04/03/98
21
PLAYERS INTERNATIONAL, INC.
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
This SECOND AMENDED AND RESTATED CREDIT AGREEMENT is
dated as of March 11, 1998 and entered into by and among PLAYERS
INTERNATIONAL, INC., a Nevada corporation, as the borrower
("Company"), THE FINANCIAL INSTITUTIONS LISTED ON THE SIGNATURE
PAGES HEREOF (each individually referred to herein as a "Lender"
and collectively as "Lenders"), ▇▇▇▇▇ FARGO BANK, NATIONAL
ASSOCIATION, ("WFB," and, in its capacity as administrative agent
for Lenders, "Administrative Agent" and, in its capacity as
managing agent for Lenders, "Managing Agent"), as a Lender, the
Administrative Agent, the Managing Agent and the Arranger.
PRELIMINARY STATEMENTS
A. Company, Lenders, Administrative Agent, Managing
Agent and certain other financial institutions have heretofore
entered into that certain Credit Agreement dated as of August 25,
1995, as amended by that certain First Amendment to Credit
Agreement dated as of August 7, 1996 (as so amended, the
"Original Credit Agreement").
B. The Original Credit Agreement was amended and
restated by that certain Amended and Restated Credit Agreement
dated as of December 16, 1996 (said Amended and Restated Credit
Agreement, as amended by the First Amendment thereto dated as of
February 14, 1997 and the Second Amendment thereto dated as of
March 15, 1997, being the "Existing Credit Agreement").
C. Company, Lenders, Administrative Agent, Managing
Agent and Arranger desire to amend and restate the Existing
Credit Agreement in its entirety in order to provide, among other
things, that (i) the Commitments under the Existing Credit
Agreement, in the aggregate amount of $50,000,000, shall be
increased to $80,000,000; (ii) the Company shall have the right
to request that the Revolving Loans bear interest with respect to
either the Base Rate or the Adjusted Eurodollar Rate; (iii) the
Commitment Termination Date shall be extended to March 31, 2003;
(iv) the interest rates and commitment fees shall be revised as
set forth herein; (v) the covenants shall be revised as set forth
herein; and (vi) the other terms and provisions of the Existing
Credit Agreement shall otherwise be modified as set forth herein.
D. On the Effective Date, concurrently with the first
borrowing of Revolving Loans hereunder, the Company will repay
Existing Revolving Loans outstanding on the Effective Date in an
amount such that (i) all Existing Revolving Loans owed to each
Noncontinuing Lender shall be repaid in full and (ii) the
Revolving Loans owed to each Lender shall be in proportion to
each such Lender's Pro Rata Share. Immediately following such
repayment, each Noncontinuing Lender shall cease to be a Lender
hereunder.
E. Company agrees that its existing pledge and grant
of a security interest in substantially all of its present and
future real and personal property will continue as security for
the payment and performance of the Obligations of Company.
F. Company agrees that its existing pledge of all of
its capital stock in each of its Subsidiaries, whether now
existing or hereafter created or acquired, will continue as
security for the payment and performance of the Obligations of
Company.
G. Company agrees to cause each of its Subsidiaries
to confirm and agree that (i) its existing guaranty of the
obligations of Company under the Existing Credit Agreement will
continue as a guaranty of the Obligations hereunder and (ii) its
existing grant of a security interest in substantially all of its
assets to secure such guaranty will continue as security for the
payment and performance of such guaranty.
NOW, THEREFORE, in consideration of the premises and
the agreements, provisions and covenants herein contained,
Company, Lenders, Administrative Agent, Managing Agent and
Arranger agree that the Existing Credit Agreement shall be
amended and restated, without novation, as follows:
SECTION 1.
DEFINITIONS
1.1 Certain Defined Terms.
The following terms used in this Agreement shall have
the following meanings:
"Acknowledgement and Confirmation" means an Acknowl
edgement and Confirmation Agreement dated as of the Effective
Date, substantially in the form of Exhibit X hereto, pursuant to
which each Guarantor shall acknowledge and confirm that its
obligations under the Guaranties and the Collateral Documents to
which it is a party shall continue to guaranty or secure, as the
case may be, the Obligations of Company hereunder, as such
Acknowledgement and Confirmation Agreement may hereafter be
amended, supplemented or otherwise modified from time to time.
"Adjusted Eurodollar Rate" means, for any Interest
Period, the arithmetic average of the rate of interest at which
deposits (approximately equal to the amount of the requested Loan
and for the same term as the requested Interest Period) are
offered to WFB in the London interbank eurodollar market for
delivery on the first day of the Interest Period, as adjusted for
reserve requirements and rounded upwards, if necessary, to the
next higher 1/16%.
"Administrative Agent" means WFB.
"Affected Lender" has the meaning assigned to that term
in subsection 2.6C.
"Affiliate", as applied to any Person, means any other
Person directly or indirectly controlling, controlled by, or
under common control with, that Person. For the purposes of this
definition, "control" (including, with correlative meanings, the
terms "controlling", "controlled by" and "under common control
with"), as applied to any Person, means (i) the possession,
directly or indirectly, of the power to direct or cause the
direction of the management and policies of that Person, whether
through the ownership of voting securities or by contract or
otherwise or (ii) the beneficial ownership of 10% or more of any
class of voting capital stock of a Person (on a fully diluted
basis) or of warrants or other rights to acquire such class of
capital stock (whether or not presently exercisable).
"Agreement" means this Second Amended and Restated
Credit Agreement dated as of March 11, 1998, as it may be
amended, supplemented or otherwise modified from time to time.
"Allocated Costs of Internal Counsel" means, as of any
date of determination, the internal costs imputed to in-house
counsel employed by Administrative Agent for the review,
negotiation, preparation, execution and administration of the
Loan Documents, as based on the time records submitted to Company
within 90 days of the services performed by such counsel at an
hourly rate not to exceed the then prevailing market rate in Los
Angeles, California for an attorney with a minimum of ten years
experience in financing transactions.
"Amendments to Missouri Pledge and Security Agreements"
means (i) that certain Amendment to Company Pledge Agreement by
and between Company, and Administrative Agent, as Secured Party,
(ii) that certain Amendment to Players Holding Pledge Agreement
between PHI and Administrative Agent, as Secured Party, (iii)
that certain Amendment to Subsidiary Security Agreement
(Missouri) by and among PMHN, PMH, PMHLP, and Administrative
Agent, as Secured Party, (iv) that certain Amendment to Partner
ship Interest Security Agreement by and between PMH and
Administrative Agent, as Secured Party, (v) that certain Amend
ment to Partnership Interest Security Agreement by and between
PMHN and Administrative Agent, as Secured Party, and (vi) that
certain Amendment to Joint Venture Interest Security Agreement by
and between PMHLP and Administrative Agent, as Secured Party,
each dated as of the date hereof, substantially in the forms of
Exhibit XI-A, XI-B, XI-C, XI-D, XI-E, and XI-F hereto,
respectively, as each such amendment may hereafter be amended,
supplemented or otherwise modified from time to time.
"Applicable Base Rate Margin" means, as of any date of
determination, (i) a percentage per annum as shown below deter
mined by the Leverage Ratio on the date of the most recent
Pricing Determination Certificate delivered by Company pursuant
to Subsection 4.1T or Subsection 6.1(xvii) and the average daily
Total Utilization of Commitments for the 30 day period ending on
the date of such Pricing Determination Certificate; provided that
the Applicable Base Rate Margin shall not be adjusted upon
receipt of a Pricing Determination Certificate until the first
Business Day of the first calendar month following the date on
which such Pricing Determination Certificate is due or (ii) if
Company has failed to provide such certificate within the time
period set forth for such delivery in Subsection 6.1(xvii), the
Applicable Base Rate Margin shall be 1.00% on and after the first
Business Day following the date on which delivery of such Pricing
Determination Certificate was due until the first Business Day of
the month following the date that such past due certificate is
actually received by Administrative Agent; provided further that
on the first Business Day of the month following receipt of a
past due certificate by Administrative Agent, the Applicable Base
Rate Margin shall be determined as set forth in clause (i) above:
Leverage Ratio Applicable Base Rate Margin
less than or equal to 2.50 0.00%
greater than 2.50 0.75%
but less than or
equal to 3.00
greater than 3.00 1.00%
If on any date of determination, the average daily Total
Utilization of Commitments for the 30 day period ended on the
date of the most recent Pricing Determination Certificate
delivered by Company pursuant to Subsection 4.1T or Subsection
6.1(xvii) date is less than $30,000,000, then, subject to clauses
(i) and (ii) above, the Applicable Base Rate Margins listed above
shall be reduced by 15 basis points (0.15%) for such date of
determination; provided, however, such Applicable Base Rate
Margins shall never be less than zero.
"Applicable Commitment Fee Percentage" means, as of any
date of determination, (i) a percentage per annum as shown below
determined by the Leverage Ratio on the date of the most recent
Pricing Determination Certificate delivered by Company pursuant
to Subsection 4.1T or Subsection 6.1(xvii) and the average daily
Total Utilization of Commitments for the 30 day period ending on
the date of such Pricing Determination Certificate; provided that
the Applicable Commitment Fee Percentage shall not be adjusted
upon receipt of a Pricing Determination Certificate until the
first Business Day of the first calendar month following the date
on which such Pricing Determination Certificate is due or (ii) if
Company has failed to provide such certificate within the time
period set forth for such delivery in Subsection 6.1(xvii), the
Applicable Commitment Fee Percentage shall be 0.50% on and after
the first Business Day following the date on which delivery of
such Pricing Determination Certificate was due until the first
Business Day of the month following the date that such past due
certificate is actually received by Administrative Agent;
provided further that on the first Business Day of the month
following receipt of a past due certificate by Administrative
Agent, the Applicable Commitment Fee Percentage shall be deter
mined as set forth in clause (i) above:
Leverage Ratio Applicable Commitment Fee % _
less than or equal to 1.50 0.30%
greater than 1.50 0.40%
but less than or equal to 2.00
greater than 2.00 0.50%
If on any date of determination, the average daily Total
Utilization of Commitments for the 30 day period ended on the
date of the most recent Pricing Determination Certificate
delivered by Company pursuant to Subsection 4.1T or Subsection
6.1(xvii) date is less than $30,000,000, then, subject to clauses
(i) and (ii) above, the Applicable Commitment Fee Percentages
listed above shall be reduced by 10 basis points (0.10%) for such
date of determination.
"Applicable Eurodollar Margin" means, as of any date of
determination, (i) a percentage per annum as shown below deter
mined by the Leverage Ratio on the date of the most recent
Pricing Determination Certificate delivered by Company pursuant
to Subsection 4.1T or Subsection 6.1(xvii) and the average daily
Total Utilization of Commitments for the 30 day period ending on
the date of such Pricing Determination Certificate; provided that
the Applicable Eurodollar Margin shall not be adjusted upon
receipt of a Pricing Determination Certificate until the first
Business Day of the first calendar month following the date on
which such Pricing Determination Certificate is due or (ii) if
Company has failed to provide such certificate within the period
set forth for such delivery in Subsection 6.1(xvii), the
Applicable Eurodollar Margin shall be 2.50% on and after the
first Business Day following the date on which delivery of such
Pricing Determination Certificate was due until the first
Business Day of the month following the date that such past due
certificate is actually received by Administrative Agent;
provided further that on the first Business Day of the month
following receipt of a past due certificate by Administrative
Agent, the Applicable Eurodollar Margin shall be determined as
set forth in clause (i) above:
Leverage Ratio Applicable Eurodollar Margin
less than or equal to 1.50 1.00%
greater than 1.50 1.50%
but less than or equal to 2.00
greater than 2.00 2.00%
but less than or equal to 2.50
greater than 2.50 2.25%
but less than or equal to 3.00
greater than 3.00 2.50%
If on any date of determination, the average daily Total
Utilization of Commitments for the 30 day period ended on the
date of the most recent Pricing Determination Certificate
delivered by Company pursuant to Subsection 4.1T or Subsection
6.1(xvii) date is less than $30,000,000, then, subject to clauses
(i) and (ii) above, the Applicable Eurodollar Margins listed
above shall be reduced by 15 basis points (0.15%) for such date
of determination.
"Arranger" means WFB.
"Assessment" means the obligation of any Person that
owns an equity interest in any legal entity to pay or contribute
additional capital to such entity, whether such obligation arises
on a scheduled basis or upon the occurrence of one or more
contingent events.
"Asset Sale" means the sale by Company or any of its
Subsidiaries to any Person other than Company or any of its
wholly-owned Subsidiaries of (i) any of the stock of any of
Company's Subsidiaries, (ii) 50% or more of the assets of Company
or any of its Subsidiaries, or (iii) any other assets used or
useful in the operations of Company or its Subsidiaries (whether
tangible or intangible) outside of the ordinary course of
business.
"Bankruptcy Code" means Title 11 of the United States
Code entitled "Bankruptcy", as now and hereafter in effect, or
any successor statute.
"Barges" means all barges located at or used in
connection with the Illinois Facilities or the Louisiana
Facilities, whether owned on the date hereof or subsequently
acquired, including, without limitation, all barges that are
documented, registered or certified pursuant to the laws of the
State of Illinois or the State of Louisiana.
"Base Rate" means, at any time, the higher of (x) the
Prime Rate or (y) the rate which is 1/2 of 1% in excess of the
Federal Funds Effective Rate.
"Base Rate Loans" means Loans bearing interest at rates
determined by reference to the Base Rate as provided in
subsection 2.2A.
"Best Knowledge" means, as applied to any individual,
actual knowledge by such individual of any fact and means, as
applied to Company, (i) actual knowledge by any Responsible
Officer of any fact or (ii) imputed knowledge of any fact which
should, upon the reasonable exercise of diligence (appropriate
for the circumstances in question) by any such Responsible
Officer in his or her employment position, have been known.
"Business Day" means (i) for all purposes other than as
covered by clause (ii) below, any day excluding Saturday, Sunday
and any day which is a legal holiday under the laws of the State
of California, Nevada or New Jersey or is a day on which banking
institutions located in any such state are authorized or required
by law or other governmental action to close, and (ii) with
respect to all notices, determinations, fundings and payments in
connection with the Adjusted Eurodollar Rate or any Eurodollar
Rate Loans, any day that is a Business Day described in
clause (i) above and that is also a day for trading by and
between banks in Dollar deposits in the London interbank market.
"Capital Lease," as applied to any Person, means any
lease of any property (whether real, personal or mixed) by that
Person as lessee that, in conformity with GAAP, is accounted for
as a capital lease on the balance sheet of that Person.
"Cash" means money, currency or a credit balance in a
Deposit Account.
"Cash Equivalents" means, as at any date of determina
tion, (i) marketable securities (a) issued or directly and
unconditionally guaranteed as to interest and principal by the
United States Government or (b) issued by any agency of the
United States the obligations of which are backed by the full
faith and credit of the United States, in each case maturing
within one year after such date; (ii) marketable direct obliga
tions issued by any state of the United States of America or any
political subdivision of any such state or any public instrumen
tality thereof, in each case maturing within one year after such
date and having, at the time of the acquisition thereof, the
highest rating obtainable from either Standard & Poor's Ratings
Group ("S&P") or ▇▇▇▇▇'▇ Investors Service, Inc. ("Moody's");
(iii) commercial paper maturing no more than one year from the
date of creation thereof and having, at the time of the acquisi
tion thereof, a rating of at least A-1 from S&P or at least P-1
from Moody's; (iv) certificates of deposit or bankers' accep
tances maturing within one year after such date and issued or
accepted by any Lender or by any commercial bank organized under
the laws of the United States of America or any state thereof or
the District of Columbia that (a) is at least "adequately
capitalized" (as defined in the regulations of its primary
Federal banking regulator), (b) has Tier 1 capital (as defined in
such regulations) of not less than $100,000,000 and (c) has a
long-term rating of not less than "A-" from S&P or "A3" from
Moody's; and (v) shares of any money market mutual fund that (a)
has at least 95% of its assets invested continuously in the types
of investments referred to in clauses (i) and (ii) above, (b) has
net assets of not less than $500,000,000, and (c) has the highest
rating obtainable from either S&P or Moody's.
"Cash Proceeds" means Cash payments (including any Cash
received by way of deferred payment pursuant to, or monetization
of, a note receivable or otherwise, but only as and when so
received) and Cash Equivalents received by Company or any of its
Subsidiaries from any Asset Sale or upon the occurrence of an
Event of Loss.
"Change of Control" means (i) any Person or "group"
(within the meaning of Section 13(d)(3) of the Exchange Act)
shall have acquired "beneficial ownership" (within the meaning of
Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of Company representing 20% or more of the combined
voting power of all securities of Company entitled to vote in the
election of directors; or (ii) during any period of up to 12
consecutive months, commencing before or after the date of this
Agreement, individuals who at the beginning of such 12-month
period were directors of Company shall cease for any reason to
constitute a majority of the Board of Directors of Company; or
(iii) any Person or "group" shall have acquired by contract or
otherwise, or shall have entered into a contract or arrangement
that upon consummation shall result in its or their acquisition
of or control over, securities of Company representing 20% or
more of the combined voting power of all securities of Company
entitled to vote in the election of directors; provided that a
Change of Control shall not be deemed to occur under clauses (i)
or (iii) above if the Person referred to in either such clause is
an Excluded Person, or the "group" referred to in either such
clause consists exclusively of two or more Excluded Persons,
unless (x) the transaction or series of transactions that creates
the Change of Control is subject to Rule 13e-3 under the Exchange
Act or any similar or successor rule and (y) immediately prior to
and during the 180-day period following either (1) such transac
tion or series of transactions referred to in clause (x), or (2)
the time that any such Excluded Person or "group" consisting
exclusively of two or more Excluded Persons shall have acquired
"beneficial ownership", directly or indirectly, of 20% or more of
such total voting power, as referred to in clause (iii), the
Senior Notes are or become rated, in the case of clause (1) or
(2), "B+" or below by S&P and "B1" or below by Moody's or, if
either such rating agency or both such rating agencies shall no
longer make a rating of the Senior Notes publicly available, the
comparable ratings of another nationally recognized securities
rating agency or agencies, as the case may be, selected by
Company, which shall be substituted for S&P or Moody's or both,
as the case may be; provided further that the 180-day period
referred to in clause (y) shall be extended for so long as the
rating of the Senior Notes is under publicly announced considera
tion for possible downgrade by any such rating agency.
"Collateral" means all the real, personal and mixed
property made subject to a Lien pursuant to the Collateral
Documents.
"Collateral Account" has the meaning assigned to that
term in the Collateral Account Agreement.
"Collateral Account Agreement" means the Collateral
Account Agreement dated as of August 25, 1995, executed and
delivered pursuant to the Original Credit Agreement, pursuant to
which Company may pledge cash to Administrative Agent to secure
the obligations of Company to reimburse Administrative Agent for
payments made under one or more Letters of Credit as provided in
Section 8, as such Collateral Account Agreement has been amended
to the date hereof and as it may hereafter be amended, supple
mented or otherwise modified from time to time.
"Collateral Assignment Agreement" means that certain
Collateral Assignment Agreement between PMGC and Administrative
Agent dated as of August 25, 1995, executed and delivered pursu
ant to the Original Credit Agreement, as it has been amended to
the date hereof and as it may hereafter be amended, supplemented
or otherwise modified, from time to time.
"Collateral Documents" means the Existing Collateral
Documents, any amendments, supplements or modifications to the
Existing Collateral Documents, and all other instruments or
documents now or hereafter granting Liens on property of Company
or any of its Subsidiaries to Administrative Agent for benefit of
Lenders.
"Commitments" means the commitments of Lenders to make
Loans as set forth in subsection 2.1A, and the "Commitments" of
any Lender means the commitments of such Lender to make Loans as
set forth in subsection 2.1A.
"Commitment Termination Date" means March 31, 2003.
"Company" means Players International, Inc., a Nevada
corporation.
"Company Pledge Agreements" means those certain Pledge
Agreements between Company and Administrative Agent dated
August 25, 1995 executed and delivered pursuant to the Original
Credit Agreement, as each such agreement has been amended to the
date hereof and as each such agreement may hereafter be amended,
supplemented or otherwise modified, from time to time.
"Company Security Agreement" means that certain
Security Agreement between Company and Administrative Agent dated
August 25, 1995, executed and delivered pursuant to the Original
Credit Agreement, as it has been amended to the date hereof and
as it may hereafter be amended, supplemented or otherwise modi
fied, from time to time.
"Compliance Certificate" means a certificate substan
tially in the form of Exhibit IX annexed hereto delivered to
Administrative Agent and Lenders by Company pursuant to subsec
tion 6.1(iv).
"Consolidated Capital Expenditures" means, for any
period, the sum of the aggregate of all expenditures (whether
paid in cash or other consideration or accrued as a liability and
including that portion of Capital Leases that is capitalized on
the consolidated balance sheet of Company and its Subsidiaries)
by Company and its Subsidiaries during that period that, in
conformity with GAAP, are included in "additions to property,
plant and equipment" or comparable items reflected in the ▇▇▇▇▇▇▇
dated statement of cash flows of Company and its Subsidiaries.
"Consolidated EBITDA" means, for any period ▇▇▇▇▇▇▇
dated Net Income for such period plus, to the extent such items
were subtracted in the determination of Consolidated Net Income,
the sum of the amounts for such period of (i) Consolidated
Interest Expense, (ii) provisions for taxes based on income,
(iii) total depreciation expense, (iv) total amortization
expense, and (v) other non-cash items reducing Consolidated Net
Income less other non-cash and/or extraordinary, non-recurring
items increasing Consolidated Net Income plus other extraordinary
and non-recurring items decreasing Consolidated Net Income, all
of the foregoing as determined on a consolidated basis for
Company and its Subsidiaries in conformity with GAAP.
"Consolidated Fixed Charges" means, for any period, the
sum (without duplication) of the amounts for such period of
(i) Consolidated Interest Expense, (ii) scheduled payments of
principal on the long-term portion of Consolidated Total Debt,
(iii) the principal component of payments on Capital Leases and
(iv) all Assessments payable by Company or any of its Subsid
iaries during such period.
"Consolidated Interest Expense" means, for any period,
total interest expense (including that portion attributable to
Capital Leases in accordance with GAAP and capitalized interest)
of Company and its Subsidiaries on a consolidated basis with
respect to all outstanding Indebtedness of Company and its
Subsidiaries, including, without limitation, all commissions,
discounts and other fees and charges owed with respect to letters
of credit and bankers' acceptance financing and net costs under
Interest Rate Agreements, but excluding, however, any amounts
referred to in subsection 2.3 payable to Administrative Agent and
Lenders on or before the Effective Date.
"Consolidated Net Income" means, for any period, the
net income (or loss) of Company and its Subsidiaries on a
consolidated basis for such period taken as a single accounting
period determined in conformity with GAAP; provided that there
shall be excluded (i) the income (or loss) of any Person (other
than a Subsidiary of Company) in which any other Person (other
than Company or any of its Subsidiaries) has a joint interest,
except to the extent of the amount of dividends or other distri
butions actually paid to Company or any of its Subsidiaries by
such Person during such period, (ii) the income (or loss) of any
Person accrued prior to the date it becomes a Subsidiary of
Company or is merged into or consolidated with Company or any of
its Subsidiaries or that Person's assets are acquired by Company
or any of its Subsidiaries, (iii) the income of any Subsidiary of
Company to the extent that the declaration or payment of
dividends or similar distributions by that Subsidiary of that
income is not at the time permitted by operation of the terms of
its charter or any agreement, instrument, judgment, decree,
order, statute, rule or governmental regulation applicable to
that Subsidiary, (iv) any after-tax gains or losses attributable
to Asset Sales or returned surplus assets of any Pension Plan,
and (v) (to the extent not included in clauses (i) through (iv)
above) any net extraordinary gains or net non-cash extraordinary
losses.
"Consolidated Tangible Net Worth" means, as at any date
of determination, the sum of the par value of Company's capital
stock and additional paid-in capital plus retained earnings (or
minus accumulated deficits) less all intangible assets (including
goodwill and excess purchase price over historical basis entries)
of Company and its Subsidiaries on a consolidated basis deter
mined in conformity with GAAP plus, to the extent the Company's
net worth has been reduced thereby, the amount of any non-cash
impairment loss recognized in accordance with FASB 121 in the net
book value of or loss on the disposition of the Company's and its
Subsidiaries' interest in the Maryland Heights Facilities and in
any other assets used in the operation of the Maryland Heights
Facilities.
"Consolidated Total Assets" means as at any date of
determination, the total assets of Company and its Subsidiaries
which would be shown as assets on a consolidated balance sheet of
Company and its Subsidiaries as of such date prepared in accor
dance with GAAP, after eliminating all amounts properly attribut
able to minority interests, if any, in the stock and surplus of
Subsidiaries.
"Consolidated Total Debt" means, as at any date of
determination, the aggregate stated balance sheet amount of all
Indebtedness of Company and its Subsidiaries on a consolidated
basis in accordance with GAAP.
"Consolidating" means, as used to describe financial
statements referred to in subsections 5.3, 6.1(ii), 6.1(iii) and
6.1(xiv), the separate financial statements reflecting the
accounts of Company and its Subsidiaries.
"Contingent Obligation", as applied to any Person,
means any direct or indirect liability, contingent or otherwise,
of that Person (i) with respect to any Indebtedness, lease,
dividend or other obligation of another if the primary purpose or
intent thereof by the Person incurring the Contingent Obligation
is to provide assurance to the obligee of such obligation of
another that such obligation of another will be paid or
discharged, or that any agreements relating thereto will be
complied with, or that the holders of such obligation will be
protected (in whole or in part) against loss in respect thereof,
(ii) with respect to any letter of credit issued for the account
of that Person or as to which that Person is otherwise liable for
reimbursement of drawings, (iii) under Interest Rate Agreements,
or (iv) to make an Investment in any other Person. Contingent
Obligations shall include, without limitation, (a) the direct or
indirect guaranty, endorsement (otherwise than for collection or
deposit in the ordinary course of business), co-making,
discounting with recourse or sale with recourse by such Person of
the obligation of another, (b) the obligation to make take-or-pay
or similar payments if required regardless of non-performance by
any other party or parties to an agreement, and (c) any liability
of such Person for the obligation of another through any agree
ment (contingent or otherwise) (X) to purchase, repurchase or
otherwise acquire such obligation or any security therefor, or to
provide funds for the payment or discharge of such obligation
(whether in the form of loans, advances, stock purchases, capital
contributions or otherwise) or (Y) to maintain the solvency or
any balance sheet item, level of income or financial condition of
another if, in the case of any agreement described under
subclauses (X) or (Y) of this sentence, the primary purpose or
intent thereof is as described in the preceding sentence. The
amount of any Contingent Obligation shall be equal to the amount
of the obligation so guaranteed or otherwise supported or, if
less, the amount to which such Contingent Obligation is specifi
cally limited.
"Contractual Obligation", as applied to any Person,
means any provision of any Security issued by that Person or of
any material indenture, mortgage, deed of trust, contract,
undertaking, agreement or other instrument to which that Person
is a party or by which it or any of its properties is bound or to
which it or any of its properties is subject.
"Deposit Account" means a demand, time, savings,
passbook or like account with a bank, savings and loan associa
tion, credit union or like organization, other than an account
evidenced by a negotiable certificate of deposit.
"Dollars" and the sign "$" mean the lawful money of the
United States of America.
"Effective Date" means the date on or before March 31,
1998, on which the conditions set forth in subsection 4.1 are
first satisfied or waived in writing by Administrative Agent and
Requisite Lenders.
"Eligible Assignee" means (A)(i) a commercial bank
organized under the laws of the United States or any state
thereof; (ii) a savings and loan association or savings bank
organized under the laws of the United States or any state
thereof; (iii) a commercial bank organized under the laws of any
other country or a political subdivision thereof; provided that
(x) such bank is acting through a branch or agency located in the
United States or (y) such bank is organized under the laws of a
country that is a member of the Organization for Economic
Cooperation and Development or a political subdivision of such
country; and (iv) any other entity which is an "accredited
investor" (as defined in Regulation D under the Securities Act)
which extends credit or buys loans as one of its businesses
including, but not limited to, insurance companies, mutual funds
and lease financing companies, in each case (under clauses (i)
through (iv) above) that is reasonably acceptable to and
consented to by Managing Agent; and (B) any Lender and any
Affiliate of any Lender; provided that no Affiliate of Company
shall be an Eligible Assignee.
"Employee Benefit Plan" means any "employee benefit
plan" as defined in Section 3(3) of ERISA which is, or was at any
time, maintained or contributed to by Company or any of its ERISA
Affiliates.
"Environmental Claim" means any accusation, allegation,
notice of violation, claim, demand, abatement order or other
order or direction (conditional or otherwise) by any governmental
authority or any Person for any damage, including, without
limitation, personal injury (including sickness, disease or
death), tangible or intangible property damage, contribution,
indemnity, indirect or consequential damages, damage to the
environment, nuisance, pollution, contamination or other adverse
effects on the environment, or for fines, penalties or restric
tions, in each case relating to, resulting from or in connection
with Hazardous Materials and relating to Company, any of its
Subsidiaries, any of their respective Affiliates or any Facility.
"Environmental Indemnities" means (i) the Environmental
Indemnity from Company in favor of Administrative Agent on behalf
of Lenders dated as of August 25, 1995, executed and delivered
pursuant to the Original Credit Agreement, pursuant to which
Company indemnifies Administrative Agent on behalf of Lenders
against environmental risks, as it has been amended to the date
hereof and as it may hereafter be amended, supplemented or other
wise modified from time to time and (ii) the Environmental Indem
nity from Company in favor of Administrative Agent on behalf of
Lenders dated as of January 9, 1998, executed and delivered
pursuant to the Existing Credit Agreement, pursuant to which
Company indemnifies Administrative Agent on behalf of Lenders
against environmental risks, as it has been amended to the date
hereof and as it may hereafter be amended, supplemented or other
wise modified from time to time.
"Environmental Laws" means all statutes, ordinances,
orders, rules, regulations, plans, policies or decrees and the
like relating to (i) environmental matters, including, without
limitation, those relating to fines, injunctions, penalties,
damages, contribution, cost recovery compensation, losses or
injuries resulting from the Release or threatened Release of
Hazardous Materials, (ii) the generation, use, storage, transpor
tation or disposal of Hazardous Materials, or (iii) occupational
safety and health, industrial hygiene, land use or the protection
of human, plant or animal health or welfare, in any manner appli
cable to Company or any of its Subsidiaries or any of their
respective properties, including, without limitation, the Compre
hensive Environmental Response, Compensation, and Liability Act
(42 U.S.C. 9601 et seq.), the Hazardous Materials Transporta
tion Act (49 U.S.C. 1801 et seq.), the Resource Conservation
and Recovery Act (42 U.S.C. 6901 et seq.), the Federal Water
Pollution Control Act ( 33 U.S.C. 1251 et seq.), the Clean Air
Act (42 U.S.C. 7401 et seq.), the Toxic Substances Control Act
(15 U.S.C. 2601 et seq.), the Federal Insecticide, Fungicide
and Rodenticide Act (7 U.S.C. 136 et seq.), the Occupational
Safety and Health Act (29 U.S.C. 651 et seq.) and the Emergency
Planning and Community Right-to-Know Act (42 U.S.C. 11001 et
seq.), each as amended or supplemented, and any analogous future
or present local, state and federal statutes and regulations
promulgated pursuant thereto, each as in effect as of the date of
determination.
"ERISA" means the Employee Retirement Income Security
Act of 1974, as amended from time to time, and any successor
statute.
"ERISA Affiliate", as applied to any Person, means
(i) any corporation which is, or was at any time, a member of a
controlled group of corporations within the meaning of
Section 414(b) of the Internal Revenue Code of which that Person
is, or was at any time, a member; (ii) any trade or business
(whether or not incorporated) which is, or was at any time, a
member of a group of trades or businesses under common control
within the meaning of Section 414(c) of the Internal Revenue Code
of which that Person is, or was at any time, a member; and
(iii) any member of an affiliated service group within the
meaning of Section 414(m) or (o) of the Internal Revenue Code of
which that Person, any corporation described in clause (i) above
or any trade or business described in clause (ii) above is, or
was at any time, a member.
"ERISA Event" means (i) a "reportable event" within the
meaning of Section 4043 of ERISA and the regulations issued
thereunder with respect to any Pension Plan (excluding those for
which the provision for 30-day notice to the PBGC has been waived
by regulation); (ii) the failure to meet the minimum funding
standard of Section 412 of the Internal Revenue Code with respect
to any Pension Plan (whether or not waived in accordance with
Section 412(d) of the Internal Revenue Code) or the failure to
make by its due date a required installment under Section 412(m)
of the Internal Revenue Code with respect to any Pension Plan or
the failure to make any required contribution to a Multiemployer
Plan; (iii) the provision by the administrator of any Pension
Plan pursuant to Section 4041(a)(2) of ERISA of a notice of
intent to terminate such plan in a distress termination described
in Section 4041(c) of ERISA; (iv) the withdrawal by Company or
any of its ERISA Affiliates from any Pension Plan with two or
more contributing sponsors or the termination of any such Pension
Plan resulting in liability pursuant to Sections 4063 or 4064 of
ERISA; (v) the institution by the PBGC of proceedings to termi
nate any Pension Plan, or the occurrence of any event or condi
tion which might constitute grounds under ERISA for the termina
tion of, or the appointment of a trustee to administer, any
Pension Plan; (vi) the imposition of liability on Company or any
of its ERISA Affiliates pursuant to Section 4062(e) or 4069 of
ERISA or by reason of the application of Section 4212(c) of
ERISA; (vii) the withdrawal by Company or any of its ERISA
Affiliates in a complete or partial withdrawal (within the
meaning of Sections 4203 and 4205 of ERISA) from any Multiem
ployer Plan if there is any potential liability therefor, or the
receipt by Company or any of its ERISA Affiliates of notice from
any Multiemployer Plan that it is in reorganization or insolvency
pursuant to Section 4241 or 4245 of ERISA, or that it intends to
terminate or has terminated under Section 4041A or 4042 of ERISA;
(viii) the occurrence of an act or omission which could give rise
to the imposition on Company or any of its ERISA Affiliates of
any material fines, penalties, taxes or related charges under
Chapter 43 of the Internal Revenue Code or under Section 409 or
502(c), (i) or (l) or 4071 of ERISA in respect of any Employee
Benefit Plan; (ix) the assertion of a material claim (other than
routine claims for benefits) against any Employee Benefit Plan
other than a Multiemployer Plan or the assets thereof, or against
Company or any of its ERISA Affiliates in connection with any
such Employee Benefit Plan; (x) receipt from the Internal Revenue
Service of notice of the failure of any Pension Plan (or any
other Employee Benefit Plan intended to be qualified under
Section 401(a) of the Internal Revenue Code) to qualify under
Section 401(a) of the Internal Revenue Code, or the failure of
any trust forming part of any Pension Plan to qualify for
exemption from taxation under Section 501(a) of the Internal
Revenue Code; or (xi) the imposition of a Lien pursuant to
Section 401(a)(29) or 412(n) of the Internal Revenue Code or
pursuant to ERISA with respect to any Pension Plan.
"Eurodollar Rate Loans" means Loans bearing interest at
rates determined by reference to the Adjusted Eurodollar Rate as
provided in subsection 2.2A.
"Event of Default" means each of the events set forth
in Section 8.
"Event of Loss" means, with respect to any property or
asset, (i) any loss, destruction or damage of such property or
asset or (ii) any condemnation, seizure or taking, by exercise of
the power of eminent domain or otherwise, of such property or
asset, or confiscation or requisition of the use of such property
or asset.
"Exchange Act" means the Securities Exchange Act of
1934, as amended from time to time, and any successor statute.
"Excluded Person" means (a) Company or any Guarantor
wholly-owned by Company, (b) any employee benefit plan of Company
or any Guarantor wholly-owned by Company or any trustee or
similar fiduciary holding capital stock of Company for or
pursuant to the terms of any such plan, (c) ▇▇▇▇ ▇▇▇▇▇▇▇, (d)
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, (e) ▇▇▇▇▇ ▇▇▇▇▇▇▇, (f) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, (g)
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, (h) ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, (i) ▇▇▇ ▇▇▇▇▇▇▇, (j)
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, (k) ▇▇▇ ▇▇▇▇▇, (l) ▇▇▇▇ ▇▇▇▇, (m) ▇▇▇▇▇▇▇▇
▇▇▇▇▇, (n) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, (o) ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ III, (p) ▇▇▇▇
▇▇▇▇▇ and (q) members of the immediate families and Affiliates of
any such Person (where the determination of whether a Person is
an Affiliate is made without reference to clause (ii) of the
definition of such term).
"Existing Collateral Documents" means the Mortgages,
the Ship Mortgages, the Guaranties, the Company Security Agree
ment, the Subsidiary Security Agreements, the Company Pledge
Agreements, the LLC Membership Interest Security Agreements, the
Partnership Interest Security Agreements, the Resources Pledge
and Security Agreement, the Collateral Assignment Agreement, all
agreements listed on Schedule 1.1(a) hereto and all other instru
ments or documents now granting Liens on property of Company or
any of its Subsidiaries to Administrative Agent for benefit of
Lenders.
"Existing Credit Agreement" has the meaning specified
in Preliminary Statement B to this Agreement.
"Existing Letter of Credit" means each Letter of Credit
(as defined in the Existing Credit Agreement) outstanding on the
Effective Date that has not expired or been cancelled as of the
Effective Date.
"Existing Revolving Loan" has the meaning specified in
subsection 2.1F.
"Facilities" means, collectively, the Illinois Facili
ties, the Louisiana Facilities, the Maryland Heights Facilities
and the Louisiana Hotel Facilities.
"Facility Debt" means for any Fiscal Quarter, the
average of the aggregate principal amount of Loans outstanding,
including Swing Line Loans, and the aggregate stated amount of
Letters of Credit outstanding as of the last day of each calendar
month in such Fiscal Quarter.
"Federal Funds Effective Rate" means, for any period, a
fluctuating interest rate equal for each day during such period
to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged
by Federal funds brokers, as published for such day (or, if such
day is not a Business Day, for the next preceding Business Day)
by the Federal Reserve Bank of New York, or, if such rate is not
so published for any day which is a Business Day, the average of
the quotations for such day on such transactions received by
Agent from three Federal funds brokers of recognized standing
selected by Administrative Agent.
"FF&E" means any and all furniture, fixtures and equip
ment which have been installed or are to be installed and used in
connection with the operation of the Improvements located upon
any of the Premises and those items of furniture, fixtures and
equipment which have been purchased or leased or are hereafter
purchased or leased in connection with any of the Facilities.
"Fiscal Quarter" means the calendar quarters ending on
March 31, June 30, September 30 and December 31.
"Fiscal Year" means the fiscal year period beginning
April 1 of each calendar year and ending on the following
March 31.
"Fixed Charge Coverage Ratio" means, as of any date of
determination, the ratio of (y) Consolidated EBITDA for the
consecutive four full Fiscal Quarters most recently ended on or
before such date of determination to (z) the sum of (i) ▇▇▇▇▇▇▇
dated Fixed Charges plus (ii) to the extent not included in
clause (i), the amount of payments made in respect of purchase
obligations for the Louisiana Ship known as the Star Casino for
such four Fiscal Quarter period.
"Flood Act" means the National Flood Insurance Act of
1968 as amended by the Flood Disaster Protection Act of 1973 (42
U.S.C. 4013 et. seq.).
"Former Lender" has the meaning assigned to that term
in subsection 10.1B(iii).
"Funding and Payment Office" means the office of
Administrative Agent located at the address for Notices of
Borrowing set forth on the signature pages hereof.
"Funding Date" means the date of the funding of a Loan
or the issuance of a Letter of Credit.
"GAAP" means, subject to the limitations on the appli
cation thereof set forth in subsection 1.2, generally accepted
accounting principles set forth in opinions and pronouncements of
the Accounting Principles Board of the American Institute of
Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other state
ments by such other entity as may be approved by a significant
segment of the accounting profession, in each case as the same
are applicable to the circumstances as of the date of determina
tion.
"Gaming Authority" means any agency, authority, board,
bureau, commission, department, office or instrumentality of any
nature whatsoever of the United States federal or foreign govern
ment, any state, province or any city or other political subdivi
sion or otherwise and whether now or hereafter in existence, or
any officer or official thereof, including, without limitation,
the Illinois Gaming Authorities, the Missouri Gaming Authorities,
the Louisiana Gaming Authorities, and the Kentucky Gaming
Authorities, with authority to regulate any gaming operation (or
proposed gaming operation) owned, managed or operated by Company
or any of its Subsidiaries.
"Gaming Laws" means all statutes, rules, regulations,
ordinances, codes and administrative or judicial precedents
pursuant to which any Gaming Authority possesses regulatory,
licensing or permit authority over gambling, gaming or casino
activities conducted by Company and its Subsidiaries within its
jurisdiction, including the Illinois Riverboat Gambling Act, the
Kentucky Gaming Law, the Louisiana Riverboat Economic Development
and Gaming Control Act, and the Missouri Gaming Act.
