIVE COVENANTS
The Borrower agrees that, so long as this Agreement is
in effect, any Commitment or the Letter of Credit
Commitment is continuing, any Loan or Reimbursement
Obligation (contingent or otherwise) in respect of any
Letter of Credit remains outstanding and unpaid, or any
other amount is owing under any Loan Document to any
Lender, the Issuing Bank or the Administrative Agent, the
Borrower shall not, directly or indirectly:
8.1. Indebtedness
Create, incur, assume or suffer to exist any li
ability for Indebtedness, or permit any of its Subsidiaries
so to do, except (i) Indebtedness due under the Loan Docu
ments, (ii) Indebtedness of the Borrower or any of its
Subsidiaries existing on the Effective Date as set forth on
Schedule 8.1 (other than the Existing Bank Debt which is to
be repaid on the Effective Date), excluding increases
thereof, but, in the case of (A) such Indebtedness of the
Subsidiaries of the Borrower, and (B) Indebtedness of the
Borrower under the Senior Notes, including renewals,
extensions and refinancings thereof, provided, however, any
such renewal, extension or refinancing of the Senior Notes
shall not have a maturity earlier than one year after the
Maturity Date, (iii) Intercompany Indebtedness to the
extent permitted by Section 8.5, (iv) Indebtedness in an ag
gregate principal amount not in excess of $25,000,000 at
any one time outstanding (A) in respect of capital leases,
(B) secured by Liens on Property (including, in the event
such Property constitutes Capital Stock of a newly acquired
Subsidiary, Liens on the Property of such Subsidiary) ac
quired by the Borrower or any of its Subsidiaries after the
Effective Date, provided that such Liens are in existence
on the date of such acquisition and were not placed on such
Property in contemplation of such acquisition, and (C)
other purchase money Indebtedness, provided that, in each
case under this clause (iv), the Lien securing such In
debtedness is permitted by Section 8.2, (v) Indebtedness in
respect of the Senior Notes unless the same shall be
prepaid in accordance with the provisions hereof, (vi)
unsecured Indebtedness of a Subsidiary of the Borrower,
provided that (A) immediately before and after giving
effect thereto, no Default or Event of Default shall
exist, and (B) the aggregate outstanding principal amount
of all such Indebtedness incurred by the Subsidiaries of
the Borrower after the Effective Date shall not exceed
$50,000,000 at any time, (vii) other unsecured Indebtedness
of the Borrower, provided that (A) no Default or Event of
Default shall exist or be continuing at the time of the
incurrence thereof, (B) the interest rate on any such
Indebtedness is not in excess of the rate available for
similar borrowings by similar borrowers at the time of the
incurrence thereof, and (C) the maturity of such Indebted
ness is no earlier than one year after the Maturity Date
and (viii) Indebtedness (other than Indebtedness of IGT or
any Subsidiary of IGT) acquired as part of a Permitted
Acquisition, provided that such Indebtedness existed im
mediately prior to such Permitted Acquisition and was not
incurred in anticipation thereof.
8.2. Liens
Create, incur, assume or suffer to exist any Lien
upon any of its Property, whether now owned or hereafter ac
quired, or permit any of its Subsidiaries so to do, except
(i) Liens for Taxes in the ordinary course of business
which are not delinquent or which are being contested in ac
cordance with Section 7.4, provided that enforcement of
such Liens is stayed pending such contest, (ii) Liens in
connection with workers' compensation, unemployment
insurance or other social security obligations (but not
ERISA), (iii) deposits or pledges to secure bids, tenders,
contracts (other than contracts for the payment of money),
leases, statutory obligations, surety and appeal bonds and
other obligations of like nature arising in the ordinary
course of business, (iv) zoning ordinances, easements,
rights of way, minor defects, irregularities, and other
similar restrictions affecting real Property which do not
adversely affect the value of such real Property or the
financial condition of the Borrower or such Subsidiary or
impair its use for the operation of the business of the
Borrower or such Subsidiary, (v) Liens arising by operation
of law such as mechanics', materialmen's, carriers',
warehousemen's liens incurred in the ordinary course of
business which are not delinquent or which are being
contested in accordance with Section 7.6, provided that en
forcement of such Liens is stayed pending such contest,
(vi) Liens arising out of judgments or decrees which are
being contested in accordance with Section 7.6, provided
that enforcement of such Liens is stayed pending such
contest, (vii) Liens in favor of the Administrative Agent
and the Lenders under the Loan Documents, (viii) Liens
under capital leases and Liens on Property (including, in
the event such Property constitutes Capital Stock of a
newly acquired Subsidiary, Liens on the Property of such
Subsidiary) acquired after the Effective Date, provided
that (A) such Liens are in existence on the date of such
acquisition and were not placed on such Property in contem
plation of such acquisition, (B) such Liens attach only to
the Property so purchased or acquired, and (C) the In
debtedness secured by such Liens is permitted by Section
8.1(iv), (ix) Liens on Margin Stock to the extent that a
prohibition on such Liens would result in the
Administrative Agent, the Issuing Bank and the Lenders
being deemed to be "indirectly secured" by Margin Stock
under Regulation U of the Board of Governors of the Federal
Reserve System, as amended, taking into account the value
of Margin Stock owned by the Borrower and its Subsidiaries
and any other relevant facts and circumstances, (x) Liens
on Property of the Borrower and its Subsidiaries existing
on the Effective Date as set forth on Schedule 8.2 as
renewed from time to time, but not any increases in the
amounts secured thereby or extensions thereof to additional
Property, (xi) Liens consisting of the interest or title of
the lessor or sublessor under any lease and any Liens
arising from UCC financing statements relating solely to
leases in respect of which the Borrower or any of its
Subsidiaries is the lessee, (xii) Liens in favor of
Governmental Authorities arising by operation of law to
secure the payment of custom duties in connection with the
importation of goods in the ordinary course of business,
(xiii) Liens consisting of licenses or patents, trademarks
and other intellectual property granted by the Borrower or
any of its subsidiaries which does not interfere in any
material respect with the conduct of the Borrower's or such
Subsidiary's business in the ordinary course and (xiv)
Liens securing Indebtedness described in Section 8.1(viii)
on Property acquired after in connection with a Permitted
Acquisition, provided that such Liens are limited to the
Property so acquired and were not created in anticipation
of such acquisition.
8.3. Merger, Consolidations and Acquisitions
Consolidate with, be acquired by, merge into or
with any Person, make any Acquisition or enter into any
binding agreement to do any of the foregoing which is not
contingent on obtaining the consent of the Required
Lenders, or permit any of its Subsidiaries so to do,
except:
(a) provided that (i) the Administrative
Agent shall have received ten days prior written notice and
(ii) immediately before and after giving effect thereto no
Default or Event of Default shall exist, (A) IGT may merge
or consolidate with the Borrower provided that the Borrower
shall be the survivor, (B) any wholly-owned Subsidiary of
the Borrower (other than IGT) may merge or consolidate with
any other wholly-owned Subsidiary of the Borrower (other
than IGT);
(b) mergers involving Subsidiaries (other
than IGT) as part of an Acquisition permitted by subsection
(d) below;
(c) Investments permitted by Section 8.5; and
(d) Acquisitions, the Acquisition Cost of
which for all Acquisitions made after the Effective Date
shall not exceed $200,000,000, provided that:
(i) the Administrative Agent and the
Lenders shall have been given ten Business Days' prior
written notice thereof;
(ii) no Default or Event of Default
shall exist immediately before or after giving effect to
such Acquisition;
(iii) the Borrower will be in com
pliance with each of the financial covenants contained in
Section 7.11 on a pro-forma basis after giving effect to
such Acquisition and any Indebtedness incurred or assumed
in connection therewith which is permitted by Section 8.1;
(iv) immediately after giving effect to
each such Acquisition, all of the representations and
warranties contained in Section 4 shall be true and correct
as if then made;
(v) the Person, business or assets
acquired in connection with such Acquisition are in the
same or a related line of business to the Borrower or any
of its Subsidiaries;
(vi) if the Acquisition Cost in respect
of any Acquisition shall exceed $25,000,000, the
Administrative Agent shall have received a certificate of a
Financial Officer of the Borrower, (A) identifying the
Person or Property to be acquired, the name of the Person
making such Acquisition and setting forth the total con
sideration to be paid in respect of such Acquisition and
(B) certifying the information set forth in clauses (ii)
(iii) and (iv) above and containing computations (in
reasonable detail) in support thereof, such certificate to
be in form and substance satisfactory to the Administrative
Agent; and
(vii) the Administrative Agent
shall have received such other information or documents as
the Administrative Agent shall have reasonably requested.
