EXHIBIT
10.2
EXECUTION COPY
dated as of
January 3, 2007
among
WIMAR LANDCO, LLC,
WIMAR LANDCO INTERMEDIATE HOLDINGS, LLC,
THE LENDERS PARTY HERETO
and
CREDIT SUISSE,
as Administrative Agent and Collateral Agent
CREDIT SUISSE SECURITIES (USA) LLC,
as Sole Bookrunner and Sole Lead Arranger
BARCLAYS BANK PLC
and
SOCIÉTÉ GÉNÉRALE,
as Co-Lead Arrangers and Co-Syndication Agents
and
THE ROYAL BANK OF SCOTLAND, PLC
and
ING CAPITAL LLC,
as Co-Documentation Agents
[CS&M Ref. No. 5865-449]
Table of Contents
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ARTICLE I
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Definitions
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SECTION 1.01. Defined Terms |
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2 |
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SECTION 1.02. Terms Generally |
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26 |
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SECTION 1.03. Classification of Loans and Borrowings |
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26 |
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ARTICLE II
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The Credits
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SECTION 2.01. Commitments |
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26 |
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SECTION 2.02. Loans |
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26 |
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SECTION 2.03. Borrowing Procedure |
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28 |
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SECTION 2.04. Evidence of Debt; Repayment of Loans |
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28 |
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SECTION 2.05. Administrative Agent Fees |
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29 |
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SECTION 2.06. Interest on Loans |
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29 |
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SECTION 2.07. Default Interest |
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29 |
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SECTION 2.08. Alternate Rate of Interest |
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30 |
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SECTION 2.09. Termination and Reduction of Commitments |
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30 |
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SECTION 2.10. Conversion and Continuation of Borrowings |
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30 |
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SECTION 2.11. Optional Prepayment |
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32 |
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SECTION 2.12. Mandatory Prepayments |
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32 |
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SECTION 2.13. Reserve Requirements; Change in Circumstances |
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33 |
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SECTION 2.14. Change in Legality |
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34 |
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SECTION 2.15. Indemnity |
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35 |
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SECTION 2.16. Pro Rata Treatment |
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36 |
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SECTION 2.17. Sharing of Setoffs |
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36 |
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SECTION 2.18. Payments |
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36 |
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SECTION 2.19. Taxes |
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37 |
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SECTION 2.20. Assignment of Commitments Under Certain
Circumstances; Duty
to Mitigate |
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38 |
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SECTION 2.21. Extension of Maturity Date |
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40 |
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SECTION 2.22. Releases |
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41 |
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ARTICLE III
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Representations and Warranties
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SECTION 3.01. Organization; Powers |
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42 |
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SECTION 3.02. Authorization |
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42 |
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SECTION 3.03. Enforceability |
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43 |
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SECTION 3.04. Governmental Approvals |
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43 |
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i
Table of Contents
(continued)
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SECTION 3.05. Financial Statements |
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43 |
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SECTION 3.06. No Material Adverse Change |
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44 |
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SECTION 3.07. Title to Properties; Possession Under Leases |
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44 |
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SECTION 3.08. Subsidiaries |
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45 |
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SECTION 3.09. Litigation; Compliance with Laws |
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45 |
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SECTION 3.10. Agreements |
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46 |
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SECTION 3.11. Federal Reserve Regulations |
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46 |
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SECTION 3.12. Investment Company Act |
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46 |
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SECTION 3.13. Tax Returns |
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46 |
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SECTION 3.14. No Material Misstatements |
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47 |
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SECTION 3.15. Employee Benefit Plans |
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47 |
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SECTION 3.16. Environmental Matters |
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47 |
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SECTION 3.17. Insurance |
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48 |
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SECTION 3.18. Security Documents |
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48 |
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SECTION 3.19. Location of Real Property and Leased Premises |
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49 |
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SECTION 3.20. Labor Matters |
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50 |
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SECTION 3.21. Solvency |
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50 |
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SECTION 3.22. Transaction Documents |
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50 |
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SECTION 3.23. Sanctioned Persons |
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50 |
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SECTION 3.24. Entitlements |
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51 |
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SECTION 3.25. Zoning |
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51 |
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SECTION 3.26. Flood Control |
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51 |
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ARTICLE IV
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Conditions of Lending
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ARTICLE V
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Affirmative Covenants
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SECTION 5.01. Existence; Compliance with Laws; Businesses and Properties |
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56 |
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SECTION 5.02. Insurance |
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57 |
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SECTION 5.03. Obligations and Taxes |
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58 |
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SECTION
5.04. Financial Statements, Reports, etc. |
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59 |
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SECTION 5.05. Litigation and Other Notices |
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61 |
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SECTION 5.06. Information Regarding Collateral |
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62 |
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SECTION 5.07. Maintaining Records; Access to Properties and Inspections;
Maintenance of Ratings |
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62 |
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SECTION 5.08. Use of Proceeds |
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63 |
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SECTION 5.09. Employee Benefits |
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63 |
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SECTION 5.10. Compliance with Environmental Laws |
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63 |
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SECTION 5.11. Preparation of Environmental Reports |
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63 |
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ii
Table of Contents
(continued)
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SECTION 5.12. Further Assurances |
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63 |
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SECTION 5.13. Interest Rate Protection |
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65 |
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SECTION 5.14. Proceeds of Certain Dispositions |
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65 |
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SECTION 5.15. Escrow Interest Account |
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SECTION 5.16. Approvals to Pledge Agreements |
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66 |
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SECTION 5.17. Environmental Disclosure |
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66 |
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SECTION 5.18. Title |
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SECTION 5.19. Closing of Tropicana Las Vegas Property |
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67 |
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ARTICLE VI
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Negative Covenants
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SECTION 6.01. Indebtedness |
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68 |
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SECTION 6.02. Liens |
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69 |
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SECTION 6.03. Sale and Lease-Back Transactions |
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71 |
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SECTION 6.04. Investments, Loans and Advances |
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72 |
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SECTION 6.05. Mergers, Consolidations, Sales of Assets, Acquisitions and
Dedications |
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73 |
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SECTION 6.06. Restricted Payments; Restrictive Agreements |
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74 |
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SECTION 6.07. Transactions with Affiliates |
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76 |
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SECTION 6.08. Business of Holdings, Borrower and Subsidiaries |
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76 |
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SECTION 6.09. Other Indebtedness and Agreements |
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76 |
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SECTION 6.10. Capital Expenditures |
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77 |
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SECTION 6.11. Total Debt LTV Ratio |
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77 |
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SECTION 6.12. Fiscal Year |
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77 |
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ARTICLE VII
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Events of Default
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ARTICLE VIII
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The Administrative Agent and the Collateral Agent
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ARTICLE IX
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Miscellaneous
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SECTION 9.01. Notices |
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84 |
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SECTION 9.02. Survival of Agreement |
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84 |
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SECTION 9.03. Binding Effect |
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85 |
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iii
Table of Contents
(continued)
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SECTION 9.04. Successors and Assigns |
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85 |
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SECTION 9.05. Expenses; Indemnity |
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89 |
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SECTION 9.06. Right of Setoff |
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90 |
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SECTION 9.07. Applicable Law |
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90 |
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SECTION 9.08. Waivers; Amendment |
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90 |
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SECTION 9.09. Application of Gaming Laws |
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91 |
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SECTION 9.10. Interest Rate Limitation |
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92 |
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SECTION 9.11. Entire Agreement |
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93 |
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SECTION 9.12. WAIVER OF JURY TRIAL |
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93 |
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SECTION 9.13. Severability |
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93 |
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SECTION 9.14. Counterparts |
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94 |
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SECTION 9.15. Headings |
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94 |
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SECTION 9.16. Jurisdiction; Consent to Service of Process |
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94 |
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SECTION 9.17. Confidentiality |
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94 |
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SECTION 9.18. USA PATRIOT Act Notice |
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95 |
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SCHEDULES
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Schedule 1.01(a)
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Subsidiary Guarantors |
Schedule 1.01(b)
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Mortgaged Property |
Schedule 2.01
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Lenders and Commitments |
Schedule 3.04
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Governmental Approvals |
Schedule 3.08
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Subsidiaries |
Schedule 3.09
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Litigation |
Schedule 3.16
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Environmental Matters |
Schedule 3.17
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Insurance |
Schedule 3.18(a)
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UCC Filing Offices |
Schedule 3.18(c)
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Mortgage Filing Offices |
Schedule 3.19(a)
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Owned Real Property |
Schedule 3.19(b)
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Leased Real Property |
Schedule 3.24
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Existing Entitlements |
Schedule IV(d)
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Local Counsel |
Schedule IV(p)
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Capitalization |
Schedule 6.02
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Existing Liens |
Schedule 6.06
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Restrictive Agreements |
Schedule 6.09(a)
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Material Contracts |
EXHIBITS
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Exhibit A
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Form of Administrative Questionnaire |
Exhibit B
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Form of Assignment and Acceptance |
iv
Table of Contents
(continued)
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Exhibit C — Form of Borrowing Request |
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Exhibit D — Form of Guarantee and Collateral Agreement |
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Exhibit E — Form of Mortgage |
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Exhibit F-1 — Form of Opinion of Milbank, Tweed, Xxxxxx & XxXxxx LLP |
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Exhibit F-2 — Form of Local Counsel Opinion |
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Exhibit G — Form of Pledge Agreement—Nevada Gaming |
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v
CREDIT AGREEMENT dated as of January 3, 2007, among WIMAR LANDCO, LLC, a Delaware limited
liability company (the “
Borrower”), WIMAR LANDCO INTERMEDIATE HOLDINGS, LLC, a Delaware limited
liability company (“
Holdings”), the Lenders (as defined in Article I), and CREDIT SUISSE, as
administrative agent (in such capacity, the “
Administrative Agent”) and as collateral agent (in
such capacity, the “
Collateral Agent”) for the Lenders.
Pursuant to the Merger Agreement (such term and each other capitalized term used but not
defined in this introductory statement having the meaning given it in Article I), OpCo will acquire
all the Equity Interests in Aztar through the merger (the “Merger”) of WT-Columbia Development,
Inc., a wholly owned subsidiary of OpCo
(“OpCo Merger Sub”), with and into Aztar, with (a)(i) each share of common stock of Aztar issued
and outstanding (with certain exceptions as set forth in the Merger Agreement) immediately prior to
the Effective Time (as defined in the Merger Agreement) being converted into the right to receive
$54.00 in cash (plus additional amounts in the event the Merger shall not have occurred within
certain specified
timeframes) (the “Common Stock Merger Consideration”) and (ii) each share of preferred stock of
Aztar issued and outstanding (with certain exceptions as set forth in the Merger Agreement)
immediately prior to the Effective Time (as defined in the Merger Agreement) being converted into
the right to receive $571.13 in cash (plus additional amounts in the event the Merger shall not
have occurred within certain specified timeframes) (together with the Common Stock Merger
Consideration, the “Merger Consideration”) and (b) Aztar surviving as a wholly owned Subsidiary of
OpCo. Upon the effectiveness of the Merger, Aztar will succeed to all rights and obligations of the
OpCo Merger Sub by operation of law. In addition, OpCo Merger Sub will form Holdings, which in
turn will form LandCo Merger Sub, a Delaware Corporation, and LandCo Merger Sub will merge with and
into the Borrower, a subsidiary of Aztar that holds all of the Tropicana Las Vegas Operations, with
the Borrower surviving as a wholly owned subsidiary of Holdings and with Holdings being a direct
wholly owned subsidiary of Aztar.
In connection with the consummation of the Merger, the Borrower has requested the Lenders to
extend credit in the form of a term Loan on the Closing Date, in an aggregate principal amount of
$440,000,000. The proceeds of the Loan, together with the proceeds of the OpCo Term Facility, the
proceeds of the Subordinated Notes, the proceeds of the Equity Contribution and the Cash-On-Hand
Amount are to be used solely (a) to finance a portion of the Merger Consideration, (b) to fund the
Existing Debt Refinancing, (c) to fund the Escrow Deposit in the Escrow Interest Account, (d) to
finance certain facilities restructuring costs and (e) to pay fees and expenses incurred in
connection with the foregoing of approximately $102,100,000.
2
The Lenders are willing to extend such credit to the Borrower on the terms and subject to the
conditions set forth herein. Accordingly, the parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the following terms shall have the
meanings specified below:
“ABR”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the
Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the
Alternate Base Rate.
“Adjusted LIBO Rate” shall mean, with respect to any Eurodollar Borrowing for any Interest
Period, an interest rate per annum equal to the product of (a) the LIBO Rate in effect for such
Interest Period and (b) Statutory Reserves.
“Administrative Agent Fees” shall have the meaning assigned to such term in Section 2.05(a).
“Administrative Questionnaire” shall mean an Administrative Questionnaire in the form of
Exhibit A, or such other form as may be supplied from time to time by the Administrative Agent.
“Affiliate” shall mean, when used with respect to a specified person, another person that
directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is
under common Control with the person specified; provided, however, that, for purposes of Section
6.07, the term “Affiliate” shall also include (i) any person that directly or indirectly owns 10%
or more of any class of Equity Interests of the person specified or that is an officer or director
of the person specified or (ii) for purposes of Section 6.07, any member of the Yung Group or any
person that is Controlled by or is under common Control with a member of the Yung Group.
“
Affiliate Loans” shall have the meaning given to such term in the OpCo
Credit Agreement.
“Alternate Base Rate” shall mean, for any day, a rate per annum equal to the greater of (a)
the Prime Rate in effect on such day and (b) the Federal Funds Effective Rate in effect on such day
plus 1/2 of 1%. If the Administrative Agent shall have determined (which determination shall be
conclusive absent manifest error) that it is unable to ascertain the Federal Funds Effective Rate
for any reason, including the inability or failure of the Administrative Agent to obtain sufficient
quotations in accordance with the terms of the definition thereof, the Alternate Base Rate shall be
determined without regard to clause (b) of the preceding sentence until the circumstances giving
rise to such inability no longer exist. Any change in the Alternate Base Rate due to a change in
the Prime Rate or the Federal Funds Effective Rate shall be effective on
3
the effective date of such change in the Prime Rate or the Federal Funds Effective Rate, as the
case may be.
“Applicable Percentage” shall mean, for any day (a) with respect to any Eurodollar Loan, 2.50%
per annum, and (b) with respect to any ABR Loan, 1.50% per annum.
“Appraised Value” means the “as is” appraised value (as determined by the Appraiser in the
most recent Qualified Appraisal Update or, until the first Qualified Appraisal Update, the Initial
Appraisal) of the Mortgaged Properties. In all cases, the “as is” appraised value of any Mortgaged
Property shall be determined in accordance with the standards and methodology set forth in FIRREA.
“Appraiser” means CB Xxxxxxx Xxxxx, Inc., or such other independent FIRREA certified and
licensed appraisal firm selected by the Administrative Agent.
“Asset Sale” shall mean the sale, transfer or other disposition (by way of merger, casualty,
condemnation or otherwise) by Holdings, the Borrower or any Subsidiary to any
person other than the Borrower or any Subsidiary Guarantor of (a) any Equity Interests of the
Borrower or any of the Subsidiaries (other than directors’ qualifying shares) or (b) any other
assets of Holdings, the Borrower or any of the Subsidiaries (other than (i) inventory, surplus,
damaged, obsolete, idle or worn out assets, scrap, defaulted receivables and Permitted Investments,
in each case disposed of in the ordinary course of business, (ii) dispositions between or among
Foreign Subsidiaries, (iii) the cross-licensing or non-exclusive licensing of Intellectual Property
in the ordinary course of business, (iv) the substantially contemporaneous exchange, in the
ordinary course of business of assets or property for assets or property of a like kind and to the
extent that the asset or property exchanged is of a value equivalent to the asset or property
received, (v) the sale or issuance of any Subsidiary’s equity to any Loan Party, (vi) the sale or
discount of overdue accounts receivables arising in the ordinary course of business (consistent
with customary industry practice and not as part of any bulk sale or financing of receivables) and
(vii) any sale, transfer or other disposition or series of related sales, transfers or other
dispositions having a value not in excess of $750,000).
“Asset Sale Holdback Amounts” shall mean all reasonable and customary costs of Permitted
Collateral Asset Sales (including preparation and advertising expense, taxes, broker’s fees and
commissions and the fees of legal counsel incurred in connection therewith).
“Assignment and Acceptance” shall mean an assignment and acceptance entered into by a Lender
and an assignee, and accepted by the Administrative Agent, in the form of Exhibit B or such other
form as shall be approved by the Administrative Agent.
“Aztar” shall mean Aztar Corporation, a Delaware corporation.
“Board” shall mean the Board of Governors of the Federal Reserve System of the United States
of America (or any successors).
4
“Borrowing” shall mean Loans of the same Type made, converted or continued on the same date
and, in the case of Eurodollar Loans, as to which a single Interest Period is in effect.
“Borrowing Request” shall mean a request by the Borrower in accordance with the terms of
Section 2.03 and substantially in the form of Exhibit C, or such other form as shall be approved by
the Administrative Agent.
“
Business Day” shall mean any day other than a Saturday, Sunday or other day on which banks in
New York City are authorized or required by law to close;
provided,
however, that when used in
connection with a Eurodollar Loan, the term “
Business Day” shall also exclude any day on which
banks are not open for dealings in dollar deposits in the London interbank market.
“Calculation Date” shall have the meaning assigned to such term in the definition of “Total
Debt LTV Ratio”.
“Capital Expenditures” shall mean, for any period, the aggregate of all expenditures for (a)
the additions to property, plant and equipment and other capital expenditures of the Borrower and
its consolidated Subsidiaries that are (or should be) set forth in a consolidated statement of cash
flows of the Borrower for such period prepared in accordance with GAAP and (b) Capital Lease
Obligations or Synthetic Lease Obligations incurred by the Borrower and its consolidated
Subsidiaries during such period, but excluding in each case (i) any cash consideration paid in
respect of investments permitted under Section 6.04, (ii) any cash proceeds of Asset Sales to the
extent reinvested in productive assets pursuant to the proviso in the definition of “Net Cash
Proceeds” and (iii) any such expenditure made to restore, replace or rebuild property to the
condition of such property immediately prior to any damage, loss, destruction or condemnation of
such property, to the extent such expenditure is made with insurance proceeds, condemnation awards
or damage recovery proceeds relating to any such damage, loss, destruction or condemnation.
“Capital Lease Obligations” of any person shall mean the obligations of such person to pay
rent or other amounts under any lease of (or other arrangement conveying the right to use) real or
personal property, or a combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such person under GAAP, and the amount of
such obligations shall be the capitalized amount thereof determined in accordance with GAAP.
“Carrying Costs Budget” shall have the meaning assigned to such term in Section 5.19.
“Carrying Costs Reserve Account” shall have the meaning assigned to such term in Section 5.19.
“Cash-On-Hand Amount” shall mean the cash-on-hand of Columbia Entertainment and Aztar of
approximately $66,000,000 in connection with the Transactions.
5
“Casino Aztar Caruthersville” shall mean Aztar Missouri Riverboat Gaming Company, L.L.C., a
Missouri limited liability company.
“Casino Services Agreement” shall mean casino services agreement dated as of the Closing Date
among Columbia Entertainment, Aztar and the Borrower.
“Change in Control” shall mean the occurrence of any of the following:
(a) the direct or indirect sale, lease, transfer conveyance or other disposition, in one or a
series of related transactions, of all or substantially all of the assets of the Borrower and the
Subsidiaries, taken as a whole, to any person other than members of the Yung Group;
(b) the Yung Group ceases to collectively own, beneficially or of record, all of the Equity
Interests of Holdings, the Borrower and each Subsidiary Guarantor or Holdings ceases to be the
record owner of the Borrower;
(c) Xxxxxxx X. Xxxx III fails for any reason to be the president (or equivalent title) of the
Borrower or any Subsidiary Guarantor and to have the power to exercise the prerogatives ordinarily
associated with that office, provided that if such failure results from his death or disability,
then no Change in Control shall occur unless the Borrower or any other such Subsidiary Guarantor
fails, after consultation with the Administrative Agent, to appoint a successor with executive
management experience in the gaming and hospitality industry within 120 days; and
(d) any change in control (or similar event, however denominated) with respect to Holdings,
the Borrower or any Subsidiary shall occur under and as defined in any indenture or agreement in
respect of Material Indebtedness to which Holdings, the Borrower or any Subsidiary is a party.
“Change in Law” shall mean (a) the adoption of any law, rule or regulation after the date of
this Agreement, (b) any change in any law, rule or regulation or in the interpretation or
application thereof by any Governmental Authority after the date of this Agreement or (c)
compliance by any Lender (or, for purposes of Section 2.13, by any lending office of such Lender or
by such Lender’s holding company, if any) with any request, guideline or directive of any
Governmental Authority made or issued after the date of this Agreement.
“Cleanup” shall mean all actions required by Environmental Laws or relevant Governmental
Authorities to (a) cleanup, remove, treat or remediate Hazardous Materials in the indoor or outdoor
environment, (b) prevent the Release of Hazardous Materials so that they do not migrate or endanger
public health or the indoor or outdoor environment or (c) perform pre-remedial studies and
investigations and post-remedial monitoring and care.
“Closing Date” shall mean January 3, 2007.
6
“Closing Date Restricted Payments” shall mean Restricted Payments in furtherance of the
Transactions as are disclosed in the Confidential Information Memorandum and made on the Closing
Date, including the distribution of the proceeds of the Loans hereunder to be applied as described
in the preamble.
“Code” shall mean the Internal Revenue Code of 1986, as amended from time to time.
“Collateral” shall mean all the “Collateral” as defined in any Security Document and shall
also include the Mortgaged Properties.
“Columbia Entertainment” shall mean Wimar Tahoe Corporation, a Nevada
corporation.
“Columbia Sussex” shall mean Columbia Sussex Corporation, a Kentucky corporation.
“Commitment” shall mean, with respect to each Lender, the commitment of such Lender to make
Loans hereunder as set forth on Schedule 2.01, or in the Assignment and Acceptance pursuant to
which such Lender assumed its Commitment, as applicable, as the same may be (a) reduced from time
to time pursuant to Section 2.09 and (b) reduced or increased from time to time pursuant to
assignments by or to such Lender pursuant to Section 9.04. The initial aggregate amount of the
Lender’s Commitments is $440,000,000.
“Confidential Information Memorandum” shall mean the Confidential Information Memorandum of
the Borrower dated December 2006.
“Consolidated EBITDA” shall mean, for any period, Consolidated Net Income for such period plus
(a) without duplication and to the extent deducted in determining such Consolidated Net Income, the
sum of (i) Consolidated Net Interest Expense for such period, (ii) consolidated income tax expense
for such period (not including any gaming taxes), (iii) all amounts attributable to depreciation
and amortization for such period, (iv) any non-cash charges (other than write-down of current
assets) or expenses for such period, (v) non-cash stock-option based and other equity based
compensation expenses and (vi) Excess Land Sale Proceeds for such period and minus (b) without
duplication (i) all cash payments made during such period on account of reserves, restructuring
charges and other non-cash charges added to Consolidated Net Income pursuant to clause (a)(iv)
above in a previous period and (ii) to the extent included in determining such Consolidated Net
Income, any extraordinary gains and all non-cash items of income for such period, all determined on
a consolidated basis in accordance with GAAP.
“Consolidated Net Income” shall mean, for any period, the net income or loss of the Borrower
and the Subsidiaries for such period determined on a consolidated basis in accordance with GAAP
(adjusted to reflect any charge, tax or expense incurred or accrued by Holdings during such period
as though such charge, tax or expense had been incurred by the Borrower, to the extent that the
Borrower has made or would be entitled under the Loan Documents to make any payment to or for the
account of Holdings in
7
respect thereof); provided that there shall be excluded (a) the income of any Subsidiary to the
extent that the declaration or payment of dividends or similar distributions by the Subsidiary of
that income is not at the time permitted by operation of the terms of its charter or any agreement,
instrument, judgment, decree, statute, rule or governmental regulation applicable to such
Subsidiary, (b) the income or loss of any person accrued prior to the date it becomes a Subsidiary
or is merged into or consolidated with the Borrower or any Subsidiary or prior to the date that
such person’s assets are acquired by the Borrower or any Subsidiary, (c) the income of any person
in which any other person (other than the Borrower or a wholly owned Subsidiary or any director
holding qualifying
shares in accordance with applicable law) has a joint interest to the extent such net income is
subject to restrictions, directly or indirectly, on the payment of dividends or the making of
distributions by such person, directly or indirectly, to the Borrower or any Subsidiary, and (d)
any gains or losses attributable to sales of assets out of the ordinary course of business or any
other extraordinary gains or losses.
“Consolidated Net Interest Expense” shall mean, for any period, (a) the sum of (i) the
interest expense (including imputed interest expense in respect of Capital Lease Obligations and
Synthetic Lease Obligations or any dividends or other payments made in respect of Disqualified
Stock) of the Borrower and the Subsidiaries for such period, determined on a consolidated basis in
accordance with GAAP, plus (ii) any interest accrued during such period in respect of Indebtedness
of the Borrower or any Subsidiary that is required to be capitalized rather than included in
consolidated interest expense for such period in accordance with GAAP minus (b) the sum of (i)
total interest income of such person and the Subsidiaries for such period, in each case determined
in accordance with GAAP plus (ii) non-cash charges related to the amortization or write-off of debt
discount or debt issuance costs and commissions to the extent included in the interest expense for
such period. For purposes of the foregoing, interest expense shall be determined after giving
effect to any net payments made or received by the Borrower or any Subsidiary with respect to
interest rate Hedging Agreements.
“
Contribution” shall have the meaning assigned to such term in the OpCo
Credit Agreement.
“Control” shall mean the possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of a person, whether through the ownership of voting
securities, by contract or otherwise, and the terms “Controlling” and “Controlled” shall have
meanings correlative thereto.
“Credit Facility” shall mean the term loan facility provided for by this Agreement.
“Current Assets” shall mean, at any time, the consolidated current assets (other than
unrestricted cash and Permitted Investments) of the Borrower and the Subsidiaries.
“Current Liabilities” shall mean, at any time, the consolidated current liabilities of the
Borrower and the Subsidiaries at such time, but excluding, without duplication, the current portion
of any long-term Indebtedness.
8
“Default” shall mean any event or condition which upon notice, lapse of time or both would
constitute an Event of Default.
“Disqualification” shall mean, with respect to any Lender:
(a) the failure of such person to file timely (or obtain a waiver) pursuant to applicable
Gaming Laws (i) any application requested of that person by any Gaming
Authority in connection with any licensing required of that person as a Lender or (ii) any
required application or other papers in connection with any determination of the suitability of
that person as a Lender;
(b) the withdrawal by such person (except where requested or permitted by the Gaming
Authority) of any such application or other required papers; or
(c) any final determination by a Gaming Authority pursuant to applicable Gaming Laws (i) that
such person is “unsuitable” as a Lender, (ii) that such person shall be “disqualified” as a Lender
or (iii) denying the issuance of any license required under applicable Gaming Laws to be held by
such Lender.
“Disqualified Lender” shall mean any Lender subject to Disqualification.
“Disqualified Stock” shall mean any Equity Interest that, by its terms (or by the terms of any
security into which it is convertible or for which it is exchangeable), or upon the happening of
any event, (a) matures (excluding any maturity as the result of an optional redemption by the
issuer thereof) or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise,
or is redeemable at the option of the holder thereof, in whole or in part, or requires the payment
of any cash dividend or any other scheduled payment constituting a return of capital, in each case
at any time on or prior to the 91st day following the Outside Maturity Date (other than upon
payment in full of the Loans and termination of the Commitments or upon a change of control so long
as any rights of the holders thereof upon the occurrence of a change of control shall be subject to
the prior repayment in full of the Loans and all other Obligations under the Loan Documents), or
(b) is convertible into or exchangeable (unless at the sole option of the issuer thereof) for (i)
debt securities or (ii) any Equity Interest referred to in clause (a) above, in each case at any
time prior to the 91st day following the Outside Maturity Date.
“dollars” or “$” shall mean lawful money of the United States of America.
“Domestic Subsidiaries” shall mean all Subsidiaries incorporated or organized under the laws
of the United States of America, any State thereof or the District of Columbia.
“Entitlements” shall mean those certain Governmental Authorizations which are required under
applicable law to be obtained and maintained (as applicable) in order to allow the development (if
any) of the Mortgaged Properties.
“Environmental Laws” shall mean all applicable, current and future Federal, state and local
laws (including common law), regulations, rules, ordinances, codes and any
9
legally binding decrees, judgments, directives and orders (including consent orders), in each case,
relating to protection of the environment or natural resources, or the presence, Release of, or
exposure to, Hazardous Materials, or the generation, manufacture, processing, distribution, use,
treatment, storage, transport, recycling or handling of, or the
arrangement for such activities with respect to, Hazardous Materials.
“Environmental Liability” shall mean all liabilities, obligations, damages, losses, claims,
actions, suits, judgments, orders, fines, penalties, fees, expenses and costs (including
administrative oversight costs, natural resource damages and remediation costs), whether contingent
or otherwise, arising out of or relating to (a) non-compliance with any Environmental Law, (b) the
generation, use, handling, transportation, storage, treatment or disposal of any Hazardous
Materials, (c) exposure to any Hazardous Materials, (d) the Release of any Hazardous Materials or
(e) any contract, agreement or other written consensual arrangement pursuant to which liability is
assumed or imposed with respect to any of the foregoing.
“Equity Contribution” shall mean an aggregate amount of not less than $515,000,000 contributed
to Columbia Entertainment, JMBS Casino LLC and Columbia Properties Vicksburg, LLC in the form of
(x) cash common equity by or on behalf of Xxxxxxx X. Xxxx III or an Affiliate of OpCo and (y) the
Affiliate Loans, which amount shall be contributed directly or indirectly to OpCo as cash common
equity.
“Equity Interests” shall mean shares of capital stock, partnership interests, membership
interests in a limited liability company, beneficial interests in a trust or other equity interests
in any person, and any option, warrant or other right entitling the holder thereof to purchase or
otherwise acquire any such equity interest.
“Equity Issuance” shall mean any issuance or sale by Holdings, the Borrower or any of their
respective subsidiaries of any Equity Interests of Holdings, the Borrower or any such subsidiary,
as applicable, except in each case for (a) any issuance or sale to Holdings, the Borrower or any
Subsidiary, (b) any issuance of directors’ qualifying shares, (c) sales or issuances of common
stock of Holdings to directors, management, consultants or any other employee of Holdings, the
Borrower or any Subsidiary under any employee stock option or stock purchase plan or employee
benefit plan or similar plan in existence from time to time and (d) sales or issuances of Equity
Interests of Holdings to the Yung Group.
“ERISA” shall mean the Employee Retirement Income Security Act of 1974, as the same may be
amended from time to time.
“ERISA Affiliate” shall mean any trade or business (whether or not incorporated) that,
together with the Borrower, is treated as a single employer under Section 414(b) or (c) of the
Code, or solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a
single employer under Section 414 of the Code.