"Governmental Acts" has the meaning assigned to that
term in subsection 3.5A.
"Governmental Authority" means any of the United States
government, the government of any state thereof and any political
subdivision, agency, department, commission, court, board, bureau
or instrumentality of any of them, including any local authori
ties and any Gaming Authority.
"Governmental Authorization" means any permit, license,
authorization, plan, directive, consent, order or consent decree
of or from any Governmental Authority, including any Gaming
Authority.
"Guarantor" means any of PBD, PDI, PEI, PHI, PLC, PLCI,
PLCR, PMGC, PMH, PMHN, PML, PMHLP, PNEV, PRES, PRI, PRM, PRLLC,
PSI, RR, SIRCC, and SSP and "Guarantors" means all of them,
collectively; provided, however, that "Guarantors" shall also
mean any Person that becomes a Subsidiary of Company after the
Effective Date.
"Guaranties" means (i) the Guaranty dated as of
August 25, 1995, executed and delivered by each then existing
Guarantor in favor of Administrative Agent, pursuant to the
Original Credit Agreement, and (ii) the PHI Guaranty, as each
such agreement has been amended to the date hereof and as each
such agreement may hereafter be amended, supplemented or other
wise modified from time to time, including, without limitation,
by the inclusion as Guarantors of Persons becoming Subsidiaries
of Company after the Effective Date.
"▇▇▇▇▇▇'▇" means ▇▇▇▇▇▇'▇ Maryland Heights Corporation,
a Nevada corporation.
"Hazardous Materials" means (i) any chemical, material
or substance at any time defined as or included in the definition
of "hazardous substances", "hazardous wastes", "hazardous mate
rials", "extremely hazardous waste", "restricted hazardous
waste", "infectious waste", "toxic substances" or any other
formulations intended to define, list or classify substances by
reason of deleterious properties such as ignitability, corrosi
vity, reactivity, carcinogenicity, toxicity, reproductive toxi
city, "TCLP toxicity" or "EP toxicity" or words of similar import
under any applicable Environmental Laws or publications promul
gated pursuant thereto; (ii) any oil, petroleum, petroleum
fraction or petroleum derived substance; (iii) any drilling
fluids, produced waters and other wastes associated with the
exploration, development or production of crude oil, natural gas
or geothermal resources; (iv) any flammable substances or
explosives; (v) any radioactive materials; (vi) asbestos in any
form; (vii) urea formaldehyde foam insulation; (viii) electrical
equipment which contains any oil or dielectric fluid containing
levels of polychlorinated biphenyls in excess of fifty parts per
million; (ix) pesticides; and (x) any other chemical, material or
substance, exposure to which is prohibited, limited or regulated
by any governmental authority or which may or could pose a hazard
to the health and safety of the owners, occupants or any Persons
in the vicinity of the Facilities.
"Hostile Acquisition" means any acquisition of the
outstanding Securities or capital stock of any corporation,
partnership or other Person that is not an Affiliate of Company
other than (i) an acquisition which has been approved by resolu
tions of the Board of Directors of the Person being acquired or
by similar action if the Person is not a corporation, and as to
which such approval has not been withdrawn, or (ii) any acquisi
tion of less than twenty percent (20%) of the outstanding
Securities of any class or type of any Person; provided that an
acquisition of Securities described in clause (ii) hereof as to
which Company or any of its Subsidiaries is required to file a
statement containing the information required by Schedule 13D
under the Exchange Act shall not be considered a Hostile Acquisi
tion only if the then currently effective Schedule 13D of Company
or such Subsidiary indicates that Company or such Subsidiary
views the Securities as an attractive Investment and that Company
or such Subsidiary has no plans or proposals which relate to or
which would result in any of the transactions described in para
graphs (b) through (j) of Item 4 of Schedule 13D.
"Illinois Facilities" means the Illinois Premises and
the Improvements made thereon, along with all other related
personal and mixed property located thereon or related thereto,
including, without limitation, a four-deck paddle-▇▇▇▇▇▇▇
riverboat casino, a docking site (including all Barges), a new
office building, a cabaret style theater, all related restaurant,
bar, recreation and other facilities and all FF&E and other
personal property located therein, as more fully described in the
"Business" and "Properties" sections of the 10-K.
"Illinois Gaming Authorities" means, without limita
tion, the Illinois Gaming Board and any other applicable Govern
mental Authority involved in the regulation of gaming and gaming
activities conducted by Company or any of its Subsidiaries in the
State of Illinois.
"Illinois Mortgage" means that certain Mortgage,
Fixture Filing and Security Agreement with Assignment of Rents,
by and among SIRCC, as mortgagor and owner, in favor of Adminis
trative Agent, as mortgagee, dated August 25, 1995, executed and
delivered pursuant to the Original Credit Agreement, as it has
been amended to the date hereof and as it may hereafter be
amended, supplemented or otherwise modified from time to time.
"Illinois Premises" means the real property owned in
fee or leased by Company or its respective Subsidiaries with
respect to the property commonly known as the Metropolis complex
in Metropolis, Illinois, as more fully described on Schedule A-1
hereto.
"Illinois Riverboat Gambling Act" means the Riverboat
Gambling Act of Illinois, as from time to time amended, or any
successor provision of law, and the regulations promulgated
thereunder.
"Illinois Ships" means each of the Players Riverboat
Casino II and any other riverboat casino subsequently acquired by
Company or any of its Subsidiaries and operated out of the
Illinois Facilities, in each case, including the engines,
boilers, machinery, masts, derricks, drawworks, spars, boats,
anchors, cables, chains, tackle, fittings, pumping equipment and
all other components and appurtenances thereto, whether now owned
or hereafter acquired, whether on board or not, and whether
installed by Company, SIRCC or any other Person, and also any and
all changes, improvements, alterations, additions, renewals and
replacements at any time made in or to such units or any parts
thereof.
"Improvements" means all buildings, structures,
facilities and other improvements of every kind and description
now or hereafter located on any of the Premises, including all
parking areas, roads, driveways, walks, fences, walls, beams,
recreation facilities, drainage facilities, lighting facilities
and other site improvements, all water, sanitary and storm sewer,
drainage, electricity, steam, gas, telephone and other utility
equipment and facilities, all plumbing, lighting, heating,
ventilating, air-conditioning, refrigerating, incinerating,
compacting, fire protection and sprinkler, surveillance and
security, vacuum cleaning, public address and communications
equipment and systems, all screens, awnings, floor coverings,
partitions, elevators, escalators, motors, machinery, pipes,
fittings and other items of equipment and personal property of
every kind and description now or hereafter located on any of the
Premises or attached to the improvements that by the nature of
their location thereon or attachment thereto are real property
under applicable law; and including all materials intended for
the construction, reconstruction, repair, replacement, altera
tion, addition or improvement of or to such buildings, equipment,
fixtures, structures and improvements.
"Indebtedness", as applied to any Person, means (i) all
indebtedness for borrowed money, (ii) that portion of obligations
with respect to Capital Leases that is properly classified as a
liability on a balance sheet in conformity with GAAP, (iii) notes
payable and drafts accepted representing extensions of credit
whether or not representing obligations for borrowed money,
(iv) any obligation owed for all or any part of the deferred
purchase price of property or services (excluding any such obli
gations incurred under ERISA), which purchase price is (a) due
more than six months from the date of incurrence of the obliga
tion in respect thereof or (b) evidenced by a note or similar
written instrument, and (v) all indebtedness secured by any Lien
on any property or asset owned or held by that Person regardless
of whether the indebtedness secured thereby shall have been
assumed by that Person or is nonrecourse to the credit of that
Person. Any Contingent Obligation shall not constitute Indebted
ness until such time as, and only to the extent that, the under
lying obligation owed by the primary obligor to which such
Contingent Obligation relates has become due and payable and
remains unsatisfied after the due date thereof. Obligations
under Interest Rate Agreements constitute Contingent Obligations.
"Indemnitee" has the meaning assigned to that term in
subsection 10.3.
"Indenture" means that certain Indenture, dated as of
April 10, 1995, executed by Company, its Subsidiaries and First
Fidelity Bank, National Association, as trustee, in connection
with the issuance of and governing the terms of the Senior Notes,
as in effect on August 25, 1995, except to the extent amended in
accordance with subsection 7.13.
"Intellectual Property" means all patents, trademarks,
tradenames, copyrights, technology, know-how and processes used
in or necessary for the conduct of the business of Company and
its Subsidiaries as currently conducted that are material to the
business, operations, properties, assets, condition (financial or
otherwise) or prospects of Company and its Subsidiaries, taken as
a whole.
"Interest Coverage Ratio" means, as of any date of
determination, the ratio of (x) Consolidated EBITDA for the
immediately preceding four Fiscal Quarters to (y) the ▇▇▇▇▇▇▇
dated Interest Expense for the immediately preceding four Fiscal
Quarters.
"Interest Payment Date" means (i) with respect to any
Base Rate Loan, the last Business Day of each March, June,
September and December of each year, commencing on the first such
date to occur after the Effective Date, and (ii) with respect to
any Eurodollar Rate Loan, the last day of each Interest Period
applicable to such Loan; provided that in the case of each
Interest Period of longer than three months, "Interest Payment
Date" shall also include each date that is three months after the
commencement of such Interest Period.
"Interest Period" has the meaning assigned to that term
in subsection 2.2B.
"Interest Rate Agreement" means any interest rate swap
agreement, interest rate cap agreement, interest rate collar
agreement or other similar agreement or arrangement designed to
protect Company or any of its Subsidiaries against fluctuations
in interest rates.
"Interest Rate Exchangers" means any Lender that is a
party to a Lender Interest Rate Agreement.
"Internal Revenue Code" means the Internal Revenue Code
of 1986, as amended to the date hereof and from time to time
hereafter.
"Investment" means (i) any direct or indirect purchase
or other acquisition by Company or any of its Subsidiaries of, or
of a beneficial interest in, any Securities of any other Person
(other than a Person that is a wholly-owned Subsidiary of
Company), (ii) any direct or indirect redemption, retirement,
purchase or other acquisition for value, by any Subsidiary of
Company from any Person other than Company or any of its
Subsidiaries, of any equity Securities of such Subsidiary, or
(iii) any direct or indirect loan, advance (other than advances
to employees for moving, entertainment and travel expenses,
drawing accounts and similar expenditures in the ordinary course
of business) or capital contribution by Company or any of its
Subsidiaries to any other Person (other than a Person that is a
wholly-owned Subsidiary of Company), including all indebtedness
and accounts receivable from that other Person that are not
current assets or did not arise from sales to that other Person
in the ordinary course of business. The amount of any Investment
shall be the original cost of such Investment plus the cost of
all additions thereto, without any adjustments for increases or
decreases in value, or write-ups, write-downs or write-offs with
respect to such Investment.
"Issuing Lender" means WFB and any assignee of WFB
acting as Issuing Lender.
"Joint Venture" means a joint venture, partnership or
other similar arrangement, whether in corporate, partnership or
other legal form; provided that in no event shall any corporate
Subsidiary of any Person be considered to be a Joint Venture to
which such Person is a party.
"Joint Venture Agreement" means the Partnership Agree
ment, dated as of November 2, 1995, by and between PMHLP and
▇▇▇▇▇▇'▇.
"Joint Venture Interest Security Agreement" means that
certain Joint Venture Interest Security Agreement between PMHLP
and Administrative Agent, dated as of December 16, 1996, executed
and delivered pursuant to the Existing Credit Agreement, as such
agreement may hereafter be amended, supplemented or otherwise
modified from time to time.
"Kentucky Gaming Authority" means the Kentucky Racing
Commission.
"Kentucky Gaming Law" means Section 230.225 of the
Kentucky Revised Statutes and the rules and regulations promul
gated thereunder.
"Lender" and "Lenders" means the persons identified as
"Lenders" and listed on the signature pages of this Agreement,
together with their successors and permitted assigns pursuant to
subsection 10.1, and the term "Lenders" shall include Swing Line
Lender unless the context otherwise requires.
"Lender Assignment Agreement" has the meaning assigned
to that term in subsection 10.1A and a form of which is attached
as Exhibit IV hereto, as noted in subsection 10.1B.
"Lender Interest Rate Agreements" means each Interest
Rate Agreement between Company and a Lender, which agreement
provides that it is intended to be secured by the Collateral.
"Letter of Credit" or "Letters of Credit" means Standby
Letters of Credit issued or to be issued by Administrative Agent
for the account of Company pursuant to subsection 3.1.
"Letter of Credit Usage" means, as at any date of
determination, the sum of (i) the maximum aggregate amount which
is or at any time thereafter may become available for drawing
under all Letters of Credit then outstanding plus (ii) the aggre
gate amount of all drawings under Letters of Credit honored by
Administrative Agent and not theretofore reimbursed by Company
(including any such reimbursement out of the proceeds of Loans
pursuant to subsection 3.3B).
"Leverage Ratio" means, as of any date of determina
tion, the ratio of (y) Total Funded Debt on such date to (z)
Consolidated EBITDA for the consecutive four full Fiscal Quarters
most recently ended on or prior to such date.
"License Revocation" means the revocation, failure to
renew or suspension of, or the appointment of a receiver, super
visor or similar official with respect to, any casino, gambling
or gaming license issued by any Gaming Authority covering any
casino, gambling or gaming facility owned or operated by Company,
any of its Subsidiaries.
"Lien" means any lien, mortgage, pledge, assignment,
security interest, charge or encumbrance of any kind (including
any conditional sale or other title retention agreement, any
lease in the nature thereof, and any agreement to give any
security interest) and any option, trust or other preferential
arrangement having the practical effect of any of the foregoing.
"LLC Membership Interest Security Agreements" means
(i) those certain Security Agreements between each of PRI and
PRM, and Administrative Agent, dated as of August 25, 1995,
executed and delivered pursuant to the Original Credit Agreement,
as each such agreement has been amended to the date hereof and
each such agreement may hereafter be amended, supplemented or
otherwise modified from time to time and (ii) those certain LLC
Membership Interest Security Agreements between certain
Subsidiaries of Company and Administrative Agent, dated as of
December 16, 1996, executed and delivered pursuant to the
Existing Credit Agreement, as each such Agreement may hereafter
be amended, supplemented or otherwise modified from time to time.
"Loan Documents" means this Agreement, the Notes, the
Letters of Credit (and any applications for, or reimbursement
agreements or other documents or certificates executed by Company
in favor of Administrative Agent relating to, the Letters of
Credit), the Collateral Account Agreement, the Collateral
Documents, the New Loan Documents and all other instruments or
documents executed in connection therewith.
"Loan Exposure" means, with respect to any Lender as of
any date of determination (i) prior to the termination of the
Commitments, that Lender's Commitments and (ii) after the
termination of the Commitments, the sum of (a) the aggregate
outstanding principal amount of the Loans of that Lender plus
(b) in the event that Lender is Administrative Agent, the aggre
gate Letter of Credit Usage in respect of all Letters of Credit
issued by that Lender (in each case net of any participations
purchased by other Lenders in such Letters of Credit or any
unreimbursed drawings thereunder) plus (c) the aggregate amount
of all participations purchased by that Lender in any outstanding
Letters of Credit or any unreimbursed drawings under any Letters
of Credit plus (d) in the case of Swing Line Lender, the aggre
gate outstanding principal amount of all Swing Line Loans (net of
any participations therein purchased by other Lenders) plus
(e) the aggregate amount of all participations purchased by that
Lender in any outstanding Swing Line Loans.
"Loan Party" means any of Company and any Guarantor and
"Loan Parties" means Company and all Guarantors, collectively.
"Loans" means, collectively, all Revolving Loans made
pursuant to subsection 2.1A and all Swing Line Loans made
pursuant to subsection 2.1B.
"Louisiana Facilities" means the Louisiana Premises and
the Improvements made thereon, along with all other related
personal and mixed property located thereon or related thereto,
including, without limitation, two three-deck paddle-▇▇▇▇▇▇▇
riverboat casinos (individually known as the "Players Riverboat
III" and the "Star Casino"), a docking site, floating
entertainment island and floating administrative center (includ
ing all Barges), a hotel, all related restaurant, bar, recreation
and other facilities and all FF&E and other personal property
located therein, as more fully described in the "Business" and
"Properties" sections of the 10-K.
"Louisiana Gaming Authorities" means, without limita
tion, the Louisiana Gaming Control Board, the Riverboat Gaming
Enforcement Division of the Louisiana State Police and any other
applicable Governmental Authority involved in the regulation of
gaming and gaming activities conducted by Company or any of its
Subsidiaries in the State of Louisiana.
"Louisiana Gaming Control Act" means the Louisiana
Riverboat Economic Development and Gaming Control Act, as from
time to time amended, or any successor provision of law, and the
regulations promulgated thereunder.
"Louisiana Hotel Facilities" means the Louisiana Hotel
Premises and the Improvements made thereon, along with all other
related personal and mixed property located thereon or related
thereto, including without limitation a hotel building and other
facilities and all FF&E and other personal property located
therein.
"Louisiana Hotel Mortgage" means that certain Act of
Mortgage, Fixture Filing and Security Agreement with Pledge and
Assignment of Leases and Rents, by and among PLC, as mortgagor
and owner, in favor of Administrative Agent, as mortgagee, dated
January 9, 1998, as it has been amended to the date hereof and as
it may hereafter be amended, supplemented or otherwise modified
from time to time.
"Louisiana Hotel Premises" means the real property
owned in fee by Company or its Subsidiaries with respect to the
property formerly known as the Holiday Inn located in Lake
Charles, Louisiana, as more fully described on Schedule A-3
hereto.
"Louisiana Mortgage" means that certain Act of ▇▇▇▇
▇▇▇▇, Fixture Filing and Security Agreement with Pledge and
Assignment of Leases and Rents, among PLC, as mortgagor and
owner, in favor of Administrative Agent, as mortgagee, dated as
of August 25, 1995, executed and delivered pursuant to the
Original Credit Agreement, as it has been amended to the date
hereof and as it may hereafter be amended, supplemented or
otherwise modified from time to time.
"Louisiana Premises" means the real property owned in
fee or leased by Company or its respective Subsidiaries with
respect to the property commonly known as the Lake ▇▇▇▇▇▇▇
complex in Lake Charles, Louisiana, as more fully described on
Schedule A-2 hereto.
"Louisiana Ships" means each of the Star Casino, the
Players Riverboat III and any other riverboat casino subsequently
acquired by Company or any of its Subsidiaries and operated out
of the Louisiana Facilities, in each case, including the engines,
boilers, machinery, masts, derricks, drawworks, spars, boats,
anchors, cables, chains, tackle, fittings, pumping equipment and
all other components and appurtenances thereto, whether now owned
or hereafter acquired, whether on board or not, and whether
installed by Company, PLC, SSP or any other Person, and also any
and all changes, improvements, alterations, additions, renewals
and replacements at any time made in or to such units or any
parts thereof.
"Managing Agent" means WFB.
"Margin Stock" has the meaning assigned to that term in
Regulation U of the Board of Governors of the Federal Reserve
System as in effect from time to time.
"Maryland Heights Facilities" means the riverboat
casino entertainment complex in Maryland Heights, Missouri
operated by the Riverside Joint Venture as more fully described
in the "Business" and "Properties" sections of the 10-K.
"Maryland Heights Premises" means the real property
owned in fee or leased by the Riverside Joint Venture with
respect to the property commonly known as the Players Island
Casino at Riverport Casino Center in Maryland Heights, St. Louis
County, Missouri.
"Maryland Heights Subsidiaries" means PMH, PMHN and
PMHLP.
"Material Adverse Effect" means (i) a material adverse
effect upon the business, operations, properties, assets, condi
tion (financial or otherwise) or prospects of Company and its
Subsidiaries, taken as a whole, or (ii) the impairment of the
ability of Company to perform, in any material respect, or of
Administrative Agent or Lenders to enforce, the Obligations.
"Missouri Gaming Act" means Sections 313.800 - 313.850
of the Revised Statutes of Missouri (Excursion Gambling Boats).
"Missouri Gaming Authority" means Missouri Gaming
Commission.
"Missouri Pledge and Security Agreements" means (i)
that certain Company Pledge Agreement dated as of August 25, 1995
between Company and Administrative Agent, (ii) the PHI Pledge
Agreement, (iii) that certain Subsidiary Security Agreement
(Missouri) dated as of December 16, 1996 between PMHN, PMH,
PMHLP, and Administrative Agent, (iv) that certain Partnership
Interest Security Agreement dated as of December 16, 1996 between
PMH and Administrative Agent, (v) that certain Partnership
Interest Security Agreement dated as of December 16, 1996 between
PMHN and Administrative Agent, and (vi) that certain Joint
Venture Interest Security Agreement dated as of December 16,
1996, between PMHLP and Administrative Agent.
"Mortgage Amendments" has the meaning assigned thereto
in subsection 4.1G.
"Mortgages" means the Illinois Mortgage, the Louisiana
Mortgage and the Louisiana Hotel Mortgage.
"Multiemployer Plan" means a "multiemployer plan", as
defined in Section 3(37) of ERISA, to which Company or any of its
ERISA Affiliates is contributing, or ever has contributed, or to
which Company or any of its ERISA Affiliates has, or ever has
had, an obligation to contribute.
"Net Cash Proceeds" means Cash Proceeds received from
any Asset Sale or upon the occurrence of an Event of Loss, in
each case, net of the sum of all bona fide direct fees, commis
sions and other expenses incurred in connection therewith less
the amount of (estimated reasonably and in good faith by Company)
income, franchise, sales and other applicable taxes required to
be paid by Company or any of its Subsidiaries as a result thereof
within two years of the date of receipt of any such Cash
Proceeds.
"New Loan Documents" means this Agreement, the Notes,
the Mortgage Amendments, the Ship Mortgage Amendments, the
Acknowledgement and Confirmation, the Amendments to Missouri
Pledge and Security Agreements and all other new agreements to be
executed by the Loan Parties on the Effective Date. The New Loan
Documents to be executed by each Loan Party are set forth on
Schedule 1.1(b) hereto.
"Noncontinuing Lenders" and "Noncontinuing Lender"
means the persons identified on Schedule 1.1(c) hereto.
"Notes" means, collectively, the Revolving Notes and
the Swing Line Notes, as they may be amended, supplemented, or
otherwise modified from time to time.
"Notice of Borrowing" means a notice substantially in
the form of Exhibit I annexed hereto delivered by Company to
Administrative Agent pursuant to subsection 2.1C with respect to
a proposed borrowing.
"Notice of Conversion/Continuation" means a notice
substantially in the form of Exhibit II annexed hereto delivered
by Company to Administrative Agent pursuant to subsection 2.2D
with respect to a proposed conversion or continuation of the
applicable basis for determining the interest rate with respect
to the Loans specified therein.
"Notice of Issuance of Letter of Credit" means a notice
substantially in the form of Exhibit III annexed hereto delivered
by Company to Administrative Agent pursuant to subsection 3.1B(i)
with respect to the proposed issuance of a Letter of Credit.
"Notification Date" has the meaning assigned to that
term in subsection 3.1A(iii).
"Obligations" means all obligations of every nature of
any Loan Party, from time to time owed to Administrative Agent,
Managing Agent, Arranger, Lenders or any of them under the Loan
Documents, whether for principal, interest, reimbursement of
amounts drawn under Letters of Credit, fees, expenses,
indemnification or otherwise.
"Officers' Certificate" means, as applied to any
corporation, a certificate executed on behalf of such corporation
by its chairman of the board (if an officer) or president, vice
presidents, chief financial officer or treasurer; provided that
every Officers' Certificate with respect to the compliance with a
condition precedent to the making of any Loans hereunder shall
include (i) a statement that the officer or officers making or
giving such Officers' Certificate have read such condition and
any definitions or other provisions contained in this Agreement
relating thereto, (ii) a statement that, in the opinion of the
signers, they have made or have caused to be made such examina
tion or investigation as is necessary to enable them to express
an informed opinion as to whether or not such condition has been
complied with, and (iii) a statement as to whether, in the
opinion of the signers, such condition has been complied with.
"Other Allowed Indebtedness (Secured)" means Indebted
ness of the Company or any Subsidiary that consists of Purchase
Money Debt and Capital Leases existing on the Effective Date plus
other Purchase Money Debt and Capital Leases incurred after the
Effective Date (including such Indebtedness incurred before the
date of its acquisition by a Subsidiary acquired by Company after
the Effective Date) in an aggregate outstanding principal amount
not to exceed $5,000,000 at any time.
"Other Allowed Indebtedness (Unsecured)" means Indebt
edness of the Company or any Subsidiary which consists of
(i) Indebtedness outstanding under the Senior Notes and (ii) all
other unsecured Indebtedness, whether existing on the Effective
Date or subsequently incurred (including such Indebtedness
incurred before the date of its acquisition by a Subsidiary
acquired after the Effective Date), of Company or any of its
Subsidiaries, in an aggregate outstanding principal amount not to
exceed in the case of this clause (ii) $15,000,000 at any time.
"Participant Subsidiary" has the meaning assigned to
that term in subsection 6.10B.
"Partnership Interest Security Agreements" means
(i) those certain Security Agreements between each of PRLLC and
PRM, and Administrative Agent, each dated as of August 25, 1995,
executed and delivered pursuant to the Original Credit Agreement,
as each such agreement has been amended to the date hereof and as
each such agreement may hereafter be amended, supplemented or
otherwise modified from time to time, and (ii) those certain
Partnership Interest Security Agreements between each of PMH,
PMHN and SIRCC and Administrative Agent, each dated as of
December 16, 1996, executed and delivered pursuant to the
Existing Credit Agreement, as each such agreement may hereafter
be amended, supplemented or otherwise modified from time to time.
"PBD" means Players Bluegrass Downs, Inc., a Kentucky
corporation.
"PBGC" means the Pension Benefit Guaranty Corporation
(or any successor thereto).
"PCI" means PCI, Inc., a Nevada corporation.
"PDI" means Players Development, Inc., a Nevada
corporation.
"PEI" means Players Entertainment, Inc., a Nevada
corporation.
"Pension Plan" means any Employee Benefit Plan, other
than a Multiemployer Plan, which is subject to Section 412 of the
Internal Revenue Code or Section 302 of ERISA.
"Permitted Encumbrances" means the following types of
Liens (other than any such Lien imposed pursuant to Section
401(a)(29) or 412(n) of the Internal Revenue Code or by ERISA):
(i) Liens for taxes, assessments or governmental
charges or claims the payment of which is not, at the time,
required by subsection 6.3;
(ii) statutory Liens of landlords and Liens of
carriers, warehousemen, mechanics and materialmen and other
Liens imposed by law incurred in the ordinary course of
business for sums not yet delinquent or being contested in
good faith, if such reserve or other appropriate provision,
if any, as shall be required by GAAP shall have been made
therefor;
(iii) Liens incurred or deposits made in the
ordinary course of business in connection with workers'
compensation, unemployment insurance and other types of
social security, or to secure the performance of tenders,
statutory obligations, surety and appeal bonds, bids,
leases, government contracts, trade contracts, performance
and return-of-money bonds and other similar obligations
(exclusive of obligations for the payment of borrowed
money);
(iv) any attachment or judgment Lien not constituting
an Event of Default under subsection 8.8;
(v) leases or subleases granted to others (including,
without limitation, any Subsidiary of Company) not inter
fering in any material respect with the ordinary conduct of
the business of Company or any of its Subsidiaries; and
(vi) easements, rights-of-way, restrictions, minor
defects, encroachments or irregularities in title and other
similar immaterial charges or encumbrances that (a) arise
prior to the Effective Date and are accepted by Administra
tive Agent as exceptions to the Title Policies or (b) arise
after the Effective Date and would not, either individually
or in the aggregate, result in a Material Adverse Effect.
"Person" means and includes natural persons, corpora
tions, limited partnerships, general partnerships, joint stock
companies, Joint Ventures, associations, companies, trusts,
banks, trust companies, land trusts, business trusts, limited
liability companies or other organizations, whether or not legal
entities, and governments and agencies and political subdivisions
thereof.
"PHI" means Players Holding, Inc., a Nevada corporation
wholly owned by Company.
"PHI Guaranty" means the Guaranty dated as of
December 16, 1996, executed and delivered by PHI in favor of
Administrative Agent pursuant to the Existing Credit Agreement,
as such Guaranty may hereafter be amended, supplemented or
otherwise modified from time to time.
"PHI Pledge Agreement" means that certain Pledge
Agreement between PHI and Administrative Agent dated as of
December 16, 1996, executed and delivered pursuant to the
Existing Credit Agreement, as such Pledge Agreement may hereafter
be amended, supplemented or otherwise modified from time to time.
"PLC" means Players Lake ▇▇▇▇▇▇▇, LLC, a Louisiana
limited liability company.
"PLCI" means Players LC, Inc., a Nevada corporation.
"PLCR" means Players Lake ▇▇▇▇▇▇▇ Riverboat, Inc., a
Louisiana corporation.
"PMGC" means Players Mesquite Golf Club, Inc., a Nevada
corporation.
"PMH" means Players Maryland Heights, Inc., a Missouri
corporation.
"PMHLP" means Players MH, L.P., a Missouri limited
partnership.
"PMHN" means Players Maryland Heights Nevada, Inc., a
Nevada corporation.
"PML" means Players Mesquite Land, Inc., a Nevada
corporation.
"PNEV" means Players Nevada, Inc., a Nevada
corporation.
"PRES" means Players Resources, Inc., a Nevada
corporation.
"Policies of Insurance" means the insurance required to
be obtained and maintained by Company throughout the term of this
Agreement pursuant to subsection 6.4B hereof and Schedules 6.4(a)
and 6.4(b) annexed hereto.
"Potential Event of Default" means a condition or event
that, after notice or lapse of time or both, would constitute an
Event of Default.
"Premises" means, collectively, the Illinois Premises,
the Louisiana Premises and the Louisiana Hotel Premises.
"PRI" means Players Riverboat, Inc., a Nevada
corporation.
"Pricing Determination Certificate" means an Officers'
Certificate of Company delivered on the Effective Date pursuant
to subsection 4.1T and thereafter pursuant to subsection
6.1(xvii) setting forth in reasonable detail (i) the Consolidated
EBITDA for the four consecutive Fiscal Quarter period ending on
the date of such Officers' Certificate, (ii) the Leverage Ratio
as of the last day of such period, and (iii) the average daily
Total Utilization of Commitments for the 30 day period ending on
the date of such Officers' Certificate.
"Prime Rate" means the rate that WFB announces from
time to time at its principal office in San Francisco, California
as its prime lending rate, as in effect from time to time. The
Prime Rate is a reference rate and does not necessarily represent
the lowest or best rate actually charged to any customer. WFB or
any other Lender may make commercial loans or other loans at
rates of interest at, above or below the Prime Rate.
"PRLLC" means Players Riverboat, LLC, a Louisiana
limited liability company.
"PRM" means Players Riverboat Management, Inc., a
Nevada corporation.
"Pro Rata Share" means, with respect to each Lender,
the percentage obtained by dividing (x) the Commitments of that
Lender by (y) the aggregate Commitments of all Lenders, as such
percentage may be adjusted by assignments permitted pursuant to
subsection 10.1. The initial Pro Rata Share of each Lender is
set forth opposite the name of that Lender in Schedule 2.1
annexed hereto.
"PSI" means Players Services, Inc., a New Jersey
corporation.
"Purchase Money Debt" means Indebtedness incurred to
finance the acquisition of assets pertaining to any business
reasonably related to any of Company's or its Subsidiaries'
gaming business and necessary for, in support or anticipation of
and ancillary to or in preparation for such gaming business
provided that the amount of such Indebtedness does not exceed
eighty percent (80%) of the purchase price of the asset acquired
and provided further that such Indebtedness is incurred at the
time of, or within 30 days following, such acquisition and
provided still further that any Lien securing such Indebtedness
shall attach only to the asset acquired and not to any other
asset of the obligor of such Indebtedness.
"Railroad" has the meaning assigned to that term in
subsection 6.10D.
"Refunded Swing Line Loans" has the meaning assigned to
that term in subsection 2.1B.
"Regulation D" means Regulation D of the Board of
Governors of the Federal Reserve System, as in effect from time
to time.
"Reimbursement Date" has the meaning assigned to that
term in subsection 3.3B.
"Related Business" means the gaming business (including
parimutuel betting) conducted (or proposed to be conducted) by
Company and its Subsidiaries as of the Effective Date and any and
all reasonably related businesses necessary for, in support or
anticipation of and ancillary to or in preparation for, the
gaming business including, without limitation, the development,
expansion or operation of any casino, hotel, casino/hotel,
resort, casino/resort, riverboat casino, dock casino, any other
type of casino, golf course, retail facility, entertainment
center or similar facility.
"Release" means any release, spill, emission, leaking,
pumping, pouring, injection, escaping, deposit, disposal,
discharge, dispersal, dumping, leaching or migration of Hazardous
Materials into the indoor or outdoor environment (including,
without limitation, the abandonment or disposal of any barrels,
containers or other closed receptacles containing any Hazardous
Materials), or into or out of any Facility, including the
movement of any Hazardous Material through the air, soil, surface
water, groundwater or property.
"Requiring Lender" has the meaning given that term in
Subsection 2.9.
"Requisite Lenders" means two or more Lenders having or
holding not less than sixty-six and two-thirds percent (66-2/3%)
of the Loan Exposure, or if no Loans or Letters of Credit are
outstanding, having not less than sixty-six and two-thirds
percent (66-2/3%) of the Commitments; provided that, at any time
that there shall be only one Lender, such Lender shall constitute
Requisite Lenders.
"Resources Pledge and Security Agreement" means that
certain Pledge and Security Agreement between PRES and Adminis
trative Agent dated as of December 16, 1996, executed and deliv
ered pursuant to the Existing Credit Agreement, as such agreement
may be amended from time to time.
"Responsible Officer" means each of the following offi
cers of Company or any of its Subsidiaries, at the time that any
individual holds any such position: the chief executive officer,
the president, the chief financial officer, the treasurer, any
vice president, the general counsel and the corporate secretary.
"Restricted Payment" means (i) any dividend or other
distribution of items of distribution, direct or indirect, on
account of any class of stock of Company in Company now or
hereafter outstanding, except a distribution payable solely in
interests of that class of stock to the holders of that class,
(ii) any redemption, retirement, sinking fund or similar payment,
purchase or other acquisition for value, direct or indirect, of
any interests of any class of stock of Company now or hereafter
outstanding, (iii) any payment made to retire, or to obtain the
surrender of, any outstanding warrants, options or other rights
to acquire any interests of any class of stock of Company now or
hereafter outstanding, (iv) any payment or prepayment of princi
pal of, premium, if any, or interest on, or redemption, purchase,
retirement, defeasance (including in substance or legal defea
sance), sinking fund or similar payment with respect to, any
subordinated indebtedness, and (v) any payment or prepayment of
principal of, premium, if any, or redemption, purchase, retire
ment or defeasance (including in substance or legal defeasance)
of the outstanding principal of any of the Senior Notes other
than as required under the Indenture (after giving effect to any
mandatory prepayment pursuant to subsection 2.4A(iii)) upon the
occurrence of an Asset Sale or an Event of Loss.
"Revolving Commitment" means the commitment of a Lender
to make Revolving Loans to Company pursuant to subsection 2.1A,
and "Revolving Commitments" means such commitments of all Lenders
in the aggregate.
"Revolving Loans" means the Loans made by Lenders to
Company pursuant to subsection 2.1A and the Existing Revolving
Loans converted into Revolving Loans pursuant to subsection 2.1F.
"Revolving Notes" means the promissory notes of Company
issued pursuant to subsection 2.1E, to evidence the Revolving
Loans of the respective Lenders, substantially in the form of
Exhibit V annexed hereto, as they may be amended, supplemented or
otherwise modified from time to time.
"Riverside Joint Venture" means that certain Joint
Venture between PMHLP and ▇▇▇▇▇▇'▇ for the development and opera
tion of a riverboat casino entertainment complex in Maryland
Heights, Missouri, as more fully described in the "Business" and
"Properties" sections of the 10-K.
"RR" means Riverfront Realty Corporation, an Illinois
corporation.
"Securities" means any stock, shares, partnership
interests, voting trust certificates, certificates of interest or
participation in any profit-sharing agreement or arrangement,
options, warrants, bonds, debentures, notes, or other evidences
of indebtedness, secured or unsecured, convertible, subordinated
or otherwise, or in general any instruments commonly known as
"securities" or any certificates of interest, shares or partici
pations in temporary or interim certificates for the purchase or
acquisition of, or any right to subscribe to, purchase or
acquire, any of the foregoing.
"Securities Act" means the Securities Act of 1933, as
amended from time to time, and any successor statute.
"Senior Notes" means those certain 10-7/8% Senior Notes
Due 2005 of Company, in the original aggregate principal amount
of $150,000,000 issued pursuant to the Indenture, as amended from
time to time.
"Ship Mortgages" means (i) the First Preferred Ship
Mortgage by SSP in favor of the Trustee, for the benefit of
Administrative Agent on behalf of Lenders, dated as of August 25,
1995, executed and delivered pursuant to the Original Credit
Agreement, as such mortgage has been amended to the date hereof
and as such mortgage may hereafter be amended, supplemented or
otherwise modified from time to time and (ii) the First Preferred
Ship Mortgages by each of PLC and SIRCC in favor of the Trustee,
for the benefit of Administrative Agent on behalf of Lenders,
each dated as of December 16, 1996, executed and delivered
pursuant to the Existing Credit Agreement, as such mortgages may
hereafter be amended, supplemented or otherwise modified from
time to time.
"Ship Mortgage Amendments" has the meaning assigned
thereto in subsection 4.1G.
"Ships" means, collectively, the Illinois Ships and the
Louisiana Ships.
"SIRCC" means Southern Illinois Riverboat/Casino
Cruises, Inc., an Illinois corporation.
"SIRCC Pledge Agreement" means that certain Pledge
Agreement between SIRCC and Administrative Agent dated as of
December 16, 1996, executed and delivered pursuant to the
Existing Credit Agreement, as such agreement may be amended from
time to time.
"Solvent" means, with respect to any Person, that as of
the date of determination both (A)(i) the then fair saleable
value of the property of such Person is (y) greater than the
total amount of liabilities (including contingent liabilities
with respect to Indebtedness) of such Person and (z) not less
than the amount that will be required to pay the probable
liabilities on such Person's then existing debts as they become
absolute and matured considering all financing alternatives and
potential asset sales reasonably available to such Person;
(ii) such Person's capital is not unreasonably small in relation
to its business or any contemplated or undertaken transaction;
and (iii) such Person does not intend to incur, or believe (nor
should it reasonably believe) that it will incur, debts beyond
its ability to pay such debts as they become due; and (B) such
Person is "solvent" within the meaning given that term and
similar terms under applicable laws relating to fraudulent
transfers and conveyances. For purposes of this definition, the
amount of any contingent liability at any time shall be computed
as the amount that, in light of all of the facts and circum
stances existing at such time, represents the amount that can
reasonably be expected to become an actual or matured liability.
"SSP" means Showboat Star Partnership, a Louisiana
general partnership.
"Standby Letter of Credit" means any standby letter of
credit or similar instrument issued for the purpose of supporting
(i) Indebtedness of Company or any of its Subsidiaries in respect
of industrial revenue or development bonds or financings,
(ii) workers' compensation liabilities of Company or any of its
Subsidiaries, (iii) the obligations of third party insurers of
Company or any of its Subsidiaries arising by virtue of the laws
of any jurisdiction requiring third party insurers, (iv) obliga
tions with respect to Capital Leases or Operating Leases of
Company or any of its Subsidiaries, and (v) performance, payment,
deposit or surety obligations of Company or any of its Subsid
iaries, in any case if required by law or governmental rule or
regulation or in accordance with custom and practice in the
industry; provided that Standby Letters of Credit may not be
issued for the purpose of supporting (a) trade payables or
(b) any Indebtedness constituting "antecedent debt" (as that term
is used in Section 547 of the Bankruptcy Code.
"Subordinated Indebtedness" means Indebtedness of
Company subordinated in right of payment to the Obligations
pursuant to documentation containing maturities, amortization
schedules, covenants, defaults, remedies, subordination provi
sions and other material terms in form and substance satisfactory
to Administrative Agent and Requisite Lenders.
"Subsidiary" means, with respect to any Person, any
corporation, partnership, association, joint venture or other
business entity of which more than 50% of the total voting power
of shares of stock or other ownership interests entitled (without
regard to the occurrence of any contingency) to vote in the
election of the Person or Persons (whether directors, managers,
trustees or other Persons performing similar functions) having
the power to direct or cause the direction of the management and
policies thereof is at the time owned or controlled, directly or
indirectly, by that Person or one or more of the other Subsid
iaries of that Person or a combination thereof.
