EXHIBIT 10.32
ASSUMPTION AND CONSENT AGREEMENT
THIS ASSUMPTION AND CONSENT AGREEMENT ("Assumption Agreement") is made as of
the 18th day of December, 1997, by and between XXXXX FARGO BANK, National
Association ("WFB"), SOCIETE GENERALE ("SocGen"), THE LONG TERM CREDIT BANK OF
JAPAN, LTD. ("LTCBJ"), BANK OF SCOTLAND ("BOS"), CIBC INC. ("CIBC"), CREDIT
LYONNAIS, Los Angeles Branch ("Credit Lyonnais"), ABN AMRO BANK ("ABN"), THE
BANK OF NOVA SCOTIA ("BONS"), FIRST SECURITY BANK, N.A. ("FSB"), THE SUMITOMO
BANK, LTD. ("Sumitomo") and U.S. BANK NATIONAL ASSOCIATION, formerly known as
U.S. Bank of Nevada ("USBNA" and together with WFB, SocGen, LTCBJ, BOS, CIBC,
Credit Lyonnais, ABN, BONS, FSB and Sumitomo, collectively referred to as the
"Assuming Lenders" and each individually as an "Assuming Lender"), PRIMADONNA
RESORTS, INC., a Nevada corporation and THE PRIMADONNA CORPORATION, a Nevada
corporation (collectively the "Borrowers") and XXXXX FARGO BANK, National
Association, in its capacity as Agent Bank as described hereinbelow.
R_E_C_I_T_A_L_S:
A.Reference is made to that certain Credit Agreement, dated as of June 5, 1997
(as amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"), by and among Borrowers, the Lenders therein named (herein together
with their respective successors and assigns collectively the "Lenders"), the
Co-Agents and Lead Managers therein named, Xxxxx Fargo Bank, National
Association, as the swingline lender (herein in such capacity, together with
its successors and assigns, the "Swingline Lender"), Xxxxx Fargo Bank,
National Association, as the issuer of letters of credit hereunder (herein in
such capacity, together with its successors and assigns, the "L/C Issuer"), and
Xxxxx Fargo Bank, National Association, as administrative and collateral agent
for the Lenders, Swingline Lender and L/C Issuer (herein, in such capacity,
called the "Agent Bank" and, together with the Lenders, Swingline Lender and
L/C Issuer, collectively referred to as the "Banks").
X.Xx this Assumption Agreement, all capitalized words and terms not otherwise
defined herein shall have the respective meanings to be construed herein as
provided in Section 1.01 of the Credit Agreement and any reference to a
provision of the Credit Agreement shall be deemed to incorporate such provision
as a part hereof in the same manner and with the same effect as if the same
were fully set forth herein.
C.Assuming Lenders, together with the other Lenders set forth thereon,
presently hold the respective Syndication Interests in the Credit Facility set
forth on the Schedule of Lenders' Proportions in Credit Facility as of Closing
Date marked "Exhibit A", affixed hereto and by this reference incorporated
herein and made a part hereof.
D.Pursuant to Section 2.01(d) of the Credit Agreement, Borrowers desire to
increase the Aggregate Commitment from Two Hundred Fifty Million Dollars
($250,000,000.00) to Three Hundred Million Dollars ($300,000,000.00), an
increase of Fifty Million Dollars ($50,000,000.00) (the "Commitment Increase").