“ERISA Event” shall mean (a) any “reportable event”, as defined in Section 4043 of ERISA or
the regulations issued thereunder, with respect to a Plan (other than an event
10
for which the 30-day notice period is waived), (b) the existence with respect to any Plan of an
“accumulated funding deficiency” (as defined in Section 412 of the Code or Section
302 of ERISA) and, on and after the effectiveness of the Pension Act, any failure by any Plan to
satisfy the minimum funding standards (within the meaning of Section 412 of the Code or Section 302
of ERISA) applicable to such Plan, whether or not waived, (c) the filing pursuant to Section 412 of
the Code or Section 303 of ERISA of an application for a waiver of the minimum funding standard
with respect to any Plan, (d) the incurrence by the Borrower or any of its ERISA Affiliates of any
liability under Title IV of ERISA with respect to the termination of any Plan or the withdrawal or
partial withdrawal of the Borrower or any of its ERISA Affiliates from any Plan or Multiemployer
Plan, (e) on and after the effectiveness of the Pension Act, a determination that any Plan is, or
is expected to be, in “at-risk” status (within the meaning of Section 303(i)(4)(A) of ERISA or
Section 430(i)(4)(A) of the Code), (f) the receipt by the Borrower or any of its ERISA Affiliates
from the PBGC or a plan administrator of any notice relating to the intention to terminate any Plan
or Plans or to appoint a trustee to administer any Plan, (g) the adoption of any amendment to a
Plan that would require the provision of security pursuant to Section 401(a)(29) of the Code or
Section 307 of ERISA, (h) the receipt by the Borrower or any of its ERISA Affiliates of any notice,
or the receipt by any Multiemployer Plan from the Borrower or any of its ERISA Affiliates of any
notice, concerning the imposition of Withdrawal Liability or a determination that a Multiemployer
Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of
ERISA or (i) the occurrence of a “prohibited transaction” with respect to which the Borrower or any
of the Subsidiaries is a “disqualified person” (within the meaning of Section 4975 of the Code) or
with respect to which the Borrower or any such Subsidiary could otherwise be liable.
“Escrow Interest Account” shall mean the Borrower’s segregated account established for the
purposes described in this Agreement with the Administrative Agent or with a financial institution
satisfactory to the Administrative Agent.
“Escrow Deposit” shall mean the deposit made by the Borrower on the Closing Date to the Escrow
Interest Account in an aggregate amount in cash of $33,431,200, which amount shall be sufficient to
pay all scheduled interest payments in respect of the Loans for the 12-month period (calculated on
a fixed rate basis utilizing an assumed rate for a fixed rate swap with a 18-month tenor on the
Closing Date) following the Closing Date.
“Eurodollar”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or
the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the
Adjusted LIBO Rate.
“Event of Default” shall have the meaning assigned to such term in Article VII.
“Excess Cash Flow” shall mean, for any fiscal year of the Borrower, the excess of (a) the sum,
without duplication, of (i) Consolidated EBITDA for such fiscal year, (ii) the decrease, if any, in
Current Assets minus Current Liabilities of the Borrower and its Subsidiaries from the beginning to
the end of such fiscal year and (iii) any Excess
11
Escrowed Interest received from the Escrow Interest Account during such fiscal year over
(b) the sum, without duplication, of (i) the aggregate amount of Restricted Payments made in cash
during such fiscal year in accordance with Section 6.06 to Holdings to enable Holdings to make
Permitted Tax Distributions, (ii) Consolidated Net Interest Expense for such fiscal year paid in
cash, (iii) Capital Expenditures made in cash in accordance with Section 6.10 during such fiscal
year, except to the extent financed with the proceeds of Indebtedness, equity issuances, casualty
proceeds, condemnation proceeds or other proceeds that would not be included in Consolidated
EBITDA, (iv) permanent prepayments and repayments of Indebtedness (other than mandatory prepayments
of Loans under Section 2.12) made in cash by the Borrower and the Subsidiaries during such fiscal
year, but only to the extent that the Indebtedness so prepaid by its terms cannot be reborrowed or
redrawn and such prepayments do not occur in connection with a refinancing of all or any portion of
such Indebtedness, (v) the increase, if any, in Current Assets minus Current Liabilities of the
Borrower and its Subsidiaries from the beginning to the end of such fiscal year and (vi) fees and
expenses incurred in connection with the Transactions and this Agreement.
“Excess Escrowed Interest” shall have the meaning assigned to such term in Section 5.15.
“Excess Land Sale Proceeds” shall mean the excess of (i) the sales proceeds from any Permitted
Collateral Asset Sale less Asset Sale Holdback Amounts over (ii) the Required Land Sales Proceeds
with respect to such Permitted Collateral Asset Sale.
“Excluded Taxes” shall mean, with respect to the Administrative Agent, any Lender or any other
recipient of any payment to be made by or on account of any obligation of the Borrower hereunder,
(a) income or franchise taxes imposed on (or measured by) its net income or net profits by the
United States of America, or by the jurisdiction under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any Lender, in which its
applicable lending office is located, or in any other jurisdiction in which the Administrative
Agent or such Lender is engaged in business (other than any business arising solely from the
Administrative Agent or Lender having executed, delivered or performed its obligations, or its
rights hereunder), (b) any branch profits taxes imposed by the United States of America or any
similar tax imposed by any other jurisdiction described in clause (a) above and (c) in the case of
a Foreign Lender (other than an assignee pursuant to a request by the Borrower under Section
2.20(a)), any withholding tax that is imposed on amounts payable to such Foreign Lender at the time
such Foreign Lender becomes a party to this Agreement (or designates a new lending office) or is
attributable to such Foreign Lender’s failure to comply with Section 2.19(e), except to the extent
that such Foreign Lender (or its assignor, if any) was entitled, at the time of designation of a
new lending office (or assignment), to receive additional amounts from the Borrower with respect to
such withholding tax pursuant to Section 2.19(a).
“
Existing Debt Refinancing” shall have the meaning assigned to such term in the OpCo
Credit
Agreement.
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“Existing Entitlements” shall mean, collectively, the Entitlements listed on Schedule 3.24.
“Existing Maturity Date” shall have the meaning assigned to such term in Section 2.21.
“Extension Fee” shall have the meaning assigned to such term in Section 2.21.
“Extraordinary Receipts” shall mean the receipt by a Loan Party or any of their respective
subsidiaries of any non-ordinary course tax refunds, pension plan reversions, judgments, litigation
settlements or indemnity payments, in each case in an amount which is equal to 100% of such
payments.
“
Federal Funds Effective Rate” shall mean, for any day, 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 on the next succeeding Business Day by the Federal Reserve Bank of
New
York, or, if such rate is not so published for any day that is a Business Day, the average of the
quotations for the day for such transactions received by the Administrative Agent from three
Federal funds brokers of recognized standing selected by it.
“Fee Letter” shall mean the Amended and Restated Fee Letter dated May 15, 2006, between
Columbia Entertainment and the Administrative Agent.
“Financial Officer” of any person shall mean the chief financial officer, principal accounting
officer, vice president of finance, treasurer or controller of such person.
“Flood Hazard Property” shall mean Real Property Assets located in an area designated by the
Federal Emergency Management Agency as having special flood or mud slide hazards.
“FIRREA” means Federal Institutions Reform, Recovery and Enforcement Act of 1989, as amended
from time to time, and any successor statute.
“Foreign Lender” shall mean any Lender that is organized under the laws of a jurisdiction
other than that in which the Borrower is located. For purposes of this definition, the United
States of America, each State thereof and the District of Columbia shall be deemed to constitute a
single jurisdiction.
“Foreign Subsidiary” shall mean any Subsidiary that is not a Domestic Subsidiary.
“GAAP” shall mean, subject to the limitations of application set out in Xxxxxxx 0.00, Xxxxxx
Xxxxxx generally accepted accounting principles applied on a consistent basis.
“Gaming Authority” means, collectively, (a) the Nevada Gaming Commission, (b) the Nevada State
Gaming Control Board, (c) the Xxxxx County (Nevada) Liquor and
13
Gaming License Board and (d) any other applicable Governmental Authority that holds regulatory,
licensing or permit authority over gaming or gaming activities that now or hereinafter has
jurisdiction over all or any portion of the gaming activities of Holdings, the Borrower or the
Subsidiaries.
“Gaming Laws” shall mean all applicable provisions of all constitutions, treaties, statutes
and all laws pursuant to which any Gaming Authority possesses regulatory, licensing or permit
authority over gambling, gaming or casino activities conducted by Holdings, the Borrower or its
Subsidiaries within their respective jurisdictions and all rules, regulations, ordinances,
approvals, orders, decisions, judgments, awards and decrees of any Gaming Authority.
“Governmental Authority” shall mean any Federal, state, local or foreign court or governmental
agency, authority, instrumentality, regulatory body, board or commission.
“Governmental Authorization” shall mean any permit, approval, license, zoning and other
resolution, certificate of occupancy, authorization, plan, directive, consent order, consent decree
or similar authorizations of or from any Governmental Authority.
“Granting Lender” shall have the meaning assigned to such term in Section 9.04(i).
“Guarantee” of or by any person shall mean any obligation, contingent or otherwise, of such
person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other
obligation of any other person (the “primary obligor”) in any manner, whether directly or
indirectly, and including any obligation of such person, direct or indirect, (a) to purchase or pay
(or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation
or to purchase (or to advance or supply funds for the purchase of) any security for the payment of
such Indebtedness or other obligation, (b) to purchase or lease property, securities or services
for the purpose of assuring the owner of such Indebtedness or other obligation of the payment of
such Indebtedness or other obligation or (c) to maintain working capital, equity capital or any
other financial statement condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation; provided, however, that the term “Guarantee”
shall not include endorsements for collection or deposit in the ordinary course of business.
“Guarantee and Collateral Agreement” shall mean the Guarantee and Collateral Agreement,
substantially in the form of Exhibit D, among the Borrower, Holdings, the Subsidiaries party
thereto, OpCo Holdings and the Collateral Agent for the benefit of the Secured Parties.
“Guarantors” shall mean Holdings and the Subsidiary Guarantors.
“Hazardous Materials” shall mean (a) any petroleum products or byproducts and
(b) any toxic or hazardous chemical, material, substance or waste that is prohibited, limited
or regulated by or pursuant to any Environmental Law.
14
“Hedging Agreement” shall mean any interest rate protection agreement, foreign currency
exchange agreement, commodity price protection agreement or other interest or currency exchange
rate or commodity price hedging arrangement.
“Indebtedness” of any person shall mean, without duplication, (a) all obligations of such
person for borrowed money or with respect to deposits or advances of any kind, (b) all obligations
of such person evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of
such person upon which interest charges are customarily paid, (d) all obligations of such person
under conditional sale or other title retention agreements relating to property or assets purchased
by such person, (e) all obligations of such person issued or assumed as the deferred purchase price
of property or services (excluding trade accounts payable and accrued obligations incurred in the
ordinary course of business), (f) all Indebtedness of others secured by (or for which the holder of
such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on
property owned or acquired by such person, whether or not the obligations secured thereby have been
assumed (notwithstanding that the rights and remedies of the seller or lender under such agreement
in an event of default may be limited to repossession or sale of such property, in which case the
lesser of the amount of such obligation and the fair market value of such property shall constitute
“Indebtedness”), (g) all Guarantees by such person of Indebtedness of others, (h) all Capital Lease
Obligations and Synthetic Lease Obligations of such person, (i) all obligations of such person as
an account party in respect of letters of credit, (j) all obligations of such person in respect of
bankers’ acceptances and (k) all obligations of such person in respect of Disqualified Stock. The
Indebtedness of any person shall include the Indebtedness of any partnership in which such person
is a general partner.
“Indemnified Taxes” shall mean Taxes other than Excluded Taxes.
“Initial Appraisal” shall mean the Self Contained Appraisal Report in respect of the Tropicana
Las Vegas Property, dated as of September 29, 2006, prepared for the Administrative Agent by CB
Xxxxxxx Xxxxx, and which shall be a FIRREA-compliant appraisal.
“Interest Payment Date” shall mean (a) with respect to any ABR Loan, the last Business Day of
each March, June, September and December, and (b) with respect to any Eurodollar Loan, the last day
of the Interest Period applicable to the Borrowing of which such Loan is a part and, in the case of
a Eurodollar Borrowing with an Interest Period of more than three months’ duration, each day that
would have been an Interest Payment Date had successive Interest Periods of three months’ duration
been applicable to such Borrowing.
“Interest Period” shall mean, with respect to any Eurodollar Borrowing, the period commencing
on the date of such Borrowing and ending on the numerically corresponding day (or, if there is no
numerically corresponding day, on the last day) in the calendar month that is 1, 2, 3 or 6 months
thereafter, as the Borrower may elect; provided, however, that, unless the Administrative Agent
shall otherwise agree, the Interest Period of the initial Eurodollar Borrowing shall be of one
month’s duration;
15
provided, further, however, that if any Interest Period would end on a day other than a Business
Day, such Interest Period shall be extended to the next succeeding Business Day unless such next
succeeding Business Day would fall in the next calendar month, in which case such Interest Period
shall end on the next preceding Business Day. Interest shall accrue from and including the first
day of an Interest Period to but excluding the last day of such Interest Period. For purposes
hereof, the date of a Borrowing initially shall be the date on which such Borrowing is made and
thereafter shall be the effective date of the most recent conversion or continuation of such
Borrowing.
“Lenders” shall mean (a) the persons listed on Schedule 2.01 (other than any such person that
has ceased to be a party hereto pursuant to an Assignment and Acceptance) and (b) any person that
has become a party hereto pursuant to an Assignment and Acceptance.
“LIBO Rate” shall mean, with respect to any Eurodollar Borrowing for any Interest Period, the
rate per annum determined by the Administrative Agent at approximately 11:00 a.m. (London time) on
the date that is two Business Days prior to the commencement of such Interest Period by reference
to the British Bankers’ Association Interest Settlement Rates for deposits in dollars (as set forth
by any service selected by the Administrative Agent that has been nominated by the British Bankers’
Association as an authorized information vendor for the purpose of displaying such rates) for a
period equal to such Interest Period; provided that, to the extent that an interest rate is not
ascertainable pursuant to the foregoing provisions of this definition, the “LIBO Rate” shall be the
interest rate per annum determined by the Administrative Agent to be the average of the rates per
annum at which deposits in dollars are offered for such relevant Interest Period to major banks in
the London interbank market in London, England by the Administrative Agent at approximately 11:00
a.m. (London time) on the date that is two Business Days prior to the beginning of such Interest
Period.
“License Revocation” shall mean the revocation, failure to renew or suspension of, or the
appointment of a receiver, supervisor or similar official with respect to, any casino, gambling or
gaming license issued by any Gaming Authority covering any casino or gaming facility of Holdings,
the Borrower or the Subsidiaries.
“Lien” shall mean, with respect to any asset, (a) any mortgage, deed of trust, lien, pledge,
encumbrance, charge or security interest in or on such asset, (b) the interest of a vendor or a
lessor under any conditional sale agreement, capital lease or title retention agreement (or any
financing lease having substantially the same economic effect as any of the foregoing) relating to
such asset and (c) in the case of securities, any purchase option, call or similar right of a third
party with respect to such securities.
“Loan Documents” shall mean this Agreement, the Security Documents, the promissory notes, if
any, executed and delivered pursuant to Section 2.04(e) and any other document designated as a Loan
Document by the Borrower and the Administrative Agent.
“Loan Parties” shall mean the Borrower and the Guarantors.
16
“Loans” shall mean the term loans made by the Lenders to the Borrower pursuant to Section
2.01.
“Margin Stock” shall have the meaning assigned to such term in Regulation U.
“Material Adverse Effect” shall mean (a) a materially adverse effect on the business, assets,
operations, condition (financial or otherwise) or operating results of the Borrower and the
Subsidiaries, taken as a whole, (b) a material impairment of the ability of the Borrower or any
other Loan Party to perform any of its obligations under any Loan Document to which it is or will
be a party, (c) a material adverse effect on the value of the Mortgaged Properties or (d) a
material impairment of the rights and remedies of or benefits available to the Lenders under any
Loan Document.
“Material Environmental Liability” means an Environmental Liability which is reasonably likely
to result in (i) a discontinuation of a substantial portion of the business, operations or
development of the Borrower or any Subsidiary Guarantor or (ii) potential costs, liabilities or
other losses in excess of $4,000,000.
“Material Indebtedness” shall mean Indebtedness (other than the Loans), or obligations in
respect of one or more Hedging Agreements, of any one or more of Holdings, the Borrower or any
Subsidiary in an aggregate principal amount exceeding $3,000,000. For purposes of determining
Material Indebtedness, the “principal amount” of the obligations of Holdings, the Borrower or any
Subsidiary in respect of any Hedging Agreement at any time shall be the maximum aggregate amount
(giving effect to any netting agreements) that Holdings, the Borrower or such Subsidiary would be
required to pay if such Hedging Agreement were terminated at such time.
“Maturity Date” shall mean the later of (i) the date 18 months after the Closing Date and (b)
if the Existing Maturity Date is extended pursuant to Section 2.21, such extended Existing Maturity
Date as determined pursuant to Section 2.21.
“Merger” shall have the meaning assigned to such term in the preliminary statement to this
Agreement.
“Merger Agreement” shall mean the Agreement and Plan of Merger dated May 19, 2006, among
Columbia Sussex, Columbia Entertainment, WT-Columbia Development, Inc. and Aztar.
“Merger Agreement Breakup Fee” shall mean the amount equal to $78,000,000 paid to Pinnacle
Entertainment, Inc. as a breakup fee in connection with the termination of its merger agreement
with Aztar.
“Merger Agreement Deposit” shall mean the deposit by Columbia Sussex on behalf of Columbia
Entertainment of cash in an amount equal to $313,000,000 (as subsequently reduced by the Merger
Agreement Breakup Fee) into a custody account pursuant to the Merger Agreement.
17
“Merger Consideration” shall have the meaning assigned to such term in the preliminary
statement to this Agreement.
“Moody’s” shall mean Xxxxx’x Investors Service, Inc., or any successor thereto.
“Mortgaged Properties” shall mean, initially, the owned real properties and leasehold and
subleasehold interests of the Loan Parties specified on Schedule 1.01(b) (which shall include all
material Real Property Assets), and shall include each other parcel of real property and
improvements thereto with respect to which a Mortgage is granted pursuant to Section 5.12.
“Mortgages” shall mean the mortgages, deeds of trust, leasehold mortgages, assignments of
leases and rents, modifications and other security documents delivered pursuant to clause (k)(i) of
Article IV or pursuant to Section 5.12, each substantially in the form of Exhibit E.
“Multiemployer Plan” shall mean a multiemployer plan as defined in Section 4001(a)(3) of
ERISA.
“Net Cash Proceeds” shall mean (a) with respect to any Asset Sale other than any sale
involving any Real Property Assets, the cash proceeds (including cash proceeds subsequently
received (as and when received) in respect of noncash consideration initially received and valued
at the initial principal amount thereof in the case of non-cash proceeds consisting of notes or
other debt securities and valued at fair market value at the time of such Asset Sale in the case of
other non-cash proceeds), net of (i) selling expenses (including broker’s fees or commissions,
accountants’ fees, investment banking fees, consulting fees, legal fees and any other customary
fees and expenses actually incurred in connection therewith, transfer and similar taxes and the
Borrower’s good faith estimate of income taxes paid or payable in connection with such sale), (ii)
amounts provided as a reserve, in accordance with GAAP, against any liabilities under any
indemnification obligations or purchase price adjustment associated with such Asset Sale (provided
that, to the extent and at the time any such amounts are released from such reserve, such amounts
shall constitute Net Cash Proceeds) and (iii) the principal amount, premium or penalty, if any,
interest and other amounts on any Indebtedness for borrowed money which is secured by the asset
sold in such Asset Sale and which is required to be repaid with such proceeds (other than any such
Indebtedness assumed by the purchaser of such asset); provided, however, that, in respect of Net
Cash Proceeds resulting from an Asset Sale that does not involve Real Property Assets, if (x) the
Borrower shall deliver a certificate of a Financial Officer to the Administrative Agent at the time
of receipt thereof (and in the case of cash proceeds received on account of a casualty in an
aggregate amount of $1,000,000 or less, such certificate of intention to reinvest shall be
conclusively deemed to have been given for purposes of this definition) setting forth the
recipient’s intent to reinvest such proceeds (or confirming that the recipient has already
reinvested an equivalent amount in anticipation of the receipt of such proceeds) in productive
assets of a kind then used or usable in the business of the Borrower and its Subsidiaries within
180 days of receipt of such proceeds and (y) no Default or Event of Default shall have occurred and
shall be continuing at the time of such certificate or at the
18
proposed time of the application of such proceeds, such proceeds shall not constitute Net Cash
Proceeds except to the extent not so used at the end of such 180-day period, at which time such
proceeds shall be deemed to be Net Cash Proceeds; provided further, however, that if a Loan Party
has entered into a definitive agreement with respect to the application of such proceeds in
accordance with the foregoing within 180 days of receipt thereof and such Loan Party applies such
amounts within 365 days from the receipt thereof, such amounts shall not constitute Net Cash
Proceeds, except to the extent not so used at the end of such 365-day period, at which time such
proceeds shall be deemed to be Net Cash Proceeds and (b) with respect to any issuance or incurrence
of Indebtedness for borrowed money or any Equity Issuance or OpCo Intermediate Equity Issuance or
receipt of Extraordinary Receipts by any Loan Party, the cash proceeds thereof, net of all
attorneys’ fees, consulting fees, investment banking fees, taxes and other customary fees,
underwriting discounts, commissions, costs and other expenses incurred in connection therewith.
“Obligations” shall mean all obligations defined as “Obligations” in the Guarantee and
Collateral Agreement, the Pledge Agreement—Nevada Gaming and the other Security Documents.
“OpCo” shall mean Wimar OpCo, LLC, a Delaware limited liability company.
“
OpCo Credit Agreement” shall mean the Senior Secured
Credit Agreement dated as of the date
hereof among OpCo, OpCo Intermediate, other Affiliates of OpCo party thereto, the lenders from time
to time party thereto and Credit Suisse, as administrative agent, as the same may be amended,
restated, supplemented or otherwise modified from time to time.
“OpCo Holdings” shall mean Wimar OpCo Holdings, LLC, a Delaware limited liability company.
“OpCo Intermediate” shall mean Wimar OpCo Intermediate Holdings, LLC, a Delaware limited
liability company.
“OpCo Intermediate Equity Issuance” shall mean (i) any issuance or sale by OpCo Intermediate
of any of its Equity Interests or (ii) any sale by OpCo Holdings of its Equity Interests in OpCo
Intermediate, except in each case for (a) any issuance or sale to Holdings, the Borrower or any
Subsidiary, (b) any issuance of directors’ qualifying shares, and (c) sales or issuances of common
stock of OpCo Intermediate to management or employees of OpCo Intermediate, Holdings, the Borrower
or any Subsidiary under any employee stock option or stock purchase plan or employee benefit plan
in existence from time to time.
“
OpCo Term Facility” shall mean the secured term loan facility in an aggregate principal
amount up to $1,530,000,000 provided to OpCo pursuant to the OpCo
Credit Agreement.
“Other Taxes” shall mean any and all present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies arising from any
19
payment made under any Loan Document or from the execution, delivery or enforcement of, or
otherwise with respect to, any Loan Document.
“Outside Maturity Date” shall mean the date 30 months after the Closing Date.
“PBGC” shall mean the Pension Benefit Guaranty Corporation referred to and defined in ERISA.
“Pension Act” means the Pension Protection Act of 2006, as amended.
“Perfection Certificate” shall mean the Perfection Certificate substantially in the form of
Exhibit B to the Guarantee and Collateral Agreement.
“Permitted Business” shall mean the business currently conducted by the Borrower or its
Subsidiaries, businesses substantially similar to the business currently conducted by the Borrower
and its Subsidiaries or any business or activity that is reasonably related, ancillary or
complementary thereto or a reasonable extension, development or expansion thereof.
“Permitted Collateral Asset Sale” shall mean any transaction (or series of related
transactions with the same or related parties) constituting an arms-length sale or conveyance for
fair market value of any portion of the Mortgaged Properties to any person (other than a Loan
Party) pursuant to a Qualified Sales Agreement.
“Permitted Investments” shall mean:
(a) direct obligations of, or obligations the principal of and interest on which are
unconditionally guaranteed by, the United States of America (or by any agency thereof to the extent
such obligations are backed by the full faith and credit of the United States of America), in each
case maturing within one year from the date of acquisition thereof;
(b) investments in commercial paper maturing within 365 days from the date of acquisition
thereof and having, at such date of acquisition, a rating of at least A-1 by S&P or P-1 from
Xxxxx’x;
(c) investments in certificates of deposit, banker’s acceptances, securities backed by standby
letters of credit, time deposits, Eurodollar time deposits or overnight bank deposits maturing
within one year from the date of acquisition thereof issued or guaranteed by or placed with, and
money market deposit accounts issued or offered by, the Administrative Agent or any domestic office
of any commercial bank organized under the laws of the United States of America or any State
thereof that has a combined capital and surplus and undivided profits of not less than
$500,000,000;
(d) fully collateralized repurchase agreements with a term of not more than 30 days for
securities described in clause (a) above and entered into with a financial institution satisfying
the criteria of clause (c) above;
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(e) investments in “money market funds” within the meaning of Rule 2a-7 of the Investment
Company Act of 1940, as amended, substantially all of whose assets are invested in investments of
the type described in clauses (a) through (d) above or in the form of cash equivalents (or foreign
cash equivalents) or short term marketable debt securities;
(f) investments in so-called “auction rate” securities rated AAA or higher by S&P or Aaa or
higher by Xxxxx’x and which have a reset date not more than 90 days from the date of acquisition
thereof; and
(g) other short-term investments utilized by Foreign Subsidiaries in accordance with normal
investment practices for cash management in investments of a type analogous to the foregoing.
“Permitted Tax Distributions” shall mean cash distributions to the holders of Equity Interests
of Holdings made not more frequently than once each fiscal quarter which shall be in an amount
required to satisfy actual cash tax liabilities of such holders relating to the Borrower and the
Subsidiaries, and in any event in an amount not in excess of 40% of the combined taxable income of
the Borrower and the Subsidiaries for the immediately preceding fiscal quarter.
“Permitted Title Exceptions” means (a) the Liens and other items of record or exceptions to
coverage reflected in the Mortgagee Policy delivered pursuant to paragraph (k) of Article IV and
(b) such other Liens reasonably satisfactory to the Administrative Agent.
“person” shall mean any natural person, corporation, business trust, joint venture,
association, company, limited liability company, partnership, Governmental Authority or other
entity.
“Plan” shall mean any employee pension benefit plan (other than a Multiemployer Plan) subject
to the provisions of Title IV of ERISA or Section 412 of the Code or Section 307 of ERISA, and in
respect of which the Borrower or any ERISA Affiliate is (or, if such plan were terminated, would
under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.
“Pledge Agreement—Nevada Gaming” shall mean the Pledge Agreement dated as of the Closing Date
among Holdings, the Borrower, OpCo Holdings, Adamar of Nevada, Hotel Ramada of Nevada, Tropicana
Real Estate Company, LLC and Tropicana Development Co., LLC, in substantially the form as Exhibit G
hereto.
“Post-Closing Letter Agreement” shall mean the post-closing letter dated as of the date hereof
among Holdings, the Borrower, the Administrative Agent and the Collateral Agent in respect of
certain post-closing deliverables.
“
Prime Rate” shall mean the rate of interest per annum determined from time to time by Credit
Suisse as its prime rate in effect at its principal office in
New York City and notified to the
Borrower.
21
“Qualified Appraisal” means the Initial Appraisal and any other “as is” real estate appraisal
conducted in compliance with the provisions of FIRREA and all requirements of any law applicable to
the Borrower undertaken by an Appraiser, and providing an assessment of the “as is” appraised value
of the then existing Mortgaged Properties, the form and substance of such appraisal to be reviewed
and approved by the Administrative Agent.
“Qualified Appraisal Update” means a semi-annual update of the Initial Appraisal or other
Qualified Appraisal prepared by the Appraiser, the form and substance of such update to be reviewed
and approved by the Administrative Agent.
“Qualified Capital Stock” of any person shall mean any Equity Interest of such person that is
not Disqualified Stock.
“Qualified Sales Agreement” means a definitive and binding purchase and sale agreement between
the Borrower and a third party purchaser with respect to any Mortgaged Property.
“Real Property Asset” means, at any time of determination, any interest (fee, leasehold or
otherwise) then owned by the Borrower or any Subsidiary Guarantor in any real property.
“Register” shall have the meaning assigned to such term in Section 9.04(d).
“Regulation T” shall mean Regulation T of the Board as from time to time in effect and all
official rulings and interpretations thereunder or thereof.
“Regulation U” shall mean Regulation U of the Board as from time to time in effect and all
official rulings and interpretations thereunder or thereof.
“Regulation X” shall mean Regulation X of the Board as from time to time in effect and all
official rulings and interpretations thereunder or thereof.
“Related Fund” shall mean, with respect to any Lender that is a fund or commingled investment
vehicle that invests in bank loans, any other fund that invests in bank loans and is managed and
advised by the same investment advisor as such Lender or by an Affiliate of such investment
advisor.
“Related Parties” shall mean, with respect to any specified person, such person’s Affiliates
and the respective directors, trustees, officers, employees, agents and advisors of such person and
such person’s Affiliates.
“Release” shall mean any release, spill, emission, leaking, dumping, injection, pouring,
deposit, disposal, discharge, dispersal, leaching or migration into or through the environment or
within or upon any building, structure, facility or fixture.
“Release Instruments” shall have the meaning assigned to such term in Section 2.22.
22
“Released Parcel” shall have the meaning assigned to such term in Section 2.22.
“Required Dedication” shall mean a dedication or conveyance of a portion of the Mortgaged
Properties at the direction of a Governmental Authority or a public utility to (i) such
Governmental Authority (or any designee of such Governmental Authority), or (ii) a utility
provider, for public streets, sidewalks or rights of way, or for easements and installations;
provided any such dedication or conveyance (individually and/or taken together will all other such
dedications and conveyances) (i) has not had, and could not reasonably be expected to have, a
Material Adverse Effect or result in a Default or an Event of Default or (ii) has not impaired, and
could not reasonably be expected to, impair the Collateral Agent’s first priority Lien on the then
existing Mortgaged Properties.
“Required Land Sales Proceeds” shall mean, for any Permitted Collateral Asset Sale or Required
Dedication (other than a Required Dedication constituting an easement or right of way which does
not adversely impact, in any material respect, the value or marketability of any portion of the
Mortgaged Properties but, in any event, including a Required Dedication for the purpose of
constructing a roadway or parkway), an amount equal to the product of (a) $20,000,000 and (b) the
aggregate number of acres (including partial acres) included in such Permitted Collateral Asset
Sale or subject to such Required Dedication.
“Required Lenders” shall mean, at any time, Lenders having Loans and Commitments representing
more than 50% of the sum of all Loans outstanding and Commitments at such time.
“Responsible Officer” of any person shall mean any executive officer or Financial Officer of
such person and any other officer or similar official thereof responsible for the administration of
the obligations of such person in respect of this Agreement.
“Restricted Indebtedness” shall mean Indebtedness of Holdings, the Borrower or any Subsidiary,
the payment, prepayment, repurchase or defeasance of which is restricted under Section 6.09(b).
“Restricted Payment” shall mean any dividend or other distribution (whether in cash,
securities or other property) with respect to any Equity Interests in Holdings, the Borrower or any
Subsidiary, or any payment (whether in cash, securities or other property), including any sinking
fund or similar deposit, on account of the purchase, redemption, retirement, acquisition,
cancellation or termination of any Equity Interests in Holdings, the Borrower or any Subsidiary.
“Secured Parties” shall have the meaning assigned to such term in the Guarantee and Collateral
Agreement.
“Security Documents” shall mean the Mortgages, the Guarantee and Collateral Agreement, the
Pledge Agreement and each of the security agreements, mortgages and other instruments and documents
executed and delivered pursuant to any of the foregoing
or pursuant to Section 5.12.
23
“Services Agreement” shall mean the Services Agreement dated as of the Closing Date among
Columbia Sussex, Aztar and the Borrower for the provision of services (including treasury,
accounting, business management, marketing and other support services) to the Borrower and its
Subsidiaries.
“SPC” shall have the meaning assigned to such term in Section 9.04(i).
“S&P” shall mean Standard & Poor’s Ratings Service, or any successor thereto.