"Subsidiary Security Agreements" means (i) those
certain Security Agreements between certain of Company's Subsid
iaries and Administrative Agent each dated as of August 25, 1995,
executed and delivered pursuant to the Original Credit Agreement,
as each such agreement has been amended to the date hereof and as
each such agreement may hereafter be amended, supplemented or
otherwise modified from time to time, including, without limita
tion, by the inclusion of Subsidiaries of Company formed after
the execution thereof, and (ii) those certain Security Agreements
between certain of Company's Subsidiaries and Administrative
Agent each dated as of December 16, 1996, executed and delivered
pursuant to the Existing Credit Agreement, as such agreements may
be amended from time to time.
"Substitute Lender" has the meaning assigned to that
term in subsection 10.1B(iii).
"Swing Line Lender" means WFB, in its capacity as Swing
Line Lender hereunder and any assignee of WFB acting as Swing
Line Lender.
"Swing Line Loan Commitment" means the commitment of
Swing Line Lender to make Swing Line Loans to Company pursuant to
subsection 2.1B.
"Swing Line Loans" means the Loans made by Swing Line
Lender to Company pursuant to subsection 2.1B.
"Swing Line Note" means any promissory note of Company
issued pursuant to subsection 2.1E to evidence the Swing Line
Loans of Swing Line Lender, substantially in the form of Exhibit
VI annexed hereto, as it may be amended, supplemented or
otherwise modified from time to time.
"Tax" or "Taxes" means any present or future tax, levy,
impost, duty, charge, fee, deduction or withholding of any nature
and whatever called, by any Governmental Authority, on whomsoever
and wherever imposed, levied, collected, withheld or assessed;
provided that "Tax on the overall net income" of a Person shall
be construed as a reference to a tax imposed by any Governmental
Authority on all or part of the net income, profits or gains of
that Person (whether worldwide, or only insofar as such income,
profits or gains are considered to arise in or to relate to a
particular jurisdiction, or otherwise).
"10-K" means the annual report of the Company for the
Fiscal Year ended March 31, 1997, filed on Form 10-K with the
Securities and Exchange Commission.
"Title Company" means Chicago Title Insurance Company.
"Title Policies" means Policy Number LA-001-107-50497,
Policy Number 14 0142 107 00000001, Policy Number 29 0010 107
16901, Policy Number 29 0010 107 16902 and Policy Number
LA-01-107-97-197, each issued by the Title Company, insuring
Administrative Agent's interest as mortgagee on certain real
property described therein.
"Total Funded Debt" means, as of any date, the sum
(without duplication) of the outstanding principal amount of
Other Allowed Indebtedness (Secured) as of such date plus the
outstanding principal amount of Other Allowed Indebtedness
(Unsecured) as of such date plus the average daily Total
Utilization of Commitments for the Fiscal Quarter most recently
ended on or prior to such date plus, without duplication,
Contingent Obligations as of such date.
"Total Utilization of Commitments" means, as at any
date of determination, the sum of (i) the aggregate principal
amount of all outstanding Revolving Loans (other than Revolving
Loans made for the purpose of repaying any Refunded Swing Line
Loans or reimbursing the Issuing Lender for any amount drawn
under any Letter of Credit but not yet so applied) plus (ii) the
aggregate principal amount of all outstanding Swing Line Loans
plus (iii) the Letter of Credit Usage.
"Trust Agreement" means the Master Vessel and Collat
eral Trust Agreement between the Trustee and Administrative Agent
on behalf of Lenders, dated as of August 25, 1995, executed and
delivered pursuant to the Original Credit Agreement, as such
agreement has been amended to the date hereof and as such
agreement may hereafter be amended, supplemented or otherwise
modified from time to time.
"Trustee" means WFB, solely in its capacity as trustee
under the Trust Agreement and not in its individual capacity.
"US Documented Barges" means all barges located at or
used in connection with any of the Facilities, whether owned on
the date hereof or subsequently acquired, that are subject to a
valid certificate of documentation issued by the United States
Coast Guard under the laws and regulations of the United States
and are listed on Schedule 5.5.
"WFB" has the meaning assigned to that term in the
first paragraph of this Agreement.
"Withdrawal Period" has the meaning assigned to that
term in subsection 10.1B(iii).
1.2 Accounting Terms; Utilization of GAAP for Purposes of
Calculations Under Agreement.
Except as otherwise expressly provided in this Agree
ment, all accounting terms not otherwise defined herein shall
have the meanings assigned to them in conformity with GAAP.
Financial statements and other information required to be
delivered by Company to Lenders pursuant to clauses (i), (ii) and
(xiii) of subsection 6.1 shall be prepared in accordance with
GAAP as in effect at the time of such preparation (and delivered
together with the reconciliation statements provided for in
subsection 6.1(iv)). Calculations in connection with the defini
tions, covenants and other provisions of this Agreement shall
utilize accounting principles and policies in conformity with
those used to prepare the financial statements referred to in
subsection 5.3.
1.3 Other Definitional Provisions.
References to "Sections" and "subsections" shall be to
Sections and subsections, respectively, of this Agreement unless
otherwise specifically provided. Any of the terms defined in
subsection 1.1 may, unless the context otherwise requires, be
used in the singular or the plural, depending on the reference.
SECTION 2.
AMOUNTS AND TERMS OF COMMITMENTS AND LOANS
2.1 Commitments; Making of Loans; Notes.
A. Revolving Loans. Subject to the terms and conditions
of this Agreement and in reliance upon the representations and
warranties of the Loan Parties set forth in the Loan Documents,
each Lender hereby severally agrees, subject to the limitations
set forth below with respect to the maximum amount of Loans
permitted to be outstanding from time to time, to lend to Company
from time to time during the period from the Effective Date to
but excluding the Commitment Termination Date an aggregate amount
not at any time outstanding exceeding such Lender's Pro Rata
Share of the aggregate amount of the Revolving Commitments to be
used for the purposes identified in subsection 2.5A(i). The
original amount of each Lender's Revolving Commitment is set
forth opposite its name on Schedule 2.1 annexed hereto, and the
aggregate original amount of the Revolving Commitments is
$80,000,000; provided that the Revolving Commitments of Lenders
shall be adjusted to give effect to any assignments of the
Revolving Commitments pursuant to subsection 10.1B; and provided
further that the amount of the Revolving Commitments shall be
reduced from time to time by the amount of any reductions thereto
made pursuant to subsections 2.4A and 2.4B. Each Lender's
Revolving Commitment shall expire on the Commitment Termination
Date and all Revolving Loans and all other amounts owed hereunder
with respect to the Revolving Loans and the Revolving Commitments
shall be paid in full no later than that date. Loans made by
Lenders pursuant to this subsection 2.1A are described herein as
"Revolving Loans." Amounts borrowed under this subsection 2.1A
may be repaid and reborrowed (subject to compliance with Section
4) to but excluding the Commitment Termination Date.
B. Swing Line Loans. Swing Line Lender hereby agrees,
subject to the limitations set forth below with respect to the
maximum amount of Swing Line Loans permitted to be outstanding
from time to time and subject to the other terms and conditions
hereof, to make a portion of the Revolving Commitments available
to Company from time to time during the period from the Effective
Date to but excluding the fifth Business Day prior to the Commit
ment Termination Date by making Swing Line Loans to Company in an
aggregate amount not exceeding the amount of the Swing Line Loan
Commitment to be used for the purposes identified in subsection
2.5A(iv), notwithstanding the fact that such Swing Line Loans,
when aggregated with Swing Line Lender's outstanding Revolving
Loans and Swing Line Lender's Pro Rata Share of the Letter of
Credit Usage then in effect, may exceed Swing Line Lender's
Revolving Commitment. The original amount of the Swing Line Loan
Commitment is $3,000,000; provided that any reduction of the
Commitments made pursuant to subsection 2.4A or 2.4B which
reduces the aggregate Revolving Commitments to an amount less
than the then current amount of the Swing Line Loan Commitment
shall result in an automatic corresponding reduction of the Swing
Line Loan Commitment to the amount of the Revolving Commitments,
as so reduced, without any further action on the part of Company
or Swing Line Lender. Each Swing Line Loan shall be due and
payable not more than five Business Days after the Funding Date
of such Swing Line Loan. The Swing Line Loan Commitment shall
expire on the fifth Business Day prior to the Commitment
Termination Date and all Swing Line Loans and all other amounts
owed hereunder with respect to the Swing Line Loans shall be paid
in full no later than that date. Amounts borrowed under this
subsection 2.1B may be repaid and reborrowed to but excluding the
fifth Business Day prior to the Commitment Termination Date.
Swing Line Lender shall not be obligated to make any Swing Line
Loans if it has elected not to do so after the occurrence and
during the continuation of a Potential Event of Default of which
it is aware or an Event of Default.
On Friday of each week, Swing Line Lender will notify
the Administrative Agent of the amount of Swing Line Loans then
outstanding and the Administrative Agent shall notify each Lender
of the amount of Swing Line Loans then outstanding.
Anything contained in this Agreement to the contrary
notwithstanding, the Swing Line Loans and the Swing Line Loan
Commitment shall be subject to the limitation that in no event
shall the Total Utilization of Commitments at any time exceed the
Revolving Commitments then in effect.
With respect to any Swing Line Loans which have not
been voluntarily prepaid by Company pursuant to subsection
2.4B(i), Swing Line Lender may, at any time in its sole and
absolute discretion, deliver to Lenders (with a copy to Company),
no later than 8:30 A.M. (Pacific time) on the first Business Day
in advance of the proposed Funding Date, a notice (which shall be
deemed to be a Notice of Borrowing given by Company) requesting
Lenders to make Revolving Loans that are Base Rate Loans on such
Funding Date in an amount equal to the amount of such Swing Line
Loans (the "Refunded Swing Line Loans") outstanding on the date
such notice is given which Swing Line Lender requests Lenders to
prepay. Anything contained in this Agreement to the contrary
notwithstanding, (i) the proceeds of Revolving Loans made by
Lenders other than Swing Line Lender shall be immediately
delivered to Swing Line Lender (and not to Company) and applied
to repay a corresponding portion of the Refunded Swing Line Loans
and (ii) on the day such Revolving Loans are made, Swing Line
Lender's Pro Rata Share of the Refunded Swing Line Loans shall be
deemed to be paid with the proceeds of a Revolving Loan made by
Swing Line Lender, and such portion of the Swing Line Loans
deemed to be so paid shall no longer be outstanding as Swing Line
Loans and shall no longer be due under the Swing Line Note of
Swing Line Lender but shall instead constitute part of Swing Line
Lender's outstanding Revolving Loans and shall be due under the
Revolving Note of Swing Line Lender. Company hereby authorizes
Swing Line Lender to charge Company's account with Swing Line
Lender (up to the amount available in each such account) in order
to immediately pay Swing Line Lender the amount of the Refunded
Swing Line Loans to the extent the proceeds of such Revolving
Loans made by Lenders, including the Revolving Loan deemed to be
made by Swing Line Lender, are not sufficient to repay in full
the Refunded Swing Line Loans. If any portion of any such amount
paid (or deemed to be paid) to Swing Line Lender should be
recovered by or on behalf of Company from Swing Line Lender in
bankruptcy, by assignment for the benefit of creditors or other
wise, the loss of the amount so recovered shall be ratably shared
among all Lenders in the manner contemplated by subsection 10.5.
If, as a result of any bankruptcy or similar proceeding
with respect to Company, Revolving Loans are not made pursuant to
this subsection 2.1B in an amount sufficient to repay any amounts
owed to Swing Line Lender in respect of any outstanding Swing
Line Loans, each Lender shall be deemed to, and hereby agrees to,
have purchased a participation in such outstanding Swing Line
Loans in an amount equal to its Pro Rata Share (calculated with
out giving effect to clauses (d) and (e) of the definition of
Loan Exposure) of the unpaid amount together with accrued
interest thereon. Upon one Business Day's notice from Swing Line
Lender, each Lender shall deliver to Swing Line Lender an amount
equal to its respective participation in same day funds at the
Funding and Payment Office. In order to evidence such partici
pation each Lender agrees to enter into a participation agreement
at the request of Swing Line Lender in form and substance reason
ably satisfactory to all parties. In the event any Lender fails
to make available to Swing Line Lender the amount of such
Lender's participation as provided in this paragraph, Swing Line
Lender shall be entitled to recover such amount on demand from
such Lender together with interest thereon at the rate
customarily used by Swing Line Lender for the correction of
errors among banks for three Business Days and thereafter at the
Base Rate. In the event Swing Line Lender receives a payment of
any amount in which other Lenders have purchased participations
as provided in this paragraph, Swing Line Lender shall promptly
distribute to each such other Lender its Pro Rata Share of such
payment.
Anything contained herein to the contrary notwith
standing, each Lender's obligation to make Revolving Loans for
the purpose of repaying any Refunded Swing Line Loan pursuant to
the second preceding paragraph and each Lender's obligation to
purchase a participation in any unpaid Swing Line Loan pursuant
to the immediately preceding paragraph shall be absolute and
unconditional and shall not be affected by any circumstance,
including without limitation (a) any set-off, counterclaim, re
coupment, defense or other right which such Lender may have
against Swing Line Lender, Company or any other Person for any
reason whatsoever; (b) the occurrence or continuation of an Event
of Default or a Potential Event of Default; (c) any adverse
change in the business, operations, properties, assets, condition
(financial or otherwise) or prospects of Company or any of its
Subsidiaries; (d) any breach of this Agreement or any other Loan
Document by any party thereto; or (e) any other circumstance,
happening or event whatsoever, whether or not similar to any of
the foregoing; provided if such unpaid Swing Line Loan increased
Total Utilization of Commitments (after giving effect to the
repayment of any Revolving Loan with the proceeds of such Swing
Line Loan), such obligation of each Lender is subject to the
condition that one of the following must have occurred:
(X) Swing Line Lender did not have actual knowledge that any of
the conditions under Section 4 to the making of the applicable
unpaid Swing Line Loans were not satisfied at the time such
unpaid Swing Line Loans were made, (Y) such Lender had actual
knowledge by receipt of any notices required to be delivered to
Lenders pursuant to subsection 6.1(x) or otherwise, that any such
condition had not been satisfied and such Lender failed to notify
Swing Line Lender in writing that it had no obligation to make
Revolving Loans until such condition was satisfied (any such
notice to be effective as of the date of receipt thereof by Swing
Line Lender), or (Z) the satisfaction of any such condition not
satisfied had been waived in accordance with subsection 10.6
prior to or at the time such unpaid Swing Line Loans were made.
C. Borrowing Mechanics. Revolving Loans made on any
Funding Date (other than Revolving Loans made pursuant to a
request by Swing Line Lender pursuant to subsection 2.1B for the
purpose of repaying any Refunded Swing Line Loans or Revolving
Loans made pursuant to subsection 3.3B for the purpose of
reimbursing the Issuing Lender for the amount of a drawing under
a Letter of Credit issued by it) shall be in an aggregate minimum
amount of $500,000 and integral multiples of $100,000 in excess
of that amount; provided that Revolving Loans made on any Funding
Date as Eurodollar Rate Loans with a particular Interest Period
shall be in an aggregate minimum amount of $5,000,000 and
integral multiples of $1,000,000 in excess of that amount. Swing
Line Loans made on any Funding Date shall be in an aggregate
minimum amount of $500,000 and integral multiples of $100,000 in
excess of that amount. Whenever Company desires that Lenders
make Revolving Loans it shall deliver to Administrative Agent a
Notice of Borrowing no later than 8:30 A.M. (Pacific time) at
least three Business Days in advance of the proposed Funding Date
(in the case of a Eurodollar Rate Loan) or at least one Business
Day in advance of the proposed Funding Date (in the case of a
Base Rate Loan). Whenever Company desires that Swing Line Lender
make a Swing Line Loan, it shall deliver to Administrative Agent
a Notice of Borrowing no later than 8:30 A.M. (Pacific time) on
the proposed Funding Date. Each Notice of Borrowing shall
specify (i) the proposed Funding Date (which shall be a Business
Day), (ii) the amount and type of Loans requested, (iii) in the
case of Swing Line Loans and any Revolving Loans made on the
Effective Date, that such Loans shall be Base Rate Loans, (iv) in
the case of any Revolving Loans not made on the Effective Date,
whether such Loans shall be Base Rate Loans or Eurodollar Rate
Loans, and (v) in the case of any Revolving Loans requested to be
made as Eurodollar Rate Loans, the initial Interest Period
requested therefor. Revolving Loans may be continued as or
converted into Base Rate Loans and Eurodollar Rate Loans in the
manner provided in subsection 2.2D. In lieu of delivering the
above-described Notice of Borrowing, Company may give Adminis
trative Agent telephonic notice by the required time of any
proposed borrowing under this subsection 2.1C; provided that such
notice shall be promptly confirmed in writing by delivery of a
Notice of Borrowing to Administrative Agent on or before the
applicable Funding Date.
Neither Administrative Agent nor any Lender shall incur
any liability to Company in acting upon any telephonic notice
referred to above that Administrative Agent believes in good
faith to have been given by a duly authorized officer or other
person authorized to borrow on behalf of Company or for otherwise
acting in good faith under this subsection 2.1C, and upon funding
of Loans by Lenders in accordance with this Agreement pursuant to
any such telephonic notice Company shall have effected Loans
hereunder.
Company shall notify Administrative Agent prior to the
funding of any Loans in the event that any of the matters to
which Company is required to certify in the applicable Notice of
Borrowing is no longer true and correct as of the applicable
Funding Date, and the acceptance by Company of the proceeds of
any Loans shall constitute a re-certification by Company, as of
the applicable Funding Date, as to the matters to which Company
is required to certify in the applicable Notice of Borrowing.
Except as otherwise provided in subsections 2.6B, 2.6C
and 2.6G, a Notice of Borrowing for a Eurodollar Rate Loan (or
telephonic notice in lieu thereof) shall be irrevocable on and
after the issuance thereof, and Company shall be bound to make a
borrowing in accordance therewith.
D. Disbursement of Funds. All Revolving Loans under this
Agreement shall be made by Lenders simultaneously and propor
tionately to their respective Pro Rata Shares, it being under
stood that no Lender shall be responsible for any default by any
other Lender in that other Lender's obligation to make a Loan
requested hereunder nor shall the Commitment of any Lender be
increased or decreased as a result of a default by any other
Lender in that other Lender's obligation to make a Loan requested
hereunder. Promptly after receipt by Administrative Agent of a
Notice of Borrowing pursuant to subsection 2.1C (or telephonic
notice in lieu thereof), Administrative Agent shall notify each
Lender or Swing Line Lender, as the case may be, of the proposed
borrowing. Each Lender shall make the amount of its Loan
available to Administrative Agent not later than 11:00 A.M.
(Pacific time) on the applicable Funding Date, and Swing Line
Lender shall make the amount of its Swing Line Loan available to
Administrative Agent not later than 11:00 A.M. (Pacific time) on
the applicable Funding Date, in each case in same day funds in
Dollars, at the Funding and Payment Office. Except as provided
in subsection 2.1B or subsection 3.3B with respect to Revolving
Loans used to repay Refunded Swing Line Loans or to reimburse
Administrative Agent for the amount of a drawing under a Letter
of Credit issued by it, upon satisfaction or waiver of the
conditions precedent specified in subsections 4.1 (in the case of
Loans made or converted on the Effective Date), and 4.4 (in the
case of all Loans), Administrative Agent shall make the proceeds
of such Loans available to Company on the applicable Funding Date
by causing an amount of same day funds in Dollars equal to the
proceeds of all such Loans received by Administrative Agent from
Lenders or Swing Line Lender, as the case may be, to be credited
to the account of Company at the Funding and Payment Office.
Unless Administrative Agent shall have been notified by
any Lender prior to the Funding Date for any Revolving Loans that
such Lender does not intend to make available to Administrative
Agent the amount of such Lender's Loan requested on such Funding
Date, Administrative Agent may assume that such Lender has made
such amount available to Administrative Agent on such Funding
Date and Administrative Agent may, in its sole discretion, but
shall not be obligated to, make available to Company a correspond
ing amount on such Funding Date. If such corresponding amount is
not in fact made available to Administrative Agent by such
Lender, Administrative Agent shall be entitled to recover such
corresponding amount on demand from such Lender together with
interest thereon, for each day from such Funding Date until the
date such amount is paid to Administrative Agent, at the custo
▇▇▇▇ rate set by Administrative Agent for the correction of
errors among banks for three Business Days and thereafter at the
Base Rate. If such Lender does not pay such corresponding amount
forthwith upon Administrative Agent's demand therefor, Adminis
trative Agent shall promptly notify Company and Company shall
immediately pay such corresponding amount to Administrative Agent
together with interest thereon, for each day from such Funding
Date until the date such amount is paid to Administrative Agent,
at the rate payable under this Agreement for Base Rate Loans of
the type then being repaid by Company. Nothing in this
subsection 2.1D shall be deemed to relieve any Lender from its
obligation to fulfill its Commitments hereunder or to prejudice
any rights that Company may have against any Lender as a result
of any default by such Lender hereunder.
E. Notes. On the Effective Date, the Company shall
execute and deliver to each Lender (or to Administrative Agent
for that Lender) a Revolving Note to evidence that Lender's
Revolving Loans, in the principal amount of that Lender's
Revolving Commitment and with other appropriate insertions, and
the Company shall execute and deliver to Swing Line Lender a
Swing Line Note to evidence Swing Line Lender's Swing Line Loans,
in the principal amount of the Swing Line Loan Commitment and
with other appropriate insertions. Upon the execution and
delivery to any Lender or Swing Line Lender of Notes pursuant to
this subsection 2.1E, the Revolving Note (and any Tranche A Note,
Tranche B Note and Tranche C Note, as each such term is defined
in the Existing Credit Agreement) or Swing Line Note, as the case
may be, that were executed and delivered to such Lender or Swing
Line Lender pursuant to the Existing Credit Agreement shall be
null and void, and such Lender or Swing Line Lender shall
promptly return such Revolving Note or Swing Line Note to Company
for cancellation.
Administrative Agent may deem and treat the payee of
any Note as the owner thereof for all purposes hereof unless and
until a Lender Assignment Agreement effecting the assignment or
transfer thereof shall have been accepted by Administrative Agent
as provided in subsection 10.1B(ii). Any request, authority or
consent of any person or entity who, at the time of making such
request or giving such authority or consent, is the holder of any
Note shall be conclusive and binding on any subsequent holder,
assignee or transferee of that Note or of any Note or Notes
issued in exchange therefor.
F. Conversion of Existing Revolving Loans into Revolving
Loans. Upon satisfaction or written waiver by Requisite
Lenders of the conditions set forth in subsections 4.1 and 4.4,
as of the Effective Date all Revolving Loans (as defined in the
Existing Credit Agreement) outstanding under the Existing Credit
Agreement as of, and at the time of, the Effective Date
("Existing Revolving Loans") shall be converted into and deemed
to be Revolving Loans for all purposes under this Agreement. Any
amounts of accrued interest or other amounts owed (whether or not
presently due and payable) by Company to the Lenders under or in
respect of the Existing Revolving Loans shall, as of the Effec
tive Date, continue to be due and payable to the Lenders under
the Revolving Notes issued to the Lenders hereunder. The conver
sion of the Existing Revolving Loans hereunder shall not be
deemed to be repayment thereof, and Company shall not be required
to deliver any notice of prepayment or notice of borrowing or to
satisfy any other condition relating to required amounts of
prepayments or borrowings hereunder with respect to such conver
sion of the Existing Revolving Loans.
2.2 Interest on the Loans.
A. Rate of Interest. Subject to the provisions of
subsections 2.2B, 2.2E, 2.6 and 2.7, each Revolving Loan shall
bear interest on the unpaid principal amount thereof from the
date made through maturity (whether by acceleration or otherwise)
at a rate determined by reference to the Base Rate or the
Adjusted Eurodollar Rate, as the case may be. Subject to the
provisions of subsection 2.7, the applicable basis for
determining the rate of interest with respect to any Loan shall
be selected by Company initially at the time a Notice of
Borrowing is given with respect to such Loan pursuant to
subsection 2.1C. If on any day a Loan is outstanding with
respect to which notice is required to be delivered to
Administrative Agent in accordance with the terms of this
Agreement specifying the applicable basis for determining the
rate of interest but such notice has not been so delivered, then
for that day that Loan shall bear interest determined by
reference to the Base Rate.
Subject to the provisions of subsections 2.2E and 2.7,
the Revolving Loans shall bear interest through maturity as
follows:
(a) if a Base Rate Loan, then at the sum of the Base
Rate plus the Applicable Base Rate Margin; or
(b) if a Eurodollar Rate Loan, then at the sum of the
Adjusted Eurodollar Rate plus the Applicable Eurodollar
Margin.
The Applicable Base Rate Margin and the Applicable
Eurodollar Margin shall automatically be adjusted in accordance
with the respective definitions of such terms.
Subject to the provisions of subsections 2.2E and 2.7,
the Swing Line Loans shall bear interest through their maturity
at the Prime Rate.
B. Interest Periods. In connection with each Eurodollar
Rate Loan, Company may, pursuant to the applicable Notice of
Borrowing or Notice of Conversion/Continuation, as the case may
be, select an interest period (each an "Interest Period") to be
applicable to such Loan, which Interest Period shall be, at
Company's option, either a one, two, three or six month period;
provided that:
(i) the initial Interest Period for any Eurodollar
Rate Loan shall commence on the Funding Date in respect of
such Loan, in the case of a Loan initially made as a
Eurodollar Rate Loan, or on the date specified in the
applicable Notice of Conversion/Continuation, in the case of
a Loan converted to a Eurodollar Rate Loan;
(ii) in the case of immediately successive Interest
Periods applicable to a Eurodollar Rate Loan continued as
such pursuant to a Notice of Conversion/Continuation, each
successive Interest Period shall commence on the day on
which the next preceding Interest Period expires;
(iii) if an Interest Period would otherwise expire
on a day that is not a Business Day, such Interest Period
shall expire on the next succeeding Business Day; provided
that, if any Interest Period would otherwise expire on a day
that is not a Business Day but is a day of the month after
which no further Business Day occurs in such month, such
Interest Period shall expire on the next preceding Business
Day;
(iv) any Interest Period that 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 Interest Period) shall, subject to
clause (v) of this subsection 2.2B, end on the last Business
Day of a calendar month;
(v) no Interest Period with respect to any portion of
the Revolving Loans shall extend beyond the Commitment
Termination Date;
(vi) no Interest Period with respect to any portion of
the Revolving Loans shall extend beyond the date on which a
permanent reduction of the Commitments is scheduled to occur
unless the sum of (a) the aggregate principal amount of
Revolving Loans that are Base Rate Loans plus (b) the
aggregate principal amount of Revolving Loans that are
Eurodollar Rate Loans with Interest Periods expiring on or
before such date plus (c) the excess of the Commitments then
in effect over the aggregate principal amount of Revolving
Loans then outstanding equals or exceeds the permanent
reduction of the Commitments that is scheduled to occur on
such date;
(vii) there shall be no more than five Interest
Periods outstanding at any time; and
(viii) in the event Company fails to specify an
Interest Period for any Eurodollar Rate Loan in the
applicable Notice of Borrowing or Notice of
Conversion/Continuation, Company shall be deemed to have
selected an Interest Period of one month.
C. Interest Payments. Subject to the provisions of
subsection 2.2E, interest on each Loan shall be payable in
arrears on and to each Interest Payment Date applicable to that
Loan, upon any prepayment of that Loan (to the extent accrued on
the amount being prepaid) and at maturity (including final
maturity); provided that in the event any Loans that are Base
Rate Loans are prepaid pursuant to subsection 2.4A(iii) or
2.4B(i), interest accrued on such Loans through the date of such
prepayment shall be payable on the next succeeding Interest
Payment Date applicable to Base Rate Loans (or, if earlier, at
final maturity).
D. Conversion or Continuation. Subject to the provisions
of subsection 2.6, Company shall have the option (i) to convert
at any time all or any part of its outstanding Base Rate Loans
equal to $5,000,000 and integral multiples of $1,000,000 in
excess of that amount to Eurodollar Rate Loans, (ii) to convert
at any time all or any part of its outstanding Eurodollar Rate
Loans equal to $500,000 and integral multiples of $100,000 in
excess of that amount to Base Rate Loans, or (iii) upon the
expiration of any Interest Period applicable to a Eurodollar Rate
Loan, to continue all or any portion of such Loan equal to
$5,000,000 and integral multiples of $1,000,000 in excess of that
amount as a Eurodollar Rate Loan; provided, however, that a
Eurodollar Rate Loan may only be converted into a Base Rate Loan
on the expiration date of an Interest Period applicable thereto.
Company shall deliver a Notice of
Conversion/Continuation to Administrative Agent no later than
8:30 A.M. (Pacific time) at least one Business Day in advance of
the proposed conversion date (in the case of a conversion to a
Base Rate Loan) and at least three Business Days in advance of
the proposed conversion/continuation date (in the case of a
conversion to, or a continuation of, a Eurodollar Rate Loan). A
Notice of Conversion/Continuation shall specify (i) the proposed
conversion/continuation date (which shall be a Business Day),
(ii) the amount and type of the Loan to be converted/continued,
(iii) the nature of the proposed conversion/continuation, (iv) in
the case of a conversion to, or a continuation of, a Eurodollar
Rate Loan, the requested Interest Period, and (v) in the case of
a conversion to, or a continuation of, a Eurodollar Rate Loan,
that no Event of Default or, to Company's Best Knowledge
(following the reasonable exercise of diligence appropriate for
the circumstance in question by the officers of the Company
executing such certificate), no Potential Event of Default has
occurred and is continuing. In lieu of delivering the above-
described Notice of Conversion/Continuation, Company may give
Administrative Agent telephonic notice by the required time of
any proposed conversion/continuation under this subsection 2.2D;
provided that such notice shall be promptly confirmed in writing
by delivery of a Notice of Conversion/Continuation to Administra
tive Agent on or before the proposed conversion/continuation
date.
Neither Administrative Agent nor any Lender shall incur
any liability to Company in acting upon any telephonic notice
referred to above that Administrative Agent believes in good
faith consistent with commercial banking practices to have been
given by a duly authorized officer or other person authorized to
act on behalf of Company or for otherwise acting in good faith
under this subsection 2.2D, and upon conversion or continuation
of the applicable basis for determining the interest rate with
respect to any Loans in accordance with this Agreement pursuant
to any such telephonic notice Company shall have effected a
conversion or continuation, as the case may be, hereunder.
Except as otherwise provided in subsections 2.6B, 2.6C
and 2.6G, a Notice of Conversion/Continuation for conversion to,
or continuation of, a Eurodollar Rate Loan (or telephonic notice
in lieu thereof) shall be irrevocable on and after the related
Interest Rate Determination Date, and Company shall be bound to
effect a conversion or continuation in accordance therewith.
E. Post-Default Interest. Upon the occurrence and during
the continuation of any Event of Default, the outstanding
principal amount of all Loans and, to the extent permitted by
applicable law, the amount of any overdue interest payments on
the Loans or any overdue fees or other amounts owed hereunder
shall thereafter bear interest (including post-petition interest
in any proceeding under the Bankruptcy Code or other applicable
bankruptcy laws) payable on demand at a rate which is 2% per
annum in excess of the interest rate otherwise payable under this
Agreement with respect to the applicable Loans (or, in the case
of any such fees and other amounts, at a rate which is 2% per
annum in excess of the interest rate otherwise payable under this
Agreement for Base Rate Loans); provided that, in the case of
Eurodollar Rate Loans, upon the expiration of the Interest Period
in effect at the time any such increase in interest rate is
effective, such Eurodollar Rate Loans shall thereupon become Base
Rate Loans and shall thereafter bear interest payable upon demand
at a rate which is 2% per annum in excess of the interest rate
otherwise payable under this Agreement for Base Rate Loans.
Payment or acceptance of the increased rates of interest provided
for in this subsection 2.2E is not a permitted alternative to
timely payment and shall not constitute a waiver of any Event of
Default or otherwise prejudice or limit any rights or remedies of
Administrative Agent or any Lender.
F. Computation of Interest. Interest on the Loans shall
be computed (i) in the case of Base Rate Loans, on the basis of a
365-day or 366-day year, as the case may be, and (ii) in the case
of Eurodollar Rate Loans, on the basis of a 360-day year, in each
case for the actual number of days elapsed in the period during
which it accrues. In computing interest on any Loan, the date of
the making of such Loan or the first day of an Interest Period
applicable to such Loan or, with respect to a Base Rate Loan
being converted from a Eurodollar Rate Loan, the date of conver
sion of such Eurodollar Rate Loan to such Base Rate Loan, as the
case may be, shall be included, and the date of payment of such
Loan or the expiration date of an Interest Period applicable to
such Loan or, with respect to a Base Rate Loan being converted to
a Eurodollar Rate Loan, the date of conversion of such Base Rate
Loan to such Eurodollar Rate Loan, as the case may be, shall be
excluded; provided that if a Loan is repaid on the same day on
which it is made, one day's interest shall be paid on that Loan.
2.3 Fees.
A. Unused Commitment Fees. Company agrees to pay to
Administrative Agent, for distribution to each Lender in propor
tion to that Lender's Pro Rata Share, commitment fees for the
period from and including the Effective Date to and excluding the
Commitment Termination Date equal to (i) the average of the daily
excess of the Commitments over the sum of the aggregate principal
amount of Revolving Loans outstanding plus the Letter of Credit
Usage multiplied by (ii) Applicable Commitment Fee Percentage,
such commitment fees to be calculated on the basis of a 360-day
year, and the actual number of days elapsed and to be payable
quarterly in arrears on the last Business Day of March,
June, September and December of each year, commencing on the
first such date to occur after the Effective Date and on the
Commitment Termination Date.
B. Additional Fees.
(i) [omitted]
(ii) Company agrees to pay to Administrative Agent all
fees set forth in the Agent's fee letter executed and
delivered pursuant to subsection 4.1P.
(iii) Company agrees to pay to Administrative Agent
on the Effective Date for distribution to each Lender in
accordance with such Lender's Pro Rata Share, all accrued
unpaid interest and fees owed under the Existing Credit
Agreement, whether or not then due and payable under the
Existing Credit Agreement.
2.4 Payments, Prepayments and Reductions in Commitments; General
Provisions Regarding Payments.
A. Scheduled and Mandatory Reductions of Commitments and
Mandatory Prepayments.
(i) Scheduled Reductions of Revolving Commitments.
The Revolving Commitments shall terminate on the Commitment
Termination Date.
(ii) [omitted].
(iii) Mandatory Prepayments and Mandatory
Reductions of Commitments. The Loans shall be prepaid and
the Commitments shall be permanently reduced in the amounts
and under the circumstances set forth below, all such
prepayments and reductions to be applied as set forth below
or as more specifically provided in subsection 2.4C:
(a) Prepayments and Reductions From Asset Sales.
(1) If Company or any of its Subsidiaries receives any
Net Cash Proceeds in an amount equal to or greater than
$2,500,000 from any Asset Sale, Company shall prepay the
Loans and the Commitments shall be permanently reduced in an
aggregate amount equal to the excess of such Net Cash
Proceeds of such Asset Sale over the amount of such Net Cash
Proceeds that the Company intends to invest in a Related
Business and are so invested within 270 days of receipt by
the Company or any of its Subsidiaries. Such prepayment
shall be due and such reduction in Commitments shall occur
on the earlier of (i) the second Business Day following a
determination by a Responsible Officer that such Net Cash
Proceeds will not be invested in assets or property of a
Related Business or (ii) 270 days after the receipt of such
Cash Proceeds, if they have not been so invested in a
Related Business;
(2) If Company or any of its Subsidiaries receives any
Net Cash Proceeds in an amount less than $2,500,000 from any
Asset Sale, Company shall prepay the Loans and the
Commitments shall be permanently reduced in an aggregate
amount equal to the excess of such Net Cash Proceeds of such
Asset Sale over such Net Cash Proceeds that Company intends
to invest in a Related Business and are so invested within
270 days of receipt by Company or any of its Subsidiaries.
Such prepayment shall be due and such reduction in Commit
ments shall occur on the second Business Day following
receipt by Company or any of its Subsidiaries of Net Cash
Proceeds in an amount that, together with all Net Cash
Proceeds received by Company from Asset Sales since the
later of the Effective Date or the date of the most recent
payment made pursuant to this subsection 2.4A(iii)(a),
exceeds $6,000,000.
(3) Concurrently with any prepayment of the Loans and
reduction of the Commitments pursuant to this subsection
2.4A(iii)(a), Company shall deliver to Agent an Officers'
Certificate demonstrating the derivation of the Net Cash
Proceeds from the correlative Asset Sale from the gross
sales price thereof. In the event that Company shall, at
any time after receipt of Cash Proceeds from any Asset Sale
requiring a prepayment or a reduction of the Commitments
pursuant to this subsection 2.4A(iii)(a), determine that the
prepayments and/or reductions of the Commitments previously
made in respect of such Asset Sale were in an aggregate
amount less than that required by the terms of this
subsection 2.4A(iii)(a), Company shall promptly make an
additional prepayment of the Swing Line Loans, or Revolving
Loans, as the case may be (and the Commitments shall be
permanently reduced), in the manner described above in an
amount equal to the amount of any such deficit, and Company
shall concurrently therewith deliver to Agent an Officers'
Certificate demonstrating the derivation of the additional
Net Cash Proceeds resulting in such deficit.
(b) Prepayments and Reductions Due to the Occurrence
of an Event of Loss.
(1) If Company or any of its Subsidiaries receives any
Net Cash Proceeds in an amount equal to or greater than
$2,500,000 from any Event of Loss, Company shall prepay the
Loans and the Commitments shall be permanently reduced in an
aggregate amount equal to the excess of such Net Cash
Proceeds of from such Event of Loss over the amount of such
Net Cash Proceeds that the Company intends to invest in a
Related Business and are so invested within 270 days of
receipt by the Company or any of its Subsidiaries. Such
prepayment shall be due and such reduction in Commitments
shall occur on the earlier of (i) the second Business Day
following a determination by a Responsible Officer that such
Net Cash Proceeds will not be invested in assets or property
of a Related Business or (ii) 270 days after the receipt of
such Net Cash Proceeds, if they have not been so invested in
a Related Business;
(2) If Company or any of its Subsidiaries receives any
Net Cash Proceeds in an amount less than $2,500,000 from any
Event of Loss, Company shall prepay the Loans and the
Revolving Commitments shall be permanently reduced in an
aggregate amount equal to the excess of such Net Cash
Proceeds of such Asset Sale over such Net Cash Proceeds that
Company intends to invest in a Related Business and are so
invested within 270 days of receipt by Company or any of its
Subsidiaries. Such prepayment shall be due and such reduc
tion in Commitments shall occur on the second Business Day
following receipt by Company or any of its Subsidiaries of
Net Cash Proceeds in an amount that, together with all Net
Cash Proceeds received by Company from Events of Loss since
the later of the Effective Date or the date of the most
recent payment made pursuant to this subsection
2.4A(iii)(b), exceeds $6,000,000.
(3) Concurrently with any prepayment of the Loans and
reduction of the Commitments pursuant to this subsection
2.4A(iii)(b), Company shall deliver to Agent an Officers'
Certificate demonstrating the derivation of the Net Cash
Proceeds from the correlative Event of Loss. In the event
that Company shall, at any time after receipt of Cash
Proceeds from any Event of Loss requiring a prepayment or a
reduction of the Commitments pursuant to this subsection
2.4A(iii)(b), determine that the prepayments and/or
reductions of the Commitments previously made in respect of
such Event of Loss were in an aggregate amount less than
that required by the terms of this subsection 2.4A(iii)(b),
Company shall promptly make an additional prepayment of the
Swing Line Loans or Revolving Loans, as the case may be (and
the Commitments shall be permanently reduced), in the manner
described above in an amount equal to the amount of any such
deficit, and Company shall concurrently therewith deliver to
Agent an Officers' Certificate demonstrating the derivation
of the additional Net Cash Proceeds resulting in such
deficit.
(c) [omitted]
(d) [omitted]
(e) [omitted]
B. Voluntary Prepayments, Mandatory Prepayments and
Voluntary Reductions in Commitments.