8.4. Dispositions
Make any Disposition, or permit any of its
Subsidiaries so to do, except:
(a) any Disposition of any Investment
permitted under Section 8.5, provided, however, that if the
Senior Notes (or any portion thereof) are outstanding and
as a result of such Disposition the Borrower would be
obligated to make an offer to repay such Senior Notes, such
Disposition shall only be permitted subject to the
provisions of subsection (c);
(b) Dispositions of Property which, in the
reasonable opinion of the Borrower or such Subsidiary, is
obsolete or no longer useful in the conduct of its
business; and
(c) so long as no Default or Event of
Default shall exist immediately before or after giving
effect thereto, other Dispositions, provided, however, that
if the book value of the Property subject to such
Disposition, together with the book value of all other
Property which was the subject of a Disposition during such
fiscal year, exceeds 15% of Consolidated Total Assets:
(i) within ten days after each such
Disposition, the Administrative Agent and the Lenders shall
have received a certificate in respect thereto signed by a
Financial Officer of the Borrower identifying the Property
sold or otherwise disposed of and certifying that (A) im
mediately before or after giving effect thereto, no Default
or Event of Default shall exist, (B) the total
consideration received and to be received in respect of
such Disposition, and (C) if all or any portion of the
proceeds thereof are to be applied to the prepayment or
redemption of Senior Notes in accordance with the Note
Agreement, the amount to be so applied (including
calculations thereof in reasonable detail), provided,
however, that if the Borrower makes an offer to the holders
of Senior Notes to prepay or redeem Senior Notes with
respect to a Disposition and any such holder does not
accept the Borrower's offer to so prepay or redeem, the
Borrower shall deliver a revised calculation of the
information required under this clause (C), certified by a
Financial Officer of the Borrower; and
(ii) the Aggregate Commitment Amount
shall be permanently reduced by an amount set forth under
clauses (A) or (B) below:
(A) if at the time of such
Disposition and at the time that the Borrower would be
obligated to prepay or redeem Senior Notes in connection
with such Disposition pursuant to the Note Agreement, the
Senior Notes are outstanding (1) the Borrower shall include
the Aggregate Credit Exposure in the calculation of the
"Allocable Share" (as defined in the Note Agreement) and
(2) the Aggregate Commitment Amount shall be permanently
reduced by an amount equal to 100% of the amount of the Net
Proceeds of such Disposition minus the amount thereof
required to be applied to the prepayment of the Senior
Notes pursuant to the Note Agreement minus the amount
thereof which the Borrower or such Subsidiary has applied
prior to the Disposition Reduction Date to the purchase of
assets (other than current assets) for use in its business,
such reduction to be made on the Disposition Reduction
Date; and
(B) if the Senior Notes are
either not outstanding at the time of the Disposition or on
the Disposition Reduction Date, on the Disposition
Reduction Date, the Aggregate Commitment Amount shall be
permanently reduced by an amount equal to 100% of the
amount of the Net Proceeds of such Disposition minus the
amount thereof which the Borrower or such Subsidiary has
applied prior to the Disposition Reduction Date to the
purchase of assets (other than current assets) for use in
its business; and
(d) Dispositions of Margin Stock to the
extent that a prohibition or restriction on such
Dispositions would result in the Administrative Agent and
the Lenders being deemed to be "indirectly secured by such
Margin Stock under Regulation U of the Board of Governors
of the Federal Reserve System, as amended, taking into
account the value of the Margin Stock owned by the Borrower
and its Subsidiaries and any other relevant facts and
circumstances.
8.5. Investments, Loans, Etc.
At any time, directly or indirectly purchase,
hold, own or otherwise acquire or invest in any Capital
Stock, evidence of indebtedness or other obligation or
security or any interest whatsoever in any other Person, or
make or permit to exist any loans, advances or other
extensions of credit to, or any investment (whether in cash
or other Property) in, any other Person, or enter into any
arrangement for the purpose of providing funds or credit to
any other Person, or make any Acquisition (other than a
Permitted Acquisition), or become a partner or joint
venturer in any partnership or joint venture, or enter into
any Interest Rate Protection Arrangement, or make any other
investment, whether by way of capital contribution, time
deposit or otherwise, in or with any Person, or make any
commitment or otherwise to agree to do any of the foregoing
(all of which are sometimes referred to herein as "Invest
ments"), or permit any of its Subsidiaries so to do, or
except:
(a) Investments in Cash Equivalents;
(b) Investments existing on the Effective
Date as set forth on Schedule 8.5;
(c) normal business banking accounts;
(d) Investments (i) by the Borrower, IGT or
any of IGT's Subsidiaries in IGT or any of IGT's wholly-
owned Subsidiaries, including Investments in Intercompany
Indebtedness, and (ii) by the Borrower or any of its
Subsidiaries in any wholly-owned Subsidiary of the
Borrower, including Investments in Intercompany Indebt
edness, provided that such Investments under this clause
(ii) shall not exceed in the aggregate 10% of the
Borrower's Consolidated Total Assets at any time;
(e) Investments in direct obligations of
the United States of America or any agency or
instrumentality thereof, the payment or guarantee of which
constitutes a full faith and credit obligation of the
United States of America, in either case maturing in five
years or less from the date of the acquisition thereof;
(f) Investments (i) in direct obligations
of the United States of America or any agency or
instrumentality thereof, the payment or guarantee of which
constitutes a full faith and credit obligation of the
United States of America, (ii) in any security issued or
guaranteed by any state or political subdivision thereof
having, at the time of acquisition, a rating of A or better
by either Standard & Poor's or ▇▇▇▇▇'▇ and (iii) permitted
by any Gaming Authority regulating gaming with respect to
the funding of Jackpot Liabilities, in each case in amounts
which the Borrower or any of its Subsidiaries deems, in
good faith, to be necessary to fund its Jackpot
Liabilities;
(g) Investments in Interest Rate Protection
Arrangements (where used for hedging purposes) covering a
notional principal amount not in excess of the sum of the
Aggregate Available Commitment Amount plus the outstanding
principal amount of the Senior Notes;
(h) Investments consisting of loans or
advances to any officer, director or employee of the
Borrower or any of its Subsidiaries made (i) in the usual
and ordinary course of business for expenses (including
moving expenses related to a transfer) incidental to
carrying on the business of the Borrower or any of its
Subsidiaries, and (ii) in connection with the exercise of
any stock option of such officer, director or employee,
provided that such loans or advances made in connection
with the exercise of stock options shall not exceed in the
aggregate at any time outstanding $2,000,000;
(i) Investments in repurchase agreements
having terms of less than 180 days which are backed by
Investments described in subsection (e) above and which are
issued by (A) an Approved Bank or an investment bank whose
(or whose parent company's) long-term debt securities are,
at the time of any acquisition thereof by the Borrower or
any of its Subsidiaries, accorded a rating of A or better
by either of Standard & Poor's or ▇▇▇▇▇'▇ or (B) a primary
securities dealer;
(j) Investments acquired as part of a
Permitted Acquisition, provided that such Investments
existed immediately prior to the time the Permitted Acqui
sition was made and were not made in anticipation thereof;
(k) any change in the form of any
Investment in a Subsidiary of the Borrower from debt to
equity (other than debt of IGT or any Subsidiary of IGT);
(l) Investments in equity securities of
Acres Gaming, Inc. not to exceed an additional 5% of the
outstanding equity therein, provided that the cost thereof
does not exceed $7,000,000;
(m) Investments consisting of in-kind
contributions of gaming machines and gaming equipment to
joint ventures;
(n) Investments by the Borrower or any of
its Subsidiaries in joint ventures to the extent made in
cash or Cash Equivalents;
(o) other Investments (including, without
limitation, Investments in joint ventures to the extent not
described in subsections (m) or (n) above) in an aggregate
amount not to exceed $50,000,000, provided that no Default
or Event of Default shall exist before or after giving
effect thereto; and
(p) Investments in equity or debt
securities not to exceed 5% of the outstanding equity or
debt securities of any single issuer, provided that such
Investments shall not exceed in the aggregate 10% of the
Borrower's Consolidated Total Assets.
8.6. Restricted Payments
Declare or pay any Restricted Payments payable in
cash or otherwise or apply any of its Property thereto or
set apart any sum therefor, or permit any of its Sub
sidiaries so to do, except that: (i) a wholly- owned Sub
sidiary may declare and pay Restricted Payments to the
Borrower, (ii) provided that no Default or Event of Default
has occurred and is then continuing or would occur giving
effect thereto, the Borrower may (A) declare and pay cash
dividends on its common Capital Stock and (B) repurchase
shares of its common Stock.
