Exhibit 10.6
EXECUTION
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LOAN AGREEMENT
Dated as of December 19, 2000
among
THE MISSISSIPPI BAND OF CHOCTAW INDIANS
D/B/A CHOCTAW RESORT DEVELOPMENT ENTERPRISE
(as the "Borrower"),
THE MISSISSIPPI BAND OF CHOCTAW INDIANS
(the "Tribe")
the Syndication Agent, Managing Agent and Lenders referred to herein,
and
BANK OF AMERICA, N.A.
as Issuing Lender, Collateral Agent and Administrative Agent
BANC OF AMERICA SECURITIES, LLC,
Lead Arranger and Sole Book Manager
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TABLE OF CONTENTS
ARTICLE 1. DEFINITIONS AND ACCOUNTING TERMS.........................................3
1.1 Defined Terms.............................................................3
1.2 Use of Defined Terms.....................................................38
1.3 Accounting Terms.........................................................38
1.4 Rounding.................................................................38
1.5 Exhibits and Schedules...................................................38
1.6 Miscellaneous Terms......................................................39
ARTICLE 2. THE LOANS...............................................................39
2.1 Loans-General............................................................39
2.2 Base Rate Loans..........................................................41
2.3 LIBOR Loans..............................................................41
2.4 Tax Exempt Loans.........................................................41
2.5 Letters of Credit........................................................42
2.6 Swing Line...............................................................46
2.7 Voluntary Reduction of Commitments.......................................49
2.8 Mandatory Reductions of Commitments......................................49
2.9 Administrative Agent's Right to Assume Funds Available for Advances......49
2.10 Reallocation of Commitments..............................................50
ARTICLE 3. PAYMENTS AND FEES.......................................................51
3.1 Principal and Interest...................................................51
3.2 Lead Arranger's Fees.....................................................52
3.3 Upfront Fees.............................................................53
3.4 Commitment Fees..........................................................53
3.5 Letter of Credit Fees....................................................53
3.6 Administrative Fees......................................................54
3.7 Increased Commitment Costs...............................................54
3.8 LIBOR Costs and Related Matters..........................................55
3.9 Default Rate.............................................................59
3.10 Computation of Interest and Fees.........................................59
3.11 Non-Business Days........................................................59
3.12 Manner and Treatment of Payments.........................................59
3.13 Taxes....................................................................60
3.14 Funding Sources..........................................................61
3.15 Failure to Charge Not Subsequent Waiver..................................61
3.16 Administrative Agent's Right to Assume Payments Will
be Made by the Borrower..................................................61
3.17 Concerning the Tax Exempt Loans..........................................62
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3.18 Fee Determination Detail.................................................63
3.19 Survivability............................................................63
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ARTICLE 4. REPRESENTATIONS AND WARRANTIES OF THE TRIBE.............................64
4.1 Existence and Qualification; Power; Compliance With Laws.................64
4.2 Authority; Compliance With Other Agreements and
Instruments and Government Regulations...................................64
4.3 No Governmental Approvals Required.......................................65
4.4 Gaming Activities of the Tribe...........................................65
4.5 Title to Property........................................................68
4.6 [Intentionally Omitted]..................................................66
4.7 Real Property............................................................66
4.8 Governmental Regulation..................................................66
4.9 Binding Obligations......................................................66
4.10 No Default...............................................................66
4.11 Disclosure...............................................................66
4.12 Gaming Laws..............................................................67
4.13 Arbitration..............................................................67
4.14 Financial Statements.....................................................67
ARTICLE 5. REPRESENTATIONS AND WARRANTIES OF THE BORROWER..........................68
5.1 Existence and Qualification; Power; Compliance With Laws.................68
5.2 Authority; Compliance With Other Agreements and
Instruments and Government Regulations...................................68
5.3 No Governmental Approvals Required.......................................69
5.4 Gaming Activities of the Tribe...........................................69
5.5 No Management Contract...................................................70
5.6 Financial Statements.....................................................70
5.7 Financial Statements of the Borrower.....................................70
5.8 No Other Liabilities; No Material Adverse Effect.........................70
5.9 Title to and Location of Property........................................71
5.10 Real Property............................................................71
5.11 Intangible Assets........................................................71
5.12 Governmental Regulation..................................................71
5.13 Litigation...............................................................71
5.14 Binding Obligations......................................................72
5.15 No Default...............................................................72
5.16 ERISA....................................................................72
5.17 Regulations T, U and X; Investment Company Act...........................72
5.18 Disclosure...............................................................72
5.19 Tax Liability............................................................73
5.20 Projections..............................................................73
5.21 Employee Matters.........................................................73
5.22 Gaming Laws..............................................................73
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5.23 Hazardous Materials......................................................73
5.24 Arbitration..............................................................73
5.25 Liens....................................................................74
5.26 Deposit Accounts.........................................................74
5.27 The Tax Exempt Loans.....................................................74
5.28 The Proposed Senior Financing............................................75
ARTICLE 6. AFFIRMATIVE COVENANTS (OTHER THAN
INFORMATION AND REPORTING REQUIREMENTS)................................76
6.1 Payment of Taxes and Other Potential Liens...............................76
6.2 Maintenance of Properties................................................76
6.3 Maintenance of Insurance.................................................76
6.4 Compliance With Laws.....................................................77
6.5 Preservation of Licenses and Permits.....................................77
6.6 Inspection Rights........................................................77
6.7 Construction Matters.....................................................77
6.8 Keeping of Records and Books of Account..................................78
6.9 Compliance With Agreements...............................................78
6.10 Use of Proceeds..........................................................78
6.11 Hazardous Materials Laws.................................................79
6.12 Tax Exempt Loans.........................................................79
ARTICLE 7. NEGATIVE COVENANTS OF THE BORROWER......................................80
7.1 Payment of Subordinated Obligations......................................80
7.2 Disposition of Property..................................................80
7.3 Investments and Acquisitions.............................................80
7.4 Hostile Tender Offers....................................................80
7.5 Distributions............................................................81
7.6 ERISA....................................................................81
7.7 Lines of Business........................................................82
7.8 Liens; Negative Pledges; Sales and Leasebacks............................82
7.9 Recourse Indebtedness and Contingent Obligations.........................82
7.10 Transactions with Affiliates.............................................83
7.11 Gaming Expenditures......................................................84
7.12 Total Leverage Ratio.....................................................84
7.13 Fixed Charge Coverage Ratio..............................................84
7.14 Capital Expenditures.....................................................84
7.15 Tax Exempt Loans.........................................................85
7.16 Tax Exempt Notes.........................................................85
7.17 Golden Moon Completion...................................................88
7.18 Deposit Accounts.........................................................88
7.19 Construction Covenants...................................................89
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7.20 Construction Plans.......................................................91
7.21 The Project Disbursement Account.........................................91
ARTICLE 8. RECOURSE COVENANTS OF THE TRIBE.........................................93
8.1 Continual Operation of Casinos...........................................93
8.2 Remittance of Available Cash Flow........................................93
8.3 Legal and Binding Obligations............................................93
8.4 Preservation of Existence; Operation.....................................93
8.5 Ownership of Existing Casino Operations..................................93
8.6 Amendments to Certain Documents..........................................93
8.7 Impairment of Contracts; Imposition of Governmental Charges..............94
8.8 Segregation of Gaming Assets.............................................95
8.9 Trust Property...........................................................95
8.10 Bankruptcy Matters; Etc..................................................95
8.11 Impairment of Contracts..................................................95
ARTICLE 9. INFORMATION AND REPORTING REQUIREMENTS..................................96
9.1 Financial and Business Information.......................................96
9.2 Compliance Certificates..................................................99
ARTICLE 10. CONDITIONS............................................................100
10.1 Closing.................................................................100
10.2 Advances Under the Tax Exempt Commitment................................102
10.3 Any Increasing Advance or Letter of Credit..............................103
10.4 Any Advance or Letter of Credit over $25,000,000........................104
ARTICLE 11. EVENTS OF DEFAULT AND REMEDIES
UPON EVENT OF DEFAULT................................................105
11.1 Events of Default.......................................................105
11.2 Remedies Upon Event of Default..........................................108
ARTICLE 12. THE ADMINISTRATIVE AGENT AND THE
COLLATERAL AGENT......................................................112
12.1 Appointment and Authorization...........................................112
12.2 Business Activities with the Tribe and the Borrower.....................112
12.3 Proportionate Interest of the Lenders in any Collateral.................112
12.4 Lenders' Credit Decisions...............................................113
12.5 Action by Administrative Agent..........................................113
12.6 Liability of Administrative Agent.......................................114
12.7 Indemnification.........................................................115
12.8 Successor Administrative Agent..........................................116
12.9 Performance of Conditions...............................................116
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12.10 The Collateral Agent and Intercreditor Agreement.....................117
12.11 No Obligations of the Tribe or the Borrower..........................117
ARTICLE 13. MISCELLANEOUS.........................................................118
13.1 Cumulative Remedies; No Waiver..........................................118
13.2 Amendments; Consents....................................................118
13.3 Costs, Expenses and Taxes...............................................119
13.4 Nature of the Lenders' Obligations......................................120
13.5 Survival of Representations and Warranties..............................120
13.6 Notices.................................................................120
13.7 Execution of Loan Documents.............................................121
13.8 Binding Effect; Assignment..............................................121
13.9 Lien on Deposits and Property in Possession of any Lender...............124
13.10 Sharing of Setoffs...................................................125
13.11 Indemnity by the Borrower............................................126
13.12 Nonliability of the Lenders..........................................127
13.13 No Third Parties Benefitted..........................................127
13.14 Confidentiality......................................................128
13.15 Hazardous Materials Indemnity........................................128
13.16 Further Assurances...................................................129
13.17 Integration..........................................................129
13.18 Governing Law........................................................129
13.19 Severability of Provisions...........................................130
13.20 Independent Covenants................................................130
13.21 Headings.............................................................130
13.22 Time of the Essence..................................................130
13.23 Tax Withholding Exemption Certificates...............................130
13.24 Arbitration Reference................................................130
13.25 PURPORTED ORAL AMENDMENTS............................................132
13.26 WAIVER OF RIGHT TO TRIAL BY JURY.....................................132
13.27 WAIVER OF SOVEREIGN IMMUNITY;
CONSENT TO JURISDICTION..............................................132
13.28 Lender Covenant......................................................134
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EXHIBITS
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A - Assignment Agreement
B - Compliance Certificate
C - Opinion - Tribal Attorney General
D - Opinions - external legal counsel to Borrower
E - Request for Letter of Credit
F - Request for Loan
G - Revolving Note
H - Tax Exempt Note
I - Tax Exempt Opinion of Bond Counsel
J - Tax Certificate
K - Collateral Agent and Intercreditor Agreement
SCHEDULES
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1.1A Excluded Obligations
1.1B Material Amenities of the Golden Moon
4.7A Golden Moon Real Property
4.7B Silver Star Real Property
5.20 Projections
5.26 Deposit Accounts
6.3 Real Property Insurance
7.8 Existing Liens and Rights of Others
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LOAN AGREEMENT
Dated as of December 19, 2000
This LOAN AGREEMENT ("Agreement") is entered into by and
between The Mississippi Band of Choctaw Indians d/b/a Choctaw Resort Development
Enterprise (the "Borrower"), an unincorporated business enterprise of The
Mississippi Band of Choctaw Indians, a federally recognized Indian Tribe and
Native American sovereign nation (the "Tribe"), the Tribe, Xxxxx Fargo Bank,
N.A., as Syndication Agent, The CIT Group/Equipment Financing, Inc., as Managing
Agent, Bank of America, N.A. ("Bank of America") and each other lender whose
name is set forth on the signature pages hereof or which may hereafter execute
and deliver an Assignment Agreement with respect to this Agreement pursuant to
Section 13.8 (collectively, the "Lenders") and Bank of America, as Collateral
Agent, Administrative Agent and Issuing Lender. While not a party hereto, Banc
of America Securities, LLC has served as the Lead Arranger and Sole Book Manager
for the credit facilities described herein.
RECITALS
A. The Tribe has previously entered into the Term Loan Agreement,
pursuant to which Bank of America and the other lenders party thereto
have made a loan to the Tribe in the principal amount of $75,000,000.
As of the date hereof, the aggregate principal amount of the loans
outstanding under the Term Loan Agreement is $59,375,000.
B. Concurrently with the execution of the Term Loan Agreement,
the Tribe entered into the Paired Swap Agreement.
C. Concurrently herewith, the Tribe, the Borrower, Bank of
America, as Administrative Agent under the Term Loan Agreement and the
lenders party thereto are entering into an Amended and Restated Term
Loan Agreement, and Bank of America, the Tribe and the Borrower are
entering into an Amendment to the Paired Swap Agreement (the "Swap
Amendment") to permit the execution, delivery and performance by the
Tribe and the Borrower of this Agreement.
D. It is intended that the Revolving Obligations hereunder and
under the other Loan Documents (including under any Secured Swap
Agreements), the obligations of the Tribe and the Borrower under the
Term Loan Agreement, and certain other obligations of the Tribe and the
Borrower described herein shall be entitled to the equal, ratable and
pari passu benefit of the Collateral Documents pursuant to the
Collateral Agent and Intercreditor Agreement described herein.
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In consideration of the mutual covenants and agreements herein contained, the
parties hereto covenant and agree as follows:
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ARTICLE 1.
DEFINITIONS AND ACCOUNTING TERMS
1.1 DEFINED TERMS. As used in this Agreement, the
following terms shall have the meanings set forth below:
"ACQUISITION" means any transaction, or any series of
related transactions, by which the Borrower directly or indirectly (i)
acquires any going business or all or substantially all of the assets
of any firm, partnership, joint venture, corporation or division
thereof, or any other business entity, whether through purchase of
assets, merger or otherwise, or (ii) acquires (in one transaction or as
the most recent transaction in a series of transactions) control of at
least a majority in ordinary voting power of the securities of a
corporation which have ordinary voting power for the election of
directors, or (iii) acquires (in one transaction or as the most recent
transaction in a series of transactions) control of a 50% or more
ownership interest in any partnership, joint venture or other business
entity.
"ADMINISTRATIVE AGENT" means Bank of America, when
acting in its capacity as the Administrative Agent under any of the
Loan Documents, and any successor Administrative Agent appointed
pursuant to Section 12.8.
"ADMINISTRATIVE AGENT'S OFFICE" means the
Administrative Agent's address as set forth on the signature pages of
this Agreement, or such other address as the Administrative Agent
hereafter may designate by written notice to the Borrower and the
Lenders.
"ADVANCE" means any Advance made or to be made by any
Lender to the Borrower as provided in Article 2, and INCLUDES each Base
Rate Advance, LIBOR Advance and Tax Exempt Advance.
"AFFILIATE" means, as to any Person, any other Person
which directly or indirectly controls, or is under common control with,
or is controlled by, such Person. As used in this definition, "control"
(and the correlative terms, "controlled by" and "under common control
with") shall mean possession, directly or indirectly, of power to
direct or cause the direction of management or policies (whether
through ownership of securities or partnership or other ownership
interests, by contract or otherwise). The Tribe, each enrolled member
of the Tribe and their immediate family members shall be deemed to be
Affiliates of the Borrower.
"AGGREGATE EFFECTIVE AMOUNT" means, as of any date of
determination and with respect to all Letters of Credit then
outstanding, the SUM
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of (a) the aggregate undrawn amount of all such Letters of Credit
then outstanding PLUS (b) the aggregate amounts paid by the Issuing
Lender under such Letters of Credit not then reimbursed to the
Issuing Lender by the Borrower pursuant to Section 2.5(d) and not
the subject of Advances made pursuant to Section 2.5(e).
"AGREEMENT" means this Loan Agreement, either as
originally executed or as it may from time to time be supplemented,
modified, amended, restated or extended.
"ANNUALIZED GAMING EBITDA" means, for any period of
four consecutive Fiscal Quarters, Gaming EBITDA for that period,
PROVIDED as of the last day of any of the first three full Fiscal
Quarters following the Golden Moon Completion Date, Annualized Gaming
EBITDA shall be equal to the Gaming EBITDA for each such Fiscal Quarter
which has then occurred since the Golden Moon Completion Date,
annualized on a straight line basis.
"APPROPRIATE INVESTMENT" means any "investment" of
the type described in section 1.148-1(b) of the Tax Regulations.
"APPROVED BUDGET" means the line item construction
budget for the Golden Moon Project (including related improvements to
the Silver Star) delivered to the Administrative Agent pursuant to
Section 10.1.
"APPROVED PLANS" means the plans, specifications,
construction plan and timetable prepared by or for the Borrower based
on the Preliminary Plans, as the same may be amended or supplemented
from time to time, all of which plans and specifications describe and
show the construction of the Golden Moon Project and the labor and
materials necessary for the construction thereof, in each case as
delivered to the Administrative Agent pursuant to Section 7.20 and so
designated in accordance with that Section.
"ASSIGNMENT AGREEMENT" means an Assignment Agreement
substantially in the form of Exhibit A.
"AUTHORIZED OFFICER" means each of the officers of
the Borrower, the Comptroller of the Tribe, the Chairman of the Board
of the Borrower, Secretary Treasurer of the Borrower or other natural
Persons who are designated in writing by Borrower as employees of
Borrower authorized to request . Any document or certificate hereunder
that is signed or executed by an Authorized Officer of another Person
shall be conclusively presumed to have been authorized by all necessary
corporate, partnership and/or other action on the part of such other
Person.
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"AVAILABLE CASH FLOW" means, for any calendar month
(a) Gaming EBITDA for that month, MINUS (b) the amount of Maintenance
Capital Expenditures made during that month, MINUS (c) any principal
repayments with respect to Indebtedness and Capital Leases constituting
Recourse Obligations required to be made during that period in cash,
and MINUS (d) the amount of cash Interest Charges during that month.
"BASE RATE" means, as of any date of determination,
the rate per annum (rounded upwards, if necessary, to the next 1/100 of
1%) equal to the HIGHER OF (a) the Prime Rate in effect on such date
and (b) the Federal Funds Rate in effect on such date plus 1/2 of 1%
(50 basis points).
"BASE RATE ADVANCE" means an Advance made under the
Revolving Commitment and specified to be a Base Rate Advance in
accordance with Article 2.
"BASE RATE LOAN" means a Loan made hereunder and
specified to be a Base Rate Loan in accordance with Article 2.
"BASE RATE MARGIN" means, (a) during the Initial
Pricing Period, 0.50% per annum, and (b) during each subsequent Pricing
Period, the interest rate margin per annum set forth below opposite the
Total Leverage Ratio as of the last day of the Fiscal Quarter ending
two months prior to the first day of that Pricing Period:
TOTAL LEVERAGE RATIO BASE RATE MARGIN
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Less than 0.50:1.00 0.50%
Greater than or equal to 0.50:1.00, 0.75%
but less than 1.00:1.00
Greater than or equal to 1.00:1.00, 1.00%
but less than 1.50:1.00
Greater than or equal to 1.50:1.00, 1.25%
but less than 2.00:1.00
Greater than or equal to 2.00:1.00 1.50%
"BOND COUNSEL" means counsel for the Borrower and the
Tribe having experience in tax exempt bond financing and reasonably
acceptable to the Administrative Agent.
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"BORROWER" means the Mississippi Band of Choctaw
Indians d/b/a Choctaw Resort Development Enterprise created under
Ordinance 56 of the Tribe.
"XXXX GAMING" means Xxxx Mississippi, Inc.
"BUREAU OF INDIAN AFFAIRS" means the United States
Department of the Interior, Bureau of Indian Affairs, and each
successor agency.
"BUSINESS DAY" means any Monday, Tuesday, Wednesday,
Thursday or Friday, OTHER THAN a day on which banks are authorized or
required to be closed in California or Mississippi.
"BUSINESS ENTERPRISE DIVISION" means the division of
Executive Branch of the Tribe created under Ordinance 56 of the Tribe
through which wholly-owned enterprises are chartered and operated.
"CAPITAL EXPENDITURE" means any expenditure that is
considered a capital expenditure under Generally Accepted Accounting
Principles, consistently applied, INCLUDING any amount that is required
to be treated as an asset subject to a Capital Lease.
"CAPITAL LEASE" means, as to any Person, a lease of
any Property by that Person as lessee that is, or should be in
accordance with Financial Accounting Standards Board Statement No. 13,
as amended from time to time, or if such Statement is not then in
effect, such other statement of Generally Accepted Accounting
Principles as may be applicable, recorded as a "capital lease" on the
balance sheet of that Person prepared in accordance with Generally
Accepted Accounting Principles.
"CASH" means, when used in connection with any
Person, all monetary and non-monetary items owned by that Person that
are treated as cash in accordance with Generally Accepted Accounting
Principles.
"CASH EQUIVALENTS" means, when used in connection
with any Person, that Person's Investments in:
(a) Government Securities due within one year after the
date of the making of the Investment;
(b) readily marketable direct obligations of any State of
the United States of America or any political
subdivision of any such State given on the date of
such investment a credit rating of at least Aa by
Xxxxx'x Investors Service, Inc. or AA by Standard &
Poor's
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Ratings Group, in each case due within one year
after the date of the making of the Investment;
(c) certificates of deposit issued by, bank deposits in,
eurodollar deposits through, bankers' acceptances of,
and reverse repurchase agreements covering Government
Securities executed by, any Lender or any other bank,
savings and loan or savings bank doing business in
and incorporated under the Laws of the United States
of America or any State thereof and having on the
date of such Investment combined capital, surplus and
undivided profits of at least $250,000,000, in each
case due within one year after the date of the making
of the Investment;
(d) certificates of deposit issued by, bank deposits in,
eurodollar deposits through, bankers' acceptances of,
and reverse repurchase agreements covering Government
Securities executed by, any branch or office located
in the United States of America of a bank
incorporated under the Laws of any jurisdiction
outside the United States of America having on the
date of such Investment combined capital, surplus and
undivided profits of at least $500,000,000, in each
case due within one year after the date of the making
of the Investment; and
(e) readily marketable commercial paper of corporations
doing business in and incorporated under the Laws of
the United States of America or any State thereof
given on the date of such Investment the highest
credit rating by Xxxxx'x Investors Service, Inc. and
Standard & Poor's Corporation, in each case due
within 270 days after the date of the making of the
Investment.
"CHANGE IN CONTROL" means (a) the Borrower ceases to
be a wholly-owned unit, instrumentality or subdivision of the
government of the Tribe, (b) the Tribe or the Borrower engages any
external third party consultant or manager to operate all or any
material portion of any of the Existing Casino Operations (excluding
management in the ordinary course of insular portions of the Existing
Casino Operations other than gaming operations, such as hotel, food,
retail or convention sales operations) OTHER THAN employees of the
Tribe or the Borrower, as applicable; or (c) the Tribe or the Borrower
sells, assigns, transfers, leases or otherwise disposes of all or
substantially all of the Gaming Assets to, any Person.
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"CHOCTAW GAMING COMMISSION" means the Choctaw Gaming
Commission, the agency of the Tribe having primary regulatory
jurisdiction over the Class II and Class III gaming activities of the
Tribe.
"CLOSING DATE" means the time and Business Day on
which the consummation of all of the transactions contemplated in
Section 10.1 occurs.
"CODE" means the Internal Revenue Code of 1986, as
amended or replaced and as in effect from time to time.
"COLLATERAL" means all of the collateral covered by
the Collateral Documents.
"COLLATERAL AGENT" means Bank of America, N.A., when
acting in its capacity as the collateral agent for the Secured
Creditors under any of the Collateral Documents.
"COLLATERAL AGENT AND INTERCREDITOR AGREEMENT" means
the Collateral Agent and Intercreditor Agreement executed on the
Closing Date, substantially in the form of Exhibit K, by Borrower, the
Tribe, the Administrative Agent, the Administrative Agent under the
Term Loan Agreement and the Collateral Agent either as originally
executed or as it may from time to time be supplemented, modified,
amended, restated or extended.
"COLLATERAL DOCUMENTS" means the Security Agreement,
the Deposit Account Agreements and any other security agreement, pledge
agreement or other collateral security agreement hereafter executed and
delivered by the Borrower or any other Party to secure the Revolving
Obligations.
"COMMISSION" means the National Indian Gaming
Commission.
"COMMITMENT FEE RATE" means, (a) during the Initial
Pricing Period, 0.40% per annum, and (b) during each subsequent Pricing
Period, the rate per annum set forth below opposite the Total Leverage
Ratio as of the last day of the Fiscal Quarter ending two months prior
to the first day of that Pricing Period:
TOTAL LEVERAGE RATIO COMMITMENT FEE RATE
-------------------- -------------------
Less than 0.50:1.00 0.40%
Greater than or equal to 0.50:1.00 0.50%
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but less than 2.00:1.00
Greater than or equal to 2:00:1:00 0.60%
"COMMITMENTS" means, collectively, the Revolving
Commitment and the Tax Exempt Commitment.
"COMPACT" means the Tribal-State Compact For
Regulation of Class III Gaming on the Mississippi Band of Choctaw
Indians Reservation in Mississippi entered into between the Tribe and
the State of Mississippi pursuant to IGRA, dated December 4, 1994, as
amended by Amendments dated August 26, 1994 and May, 1996.
"COMPLIANCE CERTIFICATE" means a certificate
substantially in the form of Exhibit B, properly completed and signed
by a Senior Officer of the Borrower.
"COMPUTATION DATE" has the meaning set forth in
section 1.148-1(b) of the Tax Regulations.
"CONSTITUTION" means the revised Constitution of the
Tribe adopted by the Tribe and ratified by the Tribe's members by
Tribal Referendum dated December 17, 1974, and approved by Bureau of
Indian Affairs on March 28, 1975, as amended as of the Closing Date.
"CONSTRUCTION CONSULTANT" means a construction
consultant designated by the Administrative Agent and consented to by
the Borrower, with such consent not to be unreasonably withheld or
delayed.
"CONSTRUCTION PROGRESS REPORT" means a report
prepared by the Construction Consultant in a form which is reasonably
acceptable to the Administrative Agent describing the progress of
construction of the Golden Moon Project, which report shall include an
analysis and comparison of the progress of construction to the
Preliminary Plans (until the Approved Plans are finalized in accordance
with Section 7.20), the Approved Plans and Approved Budget.
"CONTINGENT OBLIGATION" means, as to any Person, any
(a) direct or indirect guarantee of Indebtedness of, or other
obligation performable by, any other Person, INCLUDING any endorsement
(other than for collection or deposit in the ordinary course of
business), co-making or sale with recourse of the obligations of any
other Person or (b) contractual assurance (not arising solely by
operation of Law) given to an obligee with respect to the performance
of an obligation by, or the financial condition of, any other Person,
whether direct,
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indirect or contingent, INCLUDING any purchase or repurchase
agreement covering such obligation or any collateral security
therefor, any agreement to provide funds (by means of loans, capital
contributions or otherwise) to such other Person, any agreement to
support the solvency or level of any balance sheet item to such
other Person, or any other arrangement of whatever nature having the
effect of assuring or holding harmless any obligee against loss with
respect to any obligation of such other Person including without
limitation any "keep-well", "take-or-pay" or "through put" agreement
or arrangement. As of each date of determination, the amount of any
Contingent Obligation shall be deemed to be an amount equal to the
stated or determinable amount of the related primary obligation
(unless the Contingent Obligation is limited by its terms to a
lesser amount, in which case to the extent of such amount) or, if
not stated or determinable, the maximum reasonably anticipated
liability in respect thereof as determined by the Person in good
faith.
"CONTRACTUAL OBLIGATION" means, as to any Person, any
provision of any outstanding Securities issued by that Person or of any
material agreement, instrument or undertaking to which that Person is a
party or by which it or any of its Property is bound.
"CREDITORS" means, collectively, the Administrative
Agent, the Collateral Agent, the Issuing Lender, the Swing Line Lender,
the Lenders, the counterparties to any Secured Swap Agreements, the
Lead Arranger, the Syndication Agent, the Managing Agent, and their
respective successors in interest.
"DEBTOR RELIEF LAWS" means the Bankruptcy Code of the
United States of America, as amended from time to time, and all other
applicable liquidation, conservatorship, bankruptcy, moratorium,
rearrangement, receivership, insolvency, reorganization, or similar
debtor relief Laws from time to time in effect affecting the rights of
creditors generally.
"DEFAULT" means any event that, with the giving of
any applicable notice or passage of time, or both, would be an Event of
Default.
"DEFAULT RATE" means the interest rate set forth in
Section 3.9.
"DEPOSIT ACCOUNT AGREEMENT" means the Deposit Account
Agreements executed by Borrower in favor of the Collateral Agent for
the benefit of the Secured Creditors (whether on the Closing Date or
thereafter substantially in the form executed on the Closing Date as to
Borrower's then existing accounts), either as originally executed or as
it may from time to time be supplemented, modified, amended, restated
or extended.
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"DESIGNATED MARKET" means, for any Loan, the London
Eurodollar Market, PROVIDED that if the Administrative Agent determines
that the London Eurodollar Market is unavailable or reasonably
inconvenient, "Designated Market" means such other offshore market for
deposits in dollars as the Administrative Agent may reasonably
designate.
"DISBURSEMENT FUNDS" means, collectively, the Golden
Moon Disbursement Fund and the Silver Star Disbursement Fund,
constituting funds which are Gaming Assets from which the Borrower
makes Distributions pursuant to Section 7.5(b). The funds described on
the ledger accounts constituting the Golden Moon Disbursement Fund and
the Silver Star Disbursement Fund may, in the Borrower's discretion, be
kept in a single deposit account.
"DISPOSITION" means the sale, transfer or other
disposition of Gaming Assets in any single transaction or series of
related transactions of any individual asset, or group of related
assets, that has or have at the date of the Disposition a book value or
fair market value (which shall be deemed to be equal to the sales price
for such asset or assets upon a sale to a Person that is not an
Affiliate of the Tribe) of $1,000,000 or more, OTHER THAN (i) the sale
or other disposition of inventory in the ordinary course of business,
(ii) the sale or other disposition of equipment or other personal
property that is replaced by equipment or personal property, as the
case may be, performing substantially the same function not later than
one hundred and eighty days after such sale or disposition, (iii) the
sale or other disposition of obsolete equipment and (iv) Distributions
permitted by Section 7.5.
"DISTRIBUTION" means (a) any transfer of Cash or
other Property from the Disbursement Funds to any other fund or account
of the Tribe or the Borrower or any transfer from any fund or account
maintained by or for the Existing Casino Operations to any fund or
account of the Tribe or the Borrower not maintained for the exclusive
use of the Existing Casino Operations (OTHER THAN the Disbursement
Funds), or any transfer from any fund or account of the Existing Casino
Operations to any of the Tribe's members or Affiliates or to their
respective accounts, (b) any retirement, redemption, prepayment of
principal, purchase or other acquisition for value by the Borrower of
any Securities or other obligations of the Tribe or any of its
Affiliates which are not Recourse Obligations (or of any other Person
to the extent that such Securities or other obligations are guaranteed
by the Tribe or any of its Affiliates), (c) the declaration or payment
by the Borrower of any dividend or distribution to the Tribe or any of
its members or any of its Affiliates out of Gaming Assets, whether in
Cash or in Property (but not the making of arm's length payments for
-11-
goods and services provided by the Tribe or any of its Affiliates to
the Borrower in the manner contemplated by Section 7.10), (d) any other
payment, assignment or transfer, whether in Cash or other Property
consisting of Gaming Assets to the general tribal fund of the Tribe or
to any of its members or Affiliates, including the payment of any tax,
fee, charge or assessment imposed by the Tribe on the Existing Casino
Operations, their revenues or Properties, PROVIDED THAT, none of the
following shall be considered to be Distributions: (x) the assessment
by the Tribe against the Existing Casino Operations of the reasonable
regulatory and administrative costs and expenses of the Tribe
associated therewith in accordance with past practices, (y) the
remittance by the Existing Casino Operations of taxes imposed in
accordance with Section 8.7(b) to the Tribe, nor (z) the reimbursement
of costs associated with the design, development or construction of the
Golden Moon Project advanced by the Tribe from time to time and
demonstrated as such to the reasonable satisfaction of the
Administrative Agent.
"DOLLARS" or "$" means United States dollars.
"ELIGIBLE ASSIGNEE" means (a) with respect to any
Lender, another Lender (b) with respect to any Lender, any Affiliate of
that Lender, (c) any commercial bank having a combined capital and
surplus of $100,000,000 or more, (d) any (i) savings bank, savings and
loan association or similar financial institution or (ii) insurance
company engaged in the business of writing insurance which, in either
case (A) has a net worth of $200,000,000 or more, (B) is engaged in the
business of lending money and extending credit under credit facilities
substantially similar to those extended under this Agreement and (C) is
operationally and procedurally able to meet the obligations of a Lender
hereunder to the same degree as a commercial bank and (e) any other
financial institution (INCLUDING a mutual fund or other fund) having
total assets of $250,000,000 or more which meets the requirements set
forth in subclauses (B) and (C) of clause (d) above; PROVIDED that each
Eligible Assignee must either (a) be organized under the Laws of the
United States of America, any State thereof or the District of Columbia
or (b) be organized under the Laws of the Cayman Islands or any country
which is a member of the Organization for Economic Cooperation and
Development, or a political subdivision of such a country, and (i) act
hereunder through a branch, agency or funding office located in the
United States of America and (ii) be exempt from withholding of tax on
interest and deliver the documents related thereto pursuant to Section
13.23.
"ENTERPRISE ADMINISTRATIVE FEES" means reasonable
regulatory and administrative fees of the Choctaw Resort Development
Enterprise
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imposed upon the Existing Casino Operations and which are
properly treated as operating expenses of the Borrower pursuant to
Generally Accepted Accounting Principles to the extent that the same
are not in excess, during any Fiscal Quarter, of 2% of the gross
revenues of the Existing Casino Operations for the immediately
preceding Fiscal Quarter.
"ERISA" means the Employee Retirement Income Security
Act of 1974, and any regulations issued pursuant thereto, as amended or
replaced and as in effect from time to time.
"ERISA AFFILIATE" means, with respect to any Person,
any Person (or any trade or business, whether or not incorporated) that
is under common control with that Person within the meaning of Section
414 of the Internal Revenue Code, Title 26, U.S.C.
"EURODOLLAR MARKET" means a regular established
market located outside the United States of America by and among banks
for the solicitation, offer and acceptance of Dollar deposits in such
banks.
"EURODOLLAR OBLIGATIONS" means eurocurrency
liabilities, as defined in Regulation D.
"EVENT OF DEFAULT" shall have the meaning provided in
Section 11.1.
"EXCLUDED OBLIGATIONS" means the obligations incurred
prior to the Closing Date to finance the Tribe's non-casino activities
and described on Schedule 1.1A in an aggregate amount not to exceed
$20,000,000, as the same may be amended from time to time in any manner
which does not increase the principal amount thereof or grant express
recourse to the Gaming Assets, but not any refinancings of such
Indebtedness, and other obligations with respect to Capital Leases in
an aggregate amount not to exceed $1,000,000.
"EXCLUDED PROPERTY" means any Property of the Tribe
which is not Gaming Assets.
"EXISTING CASINO OPERATIONS" means the gaming,
lodging, entertainment, food and beverage and other related operations
conducted at the Silver Star and the Golden Moon.
"FEDERAL FUNDS RATE" means, as of any date of
determination, a fluctuating interest rate per annum equal to the
federal funds effective rate for the previous Business Day as quoted by
the Federal Reserve Bank of New York or, if such rate is not so
published for any day which is a Business Day, the
-13-
average of the quotations for such day on such transactions received
by the Administrative Agent from three Federal funds brokers of
recognized standing selected by the Administrative Agent.
"FISCAL QUARTER" means the fiscal quarter of the
Borrower consisting of a three month fiscal period ending on each
December 31, March 31, June 30 and September 30.
"FISCAL YEAR" means the fiscal year of the Borrower
consisting of a twelve month fiscal period ending on each September 30.
"FIXED CHARGE COVERAGE RATIO" means, as of each date
of determination, the ratio of (a) Annualized Gaming EBITDA as of such
date, to (b) the SUM of (i) Interest Charges with respect to Recourse
Obligations to the extent payable in cash during that period, PROVIDED
that to the extent that any portion of the period of calculation occurs
prior to February 1, 2001, that portion of Interest Charges which
relate to the Term Obligations and the Paired Swap Agreement shall be
annualized on a straight line basis for the period since the February
1, 2000, PLUS (ii) the amount of principal repayments with respect to
the Revolving Obligations and the Term Obligations required to be made
during that period in cash, PROVIDED that to the extent that any
portion of the period of calculation occurs prior to February 1, 2001,
the amount so payable with respect to the Term Obligations shall be
deemed to be $18,750,000, PLUS (iii) other payments of principal with
respect to Recourse Obligations (other than the Excluded Obligations)
required to be made during that period in cash, PLUS (iv) taxes (if
any) required to be paid with respect to the income or revenues of the
Existing Casino Operations during that period, PLUS (v) Maintenance
Capital Expenditures for that period, PLUS (vi) Distributions made
during that period by the Existing Casino Operations to the general
fund of the Tribe in accordance with Section 7.5.
"FORCE MAJEURE EVENT" means the occurrence of any
fire, flood, earthquake, tornado, sandstorm or other physical casualty;
breakdown, accident or other acts of God; acts of war, insurrection,
civil strife and commotion; in each such case which shall make it
physically impossible, unlawful or commercially impracticable to
continue construction of or complete the Golden Moon Project or to
operate the Existing Casinos or any relevant part thereof; PROVIDED,
however, that the following shall not constitute Force Majeure Events:
any increase in the Budget to an amount in excess of that permitted
hereby as a result of (i) any condition, defect, or physical
circumstance of the land, buildings or improvements which either now
exists or which results from the demolition, development or
construction of the Golden Moon Project which should have been known or
discovered with the exercise of reasonable
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diligence or investigation, including errors, omissions or defects
in construction, plans or development, (ii) the completion or
amendment of the Preliminary Plans or the Approved Plans after the
date hereof not approved by the Administrative Agent with the
consent of the Requisite Lenders or omissions or defects in the
construction plans in existence on the date hereof, (iii) increase
in the cost of labor, materials and equipment as the result of
ordinary cyclical or seasonal forces, or general inflation, (iv) any
failure of any contractor or subcontractor, vendor or other supplier
that itself is not caused by a Force Majeure Event to perform at the
times, at the price or in the manner contracted for or to adhere to
the Preliminary Plans, the Approved Plans or the Approved Budget, or
(v) any defects, errors or omissions in any construction contract,
subcontract, supply contract, or the Approved Budget.
"GAMING ASSETS" means any and all now owned or
hereafter acquired real, mixed and personal Property of the Borrower
and the Tribe which is (a) associated with the gaming and casino
business of the Borrower or the Tribe conducted at the Silver Star or
the Golden Moon, or (b) reflected on the balance sheet described in
Section 5.6(a) or any subsequent balance sheet for the Silver Star or
Golden Moon hereafter delivered by the Borrower to the Administrative
Agent or the Lenders in connection herewith, PROVIDED that, once
properly distributed, any funds distributed from the Disbursement Funds
to other general funds of the Tribe's Tribal government in compliance
with Section 7.5(b) shall no longer be considered to be "Gaming
Assets." "Gaming Assets" in any event INCLUDES without limitation (i)
the real property described on Schedules 4.7A and 4.7B and the
improvements and fixtures located therein, including without limitation
the Silver Star and the Golden Moon, (ii) and all associated tangible
and intangible property of the Tribe or the Borrower associated
therewith, including without limitation, all gaming, entertainment,
restaurant and related equipment, all intellectual property associated
with the Existing Casino Operations, the books and records thereof and
all office equipment and receptacles associated therewith, (iii) all
gaming revenues of the Borrower and the Tribe derived from the Existing
Casino Operations including without limitation the right to receive
distributions therefrom, (iv) all tangible Property located within the
area described on Schedules 4.7A and 4.7B, and (v) the Disbursement
Funds. It is agreed that any future resort casino properties owned by
the Borrower or the Tribe and located on land other than that described
on Schedules 4.7A and 4.7B will not constitute "Gaming Assets" as
described herein.
"GAMING BOARD" means, collectively, (a) The Choctaw
Gaming Commission, (b) the Mississippi Gaming Commission, (c) the
Commission, and (d) any other Governmental Agency that holds licensing
or permit authority
-15-
over gambling, gaming or casino activities conducted by the Borrower
or the Tribe within its jurisdiction.
"GAMING EBITDA" means, for any period, (a) the Net
Income of the Borrower from Existing Casino Operations for that period,
PLUS (b) Interest Charges of the Borrower with respect to Recourse
Obligations to the extent deducted in arriving at such Net Income for
that period, PLUS (c) (without duplication) the aggregate amount, if
any, of federal and state taxes on or measured by income of the
Borrower for that period (whether or not payable during that period) to
the extent deducted in arriving at Net Income, PLUS (d) depreciation
and amortization of the Borrower attributable to Existing Casino
Operations and the Gaming Assets for that period to the extent deducted
in arriving at Net Income, PLUS (e) management fee payments (if any)
paid to Xxxx Gaming during that period, PLUS (f) Pre-Opening Expenses
for that period to the extent deducted in arriving at Net Income, in
each case as determined in accordance with Generally Accepted
Accounting Principles and in each case to the extent deducted in
arriving at Net Income.
"GAMING LAWS" means IGRA, the Gaming Ordinance and
all other Laws pursuant to which any Gaming Board possesses licensing
or permit authority over gambling, gaming, or casino activities
conducted by the Borrower or the Tribe within its jurisdiction.
"GAMING ORDINANCE" means Ordinance 16 (v), Title 15
of the Choctaw Tribal Code.
"GENERALLY ACCEPTED ACCOUNTING PRINCIPLES" means, as
of any date of determination, accounting principles set forth as
generally accepted in the effective Statements of the Auditing
Standards Board of the American Institute of Certified Public
Accountants as of the date of this Agreement, or if such statements are
not then in effect, accounting principles that are then approved by a
significant segment of the accounting profession in the United States
of America. The term "CONSISTENTLY APPLIED," as used in connection
therewith, means that the accounting principles applied are consistent
in all material respects to those applied at prior dates or for prior
periods.