(i) Voluntary Prepayments. Company may, upon written
or telephonic notice to Administrative Agent on or prior to
8:30 A.M. (Pacific time) on the date of prepayment, which
notice, if telephonic, shall be promptly confirmed in
writing, at any time and from time to time prepay without
premium or penalty any Swing Line Loan on any Business Day
in whole or in part in an aggregate minimum amount of
$500,000 and integral multiples of $100,000 in excess of
that amount. Company may, upon written or telephonic notice
given to Administrative Agent by 8:30 A.M. (Pacific time)
not less than three Business Days in advance (in the case of
a Eurodollar Rate Loan) or one Business Day in advance (in
the case of a Base Rate Loan) of any proposed prepayment
date and, if given by telephone, promptly confirmed in
writing to Administrative Agent (which written or telephone
notice Administrative Agent will promptly transmit by
telefacsimile or telephone to each Lender), at any time and
from time to time prepay without premium and penalty any
Base Rate Loans on any Business Day in whole or in part in
an aggregate minimum amount of $1,000,000 and any integral
multiples of $100,000 in excess of that amount or any
Eurodollar Rate Loans on any Business Day in whole or in
part in an aggregate minimum amount of $5,000,000 and any
integral multiples of $1,000,000 in excess of that amount
and any such prepayment of Base Rate Loans or Eurodollar
Rate Loans will include all interest accrued thereon to the
day of prepayment; provided, however, that if a Eurodollar
Rate Loan is prepaid prior to the expiration of the Interest
Period applicable thereto, such prepayment shall include all
costs payable under Section 2.6D as a result of such prepay
ment. Any voluntary prepayments made pursuant to this
Section 2.4B(i) shall be applied to the type of Loan
directed by Company; provided that all voluntary prepayments
shall be used first to pay any interest and/or fees accrued
to the prepayment date on the Loan to be prepaid; provided
further that in the event Company fails to specify the Loans
to which any such prepayment shall be applied, such prepay
ment shall be applied first to repay outstanding Swing Line
Loans to the full extent thereof and second to repay
outstanding Revolving Loans to the full extent thereof.
(ii) Mandatory Prepayments. Company will make the
prepayments on the Loans required by subsection 2.4A.
(iii) Voluntary Reductions of Commitments. Company
may, upon not less than five Business Days' prior written or
telephonic notice confirmed in writing to Administrative
Agent (which original written or telephonic notice Adminis
trative Agent will promptly transmit by telefacsimile or
telephone to each Lender), at any time and from time to time
terminate in whole or permanently reduce in part, without
premium or penalty, the Commitments in an amount up to the
amount by which the Commitments exceed the Total Utilization
of Commitments at the time of such proposed termination or
reduction; provided that any such partial reduction of the
Commitments shall be in an aggregate minimum amount of
$5,000,000 and integral multiples of $1,000,000 in excess of
that amount. Company's notice to Administrative Agent shall
designate the date (which shall be a Business Day) of such
termination or reduction and the amount of any partial
reduction, and such termination or reduction of the Commit
ments shall be effective on the date specified in Company's
notice and shall reduce the Commitment of each Lender
proportionately to its Pro Rata Share.
C. Application of Prepayments and Commitment Reductions.
(i) Application of Mandatory Prepayments by Type of
Loans. Any amount (the ``Prepayment Amount'') required to
be applied as a mandatory prepayment of the Loans pursuant
to subsections 2.4A(iii)(a)-(c) shall be applied first to
prepay the Swing Line Loans to the full extent thereof,
second, to the extent of any remaining portion of the
Prepayment Amount, to prepay the Revolving Loans to the full
extent thereof.
(ii) Application of Prepayments to Base Rate Loans and
Eurodollar Rate Loans. Any prepayment of the Loans shall be
applied first to Base Rate Loans to the full extent thereof
before application to Eurodollar Rate Loans, in each case in
a manner which minimizes the amount of any payments required
to be made by Company pursuant to subsection 2.6D.
(iii) [omitted]
(iv) [omitted]
D. General Provisions Regarding Payments.
(i) Manner and Time of Payment. All payments by
Company of principal, interest, fees and other Obligations
hereunder and under the Notes, if any, shall be made in
Dollars in same day funds, without defense, setoff or
counterclaim, free of any restriction or condition, and
delivered to Administrative Agent not later than 11:00 A.M.
(Pacific time) on the date due at the Funding and Payment
Office for the account of Lenders; funds received by
Administrative Agent after that time on such due date shall
be deemed to have been paid by Company on the next succeed
ing Business Day. Company hereby authorizes Administrative
Agent to charge its accounts with Administrative Agent in
order to cause timely payment to be made to Administrative
Agent of all principal, interest, fees, expenses and other
amounts due hereunder (subject to sufficient funds being
available in its accounts for that purpose).
(ii) Application of Payments to Principal and Interest.
Except as set forth in subsection 2.2C, all payments in
respect of the principal amount of any Loan shall include
payment of accrued interest on the principal amount being
repaid or prepaid, and all such payments shall be applied to
the payment of interest before application to principal.
(iii) Apportionment of Payments. Subject to the
provisions of subsection 2.4D(vi), aggregate principal and
interest payments (other than payments in respect of Swing
Line Loans, which shall be made to the Swing Line Lender)
shall be apportioned among all outstanding Revolving Loans
to which such payments relate, in each case proportionately
to Lenders' respective Pro Rata Shares. Administrative
Agent shall promptly distribute to each Lender, at its
primary address set forth below its name on the appropriate
signature page hereof or at such other address as such
Lender may request, its Pro Rata Share of all such payments
received by Administrative Agent and the commitment fees of
such Lender when received by Administrative Agent pursuant
to subsection 2.3A. Notwithstanding the foregoing provi
sions of this subsection 2.4D(iii), if (i) pursuant to the
provisions of subsection 2.6C, any Notice of
Conversion/Continuation is withdrawn as to any Affected
Lender, (ii) any Affected Lender makes Base Rate Loans in
lieu of its Pro Rata Share of any Eurodollar Rate Loans,
(iii) Company repays all amounts owed to a Requiring Lender
pursuant to subsection 2.9, or (iv) Company prepays all
amounts owed to a Former Lender after the expiration of the
applicable Withdrawal Period pursuant to subsection
10.1B(iii), then Administrative Agent shall give effect
thereto in apportioning payments received thereafter.
(iv) Payments on Business Days. Whenever any payment
to be made hereunder shall be stated to be due on a day that
is not a Business Day, such payment shall be made on the
next succeeding Business Day except as set forth in
subsection 2.2B(iii), and such extension of time shall be
included in the computation of the payment of interest
hereunder or of the commitment fees hereunder, as the case
may be.
(v) Notation of Payment. Each Lender agrees that
before disposing of any Note held by it, or any part thereof
(other than by granting participations therein), that Lender
will make a notation thereon of all Revolving Loans
evidenced by that Note and all principal payments previously
made thereon and of the date to which interest thereon has
been paid; provided that the failure to make (or any error
in the making of) a notation of any Revolving Loans made
under such Note shall not limit or otherwise affect the
obligations of Company hereunder to the extent of Company's
actual indebtedness or under such Note with respect to any
Revolving Loans or any payments of principal or interest on
such Note.
(vi) Non-Pro Rata Prepayment on the Effective Date.
Anything contained herein or in the other Loan Documents to
the contrary notwithstanding, the parties hereto agree that
the prepayment of the Existing Revolving Loans on the
Effective Date pursuant to subsection 4.1N shall not be
applied to the prepayment of the Existing Revolving Loans in
proportion to the Lenders' respective Pro Rata Shares
thereof (as would otherwise be required pursuant to
subsection 2.4(D)(iii)) but shall instead shall be applied
(i) to the repayment in full of all Existing Revolving Loans
owed to the Noncontinuing Lenders on the Effective Date and
(ii) the repayment of Existing Revolving Loans owed to each
Lender in amounts such that, after giving effect thereto,
the Revolving Loans of each Lender shall be in an amount
directly proportional to such Lender's Pro Rata Share of all
Revolving Loans then outstanding.
2.5 Use of Proceeds.
A. Use of Proceeds.
(i) Revolving Loans. The proceeds of Revolving Loans
shall be applied by Company for general corporate purposes,
including share repurchases and other acquisitions (other
than Hostile Acquisitions) as permitted herein; provided,
however, Company may not apply all or any portion of the
proceeds of the Revolving Loans to fund, directly and
indirectly, a Hostile Acquisition.
(ii) [omitted]
(iii) [omitted]
(iv) Swing Line Loans. The proceeds of the Swing Line
Loans shall be applied by Company for general corporate
purposes; provided, however, that Company may not apply all
or any portion of the proceeds of Swing Line Loans to fund,
directly or indirectly, a Hostile Acquisition.
B. Margin Regulations. No portion of the proceeds of any
borrowing under this Agreement shall be used by Company or any of
its Subsidiaries in any manner that might cause the borrowing or
the application of such proceeds to violate Regulation G, Regula
tion U, Regulation T or Regulation X of the Board of Governors of
the Federal Reserve System or any other regulation of such Board
or to violate the Exchange Act, in each case as in effect on the
date or dates of such borrowing and such use of proceeds.
2.6 Special Provisions Governing Eurodollar Rate Loans.
Notwithstanding any other provision of this Agreement
to the contrary, the following provisions shall govern with
respect to Eurodollar Rate Loans as to the matters covered:
A. Determination of Applicable Interest Rate. As soon as
practicable after 8:30 A.M. (Pacific time) on each Interest Rate
Determination Date, Administrative Agent shall determine (which
determination shall, absent manifest error, be final, conclusive
and binding upon all parties) the interest rate that shall apply
to the Eurodollar Rate Loans for which an interest rate is then
being determined for the applicable Interest Period and shall
promptly give notice thereof (in writing or by telephone
confirmed in writing) to Company and each Lender.
B. Inability to Determine Applicable Interest Rate. In
the event that Administrative Agent shall have determined (which
determination shall be final and conclusive and binding upon all
parties hereto), on any Interest Rate Determination Date with
respect to any Eurodollar Rate Loans, that by reason of circum
stances affecting the interbank Eurodollar market adequate and
fair means do not exist for ascertaining the interest rate appli
cable to such Loans on the basis provided for in the definition
of Adjusted Eurodollar Rate, Administrative Agent shall on such
date give notice (by telefacsimile or by telephone confirmed in
writing) to Company and each Lender of such determination,
whereupon (i) no Loans may be made as, or converted to,
Eurodollar Rate Loans until such time as Administrative Agent
notifies Company and Lenders that the circumstances giving rise
to such notice no longer exist and (ii) any Notice of Borrowing
or Notice of Conversion/Continuation given by Company with
respect to the Loans in respect of which such determination was
made shall be deemed to be rescinded by Company. If, at any time
following such a determination, Administrative Agent determines
that such circumstances that affected the interbank Eurodollar
market no longer exist, it shall promptly notify Company and each
Lender thereof, at which time the provisions of clauses (i) and
(ii) above shall no longer be effective.
C. Illegality or Impracticability of Eurodollar Rate
Loans. In the event that on any date any Lender shall have
determined (which determination shall be final and conclusive and
binding upon all parties hereto but shall be made only after
consultation with Company and Administrative Agent) that the
making, maintaining or continuation of its Eurodollar Rate Loans
(i) has become unlawful as a result of compliance by such Lender
in good faith with any law, treaty, governmental rule, regula
tion, guideline or order (or would conflict with any such treaty,
governmental rule, regulation, guideline or order not having the
force of law but which such Lender complies with as a matter of
policy even though the failure to comply therewith would not be
unlawful) or (ii) has become impracticable, or would cause such
Lender material hardship, as a result of contingencies occurring
after the date of this Agreement which materially and adversely
affect the interbank Eurodollar market or the position of such
Lender in that market, then, and in any such event, such Lender
shall be an "Affected Lender" and it shall on that day give
notice (by telefacsimile or by telephone confirmed in writing) to
Company and Administrative Agent of such determination (which
notice Administrative Agent shall promptly transmit to each other
Lender). Thereafter (a) the obligation of the Affected Lender to
make Loans as, or to convert Loans to, Eurodollar Rate Loans
shall be suspended until such notice shall be withdrawn by the
Affected Lender, (b) to the extent such determination by the
Affected Lender relates to a Eurodollar Rate Loan then being
requested by Company pursuant to a Notice of Borrowing or a
Notice of Conversion/Continuation, the Affected Lender shall make
such Loan as (or convert such Loan to, as the case may be) a Base
Rate Loan, (c) the Affected Lender's obligation to maintain its
outstanding Eurodollar Rate Loans (the "Affected Loans") shall be
terminated at the earlier to occur of the expiration of the
Interest Period then in effect with respect to the Affected Loans
or when required by law, and (d) the Affected Loans shall auto
matically convert into Base Rate Loans on the date of such termi
nation. Notwithstanding the foregoing, to the extent a determi
nation by an Affected Lender as described above relates to a
Eurodollar Rate Loan then being requested by Company pursuant to
a Notice of Borrowing or a Notice of Conversion/Continuation,
Company shall have the option, subject to the provisions of
subsection 2.6D, to rescind such Notice of Borrowing or Notice of
Conversion/Continuation as to all Lenders by giving notice (by
telefacsimile or by telephone confirmed in writing) to Adminis
trative Agent of such rescission on the date on which the
Affected Lender gives notice of its determination as described
above (which notice of rescission Administrative Agent shall
promptly transmit to each other Lender). Except as provided in
the immediately preceding sentence, nothing in this subsection
2.6C shall affect the obligation of any Lender other than an
Affected Lender to make or maintain Loans as, or to convert Loans
to, Eurodollar Rate Loans in accordance with the terms of this
Agreement.
D. Compensation For Breakage or Non-Commencement of
Interest Periods. Company shall compensate each Lender, upon
written request by that Lender (which request shall set forth the
basis for requesting such amounts), for all reasonable losses,
expenses and liabilities (including, without limitation, any
interest paid by that Lender to lenders of funds borrowed by it
to make or carry its Eurodollar Rate Loans and any loss, expense
or liability sustained by that Lender in connection with the
liquidation or re-employment of such funds) which that Lender may
sustain: (i) if for any reason (other than a default by that
Lender or the occurrence of an event described in subsection
2.6C) a borrowing of any Eurodollar Rate Loan does not occur on a
date specified therefor in a Notice of Borrowing or a telephonic
request for borrowing, or a conversion to or continuation of any
Eurodollar Rate Loan does not occur on a date specified therefor
in a Notice of Conversion/Continuation or a telephonic request
for conversion or continuation, (ii) if any prepayment or other
principal payment or any conversion of any of its Eurodollar Rate
Loans occurs on a date prior to the last day of an Interest
Period applicable to that Loan, (iii) if any prepayment of any of
its Eurodollar Rate Loans is not made on any date specified in a
notice of prepayment given by Company, or (iv) as a consequence
of any other default by Company in the repayment of its Eurodol
lar Rate Loans when required by the terms of this Agreement.
E. Booking of Eurodollar Rate Loans. Subject to each
Lender's obligations under subsection 2.8, any Lender may make,
carry or transfer Eurodollar Rate Loans at, to, or for the
account of any of its branch offices or the office of an
Affiliate of that Lender.
F. Assumptions Concerning Funding of Eurodollar Rate
Loans. Calculation of all amounts payable to a Lender under this
subsection 2.6 and under subsection 2.7A shall be made as though
that Lender had actually funded each of its relevant Eurodollar
Rate Loans through the purchase of a Eurodollar deposit bearing
interest at the Adjusted Eurodollar Rate in an amount equal to
the amount of such Eurodollar Rate Loan and having a maturity
comparable to the relevant Interest Period and through the
transfer of such Eurodollar deposit from an offshore office of
that Lender to a domestic office of that Lender in the United
States of America; provided, however, that each Lender may fund
each of its Eurodollar Rate Loans in any manner it sees fit and
the foregoing assumptions shall be utilized only for the purposes
of calculating amounts payable under this subsection 2.6 and
under subsection 2.7A.
G. Eurodollar Rate Loans After Default. After the occur
rence of and during the continuation of a Potential Event of
Default of which it is aware to its Best Knowledge or an Event of
Default, (i) Company may not elect to have a Loan be made or
maintained as, or converted to, a Eurodollar Rate Loan after the
expiration of any Interest Period then in effect for that Loan
and (ii) subject to the provisions of subsection 2.6D, any Notice
of Borrowing or Notice of Conversion/Continuation given by
Company with respect to a requested borrowing or
conversion/continuation that has not yet occurred shall be deemed
to be rescinded by Company.
2.7 Increased Costs; Taxes; Capital Adequacy.
A. Compensation for Increased Costs and Taxes. Subject to
the provisions of subsection 2.7B, in the event that any Lender
shall reasonably determine (which determination shall, absent
manifest error, be final and conclusive and binding upon all
parties hereto) that any law, treaty or governmental rule,
regulation or order adopted after the date hereof, or any change
therein or in the interpretation, administration or application
thereof (including the introduction of any new law, treaty or
governmental rule, regulation or order), or any determination of
a court or governmental authority, in each case that becomes
effective after the date hereof, or compliance by such Lender
with any guideline, request or directive issued or made after the
date hereof by any central bank or other governmental or quasi-
governmental authority (whether or not having the force of law):
(i) subjects such Lender (or its applicable lending
office) to any additional Tax (other than any Tax on the
overall net income of such Lender) with respect to this
Agreement or any of its obligations hereunder or any
payments to such Lender (or its applicable lending office)
of principal, interest, fees or any other amount payable
hereunder;
(ii) imposes, modifies or holds applicable any reserve
(including without limitation any marginal, emergency,
supplemental, special or other reserve), special deposit,
compulsory loan, FDIC insurance or similar requirement
against assets held by, or deposits or other liabilities in
or for the account of, or advances or loans by, or other
credit extended by, or any other acquisition of funds by,
any office of such Lender; or
(iii) imposes any other condition (other than with
respect to a Tax matter) on or affecting such Lender (or its
applicable lending office) or its obligations hereunder or
the interbank Eurodollar market;
and the result of any of the foregoing is to increase the cost to
such Lender of agreeing to make, making or maintaining Loans
hereunder or to reduce any amount received or receivable by such
Lender (or its applicable lending office) with respect thereto;
then, in any such case, Company shall promptly pay to such
Lender, upon receipt of the statement referred to in the next
sentence, such additional amount or amounts (in the form of an
increased rate of, or a different method of calculating, interest
or otherwise as such Lender in its sole discretion shall deter
mine) as may be necessary to compensate such Lender for any such
increased cost or reduction in amounts received or receivable
hereunder. Such Lender shall deliver to Company (with a copy to
Administrative Agent) a written statement, setting forth in
reasonable detail the basis for calculating the additional
amounts owed to such Lender under this subsection 2.7A, which
statement shall be conclusive and binding upon all parties hereto
absent manifest error.
B. Withholding of Taxes.
(i) Payments to Be Free and Clear. All sums payable
by Company under this Agreement and the other Loan Documents
shall be paid free and clear of and (except to the extent
required by law) without any deduction or withholding on
account of any Tax (other than a Tax on the overall net
income of any Lender) imposed, levied, collected, withheld
or assessed by or within the United States of America or any
political subdivision in or of the United States of America
or any other jurisdiction from or to which a payment is made
by or on behalf of Company or by any federation or organiza
tion of which the United States of America or any such
jurisdiction is a member at the time of payment.
(ii) Grossing-up of Payments. If Company or any other
Person is required by law to make any deduction or
withholding on account of any such Tax from any sum paid or
payable by Company to Administrative Agent or any Lender
under any of the Loan Documents:
(a) Company shall notify Administrative
Agent of any such requirement or any change in any such
requirement as soon as Company becomes aware of it;
(b) Company shall pay any such Tax before
the date on which penalties attach thereto, such
payment to be made (if the liability to pay is imposed
on Company) for its own account or (if that liability
is imposed on Administrative Agent or such Lender, as
the case may be) on behalf of and in the name of
Administrative Agent or such Lender;
(c) the sum payable by Company in respect of
which the relevant deduction, withholding or payment is
required shall be increased to the extent necessary to
ensure that, after the making of that deduction,
withholding or payment, Administrative Agent or such
Lender, as the case may be, receives on the due date a
net sum equal to what it would have received had no
such deduction, withholding or payment been required or
made; and
(d) within 30 days after paying any sum from
which it is required by law to make any deduction or
withholding, and within 30 days after the due date of
payment of any Tax which it is required by clause (b)
above to pay, Company shall deliver to Administrative
Agent evidence satisfactory to the other affected
parties of such deduction, withholding or payment and
of the remittance thereof to the relevant taxing or
other authority.
(iii) Evidence of Exemption from U.S. Withholding
Tax.
(a) Each Lender that is organized under the
laws of any jurisdiction other than the United States
or any state or other political subdivision thereof
(for purposes of this subsection 2.7B(iii), a "Non-US
Lender") shall deliver to Administrative Agent for
transmission to Company, on or prior to the Effective
Date (in the case of each Lender listed on the signa
ture pages hereof) or on the date of the Lender Assign
ment Agreement pursuant to which it becomes a Lender
(in the case of each other Lender), and at such other
times as may be necessary in the determination of
Company or Administrative Agent (each in the reasonable
exercise of its discretion), (1) two original copies of
Internal Revenue Service Form 1001 or 4224 (or any
successor forms), properly completed and duly executed
by such Lender, together with any other certificate or
statement of exemption required under the Internal
Revenue Code or the regulations issued thereunder to
establish that such Lender is not subject to deduction
or withholding of United States federal income tax with
respect to any payments to such Lender of principal,
interest, fees or other amounts payable under any of
the Loan Documents or (2) if such Lender is not a
"bank" or other Person described in Section 881(c)(3)
of the Internal Revenue Code and cannot deliver either
Internal Revenue Service Form 1001 or 4224 pursuant to
clause (1) above, a Certificate re Non-Bank Status
together with two original copies of Internal Revenue
Service Form W-8 (or any successor form), properly
completed and duly executed by such Lender, together
with any other certificate or statement of exemption
required under the Internal Revenue Code or the regula
tions issued thereunder to establish that such Lender
is not subject to deduction or withholding of United
States federal income tax with respect to any payments
to such Lender of interest payable under any of the
Loan Documents.
(b) Each Lender required to deliver any
forms, certificates or other evidence with respect to
United States federal income tax withholding matters
pursuant to subsection 2.7B(iii)(a) hereby agrees, from
time to time after the initial delivery by such Lender
of such forms, certificates or other evidence, whenever
a lapse in time or change in circumstances renders such
forms, certificates or other evidence obsolete or
inaccurate in any material respect, such Lender shall
(1) deliver to Administrative Agent for transmission to
Company two new original copies of Internal Revenue
Service Form 1001 or 4224, or a Certificate re Non-Bank
Status and two original copies of Internal Revenue
Service Form W-8, as the case may be, properly
completed and duly executed by such Lender, together
with any other certificate or statement of exemption
required in order to confirm or establish that such
Lender is not subject to deduction or withholding of
United States federal income tax with respect to
payments to such Lender under the Loan Documents or
(2) immediately notify Administrative Agent and Company
of its inability to deliver any such forms,
certificates or other evidence; provided that Company
may continue to rely on any form, certificate or other
evidence delivered to it pursuant to subsection
2.7B(iii)(a) until such time as it has received
information pursuant to this subsection 2.7B(iii)(b)
that is intended to replace or supplant the information
provided on any such previously delivered form or
certificate.
(c) Company shall not be required to pay any
additional amount to any Non-US Lender under clause (c)
of subsection 2.7B(ii) if such Lender shall have failed
to satisfy the requirements of subsection 2.7B(iii)(a);
provided that if such Lender shall have satisfied such
requirements on the Effective Date (in the case of each
Lender listed on the signature pages hereof) or on the
date of the Lender Assignment Agreement pursuant to
which it became a Lender (in the case of each other
Lender), nothing in this subsection 2.7B(iii)(c) shall
relieve Company of its obligation to pay any additional
amounts pursuant to clause (c) of subsection 2.7B(ii)
in the event that, as a result of any change in any
applicable law, treaty or governmental rule, regulation
or order, or any change in the interpretation, adminis
tration or application thereof, such Lender is no
longer properly entitled to deliver forms, certificates
or other evidence at a subsequent date establishing the
fact that such Lender is not subject to withholding as
described in subsection 2.7B(iii)(a).
C. Capital Adequacy Adjustment. If any Lender shall
reasonably have determined that the adoption, effectiveness,
phase-in or applicability after the date hereof of any law, rule
or regulation (or any provision thereof) regarding capital
adequacy, or any change therein or in the interpretation or
administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Lender (or its
applicable lending office) with any guideline, request or
directive regarding capital adequacy (whether or not having the
force of law) of any such governmental authority, central bank or
comparable agency, has or would have the effect of reducing the
rate of return on the capital of such Lender or any corporation
controlling such Lender as a consequence of, or with reference
to, such Lender's Loans or Commitments or Letters of Credit or
participations therein or other obligations hereunder with
respect to the Loans or Letters of Credit to a level below that
which such Lender or such controlling corporation could have
achieved but for such adoption, effectiveness, phase-in, appli
cability, change or compliance (taking into consideration the
policies of such Lender or such controlling corporation with
regard to capital adequacy), then from time to time, within five
Business Days after receipt by Company from such Lender of the
statement referred to in the next sentence, Company shall pay to
such Lender such additional amount or amounts as will compensate
such Lender or such controlling corporation on an after-tax basis
for such reduction. Such Lender shall deliver to Company (with a
copy to Administrative Agent) a written statement, setting forth
in reasonable detail the basis of the calculation of such add
itional amounts, which statement shall be conclusive and binding
upon all parties hereto absent manifest error.
2.8 Obligation of Lenders and Administrative Agent to Mitigate.
Each Lender and Administrative Agent agree that, as
promptly as practicable after the officer of such Lender or
Administrative Agent responsible for administering the Loans or
Letters of Credit of such Lender or Administrative Agent becomes
aware of the occurrence of an event or the existence of a
condition that would cause such Lender to become an Affected
Lender or that would entitle such Lender to receive payments
under subsection 2.6, subsection 2.7 or subsection 3.6, it will,
to the extent not inconsistent with the internal policies of such
Lender or Administrative Agent and any applicable legal or
regulatory restrictions, use reasonable efforts (i) to make,
issue, fund or maintain the Commitment of such Lender or Adminis
trative Agent or the affected Loans of such Lender or Adminis
trative Agent through another lending or letter of credit office
of such Lender or Administrative Agent, or (ii) take such other
measures as such Lender or Administrative Agent may deem reason
able, if as a result thereof the circumstances which would cause
such Lender or Administrative Agent to be an Affected Lender
would cease to exist or the additional amounts which would other
wise be required to be paid to such Lender or Administrative
Agent pursuant to subsection 2.6, subsection 2.7 or subsection
3.6 would be materially reduced and if, as determined by such
Lender or Administrative Agent in its sole discretion, the
making, issuing, funding or maintaining of such Commitment or
Loans or Letters of Credit through such other lending or letter
of credit office or in accordance with such other measures, as
the case may be, would not otherwise materially adversely affect
such Commitment or Loans or Letters of Credit or the interests of
such Lender or Administrative Agent; provided that such Lender or
Administrative Agent will not be obligated to utilize such other
lending or letter of credit office pursuant to this subsection
2.8 unless Company agrees to pay all reasonable incremental
expenses incurred by such Lender or Administrative Agent as a
result of utilizing such other lending or letter of credit office
as described in clause (i) above. A certificate as to the amount
of any such expenses payable by Company pursuant to this
subsection 2.8 (setting forth in reasonable detail the basis for
requesting such amount) submitted by such Lender or Adminis
trative Agent to Company (with a copy to Administrative Agent)
shall be conclusive absent manifest error.
2.9 Replacement or Termination of Lenders.
In the event Company is required under the provisions
of subsection 2.7 or subsection 3.6 to make payments to any
Lender (a "Requiring Lender"), Company may, within 120 days after
the date any notice or demand requiring such payment under
subsection 2.7 or subsection 3.6 is given and so long as no Event
of Default shall have occurred and be continuing, elect to
terminate such Lender as a party to this Agreement; provided
that, concurrently with such termination, Company either (x)
voluntarily elects to terminate the Commitments of such Requiring
Lender and repays all principal, interest and other amounts then
owed to such Requiring Lender or (Y) solicits one or more Eligi
ble Assignees that agree(s) to assume the Commitments of such
Requiring Lender and assume all obligations of such Requiring
Lender pursuant to a Lender Assignment Agreement.
SECTION 3.
LETTERS OF CREDIT
3.1 Issuance of Letters of Credit and Lenders' Purchase of
Participations Therein.
A. Letters of Credit. In addition to Company requesting
that Lenders make Revolving Loans pursuant to subsection 2.1A and
that Swing Line Lender make Swing Line Loans pursuant to subsec
tion 2.1B, Company may request, in accordance with the provisions
of this subsection 3.1, from time to time during the period from
the Effective Date to but excluding the fifth day prior to the
Commitment Termination Date, that the Issuing Lender issue
Letters of Credit for the account of Company for the purposes
specified in the definition of Standby Letters of Credit.
Subject to the terms and conditions of this Agreement and in
reliance upon the representations and warranties of Company
herein set forth, the Issuing Lender shall issue such Letters of
Credit in accordance with the provisions of this subsection 3.1;
provided that Company shall not request that the Issuing Lender
issue (and the Issuing Lender shall not issue):
(i) any Letter of Credit if, after giving effect to
such issuance, the Total Utilization of Commitments would
exceed the Revolving Commitments then in effect (and the
Issuing Bank shall not issue any Letter of Credit without a
confirmation in writing from Administrative Agent as to
compliance with the foregoing restriction);
(ii) any Letter of Credit if, after giving effect to
such issuance, the Letter of Credit Usage would exceed
$1,000,000;
(iii) any Letter of Credit having an expiration
date later than the earlier of (a) five days prior to the
Commitment Termination Date and (b) the date which is one
year from the date of issuance of such Letter of Credit;
provided that the immediately preceding clause (b) shall not
prevent the Issuing Lender from agreeing that a Letter of
Credit will automatically be extended for one or more
successive periods not to exceed one year each unless the
Issuing Lender elects not to extend for any such additional
period; or
(iv) any Letter of Credit denominated in a currency
other than Dollars.
B. Mechanics of Issuance.
(i) Notice of Issuance. Whenever Company desires
the issuance of a Letter of Credit, it shall deliver to
the Issuing Lender (with a copy to Administrative
Agent) an irrevocable Notice of Issuance of Letter of
Credit substantially in the form of Exhibit III annexed
hereto no later than 10:00 A.M. (Pacific time) at least
5 Business Days, or in each case such shorter period as
may be agreed to by the Issuing Lender in any particu
lar instance, in advance of the proposed date of
issuance. The Notice of Issuance of Letter of Credit
shall specify (a) the proposed date of issuance (which
shall be a Business Day), (b) the face amount of the
Letter of Credit, (c) the expiration date of the
Letter of Credit, (d) the name and address of the
beneficiary, and (e) the verbatim text of the proposed
Letter of Credit or the proposed terms and conditions
thereof, including a precise description of any
documents and the verbatim text of any certificates to
be presented by the beneficiary which, if presented by
the beneficiary prior to the expiration date of the
Letter of Credit, would require the Issuing Lender to
make payment under the Letter of Credit; provided that
the Issuing Lender, in its reasonable discretion, may
require changes in the text of the proposed Letter of
Credit or any such documents or certificates; and
provided, further that no Letter of Credit shall
require payment against a conforming draft to be made
thereunder on the same business day (under the laws of
the jurisdiction in which the office of the Issuing
Lender to which such draft is required to be presented
is located) that such draft is presented if such
presentation is made after 10:00 A.M. (in the time zone
of such office of the Issuing Lender) on such business
day.
Company shall notify the Issuing Lender (with a
copy to Administrative Agent) prior to the issuance of any
Letter of Credit in the event that any of the matters to
which Company is required to certify in the applicable
Notice of Issuance of Letter of Credit is no longer true and
correct as of the proposed date of issuance of such Letter
of Credit, and upon the issuance of any Letter of Credit
Company shall be deemed to have re-certified, as of the date
of such issuance, as to the matters to which Company is
required to certify in the applicable Notice of Issuance of
Letter of Credit.
(ii) Issuance of Letter of Credit. Upon satisfaction
or waiver (in accordance with subsection 10.6) of the
conditions set forth in subsection 4.4, the Issuing Lender
shall issue the requested Letter of Credit in accordance
with Issuing Lender's standard operating procedures.
(iii) Notification to Lenders. Upon the issuance
of any Letter of Credit Issuing Lender shall notify
Administrative Agent and each other Lender of such issuance,
which notice shall be accompanied by a copy of such Letter
of Credit. Promptly after receipt of such notice (or, if
Administrative Agent is the Issuing Lender, together with
such notice, Administrative Agent shall notify each Lender
of the amount of such Lender's respective participation in
such Letter of Credit, determined in accordance with
subsection 3.1C.
(iv) Reports to Lenders. Within 15 days after the end
of each calendar quarter of Company ending after the
Effective Date, so long as any Letter of Credit shall have
been outstanding during such calendar quarter, the Issuing
Lender shall deliver to each other Lender a report setting
forth the average for such calendar quarter of the daily
maximum amount available to be drawn under the Letters of
Credit issued by the Issuing Lender that were outstanding
during such calendar quarter.
C. Lenders' Purchase of Participations in Letters of
Credit. Immediately upon the issuance of each Letter of Credit,
each Lender shall be deemed to, and hereby agrees to, have
irrevocably purchased from Administrative Agent a participation
in such Letter of Credit and drawings thereunder in an amount
equal to such Lender's Pro Rata Share of the maximum amount which
is or at any time may become available to be drawn thereunder.
D. Existing Letters of Credit. Each Existing Letter of
Credit outstanding on the Effective Date shall be deemed to be a
Letter of Credit hereunder.
3.2 Letter of Credit Fees.
Company agrees to pay the following amounts with
respect to Letters of Credit issued hereunder:
(i) on the date of issuance and of each extension
thereof of each Letter of Credit, (a) a non-refundable
letter of credit fee, payable to Administrative Agent for
the account of Lenders, equal to 1.00% per annum and (b) a
non-refundable fronting letter of credit fee, payable
directly to the Issuing Lender for its own account equal to
the greater of (x) 0.25% per annum of the maximum amount
available to be drawn under such Letter of Credit and (y)
$500, in each case computed on the basis of a 360 day year
for the actual number of days in the term of such Letter of
Credit, including any extension thereof.
(ii) with respect to the amendment or transfer of each
Letter of Credit and each drawing made thereunder (without
duplication of the fees payable under clause (i) above),
documentary and processing charges payable directly to the
issuing Lender for its own account in accordance with the
Issuing lender's standard schedule for such charges in
effect at the time of such issuance, amendment, transfer or
drawing, as the case may be and, to the extent such amend
ment increases the maximum amount available to be drawn
under any such Letter of Credit, increased fees in accor
dance with the formula set forth in subsection 3.2(i)(a)
above.
Promptly upon receipt by Administrative Agent of any amount
described in clause (i)(a) of this subsection 3.2, Administrative
Agent shall distribute to each other Lender its Pro Rata Share of
such amount.
3.3 Drawings and Reimbursement of Amounts Drawn Under Letters of
Credit.
A. Responsibility of Administrative Agent With Respect to
Drawings. In determining whether to honor any drawing under any
Letter of Credit by the beneficiary thereof, the Issuing Lender
shall be responsible only to determine that the documents and
certificates required to be delivered under such Letter of Credit
have been delivered and that they comply on their face with the
requirements of such Letter of Credit.
B. Reimbursement by Company of Amounts Drawn Under Letters
of Credit. In the event the Issuing Lender has determined to
honor a drawing under a Letter of Credit issued by it, the
Issuing Lender shall immediately notify Company and (unless the
Issuing Letter is Administrative Agent) Administrative Agent, and
Company shall reimburse Administrative Agent on or before the
Business Day immediately following the date on which such drawing
is honored (the "Reimbursement Date") in an amount in Dollars and
in same day funds equal to the amount of such drawing; provided
that, anything contained in this Agreement to the contrary
notwithstanding, (i) unless Company shall have notified Adminis
trative Agent and the Issuing Lender prior to 8:30 A.M. (Pacific
time) on the date of such drawing that Company intends to
reimburse the Issuing Lender for the amount of such drawing with
funds other than the proceeds of Revolving Loans, Company shall
be deemed to have given a timely Notice of Borrowing to
Administrative Agent requesting Lenders to make Base Rate Loans
on the Reimbursement Date in an amount in Dollars equal to the
amount of such drawing and (ii) subject to satisfaction or waiver
of the conditions specified in subsection 4.4B, Lenders shall, on
the Reimbursement Date, make Base Rate Loans in the amount of
such drawing, the proceeds of which shall be applied directly by
Administrative Agent to reimburse the Issuing Lender for the
amount of such drawing; and provided, further that if for any
reason proceeds of Revolving Loans are not received by the
Issuing Lender on the Reimbursement Date in an amount equal to
the amount of such drawing, Company shall reimburse the Issuing
Lender, on demand, in an amount in same day funds equal to the
excess of the amount of such drawing over the aggregate amount of
such Revolving Loans, if any, which are so received. Nothing in
this subsection 3.3B shall be deemed to relieve any Lender from
its obligation to make Revolving Loans on the terms and condi
tions set forth in this Agreement, and Company shall retain any
and all rights it may have against any Lender resulting from the
failure of such Lender to make such Revolving Loans under this
subsection 3.3B.
C. Payment by Lenders of Unreimbursed Drawings Under
Letters of Credit.
(i) Payment by Lenders. In the event that Company
shall fail for any reason to reimburse the Issuing Lender as
provided in subsection 3.3B in an amount equal to the amount
of any drawing honored by the Issuing Lender under a Letter
of Credit issued by it, the Issuing Lender shall promptly
notify each other Lender of the unreimbursed amount of such
drawing and of such other Lender's respective participation
therein based on such Lender's Pro Rata Share. Each Lender
shall make available to the Issuing Lender an amount equal
to its respective participation, in Dollars and in same day
funds, at the office of the Issuing Lender specified in such
notice, not later than 1:30 P.M. (Pacific time) on the first
business day (under the laws of the jurisdiction in which
such office of the Issuing Lender is located) after the date
notified by the Issuing Lender. In the event that any
Lender fails to make available to Administrative Agent on
such business day the amount of such Lender's participation
in such Letter of Credit as provided in this subsection
3.3C, the Issuing Lender shall be entitled to recover such
amount on demand from such Lender together with interest
thereon at the rate customarily used by the Issuing Lender
for the correction of errors among banks for three Business
Days and thereafter at the Base Rate. Nothing in this
subsection 3.3C shall be deemed to prejudice the right of
any Lender to recover from the Issuing Lender any amounts
made available by such Lender to the Issuing Lender pursuant
to this subsection 3.3C in the event that it is determined
by the final judgment of a court of competent jurisdiction
that the payment with respect to a Letter of Credit by the
Issuing Lender in respect of which payment was made by such
Lender constituted gross negligence or willful misconduct on
the part of the Issuing Lender.
(ii) Distribution to Lenders of Reimbursements Received
From Company. In the event the Issuing Lender shall have
been reimbursed by other Lenders pursuant to subsection
3.3C(i) for all or any portion of any drawing honored by the
Issuing Lender under a Letter of Credit issued by it, the
Issuing Lender shall distribute to each other Lender which
has paid all amounts payable by it under subsection 3.3C(i)
with respect to such drawing such other Lender's Pro Rata
Share of all payments subsequently received by the Issuing
Lender from Company in reimbursement of such drawing when
such payments are received. Any such distribution shall be
made to a Lender at its primary address set forth below its
name on the appropriate signature page hereof or at such
other address as such Lender may request.
D. Interest on Amounts Drawn Under Letters of Credit.
(i) Payment of Interest by Company. Company agrees to
pay to the Issuing Lender, with respect to drawings made
under any Letters of Credit issued by it, interest on the
amount paid by the Issuing Lender in respect of each such
drawing from the date of such drawing to but excluding the
date such amount is reimbursed by Company (including any
such reimbursement out of the proceeds of Revolving Loans
pursuant to subsection 3.3B) at a rate equal to (a) for the
period from the date of such drawing to but excluding the
Reimbursement Date, the rate then in effect under this
Agreement with respect to Base Rate Loans and (b) there
after, a rate which is 2% per annum in excess of the rate of
interest otherwise payable under this Agreement with respect
to Base Rate Loans that. Interest payable pursuant to this
subsection 3.3D(i) shall be computed on the basis of a 360-
day year for the actual number of days elapsed in the period
during which it accrues and shall be payable on demand or,
if no demand is made, on the date on which the related
drawing under a Letter of Credit is reimbursed in full.
(ii) Distribution of Interest Payments by the Issuing
Lender. Promptly upon receipt by the Issuing Lender of any
payment of interest pursuant to subsection 3.3D(i) with
respect to a drawing under a Letter of Credit issued by it,
(a) the Issuing Lender shall distribute to each other
Lender, out of the interest received by the Issuing Lender
in respect of the period from the date of such drawing to
but excluding the date on which the Issuing Lender is
reimbursed for the amount of such drawing (including any
such reimbursement out of the proceeds of Revolving Loans
pursuant to subsection 3.3B), the amount that such other
Lender would have been entitled to receive in respect of the
letter of credit fee that would have been payable in respect
of such Letter of Credit for such period pursuant to
subsection 3.2 if no drawing had been made under such Letter
of Credit, and (b) in the event the Issuing Lender shall
have been reimbursed by other Lenders pursuant to subsection
3.3C(i) for all or any portion of such drawing, the Issuing
Lender shall distribute to each other Lender which has paid
all amounts payable by it under subsection 3.3C(i) with
respect to such drawing such other Lender's Pro Rata Share
of any interest received by the Issuing Lender in respect of
that portion of such drawing so reimbursed by other Lenders
for the period from the date on which such the Issuing
Lender was so reimbursed by other Lenders to and including
the date on which such portion of such drawing is reimbursed
by Company. Any such distribution shall be made to a Lender
at its primary address set forth below its name on the
appropriate signature page hereof or at such other address
as such Lender may request.