8.7. Business and Name Changes
Except to the extent permitted by Section 7.3,
materially change the nature of the business of the
Borrower and its Subsidiaries as conducted on the Effective
Date, or alter or modify its name, structure or status, or
change its fiscal year from that in effect on the Effective
Date, or permit any of its Subsidiaries so to do.
8.8. ERISA
(a) Establish or contribute, or permit any of
its Subsidiaries so to do, to any Pension Plan or
Multiemployer Plan except to the extent that the same would
not reasonably be expected to result in a Material Adverse
Effect.
(b) Permit any Pension Plan to : (i) engage in
any non-exempt "prohibited transactions" (as defined in
Section 4975 of the Code), (ii) fail to comply with ERISA
or any other applicable laws, (iii) incur any "accumulated
funding deficiency" (as defined in Section 302 of ERISA);
or (iv) terminate in any manner, which, with respect to
each event listed above, would reasonably be expected to
result in a Material Adverse Effect.
(c) Withdraw, completely or partially, from any
Multiemployer Plan if to do so would reasonably be expected
to have a Material Adverse Effect.
8.9. Amendments, Etc. of Certain Agreements
Enter into or agree to any amendment, modifica
tion or waiver of any term or condition of its
Organizational Documents or the Note Agreement in any way
which would adversely affect the interests of the
Administrative Agent and the Lenders under any of the Loan
Documents or permit any of its Subsidiaries so to do.
8.10. Transactions with Affiliates
Become a party to any transaction with an Af
filiate unless the Borrower's Managing Person shall have
determined that the terms and conditions relating thereto
are as favorable to the Borrower as those which would be
obtainable at the time in a comparable arms-length trans
action with a Person other than an Affiliate, or permit any
of its Subsidiaries so to do, other than payments or
advances of compensation or benefits (to the extent not
prohibited by Section 8.5(h)) to Affiliates in his or her
capacity as an employee, officer or director of the
Borrower or any of its Subsidiaries.
8.11. Limitation on Upstream Dividends by Sub
sidiaries
Permit or cause IGT or any of IGT's Subsidiaries
to enter into or agree, or otherwise be or become subject,
to any agreement, contract or other arrangement (other than
this Agreement) with any Person pursuant to the terms of
which (i) such Subsidiary is or would be prohibited from
declaring or paying any cash dividends on any class of its
Capital Stock owned directly or indirectly by the Borrower,
IGT or any Subsidiary of IGT or from making any other dis
tribution on account of any class of any such Capital Stock
(herein referred to as "Upstream Dividends"), (ii) the dec
laration or payment of Upstream Dividends by IGT or a Sub
sidiary of IGT to the Borrower, IGT or another Subsidiary
of IGT, on an annual or cumulative basis, is or would be
otherwise limited or restricted or (iii) any other payments
or distributions by IGT or a Subsidiary of IGT to the
Borrower, IGT or another Subsidiary of IGT is or would be
otherwise limited or restricted.
8.12. Limitation on Negative Pledges
Enter into any agreement, other than (i) this
Agreement and (ii) purchase money mortgages or capital
leases permitted by this Agreement (in which cases, any
prohibition or limitation shall only be effective against
the assets financed thereby), or permit IGT or any of IGT's
Subsidiaries so to do, which prohibits or limits the
ability of the Borrower, IGT or a Subsidiary of IGT to
create, incur, assume or suffer to exist any Lien upon any
of its Property or revenues, whether now owned or hereafter
acquired.
9. DEFAULT
9.1. Events of Default
The following shall each constitute an "Event of
Default" hereunder:
(a) The failure of the Borrower to make (i)
any payment of principal on any Note, or any reimbursement
payment hereunder or under any Reimbursement Agreement,
when due and payable, or (ii) any deposit into the Cash
Collateral Account when required hereby; or
(b) The failure of the Borrower to make any
payment of interest, Fees, expenses or other amounts pay
able under any Loan Document or otherwise to the
Administrative Agent with respect to the loan facilities
established hereunder within five Business Days of the date
when due and payable; or
(c) The failure of the Borrower to observe
or perform any covenant or agreement contained in Sections
2.7, 7.3, 7.11 or Section 8; or
(d) The failure of the Borrower to observe
or perform any other term, covenant, or agreement contained
in any Loan Document and such failure shall have continued
unremedied for a period of 30 days after the Borrower shall
have obtained knowledge thereof; or
(e) Any representation or warranty made by
the Borrower (or by an officer thereof on its behalf) in
any Loan Document or in any certificate, report, opinion
(other than an opinion of counsel) or other document de
livered or to be delivered pursuant thereto, shall prove to
have been incorrect or misleading (whether because of mis
statement or omission) in any material respect when made;
or
(f) Liabilities and/or other obligations of
the Borrower (other than its obligations hereunder) or any
of its Subsidiaries, whether as principal, guarantor,
surety or other obligor, for the payment of any Indebted
ness or operating leases in an aggregate amount in excess
of $20,000,000 (i) shall become or shall be declared to be
due and payable prior to the expressed maturity thereof, or
(ii) shall not be paid when due or within any grace period
for the payment thereof, (iii) any holder of any such obli
gation shall have the right to declare such obligation due
and payable prior to the expressed maturity thereof or (iv)
as a consequence of the occurrence or continuation of any
event or condition, the Borrower or any of its Subsidiaries
has become obligated to purchase or repay any Indebtedness
before its regularly scheduled maturity date;
(g) Any license (including, without
limitation, any Gaming License), franchise, permit, right,
approval or agreement of the Borrower or any of its Sub
sidiaries is not renewed, or is suspended, revoked or
terminated provided that such non- renewal, suspension,
revocation or termination thereof would have a Material Ad
verse Effect; or
(h) The Borrower or any of its Subsidiaries
shall (i) suspend or discontinue its business (other than
any Subsidiary of the Borrower permitted to be dissolved
pursuant to Section 7.3), (ii) make an assignment for the
benefit of creditors, (iii) generally not be paying its
debts as such debts become due, (iv) admit in writing its
inability to pay its debts as they become due, (v) file a
voluntary petition in bankruptcy, (vi) become insolvent
(however such insolvency shall be evidenced), (vii) file
any petition or answer seeking for itself any reorganiza
tion, arrangement, composition, readjustment of debt,
liquidation or dissolution or similar relief under any
present or future statute, law or regulation of any
jurisdiction, (viii) petition or apply to any tribunal for
any receiver, custodian or any trustee for any substantial
part of its Property, (ix) be the subject of any such pro
ceeding filed against it which remains undismissed for a
period of 45 days, (x) file any answer admitting or not
contesting the material allegations of any such petition
filed against it or any order, judgment or decree approving
such petition in any such proceeding, (xi) seek, approve,
consent to, or acquiesce in any such proceeding, or in the
appointment of any trustee, receiver, sequestrator, custo
dian, liquidator, or fiscal agent for it, or any
substantial part of its Property, or an order is entered ap
pointing any such trustee, receiver, custodian, liquidator
or fiscal agent and such order remains in effect for 45
days, or (xii) take any formal action for the purpose of
effecting any of the foregoing or looking to the liquida
tion or dissolution of the Borrower or such Subsidiary; or
(i) An order for relief is entered under
the United States bankruptcy laws or any other decree or
order is entered by a court having jurisdiction (i) ad
judging the Borrower or any of its Subsidiaries bankrupt or
insolvent, (ii) approving as properly filed a petition seek
ing reorganization, liquidation, arrangement, adjustment or
composition of or in respect of the Borrower or any of its
Subsidiaries under the United States bankruptcy laws or any
other applicable Federal or state law, (iii) appointing a
receiver, liquidator, assignee, trustee, custodian, seques
trator (or other similar official) of the Borrower or any
of its Subsidiaries or of any substantial part of the
Property of any thereof, or (iv) ordering the winding up or
liquidation of the affairs of the Borrower or any of its
Subsidiaries, and any such decree or order continues un
stayed and in effect for a period of 45 days; or
(j) Judgments or decrees against the
Borrower or any of its Subsidiaries aggregating in excess
of $10,000,000 (unless adequately insured by a solvent
unaffiliated insurance company which has acknowledged
coverage) shall remain unpaid, unstayed on appeal, undis
charged, unbonded or undismissed for a period of 30 days;
or
(k) Any Loan Document shall cease, for any
reason, to be in full force and effect, or the Borrower
shall so assert in writing or shall disavow any of its
obligations thereunder; or
(l) The occurrence of a Change of Control; or
(m) Any Pension Plan maintained by the
Borrower, any of its Subsidiaries or any ERISA Affiliate is
determined to have a material "accumulated funding
deficiency" as that term is defined in Section 302 of ERISA
and the result is a Material Adverse Effect.