“Statutory Reserves” shall mean a fraction (expressed as a decimal), the numerator of which is
the number one and the denominator of which is the number one minus the aggregate of the maximum
reserve percentages (including any marginal, special, emergency or supplemental reserves) expressed
as a decimal established by the Board and any other banking authority, domestic or foreign, to
which the Administrative Agent or any Lender (including any branch, Affiliate or other fronting
office making or holding a Loan) is subject for Eurocurrency Liabilities (as defined in Regulation
D of the Board). Eurodollar Loans shall be deemed to constitute Eurocurrency Liabilities as
defined in Regulation D of the Board) and to be subject to such reserve requirements without
benefit of or credit for proration, exemptions or offsets that may be available from time to time
to any Lender under such Regulation D. Statutory Reserves shall be adjusted automatically on and as
of the effective date of any change in any reserve percentage.
“Subordinated Note Documents” shall mean the indenture under which the Subordinated Notes are
issued and all other instruments, agreements and other documents evidencing or governing the
Subordinated Notes or providing for any Guarantee or other right in respect thereof.
“Subordinated Notes” shall mean OpCo’s 9.625% Senior Subordinated Notes due 2014, in an
initial aggregate principal amount of $960,000,000.
“subsidiary” shall mean, with respect to any person (herein referred to as the “parent”), any
corporation, partnership, limited liability company, association or other business entity (a) of
which securities or other ownership interests representing more than 50% of the equity or more than
50% of the ordinary voting power or more than 50% of the general partnership interests are, at the
time any determination is being made, owned, Controlled or held, or (b) that is, at the time any
determination is made, otherwise Controlled, by the parent or one or more subsidiaries of the
parent or by the parent and one or more subsidiaries of the parent.
“Subsidiary” shall mean any subsidiary of the Borrower.
“Subsidiary Guarantor” shall mean each Subsidiary listed on Schedule 1.01(a), and each other
Subsidiary that is or becomes a party to the Guarantee and Collateral Agreement or otherwise
provides a guarantee in respect of the Obligations.
“Synthetic Lease” shall mean, as to any person, any lease (including leases that may be
terminated by the lessee at any time) of any property (whether real, personal or
24
mixed) (a) that is accounted for as an operating lease under GAAP and (b) in respect of which the
lessee retains or obtains ownership of the property so leased for U.S. federal income tax purposes,
other than any such lease under which such person is the lessor.
“Synthetic Lease Obligations” shall mean, as to any person, an amount equal to the capitalized
amount of the remaining lease payments under any Synthetic Lease that would appear on a balance
sheet of such person in accordance with GAAP if such obligations were accounted for as Capital
Lease Obligations.
“Synthetic Purchase Agreement” shall mean any swap, derivative or other agreement or
combination of agreements pursuant to which Holdings, the Borrower or any Subsidiary is or may
become obligated to make (a) any payment in connection with a purchase by any third party from a
person other than Holdings, the Borrower or any Subsidiary of any Equity Interest or Restricted
Indebtedness or (b) any payment (other than on account of a permitted purchase by it of any Equity
Interest or Restricted Indebtedness) the amount of which is determined by reference to the price or
value at any time of any Equity Interest or Restricted Indebtedness; provided that no phantom stock
or similar plan providing for payments only to current or former directors, officers or employees
of Holdings, the Borrower or the Subsidiaries (or to their heirs or estates) shall be deemed to be
a Synthetic Purchase Agreement.
“Taxes” shall mean any and all present or future taxes, levies, imposts, duties, deductions,
charges or withholdings imposed by any Governmental Authority.
“Title Company” shall mean, collectively, Chicago Title Company or one or more other title
insurance companies reasonably satisfactory to the Administrative Agent.
“Total Debt” shall mean, at any time, the total Indebtedness of the Borrower and the
Subsidiaries at such time (excluding Indebtedness of the type described in clause (i) of the
definition of such term, except to the extent of any unreimbursed drawings thereunder).
“Total Debt LTV Ratio” shall mean the percentage obtained by dividing (i) Total Debt as of the
last day of each fiscal quarter (any such day being a “Calculation Date”) by (ii) the Appraised
Value of the then existing Mortgaged Properties as of the Calculation Date (giving effect to
dispositions of Mortgaged Properties occurring since the latest Initial Appraisal or Qualified
Appraisal Update, as the case may be, delivered to the Administrative Agent prior to such
Calculation Date).
“Transaction Documents” shall mean the Merger Agreement and all material exhibits and
schedules thereto and all agreements expressly contemplated thereby, the Loan Documents and the
Subordinated Note Documents, in each case as amended from time to time in accordance with the terms
hereof and thereof.
“
Transactions” shall mean, collectively, the transactions to occur pursuant to or
in connection with the Transaction Documents, including (a) the Merger, (b) the execution and
delivery of the Loan Documents and the borrowing hereunder, (c) the execution and delivery of the
OpCo
Credit Agreement and the initial borrowings
25
thereunder, (d) the making of the Escrow Deposit in the Escrow Interest Account, (e) the execution
and delivery of the Subordinated Note Documents and the borrowings thereunder, (f) the Equity
Contribution, (g) the Existing Debt Refinancing, and (h) the payment of related fees and expenses.
“Tropicana Las Vegas Closing” shall have the meaning assigned to such term in Section 5.19.
“Tropicana Las Vegas Closing Effective Date” shall have the meaning assigned to such term in
Section 5.19.
“Tropicana Las Vegas Operations” shall mean the Borrower’s gaming and other commercial
operations conducted at or in respect of the Tropicana Resort and Casino located in Las Vegas,
Nevada.
“Tropicana Las Vegas Property” shall mean the Tropicana Resort and Casino located in Las
Vegas, Nevada, including approximately 34 acres of real property located at the corner of Las Vegas
Boulevard and Tropicana Avenue.
“Type”, when used in respect of any Loan or Borrowing, shall refer to the Rate by reference to
which interest on such Loan or on the Loans comprising such Borrowing is determined. For purposes
hereof, the term “Rate” shall mean the Adjusted LIBO Rate and the Alternate Base Rate.
“USA PATRIOT Act” shall mean The Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Title III of Pub. L. No. 107-56
(signed into law October 26, 2001)).
“wholly owned Subsidiary” of any person shall mean a subsidiary of such person of which
securities (except for directors’ qualifying shares) or other ownership interests representing 100%
of the Equity Interests are, at the time any determination is being made, owned, Controlled or held
by such person or one or more wholly owned Subsidiaries of such person or by such person and one or
more wholly owned Subsidiaries of such person.
“Withdrawal Liability” shall mean liability to a Multiemployer Plan as a result of a complete
or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle
E of Title IV of ERISA.
“Yung Group” shall mean (i) Xxxxxxx X. Xxxx III, (ii) his spouse and members of his immediate
family (including siblings, children, grandchildren and children and grandchildren by adoption),
(iii) any Affiliate Controlled by any the foregoing, (iv) in the event of incompetence or death of
any of the persons described in paragraphs (i) and (ii) hereof, such person’s estate, executor,
administrator, committee or other personal
representative, in each case who at the particular date will beneficially own or have the
right to acquire, directly or indirectly Equity Interests of Holdings or the Borrower or (v) any
trusts for their respective benefit, or any trust for the benefit of any such trust; provided,
however, that the Yung Group shall not include any operating company
26
affiliated with any of the foregoing (including Columbia Sussex) that is not engaged exclusively in
Permitted Businesses.
SECTION 1.02. Terms Generally. The definitions in Section 1.01 shall apply equally to both
the singular and plural forms of the terms defined. Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms. The words “include”,
“includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The
word “will” shall be construed to have the same meaning and effect as the word “shall”; and the
words “asset” and “property” shall be construed as having the same meaning and effect and to refer
to any and all tangible and intangible assets and properties, including cash, securities, accounts
and contract rights. All references herein to Articles, Sections, Exhibits and Schedules shall be
deemed references to Articles and Sections of, and Exhibits and Schedules to, this Agreement unless
the context shall otherwise require. Except as otherwise expressly provided herein, (a) any
reference in this Agreement to any Loan Document shall mean such document as amended, restated,
supplemented or otherwise modified from time to time and (b) all terms of an accounting or
financial nature shall be construed in accordance with GAAP, as in effect from time to time;
provided, however, that if the Borrower notifies the Administrative Agent that the Borrower wishes
to amend any covenant in Article VI or any related definition to eliminate the effect of any change
in GAAP occurring after the date of this Agreement on the operation of such covenant (or if the
Administrative Agent notifies the Borrower that the Required Lenders wish to amend Article VI or
any related definition for such purpose), then the Borrower’s compliance with such covenant shall
be determined on the basis of GAAP in effect immediately before the relevant change in GAAP became
effective, until either such notice is withdrawn or such covenant is amended in a manner
satisfactory to the Borrower and the Required Lenders.
SECTION 1.03. Classification of Loans and Borrowings. For purposes of this Agreement, Loans
may be classified and referred to by Type (e.g., a “Eurocurrency Loan”).
ARTICLE II
The Credits
SECTION 2.01. Commitments. Subject to the terms and conditions and relying upon the
representations and warranties herein set forth, each Lender agrees, severally and not jointly, to
make a Loan to the Borrower on the Closing Date in a principal amount not to exceed its Commitment.
Amounts paid or prepaid in respect of Loans may not be reborrowed.
SECTION 2.02. Loans. (a) Each Loan shall be made as part of a Borrowing consisting of Loans
made by the Lenders ratably in accordance with their applicable
Commitments; provided, however, that the failure of any Lender to make any Loan shall not in
itself relieve any other Lender of its obligation to lend hereunder (it being understood, however,
that no Lender shall be responsible for the failure of any other Lender to make any Loan required
to be made by such other Lender). Except for Loans
27
deemed made pursuant to Section 2.02(f), the Loans comprising any Borrowing shall be in an
aggregate principal amount that is (i) an integral multiple of $500,000 and not less than
$2,000,000 or (ii) equal to the remaining available balance of the applicable Commitments.
(b) Subject to Sections 2.08 and 2.14, each Borrowing shall be comprised entirely of ABR Loans
or Eurodollar Loans as the Borrower may request pursuant to Section 2.03. Each Lender may at its
option make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such
Lender to make such Loan; provided that any exercise of such option shall not affect the obligation
of the Borrower to repay such Loan in accordance with the terms of this Agreement. Borrowings of
more than one Type may be outstanding at the same time; provided, however, that the Borrower shall
not be entitled to request any Borrowing that, if made, would result in more than five Eurodollar
Borrowings outstanding hereunder at any time. For purposes of the foregoing, Borrowings having
different Interest Periods, regardless of whether they commence on the same date, shall be
considered separate Borrowings.
(c) Each Lender shall make each Loan to be made by it hereunder on the proposed date thereof
by wire transfer of immediately available funds to such account in
New York City as the
Administrative Agent may designate not later than 1:00 p.m.,
New York City time, and the
Administrative Agent shall promptly credit the amounts so received to an account designated by the
Borrower in the Borrowing Request or, if a Borrowing shall not occur on such date because any
condition precedent herein specified shall not have been met, return the amounts so received to the
respective Lenders.
(d) Unless the Administrative Agent shall have received notice from a Lender prior to the date
of any Borrowing that such Lender will not make available to the Administrative Agent such Lender’s
portion of such Borrowing, the Administrative Agent may assume that such Lender has made such
portion available to the Administrative Agent on the date of such Borrowing in accordance with
paragraph (c) above and the Administrative Agent may, in reliance upon such assumption, make
available to the Borrower on such date a corresponding amount. If the Administrative Agent shall
have so made funds available then, to the extent that such Lender shall not have made such portion
available to the Administrative Agent, such Lender agrees to repay to the Administrative Agent
forthwith on demand such corresponding amount together with interest thereon, for each day from the
date such amount is made available to the Borrower to but excluding the date such amount is repaid
to the Administrative Agent at a rate determined by the Administrative Agent to represent its cost
of overnight or short-term funds (which determination shall be conclusive absent manifest error).
If such Lender shall repay to the Administrative Agent such corresponding amount, such amount shall
constitute such Lender’s Loan as part of such Borrowing for purposes of this Agreement. If such
Lender’s share of such Borrowing is not made available to the
Administrative Agent by such Lender within one Business Day of the date of such Borrowing, the
Administrative Agent shall also be entitled to recover from the Borrower such amount with interest
at the rate per annum equal to the interest rate for the Loan comprising such Borrowing. Nothing in
this paragraph (d) shall be deemed to relieve any
28
Lender of its obligation to fulfill its commitments hereunder or to prejudice any rights of the
Borrower against the Lender as a result of any default by such Lender hereunder.
SECTION 2.03.
Borrowing Procedure. In order to request a Borrowing, the Borrower shall notify
the Administrative Agent of such request by telephone (a) in the case of an ABR Borrowing, not
later than 12:00 noon,
New York City time on the Closing Date, (b) in the case of a Eurodollar
Borrowing, not later than 12:00 noon,
New York City time, three Business Days before the Closing
Date, and (c) in the case of an ABR Borrowing, not later than 12:00 noon,
New York City time, one
Business Day before the Closing Date. Such telephonic Borrowing Request shall be irrevocable, and
shall be confirmed promptly by hand delivery or fax to the Administrative Agent of a written
Borrowing Request and shall specify the following information: (i) whether such Borrowing is to be
a Eurodollar Borrowing or an ABR Borrowing; (ii) the date of such Borrowing (which shall be a
Business Day); (iii) the number and location of the account to which funds are to be disbursed;
(iv) the amount of such Borrowing; and (v) if such Borrowing is to be a Eurodollar Borrowing, the
Interest Period with respect thereto;
provided,
however, that, notwithstanding any contrary
specification in the Borrowing Request, the requested Borrowing shall comply with the requirements
set forth in Section 2.02. If no election as to the Type of Borrowing is specified in any such
notice, then the requested Borrowing shall be an ABR Borrowing. If no Interest Period with respect
to any Eurodollar Borrowing is specified in any such notice, then the Borrower shall be deemed to
have selected an Interest Period of one month’s duration. The Administrative Agent shall promptly
advise the applicable Lenders of any notice given pursuant to this Section 2.03 (and the contents
thereof), and of each Lender’s portion of the requested Borrowing.
SECTION 2.04. Evidence of Debt; Repayment of Loans. (a) The Borrower hereby unconditionally
promises to pay to the Administrative Agent for the account of each Lender the principal amount of
each Loan of such Lender on the Maturity Date.
(b) Each Lender shall maintain in accordance with its usual practice an account or accounts
evidencing the indebtedness of the Borrower to such Lender resulting from each Loan made by such
Lender from time to time, including the amounts of principal and interest payable and paid to such
Lender from time to time under this Agreement.
(c) The Administrative Agent shall maintain accounts in which it will record (i) the amount of
each Loan made hereunder, the Type thereof and, if applicable, the Interest Period applicable
thereto, (ii) the amount of any principal or interest due and payable or to become due and payable
from the Borrower to each Lender hereunder and (iii) the amount of any sum received by the
Administrative Agent hereunder from the Borrower or any Guarantor and each Lender’s share thereof.
(d) The entries made in the accounts maintained pursuant to paragraphs (b) and (c) above shall
be prima facie evidence of the existence and amounts of the obligations therein recorded; provided,
however, that the failure of any Lender or the Administrative Agent to maintain such accounts or
any error therein shall not in any manner affect the obligations of the Borrower to repay the Loans
in accordance with their terms.
29
(e) Any Lender may request that Loans made by it hereunder be evidenced by a promissory note.
In such event, the Borrower shall execute and deliver to such Lender a promissory note payable to
such Lender and its registered assigns and in a form and substance reasonably acceptable to the
Administrative Agent and the Borrower. Notwithstanding any other provision of this Agreement, in
the event any Lender shall request and receive such a promissory note, the interests represented by
such note shall at all times (including after any assignment of all or part of such interests
pursuant to Section 9.04) be represented by one or more promissory notes payable to the payee named
therein or its registered assigns.
SECTION 2.05. Administrative Agent Fees. (a) The Borrower agrees to pay to the Administrative
Agent, for its own account, the administrative fees set forth in the Fee Letter at the times and in
the amounts specified therein (the “Administrative Agent Fees”).
(b) All Administrative Agent Fees shall be paid on the dates due, in immediately available
funds, to the Administrative Agent. Once paid, none of the Administrative Agent Fees shall be
refundable under any circumstances.
SECTION 2.06. Interest on Loans. (a) Subject to the provisions of Section 2.07, the Loans
comprising each ABR Borrowing shall bear interest (computed on the basis of the actual number of
days elapsed over a year of 365 or 366 days, as the case may be, when the Alternate Base Rate is
determined by reference to the Prime Rate and over a year of 360 days at all other times and
calculated from and including the date of such Borrowing to but excluding the date of repayment
thereof) at a rate per annum equal to the Alternate Base Rate plus the Applicable Percentage.
(b) Subject to the provisions of Section 2.07, the Loans comprising each Eurodollar Borrowing
shall bear interest (computed on the basis of the actual number of days elapsed over a year of 360
days) at a rate per annum equal to the Adjusted LIBO Rate for the Interest Period in effect for
such Borrowing plus the Applicable Percentage.
(c) Interest on each Loan shall be payable on the Interest Payment Dates applicable to such
Loan except as otherwise provided in this Agreement. The applicable Alternate Base Rate or Adjusted
LIBO Rate for each Interest Period or day within an Interest Period, as the case may be, shall be
determined by the Administrative Agent, and such determination shall be conclusive absent manifest
error.
SECTION 2.07. Default Interest. If the Borrower shall default in the payment of any principal
of or interest on any Loan or any other amount due hereunder, by acceleration or otherwise, or
under any other Loan Document, then, until such defaulted amount shall have been paid in full, to
the extent permitted by law, such defaulted
amount shall bear interest (after as well as before judgment), payable on demand, (a) in the
case of principal, at the rate otherwise applicable to such Loan pursuant to Section 2.06 plus
2.00% per annum and (b) in all other cases, at a rate per annum (computed on the basis of the
actual number of days elapsed over a year of 365 or 366 days, as the case may be, when determined
by reference to the Prime Rate and over a year of 360 days at
30
all other times) equal to the rate that would be applicable to an ABR Loan plus 2.00% per annum.
SECTION 2.08. Alternate Rate of Interest. In the event, and on each occasion, that on the day
two Business Days prior to the commencement of any Interest Period for a Eurodollar Borrowing the
Administrative Agent shall have determined that dollar deposits in the principal amounts of the
Loans comprising such Borrowing are not generally available in the London interbank market, or that
the rates at which such dollar deposits are being offered will not adequately and fairly reflect
the cost to any Lender of making or maintaining its Eurodollar Loan during such Interest Period, or
that reasonable means do not exist for ascertaining the Adjusted LIBO Rate, the Administrative
Agent shall, as soon as practicable thereafter, give written or fax notice of such determination to
the Borrower and the Lenders. In the event of any such determination, until the Administrative
Agent shall have advised the Borrower and the Lenders that the circumstances giving rise to such
notice no longer exist, any request by the Borrower for a Eurodollar Borrowing pursuant to Section
2.03 or 2.10 shall be deemed to be a request for an ABR Borrowing. Each determination by the
Administrative Agent under this Section 2.08 shall be conclusive absent manifest error.
SECTION 2.09.
Termination and Reduction of Commitments. (a) The Commitments shall
automatically terminate upon the making of the Loans on the Closing Date. Notwithstanding the
foregoing, all the Commitments shall automatically terminate at 5:00 p.m.,
New York City time, on
May 19, 2007 or (x) such later date, not to exceed August 19, 2007, if the termination date
contemplated by Section 7.01(b)(i) of the Merger Agreement is extended in accordance with the terms
thereof, or (y) such earlier date on which the Merger Agreement terminates, if the Borrowing
hereunder shall not have occurred by such time.
(b) Upon at least three Business Days’ prior irrevocable written or fax notice to the
Administrative Agent, the Borrower may at any time in whole permanently terminate, or from time to
time in part permanently reduce, the Commitments; provided, however, that each partial reduction of
the Commitments shall be in an integral multiple of $500,000 and in a minimum amount of $1,000,000.
(c) Each reduction in the Commitments hereunder shall be made ratably among the Lenders in
accordance with their respective applicable Commitments. The Borrower shall pay to the
Administrative Agent for the account of the applicable Lenders, on the date of each termination or
reduction, the Commitment Fees on the amount of the Commitments so terminated or reduced accrued to
but excluding the date of such termination or reduction.
SECTION 2.10.
Conversion and Continuation of Borrowings. The Borrower shall have the right at
any time upon prior irrevocable notice (which may be by telephone, confirmed promptly in writing or
by fax) to the Administrative Agent (a) not later than 12:00 (noon),
New York City time, one
Business Day prior to conversion, to convert any Eurodollar Borrowing into an ABR Borrowing, (b)
not later than 12:00 noon, New York City time, three Business Days prior to conversion or
continuation, to convert
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any ABR Borrowing into a Eurodollar Borrowing or to continue any Eurodollar Borrowing as a
Eurodollar Borrowing for an additional Interest Period, and (c) not later than 12:00 noon, New York
City time, three Business Days prior to conversion, to convert the Interest Period with respect to
any Eurodollar Borrowing to another permissible Interest Period, subject in each case to the
following:
(i) each conversion or continuation shall be made pro rata among the Lenders in
accordance with the respective principal amounts of the Loans comprising the converted or
continued Borrowing;
(ii) if less than all the outstanding principal amount of any Borrowing shall be
converted or continued, then each resulting Borrowing shall satisfy the limitations
specified in Sections 2.02(a) and 2.02(b) regarding the principal amount and maximum number
of Borrowings of the relevant Type;
(iii) each conversion shall be effected by each Lender and the Administrative Agent by
recording for the account of such Lender the new Loan of such Lender resulting from such
conversion or continuation, where appropriate, and reducing the Loan (or portion thereof)
of such Lender being converted by an equivalent principal amount; accrued interest on any
Eurodollar Loan (or portion thereof) being converted shall be paid by the Borrower at the
time of conversion;
(iv) if any Eurodollar Borrowing is converted at a time other than the end of the
Interest Period applicable thereto, the Borrower shall pay, upon demand, any amounts due to
the Lenders pursuant to Section 2.15;
(v) any portion of a Borrowing maturing or required to be repaid in less than one
month may not be converted into or continued as a Eurodollar Borrowing;
(vi) any portion of a Eurodollar Borrowing that cannot be converted into or continued
as a Eurodollar Borrowing by reason of the immediately preceding clause shall be
automatically converted at the end of the Interest Period in effect for such Borrowing into
an ABR Borrowing; and
(vii) upon notice to the Borrower from the Administrative Agent given at the request
of the Required Lenders, after the occurrence and during the continuance of a Default or
Event of Default, no outstanding Loan may be converted into, or continued as, a Eurodollar
Loan.
Each notice pursuant to this Section 2.10 shall be irrevocable and shall refer to
this Agreement and specify (i) the identity and amount of the Borrowing that the Borrower
requests be converted or continued, (ii) whether such Borrowing is to be converted to or continued
as a Eurodollar Borrowing or an ABR Borrowing, (iii) if such notice requests a conversion, the date
of such conversion (which shall be a Business Day) and (iv) if such Borrowing is to be converted to
or continued as a Eurodollar Borrowing, the Interest Period with respect thereto. If no Interest
Period is specified in any such notice with respect to any conversion to or continuation as a
Eurodollar Borrowing, the
32
Borrower shall be deemed to have selected an Interest Period of one month’s duration. The
Administrative Agent shall advise the Lenders of any notice given pursuant to this Section 2.10 and
of each Lender’s portion of any converted or continued Borrowing. If the Borrower shall not have
given notice in accordance with this Section 2.10 to continue any Borrowing into a subsequent
Interest Period (and shall not otherwise have given notice in accordance with this Section 2.10 to
convert such Borrowing), such Borrowing shall, at the end of the Interest Period applicable thereto
(unless repaid pursuant to the terms hereof), automatically be continued into an ABR Borrowing.
SECTION 2.11. Optional Prepayment. (a) The Borrower shall have the right at any time and from
time to time to prepay any Borrowing, in whole or in part, upon at least three Business Days’ prior
written or fax notice (or telephone notice promptly confirmed by written or fax notice) in the case
of Eurodollar Loans, or written or fax notice (or telephone notice promptly confirmed by written or
fax notice) at least one Business Day prior to the date of prepayment in the case of ABR Loans, to
the Administrative Agent before 12:00 noon, New York City time; provided, however, that each
partial prepayment shall be in an amount that is an integral multiple of $500,000 and not less than
$2,000,000.
(b) Each notice of prepayment shall specify the prepayment date and the principal amount of
each Borrowing (or portion thereof) to be prepaid, shall be irrevocable (other than in connection
with a refinancing) and shall commit the Borrower to prepay such Borrowing by the amount stated
therein on the date stated therein. All prepayments under this Section 2.11 shall be subject to
Section 2.15 but otherwise without premium or penalty. All prepayments under this Section 2.11
shall be accompanied by accrued and unpaid interest on the principal amount to be prepaid to but
excluding the date of payment which may be paid from the Escrow Interest Account as otherwise
provided in this Agreement.
SECTION 2.12. Mandatory Prepayments. (a) (i) Not later than the fifth Business Day following
the receipt of Net Cash Proceeds in respect of any Asset Sale (other than in respect of a sale
involving any Real Property Asset), the Borrower shall apply 100% of the Net Cash Proceeds received
with respect thereto to prepay outstanding Loans and (ii) concurrently with, and as a condition to
the closing of, any Asset Sale or Required Dedication with respect to an interest in any Real
Property Asset by any Loan Party, the Borrower shall prepay the Loans in an amount equal to the
Required Land Sales Proceeds attributable to such Asset Sale or Required Dedication, in each case,
less any Asset Sale Holdback Amounts.
(b) (i) In the event and on each occasion that an Equity Issuance occurs, the Borrower shall,
substantially simultaneously with (and in any event not later than the fifth Business Day next
following) the occurrence of such Equity Issuance, apply 50% of the Net Cash Proceeds therefrom to
prepay outstanding Loans and (ii) in the event and on each occasion that an OpCo Intermediate
Equity Issuance occurs, the Borrower shall, substantially simultaneously with (and in any event not
later than the fifth Business Day next following) the occurrence of such OpCo Intermediate Equity
Issuance, apply 100% of the Net Cash Proceeds therefrom (less any amounts that are required to be
used to
33
repay any loans pursuant to the OpCo
Credit Agreement) that are actually received by the Borrower
(it being understood that such proceeds are required to be delivered to the Borrower for such
purpose) to prepay outstanding Loans.
(c) No later than the earlier of (i) 90 days after the end of each fiscal year of the
Borrower, commencing with the fiscal year ending on December 31, 2007, and (ii) the date on which
the financial statements with respect to such period are delivered pursuant to Section 5.04(a), the
Borrower shall prepay outstanding Loans in an aggregate principal amount equal to 100% of Excess
Cash Flow for the fiscal year then ended.
(d) In the event that any Loan Party shall receive Net Cash Proceeds from the issuance or
incurrence of Indebtedness for money borrowed of any Loan Party or any subsidiary of a Loan Party
(other than any cash proceeds from the issuance of Indebtedness for money borrowed permitted
pursuant to Section 6.01), the Borrower shall, substantially simultaneously with (and in any event
not later than the fifth Business Day next following) the receipt of such Net Cash Proceeds by such
Loan Party or such subsidiary, apply an amount equal to 100% of such Net Cash Proceeds to prepay
outstanding Loans.
(e) In the event that any Loan Party shall receive Net Cash Proceeds from any Extraordinary
Receipt, the Borrower shall, substantially simultaneously with (and in any event not later than the
fifth Business Day next following) the receipt of such Extraordinary Receipt, apply 100% of such
Extraordinary Receipt to prepay outstanding Loans.
(f) In the event that OpCo or OpCo Intermediate makes a dividend, distribution or other
Restricted Payment to OpCo Holdings (other than in respect of Restricted Payments made pursuant to
Section 6.06(a)(i) through 6.06(a)(x) of the OpCo Credit Agreement), the Borrower shall,
substantially simultaneously with (and in any event not later than the fifth Business Day next
following) the receipt of such payment by OpCo Holdings, cause 100% of the cash proceeds therefrom
to be applied to prepay outstanding Loans.
(g) The Borrower shall deliver to the Administrative Agent, at the time of each prepayment
required under this Section 2.12, (i) a certificate signed by a Financial Officer of the Borrower
setting forth in reasonable detail the calculation of the amount of such prepayment and (ii) to the
extent practicable, at least three days prior written notice of such prepayment. Each notice of
prepayment shall specify the prepayment date, the Type of each Loan being prepaid and the principal
amount of each Loan (or portion
thereof) to be prepaid. All prepayments of Borrowings under this Section 2.12 shall be subject
to Section 2.15, but shall otherwise be without premium or penalty, and shall be accompanied by
accrued and unpaid interest on the principal amount to be prepaid to but excluding the date of
payment.
SECTION 2.13. Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other
provision of this Agreement, if any Change in Law shall impose, modify or deem applicable any
reserve, special deposit or similar requirement
34
against assets of, deposits with or for the account of or credit extended by any Lender (except any
such reserve requirement which is reflected in the Adjusted LIBO Rate) or shall impose on such
Lender or the London interbank market any other condition affecting this Agreement or Eurodollar
Loans made by such Lender, and the result of any of the foregoing shall be to increase the cost to
such Lender of making or maintaining any Eurodollar Loan or to reduce the amount of any sum
received or receivable by such Lender hereunder (whether of principal, interest or otherwise) by an
amount deemed by such Lender (acting reasonably) to be material, then the Borrower will pay to such
Lender upon demand such additional amount or amounts as will compensate such Lender for such
additional costs incurred or reduction suffered.
(b) If any Lender shall have determined that any Change in Law regarding capital adequacy has
or would have the effect of reducing the rate of return on such Lender’s capital or on the capital
of such Lender’s holding company, if any, as a consequence of this Agreement or the Loans made by
such Lender pursuant hereto to a level below that which such Lender or such Lender’s holding
company could have achieved but for such Change in Law (taking into consideration such Lender’s
policies and the policies of such Lender’s holding company with respect to capital adequacy) by an
amount deemed by such Lender to be material, then from time to time the Borrower shall pay to such
Lender such additional amount or amounts as will compensate such Lender or such Lender’s holding
company for any such reduction suffered.
(c) A certificate of a Lender setting forth the amount or amounts necessary to compensate such
Lender or its holding company, as applicable, as specified in paragraph (a) or (b) above shall be
delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay
such Lender the amount shown as due on any such certificate delivered by it within 10 Business Days
after its receipt of the same.
(d) Failure or delay on the part of any Lender to demand compensation for any increased costs
or reduction in amounts received or receivable or reduction in return on capital shall not
constitute a waiver of such Lender’s right to demand such compensation; provided that the Borrower
shall not be under any obligation to compensate any Lender under paragraph (a) or (b) above with
respect to increased costs or reductions with respect to any period prior to the date that is 120
days prior to such request if such Lender knew or could reasonably have been expected to know of
the circumstances giving rise to such increased costs or reductions and of the fact that such
circumstances would result in a claim for increased compensation by reason of such increased costs
or reductions; provided further that the foregoing limitation shall not apply to any increased
costs or
reductions arising out of the retroactive application of any Change in Law within such 120-day
period. The protection of this Section shall be available to each Lender regardless of any
possible contention of the invalidity or inapplicability of the Change in Law that shall have
occurred or been imposed.
SECTION 2.14. Change in Legality. (a) Notwithstanding any other provision of this Agreement,
if any Change in Law shall make it unlawful for any Lender to make or maintain any Eurodollar Loan
or to give effect to its obligations as contemplated hereby
35
with respect to any Eurodollar Loan, then, by written notice to the Borrower and to the
Administrative Agent:
(i) such Lender may declare that Eurodollar Loans will not thereafter (for the
duration of such unlawfulness) be made by such Lender hereunder (or be continued for
additional Interest Periods) and ABR Loans will not thereafter (for such duration) be
converted into Eurodollar Loans, whereupon any request for a Eurodollar Borrowing (or to
convert an ABR Borrowing to a Eurodollar Borrowing or to continue a Eurodollar Borrowing
for an additional Interest Period) shall, as to such Lender only, be deemed a request for
an ABR Loan (or a request to continue an ABR Loan as such for an additional Interest Period
or to convert a Eurodollar Loan into an ABR Loan, as the case may be), unless such
declaration shall be subsequently withdrawn; and
(ii) such Lender may require that all outstanding Eurodollar Loans made by it be
converted to ABR Loans, in which event all such Eurodollar Loans shall be automatically
converted to ABR Loans as of the effective date of such notice as provided in paragraph (b)
below.