3.4 Obligations Absolute.
The obligation of Company to reimburse the Issuing
Lender for drawings made under the Letters of Credit issued by it
and to repay any Revolving Loans made by Lenders pursuant to
subsection 3.3B and the obligations of Lenders under subsection
3.3C(i) shall be unconditional and irrevocable and shall be paid
strictly in accordance with the terms of this Agreement under all
circumstances including, without limitation, the following
circumstances:
(i) any lack of validity or enforceability of any
Letter of Credit;
(ii) the existence of any claim, set-off, defense or
other right which Company or any Lender may have at any time
against a beneficiary or any transferee of any Letter of
Credit (or any Persons for whom any such transferee may be
acting), the Issuing Lender or other Lender or any other
Person or, in the case of a Lender, against Company, whether
in connection with this Agreement, the transactions contem
plated herein or any unrelated transaction (including any
underlying transaction between Company or one of its
Subsidiaries and the beneficiary for which any Letter of
Credit was procured);
(iii) any draft, demand, certificate or other
document presented under any Letter of Credit proving to be
forged, fraudulent, invalid or insufficient in any respect
or any statement therein being untrue or inaccurate in any
respect;
(iv) payment by the Issuing Lender under any Letter of
Credit against presentation of a demand, draft or certifi
cate or other document which does not comply with the terms
of such Letter of Credit;
(v) any adverse change in the business, operations,
properties, assets, condition (financial or otherwise) or
prospects of Company or any of its Subsidiaries;
(vi) any breach of this Agreement or any other Loan
Document by any party thereto;
(vii) any other circumstance or happening
whatsoever, whether or not similar to any of the foregoing;
or
(viii) the fact that an Event of Default or a
Potential Event of Default shall have occurred and be
continuing;
provided, in each case, that payment by the Issuing Lender under
the applicable Letter of Credit shall not have constituted gross
negligence or willful misconduct of the Issuing Lender under the
circumstances in question (as determined by a final judgment of a
court of competent jurisdiction).
3.5 Indemnification; Nature of the Issuing Lender's Duties.
A. Indemnification. In addition to amounts payable as
provided in subsection 3.6, Company hereby agrees to protect,
indemnify, pay and save harmless the Issuing Lender from and
against any and all claims, demands, liabilities, damages,
losses, costs, charges and expenses (including reasonable fees,
expenses and disbursements of counsel and Allocated Costs of
Internal Counsel) which the Issuing Lender may incur or be
subject to as a consequence, direct or indirect, of (i) the
issuance of any Letter of Credit by the Issuing Lender, other
than as a result of (a) the gross negligence or willful miscon
duct of the Issuing Lender as determined by a final judgment of a
court of competent jurisdiction or (b) subject to the following
clause (ii), the wrongful dishonor by the Issuing Lender of a
proper demand for payment made under any Letter of Credit issued
by it or (ii) the failure of the Issuing Lender to honor a
drawing under any such Letter of Credit as a result of any act or
omission, whether rightful or wrongful, of any present or future
de jure or de facto government or governmental authority (all
such acts or omissions herein called "Governmental Acts").
B. Nature of the Issuing Lender's Duties. As between
Company and the Issuing Lender, Company assumes all risks of the
acts and omissions of, or misuse of the Letters of Credit issued
by the Issuing Lender by, the respective beneficiaries of such
Letters of Credit. In furtherance and not in limitation of the
foregoing, the Issuing Lender shall not be responsible for:
(i) the form, validity, sufficiency, accuracy, genuineness or
legal effect of any document submitted by any party in connection
with the application for and issuance of any such Letter of
Credit, even if it should in fact prove to be in any or all
respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring
or assigning or purporting to transfer or assign any such Letter
of Credit or the rights or benefits thereunder or proceeds
thereof, in whole or in part, which may prove to be invalid or
ineffective for any reason; (iii) failure of the beneficiary of
any such Letter of Credit to comply fully with any conditions
required in order to draw upon such Letter of Credit;
(iv) errors, omissions, interruptions or delays in transmission
or delivery of any messages, by mail, cable, telegraph, telex or
otherwise, whether or not they be in cipher; (v) errors in
interpretation of technical terms; (vi) any loss or delay in the
transmission or otherwise of any document required in order to
make a drawing under any such Letter of Credit or of the proceeds
thereof; (vii) the misapplication by the beneficiary of any such
Letter of Credit of the proceeds of any drawing under such Letter
of Credit; or (viii) any consequences arising from causes beyond
the control of the Issuing Lender, including without limitation
any Governmental Acts, and none of the above shall affect or
impair, or prevent the vesting of, any of the Issuing Lender's
rights or powers hereunder.
In furtherance and extension and not in limitation of
the specific provisions set forth in the first paragraph of this
subsection 3.5B, any action taken or omitted by the Issuing
Lender under or in connection with the Letters of Credit issued
by it or any documents and certificates delivered thereunder, if
taken or omitted in good faith, shall not put the Issuing Lender
under any resulting liability to Company.
Notwithstanding anything to the contrary contained in
this subsection 3.5, Company shall retain any and all rights it
may have against the Issuing Lender for any liability arising
solely out of the gross negligence or willful misconduct of such
the Issuing Lender, as determined by a final judgment of a court
of competent jurisdiction.
3.6 Increased Costs and Taxes Relating to Letters of Credit.
In the event that the Issuing Lender or any Lender
shall determine (which determination shall, absent manifest
error, be final and conclusive and binding upon all parties
hereto) that any law, treaty or governmental rule, regulation or
order, or any change therein or in the interpretation, adminis
tration or application thereof (including the introduction of any
new law, treaty or governmental rule, regulation or order), or
any determination of a court or governmental authority, in each
case that becomes effective after the date hereof, or compliance
by the Issuing Lender or Lenders with any guideline, request or
directive issued or made after the date hereof by any central
bank or other governmental or quasi-governmental authority
(whether or not having the force of law):
(i) subjects the Issuing Lender or such Lender (or its
applicable lending or letter of credit office) to any addi
tional Tax (other than any Tax on the overall net income of
the Issuing Lender or such Lender) with respect to the issu
ing or maintaining of any Letters of Credit or the purchas
ing or maintaining of any participations therein or any
other obligations under this Section 3, whether directly or
by such being imposed on or suffered by the Issuing Lender;
(ii) imposes, modifies or holds applicable any reserve
(including without limitation any marginal, emergency,
supplemental, special or other reserve), special deposit,
compulsory loan, FDIC insurance or similar requirement in
respect of any Letters of Credit issued by the Issuing
Lender or participations therein purchased by any Lender; or
(iii) imposes any other condition (other than with
respect to a Tax matter) on or affecting the Issuing Lender
or such Lender (or its applicable lending or letter of
credit office) regarding this Section 3 or any Letter of
Credit or any participation therein;
and the result of any of the foregoing is to increase the cost to
the Issuing Lender or such Lender of agreeing to issue, issuing
or maintaining any Letter of Credit or agreeing to purchase,
purchasing or maintaining any participation therein or to reduce
any amount received or receivable by the Issuing Lender or such
Lender (or its applicable lending or letter of credit office)
with respect thereto; then, in any case, Company shall promptly
pay to the Issuing Lender or such Lender, upon receipt of the
statement referred to in the next sentence, such additional
amount or amounts as may be necessary to compensate the Issuing
Lender or such Lender for any such increased cost or reduction in
amounts received or receivable hereunder. the Issuing Lender or
such Lender shall deliver to Company a written statement, setting
forth in reasonable detail the basis for calculating the addi
tional amounts owed to the Issuing Lender or such Lender under
this subsection 3.6, which statement shall be conclusive and
binding upon all parties hereto absent manifest error.
SECTION 4.
CONDITIONS TO EFFECTIVENESS;
CONDITIONS TO LOANS AND LETTERS OF CREDIT
4.1 Conditions to Effectiveness.
This Agreement shall become effective only upon the
satisfaction or written waiver by Requisite Lenders of the
following conditions precedent, which satisfaction or waiver
shall be confirmed in writing on the Effective Date by
Administrative Agent to Company:
A. Company Documents. On or before the Effective Date,
Company shall deliver or cause to be delivered to Lenders (or to
Administrative Agent for Lenders with sufficient originally
executed copies, where appropriate, for each Lender and its
counsel) the following, each, unless otherwise noted, dated the
Effective Date:
(i) Certified copies of its charter documents,
together with a good standing certificate from the Secretary
of State of the State of Nevada and each state in which it
is qualified as a foreign corporation to do business and, to
the extent generally available, a certificate or other
evidence of good standing as to payment of any applicable
franchise or similar taxes from the appropriate taxing
authority of each of such states, each dated a recent date
prior to the Effective Date;
(ii) Copies of its Bylaws, certified as of the
Effective Date by its secretary or an assistant secretary;
(iii) Resolutions of its Board of Directors
approving and authorizing the execution, delivery and
performance of this Agreement and the other New Loan
Documents to which it is a party, certified as of the
Effective Date by its secretary or an assistant secretary as
being in full force and effect without modification or
amendment;
(iv) Signature and incumbency certificates of its
officers executing this Agreement and the other New Loan
Documents to which it is a party;
(v) Executed originals of this Agreement, the Notes
drawn to the order of each Lender and Swing Line Lender if
requested by such Lender or Swing Line Lender and with
appropriate insertions, the Acknowledgement and Confirmation
and the other New Loan Documents to which it is a party; and
(vi) Such other documents as Administrative Agent may
reasonably request.
B. Loan Party Documents. On or before the Effective Date,
each Loan Party shall deliver or cause to be delivered to Lenders
(or to Administrative Agent for Lenders with sufficient
originally executed copies, where appropriate, for each Lender
and its counsel) the following, each, unless otherwise noted,
dated the Effective Date:
(i) Certified copies of its Certificate or Articles of
Incorporation, Formation or Organization or other charter
documents, together with a good standing certificate from
the Secretary of State of the state of its incorporation and
each other state in which it is qualified as a foreign
corporation to do business and, to the extent generally
available, a certificate or other evidence of good standing
as to payment of any applicable franchise or similar taxes
from the appropriate taxing authority of each of such
states, each dated a recent date prior to the Effective
Date;
(ii) Copies of its Bylaws, Operating Agreements or
Partnership Agreements, if any, certified as of the
Effective Date by its corporate secretary or an assistant
secretary;
(iii) Resolutions or unanimous consents of its
Board of Directors, partners or members approving and
authorizing the execution, delivery and performance of the
New Loan Documents to which it is a party, certified as of
the Effective Date by its corporate secretary or an
assistant secretary as being in full force and effect
without modification or amendment;
(iv) Signature and incumbency certificates of its
officers executing the New Loan Documents to which it is a
party;
(v) Executed originals of the New Loan Documents to
which it is a party; and
(vi) Such other documents as Administrative Agent may
reasonably request.
C. Corporate and Capital Structure. The corporate
organizational structure of Company and its Subsidiaries shall be
as set forth on Schedule 4.1(c) annexed hereto.
D. Opinions of Company's Counsel. Lenders and their
respective counsel shall have received (i) originally executed
copies of the favorable written opinion of ▇▇▇▇▇▇, ▇▇▇▇▇ &
▇▇▇▇▇▇▇ LLP, counsel for Company, in form and substance
reasonably satisfactory to Administrative Agent and its counsel,
dated as of the Effective Date and setting forth substantially
the matters in the opinions designated in Exhibit VII annexed
hereto and as to such other matters as Administrative Agent
acting on behalf of Lenders may reasonably request and
(ii) opinions from special counsel to Company (including
admiralty counsel) with respect to such matters governed by the
laws of the states of Nevada, Illinois, Louisiana, Missouri,
Kentucky and New Jersey and by maritime law as Administrative
Agent acting on behalf of Lenders may reasonably request.
E. Opinions of Administrative Agent's Counsel. Lenders
shall have received originally executed copies of one or more
favorable written opinions of O'Melveny & ▇▇▇▇▇ LLP, counsel to
Administrative Agent, dated as of the Effective Date,
substantially in the form of Exhibit VIII annexed hereto and as
to such other matters as Administrative Agent acting on behalf of
Lenders may reasonably request.
F. Flood Insurance. Administrative Agent shall have been
provided with satisfactory evidence, which may be in the form of
a letter from an insurance broker, municipal engineer, or other
knowledgeable source unaffiliated with Company, as to whether
(a) any of the Premises that are subject to the Lien of any
Mortgage are located in an area designated by the Department of
Housing and Urban Development as having special flood or mudslide
hazards, and (b) any of the communities in which any of the
Facilities are located is participating in the National Flood
Insurance Program. If both of the aforesaid conditions exist,
Administrative Agent shall receive satisfactory policies of flood
insurance covering the applicable Improvements as required by the
Flood Act.
G. Perfection of Security Interests. Loan Parties shall
have taken or caused to be taken such actions in such a manner so
that Administrative Agent, on behalf of Lenders, or the Trustee,
solely for the benefit of Administrative Agent, on behalf of
Lenders, as the case may be, each has a valid and perfected first
priority security interest (subject only to Liens permitted under
subsection 7.2) in all Collateral in which a Lien is purported to
be granted by the Collateral Documents. Such actions shall
include, without limitation, the following:
(i) the receipt by Administrative Agent of evidence
satisfactory to it that amendments ("Mortgage Amendments")
to each Mortgage heretofore executed and delivered with
respect to the Louisiana Facilities, the Illinois Facilities
and the Louisiana Hotel Facilities (such Mortgages being the
"Existing Mortgages") have been executed and acknowledged
and will be recorded in all jurisdictions as may be
necessary or, in the opinion of Administrative Agent,
desirable to effectively create or maintain in effect valid
and perfected Liens (subject only to Liens permitted under
subsection 7.2) created by the Existing Mortgages securing
the Obligations, as such Obligations have been amended or
modified by this Agreement;
(ii) the receipt by Administrative Agent of evidence
satisfactory to it that amendments ("Ship Mortgage
Amendments") to each Ship Mortgage heretofore executed and
delivered with respect to the Louisiana Ships and the
Illinois Ships (such Ship Mortgages being the "Existing Ship
Mortgages") have been executed and acknowledged and will be
recorded in all jurisdictions as may be necessary or, in the
opinion of Administrative Agent, desirable to effectively
create or maintain in effect valid and perfected Liens
(subject only to Liens permitted under subsection 7.2)
created by the Existing Ship Mortgages securing the
Obligations, as such Obligations have been amended or
modified by this Agreement; and
(iii) the receipt by Administrative Agent of
evidence satisfactory to it that all other filings,
recordings and other actions Administrative Agent deems
necessary or advisable to establish, preserve and perfect
the first priority Liens (subject only to Liens permitted
under subsection 7.2) granted to Administrative Agent in the
Collateral (including, without limitation, Collateral
subject to the Lien of any Collateral Document executed and
delivered pursuant to the Existing Credit Agreement) shall
have been made.
H. Amendments to Title Policies. Lenders shall have
received confirmation from the Title Company that the Title
Company will issue endorsements to, or rewrites of, the Title
Policies over all Liens other than Liens previously identified in
and excluded from the coverage of the Title Policies, and
otherwise providing the Lenders with the same types and levels of
insurance provided in the Title Policies.
I. Necessary Consents. On or before the Effective Date,
each Loan Party shall have obtained all consents that are
required for the operation of the Facilities, in each case, and
the transactions contemplated under this Agreement and the other
Loan Documents of (i) Illinois Gaming Authorities, Louisiana
Gaming Authorities, Missouri Gaming Authorities and other
Governmental Authorities and (ii) any Person required under any
Contractual Obligation of any Loan Party, all of the foregoing in
form and substance satisfactory to Administrative Agent.
J. Interest and Certain Fees. Company shall have paid to
Administrative Agent, for distribution (as appropriate) to
Administrative Agent and Lenders, all accrued and unpaid interest
and fees under the Existing Credit Agreement payable on the
Effective Date as provided in subsection 2.3B(iii).
K. [omitted]
L. [omitted]
M. Payment of Amounts owed under Existing Credit
Agreement. Company shall have paid to Administrative Agent for
distribution to the Lenders under the Existing Credit Agreement
(i) all interest and commitment fees that have accrued through
the Effective Date, (ii) all accrued and unpaid fees and
commissions with respect to all Existing Letters of Credit that
have accrued through the Effective Date and (iii) all other fees
and amounts owed under the Existing Credit Agreement (other than
the principal amount of the Loans that shall continue to be owed
hereunder and under the Notes).
N. Repayment of Existing Revolving Loans. On the
Effective Date, concurrently with any borrowing of Revolving
Loans made on the Effective Date, Company (i) shall repay in full
all Existing Revolving Loans owed to each Noncontinuing Lender
and (ii) shall repay Existing Revolving Loans owed to each Lender
in amounts such that, after giving effect thereto, the Revolving
Loans of each Lender shall be in an amount directly proportional
to such Lender's Pro Rata Share of all Revolving Loans
outstanding after giving effect to such repayment. Each such
repayment shall be made together with all interest accrued on
such Existing Revolving Loans to the date of repayment.
O. Administrative Agent's Counsel Fees. Company shall
have paid the reasonable fees and disbursements of counsel to
Administrative Agent.
P. Administrative Agent's Fees. Company shall have paid
to Administrative Agent the fees set forth in that certain letter
agreement between the Administrative Agent and Company dated
February 17, 1998.
Q. No Material Adverse Effect. Since March 31, 1997, no
Material Adverse Effect (in the sole opinion of each Lender)
shall have occurred.
R. Representations and Warranties; Performance of
Agreements. Company shall have delivered to Administrative Agent
an Officers' Certificate, in form and substance satisfactory to
Administrative Agent, to the effect that the representations and
warranties in Section 5 hereof are true, correct and complete on
and as of the Effective Date to the same extent as though made on
and as of that date and that Company shall have performed all
agreements and satisfied all conditions which this Agreement
provides shall be performed or satisfied by it on or before the
Effective Date except as otherwise disclosed to and agreed to in
writing by Administrative Agent and each Lender.
S. Completion of Proceedings. All corporate and other
proceedings taken or to be taken in connection with the
transactions contemplated hereby and all documents incidental
thereto not previously found acceptable by Administrative Agent,
acting on behalf of Lenders, and its counsel shall be
satisfactory in form and substance to Administrative Agent and
such counsel, and Administrative Agent and such counsel shall
have received all such counterpart originals or certified copies
of such documents as Administrative Agent may reasonably request.
T. Delivery of Pricing Determination Certificate.
Administrative Agent shall have received a Pricing Determination
Certificate calculated utilizing the most recent financial
statements delivered to Administrative Agent under the Existing
Credit Agreement.
U. Appraisals. Administrative Agent shall have received
appraisals in form, scope and substance satisfactory to
Administrative Agent concerning the real property Collateral
securing the Loans, in each case to the extent required under
applicable laws and regulations as determined by Administrative
Agent in its discretion.
V. Leases. Administrative Agent shall have received
complete copies of all leases for any of the properties and
facilities comprising all or any portion of the Facilities that
are leased by Company or any of its Subsidiaries in each case
entered into after December 16, 1996, and a "landlord estoppel
certificate" for such leases (other than with respect to the
lease referred to in subsection 5.5A(iii)), certifying that no
defaults by the lessee currently exist under any such lease and
confirming, among other things, the annual rental amount paid by
Company or its Subsidiaries to lessor thereunder.
W. Governmental Authorizations. Administrative Agent
shall have received satisfactory evidence that Company and its
Subsidiaries have obtained all Governmental Authorizations
(including, without limitation, Governmental Authorizations from
Gaming Authorities and all zoning approvals, special or
conditional use permits, variances, permits, licenses, liquor
licenses, certificates of occupancy and franchises) necessary to
permit the use, occupancy and operation of each of the Facilities
presently in operation or necessary for Company to amend and
restate the Existing Credit Agreement pursuant to this Agreement
and for Loan Parties to perform the transactions contemplated
hereby.
X. No Disruption of Financial and Capital Markets. There
shall have been no material adverse change after the date hereof
in the syndication markets for credit facilities similar in
nature to the Loans, and there shall not have occurred and be
continuing a material disruption of or material adverse change in
the financial, banking or capital markets that would have an
adverse effect on such syndication market, in each case as
determined by Administrative Agent in its sole discretion.
Y. Effective Date. The Effective Date is on or before
March 31, 1998.
4.2 [omitted].
4.3 [omitted].
4.4 Conditions to All Loans.
The obligations of Lenders to make Revolving Loans and
of Swing Line Lender to make Swing Line Loans on each Funding
Date are subject to the following further conditions precedent:
A. Administrative Agent shall have received before that
Funding Date, in accordance with the provisions of subsection
2.1C, an originally executed Notice of Borrowing, in each case
signed by the chief executive officer, the chief financial
officer or the treasurer of Company or by any executive officer
of Company designated by any of the above-described officers on
behalf of Company in a writing delivered to Administrative Agent.
B. As of that Funding Date:
(i) The representations and warranties contained
herein and in the other Loan Documents shall be true,
correct and complete in all material respects on and as of
that Funding Date to the same extent as though made on and
as of that 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, correct and complete in all material respects on
and as of such earlier date;
(ii) No event shall have occurred and be continuing or
would result from the consummation of the borrowing
contemplated by such Notice of Borrowing that would
constitute an Event of Default or, to Company's Best
Knowledge (following the reasonable exercise of diligence
appropriate for the circumstance in question by the officers
of the Company executing the applicable Notice of
Borrowing), a Potential Event of Default;
(iii) Company shall have performed in all material
respects all agreements and satisfied all conditions which
this Agreement provides shall be performed or satisfied by
it on or before that Funding Date;
(iv) No order, judgment or decree of any court,
arbitrator or governmental authority shall purport to enjoin
or restrain any Lender from making the Loans to be made by
it on that Funding Date; provided that any such order,
judgment or decree shall only relieve that Lender on whom
such order, judgment or decree is binding from its
obligation to make Loans to Company.
(v) The making of the Loans requested on such Funding
Date shall not violate any law including, without
limitation, Regulation G, Regulation T, Regulation U or
Regulation X of the Board of Governors of the Federal
Reserve System;
(vi) There shall not be pending or, to the knowledge of
Company, threatened, any action, suit, proceeding,
governmental investigation or arbitration against or
affecting Company or any of its Subsidiaries or any property
of Company or any of its Subsidiaries that has not been
disclosed by Company in writing pursuant to subsection 5.6
or 6.1(x) prior to the making of the last preceding Loans
(or, in the case of the initial Loans, prior to the
execution of this Agreement), and there shall have occurred
no development not so disclosed in any such action, suit,
proceeding, governmental investigation or arbitration so
disclosed, that, in either event, in the reasonable opinion
of Administrative Agent or of Requisite Lenders, would be
expected to have a Material Adverse Effect; and no
injunction or other restraining order shall have been issued
and no hearing to cause an injunction or other restraining
order to be issued shall be pending or noticed with respect
to any action, suit or proceeding seeking to enjoin or
otherwise prevent the consummation of, or to recover any
damages or obtain relief as a result of, the transactions
contemplated by this Agreement or the making of Loans
hereunder; and
(vii) No Material Adverse Effect (in the sole
opinion of each Lender) shall have occurred since either (i)
March 31, 1997 or (ii) the date of the most recent audited
financial statements of the Company delivered pursuant to
subsection 6.1(iii); provided that such opinion by any
Lender as to the occurrence of a Material Adverse Effect
shall only relieve that Lender holding such opinion from its
obligation to make Loans to Company.
C. Neither Administrative Agent nor any Lender has given
each other Lender written notice that it has actual knowledge of
the occurrence of any event that, on such Funding Date, either
(i) causes any of the representations and warranties to be made
by Company on such date to be untrue in any material respect as
of such date or (ii) causes any representations and warranties
that specifically relate to an earlier date to have been untrue
in any material respect on and as of such earlier date.
4.5 Conditions to Letters of Credit.
The issuance of any Letter of Credit hereunder is
subject to the following conditions precedent:
A. On or before the date of issuance of the initial Letter
of Credit pursuant to this Agreement, the conditions set forth in
subsection 4.1 shall have been satisfied or waived in writing by
Requisite Lenders.
B. On or before the date of issuance of such Letter of
Credit, the Issuing Lender shall have received, in accordance
with the provisions of subsection 3.1B(i), an originally executed
Notice of Issuance of Letter of Credit, signed by the chief
executive officer, the chief financial officer or the treasurer
of Company or by any executive officer of Company designated by
any of the above-described officers on behalf of Company in a
writing delivered to the Issuing Lender, together with all other
information specified in subsection 3.1B(i) and such other
documents or information as the Issuing Lender may reasonably
require in connection with the issuance of such Letter of Credit.
C. On the date of issuance of such Letter of Credit, all
conditions precedent described in subsection 4.4B shall be
satisfied to the same extent as if the issuance of such Letter of
Credit were the making of a Loan and the date of issuance of such
Letter of Credit were a Funding Date.
SECTION 5.
COMPANY'S REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Agreement
and to make the Loans, to induce Administrative Agent to issue
Letters of Credit and to induce other Lenders to purchase
participations therein, Company represents and warrants to each
Lender, on the date of this Agreement, on each Funding Date and
on the date of issuance of each Letter of Credit, that the
following statements are true, correct and complete:
5.1 Organization, Powers, Qualification, Good Standing, Business
and Subsidiaries.
A. Organization and Powers. Company is a corporation duly
organized, validly existing and in good standing under the laws
of the State of Nevada. Company has all requisite corporate
power and authority to own and operate its properties, to carry
on its business as now conducted and as proposed to be conducted,
to enter into the Loan Documents and to carry out the
transactions contemplated thereby.
B. Qualification and Good Standing. Company is qualified
to do business and in good standing in every jurisdiction where
its assets are located and wherever necessary to carry out its
business and operations, except in jurisdictions where the
failure to be so qualified or in good standing has not had and,
to Company's Best Knowledge, will not have a Material Adverse
Effect.
C. Conduct of Business. Company and its Subsidiaries are
engaged only in the businesses permitted to be engaged in
pursuant to subsection 7.10.
D. Subsidiaries. Except for Subsidiaries identified on
Schedule 5.1 with no substantial assets that are to be dissolved,
all of the Subsidiaries of Company are identified in Schedule 5.1
annexed hereto, as said Schedule 5.1 may be supplemented from
time to time pursuant to the provisions of subsection 6.1(xviii).
The capital stock of each of the Subsidiaries of Company
identified in Schedule 5.1 annexed hereto (as so supplemented) is
duly authorized, validly issued, fully paid and nonassessable and
none of such capital stock constitutes Margin Stock. Each of the
Subsidiaries of Company identified in Schedule 5.1 annexed hereto
(as so supplemented) is an entity duly organized, validly
existing and in good standing under the laws of its respective
jurisdiction of incorporation or organization set forth therein,
has all requisite corporate or partnership power and authority to
own and operate its properties and to carry on its business as
now conducted and as proposed to be conducted, and is qualified
to do business and in good standing in every jurisdiction where
its assets are located and wherever necessary to carry out its
business and operations, in each case except where failure to be
so qualified or in good standing or a lack of such corporate or
partnership power and authority has not had and, to Company's
Best Knowledge, will not have a Material Adverse Effect except
for Subsidiaries identified on Schedule 5.1 with no substantial
assets that are to be dissolved. Schedule 5.1 annexed hereto (as
so supplemented) correctly sets forth the ownership interest of
Company and each of its Subsidiaries in each of the Subsidiaries
of Company identified therein.
5.2 Authorization of Borrowing, etc.
A. Authorization of Borrowing. The execution, delivery
and performance of the Loan Documents have been duly authorized
by all necessary corporate action on the part of each Loan Party
that is a party thereto.
B. No Conflict. The execution, delivery and performance
by each Loan Party of the Loan Documents and the consummation of
the transactions contemplated by the Loan Documents do not and,
to Company's Best Knowledge, will not (i) violate (X) any
provision of any law or any governmental rule or regulation
applicable to Company or any of its Subsidiaries the violation of
which could have a Material Adverse Effect, (Y) the Certificate
or Articles of Incorporation or Bylaws of Company or any of its
Subsidiaries or (Z) any order, judgment or decree of any court or
other agency of government binding on Company or any of its
Subsidiaries the violation of which could have a Material Adverse
Effect, (ii) conflict with, result in a breach of or constitute
(with due notice or lapse of time or both) a default under any
Contractual Obligation of Company or any of its Subsidiaries, if
the execution of any of the Loan Documents would afford any party
(other than Company) the right (after the giving of notice or
lapse of time or both) to terminate such Contractual Obligation
or seek judicial relief against Company as a result thereof,
(iii) result in or require the creation or imposition of any Lien
upon any of the properties or assets of Company or any of its
Subsidiaries (other than any Liens created under any of the Loan
Documents in favor of Administrative Agent on behalf of Lenders),
or (iv) require any approval of stockholders or any approval or
consent of any Person under any Contractual Obligation of Company
or any of its Subsidiaries, except for such approvals or consents
which will be obtained on or before the Effective Date and
disclosed in writing to Lenders.
C. Governmental Consents. The execution, delivery and
performance by the Loan Parties of the Loan Documents and the
consummation of the transactions contemplated by the Loan
Documents do not and will not require any registration with,
consent or approval of, or notice to, or other action to, with or
by, any federal, state or other governmental authority or
regulatory body except (i) those that have been obtained and
copies of which have been delivered to Administrative Agent
pursuant to subsection 4.1I or the absence of which
Administrative Agent has deemed satisfactory pursuant to
subsection 4.1I, (ii) those notices or informational filings or
both that will be required to be given to the Securities and
Exchange Commission or any Gaming Board but that are not yet due,
(iii) any right of any Gaming Board to object to any Lender or
participant in the Loans at any future date, and (iv) any
regulatory approvals in Louisiana that are granted after the
fact.
D. Binding Obligation. Each of the Loan Documents has
been duly executed and delivered by the Loan Parties signatory
thereto and is the legally valid and binding obligation of such
Loan Party, enforceable against such Loan Party in accordance
with its respective terms, except as may be limited by bank
ruptcy, insolvency, reorganization, moratorium or similar laws
relating to or limiting creditors' rights generally or by
equitable principles relating to enforceability.
5.3 Financial Condition.
Company has heretofore delivered to Lenders, at
Lenders' request, the following financial statements and
information: (i) the audited consolidated balance sheet of
Company and its Subsidiaries as at March 31, 1997, and the
related consolidated statements of income, stockholders' equity
and cash flows of Company and its Subsidiaries for the Fiscal
Year then ended and (ii) the unaudited consolidated and
Consolidating balance sheets of Company and its Subsidiaries as
at December 31, 1997, and the related unaudited consolidated and
Consolidating statements of income, stockholders' equity and cash
flows of Company and its Subsidiaries for the six months then
ended. All such statements were prepared in conformity with GAAP
and fairly present the financial position (on a consolidated and,
where applicable, Consolidating basis) of the entities described
in such financial statements as at the respective dates thereof
and the results of operations and cash flows (on a consolidated
and, where applicable, Consolidating basis) of the entities
described therein for each of the periods then ended, subject, in
the case of any such unaudited financial statements, to changes
resulting from audit and normal year-end adjustments, including
the information presented in the footnotes to Company's audited
financial statements. Company does not (and will not following
the funding of the initial Loans) have any Contingent Obligation,
contingent liability or liability for taxes, long-term lease or
unusual forward or long-term commitment that is not reflected in
the foregoing financial statements or the notes thereto or,
following the funding of initial Loans, in the financial
statements required to be delivered pursuant to subsection 6.1
and which in any such case is material in relation to the
business, operations, properties, assets, condition (financial or
otherwise) or prospects of Company and its Subsidiaries, taken as
a whole.
5.4 No Material Adverse Change; No Restricted Payments.
Since March 31, 1997, no event or change has occurred
that has caused or evidences, either in any case or in the aggre
gate, a Material Adverse Effect. Neither Company nor any of its
Subsidiaries has directly or indirectly declared, ordered, paid
or made, or set apart any sum or property for, any Restricted
Payment or agreed to do so except as permitted by subsection 7.5.
5.5 Title to Properties; Liens.
A. Company and its Subsidiaries have (i) good, sufficient
and legal title to (in the case of fee interests in real
property), (ii) valid leasehold interests in (in the case of
leasehold interests in real or personal property), or (iii) good
title to (in the case of all other personal property), all of
their respective properties and assets reflected in the financial
statements referred to in subsection 5.3 or in the most recent
financial statements delivered pursuant to subsection 6.1, in
each case except for assets disposed of since the date of such
financial statements in the ordinary course of business or as
otherwise permitted under subsection 7.7. Except as permitted by
this Agreement, all such properties and assets are free and clear
of Liens.
B. (i) All of the assets, of whatever kind and nature,
whether real, personal or mixed property, used in connection
with the Illinois Facilities or placed or located in or on
the Illinois Premises are owned or leased directly by SIRCC
or RR and not by Company or any of Company's other
Subsidiaries.
(ii) All of the assets, of whatever kind and nature,
whether real, personal or mixed property, used in connection
with the Louisiana Facilities or placed or located in or on
the Louisiana Premises are owned or leased directly by PLC,
SSP or PRLLC and not by Company or any of Company's other
Subsidiaries.
(iii) Neither the Company nor any of its
Subsidiaries owns or leases any real or personal property
located in the state of Nevada, except for the lease by
PRES, PEI and PHI of an office within ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ and except for a month to month
document storage space lease at 1120 ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
and successor arrangements.
(iv) All of the assets, of whatever kind and nature,
whether real, personal or mixed property, used in connection
with the Maryland Heights Facilities or placed or located in
or on the Maryland Heights Facilities are owned or leased
directly by the Maryland Heights Subsidiaries (or ▇▇▇▇▇▇'▇)
and not by Company or any of Company's other Subsidiaries.
(v) All of the assets, of whatever kind and nature,
whether real, personal or mixed property, used in connection
with the Louisiana Hotel Facilities or placed or located in
or on the Louisiana Hotel Premises are owned or leased
directly by PLC and not by Company or any of Company's other
Subsidiaries.
C. (i) SIRCC, PLC, SSP, and PRLLC each have good and
valid title to the Ship or Ships and the Barge or Barges
owned by it, free and clear of all liens, charges,
encumbrances and security interests other than those in
favor of Administrative Agent pursuant to the Existing
Credit Agreement or those permitted under subsection 7.2;
(ii) each Ship listed on Schedule 5.5, as said Schedule
5.5 may be supplemented from time to time pursuant to the
provisions of subsection 6.1(xxi), is subject to a valid
certificate of documentation identifying SIRCC, PLC, SSP or
PRLLC, as the case may be, as the registered owner thereof
under the laws and regulations of the United States; and
(iii) SIRCC, PLC, SSP, and PRLLC each have all
necessary authority required to own and operate the Ship or
Ships and the Barge or Barges owned by it for such Ships' or
Barges' intended purposes.
D. On the Effective Date, the only water craft of any
nature whatsoever (whether constituting a vessel, Barge, US
Documented Barge, floating structure or otherwise) owned by
Company or any of its Subsidiaries that is subject to a valid
certificate of documentation pursuant to the laws of the United
States of America are the Star Casino, the Players Riverboat
Casino II, the Players Riverboat III (including both vessel
#999887 and vessel #999888) and the US Documented Barges
described on Schedule 5.5.
5.6 Litigation; Adverse Facts.
Except as set forth in Schedule 5.6 annexed hereto,
there are no actions, suits, proceedings, arbitrations or, to
Company's Best Knowledge, governmental investigations (whether or
not purportedly on behalf of Company or any of its Subsidiaries)
at law or in equity or before or by any federal, state, municipal
or other governmental department, commission, board, bureau,
agency or instrumentality, domestic or foreign, pending or, to
the knowledge of Company, threatened against or affecting Company
or any of its Subsidiaries or any property of Company or any of
its Subsidiaries that, individually or in the aggregate, could
reasonably be expected to result in a Material Adverse Effect.
Neither Company nor any of its Subsidiaries is (i) in violation
of any applicable laws that, individually or in the aggregate,
could reasonably be expected to result in a Material Adverse
Effect or (ii) subject to or in default with respect to any final
judgments, writs, injunctions, decrees, rules or regulations of
any court or any federal, state, municipal or other governmental
department, commission, board, bureau, agency or instrumentality,
domestic or foreign, that, individually or in the aggregate,
could reasonably be expected to result in a Material Adverse
Effect.
5.7 Payment of Taxes.
Except to the extent permitted by subsection 6.3, all
tax returns and reports of Company and its Subsidiaries required
to be filed by any of them have been timely filed, and all taxes,
assessments, fees and other governmental charges upon Company and
its Subsidiaries and upon their respective properties, assets,
income, businesses and franchises which are due and payable have
been paid when due and payable. Company knows of no proposed tax
assessment against Company or any of its Subsidiaries which has
not been provided for or which is not being actively contested by
Company or such Subsidiary in good faith and by appropriate
proceedings; provided that such reserves or other appropriate
provisions, if any, as shall be required in conformity with GAAP
shall have been made or provided therefor.
5.8 Performance of Agreements; Materially Adverse Agreements.
A. Neither Company nor any of its Subsidiaries is in
default in the performance, observance or fulfillment of any of
the obligations, covenants or conditions contained in any of its
Contractual Obligations, and no condition exists that, with the
giving of notice or the lapse of time or both, would constitute
such a default, except where the consequences, direct or
indirect, of such default or defaults, if any, would not have a
Material Adverse Effect.
B. Neither Company nor any of its Subsidiaries is a party
to or is otherwise subject to any agreements or instruments or
any charter or other internal restrictions which, individually or
in the aggregate, could reasonably be expected to result in a
Material Adverse Effect.
5.9 Governmental Regulation.
Neither Company nor any of its Subsidiaries is subject
to regulation under the Public Utility Holding Company Act of
1935, the Federal Power Act, the Interstate Commerce Act or the
Investment Company Act of 1940 or under any other federal or
state statute or regulation which may limit its ability to incur
Indebtedness or which may otherwise render all or any portion of
the Obligations unenforceable.
5.10 Securities Activities.
A. Neither Company 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.
B. Following application of the proceeds of each Loan, not
more than 25% of the value of the assets (either of Company only
or of Company and its Subsidiaries on a consolidated basis)
subject to the provisions of subsection 7.2 or 7.7 or subject to
any restriction contained in any agreement or instrument, between
Company and any Lender or any Affiliate of any Lender, relating
to Indebtedness and within the scope of subsection 8.2, will be
Margin Stock.
5.11 Employee Benefit Plans.
A. Except as described in Schedule 5.11 annexed hereto,
Company and each of its ERISA Affiliates are in compliance with
all applicable provisions and requirements of ERISA and the
regulations and published interpretations thereunder with respect
to each Employee Benefit Plan, and have performed all their
obligations under each Employee Benefit Plan.
B. No ERISA Event has occurred or is reasonably expected
to occur with respect to Company or any of its ERISA Affiliates.
C. Except to the extent required under Section 4980B of
the Internal Revenue Code or except as set forth in Schedule 5.11
annexed hereto, no Employee Benefit Plan provides health or
welfare benefits (through the purchase of insurance or otherwise)
for any retired or former employees of Company or any of its
ERISA Affiliates.
D. As of the most recent valuation date for any Pension
Plan, the amount of unfunded benefit liabilities (as defined in
Section 4001(a)(18) of ERISA), individually or in the aggregate
for all Pension Plans (excluding for purposes of such computation
any Pension Plans with respect to which assets exceed benefit
liabilities), does not exceed $5,000,000.
5.12 Certain Fees.
No broker's or finder's fee or commission will be
payable with respect to this Agreement or any of the transactions
contemplated hereby, and Company hereby indemnifies
Administrative Agent, Managing Agent and Arranger against, and
agrees that it will hold Administrative Agent, Managing Agent and
Arranger harmless from, any claim, demand or liability for any
such broker's or finder's fees alleged to have been incurred by
Administrative Agent, Managing Agent or Arranger as the result of
any action or inaction by Company in connection herewith or
therewith and any expenses (including reasonable fees, expenses
and disbursements of counsel) arising in connection with any such
claim, demand or liability.