9.2. Contract Remedies
(a) Upon the occurrence of an Event of Default
or at any time thereafter during the continuance thereof,
(i) if such event is an Event of Default specified in
clause (h) or (i) above, the Commitments of all of the
Lenders shall immediately and automatically terminate and
the Loans, all accrued and unpaid interest thereon and all
other amounts owing under the Loan Documents shall im
mediately become due and payable, and the Administrative
Agent may, and, upon the direction of the Required Lenders
shall, exercise any and all remedies and other rights
provided in the Loan Documents, and (ii) if such event is
any other Event of Default, any or all of the following
actions may be taken: (A) with the consent of the Required
Lenders, the Administrative Agent may, and upon the direc
tion of the Required Lenders shall, by notice to the Bor
rower, declare the Commitments of all of the Lenders
terminated forthwith, whereupon such Commitments shall im
mediately terminate, and (B) with the consent of the
Required Lenders, the Administrative Agent may, and upon
the direction of the Required Lenders shall, by notice of
default to the Borrower, declare the Loans, all accrued and
unpaid interest thereon and all other amounts owing under
the Loan Documents to be due and payable forthwith, where
upon the same shall immediately become due and payable, and
the Administrative Agent may, and upon the direction of the
Required Lenders shall, exercise any and all remedies and
other rights provided in the Loan Documents. Except as
otherwise provided in this Section, presentment, demand,
protest and all other notices of any kind are hereby ex
pressly waived. The Borrower hereby further expressly
waives and covenants not to assert any appraisement, valua
tion, stay, extension, redemption or similar laws, now or
at any time hereafter in force which might delay, prevent
or otherwise impede the performance or enforcement of any
Loan Document.
(b) In the event that the Commitments of all the
Lenders shall have been terminated or the Loans shall have
been declared due and payable pursuant to the provisions of
this Section, any funds received by the Administrative
Agent and the Lenders from or on behalf of the Borrower
shall be applied by the Administrative Agent and the
Lenders in liquidation of the Loans and the other obliga
tions of the Borrower under the Loan Documents in the fol
lowing manner and order: (i) first, to the payment of
interest on, and then the principal portion of, any Loans
which the Administrative Agent may have advanced on behalf
of any Lender for which the Administrative Agent has not
then been reimbursed by such Lender or the Borrower; (ii)
second, to the payment of any fees or expenses due the
Administrative Agent from the Borrower, (iii) third, to
reimburse the Administrative Agent and the Lenders for any
expenses (to the extent not paid pursuant to clause (ii)
above) due from the Borrower pursuant to the provisions of
Section 11.5; (iv) fourth, to the payment of accrued Fees
and all other fees, expenses and amounts due under the Loan
Documents (other than principal and interest on the Loans),
(v) fifth, to the payment, pro rata according to the
Outstanding Percentage of each Lender, of interest due on
the Loans of each Lender; (vi) sixth, to the payment, pro
rata according to the Outstanding Percentage of each
Lender, of principal outstanding on the Loans; and (vii)
seventh, to the payment of any other amounts owing to the
Administrative Agent, the Issuing Bank and the Lenders
under any Loan Document.
10. THE ADMINISTRATIVE AGENT
10.1. Appointment
Each of the Issuing Bank and each Lender hereby
irrevocably designates and appoints BNY as the
Administrative Agent of the Issuing Bank and such Lender
under the Loan Documents and each of the Issuing Bank and
each Lender hereby irrevocably authorizes the
Administrative Agent to take such action on its behalf
under the provisions of the Loan Documents and to exercise
such powers and perform such duties as are expressly del
egated to the Administrative Agent by the terms of the Loan
Documents, together with such other powers as are rea
sonably incidental thereto. The duties of the
Administrative Agent shall be mechanical and administrative
in nature, and, notwithstanding any provision to the
contrary elsewhere in any Loan Document, the Administrative
Agent shall not have any duties or responsibilities other
than those expressly set forth therein, or any fiduciary
relationship with, or fiduciary duty to, the Issuing Bank
or any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall
be read into the Loan Documents or otherwise exist against
the Administrative Agent.
10.2. Delegation of Duties
The Administrative Agent may execute any of its
duties under the Loan Documents by or through agents or
attorneys-in-fact and shall be entitled to rely upon, and
shall be fully protected in, and shall not be under any
liability for, relying upon, the advice of counsel concern
ing all matters pertaining to such duties.
10.3. Exculpatory Provisions
Neither the Administrative Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact
or affiliates shall be (i) liable for any action lawfully
taken or omitted to be taken by it or such Person under or
in connection with the Loan Documents (except the
Administrative Agent for its own gross negligence or
willful misconduct), or (ii) responsible in any manner to
the Issuing Bank or any of the Lenders for any recitals,
statements, representations or warranties made by the
Borrower or any officer thereof contained in the Loan Docu
ments 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, the Loan
Documents or for the value, validity, effectiveness,
genuineness, perfection, enforceability or sufficiency of
any of the Loan Documents or for any failure of the Bor
rower or any other Person to perform its obligations
thereunder. The Administrative Agent shall not be under
any obligation to the Issuing Bank or any Lender to ascer
tain or to inquire as to the observance or performance of
any of the agreements contained in, or conditions of, the
Loan Documents, or to inspect the Property, books or
records of the Borrower or any of its Subsidiaries. The
Issuing Bank and the Lenders acknowledge that the
Administrative Agent shall not be under any duty to take
any discretionary action permitted under the Loan Documents
unless the Administrative Agent shall be instructed in
writing to do so by the Issuing Bank and Required Lenders
and such instructions shall be binding on the Issuing Bank
and all Lenders and all holders of the Notes; provided,
however, that the Administrative Agent shall not be
required to take any action which exposes the
Administrative Agent to personal liability or is contrary
to law or any provision of the Loan Documents. The
Administrative Agent shall not be under any liability or re
sponsibility whatsoever, as Administrative Agent, to the
Borrower, any of its Subsidiaries or any other Person as a
consequence of any failure or delay in performance, or any
breach, by the Issuing Bank or any Lender of any of its
obligations under any of the Loan Documents.
10.4. Reliance by Administrative Agent
The Administrative Agent shall be entitled to
rely, and shall be fully protected in relying, upon any
writing, resolution, notice, consent, certificate,
affidavit, opinion, letter, cablegram, telegram, telecopy,
telex or teletype message, statement, order or other
document or conversation believed by it to be genuine and
correct and to have been signed, sent or made by a proper
Person or Persons and upon advice and statements of legal
counsel (including, without limitation, counsel to the
Borrower), independent accountants and other experts se
lected by the Administrative Agent. The Administrative
Agent may treat the Issuing Bank or each Lender, as the
case may be, or the Person designated in the last notice
filed with it under this Section, as the holder of all of
the interests of the Issuing Bank or such Lender, as the
case may be, in its Loans, Notes, the Letters of Credit and
the Reimbursement Obligations, as applicable, until written
notice of transfer, signed by the Issuing Bank or such
Lender (or the Person designated in the last notice filed
with the Administrative Agent) and by the Person designated
in such written notice of transfer, in form and substance
satisfactory to the Administrative Agent, shall have been
filed with the Administrative Agent. The Administrative
Agent shall not be under any duty to examine or pass upon
the validity, effectiveness, enforceability or genuineness
of the Loan Documents or any instrument, document or com
munication furnished pursuant thereto or in connection
therewith, and the Administrative Agent shall be entitled
to assume that the same are valid, effective and genuine,
have been signed or sent by the proper parties and are what
they purport to be. The Administrative Agent shall be
fully justified in failing or refusing to take any action
under the Loan Documents unless it shall first receive such
advice or concurrence of the Required Lenders as it deems
appropriate. The Administrative Agent shall in all cases
be fully protected in acting, or in refraining from acting,
under the Loan Documents in accordance with a request or
direction of the Required Lenders, and such request or di
rection and any action taken or failure to act pursuant
thereto shall be binding upon the Issuing Bank, all the
Lenders and all future holders of the Notes and the ▇▇▇▇
bursement Obligations.
10.5. Notice of Default
The Administrative Agent shall not be deemed to
have knowledge or notice of the occurrence of any Default
or Event of Default unless the Administrative Agent has
received written notice thereof from the Issuing Bank, a
Lender or the Borrower. In the event that the
Administrative Agent receives such a notice, the
Administrative Agent shall promptly give notice thereof to
the Issuing Bank, the Lenders and the Borrower. The
Administrative Agent shall take such action with respect to
such Default or Event of Default as shall be directed by
the Required Lenders, provided, however, that unless and
until the Administrative Agent shall have received such
directions, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such
action, with respect to such Default or Event of Default as
it shall deem to be in the best interests of the Lenders.