In the event any Lender shall exercise its rights under (i) or (ii) above, all payments and
prepayments of principal that would otherwise have been applied to repay the Eurodollar Loans that
would have been made by such Lender or the converted Eurodollar Loans of such Lender shall instead
be applied to repay the ABR Loans made by such Lender in lieu of, or resulting from the conversion
of, such Eurodollar Loans.
(b) For purposes of this Section 2.14, a notice to the Borrower by any Lender shall be
effective as to each Eurodollar Loan made by such Lender, if lawful, on the last day of the
Interest Period then applicable to such Eurodollar Loan; in all other cases such notice shall be
effective on the date of receipt by the Borrower.
SECTION 2.15. Indemnity. The Borrower shall indemnify each Lender against any loss or expense
that such Lender may sustain (other than loss of profits) or incur as a consequence of (a) any
event, other than a default by such Lender in the performance of its obligations hereunder, which
results in (i) such Lender receiving or being deemed to receive any amount on account of the
principal of any Eurodollar Loan prior to the end of the Interest Period in effect therefor, (ii)
the conversion of any Eurodollar Loan to an ABR Loan, or the conversion of the Interest Period with
respect to any Eurodollar Loan, in each case other than on the last day of the Interest Period in
effect therefor, or (iii) any Eurodollar Loan to be made by such Lender (including any Eurodollar
Loan to be made
pursuant to a conversion or continuation under Section 2.10) not being made after notice of
such Loan shall have been given by the Borrower hereunder (any of the events referred to in this
clause (a) being called a “Breakage Event”) or (b) any default by the Borrower in the making of any
payment or prepayment required to be made hereunder. In the case of any Breakage Event, such loss
shall include an amount equal to the excess, as reasonably determined by such Lender, of (i) its
cost of obtaining funds for the Eurodollar Loan that is the subject of such Breakage Event for the
period from the date of such Breakage Event to the last day of the Interest Period in effect (or
that would have
36
been in effect) for such Loan over (ii) the amount of interest likely to be realized by such Lender
in redeploying the funds released or not utilized by reason of such Breakage Event for such period.
A certificate of any Lender setting forth any amount or amounts which such Lender is entitled to
receive pursuant to this Section 2.15 shall be delivered to the Borrower and shall be conclusive
absent manifest error.
SECTION 2.16. Pro Rata Treatment. Except as required under Section 2.14, each Borrowing, each
payment or prepayment of principal of any Borrowing, each payment of interest on the Loans, each
reduction of the Commitments and each conversion of any Borrowing to or continuation of any
Borrowing as a Borrowing of any Type shall be allocated pro rata among the Lenders in accordance
with their respective applicable Commitments (or, if such Commitments shall have expired or been
terminated, in accordance with the respective principal amounts of their outstanding Loans). Each
Lender agrees that in computing such Lender’s portion of any Borrowing to be made hereunder, the
Administrative Agent may, in its discretion, round each Lender’s percentage of such Borrowing to
the next higher or lower whole dollar amount.
SECTION 2.17. Sharing of Setoffs. Each Lender agrees that if it shall, through the exercise of
a right of banker’s lien, setoff or counterclaim against the Borrower or any other Loan Party, or
pursuant to a secured claim under Section 506 of Title 11 of the United States Code or other
security or interest arising from, or in lieu of, such secured claim, received by such Lender under
any applicable bankruptcy, insolvency or other similar law or otherwise, or by any other means,
obtain payment (voluntary or involuntary) in respect of any Loan or Loans as a result of which the
unpaid principal portion of its Loans shall be proportionately less than the unpaid principal
portion of the Loans of any other Lender, it shall be deemed simultaneously to have purchased from
such other Lender at face value, and shall promptly pay to such other Lender the purchase price
for, a participation in the Loans of such other Lender, so that the aggregate unpaid principal
amount of the Loans and participations in Loans held by each Lender shall be in the same proportion
to the aggregate unpaid principal amount of all Loans then outstanding as the principal amount of
its Loans prior to such exercise of banker’s lien, setoff or counterclaim or other event was to the
principal amount of all Loans outstanding prior to such exercise of banker’s lien, setoff or
counterclaim or other event; provided, however, that if any such purchase or purchases or
adjustments shall be made pursuant to this Section 2.17 and the payment giving rise thereto shall
thereafter be recovered, such purchase or purchases or adjustments shall be rescinded to the extent
of such recovery and the purchase price or prices or adjustment restored without interest. The
Borrower and Holdings expressly consent to the foregoing arrangements and agree that any Lender
holding a participation in a Loan deemed to have been so purchased may exercise any and all
rights of banker’s lien, setoff or counterclaim with respect to any and all moneys owing by the
Borrower and Holdings to such Lender by reason thereof as fully as if such Lender had made a Loan
directly to the Borrower in the amount of such participation.
SECTION 2.18. Payments. (a) The Borrower shall make each payment (including principal of or
interest on any Borrowing or any Administrative Agent Fees or other amounts) hereunder and under
any other Loan Document not later than 12:00 (noon), New York City time, on the date when due in
immediately available
37
dollars, without setoff, defense or counterclaim. Each such payment shall be made to the
Administrative Agent at its offices at Eleven Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000. The
Administrative Agent shall promptly distribute to each Lender any payments received by the
Administrative Agent on behalf of such Lender. Notwithstanding the foregoing, the Administrative
Agent may, but shall not be obligated to, withdraw amounts from the Escrow Interest Account to pay
or be applied to the payment of interest due on the Loans for each Interest Payment Date (subject
to sufficient funds being available in the Escrow Interest Account for such purpose) and the
Borrower hereby authorizes the Administrative Agent to apply amounts in the Escrow Interest Account
in order to cause such interest payments to be made, it being understood and agreed that prior to
the one-year anniversary of the Closing Date, in the event (and to the extent) the Borrower has
sufficient cash flow from its ongoing operations, the Borrower shall make payments of interest from
such funds and not from the Escrow Interest Account. In the event funds in the Escrow Interest
Account are not sufficient (or are not withdrawn) to pay such interest, the Borrower shall be
required to fund any shortfall by the time required for payment of interest in this paragraph.
(b) Except as otherwise expressly provided herein, whenever any payment (including principal
of or interest on any Borrowing or any Administrative Agent Fees or other amounts) hereunder or
under any other Loan Document shall become due, or otherwise would occur, on a day that is not a
Business Day, such payment may be made on the next succeeding Business Day, and such extension of
time shall in such case be included in the computation of interest or Administrative Agent Fees, if
applicable.
SECTION 2.19. Taxes. (a) Any and all payments by or on account of any obligation of the
Borrower or any other Loan Party hereunder or under any other Loan Document shall be made free and
clear of and without deduction for any Indemnified Taxes or Other Taxes; provided that, if the
Borrower or any other Loan Party shall be required to deduct any such Indemnified Taxes or Other
Taxes from such payments, then (i) the sum payable shall be increased as necessary so that after
making all required deductions (including deductions of Indemnified Taxes applicable to additional
sums payable under this Section) the Administrative Agent or Lender (as the case may be) receives
an amount equal to the sum it would have received had no such deductions been made, (ii) the
Borrower or such Loan Party shall make such deductions and (iii) the Borrower or such Loan Party
shall pay the full amount deducted to the relevant Governmental Authority in accordance with
applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the relevant Governmental Authority
in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent and each Lender, within 10 Business
Days after written demand therefor, for the full amount of any Indemnified Taxes or Other Taxes
paid by the Administrative Agent or such Lender, as the case may be, on or with respect to any
payment by or on account of any obligation of the Borrower or any other Loan Party hereunder or
under any other Loan Document (including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) and any penalties, interest and reasonable
expenses
38
arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes
were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate
as to the amount of such payment or liability delivered to the Borrower by a Lender, or by the
Administrative Agent on behalf of itself, a Lender, shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or Other Taxes by the
Borrower or any other Loan Party to a Governmental Authority, the Borrower shall deliver to the
Administrative Agent the original or a certified copy of a receipt issued by such Governmental
Authority evidencing such payment, a copy of the return reporting such payment or other evidence of
such payment reasonably satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from or reduction of withholding tax
under the law of the jurisdiction in which the Borrower is located, or any treaty to which such
jurisdiction is a party, with respect to payments under this Agreement shall deliver to the
Borrower (with a copy to the Administrative Agent), at the time or times prescribed by applicable
law, such properly completed and executed documentation prescribed by applicable law or reasonably
requested by the Borrower certifying to such entitlement to exemption from, or a reduced rate of,
withholding or at a reduced rate.
(f) If the Administrative Agent of any Lender determines, in its sole discretion, that it has
received a refund of any Taxes or Other Taxes (including a credit in lieu of a cash refund) as to
which it has been indemnified by a Loan Party or with respect to which a Loan Party has paid
additional amounts pursuant to this Section 2.19, it shall pay over such refund to that Loan Party
(but only to the extent of indemnity payments made, or additional amounts paid, by such Loan Party
under this Section 2.19 with respect to the Taxes or Other Taxes giving rise to such refund), net
of all out-of-pocket expenses of the Administrative Agent or such Lender and without interest
(other than any interest paid by the Governmental Authority with respect to such refund); provided
that the Loan Parties, upon the request of the Administrative Agent or such Lender, agree to repay
the amount paid over to such Loan Party (plus any penalties, interest or other charges imposed by
the relevant Governmental Authority) to the Administrative Agent or any Lender in the event the
Administrative Agent or such Lender is required to repay such refund to the Governmental Authority.
This Section 2.19(f) shall not be construed to require the
Administrative Agent or any Lender to make available its tax returns (or any other information
it deems confidential) to the Loan Parties.
SECTION 2.20. Assignment of Commitments Under Certain Circumstances; Duty to Mitigate. (a) In
the event that (i) any Lender delivers a certificate requesting compensation pursuant to Section
2.13, (ii) any Lender delivers a notice described in Section 2.14, (iii) any Lender delivers a
certificate pursuant to Section 2.16 for an amount that is materially greater than other Lenders,
(iv) the Borrower is required to pay any additional amount to any Lender or any Governmental
Authority on account of any Lender pursuant to Section 2.19, (v) any Lender defaults in its
obligation to make Loans hereunder or (vi) any Lender refuses to consent to any amendment, waiver
or other
39
modification of any Loan Document requested by the Borrower that requires the consent of a greater
percentage of the Lenders than the Required Lenders and such amendment, waiver or other
modification has been consented to by the Required Lenders, the Borrower may, at its sole expense
and effort (including with respect to the processing and recordation fee referred to in Section
9.04(b)), upon notice to such Lender and the Administrative Agent, require such Lender to transfer
and assign, without recourse (in accordance with and subject to the restrictions contained in
Section 9.04), all of its interests, rights and obligations under this Agreement to an assignee
that shall assume such assigned obligations (which assignee may be another Lender, if a Lender
accepts such assignment) and, in addition, with respect to clause (iv) above, shall consent to such
requested amendment, waiver or other modification of any Loan Documents; provided that (x) such
assignment shall not conflict with any law, rule or regulation or order of any court or other
Governmental Authority having jurisdiction, (y) the Borrower shall have received the prior written
consent of the Administrative Agent, which consent shall not unreasonably be withheld or delayed,
and (z) the Borrower or such assignee shall have paid to the affected Lender in immediately
available funds an amount equal to the sum of the principal of and interest accrued to the date of
such payment on the outstanding Loans of such Lender, plus all other amounts accrued for the
account of such Lender hereunder with respect thereto (including any amounts under Sections 2.13
and 2.15); provided further that, if prior to any such transfer and assignment the circumstances or
event that resulted in such Lender’s claim for compensation under Section 2.13 or 2.15, notice
under Section 2.14 or the amounts paid pursuant to Section 2.19, as the case may be, cease to cause
such Lender to suffer increased costs or reductions in amounts received or receivable or reduction
in return on capital, or cease to have the consequences specified in Section 2.14 (or in the case
of Section 2.15, cease to cause losses and expenses in an amount that is materially greater than
the other Lenders), or cease to result in amounts being payable under Section 2.19, as the case may
be (including as a result of any action taken by such Lender pursuant to paragraph (b) below), or
if such Lender shall waive its right to claim further compensation under Section 2.13 in respect of
such circumstances or event or shall withdraw its notice under Section 2.14 or shall waive its
right to further payments under Section 2.19 in respect of such circumstances or event or shall
consent to the proposed amendment, waiver, consent or other modification, as the case may be, then
such Lender shall not thereafter be required to make any such transfer and assignment hereunder.
Each Lender hereby grants to the Administrative Agent an irrevocable power of attorney (which power
is coupled with an interest) to execute and deliver, on behalf of
such Lender as assignor, any Assignment and Acceptance necessary to effectuate any assignment of
such Lender’s interests hereunder in the circumstances contemplated by this Section 2.20(a).
(b) If (i) any Lender shall request compensation under Section 2.13, (ii) any Lender delivers
a notice described in Section 2.14 or (iii) the Borrower is required to pay any additional amount
to any Lender or any Governmental Authority on account of any Lender, pursuant to Section 2.19,
then such Lender shall use reasonable efforts (which shall not require such Lender to incur an
unreimbursed loss or unreimbursed cost or expense or otherwise take any action inconsistent with
its internal policies or legal or regulatory restrictions or suffer any disadvantage or burden
deemed by it to be significant) (x) to file any certificate or document reasonably requested in
writing by the
40
Borrower or (y) to assign its rights and delegate and transfer its obligations hereunder to another
of its offices, branches or affiliates, if such filing or assignment would reduce its claims for
compensation under Section 2.13 or enable it to withdraw its notice pursuant to Section 2.14 or
would reduce amounts payable pursuant to Section 2.19, as the case may be, in the future. The
Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in
connection with any such filing or assignment, delegation and transfer.
SECTION 2.21. Extension of Maturity Date. (a) Requests for Extension. The Borrower may, on no
more than two occasions, by notice to the Administrative Agent (who shall promptly notify the
Lenders) not earlier than 90 days prior to, and not later than 30 days prior to, the Maturity Date
then in effect hereunder (the “Existing Maturity Date”), cause each Lender to extend the Maturity
Date for an additional six months from the Existing Maturity Date and each Lender shall extend the
Maturity Date for an additional six months from the Existing Maturity Date in accordance with this
Section 2.21.
(b) Conditions to Effectiveness of Extensions. Notwithstanding the foregoing, any extension of
the Maturity Date pursuant to this subsection shall not be effective unless:
(i) no Default or Event of Default shall have occurred and be continuing on the
Existing Maturity Date and after giving effect thereto;
(ii) except with respect to those representations and warranties that are given as of
the Closing Date, which shall have been true and correct as of such date, the
representations and warranties contained in this Agreement are true and correct in all
material respects, on and as of the date of such extension and after giving effect thereto,
as though made on and as of such date;
(iii) the Collateral Agent shall have received a Qualified Appraisal Update
demonstrating the Appraised Value of the Mortgaged Properties, together with calculations
(based on the Appraised Value contained in such Qualified Appraisal Update) demonstrating
pro forma compliance with the financial covenant set forth in Section 6.11;
(iv) the Borrower shall have deposited into the Escrow Interest Account an amount not
less than an amount determined by the Administrative Agent in good faith (calculated based
on the effective fixed rate of interest of the Hedging Agreement entered into pursuant to
clause (vi) of this Section 2.21(b)) to be sufficient to fund interest expense in respect
of the Loans for the six-month period ending on the Maturity Date (after giving effect to
the proposed extension) (it being understood that the deposits required by this subclause
(iv) shall be made in connection with each extension of the Maturity Date), provided that
any amounts required to be deposited pursuant to this clause (iv) may be offset by any
amounts remaining in the Escrow Interest Account;
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(v) in the event the Tropicana Las Vegas Closing Effective Date shall have occurred,
(A) the Borrower shall have delivered to the Administrative Agent an updated Carrying Costs
Budget in form and substance reasonably satisfactory to the Administrative Agent for the
six-month period ending on the Maturity Date (after giving effect to the proposed
extension) and (B) the Borrower shall have deposited into the Carrying Costs Reserve
Account an amount not less than an amount determined by the Administrative Agent in good
faith to be sufficient to fund carrying costs (as reflected in the updated Carrying Costs
Budget delivered in accordance with clause (A)) for the six-month period ending on the
Maturity Date (after giving effect to the proposed extension);
(vi) the Borrower shall have entered into a Hedging Agreement acceptable to the
Administrative Agent for the length of such extension that results in at least 100% of the
aggregate principal amount of the Loans being effectively subject to a fixed or maximum
interest rate acceptable to the Administrative Agent; and
(vii) the Borrower shall pay to the Administrative Agent, for the account of each
Lender, an extension fee (an “Extension Fee”) on the Existing Maturity Date in an amount
equal to the product of (x) 0.25% multiplied by (y) the aggregate principal amount of Loans
of such Lender outstanding on the Existing Maturity Date (it being understood that the
payments required by this subclause (vii) shall be payable in connection with each
extension of the Maturity Date).
(c) Conflicting Provisions. This Section shall supersede any provisions in Section 9.08 to
the contrary.
SECTION 2.22. Releases. (a) In connection with any Permitted Collateral Asset Sale or Required
Dedication, the Collateral Agent or its duly authorized attorney-in-fact shall release the
applicable portion of the Mortgaged Properties or other Collateral subject to such Permitted
Collateral Assets Sale or Required Dedication from the Lien of the Security Documents (such portion
of the Mortgaged Properties, a “Released Parcel”); provided that (a) all of the applicable
conditions set forth in Section 6.05 have been satisfied, (b) an amount equal to the Required Land
Sales Proceeds with respect to such Permitted Collateral Asset Sale or Required Dedication will be
applied, concurrently with the closing of such Permitted Collateral Asset Sale or Required
Dedication, in accordance
with (and in the amount required by) Section 2.12(a)(ii), and (c) the Borrower shall have
submitted to the Collateral Agent not less than ten days (or such shorter period as is acceptable
to the Collateral Agent) prior to the date of such proposed release (which must be on a Business
Day), a UCC Amendment partially releasing such Lien, a reconveyance or release of Liens (and
related Loan Documents) for each Released Parcel (for execution by the Collateral Agent) in a form
appropriate for recordation in the applicable jurisdiction and otherwise satisfactory to the
Collateral Agent (or its agent) in its good faith discretion and all other documentation as the
Collateral Agent reasonably requires to be delivered by the Borrower in connection with such
release (collectively, the “Release Instruments”) for each Released Parcel (for execution by
Collateral Agent) together with an Officer’s Certificate certifying that (i) the release to be
effected will not violate the
42
terms of this Agreement, any applicable laws or Governmental Authorizations, or (ii) the release to
be effected will not impair or otherwise adversely affect the Liens on the Mortgaged Properties
(other than the Released Parcel) and the other rights of the Collateral Agent under the Loan
Documents not being released. Required Land Sales Proceeds with respect to such applicable Asset
Sale or Required Dedication will be paid to the Administrative Agent, concurrently with the closing
of such Asset Sale or Required Dedication, to be applied in accordance with (and in the amount
required by) Section 2.12(a)(ii). If any such Permitted Collateral Asset Sale shall result in any
Excess Land Sale Proceeds, such Excess Land Sale Proceeds shall be deposited into an account
subject to the Lien of the Collateral Agent.
(b) In connection with any Asset Sale (other than a Permitted Collateral Asset Sale or
Required Dedication), the Collateral Agent, at the request and sole expense of the Loan Parties,
shall execute and deliver to the Loan Parties all releases or other documents reasonably necessary
or desirable for the release of the Liens created by the Collateral Documents on the Collateral
subject to such Asset Sale.
(c) Any execution and delivery of releases or other documents pursuant to this Section 2.22
shall be without recourse to or representation or warranty by the Collateral Agent.
ARTICLE III
Representations and Warranties
Each of Holdings and the Borrower represents and warrants to the Administrative Agent, the
Collateral Agent and each of the Lenders, with respect to itself and each of its Subsidiaries that:
SECTION 3.01. Organization; Powers. Holdings, the Borrower and each of the Subsidiaries (a) is
duly organized, validly existing and in good standing under the laws of the jurisdiction of its
incorporation or organization, (b) has all requisite power and authority to own its property and
assets and to carry on its business as now conducted, (c) is qualified to do business in, and is in
good standing (where such concept is relevant) in, every jurisdiction where such qualification is
required, except where the failure so to qualify could not reasonably be expected to result in a
Material Adverse Effect, and (d)
has the power and authority to execute, deliver and perform its obligations under each of the
Loan Documents and each other agreement or instrument contemplated thereby to which it is a party
and, in the case of the Borrower, to borrow hereunder.
SECTION 3.02. Authorization. The Transaction Documents (a) have been duly authorized by all
requisite corporate and, if required, stockholder action and (b) will not (i) violate (A) any
provision of law, statute, rule or regulation, or of the certificate or articles of incorporation
or other constitutive documents or by-laws of Holdings, the Borrower or any Subsidiary except as
would not have a Material Adverse Effect or (B) any order of any Governmental Authority except as
would not have a Material Adverse Effect; (ii) violate or be in conflict with, result in a breach
of or constitute (alone
43
or with notice or lapse of time or both) a default under, or give rise to any right to accelerate
or to require the prepayment, repurchase or redemption of any obligation under any such material
indenture, agreement or other instrument to which Holdings, the Borrower or any Subsidiary is a
party or by which any of them or any of their property is or may be bound, including the “Material
Agreements” identified on Schedule 3.02 hereof, that (other than with respect to the Loan
Documents) could reasonably be expected to result in a Material Adverse Effect or (iii) result in
the creation or imposition of any Lien upon or with respect to any property or material assets now
owned or hereafter acquired by Holdings, the Borrower or any Subsidiary (other than any Lien
created hereunder or under the Security Documents or as expressly permitted hereunder) that (other
than with respect to the Loan Documents) could reasonably be expected to result in a Material
Adverse Effect.
SECTION 3.03. Enforceability. This Agreement has been duly executed and delivered by Holdings
and the Borrower and constitutes, and each other Loan Document when executed and delivered by each
Loan Party party thereto will constitute, a legal, valid and binding obligation of such Loan Party
enforceable against such Loan Party in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, moratorium or similar laws affecting the enforcement
of creditors’ rights generally and by equitable principles (whether enforcement is sought by
proceedings in equity or at law) and implied covenants of good faith and fair dealing.
SECTION 3.04. Governmental Approvals. Except as set forth on Schedule 3.04, no action, consent
or approval of, registration or filing with or any other action by any Governmental Authority
(other than a Gaming Authority) is or will be required to consummate the Transactions and enter
into the Loan Documents and borrow funds in connection therewith (provided that this representation
shall be repeated only with respect to the Loan Documents to the extent made following the Closing
Date), except for (a) the filing of Uniform Commercial Code financing statements and filings with
the United States Patent and Trademark Office and the United States Copyright Office, (b)
recordation of the Mortgages and (c) such as have been made or obtained and are in full force and
effect. Holdings, the Borrower and the Subsidiaries have made all necessary applications to and,
subject to any additional time to obtain such consents, approvals and rulings contemplated by
Section 5.16 or as set forth on Schedule 3.04, have procured all necessary consents, approvals and
favorable rulings of all applicable Gaming Authorities
to (i) pledge the Equity Interests of the Borrower, the Subsidiary Guarantors and their
respective subsidiaries, where relevant, pursuant to the Pledge Agreement and/or the Guarantee and
Collateral Agreement, (ii) the restrictions on transfer and hypothecation of the stock and equity
securities of such persons contained in Sections 6.02 and 6.05 of this Agreement, in the Pledge
Agreement and otherwise in the Loan Documents and (iii) otherwise consummate the Transactions and
to enter into the Loan Documents and borrow funds in connection therewith.
SECTION 3.05. Financial Statements. (a) The Borrower has heretofore furnished to the Lenders
(a) U.S. GAAP audited consolidated balance sheets and related statements of income, stockholders’
equity and cash flows of Aztar and its consolidated subsidiaries for the 2003, 2004 and 2005 fiscal
years, audited by and accompanied by the
44
opinion of (PricewaterhouseCoopers LLP), independent public accountants, (b) U.S. GAAP unaudited
consolidated balance sheets and related statements of income, stockholders’ equity and cash flows
of Holdings and its consolidated subsidiaries for (i) each subsequent fiscal quarter ended 45 days
before the Closing Date and (ii) to the extent available, each fiscal month after the most recent
fiscal quarter for which financial statements were received by the Lenders as described above and
ended 45 days before the Closing Date and certified by the chief financial officer of Holdings.
Such financial statements present fairly the financial condition and results of operations and cash
flows of Holdings and its consolidated subsidiaries as of such dates and for such periods. Such
balance sheets and the notes thereto disclose all material liabilities, direct or contingent, of
Holdings and its consolidated subsidiaries as of the dates thereof. Such financial statements were
prepared in accordance with GAAP applied on a consistent basis, subject, in the case of unaudited
financial statements, to year-end audit adjustments and the absence of footnotes.
(b) The Borrower has heretofore furnished to the Lenders its unaudited pro forma consolidated
balance sheet and related pro forma consolidated statements of income and cash flows as of and for
the twelve-month period ending on the last day of the most recently completed four-fiscal quarter
period ended at least 45 days prior to the Closing Date, in each case prepared after giving effect
to the Transactions as if they had occurred as of such date (in the case of such balance sheet) or
at the beginning of such period (in the case of such other financial statements). Such pro forma
financial statements have been prepared in good faith by Holdings, based on the assumptions used to
prepare the pro forma financial information contained in the Confidential Information Memorandum
(which assumptions are believed by Holdings on the date hereof and on the Closing Date to be
reasonable), are based on the best information available to Holdings as of the date of delivery
thereof, accurately reflect all adjustments required to be made to give effect to the Transactions
and present fairly on a pro forma basis the estimated consolidated financial position of Holdings
and its consolidated subsidiaries as of such date and for such period, assuming that the
Transactions had actually occurred at such date or at the beginning of such period, as the case may
be.
SECTION 3.06. No Material Adverse Change. No event, change or condition has occurred that has
had, or could reasonably be expected to have, a Material Adverse
Effect, since December 31, 2005.
SECTION 3.07. Title to Properties; Possession Under Leases. (a) Except as set forth on
Schedule 3.07, each of Holdings, the Borrower and the Subsidiaries has good and marketable fee
simple title to (including in connection therewith, valid easements), or valid leasehold interests
in, all its material properties and assets (including all Mortgaged Property), except for minor
defects in title that do not interfere with its ability to conduct its business as currently
conducted or to utilize such properties and assets for their intended purposes. All such material
properties and assets are free and clear of Liens, other than Liens expressly permitted by Section
6.02 or arising by operation of law.
(b) Except as set forth on Schedule 3.07, each of Holdings, the Borrower and the Subsidiaries
has complied with all material obligations under all material leases
45
(including all leases of Mortgaged Property) to which it is a party and all such leases are in full
force and effect. Each of Holdings, the Borrower and the Subsidiaries enjoys peaceful and
undisturbed possession under all such material leases. The granting of a Mortgage encumbering the
leasehold interest of Holdings, the Borrower or any Subsidiary in any Mortgaged Property (i) does
not require landlord consent or approval under the applicable lease that has not been obtained and
(ii) will not violate or result in a default under such lease.
(c) As of the Closing Date, none of Holdings, the Borrower or any Subsidiary Guarantor has
received any actual notice of, nor has any actual knowledge of, any pending or contemplated taking,
condemnation or other eminent domain proceeding affecting the Mortgaged Properties or any sale or
disposition thereof in lieu of condemnation.
(d) None of Holdings, the Borrower or any of the Subsidiaries is obligated under any right of
first refusal, option or other contractual right to sell, assign or otherwise dispose of any
Mortgaged Property or any interest therein.
(e) No Loan Party has received any notice of any material special assessment or proceeding
affecting the Tropicana Las Vegas Property, change in the tax rate or the assessed valuation of the
Tropicana Las Vegas Property or any other changes affecting the taxes, assessments or other charges
with respect to the Tropicana Las Vegas Property. To the Borrower’s actual knowledge, there are no
zoning or other land-use regulation proceedings or changes or proposed changes in any applicable
laws or regulations or, as of the Closing Date, the Existing Entitlements, in each case, which
could have a Material Adverse Effect on the value of the Tropicana Las Vegas Property.
SECTION 3.08. Subsidiaries. Schedule 3.08 sets forth as of the Closing Date a list of all
Subsidiaries and the percentage ownership interest of Holdings or the Borrower therein. The shares
of capital stock or other ownership interests so indicated on Schedule 3.08 are fully paid and
non-assessable and are owned by Holdings or the Borrower, directly or indirectly, free and clear of
all Liens (other than Liens created under the Security Documents).
SECTION 3.09. Litigation; Compliance with Laws. (a) Except as set forth on Schedule 3.09,
there are no actions, suits or proceedings at law or in equity or by or before any Governmental
Authority now pending or, to the actual knowledge of Holdings or the Borrower, threatened against
Holdings, the Borrower or any Subsidiary or any business, property or rights of any such person (i)
that involve any Loan Document or the Transactions or (ii) as to which there is a reasonable
possibility of an adverse determination and that, if adversely determined, could reasonably be
expected, individually or in the aggregate, to result in a Material Adverse Effect.
(b) Since the date of this Agreement, there has been no change in the status of the matters
disclosed on Schedule 3.09 that, individually or in the aggregate, has resulted in a Material
Adverse Effect.
46
(c) None of Holdings, the Borrower or any of the Subsidiaries or any of their respective
material properties or assets is in violation of, nor will the continued operation of their
material properties and assets as currently conducted violate, any law, rule or regulation
(including any zoning, building, Environmental Law, ordinance, code or approval or any building
permits) or any restrictions of record or agreements affecting the Mortgaged Property, or is in
default with respect to any judgment, writ, injunction, decree or order of any Governmental
Authority, where such violation or default would reasonably be expected to result in a Material
Adverse Effect.
(d) Certificates of occupancy and permits are in effect for each Mortgaged Property as
currently constructed, except where the failure to have the same could not reasonably be expected
to result in a Material Adverse Effect, and true and complete copies of such certificates of
occupancy as are available using commercially reasonable efforts have been delivered to the
Collateral Agent as mortgagee with respect to each Mortgaged Property.
SECTION 3.10. Agreements. None of Holdings, the Borrower or any of the Subsidiaries is in
default in any manner under any provision of any indenture or other agreement or instrument
evidencing Indebtedness, or any other material agreement or instrument to which it is a party or by
which it or any of its properties or assets are or may be bound, where such default would
reasonably be expected to result in a Material Adverse Effect.
SECTION 3.11. Federal Reserve Regulations. (a) None of Holdings, the Borrower or any of the
Subsidiaries is engaged principally, or as one of its important activities, in the business of
extending credit for the purpose of buying or carrying Margin Stock.
(b) No part of the proceeds of any Loan will be used, whether directly or indirectly, and
whether immediately, incidentally or ultimately, for any purpose that entails a violation of, or
that is inconsistent with, the provisions of the Regulations of the Board, including Regulation T,
U or X.
SECTION 3.12. Investment Company Act. None of Holdings, the Borrower or any Subsidiary is (a)
an “investment company” as defined in, or subject to regulation
under, the Investment Company Act of 1940.