E.Each Assuming Lender is willing to commit to advance the portion of the
Commitment Increase set forth below, so that as of the Effective Date, as
hereinafter defined, Assuming Lenders shall hold the respective Pro Rata Shares
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of the Aggregate Commitment as increased by the Commitment Increase and the
respective Syndication Interests in the Credit Facility set forth below (each
individually an "Assumed Interest" and collectively the "Assumed Interests"):
NAME OF ASSUMING LENDER
PORTION OF COMMITMENT INCREASE
PRO RATA SHARE OF AGGREGATE COMMITMENT AFTER COMMITMENT INCREASE
PROPORTIONATE SYNDICATION INTERESTS AFTER COMMITMENT INCREASE
WFB $6,000,000.00 $40,000,000.00 13.33333%
SocGen 4,000,000.00 26,000,000.00 8.66667%
LTCBJ 3,000,000.00 19,000,000.00 6.33334%
BOS 3,000,000.00 19,000,000.00 6.33334%
CIBC 3,000,000.00 19,000,000.00 6.33334%
Credit Lyonnais 3,000,000.00 19,000,000.00 6.33334%
ABN 3,000,000.00 13,000,000.00 4.33333%
BONS 2,000,000.00 12,000,000.00 4.00000%
FSB 15,000,000.00 25,000,000.00 8.33333%
Sumitomo 3,000,000.00 13,000,000.00 4.33333%
USBNA 5,000,000.00 15,000,000.00 5.00000%
F.This Assumption Agreement is made, executed and delivered pursuant to Section
2.01(d) of the Credit Agreement and shall also constitute the assumption by and
delegation to Assuming Lenders of the Syndication Interests particularly
described hereinbelow.
NOW, THEREFORE, in consideration of the foregoing and other good and valuable
considerations, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto do agree as follows:
1.From and after the Effective Date, each Assuming Lender shall and does hereby
assume and agree to perform all of the promises and covenants of a Lender as to
its respective Assumed Interest arising or performable from and after the
Effective Date and does further agree to assume and be bound by each and every
term, condition, provision and covenant contained in the Credit Agreement and
each of the Loan Documents, effective as of the Effective Date, to the same
extent and manner as if such Assuming Lender had originally been named in the
Credit Agreement as a Lender holding the Assumed Interest therein and Assuming
Lender shall be deemed to be a Lender party to the Credit Agreement for all
purposes thereof.
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2.The "Effective Date" as used herein shall mean December 19, 1997, provided
that each of the following conditions precedent have been satisfied on or
before the Effective Date: (a) Assuming Lenders, Borrowers and Agent Bank have
executed twelve (12) duplicate originals of this Assumption Agreement and each
of such originals has been delivered to Agent Bank, (b) Borrowers have executed
and delivered to Agent Bank, on behalf of the Lenders, a restatement of the
Revolving Credit Note payable to the order of Agent Bank on behalf of the
Lenders, in the principal amount of Three Hundred Million Dollars
($300,000,000.00), (c) The Primadonna Corporation has executed and delivered to
Agent Bank a Second Amendment to Leasehold, Fee and Water Rights Deed of Trust,
Fixture Filing and Security Agreement with Assignment of Rents (H/C) in a form
and content acceptable to Agent Bank, for the purpose of securing repayment of
the Commitment Increase and the restated Revolving Credit Note, (d) Title
Company has committed to issue, at Borrowers' expense, its modified 110.10
endorsement to the Title Insurance Policy increasing coverage thereunder by an
additional Fifty Million Dollars ($50,000,000.00), (e) the Gaming Authorities
have approved and PRMA has delivered to Agent Bank a duly executed Stock Pledge
(Gaming) in favor of Agent Bank, together with the original stock certificates
for all issued and outstanding shares of stock of the Strip JV, (f) each Lender
realizing a decrease in its respective Syndication Interest has received from
Agent Bank such amount as is necessary to adjust such Lender's Pro Rata Share
of the Funded Outstandings as of the Effective Date equal to such Lender's
Syndication Interest as set forth on the Schedule of Lenders' Proportions in
Credit Facility as of December 19, 1997 attached hereto, and (g) each Assuming
Lender realizing an increase in its respective Syndication Interest has
delivered to Agent Bank an amount representing its Pro Rata Share of the
Funded Outstandings as of the Effective Date, less Assuming Lenders' Pro Rata
Share of the Funded Outstandings immediately prior to the Effective Date, for
distribution to the Lenders in such amounts as are necessary to adjust each
such Lenders' Pro Rata Share of the Funded Outstandings as of the Effective
Date to a percentage equal to the Syndication Interests set forth on the
Schedule of Lenders' Proportions in Credit Facility as of December 19, 1997
attached hereto. Interest accrued but remaining unpaid on the portion of the
outstanding principal balance under the Credit Facility shall be prorated to
the Effective Date and disbursed by Agent Bank to Lenders from the next payment
of accrued interest under the Note.