10.6. Non-Reliance on Administrative Agent and
Other Lenders
Each of the Issuing Bank and each Lender
expressly acknowledges that neither the Administrative
Agent nor any of its respective officers, directors, employ
ees, agents, attorneys-in-fact or affiliates has made any
representations or warranties to it and that no act by the
Administrative Agent hereinafter, including any review of
the affairs of the Borrower or any of its Subsidiaries,
shall be deemed to constitute any representation or
warranty by the Administrative Agent to any Lender. Each
of the Issuing Bank and each Lender represents to the
Administrative Agent that it has, independently and without
reliance upon the Administrative Agent, the Issuing Bank or
any Lender, and based on such documents and information as
it has deemed appropriate made its own evaluation of and in
vestigation into the business, operations, Property,
financial and other condition and creditworthiness of the
Borrower and the value and Lien status of any collateral
security and made its own decision to enter into this Agree
ment. Each of the Issuing Bank and each Lender also
represents that it will, independently and without reliance
upon the Administrative Agent, the Issuing Bank or any
Lender, and based on such documents and information as it
shall deem appropriate at the time, continue to make its
own credit analysis, evaluations and decisions in taking or
not taking action under any Loan Document, and to make such
investigation as it deems necessary to inform itself as to
the business, operations, Property, financial and other
condition and creditworthiness of the Borrower and the
value and Lien status of any collateral security. Except
for notices, reports and other documents expressly required
to be furnished to the Issuing Bank and/or the Lenders by
the Administrative Agent hereunder, the Administrative
Agent shall not have any duty or responsibility to provide
the Issuing Bank or any Lender with any credit or other
information concerning the business, operations, Property,
financial and other condition or creditworthiness of the
Borrower which at any time may come into the possession of
the Administrative Agent or any of its officers, directors,
employees, agents, attorneys-in-fact or affiliates.
10.7. Indemnification
Each Lender agrees to indemnify and hold harmless
the Administrative Agent in its capacity as such (to the
extent not promptly reimbursed by the Borrower and without
limiting the obligation of the Borrower to do so), pro rata
according to the aggregate of the outstanding principal
balance of the Loans and any unpaid Reimbursement
Obligations (or at any time when no Loans are outstanding
and there are no unpaid Reimbursement Obligations,
according to its Commitment Percentage), from and against
any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind whatsoever including, without
limitation, any amounts paid to the Lenders (through the
Administrative Agent) by the Borrower pursuant to the terms
of the Loan Documents, that are subsequently rescinded or
avoided, or must otherwise be restored or returned) which
may at any time (including, without limitation, at any time
following the payment of the Loans, the Notes and the
Reimbursement Obligations) be imposed on, incurred by or
asserted against the Administrative Agent in any way re
lating to or arising out of the Loan Documents or any other
documents contemplated by or referred to therein or the
transactions contemplated thereby or any action taken or
omitted to be taken by the Administrative Agent under or in
connection with any of the foregoing; provided, however,
that no Lender shall be liable for the payment of any por
tion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or
disbursements to the extent resulting solely from the
finally adjudicated gross negligence or willful misconduct
of the Administrative Agent. Without limitation of the
foregoing, each Lender agrees to reimburse the
Administrative Agent promptly upon demand for its pro rata
share of any unpaid fees owing to the Administrative Agent,
and any costs and expenses (including, without limitation,
reasonable fees and expenses of counsel) payable by the
Borrower under Section 11.5, to the extent that the
Administrative Agent has not been paid such fees or has not
been reimbursed for such costs and expenses, by the Bor
rower. The failure of any Lender to reimburse the
Administrative Agent promptly upon demand for its pro rata
share of any amount required to be paid by the Lenders to
the Administrative Agent as provided in this Section shall
not relieve any other Lender of its obligation hereunder to
reimburse the Administrative Agent for its pro rata share
of such amount, but no Lender shall be responsible for the
failure of other Lender to reimburse the Administrative
Agent for such other Lender's pro rata share of such
amount. The agreements in this Section shall survive the
termination of the Commitments of all of the Lenders, the
Letter of Credit Commitment, and the payment of all amounts
payable under the Loan Documents.
10.8. Administrative Agent in Its Individual
Capacity
BNY and its affiliates may make secured or
unsecured loans to, accept deposits from, issue letters of
credit for the account of, act as trustee under indentures
of, and generally engage in any kind of business with, the
Borrower as though BNY were not Administrative Agent
hereunder and BNY Capital Markets did not arrange the
transactions contemplated hereby. With respect to the
Commitments made or renewed by BNY and the Notes issued to,
and the Reimbursement Obligations owing to, BNY, BNY shall
have the same rights and powers under the Loan Documents as
any Lender and may exercise the same as though it were not
the Administrative Agent, and the terms "Lender" and "Lend
ers" shall in each case include BNY.
10.9. Successor Administrative Agent
If at any time the Administrative Agent deems it
advisable, in its sole discretion, it may submit to the
Issuing Bank and each of the Lenders a written notice of
its resignation as Administrative Agent under the Loan
Documents, such resignation to be effective upon the
earlier of (i) the written acceptance of the duties of the
Administrative Agent under the Loan Documents by a succes
sor Administrative Agent and (ii) on the 30th day after the
date of such notice. Upon any such resignation, the Re
quired Lenders shall have the right to appoint from among
the Lenders a successor Administrative Agent. If no suc
cessor Administrative Agent shall have been so appointed by
the Required Lenders and accepted such appointment in
writing within 30 days after the retiring Administrative
Agent's giving of notice of resignation, then the retiring
Administrative Agent may, on behalf of the Issuing Bank and
the Lenders, appoint a successor Administrative Agent,
which successor Administrative Agent shall be a commercial
bank organized under the laws of the United States or any
State thereof and having a combined capital, surplus, and
undivided profits of at least $100,000,000. Upon the ac
ceptance of any appointment as Administrative Agent here
under by a successor Administrative Agent, such successor
Administrative Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties
of the retiring Administrative Agent, and the retiring Ad
ministrative Agent's rights, powers, privileges and duties
as Administrative Agent under the Loan Documents shall be
terminated. Each of the Borrower, the Issuing Bank and the
Lenders shall execute such documents as shall be necessary
to effect such appointment. After any retiring
Administrative Agent's resignation as Administrative Agent,
the provisions of the Loan Documents shall inure to its ben
efit as to any actions taken or omitted to be taken by it,
and any amounts owing to it, while it was Administrative
Agent under the Loan Documents. If at any time there shall
not be a duly appointed and acting Administrative Agent,
the Borrower agrees to make each payment due under the Loan
Documents directly to the Issuing Bank and the Lenders
entitled thereto during such time.
10.10. Documentation Agent; Co-Agents
Neither the Documentation Agent nor any Co-Agent
shall have any duties or obligations under the Loan Docu
ments in such capacities. Each of the Documentation Agent
and each Co-Agent in such capacities shall be entitled to
the same protections, indemnities and rights, and subject
to the same standards with respect to their actions,
inactions and duties, as the Administrative Agent.
11. OTHER PROVISIONS
11.1. Amendments and Waivers
With the written consent of the Required Lenders,
the Administrative Agent, the Issuing Bank and the Borrower
may, from time to time, enter into written amendments,
supplements or modifications of the Loan Documents and,
with the consent of the Required Lenders, the
Administrative Agent on behalf of the Issuing Bank and the
Lenders may execute and deliver to any such parties a
written instrument waiving or a consent to a departure
from, on such terms and conditions as the Administrative
Agent may specify in such instrument, any of the re
quirements of the Loan Documents or any Default or Event of
Default and its consequences; provided, however, that no
such amendment, supplement, modification, waiver or consent
shall:
(a) without the consent of all of the Lenders,
(i) increase the Commitment Amount of any Lender or the
Aggregate Commitment Amount, (ii) extend the Maturity Date,
(iii) reduce the amount, or extend the time of payment, of
the Facility Fee or the Letter of Credit Commissions, (iv)
reduce the rate, or extend the time of payment of, interest
on any Loan, (v) reduce the amount, or extend the time of
payment of any installment or other payment of principal on
any Loan, (vi) decrease or forgive the principal amount of
any Loan, (vii) consent to any assignment or delegation by
any Borrower of any of its rights or obligations under any
Loan Document, (viii) change the provisions of Sections
3.6, 3.10, 9.1(a), 9.1(b), 11.1 or 11.7(a), (ix) change the
definition of "Required Lenders"; (x) change the several
nature of the Lenders' obligations, (xi) change any
provision governing the sharing of payments and liabilities
among the Lenders, or (xii) waive or amend any provision of
Section 5;
(b) without the written consent of the Issuing
Bank, change the Letter of Credit Commitment, change the
amount or the time of payment of the Letter of Credit
Commissions or change any other term or provision which
relates to the Letter of Credit Commitment or the Letters
of Credit or any other rights of the Issuing Bank under any
Loan Document; and
(c) without the written consent of the
Administrative Agent, amend, modify or waive any provision
of Section 10 or otherwise change any of the rights or
obligations of the Administrative Agent hereunder or under
the Loan Documents.