SECTION 3.13. Tax Returns. Each of Holdings, the Borrower and the Subsidiaries has filed or
caused to be filed all Federal, state, local and (to the extent it has foreign operations) foreign
tax returns required to have been filed by it and has paid or caused to be paid all taxes due and
payable by it, except (a) taxes that are being contested in good faith by appropriate proceedings
and for which Holdings, the Borrower or such Subsidiary, as applicable, shall have set aside on its
books adequate reserves and (b) immaterial taxes so long as no material asset or portion of
Mortgaged Property of Holdings, the Borrower or any Subsidiary is in jeopardy of being seized,
levied upon or forfeited.
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SECTION 3.14. No Material Misstatements. None of (a) the Confidential Information Memorandum
or (b) any other written information, report, financial statement, exhibit or schedule furnished by
or on behalf of Holdings or the Borrower to the Administrative Agent or any Lender in connection
with the negotiation of any Loan Document or included therein or delivered pursuant thereto
contained, as of the date of such statement any material misstatement of fact or omitted to state
any material fact necessary to make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided that to the extent any such information, report,
financial statement, exhibit or schedule was based upon or constitutes a forecast or projection,
each of Holdings and the Borrower represents only that it acted in good faith and utilized
reasonable assumptions (based upon accounting principles consistent with the historical audited
financial statements of Holdings) and due care in the preparation of such information, report,
financial statement, exhibit or schedule (it being recognized that actual results may differ from
such forecasts or projections).
SECTION 3.15. Employee Benefit Plans. No ERISA Event has occurred or is reasonably expected to
occur that, when taken together with all other such ERISA Events, would reasonably be expected to
result in material liability of the Borrower or any of its ERISA Affiliates. Neither the Borrower
nor any of its ERISA Affiliates has nor has ever sponsored, maintained, contributed to or had any
obligation or liability with respect to any Plan subject to Title IV of ERISA, nor does the
Borrower nor any ERISA Affiliate have any present intention to sponsor, maintain, contribute or
have any obligation or liability with respect to any Plan subject to Title IV of ERISA.
SECTION 3.16. Environmental Matters. (a) Except as set forth in Schedule 3.16 and except with
respect to any other matters that, individually or in the aggregate, would not reasonably be
expected to result in a Material Adverse Effect, none of Holdings, the Borrower or any of the
Subsidiaries (including all operators and conditions at or in the Real Property Assets) and each of
the tenants, if any, under any leases or occupancy agreements affecting any portion of the Real
Property Assets (i) has failed to comply with any Environmental Law or to obtain, maintain or
comply with any permit, license or other approval required under any Environmental Law for any of
their operations, (ii) has contractually assumed any Environmental Liability of any person, (iii)
has received written notice of any claim with respect to any Environmental Liability or (iv) knows
of past or present actions, activities, circumstances, conditions, events or incidents,
including the Release or presence of any Hazardous Material (including underground tanks,
asbestos or disposal areas), which could reasonably be expected to form the basis of any claim for
Environmental Liability against any Loan Party or against any person whose liability for any such
claim any Loan Party has retained or assumed either contractually or by operation of law.
(b) No Lien in favor of any person relating to or in connection with any claim in respect of
Environmental Liability has been filed or has been attached to any Real Property Asset.
(c) The Borrower has provided, or has caused to be provided, to the Lenders all material
assessments, reports, data, results of investigations or audits that are in the
48
possession of or reasonably available to any Loan Party regarding environmental matters pertaining
to the Real Property Assets.
(d) Since the date of this Agreement, there has been no change in the status of the matters
disclosed on Schedule 3.16 that, individually or in the aggregate, has resulted in, or materially
increased the likelihood of, a Material Adverse Effect.
SECTION 3.17. Insurance. Schedule 3.17 sets forth a true, complete and correct description of
all insurance maintained by the Borrower, the Subsidiaries or by the Borrower or Aztar for the
Subsidiaries as of the Closing Date. As of each such date, such insurance is in full force and
effect and all premiums have been duly paid. The Borrower and the Subsidiaries have insurance in
such amounts and covering such risks and liabilities as are in accordance with normal industry
practice.
SECTION 3.18. Security Documents. (a) The Guarantee and Collateral Agreement, upon execution
and delivery thereof by the parties thereto, will be effective to create in favor of the Collateral
Agent, for the benefit of the Secured Parties, a legal, valid and enforceable security interest in
the Collateral (as defined in the Guarantee and Collateral Agreement) (or certificates or notes, as
applicable, presenting such Pledged Collateral) and the proceeds thereof except as enforceability
may be limited by applicable bankruptcy, insolvency, moratorium (or similar laws affecting the
enforcement of creditors’ rights generally), by equitable principles (whether enforcement is sought
by proceedings in equity or at law), implied covenants of good faith and fair dealing and by
applicable Gaming Laws (including licensing, qualification and suitability approvals required by
any Gaming Authority) and (i) when the Pledged Collateral (as defined in the Guarantee and
Collateral Agreement) is delivered to the Collateral Agent, the Lien created under Guarantee and
Collateral Agreement shall (subject to the further requirements of relevant Gaming Authorities)
constitute a fully perfected first priority Lien on, and security interest in, all right, title and
interest of the Loan Parties in such Pledged Collateral to the extent that a Lien in such Pledged
Collateral can be perfected by delivery, in each case prior and superior in right to any other
person (except with respect to (A) Liens expressly permitted under Section 6.02 and (B) Liens
having priority by operation of law), and (ii) when financing statements in appropriate form are
filed in the offices specified on Schedule 3.18(a), the Lien created under the Guarantee and
Collateral Agreement will (subject to the further requirements of relevant Gaming Authorities)
constitute a fully perfected Lien on, and security interest in, all right, title and interest of
the Loan Parties in such Collateral to the extent that a Lien in such Collateral can be perfected
by filing of financing statements (other than Intellectual Property, as defined in the Guarantee
and Collateral Agreement, and other Collateral with respect to which possession or control is
required for perfection), in each case prior and superior in right to any other person, other than
with respect to (A) Liens expressly permitted by Section 6.02 and (B) Liens having priority by law.
(b) Upon the recordation of the Guarantee and Collateral Agreement (or a short-form security
agreement in form and substance reasonably satisfactory to the Borrower and the Collateral Agent)
with the United States Patent and Trademark Office and the United States Copyright Office, together
with the duly completed financing statements in
49
appropriate form filed in the offices specified in Schedule 3.18(a), the Lien created under
the Guarantee and Collateral Agreement shall constitute a fully perfected Lien on, and security
interest in, all right, title and interest of the Loan Parties in the Intellectual Property (as
defined in the Guarantee and Collateral Agreement) in which a security interest may be perfected by
such filing in the United States and its territories and possessions, in each case prior and
superior in right to any other person other than with respect to (A) Liens expressly permitted by
Section 6.02 and (B) Liens having priority by operation of law (it being understood that subsequent
recordings in the United States Patent and Trademark Office and the United States Copyright Office
may be necessary to perfect a Lien on registered trademarks and patents, trademark and patent
applications and registered copyrights acquired by the Loan Parties after the date hereof).
(c) The Mortgages are effective to create in favor of the Collateral Agent, for the ratable
benefit of the Secured Parties, a legal, valid and enforceable Lien on all of the Loan Parties’
right, title and interest in and to the Mortgaged Property thereunder and the proceeds thereof, and
when the Mortgages are filed in the offices specified on Schedule 3.18(c), the Mortgages shall
constitute a fully perfected Lien on, and security interest in, all right, title and interest of
the Loan Parties in such Mortgaged Property and the proceeds thereof, in each case prior and
superior in right to any other person, other than with respect to the rights of persons pursuant to
(A) Liens expressly permitted by Section 6.02 and (B) Liens having priority by operation of law.
(d) Upon execution and delivery of the Pledge Agreements by the parties thereto, such
agreements will be effective to create in favor of the Collateral Agent, for the ratable benefit of
the Secured Parties, a legal, valid and enforceable security interest in the Pledged Collateral (as
defined in each of the Pledge Agreements) and the proceeds thereof except as enforceability may be
limited by applicable bankruptcy, insolvency, moratorium (or similar laws affecting the enforcement
of creditors’ rights generally), by equitable principles (whether enforcement is sought by
proceedings in equity or at law), implied covenants of good faith and fair dealing and by
applicable Gaming Laws (including licensing, qualification and suitability approvals required by
any Gaming Authority) and when the Pledged Collateral (or certificates or notes, as applicable,
presenting such Pledged Collateral) is delivered to the Collateral Agent, the Lien created under
such Pledge Agreements shall (subject to the further requirements of relevant Gaming Authorities)
constitute a fully perfected first priority Lien on, and security interest in, all right, title and
interest of the Loan Parties in such Pledged Collateral to the extent a Lien in such Pledged
Collateral can be perfected by delivery, in each case prior and superior in right to any other
person, other than with respect to the rights of persons pursuant to (A) Liens expressly permitted
by Section 6.02 and (B) Liens having priority by operation of law.
SECTION 3.19. Location of Real Property and Leased Premises. (a) Schedule 3.19(a) lists
completely and correctly as of the Closing Date all real property owned by the Borrower and the
Subsidiaries, the name of the record owner, the tax parcel identification number or similar
designation and the addresses thereof. The Borrower and the Subsidiaries own in fee all the real
property set forth on Schedule 3.19(a).
50
(b) Schedule 3.19(b) lists completely and correctly as of the Closing Date all real property
leased by the Borrower and the Subsidiaries and the addresses thereof. The Borrower and the
Subsidiaries have valid leases in all the real property set forth on Schedule 3.19(b), except as
noted thereon.
SECTION 3.20. Labor Matters. As of the date hereof and the Closing Date, there are no strikes
or lockouts against Holdings, the Borrower or any Subsidiary pending or, to the actual knowledge of
Holdings or the Borrower, threatened. The hours worked by and payments made to employees of
Holdings, the Borrower and the Subsidiaries have not been in violation of the Fair Labor Standards
Act or any other applicable Federal, state, local or foreign law dealing with such matters that
would reasonably be expected to have a Material Adverse Effect. All payments due from Holdings, the
Borrower or any Subsidiary on account of wages and employee health and welfare insurance and other
benefits that would reasonably be expected to have a Material Adverse Effect if not paid, have been
paid or accrued as a liability on the books of Holdings, the Borrower or such Subsidiary. The
consummation of the Transactions will not give rise to any right of termination or right of
renegotiation on the part of any union under any collective bargaining agreement to which Holdings,
the Borrower or any Subsidiary is bound.
SECTION 3.21. Solvency. Immediately after the consummation of the Transactions to occur on
the Closing Date and immediately following the making of each Loan and after giving effect to the
application of the proceeds of each Loan, (a) the fair value of the assets of each Loan Party, at a
fair valuation, will exceed its debts and liabilities, subordinated, contingent or otherwise; (b)
the present fair saleable value of the property of each Loan Party will be greater than the amount
that will be required to pay the probable liability of its debts and other liabilities,
subordinated, contingent or otherwise, as such debts and other liabilities become absolute and
matured; (c) each Loan Party will be able to pay its debts and liabilities, subordinated,
contingent or otherwise, as such debts and liabilities become absolute and matured; and (d) each
Loan Party will not have unreasonably small capital with which to conduct the business in which it
is engaged as such business is now being conducted and is proposed to be conducted following the
Closing Date.
SECTION 3.22. Transaction Documents. On the Closing Date, Holdings and the Borrower have
delivered to the Administrative Agent a complete and correct copy of the Merger Agreement
(including all schedules, exhibits, amendments, supplements and modifications thereto). As of the
Closing Date, to the knowledge of Holdings and the Borrower, none of Columbia Sussex Corporation,
Wimar Tahoe Corporation or WT-Columbia Development, Inc. or any other person party thereto is in
default in the performance or compliance with any material provisions thereof. As of the Closing
Date, to the knowledge of Holdings and the Borrower, all representations and warranties set forth
in the Merger Agreement were true and correct in all material respects at the time as of which such
representations and warranties were made (or deemed made).
SECTION 3.23. Sanctioned Persons. (a) The Borrower will not directly or indirectly use the
proceeds of the Loans or the Letters of Credit or otherwise make available such proceeds to any
person in violation of the U.S. sanctions administered by
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the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”); and (b) none of
Holdings, the Borrower or any Subsidiary, nor any director, officer, senior manager or Affiliate of
Holdings, the Borrower or any Subsidiary is (i) a person included in the Specially Designated
Nationals and Blocked Persons List, as published from time to time by OFAC, or (ii) currently
subject to any U.S. sanctions administered by OFAC; provided, however, that the scope of this
representation and warranty is limited to published U.S. regulatory requirements as at the date
such representation is given.
SECTION 3.24. Entitlements. As of the Closing Date, the Tropicana Las Vegas Property has
received Entitlements permitting, on the Tropicana Las Vegas Property, (i) 3,370 hotel units and
(ii) 836,000 square feet of building space for a resort hotel. Such Entitlements are identified on
Schedule 3.24. As of the Closing Date, all of the Existing Entitlements are in full force and
effect. All the Existing Entitlements are vested in the Mortgaged Properties, and the consummation
of the Transactions shall not affect the same. There are no unperformed obligations or conditions
with respect to the effectiveness of any of the Existing Entitlements that were or are required to
be completed as of the Closing Date, and there are no material uncured defaults or breaches under
any of the same which give rise to or are likely to give rise to a Material Adverse Effect. As of
the date hereof, neither Holdings nor the Borrower is aware of any defects or actual or potential
actions, challenges or proceedings by any third party or Governmental Authority with respect to the
Existing Entitlements.
SECTION 3.25. Zoning. All of the Mortgaged Properties are appropriately zoned for the conduct
of gaming thereon.
SECTION 3.26. Flood Control. Each Loan Party, the Tropicana Las Vegas Property and the use
and operations of the Tropicana Las Vegas Property are in compliance in all material respects with
the provisions of all flood control laws, ordinances and other regulations applicable to the
Tropicana Las Vegas Property (including laws, ordinances and regulations of the Xxxxx County Flood
Control District) and all agreements relating to flood control with respect to the Tropicana Las
Vegas Property.
ARTICLE IV
Conditions of Lending
The obligations of the Lenders to make Loans hereunder are subject to the satisfaction of the
following conditions:
(a) The Administrative Agent shall have received a notice of such Borrowing as required by
Section 2.03.
(b) The conditions set forth in Section 6.03(a) of the Merger Agreement (but only with respect
to representations and warranties that are material to the interests of the
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Lenders) shall be satisfied, and the representations and warranties made in Sections 3.01, 3.02,
3.03, 3.10, 3.11 and 3.12 and shall be true and correct in all material respects.
(c) At the time of and immediately after the making of such Loans, no Default or Event of
Default shall have occurred and be continuing (and for the purpose of this Section “continuing”
shall mean not remedied or unwaived).
(d) The Administrative Agent shall have received, on behalf of itself and the Lenders, a
satisfactory written opinion of (i) Milbank, Tweed, Xxxxxx & XxXxxx LLP, counsel for Holdings and
the Borrower, substantially to the effect set forth in Exhibit F-1, and (ii) each local counsel
listed on Schedule IV(d), substantially to the effect set forth in Exhibit F-2, in each case (A)
dated the Closing Date, (B) addressed to the Administrative Agent and the Lenders, and (C) covering
such other matters relating to the Loan Documents as the Administrative Agent shall reasonably
request, and Holdings and the Borrower hereby request such counsel to deliver such opinions.
(e) All material legal matters incident to the Loan Documents shall be reasonably satisfactory
to the Lenders and to the Administrative Agent.
(f) The Administrative Agent shall have received (i) a copy of the certificate or articles of
incorporation, including all amendments thereto, of each Loan Party, certified as of a recent date
by the Secretary of State of the state of its organization, and a certificate as to the good
standing of each Loan Party as of a recent date, from such Secretary of State; (ii) a certificate
of the Secretary or Assistant Secretary of each Loan Party dated the Closing Date and certifying
(A) that attached thereto is a true and complete copy of the by-laws of such Loan Party as in
effect on the Closing Date and at all times since a date prior to the date of the resolutions
described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions
duly adopted by the Board of Directors of such Loan Party authorizing the execution, delivery and
performance of the Loan Documents to which such person is a party and, in the case of the Borrower,
the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended
and are in full force and effect, (C) that the certificate or articles of incorporation of such
Loan Party have not been amended since the date of the last amendment thereto shown on the
certificate of good standing furnished pursuant to clause (i) above, and (D) as to the incumbency
and specimen signature of each officer executing any Loan Document or any other document delivered
in connection herewith on behalf of such Loan Party; and (iii) a certificate of another officer as
to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the
certificate pursuant to clause (ii) above.
(g) The Administrative Agent shall have received a certificate, dated the Closing Date and
signed by a Financial Officer of the Borrower, confirming compliance in all material respects with
the conditions precedent set forth in paragraphs (b) and (c) of this Article IV.
(h) The Administrative Agent shall have received all Administrative Agent Fees and other
amounts due and payable on or prior to the Closing Date (or be reasonably
53
satisfied that all Administrative Agent Fees and other amounts due and payable will be paid on the
Closing Date from the proceeds of the Loans), including, to the extent invoiced, reimbursement or
payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder
or under any other Loan Document.
(i) Subject to Section 5.16 or as provided in the Post-Closing Letter Agreement, the Security
Documents shall have been duly executed by each Loan Party that is to be a party thereto and shall
be in full force and effect on the Closing Date. The Collateral Agent on behalf of the Secured
Parties shall have a security interest in the Collateral of the type and priority described in each
Security Document (but subject to such Liens permitted by Section 6.02).
(j) The Collateral Agent shall have received a Perfection Certificate with respect to the Loan
Parties dated the Closing Date and duly executed by a Responsible Officer of Holdings and the
Borrower, and shall have received the results of a search of the Uniform Commercial Code filings
(or equivalent filings) made with respect to the Loan Parties in the states (or other
jurisdictions) of formation of such persons, in which the chief executive office of each such
person is located and in the other jurisdictions in which such persons maintain property, in each
case as indicated on such Perfection Certificate, together with copies of the financing statements
(or similar documents) disclosed by such search, and accompanied by evidence reasonably
satisfactory to the Collateral Agent that the Liens indicated in any such financing statement (or
similar document) would be permitted under Section 6.02 or have been or will be contemporaneously
released or terminated.
(k) (i) Each of the Security Documents, in form and substance satisfactory to the Lenders,
relating to each of the Mortgaged Properties shall have been duly executed by the parties thereto
and delivered to the Collateral Agent and shall be in full force and effect (including a Mortgage
with respect to the Tropicana Las Vegas Property in proper form for recording in the real property
records of Xxxxx County and such other Mortgages as are required to encumber all Mortgaged
Properties), (ii) title searches shall indicate that the Mortgaged Properties are not subject to
any Lien other than those permitted under Section 6.02 or the Collateral Agent has received
evidence reasonably satisfactory to it that any existing Lien will be released on the Closing Date,
(iii) each of such Security Documents encumbering Mortgaged Properties shall have been filed and
recorded in the recording office as specified on Schedule 3.18(c) or shall have been delivered to
the Administrative Agent in a proper form for filing, recordation or registration (or a lender’s
title insurance policy (or a signed pro forma title policy with fully executed closing
instructions), in form and substance acceptable to the Collateral Agent, insuring such Security
Document as a first lien on such Mortgaged Property (subject to any Lien permitted by Section 6.02)
shall have been received by the Collateral Agent) and, in connection therewith where filed or
recorded, the Collateral Agent shall have received evidence reasonably satisfactory to it of each
such filing and recordation, (iv) the Collateral Agent shall have received (A) an ALTA extended
coverage mortgagee title insurance policy (or a signed pro forma title policy with fully executed
closing instructions) (the “Mortgagee Policy”) issued by the Title Company with respect to the
Mortgaged Properties listed on Schedule 1.01(b), in an amount not less than to
54
$440,000,000, insuring fee simple title to such Mortgaged Properties vested in the Borrower and
insuring the Collateral Agent that such Mortgage creates valid and enforceable first priority
mortgage Liens on the Real Property Assets encumbered thereby, which Mortgagee Policy (1) shall
include all endorsements requested by Collateral Agent and (2) shall provide for affirmative
insurance and such reinsurance as the Collateral Agent may reasonably request, all of the foregoing
in form and substance reasonably satisfactory to the Collateral Agent; and evidence satisfactory to
the Collateral Agent that the Borrower has (i) delivered to the Title Company all certificates and
affidavits required by the Title Company in connection with the issuance of the Mortgagee Policy
and (ii) paid (or concurrently with such closing will pay) to the Title Company or to the
appropriate Governmental Authorities all expenses and premiums of the Title Company and all other
sums required in connection with the issuance of the Mortgagee Policy and all recording and stamp
taxes (including mortgage recording and intangible taxes) payable in connection with recording such
Mortgage in the Xxxxx County real property records, (B) an ALTA/ASCM survey with respect to the
Mortgaged Properties in form and substance reasonably satisfactory to the Collateral Agent, (C) an
Initial Appraisal showing an “as is” appraised value of the Mortgaged Properties of at least
$900,000,000 and otherwise in form and substance satisfactory to the Collateral Agent, (D) a
standard flood hazard determination form (FEMA Form 81-93) which states that no Mortgaged Property
is a Flood Hazard Property, (E) a legal opinion with respect to the enforceability of the Mortgages
and such other related matters as the Collateral Agent may reasonably request, in form and
substance reasonably satisfactory to the Collateral Agent and (F) such other documents as may be
requested by the Collateral Agent and the Lenders, insuring the Mortgages as valid first liens on
the Mortgaged Properties, free of Liens other than those permitted under Section 6.02, together
with any other surveys, abstracts, FIRREA-compliant appraisals and legal opinions required to be
furnished pursuant to the terms of the Mortgages or as reasonably requested by the Collateral Agent
or the Lenders.
(l) The Administrative Agent shall have received a copy of, or a certificate as to coverage
under, the insurance policies required by Section 5.02 and the applicable provisions of the
Security Documents, each of which shall be endorsed or otherwise amended to include a customary
lender’s loss payable endorsement and to name the Collateral Agent as additional insured.
(m) The Merger and the other Transactions shall have been, or substantially simultaneously
with the initial funding of Loans on the Closing Date shall be, consummated in accordance with
applicable law and on the terms described in the Merger Agreement and all other material related
documentation, in each case in the form provided to the Administrative Agent prior to the
commencement of the syndication of the Credit Facility (without any amendments, waivers or
alterations thereof that are material and adverse to the Lenders unless consented to by the
Administrative Agent, such consent not to be unreasonably withheld or delayed), including the
making of the Merger Agreement Deposit.
(n) OpCo Intermediate, JMBS Casino LLC and Columbia Properties Vicksburg, LLC shall have
received gross cash proceeds of not less than $515,000,000 from the
55
Equity Contribution and shall have contributed all such proceeds (other than the approximately
$13,250,000 received by JMBS Casino LLC and Columbia Properties Vicksburg, LLC) to OpCo in the form
of common equity.
(o) The Cash-On-Hand Amount shall have been, or substantially simultaneously with the initial
funding of Loans on the Closing Date, shall be utilized to pay a portion of the Merger
Consideration.
(p) The structure and equity ownership of OpCo Intermediate Holdings, OpCo, Holdings, the
Borrower and their respective subsidiaries shall be as set forth in Schedule IV(p) to this
Agreement.
(q) Columbia Entertainment shall have effected, or substantially simultaneous with the initial
funding of Loans on the Closing Date shall effect, the Contribution on terms reasonably
satisfactory to the Administrative Agent.
(r) OpCo shall have received gross cash proceeds of not less than $960,000,000 from the
issuance of the Subordinated Notes.
(s) OpCo shall have received gross cash proceeds of not less than $1,530,000,000 from the OpCo
Term Facility. The Administrative Agent shall have received copies of the OpCo Credit Agreement
(together with all schedules and exhibits thereto), certified by a Financial Officer as being
complete and correct.
(t) The Existing Debt Refinancing shall have occurred or the Administrative Agent shall have
received evidence reasonably satisfactory to it that the Existing Debt Refinancing will occur on
the Closing Date.
(u) No stockholder rights plan or “poison pill” shall have been triggered or otherwise become
exercisable in connection with the Transactions.
(v) The Lenders shall have received the financial statements and opinion referred to in
Section 3.05.
(w) The Administrative Agent shall have received a certificate from the chief financial
officer of Columbia Entertainment to the effect that each of (i) Holdings, the Borrower and the
Subsidiary Guarantors under this Agreement, taken together on a consolidated basis and (ii) OpCo
Intermediate, the Borrower and the subsidiary guarantors under the OpCo Credit Agreement, taken
together on a consolidated basis, in each case after giving effect to the Transactions and the
other Closing Date transactions contemplated hereby or thereby, are solvent.
(x) (i) All requisite Gaming Authorities, other material Governmental Authorities and other
material third parties shall have approved or consented to the Transactions and the other
transactions contemplated hereby to the extent required, all applicable appeal periods shall have
expired and there shall not be any pending or threatened litigation, governmental, administrative
or judicial action, actual or threatened, that could reasonably be expected to restrain, prevent or
impose materially burdensome
56
conditions on the Transactions and (ii) subject to Section 5.16, the requisite Gaming Authorities
and third parties shall have approved or consented to the Security Documents, to the extent
required.
(y) The Borrower shall have established the Escrow Interest Account, which account shall be
governed by an account control agreement satisfactory to the Administrative Agent and which shall
be funded on the Closing Date with the Escrow Deposit.
(z) OpCo Holdings shall have agreed in a written instrument satisfactory to the Administrative
Agent (i) not to engage in business activities or incur liabilities other than owning Equity
Interests of OpCo Intermediate Holdings and engaging in activities and liabilities incidental
thereto, including pledging such owned Equity Interests of OpCo Intermediate Holdings as security
for the Loans and (ii) to pay all amounts received as a dividend, distribution or other payment
from OpCo or OpCo Intermediate (other than a permitted tax distribution pursuant to the OpCo Credit
Agreement or to pay general corporate and overhead expenses incurred in the ordinary course, in
each case, solely to the extent permitted in the OpCo Credit Agreement) to Holdings or the
Borrower).
(aa) The Lenders shall have received, to the extent requested, all documentation and other
information required by regulatory authorities under applicable “know your customer” and anti-money
laundering rules and regulations, including the USA PATRIOT Act.
The Borrowing of the Loans shall be deemed to constitute a representation and warranty by the
Borrower and Holdings on the date of such Borrowing as to the matters specified in paragraphs (b)
and (c) of this Article IV.
ARTICLE V
Affirmative Covenants
Each of Holdings and the Borrower covenants and agrees with each Lender that so long as this
Agreement shall remain in effect and until the Commitments have been terminated and the principal
of and interest on each Loan and all Administrative Agent Fees and all other expenses or amounts
payable under any Loan Document shall have been paid in full, unless the Required Lenders shall
otherwise consent in writing, each of Holdings and the Borrower will, and will cause each of the
Subsidiaries to:
SECTION 5.01. Existence; Compliance with Laws; Businesses and Properties. (a) Do or cause to
be done all things necessary to preserve, renew and keep in full force and effect its legal
existence, except as otherwise expressly permitted under Section 6.05.
(b) Do or cause to be done all things necessary to obtain, preserve, renew, extend and keep in
full force and effect the licenses, permits, franchises, authorizations, patents, copyrights,
trademarks and trade names material to the conduct of its business; maintain and operate such
business as a Permitted Business; comply in all material respects with all applicable laws, rules,
regulations and decrees and orders of any Gaming Authorities
57
or Governmental Authority, whether now in effect or hereafter enacted; comply in all material
respects with the requirements of all flood control laws, ordinances and other regulations
applicable to the Tropicana Las Vegas Property (including laws, ordinances and regulations of the
Xxxxx County Flood Control District) and all agreements relating to flood control with respect to
the Tropicana Las Vegas Property; and except as permitted under Section 6.05, at all times maintain
and preserve all property material to the conduct of such business and keep such property in good
repair, working order and condition (ordinary wear and tear excepted) and from time to time make,
or cause to be made, all needful and proper repairs, renewals, additions, improvements and
replacements thereto necessary in order that the business carried on in connection therewith may be
properly conducted at all times, it being understood that the Borrower may commence demolition of
low rise and other structures (other than the gaming floor and the two hotel towers).
SECTION 5.02.
Insurance. (a) Keep its insurable Mortgaged Properties adequately insured at
all times by financially sound and reputable insurers; maintain such other insurance, to such
extent and against such risks, including fire and other risks insured against by extended coverage,
as is customary with companies in the same or similar businesses operating in the same or similar
locations, including public liability insurance against claims for personal injury or death or
property damage occurring upon, in, about or in connection with the use of any properties owned,
occupied or controlled by it; and maintain such other insurance as may be required by law.
(b) Cause all such policies covering any Collateral (except public liability, third party,
product liability and business interruption) to be endorsed or otherwise amended to include a
customary lender’s loss payable endorsement, in form and substance reasonably satisfactory to the
Administrative Agent and the Collateral Agent, which endorsement shall provide that, from and after
the Closing Date, if the insurance carrier shall have received written notice from the
Administrative Agent or the Collateral Agent of the occurrence of an Event of Default, the
insurance carrier shall pay all proceeds otherwise payable to the Borrower or the Loan Parties
under such policies directly to the Collateral Agent; cause all such policies to provide that
neither the Borrower, the Administrative Agent, the Collateral Agent nor any other party shall be a
coinsurer thereunder and, to the extent customarily available at a commercially reasonable cost, to
contain a “Replacement Cost Endorsement”, without any deduction for depreciation, and such other
provisions as the Administrative Agent or the Collateral Agent may reasonably require from time to
time to protect their interests; deliver certificates of each such policies (and if requested,
certified copies of all such policies) to the Collateral Agent; cause each such policy, to the
extent customarily available at a commercially reasonable cost, to provide that it shall not be
canceled, modified or not renewed (i) by reason of nonpayment of premium upon not less than 10
days’ prior written notice thereof by the insurer to the Administrative Agent and the Collateral
Agent (giving the Administrative Agent and the Collateral Agent the right to cure defaults in the
payment of premiums) or (ii) for any other reason upon not less than 30 days’ prior written notice
thereof by the insurer to the Administrative Agent and the Collateral Agent; deliver to the
Administrative Agent and the Collateral Agent, prior to the cancellation, modification or
nonrenewal of any such policy of insurance, a copy of a renewal or replacement policy (or other
evidence of renewal of a policy previously delivered to the Administrative
58
Agent and the Collateral Agent) together with evidence reasonably satisfactory to the
Administrative Agent and the Collateral Agent of payment of the premium therefor. Notwithstanding
the foregoing, insurance policies in place for the Borrower and its Subsidiaries on the Closing
Date may be canceled without further notice to the Administrative Agent or the Collateral Agent in
connection with the integration of Aztar’s properties into the pre-existing Columbia Entertainment
insurance program (provided such insurance policies of Columbia Entertainment shall be not less
favorable to the Lenders than Columbia Entertainment’s existing policies and shall cover all such
properties covered by Aztar’s existing policies). Upon completion of such integration, new
insurance certificates reflecting such integration shall be promptly delivered to the
Administrative Agent and the Collateral Agent.
(c) If at any time the area in which the Premises (as defined in the Mortgages) are located is
designated (i) a “flood hazard area” in any Flood Insurance Rate Map published by the Federal
Emergency Management Agency (or any successor agency), obtain flood insurance in such total amount
as the Administrative Agent, the Collateral Agent or the Required Lenders may from time to time
reasonably require, and otherwise comply with the National Flood Insurance Program as set forth in
the Flood Disaster Protection Act of 1973, as it may be amended from time to time, or (ii) a “Zone
1” area, obtain earthquake insurance in such total amount as the Administrative Agent, the
Collateral Agent or the Required Lenders may from time to time require.
(d) With respect to any Mortgaged Property, carry and maintain comprehensive general liability
insurance including the “broad form CGL endorsement” and coverage on an occurrence basis against
claims made for personal injury (including bodily injury, death and property damage) and umbrella
liability insurance against any and all claims, in no event for a combined single limit of less
than $25,000,000, naming the Collateral Agent as an additional insured, on forms reasonably
satisfactory to the Collateral Agent.