5.13 Environmental Protection.
Except as set forth in Schedule 5.13 annexed hereto:
(i) the operations of Company and each of its
Subsidiaries (including, without limitation, all operations
and conditions at or in the Facilities) comply in all
material respects with all Environmental Laws;
(ii) Company and each of its Subsidiaries have obtained
all Governmental Authorizations under Environmental Laws
necessary to their respective operations, and all such
Governmental Authorizations are in good standing, and
Company and each of its Subsidiaries are in compliance with
all material terms and conditions of such Governmental
Authorizations;
(iii) neither Company nor any of its Subsidiaries
has received (a) any notice or claim to the effect that it
is or may be liable to any Person as a result of or in
connection with any Hazardous Materials or (b) any letter or
request for information under Section 104 of the Comprehen
sive Environmental Response, Compensation, and Liability Act
(42 U.S.C. 9604) or comparable state laws, and, to the
best of Company's knowledge, none of the operations of
Company or any of its Subsidiaries is the subject of any
federal or state investigation relating to or in connection
with any Hazardous Materials at any Facility or at any other
location;
(iv) none of the operations of Company or any of its
Subsidiaries is subject to any judicial or administrative
proceeding alleging the violation of or liability under any
Environmental Laws which if adversely determined could
reasonably be expected to have a Material Adverse Effect;
(v) neither Company nor any of its Subsidiaries nor
any of their respective Facilities or operations are subject
to any outstanding written order or agreement with any
governmental authority or private party relating to (a) any
Environmental Laws or (b) any Environmental Claims;
(vi) neither Company nor any of its Subsidiaries has
any contingent liability in connection with any Release of
any Hazardous Materials by Company or any of its
Subsidiaries;
(vii) neither Company nor any of its Subsidiaries
nor, to Company's Best Knowledge, any predecessor of Company
or any of its Subsidiaries has filed any notice under any
Environmental Law indicating past or present treatment or
Release of Hazardous Materials at any Facility, and none of
Company's or any of its Subsidiaries' operations involves
the generation, transportation, treatment, storage or
disposal of hazardous waste, as defined under 40 C.F.R.
Parts 260-270 or any state equivalent;
(viii) no Hazardous Materials exist on, under or
about any Facility in a manner that has a reasonably
possibility of giving rise to an Environmental Claim having
a Material Adverse Effect, and neither Company nor any of
its Subsidiaries has filed any notice or report of a Release
of any Hazardous Materials that has a reasonable possibility
of giving rise to an Environmental Claim having a Material
Adverse Effect;
(ix) neither Company nor any of its Subsidiaries nor,
to Company's Best Knowledge, any of their respective
predecessors has disposed of any Hazardous Materials in a
manner that has a reasonable possibility of giving rise to
an Environmental Claim having a Material Adverse Effect;
(x) no surface impoundments are on or at any Facility
or, to Company's Best Knowledge, no underground storage
tanks are on or at any Facility; and
(xi) no Lien in favor of any Person relating to or in
connection with any Environmental Claim has been filed or
has been attached to any Facility.
5.14 Employee Matters.
There is no strike or work stoppage in existence or
threatened involving Company or any of its Subsidiaries that
could reasonably be expected to have a Material Adverse Effect.
5.15 Solvency.
Company and each of its Subsidiaries (including PHI) is
and, upon the incurrence of any Obligations by Company on any
date on which this representation is made, will be, Solvent.
5.16 Disclosure.
No representation or warranty of Company or any of its
Subsidiaries contained in any Loan Document or in any other
document, certificate or written statement furnished to Lenders
by or on behalf of Company or any of its Subsidiaries for use in
connection with the transactions contemplated by this Agreement
contains any untrue statement of a material fact or omits to
state a material fact (known to Company, in the case of any
document not furnished by it) necessary in order to make the
statements contained herein or therein not misleading in light of
the circumstances in which the same were made. Any projections
and pro forma financial information contained in such materials
are based upon good faith estimates and assumptions believed by
Company to be reasonable at the time made, it being recognized by
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 by any such projections may differ from the
projected results. To Company's Best Knowledge, no facts exist
(other than matters of a general economic nature) that,
individually or in the aggregate, could reasonably be expected to
result in a Material Adverse Effect and that have not been
disclosed herein or in such other documents, certificates and
statements furnished to Lenders for use in connection with the
transactions contemplated hereby.
5.17 Compliance With Laws.
Company and its Subsidiaries are in compliance with the
requirements of all applicable laws, rules, regulations,
ordinances and orders (including, without limitation, Gaming
Laws) if noncompliance would affect the ability of any such party
to operate any of the Facilities or the ability of any of Company
or any of its Subsidiaries to perform their obligations under the
Loan Documents to which it is a party, except where the failure
to so comply or perform would not have a Material Adverse Effect.
The use of each of the Facilities complies with applicable zoning
ordinances, regulations, restrictive covenants and requirements
of Governmental Authorizations affecting the respective
Facilities as well as all environmental, ecological, landmark,
and other applicable laws and regulations (including, without
limitation, Gaming Laws); and all requirements for such use have
been satisfied, except where the failure to so comply would not
have a Material Adverse Effect.
5.18 Representations Relating to Operation of Facilities.
A. Each of the Facilities is open to the public and all
authorizations, licenses and permits required by any Governmental
Authority for the use, occupancy and operation of the Premises
and the Maryland Heights Premises for the purposes contemplated
herein have been obtained and all requirements for such use have
been satisfied.
B. All utility services required to operate each of the
Facilities are available and in adequate supply.
5.19 Intangible Property.
Company and its Subsidiaries are the sole and exclusive
owner or licensee of all trade names, unregistered trademarks and
service marks, brand names, patents, registered and unregistered
copyrights, registered trademarks and service marks, and all
applications for any of the foregoing, and all permits, grants
and licenses or other rights with respect thereto, except where
the absence of such sole ownership would not have a Material
Adverse Effect. Schedule 5.19 annexed hereto sets forth a true
and complete list of all service marks and registered trademarks
(or trademarks for which registration is pending) of Company and
its Subsidiaries. None of Company and its Subsidiaries has been
charged with any material infringement of any intangible property
of the character described above or been notified or advised of
any material claim of any other Person relating to any of the
intangible property.
5.20 Rights to Agreements, Permits and Licenses.
From and after the Effective Date, Company (or its
Subsidiaries) will be the true owner of all rights in and to all
existing agreements, permits and licenses relating to all of its
facilities (now or hereafter acquired) and each of the respective
Premises (other than rights of third parties under leases and
agreements permitted hereunder), and will be the true owner of
all rights in and to all future agreements, permits and licenses
relating to all of its facilities (now or hereafter acquired),
other than rights of third parties under leases and agreements
permitted hereunder, except where the absence of such true
ownership would not have a Material Adverse Effect. Company's
interest in all such agreements, permits, and licenses is not
and, to Company's Best Knowledge, will not be subject to any
present claim (other than under the Loan Documents), set-off or
deduction other than in the ordinary course of business.
5.21 Classification of Ships.
From and after the Effective Date, the American Bureau
of Shipping classification of each Ship shall remain the highest
applicable classification and rating to which a ship of the same
age and type as such Ship can qualify under the rules and
standards of the American Bureau of Shipping.
5.22 Recordation of Ship Mortgages.
Each Ship Mortgage has been duly filed in the
appropriate office of the United States Coast Guard. Each Ship
Mortgage constitutes a legal, valid and binding first preferred
ship mortgage under the Ship Mortgage Act of 1920, as amended and
codified in Chapter 313 of Title 46 of the United States Code, on
the applicable Ship or US Documented Barge in favor of the
Trustee as mortgagee under such Ship Mortgage for the benefit of
Administrative Agent on behalf of Lenders. No other filings or
recordings or refilings or re-recordings of any other instruments
are necessary to cause the lien of any of the Ship Mortgages to
be legal, valid and binding on the parties thereto, and to create
in favor of the Trustee, as secured party, for the benefit of
Administrative Agent on behalf of Lenders, the preferred mortgage
which the Ship Mortgages purport to create.
5.23 Policies of Insurance.
Each of the copies of the declaration pages, original
binders and certificates of insurance evidencing the Policies of
Insurance delivered to Administrative Agent with respect to the
Louisiana Facilities, the Illinois Facilities and the Louisiana
Hotel Facilities is a true, correct and complete copy of the
respective original thereof as in effect on the date hereof, and
no amendments or modifications of said documents or instruments
not included in such copies have been made. Furthermore, none
of such documents or instruments has been terminated and each is
in full force and effect. Neither the Company nor any of its
Subsidiaries are in default in the observance or performance of
their respective obligations under said documents and instruments
and Company and its Subsidiaries have taken all actions required
to be performed under all Policies of Insurance to keep
unimpaired their rights thereunder.
5.24 Survival of Rights Created under Existing Credit Agreement.
Notwithstanding the modification or deletion of certain
representations and warranties of Company contained in the
Existing Credit Agreement (including, without limitation, the
deletion of representations and warranties as to the future
consequences of certain events which occurred prior to the date
of this Agreement), Company acknowledges and agrees that any
choses in action or other rights created in favor of any Lender
and their respective successors and assigns arising out of the
representations and warranties of Company contained in or
delivered (including representations and warranties delivered in
connection with the making of loans thereunder) in connection
with the Existing Credit Agreement, shall survive the execution
and delivery of this Agreement. Company and Lenders acknowledge
that certain representations and warranties made by Company under
the Existing Credit Agreement (including representations and
warranties as to the future consequences of certain events which
occurred prior to the date of this Agreement) were made subject
to changes in the facts and conditions on which such
representations and warranties were based, which such changes
were permitted or required under the Existing Credit Agreement or
this Agreement and any such representations and warranties
incorporated herein are so incorporated subject to such changes
permitted or required under the Existing Credit Agreement or this
Agreement.
SECTION 6.
COMPANY'S AFFIRMATIVE COVENANTS
Company covenants and agrees that, so long as the
Commitments hereunder shall remain in effect and until payment in
full of all of the Loans and other Obligations and the
cancellation or expiration of all Letters of Credit, unless each
Lender shall otherwise give prior written consent, Company shall
perform, and shall cause each of its Subsidiaries to perform, all
covenants in this Section 6.
6.1 Financial Statements and Other Reports.
Company will maintain, and cause each of its
Subsidiaries to maintain, a system of accounting established and
administered in accordance with sound business practices to
permit preparation of financial statements in conformity with
GAAP. Company will deliver to Administrative Agent and Lenders:
(i) Monthly Financials: As soon as available and in
any event within 35 days after the end of each month (and
concurrently with the delivery of financial statements
pursuant to subdivisions (ii) and (iii) below): (a) the
consolidated balance sheet of Company and its Subsidiaries
as at the end of such month and the related consolidated
statements of profit and loss, stockholders' equity and cash
flows of Company and its Subsidiaries for such month,
setting forth in each case in comparable form the
corresponding figures for the corresponding periods of the
previous Fiscal Year and the corresponding figures from the
consolidated plan and financial forecast for the current
Fiscal Year delivered pursuant to subsection 6.1(xiv), all
in reasonable detail and certified by the Chief Financial
Officer of the Company that they fairly present the
financial condition of Company and its Subsidiaries as at
the dates indicated and the results of their operations and
their cash flows for the periods indicated, subject to
changes resulting from audit and normal year-end
adjustments, (b) an analysis of Company's operations during
such month which analysis shall explain the effect of the
Company's operations during such month or Company's ability
to perform its obligations under the Agreement and the other
Loan Documents and (c) the balance sheet of each Facility as
at the end of such month and the related statements of
profit and loss, stockholder's equity and cash flows of such
Facility for such month, setting forth in each case in
comparative form the corresponding figures for the
corresponding periods of the previous Fiscal Year all in
reasonable detail and certified by the Chief Financial
Officer of Company that they fairly present the financial
condition of such Facility as at the dates indicated and the
results of such Facility's operations and cash flows for the
period indicated, subject to changes resulting from audit
and normal year-end adjustments.
(ii) Quarterly Financials: as soon as available and in
any event within 45 days after the end of each of the first
three Fiscal Quarters of each Fiscal Year and, with respect
to the fourth Fiscal Quarter of each Fiscal Year,
concurrently with the delivery of financial statements
pursuant to subdivision (iii) below, (1) the consolidated
and Consolidating balance sheets of Company and its
Subsidiaries as at the end of such Fiscal Quarter and the
related consolidated and Consolidating statements of income,
stockholders' equity and cash flows of Company and its
Subsidiaries for such Fiscal Quarter and for the period from
the beginning of the then current Fiscal Year to the end of
such Fiscal Quarter, setting forth in each case in
comparative form the corresponding figures for the
corresponding periods of the previous Fiscal Year and the
corresponding figures from the consolidated plan and
financial forecast for the current Fiscal Year delivered
pursuant to subsection 6.1(xiv), all in reasonable detail
and certified by the chief financial officer of Company that
they fairly present the financial condition of Company and
its Subsidiaries as at the dates indicated and the results
of their operations and their cash flows for the periods
indicated, subject to changes resulting from audit and
normal year-end adjustments and (2) copies of Company's
relevant 10-Q filed with the Securities and Exchange
Commission within 15 days of such filing;
(iii) Year-End Financials: as soon as available
and in any event within 120 days after the end of each
Fiscal Year, (a) (1) the consolidated and Consolidating
balance sheets of Company and its Subsidiaries as at the end
of such Fiscal Year and the related consolidated and
Consolidating statements of income, stockholders' equity and
cash flows of Company and its Subsidiaries for such Fiscal
Year, setting forth in each case in comparative form the
corresponding figures for the previous Fiscal Year and, when
available, the corresponding figures from the consolidated
plan and financial forecast delivered pursuant to subsection
6.1(xiii) for the Fiscal Year covered by such financial
statements, all in reasonable detail and certified by the
chief financial officer of Company that they fairly present
the financial condition of Company and its Subsidiaries as
at the dates indicated and the results of their operations
and their cash flows for the periods indicated, and (2)
copies of Company's relevant 10-K filed with the Securities
and Exchange Commission within 15 days of such filing, and
(b) in the case of such consolidated financial statements, a
report thereon of Ernst & Young, LLP or other independent
certified public accountants of recognized national standing
selected by Company and satisfactory to Managing Agent,
which report shall be unqualified, shall not express any
doubts about the ability of Company and its Subsidiaries to
continue as a going concern, and shall state that such
consolidated financial statements fairly present the
consolidated financial position of Company and its
Subsidiaries as at the dates indicated and the results of
their operations and their cash flows for the periods
indicated in conformity with GAAP applied on a basis
consistent with prior years (except as otherwise disclosed
in such financial statements) and that the examination by
such accountants in connection with such consolidated
financial statements has been made in accordance with
generally accepted auditing standards;
(iv) Officers' and Compliance Certificates:
(a) together with each delivery of financial statements of
Company and its Subsidiaries pursuant to subdivisions (i),
(ii) and (iii) above, an Officers' Certificate of Company
stating that the signers have reviewed the terms of this
Agreement and have made, or caused to be made under their
supervision, a review in reasonable detail of the
transactions and condition of Company and its Subsidiaries
during the accounting period covered by such financial
statements and that such review has not disclosed the
existence during or at the end of such accounting period,
and that the signers do not have actual knowledge of the
existence as at the date of such Officers' Certificate, of
any condition or event that constitutes an Event of Default
or Potential Event of Default, or, if any such condition or
event existed or exists, specifying the nature and period of
existence thereof and what action Company has taken, is
taking and proposes to take with respect thereto; and
(b) together with each delivery of financial statements of
Company and its Subsidiaries pursuant to subdivision (i)
above, a Compliance Certificate demonstrating in reasonable
detail compliance (X) during and at the end of the
applicable accounting periods with the restrictions
contained in subsections 7.1, 7.3(v) and 7.5 and (Y) at the
end of the applicable accounting periods with the
restrictions contained in subsection 7.6, and setting forth
in reasonable detail the calculation of Consolidated EBITDA
for the four Fiscal Quarter period ending on the date of the
end of such accounting period and the Interest Coverage
Ratio as of such date;
(v) Reconciliation Statements: if, as a result of any
change in accounting principles and policies from those used
in the preparation of the audited financial statements
referred to in subsection 5.3, the consolidated financial
statements of Company and its Subsidiaries delivered
pursuant to subdivisions (ii) and (iii) of this subsection
6.1 will differ in any material respect from the
consolidated financial statements that would have been
delivered pursuant to such subdivisions had no such change
in accounting principles and policies been made, then
(a) together with the first delivery of financial statements
pursuant to subdivision (ii) and (iii) of this subsection
6.1 following such change, consolidated financial statements
of Company and its Subsidiaries for (y) the current Fiscal
Year to the effective date of such change and (z) the two
full Fiscal Years immediately preceding the Fiscal Year in
which such change is made, in each case prepared on a pro
forma basis as if such change had been in effect during such
periods, and (b) together with each delivery of financial
statements pursuant to subdivision (ii) and (iii) of this
subsection 6.1 following such change, a written statement of
the chief accounting officer or chief financial officer of
Company setting forth the differences which would have
resulted if such financial statements had been prepared
without giving effect to such change;
(vi) Accountants' Certification: together with each
delivery of consolidated financial statements of Company and
its Subsidiaries pursuant to subdivision (iii) above, a
written statement by the independent certified public
accountants giving the report thereon (a) stating that their
audit examination has included a review of the terms of this
Agreement and the other Loan Documents as they relate to
accounting matters, (b) stating whether, in connection with
their audit examination, any condition or event that
constitutes an Event of Default or Potential Event of
Default has come to their attention and, if such a condition
or event has come to their attention, specifying the nature
and period of existence thereof; provided that such
accountants shall not be liable by reason of any failure to
obtain knowledge of any such Event of Default or Potential
Event of Default that would not be disclosed in the course
of their audit examination, and (c) stating that based on
their audit examination nothing has come to their attention
that causes them to believe either or both that the
information contained in the certificates delivered
therewith pursuant to subdivision (iv) above is not correct
or that the matters set forth in the Compliance Certificates
delivered therewith pursuant to clause (b) of subdivision
(iv) above for the applicable Fiscal Year are not stated in
accordance with the terms of this Agreement;
(vii) Accountants' Reports: promptly upon, but in
no case later than 15 calendar days after, receipt thereof
(unless restricted by applicable professional standards),
copies of all reports submitted to Company by independent
certified public accountants in connection with each annual,
interim or special audit of the financial statements of
Company and its Subsidiaries made by such accountants,
including, without limitation, any comment letter submitted
by such accountants to management in connection with their
annual audit;
(viii) Insurance: as soon as practicable and in any
event by the last day of each Fiscal Year, a report in form
and substance satisfactory to Administrative Agent outlining
all material insurance coverage maintained as of the date of
such report by Company and its Subsidiaries (including all
coverages referred to in subsection 6.4B hereof and
Schedules 6.4(a) and 6.4(b) annexed hereto, section 6 of
each of the Mortgages and within each of the Ship Mortgages
under the heading "Vessel Insurance Requirements and
Provisions") and all material insurance coverage then
planned to be maintained by Company and its Subsidiaries in
the immediately succeeding Fiscal Year, if in each case
there shall be any material changes in such insurance
coverage from the insurance coverage in existence on the
date hereof;
(ix) SEC Filings and Press Releases: promptly upon
their becoming available but in any event within 15 days
after filing with the Securities and Exchange Commission,
copies of (a) all financial statements, reports, notices and
proxy statements sent or made available generally by Company
to its security holders or by any Subsidiary of Company to
its security holders other than Company or another
Subsidiary of Company, (b) all regular and periodic reports
and all registration statements (other than on Form S-8 or a
similar form) and prospectuses, if any, filed by any of
Company's Subsidiaries with any securities exchange or with
the Securities and Exchange Commission or any governmental
or private regulatory authority, and (c) all press releases
and other statements made available generally by Company or
any of Company's Subsidiaries to the public concerning
material developments in the business of Company or any of
Company's Subsidiaries;
(x) Events of Default, etc.: promptly, but in any
event within 5 calendar days, upon Company's Best Knowledge
(a) of any condition or event that constitutes an Event of
Default or Potential Event of Default, or that any Lender
has given any notice (other than to Administrative Agent) or
taken any other action with respect to a claimed Event of
Default or Potential Event of Default, (b) that any Person
has given any notice to Company or any of its Subsidiaries
or taken any other action with respect to a claimed default
or event or condition of the type referred to in subsection
8.2, (c) of any condition or event that would be required to
be disclosed in a current report filed by Company with the
Securities and Exchange Commission on Form 8-K (Items 1, 2,
4, 5 and 6 of such Form as in effect on the date hereof) if
Company were required to file such reports under the
Exchange Act, or (d) of the occurrence of any event or
change that has caused or evidences, either in any case or
in the aggregate, a Material Adverse Effect, an Officers'
Certificate specifying the nature and period of existence of
such condition, event or change, or specifying the notice
given or action taken by any such Person and the nature of
such claimed Event of Default, Potential Event of Default,
default, event or condition, and what action Company has
taken, is taking and proposes to take with respect thereto;
(xi) Litigation or Other Proceedings: (a) promptly
upon any Responsible Officer obtaining knowledge of (X) the
institution of, or non-frivolous threat of, any action,
suit, proceeding (whether administrative, judicial or
otherwise), governmental investigation or arbitration
against or affecting Company or any of its Subsidiaries or
any property of Company or any of its Subsidiaries
(collectively, "Proceedings") not previously disclosed in
writing by Company to Lenders or (Y) any material
development in any Proceeding that, in any case of (X) or of
(Y):
(1) if adversely determined, has a
reasonable possibility of giving rise to a Material
Adverse Effect; or
(2) seeks to enjoin or otherwise prevent the
consummation of, or to recover any damages or obtain
relief as a result of, the transactions contemplated
hereby;
written notice thereof together with such other information
as may be reasonably available to Company to enable Lenders
and their counsel to evaluate such matters; and (b) within
twenty days after the end of each Fiscal Quarter of Company,
a schedule of all Proceedings involving an alleged liability
of, or claims against or affecting, Company or any of its
Subsidiaries equal to or greater than $10,000,000 in the
aggregate, and promptly after request by Administrative
Agent such other information as may be reasonably requested
by Administrative Agent to enable Administrative Agent and
its counsel to evaluate any of such Proceedings;
(xii) ERISA Events: promptly upon becoming aware
of, but in no case later than 15 calendar days after, the
occurrence of or forthcoming occurrence of any ERISA Event,
a written notice specifying the nature thereof, what action
Company or any of its ERISA Affiliates has taken, is taking
or proposes to take with respect thereto and, when known,
any action taken or threatened by the Internal Revenue
Service, the Department of Labor or the PBGC with respect
thereto;
(xiii) ERISA Notices: with reasonable promptness,
copies of (a) each Schedule B (Actuarial Information) to the
annual report (Form 5500 Series) as required to be filed by
Company or any of its ERISA Affiliates with the Internal
Revenue Service with respect to each Pension Plan; (b) all
notices received by Company or any of its ERISA Affiliates
from a Multiemployer Plan sponsor concerning an ERISA Event;
and (c) such other documents or governmental reports or
filings relating to any Employee Benefit Plan as
Administrative Agent shall reasonably request;
(xiv) Financial Plans: as soon as practicable and
in any event no later than 60 days after the beginning of
each Fiscal Year, a consolidated and Consolidating plan and
financial forecast for such Fiscal Year, including without
limitation (a) forecasted consolidated and Consolidating
balance sheet and forecasted consolidated statements of
income and cash flows of Company and its Subsidiaries for
such Fiscal Year, together with a pro forma Compliance
Certificate for such Fiscal Year and an explanation of the
assumptions on which such forecasts are based,
(b) forecasted consolidated and Consolidating statements of
income and cash flows of Company and its Subsidiaries for
each Fiscal Quarter of each such Fiscal Year, together with
an explanation of the assumptions on which such forecasts
are based, (c) the amount of forecasted unallocated overhead
for each such Fiscal Year, and (d) such other information
and projections as any Lender (through the Administrative
Agent) may reasonably request;
(xv) Environmental Audits and Reports: as soon as
practicable following receipt thereof, but in no case later
than 15 calendar days after, copies of all environmental
audits and reports, whether prepared by personnel of Company
or any of its Subsidiaries or by independent consultants,
with respect to significant environmental matters at any
Facility or which relate to an Environmental Claim which
could result in a Material Adverse Effect;
(xvi) Board of Directors: with reasonable
promptness, written notice of any change in the Board of
Directors of Company;
(xvii) Pricing Determination Certificate:
concurrently with the delivery of the financial statements
for each Fiscal Quarter required under subsection 6.1(ii),
and in any event no later than 45 days after the end of each
Fiscal Year, Company shall deliver a Pricing Determination
Certificate;
(xviii) New Subsidiaries: promptly upon any Person
becoming a Subsidiary of Company, a written notice setting
forth with respect to such Person (a) the date on which such
Person became a Subsidiary of Company and (b) all of the
data required to be set forth in Schedule 5.1 annexed hereto
with respect to all Subsidiaries of Company (it being
understood that such written notice shall be automatically
deemed to supplement Schedule 5.1 to this Agreement for all
purposes, including the Guaranty);
(xix) [omitted].
(xx) Gaming Board Communications: promptly, but in no
case later than 15 calendar days, after the same are
available, copies of any written communication to Company or
any of its Subsidiaries from any Gaming Board advising it of
a violation of or non-compliance with, any Gaming Law by
Company or any of its Subsidiaries;
(xxi) US Documented Barges: promptly upon the
acquisition or documentation by Company or any of its
Subsidiaries of any additional US Documented Barge, a
written notice setting forth with respect to such Person
(a) the date on which such barge became a US Documented
Barge and (b) all of the data required to be set forth in
Schedule 5.5 annexed hereto with respect to all US
Documented Barges (it being understood that such written
notice shall be automatically deemed to supplement Schedule
5.5 to this Agreement for all purposes); and
(xxii) Other Information: with reasonable
promptness, such other information and data with respect to
Company or any of its Subsidiaries as from time to time may
be reasonably requested by any Lender through the
Administrative Agent.
6.2 Corporate Existence, etc.
Except as permitted under subsection 7.7, Company will,
and will cause each of its Subsidiaries to, at all times preserve
and keep in full force and effect its corporate or other legal
existence, as applicable, and all rights and franchises material
to its business.
6.3 Payment of Taxes and Claims; Tax Consolidation.
A. Company will, and will cause each of its Subsidiaries
to, pay all taxes, assessments and other governmental charges
imposed upon it or any of its properties or assets or in respect
of any of its income, businesses or franchises before any penalty
accrues thereon, and all claims (including, without limitation,
claims for labor, services, materials and supplies) for sums that
have become due and payable and that by law have or may become a
Lien upon any of its properties or assets, prior to the time when
any penalty or fine shall be incurred with respect thereto;
provided that no such tax, charge or claim need be paid if being
contested in good faith by appropriate proceedings promptly
instituted and diligently conducted and if such reserve or other
appropriate provision, if any, as shall be required in conformity
with GAAP shall have been made therefor.
B. Company will not, nor will it permit any of its
Subsidiaries to, file or consent to the filing of any
consolidated income tax return with any Person (other than
Company or any of its Subsidiaries).
6.4 Maintenance of Properties; Insurance.
A. Company will, and will cause each of its Subsidiaries
to, maintain or cause to be maintained in good repair, working
order and condition, ordinary wear and tear excepted, all
material properties used or useful in the business of Company and
its Subsidiaries (including, without limitation, maintenance of
Intellectual Property) and from time to time will make or cause
to be made all appropriate repairs, renewals and replacements
thereof.
B. Company will maintain or cause to be maintained, with
financially sound and reputable insurers, throughout the term of
this Agreement, all Policies of Insurance required pursuant to
Schedules 6.4(a) and 6.4(b) annexed hereto and will otherwise
comply fully with the terms and conditions provided in
subsection 6 of each of the Mortgages and within each of the Ship
Mortgages under the heading "Vessel Insurance Requirements and
Provisions". Each such policy of insurance shall name
Administrative Agent for the benefit of Lenders as the loss payee
thereunder for amounts in excess of $2,500,000 and shall provide
for at least 30 days prior written notice to Administrative Agent
of any modification or cancellation of such policy.
6.5 Inspection; Lender Meeting.
Company shall, and shall cause each of its Subsidiaries
to, permit any authorized representatives designated by any
Lender to visit and inspect any of the properties of Company or
any of its Subsidiaries, including its and their financial and
accounting records, and to make copies and take extracts
therefrom, and to discuss its and their affairs, finances and
accounts with its and their officers and independent public
accountants (provided that Company may, if it so chooses, be
present at or participate in any such discussion), all upon
reasonable notice and at such reasonable times during normal
business hours and as often as may be reasonably requested.
Without in any way limiting the foregoing, Company will, upon the
request of Managing Agent or Requisite Lenders, participate in a
meeting of Managing Agent and Lenders once during each Fiscal
Year to be held at Company's corporate offices (or such other
location as may be agreed to by Company and Managing Agent) at
such time as may be agreed to by Company and Managing Agent.
6.6 Compliance with Laws, etc.
Company shall, and shall cause each of its Subsidiaries
to, comply with the requirements of all applicable laws, rules,
regulations and orders of any Governmental Authority, including
all Gaming Laws, and to obtain and keep in full force and effect
any permit, license, consent, or approval required under this
Agreement if such noncompliance or failure to obtain and keep in
full force and effect could reasonably be expected to cause a
Material Adverse Effect. Company shall and shall cause each of
its Subsidiaries to comply with the requirements of all Gaming
Laws applicable to such Person.
6.7 Environmental Disclosure and Inspection.
A. Company shall, and shall cause each of its Subsidiaries
to, exercise all due diligence in order to comply and use its
best efforts to cause (i) all tenants under any leases or
occupancy agreements affecting any portion of the Facilities and
(ii) all other Persons on or occupying such property, to comply
with all Environmental Laws.
B. Company agrees that Administrative Agent may, once
during each Fiscal Year until the Commitment Termination Date or
at any time upon the occurrence of an Event of Default, retain,
at Company's expense, an independent professional consultant to
review any report relating to Hazardous Materials prepared by or
for Company and to conduct its own investigation of any Facility
currently owned, leased, operated or used by Company or any of
its Subsidiaries, and Company agrees to use its best efforts to
obtain permission for Administrative Agent's professional
consultant to conduct its own investigation of any Facility
previously owned, leased, operated or used by Company or any of
its Subsidiaries. Company hereby grants to Administrative Agent
and its agents, employees, consultants and contractors the right
to enter into or on to the Facilities currently owned, leased,
operated or used by Company or any of its Subsidiaries to perform
such tests on such property as are reasonably necessary to
conduct such a review and/or investigation. Any such
investigation of any Facility shall be conducted, unless
otherwise agreed to by Company and Administrative Agent, during
normal business hours and, to the extent reasonably practicable,
shall be conducted so as not to interfere with the ongoing
operations at any such Facility or to cause any damage or loss to
any property at such Facility. Company and Administrative Agent
hereby acknowledge and agree that any report of any investigation
conducted at the request of Administrative Agent pursuant to this
subsection 6.7B will be obtained and shall be used by
Administrative Agent and Lenders solely for the purposes of
Lenders' internal credit decisions, to monitor and police the
Loans and to protect Lenders' security interests, if any, created
by the Loan Documents. Administrative Agent agrees to deliver a
copy of any such report to Company with the understanding that
Company acknowledges and agrees that (i) it will hold harmless
Administrative Agent and each Lender from any costs, losses or
liabilities relating to Company's use of or reliance on such
report, (ii) neither Administrative Agent nor any Lender makes
any representation or warranty with respect to such report, and
(iii) by delivering such report to Company, neither
Administrative Agent nor any Lender is requiring or recommending
the implementation of any suggestions or recommendations
contained in such report.
C. Company shall promptly advise Lenders in writing and in
reasonable detail of (i) any Release of any Hazardous Materials
required to be reported to any federal, state or local
governmental or regulatory agency under any applicable
Environmental Laws, (ii) any and all written communications with
respect to any Environmental Claims that have a reasonable
possibility of giving rise to a Material Adverse Effect or with
respect to any Release of Hazardous Materials required to be
reported to any federal, state or local governmental or
regulatory agency, (iii) any remedial action taken by Company or
any other Person in response to (x) any Hazardous Materials on,
under or about any Facility, the existence of which has a
reasonable possibility of resulting in an Environmental Claim
having a Material Adverse Effect, or (y) any Environmental Claim
that could have a Material Adverse Effect, (iv) discovery by any
Responsible Officer of any occurrence or condition on any real
property adjoining or in the vicinity of any Facility that could
cause such Facility or any part thereof to be subject to any
restrictions on the ownership, occupancy, transferability or use
thereof under any Environmental Laws, and (v) any request for
information from any governmental agency that suggests such
agency is investigating whether Company or any of its
Subsidiaries may be potentially responsible for a Release of
Hazardous Materials.
D. Company shall promptly notify Lenders of (i) any
proposed acquisition of stock, assets, or property by Company or
any of its Subsidiaries that could reasonably be expected to
expose Company or any of its Subsidiaries to, or result in,
Environmental Claims that could have a Material Adverse Effect or
that could reasonably be expected to have a material adverse
effect on any Governmental Authorization then held by Company or
any of its Subsidiaries and (ii) any proposed action to be taken
by Company or any of its Subsidiaries to commence manufacturing,
industrial or other operations that could reasonably be expected
to subject Company or any of its Subsidiaries to additional laws,
rules or regulations, including, without limitation, laws, rules
and regulations requiring additional environmental permits or
licenses.
E. Company shall, at its own expense, provide copies of
such documents or information as Administrative Agent may
reasonably request in relation to any matters disclosed pursuant
to this subsection 6.7.
6.8 Company's Remedial Action Regarding Hazardous Materials.
Company shall promptly take, and shall cause each of
its Subsidiaries promptly to take, any and all necessary remedial
action in connection with the presence, storage, use, disposal,
transportation or Release of any Hazardous Materials on, under or
about any Facility in order to comply with all applicable
Environmental Laws and Governmental Authorizations. In the event
Company or any of its Subsidiaries undertakes any remedial action
with respect to any Hazardous Materials on, under or about any
Facility, Company or such Subsidiary shall conduct and complete
such remedial action in compliance with all applicable
Environmental Laws, and in accordance with the policies, orders
and directives of all federal, state and local governmental
authorities except when, and only to the extent that, Company's
or such Subsidiary's liability for such presence, storage, use,
disposal, transportation or discharge of any Hazardous Materials
is being contested in good faith by Company or such Subsidiary.
6.9 Post-Closing Matters.
Company shall comply with all covenants and obligations
set forth on Schedule 6.9 hereto, which are incorporated herein
by this reference.
6.10 New Subsidiaries; New Joint Ventures; Further Assurances.
A. In the event a Person becomes a Subsidiary of Company
after the Effective Date, Company, upon the request of
Administrative Agent, shall and shall cause such Subsidiary to
execute and deliver such guaranties, collateral documents and
such other agreements, pledges, assignments, documents and
certificates (including, without limitation, any amendments to
the Loan Documents) as may be necessary or desirable or as
Administrative Agent may request and do such other acts and
things as Administrative Agent reasonably may request in order to
have a lien on the stock of such Subsidiary and to have such
Subsidiary guaranty and/or secure the Obligations and effect
fully the purposes of this Agreement and the other Loan Documents
and any Lender Interest Rate Agreements and to provide for
payment of the Obligations hereunder and all obligations in
respect of any Lender Interest Rate Agreements in accordance with
the terms of this Agreement and the other Loan Documents and any
Lender Interest Rate Agreements.
B. In the event Company or any of its Subsidiaries enters
into any Joint Venture by means of the ownership of any
Subsidiary (a "Participant Subsidiary") that, directly or
indirectly, holds stock in a Joint Venture in corporate form or
acts as a partner in a Joint Venture in partnership form,
(i) Company shall, and shall cause each of its Subsidiaries to,
pledge its interests in such Participant Subsidiary that enters
into such Joint Venture as Collateral, (ii) neither Company nor
any of its Subsidiaries shall enter into any other agreement that
creates any Lien on the interests that Company or any such
Subsidiary owns in such Participant Subsidiary or Joint Venture
and (iii) neither Company nor any of its Subsidiaries will enter
into any agreement that prohibits, restricts or conditions
Lenders' rights to encumber the stock or ownership interests in
such Participant Subsidiary or Joint Venture.
C. Additionally, Company shall, and shall cause each of
its Subsidiaries to, execute such documents as Administrative
Agent reasonably may request to perfect Administrative Agent's
Lien on real or personal property located at any of the
Facilities acquired after the Effective Date.
D. Without limiting the generality of subsection 6.10C,
if, and at such time as, SIRCC or any Affiliate of Company
purchases any of the parking lots used in connection with the
Illinois Facilities from Burlington Northern Railroad Company
(the "Railroad"), which parking lots SIRCC currently leases from
the Railroad, unless Administrative Agent otherwise agrees,
Company shall cause SIRCC or such Affiliate purchasing such
parking lot (i) to grant to Administrative Agent a deed of trust
or mortgage, in form and substance acceptable to Administrative
Agent, on such parking lot(s), (ii) to pay or cause to be paid
any monetary Liens then encumbering such parking lot(s), (iii) to
provide Administrative Agent with a lender's policy of title
insurance and any endorsements thereto, in form and substance
acceptable to Administrative Agent (but, subject to such non-
monetary Liens as do not materially affect the use and operation
of such parking lot), insuring such deed of trust or mortgage as
a first priority Lien on such parking lot in favor of
Administrative Agent, and (iv) to execute and deliver such other
instruments and agreements and undertake such other acts as
Administrative Agent may request in connection therewith
(including, without limitation, executing security agreements,
fixture filings, and financing statements with respect to such
parking lots).
E. Company, Administrative Agent and each of the Lenders
will, at the expense of Company, do, execute, acknowledge and
deliver, or cause to be done, executed, acknowledged and
delivered, such amendments or supplements hereto or to any of the
Loan Documents and such further documents, instruments and
transfers as any such party may reasonably require for the curing
of any defect in the execution or acknowledgment hereof or in any
of the Loan Documents, or in the description of the real property
or other Collateral or for the proper evidencing of giving notice
of each Lien or security interest securing repayment of the
Obligations. Further, upon the execution and delivery of the
Mortgages, the Ship Mortgages and each of the Loan Documents and
thereafter, from time to time, Company shall cause the Mortgages,
the Ship Mortgages and each of the Loan Documents and each
amendment and supplement thereto to be filed, registered and
recorded and to be refiled, re-registered and re-recorded in such
manner and in such places as may be reasonably required by
Requisite Lenders or Administrative Agent, in order to publish
notice of and fully protect the Liens of the Mortgages, the Ship
Mortgages and each of the Loan Documents in the Collateral and to
perform or cause to be performed from time to time any other
actions required by law and execute or cause to be executed any
and all instruments of further assurance that may be necessary
for such publication, perfection, continuation and protection.
F. Company shall give Administrative Agent written notice
(the "Initial Notice") promptly upon entering into contracts
after the Effective Date other than the Excluded Contracts (as
defined below) which individually or in the aggregate could give
rise to mechanic's liens in excess of $1,000,000 with respect to
the construction or renovation of Improvements or any other
contracts aggregating more than $1,000,000 that might give rise
to mechanics or other statutory Liens at any one of the following
locations (a) the Illinois Premises, (b) the Louisiana Premises
or (c) the Louisiana Hotel Premises, which notice shall include
the location at which such construction or renovation is taking
place and a brief description of the nature of the construction
or renovation. From and after the date of the Initial Notice,
Company shall give Administrative Agent written notice
("Subsequent Notice") promptly upon entering into contracts which
individually or in the aggregate increase Company's exposure to
mechanics or other statutory Liens by any amount in excess of
$100,000 from the amount of mechanics or other statutory Liens
for which Company was potentially liable on the day Company gave
the Initial Notice, or, thereafter, the day Company gave the most
recent prior Subsequent Notice. Administrative Agent shall
promptly transmit all such notices required under this clause to
Lenders and, upon receipt of written requests therefor from
Requisite Lenders, shall request Title Company to issue at
Company's expense a California Land Title Association Form 122
(or comparable) endorsement to the Title Policy issued at the
closing of this Agreement with respect to the location at which
such construction or renovation is being conducted, which
endorsement shall provide insurance against any mechanics or
other statutory liens arising from such construction or
renovation; provided that Requisite Lenders may request such an
endorsement be issued no more often than quarterly during the
period from the date of receipt of any such notice from Company
until such date as all of the following have occurred (x) a
certificate of use or occupancy (or comparable certificate in the
applicable jurisdiction) has been issued with respect to such
construction or renovation, (y) any statutory period within which
a mechanics Lien could be asserted has expired and (z) all
contractors with respect to such construction or renovation have
been paid in full. Company agrees to cooperate with the Title
Company to cause such endorsements to be issued. For purposes of
this Section 6.10F Excluded Contracts shall mean contracts with
respect to which the Title Policies delivered on the Effective
Date provided endorsements as to the absence of mechanics or
other statutory Liens arising in connection with the performance
thereof.