Any such amendment, supplement, modification or
waiver shall apply equally to the Administrative Agent, the
Issuing Bank and each of the Lenders and shall be binding
upon the parties to the applicable Loan Document, the
Lenders, the Issuing Bank, the Administrative Agent and all
future holders of the Revolving Credit Notes and the
Reimbursement Obligations. In the case of any waiver, the
parties to the applicable Loan Document, the Issuing Bank,
the Lenders and the Administrative Agent shall be restored
to their former position and rights hereunder and under the
outstanding Revolving Credit Notes and other Loan Documents
to the extent provided for in such waiver, and any Default
or Event of Default waived shall not extend to any sub
sequent or other Default or Event of Default, or impair any
right consequent thereon. The Loan Documents may not be
amended orally or by any course of conduct.
11.2. Notices
All notices, requests and demands to or upon the
respective parties to the Loan Documents to be effective
shall be in writing and, unless otherwise expressly pro
vided therein, shall be deemed to have been duly given or
made when delivered by hand, one Business Day after having
been sent by overnight courier service, or when deposited
in the mail, first-class postage prepaid, or, in the case
of notice by telecopy, when sent, addressed as follows in
the case of the Borrower, the Administrative Agent or the
Issuing Bank, addressed to the Domestic Lending Office, in
the case of each Lender, or addressed to such other
addresses as to which the Administrative Agent may be
hereafter notified by the respective parties thereto or any
future holders of the Notes:
The Borrower:
International Game Technology
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
International Game Technology
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
The Administrative Agent or the Issuing Bank:
The Bank of ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
Agency Function Administration
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇ or 6366 or 6367
with a copy to:
The Bank of New York
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ - ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇,
Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
except that any notice, request or demand by the Borrower
to or upon the Administrative Agent, the Issuing Bank or
the Lenders pursuant to Sections 2.3, 2.4 or 3.3 shall not
be effective until received. Any party to a Loan Document
may rely on signatures of the parties thereto which are
transmitted by telecopy or other electronic means as fully
as if originally signed.
11.3. No Waiver; Cumulative Remedies
No failure to exercise and no delay in
exercising, on the part of the Administrative Agent, the
Issuing Bank or any Lender, any right, remedy, power or
privilege under any Loan Document shall operate as a waiver
thereof; nor shall any single or partial exercise of any
right, remedy, power or privilege under any Loan Document
preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege.
The rights, remedies, powers and privileges under the Loan
Documents are cumulative and not exclusive of any rights,
remedies, powers and privileges provided by law.
11.4. Survival of Representations and Warranties
and Certain Obligations
(a) All representations and warranties made
under the Loan Documents and in any document, certificate
or statement delivered pursuant thereto or in connection
therewith shall survive the execution and delivery of the
Loan Documents.
(b) The obligations of the Borrower under
Sections 3.5, 3.6, 3.7, 3.8, 3.9, 3.10, 3.11, 11.5 and 11.8
shall survive the termination of the Commitments of all of
the Lenders, the Letter of Credit Commitment and the pay
ment of the Loans, the Reimbursement Obligations and all
other amounts payable under the Loan Documents.
11.5. Expenses
The Borrower agrees, promptly upon presentation
of a statement or invoice therefor, and whether any Loan is
made or any Letter of Credit is issued (i) to pay or
reimburse the Administrative Agent and BNY Capital Markets
for all their respective out-of-pocket costs and expenses
reasonably incurred in connection with the development,
preparation, execution and syndication of, the Loan
Documents and any amendment, supplement or modification
thereto (whether or not executed or effective), any
documents prepared in connection therewith and the consumma
tion of the transactions contemplated thereby, including,
without limitation, the reasonable fees and disbursements
of Special Counsel, (ii) to pay or reimburse each of the
Issuing Bank, the Administrative Agent and the Lenders for
all of its costs and expenses, including, without
limitation, reasonable fees and disbursements of counsel,
incurred in connection with (A) any Default or Event of
Default and any enforcement or collection proceedings re
sulting therefrom or in connection with the negotiation of
any restructuring or "work-out" (whether consummated or
not) of the obligations of the Borrower under any of the
Loan Documents and (B) the enforcement of this Section and
(iii) to pay, indemnify and hold each of the Issuing Bank,
the Lenders and the Administrative Agent and each of its
officers, directors and employees harmless from and against
any and all other liabilities, obligations, claims, losses,
damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever
(including reasonable counsel fees and disbursements) with
respect to the enforcement and performance of the Loan
Documents, the use of the proceeds of the Loans and the
Letters of Credit and the enforcement and performance of
the provisions of any subordination agreement involving the
Administrative Agent, the Issuing Bank and the Lenders (all
the foregoing, collectively, the "Indemnified Liabilities")
and, if and to the extent that the foregoing indemnity may
be unenforceable for any reason, the Borrower agrees to
make the maximum payment not prohibited under applicable
law; provided, however, that the Borrower shall have no
obligation to pay Indemnified Liabilities to the
Administrative Agent, the Issuing Bank or any Lender aris
ing from the finally adjudicated gross negligence or
willful misconduct of the Administrative Agent, the Issuing
Bank or such Lender or claims between one indemnified party
and another indemnified party. The agreements in this
Section shall survive the termination of the Commitments of
all of the Lenders, the Letter of Credit Commitment and the
payment of all amounts payable under the Loan Documents.
11.6. Lending Offices
(a) Each Lender shall have the right at any time
and from time to time to transfer its Loans to a different
office, provided that such Lender shall promptly notify the
Administrative Agent and the Borrower of any such change of
office. Such office shall thereupon become such Lender's
Domestic Lending Office or Eurodollar Lending Office, as
the case may be, provided, however, that no Lender shall be
entitled to receive any greater amount under Sections 3.5,
3.7 and 3.10, as a result of a transfer of any such Loans
to a different office of such Lender than it would be
entitled to immediately prior thereto unless such claim
would have arisen even if such transfer had not occurred.
(b) Each Lender agrees that, upon the occurrence
of any event giving rise to any increased cost or indemnity
under Sections 3.5, 3.7 and 3.10 with respect to such
Lender, it will, if requested by the Borrower, use
reasonable efforts (subject to overall policy
considerations of such Lender) to designate another lending
office for any Loans affected by such event, provided that
such designation is made on such terms that such Lender and
its lending office suffer no economic, legal or regulatory
disadvantage, with the object of avoiding the consequence
of the event giving rise to the operation of any such
Section. Nothing in this Section shall affect or postpone
any of the obligations of the Borrower or the right of any
Lender provided in Sections 3.5, 3.6, 3.7 and 3.10.
11.7. Assignments and Participations
(a) The Loan Documents shall be binding upon and
inure to the benefit of the Borrower, the Lenders, the
Issuing Bank, the Administrative Agent, all future holders
of the Notes and the Reimbursement Obligations, and their
respective successors and assigns, except that the Borrower
may not assign, delegate or transfer any of its rights or
obligations under the Loan Documents without the prior
written consent of the Administrative Agent, the Issuing
Bank and each Lender.
(b) Each Lender shall have the right at any
time, upon written notice to the Administrative Agent of
its intent to do so, to sell, assign, transfer or negotiate
all or any part of its rights and obligations under the
Loan Documents to one or more of its affiliates, to one or
more of the other Lenders (or to affiliates of such other
Lenders) or, with the prior written consent of the
Borrower, the Administrative Agent and the Issuing Bank
(which consents shall not be unreasonably withheld and, in
the case of the Borrower, shall not be required upon the
occurrence and during the continuance of an Event of De
fault), to sell, assign, transfer or negotiate all or any
part of its rights and obligations under the Loan Documents
to any Eligible Assignee, provided that (i) each such sale,
assignment, transfer or negotiation (other than sales,
assignments, transfers or negotiations (x) to its
affiliates or (y) its entire interest) shall be in a
minimum amount of $5,000,000 and whole multiples of
$1,000,000 in excess thereof and (ii) in the case of each
Lender other than BNY, it shall pay a fee to the
Administrative Agent in the amount of $3,500. For each
assignment, the parties to such assignment shall execute
and deliver to the Administrative Agent acceptance an
Assignment and Acceptance Agreement. Upon such execution,
delivery, acceptance and the recording thereof by the
Administrative Agent, from and after the effective date
specified in such Assignment and Acceptance Agreement, the
assignee thereunder shall be a party hereto and, to the
extent provided in such Assignment and Acceptance Agree
ment, the assignor Lender thereunder shall be released from
its obligations under the Loan Documents. The Borrower
agrees upon written request of the Administrative Agent and
at the Borrower's expense to execute and deliver to such as
signee, Notes, dated the effective date of such Assignment
and Acceptance Agreement. Upon any such sale, assignment
or other transfer, the Commitment Amounts set forth in
Exhibit A shall be adjusted accordingly by the
Administrative Agent and a new Exhibit A shall be dis
tributed by the Administrative Agent.