(e) Notify the Administrative Agent and the Collateral Agent promptly whenever any separate
insurance concurrent in form or contributing in the event of loss with that required to be
maintained under this Section 5.02 is taken out by any Loan Party; and promptly deliver to the
Administrative Agent and the Collateral Agent a duplicate original copy of such policy or policies.
SECTION 5.03.
Obligations and Taxes. Pay its Indebtedness and other obligations promptly and
in accordance with their terms and pay and discharge promptly when due all material taxes,
assessments and governmental charges or levies imposed upon it or upon its income or profits or in
respect of its property, before the same shall become delinquent or in default, as well as all
lawful claims for labor, materials and supplies or otherwise that, if unpaid, might give rise to a
Lien upon such properties or any part thereof;
provided,
however, that such payment and discharge
shall not be required with respect to any such tax, assessment, charge, levy or claim so long as
the validity or amount thereof shall be contested in good faith by appropriate proceedings and the
Borrower shall have set aside on its books adequate reserves with respect thereto in accordance
with GAAP and such contest operates to suspend collection of the contested
59
obligation, tax, assessment or charge and enforcement of a Lien and, in the case of a Mortgaged
Property, there is no risk of forfeiture of such property.
(a) within 90 days after the end of each fiscal year, its consolidated and consolidating
balance sheet and related statements of income, stockholders’ equity and cash flows showing the
financial condition of the Borrower and its consolidated Subsidiaries as of the close of such
fiscal year and the results of its operations and the operations of such Subsidiaries during such
year, together with comparative figures for the immediately preceding fiscal year, all audited by
Ernst & Young LLP or other independent public accountants of recognized national standing and
accompanied by an opinion of such accountants (which opinion shall be without a “going concern” or
like qualification or exception and without any qualification or exception as to the scope of such
audit) to the effect that such consolidated financial statements fairly present the financial
condition and results of operations of the Borrower and its consolidated Subsidiaries on a
consolidated and consolidating basis in accordance with GAAP consistently applied;
(b) within 45 days after the end of each of the first three fiscal quarters of each fiscal
year, its consolidated and consolidating balance sheet and related statements of income,
stockholders’ equity and cash flows showing the financial condition of the Borrower and its
consolidated Subsidiaries as of the close of such fiscal quarter and the results of its operations
and the operations of such Subsidiaries during such fiscal quarter and the then elapsed portion of
the fiscal year, together with comparative figures for the same periods in the immediately
preceding fiscal year, all certified by one of the Financial Officers of the Borrower as fairly
presenting the financial condition and results of operations of the Borrower and its consolidated
Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to
normal year-end audit adjustments;
(c) concurrently with any delivery of financial statements under paragraph (a) or (b) above,
(i) a certificate of the accounting firm (in the case of paragraph (a)) (to the extent that the
accounting firm is willing to provide such certificate in accordance with its customary business
practice) or Financial Officer (in the case of paragraph (b)) opining on or certifying such
statements (which certificate, when furnished by an accounting firm, may be limited to accounting
matters and disclaim responsibility for legal interpretations) (i) certifying that no Event of
Default or Default has occurred or, if such an Event of Default or Default has occurred, specifying
the nature and extent thereof and any corrective action taken or proposed to be taken with respect
thereto, (ii) a Qualified Appraisal Update that provides an Appraised Value of the then existing
Mortgaged Properties effective as of the last day of such fiscal year or quarter, as applicable,
together with a certificate of a Financial Officer demonstrating compliance with the covenant
contained in Section 6.11 and setting forth such computation in reasonable detail satisfactory to
the Administrative Agent, (iii) in the case of a certificate delivered with
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the financial statements required by paragraph (a) above, setting forth the Borrower’s calculation
of Excess Cash Flow and (iv) a narrative report describing the operations of the Borrower and its
Subsidiaries taken as a whole, for such fiscal year or fiscal quarter, as applicable, which report
shall include a summary describing material changes to the status, as of the end of such fiscal
year or fiscal quarter, as applicable, of Entitlements and other Governmental Authorizations
related to the Tropicana Las Vegas Property;
(d) within 90 days after the beginning of each fiscal year of the Borrower, a consolidated
projection for such fiscal year (showing revenue, EBITDA, capital expenditures for maintenance and
capital expenditures for expansion, each for such period) and, promptly when available, any
significant revisions of such projections;
(e) promptly after the same become publicly available, copies of all periodic and other
reports, proxy statements and other materials filed by Holdings, the Borrower or any Subsidiary
with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all
of the functions of said Commission, or with any national securities exchange, or distributed to
its shareholders, as the case may be;
(f) promptly after the receipt thereof by Holdings, the Borrower or any of their respective
subsidiaries, a copy of any final “management letter” received by any such person from its
certified public accountants relating to any deficiency or weakness in accounting practices or in
reported results of Holdings, the Borrower or any Subsidiary and the management’s response thereto
to the extent such accountants are willing to provide such letters;
(g) promptly after request by the Administrative Agent, copies of the Nevada “Regulation 6.090
Report” and “6-A Report” (until the effective date of the repeal of Regulation 6-A), copies of any
other report required by any Gaming Authority, and copies of any written communication to Holdings,
the Borrower or the Subsidiaries from any Gaming Authority advising it of a violation of, or
non-compliance with, any Gaming Law by Holdings, the Borrower or the Subsidiaries where such
violation or non-compliance could reasonably be expected to result in fines in excess of $100,000
or a License Revocation;
(h) promptly after the request by the Administrative Agent on its own behalf or on behalf of
any Lender, all documentation and other information that such Lender reasonably requests in order
to comply with its ongoing obligations under applicable “know your customer” and anti-money
laundering rules and regulations, including the USA PATRIOT Act;
(i) In the event that the Borrower or any of its ERISA Affiliates intend to establish,
sponsor, maintain or contribute or have any obligation or liability with respect to any Plan
subject to Title IV of ERISA, Borrower shall promptly, and in any event within 10 Business Days
prior to establishing, sponsoring, maintaining or contributing, as applicable, to such a Plan,
inform the Administrative Agent of such intention. Neither the Borrower nor any of its ERISA
Affiliates will establish, sponsor, maintain or
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contribute to any Plan that would result in any obligation or liability that would result in, or
could reasonably be expected to result in, a Material Adverse Effect;
(j) promptly following any request by the Administrative Agent on its own behalf or on behalf
of a Lender, on and after the effectiveness of the Pension Act, copies of (i) any documents
described in Section 101(k)(1) of ERISA that the Borrower or any of its ERISA Affiliates may
request with respect to any Multiemployer Plan and (ii) any notices described in Section 101(l)(1)
of ERISA that the Borrower or any of its ERISA Affiliates may request with respect to any Plan or
Multiemployer Plan; provided that if the Borrower or any of its ERISA Affiliates have not requested
such documents or notices from the administrator or sponsor of the applicable Plan or Multiemployer
Plan, the Borrower or its ERISA Affiliates shall promptly make a request for such documents or
notices from the such administrator or sponsor and shall provide copies of such documents and
notices promptly after receipt thereof; and
(k) promptly, from time to time, after reasonable notice is given, such other information
regarding the operations, business affairs and financial condition of Holdings, the Borrower or any
Subsidiary, or compliance with the terms of any Loan Document, as the Administrative Agent may
request on its own behalf or on behalf of any Lender.
SECTION 5.05.
Litigation and Other Notices. Furnish to the Administrative Agent (who shall
promptly notify the Lenders) prompt written notice after obtaining knowledge thereof of the
following:
(a) any Event of Default or Default, specifying the nature and extent thereof and the
corrective action (if any) taken or proposed to be taken with respect thereto;
(b) the filing or commencement of any action, suit or proceeding, whether at law or in equity
or by or before any Governmental Authority, against the Borrower or any Affiliate thereof that
could reasonably be expected to result in a Material Adverse Effect;
(c) the occurrence of any ERISA Event that, alone or together with any other ERISA Events that
have occurred, could reasonably be expected to result in liability of the Borrower and the
Subsidiaries in an aggregate amount exceeding $2,500,000;
(d) any other development that has resulted in, or would reasonably be expected to result in,
a Material Adverse Effect;
(e) any notice of change in the Borrower’s corporate rating by S&P, in the Borrower’s
corporate family rating by Xxxxx’x or in the ratings of the Credit Facility by S&P or Xxxxx’x, or
any notice from either such agency indicating its intent to effect such a change or to place the
Borrower or the Credit Facility on a “CreditWatch” or “WatchList” or any similar list, in each case
with negative implications, or its cessation of, or its intent to cease, rating the Borrower or the
Credit Facility;
(f) the occurrence of a casualty involving any property of a Loan Party involving a loss that
could reasonably be expected to exceed $2,500,000 (in sufficient detail
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describing the casualty and the extent to which any losses resulting from such casualty will be
covered by insurance); and
(g) any termination, modification, suspension or revocation of any Entitlement which could
reasonably be expected to have a Material Adverse Effect.
SECTION 5.06.
Information Regarding Collateral. (a) Furnish to the Administrative Agent
prompt written notice of any change (i) in any Loan Party’s corporate name, (ii) in the
jurisdiction of organization or formation of any Loan Party, (iii) in any Loan Party’s identity or
corporate structure or (iv) in any Loan Party’s Federal Taxpayer Identification Number. Holdings
and the Borrower agree not to effect or permit any change referred to in the preceding sentence
unless all filings have been made under the Uniform Commercial Code or otherwise that are required
in order for the Collateral Agent to continue at all times following such change to have a valid,
legal and perfected security interest in all the Collateral secured by it under any Security
Document. Holdings and the Borrower also agree promptly to notify the Administrative Agent if any
material portion of the Collateral is damaged or destroyed.
(b) In the case of the Borrower, each year, at the time of delivery of the annual financial
statements with respect to the preceding fiscal year pursuant to Section 5.04(a), deliver to the
Administrative Agent a certificate of a Financial Officer setting forth the information required
pursuant to Section 2 of the Perfection Certificate or confirming that there has been no change in
such information since the date of the Perfection Certificate delivered on the Closing Date or the
date of the most recent certificate delivered pursuant to this Section 5.06.
SECTION 5.07.
Maintaining Records; Access to Properties and Inspections; Maintenance of
Ratings. (a) Keep proper books of record and account in which full, true and correct entries in
conformity with GAAP and all requirements of law are made of all dealings and transactions in
relation to its business and activities. Each Loan Party will, and will cause each of its
subsidiaries to, permit any representatives designated by the Administrative Agent on its own
behalf or on behalf of any Lender (being an accountant, auditor, attorney, valuer or other
professional adviser of the Administrative Agent or such Lender), during normal business hours and
upon reasonable notice, to visit and inspect the financial records and the properties of such
person at reasonable times and as often as reasonably requested (but in no event more than twice
annually unless a Default or Event of Default shall have occurred and be continuing) and to make
extracts from and copies of such financial records, and permit any such representatives designated
by the Administrative Agent (on behalf of itself or any Lender) to discuss the affairs, finances
and condition of such person with the officers thereof and independent accountants therefor.
(b) In the case of Holdings and the Borrower, use commercially reasonable efforts to cause the
Credit Facility to be continuously rated by S&P and Xxxxx’x, and in the case of the Borrower, use
commercially reasonable efforts to maintain a corporate rating from S&P and a corporate family
rating from Xxxxx’x, in each case in respect of the Borrower.
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SECTION 5.08.
Use of Proceeds. Use the proceeds of the Loans only for the purposes specified
in the introductory statement to this Agreement.
SECTION 5.09.
Employee Benefits. (a) Comply in all material respects with the applicable
provisions of ERISA and the Code, solely as it relates to Plans, and (b) furnish to the
Administrative Agent as soon as possible after, and in any event within ten days after any
responsible officer of Holdings, the Borrower or any ERISA Affiliate knows or has reason to know
that, any ERISA Event has occurred that, alone or together with any other ERISA Event could
reasonably be expected to result in liability of Holdings, the Borrower or any ERISA Affiliate in
an aggregate amount exceeding $2,500,000, a statement of a Financial Officer of Holdings or the
Borrower setting forth details as to such ERISA Event and the action, if any, that Holdings or the
Borrower proposes to take with respect thereto.
SECTION 5.10.
Compliance with Environmental Laws. Comply, and, if applicable, cause all
lessees and other persons occupying its properties to comply, in all material respects with all
Environmental Laws applicable to its operations and properties; obtain and renew all material
environmental permits necessary for its operations and properties; and promptly conduct any
remedial action or investigation required by a relevant Governmental Authority or required by
Environmental Law and in material compliance with Environmental Laws;
provided,
however, that none
of Holdings, the Borrower or any Subsidiary shall be required to undertake any such investigation
or remedial action to the extent that its obligation to do so is being contested in good faith and
by proper proceedings and appropriate reserves are being maintained with respect to such
circumstances in accordance with GAAP.
SECTION 5.11.
Preparation of Environmental Reports. If a Default caused by reason of a breach
of Section 3.16 or Section 5.10 shall have occurred and be continuing for more than 30 days without
Holdings, the Borrower or any Subsidiary commencing activities reasonably likely to cure such
Default, at the written request of the Required Lenders through the Administrative Agent, provide
to the Lenders within 45 days after such request, at the expense of the Loan Parties, an
environmental assessment report regarding the matters which are the subject of such Default
prepared by an environmental consulting firm reasonably acceptable to the Administrative Agent and
indicating the presence or absence of Hazardous Materials and the estimated cost of any compliance,
investigation or remedial action in connection with such Default.
SECTION 5.12.
Further Assurances. (a) Execute any and all further documents, financing
statements, agreements and instruments, and take all further action (including filing Uniform
Commercial Code and other financing statements, mortgages and deeds of trust) that may be required
under applicable law, or that the Required Lenders, the Administrative Agent or the Collateral
Agent may reasonably request, in order to effectuate the transactions contemplated by the Loan
Documents and in order to grant, preserve, protect and perfect the validity and first priority of
the security interests created or intended to be created by the Security Documents. In addition,
from time to time, the Borrower will, at its cost and expense, promptly secure the Obligations by
pledging or creating, or causing to be pledged or created, perfected security interests with
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respect to such of its assets and properties as the Administrative Agent or the Required Lenders
shall designate (it being understood that it is the intent of the parties that the Obligations
shall be secured by substantially all the assets (including all Real Property Assets) of the
Borrower and the Subsidiaries (including all Real Property Assets and other properties acquired
subsequent to the Closing Date)). Such security interests and Liens will be created under the
Security Documents and other security agreements, mortgages, deeds of trust and other instruments
and documents in form and substance reasonably satisfactory to the Collateral Agent, and the
Borrower shall deliver or cause to be delivered to the Lenders all such instruments and documents
(including legal opinions, title insurance policies, lien searches and FIRREA-compliant appraisals)
as the Collateral Agent shall reasonably request to evidence compliance with this Section. The
Borrower agrees to provide such evidence as the Collateral Agent shall reasonably request as to the
perfection and priority status of each such security interest and Lien. In furtherance of the
foregoing, the Borrower will give prompt notice to the Administrative Agent of the acquisition by
it or any of the Subsidiaries of any Real Property Asset (or any interest in any Real Property
Asset) having a value in excess of $2,500,000.
(b) Upon the formation by any of the Loan Parties of any Subsidiary, the Borrower shall cause
the person so acquired or formed to become a Subsidiary Guarantor of the Obligations. Such person
shall become a Loan Party by executing the Guarantee and Collateral Agreement and each applicable
Security Document in favor of the Collateral Agent. In addition, (i) such person shall execute and
deliver such agreements and documents as the Administrative Agent, Collateral Agent or the Required
Lenders may reasonably request to grant a first priority perfected Lien in respect of substantially
all of its real and personal property in favor of the Collateral Agent and the Lenders, and (ii)
the Loan Parties owning equity interests in such person shall pledge all such equity interests in
such person (subject to any necessary Gaming Authority approval, which Holdings and the Borrower
agree to use their best efforts to obtain).
(c) Without in any way limiting the generality of the foregoing, if requested in writing by
the Collateral Agent, with respect to each Real Property Asset that is subject to a Mortgage
pursuant to Sections 5.12(a) or 5.12(b), provide (or in the case of the following clause (v), use
commercially reasonable efforts to provide) the Collateral Agent with (i) ALTA extended coverage
mortgagee title insurance policy covering such Mortgaged Properties in an amount at least equal to
the purchase price of such Mortgaged Properties (or such other amount as shall be reasonably
specified by the Collateral Agent), (ii) an ALTA/ACSM survey with respect to such Mortgaged
Properties in form and substance reasonably satisfactory to the Collateral Agent, (iii)
environmental reports which provide a reasonably detailed environmental assessment of such Real
Property Asset, in form and substance, and from an independent environmental assessment firm,
reasonably satisfactory to the Collateral Agent, (iv) title reports issued by the Title Company
with respect to such Mortgaged Properties in form and substance satisfactory to the Collateral
Agent (and which may include Liens permitted by Section 6.02) and (v) any consents or estoppels
reasonably deemed necessary or advisable by the Collateral Agent in connection with the Mortgages
relating to such Mortgaged Properties, in form and substance reasonably satisfactory to the
Collateral Agent.
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(d) Notwithstanding anything to the contrary in paragraph (a) or (b) of this Section 5.12, no
Foreign Subsidiary shall be required to grant a security interest in its assets to secure the
Obligations or to guarantee the Obligations to the extent the granting of such security interest or
the making of such guarantee (i) would result in adverse tax consequences to the Borrower or any
other Loan Party (as certified to the Administrative Agent by a Financial Officer of the Borrower)
or (ii) is prohibited by applicable law.
SECTION 5.13.
Interest Rate Protection. No later than the 30th day after the Closing Date,
the Borrower shall enter into, and for a minimum of 18 months thereafter maintain, Hedging
Agreements acceptable to the Administrative Agent that result in at least 100% of the aggregate
principal amount of the Loans being effectively subject to a fixed or maximum interest rate
acceptable to the Administrative Agent.
SECTION 5.14.
Proceeds of Certain Dispositions. If, as a result of the receipt of any cash
proceeds by the Borrower or any Subsidiary in connection with any sale, transfer, lease or other
disposition of any asset the Borrower would be required by the terms of any instrument governing
subordinated debt to make an offer to purchase any subordinated debt, then, in the case of the
Borrower or any Subsidiary, prior to the first day on which the Borrower would be required to
commence such an offer to purchase, (i) prepay Loans in accordance with Section 2.11 or (ii)
acquire assets in a manner that is permitted hereby, in each case in a manner that will eliminate
any such requirement to make such an offer to purchase.
SECTION 5.15.
Escrow Interest Account. (a) On the Closing Date, pay or cause to be paid
directly into the Escrow Interest Account the Escrow Deposit and maintain such Escrow Interest
Account until the earlier of (i) the Maturity Date or (ii) such date that all Obligations are paid
in full, in immediately available funds.
(b) In the event the Hedging Agreements entered into pursuant to Section 5.13 result in an
effective fixed rate of interest in excess of the interest rate assumed in determining the amount
of the Escrow Deposit on the Closing Date, the Borrower shall promptly make an additional deposit
into the Escrow Interest Account to cover any shortfall in such initial Escrow Deposit.
(c) The Borrower shall not withdraw or cause the withdrawal of any amounts therein during such
period other than for the application of amounts towards interest payments in respect of the Loans
pursuant to Section 2.18(a); provided that prior to the one-year anniversary of the Closing Date,
in the event (and to the extent) the Borrower has sufficient cash flow from its ongoing operations,
(x) the Borrower shall make payments of interest from such funds and not from the application of
funds in the Escrow Interest Account and (y) the Borrower shall maintain in the Escrow Interest
Account sufficient funds to pay in full the expected interest payments on the Loans for the next
succeeding 12-month period; provided, further, that the Borrower shall give the Administrative
Agent written notice of the application of any funds in the Escrow Interest Account substantially
contemporaneously with any such application thereof.
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(d) On the first anniversary of the Closing Date, in the event the Escrow Interest Account
contains funds in excess of an amount sufficient to pay in full the expected interest payments on
the Loans for the next six-month period (any such excess, the “Excess Escrowed Interest”), you may
request (and the Administrative Agent shall agree upon request) that the Administrative Agent
release such funds from the Escrow Interest Account and apply the Excess Escrowed Interest in
accordance with Section 2.12(d) hereof.
SECTION 5.16.
Approvals to Pledge Agreements. In the event that Holdings and the Borrower
have not obtained all required approvals of all relevant Gaming Authorities to the Security
Documents prior to the Closing Date, Holdings and the Borrower shall use commercially reasonable
efforts to promptly obtain, and shall in any event receive, such approvals within 150 days
following the Closing Date (or such later date as the Administrative Agent shall determine in its
reasonable discretion). The Administrative Agent and the Lenders acknowledge that all such
approvals are within the discretion of the relevant Gaming Authorities and agree that no pledge of,
nor restriction upon the hypothecation or transfer of, the equity securities of Holdings, the
Borrower, or any of their respective subsidiaries which are Nevada gaming licensees may be
effective unless and until Holdings or the Borrower, as applicable, has made all necessary
applications to and procure all necessary consents, approvals and favorable rulings of the Nevada
Gaming Commission and any other relevant Gaming Authorities. The Administrative Agent and the
Lenders also acknowledge that further proceedings may be required for the Administrative Agent and
the Lenders to exercise any remedies set forth in any Security Documents.
SECTION 5.17.
Environmental Disclosure. (a) Promptly advise the Administrative Agent in
writing and in reasonable detail of (i) any Release or threatened Release of any Hazardous
Materials required to be reported to any Governmental Authority under any applicable Environmental
Laws and which would reasonably be expected to result in a Material Environmental Liability, (ii)
any written communications with respect to any pending or threatened claims in respect of
Environmental Liabilities and any material written communications with respect to any Release or
threatened Release of Hazardous Materials, in any case, the existence of which would reasonably be
expected to result in a Material Environmental Liability, (iii) any Cleanup performed by Holdings,
any of the Loan Parties or any other person in response to any Hazardous Materials on, under or
about any Real Property Asset, the existence of which would reasonably be expected to result in a
Material Environmental Liability, (iv) Holdings’ or any Loan Party’s discovery of any occurrence or
condition on any property that would reasonably be expected to result in a Lien pursuant to an
Environmental Law to be made upon any Real Property Asset and (v) any written request for
information from any Governmental Authority that suggests such agency is investigating facts,
conditions, events or circumstances which would reasonably be expected to give rise to a Material
Environmental Liability.
(b) Promptly notify the Administrative Agent of any proposed acquisition of stock, assets, or
property by Holdings or any of the other Loan Parties that could
67
reasonably be expected to expose Holdings or any of the other Loan Parties to, or result in, a
Material Environmental Liability.
(c) At their own expense, provide copies of such documents or information as the
Administrative Agent may reasonably request in relation to any matters relevant to this Section
5.17.
SECTION 5.18.
Title. Warrant and defend (a) its title to the Collateral and every part
thereof, subject only to Liens permitted hereunder (including Liens permitted pursuant to Section
6.02 and Permitted Title Exceptions) and (b) the validity, perfection and priority of the Liens of
the applicable Security Documents, subject only to Liens permitted hereunder (including Liens
permitted pursuant to Section 6.02), in each case against the claims of all persons whomsoever.
The Borrower shall reimburse the Collateral Agent for any losses, costs, damages or expenses
(including reasonable attorneys’ fees and court costs) incurred by the Collateral Agent if an
interest in any of the Collateral, other than as permitted hereunder, is claimed by another person
and such claim is sustained by a final order of a court of competent jurisdiction or by final
arbitration award.
SECTION 5.19.
Closing of Tropicana Las Vegas Property. Prior to discontinuing and permanently
closing the business operations (or a substantial portion thereof, it being understood that this
Section 5.19 shall not apply if the two hotel towers and the gaming floor remain operational) of
the Tropicana Las Vegas Property (the “
Tropicana Las Vegas Closing”), the Borrower shall (i) not
less than 30 days prior to the Tropicana Las Vegas Closing Effective Date, provide written notice
of the Tropicana Las Vegas Closing to the Administrative Agent, (ii) not less than ten days prior
to the Las Vegas Closing Effective Date, deliver to the Administrative Agent a carrying costs
budget with respect to the Tropicana Las Vegas Property (which shall include estimates for the
payment of taxes and costs associated with obtaining and maintaining permits and licenses, if
applicable, and any interest required to be paid hereunder) for the period beginning on the
effective date of the Tropicana Las Vegas Closing (the “
Tropicana Las Vegas Closing Effective
Date”) and ending on the Existing Maturity Date (the “
Carrying Costs Budget”), based on good faith
estimates and assumptions made by the management of the Borrower and in form and substance
reasonably satisfactory to the Administrative Agent, (iii) have established an account (the
“
Carrying Costs Reserve Account”) with the Administrative Agent or with a financial institution
reasonably satisfactory to the Administrative Agent, which account shall be governed by an account
control agreement reasonably satisfactory to the Administrative Agent and (iv) have deposited into
the Carrying Costs Reserve Account an amount necessary to fund carrying costs (as reflected in the
Carrying Costs Budget delivered in accordance with clause (ii) above). The Borrower shall maintain
the Carrying Costs Reserve Account until the earlier of (i) the Maturity Date or (ii) such date
that all Obligations are paid in full, in immediately available funds;
provided the Borrower shall
not withdraw or cause the withdrawal of any amounts therein during such period other than for the
application of amounts towards payments in respect of costs of the type reflected in the Carrying
Costs Budget;
provided, further, that in no event shall the aggregate amount in the Carrying Cost
Reserve Account
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be less than an amount necessary to pay for all unpaid amounts set forth in the Carrying Costs
Budget, as updated from time to time in accordance with Section 2.21(b)(vi).
ARTICLE VI
Each of Holdings and the Borrower covenants and agrees with each Lender that, so long as this
Agreement shall remain in effect and until the Commitments have been terminated and the principal
of and interest on each Loan, all Administrative Agent Fees and all other expenses or amounts
payable under any Loan Document have been paid in full, unless the Required Lenders shall otherwise
consent in writing, neither Holdings nor the Borrower will, nor will they cause or permit any of
the Subsidiaries to:
SECTION 6.01.
Indebtedness. Incur, create, assume or permit to exist any Indebtedness,
except:
(a) Indebtedness existing on the date hereof and set forth in Schedule 6.01 and any
extensions, renewals, refinancings or replacements of such Indebtedness to the extent the
principal amount of such Indebtedness is not increased (plus the amount of any financing
fees, commissions, prepayment penalties and other costs and expenses associated therewith),
neither the final maturity nor the weighted average life to maturity of such Indebtedness
is decreased, such Indebtedness, if subordinated to the Obligations, remains so
subordinated on terms not materially less favorable to the Lenders, and the original
obligors in respect of such Indebtedness remain the only obligors thereon;
(b) Indebtedness created hereunder and under the other Loan Documents;
(c) intercompany Indebtedness of the Borrower and the Subsidiaries to the extent
permitted by Section 6.04(c);
(d) (i) Indebtedness under performance bonds or with respect to workers’ compensation
claims, property casualty or liability insurance, take-or-pay obligations in supply
arrangements and self insurance obligations in each case incurred in the ordinary course
of business and (ii) Indebtedness under performance, surety, appeal or indemnity bonds
required by Governmental Authorities in connection with the development (if any) of the
Tropicana Las Vegas Property;
(e) Indebtedness incurred by the Borrower or the Subsidiaries with respect to Hedge
Agreements in the ordinary course of business and not for speculative purposes;
(f) (i) Indebtedness incurred by the Borrower or the Subsidiaries in respect of
netting services, overdraft protections and otherwise in connection with deposit accounts,
in each case, other than Indebtedness for borrowed money and
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(ii) Indebtedness arising from the honoring of a check or draft drawn against insufficient
funds;
(g) guarantees and any other contingent obligations of the Borrower and the
Subsidiaries in respect of Indebtedness otherwise permitted hereunder (both before or after
any liability associated therewith becomes fixed);
(h) unsecured senior subordinated or subordinated Indebtedness of the Borrower and the
Subsidiaries incurred to (i) repay the Loans or (ii) pay for capital improvements
(including permitted demolition) to the Tropicana Las Vegas Properties; provided that, in
each case, (A) no scheduled principal repayments, prepayments, redemptions or sinking fund
or like payments of such unsecured senior subordinated or subordinated indebtedness shall
be required (and, in respect of Indebtedness incurred pursuant to sub-clause (ii) above,
cash interest payments shall not be permitted or required) prior to the 91st day following
the Outside Maturity Date; (B) the terms of such unsecured senior subordinated or
subordinated indebtedness shall be not more restrictive in any material respect on the Loan
Parties than the provisions of the Subordinated Note Documents; (C) the terms of the
subordination shall be reasonably satisfactory to the Administrative Agent in all respects
and (D) no Default or Event of Default shall have occurred and be continuing at the time
such Indebtedness is incurred or would result therefrom; and
(i) other Indebtedness of the Borrower or the Subsidiaries (not listed in paragraphs
(a) through (h) above) in an aggregate principal amount not exceeding $10,000,000 at any
time outstanding.
SECTION 6.02.
Liens. Create, incur, assume or permit to exist any Lien on any property or
assets (including Equity Interests or other securities of any person, including the Borrower or any
Subsidiary) now owned or hereafter acquired by it or on any income or revenues or rights in respect
of any thereof (collectively referred to in this Section 6.02 as the “
Assets”), except:
(a) Liens on Assets of the Borrower and the Subsidiaries existing on the date hereof
and set forth in Schedule 6.02 (or to the extent not listed in Schedule 6.02, where the
fair market value of the Assets to which such Lien attaches is less than $1,000,000);
provided that such Liens shall secure only those obligations which they secure on the date
hereof and extensions, renewals and replacements thereof permitted hereunder;
(b) any Lien created under the Loan Documents;
(c) any Lien existing on any Assets prior to the acquisition thereof by the Borrower
or any Subsidiary or existing on any Assets of any person that becomes a Subsidiary after
the date hereof prior to the time such person becomes a Subsidiary, as the case may be;
provided that (i) such Lien is not created in contemplation of or in connection with such
acquisition or such person becoming
70
a Subsidiary, (ii) such Lien does not apply to any other Assets of Holdings, the Borrower
or any Subsidiary and (iii) such Lien secures only those obligations which it secures on
the date of such acquisition or the date such person becomes a Subsidiary, as the case may
be;
(d) Liens for taxes not yet due or which are being contested in compliance with
Section 5.03;
(e) landlord’s, banks’, carriers’, warehousemen’s, mechanics’, materialmen’s,
repairmen’s or other like Liens arising in the ordinary course of business (or imposed by
law) and securing obligations that are not due and payable or which are being contested in
compliance with Section 5.03;
(f) pledges and deposits made in the ordinary course of business in compliance with
workmen’s compensation, unemployment insurance and other social security laws or
regulations;
(g) deposits to secure the performance of bids, trade contracts (other than for
Indebtedness), leases (other than Capital Lease Obligations), subleases, statutory
obligations, surety and appeal bonds, performance bonds and other obligations of a like
nature incurred in the ordinary course of business;
(h) zoning restrictions, easements, encroachments, rights-of-way, restrictions on use
of real property and other similar encumbrances incurred in the ordinary course of
business which, in the aggregate, are not substantial in amount and do not materially
detract from the value of the Assets subject thereto or interfere with the ordinary
conduct of the business of the Borrower or any of its Subsidiaries;
(i) Liens securing Indebtedness permitted under Section 6.01(d) and purchase money
security interests in real property, improvements thereto or equipment or slot machines
hereafter acquired (or, in the case of improvements, constructed) by the Borrower or any
Subsidiary; provided that (i) such security interests secure Indebtedness permitted by
Section 6.01, (ii) such security interests are incurred, and the Indebtedness secured
thereby is created, within 180 days after such acquisition (or construction), (iii) the
Indebtedness secured thereby does not exceed 100% of the lesser of the cost or the fair
market value of such real property, improvements or equipment at the time of such
acquisition (or completion of construction or improvement) and (iv) such security
interests do not apply to any other property or assets of the Borrower or any Subsidiary;
(j) any interest or title of a lessor or sublessor under any lease of real estate
entered into by the Borrower or any Subsidiary in the ordinary course of business;
(k) Liens in favor of customs and revenue authorities arising as a matter of law to
secure the payment of customs duties in connection with the importation of goods;
71
(l) receipt of progress payments and advances from customers in the ordinary course
of business to the extent the same creates a Lien on the related inventory and proceeds
thereof;
(m) Liens solely on xxxx xxxxxxx money deposits made by the Borrower or any
Subsidiary in connection with a letter of intent or purchase agreement permitted
hereunder;
(n) purported Liens evidenced by the filing of precautionary Uniform Commercial Code
financing statements relating solely to operating leases for personal property entered
into in the ordinary course of business;
(o) licenses of patents, trademarks and other intellectual property rights granted by
the Borrower or the Subsidiaries in the ordinary course of business;
(p) Liens arising out of consignment or similar arrangements for the sale by the
Borrower or the Subsidiaries of goods through third parties in the ordinary course of
business;
(q) Liens arising out of judgments or awards which do not result in a Default or
Event of Default;
(r) Permitted Title Exceptions; and
(s) other Liens with respect to obligations that do not exceed $10,000,000 at any one
time outstanding.