3.On the Effective Date, the respective aggregate Syndication Interests of the
Lenders in the Credit Facility shall be as set forth on the Schedule of Lenders
Proportions in Credit Facility as of December 19, 1997, a copy of which is
marked "Schedule 2.01(a)" affixed hereto and by this reference incorporated
herein and made a part hereof, which shall restate the Schedule of Lenders'
Proportions in Credit Facility attached as Schedule 2.01(a) to the Credit
Agreement, and all previous amendments and restatements thereof, for the
purpose of showing the Commitment Increase, the adjustment of the respective
Syndication Interests held by each of the Lenders and evidencing each Assuming
Lender's applicable Syndication Interest in the Credit Facility on and after
the Effective Date.
4.Agent Bank, on behalf of itself and each of the Lenders, makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made by Borrowers in or in connection
with the Credit Agreement or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Agreement, the Loan Documents
or any other instrument or document furnished pursuant thereto. Agent Bank, on
behalf of itself and each of the Lenders, makes no representation or warranty
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in connection with, and assumes no responsibility with respect to, the
solvency, financial condition or statements of the Borrowers or the performance
or observance by the Borrowers of any of their respective obligations under the
Credit Agreement, the Loan Documents or any other instrument or document
furnished in connection therewith.
5.Each Assuming Lender represents and warrants on behalf of itself that:
a.(i) it is duly organized and existing and it has full power and authority to
take, and has taken, all action necessary to execute and deliver this
Assumption Agreement and any other documents required to be executed or
delivered by it in connection with this Assumption Agreement, and to fulfill
its obligations hereunder; (ii) no notices to, or consents, authorizations or
approvals of, any person are required (other than any already given or
obtained) for its due execution, delivery and performance of this Assumption
Agreement; and apart from any agreements or undertakings or filings required by
the Credit Agreement, no further action by, or notice to, or filing with, any
person is required of it for such execution, delivery or performance; (iii)
this Assumption Agreement has been fully executed and delivered by it and
constitutes its legal, valid and binding obligations, enforceable against it in
accordance with the terms hereof, subject, as to enforcement, to bankruptcy,
insolvency, moratorium, reorganization and other laws of general application
relating to or affecting creditors' rights and to general equitable principles;
and (iv) it is eligible under the Credit Agreement to be a Lender in accordance
with the terms hereof.
b.(i) under applicable law and treaties no tax will be required to be withheld
by Borrowers or any Bank with respect to any payments to be made to such
Assuming Lender under the Credit Agreement, (ii) it agrees to furnish (if it is
organized under the laws of any jurisdiction other than the United States or
any State thereof) to the Agent Bank and the Borrowers prior to the time that
the Agent Bank or Borrowers are required to make any payment of principal,
interest or fees hereunder, duplicate executed original of either U.S. Internal
Revenue Service Form 4224 or U.S. Internal Revenue Service Form 1001 (wherein
the Assuming Lender claims entitlement to the benefits of a tax treaty that
provides for a complete exemption from U.S. federal income withholding tax on
all payments hereunder) and agrees to provide new Forms 4224 or 1001 upon the
expiration of any previously delivered form or comparable statements in
accordance with applicable U.S. law and regulations and amendments thereto,
duly executed and completed by the Assuming Lender, and (iii) it agrees to
comply with all applicable U.S. laws and regulations with regard to such
withholding tax exemption.
6.Borrowers represent and warrant as of the Effective Date that:
a.the representations and warranties contained in Article IV of the Credit
Agreement and contained in each of the other Loan Documents (other than
representations and warranties which expressly speak only as of a different
date, which shall be true and correct in all material respects as of such date)
are true and correct on and as of the Effective Date in all material respects
as though such representations and warranties had been made on and as of the
Effective Date, except to the extent that such representations and warranties
are not true and correct as a result of a change which is permitted by the
Credit Agreement or by any other Loan Document or which has been otherwise
consented to by Agent Bank;
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b.Since the date of the most recent financial statements referred to in Section
5.08(a)(iii) of the Credit Agreement, no Material Adverse Change has occurred
and no event or circumstance which could reasonably be expected to result in a
Material Adverse Change or Material Adverse Effect has occurred; and
x.xx event has occurred and is continuing which constitutes a Default or Event
of Default under the terms of the Credit Agreement.