(c) Each Lender may grant participations in all
or any part of its rights under the Loan Documents to one
or more Eligible Assignees, provided that (i) its
obligations under the Loan Documents shall remain un
changed, (ii) it shall remain solely responsible to the
other parties to the Loan Documents for the performance of
such obligations, (iii) the Borrower, the Issuing Bank, the
Administrative Agent and the Lenders, as applicable, shall
continue to deal solely and directly with it in connection
with its rights and obligations under the Loan Documents,
(iv) no sub-participations shall be permitted and (v) the
voting rights of any holder of any participation shall be
limited to the matters described in Section 11.1(a). The
Borrower acknowledges and agrees that any such participant
shall for purposes of Sections 3.5, 3.6, 3.7, 3.8, 3.9,
3.10 and 3.11, be deemed to be a "Lender"; provided, how
ever, the Borrower shall not, at any time, be obligated to
pay any participant in any interest of the Issuing Bank or
any Lender hereunder any sum in excess of the sum which the
Borrower would have been obligated to pay to the Issuing
Bank or such Lender, as the case may be, in respect of such
interest had the Issuing Bank or such Lender, as the case
may be, not sold such participation.
(d) If any (i) assignment is made pursuant to
subsection (b) above or (ii) any participation is granted
pursuant to subsection (c) above, to any Person that is not
a U.S. Person, such Person shall furnish such certificates,
documents or other evidence to the Borrower and the
Administrative Agent in the case of clause (i), and to the
Borrower and the Issuing Bank or the Lender which sold such
participation, as the case may be, in the case of clause
(ii), as shall be required by Section 3.10(e).
(e) No Lender shall, as between and among the
Borrower, the Issuing Bank, the Administrative Agent and
such Lender, as the case may be, be relieved of any of its
obligations under the Loan Documents as a result of any
sale, assignment, transfer or negotiation of, or granting
of participations in, all or any part of its rights and
obligations under the Loan Documents, except that it shall
be relieved of its obligations to the extent of any such
sale, assignment, transfer, or negotiation of all or any
part of its rights and obligations under the Loan Documents
pursuant to subsection (b) above.
(f) Notwithstanding anything to the contrary con
tained in this Section, the Issuing Bank or any Lender may
at any time or from time to time pledge or assign all or
any portion of its rights under the Loan Documents to a
Federal Reserve Bank, provided that any such assignment
shall not release such assignor from its obligations
thereunder.
11.8. Indemnity
The Borrower agrees to defend, protect,
indemnify, and hold harmless the Administrative Agent, BNY
Capital Markets, the Issuing Bank and each and all of the
Lenders, each of their respective Affiliates and each of
the respective officers, directors, employees and agents of
each of the foregoing (each an "Indemnified Person" and,
collectively, the "Indemnified Persons") from and against
any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, claims, costs,
expenses and disbursements of any kind or nature whatsoever
(including, without limitation, the fees and disbursements
of counsel to such Indemnified Persons in connection with
any investigative, administrative or judicial proceeding,
whether direct, indirect or consequential and whether based
on any federal or state laws or other statutory
regulations, including, without limitation, securities and
commercial laws and regulations, under common law or at
equitable cause, or on contract or otherwise, including any
liabilities and costs under Environmental Laws, Federal,
state or local health or safety laws, regulations, or
common law principles, arising from or in connection with
the past, present or future operations of the Borrower or
its predecessors in interest, or the past, present or
future environmental condition of the Property of the
Borrower or any of its Subsidiaries, the presence of
asbestos-containing materials at any such Property, or the
release or threatened release of any Hazardous Substance
into the environment from any such Property) in any manner
relating to or arising out of the Loan Documents, any
commitment letter or fee letter executed and delivered by
the Borrower or any of its Subsidiaries, the Issuing Bank
and/or the Administrative Agent, the capitalization of the
Borrower or any of its Subsidiaries, the Commitments, the
Letter of Credit Commitment, the making of, issuance of,
management of and participation in the Revolving Credit
Loans or the Letters of Credit, or the use or intended use
of the Letters of Credit and the proceeds of the Revolving
Credit Loans hereunder, provided that the Borrower shall
have no obligation under this Section to an Indemnified
Person with respect to any of the foregoing to the extent
found in a final judgment of a court having jurisdiction to
have resulted primarily out of the gross negligence or
wilful misconduct of such Indemnified Person or arising
solely from claims between one such Indemnified Person and
another such Indemnified Person. The indemnity set forth
herein shall be in addition to any other obligations or li
abilities of the Borrower to each Indemnified Person under
the Loan Documents or at common law or otherwise, and shall
survive any termination of the Loan Documents, the
expiration of the Commitments of all of the Lenders, the
Letter of Credit Commitment and the payment of all Indebted
ness of the Borrower under the Loan Documents.
11.9. Limitation of Liability
No claim may be made by the Borrower, any of its
Subsidiaries, any Lender or other Person against the
Administrative Agent, any Lender, or any directors,
officers, employees, or agents of any of them for any
special, indirect, consequential or punitive damages in
respect of any claim for breach of contract or any other
theory of liability arising out of or related to the
transactions contemplated by any Loan Document, or any act,
omission or event occurring in connection therewith, and
each of the Borrower, its Subsidiaries, any such Lender or
other Person hereby waives, releases and agrees not to ▇▇▇
upon any claim for any such damages, whether or not accrued
and whether or not known or suspected to exist in its
favor.
11.10. Counterparts
Each Loan Document (other than the Notes) may be
executed by one or more of the parties thereto on any
number of separate counterparts and all of said coun
terparts taken together shall be deemed to constitute one
and the same document. It shall not be necessary in making
proof of any Loan Document to produce or account for more
than one counterpart signed by the party to be charged. A
counterpart of any Loan Document or to any document
evidencing, and of any an amendment, modification, consent
or waiver to or of any Loan Document transmitted by
telecopy shall be deemed to be an originally executed
counterpart. A set of the copies of the Loan Documents
signed by all the parties thereto shall be deposited with
each of the Borrower, the Issuing Bank and the
Administrative Agent. Any party to a Loan Document may
rely upon the signatures of any other party thereto which
are transmitted by telecopy or other electronic means to
the same extent as if originally signed.
11.11. Adjustments; Set-off
(a) If any Lender (a "Benefitted Lender"), shall
obtain any payment (whether voluntary, involuntary, through
the exercise of any right of set-off, or otherwise) on
account of its Loans, its Notes or the Reimbursement Obliga
tions in excess of its Outstanding Percentage of payments
then due and payable on account of the Loans, the Notes and
the Reimbursement Obligations received by all the Lenders,
then such Benefitted Lender shall forthwith purchase,
without recourse, for cash, from the other Lenders such
participations in their Loans and Notes as shall be necessary
to cause such Benefitted Lender to share such excess
payment with each of them according to their Outstanding
Percentages, provided, however, that if all or any portion
of such excess payment is thereafter recovered from such
Benefitted Lender, such purchase from such other Lenders
shall be rescinded, and each such other Lender shall repay
to such Benefitted Lender the purchase price to the extent
of such recovery, together with an amount equal to such
other Lender's pro rata share (according to the proportion
of (i) the amount of such other Lender's required repayment
to (ii) the total amount so recovered from such Benefitted
Lender) of any interest or other amount paid or payable by
such Benefitted Lender in respect of the total amount so
recovered. The Borrower agrees that such Benefitted Lender
so purchasing a participation from such other Lenders pur
suant to this subsection (a) may exercise such rights to
payment (including the right of set-off) with respect to
such participation as fully as such Benefitted Lender were
the direct creditor of the Borrower in the amount of such
participation.