G. Upon each exercise of the option in the Waterbottom
Lease (as defined in the Louisiana Mortgage) that permits PLC to
lease additional waterbottom lands from the State of Louisiana,
Players shall record, or shall cause PLC to record, in the land
records of Calcasieu Parish, Louisiana, a memorandum of exercise
of option for purposes of putting of record PLC's rights in such
additional lands. Concurrently therewith, Players shall notify
Administrative Agent in writing and shall execute, deliver, and
record any instruments and agreements and do such other acts as
Administrative Agent may deem necessary or appropriate to insure
the senior priority of the lien of the Louisiana Mortgage over
such additional lands (including, without limitation, causing the
Title Company to issue, at Company's sole cost and expense, an
endorsement to the applicable Title Policy ensuring the senior
priority of the lien of the Louisiana Mortgage on PLC's rights in
such additional lands).
6.11 Exchange Listing.
Company shall take any and all actions to ensure that
at all times the shares of Company's common stock are listed on
NASDAQ or another national securities exchange.
SECTION 7.
COMPANY'S NEGATIVE COVENANTS
Company covenants and agrees that, so long as the
Commitments hereunder shall remain in effect and until payment in
full of all of the Loans and other Obligations and the
cancellation or expiration of all Letters of Credit, unless
Requisite Lenders shall otherwise give prior written consent,
Company shall perform, and shall cause each of its Subsidiaries
to perform, all covenants in this Section 7.
7.1 Indebtedness.
Company shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, create, incur, assume or
guaranty, or otherwise become or remain directly or indirectly
liable with respect to, any Indebtedness, except
(i) the Loans;
(ii) the Senior Notes;
(iii) [omitted];
(iv) intercompany Indebtedness of Company owed to any
wholly-owned Subsidiary or any intercompany Indebtedness
owed by any wholly-owned Subsidiary of Company to Company or
any other wholly-owned Subsidiary of Company; provided that
any payment under any Guaranty shall result in a pro tanto
reduction of the amount of such intercompany Indebtedness
owed by a Guarantor to Company; and
(v) so long as no Event of Default or, to Company's
Best Knowledge, Potential Event of Default shall have
occurred and be continuing, or shall be caused thereby, (A)
Other Allowed Indebtedness (Secured) and (B) Company and its
Subsidiaries may create, incur, assume or guaranty or
otherwise become or remain liable directly or indirectly
liable with respect to Other Allowed Indebtedness
(Unsecured) if, after giving effect thereto, Company shall
be in compliance on a pro forma basis with subsection 7.6H.
7.2 Liens and Related Matters.
A. Prohibition on Liens. Company shall not, and shall not
permit any of its Subsidiaries to, directly or indirectly,
create, incur, assume or permit to exist any Lien on or with
respect to any of their respective assets, whether now owned or
hereafter acquired, or any income or profits therefrom, or file
or permit the filing of, or permit to remain in effect, any
financing statement or other similar notice of any Lien with
respect to any of the Collateral under the Uniform Commercial
Code of any State or under any similar recording or notice
statute, except:
(i) Permitted Encumbrances;
(ii) Liens granted or permitted pursuant to the
Collateral Documents;
(iii) Liens to secure Other Allowed Indebtedness
(Secured) to the extent permitted pursuant to the
definitions of "Other Allowed Indebtedness (Secured)" and
"Purchase Money Debt";
(iv) Liens existing on the Effective Date and described
on Schedule 7.2 annexed hereto; and
(v) a Lien to be granted by PMH and/or PMHLP, as
lessee, on certain of its gaming equipment and gaming
receivables, in favor of the Riverside Joint Venture, as
landlord, to secure the payment by PMH of certain lease
obligations owed to the Riverside Joint Venture in
connection with the operation of the Maryland Heights
Facilities.
B. No Further Negative Pledges. Except with respect to
specific property encumbered pursuant to subsection 7.2A or to be
sold pursuant to an executed agreement with respect to an Asset
Sale, neither Company nor any of its Subsidiaries shall enter
into any agreement prohibiting the creation or assumption of any
Lien upon any of its properties or assets, whether now owned or
hereafter acquired.
C. No Restrictions on Subsidiary Distributions to Company
or Other Subsidiaries. Except as provided herein, Company will
not, and will not permit any of its Subsidiaries to, create or
otherwise cause or suffer to exist or become effective any
consensual encumbrance or restriction of any kind on the ability
of any such Subsidiary to (i) pay dividends or make any other
distributions on any of such Subsidiary's capital stock owned by
Company or any other Subsidiary of Company, (ii) repay or prepay
any Indebtedness owed by such Subsidiary to Company or any other
Subsidiary of Company, (iii) make loans or advances to Company or
any other Subsidiary of Company, or (iv) transfer any of its
property or assets to Company or any other Subsidiary of Company.
7.3 Investments, Loans and Advances; Capital Expenditures.
Company shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, make or own any
Investment or make any capital expenditure in any Person,
including any Joint Venture or to make Consolidated Capital
Expenditures, except:
(i) Investments in Cash Equivalents;
(ii) Investments of Net Cash Proceeds of Asset Sales in
a Related Business made within 270 days of the receipt of such
Net Cash Proceeds;
(iii) Company and its Subsidiaries may make
intercompany loans to the extent permitted under subsection 7.1;
provided that the obligations under any such loans are
subordinated to the Obligations of Company or any such Subsidiary
under the Loans or the Guaranty, as the case may be;
(iv) Company and its Subsidiaries may continue to own
the Investments owned by them on the Effective Date and described
in Schedule 7.3 annexed hereto; and
(v) Company and its Subsidiaries may make Consolidated
Capital Expenditures in the following amounts for the following
purposes:
(a) Consolidated Capital Expenditures for the
construction or acquisition of new facilities in an
aggregate amount not exceeding $35,000,000 for all periods
after the Effective Date;
(b) Consolidated Capital Expenditures for the
maintenance of facilities (including the replacement of
destroyed or damaged equipment with comparable new
equipment) in an amount not exceeding $10,000,000 in any
fiscal year;
(c) other Consolidated Capital Expenditures (for
construction of new facilities) in amounts not exceeding at
any date of determination the sum of (w) 100% of the net
cash proceeds received by Company from the sale of any
equity securities of Company during the period from the
Effective Date to such date of determination plus (x) 75% of
the net cash proceeds received by Company from the sale of
any Subordinated Indebtedness of the Company during the
period from the Effective Date to such date of determination
plus (y) 75% of Consolidated Net Income during the period
from the first Fiscal Quarter to end after the Effective
Date to such date of determination.
7.4 Contingent Obligations.
Company shall not, and shall not permit any of its
Subsidiaries to, without the prior written consent of
Administrative Agent and Requisite Lenders, directly or
indirectly, create or become or remain liable with respect to any
Contingent Obligation, except:
(i) Company and such Subsidiaries may become and
remain liable with respect to Contingent Obligations in
respect of any Indebtedness of Company or any of its
Subsidiaries permitted by subsection 7.1;
(ii) Company and such Subsidiaries may become and
remain liable with respect to Contingent Obligations in
respect to Interest Rate Agreements in respect of any
Indebtedness of Company hereunder;
(iii) Company and such Subsidiaries may become and
remain liable with respect to Contingent Obligations in
respect of Letters of Credit; and
(iv) Company and such Subsidiaries may become and
remain liable for Contingent Obligations to make Investments
permitted by subsection 7.3.
7.5 Restricted Payments.
Company shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, declare, order, pay,
make or set apart any sum for any Restricted Payment, except:
(i) Company may make open-market or private purchases
of its outstanding equity securities (or options or warrants
to purchase such securities) in an aggregate amount for all
such purchases made after the Effective Date not to exceed
the sum of (x) $10,000,000 plus (y) 50% of the sum of
Consolidated Net Income for each Fiscal Quarter ending after
the Effective Date and prior to the making of the applicable
Restricted Payment; provided that nothing contained in this
subsection 7.5 shall limit Company's ability to repurchase
Senior Notes pursuant to a Regulatory Redemption (as defined
in the Indenture); and
(ii) Company may make Restricted Payments to redeem,
retire or purchase for value any interests of any class of
stock of Company now or hereafter outstanding; provided that
the amount of any Restricted Payment made pursuant to this
clause (ii) shall not exceed the aggregate amount of net
cash proceeds from the issuance or sale of the same class of
stock of Company received by Company during the 180 day
period preceding the date such Restricted Payment was made
(excluding net cash proceeds applied to any other Restricted
Payment pursuant to this clause (ii)).
7.6 Financial Covenants.
A. Minimum Fixed Charge Coverage Ratio. Company shall not
permit the Fixed Charge Coverage Ratio on the last day of each
Fiscal Quarter to be less than 1.50:1.00.
B. [Omitted].
C. [Omitted].
D. [Omitted].
E. Minimum Consolidated Tangible Net Worth.
(i) Company shall not permit Consolidated Tangible Net
Worth on the last day of each Fiscal Quarter ending before
the first anniversary of the Effective Date to be less than
$114,000,000.
(ii) Company shall not permit Consolidated Tangible Net
Worth on the last day of each Fiscal Quarter ending on or
after the first anniversary of the Effective Date to be less
than the sum of (x) $114,000,000 plus (y) an amount equal to
75% of Consolidated Net Income during the period from the
first Fiscal Quarter commencing after the Effective Date to
the date of determination, excluding any Fiscal Year
(including, if applicable, the portion of the Fiscal Year
ending on the date of determination) for which Consolidated
Net Income was negative.
F. [Omitted].
G. Maximum Facility Debt Ratio. Company shall not permit
the ratio of Facility Debt on the last day of any Fiscal Quarter
to Consolidated EBITDA for the four consecutive Fiscal Quarters
ending on such day to be greater than 1.50:1.00.
H. Maximum Total Funded Debt Ratio. Company shall not
permit the ratio of Total Funded Debt on the last day of any
Fiscal Quarter ending during any period set forth below to
Consolidated EBITDA for the four consecutive Fiscal Quarters
ending on such day to be more than the amount set forth below
opposite such period:
Period Amount
Effective Date through December 30, 1998 4.75:1.00
December 31, 1998 through December 30, 1999 4.25:1.00
December 31, 1999 and thereafter 3.75:1.00
7.7 Restriction on Fundamental Changes; Asset Sales and
Acquisitions.
Company shall not, and shall not permit any of its
Subsidiaries to, alter the corporate, capital or legal structure
of Company or any of its Subsidiaries, or enter into any
transaction of merger or consolidation, or liquidate, wind-up or
dissolve itself (or suffer any liquidation or dissolution), or
convey, sell, lease, sub-lease, transfer or otherwise dispose of,
in one transaction or a series of transactions, all or any
substantial part of its business, property or fixed assets,
whether now owned or hereafter acquired, or acquire by purchase
or otherwise 50% or more of the business, property or fixed
assets of, or stock or other evidence of beneficial ownership of,
any Person or any division or line of business of any Person,
except:
(i) any Subsidiary of Company (other than a Guarantor)
may be merged with or into Company or any wholly-owned
Subsidiary of Company, or be liquidated, wound up or
dissolved, or all or any part of its business, property or
assets may be conveyed, sold, leased, transferred or
otherwise disposed of, in one transaction or a series of
transactions, to Company or any wholly-owned Subsidiary of
Company; provided that, in the case of such a merger,
Company or such wholly-owned Subsidiary shall be the
continuing or surviving corporation; provided further if any
Guarantor or grantor under a Collateral Document is the
disappearing entity in a merger with a wholly-owned
Subsidiary that is not a Guarantor or grantor, the surviving
corporation shall execute a Guaranty and/or a Subsidiary
Security Agreement, as the case may be;
(ii) any Subsidiary of Company may change its legal
structure so long as (X) any such modification does not in
any manner impair any Lender's ability to realize the
Collateral owned by such Subsidiary upon an Event of Default
and (Y) if such Subsidiary is the disappearing entity in a
merger devised to effect such a structural change, the
surviving entity shall execute a Guaranty and/or a
Subsidiary Security Agreement, as the case may be;
(iii) subject to subsections 7.11 and 2.4A(iii),
Company and its Subsidiaries may make Asset Sales of assets
having a fair market value not in excess of $5,000,000 on an
individual basis; provided that, with respect to the sale of
any asset having a fair market value equal to or exceeding
$2,500,000, (x) the consideration received for such assets
shall be in an amount at least equal to the fair market
value thereof and (y) at least eighty percent (80%) of the
consideration received shall be Cash; and
(iv) Company and its Subsidiaries may make acquisitions
of Securities issued by Company consistent with subsection
7.5.
7.8 Transactions with Shareholders and Affiliates.
Company shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, enter into or permit to
exist any transaction (including, without limitation, the
purchase, sale, lease or exchange of any property or the
rendering of any service) the subject matter of which involves an
amount in excess of $1,000,000 with any holder of 5% or more of
any class of equity Securities of Company or with any Affiliate
of Company or of any such holder, on terms that are less
favorable to Company or that Subsidiary, as the case may be, than
those that might be obtained at the time from Persons who are not
such a holder or Affiliate; provided that nothing contained in
the foregoing restriction shall apply to (i) any transaction
between Company and any of its wholly-owned Subsidiaries or
between any of its wholly-owned Subsidiaries or (ii) reasonable
and customary fees paid to members of the Boards of Directors of
Company and its Subsidiaries.
7.9 Disposal of Subsidiary Stock.
Company shall not:
(i) directly or indirectly sell, assign, pledge or
otherwise encumber or dispose of any shares of capital stock
or other equity Securities of any of its Subsidiaries,
except to qualify directors if required by applicable law;
or
(ii) permit any of its Subsidiaries directly or
indirectly to sell, assign, pledge or otherwise encumber or
dispose of any shares of capital stock or other equity
Securities of any of its Subsidiaries (including such
Subsidiary), except to Company, another Subsidiary of
Company, or to qualify directors if required by applicable
law.
7.10 Conduct of Business.
From and after the Effective Date, Company shall not,
and shall not permit any of its Subsidiaries to, engage in any
business other than (i) the businesses engaged in by Company and
its Subsidiaries on the Effective Date as described in the
"Business" and "Properties" section of the 10-K and any Related
Business and (ii) such other lines of business as may be
consented to by Requisite Lenders.
7.11 Tradenames, Trademarks and Servicemarks.
Company and its Subsidiaries shall not assign or in any
other manner alienate its interest in any tradenames, trademarks
or servicemarks relating or pertaining to any of the Facilities
other than (i) as provided on Schedule 7.11, (ii) assignments in
the ordinary course of Company's business and similar in nature
to the types of assignments undertaken by comparable gaming
entities or (iii) assignments to Company or any wholly-owned
Subsidiary of Company, if such assignment does not affect the
validity and enforceability of such tradenames, trademarks or
servicemarks and, prior to any such assignment, the assignee has
granted Administrative Agent a legally valid and enforceable
security interest in any such tradenames, trademarks or
servicemarks.
7.12 Change of Control Offer.
Company shall not commence a Change of Control Offer
(as defined in the Indenture) without the consent of Requisite
Lenders.
7.13 No Amendment of Indenture.
Company shall not amend the Indenture in any manner
without the prior written consent of Requisite Lenders, which
consent shall not be unreasonably withheld; provided that nothing
contained in this restriction shall apply to any amendment to the
Indenture that either (i) does not require the consent of any
holder of Senior Notes or (ii) is required by a final order or
decree of a court of competent jurisdiction.
7.14 No Movement of Other Barges.
Company and its Subsidiaries shall not permit any Barge
to be moved from permanent moorage at the Louisiana Premises or
the Illinois Premises, as applicable, unless and until (i) such
Barge is registered with the United States Coast Guard and (ii) a
first priority Lien has been created for the benefit of the
Lenders pursuant to a duly authorized, executed and delivered
Ship Mortgage.
SECTION 8.
EVENTS OF DEFAULT
IF any of the following conditions or events ("Events
of Default") shall occur:
8.1 Failure to Make Payments When Due.
Failure by Company to pay (i) any installment of
principal of or interest on any Loan when due, whether at stated
maturity, by acceleration, by notice of voluntary prepayment, by
mandatory prepayment or otherwise; (ii) when due any amount
payable to the Issuing Lender in reimbursement of any drawing
under a Letter of Credit; or (iii) any interest on any Loan or
any fee or any other amount due under this Agreement within five
days after the date due; or
8.2 Default in Other Agreements.
(i) Failure of Company or any of its Subsidiaries to
pay when due (a) any principal of or interest on any Indebtedness
(other than Indebtedness referred to in subsection 8.1) in an
individual principal amount of $2,500,000 or more or any items of
Indebtedness with an aggregate principal amount of $5,000,000 or
more or (b) any Contingent Obligation in an individual principal
amount of $2,500,000 or more or any Contingent Obligations with
an aggregate principal amount of $5,000,000 or more, in each case
beyond the end of any grace period provided therefor; or
(ii) breach or default by Company or any of its Subsidiaries with
respect to any other material term of (a) any evidence of any
Indebtedness in an individual principal amount of $2,500,000 or
more or any items of Indebtedness with an aggregate principal
amount of $5,000,000 or more or any Contingent Obligation in an
individual principal amount of $2,500,000 or more or any Contin
gent Obligations with an aggregate principal amount of $5,000,000
or more or (b) any loan agreement, mortgage, indenture or other
agreement relating to such Indebtedness or Contingent
Obligation(s), if the effect of such breach or default is to
cause, or to permit the holder or holders of that Indebtedness or
Contingent Obligation(s) (or a trustee on behalf of such holder
or holders) to cause, that Indebtedness or Contingent Obliga
tion(s) to become or be declared due and payable prior to its
stated maturity or the stated maturity of any underlying obliga
tion, as the case may be (upon the giving or receiving of notice,
lapse of time, both, or otherwise); or
8.3 Breach of Certain Covenants.
Failure of Company to perform or comply with any term
or condition contained in subsection 2.4A(iii), 2.4B(ii),
6.1(ix)(a), 6.2, 6.4B or Section 7 of this Agreement; or
8.4 Breach of Warranty.
Any representation, warranty, certification or other
statement made or deemed made by Company or any of its
Subsidiaries in any Loan Document or in any statement or
certificate at any time given by Company or any of its
Subsidiaries in writing pursuant hereto or thereto or in
connection herewith or therewith shall be false in any material
respect on the date as of which made; or
8.5 Other Defaults Under Loan Documents.
Company or any of its Subsidiaries shall default in the
performance of or compliance with any term contained in this
Agreement or any of the other Loan Documents, other than any such
term referred to in any other subsection of this Section 8, and
such default shall not have been remedied or waived within 15
days after the earlier of (i) a Responsible Officer becoming
aware of such default or (ii) receipt by Company of notice from
Administrative Agent or any Lender of such default; or
8.6 Involuntary Bankruptcy; Appointment of Receiver, etc.
(i) A court having jurisdiction in the premises shall
enter a decree or order for relief in respect of Company or any
of its Subsidiaries in an involuntary case under the Bankruptcy
Code or under any other applicable bankruptcy, insolvency or
similar law now or hereafter in effect, which decree or order is
not stayed; or any other similar relief shall be granted under
any applicable federal or state law; or (ii) an involuntary case
shall be commenced against Company or any of its Subsidiaries
under the Bankruptcy Code or under any other applicable
bankruptcy, insolvency or similar law now or hereafter in effect;
or a decree or order of a court having jurisdiction in the
premises for the appointment of a receiver, liquidator,
sequestrator, trustee, custodian or other officer having similar
powers over Company or any of its Subsidiaries, or over all or a
substantial part of its property, shall have been entered; or
there shall have occurred the involuntary appointment of an
interim receiver, trustee or other custodian of Company or any of
its Subsidiaries for all or a substantial part of its property;
or a warrant of attachment, execution or similar process shall
have been issued against any substantial part of the property of
Company or any of its Subsidiaries, and any such event described
in this clause (ii) shall continue for 45 days unless dismissed,
bonded, discharged or stayed; or
8.7 Voluntary Bankruptcy; Appointment of Receiver, etc.
(i) Company or any of its Subsidiaries shall have an
order for relief entered with respect to it or commence a
voluntary case under the Bankruptcy Code or under any other
applicable bankruptcy, insolvency or similar law now or hereafter
in effect, or shall consent to the entry of an order for relief
in an involuntary case, or to the conversion of an involuntary
case to a voluntary case, under any such law, or shall consent to
the appointment of or taking possession by a receiver, trustee or
other custodian for all or a substantial part of its property; or
Company or any of its Subsidiaries shall make any assignment for
the benefit of creditors; or (ii) Company or any of its
Subsidiaries shall be unable, or shall fail generally, or shall
admit in writing its inability, to pay its debts as such debts
become due; or the Board of Directors of Company or any of its
Subsidiaries (or any committee thereof) shall adopt any
resolution or otherwise authorize any action to approve any of
the actions referred to in clause (i) above or this clause (ii);
or
8.8 Judgments and Attachments.
Any money judgment, writ or warrant of attachment or
similar process involving (i) in any individual case an amount in
excess of $2,500,000 or (ii) in the aggregate at any time an
amount in excess of $5,000,000 (in either case not adequately
covered by insurance as to which an unaffiliated insurance
company has acknowledged coverage) shall be entered or filed
against Company or any of its Subsidiaries or any of their
respective assets and shall remain undischarged, unvacated,
unbonded or unstayed for a period of 45 days (or in any event
later than five days prior to the date of any proposed sale
thereunder); or
8.9 Dissolution.
Any order, judgment or decree shall be entered against
Company or any of its Subsidiaries decreeing the dissolution or
split up of Company or that Subsidiary and such order shall
remain undischarged or unstayed for a period in excess of 30
days; or
8.10 Employee Benefit Plans.
A. There shall occur one or more ERISA Events which
individually or in the aggregate results in or might reasonably
be expected to result in liability of Company or any of its
Subsidiaries or any of their respective ERISA Affiliates in
excess of $5,000,000 during the term of this Agreement.
B. There shall exist an amount of unfunded benefit
liabilities (as defined in Section 4001(a)(18) of ERISA),
individually or in the aggregate for all Pension Plans (excluding
for purposes of such computation any Pension Plans with respect
to which assets exceed benefit liabilities), which exceeds
$5,000,000, and such default shall not have been remedied or
waived within 10 days after the earlier of (i) the date that, to
Company's Best Knowledge, such condition exists or (ii) receipt
by Company of notice from Administrative Agent or any Lender of
such default; or
8.11 Change in Control.
A Change of Control shall have occurred; or
8.12 Impairment of Collateral.
(A) A judgment creditor of Company or any of its
Subsidiaries shall obtain possession of any material portion of
the Collateral under the Collateral Documents by any means,
including, without limitation, levy, distraint, replevin or self-
help, (B) any substantial portion of the Collateral shall be
taken by eminent domain or condemnation, (C) any of the
Collateral Documents shall cease for any reason (other than an
act by Administrative Agent or any Lender) to be in full force
and effect, or any party thereto shall purport to disavow its
obligations thereunder or shall declare that it does not have any
further obligations thereunder or shall contest the validity or
enforceability thereof or Lenders shall cease to have a valid and
perfected first priority security interest in any material
Collateral therein, or (D) Lenders' security interests or liens
on any material portion of the Collateral under the Collateral
Documents shall become otherwise impaired or unenforceable; or
8.13 Loss of Gaming License.
The occurrence of a License Revocation by any Gaming
Authority in a jurisdiction in which Company or any of its
Subsidiaries owns or operates a casino, hotel, casino/hotel,
resort, casino/resort, riverboat casino, dock casino, any other
type of casino, golf course, entertainment center or similar
facility; provided that such License Revocation continues for at
least five (5) calendar days; or
8.14 [omitted].
8.15 Invalidity of Guaranties.
Either Guaranty, for any reason, other than the
satisfaction in full of all Obligations, the termination of this
Agreement or the termination of either Guaranty (or any
Guarantor's obligations thereunder) in accordance with its terms,
ceases to be in full force and effect or is declared to be null
and void by final order of a court of competent jurisdiction, or
any Guarantor (other than any Guarantor that is merged into
another Guarantor or the Company) denies that it has any further
liability under either Guaranty or claims that either Guaranty is
void or has no force or effect in whole or in part or gives
notice to such effect.
THEN
8.16 Remedies.
At any time, (i) upon the occurrence of any Event of
Default described in subsection 8.6 or 8.7, each of (a) the
unpaid principal amount of and accrued interest on the Loans, (b)
an amount equal to the maximum amount that may at any time be
drawn under all Letters of Credit then outstanding (whether or
not any beneficiary under any such Letter of Credit shall have
presented, or shall be entitled at such time to present, the
drafts or other documents or certificates required to draw under
such Letter of Credit), and (c) all other Obligations shall
automatically become immediately due and payable, without
presentment, demand, protest or other requirements of any kind,
all of which are hereby expressly waived by Company, and the
obligation of each Lender to make any Loan and the obligation of
Administrative Agent to issue any Letter of Credit shall
thereupon terminate, and (ii) upon the occurrence and during the
continuation of any other Event of Default, Administrative Agent
shall, upon the written request or with the written consent of
Requisite Lenders, by written notice to Company, declare all or
any portion of the amounts described in clauses (a) through (c)
above to be, and the same shall forthwith become, immediately due
and payable, and the obligation of each Lender to make any Loan
shall thereupon terminate and the obligation of Administrative
Agent to issue any Letter of Credit hereunder shall thereupon
terminate; provided, however, that the foregoing shall not affect
in any way the obligations of Lenders under subsection 3.3C(i) or
the obligations of Lenders to purchase participations in any
unpaid Swing Line Loans as provided in subsection 2.1B.
Any amounts described in clause (b) above, when
received by Administrative Agent, shall be held by Administrative
Agent pursuant to the terms of the Collateral Account Agreement
and shall be applied as therein provided.
Notwithstanding anything contained in the second
preceding paragraph, if at any time within 60 days after an
acceleration of the Loans pursuant to such paragraph Company
shall pay all arrears of interest and all payments on account of
principal which shall have become due otherwise than as a result
of such acceleration (with interest on principal and, to the
extent permitted by law, on overdue interest, at the rates
specified in this Agreement) and all Events of Default and
Potential Events of Default (other than non-payment of the
principal of and accrued interest on the Loans, in each case
which is due and payable solely by virtue of acceleration) shall
be remedied or waived pursuant to subsection 10.6, then Requisite
Lenders, by written notice to Company, may at their option
rescind and annul such acceleration and its consequences; but
such action shall not affect any subsequent Event of Default or
Potential Event of Default or impair any right consequent
thereon. The provisions of this paragraph are intended merely to
bind Lenders to a decision that may be made at the election of
Requisite Lenders and are not intended to benefit Company and do
not grant Company the right to require Lenders to rescind or
annul any acceleration hereunder, even if the conditions set
forth herein are met.
SECTION 9.
ADMINISTRATIVE AGENT
9.1 Appointment.
WFB is hereby appointed Administrative Agent hereunder
and under the other Loan Documents and each Lender hereby
authorizes Administrative Agent to act as its agent in accordance
with the terms of this Agreement and the other Loan Documents.
Administrative Agent agrees to act upon the express conditions
contained in this Agreement and the other Loan Documents, as
applicable. The provisions of this Section 9 are solely for the
benefit of Administrative Agent, Managing Agent, Arranger and
Lenders and Company shall have no rights as a third party
beneficiary of any of the provisions thereof. In performing its
functions and duties under this Agreement, Administrative Agent
shall act solely as an agent of Lenders and does not assume and
shall not be deemed to have assumed any obligation towards or
relationship of agency or trust with or for Company or any of its
Subsidiaries.
9.2 Powers; General Immunity.
A. Duties Specified. Each Lender irrevocably authorizes
Administrative Agent to take such action on such Lender's behalf
and to exercise such powers hereunder and under the other Loan
Documents as are specifically delegated to Administrative Agent
by the terms hereof and thereof, together with such powers as are
reasonably incidental thereto. Administrative Agent shall have
only those duties and responsibilities that are expressly
specified in this Agreement and the other Loan Documents and it
may perform such duties by or through its agents or employees.
Neither the Managing Agent nor the Arranger shall have any duty
or responsibility under this Agreement or any Loan Document in
its capacity therein. Neither the Managing Agent, Arranger nor
Administrative Agent shall have, by reason of this Agreement or
any of the other Loan Documents, a fiduciary relationship in
respect of any Lender; and nothing in this Agreement or any of
the other Loan Documents, expressed or implied, is intended to or
shall be so construed as to impose upon Administrative Agent any
obligations in respect of this Agreement or any of the other Loan
Documents except as expressly set forth herein or therein.
B. No Responsibility for Certain Matters. Administrative
Agent shall not be responsible to any Lender for the execution,
effectiveness, genuineness, validity, enforceability,
collectibility or sufficiency of this Agreement or any other Loan
Document or for any representations, warranties, recitals or
statements made herein or therein or made in any written or oral
statements or in any financial or other statements, instruments,
reports or certificates or any other documents furnished or made
by Administrative Agent to Lenders or by or on behalf of Company
to Administrative Agent or any Lender in connection with the Loan
Documents and the transactions contemplated thereby or for the
financial condition or business affairs of Company or any other
Person liable for the payment of any Obligations, nor shall
Administrative Agent be required to ascertain or inquire as to
the performance or observance of any of the terms, conditions,
provisions, covenants or agreements contained in any of the Loan
Documents or as to the use of the proceeds of the Loans or the
use of the Letters of Credit or as to the existence or possible
existence of any Event of Default or Potential Event of Default.
Anything contained in this Agreement to the contrary
notwithstanding, Administrative Agent shall not have any
liability arising from confirmations of the amount of outstanding
Loans or the Letter of Credit Usage or the component amounts
thereof.
C. Exculpatory Provisions. Neither Administrative Agent
nor any of its officers, directors, employees or agents shall be
liable to Lenders for any action taken or omitted by
Administrative Agent under or in connection with any of the Loan
Documents except to the extent caused by Administrative Agent's
gross negligence or willful misconduct. If Administrative Agent
shall request instructions from Lenders with respect to any act
or action (including the failure to take an action) in connection
with this Agreement or any of the other Loan Documents,
Administrative Agent shall be entitled to refrain from such act
or taking such action unless and until Administrative Agent shall
have received instructions from Requisite Lenders. Without
prejudice to the generality of the foregoing, (i) Administrative
Agent shall be entitled to rely, and shall be fully protected in
relying, upon any communication, instrument or document believed
by it to be genuine and correct and to have been signed or sent
by the proper person or persons, and shall be entitled to rely
and shall be protected in relying on opinions and judgments of
attorneys (who may be attorneys for Company and its
Subsidiaries), accountants, experts and other professional
advisors selected by it; and (ii) no Lender shall have any right
of action whatsoever against Administrative Agent as a result of
Administrative Agent acting or (where so instructed) refraining
from acting under this Agreement or any of the other Loan
Documents in accordance with the instructions of Requisite
Lenders. Administrative Agent shall be entitled to refrain from
exercising any power, discretion or authority vested in it under
this Agreement or any of the other Loan Documents unless and
until it has obtained the instructions of Requisite Lenders or
all Lenders as required or permitted by this Agreement. Each
Lender agrees that it shall not exercise any right of set-off
described in subsection 10.4 without the concurrence of
Administrative Agent.
D. Administrative Agent Entitled to Act as Lender. The
agency hereby created shall in no way impair or affect any of the
rights and powers of, or impose any duties or obligations upon,
Administrative Agent in its individual capacity as a Lender
hereunder. With respect to its participation in the Loans and
the Letters of Credit, Administrative Agent shall have the same
rights and powers hereunder as any other Lender and may exercise
the same as though it were not performing the duties and
functions delegated to it hereunder, and the term "Lender" or
"Lenders" or any similar term shall, unless the context clearly
otherwise indicates, include Administrative Agent in its
individual capacity. Administrative Agent and its Affiliates may
accept deposits from, lend money to and generally engage in any
kind of banking, trust, financial advisory or other business with
Company or any of its Affiliates as if it were not performing the
duties specified herein, and may accept fees and other
consideration from Company for services in connection with this
Agreement and otherwise without having to account for the same to
Lenders.
9.3 Representations and Warranties; No Responsibility For
Appraisal of Creditworthiness.
Each Lender represents and warrants that it has made
its own independent investigation of the financial condition and
affairs of Company and its Subsidiaries in connection with the
making of the Loans and the issuance of the Letters of Credit
hereunder and that it has made and shall continue to make its own
appraisal of the creditworthiness of Company and its
Subsidiaries. Administrative Agent shall not have any duty or
responsibility, either initially or on a continuing basis, to
make any such investigation or any such appraisal on behalf of
Lenders or to provide any Lender with any credit or other
information with respect thereto, whether coming into its
possession before the making of the Loans or at any time or times
thereafter, and Administrative Agent shall not have any
responsibility with respect to the accuracy of or the
completeness of any information provided to Lenders.
9.4 Right to Indemnity.
Each Lender, in proportion to its Pro Rata Share,
severally agrees to indemnify Administrative Agent, to the extent
that Administrative Agent shall not have been reimbursed by
Company, for and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs,
expenses (including, without limitation, counsel fees and
disbursements) or disbursements of any kind or nature whatsoever
which may be imposed on, incurred by or asserted against
Administrative Agent in performing its duties hereunder or under
the other Loan Documents or otherwise in its capacity as
Administrative Agent in any way relating to or arising out of
this Agreement or the other Loan Documents; provided that no
Lender shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from
Administrative Agent's gross negligence or willful misconduct.
If any indemnity furnished to Administrative Agent for any
purpose shall, in the opinion of Administrative Agent, be
insufficient or become impaired, Administrative Agent may call
for additional indemnity and cease, or not commence, to do the
acts indemnified against until such additional indemnity is
furnished.
9.5 Successor Administrative Agent.
Administrative Agent may resign at any time by giving
30 days' prior written notice thereof to Lenders and Company,
provided that on or before the effective date of any such
resignation, a successor Administrative Agent shall have been
appointed pursuant to this subsection 9.5A. Administrative Agent
may be removed at any time with cause by an instrument or
concurrent instruments in writing delivered to Company and
Administrative Agent and signed by Requisite Lenders. Upon any
such notice of resignation or any such removal, Requisite Lenders
shall have the right, upon five Business Days' notice to Company,
to appoint a successor Administrative Agent. Upon the acceptance
of any appointment as Administrative Agent hereunder by a
successor Administrative Agent, that successor Administrative
Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring or removed
Administrative Agent and the retiring or removed Administrative
Agent shall be discharged from its duties and obligations under
this Agreement. After any retiring or removed Administrative
Agent's resignation or removal hereunder as Administrative Agent,
the provisions of this Section 9 shall inure to its benefit as to
any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement.
9.6 Collateral Documents.
Each Lender hereby further authorizes Administrative
Agent to enter into the Collateral Documents as secured party on
behalf of and for the benefit of each Lender and agrees to be
bound by the terms of the Collateral Documents; provided that
Administrative Agent shall not enter into or consent to any
amendment, modification, termination or waiver of any provision
contained in the Collateral Documents except as set forth in
subsection 10.6. Anything contained in any of the Loan Documents
to the contrary notwithstanding, each Lender agrees that no
Lender shall have any right individually to realize upon any of
the collateral under the Collateral Documents, it being
understood and agreed that all rights and remedies under the
Collateral Documents may be exercised solely by Administrative
Agent for the benefit of Lenders in accordance with the terms
thereof.
9.7 Release of Collateral.
Administrative Agent may release personal property
Collateral without the consent of any Lender to the extent sold
or disposed of by Company or any of its Subsidiaries in a
transaction or series of transactions that constitute a permitted
Asset Sale pursuant to subsection 7.7(ii) and that meets all of
the requirements contained therein. Administrative Agent may
also, upon Borrower's request, take such actions as are necessary
to terminate any Ship Mortgage relating to a Barge on file with
the United States Coast Guard if, and only if, (i) such Barge has
ceased, or will concurrently with such termination cease, to be a
US Documented Barge and (ii) Administrative Agent shall have
received assurances, reasonably satisfactory to Administrative
Agent, that upon giving effect to such termination, such Barge
will be subject to a perfected first priority Lien in favor of
Administrative Agent for the benefit of Lenders.
SECTION 10.
MISCELLANEOUS
10.1 Assignments and Participations in Loans and Letters of
Credit
A. General. Each Lender shall have the right at any time
to (i) sell, assign or transfer to any Eligible Assignee, or
(ii) sell participations to any Person in, all or any part
(subject to certain limitations set forth in subsection 10.1B
below) of its Commitments or any Loan or Loans made by it or its
Letters of Credit or participations therein or any other interest
herein or in any other Obligations owed to it, subject to the
following restrictions:
(v) no such sale, assignment, transfer or
participation shall, without the consent of Company,
require Company to file a registration statement with the
Securities and Exchange Commission or apply to qualify
such sale, assignment, transfer or participation under the
securities laws of any state;
(w) no such sale, assignment or transfer described
in clause (i) above shall be effective unless and until a
Lender Assignment Agreement (a "Lender Assignment
Agreement") effecting such sale, assignment or transfer
shall have been accepted by Administrative Agent as
provided in subsection 10.1B(ii); and
(x) no such sale, assignment, transfer or
participation of any Letter of Credit or any participation
therein may be made separately from a sale, assignment,
transfer or participation of a corresponding interest in
the Commitments and the Loans of the Lender effecting such
sale, assignment, transfer or participation.
Except as otherwise provided in this subsection 10.1, no Lender
shall, as between Company and such Lender, be relieved of any of
its obligations hereunder as a result of any sale, assignment or
transfer of, or any granting of participations in, all or any
part of its Commitment or the Loans or the other Obligations owed
to such Lender.
B. Assignments.
(i) Amounts and Terms of Assignments. Each
Commitment, Loan, Letter of Credit or participation
therein, or other Obligation may (a) be assigned in any
amount to another Lender or to an Affiliate of the
assigning Lender or another Lender, with the giving of
notice to Company and Administrative Agent or (b) be
assigned in an aggregate amount of not less than
$5,000,000 (or such lesser amount as shall constitute the
aggregate amount of the Commitments, Loans, Letters of
Credit and participations therein, and other Obligations
of the assigning Lender as may be agreed to by Company and
Administrative Agent) to any other Eligible Assignee with
the giving of notice to Company and with the consent of
Managing Agent (which consent shall not be unreasonably
withheld). To the extent of any such assignment in
accordance with either clause (a) or (b) above, the
assigning Lender shall be relieved of its obligations with
respect to its Commitments, Loans, Letters of Credit or
participations therein, or other Obligations or the
portion thereof so assigned. The parties to each such
assignment shall execute and deliver to Administrative
Agent, for its acceptance, a Lender Assignment Agreement,
together with a processing fee of $3,500 and such forms,
certificates or other evidence, if any, with respect to
United States federal income tax withholding matters as
the assignee under such Lender Assignment Agreement may be
required to deliver to Administrative Agent pursuant to
subsection 2.7B(iii)(a). Upon such execution, delivery,
acceptance and recordation from and after the effective
date specified in such Lender Assignment Agreement,
(y) the assignee thereunder shall be a party hereto and,
to the extent that rights and obligations hereunder have
been assigned to it pursuant to such Lender Assignment
Agreement, shall have the rights and obligations of a
Lender hereunder and (z) the assigning Lender thereunder
shall, to the extent that rights and obligations hereunder
have been assigned by it pursuant to such Lender
Assignment Agreement, relinquish its rights and be
released from its obligations under this Agreement (and,
in the case of a Lender Assignment Agreement covering all
or the remaining portion of an assigning Lender's rights
and obligations under this Agreement, such Lender shall
cease to be a party hereto); provided that, anything
contained in any of the Loan Documents to the contrary
notwithstanding, if such Lender is Administrative Agent
with respect to any outstanding Letters of Credit such
Lender shall continue to have all rights and obligations
of an Administrative Agent with respect to such Letters of
Credit until the cancellation or expiration of such
Letters of Credit and the reimbursement of any amounts
drawn thereunder). The Commitments hereunder shall be
modified to reflect the Commitments of such assignee and
any remaining Commitments of such assigning Lender and the
assigning Lender shall, upon the effectiveness of such
assignment or as promptly thereafter as practicable,
surrender its Note to Administrative Agent for
cancellation, and thereupon new Notes shall, if so
requested by the assignee and/or the assigning Lender in
accordance with subsection 2.1E, be issued to the assignee
and/or to the assigning Lender, substantially in the form
of Exhibits V or Exhibit VI, respectively, annexed hereto
with appropriate insertions, to reflect the new
Commitments of the assignee and/or the assigning Lender.
(ii) Acceptance by Administrative Agent. Upon its
receipt of a Lender Assignment Agreement executed by an
assigning Lender and an assignee representing that it is
an Eligible Assignee, together with the processing fee and
any forms, certificates or other evidence with respect to
United States federal income tax withholding matters that
such assignee may be required to deliver to Administrative
Agent pursuant to subsection 2.7B(iii)(a), Administrative
Agent shall, if such Lender Assignment Agreement has been
completed and is in substantially the form of Exhibit IV
hereto and if Managing Agent have consented to the
assignment evidenced thereby (to the extent such consent
is required pursuant to subsection 10.1B(i)), (a) accept
such Lender Assignment Agreement by executing a
counterpart thereof as provided therein (which acceptance
shall evidence any required consent of Administrative
Agent to such assignment) and (b) give prompt notice
thereof to Company. Administrative Agent shall maintain a
copy of each Lender Assignment Agreement delivered to and
accepted by it as provided in this subsection 10.1B(ii).