"GOLDEN MOON" means the proposed casino and resort
property and related retail, dining and entertainment facilities and
hotel facilities commonly known as "Golden Moon Resort and Casino"
owned by Borrower and located on the Tribe's reservation near
Philadelphia, Mississippi (including any future improvements or
expansions thereof), which facilities are located upon the real
property described on Schedule 4.7A.
-16-
"GOLDEN MOON COMPLETION DATE" means the date upon
which (a) all of the material facilities and amenities described on
Schedule 1.1B have been substantially completed in accordance with the
Approved Plans, and (b) the Administrative Agent has received a
certificate executed by a Senior Officer of the Borrower and the
project architect and contractor certifying that the material amenities
of the Golden Moon described on Schedule 1.1B have been substantially
completed and that the Golden Moon and the Golden Moon Project comply
in all material respects with all applicable zoning, building and land
use Laws.
"GOLDEN MOON DISBURSEMENT FUND" means a ledger
account on the Borrower's balance sheet for the Golden Moon containing
money which is Gaming Assets. Funds contained in the Golden Moon
Disbursement Fund may be invested by the Borrower in any manner, but
shall be construed to be Gaming Assets until distributed by the
Borrower from the Golden Moon Disbursement Fund to the Tribe's general
fund in accordance with Section 7.5(b).
"GOLDEN MOON PROJECT" means the proposed construction
of the Golden Moon and related improvements to the Silver Star
described in the Approved Plans and the Approved Budget.
"GOVERNMENT SECURITIES" means readily marketable
direct full faith and credit obligations of the United States of
America or obligations unconditionally guaranteed by the full faith and
credit of the United States of America.
"GOVERNMENTAL AGENCY" means (a) any international,
foreign, federal, tribal, state, county or municipal government, or
political subdivision thereof, (b) any governmental or
quasi-governmental agency, authority, board, bureau, commission,
department, instrumentality or public body, (c) any court,
administrative tribunal or public utility, or (d) any arbitration
tribunal or other non-governmental authority to whose jurisdiction a
Person has consented.
"GROSS PROCEEDS", with respect to any Issue of the
Tax Exempt Notes means any proceeds as defined in section 1.148-1(b) of
the Tax Regulations, and any replacement proceeds as defined in section
1.148-1(c) of the Tax Regulations, of such Issue.
"HAZARDOUS MATERIALS" means substances defined as
hazardous substances pursuant to the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, 42 USC Section 9601,
ET SEQ., or as hazardous, toxic or pollutant pursuant to the Hazardous
Materials
-17-
Transportation Act, 49 USC Section 1801, ET SEQ., the Resource
Conservation and Recovery Act, 42 USC Section 6901, ET SEQ., or in
any other applicable Hazardous Materials Law, in each case as such
laws are amended from time to time.
"HAZARDOUS MATERIALS CLAIMS" means the matters
described in clauses (a) and (b) of Section 5.10.
"HAZARDOUS MATERIALS LAWS" means all federal, tribal,
state or local laws, ordinances, rules or regulations governing the
disposal of Hazardous Materials, to the extent applicable.
"IGRA" means the federal Indian Gaming Regulatory Act
of 1988, as amended, codified at 25 U.S.C. Section 2701, ET SEQ.
"INDEBTEDNESS" means, as to any Person, without
duplication, (a) all indebtedness of such Person for borrowed money,
(b) that portion of the obligations of such Person under Capital Leases
which should properly be recorded as a liability on a balance sheet of
that Person prepared in accordance with Generally Accepted Accounting
Principles, (c) any obligation of such Person that is evidenced by a
promissory note or other instrument representing an extension of credit
to such Person, whether or not for borrowed money, (d) any obligation
of such Person for the deferred purchase price of Property or services
(OTHER THAN trade or other accounts payable in the ordinary course of
business in accordance with customary terms), (e) any obligation of
such Person that is secured by a Lien on assets of such Person, whether
or not that Person has assumed such obligation or whether or not such
obligation is non-recourse to the credit of such Person, but only to
the extent of the lesser of (i) the outstanding principal amount of the
obligation (or, with respect to any letter of credit, the amount
available for drawing thereunder), and (ii) the fair market value of
the assets so subject to the Lien, (f) obligations of such Person
arising under acceptance facilities or under facilities for the
discount of accounts receivable of such Person, (g) obligations of such
Person for unreimbursed draws under letters of credit issued for the
account of such Person and (h) to the extent of the Specified Swap
Amount therefor, the net obligations of such Person under Swap
Agreements.
"INITIAL PRICING PERIOD" means the period beginning
on the Closing Date and ending on February 28, 2001.
"INTANGIBLE ASSETS" means assets that are considered
intangible assets under Generally Accepted Accounting Principles,
INCLUDING customer lists, goodwill, computer software and capitalized
research and development costs.
-18-
"INTEREST CHARGES" means, with respect to any fiscal
period, the SUM OF (a) all interest, fees, charges and related expenses
payable with respect to that fiscal period to a lender in connection
with borrowed money or the deferred purchase price of assets that is
treated as interest in accordance with Generally Accepted Accounting
Principles, PLUS (b) the portion of rent payable with respect to that
fiscal period under Capital Leases that should be treated as interest
in accordance with Generally Accepted Accounting Principles.
"INTEREST DIFFERENTIAL" means, with respect to any
prepayment of a Loan on a day other than the last day of the applicable
Interest Period, (a) the per annum interest rate payable with respect
to that Loan as of the date of the prepayment, MINUS (b) LIBOR on or as
near as practicable to the date of the prepayment for a Loan commencing
on such date and ending on the last day of the applicable Interest
Period; PROVIDED that if LIBOR so prescribed is equal to or within 1/8%
less than LIBOR for the Loan that was prepaid, then 1/8 of 1% shall be
subtracted from LIBOR so prescribed. The determination of the Interest
Differential by the Administrative Agent shall be conclusive in the
absence of manifest error.
"INTEREST PERIOD" means, as to each Loan, the period
commencing on the date that Loan is made and ending on the last LIBOR
Business Day of the next calendar month; PROVIDED that:
(a) The first day of any Interest Period shall be a LIBOR
Business Day;
(b) Any Interest Period that would otherwise end on a day
that is not a LIBOR Business Day shall be extended to
the next succeeding LIBOR Business Day unless such
LIBOR Business Day falls in another calendar month,
in which case such Interest Period shall end on the
next preceding LIBOR Business Day;
(c) No LIBOR Loan shall have an Interest Period which
results in the sum of (i) the aggregate principal
amount of all LIBOR Loans having Interest Periods
ending after any Reduction Date, plus (ii) the
Aggregate Effective Amount of all Letters of Credit
having expiration dates after that Reduction Date
being in excess of the Revolving Commitment (after
giving effect to any required reductions thereof on
that Reduction Date); and
(d) No Interest Period shall extend beyond the Maturity
Date.
-19-
"INTERNAL REVENUE CODE" means the Internal Revenue
Code of 1986, Title 26, U.S.C., as amended or replaced and as in effect
from time to time.
"INVESTMENT" means, when used in connection with any
Person, any investment by or of that Person, whether by means of
purchase or other acquisition of capital stock or other Securities of
any other Person or by means of loan, advance, capital contribution,
guaranty or other debt or equity participation or interest, or
otherwise, in any other Person (or, in the case of any Investment under
Section 7.3(d), any transfer of funds from the balance sheet of the
Existing Casinos to another business enterprise of the Borrower or the
Tribe), INCLUDING any partnership and joint venture interests of such
Person in any other Person. The amount of any Investment shall be the
amount actually invested, without adjustment for increases or decreases
in the value of such Investment.
"ISSUE" shall refer to any specific Tax Exempt
Advance constituting an "issue" within the meaning of section 1.150-1
of the Treasury Regulations. Unless otherwise indicated or made
necessary by the context, each of the covenants and representations set
forth in Section 5.27 hereof are intended to be made, and is made,
separately with respect to each Issue of the Tax Exempt Notes.
"ISSUING LENDER" means Bank of America, N.A.
"LAWS" means, collectively, all international,
foreign, federal, tribal, state and local constitutions, statutes,
treaties, rules, regulations, ordinances, codes and administrative or
judicial precedents, as may be applicable.
"LEAD ARRANGER" means Banc of America Securities,
LLC. The Lead Arranger has arranged the credit facilities described
herein, but is not a party hereto and has no obligations under the Loan
Documents.
"LENDER" means each of the lenders party to this
Agreement on the Closing Date and each other lender which hereafter
becomes a party hereto in accordance with Section 13.8.
"LETTER OF CREDIT" means any Letter of Credit issued
by the Issuing Lender under the Revolving Commitment pursuant to
Section 2.5, either as originally issued or as the same may be
supplemented, modified, amended, renewed, extended or supplanted.
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"LETTER OF CREDIT FEE" means, for each Pricing
Period, the per annum rate which is equal to the LIBOR Margin for that
Pricing Period.
"LIBOR" means, with respect to any Loan, the interest
rate (rounded upward to the next 1/100 of 1%) determined to be equal to
the LIBOR Base Rate DIVIDED BY the remainder of (a) 1 MINUS (b) the
Reserve Percentage.
"LIBOR ADVANCE" means an Advance made under the
Revolving Commitment and specified to be a LIBOR Advance in accordance
with Article 2.
"LIBOR BASE RATE" means, with respect to any Loan,
the interest rate per annum (determined solely by the Administrative
Agent) at which deposits in dollars are offered by Bank of America to
prime banks in the Designated Market at or about 11:00 a.m. local time
in the Designated Market, two LIBOR Business Days before the first day
of the applicable Interest Period in an aggregate amount approximately
equal to the amount of such Loan and for a period of time comparable to
the number of days in the applicable Interest Period. The determination
of the LIBOR Base Rate by the Administrative Agent shall be conclusive
in the absence of manifest error.
"LIBOR BUSINESS DAY" means any Business Day on which
dealings in dollar deposits are conducted by and among banks in the
Designated Market.
"LIBOR LENDING OFFICE" means, as to each Lender, its
office or branch so designated by written notice to the Borrower and
the Administrative Agent as its LIBOR Lending Office. If no LIBOR
Lending Office is designated by a Lender, its LIBOR Lending Office
shall be its office at its address for purposes of notices hereunder.
"LIBOR LOAN" means a Loan made hereunder and
specified to be a LIBOR Loan in accordance with Article 2.
"LIBOR MARGIN" means, (a) during the Initial Pricing
Period 1.75% per annum, and (b) during each subsequent Pricing Period,
the interest rate margin per annum set forth below opposite the Total
Leverage Ratio as of the last day of the Fiscal Quarter ending two
months prior to the first day of that Pricing Period:
TOTAL LEVERAGE RATIO LIBOR MARGIN
-------------------- ------------
Less than 0.50:1.00 1.75%
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Greater than or equal to 0.50:1.00,
but less than 1.00:1.00 2.00%
Greater than or equal to 1.00:1.00,
but less than 1.50:1.00 2.25%
Greater than or equal to 1.50:1.00,
but less than 2.00:1.00 2.50%
Greater than or equal to 2.00:1.00 2.75%
"LIBOR PERIOD" means, as to each LIBOR Loan, the
period commencing on the date specified by the Borrower pursuant to
Section 2.1(c) and ending 1, 2, 3 or 6 months thereafter, as specified
by the Borrower in the applicable Request for Loan; PROVIDED that:
(a) The first day of any LIBOR Period shall be a LIBOR
Business Day;
(b) Any LIBOR Period that would otherwise end on a day
that is not a LIBOR Business Day shall be extended to
the next succeeding LIBOR Business Day unless such
LIBOR Business Day falls in another calendar month,
in which case such LIBOR Period shall end on the next
preceding LIBOR Business Day;
(c) the Borrower may not specify a LIBOR Period that
extends beyond any Reduction Date unless the SUM of
(i) the aggregate principal amount of the LIBOR Loans
having a LIBOR Period ending after such Reduction
Date PLUS (ii) the aggregate maximum amount available
for drawing under Letters of Credit for which the
expiry date is after such Reduction Date, does not
exceed the aggregate Commitments (after giving effect
to any reduction thereto scheduled to be made on that
Reduction Date pursuant to Section 2.8(a)); and
(d) No LIBOR Period shall extend beyond the Maturity
Date.
"LIEN" means any mortgage, deed of trust, pledge,
hypothecation, assignment for security, security interest, encumbrance,
lien or charge of any kind, whether voluntarily incurred or arising by
operation of Law or otherwise, affecting any Property, INCLUDING any
agreement to grant any of the foregoing, any conditional sale or other
title retention agreement, any lease in the nature of a security
interest, and/or the filing of or agreement to give any financing
-22-
statement under the Uniform Commercial Code or comparable Law of any
jurisdiction with respect to any Property.
"LOAN" means the group of Advances made at any one
time by the Lenders pursuant to Article 2.
"LOAN DOCUMENTS" means, collectively, this Agreement,
the Notes, the Swing Line Documents, the Collateral Documents, the
Collateral Agent and Intercreditor Agreement, each Secured Swap
Agreement, each Request for Loan, each Request for Letter of Credit,
and any other agreements of any type or nature heretofore or hereafter
executed and delivered by the Borrower or any of its Affiliates to the
Administrative Agent or to any Lender in any way relating to or in
furtherance of this Agreement, INCLUDING the Paired Swap Agreement, in
each case either as originally executed or as the same may from time to
time be supplemented, modified, amended, restated, extended or
supplanted.
"MAINTENANCE CAPITAL EXPENDITURE" means a Capital
Expenditure for the maintenance, repair, restoration or refurbishment
of those portions of Existing Casino Operations which are open for
business on the Closing Date (or, as of the date of the Capital
Expenditure have been open for business for a period in excess of one
year), but EXCLUDING any Capital Expenditure which adds to or further
improves the Existing Casino Operations.
"MANAGING AGENT" means The CIT Group/Equipment
Financing, Inc. The capacity of the Managing Agent is titular in
nature, and The CIT Group/Equipment Financing, Inc. shall have no
duties or obligations under this Agreement and the other Loan Documents
by reason thereof over and above the duties and obligations of the
Lenders generally.
"MATERIAL ADVERSE EFFECT" means any set of
circumstances or events which (a) may reasonably be expected to have
any material adverse effect whatsoever upon the validity or
enforceability of any Loan Document, (b) may reasonably be expected to
be material and adverse to the condition (financial or otherwise) or
business operations or Properties or to the prospects of the Borrower,
(c) may reasonably be expected to be material and adverse to the
condition (financial or otherwise) or business operations of the
Existing Casino Operations or to the prospects of the Existing Casino
Operations, (d) materially impairs or may reasonably be expected to
materially impair the ability of the Borrower to perform the Revolving
Obligations, or (e) materially impairs or could reasonably be expected
to materially impair the ability of the Lenders or the Administrative
Agent to enforce the principal benefits intended to be created and
conveyed by the Loan Documents.
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"MATERIAL DOCUMENTS" means, collectively, the
Constitution, the Compact, and the Gaming Ordinance.
"MATURITY DATE" means December 31, 2005.
"MULTIEMPLOYER PLAN" means any employee benefit plan
of the type described in Section 4001(a)(3) of ERISA.
"NEGATIVE PLEDGE" means any covenant binding on the
Borrower or the Tribe that prohibits the creation of Liens on any
Gaming Assets.
"NET INCOME" means, with respect to any fiscal
period, the net income from continuing operations before extraordinary
or non-recurring items of the Existing Casino Operations for that
period, determined in accordance with Generally Accepted Accounting
Principles, consistently applied.
"NONGOVERNMENTAL PERSON" means the United States of
America or any agency, department or instrumentality thereof, or any
other person other than (i) a state or local governmental unit or (ii)
an Indian tribal government within the meaning of Section 7701(a)(40)
of the Code or a subdivision thereof within the meaning of Section
7871(d) of the Code.
"NONPURPOSE INVESTMENT" means any "investment
property," as defined in section 148(b) of the Code, in which Gross
Proceeds of the Tax Exempt Notes are invested and that is not acquired
to carry out the governmental purposes of the Tax Exempt Notes.
"NOTES" means, collectively, the Revolving Notes and
the Tax Exempt Notes.
"OPINION OF BOND COUNSEL" means a written opinion of
Bond Counsel in form and substance satisfactory to the Administrative
Agent, addressed to the Administrative Agent and the Lenders as to the
Tax Exempt Loans, and in any event substantially in the form of Exhibit
I.
"OUT-OF-BALANCE" means, as of each date of
determination, the amount, if any, determined by the Administrative
Agent by which:
(a) the greater of (i) the then unexpended amount of the
Approved Budget, or (ii) the amount required to
complete the Golden Moon Project, as determined by
the Administrative Agent following consultation with
the Construction Consultant, EXCEEDS
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(b) the SUM (without duplication) of (i) the then
available amount of the Loans under the Commitment,
PLUS (ii) the then unexpended and available amount of
any committed portion of the Proposed Senior
Financing, PLUS (iii) the amount then contained in
the Project Disbursement Account, PLUS (iv) provided
that Borrower is then in compliance with Section
7.21, the Remaining Equity Contribution Amount.
"OUTSTANDING OBLIGATIONS" means, as of each date of
determination, and giving effect to the making of any such credit
accommodations requested on that date, the SUM of (i) the aggregate
principal amount of the outstanding Loans, PLUS (ii) the Swing Line
Outstandings, PLUS (iii) the Aggregate Effective Amount of all Letters
of Credit.
"PAIRED SWAP AGREEMENT" means an ISDA Master
Agreement entered into by the Tribe with Bank of America and dated as
of February 1, 2000 with respect to the Term Obligations providing for
hedging of interest rates under the Term Loan Agreement.
"PARTY" means any Person other than the Creditors
which now or hereafter is a party to any of the Loan Documents.
"PBGC" means the Pension Benefit Guaranty Corporation
or any successor thereof established under ERISA.
"PENSION PLAN" means any "employee pension benefit
plan" that is subject to Title IV of ERISA and which is maintained for
employees of the Borrower or any of its ERISA Affiliates, OTHER THAN a
Multiemployer Plan.
"Permitted Encumbrances" means:
(a) inchoate Liens incident to construction or
maintenance of real property, or Liens incident to
construction or maintenance of real property, now or
hereafter filed of record for which adequate
accounting reserves have been set aside and which are
being contested in good faith by appropriate
proceedings and have not proceeded to judgment (or,
if a judgment has been rendered are the subject of an
appropriate bond), PROVIDED that, by reason of
nonpayment of the obligations secured by such Liens,
no such real property is subject to a material risk
of loss or forfeiture;
(b) Liens for taxes and assessments on Property which are
not yet past due, or Liens for taxes and assessments
on Property for
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which adequate reserves have been set aside and
are being contested in good faith by appropriate
proceedings and have not proceeded to judgment,
(or, if a judgment has been rendered are the
subject of an appropriate bond) PROVIDED that, by
reason of nonpayment of the obligations secured by
such Liens, no such Property is subject to a
material risk of loss or forfeiture;
(c) minor defects and irregularities in title to any real
property which in the aggregate do not materially
impair the fair market value or use of the real
property for the purposes for which it is or may
reasonably be expected to be held;
(d) easements, exceptions, reservations, or other
agreements granted or entered into after the date
hereof for the purpose of pipelines, conduits,
cables, wire communication lines, power lines and
substations, streets, trails, walkways, drainage,
irrigation, water, and sewerage purposes, dikes,
canals, ditches, the removal of oil, gas, coal, or
other minerals, and other like purposes affecting
real property which in the aggregate do not
materially burden or impair the fair market value or
use of such real property for the purposes for which
it is or may reasonably be expected to be held;
(e) rights reserved to or vested in any Governmental
Agency by Law to control or regulate, or obligations
or duties under Law to any Governmental Agency with
respect to, the use of any real property;
(f) rights reserved to or vested in any Governmental
Agency by Law to control or regulate, or obligations
or duties under Law to any Governmental Agency with
respect to, any right, power, franchise, grant,
license, or permit;
(g) present or future zoning laws and ordinances or other
laws and ordinances restricting the occupancy, use,
or enjoyment of real property;
(h) statutory Liens, other than those described in
clauses (a) or (b) above, arising in the ordinary
course of business with respect to obligations which
are not delinquent or are being contested in good
faith by appropriate proceedings, PROVIDED that, if
delinquent, adequate reserves have been set aside
with respect thereto and, by reason of nonpayment, no
Property is subject to a material risk of loss or
forfeiture;
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(i) Liens consisting of pledges or deposits made in
connection with obligations under workers'
compensation laws, unemployment insurance or similar
legislation, including Liens of judgments thereunder
which are not currently dischargeable;
(j) Liens consisting of pledges or deposits of Property
to secure performance in connection with operating
leases made in the ordinary course of business to
which the Borrower is a party as lessee, PROVIDED the
aggregate value of all such pledges and deposits in
connection with any such lease does not at any time
exceed 10% of the annual fixed rentals payable under
such lease;
(k) Liens consisting of deposits of Property to secure
statutory obligations of the Borrower in the ordinary
course of its business;
(l) Liens consisting of deposits of Property to secure
(or in lieu of) surety, appeal or customs bonds in
proceedings to which the Borrower is a party in the
ordinary course of its business; and
(m) Liens created by or resulting from any litigation or
legal proceeding involving the Borrower in the
ordinary course of its business which is currently
being contested in good faith by appropriate
proceedings, PROVIDED that adequate reserves have
been set aside with respect thereto or a bond posted
as provided by Law, and such Liens are discharged or
stayed within 60 days of creation or such Liens are
being contested in good faith by appropriate
proceedings and no Property is subject to a material
risk of loss or forfeiture.
"PERMITTED RIGHT OF OTHERS" means a Right of Others
consisting of (a) an interest (other than a legal or equitable
co-ownership interest, an option or right to acquire a legal or
equitable co-ownership interest and any interest of a ground lessor
under a ground lease) that does not materially impair the value or use
of property for the purposes for which it is or may reasonably be
expected to be held, (b) an option or right to acquire a Lien that
would be a Permitted Encumbrance, and (c) the reversionary interest of
a landlord under a lease of Property.
"PERSON" means any entity, whether an individual,
trustee, corporation, general partnership, limited partnership, limited
liability company, limited liability partnership, joint stock company,
trust, estate, unincorporated organization, governmental
instrumentality, business association, tribe, firm, joint venture,
Governmental Agency, or otherwise.
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"POST COMPLETION BASKET AMOUNT" means an amount equal
to the amount, if any, by which (a) the actual amount expended in
connection with the Golden Moon Project is less than (b) the amount of
Capital Expenditures permitted by Section 7.14(c).
"PRE-OPENING EXPENSES" means, with respect to any
fiscal period, the amount of expenses (other than Interest Charges)
incurred with respect to capital projects associated with the Existing
Casinos which are classified as "pre-opening expenses" on the
applicable financial statements of Borrower for such period, prepared
in accordance with Generally Accepted Accounting Principles.
"PRELIMINARY PLANS" means the preliminary plans,
specifications, construction plan and timetable prepared by or for the
Borrower delivered to the Administrative Agent pursuant to Section
10.1, which describe on a preliminary basis the construction of the
Golden Moon Project and the labor and materials necessary for the
construction thereof,
"PRICING PERIOD" means the period of three months
which commences on the first day of each March, June, September and
December, and ends on the last day of the succeeding May, August,
November and February.
"PRIORITY DISTRIBUTIONS" means Distributions made by
the Existing Casino Operations to the general fund of the Tribe to
finance essential governmental functions in equal monthly installments
during each calendar month following December 31, 2000, the aggregate
amount of which shall not exceed $55,00,000 during the Fiscal Year
ending September 30, 2001, increasing by 5% per annum for each
subsequent Fiscal Year.
"PRO RATA SHARE" means, with respect to each Lender
and as to each Commitment, the percentage of the aggregate Commitments
held by that Lender on that date or, if the Commitments have been
terminated, the percentage of the Revolving Obligations held by that
Lender, including in each case any holdings through an SPC.
"PROJECT DISBURSEMENT ACCOUNT" means a deposit or
brokerage account established with a financial institution and subject
to a Deposit Account Agreement into which the amounts set forth in
Section 7.21 shall be deposited.
"PROJECTIONS" means the financial projections dated
as of the Closing Date heretofore furnished by the Borrower to the
Lenders for the
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operations of the Existing Casino Operations, true and correct
copies of which are attached hereto as Schedule 5.20.
"PROPERTY" means any interest in any kind of property
or asset, whether real, personal or mixed, or tangible or intangible.
"PROPOSED SENIOR FINANCING" means proposed senior
Indebtedness of Borrower in an aggregate principal amount not to exceed
$150,000,000 consisting of either senior secured, or senior unsecured
Indebtedness, in each case issued in conformity with Section 5.28.
"QUARTERLY PAYMENT DATE" means the last Business Day
of each calendar quarter following the date hereof.
"REAL PROPERTY" means, collectively, (a) the real
property and improvements underlying the Golden Moon described on
Schedule 4.7A, and (b) the real property and improvements underlying
Silver Star described on Schedule 4.7B.
"REBATABLE AMOUNT" has the meaning set forth in
section 1.148-1(b) of the Tax Regulations.
"RECOURSE OBLIGATIONS" means, as of each date of
determination, and without duplication, (a) all Indebtedness and
Contingent Obligations as to which the Tribe or the Borrower has any
direct or indirect liability or obligation (whether as the primary
obligor or as a surety, and whether or not the Borrower is the nominal
obligor with respect thereto), including without limitation
indebtedness for borrowed money, obligations with respect to Capital
Leases, amounts available for drawing under letters of credit and other
similar instruments, and the aggregate amount drawn under letters of
credit and other similar instruments not then reimbursed, UNLESS AND TO
THE EXTENT THAT the obligee with respect thereto has effectively waived
recourse to the Gaming Assets, and (b) all Indebtedness, Contingent
Obligations and other obligations secured by any Lien upon any Gaming
Assets, PROVIDED that the Excluded Obligations (but not any
refinancings thereof) shall not be considered to be Recourse
Obligations.
"REDUCTION AMOUNT" means, as to each Reduction Date
$6,250,000.
"REDUCTION DATE" means each March 31, June 30,
September 30 and December 31 which occurs one full Fiscal Quarter
following the Golden
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Moon Completion Date, but in any event beginning not later than
December 31, 2002.
"REGULATIONS D, T, U AND X" means Regulations D, T, U
and X, respectively, as at any time amended, of the Board of Governors
of the Federal Reserve System, or any other regulations in substance
substituted therefor.
"REMAINING EQUITY CONTRIBUTION AMOUNT" means, as of
any date of determination, an amount equal to $53,900,000 MINUS the
amount of any deposits theretofore made by the Borrower or the Tribe to
the Project Disbursement Account or any amount which is entitled to be
credited against the deposits required by Section 7.21(b).
"REQUEST FOR LETTER OF CREDIT" means a written
request for a Letter of Credit substantially in the form of Exhibit F,
signed by a Authorized Officer of the Borrower on its behalf (and by
any Subsidiary of the Borrower which is designated by the Borrower as
the account party with respect to the related Letter of Credit), and
properly completed to provide all information required to be included
therein.
"REQUEST FOR LOAN" means a written request for a Loan
substantially in the form of Exhibit G, signed by a Authorized Officer
of the Borrower on its behalf, and properly completed to provide all
information required to be included therein.
"REQUIREMENT OF LAW" means, as to any Person, the
constitution, the articles or certificate of incorporation and bylaws,
the partnership agreement and any related certificate of partnership,
or other organizational or governing documents of such Person, and any
Law, or judgment, order, award, decree, writ or determination of a
Governmental Agency, in each case applicable to or binding upon such
Person or any of its Property or to which such Person or any of its
Property is subject.
"REQUISITE LENDERS" means, as of any date of
determination (a) Lenders whose aggregate Pro Rata Share is at least
51% of the then outstanding Loans, or (b) if the Commitments have been
terminated, Lenders then owed Loans which are at least 51% of the
aggregate Loans owed to all Lenders, PROVIDED THAT when less than three
Lenders are party hereto, all of the Lenders shall constitute the
Requisite Lenders.
"RESERVE ACCOUNT" means account 000 000 0000
established by the Borrower at Xxxxxxx Xxxxx, into which reserved funds
in an aggregate amount not to exceed $3,000,000 may be deposited to the
extent required by the
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Management Agreement to fund workers compensation claims, tort and
other similar claims not covered by insurance proceeds. The Reserve
Account shall not be subject to Liens in favor of any Person.
"RESERVE PERCENTAGE" means, with respect to any Loan,
the percentage applicable as of the date of determination of the LIBOR
Base Rate representing the aggregate reserve requirements of the
Administrative Agent (disregarding any offsetting amounts that may be
available to the Administrative Agent to decrease such requirements to
the extent that such offsetting amounts arose out of transactions other
than those contemplated by this Agreement) under Regulation D and any
other applicable Laws with respect to Eurodollar Obligations in an
aggregate amount equal to the amount of such Loan and for a time period
comparable to the number of months in the applicable Interest Period.
The determination by the Administrative Agent of any applicable Reserve
Percentage shall be presumed correct in the absence of manifest error.
"RESPONSIBLE OFFICIAL" means, when used with
reference to any Person, any member of senior management of such Person
and, in the case of the Borrower, includes any elected official of the
Borrower, the chief financial officer of the Borrower and any other
senior management official of the Existing Casino Operations designated
by the Borrower. Any document or certificate hereunder that is signed
or executed by a Responsible Official of another Person shall be
conclusively presumed to have been authorized by all necessary
corporate, partnership and/or other action on the part of such other
Person.
"REVOLVING COMMITMENT" means, subject to Sections 2.7
and 2.8, $115,000,000. Subject to the terms and conditions set forth in
Section 2.10, the Borrower may reallocate amounts from the Tax Exempt
Commitment to the Revolving Commitment (but not from the Revolving
Commitment to the Tax Exempt Commitment). As of the Closing Date, Each
Lender holds a Pro Rata Share of the Revolving Commitment in a
principal amount equal to the Revolving Note issued to that Lender on
the Closing Date.
"REVOLVING NOTE" means each promissory note made by
the Borrower to a Lender evidencing Advances under that Lender's Pro
Rata Share of the Revolving Commitment, substantially in the form of
Exhibit C, either as originally executed or as the same may from time
to time be supplemented, modified, amended, renewed, extended or
supplanted.
"REVOLVING OBLIGATIONS" means all present and future
obligations of every kind or nature of the Borrower or any Party at any
time and from time
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to time owed to the Creditors or any one or more of them under any
one or more of the Loan Documents, whether due or to become due,
matured or unmatured, liquidated or unliquidated, or contingent or
noncontingent, INCLUDING obligations of performance as well as
obligations of payment, and INCLUDING interest that accrues after
the commencement of any proceeding under any Debtor Relief Law by or
against the Borrower or any such Party, but excluding the Term
Obligations.
"RIGHT OF OTHERS" means, as to any Property in which
a Person has an interest, (a) any legal or equitable right, title or
other interest (OTHER THAN a Lien) held by any other Person in or with
respect to that Property, and (b) any option or right held by any other
Person to acquire any right, title or other interest in or with respect
to that Property, INCLUDING any option or right to acquire a Lien.
"SECURED CREDITORS" means, collectively, the Lenders,
the Issuing Lender, the lenders under the Term Loan Agreement, Bank of
America, as counterparty to the Paired Swap Agreement, any Lenders or
their Affiliates party to any Secured Swap Agreement and, subject to
the proviso contained in Section 7.8(c), the holders of the
Indebtedness under the Proposed Senior Financing.
"SECURED SWAP AGREEMENT" means a Swap Agreement (but
excluding the Paired Swap Agreement) between the Borrower and a Lender
which states that it relates to the Revolving Obligations.
"SECURITY AGREEMENT" means the Security Agreement
executed by Borrower in favor of the Collateral Agent for the benefit
of the Secured Creditors hereunder on the Closing Date, either as
originally executed or as it may from time to time be supplemented,
modified, amended, restated or extended.
"SECURITIES" means any capital stock, share, voting
trust certificate, bonds, debentures, notes or other evidences of
indebtedness, limited partnership interests, or any warrant, option or
other right to purchase or acquire any of the foregoing.
"SENIOR FINANCING ACCOUNT" means an account
established with a financial institution designated by the lenders
under the Proposed Senior Financing, into which the net cash proceeds
of the Proposed Senior Financing (after reduction of the outstanding
Loans hereunder to zero as required by Section 7.21(c)), shall be
deposited. The Senior Financing Account shall not be subject to Liens
in favor of any Person.
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"SENIOR OFFICER" means, as to the Tribe, the Chief of
the Tribe, its Secretary Treasurer and its Comptroller, and (b) as to
the Borrower, its Chairman of the Board, its Secretary Treasurer, its
Chief Executive Officer and its Chief Financial Officer.
"SILVER STAR" means the casino and resort property
and related retail, dining and entertainment facilities and hotel
facilities described in the Gaming Ordinance and commonly known as
"Silver Star Resort and Casino" owned by the Borrower and located on
the Tribe's reservation near Philadelphia, Mississippi (including any
future improvements or expansions thereof), which facilities are
located upon the real property described on Schedule 4.7B.
"SILVER STAR DISBURSEMENT FUND" means a ledger
account on the Borrower's balance sheet for the Silver Star containing
money which is Gaming Assets. Funds contained in the Silver Star
Disbursement Fund may be invested by the Borrower in any manner, but
shall be construed to be Gaming Assets until distributed by the
Borrower from the Silver Star Disbursement Fund to the Tribe's general
fund in accordance with Section 7.5(b).
"SPC" has the meaning set forth in Section 13.8.
"SPECIAL CIRCUMSTANCE" means (a) the adoption of any
Law by any Governmental Agency, central branch or comparable authority
with respect to activities in the Designated Market, or (b) any change
in the interpretation or administration of any existing Law by any
Governmental Agency, central bank or comparable authority charged with
the interpretation or administration thereof, or (c) compliance by any
Lender or its LIBOR Lending Office with any request or directive
(whether or not having the force of Law) of any such Governmental
Agency, central bank or comparable authority, or (d) the existence or
occurrence of circumstances affecting the Designated Market generally
that are beyond the reasonable control of the Lenders.
"SPECIFIED SWAP AMOUNT" means, at any time, in
respect of Swap Agreements to which any Lender is party, the Swap
Termination Value relating thereto; PROVIDED that for purposes of this
definition, any Swap Termination Value that is negative as to (i.e.,
owing by) any Lender shall be deemed equal to zero.
"SUBORDINATED OBLIGATIONS" means all Recourse
Obligations of the Borrower that are subordinated to the Revolving
Obligations, all of the provisions of which (including amount,
maturity, amortization, interest rate, covenants, defaults, remedies
and subordination), have been approved in
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writing as to form and substance by the Administrative Agent and
designated in writing as "Subordinated Obligations" by the
Administrative Agent.
"SUBSIDIARY" means, as of any date of determination
and with respect to any Person, any other corporation, partnership or
other business entity (whether or not, in either case, characterized as
such or as a "joint venture"), whether now existing or hereafter
organized or acquired: (a) in the case of a corporation, of which a
majority of the securities having ordinary voting power for the
election of directors or other governing body (other than securities
having such power only by reason of the happening of a contingency) are
at the time beneficially owned by such Person and/or one or more
Subsidiaries of such Person, or (b) in the case of a partnership or
other business entity, of which a majority of the partnership or other
ownership interests are at the time beneficially owned by such Person
and/or one or more of its Subsidiaries, PROVIDED that wholly owned
Tribal "enterprise" divisions created pursuant to Tribal Ordinance 56
and having no independent legal existence from the Tribe shall not be
considered to be Subsidiaries of the Tribe.
"SWAP AGREEMENTS" means one or more written
agreements between the Borrower and one or more financial institutions
providing for "swap," "cap," "collar" or other interest rate protection
with respect to any Indebtedness.
"SWAP TERMINATION VALUE" means, in respect of any one
or more Swap Agreements, after taking into account the effect of any
legally enforceable netting agreement relating to such Swap Agreements,
(a) for any date on or after the date such Swap Agreements have been
closed out and termination value(s) determined in accordance therewith,
such termination value(s), and (b) for any date prior to the date
referenced in clause (a) the amount(s) determined as the xxxx-to-market
value(s) for such Swap Agreements, as determined by the Administrative
Agent based upon any readily available quotations provided by any
recognized dealer in such Swap Agreements which may include any Lender.
"SWING LINE" means the revolving line of credit
established by the Swing Line Lender in favor of the Borrower pursuant
to Section 2.6.
"SWING LINE DOCUMENTS" means the promissory note and
any other documents executed by the Borrower in favor of the Swing Line
Lender in connection with the Swing Line.
"SWING LINE LENDER" means Bank of America, acting
through its Nevada Commercial Banking Division.
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"SWING LINE LOANS" means loans made by the Swing Line
Lender to the Borrower pursuant to Section 2.6.
"SWING LINE OUTSTANDINGS" means, as of any date of
determination, the aggregate principal Indebtedness of the Borrower on
all Swing Line Loans then outstanding.
"SYNDICATION AGENT" means Xxxxx Fargo Bank, N.A. The
capacity of the Syndication Agent is titular in nature, and Xxxxx Fargo
Bank, N.A. shall have no duties or obligations under this Agreement and
the other Loan Documents by reason thereof over and above the duties
and obligations of the Lenders generally.
"TAX CERTIFICATE" means a certificate substantially
in the form of Exhibit J.
"TAX EXEMPT ADVANCE" means each Advance made by a
Lender which is a part of a Tax Exempt Loan.
"TAX EXEMPT COMMITMENT" means, subject to Sections
2.7 and 2.8, $10,000,000. Subject to the terms and conditions set forth
in Section 2.10, the Borrower may reallocate amounts from the Tax
Exempt Commitment to the Revolving Commitment (but not from the
Revolving Commitment to the Tax Exempt Commitment). As of the Closing
Date, Bank of America holds the entire Tax Exempt Commitment.
"TAX EXEMPT LOAN" means each Loan made under the Tax
Exempt Commitment.
"TAX EXEMPT NOTE" means each promissory note made by
the Borrower to a Lender evidencing the Advances made by that Lender
under its Pro Rata Share of the Tax Exempt Commitment, substantially in
the form of Exhibit H, either as originally executed or as the same may
from time to time be supplemented, modified, amended, renewed, extended
or supplanted.
"TAX EXEMPT PERIOD" means, as to each Tax Exempt
Loan, the period commencing on the date specified by the Borrower
pursuant to Section 2.1(c) and ending 3 months thereafter, as specified
by the Borrower in the applicable Request for Loan; PROVIDED that:
(a) The first day of any Tax Exempt Period shall be a
LIBOR Business Day;
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(b) Any Tax Exempt Period that would otherwise end on a
day that is not a LIBOR Business Day shall be
extended to the next succeeding LIBOR Business Day
unless such LIBOR Business Day falls in another
calendar month, in which case such Tax Exempt Period
shall end on the next preceding LIBOR Business Day;
(c) the Borrower may not specify a Tax Exempt Period that
extends beyond any Reduction Date upon which any
reduction of the outstanding Tax Exempt Loans is or
may be required unless the SUM of (i) the aggregate
principal amount of the Tax Exempt Loans having Tax
Exempt Periods ending after such Reduction Date, PLUS
(ii) the aggregate principal amount of the LIBOR
Loans having a LIBOR Period ending after such
Reduction Date PLUS (iii) the aggregate maximum
amount available for drawing under Letters of Credit
for which the expiry date is after such Reduction
Date, does not exceed the aggregate Commitments
(after giving effect to any reduction thereto
scheduled to be made on that Reduction Date pursuant
to Section 2.8); and
(d) No Tax Exempt Period shall extend beyond the Maturity
Date.
"TAX EXEMPT RATE" means, as to each Tax Exempt Loan,
the rate per annum which is equal to the SUM of:
(a) 60% TIMES the SUM of (i) LIBOR for LIBOR Loan made on
the same date for a three month LIBOR Period and in
an amount equal to such Tax Exempt Loan, PLUS (ii)
the then applicable LIBOR Margin, PLUS
(b) 25 basis points.
"TAX REGULATIONS" means the United States Treasury
Regulations promulgated pursuant to sections 103 and 141 through 150 of
the Code.
"TERM LOAN AGREEMENT" means the Amended and Restated
Term Loan Agreement of even date herewith among the Tribe, the
Borrower, the lenders referred to therein, and Bank of America, as
Administrative Agent, as at any time hereafter amended.
"TERM OBLIGATIONS" means the obligations under the
Term Loan Agreement and the other "Loan Documents" described therein.
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"TERMINATION EVENT" means (a) a "reportable event" as
defined in Section 4043 of ERISA (OTHER THAN a reportable event that is
not subject to the provision for 30 day notice to the PBGC), (b) the
withdrawal of the Borrower or any of its ERISA Affiliates from a
Pension Plan during any plan year in which it was a "substantial
employer" as defined in Section 4001(a)(2) of ERISA, (c) the filing of
a notice of intent to terminate a Pension Plan or the treatment of an
amendment to a Pension Plan as a termination thereof pursuant to
Section 4041 of ERISA, (d) the institution of proceedings to terminate
a Pension Plan by the PBGC or (e) any other event or condition which
might reasonably be expected to constitute grounds under ERISA for the
termination of, or the appointment of a trustee to administer, any
Pension Plan.
"TO THE BEST KNOWLEDGE OF" means, when modifying a
representation, warranty or other statement of any Person, that the
fact or situation described therein is known by the Person (or, in the
case of a Person other than a natural Person, known by a Responsible
Official of that Person) making the representation, warranty or other
statement, or with the exercise of reasonable due diligence under the
circumstances (in accordance with the standard of what a reasonable
Person in similar circumstances would have done) should have been known
by the Person (or, in the case of a Person other than a natural Person,
should have been known by a Responsible Official of that Person).
"TOTAL LEVERAGE RATIO" means, as of each date of
determination, the ratio of (a) Total Recourse Debt as of that date, to
(b) Annualized Gaming EBITDA for the four Fiscal Quarter period ending
on that date.
"TOTAL RECOURSE DEBT" means, as of each date of
determination, all Recourse Obligations other than the Excluded
Obligations.