Notwithstanding the foregoing, with respect to the Mortgaged Properties, no Liens except the
Permitted Title Exceptions shall be senior or prior to the Liens under the Mortgages.
This Section 6.02 shall not be construed as a restriction upon the hypothecation or transfer of the
equity securities of any gaming licensee unless and until all required approvals of relevant Gaming
Authorities have been obtained.
SECTION 6.03.
Sale and Lease-Back Transactions. Enter into any arrangement, directly or
indirectly, with any person whereby it shall sell or transfer any property, real or personal, used
or useful in its business, whether now owned or hereafter acquired, and thereafter rent or lease
such property or other property which it intends to use for substantially the same purpose or
purposes as the property being sold or transferred unless (a) the sale or transfer of such property
is permitted by Section 6.05 and (b) any Capital Lease Obligations, Synthetic Lease Obligations or
Liens arising in connection therewith that are permitted by Sections 6.01 and 6.02, as the case may
be.
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SECTION 6.04.
Investments, Loans and Advances. Purchase, hold or acquire any Equity
Interests, evidences of indebtedness or other securities of, make or permit to exist any loans or
advances to, or make or permit to exist any investment or any other interest in, any other person,
except:
(a) (i) investments by Holdings, the Borrower and the Subsidiaries existing on the
date hereof in the Equity Interests of the Loan Parties and (ii) additional investments by
Holdings, the Borrower and the Subsidiaries in the Equity Interests of the Loan Parties;
provided that any such Equity Interests held by a Loan Party shall be pledged pursuant to
the Guarantee and Collateral Agreement or a Pledge Agreement (subject to the limitations
applicable to voting stock of a Foreign Subsidiary referred to therein);
(c) loans or advances made by the Borrower to any Subsidiary and made by any
Subsidiary to Holdings, the Borrower or any other Subsidiary; provided that (i) any such
loans and advances made by a Loan Party shall be evidenced by a global note or promissory
note pledged to the Collateral Agent for the ratable benefit of the Secured Parties
pursuant to the Guarantee and Collateral Agreement or a Pledge Agreement and (ii) the
amount of such loans and advances made by Loan Parties to Subsidiaries that are not Loan
Parties shall be subject to the limitation set forth in clause (a) above;
(d) investments received in connection with trade credit or notes receivable and
investments received in satisfaction or partial satisfaction thereof from financially
troubled account debtors or the bankruptcy or reorganization of, or settlement of
delinquent accounts and disputes with, customers and suppliers, in each case in the
ordinary course of business;
(e) the Borrower and the Subsidiaries may make loans and advances in the ordinary
course of business to their respective directors, officers and employees so long as the
aggregate principal amount thereof at any time outstanding (determined without regard to
any write-downs or write-offs of such loans and advances) shall not exceed $5,000,000
(excluding for purposes of such cap travel and entertainment expenses to the extent made
for bona fide business purposes);
(f) the Borrower and the Subsidiaries may enter into Hedging Agreements that (i) are
required by Section 5.13 or (ii) are not speculative in nature;
(g) deposits, prepayments and other credits to suppliers made in the ordinary course
of business;
(h) each Loan Party may make investments arising out of the receipt by such party of
non-cash consideration for any Asset Sale permitted hereunder;
(i) investments of the Borrower and the Subsidiary Guarantors in each other;
73
(j) guarantees and any other contingent obligations permitted under Section 6.01(i);
(k) investments consisting of deposits in the Escrow Interest Account and/or the
Carrying Cost Reserve Account, in each case made in accordance with this Agreement;
(l) investments consisting of Capital Expenditures permitted under Section 6.10; and
(m) the Borrower and the Subsidiary Guarantors may make investments in community
development projects to the extent required by any Governmental Authority.
SECTION 6.05.
Mergers, Consolidations, Sales of Assets, Acquisitions and Dedications. (a)
Other than as contemplated by the Transactions, merge into or consolidate with any other person, or
permit any other person to merge into or consolidate with it, or sell, transfer, lease or otherwise
dispose of (in one transaction or in a series of transactions) all or substantially all the assets
(whether now owned or hereafter acquired) of the Borrower or less than all the Equity Interests of
any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a series of
transactions) all or any substantial part of the assets of any other person, except that (i) the
Borrower and any Subsidiary may purchase and sell or swap inventory in the ordinary course of
business and (ii) if at the time thereof and immediately after giving effect thereto no Event of
Default or Default shall have occurred and be continuing (x) any wholly owned Subsidiary may merge
into the Borrower in a transaction in which the Borrower is the surviving corporation, (y) any
wholly owned Subsidiary may merge into or consolidate with any other wholly owned Subsidiary in a
transaction in which the surviving entity is a wholly owned Subsidiary and no person other than the
Borrower or a wholly owned Subsidiary receives any consideration (
provided that if any party to any
such transaction is a Loan Party, the surviving entity of such transaction shall be a Loan Party)
and (z) any Loan Party may purchase, lease or otherwise acquire all or substantially all of the
assets of any other Loan Party or sell, transfer, lease or dispose of all or substantially all of
its assets to any other Loan Party.
(b) Other than in the case of mergers effected pursuant to Section 6.05(a)(ii)(x), make any
Asset Sale otherwise permitted under paragraph (a) above unless (i) such Asset Sale is for
consideration at least 75% (or 100% of the Required Land Sale Proceeds in the event of any sale
involving Real Property Assets) of which is cash, (ii) such consideration is at least equal to the
fair market value of the assets being sold, transferred, leased or disposed of and, in the case of
the sale of any Mortgaged Properties, such sale is a Permitted Collateral Asset Sale and such
consideration is equal to or greater than the Required Land Sale Proceeds with respect to such
Mortgaged Properties, (iii) the fair market value of all assets sold, transferred, leased or
disposed of pursuant to this paragraph (b) shall not exceed $100,000,000 in the aggregate and (iv)
the then existing total acreage of the Mortgaged Properties after giving effect to any Asset Sale
involving any Real Property Asset shall constitute not less than 90.0% of the total acreage of the
74
Mortgaged Properties existing on the Closing Date; provided that in connection with any Asset Sale
involving a Real Property Asset, the Administrative Agent shall have received a certificate of a
Financial Officer of the Borrower demonstrating compliance on a pro forma basis after giving effect
to such Asset Sale (and other Asset Sales previously made) with Section 6.11 based on the most
recent Qualified Appraisal Update and the then current aggregate principal amount of Total Debt.
Notwithstanding the foregoing, this paragraph (b) shall not be construed as a restriction upon the
hypothecation or transfer of the Equity Interests of any gaming licensee unless and until all
required approvals of all relevant Gaming Authorities have been obtained.
(c) Make any Required Dedication otherwise permitted under paragraph (a) above unless the then
existing total acreage Mortgaged Properties after giving effect to such Required Dedication shall
constitute not less than 90.0% of the total acreage of the Mortgaged Properties existing on the
Closing Date and (iii) the Required Land Sale Proceeds in connection with such Required Dedication
(other than a Required Dedication constituting an easement or right of way which does not adversely
impact in any material respect the value or marketability of any portion of the Mortgaged
Properties, but, in any event, including a Required Dedication for the purpose of constructing a
roadway or parkway) shall have been or, concurrently with the consummation of such Required
Dedication, will be paid to the Administrative Agent for application to the Obligations pursuant to
this Agreement.
This Section 6.05 shall not be construed as a restriction upon the hypothecation or transfer
of the equity securities of any gaming licensee unless and until all required approvals of relevant
Gaming Authorities have been obtained.
SECTION 6.06.
Restricted Payments; Restrictive Agreements. (a) Declare or make, or agree to
declare or make, directly or indirectly, any Restricted Payment (including pursuant to any
Synthetic Purchase Agreement), or incur any obligation (contingent or otherwise) to do so;
provided,
however, that (i) any Subsidiary may declare and pay dividends or make other
distributions ratably to its equity holders, (ii) the Borrower may make Restricted Payments to
Holdings or any parent of Holdings (x) in an amount not to exceed $250,000 in any fiscal year, to
the extent necessary to pay general corporate and overhead expenses incurred by Holdings in the
ordinary course of business and (y) in an amount necessary to enable Holdings to make Permitted Tax
Distributions;
provided,
however, that all Restricted Payments made to Holdings pursuant to this
clause (ii) are used by Holdings for the purposes specified herein within 60 days of the receipt
thereof; (iii) Holdings, the Borrower and the Subsidiaries may make Restricted Payments in the form
of distributions payable solely in the common stock or other common Equity Interests of such
person, (iv) the Borrower or any Subsidiary may repurchase or redeem common stock or other common
Equity Interests of the Borrower or any Subsidiary to the extent required by any Gaming Authority
to prevent a License Revocation, (v) Holdings, the Borrower and the Subsidiaries may make
Restricted Payments in the form of distributions representing interest payments to holders of
Disqualified Stock to the extent such Disqualified Stock is incurred in accordance with Section
6.01 hereof, (vi) Holdings, the Borrower and the Subsidiaries may make Restricted Payments to the
extent provided in (and on the terms and subject to the
75
conditions of) the Services Agreement and Casino Services Agreement (as such agreements exist on
the date hereof or as may be amended with the consent of the Required Lenders), (vii) Holdings, the
Borrower and the Subsidiaries may make Restricted Payments in the form of distributions
representing interest payments to holders of Disqualified Stock to the extent such Disqualified
Stock is incurred in accordance with Section 6.01 hereof, (viii) the Borrower may make Restricted
Payments to Holdings or any parent of Holdings in an amount not in excess of the amount of capital
contributions or subordinated loans made immediately prior to or substantially contemporaneously
with (and in any event within ten Business Days following) such Restricted Payment from Holdings or
a parent of Holdings to the Borrower so as to permit a grantor retained annuity trust (“GRAT”)
which is a shareholder of Holdings or a parent of Holdings to make annuity payments to the grantor
of the trust or to permit an intentionally defective grantor trust to make installment payments to
the seller in an installment sale provided that any such Restricted Payment received by Holdings or
any parent of Holdings shall be used promptly upon receipt solely for the purpose of making such
payments by a GRAT or for such installment payments; (ix) Holdings and the Borrower may make the
Closing Date Restricted Payments and (x) Holdings, the Borrower or any Subsidiary may make
Restricted Payments constituting the repayment of subordinated loans or the return of equity
contributions made after the Closing Date to finance the renovation of the Tropicana Las Vegas
Operations in an aggregate amount not in excess of the amount of such subordinated loans or equity
contributions so made.
(b) Enter into, incur or permit to exist any agreement or other arrangement that prohibits,
restricts or imposes any condition upon (i) the ability of Holdings, the Borrower or any Subsidiary
to create, incur or permit to exist any Lien upon any of its property or assets, or (ii) the
ability of any Subsidiary to pay dividends or other distributions with respect to any of its Equity
Interests or to make or repay loans or advances to the Borrower or any other Subsidiary or to
Guarantee Indebtedness of the Borrower or any other Subsidiary; provided that (A) the foregoing
shall not apply to restrictions and conditions imposed by law, any Gaming Authority or by any Loan
Document, (B) the foregoing shall not apply to customary restrictions and conditions contained in
agreements relating to the sale of a Subsidiary pending such sale, provided such restrictions and
conditions apply only to the Subsidiary that is to be sold and such sale is permitted hereunder,
(C) clause (i) of the foregoing shall not apply to restrictions or conditions imposed by any
agreement relating to secured Indebtedness or affecting a refinancing of Indebtedness permitted
hereunder if such restrictions or conditions apply only to the property or assets securing such
Indebtedness, (D) clause (i) of the foregoing shall not apply to customary provisions in leases and
other contracts restricting the assignment thereof, (E) clause (i) of the foregoing shall not apply
to software and other Intellectual Property licenses pursuant to which a Loan Party or Subsidiary
is the licensee of the relevant software or Intellectual Property, as the case may be (in which
case, any prohibition or limitation shall relate only to the assets subject of the applicable
license), (F) clause (i) of the foregoing shall not apply to prohibitions and limitations in effect
on the date hereof and listed on Schedule 6.06, (G) clause (i) of the foregoing shall not apply to
customary provisions contained in joint venture agreements and other similar agreements applicable
to joint ventures permitted hereby, (H) clause (i) of the foregoing shall not apply to customary
provisions restricting the subletting or assignment of any
76
lease governing a leasehold interest, (I) clause (i) of the foregoing shall not apply to customary
restrictions and conditions contained in any agreement relating to an asset sale permitted by
Section 6.05, (J) clause (i) of the foregoing shall not apply to any agreement in effect at the
time any person becomes a Subsidiary, so long as such agreement was not entered into in
contemplation of such person becoming a Subsidiary and (K) clause (i) of the foregoing shall not
apply to any contractual obligations incurred in the ordinary course of business and on customary
terms which limit Liens on the assets subject to the applicable contractual obligation.
SECTION 6.07.
Transactions with Affiliates. Except for transactions between or among Loan
Parties, sell or transfer any property or assets to, or purchase or acquire any property or assets
from, or otherwise engage in any other transactions with, any of its Affiliates, except that (i)
the Borrower or any Subsidiary may engage in any of the foregoing transactions in the ordinary
course of business at prices and on terms and conditions not less favorable to the Borrower or such
Subsidiary than could be obtained on an arm’s-length basis from unrelated third parties; (ii) the
Borrower may borrow Indebtedness from an Affiliate on the terms contemplated by Section
6.01(h)(ii); (iii) the Borrower or any Subsidiary may enter any transaction contemplated by, and on
the terms and subject to the conditions of, the Services Agreement or the Casino Services Agreement
(as such agreements exist on the date hereof or as may be amended with the consent of the Required
Lenders) (including with respect to employment arrangements to the extent contemplated therein) or
as may be amended with the consent of the Required Lenders); (iv) Holdings, the Borrower and the
Subsidiaries may engage in the transactions expressly permitted by Section 6.04(e) and Section
6.06; and (v) the Borrower or any Subsidiary may provide reasonable indemnification rights and
directors’ and officers’ liability insurance coverage to any of its or its subsidiaries’ directors
and officers.
SECTION 6.08.
Business of Holdings, Borrower and Subsidiaries. (a) With respect to Holdings,
engage in any business activities or have any assets or liabilities other than its ownership of the
Equity Interests of the Borrower and liabilities incidental thereto, including its liabilities
pursuant to the Guarantee and Collateral Agreement and the Pledge Agreement—Nevada Gaming.
(b) With respect to the Borrower and each Subsidiary, engage at any time in any business or
business activity other than a Permitted Business.
SECTION 6.09.
Other Indebtedness and Agreements. (a) Permit any waiver, supplement,
modification, amendment, termination or release of any indenture, instrument or agreement pursuant
to which any Material Indebtedness of Holdings, the Borrower or any of the Subsidiaries is
outstanding if the effect of such waiver, supplement, modification, amendment, termination or
release would be materially adverse to Holdings, the Borrower, any of the Subsidiaries or the
Lenders or (ii) any material waiver, supplement, modification or amendment of (x) its certificate
of incorporation, by-laws, operating, management or partnership agreement or other organizational
documents or (y) an agreement set forth on Schedule 6.09(a), in each case,
77
to the extent any such waiver, supplement, modification or amendment would be adverse to the
Lenders in any material respect.
(b) (i) Make any distribution, whether in cash, property, securities or a combination thereof,
other than regular scheduled payments of principal and interest as and when due (to the extent not
prohibited by applicable subordination provisions), in respect of, or pay, or commit to pay, or
directly or indirectly (including pursuant to any Synthetic Purchase Agreement) redeem, repurchase,
retire or otherwise acquire for consideration, or set apart any sum for the aforesaid purposes, any
Indebtedness (other than the Loans), or (ii) pay in cash any amount in respect of any Indebtedness
or preferred Equity Interests that may at the obligor’s option be paid in kind or in other
securities.
SECTION 6.10.
Capital Expenditures. Permit the aggregate amount of Capital Expenditures made
by the Borrower and the Subsidiaries in any period set forth below to exceed the amount set forth
below for such period:
|
|
|
|
|
Period |
|
Amount |
January 1, 2007 through December 31, 2007 |
|
$ |
10,000,000 |
|
January 1, 2008 through December 31, 2008 |
|
$ |
7,000,000 |
|
January 1, 2009 through December 31, 2009 |
|
$ |
7,000,000 |
|
The amount of permitted Capital Expenditures set forth above in respect of any fiscal year
commencing with the fiscal year ending on December 31, 2007, shall be increased (but not decreased)
by (a) the amount of unused permitted Capital Expenditures for the immediately preceding fiscal
year less (b) an amount equal to unused Capital Expenditures carried forward to such preceding
fiscal year.
SECTION 6.11.
Total Debt LTV Ratio. Permit the Total Debt LTV Ratio on any Calculation Date to
exceed 60.0%.
SECTION 6.12.
Fiscal Year. With respect to Holdings and the Borrower, change their fiscal
year-end to a date other than December 31.
ARTICLE VII
In case of the happening of any of the following events (“Events of Default”):
(a) any representation or warranty made or deemed made in or in connection with any
Loan Document or the borrowings hereunder, or any representation or warranty contained in
any report, certificate, financial statement or other instrument furnished pursuant to any
Loan Document, shall prove to have
78
been false or misleading in any material respect when so made, deemed made or furnished;
(b) default shall be made in the payment of any principal of any Loan when and as the
same shall become due and payable, whether at the due date thereof or at a date fixed for
prepayment thereof or by acceleration thereof or otherwise;
(c) default shall be made in the payment of any interest on any Loan or any
Administrative Agent Fee or any other amount (other than an amount referred to in (b)
above) due under any Loan Document, when and as the same shall become due and payable, and
such default shall continue unremedied for a period of five days;
(d) default shall be made in the due observance or performance by Holdings, the
Borrower or any Subsidiary of any covenant, condition or agreement contained in Section
5.01(a), 5.05(a) or 5.08 or in Article VI;
(e) default shall be made in the due observance or performance by Holdings, the
Borrower or any Subsidiary of any covenant, condition or agreement contained in any Loan
Document (other than those specified in (b), (c) or (d) above) and such default shall
continue unremedied for a period of 30 days after notice thereof from the Administrative
Agent or any Lender to the Borrower;
(f) (i) Holdings, the Borrower or any Subsidiary shall fail to pay any principal or
interest due in respect of any Material Indebtedness, when and as the same shall become
due and payable, (ii) any other event or condition occurs that results in any Material
Indebtedness becoming due prior to its scheduled maturity, in each case, taking into
account any period of grace specified in the instrument or agreement under which such
Material Indebtedness was created, as a result of a default or event of default (or
similar event) or that enables or permits (with or without the giving of notice, the lapse
of time or both) the holder or holders of any Material Indebtedness or any trustee or
agent on its or their behalf to cause any Material Indebtedness to become due, or to
require the prepayment, repurchase, redemption or defeasance thereof, prior to its
scheduled maturity as a result of a default or event of default (or similar event);
provided that this clause (ii) shall not apply to secured Indebtedness that becomes due as
a result of the voluntary sale or transfer of the property or assets securing such
Indebtedness, or (iii) OpCo Intermediate Holdings or any of its subsidiaries shall fail to
pay any principal or interest, regardless of amount, due in respect of (x) the OpCo Credit
Agreement or (y) the OpCo Subordinated Notes, in each case, when and as the same shall
become due and payable; provided that clauses (i) and (ii) shall not apply to Material
Indebtedness in respect of purchase money or vendor financing if such failure is a result
of a good-faith dispute with the holders of such Indebtedness and such failure is remedied
or waived by the holders of such Indebtedness;
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(g) an involuntary proceeding shall be commenced or an involuntary petition shall be
filed in a court of competent jurisdiction seeking (i) relief in respect of Holdings, the
Borrower or any Subsidiary, or of a substantial part of the property or assets of
Holdings, the Borrower or a Subsidiary, under Title 11 of the United States Code, as now
constituted or hereafter amended, or any other Federal, state or foreign bankruptcy,
insolvency, receivership or similar law, (ii) the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for Holdings, the Borrower or any
Subsidiary or for a substantial part of the property or assets of Holdings, the Borrower
or a Subsidiary or (iii) the winding-up or liquidation of Holdings, the Borrower or any
Subsidiary; and in each case such proceeding or petition shall continue undismissed,
unbonded or undischarged for 60 days or an order or decree approving or ordering any of
the foregoing shall be entered;
(h) Holdings, the Borrower or any Subsidiary shall (i) voluntarily commence any
proceeding or file any petition seeking relief under Title 11 of the United States Code,
as now constituted or hereafter amended, or any other Federal, state or foreign
bankruptcy, insolvency, receivership or similar law, (ii) consent to the institution of,
or fail to contest in a reasonably timely and appropriate manner, any proceeding or the
filing of any petition described in (g) above, (iii) apply for or consent to the
appointment of a receiver, trustee, custodian, sequestrator, conservator or similar
official for Holdings, the Borrower or any Subsidiary or for a substantial part of the
property or assets of Holdings, the Borrower or any Subsidiary, (iv) file an answer
admitting the material allegations of a petition filed against it in any such proceeding,
(v) make a general assignment for the benefit of creditors, (vi) become generally unable,
admit in writing its inability or fail generally to pay its debts as they become due or
(vii) take any action for the purpose of effecting any of the foregoing;
(i) one or more judgments shall be rendered against Holdings, the Borrower, any
Subsidiary or any combination thereof for a liability (not part or fully covered by
insurance or effective indemnity) and the same shall remain undischarged for a period of
30 consecutive days during which execution shall not be effectively stayed, or any action
shall be legally taken by a judgment creditor to levy upon assets or properties of
Holdings, the Borrower or any Subsidiary to enforce any such judgment and such judgment
either (i) is for the payment of money in an aggregate amount in excess of $3,000,000 or
(ii) is for injunctive relief and would reasonably be expected to result in a Material
Adverse Effect;
(j) an ERISA Event shall have occurred that, when taken together with all other such
ERISA Events that have occurred, could reasonably be expected to result in liability of
the Borrower or any Subsidiary Guarantor in an aggregate amount exceeding $1,000,000;
(k) any Guarantee under the Guarantee and Collateral Agreement for any reason shall
cease to be in full force and effect (other than in accordance with its terms), or any
Guarantor shall deny in writing that it has any further liability
80
under the Guarantee and Collateral Agreement (other than as a result of the discharge of
such Guarantor in accordance with the terms of the Loan Documents);
(l) any collateral (other than any immaterial collateral) purported to be created by
any Security Document shall cease to be, or shall be asserted by the Borrower or any other
Loan Party not to be, a valid, perfected, first priority (except as otherwise expressly
provided in this Agreement or such Security Document) security interest in the securities,
assets or properties covered thereby, except to the extent that any such loss of perfection
or priority results from the failure of the Collateral Agent to maintain possession of
certificates representing securities pledged under the Guarantee and Collateral Agreement
or the Pledge Agreement—Nevada Gaming and except to the extent that such loss is covered by
a lender’s title insurance policy and the related insurer promptly after such loss shall
have acknowledged in writing that such loss is covered by such title insurance policy;
(m) the Indebtedness under any subordinated Indebtedness of Holdings, the Borrower and
the Subsidiaries constituting Material Indebtedness shall cease (or any Loan Party or an
Affiliate of any Loan Party shall so assert), for any reason, to be validly subordinated to
the Obligations as provided in the agreements evidencing such subordinated Indebtedness;
(n) any License Revocation shall have occurred and remains continuing for more than
five Business Days;
(o) substantially all of the Collateral shall be taken through a condemnation or
Required Dedication; or
(p) there shall have occurred a Change in Control;
then, and in every such event (other than an event with respect to Holdings or the Borrower
described in paragraph (g) or (h) above), and at any time thereafter during the continuance of such
event, the Administrative Agent may, and at the request of the Required Lenders shall, by notice to
the Borrower, take either or both of the following actions, at the same or different times: (i)
terminate forthwith the Commitments and (ii) declare the Loans then outstanding to be forthwith due
and payable in whole or in part, whereupon the principal of the Loans so declared to be due and
payable, together with accrued interest thereon and any unpaid accrued Administrative Agent Fees
and all other liabilities of the Borrower accrued hereunder and under any other Loan Document,
shall become forthwith due and payable, without presentment, demand, protest or any other notice of
any kind, all of which are hereby expressly waived by the Borrower, anything contained herein or in
any other Loan Document to the contrary notwithstanding; and in any event with respect to Holdings
or the Borrower described in paragraph (g) or (h) above, the Commitments shall automatically
terminate and the principal of the Loans then outstanding, together with accrued interest thereon
and any unpaid accrued Administrative Agent Fees and all other liabilities of the Borrower
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accrued hereunder and under any other Loan Document, shall automatically become due and payable,
without presentment, demand, protest or any other notice of any kind, all of which are hereby
expressly waived by the Borrower, anything contained herein or in any other Loan Document to the
contrary notwithstanding. Each of the Administrative Agent and the Lenders acknowledges that its
ability to pursue the remedies described in this paragraph may be subject to, and limited by, the
terms of applicable Gaming Laws.
In addition to the foregoing, upon the occurrence of and during the continuance of an Event of
Default, Holdings and the Borrower agree that, at the Collateral Agent’s written request, they
will, and will cause each of their Subsidiaries to, immediately file such applications for approval
and shall take all other actions required by the Collateral Agent to obtain such approvals or
consents of the Gaming Authorities as are necessary to transfer ownership and control to the
Collateral Agent, of the gaming licenses held by it, or its interest in any person holding any
gaming license. To enforce the provisions of this Article VII, the Collateral Agent is empowered to
request the appointment of a receiver from any court of competent jurisdiction and to request that
such receiver be instructed by the court to seek from the applicable Gaming Authority an
involuntary transfer of control of any gaming license for the purpose of seeking a bona fide
purchaser to whom control will ultimately be transferred. Holdings and the Borrower hereby agree
to authorize, and to cause each of their Subsidiaries to authorize, such an involuntary transfer of
control upon the request of the receiver so appointed and, if Holdings, the Borrower or any such
Subsidiary shall refuse to authorize the transfer, its approval may be required by the court. Upon
the occurrence and continuance of an Event of Default, Holdings and Borrower shall further use, and
shall cause their Subsidiaries to use, their commercially reasonable efforts to assist in obtaining
approval of the applicable Gaming Authority, if requested by the Collateral Agent in writing, for
any action or transactions contemplated by this Agreement or the Loan Documents, including,
preparation, execution, and filing with the applicable Gaming Authority of the assignor’s or
transferor’s portion of any application or applications for consent to the assignment of any gaming
license or transfer of control necessary or appropriate under the applicable Gaming Authority’s
rules and regulations for approval of the transfer or assignment of any portion of the Collateral,
together with any Gaming License or other authorization. Holdings and the Borrower acknowledge that
the assignment or transfer of Gaming Licenses is integral to the Collateral Agent’s realization of
the value of the Collateral, that there is no adequate remedy at law for the failure by Holdings,
the Borrower or any Subsidiary to comply with the provisions of this Article VII and that such
failure would not be adequately compensable in damages, and therefore agree that the agreements
contained in this Article VII may be specifically enforced.
ARTICLE VIII
Each of the Lenders hereby irrevocably appoints the Administrative Agent and the Collateral
Agent (for purposes of this Article VIII, the Administrative Agent and the Collateral Agent are
referred to collectively as the “Agents”) its agent and authorizes the Agents to take such actions
on its behalf and to exercise such powers as are delegated to
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such Agent by the terms of the Loan Documents, together with such actions and powers as are
reasonably incidental thereto. Without limiting the generality of the foregoing, the Agents are
hereby expressly authorized to execute any and all documents (including releases) with respect to
the Collateral and the rights of the Secured Parties with respect thereto, as contemplated by and
in accordance with the provisions of this Agreement and the Security Documents.
The bank serving as the Administrative Agent and/or the Collateral Agent hereunder shall have
the same rights and powers in its capacity as a Lender as any other Lender and may exercise the
same as though it were not an Agent, and such bank and its Affiliates may accept deposits from,
lend money to and generally engage in any kind of business with Holdings, the Borrower or any
Subsidiary or other Affiliate thereof as if it were not an Agent hereunder.
Neither Agent shall have any duties or obligations except those expressly set forth in the
Loan Documents. Without limiting the generality of the foregoing, (a) neither Agent shall be
subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and
is continuing, (b) neither Agent shall have any duty to take any discretionary action or exercise
any discretionary powers, except discretionary rights and powers expressly contemplated hereby that
such Agent is instructed in writing to exercise by the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary under the circumstances as provided in Section
9.08), and (c) except as expressly set forth in the Loan Documents, neither Agent shall have any
duty to disclose, nor shall it be liable for the failure to disclose, any information relating to
Holdings, the Borrower or any of the Subsidiaries that is communicated to or obtained by the bank
serving as Administrative Agent and/or Collateral Agent or any of its Affiliates in any capacity.
Neither Agent shall be liable for any action taken or not taken by it with the consent or at the
request of the Required Lenders (or such other number or percentage of the Lenders as shall be
necessary under the circumstances as provided in Section 9.08) or in the absence of its own gross
negligence or willful misconduct. Neither Agent shall be deemed to have knowledge of any Default
unless and until written notice thereof is given to such Agent by Holdings, the Borrower or a
Lender, and neither Agent shall be responsible for or have any duty to ascertain or inquire into
(i) any statement, warranty or representation made in or in connection with any Loan Document, (ii)
the contents of any certificate, report or other document delivered thereunder or in connection
therewith, (iii) the performance or observance of any of the covenants, agreements or other terms
or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or
genuineness of any Loan Document or any other agreement, instrument or document, or (v) the
satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than
to confirm receipt of items expressly required to be delivered to such Agent.
Each Agent shall be entitled to rely upon, and shall not incur any liability for relying upon,
any notice, request, certificate, consent, statement, instrument, document or other writing
believed by it to be genuine and to have been signed or sent by the proper person. Each Agent may
also rely upon any statement made to it orally or by telephone and believed by it to have been made
by the proper person, and shall not incur any
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liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for
the Borrower), independent accountants and other experts selected by it, and shall not be liable
for any action taken or not taken by it in accordance with the advice of any such counsel,
accountants or experts.
Each Agent may perform any and all its duties and exercise its rights and powers by or through
any one or more sub-agents appointed by it. Each Agent and any such
sub-agent may perform any and
all its duties and exercise its rights and powers by or through their respective Related Parties.
The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the
Related Parties of each Agent and any such sub-agent, and shall apply to their respective
activities in connection with the syndication of the Credit Facility as well as activities as
Agent.
Subject to the appointment and acceptance of a successor Agent as provided below, either Agent
may resign at any time by notifying the Lenders and the Borrower. Upon any such resignation, the
Required Lenders shall have the right, in consultation with the Borrower, to appoint a successor.