(iii) Mandatory Assignment by Non-Suitable Lender. If
any Lender is required to qualify or be found suitable by
the regulations of any Gaming Authority and does not so
qualify or otherwise not meet the suitability standards
pursuant to such regulations (in such case, a "Former
Lender"), such Former Lender shall and hereby agrees to
sell its rights and obligations under this Agreement to
Eligible Assignee (the "Substitute Lender"). The
Substitute Lender shall assume the rights and obligations
of the Former Lender under this Agreement pursuant to a
Lender Assignment Agreement, which assumption shall be
required to comply with, and shall become effective in
accordance with, the provisions of subsection 10.1B;
provided that the purchase price to be paid by the
Substitute Lender to Administrative Agent for the account
of the Former Lender for such assumption shall equal the
sum of (i) the unpaid principal amount of any Loans held
by the Former Lender plus accrued interest thereon plus
(ii) the Former Lender's Pro Rata Share (through the
required purchase of participations pursuant to subsection
3.1C) of the aggregate amount of drawings under all
Letters of Credit that have not been reimbursed by
Company, plus accrued interest thereon, plus (iii) such
Former Lender's pro rata share of accrued fees to the date
of the assumption; provided further that, upon receipt by
the Former Lender of all such amounts, Administrative
Agent shall thereafter pay all obligations owing to the
Former Lender under the Loan Documents to the Substitute
Lender. Each Lender agrees that if it becomes a Former
Lender, upon payment to it by Administrative Agent (upon
Administrative Agent's receipt thereof from the Substitute
Lender) of all such amounts, if any, owing to it under the
Loan Documents, it will execute and deliver a Lender
Assignment Agreement.
Notwithstanding the foregoing, if any Lender becomes a
Former Lender and fails to find a Substitute Lender within
10 days of being determined unsuitable or unqualified, or
such lesser period of time as specified by any such Gaming
Authority for the withdrawal of a Former Lender (the
"Withdrawal Period"), Company shall have an additional 90
day period, or such lesser period of time as specified by
such Gaming Authority, to find a Substitute Lender, which
Substitute Lender shall assume the rights and obligations
of the Former Lender as provided in the preceding
paragraph. In the event that Company shall not have found
a Substitute Lender within such period of time, Company
shall immediately (i) prepay in full the outstanding
principal amount of Loans held by such Former Lender,
together with accrued interest thereon to the earlier of
(X) the date of payment or (Y) the last day of any
Withdrawal Period, and (ii) at the option of Company
either (A) place an amount equal to such Former Lender's
Pro Rata Share in each Letter of Credit issued by
Administrative Agent, in a separate cash collateral
account with Administrative Agent for each outstanding
Letter of Credit, which amount will be applied by
Administrative Agent to satisfy Company's reimbursement
obligations to Administrative Agent in respect of
unreimbursed drawings under the applicable Letter of
Credit or (B) if no Event of Default then exists,
terminate the Commitments of such Former Lender, at which
time the other Lenders' Pro Rata Shares will be
automatically adjusted as a result thereof; provided that
the option specified in this clause (B) may only be
exercised if, immediately after giving effect thereto, no
Lender's outstanding Revolving Loans, when added to the
product of (a) such Lender's Pro Rata Share and (b) the
sum of (I) the aggregate amount of all outstanding Letters
of Credit at such time and (II) the aggregate amount of
all Swing Line Loans then outstanding, would exceed such
Lender's Commitments at such time. Each Lender agrees
that, to the extent and for so long as required by any
applicable Gaming Authority, such Lender's rights and
obligations under this Agreement are subject to the
provisions of this subsection 10.1B(iii) and all
restrictions of any applicable Gaming Authority.
C. Participations. The holder of any participation, other
than an Affiliate of the Lender granting such participation,
shall not be entitled to require such Lender to take or omit to
take any action hereunder except action directly affecting
(i) the extension of the final maturity of any portion of the
principal amount of or interest on any Loan allocated to such
participation or (ii) a reduction of the principal amount of or
the rate of interest payable on any Loan allocated to such
participation, and all amounts payable by Company hereunder
(including without limitation amounts payable to such Lender
pursuant to subsection 2.7) shall be determined as if such Lender
had not sold such participation. Company and each Lender hereby
acknowledge and agree that, solely for purposes of subsections
10.4 and 10.5, (a) any participation will give rise to a direct
obligation of Company to the participant and (b) the participant
shall be considered to be a "Lender".
D. Assignments to Federal Reserve Banks. In addition to
the assignments and participations permitted under the foregoing
provisions of this subsection 10.1, any Lender may assign and
pledge all or any portion of its Loans, the other Obligations
owed to such Lender, and its Note to any Federal Reserve Bank as
collateral security pursuant to Regulation A of the Board of
Governors of the Federal Reserve System and any operating
circular issued by such Federal Reserve Bank; provided that
(i) no Lender shall, as between Company and such Lender, be
relieved of any of its obligations hereunder as a result of any
such assignment and pledge and (ii) in no event shall such
Federal Reserve Bank be considered to be a "Lender" or be
entitled to require the assigning Lender to take or omit to take
any action hereunder.
E. Assignments and Participations Subject to Gaming Laws.
Subject to the last sentence of this subsection 10.1E, each
Lender agrees that all assignments and participations made
hereunder shall be subject to, and made in compliance with, all
Gaming Laws applicable to Lenders. Company hereby acknowledges
that unless Company has provided Lenders with a written opinion
of counsel as to the suitability standards applicable to Lenders
of any relevant Gaming Authority with jurisdiction over the
business of Company and its Subsidiaries, no Lender shall have
the responsibility of determining whether or not a potential
assignee or participant of such Lender would qualify as a
suitable Lender under the Gaming Laws of any such jurisdiction.
F. Information. Each Lender may furnish any information
concerning Company and its Subsidiaries in the possession of that
Lender from time to time to assignees and participants (including
prospective assignees and participants), subject to subsection
10.19.
10.2 Expenses.
Whether or not the transactions contemplated hereby
shall be consummated, Company agrees to pay promptly (i) all the
actual and reasonable costs and expenses of preparation of the
Loan Documents; (ii) all the costs of furnishing all opinions by
counsel for Company (including without limitation any opinions
requested by Lenders as to any legal matters arising hereunder)
and of each Loan Party's performance of and compliance with all
agreements and conditions on its part to be performed or complied
with under this Agreement and the other Loan Documents including,
without limitation, with respect to confirming compliance with
environmental and insurance requirements; (iii) the reasonable
fees, expenses and disbursements of counsel to Administrative
Agent (including Allocated Costs of Internal Counsel) in
connection with the negotiation, preparation, execution and
administration of the Loan Documents and the Loans and any
consents, amendments, waivers or other modifications hereto or
thereto and any other documents or matters requested by Company
or any other Loan Party; (iv) all other actual and reasonable
costs and expenses incurred by Administrative Agent, Managing
Agent and Arranger in connection with the syndication of the
Commitments and the negotiation, preparation and execution of the
Loan Documents and the transactions contemplated hereby and
thereby; and (v) after the occurrence of an Event of Default, all
costs and expenses, including reasonable attorneys' fees
(including Allocated Costs of Internal Counsel) and costs of
settlement, incurred by Administrative Agent and Lenders in
enforcing any Obligations of or in collecting any payments due
from Company or any other Loan Party hereunder or under the other
Loan Documents by reason of such Event of Default or in
connection with any refinancing or restructuring of the credit
arrangements provided under this Agreement in the nature of a
"work-out" or pursuant to any insolvency or bankruptcy
proceedings.
10.3 Indemnity.
In addition to the payment of expenses pursuant to
subsection 10.2, whether or not the transactions contemplated
hereby shall be consummated, Company agrees to defend, indemnify,
pay and hold harmless Administrative Agent, Managing Agent and Co-
Arranger and Lenders, and the officers, directors, employees,
agents and affiliates of Administrative Agent and Lenders
(collectively called the "Indemnitees") from and against any and
all other liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, claims, costs, expenses and
disbursements of any kind or nature whatsoever (including without
limitation the reasonable fees and disbursements of counsel for
such Indemnitees in connection with any investigative,
administrative or judicial proceeding commenced or threatened by
any Person, whether or not any such Indemnitee shall be
designated as a party or a potential party thereto), whether
direct, indirect or consequential and whether based on any
federal, state or foreign laws, statutes, rules or regulations
(including without limitation securities and commercial laws,
statutes, rules or regulations and Environmental Laws), on common
law or equitable cause or on contract or otherwise, that may be
imposed on, incurred by, or asserted against any such Indemnitee,
in any manner relating to or arising out of this Agreement or the
other Loan Documents or the transactions contemplated hereby or
thereby (including without limitation Lenders' agreement to make
the Loans hereunder or the use or intended use of the proceeds of
any of the Loans or the issuance of the Letters of Credit
hereunder or the use or intended use of any of the Letters of
Credit) or the statements contained in the commitment letter
delivered by any Lender to Company with respect thereto
(collectively called the "Indemnified Liabilities"); provided
that Company shall not have any obligation to any Indemnitee
hereunder with respect to any Indemnified Liabilities to the
extent such Indemnified Liabilities arise solely from the gross
negligence or willful misconduct of that Indemnitee as determined
by a final judgment of a court of competent jurisdiction. To the
extent that the undertaking to defend, indemnify, pay and hold
harmless set forth in the preceding sentence may be unenforceable
because it is violative of any law or public policy, Company
shall contribute the maximum portion that it is permitted to pay
and satisfy under applicable law to the payment and satisfaction
of all Indemnified Liabilities incurred by the Indemnitees or any
of them.
10.4 Set-Off; Security Interest in Deposit Accounts.
In addition to any rights now or hereafter granted
under applicable law and not by way of limitation of any such
rights, upon the occurrence and during the continuation of any
Event of Default each Lender (with the consent of Administrative
Agent) is hereby authorized by Company at any time or from time
to time, without notice to Company or to any other Person, any
such notice being hereby expressly waived, to set off and to
appropriate and to apply any and all deposits (general or
special, including, but not limited to, Indebtedness evidenced by
certificates of deposit, whether matured or unmatured, but not
including trust accounts) and any other Indebtedness at any time
held or owing by that Lender to or for the credit or the account
of Company against and on account of the obligations and
liabilities of Company to that Lender under this Agreement, the
Letters of Credit and participations therein and the other Loan
Documents, including, but not limited to, all claims of any
nature or description arising out of or connected with this
Agreement, the Letters of Credit and participations therein or
any other Loan Document, irrespective of whether or not (i) that
Lender shall have made any demand hereunder or (ii) the principal
of or the interest on the Loans or any amounts in respect of the
Letters of Credit or any other amounts due hereunder shall have
become due and payable pursuant to Section 8 and although said
obligations and liabilities, or any of them, may be contingent or
unmatured. Company hereby further grants to Administrative Agent
and each Lender a security interest in all deposits and accounts
maintained with Administrative Agent or such Lender as security
for the Obligations.
10.5 Ratable Sharing.
Lenders hereby agree among themselves that if any of
them shall, whether by voluntary payment, by realization upon
security, through the exercise of any right of set-off or
banker's lien, by counterclaim or cross action or by the
enforcement of any right under the Loan Documents or otherwise,
or as adequate protection of a deposit treated as cash collateral
under the Bankruptcy Code, receive payment or reduction of a
proportion of the aggregate amount of principal, interest,
amounts payable in respect of Letters of Credit, fees and other
amounts then due and owing to that Lender hereunder or under the
other Loan Documents (collectively, the "Aggregate Amounts Due"
to such Lender) which is greater than the proportion received by
any other Lender in respect of the Aggregate Amounts Due to such
other Lender, then the Lender receiving such proportionately
greater payment shall (i) notify Administrative Agent and each
other Lender of the receipt of such payment and (ii) apply a
portion of such payment to purchase participations (which it
shall be deemed to have purchased from each seller of a
participation simultaneously upon the receipt by such seller of
its portion of such payment) in the Aggregate Amounts Due to the
other Lenders so that all such recoveries of Aggregate Amounts
Due shall be shared by all Lenders in proportion to the Aggregate
Amounts Due to them; provided that if all or part of such
proportionately greater payment received by such purchasing
Lender is thereafter recovered from such Lender upon the
bankruptcy or reorganization of Company or otherwise, those
purchases shall be rescinded and the purchase prices paid for
such participations shall be returned to such purchasing Lender
ratably to the extent of such recovery, but without interest.
Company expressly consents to the foregoing arrangement and
agrees that any holder of a participation so purchased may
exercise any and all rights of banker's lien, set-off or
counterclaim with respect to any and all monies owing by Company
to that holder with respect thereto as fully as if that holder
were owed the amount of the participation held by that holder.
10.6 Amendments and Waivers.
No amendment, modification, termination or waiver of
any provision of this Agreement, the Notes or any other Loan
Document, or consent to any departure by Company therefrom, shall
in any event be effective without the written concurrence of
Requisite Lenders; provided that any such amendment,
modification, termination, waiver or consent which: increases
the amount of any of the Commitments; changes any Lender's Pro
Rata Share; changes in any manner the definition of "Requisite
Lenders"; changes in any manner any provision of this Agreement
which, by its terms, expressly requires the approval or
concurrence of all Lenders; postpones the Commitment Termination
Date; postpones the date on which any interest or any fees are
payable; decreases the interest rate borne by any of the Loans
(other than any waiver of any increase in the interest rate
applicable to any of the Loans pursuant to subsection 2.2E) or
the amount of any fees payable hereunder; increases the maximum
duration of Interest Periods permitted hereunder; reduces the
amount or postpones the due date of any amount payable in respect
of, or extends the required expiration date of, any Letter of
Credit; changes in any manner the obligations of Lenders relating
to the purchase of participations in Letters of Credit; releases
any Collateral (other than pursuant to a permitted Asset Sale
pursuant to subsection 7.7(iii) that meets all of the
requirements contained therein) or changes in any manner the
provisions contained in subsection 8.1 or this subsection 10.6
shall be effective only if evidenced by a writing signed by or on
behalf of all Lenders. In addition, (i) any amendment, modifica
tion, termination or waiver of any of the provisions contained in
Section 4 shall be effective only if evidenced by a writing
signed by or on behalf of Administrative Agent and Requisite
Lenders, (ii) no amendment, modification, termination or waiver
of any provision of any Note shall be effective without the
written concurrence of the Lender which is the holder of that
Note, (iii) no amendment, modification, termination or waiver of
any provision of subsection 2.1B or any other provision of this
Agreement relating to the Swing Line Loan Commitment or the Swing
Line Loans shall be effective without the written concurrence of
Swing Line Lender, (iv) no amendment, modification, termination
or waiver of any provision of Section 3 or of any Letter of
Credit shall be effective without the written concurrence of
Administrative Agent, and (v) no amendment, modification, termi
nation or waiver of any provision of Section 9 or of any other
provision of this Agreement which, by its terms, expressly
requires the approval or concurrence of Administrative Agent
shall be effective without the written concurrence of
Administrative Agent. Administrative Agent may, but shall have
no obligation to, with the written concurrence of any Lender,
execute amendments, modifications, waivers or consents on behalf
of that Lender. Any waiver or consent shall be effective only in
the specific instance and for the specific purpose for which it
was given. No notice to or demand on Company in any case shall
entitle Company to any other or further notice or demand in
similar or other circumstances. Any amendment, modification,
termination, waiver or consent effected in accordance with this
subsection 10.6 shall be binding upon each Lender at the time
outstanding, each future Lender and, if signed by Company, on
Company.
10.7 Independence of Covenants.
All covenants hereunder shall be given independent
effect so that if a particular action or condition is not
permitted by any of such covenants, the fact that it would be
permitted by an exception to, or would otherwise be within the
limitations of, another covenant shall not avoid the occurrence
of an Event of Default or Potential Event of Default if such
action is taken or condition exists.
10.8 Notices.
Unless otherwise specifically provided herein, any
notice or other communication herein required or permitted to be
given shall be in writing and may be personally served, telexed
or sent by telefacsimile or United States mail or courier service
and shall be deemed to have been given when delivered in person
or by courier service, upon receipt of telefacsimile or telex, or
five Business Days after depositing it in the United States mail
with postage prepaid and properly addressed. For the purposes
hereof, the address of each party hereto shall be as set forth
under such party's name on the signature pages hereof or such
other address as shall be designated by such party in a written
notice delivered to the other parties hereto.
10.9 Survival of Representations, Warranties and Agreements.
A. All representations, warranties and agreements made
herein shall survive the execution and delivery of this Agreement
and the making of the Loans and the issuance of the Letters of
Credit hereunder.
B. Notwithstanding anything in this Agreement or implied
by law to the contrary, the agreements of Company set forth in
subsections 2.6D, 2.7, 10.2, 10.3 and 10.4 and the agreements of
Lenders set forth in subsections 9.2C, 9.4 and 10.5 shall survive
the payment of the Loans, the cancellation or termination of the
Letters of Credit and the reimbursement of any amounts drawn
thereunder, and the termination of this Agreement.
10.10 Failure or Indulgence Not Waiver; Remedies Cumulative.
No failure or delay on the part of Administrative Agent
or any Lender in the exercise of any power, right or privilege
hereunder or under any other Loan Document shall impair such
power, right or privilege or be construed to be a waiver of any
default or acquiescence therein, nor shall any single or partial
exercise of any such power, right or privilege preclude other or
further exercise thereof or of any other power, right or
privilege. All rights and remedies existing under this Agreement
and the other Loan Documents are cumulative to, and not exclusive
of, any rights or remedies otherwise available.
10.11 Marshalling; Payments Set Aside.
Neither Administrative Agent nor any Lender shall be
under any obligation to marshal any assets in favor of Company or
any other party or against or in payment of any or all of the
Obligations. To the extent that Company makes a payment or
payments to Administrative Agent or Lenders (or to Administrative
Agent for the benefit of Lenders), or Administrative Agent or
Lenders enforce any security interests or exercise their rights
of setoff, and such payment or payments or the proceeds of such
enforcement or setoff or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside
and/or required to be repaid to a trustee, receiver or any other
party under any bankruptcy law, any other state or federal law,
common law or any equitable cause, then, to the extent of such
recovery, the obligation or part thereof originally intended to
be satisfied, and all Liens, rights and remedies therefor or
related thereto, shall be revived and continued in full force and
effect as if such payment or payments had not been made or such
enforcement or setoff had not occurred.
10.12 General Release.
A. Except with respect to the matters, rights and
obligations specified in subsection 10.12B hereof, Company, for
itself and on behalf of its parent, subsidiary and affiliate
corporations, past or present, and each of them, as well as each
of their respective directors, officers, agents, servants,
shareholders, representatives, attorneys, administrators,
executors, heirs, assigns, predecessors and successors in
interest, and each of them (collectively, the "Releasors") hereby
release and forever discharge Lenders and each of their
respective parents, subsidiaries and affiliates, past or present,
and each of them, as well as each of their directors, officers,
agents, servants, employees, representatives, shareholders,
attorneys, administrators, executors, predecessors and successors
in interest, heirs and assigns, and all other persons, firms or
corporations with whom any of the former have been, are now, or
may hereafter be affiliated, and each of them (collectively, the
"Releasees"), from and against any and all claims, demands,
liens, agreements, contracts, covenants, actions, suits, causes
of action in law or equity, obligations, controversies, debts,
costs, expenses, damages, judgments, orders and liabilities of
whatever kind or nature in law, equity or otherwise, whether
known or unknown, fixed or contingent, suspected or unsuspected
by the Releasors, and whether concealed or hidden, which
Releasors now own or hold or have at any time heretofore owned or
held, which are based upon or arise out of or in connection with
any matter, cause or thing existing at any time prior to the date
hereof or anything done, omitted or suffered to be done or
omitted at any time prior to the date hereof, which relate in any
way to (i) the Existing Credit Agreement and the other Loan
Documents (as defined in the Existing Credit Agreement),
(ii) this Agreement and the other Loan Documents, and (iii) the
transactions occurring in connection with either of the foregoing
and the lending relationship established thereby, irrespective of
whether any such matter, cause or thing, or action done, omitted
or suffered to be done was authorized, permitted or prohibited by
the documents and agreements described in the preceding clauses
(i) and (ii) (collectively the "Released Matters").
B. Notwithstanding anything hereunder to the contrary,
this Release shall not release or alter any obligation arising on
or subsequent to the Effective Date to comply with the terms and
conditions of this Agreement and the other Loan Documents. It is
expressly understood and agreed that it is the intent of Company
to forever release certain claims against the Lenders, including,
but not limited to, any claims related to the actions and
omissions of Releasees prior to the date hereof, but that nothing
herein shall affect the obligations of the Releasees subsequent
to the date hereof, including, but not by way of limitation,
compliance subsequent to the date hereof with all terms and
conditions of this Agreement and the other Loan Documents.
C. Without limiting the generality of the foregoing,
Company for itself and on behalf of the other Releasors expressly
releases any and all past, present and future claims in
connection with the Released Matters, about which the Releasors
do not know of or suspect to exist in their favor, whether
through ignorance, oversight, error, negligence or otherwise, and
which, if known, would materially affect Company's decision to
give the release set forth in this subsection 10.12, and to this
end Company for itself and on behalf of each of the other
Releasors waives all rights under Section 1542 of the Civil Code
of California, which states in full as follows:
"A general release does not extend to claims which
the creditor does not know or suspect to exist in
his favor at the time of executing the release,
which if known by him must have materially affected
his settlement with the debtor."
Company knowingly and willingly waives the provisions of Section
1542 and acknowledges and agrees that this waiver is an essential
and material term of this Agreement. Company has reviewed this
Agreement and the release contained in this subsection 10.12 with
Company's legal counsel, and Company understands and acknowledges
the significance and consequence of this Agreement and of the
specific waiver of Section 1542 of the Civil Code of California.
D. Company represents, warrants and agrees that in
executing and entering into this Agreement, Company is not
relying and has not relied upon any representation, promise or
statement made by anyone which is not recited, contained or
embodied in this Agreement or the other Loan Documents. Company
understands and expressly assumes the risk that any fact not
recited, contained or embodied therein may turn out hereafter to
be other than, different from, or contrary to the facts now known
to Company or believed by Company to be true. Nevertheless,
Company intends by this Agreement to release fully, finally and
forever all Released Matters and agrees that this Agreement shall
be effective in all respects notwithstanding any such difference
in facts, and shall not be subject to termination, modification
or rescission by reason of any such difference in facts.
E. Company hereby represents and warrants that it has not
heretofore assigned or transferred or purported to assign or
transfer to any person or entity all or any part of or any
interest in any Released Matter. Company agrees to indemnify and
hold harmless the Releasees against any claim, contention,
demand, cause of action, obligation and liability of any nature,
character or description whatsoever, including the payment of
attorney's fees and costs actually incurred, whether or not
litigation is commenced, which may be based upon or which may
arise out of or in connection with any such assignment or
transfer or purported assignment or transfer of any Released
Matter against any Releasee.
F. Company shall, from time to time, promptly execute and
deliver to the Lenders such further instruments, documents and
papers and perform such further acts as may be necessary or, in
Lenders' reasonable judgment, useful to carry out and effect the
terms of this subsection 10.12.
G. This subsection 10.12 is not to be construed and does
not constitute an admission of any liability by any person or
entity for any purpose.
H. Company represents, warrants and agrees that in
executing and entering into this Agreement, Company is not
relying upon, nor is Company acting in consideration of, any
other person or entity executing a similar release. This
Agreement shall be binding, valid and enforceable against Company
and the other Releasors irrespective of whether any other person
or entity executes any other release.
10.13 Severability.
In case any provision in or obligation under this
Agreement or the Notes shall be invalid, illegal or unenforceable
in any jurisdiction, the validity, legality and enforceability of
the remaining provisions or obligations, or of such provision or
obligation in any other jurisdiction, shall not in any way be
affected or impaired thereby.
10.14 Obligations Several; Independent Nature of Lenders'
Rights.
The obligations of Lenders hereunder are several and no
Lender shall be responsible for the obligations or Commitment of
any other Lender hereunder. Nothing contained herein or in any
other Loan Document, and no action taken by Lenders pursuant
hereto or thereto, shall be deemed to constitute Lenders as a
partnership, an association, a Joint Venture or any other kind of
entity. The amounts payable at any time hereunder to each Lender
shall be a separate and independent debt, and each Lender shall
be entitled to protect and enforce its rights arising out of this
Agreement and it shall not be necessary for any other Lender to
be joined as an additional party in any proceeding for such
purpose.
10.15 Headings.
Section and subsection headings in this Agreement are
included herein for convenience of reference only and shall not
constitute a part of this Agreement for any other purpose or be
given any substantive effect.
10.16 Applicable Law.
THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS SHALL BE
GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE
WITH, THE INTERNAL LAWS OF THE STATE OF CALIFORNIA (INCLUDING
SECTION 1646.5 OF THE CIVIL CODE OF THE STATE OF CALIFORNIA),
WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES; PROVIDED THAT THE
EXERCISE OF CERTAIN RIGHTS HEREUNDER OR UNDER THE LOAN DOCUMENTS
MAY BE SUBJECT TO AND/OR REQUIRE COMPLIANCE WITH THE GAMING LAWS.
10.17 Successors and Assigns.
This Agreement shall be binding upon the parties hereto
and their respective successors and assigns and shall inure to
the benefit of the parties hereto and the successors and assigns
of Lenders (it being understood that Lenders' rights of
assignment are subject to subsection 10.1). Neither Company's
rights or obligations hereunder nor any interest therein may be
assigned or delegated by Company without the prior written
consent of all Lenders.
10.18 Consent to Jurisdiction and Service of Process; Choice of
Forum.
ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST COMPANY
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT OR ANY OBLIGATION MAY BE BROUGHT IN ANY STATE OR FEDERAL
COURT OF COMPETENT JURISDICTION IN THE STATE OF CALIFORNIA, AND
BY EXECUTION AND DELIVERY OF THIS AGREEMENT COMPANY ACCEPTS FOR
ITSELF AND IN CONNECTION WITH ITS PROPERTIES, GENERALLY AND
UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS AND
WAIVES ANY DEFENSE OF FORUM NON CONVENIENS AND IRREVOCABLY AGREES
TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH
THIS AGREEMENT, SUCH OTHER LOAN DOCUMENT OR SUCH OBLIGATION.
Company hereby agrees that service of all process in any such
proceeding in any such court may be made by registered or
certified mail, return receipt requested, to Company at its
address provided in subsection 10.8, such service upon receipt by
Company being hereby acknowledged by Company to be sufficient for
personal jurisdiction in any action against Company in any such
court upon such receipt and to be otherwise effective and binding
service in every respect. Nothing herein shall affect the right
to serve process in any other manner permitted by law or shall
limit the right of any Lender to bring proceedings against
Company in the courts of any other jurisdiction.
10.19 Waiver of Jury Trial.
EACH OF THE PARTIES TO THIS AGREEMENT HEREBY AGREES TO
WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE
OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY OF
THE OTHER LOAN DOCUMENTS OR ANY DEALINGS BETWEEN THEM RELATING TO
THE SUBJECT MATTER OF THIS LOAN TRANSACTION OR THE
LENDER/BORROWER RELATIONSHIP THAT IS BEING ESTABLISHED. The
scope of this waiver is intended to be all-encompassing of any
and all disputes that may be filed in any court and that relate
to the subject matter of this transaction, including without
limitation contract claims, tort claims, breach of duty claims
and all other common law and statutory claims. Each party hereto
acknowledges that this waiver is a material inducement to enter
into a business relationship, that each has already relied on
this waiver in entering into this Agreement, and that each will
continue to rely on this waiver in their related future dealings.
Each party hereto further warrants and represents that it has
reviewed this waiver with its legal counsel and that it knowingly
and voluntarily waives its jury trial rights following
consultation with legal counsel. THIS WAIVER IS IRREVOCABLE,
MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING,
AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT OR ANY
OF THE OTHER LOAN DOCUMENTS OR TO ANY OTHER DOCUMENTS OR
AGREEMENTS RELATING TO THE LOANS MADE HEREUNDER. In the event of
litigation, this Agreement may be filed as a written consent to a
trial by the court.
10.20 Confidentiality.
Each Lender shall hold all non-public information
obtained pursuant to the requirements of this Agreement which has
been identified as confidential by Company in accordance with
such Lender's customary procedures for handling confidential
information of this nature and in accordance with safe and sound
banking practices, it being understood and agreed by Company that
in any event a Lender may make disclosures reasonably required by
any bona fide assignee, transferee or participant in connection
with the contemplated assignment or transfer by such Lender of
any Loans or any participation therein or as required or
requested by any governmental agency or representative thereof or
pursuant to legal process; provided that, unless specifically
prohibited by applicable law or court order, each Lender shall
notify Company of any request by any governmental agency or
representative thereof (other than any such request in connection
with any examination of the financial condition of such Lender by
such governmental agency) for disclosure of any such non-public
information prior to disclosure of such information; and
provided, further that in no event shall any Lender be obligated
or required to return any materials furnished by Company or any
of its Subsidiaries.
10.21 Licensing of Administrative Agent and Lenders.
If an Event of Default shall have occurred hereunder or
under any of the Loan Documents and it shall become necessary, or
in the opinion of Administrative Agent advisable, for an agent,
receiver or other representative of Administrative Agent to
become licensed under the provisions of the laws of the State of
Illinois, Louisiana, Kentucky, Missouri or Nevada, or rules and
regulations adopted pursuant thereto, as a condition to receiving
the benefit of any Collateral encumbered by the Collateral
Documents for the benefit of Administrative Agent on behalf of
Lenders or otherwise to enforce their rights hereunder, Company
does hereby give its consent, and agrees to cause its
Subsidiaries to give their consents, to the granting of such
license or licenses and agrees to execute such further documents
as may be required in connection with the evidencing of such
consent.
10.22 Counterparts; Effectiveness.
This Agreement and any amendments, waivers, consents or
supplements hereto or in connection herewith may be executed in
any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and
delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument;
signature pages may be detached from multiple separate
counterparts and attached to a single counterpart so that all
signature pages are physically attached to the same document.
This Agreement shall become effective upon (i) the execution of a
counterpart hereof by each of the parties hereto and receipt by
Company and Administrative Agent of written or telephonic
notification of such execution and authorization of delivery
thereof, (ii) the execution of a Consent to Amendment by each
Noncontinuing Lender in the form of Exhibit XII hereto, and
(iii) the satisfaction or waiver by Requisite Lenders of the
conditions set forth in subsection 4.1. At the time of the
effectiveness of this Agreement, this Agreement shall amend and
restate the Existing Credit Agreement, all obligations of Company
under the Existing Credit Agreement that have not been paid as of
the Effective Date shall become Obligations of Company hereunder,
and the commitments under the Existing Credit Agreement shall
terminate.
10.23 Cooperation With Gaming Authorities.
Administrative Agent and each Lender agree to cooperate
with all Gaming Boards in connection with the administration of
their regulatory jurisdiction over any Loan Party, including the
provision of such documents or other information as may be
requested by any such Gaming Authority relating to any Loan Party
or to the Loan Documents.
[Remainder of page intentionally left blank]
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their respective
officers thereunto duly authorized as of the date first written
above.
PLAYERS
INTERNATIONAL, INC.,
as Borrower
By:
Title:
Notice Address:
Citicenter Building, Suite 800
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
With copies to:
Players International, Inc.
Citicenter Building, Suite 800
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
- and -
Players International, Inc.
Citicenter Building, Suite 800
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
General Counsel and Vice President
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
individually, as Administrative Agent,
Managing Agent and Co-Arranger
By:
Title:
Notice Address for Notices of Borrowing:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇
Notice Address for all other purposes:
3800 ▇▇▇▇▇▇ ▇▇▇▇▇▇ Parkway
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
COMMUNITY NATIONAL BANK,
as Lender
By:
Title:
Notice Address:
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
FIRST NATIONAL BANK OF COMMERCE,
as Lender
By:
Title:
Notice Address:
First NBC Center
▇▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
PAMCO CAYMAN LTD.
By: Protective Asset Management Company
as Collateral Manager
By:
Title:
Notice Address:
1150 Two Galleria Tower
13455 ▇▇▇▇ Road-LB #45
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
EXECUTION COPY
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF MARCH 11, 1998
AMONG
PLAYERS INTERNATIONAL, INC.,
as Borrower,
THE LENDERS LISTED HEREIN,
as Lenders,
and
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
Individually and as Administrative Agent,
Managing Agent and Arranger
PLAYERS INTERNATIONAL, INC.
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
TABLE OF CONTENTS
Page
SECTION 1.
DEFINITIONS 2
1.1 Certain Defined Terms 2
1.2Accounting Terms; Utilization of GAAP for Purposes
of Calculations Under Agreement 35
1.3 Other Definitional Provisions 36
SECTION 2.
AMOUNTS AND TERMS OF COMMITMENTS AND LOANS 36
2.1 Commitments; Making of Loans; Notes 36
2.2 Interest on the Loans 42
2.3 Fees 45
2.4Payments, Prepayments and Reductions in Commitments;
General Provisions Regarding Payments 46
2.5 Use of Proceeds 51
2.6Special Provisions Governing Eurodollar Rate Loans 52
2.7 Increased Costs; Taxes; Capital Adequacy 54
2.8Obligation of Lenders and Administrative
Agent to Mitigate 58
2.9 Replacement or Termination of Lenders 59
SECTION 3.
LETTERS OF CREDIT 59
3.1Issuance of Letters of Credit and Lenders' Purchase
of Participations Therein 59
3.2 Letter of Credit Fees 62
3.3Drawings and Reimbursement of Amounts Drawn Under
Letters of Credit. 62
3.4 Obligations Absolute 65
3.5Indemnification; Nature of the Issuing Lender's Duties 66
3.6Increased Costs and Taxes Relating to Letters of Credit 67
SECTION 4.
CONDITIONS TO EFFECTIVENESS;
CONDITIONS TO LOANS AND LETTERS OF CREDIT 68
4.1 Conditions to Effectiveness 68
4.2 [omitted]. 73
4.3 [omitted] 73
4.4 Conditions to All Loans 73
4.5 Conditions to Letters of Credit 75
SECTION 5.
COMPANY'S REPRESENTATIONS AND WARRANTIES 75
5.1Organization, Powers, Qualification, Good Standing, Business and
Subsidiaries 76
5.2 Authorization of Borrowing, etc. 76
5.3 Financial Condition 77
5.4No Material Adverse Change; No Restricted Payments 78
5.5 Title to Properties; Liens 78
5.6 Litigation; Adverse Facts 80
5.7 Payment of Taxes 80
5.8Performance of Agreements; Materially Adverse Agreements 80
5.9 Governmental Regulation 81
5.10 Securities Activities 81
5.11 Employee Benefit Plans 81
5.12 Certain Fees 81
5.13 Environmental Protection 82
5.14 Employee Matters 83
5.15 Solvency 83
5.16 Disclosure 83
5.17 Compliance With Laws 84
5.18Representations Relating to Operation of Facilities
84
5.19 Intangible Property 84
5.20 Rights to Agreements, Permits and Licenses 85
5.21 Classification of Ships 85
5.22 Recordation of Ship Mortgages 85
5.23 Policies of Insurance 85
5.24Survival of Rights Created under Existing Credit Agreement 86
SECTION 6.
COMPANY'S AFFIRMATIVE COVENANTS 86
6.1 Financial Statements and Other Reports 86
6.2 Corporate Existence, etc. 93
6.3 Payment of Taxes and Claims; Tax Consolidation 93
6.4 Maintenance of Properties; Insurance 93
6.5 Inspection; Lender Meeting 94
6.6 Compliance with Laws, etc. 94
6.7 Environmental Disclosure and Inspection 94
6.8Company's Remedial Action Regarding Hazardous
Materials 96
6.9 Post-Closing Matters 96
6.10New Subsidiaries; New Joint Ventures;
Further Assurances 96
6.11 Exchange Listing 99
SECTION 7.
COMPANY'S NEGATIVE COVENANTS 99
7.1 Indebtedness 99
7.2 Liens and Related Matters 100
7.3Investments, Loans and Advances; Capital Expenditures 101
7.4 Contingent Obligations 101
7.5 Restricted Payments 102
7.6 Financial Covenants 102
7.7Restriction on Fundamental Changes;
Asset Sales and Acquisitions 103
7.8 Transactions with Shareholders and Affiliates 104
7.9 Disposal of Subsidiary Stock 105
7.10 Conduct of Business 105
7.11 Tradenames, Trademarks and Servicemarks 105
7.12 Change of Control Offer 105
7.13 No Amendment of Indenture 105
7.14 No Movement of Other Barges 106
SECTION 8.
EVENTS OF DEFAULT 106
8.1 Failure to Make Payments When Due 106
8.2 Default in Other Agreements 106
8.3 Breach of Certain Covenants 107
8.4 Breach of Warranty 107
8.5 Other Defaults Under Loan Documents 107
8.6Involuntary Bankruptcy; Appointment of Receiver, etc.107
8.7Voluntary Bankruptcy; Appointment of Receiver, etc. 108
8.8 Judgments and Attachments 108
8.9 Dissolution 108
8.10 Employee Benefit Plans 108
8.11 Change in Control 109
8.12 Impairment of Collateral 109
8.13 Loss of Gaming License 109
8.14 [omitted] 109
8.15 Invalidity of Guaranties 109
8.16 Remedies 110
SECTION 9.
ADMINISTRATIVE AGENT 111
9.1 Appointment 111
9.2 Powers; General Immunity 111
9.3Representations and Warranties;
No Responsibility For Appraisal of Creditworthiness 113
9.4 Right to Indemnity 113
9.5 Successor Administrative Agent. 113
9.6 Collateral Documents 114
9.7 Release of Collateral 114
SECTION 10.
MISCELLANEOUS 114
10.1Assignments and Participations in Loans and
Letters of Credit 114
10.2 Expenses 119
10.3 Indemnity 119
10.4 Set-Off; Security Interest in Deposit Accounts 120
10.5 Ratable Sharing 120
10.6 Amendments and Waivers 121
10.7 Independence of Covenants 122
10.8 Notices 122
10.9Survival of Representations, Warranties and
Agreements 122
10.10Failure or Indulgence Not Waiver; Remedies
Cumulative 123
10.11 Marshalling; Payments Set Aside 123
10.12 General Release 123
10.13 Severability 125
10.14Obligations Several; Independent Nature of
Lenders' Rights 125
10.15 Headings 126
10.16 Applicable Law 126
10.17 Successors and Assigns 126
10.18Consent to Jurisdiction and Service of Process;
Choice of Forum 126
10.19 Waiver of Jury Trial 127
10.20 Confidentiality 127
10.21 Licensing of Administrative Agent and Lenders 128
10.22 Counterparts; Effectiveness. 128
10.23 Cooperation With Gaming Authorities 128
Signature pages S-1
EXHIBITS
I FORM OF NOTICE OF BORROWING
II FORM OF NOTICE OF CONVERSION/CONTINUATION
III FORM OF NOTICE OF ISSUANCE OF LETTER OF CREDIT
IV FORM OF LENDER ASSIGNMENT AGREEMENT
V FORM OF REVOLVING NOTE
VI FORM OF SWING LINE NOTE
VII FORM OF OPINION OF COMPANY COUNSEL
VIII FORM OF OPINION OF O'MELVENY & ▇▇▇▇▇ LLP
IX FORM OF COMPLIANCE CERTIFICATE
X FORM OF ACKNOWLEDGEMENT AND CONFIRMATION
XI FORMS OF AMENDMENTS TO MISSOURI PLEDGE AND SECURITY
AGREEMENTS
XII FORM OF CONSENT TO AMENDMENT BY NONCONTINUING
LENDERS
XIII FORM OF REMARKETING AGREEMENT
SCHEDULES
1.1(a) EXISTING COLLATERAL DOCUMENTS
1.1(b) NEW LOAN DOCUMENTS
1.1(c) NONCONTINUING LENDERS
2.1 LENDERS' COMMITMENTS AND PRO RATA SHARES
4.1(c) CORPORATE STRUCTURE OF COMPANY AND ITS SUBSIDIARIES
5.1 SUBSIDIARIES OF COMPANY
5.5 US DOCUMENTED BARGES
5.6 LITIGATION MATTERS
5.11 ERISA MATTERS
5.13 ENVIRONMENTAL MATTERS
5.19 TRADEMARK MATTERS
6.4(a) MINIMUM INSURANCE REQUIREMENTS
6.4(b) MINIMUM INSURANCE REQUIREMENTS - CONSTRUCTION
6.9 POST-CLOSING COVENANTS
7.2 LIENS
7.3 INVESTMENTS
7.11 INTELLECTUAL PROPERTY ASSIGNMENTS
▇-▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ PREMISES
A-2 DESCRIPTION OF LOUISIANA PREMISES
A-3 DESCRIPTION OF LOUISIANA HOTEL PREMISES