"TRIBAL COUNCIL" means the Tribal Council of the
Tribe elected in accordance with the Constitution.
"TRIBE" means The Mississippi Band of Choctaw
Indians, a federally recognized Indian Tribe and Native American
sovereign nation.
"TRUSTMARK" means Trustmark National Bank.
"YIELD" in respect of (a) any Appropriate Investment,
means the yield of any investment as described in section 1.148-5 of
the Tax Regulations; and (b) any Issue of the Tax Exempt Notes, has the
meaning set forth in section 1.148-4 of the Tax Regulations.
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1.2 USE OF DEFINED TERMS. Any defined term used in the plural
shall refer to all members of the relevant class, and any defined term used in
the singular shall refer to any one or more of the members of the relevant
class.
1.3 ACCOUNTING TERMS. All accounting terms not specifically
defined in this Agreement shall be construed in conformity with, and all
financial data required to be submitted by this Agreement shall be prepared in
conformity with, Generally Accepted Accounting Principles applied on a
consistent basis, EXCEPT as otherwise specifically prescribed herein. In the
event that Generally Accepted Accounting Principles change during the term of
this Agreement such that the financial covenants contained in Sections 7.12
through 7.14, inclusive, would then be calculated in a different manner or with
different components, (a) the Tribe, the Borrower and the Lenders agree to amend
this Agreement in such respects as are necessary to conform those covenants as
criteria for evaluating the Borrower's financial condition to substantially the
same criteria as were effective prior to such change in Generally Accepted
Accounting Principles and (b) the Borrower shall be deemed to be in compliance
with the financial covenants contained in such Sections during the 60 day period
following any such change in Generally Accepted Accounting Principles if and to
the extent that the Borrower would have been in compliance therewith under
Generally Accepted Accounting Principles as in effect immediately prior to such
change.
1.4 ROUNDING. Any financial ratios required to be maintained by
the Borrower pursuant to this Agreement shall be calculated by dividing the
appropriate component by the other component, carrying the result to one place
more than the number of places by which such ratio is expressed in this
Agreement and rounding the result up or down to the nearest number (with a
round-up if there is no nearest number) to the number of places by which such
ratio is expressed in this Agreement.
1.5 EXHIBITS AND SCHEDULES. All Exhibits and Schedules to this
Agreement, either as originally existing or as the same may from time to time be
supplemented, modified or amended, are incorporated herein by this reference. A
matter disclosed on any Schedule shall be deemed disclosed on all Schedules.
1.6 MISCELLANEOUS TERMS. The term "or" is disjunctive; the term
"and" is conjunctive. The term "shall" is mandatory; the term "may" is
permissive. Masculine terms also apply to females; feminine terms also apply to
males. The term "including" is by way of example and not limitation.
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ARTICLE 2.
THE LOANS AND LETTERS OF CREDIT
2.1 LOANS-GENERAL.
(a) Subject to the terms and conditions set forth in this
Agreement, at any time and from time to time from the Closing Date through
the Business Day immediately prior to the Maturity Date, each Lender
shall, pro rata according to that Lender's Pro Rata Share of the then
applicable Revolving Commitment, make Advances to the Borrower under the
Revolving Commitment in such amounts as the Borrower may request that do
not result in (i) the Outstanding Obligations being in excess of the
aggregate then effective Commitments, or (ii) the Outstanding Obligations
owed to that Lender under the Revolving Commitment being in excess of that
Lender's Pro Rata Share of the Revolving Commitment. Subject to the
limitations set forth herein, the Advances by each Lender under its Pro
Rata Share of the Revolving Commitment may be prepaid without premium or
penalty.
(b) Subject to the terms and conditions set forth in this
Agreement, at any time and from time to time from the Closing Date through
the Business Day immediately prior to the Maturity Date, each Lender
shall, pro rata according to that Lender's Pro Rata Share of the then
applicable Tax Exempt Commitment, make Advances to the Borrower under the
Tax Exempt Commitment in such amounts as the Borrower may request that do
not result in (i) the Outstanding Obligations being in excess of the
aggregate then effective Commitments, or (ii) the Outstanding Obligations
owed to that Lender under the Tax Exempt Commitment being in excess of
that Lender's Pro Rata Share of the Tax Exempt Commitment. Subject to the
limitations set forth herein, the Advances by each Lender under its Pro
Rata Share of the Tax Exempt Commitment may be prepaid or repaid without
premium or penalty, but no portion of the Loans under the Tax Exempt
Commitment which is repaid may be reborrowed.
(c) Subject to the next sentence, each Loan shall be made
pursuant to a Request for Loan which shall specify the requested (i) date
of such Loan, (ii) type of Loan, (iii) amount of such Loan, (iv) whether
the requested Loan is under the Revolving Commitment or the Tax Exempt
Commitment, (v) in the case of a LIBOR Loan, the LIBOR Period for such
Loan, and (vi) in the case of a Tax Exempt Loan, the Tax Exempt Period for
such Loan. Unless the Administrative Agent, in its sole and absolute
discretion, has notified the Borrower to the contrary, a Loan may be
requested by telephone by an Authorized Officer of the Borrower, in which
case the Borrower shall confirm such request by promptly delivering a
Request for Loan
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in person or by telecopier conforming to the preceding sentence to the
Administrative Agent. The Administrative Agent shall incur no
liability whatsoever hereunder in acting upon any telephonic request
purportedly made by an Authorized Officer of the Borrower, and the
Borrower hereby agrees to indemnify each Creditor from any loss,
cost, expense or liability as a result of so acting.
(d) Promptly following receipt of a Request for Loan, the
Administrative Agent shall notify each Lender by telephone or telecopier
of the date and type of the Loan, any applicable LIBOR Period, and that
Lender's Pro Rata Share of the Loan. Not later than 11:00 a.m., California
local time, on the date specified for any Loan (which must be a Business
Day), each Lender shall make its Pro Rata Share of the Loan in immediately
available funds available to the Administrative Agent at the
Administrative Agent's Office. Upon satisfaction or waiver of the
applicable conditions set forth in Article 10, all Advances shall be
credited on that date in immediately available funds to the Deposit
Account for the Borrower.
(e) Unless the Requisite Lenders otherwise consent, each
Loan shall be in an integral multiple of $1,000,000 which is not less than
$5,000,000.
(f) The Advances made by each Lender under its Pro Rata
Share of the Revolving Commitment shall be evidenced by that Lender's
Revolving Note. The Advances made by each Lender under its Pro Rata Share
of the Tax Exempt Commitment shall be evidenced by that Lender's Tax
Exempt Note.
(g) A Request for Loan shall be irrevocable upon the
Administrative Agent's first notification thereof.
(h) If no Request for Loan (or telephonic request for Loan
referred to in the second sentence of Section 2.1(c), if applicable) has
been made within the requisite notice periods set forth in Section 2.2 or
2.3 prior to the end of the LIBOR Period for any LIBOR Loan, then on the
last day of such LIBOR Period, such LIBOR Loan shall be automatically
converted into a Base Rate Loan in the same amount.
(i) If a Loan is to be made on the same date that another
Loan is due and payable, the Borrower or the Lenders (as the case may be)
shall upon the request of the Administrative Agent make available to the
Administrative Agent the net amount of funds (giving effect to both such
Loans) and the effect for purposes of this Agreement shall be the same as
if separate transfers of funds had been made with respect to each such
Loan.
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2.2 BASE RATE LOANS. Each request by the Borrower for a Base Rate
Loan shall be made pursuant to a Request for Loan (or telephonic or other
request for loan referred to in the second sentence of Section 2.1(c), if
applicable) received by the Administrative Agent, at the Administrative Agent's
Office, not later than 9:00 a.m. California local time, on the date (which must
be a Business Day) of the requested Base Rate Loan. All Loans shall constitute
Base Rate Loans unless properly designated as LIBOR Loans pursuant to Section
2.3 or Tax Exempt Loans pursuant to Section 2.4.
2.3 LIBOR LOANS.
(a) Each request by the Borrower for a LIBOR Loan shall be
made pursuant to a Request for Loan (or telephonic or other request for
Loan referred to in the second sentence of Section 2.1(c), if applicable)
received by the Administrative Agent, at the Administrative Agent's
Office, not later than 9:00 a.m., California local time, at least three
LIBOR Business Days before the first day of the applicable LIBOR Period.
(b) On the date which is two LIBOR Business Days before the
first day of the applicable LIBOR Period, the Administrative Agent shall
confirm its determination of the applicable LIBOR (which determination
shall be conclusive in the absence of manifest error) and promptly shall
give notice of the same to the Borrower and the Lenders by telephone or
telecopier.
(c) Unless the Administrative Agent and the Requisite
Lenders otherwise consent, no more than ten LIBOR Loans shall be
outstanding at any one time.
(d) No LIBOR Loan may be requested during the continuation
of a Default or Event of Default.
(e) Nothing contained herein shall require any Lender to
fund any LIBOR Advance in the Designated Eurodollar Market.
2.4 TAX EXEMPT LOANS.
(a) Each request by the Borrower for a Tax Exempt Loan shall
be made pursuant to a Request for Loan received by the Administrative
Agent, at the Administrative Agent's Office, not later than 9:00 a.m.,
California local time, at least three LIBOR Business Days before the first
day of the applicable Tax Exempt Period, which Request for Loan shall be
accompanied by the materials specified by Section 10.2.
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(b) On the date which is two LIBOR Business Days before the
first day of the applicable Tax Exempt Period, the Administrative Agent
shall confirm its determination of the applicable Tax Exempt Rate (which
determination shall be conclusive in the absence of manifest error) and
promptly shall give notice of the same to the Borrower.
(c) Within two hours following its receipt of notice of the
proposed Tax Exempt Rate for any Tax Exempt Loan, the Borrower shall
notify the Administrative Agent if it accepts the proposed Tax Exempt
Rate. If the proposed Tax Exempt Rate is accepted by the Borrower, the
Administrative Agent shall notify the relevant Lenders by telephone or
telecopier of the Tax Exempt Rate and its acceptance by the Borrower. If
the Tax Exempt Rate is not accepted within the aforementioned period, or
is rejected, no Tax Exempt Loan will be made in relation thereto.
(d) Unless the Administrative Agent and the Requisite
Lenders otherwise consent, no more than four Tax Exempt Loans shall be
outstanding at any one time.
(e) No Tax Exempt Loan may be requested during the
continuation of a Default or Event of Default.
(f) Nothing contained herein shall require any Lender to
fund any Tax Exempt Advance in any particular manner or in any particular
money market.
2.5 LETTERS OF CREDIT.
(a) Subject to the terms and conditions hereof, at any time
and from time to time from the Closing Date through the Business Day
immediately prior to the Maturity Date, the Issuing Lender shall issue
such Letters of Credit under the Revolving Commitment as the Borrower may
request by a Request for Letter of Credit; PROVIDED that (i) giving effect
to all such Letters of Credit, the Outstanding Obligations do not exceed
the aggregate then applicable Commitments, (ii) the Outstanding
Obligations owed to each Lender under the Revolving Commitment do not
exceed that Lender's Pro Rata Share of the Revolving Commitment, and (iii)
the Aggregate Effective Amount under all outstanding Letters of Credit
shall not exceed $10,000,000. Each Letter of Credit shall be in a form
acceptable to the Issuing Lender. Unless all the Lenders otherwise
consent, no Letter of Credit shall have a term which exceeds one year or
extends beyond the Maturity Date or which results in the sum of (i) the
aggregate principal amount of all LIBOR Loans having Interest Periods
ending after any Reduction Date, plus (ii) the Aggregate Effective Amount
of
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all Letters of Credit having expiration dates after that Reduction Date
being in excess of the Revolving Commitment (after giving effect to any
required Reductions thereof on that Reduction Date)
(b) Each Request for Letter of Credit shall be submitted to
the Issuing Lender, with a copy to the Administrative Agent, at least five
Business Days prior to the date upon which the related Letter of Credit is
proposed to be issued. The Administrative Agent shall promptly notify the
Issuing Lender whether such Request for Letter of Credit, and the issuance
of a Letter of Credit pursuant thereto, conforms to the requirements of
this Agreement. Upon issuance of a Letter of Credit, the Issuing Lender
shall promptly notify the Administrative Agent, and the Administrative
Agent shall promptly notify the Lenders, of the amount and terms thereof.
(c) Upon the issuance of a Letter of Credit, each Lender
shall be deemed to have purchased at par a pro rata participation in such
Letter of Credit from the Issuing Lender in an amount equal to that
Lender's Pro Rata Share of the Revolving Commitment. Without limiting the
scope and nature of each Lender's participation in any Letter of Credit,
to the extent that the Issuing Lender has not been reimbursed by the
Borrower for any payment required to be made by the Issuing Lender under
any Letter of Credit, each Lender shall, pro rata according to its Pro
Rata Share of the Revolving Commitment, pay the purchase price for such
participation to the Issuing Lender through the Administrative Agent
promptly upon demand therefor. The obligation of each Lender to so pay the
participation purchase price to the Issuing Lender shall be absolute and
unconditional and shall not be affected by the occurrence of an Event of
Default or any other occurrence or event. Any such payment of the purchase
price shall not relieve or otherwise impair the obligation of the Borrower
to reimburse the Issuing Lender for the amount of any payment made by the
Issuing Lender under any Letter of Credit together with interest as
hereinafter provided.
(d) the Borrower shall pay to the Issuing Lender through the
Administrative Agent an amount equal to any payment made by the Issuing
Lender with respect to each Letter of Credit upon demand made by the
Issuing Lender therefor, together with interest on such amount from the
date of any payment made by the Issuing Lender at the Default Rate (unless
the Borrower has made arrangements for the making of a Loan in the amount
of such payment on the date thereof or had otherwise arranged for the
timely reimbursement of such payment). The principal amount of any such
payment shall be used to reimburse the Issuing Lender for the payment made
by it under the Letter of Credit and, to the extent that the Lenders have
not reimbursed the
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Issuing Lender pursuant to Section 2.5(c), the interest amount of any
such payment shall be for the account of the Issuing Lender. Each Lender
that has paid the participation purchase price to the Issuing Lender
pursuant to Section 2.5(c) shall thereupon acquire a pro rata
participation, to the extent of such payment, in the claim of the Issuing
Lender against the Borrower for reimbursement of principal and interest
under this Section 2.5(d) and shall share, in accordance with that pro
rata participation, in any principal payment made by the Borrower with
respect to such claim and in any interest payment made by the Borrower
(but only with respect to periods subsequent to the date such Lender paid
the participation purchase price to the Issuing Lender) with respect to
such claim.
(e) Subject to Article 10, the Borrower may request,
pursuant to a Request for Loan, that Advances be made pursuant to Section
2.1(a) to provide funds for the payment required by Section 2.5(d). The
proceeds of such Advances shall be paid directly to the Issuing Lender to
reimburse it for the payment made by it under the Letter of Credit.
(f) If the Borrower fails to make the payment required by
Section 2.5(d) on a timely basis then, in lieu of the payment of the
participation purchase price to the Issuing Lender under Section 2.5(c),
the Issuing Lender may (but is not required to), without notice to or the
consent of the Borrower, instruct the Administrative Agent to cause
Advances to be made by the Lenders under their Pro Rata Shares of the
Revolving Commitment in an aggregate amount equal to the amount paid by
the Issuing Lender with respect to that Letter of Credit and, for this
purpose, the conditions precedent set forth in Article 10 shall not apply.
The proceeds of such Advances shall be paid directly to the Issuing Lender
to reimburse it for the payment made by it under the Letter of Credit.
(g) The issuance of any supplement, modification, amendment,
renewal, or extension to or of any Letter of Credit shall be treated in
all respects the same as the issuance of a new Letter of Credit, PROVIDED
that no new issuance fees shall be assessed except to the extent that the
tenor or amount of the related Letter of Credit are thereby increased.
(h) The obligation of the Borrower to pay to the Issuing
Lender the amount of any payment made by the Issuing Lender under any
Letter of Credit shall be absolute, unconditional, and irrevocable,
subject only to performance by the Issuing Lender of its obligations to
the Borrower under Uniform Commercial Code Section 75-5-109. Without
limiting the foregoing, the obligations of the Borrower to the Issuing
Lender shall not be affected by any of the following circumstances:
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(i) any lack of validity or enforceability of the
Letter of Credit, this Agreement, or any other agreement or
instrument relating thereto;
(ii) any amendment or waiver of or any consent to
departure from the Letter of Credit, this Agreement, or any other
agreement or instrument relating thereto, with the consent of the
Borrower;
(iii) the existence of any claim, setoff, defense, or
other rights which the Borrower may have at any time against the
Issuing Lender (except with respect to that Letter of Credit), the
Administrative Agent or any Lender, any beneficiary of the Letter of
Credit (or any persons or entities for whom any such beneficiary may
be acting) or any other Person, whether in connection with the
Letter of Credit, this Agreement, or any other agreement or
instrument relating thereto, or any unrelated transactions;
(iv) any demand, statement, or any other document
presented under the Letter of Credit proving to be forged,
fraudulent, invalid, or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect whatsoever so long
as any such document appeared to comply with the terms of the Letter
of Credit;
(v) payment by the Issuing Lender in good faith under
the Letter of Credit against presentation of a draft or any
accompanying document which does not strictly comply with the terms
of the Letter of Credit;
(vi) the existence, character, quality, quantity,
condition, packing, value or delivery of any Property purported to
be represented by documents presented in connection with any Letter
of Credit or any difference between any such Property and the
character, quality, quantity, condition, or value of such Property
as described in such documents;
(vii) the time, place, manner, order or contents of
shipments or deliveries of Property as described in documents
presented in connection with any Letter of Credit or the existence,
nature and extent of any insurance relative thereto;
(viii) the solvency or financial responsibility of any
party issuing any documents in connection with a Letter of Credit;
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(ix) any failure or delay in notice of shipments or
arrival of any Property;
(x) any error in the transmission of any message
relating to a Letter of Credit not caused by the Issuing Lender, or
any delay or interruption in any such message;
(xi) any error, neglect or default of any correspondent
of the Issuing Lender in connection with a Letter of Credit;
(xii) any consequence arising from acts of God, war,
insurrection, civil unrest, disturbances, labor disputes, emergency
conditions or other causes beyond the control of the Issuing Lender;
(xiii) so long as the Issuing Lender in good faith
determines that the contract or document appears to comply with the
terms of the Letter of Credit, the form, accuracy, genuineness or
legal effect of any contract or document referred to in any document
submitted to the Issuing Lender in connection with a Letter of
Credit; and
(xiv) where the Issuing Lender has acted in good faith
and observed general banking usage, any other circumstances
whatsoever.
(i) The Issuing Lender shall be entitled to the protection
accorded to the Administrative Agent pursuant to Article 12, MUTATIS
MUTANDIS.
(j) The Uniform Customs and Practice for Documentary
Credits, as published in its most current version by the International
Chamber of Commerce, shall be deemed a part of this Section and shall
apply to all Letters of Credit to the extent not inconsistent with
applicable Law.
2.6 SWING LINE. Subject to the terms and conditions set forth
herein, from the Closing Date through the day prior to the Maturity Date the
Swing Line Lender shall make Swing Line Loans to the Borrower in such amounts as
the Borrower may request which do not result in (i) the Outstanding Obligations
being in excess of the aggregate then effective Commitments or (ii) the
Outstanding Obligations under the Revolving Commitment being in excess of the
Revolving Commitment, PROVIDED that (a) after giving effect to each Swing Line
Loan, the Swing Line Outstandings shall not exceed $10,000,000 and (b) without
the consent of all of the Lenders, no Swing Line Loan may be made during the
continuation of an Event of Default. The Borrower may borrow, repay and reborrow
under this Section. Unless notified to the contrary by the Swing Line Lender,
borrowings under the Swing Line
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may be made in amounts which are integral multiples of $100,000 upon
telephonic request by an Authorized Officer of the Borrower made to the
Administrative Agent not later than 1:00 p.m., California local time, on the
Business Day of the requested borrowing (which telephonic request shall be
promptly confirmed in writing by telecopier), PROVIDED that if the requested
Swing Line Loan is to be credited to an account which is not with the Swing
Line Lender, the request must be submitted by 11:30 a.m., California local
time. Promptly after receipt of such a request for borrowing, the
Administrative Agent shall provide telephonic verification to the Swing Line
Lender that, after giving effect to such request, (x) the Outstanding
Obligations will not exceed the aggregate then effective Commitments and (y)
the Outstanding Obligations under the Revolving Commitment will not exceed
the Revolving Commitment. Unless notified to the contrary by the Swing Line
Lender, each repayment of a Swing Line Loan shall be in an amount which is an
integral multiple of $100,000. If the Borrower instructs the Swing Line
Lender to debit its demand deposit account at the Swing Line Lender in the
amount of any payment with respect to a Swing Line Loan, or the Swing Line
Lender otherwise receives repayment, after 3:00 p.m., California local time,
on a Business Day, such payment shall be deemed received on the next Business
Day. The Swing Line Lender shall promptly notify the Administrative Agent of
the Swing Loan Outstandings each time there is a change therein under the
Swing Line.
(a) Swing Line Loans shall bear interest at a fluctuating
rate per annum equal to the Base Rate PLUS the Base Rate Margin (unless
the Default Rate is then applicable under Section 3.9). Interest shall be
payable on such dates, not more frequent than monthly, as may be specified
by the Swing Line Lender and in any event on the Maturity Date. The Swing
Line Lender shall be responsible for invoicing the Borrower for such
interest. Interest payable on Swing Line Loans is solely for the account
of the Swing Line Lender (subject to clause (d) below).
(b) The Swing Line Loans shall be payable within five
Business Days after demand made by the Swing Line Lender and in any event
on the Maturity Date or any earlier date when all other Revolving
Obligations are due.
(c) Upon the making of a Swing Line Loan in accordance with
Section 2.6(a), each Lender shall be deemed to have purchased from the
Swing Line Lender a participation therein in an amount equal to that
Lender's Pro Rata Share of the Revolving Commitment TIMES the amount of
the Swing Line Loan. Upon demand made by the Swing Line Lender through the
Administrative Agent, each Lender shall, according to its Pro Rata Share
of the Revolving Commitment, promptly provide to the Swing Line Lender its
purchase price
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therefor in an amount equal to its participation therein. The
obligation of each Lender to so provide its purchase price to the
Swing Line Lender shall be absolute and unconditional (subject only to the
making of a demand upon that Lender by the Swing Line Lender) and shall
not be affected by the occurrence of a Default or Event of Default;
PROVIDED that no Lender shall be obligated to purchase its Pro Rata Share
of (i) Swing Line Loans to the extent that Swing Line Outstandings are in
excess of $5,000,000 or to the extent that the SUM of the Indebtedness
evidenced by the Notes PLUS the Aggregate Effective Amount of all
outstanding Letters of Credit PLUS the Swing Line Outstandings exceeds the
aggregate amount of the Commitments (as in effect on the date of the
making of the related Swing Line Loan) and (ii) any Swing Line Loan made
(absent the consent of all of the Lenders) during the continuation of an
Event of Default. Each Lender that has provided the purchase price due for
its participation in Swing Line Loans to the Swing Line Lender shall
thereupon acquire a pro rata participation, to the extent of such payment,
in the claim of the Swing Line Lender against the Borrower for principal
and interest and shall share, in accordance with that pro rata
participation, in any principal payment made by the Borrower with respect
to such claim and in any interest payment made by the Borrower (but only
with respect to periods subsequent to the date such Lender paid the Swing
Line Lender its purchase price) with respect to such claim.
(d) Upon any demand for payment of the Swing Line
Outstandings by the Swing Line Lender (unless the Borrower has made other
arrangements acceptable to the Swing Line Lender to reduce the Swing Line
Outstandings to $0), the Borrower shall request a Loan pursuant to Section
2.1(a) sufficient to repay all Swing Line Outstandings (and, for this
purpose, Section 2.1(e) shall not apply). In each case, the Administrative
Agent shall automatically provide the respective Advances made by each
Lender to the Swing Line Lender (which the Swing Line Lender shall then
apply to the Swing Line Outstandings). In the event that the Borrower
fails to request a Loan within the time specified by Section 2.2 on any
such date, the Administrative Agent may, but is not required to, without
notice to or the consent of the Borrower, cause Advances to be made by the
Lenders under the Revolving Commitment in amounts which are sufficient to
reduce the Swing Line Outstandings as required above. The conditions
precedent set forth in Article 10 shall not apply to Advances to be made
by the Lenders pursuant to the three preceding sentences. The proceeds of
such Advances shall be paid directly to the Swing Line Lender for
application to the Swing Line Outstandings.
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2.7 VOLUNTARY REDUCTION OF COMMITMENTS. At any time following the
Golden Moon Completion Date, the Borrower shall have the right, at any time and
from time to time, without penalty or charge, effective following at least three
Business Days' prior written notice by an Authorized Officer of the Borrower to
the Administrative Agent, voluntarily to reduce, permanently and irrevocably, in
aggregate principal amounts in an integral multiple of $1,000,000 but not less
than $5,000,000, or to terminate, all or a portion of the then undisbursed
portion of either of the Commitments; PROVIDED that the Commitments may not be
so reduced below an amount equal to the SUM OF (i) the aggregate principal
amount outstanding under the Notes, PLUS (ii) the Aggregate Effective Amount of
all outstanding Letters of Credit PLUS (c) the Swing Line Outstandings, in each
case as of the effective date of the reduction in the Commitments. The voluntary
reduction of the Commitments by the Borrower under this Section shall have no
effect upon the requirement of mandatory reductions thereof in accordance with
Section 2.8. The Administrative Agent shall promptly notify the Lenders of any
reduction or termination of the Commitments under this Section.
2.8 MANDATORY REDUCTIONS OF COMMITMENTS. The Commitments shall be
automatically and permanently reduced:
(a) on each Reduction Date, by the Reduction Amount, with
each such reduction to be applied first to the Revolving Commitment and,
following the reduction of the Revolving Commitment to zero, to the Tax
Exempt Commitment, PROVIDED that no reduction under this clause (a) shall
require any reduction of the aggregate principal amount of the Commitments
to an amount which is less than $40,000,000; and
(b) concurrently with each repayment of any Loan under the
Tax Exempt Commitment, by the amount of such repayment.
2.9 ADMINISTRATIVE AGENT'S RIGHT TO ASSUME FUNDS AVAILABLE FOR
ADVANCES. Unless the Administrative Agent shall have been notified by any Lender
no later than 10:00 a.m. on the Business Day of the proposed funding by the
Administrative Agent of any Loan that such Lender does not intend to make
available to the Administrative Agent such Lender's portion of the total amount
of such Loan, the Administrative Agent may assume that such Lender has made such
amount available to the Administrative Agent on the date of the Loan and the
Administrative Agent may, in reliance upon such assumption, make available to
the Borrower the corresponding amount. If the Administrative Agent has made
funds available to the Borrower based on such assumption and such corresponding
amount is not in fact made available to the Administrative Agent by such Lender,
the Administrative Agent shall be entitled to recover such corresponding amount
on demand from such Lender. If such Lender does not pay such corresponding
amount forthwith upon the
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Administrative Agent's demand therefor, the Administrative Agent promptly
shall notify the Borrower who shall pay such corresponding amount to the
Administrative Agent. The Administrative Agent also shall be entitled to
recover from such Lender interest on such corresponding amount in respect of
each day from the date such corresponding amount was made available by the
Administrative Agent to the Borrower to the date such corresponding amount is
recovered by the Administrative Agent, at a rate per annum equal to the daily
Federal Funds Rate. Nothing herein shall be deemed to relieve any Lender from
its obligation to fulfill its Pro Rata Share of either Commitment.
2.10 REALLOCATION OF COMMITMENTS. Provided that no Default or Event
of Default then exists, the Borrower may irrevocably reallocate the unutilized
portion of the Tax Exempt Commitment to the Revolving Commitment (but not from
the Revolving Commitment to the Tax Exempt Commitment), upon not less than five
Business Day's notice from the Borrower to the Administrative Agent. Each such
reallocation shall be in an amount which is an integral multiple of $1,000,000
and no more than two such reallocations may occur without the consent of the
Administrative Agent. Upon any such reallocation, (i) the portion of the Tax
Exempt Commitment so reallocated shall be deemed terminated, (ii) each Lender
having a Pro Rata Share of the portion of the Tax Exempt Commitment so
reallocated shall be deemed to have assumed a share of the Revolving Commitment
which is equal in dollars to the amount of its Pro Rata Share of the Tax Exempt
Commitment so terminated, (iii) the Revolving Commitment shall be increased in
the amount of the reallocation, and (iv) the Pro Rata Shares of each Lender in
the Commitments shall be deemed adjusted to give effect to such termination and
increase.
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ARTICLE 3.
PAYMENTS AND FEES
3.1 PRINCIPAL AND INTEREST.
(a) Interest shall be payable on the outstanding daily
unpaid principal amount of each Advance from the date thereof until
payment in full is made and shall accrue and be payable at the rates set
forth or provided for herein before and after any Default or Event of
Default, before and after maturity, before and after judgment, and before
and after the commencement of any proceeding under any Debtor Relief Law,
with interest on overdue interest at the Default Rate to the fullest
extent permitted by applicable Laws.
(b) Interest accrued on each Base Rate Loan under the
Revolving Commitment on each Quarterly Payment Date shall be due and
payable on that day. EXCEPT as otherwise provided in Section 3.9, the
unpaid principal amount of any Base Rate Loan shall bear interest at a
fluctuating rate per annum equal to the Base Rate PLUS the applicable Base
Rate Margin. Each change in the interest rate under this Section 3.1(b)
due to a change in the Base Rate shall take effect simultaneously with the
corresponding change in the Base Rate.
(c) Interest accrued on each LIBOR Loan under the Revolving
Commitment which is for a term of three months or less shall be due and
payable on the last day of the related LIBOR Period. Interest accrued on
each other LIBOR Loan under the Revolving Commitment shall be due and
payable on the date which is three months after the date such LIBOR Loan
was made (and, in the event that all of the Lenders have approved a LIBOR
Period of longer than six months, every three months thereafter through
the last day of the LIBOR Period) and on the last day of the related LIBOR
Period. EXCEPT as otherwise provided in Section 3.9, the unpaid principal
amount of any LIBOR Loan shall bear interest at a rate per annum equal to
the LIBOR for that LIBOR Loan PLUS the applicable LIBOR Margin.
(d) Interest accrued on each Tax Exempt Loan shall be due
and payable on the last day of the related Tax Exempt Period. EXCEPT as
otherwise provided in Sections 3.9 and 3.17, the unpaid principal amount
of any Tax Exempt Loan shall bear interest at a rate per annum equal to
the Tax Exempt Rate.
(e) If not sooner paid, the principal Indebtedness evidenced
by the Notes shall be payable as follows, and without set off,
counterclaim or reduction of any kind:
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(i) the amount, if any, by which the Outstanding
Obligations under the Revolving Commitment at any time exceed the
then applicable Revolving Commitment (as reduced from time to time
pursuant to Sections 2.7 or 2.8), shall be payable immediately;
(ii) the amount, if any, by which the Outstanding
Obligations under the Tax Exempt Commitment at any time exceed the
then applicable Tax Exempt Commitment (as reduced from time to time
pursuant to Sections 2.7 or 2.8), shall be payable immediately; and
(iii) the principal Indebtedness evidenced by the Notes
shall in any event be payable on the Maturity Date.
(f) The Notes may, at any time and from time to time,
voluntarily be paid or prepaid in whole or in part without premium or
penalty, EXCEPT that with respect to any voluntary prepayment under this
Section (i) any partial prepayment shall be not less than $5,000,000, or
in integral multiples of $1,000,000 which are in excess thereof, (ii) the
Administrative Agent shall have received written notice of any prepayment
by 9:00 a.m., California local time, on the Business Day prior to the date
of prepayment (which must be a Business Day) in the case of a Base Rate
Loan, and, in the case of a LIBOR Loan or Tax Exempt Loan, three Business
Days before the date of prepayment, which notice shall identify the date
and amount of the prepayment and the Loan(s) being prepaid, (iii) each
prepayment of principal on any LIBOR Loan shall be accompanied by payment
of interest accrued to the date of payment on the amount of principal
paid, (iv) any payment or prepayment of all or any part of any LIBOR Loan
on a day other than the last day of the applicable LIBOR Period shall be
subject to Section 3.8(e), and (v) any payment or prepayment of all or any
part of any Tax Exempt Loan on a day other than the last day of the
applicable Tax Exempt Period shall be subject to Section 3.17(c). Promptly
following receipt of a notice of prepayment under clause (ii) above, the
Administrative Agent shall notify each Lender by telephone or telecopier
(and if by telephone, promptly confirmed by telecopier) of the date and
amount thereof.
(g) Each payment of principal by the Borrower hereunder
shall be applied ratably to the Advances made to the Borrower which are
then due and payable, PROVIDED that if the Revolving Obligations are then
accelerated or have deemed to have been accelerated, each payment of
principal hereunder shall be applied ratably to the outstanding Advances.
3.2 LEAD ARRANGER'S FEES. On the date hereof, the Borrower shall
pay to Lead Arranger through the Administrative Agent certain fees in the amount
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heretofore agreed upon by letter agreement between the Borrower and the Lead
Arranger. These fees are for the services of the Lead Arranger in arranging the
credit facilities under this Agreement and are fully earned when paid and are
nonrefundable.
3.3 UPFRONT FEES. On the date hereof, the Borrower shall pay to
the Administrative Agent, for the account of each Lender, upfront fees in an
amount equal to (a) that Lender's allocated Pro Rata Share of the Commitments
TIMES (b) a fee percentage based upon the amount of the offered commitments of
that Lender to the credit facilities described herein, as set forth in a letter
agreement of even date herewith among the Borrower, the Lead Arranger and Bank
of America. Such upfront fees are for the credit facilities committed by each
Lender under this Agreement and are fully earned when paid. The upfront fees
paid to each Lender are solely for its own account and are nonrefundable.
3.4 COMMITMENT FEES. From the date hereof, the Borrower shall pay
to the Administrative Agent, for the ratable accounts of the Lenders:
(a) pro rata according to their Pro Rata Shares of the
Revolving Commitment, a commitment fee equal to the Commitment Fee Rate in
effect from time to time TIMES the actual daily amount by which the
Revolving Commitment exceeds the SUM OF (i) the aggregate principal amount
outstanding under the Revolving Notes (BUT NOT the Swing Line Outstandings
except to the extent a Lender has provided the purchase price due for its
participation in Swing Line Loans to the Swing Line Lender in Cash) PLUS
(ii) the Aggregate Effective Amount under all outstanding Letters of
Credit; and
(b) pro rata according to their Pro Rata Shares of the Tax
Exempt Commitment, a commitment fee equal to the Commitment Fee Rate in
effect from time to time TIMES the actual daily amount by which the Tax
Exempt Commitment exceeds the aggregate principal amount outstanding under
the Tax Exempt Notes.
The commitment fees shall be payable quarterly in arrears on each Quarterly
Payment Date, on the Maturity Date and upon the date of any partial reduction or
termination of the Commitments pursuant to Sections 2.7 or 2.8.
3.5 LETTER OF CREDIT FEES. Concurrently with the issuance of each
Letter of Credit, the Borrower shall pay a letter of credit issuance fee to the
Issuing Lender, for the sole account of the Issuing Lender, in an amount set
forth in a letter agreement between the Borrower and the Issuing Lender. Each
letter of credit issuance fee is nonrefundable. On each Quarterly Payment Date
and on the Maturity Date, the Borrower shall also pay to the Administrative
Agent in arrears, for the
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ratable account of the Lenders in accordance with their Pro Rata Share of the
Revolving Commitment, letter of credit fees in an amount equal to the Letter
of Credit Fee per annum TIMES the average daily Aggregate Effective Amount of
all Letters of Credit for the period from the Closing Date or the most recent
Quarterly Payment Date. All letter of credit fees shall also be
non-refundable.
3.6 ADMINISTRATIVE FEES. On the date hereof and annually
thereafter, the Borrower shall pay to the Administrative Agent an administrative
fee in such amounts as heretofore agreed upon by letter agreement between the
Borrower and Bank of America and the Lead Arranger. The administrative fee is
for the services to be performed by the Administrative Agent in acting as
Administrative Agent and is fully earned on the date paid. The administrative
fee paid to the Administrative Agent is solely for its own account and is
nonrefundable.
3.7 INCREASED COMMITMENT COSTS. If any Lender shall determine in
good faith that the introduction after the date hereof of any applicable law,
rule, regulation or guideline regarding capital adequacy, or any change therein
or any change in the interpretation or administration thereof by any central
bank or other Governmental Agency charged with the interpretation or
administration thereof, or compliance by such Lender (or its Eurodollar Lending
Office) or any corporation controlling the Lender, with any request, guideline
or directive regarding capital adequacy (whether or not having the force of Law)
of any such central bank or other authority, affects or would affect the amount
of capital required or expected to be maintained by such Lender or any
corporation controlling such Lender and (taking into consideration such Lender's
or such corporation's policies with respect to capital adequacy and such
Lender's desired return on capital) determines in good faith that the amount of
such capital is increased, or the rate of return on capital is reduced, as a
consequence of its obligations under this Agreement, then, within ten Business
Days after demand of such Lender, the Borrower shall pay to such Lender, from
time to time as specified in good faith by such Lender, additional amounts
sufficient to compensate such Lender in light of such circumstances, to the
extent reasonably allocable to such obligations under this Agreement, PROVIDED
that the Borrower shall not be obligated to pay any such amount which arose
prior to the date which is ninety days preceding the date of such demand or is
attributable to periods prior to the date which is ninety days preceding the
date of such demand. Each Lender's determination of such amounts shall be
conclusive in the absence of manifest error. Any request for compensation by a
Lender under this Section shall set forth the basis upon which it has been
determined that such an amount is due from the Borrower, a calculation of the
amount due, and a certification that the corresponding costs or diminished rate
of return on capital have been incurred or sustained by the Lender.
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3.8 LIBOR COSTS AND RELATED MATTERS.
(a) In the event that any Governmental Agency imposes on any
Lender any reserve or comparable requirement (INCLUDING any emergency,
supplemental or other reserve) with respect to the Eurodollar Obligations
of that Lender, the Borrower shall pay that Lender within five Business
Days after demand all amounts necessary to compensate such Lender
(determined as though such Lender's Eurodollar Lending Office had funded
100% of its LIBOR Advance in the Designated Eurodollar Market) in respect
of the imposition of such reserve requirements. The Lender's determination
of such amount shall be conclusive in the absence of manifest error.
(b) If, after the date hereof, the existence or occurrence
of any Special Circumstance:
(i) shall subject any Lender or its Eurodollar Lending
Office to any tax, duty or other charge or cost with respect to any
LIBOR Advance, any of its Notes evidencing LIBOR Advances or its
obligation to make LIBOR Advances, or shall change the basis of
taxation of payments to any Lender attributable to the principal of
or interest on any LIBOR Advance or any other amounts due under this
Agreement in respect of any LIBOR Advance, any of its Notes
evidencing LIBOR Advances or its obligation to make LIBOR Advances,
EXCLUDING (i) taxes imposed on or measured in whole or in part by
its overall net income, gross income or gross receipts, (ii)
franchise taxes imposed by (A) any jurisdiction (or political
subdivision thereof) in which it is organized or maintains its
principal office or Eurodollar Lending Office or (B) any
jurisdiction (or political subdivision thereof) in which it is
"doing business," and (iii) any withholding taxes or other taxes
based on gross income imposed by the United States of America for
any period with respect to which it has failed to provide the
Borrower with the appropriate form or forms required by Section
13.23, to the extent such forms are then required by applicable
Laws;
(ii) shall impose, modify or deem applicable any
reserve not applicable or deemed applicable on the date hereof
(INCLUDING any reserve imposed by the Board of Governors of the
Federal Reserve System, special deposit, capital or similar
requirements against assets of, deposits with or for the account of,
or credit extended by, any Lender or its Eurodollar Lending Office);
or
(iii) shall impose on any Lender or its Eurodollar
Lending Office or the Designated Eurodollar Market any other
condition
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affecting any LIBOR Advance, any of its Notes evidencing
LIBOR Advances, its obligation to make LIBOR Advances or this
Agreement, or shall otherwise affect any of the same;
and the result of any of the foregoing, as determined in good faith by
such Lender, increases the cost to such Lender or its Eurodollar Lending
Office of making or maintaining any LIBOR Advance or in respect of any
LIBOR Advance, any of its Notes evidencing LIBOR Advances or its
obligation to make LIBOR Advances or reduces the amount of any sum
received or receivable by such Lender or its Eurodollar Lending Office
with respect to any LIBOR Advance, any of its Notes evidencing LIBOR
Advances or its obligation to make LIBOR Advances (assuming such Lender's
Eurodollar Lending Office had funded 100% of its LIBOR Advance in the
Designated Eurodollar Market), then, within five Business Days after
demand by such Lender (with a copy to the Administrative Agent), the
Borrower shall pay to such Lender such additional amount or amounts as
will compensate such Lender for such increased cost or reduction
(determined as though such Lender's Eurodollar Lending Office had funded
100% of its LIBOR Advance in the Designated Eurodollar Market). A
statement of any Lender claiming compensation under this subsection and
setting forth in reasonable detail the additional amount or amounts to be
paid to it hereunder shall be conclusive in the absence of manifest error.
(c) If, after the date hereof, the existence or occurrence
of any Special Eurodollar Circumstance shall, in the good faith opinion of
any Lender, make it unlawful or impossible for such Lender or its
Eurodollar Lending Office to make, maintain or fund its portion of any
LIBOR Advance or materially restrict the authority of such Lender to
purchase or sell, or to take deposits of, Dollars in the Designated
Eurodollar Market, or to determine or charge interest rates based upon
LIBOR, and such Lender shall so notify the Administrative Agent, then such
Lender's obligation to make LIBOR Advances shall be suspended for the
duration of such illegality or impossibility and the Administrative Agent
forthwith shall give notice thereof to the other Lenders and the Borrower.