7.Each Assuming Lender (a) acknowledges that it has received a copy of the
Credit Agreement and the Loan Documents, together with copies of the most
recent financial statements referred to in Section 5.08 of the Credit
Agreement, and such other documents and information as it has deemed
appropriate to make its own credit and legal analysis and decision to enter
into this Assumption Agreement; (b) agrees that it will, independently and
without reliance upon the Agent Bank 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 and legal decisions in taking or not taking action under
the Credit Agreement; and (c) appoints and authorizes the Agent Bank to take
such action as agent on its behalf and to exercise such powers under the Credit
Agreement as are delegated to the Agent Bank by the terms thereof, together
with such powers as are reasonably incidental thereto.
8.Intentionally omitted.
9.This Assumption Agreement may be signed in any number of counterparts, and
signatures to all counterparts thereto, when assembled together, shall
constitute signatures to this entire agreement with the same effect as if all
signatures were on the same document.
10.This Assumption Agreement shall be governed by and construed in accordance
with the internal laws of the State of Nevada without regard to principles of
conflicts of law. Borrowers further agree that the full and exclusive forum
for the determination of any action relating to this Assumption Agreement, the
Loan Documents, or any other document or instrument delivered in favor of Banks
pursuant to the terms hereof shall be either an appropriate Court of the State
of Nevada or the United States District Court or United States Bankruptcy Court
for the District of Nevada, except that an action to foreclose the Water Rights
Deed of Trust (California) may be brought in any state or federal court in San
Bernardino County, California, and the Borrowers hereby irrevocably submit to
the jurisdiction thereof.
11.Any amendment or waiver of any provision of this Assumption Agreement shall
be in writing and signed by the parties hereto. No failure or delay by either
party hereto in exercising any right, power or privilege hereunder shall
operate as a waiver thereof and any waiver of any breach of the provisions of
this Assumption Agreement shall be without prejudice to any rights with respect
to any other or further breach thereof.
IN WITNESS WHEREOF, the parties hereto have executed the foregoing Assumption
Agreement as of the day and year first above written.
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BORROWERS:
PRIMADONNA RESORTS, INC.,
a Nevada corporation
By__________________________
Name________________________
Title_______________________
THE PRIMADONNA CORPORATION, a Nevada corporation
By__________________________
Name________________________
Title_______________________
AGENT BANK:
XXXXX FARGO BANK,
National Association
By__________________________
Name________________________
Title_______________________
ASSUMING LENDERS:
XXXXX FARGO BANK,
National Association
By__________________________
Name________________________
Title_______________________
SOCIETE GENERALE
By__________________________
Name________________________
Title_______________________
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THE LONG TERM CREDIT BANK OF
JAPAN, LTD.
By__________________________
Name________________________
Title_______________________
BANK OF SCOTLAND
By__________________________
Name________________________
Title_______________________
CIBC INC.
By__________________________
Name________________________
Title_______________________
CREDIT LYONNAIS, Los Angeles Branch
By__________________________
Name________________________
Title_______________________
ABN AMRO BANK
By__________________________
Name________________________
Title_______________________
By__________________________
Name________________________
Title_______________________
00
XXX XXXX XX XXXX XXXXXX
By__________________________
Name________________________
Title_______________________
FIRST SECURITY BANK, N.A.
By__________________________
Name________________________
Title_______________________
THE SUMITOMO BANK, LTD.
By__________________________
Name________________________
Title_______________________
By__________________________
Name________________________
Title_______________________
U.S. BANK NATIONAL
ASSOCIATION
By__________________________
Name________________________
Title_______________________
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