(b) In addition to any rights and remedies of
the Issuing Bank and the Lenders provided by law, upon the
occurrence of an Event of Default and the acceleration of
the obligations owing in connection with the Loan
Documents, or at any time upon the occurrence and during
the continuance of an Event of Default, under Sections
9.1(a) or (b), each of the Issuing Bank and the Lenders
shall have the right, without prior notice to the Borrower,
any such notice being expressly waived by the Borrower to
the extent not prohibited by applicable law, to set-off and
apply against any indebtedness, whether matured or
unmatured, of the Borrower to the Issuing Bank or such
Lender, as the case may be, any amount owing from the
Issuing Bank or such Lender, as the case may be, to the
Borrower at, or at any time after, the happening of any of
the above- mentioned events. To the extent not prohibited
by applicable law, the aforesaid right of set-off may be
exercised by the Issuing Bank or such Lender, as the case
may be, against the Borrower or against any trustee in
bankruptcy, custodian, debtor in possession, assignee for
the benefit of creditors, receiver, or execution, judgment
or attachment creditor of the Borrower or against anyone
else claiming through or against the Borrower or such
trustee in bankruptcy, custodian, debtor in possession,
assignee for the benefit of creditors, receiver, or ex
ecution, judgment or attachment creditor, notwithstanding
the fact that such right of set-off shall not have been
exercised by the Issuing Bank or such Lender, as the case
may be, prior to the making, filing or issuance, or service
upon the Issuing Bank or such Lender, as the case may be,
of, or of notice of, any such petition, assignment for the
benefit of creditors, appointment or application for the ap
pointment of a receiver, or issuance of execution,
subpoena, order or warrant. Each of the Issuing Bank and
the Lenders agrees promptly to notify the Borrower and each
Administrative Agent after any such set-off and application
made by the Issuing Bank or such Lender, as the case may
be, provided that the failure to give such notice shall not
affect the validity of such set-off and application.
11.12. Construction
Each party to a Loan Document represents that it
has been represented by counsel in connection with the Loan
Documents and the transactions contemplated thereby and
that the principle that agreements are to be construed
against the party drafting the same shall be inapplicable.
11.13. Governing Law
The Loan Documents and the rights and obligations
of the parties thereunder shall be governed by, and
construed and interpreted in accordance with, the internal
laws of the State of New York, without regard to principles
of conflict of laws, but including Section 5-1401 of the
General Obligations Law.
11.14. Headings Descriptive
Section headings have been inserted in the Loan
Documents for convenience only and shall not be construed
to be a part thereof.
11.15. Severability
Every provision of the Loan Documents is intended
to be severable, and if any term or provision thereof shall
be invalid, illegal or unenforceable for any reason, the
validity, legality and enforceability of the remaining
provisions thereof shall not be affected or impaired
thereby, and any invalidity, illegality or unenforceability
in any jurisdiction shall not affect the validity, legality
or enforceability of any such term or provision in any
other jurisdiction.
11.16. Integration
All exhibits to a Loan Document shall be deemed
to be a part thereof. Except for agreements between the
Administrative Agent and/or the Issuing Bank and the
Borrower with respect to certain fees, the Loan Documents
embody the entire agreement and understanding among the Bor
rower, the Administrative Agent, the Issuing Bank and the
Lenders with respect to the subject matter thereof and
supersede all prior agreements and understandings among the
Borrower, the Administrative Agent, the Issuing Bank and
the Lenders with respect to the subject matter thereof.
11.17. Consent to Jurisdiction
Each party to a Loan Document hereby irrevocably
submits to the jurisdiction of any New York State or
Federal court sitting in the City of New York over any
suit, action or proceeding arising out of or relating to
the Loan Documents. Each party to a Loan Document hereby
irrevocably waives, to the fullest extent permitted or not
prohibited by law, any objection which it may now or here
after have to the laying of the venue of any such suit,
action or proceeding brought in such a court and any claim
that any such suit, action or proceeding brought in such a
court has been brought in an inconvenient forum. The
Borrower hereby agrees that a final judgment in any such
suit, action or proceeding brought in such a court, after
all appropriate appeals, shall be conclusive and binding
upon it.
11.18. Service of Process
Each party to a Loan Document hereby irrevocably
consents to the service of process in any suit, action or
proceeding by sending the same by first class mail, return
receipt requested or by overnight courier service, to the
address of such party set forth in Section 11.2 of the
applicable Loan Document executed by such party. Each
party to a Loan Document hereby agrees that any such
service (i) shall be deemed in every respect effective
service of process upon it in any such suit, action, or
proceeding, and (ii) shall to the fullest extent
enforceable by law, be taken and held to be valid personal
service upon and personal delivery to it.
11.19. No Limitation on Service or Suit
Nothing in the Loan Documents or any
modification, waiver, consent or amendment thereto shall
affect the right of the Administrative Agent, the Issuing
Bank or any Lender to serve process in any manner permitted
by law or limit the right of the Administrative Agent, the
Issuing Bank or any Lender to bring proceedings against the
Borrower in the courts of any jurisdiction or jurisdictions
in which the Borrower may be served.
11.20. WAIVER OF TRIAL BY JURY
EACH OF THE ADMINISTRATIVE AGENT, THE
DOCUMENTATION AGENT, EACH CO-AGENT, THE ISSUING BANK, EACH
LENDER AND THE BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN RESPECT OF ANY LITIGATION ARISING OUT OF, UNDER OR
IN CONNECTION WITH THE LOAN DOCUMENTS OR THE TRANSACTIONS
CONTEMPLATED THEREIN. FURTHER, THE BORROWER HEREBY CER
TIFIES THAT NO REPRESENTATIVE OR AGENT OF THE
ADMINISTRATIVE AGENT, THE DOCUMENTATION AGENT, ANY CO-
AGENT, THE ISSUING BANK, OR ANY LENDER OR COUNSEL TO THE
ADMINISTRATIVE AGENT, THE DOCUMENTATION AGENT, ANY CO-
AGENT, THE ISSUING BANK, OR ANY LENDER HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT EITHER AGENT, THE ISSUING
BANK, ANY CO-AGENT OR ANY LENDER, WOULD NOT, IN THE EVENT
OF SUCH LITIGATION, SEEK TO ENFORCE THIS WAIVER OF RIGHT TO
JURY TRIAL PROVISION. THE BORROWER ACKNOWLEDGES THAT EACH
OF THE ADMINISTRATIVE AGENT, THE DOCUMENTATION AGENT, EACH
CO-AGENT, THE ISSUING BANK, AND EACH LENDER HAS BEEN
INDUCED TO ENTER INTO THIS AGREEMENT BY, INTER ALIA, THE
PROVISIONS OF THIS SECTION.
11.21. Treatment of Certain Information
Each of the Lenders, the Documentation Agent,
each Co-Agent the Issuing Bank and the Administrative Agent
agrees (on behalf of itself and each of its affiliates,
directors, officers, employees and representatives) to use
reasonable precautions to keep confidential, in accordance
with their customary procedures for handling confidential
information of the same nature, all non-public information
supplied by the Borrower or any of its Subsidiaries pur
suant to this Agreement which (a) is identified by such
Person as being confidential at the time the same is de
livered to such Lender, the Documentation Agent, such Co-
Agent, the Issuing Bank or the Administrative Agent, or (b)
constitutes any financial statement, financial projections
or forecasts, budget, compliance certificate, audit report,
management letter or accountants' certification delivered
hereunder (collectively, the "Confidential Information"),
provided, however, that nothing herein shall limit the
disclosure of any such Confidential Information (i) to the
extent required by statute, rule, regulation or judicial
process, (ii) on a confidential basis, to counsel to any of
the Lenders, the Documentation Agent, the Co-Agents, the
Issuing Bank or the Administrative Agent, (iii) to bank
examiners, auditors or accountants, and any analogous
counterpart thereof, (iv) to the Administrative Agent, the
Documentation Agent, the Co-Agents, the Lenders or the
Issuing Bank (v) in connection with any litigation to which
any one or more of the Lenders, the Documentation Agent,
the Co-Agents, the Issuing Bank or the Administrative Agent
is a party, (vi) to any assignee or participant (or pro
spective assignee or participant) so long as such assignee
or participant (or prospective assignee or participant)
agrees to keep such Confidential Information confidential
on substantially the same basis as set forth in this Sec
tion, or (vii) to affiliates of the Lenders, the
Documentation Agent, the Co-Agents, the Issuing Bank and
the Administrative Agent, so long as such affiliate agrees
to keep such information confidential on substantially the
same basis as set forth in this Section. Notwithstanding
the provisions of clause (vii) above, neither the
Administrative Agent, the Documentation Agent, any Co-
Agent, the Issuing Bank nor any Lender shall disclose any
such Confidential Information to any of its respected
affiliates, directors, officers, employees or
representatives except to the extent that it or they have a
need to know such Confidential Information in connection
with the structuring or administration of the Loans or any
Loan Document, any assignment or participation thereof or
activities incidental thereto.