Upon receipt of such notice, the outstanding principal amount of such
Lender's LIBOR Advances, together with accrued interest thereon,
automatically shall be converted to Base Rate Advances on either (1) the
last day of the LIBOR Period(s) applicable to such LIBOR Advances if such
Lender may lawfully continue to maintain and fund such LIBOR Advances to
such day(s) or (2) immediately if such Lender may not lawfully continue to
fund and maintain such LIBOR Advances to such day(s), PROVIDED that in
such event the conversion shall not be subject to payment of a
prepayment fee under clause (e) of this Section. Each Lender agrees to
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endeavor promptly to notify the Borrower of any event of which it has
actual knowledge, occurring after the date hereof, which will cause that
Lender to notify the Administrative Agent under this Section, and agrees
to designate a different Eurodollar Lending Office if such designation
will avoid the need for such notice and will not, in the good faith
judgment of such Lender, otherwise be materially disadvantageous to such
Lender. In the event that any Lender is unable, for the reasons set forth
above, to make, maintain or fund its portion of any LIBOR Loan or Advance,
such Lender shall fund such amount as a Base Rate Advance for the same
period of time, and such amount shall be treated in all respects as a Base
Rate Advance. Any Lender whose obligation to make LIBOR Advances has been
suspended under this Section shall promptly notify the Administrative
Agent and the Borrower of the cessation of the Special Eurodollar
Circumstance which gave rise to such suspension.
(d) If, with respect to any proposed LIBOR Loan:
(i) the Administrative Agent reasonably determines
that, by reason of circumstances affecting the Designated Eurodollar
Market generally that are beyond the reasonable control of the
Lenders, deposits in Dollars (in the applicable amounts) are not
being offered to any Lender in the Designated Eurodollar Market for
the applicable LIBOR Period; or
(ii) the Requisite Lenders advise the Administrative
Agent that LIBOR as determined by the Administrative Agent (i) does
not represent the effective pricing to such Lenders for deposits in
Dollars in the Designated Eurodollar Market in the relevant amount
for the applicable LIBOR Period, or (ii) will not adequately and
fairly reflect the cost to such Lenders of making the applicable
LIBOR Advances;
then the Administrative Agent forthwith shall give notice thereof to the
Borrower and the Lenders, whereupon until the Administrative Agent
notifies the Borrower that the circumstances giving rise to such
suspension no longer exist, the obligation of the Lenders to make any
future LIBOR Advances shall be suspended.
(e) Upon payment or prepayment of any LIBOR Advance (OTHER
THAN as the result of a conversion required under clause (c) of this
Section) on a day other than the last day in the applicable LIBOR Period
(whether voluntarily, involuntarily, by reason of acceleration, or
otherwise), or upon the failure of the Borrower (for a reason other than
the failure of a Lender to make an Advance) to borrow on the date or in
the amount specified for a LIBOR Advance in any Request for Loan, or upon
the failure of the Borrower
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to prepay a LIBOR Loan or Advance on the date specified in a notice of
prepayment delivered to the Administrative Agent pursuant to Section
3.1(f), the Borrower shall pay to the appropriate Lender within ten
Business Days after demand a prepayment fee, failure to borrow fee or
failure to prepay fee, as the case may be (determined as though 100% of
that Lender's LIBOR Advance had been funded in the Designated
Eurodollar Market), equal to the SUM OF:
(i) the principal amount of the LIBOR Advance prepaid
or not borrowed or prepaid, as the case may be, TIMES [the number of
days from and including the date of prepayment or failure to borrow
or prepay, as applicable, to but excluding the last day in the
applicable LIBOR Period], DIVIDED BY 360, TIMES the applicable
Interest Differential (PROVIDED that the product of the foregoing
formula must be a positive number); PLUS
(ii) all out-of-pocket expenses incurred by the Lender
reasonably attributable to such payment, prepayment or failure to
borrow.
Each Lender's determination of the amount of any prepayment fee, failure
to borrow fee or failure to prepay fee payable under this Section shall be
conclusive in the absence of manifest error.
(f) Each Lender agrees to endeavor promptly to notify the
Borrower of any event of which it has actual knowledge, occurring after
the date hereof, which will entitle such Lender to compensation pursuant
to clause (a) or clause (b) of this Section, and agrees to designate a
different Eurodollar Lending Office if such designation will avoid the
need for or reduce the amount of such compensation and will not, in the
good faith judgment of such Lender, otherwise be materially
disadvantageous to such Lender. Any request for compensation by a Lender
under this Section shall set forth the basis upon which it has been
determined that such an amount is due from the Borrower, a calculation of
the amount due, and a certification that the corresponding costs have been
incurred by the Lender.
(g) If any Lender claims compensation or is excused from
making or continuing LIBOR Loans or Advances under this Section, the
Borrower may at any time, upon at least four (4) LIBOR Business Days'
prior notice to the Administrative Agent and such Lender and upon payment
in full of the amounts provided for in this Section through the date of
such payment PLUS any prepayment fee (subject to clause (c) of this
Section) required by clause (e) of this Section, pay in full the affected
LIBOR Advances of such
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Lender or request that such LIBOR Advances be converted to Base Rate
Advances.
3.9 DEFAULT RATE. If any installment of principal or interest or
any fee or cost or other amount payable under any Loan Document to the
Administrative Agent or any Lender is not paid when due, or at the option of the
Requisite Lenders upon the occurrence and during the continuance of any Event of
Default, the outstanding Loans, and any such delinquent fees, costs or other
amounts, shall thereafter bear interest at a rate which is 2% per annum in
excess of the otherwise applicable rate, and the outstanding Letters of Credit
shall thereafter accrue fees at a rate which is 2% per annum in excess of the
otherwise applicable fees, in each case to the fullest extent permitted by
applicable Laws. Accrued and unpaid interest on past due amounts shall be
compounded quarterly, on the last day of each calendar quarter, to the fullest
extent permitted by applicable Laws.
3.10 COMPUTATION OF INTEREST AND FEES. Computation of interest on
Base Rate years shall be made on the basis of a year of 365 days and the actual
number of days elapsed. All other interest and of all fees under this Agreement
shall be calculated on the basis of a year of 360 days and the actual number of
days elapsed. The Borrower acknowledges that such latter calculation method will
result in a higher yield to the Lenders than a method based on a year of 365 or
366 days. Interest shall accrue on each Loan for the day on which the Loan is
made; interest shall not accrue on a Loan, or any portion thereof, for the day
on which the Loan or such portion is paid. Any Loan that is repaid on the same
day on which it is made shall bear interest for one day. Notwithstanding
anything in this Agreement to the contrary, interest in excess of the maximum
amount permitted by applicable Laws shall not accrue or be payable hereunder or
under the Notes, and any amount paid as interest hereunder or under the Notes
which would otherwise be in excess of such maximum permitted amount shall
instead be treated as a payment of principal.
3.11 NON-BUSINESS DAYS. If any payment to be made by the Borrower
or any other Party under any Loan Document shall come due on a day other than a
Business Day, payment shall instead be considered due on the next succeeding
Business Day and the extension of time shall be reflected in computing interest
and fees.
3.12 MANNER AND TREATMENT OF PAYMENTS.
(a) Each payment hereunder (EXCEPT payments pursuant to
Sections 3.7, 3.8, 13.3 and 13.11) or on the Notes or under any other Loan
Document shall be made to the Administrative Agent, at the Administrative
Agent's Office, for the account of each of the Lenders or the
Administrative Agent, as the case may be, in immediately available funds
(by wire transfer,
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debit of an a ccount with the Administrative Agent or by other means
acceptable to the Administrative Agent) not later than 11:00 a.m.
(OTHER than payments with respect to Swing Line Loans, which must be
paid directly to the Swing Line Lender and received by 3:00 p.m.),
California local time, on the day of payment (which must be a Business
Day). All payments received after such time, on any Business Day, shall
be deemed received on the next succeeding Business Day. The amount of
all payments received by the Administrative Agent for the account of
each Lender shall be immediately paid by the Administrative Agent to
the applicable Lender in immediately available funds and, if such
payment was received by the Administrative Agent by 11:00 a.m.,
California local time, on a Business Day and not so made available to
the account of a Lender on that Business Day, the Administrative Agent
shall reimburse that Lender for the cost to such Lender of funding the
amount of such payment at the Federal Funds Rate. All payments shall be
made in lawful money of the United States of America.
(b) Each payment or prepayment on account of any Loan shall
be made and applied pro rata according to the outstanding Advances made by
each Lender comprising such Loan.
(c) Each Lender shall use its best efforts to keep a record
(which may be in tangible or electronic or other intangible form) of
Advances made by it and payments received by it with respect to each of
its Notes and, subject to Section 12.6(g), such record shall, as against
the Borrower, be presumptive evidence of the amounts owing.
Notwithstanding the foregoing sentence, the failure by any Lender to keep
such a record shall not affect the Borrower's obligation to pay the
Revolving Obligations.
3.13 TAXES. Each payment of any amount payable by the Borrower or
any other Party under this Agreement or any other Loan Document shall be made
free and clear of, and without reduction by reason of, any taxes, assessments or
other charges imposed by any Governmental Agency, central bank or comparable
authority, EXCLUDING (i) taxes imposed on or measured in whole or in part by
overall net income, gross income or gross receipts, (ii) franchise taxes imposed
on any Lender by (A) any jurisdiction (or political subdivision thereof) in
which it is organized or maintains its principal office or Eurodollar Lending
Office or (B) any jurisdiction (or political subdivision thereof) in which it is
"doing business", (iii) any withholding taxes or other taxes based on gross
income imposed by the United States of America that are not attributable to any
change in any Law or the interpretation or administration of any Law by any
Governmental Agency and (iv) any withholding tax or other taxes based on gross
income imposed by the United States of America for any period with respect to
which it has failed to provide the Borrower with the appropriate form or forms
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required by Section 13.23, to the extent such forms are then available under
applicable Laws (all such non-excluded taxes, assessments or other charges being
hereinafter referred to as "Taxes"). To the extent that the Borrower or any
other Party is obligated by applicable Laws to make any deduction or withholding
on account of Taxes from any amount payable to any Lender under this Agreement,
they shall (i) make such deduction or withholding and pay the same to the
relevant Governmental Agency and (ii) pay such additional amount to that Lender
as is necessary to result in that Lender's receiving a net after-tax amount
equal to the amount to which that Lender would have been entitled under this
Agreement absent such deduction or withholding. If and when receipt of such
payment results in an excess payment or credit to that Lender on account of such
Taxes, that Lender shall promptly refund such excess to the Borrower or the
relevant Party.
3.14 FUNDING SOURCES. Nothing in this Agreement shall be deemed to
obligate any Lender to obtain the funds for any Loan or Advance in the
Designated Market or in any other particular place or manner or to constitute a
representation by any Lender that it has obtained or will obtain the funds for
any Loan or Advance in any particular place or manner.
3.15 FAILURE TO CHARGE NOT SUBSEQUENT WAIVER. Any decision by the
Administrative Agent or any Lender not to require payment of any interest
(INCLUDING interest at the Default Rate), fee, cost or other amount payable
under any Loan Document, or to calculate any amount payable by a particular
method, on any occasion shall in no way limit or be deemed a waiver of the
Administrative Agent's or such Lender's right to require full payment of any
interest (INCLUDING interest at the Default Rate), fee, cost or other amount
payable under any Loan Document, or to calculate an amount payable by another
method that is not inconsistent with this Agreement, on any other or subsequent
occasion.
3.16 ADMINISTRATIVE AGENT'S RIGHT TO ASSUME PAYMENTS WILL BE MADE
BY THE BORROWER. Unless the Administrative Agent shall have been notified by the
Borrower prior to the date on which any payment to be made by the Borrower
hereunder is due that the Borrower does not intend to remit such payment, the
Administrative Agent may, in its discretion, assume that the Borrower has
remitted such payment when so due and the Administrative Agent may, in its
discretion and in reliance upon such assumption, make available to each Lender
on such payment date an amount equal to such Lender's share of such assumed
payment. If the Borrower has not in fact remitted such payment to the
Administrative Agent, each Lender shall forthwith on demand repay to the
Administrative Agent the amount of such assumed payment made available to such
Lender, together with interest thereon in respect of each day from and including
the date such amount was made available by the
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Administrative Agent to such Lender to the date such amount is repaid to the
Administrative Agent at the Federal Funds Rate.
3.17 CONCERNING THE TAX EXEMPT LOANS. In the event that any Lender
notifies the Administrative Agent and the Borrower that such Lender has:
(a) received notice that the United States Internal Revenue
Service, or any court of the United States of America, has determined that
interest on any Tax Exempt Loan is includable in the gross income of the
owner thereof for federal income tax purposes, or that any Tax Exempt Loan
is not a qualified tax-exempt obligation for purposes of Section 265(b) of
the Code; or
(b) received an opinion of an attorney nationally recognized
as knowledgeable in the issuance of tax-exempt obligations by states,
local governments and Indian tribes that interest on any Tax Exempt Loan
is includable in the gross income of the owner thereof for federal income
tax purposes, or that any Tax Exempt Loan is not a qualified tax-exempt
obligation for purposes of Section 265(b) of the Code; THEN:
(x) the interest rate borne by such Tax Exempt Loan
shall be increased, retroactive to the date as of which such
interest is so includable in gross income or the date as of which
such Tax Exempt Loan is not regarded as a qualified tax-exempt
obligation, as the case may be, to the Base Rate, PLUS the Base Rate
Margin, PLUS 2.00% per annum; and
(y) the Borrower shall, within thirty days of the
receipt of such notice, pay to the Administrative Agent an amount
equal to the difference between the interest actually paid on such
Tax Exempt Loan and the amount of interest that would have been paid
thereon had such Tax Exempt Loan borne interest at the rate
described in the foregoing clause (x) from the date as of which such
interest is so includable in gross income or the date as of which
such Tax Exempt Loan is not regarded as a qualified tax-exempt
obligation, as the case may be.
The obligation of the Borrower to make the payment described in the
foregoing clause (y) shall survive for five years following the date on
which the Commitments are terminated and all Tax Exempt Loans are fully
paid.
(c) Upon payment or prepayment of any Tax Exempt Advance on
a day other than the last day in the applicable Tax Exempt Period (whether
voluntarily, involuntarily, by reason of acceleration, or otherwise), or
upon the
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failure of the Borrower (for a reason other than the failure of a
Lender to make an Advance) to borrow on the date or in the amount
specified for a Tax Exempt Advance in any Request for Loan, or upon the
failure of the Borrower to prepay a Tax Exempt Loan or Advance on the date
specified in a notice of prepayment delivered to the Administrative Agent
pursuant to Section 3.1(f), the Borrower shall pay to the appropriate
Lender within ten Business Days after demand a prepayment fee, failure to
borrow fee or failure to prepay fee, as the case may be in an amount equal
to all costs determinated by such Lender to be directly or indirectly
attributable to such payment, prepayment or failure (determined as though
100% of that Lender's Tax Exempt Advance had been funded in the Designated
Eurodollar Market), together with all out-of-pocket expenses incurred by
the Lender reasonably attributable to such payment, prepayment or failure
to borrow. Each Lender's determination of the amount of any prepayment
fee, failure to borrow fee or failure to prepay fee payable under this
Section shall be conclusive in the absence of manifest error.
3.18 FEE DETERMINATION DETAIL. The Administrative Agent and any
Lender shall provide reasonable detail to the Borrower regarding the manner in
which the amount of any payment to the Creditors, or that Lender, under Article
3 has been determined, concurrently with demand for such payment.
3.19 SURVIVABILITY. All of the Borrower's obligations under
Sections 3.7 and 3.8 shall survive for ninety days following the date on which
the Commitments are terminated, all Revolving Obligations hereunder are fully
paid and all Letters of Credit have expired.
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ARTICLE 4.
REPRESENTATIONS AND WARRANTIES OF THE TRIBE
In order to induce the Creditors to enter into this Agreement and
the other Loan Documents, the Tribe represents and warrants to the Creditors
that, as of the Closing Date (but not as of any date subsequent thereto):
4.1 EXISTENCE AND QUALIFICATION; POWER; COMPLIANCE WITH LAWS. The
Tribe is federally recognized as a Indian Tribe pursuant to a determination of
the Secretary of the Interior, and as an Indian Tribal government pursuant to
Sections 7701(a)(40)(A) and 7871(a) of the Internal Revenue Code, Title 26
U.S.C. Each of the Tribe and the Borrower is or will be qualified to issue
obligations the interest on which is exempt from gross income for federal income
tax purposes under Sections 103 and 7871(c) of the Code as of the issuance of
each Tax Exempt Loan. Each of the Tribe and the Borrower is a non-taxable entity
for purposes of federal income taxation under the Internal Revenue Code, Title
26 U.S.C., and the gaming revenues of the Borrower are exempt from federal
income taxation. To the extent required by Law, the Tribe and the Borrower are
qualified to do business and is in good standing under the laws of each
jurisdiction in which it is required to be qualified by reason of the location
or the conduct of its business. The Tribe and the Borrower each has all
requisite power and authority to conduct its business, to own and lease its
Properties, to execute and deliver each Loan Document and to perform the
Revolving Obligations. The Tribe and the Borrower each is in material compliance
with the terms of the Compact, the Gaming Ordinance and with all Laws and other
legal requirements applicable to its existence and business (including without
limitation, IGRA and all Gaming Laws), has obtained all authorizations,
consents, approvals, orders, licenses and permits from, and has accomplished all
filings, registrations and qualifications with, or obtained exemptions from any
of the foregoing from, any Governmental Agency that are necessary for the
transaction of its business, EXCEPT where the failure so to file, register,
qualify or obtain exemptions does not constitute a Material Adverse Effect.
4.2 AUTHORITY; COMPLIANCE WITH OTHER AGREEMENTS AND INSTRUMENTS
AND GOVERNMENT REGULATIONS. The execution, delivery and performance by the Tribe
and the Borrower of the Loan Documents have been duly authorized by all
necessary Tribal Council action and other action, and do not:
(a) require any consent or approval not heretofore obtained
of any enrolled tribal member or Tribal Council member, security holder or
creditor;
(b) violate or conflict with any provision of the
Constitution, charter, bylaws or other governing documents of the Tribe or
the Borrower;
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(c) result in or require the creation or imposition of any
Lien or Right of Others upon or with respect to any Gaming Assets now
owned or leased or hereafter acquired (except as described in Section
7.8);
(d) violate any Law or Requirement of Law, including any
Gaming Law, applicable to the Tribe or the Borrower;
(e) constitute a "transfer of an interest" or an "obligation
incurred" that is avoidable by a trustee under Section 548 of the
Bankruptcy Code of 1978, as amended, or constitute a "fraudulent
conveyance," "fraudulent obligation" or "fraudulent transfer" within the
meanings of the Uniform Fraudulent Conveyances Act or Uniform Fraudulent
Transfer Act, as enacted in any applicable jurisdiction;
(f) result in a material breach of or default under, or
would, with the giving of notice or the lapse of time or both, constitute
a material breach of or default under, or cause or permit the acceleration
of any obligation owed under, any mortgage, indenture or loan or credit
agreement or any other Contractual Obligation to which the Tribe or the
Borrower is a party or by which the Tribe or the Borrower or any of its
Property is bound or affected; or
(g) require any consent or approval of any Governmental
Agency, or any notice to, registration or qualification with any
Governmental Agency, not heretofore obtained or obtained concurrently with
the Closing Date;
and neither the Tribe nor the Borrower is in violation of, or default under, any
Requirement of Law or Contractual Obligation, or any indenture, loan or credit
agreement described in Section 4.2(f), in any respect that constitutes a
Material Adverse Effect.
4.3 NO GOVERNMENTAL APPROVALS REQUIRED. No authorization, consent,
approval, order, license or permit from, or filing, registration or
qualification with, any Governmental Agency is required to authorize or permit
under applicable Laws the execution, delivery, performance and enforcement by
the Borrower of the Loan Documents, in each case which has not been made or
obtained.
4.4 GAMING ACTIVITIES OF THE TRIBE. All gaming activities of the
Tribe constituting or relating to the ownership and operation of gaming
facilities (including all Class II and Class III gaming activities within the
meaning of IGRA) and all activities of the Tribe constituting or relating to the
ownership of hotel, restaurant, entertainment and resort facilities, are
conducted on behalf of the Tribe by the Borrower and not through any agency or
instrumentality.
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4.5 TITLE TO PROPERTY. As of the Closing Date, the Borrower has
good and valid title to all the Property reflected in the financial statements
described in Section 5.6 OTHER THAN immaterial items of Property subsequently
sold or disposed of in the ordinary course of business, free and clear of all
Liens and Rights of Others, other than as set forth in Schedule 7.8.
4.6 [Intentionally Omitted]
4.7 REAL PROPERTY. Schedules 4.7A and 4.7B set forth a summary
description of all real property owned by the Tribe and the Borrower which is
Gaming Assets, including the Real Property, which summary is accurate and
complete in all material respects. All real, mixed and personal property which
is operationally integral to the gaming activities of the Silver Star and the
Golden Moon, are located upon the real property described on Schedules 4.7A and
4.7B. The sites of the Golden Moon and the Silver Star described on Schedules
4.7A and 4.7B are on lands the fee title to which is held by the United States
of America in trust for the Tribe and over which the Tribe exercises
"governmental power" within the meaning of IGRA. Such lands have been held in
trust by the United States of America for the Tribe since prior to October 17,
1988 and constitute "Indian Lands" within the meaning of 25 U.S.C. Section
2703(4). These lands also constitute a part of the Mississippi Choctaw Indian
Reservation under Public Law 106-228, 000 Xxxxxxxx, Xxxxxx Xxxxxxx, Xxx of June
29, 2000.
4.8 GOVERNMENTAL REGULATION. Except for the Tribe's Ordinance 56,
the provisions of which have been complied with, the Borrower is not subject to
regulation under any Law limiting or regulating its ability to incur
Indebtedness for money borrowed, to grant Liens of the type contemplated by the
Loan Documents to secure its obligations with respect to such Indebtedness or to
otherwise perform the Revolving Obligations.
4.9 BINDING OBLIGATIONS. The Loan Documents have been executed and
delivered by the Tribe and the Borrower and constitute the legal, valid and
binding obligations of the Tribe and the Borrower enforceable in accordance with
their terms, and each Loan Document hereafter executed will, when executed and
delivered, constitute the legal, valid and binding obligation of the Tribe and
the Borrower, enforceable against the Tribe and the Borrower in accordance with
its terms.
4.10 NO DEFAULT. No event has occurred and is continuing that is a
Default or an Event of Default.
4.11 DISCLOSURE. No written statement made by or on behalf of the
Tribe or the Borrower to the Administrative Agent or any Lender in connection
with this Agreement or in connection with any Loan contains any untrue statement
of a
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material fact or omits a material fact necessary in order to make the
statement made not misleading in light of all the circumstances existing at the
date the statement was made. There is no fact known to the Tribe or the Borrower
(other than matters of a general economic nature or matters generally applicable
to businesses of the types engaged in by the Borrower) which would constitute a
Material Adverse Effect that has not been disclosed in writing to the
Administrative Agent and the Lenders.
4.12 GAMING LAWS. The Tribe, the Borrower, the Casino Properties
and the Existing Casino Operations are each in material compliance with all
applicable Gaming Laws.
4.13 ARBITRATION. To the extent that any dispute among the
parties to the Loan Documents is subject to adjudication by the Tribe's
Tribal Court, (i) the Regular Civil Division of the Mississippi Choctaw
Tribal Court established pursuant to Section 1-3-1(2) of the Mississippi
Choctaw Tribal Code has exclusive jurisdiction over all such matters, (ii)
such court lacks discretion to refuse to compel arbitration among the parties
to the dispute, and (iii) such court is obligated to honor and enforce any
award by the arbitrator, without review of any nature by such court, (except
as Specified in Sections 11-15-23 or 11-15-25, Mississippi Code Annotated
1972).
4.14 FINANCIAL STATEMENTS. There are no Recourse Obligations
existing as of the Closing Date which are not included as liabilities on the
financial statements of the Borrower referred to in Section 5.6 (whether or not
the Borrower is described as the borrower or obligor with respect to such
Recourse Obligations).
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ARTICLE 5.
REPRESENTATIONS AND WARRANTIES OF THE BORROWER
In order to induce the Creditors to enter into this Agreement and
the other Loan Documents, the Borrower represents and warrants to the Creditors
that:
5.1 EXISTENCE AND QUALIFICATION; POWER; COMPLIANCE WITH LAWS. The
Tribe is federally recognized as a Indian Tribe pursuant to a determination of
the Secretary of the Interior, and as an Indian Tribal government pursuant to
Sections 7701(a)(40)(A) and 7871(a) of the Internal Revenue Code, Title 26
U.S.C. Each of the Tribe and the Borrower is or will be able to issue
obligations the interest on which is exempt from gross income for federal income
tax purposes under Sections 103 and 7871(c) of the Code as of the issuance of
each Tax Exempt Loan. Each of the Tribe and the Borrower is a non-taxable entity
for purposes of federal income taxation under the Internal Revenue Code, Title
26 U.S.C., and the gaming revenues of the Borrower are exempt from federal
income taxation. To the extent required by Law, the Tribe and the Borrower are
qualified to do business and is in good standing under the laws of each
jurisdiction in which it is required to be qualified by reason of the location
or the conduct of its business. The Tribe and the Borrower each has all
requisite power and authority to conduct its business, to own and lease its
Properties, to execute and deliver each Loan Document and to perform the
Revolving Obligations. The Tribe and the Borrower are in material compliance
with the terms of the Compact, the Gaming Ordinance and with all Laws and other
legal requirements applicable to its existence and business (including without
limitation, IGRA and all Gaming Laws), has obtained all authorizations,
consents, approvals, orders, licenses and permits from, and has accomplished all
filings, registrations and qualifications with, or obtained exemptions from any
of the foregoing from, any Governmental Agency that are necessary for the
transaction of its business, EXCEPT where the failure so to file, register,
qualify or obtain exemptions does not constitute a Material Adverse Effect.
5.2 AUTHORITY; COMPLIANCE WITH OTHER AGREEMENTS AND INSTRUMENTS
AND GOVERNMENT REGULATIONS. The execution, delivery and performance by the Tribe
and the Borrower of the Loan Documents have been duly authorized by all
necessary Tribal Council action, tribal membership action and other action, and
do not:
(a) require any consent or approval not heretofore obtained
of any enrolled tribal member or Tribal Council member, security holder or
creditor;
(b) violate or conflict with any provision of the
Constitution, charter, bylaws or other governing documents of the Tribe or
the Borrower;
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(c) result in or require the creation or imposition of any
Lien or Right of Others upon or with respect to any Gaming Assets now
owned or leased or hereafter acquired (except as described in Section
7.8);
(d) violate any Law or Requirement of Law, including any
Gaming Law, applicable to the Tribe or the Borrower;
(e) constitute a "transfer of an interest" or an "obligation
incurred" that is avoidable by a trustee under Section 548 of the
Bankruptcy Code of 1978, as amended, or constitute a "fraudulent
conveyance," "fraudulent obligation" or "fraudulent transfer" within the
meanings of the Uniform Fraudulent Conveyances Act or Uniform Fraudulent
Transfer Act, as enacted in any applicable jurisdiction;
(f) result in a material breach of or default under, or
would, with the giving of notice or the lapse of time or both, constitute
a material breach of or default under, or cause or permit the acceleration
of any obligation owed under, any mortgage, indenture or loan or credit
agreement or any other Contractual Obligation to which the Tribe or the
Borrower is a party or by which the Tribe or the Borrower or any of its
Property is bound or affected; or
(g) require any consent or approval of any Governmental
Agency, or any notice to, registration or qualification with any
Governmental Agency, not heretofore obtained or obtained concurrently with
the Closing Date;
and neither the Tribe nor the Borrower is in violation of, or default under, any
Requirement of Law or Contractual Obligation, or any indenture, loan or credit
agreement described in Section 5.2(f), in any respect that constitutes a
Material Adverse Effect.
5.3 NO GOVERNMENTAL APPROVALS REQUIRED. No authorization, consent,
approval, order, license or permit from, or filing, registration or
qualification with, any Governmental Agency is required to authorize or permit
under applicable Laws the execution, delivery, performance and enforcement by
the Tribe and the Borrower of the Loan Documents, in each case which has not
been made or obtained. Without limitation on the foregoing, the approval of the
Bureau of Indian Affairs is not required for the execution, delivery or
performance of the Loan Documents.
5.4 GAMING ACTIVITIES OF THE TRIBE. All gaming activities of the
Tribe constituting or relating to the ownership and operation of gaming
facilities (including all Class II and Class III gaming activities within the
meaning of IGRA) and all activities of the Tribe constituting or relating to the
ownership of hotel, restaurant,
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entertainment and resort facilities, are conducted on behalf of the Tribe by
the Borrower and not through any agency or instrumentality.
5.5 NO MANAGEMENT CONTRACT. To the best knowledge of the Borrower,
based upon the advice of its counsel, neither this Agreement nor the other Loan
Documents, taken individually or as a whole, constitute "management contracts"
or "management agreements" within the meaning of Section 12 of IGRA, or deprive
the Tribe or the Borrower of the sole proprietary interest and responsibility of
the conduct of gaming activity at Existing Casino Operations.
5.6 FINANCIAL STATEMENTS. The Borrower has furnished to the
Lenders (a) the audited financial statements of the Tribe as at September 30,
1998, and for the fiscal year then ended, (b) audited financial statements of
the Tribe as at September 30, 1999, (c) the draft audited financial statements
of the Silver Star for the fiscal year ended September 30, 2000, and (d) the
draft audited financial statements of Borrower for the Fiscal Year ended
September 30, 2000. The financial statements described in (a) and (b) above
fairly present the financial condition and the results of operations of the
Tribe as at such dates and for such periods in accordance with Generally
Accepted Accounting Principles consistently applied, EXCEPT in the case of the
financial statements described in clause (b) above, for any requirement for
footnote disclosures. The financial statements described in (c) and (d) above
fairly present the financial condition and the results of operations of the
Silver Star and the Borrower, respectively, as at such dates and for such
periods in accordance with Generally Accepted Accounting Principles consistently
applied.
5.7 FINANCIAL STATEMENTS OF THE BORROWER. There are no Recourse
Obligations existing as of the Closing Date which are not included as
liabilities on the financial statements of the Borrower referred to in Section
5.6 (whether or not the Borrower is described as the borrower or obligor with
respect to such Recourse Obligations). Each financial statement of the Borrower
or the Existing Casino Operations which is hereafter delivered in accordance
with Section 9.1 includes as liabilities of the Borrower, all then existing
Recourse Obligations, whether or not the Borrower is described as the borrower
or obligor with respect thereto. No Excluded Property is described as an asset
of the Existing Casino Operations on any balance sheet or other financial
statement of the Existing Casino Operations provided to the Administrative Agent
or the Lenders.
5.8 NO OTHER LIABILITIES; NO MATERIAL ADVERSE EFFECT. As of the
Closing Date, the Borrower does not have any material liability or material
contingent liability not reflected or disclosed in the draft financial
statements described in Section 5.6(b). No event or circumstance that
constitutes a Material Adverse Effect has occurred since September 30, 1998. As
of the date of each Advance made
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following the Closing Date, no event or circumstance has occurred since the
Closing Date that constitutes a Material Adverse Effect.
5.9 TITLE TO AND LOCATION OF PROPERTY. As of the Closing Date, the
Borrower has good and valid title to all the Property reflected in the financial
statements described in Section 5.6 OTHER THAN immaterial items of Property
subsequently sold or disposed of in the ordinary course of business, free and
clear of all Liens and Rights of Others, other than as set forth in Schedule
7.9.
5.10 REAL PROPERTY. Schedules 4.7A and 4.7B set forth a summary
description of all real property owned by the Tribe and the Borrower which is
Gaming Assets, including the Real Property, which summary is accurate and
complete in all material respects. All real, mixed and personal property which
is operationally integral to the gaming activities of the Silver Star and the
Golden Moon, are located upon the real property described on Schedules 4.7A and
4.7B. The site of the Golden Moon described on Schedule 4.7B is on lands the fee
title to which is held by the United States of America in trust for the Tribe
and over which the Tribe exercises "governmental power" within the meaning of
IGRA. Such lands have been held in trust by the United States of America for the
Tribe since prior to October 17, 1988 and constitute "Indian Lands" within the
meaning of 25 U.S.C. Section 2703(4). These lands also constitute a part of the
Mississippi Choctaw Indian Reservation under Public Law 106-228, 000 Xxxxxxxx,
Xxxxxx Xxxxxxx, Xxx of June 29, 2000.
5.11 INTANGIBLE ASSETS. The Borrower owns, or possesses the right
to use, (or in the case of the Golden Moon has applied for the right to use) to
the extent necessary in the business of the Existing Casino Operations, all
trademarks, trade names, copyrights, patents, patent rights, computer software,
licenses and other Intangible Assets that are used in the conduct of the
business of the Existing Casino Operations as now operated and which are
material to the condition (financial or otherwise), business or operations of
the Existing Casino Operations, and no such Intangible Asset conflicts with the
valid trademark, trade name, copyright, patent, patent right or Intangible Asset
of any other Person to the extent that such conflict constitutes a Material
Adverse Effect.
5.12 GOVERNMENTAL REGULATION. Except for the Tribe's Ordinance 56,
the provisions of which have been complied with, the Borrower is not subject to
regulation under any Law limiting or regulating its ability to incur
Indebtedness for money borrowed, to grant Liens of the type contemplated by the
Loan Documents to secure its obligations with respect to such Indebtedness or to
otherwise perform the Revolving Obligations.
5.13 LITIGATION. EXCEPT for (a) any matter fully covered (subject
to applicable deductibles and retentions) by insurance and with respect to which
the
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insurance carrier has not denied coverage, nor issued any denial of claim,
nor any other statement that the claim is in excess of coverage, and (b) any
matter, or series of related matters, not fully covered by insurance (subject to
applicable deductibles and retentions) involving a claim against the Borrower
which is, in the reasonable opinion of the Borrower's independent legal counsel,
in an amount less than $1,000,000, there are no actions, suits, proceedings or
investigations pending as to which the Borrower has been served or have received
notice or, to the best knowledge of the Borrower, threatened against or
affecting the Borrower or any of its Property before any Governmental Agency.
5.14 BINDING OBLIGATIONS. The Loan Documents have been executed and
delivered by the Tribe and the Borrower and constitute the legal, valid and
binding obligations of the Tribe and the Borrower enforceable in accordance with
their terms, and each Loan Document hereafter executed will, when executed and
delivered, constitute the legal, valid and binding obligation of the Tribe and
the Borrower, enforceable against the Tribe and the Borrower in accordance with
its terms.
5.15 NO DEFAULT. No event has occurred and is continuing that is a
Default or an Event of Default.
5.16 ERISA. As of the Closing Date neither the Borrower nor any
ERISA Affiliate maintains, contributes to or is required to contribute to any
"employee pension benefit plan" that is subject to Title IV of ERISA.
5.17 REGULATIONS T, U AND X; INVESTMENT COMPANY ACT. No part of the
proceeds of any Loan or other extension of credit hereunder will be used to
purchase or carry, or to extend credit to others for the purpose of purchasing
or carrying, any "margin stock" (as such term is defined in Regulations T, U and
X) in violation of Regulations T, U and X. The Borrower is not engaged
principally, or as one of its important activities, in the business of extending
credit for the purpose of purchasing or carrying any such "margin stock." The
Borrower is not required to be registered as an "investment company" under the
Investment Company Act of 1940.
5.18 DISCLOSURE. No written statement made by or on behalf of the
Tribe or the Borrower to the Administrative Agent or any Lender in connection
with this Agreement or in connection with any Loan contains any untrue statement
of a material fact or omits a material fact necessary in order to make the
statement made not misleading in light of all the circumstances existing at the
date the statement was made. There is no fact known to the Tribe or the Borrower
(other than matters of a general economic nature or matters generally applicable
to businesses of the types engaged in by the Borrower) which would constitute a
Material Adverse Effect that has not been disclosed in writing to the
Administrative Agent and the Lenders.
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5.19 TAX LIABILITY. The Borrower has filed all tax returns which
are required to be filed, and has paid, or made provision for the payment of,
all taxes with respect to the periods, Property or transactions covered by said
returns, or pursuant to any assessment received by the Borrower, EXCEPT such
taxes, if any, as are being contested in good faith by appropriate proceedings
and as to which adequate reserves have been established and maintained.
5.20 PROJECTIONS. As of the Closing Date, to the best knowledge of
the Borrower, the assumptions set forth in the Projections are reasonable and
consistent with each other and with all facts known to the Borrower and no
material assumption is omitted as a basis for the Projections, and the
Projections are reasonably based on such assumptions. Nothing in this Section
shall be construed as a representation, warranty or covenant that the
Projections in fact will be achieved.
5.21 EMPLOYEE MATTERS. There is no strike or work stoppage in
existence or, to the Borrower's knowledge, threatened involving the Borrower
that would constitute a Material Adverse Effect.
5.22 GAMING LAWS. The Borrower, the Casino Properties and the
Existing Casino Operations are each in material compliance with all applicable
Gaming Laws.
5.23 HAZARDOUS MATERIALS. Neither the Borrower nor to the best
knowledge of each Senior Officer of the Borrower any predecessor in title or any
third person at any time occupying or present on the Real Property at any time,
has disposed of, discharged, released or threatened the release of any material
amount of Hazardous Materials on, from or under such real property in any manner
that violates any Hazardous Materials Law. No condition exists that violates any
Hazardous Material Law affecting the Real Property except for such violations
that would not individually or in the aggregate have a Material Adverse Effect.
The Real Property and each portion thereof is not and has not been utilized by
the Borrower as a site for the manufacture of any Hazardous Materials and is in
compliance in all material respects with all Hazardous Materials Laws. To the
extent that any Hazardous Materials have been, or are, used, generated or stored
by the Borrower on any Real Property, or transported to or from such Real
Property by the Borrower, such use, generation, storage and transportation have
been and are, in compliance in all material respects with all Hazardous
Materials Laws.
5.24 ARBITRATION. To the extent that any dispute among the
parties to the Loan Documents is subject to adjudication by the Tribe's
Tribal Court, (i) the Regular Civil Division of the Mississippi Choctaw
Tribal Court established pursuant to Section 1-3-1(2) of the Mississippi
Choctaw Tribal Code has exclusive jurisdiction over all such matters, (ii)
such court lacks discretion to refuse to compel arbitration among the
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parties to the dispute, and (iii) such court is obligated to honor and
enforce any award by the arbitrator, without review of any nature by such
court (except as Specified in Sections 11-15-23 or 11-15-25, Mississippi Code
Annotated 1972).
5.25 LIENS. The Deposit Account Agreements and the Security
Agreement create a valid first priority security interests in the Collateral
described therein securing the Revolving Obligations which security interest is
pari passu with that securing the Term Obligations, and all action necessary to
perfect the security interests so created, other than filing of the UCC-1
financing statements delivered to the Administrative Agent pursuant to Section
10.1 with the appropriate Governmental Agency have been taken and completed.
5.26 DEPOSIT ACCOUNTS. Each deposit, brokerage or other similar
account containing any Cash or Cash Equivalents which are Gaming Assets is
listed on Schedule 5.26 (or has been disclosed in writing to the Administrative
Agent) and (with the exception of the Senior Financing Account and the Reserve
Account) is subject to the Lien of the Collateral Agent pursuant to a Deposit
Account Agreement.
5.27 THE TAX EXEMPT LOANS. Borrower reasonably expects that:
(a) no less than 10 percent of the spendable proceeds of the
Tax Exempt Notes will be spent for the governmental purposes of the issue
within the 1-year period beginning on the date of the initial Tax Exempt
Advance;
(b) no less than 30 percent of the spendable proceeds of the
Tax Exempt Notes will be spent for such purposes within the 2-year period
beginning on such date;
(c) no less than 60 percent of the spendable proceeds of the
Tax Exempt Notes will be spent for such purposes within the 3-year period
beginning on such date; and
(d) no less than 85 percent of the spendable proceeds of the
Tax Exempt Notes will be spent for such purposes within the 5-year period
beginning on such date.
For purposes of the foregoing, "spendable proceeds" is intended to refer to all
proceeds of issuance of the Tax Exempt Notes. No Tax Exempt Loan will be a
"hedge bond" within the meaning of Section 149(g) of the Code.
All facilities financed with proceeds of a Tax Exempt Loan will be owned and
maintained by the Tribe and the Borrower and available for use by members of the
general public on a substantially equal basis. Neither the Tribe nor the
Borrower shall
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not enter into any lease, use or other agreement with any non-governmental
person relating to the use of any facilities financed with the proceeds of a
Tax Exempt Loan which would cause the Tax Exempt Loan to be considered a
"private activity bond" or "private loan bond" within the meaning of Section
141 of the Code. Substantially all (90% or more) of the net proceeds of each
Tax Exempt Loan will be used to finance or refinance the costs of facilities
which constitute "essential government functions" of the Borrower and the
Tribe.
5.28 THE PROPOSED SENIOR FINANCING. Prior to the incurrence of the
Proposed Senior Financing (including any refinancings thereof), (a) provide the
Administrative Agent and the Lenders with drafts of the instruments, documents
and agreements pursuant to which the same shall be issued, which instruments,
documents and agreements shall not contain terms which are, taken as a whole,
more restrictive upon the Borrower and the Tribe than those contained in the
Loan Documents, and (b) obtain the written approval of the Administrative Agent
of such instruments, documents and agreements, which approval shall not be
unreasonably withheld, delayed or conditioned.
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ARTICLE 6.
AFFIRMATIVE COVENANTS
(OTHER THAN INFORMATION AND
REPORTING REQUIREMENTS)
So long as any Advance remains unpaid, any Letter of Credit remains
outstanding, or any other Revolving Obligation remains unpaid or unperformed, or
any portion of the Commitments remains in force, the Borrower shall, unless the
Administrative Agent (with the approval of the Requisite Lenders) otherwise
consents:
6.1 PAYMENT OF TAXES AND OTHER POTENTIAL LIENS. Pay and discharge
promptly all taxes, assessments and governmental charges or levies imposed upon
the Borrower or its Property or any part thereof, upon its income or profits or
any part thereof or (to the extent that the same arise after the Closing Date)
any tax assessment, governmental charges or levies imposed upon any right or
interest of the Administrative Agent or any Lender under any Loan Document,
EXCEPT that the Borrower shall not be required to pay or cause to be paid (a)
any income or gross receipts tax or any other tax on or measured by income
generally applicable to banks, and (b) any tax, assessment, charge or levy that
is not yet delinquent, or is being contested in good faith by appropriate
proceedings, so long as the Borrower has established and maintained adequate
reserves for the payment of the same and by reason of such nonpayment and
contest no material item or portion of Gaming Assets is in jeopardy of being
seized, levied upon or forfeited.