If no successor shall have been so appointed by the Required Lenders and shall have accepted such
appointment within 30 days after the retiring Agent gives notice of its resignation, then the
retiring Agent may, on behalf of the Lenders, appoint a successor Agent which shall be a bank or
licensed lending institution with an office in New York, New York, or an Affiliate of any such bank
or licensed lending institution. Upon the acceptance of its appointment as Agent hereunder by a
successor, such successor shall succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its
duties and obligations hereunder. The fees payable by the Borrower to a successor Agent shall be
the same as those payable to its predecessor unless otherwise agreed between the Borrower and such
successor. After an Agent’s resignation hereunder, the provisions of this Article and Section 9.05
shall continue in effect for the benefit of such retiring Agent, its sub-agents and their
respective Related Parties in respect of any actions taken or omitted to be taken by any of them
while acting as Agent.
Each Lender acknowledges that it has, independently and without reliance upon the Agents or
any other Lender and based on such documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that
it will, independently and without reliance upon the Agents or any other Lender and based on such
documents and information as it shall from time to time deem appropriate, continue to make its own
decisions in taking or not taking action under or based upon this Agreement or any other Loan
Document, any related agreement or any document furnished hereunder or thereunder.
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ARTICLE IX
SECTION 9.01. Notices. Notices and other communications provided for herein shall be in
writing and shall be delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by fax, as follows:
(a) if to Holdings or the Borrower, to them at Wimar Tahoe Corporation, 000 Xxxxxxxxx Xxxxx,
Xx. Xxxxxxxx, XX 00000, Attention of Xxxxxxx X. XxxxXxxxxxx (Fax No. (000) 000-0000), with a copy
to Xxxx Xxxx, Milbank, Tweed, Xxxxxx & XxXxxx LLP, 0 Xxxxx Xxxxxxxxx Xxxxx, Xxx Xxxx, XX
00000-0000, (Fax No. 000 000 0000);
(b) if to the Administrative Agent, to Credit Suisse, Eleven Xxxxxxx Xxxxxx, Xxx Xxxx, XX
00000, Attention of Agency Group (Fax No. (000) 000-0000); and
(c) if to a Lender, to it at its address (or fax number) set forth on Schedule 2.01 or in the
Assignment and Acceptance pursuant to which such Lender shall have become a party hereto.
All notices and other communications given to any party hereto in accordance with the
provisions of this Agreement shall be deemed to have been given on the date of receipt if delivered
by hand or overnight courier service or sent by fax or on the date five Business Days after
dispatch by certified or registered mail if mailed, in each case delivered, sent or mailed
(properly addressed) to such party as provided in this Section 9.01 or in accordance with the
latest unrevoked direction from such party given in accordance with this Section 9.01. As agreed to
among Holdings, the Borrower, the Administrative Agent and the applicable Lenders from time to
time, notices and other communications may also be delivered by e-mail to the e-mail address of a
representative of the applicable person provided from time to time by such person.
SECTION 9.02. Survival of Agreement. All covenants, agreements, representations and
warranties made by the Borrower or Holdings herein and in the certificates or other instruments
prepared or delivered in connection with or pursuant to this Agreement or any other Loan Document
shall be considered to have been relied upon by the Lenders and shall survive the making by the
Lenders of the Loans, regardless of any investigation made by the Lenders or on their behalf, and
shall continue in full force and effect as long as the principal of or any accrued interest on any
Loan or any Administrative Agent Fee or any other amount payable under this Agreement or any other
Loan Document is outstanding and unpaid and so long as the Commitments have not been terminated.
The provisions of Sections 2.13, 2.15, 2.19 and 9.05 shall remain operative and in full force and
effect regardless of the expiration of the term of this Agreement, the consummation of the
transactions contemplated hereby, the repayment of any of the Loans, the expiration of the
Commitments, the invalidity or unenforceability of any term or provision of this Agreement or any
other Loan Document, or any investigation made by or on behalf of the Administrative Agent, the
Collateral Agent or any Lender.
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SECTION 9.03. Binding Effect. This Agreement shall become effective when it shall have been
executed by the Borrower, Holdings and the Administrative Agent and when the Administrative Agent
shall have received counterparts hereof which, when taken together, bear the signatures of each of
the other parties hereto.
SECTION 9.04. Successors and Assigns. (a) Whenever in this Agreement any of the parties hereto
is referred to, such reference shall be deemed to include the permitted successors and assigns of
such party; and all covenants, promises and agreements by or on behalf of the Borrower, Holdings,
the Administrative Agent, the Collateral Agent or the Lenders that are contained in this Agreement
shall bind and inure to the benefit of their respective successors and assigns.
(b) Each Lender may assign to one or more assignees all or a portion of its interests, rights
and obligations under this Agreement (including all or a portion of its Loans at the time owing to
it), with the prior written consent of the Borrower and the Administrative Agent (in each case, not
to be unreasonably withheld or delayed) and each Gaming Authority to the extent required; provided,
however, that (i) the consent of the Borrower shall not be required to any such assignment made (A)
to another Lender or an Affiliate or Related Fund of a Lender, (B) during the primary syndication
of the Loans and the Commitments to persons identified by the Administrative Agent to the Borrower
prior to the Closing Date or (C) after the occurrence and during the continuance of any Event of
Default, (ii) the amount of the Commitment or Loans of the assigning Lender subject to each such
assignment (determined as of the date the Assignment and Acceptance with respect to such assignment
is delivered to the Administrative Agent) shall be in an integral multiple of, and not less than,
$1,000,000 (or, if less, the entire remaining amount of such Lender’s Commitment or Loans),
provided that the simultaneous assignments to or by two or more Affiliates or Related Funds shall
be treated as one assignment for purposes of this minimum assignment requirement, (iii) the parties
to each such assignment shall execute and deliver to the Administrative Agent an Assignment and
Acceptance via an electronic settlement system acceptable to the Administrative Agent (or, if
previously agreed with the Administrative Agent, manually), and shall pay to the Administrative
Agent a processing and recordation fee of $3,500 (which fee may be waived or reduced in the sole
discretion of the Administrative Agent), and (iv) the assignee, if it shall not be a Lender, shall
deliver to the Administrative Agent an Administrative Questionnaire and all applicable tax forms.
Upon acceptance and recording pursuant to paragraph (e) of this Section 9.04, from and after the
effective date specified in each Assignment and Acceptance, (A) the assignee thereunder shall be a
party hereto and, to the extent of the interest assigned by such Assignment and Acceptance, have
the rights and obligations of a Lender under this Agreement and (B) the assigning Lender thereunder
shall, to the extent of the interest assigned by such Assignment and Acceptance, be released from
its obligations under this Agreement (and, in the case of an Assignment and Acceptance 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 but shall continue to be entitled to the benefits of
Sections 2.13, 2.15, 2.19 and 9.05, as well as to any Administrative Agent Fees accrued for its
account and not yet paid).
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(c) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder
and the assignee thereunder shall be deemed to confirm to and agree with each other and the other
parties hereto as follows: (i) such assigning Lender warrants that it is the legal and beneficial
owner of the interest being assigned thereby free and clear of any adverse claim and that its
Commitment and the outstanding balances of its Loans, without giving effect to assignments thereof
which have not become effective, are as set forth in such Assignment and Acceptance, (ii) except as
set forth in (i) above, such assigning Lender makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations made in or in
connection with this Agreement, or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement, any other Loan Document or any other instrument or document
furnished pursuant hereto, or the financial condition of the Borrower or any Subsidiary or the
performance or observance by the Borrower or any Subsidiary of any of its obligations under this
Agreement, any other Loan Document or any other instrument or document furnished pursuant hereto;
(iii) such assignee represents and warrants that it is legally authorized to enter into such
Assignment and Acceptance; (iv) such assignee confirms that it has received a copy of this
Agreement, together with copies of the most recent financial statements referred to in Sections
3.05(a) and (b) or delivered pursuant to Section 5.04 and such other documents and information as
it has deemed appropriate to make its own credit analysis and decision to enter into such
Assignment and Acceptance; (v) such assignee will independently and without reliance upon the
Administrative Agent, the Collateral Agent, such assigning Lender or any other Lender and based on
such documents and information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement; (vi) such assignee appoints
and authorizes the Administrative Agent and the Collateral Agent to take such action as agent on
its behalf and to exercise such powers under this Agreement as are delegated to the Administrative
Agent and the Collateral Agent, respectively, by the terms hereof, together with such powers as are
reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance
with their terms all the obligations which by the terms of this Agreement are required to be
performed by it as a Lender.
(d) The Administrative Agent, acting for this purpose as an agent of the Borrower, shall
maintain at one of its offices in The City of New York a copy of each Assignment and Acceptance
delivered to it and a register for the recordation of the names and addresses of the Lenders, and
the Commitment of, and principal amount of the Loans owing to, each Lender pursuant to the terms
hereof from time to time (the “Register”). The entries in the Register shall be conclusive and the
Borrower, the Administrative Agent, the Collateral Agent and the Lenders may treat each person
whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all
purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available
for inspection by the Borrower, the Collateral Agent and any Lender, at any reasonable time and
from time to time upon reasonable prior notice.
(e) Upon its receipt of, and consent to, a duly completed Assignment and Acceptance executed
by an assigning Lender and an assignee, an Administrative Questionnaire completed in respect of the
assignee (unless the assignee shall already be a
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Lender hereunder), the processing and recordation fee referred to in paragraph (b) above, if
applicable, and the written consent of the Administrative Agent and, if required, the Borrower to
such assignment and any applicable tax forms, the Administrative Agent shall promptly (i) accept
such Assignment and Acceptance and (ii) record the information contained therein in the Register.
No assignment shall be effective unless it has been recorded in the Register as provided in this
paragraph (e).
(f) Each Lender may without the consent of the Borrower or the Administrative Agent sell
participations to one or more banks or other persons in all or a portion of its rights and
obligations under this Agreement (including all or a portion of its Commitment and the Loans owing
to it); provided, however, that (i) such Lender’s obligations under this Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations, (iii) the participating banks or other persons shall be entitled
to the benefit of the cost protection provisions contained in Sections 2.13, 2.15 and 2.19 to the
same extent as if they were Lenders (but, with respect to any particular participant, to no greater
extent than the Lender that sold the participation to such participant) and (iv) the Borrower, the
Administrative Agent and the Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender’s rights and obligations under this Agreement, and such Lender shall
retain the sole right to enforce the obligations of the Borrower relating to the Loans and to
approve any amendment, modification or waiver of any provision of this Agreement (other than
amendments, modifications or waivers decreasing any fees payable to such participating bank or
person hereunder or the amount of principal of or the rate at which interest is payable on the
Loans in which such participating bank or person has an interest, extending any scheduled principal
payment date or date fixed for the payment of interest on the Loans in which such participating
bank or person has an interest, increasing or extending the Commitments in which such participating
bank or person has an interest or releasing any Guarantor (other than in connection with the sale
of such Guarantor in a transaction permitted by Section 6.05) or all or substantially all of the
Collateral).
(g) Any Lender or participant may, in connection with any assignment or participation or
proposed assignment or participation pursuant to this Section 9.04, disclose to the assignee or
participant or proposed assignee or participant any information relating to the Borrower furnished
to such Lender by or on behalf of the Borrower; provided that, prior to any such disclosure of
information designated by the Borrower as confidential, each such assignee or participant or
proposed assignee or participant shall execute an agreement whereby such assignee or participant
shall agree (subject to customary exceptions) to preserve the confidentiality of such confidential
information on terms no less restrictive than those applicable to the Lenders pursuant to Section
9.17.
(h) Any Lender may at any time assign all or any portion of its rights under this Agreement to
secure extensions of credit to such Lender or in support of obligations owed by such Lender;
provided that no such assignment shall release a Lender from any of its obligations hereunder or
substitute any such assignee for such Lender as a party hereto.
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(i) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting
Lender”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing
from time to time by the Granting Lender to the Administrative Agent and the Borrower, the option
to provide to the Borrower all or any part of any Loan that such Granting Lender would otherwise be
obligated to make to the Borrower pursuant to this Agreement; provided that (i) nothing herein
shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise
such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall
be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC
hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such
Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be
liable for any indemnity or similar payment obligation under this Agreement (all liability for
which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto
hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the
date that is one year and one day after the payment in full of all outstanding commercial paper or
other senior indebtedness of any SPC, it will not institute against, or join any other person in
instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings under the laws of the United States or any State thereof. In addition,
notwithstanding anything to the contrary contained in this Section 9.04, any SPC may (i) with
notice to, but without the prior written consent of, the Borrower and the Administrative Agent and
without paying any processing fee therefor, assign all or a portion of its interests in any Loans
to the Granting Lender or to any financial institutions (consented to by the Borrower and
Administrative Agent) providing liquidity and/or credit support to or for the account of such SPC
to support the funding or maintenance of Loans and (ii) disclose on a confidential basis any
non-public information relating to its Loans to any rating agency, commercial paper dealer or
provider of any surety, guarantee or credit or liquidity enhancement to such SPC.
(j) Neither Holdings nor the Borrower shall assign or delegate any of its rights or duties
hereunder without the prior written consent of the Administrative Agent and each Lender, and any
attempted assignment without such consent shall be null and void.
(k) In addition to any other assignment permitted pursuant to this Section 9.04, any Lender
may assign and/or pledge all or any portion of its Loans, the other Obligations owed by or to such
Lender, and its promissory notes, if any, to secure obligations of such Lender including 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 no Lender, as between the Borrower and such Lender, shall be relieved of any of its
obligations hereunder as a result of any such assignment and pledge; and provided further that, in
no event shall the applicable Federal Reserve Bank, pledgee or trustee be considered to be a
“Lender” or be entitled to require the assigning Lender to take or omit to take any action
hereunder.
(l) Notwithstanding anything to the contrary in this Section 9.04, no assignment made nor
participation sold shall conflict in any way with applicable Gaming Laws.
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SECTION 9.05. Expenses; Indemnity. (a) Holdings and the Borrower agree, jointly and
severally, to pay all reasonable out-of-pocket expenses incurred by the Administrative Agent and
the Collateral Agent in connection with the syndication of the Credit Facility and the preparation,
execution and delivery of this Agreement and the other Loan Documents or in connection with any
amendments, modifications or waivers of the provisions hereof or thereof (whether or not the
transactions hereby or thereby contemplated shall be consummated) or incurred by the Administrative
Agent, the Collateral Agent or any Lender in connection with the enforcement or protection of its
rights in connection with this Agreement and the other Loan Documents or in connection with the
Loans made hereunder, including the reasonable fees, charges and disbursements of Cravath, Swaine &
Xxxxx LLP, counsel for the Administrative Agent and the Collateral Agent, and, in connection with
any such enforcement or protection, the reasonable fees, charges and disbursements of any other
counsel for the Administrative Agent, the Collateral Agent or any Lender.
(b) Holdings and the Borrower agree, jointly and severally, to indemnify the Administrative
Agent, the Collateral Agent, each Lender and each Related Party of any of the foregoing persons
(each such person being called an “Indemnitee”) against, and to hold each Indemnitee harmless from,
any and all losses, claims, damages, liabilities and related reasonable out-of-pocket expenses,
including reasonable counsel fees, charges and disbursements, incurred by or asserted against any
Indemnitee arising out of, in any way connected with, or as a result of (i) the execution or
delivery of this Agreement or any other Loan Document or any agreement or instrument contemplated
thereby, the performance by the parties thereto of their respective obligations thereunder or the
consummation of the Transactions and the other transactions contemplated thereby (including the
syndication of the Credit Facility), (ii) the use of the proceeds of the Loans, (iii) any claim,
litigation, investigation or proceeding relating to any of the foregoing, whether or not any
Indemnitee is a party thereto (and regardless of whether such matter is initiated by a third party
or by Holdings, any other Loan Party or any of their respective Affiliates), or (iv) any actual or
alleged presence or Release of Hazardous Materials on any property currently or formerly owned or
operated by the Borrower or any of the Subsidiaries, or any Environmental Liability related in any
way to the Borrower or the Subsidiaries; provided that such indemnity shall not, as to any
Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related
expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to
have resulted from the gross negligence or wilful misconduct of such Indemnitee.
(c) To the extent that Holdings and the Borrower fail to pay any amount required to be paid by
them to the Administrative Agent or the Collateral Agent under paragraph (a) or (b) of this Section
(but without affecting the obligations of Holdings or the Borrower to make such payment), each
Lender severally agrees to pay to the Administrative Agent or the Collateral Agent, as the case may
be, such Lender’s pro rata share (determined as of the time that the applicable unreimbursed
expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed
expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was
incurred by or asserted against the Administrative Agent or the Collateral Agent in its
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capacity as such. For purposes hereof, a Lender’s “pro rata share” shall be determined based upon
its share of the sum of the outstanding Loans and unused Commitments at the time.
(d) To the extent permitted by applicable law, neither Holdings nor the Borrower shall assert,
and each hereby waives, any claim against any Indemnitee, on any theory of liability, for special,
indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out
of, in connection with, or as a result of, this Agreement or any agreement or instrument
contemplated hereby, the Transactions or any Loan or the use of the proceeds thereof.
(e) The provisions of this Section 9.05 shall remain operative and in full force and effect
regardless of the expiration of the term of this Agreement, the consummation of the transactions
contemplated hereby, the repayment of any of the Loans, the expiration of the Commitments, the
invalidity or unenforceability of any term or provision of this Agreement or any other Loan
Document, or any investigation made by or on behalf of the Administrative Agent, the Collateral
Agent or any Lender. All amounts due under this Section 9.05 shall be payable on written demand
therefor.
SECTION 9.06. Right of Setoff. If an Event of Default shall have occurred and be continuing,
each Lender is hereby authorized at that time and from time to time thereafter while such Event of
Default is subsisting, except to the extent prohibited by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final) at any time held and other
indebtedness at any time owing by such Lender to or for the credit or the account of Holdings or
the Borrower against any of and all the obligations of Holdings or the Borrower now or hereafter
existing under this Agreement and other Loan Documents held by such Lender, irrespective of whether
or not such Lender shall have made any demand under this Agreement or such other Loan Document.
The rights of each Lender under this Section 9.06 are in addition to other rights and remedies
(including other rights of setoff) which such Lender may have.
SECTION 9.07. Applicable Law. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (OTHER THAN AS
EXPRESSLY SET FORTH IN OTHER LOAN DOCUMENTS) SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE LAWS OF THE STATE OF NEW YORK.
SECTION 9.08. Waivers; Amendment. (a) No failure or delay of the Administrative Agent, the
Collateral Agent or any Lender in exercising any power or right hereunder or under any other Loan
Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such
right or power, or any abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other right or power. The
rights and remedies of the Administrative Agent, the Collateral Agent and the Lenders hereunder and
under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that
they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document
or consent to any departure by the Borrower or any other Loan Party therefrom shall in any event be
effective unless the same shall be permitted by
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paragraph (b) below, and then such waiver or consent shall be effective only in the specific
instance and for the purpose for which given. No notice or demand on the Holdings or the Borrower
in any case shall entitle Holdings or the Borrower to any other or further notice or demand in
similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be waived, amended or modified except
pursuant to an agreement or agreements in writing entered into by the Borrower, Holdings and the
Required Lenders; provided, however, that no such agreement shall (i) decrease the principal amount
of, or extend the maturity of or any scheduled principal payment date or date for the payment of
any interest on any Loan, or waive or excuse any such payment or any part thereof, or decrease the
rate of interest on any Loan, without the prior written consent of each Lender directly adversely
affected thereby, (ii) increase or extend the Commitment or decrease or extend the date for payment
of any other amounts payable to any Lender without the prior written consent of such Lender, (iii)
amend or modify the pro rata requirements of Section 2.16, the provisions of Section 9.04(j) or the
provisions of this Section or release any Guarantor (other than in connection with the sale of such
Guarantor in a transaction permitted by Section 6.05) or all or substantially all of the
Collateral, without the prior written consent of each Lender, (iv) modify the protections afforded
to an SPC pursuant to the provisions of Section 9.04(i) without the written consent of such SPC or
(v) reduce the percentage contained in the definition of the term “Required Lenders” without the
prior written consent of each Lender (it being understood that with the consent of the Required
Lenders, additional extensions of credit pursuant to this Agreement may be included in the
determination of the Required Lenders on substantially the same basis as the Commitments on the
date hereof); provided further that no such agreement shall amend, modify or otherwise affect the
rights or duties of the Administrative Agent or the Collateral Agent hereunder or under any other
Loan Document without the prior written consent of the Administrative Agent or the Collateral
Agent.
(c) To the extent required by any Gaming Law, the Borrower shall notify all relevant Gaming
Authorities of any amendment to this Agreement or any Loan Document.
SECTION 9.09. Application of Gaming Laws. (a) This Agreement and the other Loan Documents are
subject to Gaming Laws and laws involving the sale and distribution of liquor (the “Liquor Laws”).
Without limiting the foregoing, each of the Administrative Agent and the Lenders acknowledges that
(i) it is subject to the jurisdiction of the Gaming Authorities or Governmental Authorities
enforcing such Gaming Laws or Liquor Laws (and to be called forward by such Gaming Authorities or
Governmental Authorities), in their discretion, for licensing, qualification or findings of
suitability or to file or provide other information and (ii) all rights, remedies and powers in or
under this Agreement and the other Loan Documents, including with respect to the Collateral and the
ownership, possession and operation of facilities subject to the jurisdiction of the Gaming
Authorities, may be exercised only to the extent that the exercise thereof does not violate any
applicable provisions of the Gaming Laws and Liquor Laws and only to the extent that required
approvals (including prior approvals) are obtained from the relevant Gaming Authorities.
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(b) Each of the Administrative Agent and the Lenders agrees to cooperate with all Gaming
Authorities in connection with the provision of such documents and other information as may be
requested by such Gaming Authorities relating to the Loan Parties or Loan Documents.
(c) Each of the Administrative Agent and the Lenders acknowledges and agrees that if the
Borrower receives a notice from any applicable Gaming Authority that a Lender is a Disqualified
Lender (and such Lender is notified by the Borrower and the Administrative Agent in writing of such
disqualification), the Borrower shall have the right to (i) cause such Disqualified Lender to
transfer and assign, without recourse (in accordance with Section 9.04) all of its interests,
rights and obligations in Loans or (ii) in the event that (A) the Borrower is unable to assign such
Lender’s Loans after using its best efforts to cause such an assignment and (B) no Default or Event
of Default has occurred and is continuing, prepay such Disqualified Lender’s Loans. Notice to such
Disqualified Lender shall be given ten days prior to the required date of assignment or prepayment,
as the case may be, and shall be accompanied by evidence demonstrating that such transfer or
prepayment is required pursuant to Gaming Laws. Upon receipt of a notice in accordance with the
foregoing, the Disqualified Lender shall cooperate with the Borrower in effectuating the required
assignment or prepayment within the time period set forth in such notice and, in any event, not to
be less than the minimum notice period set forth in the foregoing sentence. Notwithstanding
anything herein to the contrary, any prepayment of a Disqualified Lender’s Loans pursuant to this
Section 9.09(c) shall be at a price equal to the lesser of (i) an amount equal to the sum of the
principal amount of such Loans and interest at the date such Lender became a Disqualified Lender
(plus any amounts accrued for the account of such Disqualified Lender to the date such Lender
became a Disqualified Lender), (ii) the price at which such Lender acquired its Loans and interest
to the date such Lender became a Disqualified Lender (plus amounts accrued for the account of such
Disqualified Lender to the date such Lender became a Disqualified Lender), (iii) such lower price
as may be reasonably available in the syndicated loan market for the assignment of such Loans and
(iv) such other amount as may be required by any such Gaming Authority.
(d) If during the existence of an Event of Default hereunder or under any of the other Loan
Documents it shall become necessary or, in the opinion of the Required Lenders, advisable for an
agent, supervisor, receiver or other representative of the Administrative Agent or the Lenders to
become licensed or found qualified under any Gaming Law as a condition of receiving the benefit of
the Collateral encumbered by the Security Documents or other Loan Documents or to otherwise enforce
the rights of the Administrative Agent and the Lenders under the Loan Documents, the Borrower
hereby agrees to consent to the application for such license or qualification and to execute such
further documents as may be required in connection with the evidencing of such consent.
SECTION 9.10. Interest Rate Limitation. Notwithstanding anything herein to the contrary, if
at any time the interest rate applicable to any Loan, together with all fees, charges and other
amounts which are treated as interest on such Loan under applicable law (collectively the
“Charges”), shall exceed the maximum lawful rate (the “Maximum Rate”) which may be contracted for,
charged, taken, received or reserved by the Lender
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holding such Loan in accordance with applicable law, the rate of interest payable in respect of
such Loan hereunder, together with all Charges payable in respect thereof, shall be limited to the
Maximum Rate and, to the extent lawful, the interest and Charges that would have been payable in
respect of such Loan but were not payable as a result of the operation of this Section 9.10 shall
be cumulated and the interest and Charges payable to such Lender in respect of other Loans or
periods shall be increased (but not above the Maximum Rate therefor) until such cumulated amount,
together with interest thereon at the Federal Funds Effective Rate to the date of repayment, shall
have been received by such Lender.
SECTION 9.11. Entire Agreement. This Agreement, the Fee Letter and the other Loan Documents
constitute the entire contract between the parties relative to the subject matter hereof. Any other
previous agreement among the parties with respect to the subject matter hereof is superseded by
this Agreement and the other Loan Documents. Nothing in this Agreement or in the other Loan
Documents, expressed or implied, is intended to confer upon any person (other than the parties
hereto and thereto, their respective successors and assigns permitted hereunder and, to the extent
expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the
Collateral Agent and the Lenders) any rights, remedies, obligations or liabilities under or by
reason of this Agreement or the other Loan Documents.
SECTION 9.12. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE
OTHER LOAN DOCUMENTS. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF
ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE
OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS,
AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.12.
SECTION 9.13.
Severability. In the event any one or more of the provisions contained in this
Agreement or in any other Loan Document should be held invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions contained herein and
therein shall not in any way be affected or impaired thereby (it being understood that the
invalidity of a particular provision in a particular jurisdiction shall not in and of itself affect
the validity of such provision in any other jurisdiction). The parties shall endeavor in good-faith
negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions the
economic effect of which comes as close as possible to that of the invalid, illegal or
unenforceable provisions.
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SECTION 9.14.
Counterparts. This Agreement may be executed in counterparts (and by different
parties hereto on different counterparts), each of which shall constitute an original but all of
which when taken together shall constitute a single contract, and shall become effective as
provided in Section 9.03. Delivery of an executed signature page to this Agreement by facsimile
transmission shall be as effective as delivery of a manually signed counterpart of this Agreement.
SECTION 9.15.
Headings. Article and Section headings and the Table of Contents used herein
are for convenience of reference only, are not part of this Agreement and are not to affect the
construction of, or to be taken into consideration in interpreting, this Agreement.
SECTION 9.16.
Jurisdiction;
Consent to Service of Process. (a) Each of Holdings and the
Borrower hereby irrevocably and unconditionally submits, for itself and its property, to the
exclusive jurisdiction of any New York State court or Federal court of the United States of America
sitting in New York City, and any appellate court from any thereof, in any action or proceeding
arising out of or relating to this Agreement or the other Loan Documents, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally
agrees that all claims in respect of any such action or proceeding may be heard and determined in
such New York State or, to the extent permitted by law, in such Federal court. Each of the parties
hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement shall affect any right that the Administrative Agent, the Collateral
Agent or any Lender may otherwise have to bring any action or proceeding relating to this Agreement
or the other Loan Documents against the Borrower, Holdings or their respective properties in the
courts of any jurisdiction.
(b) Each of Holdings and the Borrower hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection which it may now or hereafter
have to the laying of venue of any suit, action or proceeding arising out of or relating to this
Agreement or the other Loan Documents in any New York State or Federal court. Each of the parties
hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such court.
(c) Each party to this Agreement irrevocably consents to service of process in the manner
provided for notices in Section 9.01. Nothing in this Agreement will affect the right of any party
to this Agreement to serve process in any other manner permitted by law.
SECTION 9.17.
Confidentiality. Each of the Administrative Agent, the Collateral Agent and the
Lenders agrees to maintain the confidentiality of the Information (as defined below), except that
Information may be disclosed (a) to its Affiliates and its Affiliates’ officers, directors,
trustees, employees and agents, including accountants, legal counsel and other advisors (it being
understood that the persons to whom such disclosure is made will be informed of the confidential
nature of such Information and instructed to
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keep such Information confidential), (b) to the extent requested by any regulatory authority or
quasi-regulatory authority (such as the National Association of Insurance Commissioners), (c) to
the extent required by applicable laws or regulations or by any subpoena or similar legal process,
(d) in connection with the exercise of any remedies hereunder or under the other Loan Documents or
any suit, action or proceeding relating to the enforcement of its rights hereunder or thereunder,
(e) subject to an agreement containing provisions substantially the same as those of this Section
9.17, to (i) any actual or prospective assignee of or participant in any of its rights or
obligations under this Agreement and the other Loan Documents or (ii) any actual or prospective
counterparty (or its advisors) to any swap or derivative transaction relating to the Borrower or
any Subsidiary or any of their respective obligations, (f) with the consent of the Borrower or (g)
to the extent such Information becomes publicly available other than as a result of a breach of
this Section 9.17. For the purposes of this Section, “Information” shall mean all information
received from Holdings or the Borrower and related to Holdings or the Borrower or their business,
other than any such information that was available to the Administrative Agent, the Collateral
Agent or any Lender on a nonconfidential basis prior to its disclosure by Holdings or the Borrower;
provided that, in the case of Information received from Holdings or the Borrower after the date
hereof, such information is clearly identified at the time of delivery as confidential. Any person
required to maintain the confidentiality of Information as provided in this Section 9.17 shall be
considered to have complied with its obligation to do so if such person has exercised the same
degree of care to maintain the confidentiality of such Information as such person would accord its
own confidential information.
SECTION 9.18.
USA PATRIOT Act Notice. Each Lender and the Administrative Agent (for itself
and not on behalf of any Lender) hereby notifies Holdings, the Borrower and the Subsidiary
Guarantors that pursuant to the requirements of the USA PATRIOT Act, it is required to obtain,
verify and record information that identifies Holdings, the Borrower and the Subsidiary Guarantors,
which information includes the name and address of Holdings, the Borrower and the Subsidiary
Guarantors and other information that will allow such Lender or the Administrative Agent, as
applicable, to identify Holdings, the Borrower and the Subsidiary Guarantors in accordance with the
USA PATRIOT Act.
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WIMAR LANDCO, LLC,
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by |
/s/ Xxxxxxx X. XxxxXxxxxxx
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Name: |
Xxxxxxx X. XxxxXxxxxxx |
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Title: |
Chief Financial Officer |
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WIMAR LANDCO INTERMEDIATE HOLDINGS, LLC,
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by |
/s/ Xxxxxxx X. XxxxXxxxxxx
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Name: |
Xxxxxxx X. XxxxXxxxxxx |
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Title: |
Chief Financial Officer |
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CREDIT SUISSE, CAYMAN ISLANDS
BRANCH, as Administrative Agent and
Collateral Agent,
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by |
/s/ Xxxxxxxxx Xxxxxxx
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Name: |
Xxxxxxxxx Xxxxxxx |
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Title: |
Vice President |
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by |
/s/ Xxxxx Xxxxx
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Name: |
Xxxxx Xxxxx |
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Title: |
Associate |
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CREDIT SUISSE, CAYMAN ISLANDS
BRANCH, as a Lender,
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by |
/s/ Xxxxxxxxx Xxxxxxx
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Name: |
Xxxxxxxxx Xxxxxxx |
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Title: |
Vice President |
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by |
/s/ Xxxxx Xxxxx
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Name: |
Xxxxx Xxxxx |
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Title: |
Associate |
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