6.2 MAINTENANCE OF PROPERTIES. Maintain, preserve and protect all
of the intellectual property of the Borrower associated with the Existing Casino
Operations and all other depreciable Gaming Properties of the Borrower in good
order and condition, subject to wear and tear in the ordinary course of
business, and not permit any waste of such Properties, EXCEPT that the failure
to maintain, preserve and protect a particular item of depreciable Property that
is not of significant value, either intrinsically or to the operations of the
Borrower shall not constitute a violation of this covenant, and maintain its
ownership of all intellectual property and licenses thereof necessary for the
operation of Existing Casino Operations.
6.3 MAINTENANCE OF INSURANCE. Maintain liability, casualty and
other insurance with respect to itself and all Gaming Assets (subject to
customary deductibles and retention) with responsible insurance companies in
such amounts and against such risks as is carried by responsible companies
engaged in similar businesses and owning similar assets in the general areas in
which the Borrower operates and, in any event, (a) workers' compensation
insurance, to the extent required to comply with all applicable state,
territorial and United States laws and regulations, (b) comprehensive general
liability insurance with minimum limits of $2,000,000, (c) umbrella liability
insurance providing excess liability coverages over and above the
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foregoing underlying insurance policies up to a minimum limit of
$100,000,000, (d) property insurance protecting the Existing Casino
Operations for possible damage by fire, lightning, wind-storm other damage,
vandalism, riot, earthquake, civil commotion, malicious mischief, hurricane
and such other risks and hazards as are from time to time covered by an "all
risk" policy or a property policy covering "special" causes of loss. Such
insurance shall provide coverage of not less than 100% of actual replacement
value (as determined at each policy renewal based on the X.X. Xxxxx Building
Index or some other recognized means) of any improvements with a deductible
no greater than $500,000, and (e) such insurance with respect to the Real
Property as is maintained as of the Closing Date as described in Schedule 6.3.
6.4 COMPLIANCE WITH LAWS. Comply with all Requirements of Laws
noncompliance with which would constitute a Material Adverse Effect, EXCEPT that
the Borrower need not comply with a Requirement of Law then being contested by
it in good faith by appropriate proceedings.
6.5 PRESERVATION OF LICENSES AND PERMITS. Preserve and maintain
all authorizations, rights, franchises, privileges, consents, approvals, orders,
licenses, permits, or registrations from any Governmental Agency that are
necessary for the transaction of the business of Existing Casino Operations, and
qualify and remain qualified to transact business in each jurisdiction in which
such qualification is necessary in view of its business or the ownership or
leasing of its Properties EXCEPT where the failure to preserve and maintain any
such authorizations, rights, franchises, privileges, consents, approvals,
orders, licenses, permits or registrations or to so qualify or remain qualified
would not constitute a Material Adverse Effect.
6.6 INSPECTION RIGHTS. Upon reasonable notice, at any time during
regular business hours and as often as requested upon reasonable prior notice to
the Borrower and the Choctaw Gaming Commission (but not so as to unreasonably
interfere with the business of the Existing Casino Operations), permit the
Administrative Agent or any Lender, or any authorized employee, agent or
representative thereof, to examine, audit and make copies and abstracts from the
records and books of account of, and to visit and inspect Existing Casino
Operations, and to discuss the affairs, finances and accounts of the Existing
Casino Operations with the Borrower and with any of its officers, key employees,
and accountants, and, upon request, furnish promptly to the Administrative Agent
or any Lender true copies of all financial information made available to the
Tribal Council or Chief of the Tribe or to the senior management of the Existing
Casino Operations. All reasonable expenses incurred by the Creditors in
connection with this Section shall be promptly reimbursed by the Borrower.
6.7 CONSTRUCTION MATTERS. Without limitation on other provisions
of this Agreement,
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(a) provide the Construction Consultant any and all
requested access to the Golden Moon Project site;
(b) cooperate in the preparation of each Construction
Progress Report and, if requested by the Administrative Agent, cause the
Golden Moon Project's architect and general contractor to certify that the
improvements constructed as of the date of any Construction Progress
Report conform to the Approved Plans (or, in the proper case, the
Preliminary Plans) in all material respects;
(c) maintain a full set of working drawings at the
construction office for the Golden Moon Project for review by the
Construction Consultant; and
(d) within 15 days following any request by the
Administrative Agent, deliver (i) then current construction plans for the
Golden Moon Project certified as true and correct by the architect and the
project engineer for the Golden Moon Project, (ii) a then current list of
the names, addresses and telephone numbers of each material contractor,
subcontractor and material supplier with respect to the Golden Moon
Project and the dollar value and amounts paid with respect to the related
contracts, and (iii) then current versions of the construction schedule
for all uncompleted work on the Golden Moon Project and all executed
contracts and subcontracts for such work.
6.8 KEEPING OF RECORDS AND BOOKS OF ACCOUNT. Keep adequate records
and books of account reflecting all financial transactions in conformity with
Generally Accepted Accounting Principles and in material conformity with all
applicable requirements of any Governmental Agency having regulatory
jurisdiction over the Borrower.
6.9 COMPLIANCE WITH AGREEMENTS. Promptly and fully comply with all
Contractual Obligations under all material agreements, indentures, leases and
instruments to which it is a party, whether such material agreements,
indentures, leases or instruments are with a Lender or another Person, PROVIDED
that the good faith failure of the Borrower to comply with Contractual
Obligations involving an amount of money which is less than $1,000,000 or
Property having a value of less than $1,000,000 shall not constitute a breach of
this covenant for so long as the Borrower is attempting, through the exercise of
diligent efforts, to comply therewith.
6.10 USE OF PROCEEDS. Use the proceeds of the Loans and Letters of
Credit (in conjunction with the proceeds of the Other Senior Financing) (a) in
the case of Loans and Letters of Credit under the Revolving Commitment, (i) to
finance design, development and construction costs associated with the Golden
Moon Project in
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accordance with the Approved Plans and the Approved Budget (including by way
of reimbursement of costs associated therewith advanced by the Tribe from
time to time (except to the extent that such costs are used as an offset to
the amount which must be deposited by the Tribe pursuant to Section
7.21(b)(ii))and demonstrated as such to the reasonable satisfaction of the
Administrative Agent), (ii) to provide for working capital availability for
the gaming operations of the Borrower, (iii) to finance Capital Expenditures
described herein, and (iv) for general purposes of the Borrower and other
permitted distributions of the Tribe, and (b) in the case of Loans under the
Tax Exempt Commitment, only for "essential governmental functions" of the
Borrower and the Tribe within the meaning of Section 7871(e) of the Code and
in a manner which assures that the interest on the Tax Exempt Loans shall not
be includable in gross income of the Lenders for federal income tax purposes.
6.11 HAZARDOUS MATERIALS LAWS. Keep and maintain the Real Property
and each portion thereof in compliance in all material respects with all
Hazardous Materials Laws and promptly advise Administrative Agent in writing of
(a) any and all enforcement, cleanup, removal or other governmental or
regulatory actions instituted, completed or threatened in writing pursuant to
any applicable Hazardous Materials Laws, (b) any and all claims made or
threatened in writing, and received by the Borrower, by any third party against
the Borrower or the Real Property relating to damage, contribution, cost
recovery, compensation, loss or injury resulting from any Hazardous Materials
and (c) discovery by any Senior Officer of the Borrower or the Tribe of any
occurrence or condition on any real property adjoining or in the vicinity of the
Real Property that could reasonably be expected to cause the Real Property or
any part thereof to be subject to any restrictions on the ownership, occupancy,
transferability or use of the Real Property under any Hazardous Materials Laws,
PROVIDED that the good faith failure of the Borrower to comply with Hazardous
Materials Laws shall not constitute a breach of this covenant if (a) the
Borrower is diligently attempting to comply therewith, and (b) no Gaming Assets
having a value in excess of $1,000,000 is affected by such non-compliance or is
in jeopardy of seizure or closure as a result of such non-compliance.
6.12 TAX EXEMPT LOANS. Take all actions necessary to maintain, and
not take or permit any other Person to take any action which would have the
result of adversely affecting, the status of (a) the interest on each Tax Exempt
Loan as not includable in the gross income of the Lenders for federal income tax
purposes, (b) each Tax Exempt Loan as not an "arbitrage bond" under Section 148
of the Code, and (c) each Tax Exempt Loan as a "qualified tax exempt obligation"
under Section 265(b) of the Code.
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ARTICLE 7.
NEGATIVE COVENANTS OF THE BORROWER
So long as any Advance remains unpaid, any Letter of Credit remains
outstanding, or any other Revolving Obligation remains unpaid or unperformed, or
any portion of the Commitments remains in force, the Borrower shall not, unless
the Administrative Agent (with the approval of the Requisite Lenders) otherwise
consents:
7.1 PAYMENT OF SUBORDINATED OBLIGATIONS. Prepay any principal
(INCLUDING sinking fund payments), interest or any other amount with respect to
any Subordinated Obligations, or purchase or redeem (or offer to purchase or
redeem) any Subordinated Obligations, or deposit any monies, securities or other
Property with any trustee or other Person to provide assurance that the
principal or any portion thereof of any Subordinated Obligations will be paid
when due or otherwise provide for the defeasance of any Subordinated Obligations
EXCEPT scheduled payments of interest made when no Default or Event of Default
exists or would result therefrom.
7.2 DISPOSITION OF PROPERTY. Make any Disposition of Gaming
Assets, whether now owned or hereafter acquired, EXCEPT for Dispositions of
Property specifically contemplated by Section 7.5.
7.3 INVESTMENTS AND ACQUISITIONS. Make any Acquisition using
Gaming Assets, or enter into any agreement to make any Acquisition using Gaming
Assets, or make or suffer to exist any Investment made using Gaming Assets,
EXCEPT:
(a) Investments in Cash Equivalents;
(b) Investments in Subsidiaries to the extent in compliance
with Section 8.5;
(c) Investments in the Paired Swap Agreement and any Secured
Swap Agreements; and
(d) Following the Golden Moon Completion Date, other
Investments which, when aggregated with Capital Expenditures made pursuant
to Section 7.14(e), do not exceed the Post Completion Basket Amount.
7.4 HOSTILE TENDER OFFERS. Use the proceeds of the Commitments or
any other funds of the Borrower constituting Gaming Assets to directly or
indirectly finance any offer to purchase or acquire, or to consummate a purchase
or acquisition of, 5% or more of the capital stock of any corporation or other
business entity if the board of directors or management of such corporation or
business entity has notified the Borrower that it opposes such offer or
purchase.
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7.5 DISTRIBUTIONS. Make any Distribution, whether from capital,
income or otherwise, and whether in Cash or other Property, EXCEPT:
(a) Priority Distributions; and
(b) other Distributions to the Tribe made out of Available
Cash Flow when no Default or Event of Default exists (and which do not
result in any Event of Default), PROVIDED THAT:
(i) after giving effect to the making of the proposed
Distribution, the Borrower is in PRO FORMA compliance with the Fixed
Charge Coverage Ratio covenant set forth in Section 7.13 (at the
performance level required for the next Fiscal Quarter occurring
following that date), after adding to the denominator of the Fixed
Charge Coverage Ratio the amount of the Distributions made or
proposed to be made pursuant to this clause (b) during that Fiscal
Quarter; and
(ii) the amount of any Distributions otherwise
permitted under this clause (b) shall be reduced by the amount, if
any, by which the Golden Moon Project is Out-of- Balance.
PROVIDED that in no event shall Borrower make any Distribution of funds used as
a credit under Section 7.21(b)(ii).
7.6 ERISA.
(a) At any time, permit any Pension Plan which is maintained
by the Borrower or to which the Borrower is obligated to contribute on
behalf of its employees, in such case if to do so would constitute a
Material Adverse Effect, to:
(i) engage in any non-exempt "prohibited transaction,"
as such term is defined in Section 4975 of the Internal Revenue
Code, Title 26, U.S.C.;
(ii) incur any material "accumulated funding
deficiency," as that term is defined in Section 302 of ERISA; or
(iii) suffer a Termination Event to occur which may
reasonably be expected to result in liability of the Borrower or any
ERISA Affiliate thereof to the Pension Plan or to the PBGC or the
imposition of a Lien on the Property of the Borrower or any ERISA
Affiliate thereof pursuant to Section 4068 of ERISA.
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(b) At any time, permit any Pension Plan which is maintained
by the Borrower or to which the Borrower is obligated to contribute on
behalf of its employees to fail to comply with ERISA or other applicable
Laws in any respect that would result in a Material Adverse Effect.
7.7 LINES OF BUSINESS. Engage in any material business using any
Gaming Assets which is not fundamentally related to the Existing Casino
Operations, use any material Gaming Assets for a purpose which is unrelated to
the Existing Casino Operations, or make any fundamental change to the nature of
the business operations of the Silver Star, the Golden Moon or any other
Existing Casino Operation.
7.8 LIENS; NEGATIVE PLEDGES; SALES AND LEASEBACKS. Create, incur,
assume or suffer to exist any Lien or Right of Others of any nature upon or with
respect to Gaming Assets; or suffer to exist any Negative Pledge with respect to
any Gaming Assets; or engage in any sale and leaseback transaction with respect
to any Gaming Assets; EXCEPT:
(a) Permitted Encumbrances and Permitted Rights of Others;
(b) Liens and Negative Pledges in favor of the
Administrative Agent or the Lenders under the Loan Documents;
(c) pari passu Liens and Negative Pledges on the same
collateral (i) securing the Obligations (ii) securing the Term Obligations
(including the Paired Swap Agreement), and (iii) to the extent created or
incurred concurrently with the issuance thereof, securing the Proposed
Senior Financing (and any refinancings thereof), PROVIDED that in the
event that any such Liens or Negative Pledges securing the Proposed Senior
Financing (or any refinancings thereof) are at any time released following
the issuance of the Proposed Senior Financing, they shall not thereafter
be renewed or suffered to exist;
(d) Existing Rights of Others and Negative Pledges disclosed
in Schedule 7.8; and
(e) Purchase money Liens and associated Negative Pledges
incurred with respect to Property acquired using the proceeds of
Indebtedness and Capital Leases permitted under Section 7.9(d).
7.9 RECOURSE INDEBTEDNESS AND CONTINGENT OBLIGATIONS. Waive its
sovereign immunity with respect to any Indebtedness or Contingent Obligation in
a manner which would create recourse to the Gaming Assets or any revenues
thereof, or
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otherwise create, incur, assume or suffer to exist any Indebtedness or
Contingent Obligation which constitutes a Recourse Obligation, EXCEPT:
(a) Indebtedness and Contingent Obligations in favor of the
Lenders or the Administrative Agent under the Loan Documents;
(b) Indebtedness and Contingent Obligations under the Term
Loan Agreement and the Paired Swap Agreement;
(c) Indebtedness and Contingent Obligations incurred prior
to the Golden Moon Completion Date in an aggregate principal amount not in
excess of $150,000,000 consisting of the Proposed Senior Financing
PROVIDED THAT Section 7.19(c) is concurrently complied with, and
refinancings thereof which do not result in an increase in the aggregate
outstanding principal amount thereof;
(d) other Indebtedness and Contingent Obligations existing
on the Closing Date in an aggregate principal amount not in excess of
$500,000 and the renewal or refinancing, but not the increase, thereof;
(e) Subordinated Obligations the incurrence of which is
reasonably approved by the Requisite Lenders and when no Default or Event
of Default exists;
(f) purchase money Indebtedness and Capital Lease
Obligations in an aggregate principal amount not to exceed $10,000,000;
and
(g) Recourse Obligations in an aggregate principal amount
not to exceed $5,000,000 incurred to finance design, development and
construction of the Borrower's proposed employee training facility and
administrative offices.
7.10 TRANSACTIONS WITH AFFILIATES. Enter into any transaction of
any kind with any Affiliate of the Borrower which involves the Silver Star, the
Golden Moon or any other Gaming Assets OTHER THAN (a) employment of enrolled
tribal members, and the immediate family members of tribal members, on terms
consistent with the past practices of the Borrower, and (b) other transactions
on terms at least as favorable to the Borrower as would be the case in an
arm's-length transaction between unrelated parties of equal bargaining power
(except that the Borrower may accord reasonable bid preferences to Tribal
members and their businesses in accordance with Tribal Law) and, where the
transaction involves more than $1,000,000, the terms of which are disclosed to
the Lenders in writing.
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7.11 GAMING EXPENDITURES. Use any Gaming Assets for a purpose which
is not related to the Existing Casino Operations, expend any funds which are
Gaming Assets for any purpose which does not directly or indirectly benefit the
Existing Casino Operations, or make any Capital Expenditure using funds of the
Borrower which are Gaming Assets except to add to the Silver Star, to construct
the Golden Moon Project or to further improve, maintain, repair, restore or
refurbish the Existing Casino Operations, and except as otherwise expressly
provided for in this Agreement.
7.12 TOTAL LEVERAGE RATIO. Permit the Total Leverage Ratio, (a) as
of the last day of any Fiscal Quarter ending during the period occurring between
the Closing Date and the last day of the first Fiscal Quarter ending three or
more calendar months following the Golden Moon Completion Date, to exceed
2.50:1.00, (b) as of the last day of the next two immediately succeeding Fiscal
Quarters, to exceed 2.25:1.00, or (c) as of the last day of any subsequent
Fiscal Quarter, to exceed 2.00:1.00.
7.13 FIXED CHARGE COVERAGE RATIO. Permit the Fixed Charge Coverage
Ratio, as of the last day of any Fiscal Quarter, to be less than 1.05:1.00,
PROVIDED that as of the last day of any Fiscal Quarter as of which (a)
Annualized Gaming EBITDA for the four Fiscal Quarter period then ended is not
less than $140,000,000, and (b) the Borrower's cash balances as of such date are
in excess of $25,000,000, then the required Fixed Charge Coverage Ratio shall be
reduced to 1.00:1.00.
7.14 CAPITAL EXPENDITURES. Make, or become legally obligated to
make, any Capital Expenditure OTHER THAN:
(a) Maintenance Capital Expenditures with respect to the
Silver Star in an aggregate amount not to exceed $10,000,000 in any Fiscal
Year;
(b) $25,000,000 for expansion Capital Expenditures at the
Silver Star during the term of this Agreement (or following its
completion, the Golden Moon);
(c) Capital Expenditures to construct the Golden Moon
Project in an aggregate amount not to exceed the SUM of $325,000,000
(including capitalized interest and Pre-Opening Expenses), in each case
made pursuant to the Approved Budget;
(d) Maintenance Capital Expenditures with respect to the
Golden Moon following the Golden Moon Completion Date in an aggregate
amount not to exceed $10,000,000 in any Fiscal Year, and
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(e) Following the Golden Moon Completion Date, other Capital
Expenditures which, when aggregated with Investments made pursuant to
Section 7.3(d), do not exceed the Post Completion Basket Amount.
7.15 TAX EXEMPT LOANS. Fail to take all actions necessary to
maintain, and shall not take or permit any other Person to take any action which
would have the result of adversely affecting, the status of (a) the interest on
each Tax Exempt Loan as not includable in the gross income of the Lenders for
federal income tax purposes, (b) each Tax Exempt Loan as not an "arbitrage bond"
under Section 148 of the Code, and (c) each Tax Exempt Loan as a "qualified tax
exempt obligation" under Section 265(b) of the Code.
7.16 TAX EXEMPT NOTES.
(a) NOT TO CAUSE INTEREST TO BECOME TAXABLE. Use, permit the
use of, or omit to use Gross Proceeds or any other amounts (or any
property the acquisition, construction or improvement of which is to be
financed directly or indirectly with Gross Proceeds) in a manner that if
made or omitted, respectively, would cause the interest on the Tax Exempt
Notes to fail to be excluded, pursuant to section 103(a) of the Code, from
the gross income of the owner thereof for federal income tax purposes.
Without limiting the generality of the foregoing, unless and until the
Borrower receives a written opinion of Bond Counsel to the effect that
failure to comply with such covenant will not adversely affect the
exclusion from gross income of the interest on the Tax Exempt Notes, the
Borrower shall comply with each of the specific covenants in this Section.
(b) NO PRIVATE USE OR PRIVATE PAYMENTS. Except as would not
cause the Tax Exempt Notes to become "private activity bonds" within the
meaning of section 141 of the Code and the Tax Regulations and rulings
thereunder:
(1) fail to require that one or more state or local
governmental agencies (including Indian tribal governments or
subdivisions thereof) exclusively own, operate and possess all
property the acquisition, construction or improvement of which is to
be financed or refinanced directly or indirectly with Gross Proceeds
of the Tax Exempt Notes, or use or permit the use of such Gross
Proceeds (including all contractual arrangements with terms
different than those applicable to the general public) or any
property acquired, constructed or improved with such Gross Proceeds
in any activity carried on by any Nongovernmental Person, UNLESS
such use is solely as a member of the general public; and
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(2) permit the direct or indirect imposition of any
charge or other payment on or by any person or entity who is treated
as using Gross Proceeds of the Tax Exempt Notes or any property the
acquisition, construction or improvement of which is to be financed
or refinanced directly or indirectly with such Gross Proceeds, other
than taxes of general application within the Tribe or interest
earned on investments acquired with such Gross Proceeds pending
application for their intended purposes.
The Borrower understands and acknowledges that "use" of Gross Proceeds may arise
by reason of an ownership, lease, or management arrangement with respect to the
financed property or, more generally, by reason of any arrangement that provides
to a Nongovernmental Person any rights, priorities or other special legal
entitlements with respect to any financed property different from those enjoyed
by members of the general public. The Borrower shall not permit any
Nongovernmental Person to lease any portion of any financed property, or to
provide services with respect to a function of any financed property unless the
arrangement for such services satisfies the guidelines set forth in Revenue
Procedure 97-13 (pertaining to "qualified management contracts"), unless the
Borrower shall first have obtained the opinion of Bond Counsel that such
arrangements will not adversely affect the exclusion pursuant to section 103(a)
of the Code of interest on the Tax Exempt Notes from the gross income of the
owners thereof.
(c) NO PRIVATE LOAN. Except as would not cause the Tax
Exempt Notes to become a "private activity bond" within the meaning of
section 141 of the Code and the Tax Regulations and rulings thereunder,
use or permit the use of Gross Proceeds to make or finance loans to any
person or entity other than a state or local government (including Indian
tribal governments or subdivisions thereof). For purposes of this clause
(c), such Gross Proceeds are considered to be "loaned" to a person or
entity if: (1) property acquired, constructed or improved with such Gross
Proceeds is sold or leased to such person or entity in a transaction that
creates a debt for federal income tax purposes; (2) capacity in or service
from such property is committed to such person or entity under a
take-or-pay, output or similar contract or arrangement; or (3) indirect
benefits, or burdens and benefits of ownership, of such Gross Proceeds or
any property acquired, constructed or improved with such Gross Proceeds
are otherwise transferred in a transaction that is the economic equivalent
of a loan.
(d) NOT TO INVEST AT HIGHER YIELD. Except as would not cause
the Tax Exempt Notes to become an "arbitrage bond" within the meaning of
section 148 of the Code and the Tax Regulations and rulings thereunder,
not at
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any time prior to the later of the final stated maturity of the Tax
Exempt Notes or the date on which the last Tax Exempt Advance is finally
repaid directly or indirectly invest or permit the investment of Gross
Proceeds of such Issue in any Appropriate Investment, if as a result of
such investment the Yield of any Appropriate Investment acquired with
Gross Proceeds of that Issue, whether then held or previously disposed of,
would materially exceed the Yield of the Tax Exempt Notes within the
meaning of said section 148.
(e) NO FEDERAL GUARANTEE. Except to the extent permitted by
section 149(b) of the Code and the Tax Regulations and rulings thereunder,
take or omit to take, or permit, any action that would cause the Tax
Exempt Notes to be "federally guaranteed" within the meaning of section
149(b) of the Code and the Tax Regulations and rulings thereunder.
(f) INFORMATION REPORT. Fail to timely file or cause to be
filed any information required by section 149(e) of the Code with respect
to each Issue with the Secretary of the Treasury on Form 8038-G or such
other form and in such place as the Secretary may prescribe.
(g) REBATE OF ARBITRAGE PROFITS. Except to the extent
otherwise provided in section 148(f) of the Code and the Tax Regulations
and rulings thereunder:
(1) Fail to account for all Gross Proceeds of each
Issue (including all receipts, expenditures and investments thereof)
on its books of account separately and apart from all other funds
(and receipts, expenditures and investments thereof) or fail to
retain all records of accounting for at least six years after the
day on which the last Tax Exempt Advance is repaid. However, to the
extent permitted by Law and this Agreement, the Borrower may
commingle Gross Proceeds of any Issue with other money of the
Borrower, PROVIDED THAT the Borrower separately accounts for each
receipt and expenditure of Gross Proceeds of that Issue and the
obligations acquired therewith.
(2) Not less frequently than each Computation Date
with respect to each Issue, fail to calculate the Rebatable Amount
in accordance with rules set forth in section 148(f) of the Code and
the Tax Regulations and rulings thereunder, which the Borrower shall
maintain with its official transcript of proceedings relating to the
issuance of the Issue until six years after the final Computation
Date in respect of that Issue.
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(3) Fail to make rebate payments at the times and in
the amounts as are or may be required by section 148(f) of the Code
and the Tax Regulations and rulings thereunder, which payments shall
be accompanied by Form 8038-T or such other forms and information as
is or may be required by section 148(f) of the Code and the Tax
Regulations and rulings thereunder.
(4) Fail to exercise reasonable diligence to assure
that no errors are made in the calculations and payments required by
paragraphs (2) and (3), or if an error is made, to discover and
promptly correct such error within a reasonable amount of time
thereafter (and in all events within one hundred eighty (180) days
after discovery of the error), including payment to the United
States of America of any additional Rebatable Amount owed to it,
interest thereon, and any penalty imposed under section 1.148-3(h)
of the Tax Regulations.
(h) NOT TO DIVERT ARBITRAGE PROFITS. Except to the extent
permitted by section 148 of the Code and the Tax Regulations and rulings
thereunder, fail prior to the earlier of the stated maturity of the Tax
Exempt Notes or the date on which the last Tax Exempt Advance is repaid to
enter into any transaction that reduces the amount required to be paid to
the United States of America pursuant to clause (f) of this Section with
respect to such Issue because such transaction results in a smaller profit
or a larger loss than would have resulted if the transaction had been at
arm's length and had the Yield of the Tax Exempt Notes not been relevant
to either party.
(i) ELECTIONS. Fail to designate an appropriate officer of
the Borrower to make elections permitted or required pursuant to the
provisions of the Code or the Tax Regulations, as such representative
(after consultation with Bond Counsel) deems necessary or appropriate in
connection with the Tax Exempt Notes, in a Tax Certificate or similar or
other appropriate certificate, form or document.
7.17 GOLDEN MOON COMPLETION. Fail to cause the Golden Moon
Completion Date to occur by September 30, 2002, and to cause all of the
amenities described on Schedule 1.1B to be open and available for gaming patrons
by such date.
7.18 DEPOSIT ACCOUNTS. Fail to deposit and thereafter maintain all
Cash and Cash Equivalents which are Gaming Assets into accounts which are
subject to the Deposit Account Agreements, OTHER THAN (a) Cash and Cash
Equivalents maintained at the Silver Star or the Golden Moon as cage cash, (b)
Cash and Cash Equivalents withdrawn and expended in the ordinary course of the
business of Borrower, (c) other nominal amounts reasonably required in
connection with the
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operation of the Casinos for xxxxx cash and other purposes, (d) that portion
of proceeds of the Proposed Senior Financing deposited into the Senior
Financing Account and (e) the Reserve Account.
7.19 CONSTRUCTION COVENANTS.
(a) Fail to proceed diligently and without material
interruption to construct and furnish the Golden Moon Project in
accordance in all material respects with the Approved Plans and the
Approved Budget.
(b) Make any change to the Approved Plans or Approved Budget
which would (i) increase the overall Approved Budget to amount which is in
excess of $325,000,000, (ii) result in any change in the scope of the
Golden Moon Project so that the square footage of the casino area of the
Golden Moon would be decreased by more than 5%, or (iii) delete or reduce
any of the amenities described on Schedule 1.1B.
(c) Fail to construct the Golden Moon Project in a good and
workmanlike manner in accordance with sound building practices and without
material deviation from the Approved Plans, and comply in all material
respects with all existing Laws and requirements of all Governmental
Agencies having jurisdiction and in all material respects with all future
Laws and requirements that become applicable to the Golden Moon Project.
(d) Purchase or contract for any materials, equipment,
furnishings, fixtures or articles of personal property to be placed or
installed on the Golden Moon Project under any security agreement or other
agreement where the seller reserves or purports to reserve title or the
right of removal or repossession (EXCEPT for such reservations as may
arise solely by operation of Law), or the right to consider such materials
personal property after their incorporation in the work of construction,
unless the Administrative Agent in each instance has authorized the
Borrower to do so in writing.
(e) Fail to promptly pay prior to delinquency (subject to
applicable retentions) or otherwise discharge all claims and Liens for
labor done and materials and services furnished in connection with the
construction of the Golden Moon Project, EXCEPT for claims contested in
good faith by appropriate proceedings and without prejudice to the
construction timetable, PROVIDED that any such claims are covered by such
payment bonds or other security, in each case as may be reasonably
requested by the Administrative Agent.
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(f) Fail to properly obtain, comply with and keep in effect
all material permits, licenses and approvals which are customarily
required to be obtained from Governmental Agencies in order to construct
and occupy the Golden Moon Project as of the then current stage of
construction, and deliver copies of all such permits, licenses and
approvals to the Administrative Agent promptly following a written request
therefor.
(g) Fail, within 15 days following any written request by
the Administrative Agent, to deliver (i) then current construction plans
for the Golden Moon Project certified as true and correct by the Golden
Moon Project architect and the project engineer, (ii) a then current list
of the names, addresses and telephone numbers of each material contractor,
subcontractor and material supplier with respect to the Golden Moon
Project and the dollar value and amounts paid with respect to the related
contracts, and (iii) then current versions of the construction schedule
for all uncompleted work on the Golden Moon Project and all executed
contracts and subcontracts for such work;
(h) Fail to promptly notify the Administrative Agent if it
takes title to any construction materials for the Golden Moon Project
having a value in excess of $1,000,000 that are not located on the Tribe's
reservation lands, or will not be delivered to the Tribe's reservation
lands or a fully bonded storage lot within thirty days after the date upon
which title thereto has been transferred to the Tribe (describing such
construction materials, the purchase price therefor and the location
thereof) and, if requested by the Administrative Agent, provide to the
Administrative Agent the written acknowledgment of the Person having
custody of such construction materials of the existence of the
Administrative Agent's Lien on such construction materials and the right
of the Administrative Agent to have access to and to remove such
construction materials when an Event of Default has occurred and remains
continuing.
(i) Fail, as soon as practicable after the Completion Date,
to provide the Administrative Agent with an ALTA survey of the Golden Moon
site that (i) demonstrates compliance of the Golden Moon in all material
respects with all applicable Laws and requirements of Governmental
Agencies, (ii) sets forth all recorded easements and licenses burdening
the Golden Moon site, (iii) reflects no encroachments onto the Golden Moon
site and no encroachments by the Golden Moon onto adjoining real property
(other than as reflected on the ALTA Survey described in the definition of
Golden Moon site) and (iv) certifies the legal description of the Golden
Moon Project site to be the same as that set forth on Schedule 4.7A
(except for any immaterial deviations therefrom which are reasonably
acceptable to counsel for the Administrative Agent).
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7.20 CONSTRUCTION PLANS. From time to time following the Closing
Date, Borrower shall (a) provide the Construction Consultant with updated drafts
of the Preliminary Plans, and (b) shall consult with the Administrative Agent
and the Construction Consultant with respect thereto. Following the completion
by the Construction Consultant of their analysis of the Preliminary Plans and
their feasibility in the context of the Approved Budget, the Borrower shall
incorporate all reasonable suggestions, if any, of the Construction Consultant,
and shall resubmit the Preliminary Plans to the Construction Consultant and the
Administrative Agent. If the Administrative Agent, after consultation with the
Construction Consultant, determines that the proposed construction plans are
feasible, provide for the amenities described in Schedule 1.1B, and may be
completed for the Approved Budget, the Administrative Agent will designate such
plans so submitted as the "Approved Plans" for the construction of the Golden
Moon Project. Subject to the immediately preceding sentence, the Administrative
Agent, after consultation with the Construction Consultant, shall not
unreasonably refuse to provide such approval and designation or delay the same.
The Approved Plans may be amended from time to time by the Borrower following
such approval and designation, provided that Borrower gives prior written notice
to the Administrative Agent and the Construction Consultant together with the
proposed amendment and that such proposed amendment would not result in a
violation of Section 7.19.
7.21 THE PROJECT DISBURSEMENT ACCOUNT.
(a) It is acknowledged by the parties hereto, that prior to
the Closing Date, (i) the Borrower has expended approximately $8,500,000
in connection with the design, development and construction of the Golden
Moon Project, and (ii) the Tribe has advanced for the account of the
Borrower an additional amount of approximately $8,000,000 for costs
associated with the design, development and construction of the Golden
Moon Project.
(b) Borrower agrees that it shall establish the Project
Disbursement Account pursuant to a Deposit Account Agreement entered into
with Trustmark or another financial institution reasonably acceptable to
the Administrative Agent and that it shall:
(i) deposit cash derived from Silver Star revenues
into the Project Disbursement Account from time to time in the
amounts which are required so that the cumulative amount deposited
under this clause (i) is at all times equal to:
(A) $20,200,000 MINUS the amount of all costs
provided for in the Approved Budget paid out of funds of the
Silver Star prior to the Closing Date;
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MULTIPLIED BY a fraction equal to:
(B) the integral number of months which have then
occurred since February 1, 2001, over 18 months.
(ii) on or before February 28, 2001, cause the Tribe to
deposit cash into the Project Disbursement Account in an amount
equal to $33,700,000 MINUS the amount of all costs provided for in
the Approved Budget which are theretofore advanced by the Tribe for
the account of the Borrower;
Borrower shall provide a written summary and calculation of the amounts so
advanced by the Tribe and by the Borrower out of Silver Star revenues
which is reasonably acceptable to the Administrative Agent.
(c) Borrower agrees that, concurrently with the consummation
of the Permitted Senior Financing it shall:
(i) immediately reduce the outstanding principal
balance of the Loans under the Revolving Loan Agreement to zero;
(ii) deposit any remaining net cash proceeds of the
Proposed Senior Financing into the Project Disbursement Account or,
to the extent required by the terms of the Proposed Senior
Financing, into the Senior Financing Account, PROVIDED in the latter
case that there shall be no restrictions upon the disbursement of
the proceeds of the Proposed Senior Financing from the Senior
Financing Account which are not reasonably acceptable to the
Administrative Agent; and
(iii) refrain from requesting any new Loans hereunder
unless and until the entire amount of the Proposed Senior Financing
(whether the same has been deposited into the Project Disbursement
Account, the Senior Financing Account, or otherwise) has been
expended or the Golden Moon Completion Date has occurred.
(d) Borrower agrees that it shall not use or expend any
funds now or hereafter deposited in the Project Disbursement Account for
any purpose other than (i) the actual costs of design, development and
construction of the Golden Moon Project contemplated by the Approved
Budget, and (ii) transactional expenses associated with the transactions
contemplated to occur on the Closing Date and the Proposed Senior
Financing unless and until the Completion Date has occurred.
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ARTICLE 8.
RECOURSE COVENANTS OF THE TRIBE
So long as any Advance remains unpaid, any Letter of Credit remains
outstanding, or any other Revolving Obligation remains unpaid or unperformed, or
any portion of the Commitments remains in force, the Tribe shall not, and shall
not permit the Borrower to, unless the Administrative Agent (with the approval
of the Requisite Lenders) otherwise consents:
8.1 CONTINUAL OPERATION OF CASINOS. Fail to cause the Borrower to
continuously operate the Existing Casino Operations and each principal amenity
now or hereafter associated therewith in the manner operated as of the Closing
Date (or as contemplated on the Closing Date to be operated) and in any event in
compliance with the Gaming Ordinance, all applicable Laws and the Compact.
8.2 REMITTANCE OF AVAILABLE CASH FLOW. Fail, to the extent that
Available Cash Flow exists, promptly and in any event within two Business Days
following demand by the Administrative Agent (with such demand to be made only
following the date upon which any such payment is due hereunder and has not been
made by the Borrower), to cause the Borrower to remit to the Administrative
Agent from Available Cash Flow all payments of principal, interest, fees and
other amounts payable to the Creditors under the Loan Documents.
8.3 LEGAL AND BINDING OBLIGATIONS. Assert that the provisions of
the Loan Documents are not the Tribe's or the Borrower's valid, binding and
legally enforceable obligations, fail at any time to take any actions required
to correct any material inaccuracy (as of the Closing Date) of the
representations and warranties of the Tribe contained in Article 4, or fail to
reaffirm in writing upon request that the Loan Documents, and more particularly
the provisions of Sections 13.24 and 13.27 are valid, binding and enforceable.
8.4 PRESERVATION OF EXISTENCE; OPERATION. Fail to do all things
necessary to maintain the existence of the Tribe as a federally recognized
Indian Tribe under 25 C.F.R. Part 83.
8.5 OWNERSHIP OF EXISTING CASINO OPERATIONS. Form or acquire
any corporation or other business entity for the purpose of directly or
indirectly owning any Existing Casino Operation or any interest therein.
8.6 AMENDMENTS TO CERTAIN DOCUMENTS.
(a) Amend, modify or waive any term or provision of any
Material Document, or waive any rights thereunder in any respect which is
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adverse to the interests of the Administrative Agent or the Lenders,
PROVIDED that this clause (a) shall not be construed to restrict the
ability of the Tribe to amend or modify the Constitution except to the
extent that any such amendment or modification would have a negative
economic impact upon the Existing Casino Operations or otherwise have a
Material Adverse Effect; or
(b) In any event, consent to any amendment, modification, or
waiver of any term or provision of any Material Document in any manner
without thirty days prior written notice to the Lenders.
8.7 IMPAIRMENT OF CONTRACTS; IMPOSITION OF GOVERNMENTAL CHARGES.
(a) Adopt, enact, promulgate or otherwise place into effect
any tribal Law which impairs or interferes, or could impair or interfere,
in any manner, with any right or remedy of the Creditors, the Revolving
Obligations of the Tribe or the Borrower under this Agreement or the other
Loan Documents (it being understood and agreed that any such tribal Law
which is adopted, enacted, promulgated or otherwise placed into effect
without the consent of all of the Lenders shall, with respect to the Loan
Documents, the rights and remedies of the Creditors thereunder, and the
Revolving Obligations, be void and of no effect); or
(b) Demand, impose or receive any tax, charge, assessment,
fee or other imposition (except as specifically contemplated by Section
7.5) or impose any regulatory or licensing requirement (EXCEPT as provided
in the Gaming Ordinance), against the Existing Casino Operations, their
customers or guests, its operations or any other Gaming Assets, the
Creditors, the employees, officers, directors, patrons or vendors of the
Existing Casino Operations, OTHER THAN (i) charges upon Existing Casino
Operations to pay the actual and reasonable regulatory expenditures of the
Choctaw Gaming Commission under the Gaming Ordinance, (ii) sales, use,
room occupancy, leisure and related excise taxes, including admissions and
cabaret taxes and any other taxes (other than income taxes) imposed by the
Tribe on the Existing Casino Operations, its patrons, or operations,
provided that the rate and scope of such taxes shall not be more onerous
(taken as a whole) than those which may be imposed by the State of
Mississippi or its subdivisions upon similar activities within its
jurisdiction, (iii) fees imposed on the Tribe by the Commission under
IGRA, (iv) Enterprise Administrative Fees, and (v) assessments equal to
the amount reasonably allocated to the Existing Casinos of any expenses
incurred by the Tribe or Borrower for joint marketing, training and other
expenses jointly benefitting the Tribe, the Borrower and the Existing
Casinos.
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8.8 SEGREGATION OF GAMING ASSETS. Commingle any Gaming Assets,
including all funds and bank accounts, with the Excluded Property of the Tribe
or the Borrower.
8.9 TRUST PROPERTY. Convey to federal government of the United
States of America, to be held in trust for the benefit of the Tribe or any of
its Affiliates, any Gaming Assets of the Tribe OTHER THAN interests in real
property.
8.10 BANKRUPTCY MATTERS; ETC.
(a) Enact any bankruptcy or similar law for the relief of
debtors that would impair, limit, restrict, delay or otherwise adversely
affect any of the rights and remedies of the Creditors provided for in the
Loan Documents;
(b) Exercise, or permit any of the Tribe's representatives,
political subunits, agencies, instrumentalities or councils to exercise,
any power of eminent domain over the Existing Casino Operations; or
(c) Enact any statute, law, ordinance or rule that would
have a material adverse effect upon the rights of the Creditors under the
Loan Documents.
8.11 IMPAIRMENT OF CONTRACTS. The Tribe stipulates and agrees that
any action taken in violation of Sections 8.6, 8.7 or 8.10 would deprive the
Lenders of a property right without due process in a manner which would violate
the Indian Civil Rights Act, 25 U.S.C. 1302.
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ARTICLE 9.
INFORMATION AND REPORTING REQUIREMENTS
9.1 FINANCIAL AND BUSINESS INFORMATION. So long as any Advance
remains unpaid, any Letter of Credit remains outstanding, or any other Revolving
Obligation remains unpaid or unperformed, or any portion of the Commitments
remains in force, the Borrower shall, unless the Administrative Agent (with the
approval of the Requisite Lenders) otherwise consents, deliver to the
Administrative Agent and the Lenders, at the Borrower's sole expense:
(a) As soon as practicable, and in any event within 45 days
after the end of each Fiscal Quarter (including the fourth Fiscal Quarter
in every Fiscal Year), (i) the combined and combining balance sheets of
each of the Existing Casino Operations as at the end of such Fiscal
Quarter, (ii) combined and combining statements of income and retained
earnings of each of the Existing Casino Operations as at the end of such
Fiscal Quarter and for the portion of the Fiscal Year ended with such
Fiscal Quarter, and (iii) the combined and combining statements of cash
flow of each of the Existing Casino Operations for such Fiscal Quarter and
for the portion of the Fiscal Year ended with such Fiscal Quarter, all in
reasonable detail and in any event in each case setting forth separately
the results of operations for any Excluded Property. Such financial
statements shall be certified by a Senior Officer of the Borrower as
fairly presenting the financial condition, results of operations and
changes in financial position or cash flows of each of the Existing Casino
Operations, in accordance with Generally Accepted Accounting Principles
(other than any requirement for footnote disclosures) consistently
applied, as at such date and for such periods, subject only to normal
year-end accruals and audit adjustments and shall be accompanied by a
management narrative description of results of operations;
(b) As soon as practicable, and in any event within 120 days
after the end of each Fiscal Year, (i) the combined and combining balance
sheets of each of the Existing Casino Operations as at the end of such
Fiscal Year, (ii) the combined and combining statements of income and
retained earnings and of cash flows of each of the Existing Casino
Operations for such Fiscal Year, and (iii) the combined and combining
statements of cash flow of each of the Existing Casino Operations for such
Fiscal Year, all in reasonable detail and in any event in each case
setting forth separately the results of operations for any Excluded
Property. Such financial statements shall be prepared in accordance with
Generally Accepted Accounting Principles, consistently applied, and such
balance sheet and statements shall be accompanied by a report and opinion
of independent public accountants of
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recognized standing selected by the Borrower and reasonably
satisfactory to the Requisite Lenders, which report shall be based on
an audit conducted in accordance with generally accepted auditing
standards as at such date, and which opinion shall be an unqualified
opinion without additional explanatory or non-standard wording which
the Requisite Lenders determine is unacceptable and with no limitation
as to the scope of their audit;
(c) As soon as the same are practicably available after the
end of each Fiscal Year, the draft audited financial statements of the
Tribe for the fiscal year of the Tribe then ended (with the final audited
financial statements to follow promptly upon their becoming available);
(d) Concurrently with the delivery of the financial
statements referred to in Sections 9.1(a) and 9.1(b), a written discussion
and analysis of the financial condition and results of operations of each
of the Existing Casino Operations in reasonable detail, INCLUDING in the
case of any such report delivered in connection with the financial
statements referred to in Section 9.1(b), an explanation of any material
variance from operational results or balance sheet items contained in
projections previously delivered to the Lenders;
(e) As soon as practicable, and in any event within 30 days
after the end of each calendar month, a monthly revenue report showing
revenues for each of the Existing Casino Operations and on a consolidated
basis for the prior calendar month associated with each gaming category
(along with relevant statistics including win per unit, win per table and
win percentages), occupancy percentage, and average hotel room rental
rates experienced by each of the Existing Casino Operations during such
monthly period together with a management narrative description of the
results of operations;
(f) As soon as practicable, and in any event within 90 days
after the commencement of each Fiscal Year, projected financial statements
by Fiscal Year for each of the three Fiscal Years immediately subsequent
to that Fiscal Year, INCLUDING, in each case, projected balance sheets,
statements of income and retained earnings and statements of cash flow of
each of the Existing Casino Operations, all in reasonable detail and in
any event to include (i) projected Distributions to be made to the general
tribal fund of the Tribe by each of the Existing Casino Operations and
(ii) projected Capital Expenditures with respect to the Gaming Properties;
(g) Promptly following receipt by the Borrower, copies of
any detailed audit reports or recommendations submitted to the Borrower or
the Tribe with respect to its Gaming Properties by independent accountants
in
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connection with the accounts or books of each of the Existing Casino
Operations or any audit of each of the Existing Casino Operations;
(h) Promptly following a filing, copies of any specific
report or other document filed by the Borrower or the Tribe in respect of
its gaming operations or any Gaming Assets with any Governmental Agency,
including without limitation all reports which the Borrower is required to
file with the National Indian Gaming Commission under 25 C.F.R. Part 514;
(i) Promptly upon a Senior Officer of the Borrower or the
Tribe becoming aware, and in any event within thirty Business Days after
becoming aware, of the occurrence of any (i) "reportable event" (as such
term is defined in Section 4043 of ERISA) or (ii) "prohibited transaction"
(as such term is defined in Section 406 of ERISA or Section 4975 of the
Internal Revenue Code, Title 26, U.S.C.) in connection with any Pension
Plan or any trust created thereunder, written notice specifying the nature
thereof and specifying what action the Borrower is taking or proposes to
take with respect thereto, and, when known, any action taken by the
Internal Revenue Service with respect thereto;
(j) As soon as practicable, and in any event not less than
30 days (or, if acceptable to the Administrative Agent, a shorter period)
prior to the proposed effective date thereof, written notice of any
proposed amendment, modification or waiver of the terms and provisions of
any of the Material Documents.
(k) As soon as practicable, and in any event within five
Business Days after a Senior Officer of the Borrower or the Tribe becomes
aware of the existence of any condition or event which constitutes a
Default or Event of Default, written notice specifying the nature and
period of existence thereof and specifying what action the Borrower and
the Tribe are taking or propose to take with respect thereto;
(l) Promptly upon a Senior Officer of the Borrower or the
Tribe becoming aware that (i) any Person has commenced a legal proceeding
with respect to a claim against the Borrower or the Tribe that is, in the
reasonable opinion of their independent legal counsel, $5,000,000 or more
in excess of the amount thereof that is fully covered by insurance
(subject to applicable deductibles and retentions), (ii) any creditor or
lessor under a written credit agreement with respect to Indebtedness in
excess of $5,000,000 or lease involving unpaid rent in excess of
$5,000,000 has asserted a default thereunder on the part of the Borrower
or the Tribe, (iii) any Person commenced a legal proceeding with respect
to a claim against the Borrower or the Tribe under a
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contract that is not a credit agreement or lease in excess of
$5,000,000, (iv) any labor union has notified the Borrower or the Tribe
of its intent to strike the Borrower or the Tribe on a date certain,
which strike could reasonably be expected to have a Material Adverse
Effect, or (v) any other event or circumstance occurs or exists that
would constitute a Material Adverse Effect, in each case a written
notice describing the pertinent facts relating thereto and what action
the Borrower and the Tribe are taking or propose to take with respect
thereto;
(m) Promptly upon a Senior Officer of the Borrower becoming
aware that the Internal Revenue Service has commenced any review of
whether the interest on any Tax Exempt Loan is includable in the gross
income of the owners thereof for federal income tax purposes, or whether
any Tax Exempt Loan constitutes a "qualified tax exempt obligation" under
Section 265(b) of the Code, a written notice describing the pertinent
facts relating thereto and what action the Borrower is taking or proposes
to take with respect thereto;
(n) Not later than the fifteenth day of each calendar month
until the Golden Moon Completion Date, such information as may be required
for the completion of the monthly Construction Progress Report; and
(o) Such other data and information regarding the Borrower,
its Gaming Properties and the business of the Existing Casino Operations
as from time to time may be reasonably requested by the Administrative
Agent or the Requisite Lenders.
9.2 COMPLIANCE CERTIFICATES. So long as any Advance remains
unpaid, any Letter of Credit remains outstanding, or any other Revolving
Obligation remains unpaid or unperformed, or any portion of the Commitments
remains outstanding, the Borrower shall, unless the Requisite Lenders otherwise
consent, deliver to the Administrative Agent, at the Borrower's sole expense,
concurrently with the financial statements required pursuant to Sections 9.1(a),
and 9.1(b), a Compliance Certificate signed by a Senior Officer of the Borrower
or the Comptroller of the Tribe.
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ARTICLE 10.
CONDITIONS
10.1 CLOSING. The obligation of each Lender to make the initial
Advance to be made by it on the Closing Date, is subject to the following
conditions precedent, each of which shall be satisfied prior to the making of
the initial Advances (unless all of the Lenders, in their sole and absolute
discretion, shall agree otherwise):
(a) The Administrative Agent shall have received all of the
following, each of which shall be originals unless otherwise specified,
each properly executed by each party thereto, each dated as of the Closing
Date and each in form and substance satisfactory to the Administrative
Agent and its legal counsel (unless otherwise specified or, in the case of
the date of any of the following, unless the Administrative Agent
otherwise agrees or directs):
(i) executed counterparts of this Agreement;
(ii) a Revolving Note executed by the Borrower in favor
of each Lender having a Pro Rata Share of the Revolving Commitment,
each in a principal amount equal to that Lender's Pro Rata Share of
the Revolving Commitment;
(iii) a Tax Exempt Note executed by the Borrower in
favor of each Lender having a Pro Rata Share of the Tax Exempt
Commitment, each in a principal amount equal to that Lender's Pro
Rata Share of the Tax Exempt Commitment;
(iv) A letter agreement with the Administrative Agent
setting forth the fees to be payable to the Construction Consultant
in connection with the Golden Moon Project (which fees shall be
mutually acceptable to the Administrative Agent and the Borrower);
(v) the Collateral Agent and Intercreditor Agreement
executed by the Borrower, together with such financing statements
related thereto as the Administrative Agent may specify;
(vi) the Security Agreement executed by the Borrower,
together with such financing statements related thereto as the
Administrative Agent may specify;
(vii) the Deposit Account Agreement executed by the
Borrower, and Trustmark with respect to each of the deposit accounts
described on Schedule 5.26, together with such financing statements
related thereto as the Administrative Agent may specify;
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(viii) the Swing Line Documents;
(ix) Such documentation as the Administrative Agent may
reasonably require to establish the due organization, valid
existence and good standing of the Borrower, the due organization,
valid existence and good standing of the Tribe as a federally
recognized Indian Tribe, the formation, valid existence and good
standing of the Borrower and the Tribe, their authority to execute,
deliver and perform any Loan Documents, and the identity, authority
and capacity of each Senior Officer authorized to act on their
behalf, INCLUDING, without limitation, certified copies of the
Constitution and amendments thereto, resolutions, incumbency
certificates, Certificates of Senior Officers, and the like;
(x) the favorable written legal opinions of internal
counsel to the Borrower, substantially in the form of Exhibit D,
together with copies of all factual certificates and legal opinions
upon which such counsel have relied;
(xi) the favorable written legal opinion of special
counsel to the Borrower, substantially in the forms of Exhibit E
together with copies of all factual certificates and legal opinions
upon which such counsel have relied;
(xii) an advice letter of Xxxxxx & Xxxxxxx LLP, special
Indian law counsel to the Administrative Agent;
(xiii) a Certificate signed by a Senior Officer of the
Borrower and the Tribe certifying that the conditions specified in
Sections 10.1(c), (d) and (e) have been satisfied and attaching a
copy of the Approved Budget;
(xiv) evidence that insurance, of the types and in the
amounts specified in the Loan Documents, is maintained in force by
the Borrower, together with a lenders loss payable endorsement in
favor of the Administrative Agent in a form acceptable to the
Administrative Agent;
(xv) the fee letter referred to in Article 3;
(xvi) a Request for Loan in compliance with Article 2
(or in the appropriate case, a Request for Letter of Credit in
compliance with Article 2);
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(xvii) a Certificate signed by a Senior Officer of the
Borrower and the Tribe attaching true, correct and complete copies
of each of the Material Documents (including, in each case, any
amendments or modifications of the terms thereof entered into as of
the Closing Date);
(xviii) a copy of the Phase I site assessment prepared
for the Golden Moon site; and
(xix) such other assurances, certificates, documents,
consents or opinions as the Administrative Agent reasonably may
require.
(b) The fees payable as of the Closing Date pursuant to
Article 3 shall be paid concurrently.
(c) The representations and warranties contained in Articles
4 and 5 shall be true and correct.
(d) The Borrower and the Tribe shall be in compliance with
all the terms and provisions of the Loan Documents, and no Default or
Event of Default shall have occurred and be continuing.
(e) The 14-day filing period for any referendum petition
relating to the authorization of the Loan Documents under Article XI,
Section 3 of the Constitution and Ordinance 47 of the Tribe shall have
expired, with no such petition having been filed.
(f) the Borrower, the Tribe, Bank of America and the other
Lenders under the Term Loan Agreement shall have concurrently entered into
the Amended and Restated Term Loan Agreement and the related Swap
Amendment to the Paired Swap Agreement.
(g) The Borrower shall have delivered a complete copy of the
Approved Budget and Preliminary Plans to the Administrative Agent and the
Construction Consultant.
10.2 ADVANCES UNDER THE TAX EXEMPT COMMITMENT. The obligation of
each Lender having a Pro Rata Share of the Tax Exempt Commitment to make any
Advance thereunder, is subject to the following conditions precedent (unless the
Requisite Lenders, in their sole and absolute discretion, shall agree
otherwise):
(a) On or prior to the date of the making of the initial Tax
Exempt Loan, a firm of attorneys reasonably acceptable to the
Administrative
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Agent shall have delivered an Opinion of Bond Counsel substantially in
the form of Exhibit I with such changes thereto as the Administrative
Agent may reasonably approve.
(b) On or prior to the date of the making of the initial Tax
Exempt Loan, the officer of the Borrower charged with the responsibility
for issuing such Tax Exempt Loan shall execute and deliver to the
Administrative Agent a Tax Certificate, substantially in the form of
Exhibit J.
(c) On or prior to the date of the making of ANY Tax Exempt
Loan, the officer of the Borrower charged with the responsibility for
incurring such Tax Exempt Loan shall execute and deliver to the
Administrative Agent a certificate regarding the use of the proceeds of
such Tax Exempt Loan, substantially in the form attached to the Tax
Certificate as Exhibit A.
The Borrower hereby irrevocably designates each Tax Exempt Loan as a "qualified
tax-exempt obligation" for purposes of Section 265(b)(3) of the Code relating to
the disallowance of interest expense for financial institutions, and hereby
finds that the reasonably anticipated amount of qualified tax-exempt obligations
(within the meaning of Section 265(b)(3) of the Code) which will be issued by
the Tribe and all subordinate entities thereof during any calendar year will not
exceed $10,000,000.
10.3 ANY INCREASING ADVANCE OR LETTER OF CREDIT. The obligation of
each Lender to make any Advance which results in an increase in the aggregate
outstanding Loans, and the obligation of the Issuing Lender to issue a Letter of
Credit, is subject to the following conditions precedent (unless the Requisite
Lenders, in their sole and absolute discretion, shall agree otherwise):
(a) EXCEPT (i) for representations and warranties which
expressly speak as of a particular date or are no longer true and correct
as a result of a change which is permitted by this Agreement or (ii) as
disclosed by the Borrower and approved in writing by the Requisite
Lenders, the representations and warranties contained in Article 5 (OTHER
THAN Sections 5.8 (first sentence), 5.10, and 5.20) shall be true and
correct on and as of the date of the Advance as though made on that date;
(b) There shall not be then pending or threatened any
action, suit, proceeding or investigation against or affecting the
Borrower or any of its Subsidiaries or any Property of any of them before
any Governmental Agency that constitutes a Material Adverse Effect;
(c) the Administrative Agent shall have timely received a
Request for Loan in compliance with Article 2 (or telephonic or other
request
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for Loan referred to in the second sentence of Section 2.1(c), if
applicable) or the Issuing Lender shall have received a Request for
Letter of Credit, as the case may be, in compliance with Article 2; and
(d) the Administrative Agent shall have received, in form
and substance satisfactory to the Administrative Agent, such other
assurances, certificates, documents or consents related to the foregoing
as the Administrative Agent or Requisite Lenders reasonably may require.
10.4 ANY ADVANCE OR LETTER OF CREDIT OVER $25,000,000. The
obligation of each Lender to make any Advance which results the Outstanding
Obligations being in excess of $25,000,000 for the first time, is subject to the
condition precedent that the Administrative Agent shall have received the
finally acceptable construction plans for the Golden Moon Project pursuant to
7.20, and shall have designated the same as the Approved Plans.
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ARTICLE 11.
EVENTS OF DEFAULT AND REMEDIES UPON EVENT OF DEFAULT
11.1 EVENTS OF DEFAULT. The existence or occurrence of any one or
more of the following events, whatever the reason therefor and under any
circumstances whatsoever, shall constitute an Event of Default:
(a) The Borrower fails to pay any principal on any of the
Loans, or any portion thereof, when due; or
(b) The Borrower fails to pay any interest, fees or other
amounts payable under the Loan Documents, or any portion thereof, within
two Business Days after formal demand therefor; or
(c) Any failure to comply with Section 9.1(k) that is
materially adverse to the interests of the Administrative Agent or the
Lenders; or
(d) The Borrower fails to perform or observe any of the
covenants contained in Article 7; or
(e) The Borrower or any other Party fails to perform or
observe any other covenant or agreement contained in any Loan Document on
its part to be performed or observed within the earliest to occur of (i)
ten Business Days following the date upon which a Senior Officer of the
Borrower becoming aware of the circumstances giving rise to such failure,
or (ii) ten Business Days after the giving of notice by the Administrative
Agent at the request of the Requisite Lenders of such Default; or
(f) Any representation or warranty made in any Loan
Document, or in any certificate delivered pursuant to any Loan Document,
proves to have been incorrect when made or reaffirmed; or
(g) At any time (i) the Borrower fails to pay the principal,
or any principal installment, of any present or future Recourse
Obligations of $10,000,000 or more, or any guaranty of present or future
Recourse Obligations of $10,000,000 or more, on its part to be paid, when
due (or within any stated grace period), whether at the stated maturity,
upon acceleration, by reason of required prepayment or otherwise or (ii)
the Borrower fails to perform or observe any other term, covenant or
agreement on its part to be performed or observed, or suffers any event to
occur, in connection with any present or future indebtedness for borrowed
money of $10,000,000 or more which constitutes Recourse Obligations, or of
any guaranty by the Borrower of present or future indebtedness for
borrowed money of $10,000,000 or more which constitutes
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Recourse Obligations, if as a result of such failure or sufferance any
holder or holders thereof (or an agent or trustee on its or their
behalf) has the right to declare such indebtedness due before the date
on which it otherwise would become due; or
(h) At any time (i) the Borrower or the Tribe fails to pay
the principal, or any principal installment, of any present or future
Excluded Obligations of $10,000,000 or more, or any guaranty of present or
future Excluded Obligations of $10,000,000 or more, on its part to be
paid, when due (or within any stated grace period), whether at the stated
maturity, upon acceleration, by reason of required prepayment or otherwise
or (ii) the Borrower or the Tribe fails to perform or observe any other
term, covenant or agreement on its part to be performed or observed, or
suffers any event to occur, in connection with any present or future
indebtedness for borrowed money of $10,000,000 or more which constitutes
Recourse Obligations, or of any guaranty by the Borrower or the Tribe of
present or future indebtedness for borrowed money of $10,000,000 or more
which constitutes Recourse Obligations, if as a result of such failure or
sufferance any holder or holders thereof (or an agent or trustee on its or
their behalf) has the right to declare such indebtedness due before the
date on which it otherwise would become due; or
(i) Any Loan Document, at any time after its execution and
delivery and for any reason other than the agreement of the Lenders or
satisfaction in full of all the Revolving Obligations, ceases to be in
full force and effect or is declared by the Tribe's tribal court or any
other court of competent jurisdiction to be null and void, invalid or
unenforceable in any respect which, in any such event in the opinion of
the Requisite Lenders, is materially adverse to the interests of the
Lenders; or the Borrower or the Tribe denies that it has any or further
liability or obligation under any Loan Document, or purports to revoke,
terminate or rescind the same or any provision thereof; or
(j) Any event occurs which gives the holder or holders of
any Subordinated Obligation (or an agent or trustee on its or their
behalf) the right to declare such Subordinated Obligations due before the
date on which it otherwise would become due, or the right to require the
issuer thereof to redeem or purchase, or offer to redeem or purchase, all
or any portion of any Subordinated Obligations; or the trustee for, or any
holder of, Subordinated Obligations breaches any subordination provision
applicable to such Subordinated Obligations; or
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(k) A final judgment is entered by a court or other tribunal
of competent jurisdiction that any Subordinated Obligation is not
subordinated in accordance with its terms to the Revolving Obligations; or
(l) A judgment against the Tribe or the Borrower is entered
for the payment of money in excess of $10,000,000 in excess of the amount
of any insurance for which the relevant insurer has accepted liability
and, absent procurement of a stay of execution, such judgment remains
unbonded or unsatisfied for thirty calendar days after the date of entry
of judgment, or in any event later than five days prior to the date of any
proposed sale thereunder; or
(m) The Tribe or the Borrower institutes or consents to any
proceeding under a Debtor Relief Law relating to it or to all or any part
of its Property, or is unable or admits in writing its inability to pay
its debts as they mature, or makes an assignment for the benefit of
creditors; or applies for or consents to the appointment of any receiver,
trustee, custodian, conservator, liquidator, rehabilitator or similar
officer for it or for all or any part of its Property; or any receiver,
trustee, custodian, conservator, liquidator, rehabilitator or similar
officer is appointed without the application or consent of the Tribe or
the Borrower and the appointment continues undischarged or unstayed for
sixty calendar days; or any proceeding under a Debtor Relief Law relating
to the Tribe or the Borrower or to all or any part of its Property is
instituted without its consent and continues undismissed or unstayed for
sixty calendar days; or any judgment, writ, warrant of attachment or
execution or similar process is issued or levied against all or any
material part of the Gaming Assets and is not legally exempt from bond,
released, vacated or fully bonded within sixty calendar days after its
issue or levy; or
(n) The Tribe at any time ceases to be a federally
recognized Indian Tribe; or
(o) The occurrence of a Termination Event with respect to
any Pension Plan if the aggregate liability of the Borrower and its ERISA
Affiliates under ERISA as a result thereof exceeds $5,000,000; or the
complete or partial withdrawal by the Borrower or any of its ERISA
Affiliates from any Multiemployer Plan if the aggregate liability of the
Borrower and its ERISA affiliates as a result thereof exceeds $5,000,000;
or
(p) The occurrence of an Event of Default (as such term is
or may hereafter be specifically defined in any other Loan Document) under
any other Loan Document; or
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(q) The occurrence of any event or circumstance which
results in the failure of any material portion of the Silver Star (or,
following the Completion Date, the Golden Moon) being open to conduct
Class III gaming activities for any reason or which results in the
prohibition of conduct of Class III gaming activities at Silver Star (or,
following the Completion Date, the Golden Moon), in each case for a period
in excess of five consecutive days, PROVIDED THAT no such failure which
arises solely as a result of a Force Majeure Event shall constitute an
Event of Default provided that the business interruption insurance
maintained by Borrower provides (subject to customary applicable
deductibles), complete coverage for Borrower's lost income during the
pendency of such Force Majeure Event;
(r) Any Material Adverse Effect occurs; or
(s) Any Change in Control occurs which has not been approved
in writing by the Requisite Lenders.
11.2 REMEDIES UPON EVENT OF DEFAULT. Without limiting any other
rights or remedies of the Administrative Agent or the Lenders provided for
elsewhere in this Agreement, or the Loan Documents, or by applicable Law, or in
equity, or otherwise:
(a) Upon the occurrence, and during the continuance, of any
Event of Default other than an Event of Default described in Section
11.1(m):
(i) the Commitments to make Advances, the obligation
of the Issuing Lender to issue Letters of Credit, the obligation of
the Swing Line Lender to make Swing Line Loans and all other
obligations of the Creditors and all rights of the Borrower and any
other Parties under the Loan Documents shall be suspended without
notice to or demand upon the Borrower which are expressly waived by
the Borrower, EXCEPT that all of the Lenders or the Requisite
Lenders (as the case may be, in accordance with Section 13.2) may
waive an Event of Default or, without waiving, determine, upon terms
and conditions satisfactory to the Lenders or Requisite Lenders, as
the case may be, to reinstate the Commitments and such other
obligations and rights and make further Advances, and cause the
Issuing Lender to issue further Letters of Credit which waiver or
determination shall apply equally to, and shall be binding upon, all
the Lenders;
(ii) the Issuing Lender may, with the approval of the
Administrative Agent on behalf of the Requisite Lenders, demand
immediate payment by the Borrower of an amount equal to the
aggregate
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amount of all outstanding Letters of Credit to be held by the
Issuing Lender as cash collateral hereunder; and
(iii) the Requisite Lenders may request the
Administrative Agent to, and the Administrative Agent thereupon
shall, terminate the Commitments and declare all or any part of the
unpaid principal of all Loans, all interest accrued and unpaid
thereon and all other amounts payable under the Loan Documents to be
forthwith due and payable, whereupon the same shall become and be
forthwith due and payable, without protest, presentment, notice of
dishonor, demand or further notice of any kind, all of which are
expressly waived by the Borrower.
(b) Upon the occurrence of any Event of Default described in
Section 11.1(m):
(i) the Commitments to make Advances, the obligation
of the Issuing Lender to issue Letters of Credit, the obligation of
the Swing Line Lender to make Swing Line Loans and all other
obligations of the Creditors and all rights of the Borrower and any
other Parties under the Loan Documents shall terminate without
notice to or demand upon the Borrower, which are expressly waived by
the Borrower, EXCEPT that all of the Lenders may waive the Event of
Default or, without waiving, determine, upon terms and conditions
satisfactory to all the Lenders, to reinstate the Commitments and
such other obligations and rights and make further Advances and to
cause the Issuing Lender to issue further Letters of Credit, which
determination shall apply equally to, and shall be binding upon,
all the Lenders;
(ii) an amount equal to the aggregate amount of all
outstanding Letters of Credit shall be immediately due and payable
to the Issuing Lender without notice to or demand upon the Borrower,
which are expressly waived by the Borrower, to be held by the
Issuing Lender in an interest-bearing cash collateral account as
collateral hereunder; and
(iii) the unpaid principal of all Loans, all interest
accrued and unpaid thereon and all other amounts payable under the
Loan Documents shall be forthwith due and payable, without protest,
presentment, notice of dishonor, demand or further notice of any
kind, all of which are expressly waived by the Borrower.
(c) Upon the occurrence and during the continuance of any
Event of Default, the Administrative Agent, without notice or demand upon
the
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Borrower, which are expressly waived by the Borrower, may proceed in
accordance with applicable Laws (but only with the consent of the
Requisite Lenders) to protect, exercise and enforce their rights and
remedies under the Loan Documents against the Borrower and any other
Party and such other rights and remedies as are provided by Law or
equity. Without limitation upon the foregoing, if any Event of Default
occurs before the Golden Moon Completion Date, the Administrative Agent
shall have the right (to the extent not prohibited by applicable Laws)
in the sole discretion of the Requisite Lenders to enter and take
possession of the Golden Moon Project, whether in person, by agent or
by court-appointed receiver, and to take any and all actions which the
Administrative Agent in its sole discretion after consultation with the
Lenders may consider necessary to complete construction of the Golden
Moon Project, including making changes in the Plans, work or materials
and entering into, modifying or terminating any contractual
arrangements, all subject to the Administrative Agent's and the
Lenders' right at any time to discontinue any work without liability.
If the Administrative Agent and the Requisite Lenders choose to
complete the Golden Moon Project, neither the Administrative Agent nor
the Lenders shall assume any liability to the Borrower or any other
Person for completing the Golden Moon Project, or for the manner or
quality of construction of the Golden Moon Project, and the Tribe and
the Borrower each expressly waives any such liability not associated
with the negligence and willful misconduct of the Administrative Agent
or the Lenders. If the Administrative Agent exercises any of the rights
or remedies provided in this paragraph on behalf of the Lenders, that
exercise shall not make the Administrative Agent or the Lenders, or
cause the Administrative Agent or the Lenders to be deemed to be, a
partner or joint venturer of the Borrower or the Tribe. The
Administrative Agent in its sole discretion may choose to complete
construction in its own name. All sums which are expended by the
Administrative Agent and/or the Lenders in completing construction
shall be considered to have been disbursed to the Borrower and shall be
secured by the Collateral; any sums of principal shall be considered to
be additional Loans to the Borrower bearing interest at the Default
Rate, and shall be secured by the Collateral. For these purposes the
Administrative Agent, in its sole discretion, may reallocate any line
item or cost category of the Approved Budget.
(d) The order and manner in which the Lenders' rights and
remedies are to be exercised shall be determined by the Requisite Lenders
in their sole discretion, and all payments received after the occurrence
of any Default or Event of Default by the Administrative Agent and the
Lenders, or any of them, shall be applied first to the costs and expenses
(including attorneys' fees and disbursements payable pursuant to Section
13.3) of the Administrative Agent, acting as Administrative Agent, and of
the Lenders, and
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thereafter paid pro rata to the Lenders in the same proportions that
the aggregate Revolving Obligations owed to each Lender under the Loan
Documents bear to the aggregate Revolving Obligations owed under the
Loan Documents to all the Lenders, without priority or preference among
the Lenders. Regardless of how each Lender may treat payments for the
purpose of its own accounting, for the purpose of computing the
Revolving Obligations hereunder and under the other Loan Documents,
payments shall be applied FIRST, to the costs and expenses of the
Administrative Agent, acting as the Administrative Agent, and the
Lenders, as set forth above, SECOND, to the payment of accrued and
unpaid interest due under any Loan Documents to and including the date
of such application (ratably, and without duplication, according to the
accrued and unpaid interest due under each of the Loan Documents), and
THIRD, to the payment of all other amounts (including principal and
fees) then owing to the Administrative Agent or the Lenders under the
Loan Documents. No application of payments will cure any Event of
Default, or prevent acceleration, or continued acceleration, of amounts
payable under the Loan Documents, or prevent the exercise, or continued
exercise, of rights or remedies of the Lenders hereunder or thereunder
or at law or in equity.
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ARTICLE 12.
THE ADMINISTRATIVE AGENT AND THE COLLATERAL AGENT
12.1 APPOINTMENT AND AUTHORIZATION. Each Lender hereby irrevocably
appoints and authorizes the Administrative Agent to take such action as agent on
its behalf and to exercise such powers under the Loan Documents as are delegated
to the Administrative Agent by the terms thereof or are reasonably incidental,
as determined by the Administrative Agent, thereto. This appointment and
authorization is intended solely for the purpose of facilitating the servicing
of the Loans and does not constitute appointment of the Administrative Agent as
trustee for any Lender or as representative of any Lender for any other purpose
and, EXCEPT as specifically set forth in the Loan Documents to the contrary, the
Administrative Agent shall take such action and exercise such powers only in an
administrative and ministerial capacity. The Administrative Agent is the Agent
of the Lenders only and do not assume any agency relationship with the Borrower
or the Tribe, express or implied.
12.2 BUSINESS ACTIVITIES WITH THE TRIBE AND THE BORROWER. Bank of
America (and any successor Administrative Agent) has the same rights and powers
under the Loan Documents as any other Lender and may exercise the same as though
it was not the Administrative Agent, and the term "Lender" or "Lenders" includes
Bank of America in its individual capacity. Each Lender (including Bank of
America and any successor Administrative Agent) and its Affiliates may accept
deposits from, lend money to and generally engage in any kind of banking, trust
or other business with the Tribe or the Borrower or any of its Affiliates. Bank
of America may engage in these activities in the same manner as the other
Lenders as if it was not the Administrative Agent and without any duty to
account therefor to the Lenders. Bank of America (and any successor
Administrative Agent) need not account to any other Lender for any monies
received by it for reimbursement of its costs and expenses as Administrative
Agent, or for any monies received by it in its capacity as a Lender hereunder.
The Administrative Agent shall not be deemed to hold a fiduciary, trust or other
special relationship with any Lender and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or otherwise exist against the Administrative Agent.
12.3 PROPORTIONATE INTEREST OF THE LENDERS IN ANY COLLATERAL. The
Administrative Agent, on behalf of all the Lenders, shall hold in accordance
with the Loan Documents any such Collateral or interests therein. Subject to the
Creditors' rights to reimbursement for their costs and expenses hereunder
(INCLUDING attorneys' fees and disbursements and other professional services),
each Lender shall have an interest in any Collateral or interests therein in the
same proportions that the aggregate Revolving Obligations owed such Lender under
the Loan Documents bear to the aggregate Revolving Obligations owed under the
Loan Documents to all the Lenders,
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without priority or preference among the Lenders, EXCEPT that Revolving
Obligations owed to any Lender under a Secured Swap Agreement shall be
secured on a PARI PASSU basis with all other Revolving Obligations up to an
amount equal to the Administrative Agent's then customary credit risk factor
for Swap Agreements times the notional amount of Indebtedness covered by such
Secured Swap Agreement and shall be secured on a subordinate basis as to
amounts in excess of such amount.
12.4 LENDERS' CREDIT DECISIONS. Each Lender agrees that it has,
independently and without reliance upon the Administrative Agent, any other
Lender or the directors, officers, agents, employees or attorneys of the
Administrative Agent or of any other Lender, and instead in reliance upon
information supplied to it by or on behalf of the Tribe and the Borrower and
upon such other information as it has deemed appropriate, made its own
independent credit analysis and decision to enter into this Agreement. Each
Lender also agrees that it shall, independently and without reliance upon the
Administrative Agent, any other Lender or the directors, officers, agents,
employees or attorneys of the Administrative Agent or of any other Lender,
continue to make its own independent credit analyses and decisions in acting or
not acting under the Loan Documents.
12.5 ACTION BY ADMINISTRATIVE AGENT.
(a) The Administrative Agent may assume that no Default or
Event of Default has occurred and is continuing, unless the Administrative
Agent has received notice from the Borrower stating the nature of the
Default or Event of Default or has received notice from a Lender stating
the nature of the Default or Event of Default and that such Lender
considers the Default or Event of Default to have occurred and to be
continuing.
(b) The Administrative Agent has only those obligations
under the Loan Documents as are expressly set forth therein.
(c) EXCEPT for any obligation expressly set forth in the
Loan Documents and as long as the Administrative Agent may assume that no
Event of Default has occurred and is continuing, the Administrative Agent
may, but shall not be required to, exercise its discretion to act or not
act, EXCEPT that the Administrative Agent shall be required to act or not
act upon the instructions of the Requisite Lenders (or of all the Lenders,
to the extent required by Section 13.2) and those instructions shall be
binding upon the Administrative Agent and all the Lenders, PROVIDED that
the Administrative Agent shall not be required to act or not act if to do
so would be contrary to any Loan Document or to applicable Laws or would
result, in the judgment of the Administrative Agent, in substantial risk
of liability to the Administrative Agent.
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(d) If the Administrative Agent has received a notice
specified in clause (a), the Administrative Agent shall give notice
thereof to the Lenders and shall act or not act upon the instructions of
the Requisite Lenders (or of all the Lenders, to the extent required by
Section 13.2), PROVIDED that the Administrative Agent shall not be
required to act or not act if to do so would be contrary to any Loan
Document or to applicable Law or would result, in the judgment of the
Administrative Agent, in substantial risk of liability to the
Administrative Agent, and EXCEPT that if the Requisite Lenders (or all the
Lenders, if required under Section 13.2) fail, for five Business Days
after the receipt of notice from the Administrative Agent, to instruct the
Administrative Agent, then the Administrative Agent, in its sole
discretion, may act or not act as it deems advisable for the protection of
the interests of the Lenders, until such time as it receives such a notice
from the Requisite Lenders.
(e) The Administrative Agent shall have no liability to any
Lender for acting as instructed by the Requisite Lenders, or for
refraining from acting, if so instructed by the Requisite Lenders (or, in
each case, all the Lenders, if required under Section 13.2),
notwithstanding any other provision hereof.
12.6 LIABILITY OF ADMINISTRATIVE AGENT. Neither the Administrative
Agent nor any of its directors, officers, agents, employees or attorneys shall
be liable for any action taken or not taken by them under or in connection with
the Loan Documents, EXCEPT for their own gross negligence or willful misconduct.
Without limitation on the foregoing, the Administrative Agent and its directors,
officers, agents, employees and attorneys:
(a) May treat each Lender identified in its records as the
owner of its Pro Rata Share reflected in such records until the
Administrative Agent receives notice of the assignment or transfer
thereof.
(b) May consult with legal counsel (INCLUDING in-house legal
counsel), accountants (INCLUDING in-house accountants) and other
professionals or experts selected by it, or with legal counsel,
accountants or other professionals or experts for the Tribe, the Borrower
or the Lenders, and shall not be liable for any action taken or not taken
by it in good faith in accordance with any advice of such legal counsel,
accountants or other professionals or experts.
(c) Shall not be responsible to any Lender for any
statement, warranty or representation made in any of the Loan Documents or
in any notice, certificate, report, request or other statement (written or
oral) given or made in connection with any of the Loan Documents.
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(d) EXCEPT to the extent expressly set forth in the Loan
Documents, shall have no duty to ask or inquire as to the performance or
observance by the Tribe, the Borrower or any other Party of any of the
terms, conditions or covenants of any of the Loan Documents or to inspect
any Collateral or the Property, books or records of the Tribe or the
Borrower.
(e) Will not be responsible to any Lender for the due
execution, legality, validity, enforceability, genuineness, effectiveness,
sufficiency or value of any Loan Document, any other instrument or writing
furnished pursuant thereto or in connection therewith, or any collateral.
(f) Will not incur any liability by acting or not acting in
reliance upon any Loan Document, notice, consent, certificate, statement,
request or other instrument or writing believed by it to be genuine and
signed or sent by the proper party or parties.
(g) Will not incur any liability for any arithmetical error
in computing any amount paid or payable by the Borrower or any Affiliate
thereof or paid or payable to or received or receivable from any Lender
under any Loan Document, INCLUDING, without limitation, principal,
interest, Advances and other amounts; PROVIDED that, promptly upon
discovery of such an error in computation, the Administrative Agent, the
Lenders and (to the extent applicable) the Borrower or its Affiliates
shall make such adjustments as are necessary to correct such error and to
restore the parties to the position that they would have occupied had the
error not occurred.
12.7 INDEMNIFICATION. Each Lender shall, ratably in accordance with
its combined Pro Rata Shares (if the Commitments are then in effect) or in
accordance with its proportion of the aggregate Indebtedness then evidenced by
the Notes (if the Commitments have then been terminated), indemnify and hold the
Administrative Agent and its directors, officers, agents, employees and
attorneys harmless against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever (INCLUDING reasonable attorneys' fees and
disbursements) that may be imposed on, incurred by or asserted against it or
them in any way relating to or arising out of the Loan Documents (other than
losses incurred by reason of the failure of the Borrower to pay the indebtedness
represented by the Loan Documents) or any action taken or not taken by it as
Administrative Agent thereunder, EXCEPT such as result from its own gross
negligence or willful misconduct. Without limitation on the foregoing, each
Lender shall reimburse the Administrative Agent upon demand for that Lender's
ratable share of any cost or expense incurred by the Administrative Agent in
connection with the negotiation, preparation, execution, delivery, amendment,
waiver, restructuring,
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reorganization (INCLUDING a bankruptcy reorganization), enforcement or
attempted enforcement of the Loan Documents.
12.8 SUCCESSOR ADMINISTRATIVE AGENT. The Administrative Agent may,
and at the request of the Requisite Lenders shall, resign as Administrative
Agent (i) upon 30 days' notice to the Borrower and the Lenders or (ii) if the
Administrative Agent determines that for it to continue as Administrative Agent
would result in a conflict of interest affecting the Administrative Agent, or
would create an unacceptable risk of significant liability of the Administrative
Agent to a third party, or would otherwise be inadvisable under prevailing
standards of banking prudence, at any time, and effective immediately upon
written notice to the Borrower and the Lenders. If the Administrative Agent so
resigns, (a) the Requisite Lenders shall appoint a successor Administrative
Agent, who must be from among the Lenders (and reasonably acceptable to the
Borrower unless an Event of Default exists), PROVIDED that any resigning
Administrative Agent shall be entitled to appoint a successor Administrative
Agent from among the Lenders, subject to acceptance of appointment by that
successor Administrative Agent, if the Requisite Lenders have not appointed a
successor Administrative Agent within 30 days after the date the resigning
Administrative Agent gave notice of resignation; (b) upon a successor's
acceptance of appointment as Administrative Agent, the successor will thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the resigning Administrative Agent or the removed Administrative Agent; and
(c) upon the effectiveness of any resignation, the resigning Administrative
Agent thereupon will be discharged from its duties and obligations thereafter
arising under the Loan Documents other than obligations arising as a result of
any action or inaction of the resigning Administrative Agent prior to the
effectiveness of such resignation.
12.9 PERFORMANCE OF CONDITIONS. For the purpose of determining
fulfillment by the Tribe and the Borrower of conditions precedent specified in
Section 10.1 only, each Lender shall be deemed to have consented to, and
approved or accepted, or to be satisfied with each document or other matter sent
by the Administrative Agent to such Lender for consent, approval, acceptance or
satisfaction, or required under Article 9 to be consented to, or approved by or
acceptable or satisfactory to, that Lender, unless an officer of the
Administrative Agent who is responsible for the transactions contemplated by the
Loan Documents shall have received written notice from that Lender prior to the
making of the requested Loan specifying its objection thereto and either (i)
such objection shall not have been withdrawn by written notice to the
Administrative Agent or (ii) in the case of any condition to the making of a
Loan, that Lender shall not have made available to the Administrative Agent that
Lender's Pro Rata Share of such Loan.
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12.10 THE COLLATERAL AGENT AND INTERCREDITOR AGREEMENT. Each of the
Lenders hereby authorizes the execution, delivery and performance of the
Collateral Agent and Intercreditor Agreement by the Administrative Agent on its
behalf, and appoints the Collateral Agent to serve in its capacity as collateral
agent under the Collateral Documents for the various Secured Creditors referred
to in the Collateral Agent and Intercreditor Agreement. Without limitation upon
the terms of the Collateral Agent and Intercreditor Agreement, the Collateral
Agent shall be entitled to the protections, indemnifications and exculpations
afforded to the Administrative Agent under this Article 12, MUTATIS MUTANDIS.
12.11 NO OBLIGATIONS OF THE TRIBE OR THE BORROWER. Nothing contained
in this Article 12 shall be deemed to impose upon the Tribe or the Borrower any
obligation in respect of the due and punctual performance by the Administrative
Agent of its obligations to the Lenders under any provision of this Agreement,
and neither the Tribe nor the Borrower shall have any liability to the
Administrative Agent or any of the Lenders in respect of any failure by the
Administrative Agent or any Lender to perform any of its obligations to the
Administrative Agent or the Lenders under this Agreement.
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ARTICLE 13.
MISCELLANEOUS
13.1 CUMULATIVE REMEDIES; NO WAIVER. The rights, powers, privileges
and remedies of the Creditors provided herein and in the other Loan Documents
are cumulative and not exclusive of any right, power, privilege or remedy
provided by Law or equity. No failure or delay on the part of any Creditor in
exercising any right, power, privilege or remedy may be, or may be deemed to be,
a waiver thereof; nor may any single or partial exercise of any right, power,
privilege or remedy preclude any other or further exercise of the same or any
other right, power, privilege or remedy. The terms and conditions of Article 10
hereof are inserted for the sole benefit of the Creditors and may be waived in
whole or in part, with or without terms or conditions, in respect of any Loan
without prejudicing the Creditors' right to assert them in whole or in part in
respect of any other Loan.
13.2 AMENDMENTS; CONSENTS. No amendment, modification, supplement,
extension, termination or waiver of any provision of this Agreement or any other
Loan Document, no approval or consent thereunder, and no consent to any
departure by the Borrower or any other Party therefrom, may in any event be
effective unless in writing signed by the Administrative Agent with the approval
in writing of the Requisite Lenders, and then only in the specific instance and
for the specific purpose given; and, without the approval in writing of all the
Lenders, no amendment, modification, supplement, termination, waiver or consent
may be effective:
(a) To (i) amend or modify the principal of, or the amount
of principal, principal repayments on, any Revolving Obligation, (ii)
increase the amount of the Commitments, or (iii) decrease the rate of
interest or any other fee or amount payable to any Lender under the Loan
Documents;
(b) Except as otherwise expressly provided for herein, to
postpone any date fixed for any payment of principal of, prepayment of
principal of or any installment of interest on, any Revolving Obligation
or any installment of any credit fee payable to any Lender, to extend the
Maturity Date or any date upon which any payments of principal are due, or
to release any Collateral for the Revolving Obligations (except as may be
expressly permitted by the Loan Documents);
(c) To amend, modify or waive the provisions of the
definitions of "AVAILABLE CASH FLOW" or "REQUISITE LENDERS" or amend or
modify this Section, Sections 7.5, Article 8, or Sections 13.18, 13.24,
13.26, 13.27 or 13.28;
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(d) To amend or modify any provision of this Agreement in a
manner which materially and adversely affects the Administrative Agent
without its written consent;
(e) To amend or modify any provision of this Agreement that
expressly requires the consent or approval of all the Lenders.
Any amendment, modification, supplement, termination, waiver or consent pursuant
to this Section shall apply equally to, and shall be binding upon, all of the
Creditors.
13.3 COSTS, EXPENSES AND TAXES. The Borrower shall pay on demand
the reasonable costs and expenses of (a) the Administrative Agent and the Lead
Arranger in connection with the negotiation, preparation, closing, execution and
delivery of the Loan Documents, and in the syndication thereof, including
without limitation, the reasonable attorneys' fees and disbursements of
Sheppard, Mullin, Xxxxxxx & Xxxxxxx LLP and Xxxxxx & Whitney, LLP and the
allocated cost of any internal counsel to the Administrative Agent, (b) the
Administrative Agent, in connection with each amendment executed when no Default
or Event of Default exists, and (c) each of the Creditors in connection with
each refinancing, restructuring, reorganization (INCLUDING a bankruptcy
reorganization) and enforcement or attempted enforcement of the Loan Documents,
and any matter related thereto, in each case INCLUDING, filing fees, recording
fees, title insurance fees, appraisal fees, search fees and other out-of-pocket
expenses and the reasonable fees and out-of-pocket expenses of any legal counsel
(including the allocated fees and all disbursements and other expenses of any
internal legal counsel), independent public accountants and other outside
experts retained by the Administrative Agent or any Lender, and including,
without limitation, any costs, expenses or fees incurred or suffered by the
Creditors in connection with or during the course of any bankruptcy or
insolvency proceedings of the Borrower. The Borrower shall also pay within a
reasonable time following request the expenses of the Construction Consultant in
connection with the monitoring services provided by the Construction Consultant
(all as more fully set out in a letter agreement between the Administrative
Agent and the Borrower). The Borrower shall pay any and all documentary and
other taxes (other than income or gross receipts taxes generally applicable to
banks) and all costs, expenses, fees and charges payable or determined to be
payable in connection with the filing or recording of this Agreement, any other
Loan Document or any other instrument or writing to be delivered hereunder or
thereunder, or in connection with any transaction pursuant hereto or thereto,
and shall reimburse, hold harmless and indemnify the Administrative Agent and
the Lenders from and against any and all loss, liability or legal or other
expense with respect to or resulting from any delay in paying or failure to pay
any such tax, cost, expense, fee or charge or that any of them may suffer or
incur by reason of the failure of any Party to perform any of its Revolving
Obligations. Any amount payable to the
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Administrative Agent or any Lender under this Section shall bear interest at
the Default Rate.
13.4 NATURE OF THE LENDERS' OBLIGATIONS. The obligations of the
Lenders hereunder are several and not joint or joint and several. Nothing
contained in this Agreement or any other Loan Document and no action taken by
the Administrative Agent or the Lenders or any of them pursuant hereto or
thereto may, or may be deemed to, make the Lenders a partnership, an
association, a joint venture or other entity, either among themselves or with
the Borrower or any Affiliate of the Borrower. Each Lender's obligation to make
any Advance pursuant hereto is several and not joint or joint and several. A
default by any Lender will not increase the percentage of the Commitments
attributable to any other Lender. Any Lender not in default may, if it desires,
assume in such proportion as the nondefaulting Lenders agree the obligations of
any Lender in default, but is not obligated to do so.
13.5 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties contained herein or in any other Loan Document,
or in any certificate or other writing delivered by or on behalf of any one or
more of the Parties to any Loan Document, will survive the making of the Loans
and the execution and delivery of the Loan Documents, and have been or will be
relied upon by the Administrative Agent and each Lender, notwithstanding any
investigation made by the Administrative Agent or any Lender or on their behalf.
13.6 NOTICES. Except as otherwise expressly provided in the Loan
Documents (a) all notices, requests, demands, directions and other
communications provided for hereunder or under any other Loan Document must be
in writing and must be mailed, telegraphed, telecopied, delivered or sent by
recognized overnight courier service, to the appropriate party at the address
set forth on the signature pages of this Agreement or other applicable Loan
Document or, as to any party to any Loan Document, at any other address as may
be designated by it in a written notice sent to all other parties to such Loan
Document in accordance with this Section; and (b) any notice, request, demand,
direction or other communication given by telecopier, must be confirmed within
48 hours by letter mailed or delivered to the appropriate party at its
respective address. Except as otherwise expressly provided in any Loan Document,
if any notice, request, demand, direction or other communication required or
permitted by any Loan Document is given by mail it will be effective on the
earlier of receipt or the third Business Day after deposit in the United States
mail with first class or airmail postage prepaid; if given by telegraph or
cable, when delivered to the telegraph company with charges prepaid; if given by
telex or telecopier, when sent; or if given by personal delivery, when
delivered. Notices given by the Borrower under Article 2 shall be deemed given
on actual receipt by the Administrative Agent.
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13.7 EXECUTION OF LOAN DOCUMENTS. Unless the Administrative Agent
otherwise specifies with respect to any Loan Document, this Agreement and any
other Loan Document may be executed in any number of counterparts and any party
hereto or thereto may execute any counterpart, each of which when executed and
delivered will be deemed to be an original and all of which counterparts of this
Agreement or any other Loan Document, as the case may be, when taken together
will be deemed to be but one and the same instrument. The execution of this
Agreement or any other Loan Document by any party hereto or thereto will not
become effective until counterparts hereof or thereof, as the case may be, have
been executed by all the parties hereto or thereto.
13.8 BINDING EFFECT; ASSIGNMENT.
(a) This Agreement and the other Loan Documents shall be
binding upon and shall inure to the benefit of the parties hereto and
thereto and their respective successors and assigns, except that the
Borrower and its Affiliates may not assign their rights hereunder or
thereunder or any interest herein or therein without the prior written
consent of all the Lenders. Any assignment by the Borrower or its
Affiliates without the prior written consent of the Lenders shall be void,
provided that no Person other than the Lenders shall have any rights under
this sentence. Each Lender represents that it is not acquiring its Note
with a view to the distribution thereof within the meaning of the
Securities Act of 1933, as amended (subject to any requirement that
disposition of such Notes must be within the control of such Lender). Any
Lender may at any time pledge its Note, if any, or any other instrument
evidencing its rights as a Lender under this Agreement to a Federal
Reserve Bank, but no such pledge shall release that Lender from its
obligations hereunder or grant to such Federal Reserve Bank the rights of
a Lender hereunder absent foreclosure of such pledge.
(b) From time to time following the Closing Date, each
Lender may assign to one or more Eligible Assignees all or any portion of
its Pro Rata Shares of the Commitments (or either of them, without the
requirement that such assignment be a ratable share of each of the
Commitments); provided that (i) such Eligible Assignee, if not then a
Lender or an Affiliate of the assigning Lender, shall be approved by each
of the Administrative Agent and the Borrower (neither of which approvals
shall be unreasonably withheld or delayed) PROVIDED that the consent of
the Borrower shall not be required if any Event of Default exists, (ii)
such assignment shall be evidenced by an Assignment Agreement, a copy of
which shall be furnished to the Administrative Agent, (iii) except in the
case of an assignment to an Affiliate of the assigning Lender or to
another Lender of the entire remaining Commitments
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of the assigning Lender, the assignment shall be of a Pro Rata Share of
either Commitment of not less than $3,000,000, and (iv) the effective
date of any such assignment shall be as specified in the Assignment
Agreement, but not earlier than the date which is five Business Days
after the date the Administrative Agent has received the Assignment
Agreement unless the Administrative Agent otherwise agrees. Upon the
effective date of such Assignment Agreement, the Eligible Assignee
named therein shall be a Lender for all purposes of this Agreement,
with the Pro Rata Shares of the Commitments set forth therein and, to
the extent of such Pro Rata Shares, the assigning Lender shall be
released from its further obligations under this Agreement. The
Borrower agrees that it shall execute and deliver (against delivery by
the assigning Lender to the Borrower of its applicable Notes) to such
assignee Lender, Notes evidencing that assignee Lender's Pro Rata
Shares of the Commitments, and to the assigning Lender, Notes
evidencing the remaining balance Pro Rata Shares of the Commitments
retained by the assigning Lender (in each case, if Notes are requested
by such assignee under Section 2.1).
(c) By executing and delivering an Assignment Agreement, the
Eligible Assignee thereunder acknowledges and agrees that: (i) other than
the representation and warranty that it is the legal and beneficial owner
of the Pro Rata Shares of the Commitments being assigned thereby free and
clear of any adverse claim, the assigning Lender has made no
representation or warranty and assumes no responsibility with respect to
any statements, warranties or representations made in or in connection
with this Agreement or the execution, legality, validity, enforceability,
genuineness or sufficiency of this Agreement or any other Loan Document;
(ii) the assigning Lender has made no representation or warranty and
assumes no responsibility with respect to the financial condition of the
Borrower or the performance by the Borrower of the Revolving Obligations;
(iii) it has received a copy of this Agreement, together with copies of
the most recent financial statements delivered pursuant to Section 9.1 and
such other documents and information as it has deemed appropriate to make
its own credit analysis and decision to enter into such Assignment
Agreement; (iv) it will, independently and without reliance upon the
Administrative Agent or any Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking action under this Agreement;
(v) it appoints and authorizes the Administrative Agent to take such
action and to exercise such powers under this Agreement as are delegated
to the Administrative Agent by this Agreement; and (vi) it will perform in
accordance with their terms all of the obligations which by the terms of
this Agreement are required to be performed by it as a Lender.
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(d) The Administrative Agent shall maintain at the
Administrative Agent's Office a copy of each Assignment Agreement
delivered to it. After receipt of a completed Assignment Agreement
executed by any Lender and an Eligible Assignee, and receipt of an
assignment fee of $3,500 from such Eligible Assignee, Administrative Agent
shall, promptly following the effective date thereof, provide notice
thereof to the Borrower and the Lenders.
(e) Each Lender may grant participations from time to time
in a portion of its Pro Rata Shares of the Commitments (or either of them,
without the requirement that such participation be in a ratable share of
each of the Commitments) to one or more banks or other financial
institutions (including another Lender); 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 financial institutions shall not be a Lender hereunder for any
purpose except, if the participation agreement so provides, for the
purposes of Sections 3.7, 3.8, 13.11 and 13.15, (iv) the Borrower and the
other Creditors shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement, (v) the participation interest shall be expressed as a
percentage of the granting Lender's Pro Rata Share of the relevant
Commitment as it then exists and shall not restrict an increase in the
Commitments, or in the granting Lender's Pro Rata Share, so long as the
amount of the participation interest is not affected thereby, and (vi) the
consent of the holder of such participation interest shall not be required
for amendments or waivers of provisions of the Loan Documents OTHER THAN
those which (A) extend the Maturity Date, or any date upon which any
payment of money is due to the Lenders, (B) reduce the rate of interest
on the Loans, any fee or any other monetary amount payable to the
Lenders, (C) reduce the amount of any installment of principal due with
respect to the Loans, or (D) release any material Collateral, in each
case to the extent that the same directly affect the participant.
(f) Any Lender (a "Granting Lender") may grant to one or
more special purpose funding vehicles (each, an "SPC") of such Granting
Lender, identified as such in writing from time to time by the Granting
Lender to the Administrative Agent and the Borrower, the option to provide
all or any part of any Advance that such Granting Lender would otherwise
be obligated to make pursuant to Article 2, provided that (i) nothing
herein shall constitute a commitment to make any Advance by any SPC, (ii)
if an SPC elects not to exercise such option or otherwise fails to provide
all or any part of such Advance, the Granting Lender shall be obligated to
make such Advance
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pursuant to the terms hereof, and (iii) the rights of any such SPC
shall be derivative of the rights of the Granting Lender. Each SPC
shall be conclusively presumed to have made arrangements with its
Granting Lender for the exercise of voting and other rights hereunder
in a manner which is acceptable to the SPC, and the Administrative
Agent, the other Creditors and each other Party shall be entitled to
rely upon and deal solely with the Granting Lender with respect to
Advances made by or through its SPC. The making of an Advance by an SPC
hereunder shall utilize the Pro Rata Share of the Commitments of the
Granting Lender to the same extent, and as if, such Advance were made
by the 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 related
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 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 or similar proceedings under the
laws of the United States or any State thereof, PROVIDED THAT the
Granting Lender for each SPC hereby agrees to indemnify, save, and hold
harmless each other party hereto for any loss, cost, damage and expense
arising out of their inability to institute any such proceeding against
its SPC. In addition, notwithstanding anything to the contrary
contained in this Section, any SPC may (i) with notice to, but without
the prior written consent of, the Borrower or the Administrative Agent
and without paying any processing fee therefor, assign all or a portion
of its interests in any Advance to its Granting Lender or to any
financial institutions providing liquidity and/or credit facilities to
or for the account of such SPC to fund the Advances made by such SPC or
to support the securities (if any) issued by such SPC to fund such
Loans (but nothing contained herein shall be construed in derogation of
the obligation of the Granting Lender to make Advances hereunder),
PROVIDED THAT neither the consent of the SPC or of any such assignee
shall be required for amendments or waivers of provisions of the Loan
Documents except for those amendments or waivers for which the consent
of participants is required under Section 13.8(e)(vi), 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
a surety, guarantee or credit or liquidity enhancement to such SPC.
13.9 LIEN ON DEPOSITS AND PROPERTY IN POSSESSION OF ANY LENDER. As
security for the prompt payment and performance of all Revolving Obligations,
the Borrower hereby grants to each Creditor, as the representative of all other
Creditors, a security interest in and a right of off-set with respect to, all
its right, title, and interest
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in and to any and all deposit accounts now or hereafter maintained with that
Creditor in and to any and all of its Gaming Assets and the proceeds thereof
now or hereafter in the possession of that Creditor. If an Event of Default
has occurred and is continuing, any Lender (but only with the consent of the
Requisite Lenders) may, to the extent permitted by applicable Laws, exercise
its rights under Article 9 of the Uniform Commercial Code and other
applicable Laws (including its right of off-set) and apply any funds in any
deposit account maintained with it by the Borrower and any Gaming Assets of
the Borrower in its possession against the Revolving Obligations.
13.10 SHARING OF SETOFFS. Each Lender severally agrees that if it,
through the exercise of any right of setoff, banker's lien or counterclaim
against a Party, or otherwise, receives payment of the Revolving Obligations
held by it that is ratably more than any other Lender, through any means,
receives in payment of the Revolving Obligations held by that Lender, then: (a)
the Lender exercising the right of setoff, banker's lien or counterclaim or
otherwise receiving such payment shall notify the Administrative Agent and
thereafter shall purchase, and shall be deemed to have simultaneously purchased,
from the other Lender a participation in the Revolving Obligations held by the
other Lender and shall pay to the other Lender a purchase price in an amount so
that the share of the Revolving Obligations held by each Lender after the
exercise of the right of setoff, banker's lien or counterclaim or receipt of
payment shall be in the same proportion that existed prior to the exercise of
the right of setoff, banker's lien or counterclaim or receipt of payment; and
(b) such other adjustments and purchases of participations shall be made from
time to time as shall be equitable to ensure that all of the Lenders share any
payment obtained in respect of the Revolving Obligations ratably in accordance
with each Lender's share of the Revolving Obligations immediately prior to, and
without taking into account, the payment; PROVIDED that, if all or any portion
of a disproportionate payment obtained as a result of the exercise of the right
of setoff, banker's lien, counterclaim or otherwise is thereafter recovered from
the purchasing Lender by the Borrower or any Person claiming through or
succeeding to the rights of the Borrower, the purchase of a participation shall
be rescinded and the purchase price thereof shall be restored to the extent of
the recovery. Each Lender that purchases a participation in the Revolving
Obligations pursuant to this Section shall from and after the purchase have the
right to give all notices, requests, demands, directions and other
communications under this Agreement with respect to the portion of the Revolving
Obligations purchased to the same extent as though the purchasing Lender were
the original owner of the Revolving Obligations purchased. Each Party expressly
consents to the foregoing arrangements and agrees that any Lender holding a
participation in an Revolving Obligation so purchased may exercise any and all
rights of setoff, banker's lien or counterclaim with respect to the
participation as fully as if the Lender were the original owner of the Revolving
Obligation purchased; PROVIDED, however, that each Lender agrees that it
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shall not exercise any right of setoff, banker's lien or counterclaim with
respect to the Revolving Obligations without first obtaining the consent of
the Requisite Lenders.
13.11 INDEMNITY BY THE BORROWER. The Borrower agrees to indemnify,
save and hold harmless each Creditor and their respective Affiliates, directors,
officers, agents, attorneys and employees (collectively the "INDEMNITEES") from
and against: (a) any and all claims, demands, actions or causes of action that
are asserted against any Indemnitee by any third party, if the claim, demand,
action or cause of action directly or indirectly relates to a claim, demand,
action or cause of action that such Person asserts or may assert against the
Borrower (or, to the extent related to the Loan Documents or the transactions
contemplated thereby, any Affiliate of the Borrower or any officer of the
Borrower); (b) any and all claims, demands, actions or causes of action by a
third party if the claim, demand, action or cause of action arises out of or
relates to the Commitments, the use or contemplated use of proceeds of any Loan,
the relationship of the Borrower and the Lenders under this Agreement or any
transaction contemplated by the Loan Documents; (c) any administrative or
investigative proceeding by any Governmental Agency arising out of or related to
a claim, demand, action or cause of action described in clauses (a) or (b)
above; and (d) any and all liabilities, losses, costs or expenses (INCLUDING
reasonable attorneys' fees and disbursements and other professional services)
that any Indemnitee suffers or incurs as a result of the assertion of any
foregoing claim, demand, action or cause of action; PROVIDED that no Indemnitee
shall be entitled to indemnification for any loss caused by its own negligence
or willful misconduct. If any claim, demand, action or cause of action is
asserted against any Indemnitee, such Indemnitee shall promptly notify the
Borrower, but the failure to so promptly notify the Borrower shall not affect
the Borrower's obligations under this Section unless the Borrower is materially
prejudiced thereby (and then only to the extent prejudiced). Each Indemnitee may
contest the validity, applicability and amount of such claim, demand, action or
cause of action with counsel selected by such Indemnitee. Each Indemnitee is
authorized to employ counsel in enforcing its rights hereunder and in defending
any claim, demand, action or cause of action covered by this Section; PROVIDED
that each Indemnitee shall endeavor in connection with any matter covered by
this Section which also involves other Indemnitees, to use reasonable efforts to
avoid unnecessary duplication of effort by counsel for all Indemnitees. Any
obligation or liability of the Borrower to any Indemnitee under this Section
shall survive the expiration or termination of this Agreement and the repayment
of all Loans and the payment and performance of all other Revolving Obligations
owed to the Lenders; PROVIDED, however, that such obligations or liabilities
shall not, from and after the date on which the Revolving Obligations are fully
paid and the Commitments terminated, be deemed Revolving Obligations for any
purpose under the Loan Documents.
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13.12 NONLIABILITY OF THE LENDERS. Each of the Tribe and the
Borrower acknowledges and agrees that:
(a) Any inspections of any Property of the Borrower made by
or through the Creditors are for purposes of administration of the Loan
Documents only and the Borrower is not entitled to rely upon the same;
(b) By accepting or approving anything required to be
observed, performed, fulfilled or given to the Creditors pursuant to the
Loan Documents, none of the Creditors shall be deemed to have warranted or
represented the sufficiency, legality, effectiveness or legal effect of
the same, or of any term, provision or condition thereof, and such
acceptance or approval thereof shall not constitute a warranty or
representation to anyone with respect thereto by any Creditor;
(c) The relationship between the Borrower and the Creditors
is, and shall at all times remain, solely that of a borrowers and lenders;
no Creditor shall under any circumstance be deemed to be in a relationship
of confidence or trust or a fiduciary relationship with the Tribe or the
Borrower or its Affiliates, or to owe any fiduciary duty to the Tribe or
the Borrower or its Affiliates; no Creditor undertakes or assumes any
responsibility or duty to the Tribe or the Borrower or its Affiliates to
select, review, inspect, supervise, pass judgment upon or inform the
Tribe, the Borrower or its Affiliates of any matter in connection with
their Property or the operations of the Tribe, the Borrower or its
Affiliates; the Tribe, the Borrower and its Affiliates shall rely entirely
upon their own judgment with respect to such matters; and any review,
inspection, supervision, exercise of judgment or supply of information
undertaken or assumed by the Creditors in connection with such matters is
solely for the protection of the Creditors and neither the Tribe, the
Borrower nor any other Person is entitled to rely thereon; and
(d) The Creditors shall not be responsible or liable to any
Person for any loss, damage, liability or claim of any kind relating to
injury or death to Persons or damage to Property or other loss, damage,
liability or claim caused by the actions, inaction or negligence of the
Tribe, the Borrower and its Affiliates and the Borrower hereby indemnifies
and holds the Creditors harmless from any such loss, damage, liability or
claim.
13.13 NO THIRD PARTIES BENEFITTED. This Agreement is made for the
purpose of defining and setting forth certain obligations, rights and duties of
the Borrower, the Tribe and the Creditors in connection with the Loans, and is
made for the sole benefit of the Borrower, the Tribe, the Creditors, and the
Creditors' successors
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and assigns. EXCEPT as provided in Sections 3.7, 3.8, 13.8, 13.11, 13.15 and
13.28 no other Person shall have any rights of any nature hereunder or by
reason hereof.
13.14 CONFIDENTIALITY. Each Creditor agrees to hold any confidential
information that it may receive from the Tribe or the Borrower pursuant to this
Agreement in confidence, EXCEPT for disclosure (a) to its Affiliates and to
other Lenders, their officers, directors, employees and agents (but, in the case
of agents, only subject to an appropriate confidentiality agreement); (b) to
legal counsel, accountants and other professional advisors to the Tribe or the
Borrower or any Lender; (c) to regulatory officials having jurisdiction over
that Lender; (d) as required by Law or legal process or in connection with any
legal proceeding to which that Creditor, the Tribe and the Borrower are adverse
parties; (e) to another financial institution in connection with a disposition
or proposed disposition to that financial institution of all or part of that
Lender's interests hereunder or a participation interest in its Pro Rata Share
(or to any SPC of that Lender in accordance with the last sentence of Section
13.8); or (f) if an Event of Default has occurred and is continuing, to the
extent that any Creditor determines such disclosure to be necessary or
appropriate in the enforcement or for the protection of the rights and remedies
under the Loan Documents. For purposes of the foregoing, "confidential
information" shall mean all information respecting the Tribe or the Borrower
delivered to the Lenders marked "Confidential" or in another conspicuous manner
which denotes its confidentiality, OTHER THAN (i) information previously filed
with any Governmental Agency and available to the public, (ii) information
previously published in any public medium from a source other than, directly or
indirectly, that Lender, and (iii) information previously disclosed by the Tribe
or the Borrower to any Person not associated with the Tribe or the Borrower
without a written confidentiality agreement. Nothing in this Section shall be
construed to create or give rise to any fiduciary duty on the part of any
Creditor to the Tribe or the Borrower.
13.15 HAZARDOUS MATERIALS INDEMNITY. The Borrower hereby agrees to
indemnify, hold harmless and defend (by counsel reasonably satisfactory to the
Administrative Agent) each of the Creditors and their respective directors,
officers, employees, agents, successors and assigns from and against any and all
claims, losses, damages, liabilities, fines, penalties, charges, administrative
and judicial proceedings and orders, judgments, remedial action requirements,
enforcement actions of any kind, and all costs and expenses incurred in
connection therewith (including but not limited to reasonable attorneys' fees
and expenses), arising directly or indirectly, in whole or in part, out of (i)
the presence on or under the Real Property of any Hazardous Materials, or any
releases or discharges of any Hazardous Materials on, under or from the Real
Property and (ii) any activity carried on or undertaken on or off the Real
Property by the Borrower or any of its predecessors in title (including the
Tribe), whether prior to or during the term of this Agreement, and whether by
the Borrower or
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any predecessor in title or any employees, agents, contractors or
subcontractors of the Borrower or any predecessor in title, or any third
persons at any time occupying or present on the Real Property, in connection
with the handling, treatment, removal, storage, decontamination, clean-up,
transport or disposal of any Hazardous Materials at any time located or
present on or under the Real Property. The foregoing indemnity shall further
apply to any residual contamination on or under the Real Property, or
affecting any natural resources, and to any contamination of any property or
natural resources arising in connection with the generation, use, handling,
storage, transport or disposal of any such Hazardous Materials, and
irrespective of whether any of such activities were or will be undertaken in
accordance with applicable Laws, but the foregoing indemnity shall not apply
to Hazardous Materials on the Real Property, the presence of which is caused
by that Creditor.
13.16 FURTHER ASSURANCES. The Tribe or the Borrower shall, at their
sole expense and without expense to the Creditors, do, execute and deliver such
further acts and documents as any Lender or the Administrative Agent from time
to time reasonably requires for the assuring and confirming unto the Creditors
of the rights hereby created or intended now or hereafter so to be, or for
carrying out the intention or facilitating the performance of the terms of any
Loan Document.
13.17 INTEGRATION. This Agreement, together with the other Loan
Documents, comprises the complete and integrated agreement of the parties on the
subject matter hereof and supersedes all prior agreements, written or oral, on
the subject matter hereof. In the event of any conflict between the provisions
of this Agreement and those of any other Loan Document, the provisions of this
Agreement shall control and govern; PROVIDED that the inclusion of supplemental
rights or remedies in favor of the Creditors in any other Loan Document shall
not be deemed a conflict with this Agreement. Each Loan Document was drafted
with the joint participation of the respective parties thereto and shall be
construed neither against nor in favor of any party, but rather in accordance
with the fair meaning thereof.
13.18 GOVERNING LAW. EXCEPT to the extent otherwise expressly
provided therein, each Loan Document shall, by this express agreement of the
parties, be governed by, and construed and enforced in accordance with, the Laws
of Mississippi, without regard to the conflicts of law provisions of the Laws of
Mississippi. The Borrower and each other party hereto each hereby consents to
the application of Mississippi civil law to the construction, interpretation and
enforcement of this Agreement and the other Loan Documents, and to the
application of Mississippi civil law to the procedural aspects of any suit,
action or proceeding relating thereto, including but not limited to legal
process, execution of judgments and other legal remedies, except for any
procedural matters governed by or relating to the conduct of arbitration under
Section 13.24.
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13.19 SEVERABILITY OF PROVISIONS. Any provision in any Loan Document
that is held to be inoperative, unenforceable or invalid as to any party or in
any jurisdiction shall, as to that party or jurisdiction, be inoperative,
unenforceable or invalid without affecting the remaining provisions or the
operation, enforceability or validity of that provision as to any other party or
in any other jurisdiction, and to this end the provisions of all Loan Documents
are declared to be severable.
13.20 INDEPENDENT COVENANTS. Each covenant in Articles 6, 7 and 8 is
independent of the other covenants in those Articles; the breach of any such
covenant shall not be excused by the fact that the circumstances underlying such
breach would be permitted by another such covenant.
13.21 HEADINGS. Article and Section headings in this Agreement and
the other Loan Documents are included for convenience of reference only and are
not part of this Agreement or the other Loan Documents for any other purpose.
13.22 TIME OF THE ESSENCE. Time is of the essence of the Loan
Documents.
13.23 TAX WITHHOLDING EXEMPTION CERTIFICATES. On or before the
Closing Date, each Lender which is organized outside the United States of
America shall deliver to the Borrower a properly completed and duly executed
Internal Revenue Service Form 4224 or Form 1001 and any other certificate or
statement required by applicable Laws to establish that payments due to such
Lender under the Loan Documents are (a) not subject to withholding under the
Code because such payments are effectively connected with the conduct of a trade
or business in the United States of America or (b) totally exempt from United
States tax under the provisions of an applicable tax treaty.
13.24 ARBITRATION REFERENCE.
(a) MANDATORY ARBITRATION. At the option of the
Administrative Agent (exercised in accordance with consent of the
Requisite Lenders), the Borrower, or (to the extent it is a party to any
such controversy or claim), the Tribe, any controversy or claim between or
among the parties arising out of or relating to this Agreement or any
agreements or instruments relating hereto or delivered in connection
herewith (including without limitation the Paired Swap Agreement) and any
claim based on or arising from an alleged tort, shall be determined by
arbitration. The arbitration shall be conducted in accordance with the
procedural rules of the (but not the provisions contemplating federal
district court adjudication of disputes under) United States Arbitration
Act (Title 9, U.S. Code) and the regulations promulgated thereunder,
notwithstanding any choice of law provision in this Agreement, and
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under the Commercial Rules of the American Arbitration Association
("AAA"). If, after the invocation of arbitration by either party to
this Agreement, any action for legal or equitable relief or other
proceeding is brought by the other party, the judge who is presiding
over the pending action or proceeding shall not review the merits of
the pending action or proceeding, but shall stay the action or
proceeding until an arbitration has been had in compliance with this
Section 13.24. Either party to this Agreement claiming the neglect or
refusal of the other party to proceed with an arbitration hereunder may
make application to the Regular Civil Division of the Mississippi
Choctaw Tribal Court for an order directing the parties to proceed with
the arbitration in compliance with this Section 13.24. In such event,
the Tribal Court shall order the parties to arbitration in accordance
with the provisions of this Section 13.24 and the question of whether
an obligation to arbitrate the dispute at issue exists shall be decided
by the arbitrator(s). The arbitrator(s) shall give effect to statutes
of limitation in determining any claim. At any time within one year
after an arbitration award has been rendered and the parties thereto
notified thereof, any party to the arbitration may make application to
the Regular Civil Division of the Mississippi Choctaw Tribal Court for
an order confirming the award. An arbitration award shall not be
subject to review or modification by the Tribal Court for any reason
other than those specified in Sections 11-15-23 or 11-15-25,
Mississippi Code Annotated 1972, but shall be confirmed strictly as
provided by the arbitrator(s). The judgment confirming an award shall
have the same force and effect in all respects as, and be subject to
all the provisions of law relating to, a judgment in a civil action,
and it may be enforced as if it has been rendered in a civil action in
the Tribal Court. When the award requires the performance of any other
act than the payment of money, the Tribal Court shall direct the
enforcement thereof in the manner provided by law. The institution and
maintenance of an action for judicial relief or pursuit of a
provisional or ancillary remedy shall not constitute a waiver of the
right of any party, including the plaintiff, to submit the controversy
or claim to arbitration if any other party contests such action for
judicial relief.
(b) PROVISIONAL REMEDIES,. No provision of this section
shall limit the right of any party to this Agreement to exercise or obtain
provisional or ancillary remedies from a court of competent jurisdiction
before, after, or during the pendency of any arbitration or other
proceeding. The exercise of a remedy does not waive the right of either
party to resort to arbitration or reference.
(c) LIMITATION. This Section shall not be construed to
require arbitration by the Creditors of any disputes which now exist or
hereafter arise
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amongst themselves which do not involve the Tribe or the Borrower and
are not related to this Agreement and the Loan Documents.
(d) SPECIFIC ENFORCEMENT REPRESENTATION. Each party to this
Agreement severally represents and warrants to the other parties that this
Section 13.24 is specifically enforceable against such party by the other
parties.
13.25 PURPORTED ORAL AMENDMENTS. THE TRIBE, THE BORROWER AND THE
CREDITORS EXPRESSLY ACKNOWLEDGE THAT THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
MAY ONLY BE AMENDED OR MODIFIED, OR THE PROVISIONS HEREOF OR THEREOF WAIVED OR
SUPPLEMENTED, BY AN INSTRUMENT IN WRITING THAT COMPLIES WITH SECTION 13.2. EACH
OF THE TRIBE AND THE BORROWER AGREES THAT IT WILL NOT RELY ON ANY COURSE OF
DEALING, COURSE OF PERFORMANCE, OR ORAL OR WRITTEN STATEMENTS BY ANY
REPRESENTATIVE OF ANY CREDITOR THAT DOES NOT COMPLY WITH SECTION 13.2 TO EFFECT
AN AMENDMENT, MODIFICATION, WAIVER OR SUPPLEMENT TO THIS AGREEMENT OR THE OTHER
LOAN DOCUMENTS.
13.26 WAIVER OF RIGHT TO TRIAL BY JURY. EACH PARTY TO THIS AGREEMENT
HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION
OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH
OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTY HERETO OR ANY OF THEM WITH
RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH CASE
WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR
TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT
A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR
A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE
SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
13.27 WAIVER OF SOVEREIGN IMMUNITY; CONSENT TO JURISDICTION.
(a) THE TRIBE, TO THE LIMITED EXTENT SET FORTH HEREIN, AND
THE BORROWER, EACH HEREBY EXPRESSLY AND IRREVOCABLY WAIVES ITS SOVEREIGN
IMMUNITY (AND ANY DEFENSE BASED THEREON) FROM ANY SUIT, ACTION OR
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PROCEEDING OR FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OF NOTICE,
ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION, EXECUTION,
EXERCISE OF CONTEMPT POWERS, OR OTHERWISE) EITHER THROUGH ARBITRATION (AS
PROVIDED HEREIN) OR IN THE REGULAR CIVIL DIVISION OF THE MISSISSIPPI
CHOCTAW TRIBAL COURT, WITH RESPECT TO THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS AND THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY. WITHOUT
LIMITATION ON THE FOREGOING PROVISIONS OF THIS PARAGRAPH (a), THE TRIBE
AND THE BORROWER AGREE THAT THE REGULAR CIVIL DIVISION OF THE MISSISSIPPI
CHOCTAW TRIBAL COURT SHALL, AFTER THE INVOCATION OF ARBITRATION BY EITHER
PARTY TO THIS AGREEMENT PURSUANT TO SECTION 13.24, NOT BE ENTITLED TO
REVIEW THE MERITS OF THE PENDING ACTION OR PROCEEDING, BUT SHALL STAY THE
ACTION OR PROCEEDING UNTIL AN ARBITRATION HAS BEEN HAD IN COMPLIANCE WITH
SECTION 13.24 AND SHALL, UPON APPLICATION BY EITHER PARTY, ORDER THE
PARTIES TO ARBITRATE IN ACCORDANCE WITH SECTION 13.24 AND THE QUESTION OF
WHETHER AN OBLIGATION TO ARBITRATE THE DISPUTE AT ISSUE EXISTS SHALL BE
DECIDED BY THE ARBITRATOR(S). NO ARBITRATION AWARD SHALL BE SUBJECT TO
REVIEW OR MODIFICATION BY THE TRIBAL COURT FOR ANY REASON OTHER THAN THOSE
SPECIFIED IN SECTIONS 11-15-23 or 11-15-25, MISSISSIPPI CODE ANNOTATED
1972, BUT SHALL BE CONFIRMED STRICTLY AS PROVIDED BY THE ARBITRATOR(S).
(b) THE WAIVERS AND CONSENTS DESCRIBED IN THIS SECTION SHALL
INURE TO THE BENEFIT OF THE CREDITORS AND EACH OTHER PERSON WHO IS
ENTITLED TO THE BENEFITS OF THE LOAN DOCUMENTS (INCLUDING WITHOUT
LIMITATION THE INDEMNIFIED PERSONS REFERRED TO IN SECTION 13.11). SUBJECT
TO SECTIONS 13.24 AND 13.28 THE CREDITORS AND SUCH OTHER PERSONS SHALL
HAVE AND BE ENTITLED TO ALL AVAILABLE LEGAL AND EQUITABLE REMEDIES,
INCLUDING THE RIGHT TO SPECIFIC PERFORMANCE, MONEY DAMAGES AND INJUNCTIVE
OR DECLARATORY RELIEF. THE WAIVERS OF SOVEREIGN IMMUNITY AND CONSENTS TO
JURISDICTION CONTAINED IN THIS SECTION ARE IRREVOCABLE.
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13.28 LENDER COVENANT.
(a) Notwithstanding the waiver of sovereign immunity
contained in Section 13.27, in any action or proceeding to enforce the
Loan Documents against the Borrower or, to the limited extent set forth
herein, against the Tribe, the Creditors agree that they shall have no
recourse to the Excluded Property, PROVIDED that recourse may be had
against the Tribe and the Excluded Property (to the extent set forth in
this Section) to the extent that the Tribe fails to faithfully and fully
comply with each of the covenants set forth in Article 8 hereof (it being
expressly understood that in the event of any Event of Default arising
from the breach of any of the covenants set forth in Article 8, the Tribe
shall have the opportunity to cure the relevant Events of Default for
thirty days following the delivery of written notice of the breach thereof
to the Tribe) before any recourse of any kind may be had against the
Tribe.
(b) In any action or proceeding to enforce the Loan
Documents, the Creditors agree that they shall, to the extent then
permitted by applicable Law, take all reasonably available and
commercially practicable steps to enforce any claim for damages awarded to
the Creditors by any court, tribunal, arbitrator or other decision maker
first against the Gaming Assets, prior to taking general recourse to the
Business Enterprise Division of the Tribe, and in no event against
Excluded Property owned by the Government Services Division of the Tribe.
(c) The provisions of this Section shall not be construed
(i) to create any recourse on the part of the Creditors against any
Excluded Property owned by the Government Services Division or against any
other Property of the Government Services Division which is not the
traceable proceeds of a prohibited Distribution, EXCEPT as set forth in
clause (a), or (ii) to require exhaustion by the Creditors of any remedies
against the Gaming Assets prior to having recourse, in the proper case,
against the Tribe, as set forth in clause (b).
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the date first above written.
"Borrower":
THE MISSISSIPPI BAND OF CHOCTAW INDIANS D/B/A CHOCTAW
RESORT DEVELOPMENT ENTERPRISE
By: /s/ XXXXXXX XXXXXX
----------------------------------
Xxxxxxx Xxxxxx, Chairman of the Board
By: /s/ XXXXXXXX XXX
----------------------------------
Xxxxxxxx Xxx, Secretary Treasurer
Address for Notices: With a copy to:
_________________ Comptroller
Tribal Office Complex Tribal Office Complex
P.O. Box ____ P.O. Box 6090
Philadelphia, MS 39350 Xxxxxxxxxxxx, XX 00000
Telephone (601) ________ Telephone (000) 000-0000
Telecopier (601) ________ Telecopier (000) 000-0000
Attorney General
Tribal Xxxxxx Xxxxxxx
Xxxx Xxxxxx Xxx 0000
Xxxxxxxxxxxx, XX 00000
Telephone (000) 000-0000
Telecopier (000) 000 0000
S 1
"Tribe":
THE MISSISSIPPI BAND OF CHOCTAW INDIANS
By: /s/ XXXXXXX XXXXXX
---------------------------------------------
Xxxxxxx Xxxxxx, Chief
By: /s/ XXXXXXXX XXX
---------------------------------------------
Xxxxxxxx Xxx, Secretary Treasurer
Address for Notices: With a copy to:
Tribal Chief Comptroller
Tribal Office Complex Tribal Office Complex
X.X. Xxx 0000 X.X. Xxx 0000
Xxxxxxxxxxxx, XX 00000 Xxxxxxxxxxxx, XX 00000
Telephone (000) 000-0000 Telephone (000) 000-0000
Telecopier (000) 000-0000 Telecopier (000) 000-0000
Attorney General
Tribal Xxxxxx Xxxxxxx
Xxxx Xxxxxx Xxx 0000
Xxxxxxxxxxxx, XX 00000
Telephone (000) 000-0000
Telecopier (000) 000 0000
S 2
"BANK OF AMERICA , N.A., as Administrative Agent":
By: /s/ XXXXXX XXXXXXX
---------------------------
Xxxxxx Xxxxxxx, Vice President
Address for Notices:
Bank of America , N.A.
Credit Products-LA 3283
Entertainment and Media Group
000 Xxxxx Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx Xxxxxxx, Vice President
Telephone: (000) 000 0000
Telecopier: (000) 000 0000
with a copy to:
Bank of America , N.A.
Credit Products-LA 3283
Entertainment and Media Group
000 Xxxxx Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxx, Managing Director
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
BANK OF AMERICA , N.A., as Issuing
Lender and a Lender
By: /s/ XXXXXXX X. XXXXXXX
-------------------------------
Xxxxxxx X. Xxxxxxx, Vice President
Address for Notices:
Bank of America , N.A.
Credit Products-LA 3283
Entertainment and Media Group
000 Xxxxx Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxx, Vice President
Telephone: (000) 000 0000
Telecopier: (000) 000 0000
S 3
BANK ONE, NA
By: /s/ XXXXXXX X. XXXXXX
-------------------------------------
Title:
-----------------------------------
Address for Notices:
Bank One, NA
Attention: Xxxxxxx X. Xxxxxx, Vice President
000 X. Xxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
S 4
THE CIT GROUP/EQUIPMENT FINANCING, INC.
By: /s/ F.R. XXXXXX
--------------------------------------
Title:
------------------------------------
Address for Notices:
The CIT Group/Equipment Financing, Inc.
Attention: F. R. Xxxxxx, Vice President
000 Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
S 5
HIBERNIA NATIONAL BANK
By: /s/ XXXXXXXXXXX X. XXXXXX
-----------------------------------
Title:
---------------------------------
Address for Notices:
Hibernia National Bank
Attention: Xxxxxxxxxxx X. Xxxxxx, Vice President
000 Xxxxxx Xxxxxx, Xxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
S 6
TRUSTMARK NATIONAL BANK
By: /s/ XXXXX X. XXXXXXX
---------------------------------------
Title: Vice President
-------------------------------------
Address for Notices:
Trustmark National Bank
Attention: Xxxxx X. Xxxxxxx, Vice President
000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
S 7
UNION PLANTERS BANK, N.A.
By: /s/ XXX X. XXXXXX
----------------------------------------
Title: Senior Vice President
--------------------------------------
Address for Notices:
Union Planters Bank, N.A.
Attention: Xxx X. Xxxxxx, Senior Vice President
0000 X-00 Xxxxx
Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
S 8
XXXXX FARGO BANK, N.A.
By: /s/ XXXX XXXXX
-----------------------------------------
Title:
---------------------------------------
Address for Notices:
Xxxxx Fargo Bank, N.A.
Attention: Xxxx Xxxxx, Vice President
0000 Xxxxxx Xxxxxx Xxxxxxx, 0xx Xxxxx
Xxx Xxxxx, XX 00000
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
S 9
EXHIBIT A
ASSIGNMENT AGREEMENT
THIS ASSIGNMENT AGREEMENT (this "Assignment") is entered into as of
_____________, ____ between __________________________________ ("Assignor") and
_____________________________________________________ ("Assignee") with
reference to that certain Loan Agreement dated as of _________________, 2000
between The Mississippi Band of Choctaw Indians d/b/a Choctaw Resort Development
Enterprise (the "Borrower"), an unincorporated business enterprise of The
Mississippi Band of Choctaw Indians, a federally recognized Indian Tribe and
Native American sovereign nation (the "Tribe"), the Tribe, the Lenders party
thereto, and Bank of America , N.A. ("Bank of America"), as Administrative Agent
for the Lenders (as amended from time to time, the "Loan Agreement").
Capitalized terms used but not defined herein are used with the meanings set
forth for those terms in the Loan Agreement.
RECITALS
A. Assignor holds Pro Rata Shares of the Commitments to make
Loans (the "Commitments") under the Loan Agreement.
B. As of the date hereof, the outstanding principal balance of
the Advances made by Assignor (the "Assignor Advances") is set forth on Annex I
hereto.
C. Assignor desires to assign its rights under the Loan Agreement
and the other Loan Documents with respect to a portion of the Commitments and a
portion of any Assignor Advances to Assignee and Assignee has agreed to assume
the obligations of Assignor under the Loan Documents to the extent of the rights
so assigned.
NOW, THEREFORE, in consideration of the matters recited above, and
the mutual covenants and agreements contained herein, the parties hereto hereby
agree as follows:
SECTION 1. ASSIGNMENT AND ASSUMPTION.
(a) Assignor hereby assigns to Assignee, without recourse,
representation or warranty, an undivided fractional interest in Assignor's
rights arising under the Loan Documents relating to the [Revolving
Commitment][Tax Exempt Commitment][Commitments], and any Assignor Advances to
the extent of the Assigned Pro Rata Share reflected on Annex I hereto (the
"Assigned Pro Rata Share") including, without limitation, (i) all amounts
advanced and to be advanced or participated in by Assignor pursuant to the
[Revolving Commitment][Tax Exempt
-1-
Commitment][Commitments]; (ii) all of Assignor's rights and powers contained
in the Loan Documents; (iii) all claims of Assignor against persons who may
in the future become or are now liable for repayment of any Assignor Advances
or reimbursement of expenses incurred by Assignor on account of any Assignor
Advances; and (iv) all amounts received by Assignor on account of any
Assignor Advances, whether from the Borrower or from others who are now or
may in the future become obligated with respect to some or all of the amounts
owing on any Assignor Advances or from any other source, including, without
limitation, recovery from litigation.
(b) Assignee hereby assumes from Assignor, and Assignor is hereby
expressly and absolutely released from, the Assigned Pro Rata Share of all of
Assignor's obligations arising under the Loan Documents relating to the
[Revolving Commitment][Tax Exempt Commitment][Commitments] including, without
limitation, all obligations with respect to any Assignor Advances. Assignee
agrees that it shall fully perform all of the obligations of Assignor with
respect to the interests assigned by this Assignment.
(c) Assignor and Assignee hereby agree that Annex I attached
hereto sets forth (i) the amount of all Assignor Advances giving effect to the
assignment and assumption described herein, (ii) the amount of the [Revolving
Commitment][Tax Exempt Commitment][Commitments] and the Pro Rata Share(s) of
Assignee after giving effect to the assignment and assumption described herein,
and (iii) accrued but unpaid interest thereon.
(d) Assignor and Assignee hereby agree that, upon giving effect to
the assignment and assumption described herein, Assignee shall have all of the
obligations under the Loan Documents of, and shall be deemed to have made all of
the covenants and agreements contained in the Loan Documents made by, a Lender
having [a Pro Rata Share of the [Revolving Commitment][Tax Exempt
Commitment][Pro Rata Shares of the Commitments] as reflected on Annex I attached
hereto. Assignee hereby acknowledges and agrees that the agreement set forth in
this subsection 1(d) is expressly made for the benefit of the Borrower, the
Administrative Agent, Assignor and the other Lenders and their respective
successors and permitted assigns. From and after the date of this Assignment,
(i) Assignee shall be a party to the Loan Agreement and, to the extent provided
in this Assignment, shall have the rights and obligations of a Lender under the
Loan Agreement and the other Loan Documents and (ii) Assignor shall, to the
extent provided in this Assignment, relinquish its rights and be released from
its obligations under the Loan Agreement and the other Loan Documents.
(e) Assignor and Assignee hereby acknowledge and confirm their
understanding and intent (i) that this Assignment shall effect the assignment by
Assignor and the assumption by Assignee of the Assigned Pro Rata Share of
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Assignor's rights and obligations under the Loan Documents and (ii) that any
other assignments by Assignor of a portion of its rights and obligations under
the Loan Documents shall have no effect on the [Revolving Commitment][Tax Exempt
Commitment][Commitments] and Pro Rata Share(s) of Assignee set forth on Annex I
attached hereto.
(f) Assignee agrees to pay to Assignor, on ________, an amount
equal to $____________, in immediately available funds, representing the
purchase price of the Assigned Pro Rata Share. Assignor and Assignee shall make
all appropriate adjustments for periods prior to the date of this Assignment or
with respect to the making of this Assignment directly between themselves.
(g) Nothing contained in this Assignment shall be construed to
amend or modify the terms of the Loan Documents other than to effectuate the
assignment contemplated herein.
SECTION 2. REPRESENTATIONS AND WARRANTIES.
(a) Assignee represents and warrants that it is an Eligible
Assignee.
(b) Assignee represents and warrants that it has become a party
hereto solely in reliance upon its own independent investigation of the
financial and other circumstances surrounding the Borrower, any Assignor
Advances and all aspects of the transactions evidenced by or referenced in the
Loan Documents, or has otherwise satisfied itself thereto, and that it is not
relying upon any representation, warranty or statement (except any such
representation, warranty or statement expressly set forth in this Assignment) of
Assignor in connection with the assignment made hereby. Assignee further
acknowledges that Assignee will, independently and without reliance upon
Assignor and based upon Assignee's review of such documents and information as
Assignee deems appropriate at the time, continue to make its own credit
decisions in connection with the assignment made hereby. Assignor shall have no
duty or responsibility either initially or on a continuing basis to make any
such investigation or any such appraisal on behalf of Assignee or to provide
Assignee with any credit or other information with respect thereto, whether
coming into its possession before the making of the initial extension of credit
under the Loan Agreement or at any time thereafter.
(c) Assignee represents and warrants to Assignor that it has
experience and expertise in the making of loans such as the Advances assigned
hereby and with respect to the other types of credit which may be extended
under the Loan Agreement; that it has acquired its Assigned Pro Rata Share
for its own account and not with any present intention of selling all or any
portion of such interest; and that it has received, reviewed and approved
copies of all Loan Documents.
-3-
(d) Assignor and Assignee represent to one another and to the
Administrative Agent that they have duly authorized, executed and delivered this
Assignment, that they are legally entitled to enter into the assignment and
assumption transactions contemplated herein and that, in the case of Assignor,
that it is the legal and beneficial owner of the Assigned Pro Rata Share, free
of any Liens or adverse claims.
(e) Assignor shall not be responsible to Assignee for the
execution, effectiveness, accuracy, completeness, legal effect, genuineness,
validity, enforceability, collectibility or sufficiency of any of the Loan
Documents (other than its own due execution of the Loan Documents) or for any
representations, warranties, recitals or statements made therein or in any
written or oral statement or in any financial or other statements, instruments,
reports, certificates or any other documents made or furnished or made available
by Assignor to Assignee (other than written representations, warranties,
recitals or statements made by Assignor therein) or by or on behalf of the
Borrower to Assignor or Assignee in connection with the Loan Documents and the
transactions contemplated thereby or for the financial condition or business
affairs of the Borrower or any other Person liable for the payment of any
Advance or payment of amounts owed in connection with other extensions of credit
under the Loan Agreement or any other matter. Assignor shall not be required to
ascertain or inquire as to the performance or observance of any of the terms,
conditions, provisions, covenants or agreements contained in any of the Loan
Documents or as to the use of the proceeds of the Advances or other extensions
of credit under the Loan Agreement or as to the existence or possible existence
of any Default or Event of Default.
(f) Each party to this Assignment represents and warrants to the
other party to this Assignment that it has full power and authority to enter
into this Assignment and to perform its obligations under this Assignment in
accordance with the provisions of this Assignment, that this Assignment has been
duly authorized, executed and delivered by such party and that this Assignment
constitutes a legal, valid and binding obligation of such party, enforceable in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, moratorium or other similar laws affecting creditors' rights
generally and by general equitable principles.
SECTION 3. NOTICES.
Any notice or other communication required or permitted to be given
hereunder shall be in writing addressed to the parties at their addresses set
forth below and shall be delivered in the manner set forth for notices in the
Loan Agreement:
(a) Notices to Assignor:
-4-
----------------------------
----------------------------
----------------------------
a) Notices to Assignee:
----------------------------
----------------------------
----------------------------
SECTION 4. MISCELLANEOUS PROVISIONS.
(a) Neither this Assignment nor any term hereof may be changed,
waived, discharged or terminated, except by an instrument in writing signed by
the party against whom enforcement of such change, waiver, discharge or
termination is sought.
(b) Title and headings of sections in this Assignment are for
convenience of reference only and shall not be used to define or limit the
provisions hereof.
(c) This Assignment and the transactions contemplated hereunder
shall be governed by and construed and enforced in accordance with the laws of
the State of Mississippi.
(d) This Assignment embodies the entire agreement between Assignor
and Assignee with respect to the Loan Documents and supersedes all prior
agreements between Assignor and Assignee with respect to the Loan Documents.
(e) This Assignment may be executed in one or more counterparts,
each of which shall constitute an original, but all of which together shall
constitute but one Assignment. The signature pages of all counterparts of this
Assignment may be detached and attached to a single counterpart of this
Assignment so that all signature pages are physically attached to the same
document.
(f) All of the terms, covenants and conditions herein contained
shall inure to the benefit of and be binding upon the parties hereto, and their
respective successors and assigns.
(g) Every provision of this Assignment is intended to be
severable. If any term or provision thereof is declared by a court of competent
jurisdiction to be illegal, invalid or unenforceable for any reason whatsoever,
such illegality, invalidity or unenforceability shall not affect the balance of
the terms and provisions hereof,
-5-
which terms and provisions shall remain binding and enforceable, and to the
extent possible all of the other provisions shall nonetheless remain in full
force and effect.
SECTION 5. THE ADMINISTRATIVE AGENT.
Assignor and Assignee have examined this Assignment and have
exercised independent credit judgment in determining to enter into this
Assignment. Each of Assignor and Assignee have obtained the advice of their
counsel with respect to this document or waive the opportunity to do so. The
Administrative Agent bears no responsibility for the form, legality or
sufficiency of this Assignment.
-6-
IN WITNESS WHEREOF, the parties hereto have executed this Assignment
as of the date first above written.
"ASSIGNOR"
-----------------------------------------
By:
--------------------------------------
Name:
-----------------------------
Title:
-----------------------------
"ASSIGNEE"
----------------------------------------
By:
--------------------------------------
Name:
-----------------------------
Title:
-----------------------------
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ANNEX I
I ASSIGNOR'S PRO RATA SHARE OF THE [REVOLVING COMMITMENT][TAX EXEMPT
COMMITMENT] BEFORE ASSIGNMENT
[Revolving Commitment/
Tax Exempt Commitment] $_____________________
Pro Rata Share _____________%
Outstanding Principal $_____________________
Accrued and unpaid Interest $_____________________
II ASSIGNOR'S REMAINING PRO RATA SHARE OF THE [REVOLVING COMMITMENT][TAX
EXEMPT COMMITMENT] AFTER ASSIGNMENT
[Revolving Commitment/
Tax Exempt Commitment] $_____________________
Pro Rata Share _____________%
III ASSIGNEE'S PRO RATA SHARE OF THE [REVOLVING COMMITMENT/TAX EXEMPT
COMMITMENT] AFTER ASSIGNMENT
[Revolving Commitment/
Tax Exempt Commitment] $_____________________
Pro Rata Share ______________%
-1-
ACKNOWLEDGMENT AND CONSENT
OF THE ADMINISTRATIVE AGENT
Bank of America , N.A., as Administrative Agent, hereby (i)
acknowledges and consents to the assignment to and assumption by Assignee of
Assignor's rights and obligations with respect to a portion of the [Revolving
Commitment][Tax Exempt Commitment][Commitments] effected pursuant to the
foregoing Assignment and (ii) agrees that, for all purposes of the Loan
Documents, Assignee shall be deemed to be a Lender having a Pro Rata Share of
the [Revolving Commitment][Tax Exempt Commitment][Commitments] as reflected on
Annex I attached to the Assignment.
BANK OF AMERICA , N.A., as
Administrative Agent
By
------------------------------
Name:
---------------------------
Title:
--------------------------
ACKNOWLEDGMENT AND CONSENT
OF THE BORROWER
The Borrower hereby (i) acknowledges and consents to the
assignment to and assumption by Assignee of Assignor's rights and obligations
with respect to a portion of the [Revolving Commitment][Tax Exempt
Commitment][Commitments] effected pursuant to the foregoing Assignment and (ii)
agrees that, for all purposes of the Loan Documents, Assignee shall be deemed to
be a Lender having a Pro Rata Share of the [Revolving Commitment][Tax Exempt
Commitment][Commitments] as reflected on Annex I attached to the Assignment.
"Borrower":
THE MISSISSIPPI BAND OF CHOCTAW
INDIANS D/B/A CHOCTAW RESORT
DEVELOPMENT ENTERPRISE
By
-----------------------------------
Title:
--------------------------------
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EXHIBIT B
COMPLIANCE CERTIFICATE
To: BANK OF AMERICA, N.A., AS ADMINISTRATIVE AGENT
This Compliance Certificate is delivered with reference to the
Loan Agreement (the "Revolving Loan Agreement") and the Amended and Restated
Term Loan Agreement (the "Term Loan Agreement"), each dated as of December 19,
2000 by and among The Mississippi Band of Choctaw Indians d/b/a Choctaw Resort
Development Enterprise (the "Borrower"), The Mississippi Band of Choctaw
Indians, a federally recognized Indian Tribe and Native American sovereign
nation (the "Tribe"), the Lenders which are parties thereto, and Bank of
America, N.A., as Administrative Agent (as amended, extended, renewed,
supplemented or otherwise modified from time to time, the "Loan Agreements").
Terms defined in the Loan Agreements and not otherwise defined in this
Compliance Certificate ("Certificate") shall have the meanings defined for them
in the Loan Agreements. Section references herein relate to the Loan Agreements
unless stated otherwise. In the event of any conflict between the calculations
set forth in this Certificate, and the manner of calculation required by the
Loan Agreements, the terms of the Loan Agreements shall govern and control.
This Certificate is delivered in accordance with Section 9.2
of the Loan Agreements by a Senior Officer of the Borrower or the Tribe's
Comptroller. This Certificate is delivered with respect to the Fiscal Quarter
(the "Test Fiscal Quarter") ended ______________, _____ (the "Test Date").
Computations indicating compliance with respect to the covenants contained in
Sections 7.9, 7.12, 7.13 and 7.14 of the Loan Agreements and Section 7.19(b)(i)
of the Term Loan Agreement/ Section 7.21(b)(i) of the Revolving Loan Agreement
and the Out of Balance computation are set forth below:
I. SECTION 7.9 - RECOURSE INDEBTEDNESS AND CONTINGENT OBLIGATIONS.
A. The Borrower has not waived its sovereign immunity with
respect to any Indebtedness or Contingent Obligation in a manner which would
create recourse to the Gaming Assets or any revenues thereof, or has otherwise
created, incurred, assumed or suffered to exist any Indebtedness or Contingent
Obligation which constitutes a Recourse Obligation, except as permitted under
subsections (a) through (g), inclusive, of Section 7.9 of the Loan Agreements
and as specified in (B), (C) and (D) below.
-1-
B. As of the Test Date, the aggregate principal amount of
Indebtedness and Contingent Obligations incurred by the Borrower prior to the
Golden Moon Completion Date consisting of the Proposed Senior Financing, and
refinancings thereof which do not result in an increase in the aggregate
outstanding principal amount thereof was
MAXIMUM PERMITTED: $150,000,000
C. As of the Test Date, the aggregate principal amount of
purchase money Indebtedness and Capital Lease Obligations incurred by the
Borrower was $_____________________.
MAXIMUM PERMITTED: $10,000,000
D. As of the Test Date, the aggregate principal amount of
Recourse Obligations incurred by the Borrower to finance design, development and
construction at the Borrower's proposed employee training facility and
administrative offices was $_____________________.
MAXIMUM PERMITTED: $5,000,000
II. SECTION 7.12 - TOTAL LEVERAGE RATIO. As of the Test Date, the Total
Leverage Ratio was ________: 1.00.
MAXIMUM PERMITTED: 2.50:1.00 (if the Test Date occurred
on or before the last day of the first full
Fiscal Quarter following the Golden Moon
Completion Date)
2.25:1.00 (if the Test Date occurred as of
the last day of the next two immediately
succeeding Fiscal Quarters)
2.00:1.00 (if the Test Date occurred as of
the last day of any subsequent Fiscal
Quarter)
THE TOTAL LEVERAGE RATIO WAS COMPUTED AS FOLLOWS:
(a) Total Recourse Debt as of the Test Date $_______
DIVIDED BY (b) Annualized Gaming EBITDA for
the four Fiscal Quarter period ending on the
Test Date (the "Test Period") $_______
EQUALS TOTAL LEVERAGE RATIO [(a) DIVIDED BY (b)] ____: 1.00
-2-
ANNUALIZED GAMING EBITDA FOR THE TEST PERIOD - COMPONENT CALCULATIONS
Annualized Gaming EBITDA for the Test Period was calculated as follows,
in each case to the extent deducted in arriving at Net Income, and in each case
as determined in accordance with Generally Accepted Accounting Principles,
PROVIDED THAT if the Test Date occurred as of the last day of any of the first
three full Fiscal Quarters following the Golden Moon Completion Date, Annualized
Gaming EBITDA shall equal the following calculation for each such Fiscal Quarter
which has occurred since the Golden Moon Completion Date, annualized on a
straight line basis:
(a) Net Income of the Borrower from Existing Casino Operations for the Test
Period $_______
PLUS (b) Interest Charges of the Borrower with respect to Recourse Obligations
to the extent deducted in arriving at such Net Income for the Test Period $_______
PLUS (c) (without duplication) the aggregate amount, if any, of federal and
state taxes on or measured by income of the Borrower for the Test Period
(whether or not payable during the Test Period) to the extent deducted in
arriving at Net Income $_______
PLUS (d) depreciation and amortization of the Borrower attributable to Existing
Casino Operations and the Gaming Assets for the Test Period to the extent
deducted in arriving at Net Income $_______
PLUS (e) management fee payments (if any) paid to Xxxx Gaming during the Test
Period $_______
PLUS (f) Pre-Opening Expenses for the Test Period to the extent deducted in
arriving at Net Income $_______
EQUALS ANNUALIZED GAMING EBITDA FOR THE TEST PERIOD [(a)+(b)+(c)+(d)+(e)+(f)] $_______
III. SECTION 7.13 - FIXED CHARGE COVERAGE RATIO. As of the Test Date, the
Fixed Charge Coverage Ratio was ________: 1.00.
-3-
Minimum Required: 1.05:1.00
(PROVIDED that as of the last day of any Fiscal Quarter as of
which (a) Annualized Gaming EBITDA for the Test Period is not
less than $140,000,000 and (b) the Borrower's cash balances as
of such date are in excess of $25,000,000, the required Fixed
Charge Coverage Ratio shall be 1.00:1.00). $_______
THE FIXED CHARGE COVERAGE RATIO WAS COMPUTED AS FOLLOWS:
(a) Annualized Gaming EBITDA for the Test Period $_______
DIVIDED BY (b) the SUM of:
(i) Interest Charges with respect to Recourse Obligations to the extent
payable in cash during the Test Period PROVIDED that to the extent that
any portion of that period of calculation occurs prior to February 1,
2001, that portion of Interest Charges which relate to the Term
Obligations and the Paired Swap Agreement shall be annualized on a
straight line basis for the period since February 1, 2000 $_______
PLUS (ii) the amount of principal repayments with respect to the
Revolving Obligations and the Term Obligations required to be made
during the Test Period in cash, PROVIDED that to the extent that any
portion of that period of calculation occurs prior to February 1, 2001,
the amount so payable with respect to the Term Obligations shall be
deemed to be $18,750,000 $_______
PLUS (iii) other payments of principal with respect to Recourse
Obligations (other than the Excluded Obligations) required to be made
during the Test Period in cash $_______
PLUS (iv) taxes (if any) required to be paid with respect to the income
or revenues of the Existing Casino Operations during the Test Period $_______
PLUS (v) Maintenance Capital Expenditures for the Test Period $_______
-4-
PLUS (vi) Distributions made during the Test Period by the Existing
Casino Operations to the general fund of the Tribe in accordance with
Section 7.5 of the Loan Agreement $_______
EQUALS (b) [(i)+(ii)+(iii)+(iv)+(v)+(vi)] $_______
equals Fixed Charge Coverage Ratio [(a) DIVIDED BY (b)] ____: 1.00
IV. SECTION 7.14 - CAPITAL EXPENDITURES.
A. The Borrower has not made, or become legally
obligated to make, any Capital Expenditure except as specified in (B) through
(E) below.
B. As of the Test Date, the aggregate amount of
Maintenance Capital Expenditures made during the current Fiscal Year with
respect to the Silver Star was $___________.
MAXIMUM PERMITTED: $10,000,000
C. As of the Test Date, the aggregate amount of
expansion Capital Expenditures at the Silver Star during the term of the Loan
Agreements (or following its completion, the Golden Moon) was $___________.
MAXIMUM PERMITTED: $25,000,000
D. As of the Test Date, the aggregate amount of Capital
Expenditures to construct the Golden Moon Project made pursuant to the Approved
Budget was $___________.
MAXIMUM PERMITTED: $325,000,000 (including
capitalized interest and
Pre-Opening Expenses)
E. As of the Test Date, the aggregate amount of
Maintenance Capital Expenditures during the current Fiscal Year with respect to
the Golden Moon following the Golden Moon Completion Date was $______________.
MAXIMUM PERMITTED: $10,000,000
F. As of the Test Date, the aggregate amount of other
Capital Expenditures made following the Golden Moon Completion Date, aggregated
with Investments made pursuant to Section 7.3(d) of the Loan Agreements was
$_______________.
-5-
MAXIMUM PERMITTED: Post Completion Basket Amount
V. SECTION 7.19(b)(i) OF THE TERM LOAN AGREEMENT/SECTION 7.21(b)(i) OF THE
REVOLVING LOAN AGREEMENT - PROJECT DISBURSEMENT ACCOUNT.
A. As of the Test Date, the cumulative amount of cash
from Silver Star revenues deposited by the Borrower into the Project
Disbursement Account pursuant to Section 7.19(b)(i) of the Term Loan Agreement
and Section 7.21(b)(i) of the Revolving Loan Agreement was $_______________.
THE MINIMUM AMOUNT TO BE DEPOSITED INTO THE PROJECT DISBURSEMENT
ACCOUNT PURSUANT TO SECTION 7.19(b)(i) OF THE TERM LOAN AGREEMENT AND
SECTION 7.21(b)(i) OF THE REVOLVING LOAN AGREEMENT IS COMPUTED AS
FOLLOWS:
(Compute only if the Test Date occurred after February 28, 2001)
(a) $22,000,000 MINUS the amount of all costs provided for in the Approved
Budget paid out of funds of the Silver Star prior to the Closing Date $_______
MULTIPLIED BY
b) THE QUOTIENT OF
(i) the integral number of months which have occurred since
February 1, 2001 $_______
DIVIDED BY (ii) 18 18
EQUALS (b) [(i) DIVIDED BY (ii)] ________
EQUALS THE MINIMUM CUMULATIVE AMOUNT OF CASH FROM SILVER STAR REVENUES
TO BE DEPOSITED INTO THE PROJECT DISBURSEMENT ACCOUNT PURSUANT TO
SECTION 7.19(b)(i) OF THE TERM LOAN AGREEMENT AND 7.21(b)(i) OF THE
REVOLVING LOAN AGREEMENT [(a)X(b)] $_______
VI. OUT-OF-BALANCE COMPUTATION.
A. As of the Test Date, the amount by which the Golden
Moon Project was Out-of-Balance was $________________.
-6-
OUT-OF-BALANCE WAS COMPUTED AS FOLLOWS:
(a) THE GREATER OF: $_______
(i) the unexpended amount of the Approved Budget $_______
OR (ii) the amount required to complete the Golden Moon Project
(as determined by the Administrative Agent following
consultation with the Construction Consultant) $_______
MINUS (b) THE SUM (WITHOUT DUPLICATION) OF: $_______
(i) the then available amount of the "Loans" under the Revolving
Loan Agreement $_______
PLUS (ii) the then unexpended and available amount of any committed
portion of the Proposed Senior Financing $_______
PLUS (iii) the amount contained in the Project Disbursement Account $_______
PLUS (iv) the Remaining Equity Contribution Amount (provided that
Borrower is in compliance with Section 7.19 of the
Term Loan Agreement and Section 7.21 of the Revolving
Loan Agreement) $_______
EQUALS (b) [(i)+(ii)+(iii)+(iv)] $_______
EQUALS OUT-OF-BALANCE [(a)-(b)] $_______
VII. A review of the activities of the Borrower during the fiscal period covered
by this Certificate has been made under the supervision of the undersigned with
a view to determining whether during such fiscal period the Borrower performed
and observed all of its Obligations. To the best knowledge of the undersigned,
during the fiscal period covered by this Certificate, all covenants and
conditions have been so performed and observed and no Default or Event of
Default has occurred and is continuing, with the exceptions set forth below in
response to which the Borrower has
-7-
taken (or caused to be taken) or proposes to take (or cause to be taken) the
following actions (if none, so state).
--------------------------------------------------------------------------------
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VIII. The undersigned Senior Officer or Comptroller of the Tribe certifies that
the calculations made and the information contained herein are derived from the
books and records of the Borrower and that each and every matter contained
herein correctly reflects those books and records.
Dated: _______________, ______
THE MISSISSIPPI BAND OF CHOCTAW INDIANS
D/B/A CHOCTAW RESORT DEVELOPMENT ENTERPRISE
By:
---------------------------------------
---------------------------------------
Printed Name and Title
-8-
EXHIBIT E
REQUEST FOR LETTER OF CREDIT
1. This REQUEST FOR LETTER OF CREDIT is executed and delivered by
The Mississippi Band of Choctaw Indians d/b/a Choctaw Resort Development
Enterprise (the "Borrower"), to Bank of America, N.A., as Administrative Agent
and Issuing Lender, pursuant to that certain Loan Agreement (as amended,
extended, renewed, supplemented or otherwise modified from time to time, the
"Loan Agreement") dated as of December 19, 2000, among the Borrower, The
Mississippi Band of Choctaw Indians, a federally recognized Indian Tribe and
Native American sovereign nation, the Lenders referred to therein and the
Administrative Agent. Any terms used herein and not defined herein shall have
the meanings set forth for such terms in the Loan Agreement.
2. Borrower hereby requests that the Issuing Lender issue a
Letter of Credit pursuant to the Loan Agreement as follows:
(a) Amount of Requested Letter of Credit: $__________
(b) Date of Requested Issuance: ________________
(c) Beneficiary: __________________________
(d) Terms: Attached
(e) Giving effect to the requested Loan, the
aggregate Loans outstanding under the Commitment will be
$__________________.
3. In connection with the request, Borrower certifies that:
(a) EXCEPT (i) for representations and warranties
which expressly speak as of a particular date or are no longer true and
correct as a result of a change which is permitted by the Loan
Agreement or (ii) as disclosed by Borrower and approved in writing by
the Requisite Lenders, the representations and warranties contained in
Article 5 (OTHER THAN Sections 5.8 (first sentence), 5.10 and 5.20) are
true and correct on and as of the date hereof as though made on that
date;
(b) there is not any pending or threatened action,
suit, proceeding or investigation against or affecting the Borrower or
any of its Subsidiaries or any Property of any of them before any
Governmental Agency that constitutes a Material Adverse Effect;
-1-
(c) giving effect to the requested Letter of Credit,
the Outstanding Obligations do not exceed the aggregate applicable
Commitments;
(d) giving effect to the requested Letter of Credit,
the Outstanding Obligations owed to each Lender under the Revolving
Commitment do not exceed that Lender's Pro Rata Share of the Revolving
Commitment;
(e) giving effect to the requested Letter of Credit,
the Aggregate Effective Amount under all outstanding Letters of Credit
does not exceed $10,000,000; and
(f) giving effect to the requested Letter of Credit,
the sum of (i) the aggregate principal amount of all LIBOR Loans having
Interest Periods ending after any Reduction Date, plus (ii) the
Aggregate Effective Amount of all Letters of Credit having expiration
dates after that Reduction Date do not exceed the Revolving Commitment
(after giving effect to any required Reductions thereof on that
Reduction Date).
4. This Request for Letter of Credit is executed on
________________, by a Responsible Official of Borrower. The undersigned, in
such capacity, hereby certifies each and every matter contained herein to be
true and correct.
THE MISSISSIPPI BAND OF CHOCTAW INDIANS
D/B/A CHOCTAW RESORT DEVELOPMENT ENTERPRISE
By:
---------------------------------
Title
---------------------------------
-2-
EXHIBIT F
REQUEST FOR LOAN
1. This REQUEST FOR LOAN is executed and delivered by The
Mississippi Band of Choctaw Indians d/b/a Choctaw Resort Development Enterprise
(the "Borrower"), to Bank of America, N.A., as Administrative Agent (the
"Administrative Agent"), pursuant to that certain Loan Agreement (as amended,
extended, renewed, supplemented or otherwise modified from time to time, the
"Loan Agreement") dated as of December 19, 2000, among the Borrower, The
Mississippi Band of Choctaw Indians, a federally recognized Indian Tribe and
Native American sovereign nation, the Lenders referred to therein and the
Administrative Agent. Any terms used herein and not defined herein shall have
the meanings set forth for such terms in the Loan Agreement.
2. Borrower hereby requests that the Lenders make a Loan pursuant
to the Loan Agreement as follows:
(a) Amount of Requested Loan: $_____________(1)
(b) Date of Requested Loan: _________________
(c) Type of Requested Loan (check one box only)
[] Base Rate
[] Eurodollar Rate for a Eurodollar Period of ________
Months(2)
[] Tax Exempt for a Tax Exempt Period of 3 months
(d) Giving effect to the requested Loan, the
aggregate Loans outstanding under the Commitment will be
$__________________.
3. In connection with the request, Borrower certifies that:
----------
(1) Unless the Requisite Lenders otherwise consent, each Loan shall not be
less than $5,000,000 and in an integral multiple of $1,000,000.
(2) Specify whether 1, 2, 3 or 6-month Eurodolar Period.
-1-
(a) EXCEPT (i) for representations and warranties
which expressly speak as of a particular date or are no longer true and
correct as a result of a change which is permitted by the Loan
Agreement or (ii) as disclosed by Borrower and approved in writing by
the Requisite Lenders, the representations and warranties contained in
Article 5 (OTHER THAN Sections 5.8 (first sentence), 5.10 and 5.20) are
true and correct on and as of the date hereof as though made on that
date; and
(b) there is not any pending or threatened action,
suit, proceeding or investigation against or affecting the Borrower or
any of its Subsidiaries or any Property of any of them before any
Governmental Agency that constitutes a Material Adverse Effect.
4. This Request for Loan is executed on ________________, by a
Responsible Official of Borrower. The undersigned, in such capacity, hereby
certifies each and every matter contained herein to be true and correct.
THE MISSISSIPPI BAND OF CHOCTAW INDIANS
D/B/A CHOCTAW RESORT DEVELOPMENT ENTERPRISE
By:
---------------------------------
Title:
------------------------------
-2-
EXHIBIT G
REVOLVING NOTE
$___,000,000 _____________, 2000
Philadelphia, Mississippi
FOR VALUE RECEIVED, the undersigned promises to pay to the
order of ________________ (the "Lender"), the principal amount of
_______________ MILLION DOLLARS ($___,000,000), payable as hereinafter set
forth. The undersigned promises to pay interest on the principal amount hereof
remaining unpaid from time to time from the date hereon until the date of
payment in full, payable as hereinafter set forth.
Reference is made to the Loan Agreement of even date herewith
among the undersigned, as Borrower, The Mississippi Band of Choctaw Indians, a
federally recognized Indian Tribe and Native American sovereign nation, as an
obligor with respect to certain representations, warranties and covenants, the
Lenders party thereto and Bank of America , N.A., as Administrative Agent for
the Lenders (as the same may be amended, renewed, extended or otherwise modified
from time to time, the "Loan Agreement"). Terms defined in the Loan Agreement
and not otherwise defined herein are used herein with the meanings given those
terms in the Loan Agreement. This is one of the Revolving Notes referred to in
the Loan Agreement, and the Lender and any subsequent rightful holder hereof
(collectively "Holder") is entitled to all of the rights, remedies, benefits and
privileges provided for in the Loan Agreement as originally executed or as it
may from time to time be supplemented, modified or amended. The Loan Agreement,
among other things, contains provisions for acceleration of the maturity hereof
upon the happening of certain stated events upon the terms and conditions
therein specified.
The principal indebtedness evidenced by this Revolving Note
shall be payable as provided in the Loan Agreement and in any event on the
Maturity Date.
Interest shall be payable on the outstanding daily unpaid
principal amount of each Advance hereunder from the date thereof until payment
in full and shall accrue and be payable at the rates and on the dates set forth
in the Loan Agreement, both before and after default and before and after
maturity and judgment, with interest on overdue principal and interest to bear
interest at the rate set forth in Section 3.9 of the Loan Agreement, to the
fullest extent permitted by applicable Law.
The amount of each payment hereunder shall be made to the
Administrative Agent at the Administrative Agent's Office for the account of the
Lender in immediately available funds not later than 11:00 a.m. (California
local time)
-1-
on the day of payment (which must be a Business Day). All payments received
after 11:00 a.m. (California local time) on any particular Business Day shall
be deemed received on the next succeeding Business Day. All payments shall be
made in lawful money of the United States of America.
The Lender shall use its best efforts to keep a record (which
may be in electronic or other intangible form) of Advances made by it and
payments of principal received by it with respect to this Revolving Note, and
such record shall be presumptive evidence of the amounts owing under this
Revolving Note.
The undersigned hereby promises to pay all costs and expenses
of any rightful holder hereof incurred in collecting the undersigned's
obligations hereunder or in enforcing or attempting to enforce any of such
holder's rights hereunder, including reasonable attorneys' fees and
disbursements (including allocated costs of legal counsel employed by the
Administrative Agent or the holder), whether or not an action is filed in
connection therewith.
The undersigned hereby waives presentment, demand for payment,
dishonor, notice of dishonor, protest, notice of protest and any other notice or
formality, to the fullest extent permitted by applicable Laws.
THE UNDERSIGNED HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY
JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER THIS
REVOLVING NOTE OR ANY OTHER LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH OR
RELATED OR INCIDENTAL TO THE DEALINGS OF THE UNDERSIGNED AND THE LENDER WITH
RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH CASE
WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR
TORT OR OTHERWISE; AND THE UNDERSIGNED HEREBY AGREES AND CONSENTS THAT ANY SUCH
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT
A JURY, AND THAT LENDER OR ANY HOLDER OF THIS REVOLVING NOTE MAY FILE AN
ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN
EVIDENCE OF THE UNDERSIGNED TO THE WAIVER OF ITS RIGHT TO TRIAL BY JURY.
THE UNDERSIGNED HEREBY EXPRESSLY AND IRREVOCABLY WAIVES ITS
SOVEREIGN IMMUNITY (AND ANY DEFENSE BASED THEREON) FROM ANY SUIT, ACTION OR
PROCEEDING OR FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OF NOTICE,
ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION, EXECUTION,
EXERCISE OF CONTEMPT POWERS, OR
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OTHERWISE) EITHER THROUGH ARBITRATION (AS PROVIDED HEREIN) OR IN THE REGULAR
CIVIL DIVISION OF THE MISSISSIPPI CHOCTAW TRIBAL COURT, WITH RESPECT TO THIS
REVOLVING NOTE AND THE TRANSACTIONS CONTEMPLATED HEREBY. WITHOUT LIMITATION
ON THE FOREGOING PROVISIONS OF THIS PARAGRAPH, THE UNDERSIGNED AGREES THAT
THE REGULAR CIVIL DIVISION OF THE MISSISSIPPI CHOCTAW TRIBAL COURT SHALL,
AFTER THE INVOCATION OF ARBITRATION BY THE UNDERSIGNED OR ANY HOLDER OF THIS
REVOLVING NOTE PURSUANT TO SECTION 13.24 OF THE LOAN AGREEMENT, NOT BE
ENTITLED TO REVIEW THE MERITS OF THE PENDING ACTION OR PROCEEDING, BUT SHALL
STAY THE ACTION OR PROCEEDING UNTIL AN ARBITRATION HAS BEEN HAD IN COMPLIANCE
WITH SECTION 13.24 OF THE LOAN AGREEMENT AND SHALL, UPON APPLICATION BY THE
UNDERSIGNED OR ANY HOLDER OF THIS REVOLVING NOTE, ORDER THE PARTIES TO
ARBITRATE IN ACCORDANCE WITH SECTION 13.24 OF THE LOAN AGREEMENT AND THE
QUESTION OF WHETHER AN OBLIGATION TO ARBITRATE THE DISPUTE AT ISSUE EXISTS
SHALL BE DECIDED BY THE ARBITRATOR(S). NO ARBITRATION AWARD SHALL BE SUBJECT
TO REVIEW OR MODIFICATION BY THE TRIBAL COURT FOR ANY REASON OTHER THAN THOSE
SPECIFIED IN SECTIONS 11-15-23 or 11-15-25, MISSISSIPPI CODE ANNOTATED 1972,
BUT SHALL BE CONFIRMED STRICTLY AS PROVIDED BY THE ARBITRATOR(S).
THE WAIVERS AND CONSENTS DESCRIBED IN THIS REVOLVING NOTE
SHALL INURE TO THE BENEFIT OF EACH HOLDER OF THIS REVOLVING NOTE. SUBJECT TO
SECTIONS 13.24 AND 13.28 OF THE LOAN AGREEMENT, THE HOLDER SHALL HAVE AND BE
ENTITLED TO ALL AVAILABLE LEGAL AND EQUITABLE REMEDIES, INCLUDING THE RIGHT TO
SPECIFIC PERFORMANCE, MONEY DAMAGES AND INJUNCTIVE OR DECLARATORY RELIEF. THE
WAIVERS OF SOVEREIGN IMMUNITY AND CONSENTS TO JURISDICTION CONTAINED HEREIN ARE
IRREVOCABLE.
The undersigned represents, warrants and acknowledges that the
transaction of which this Revolving Note is a part is a commercial transaction
and not a consumer transaction. Monies now or in the future to be advanced to or
on behalf of the undersigned are not and will not be used for personal, family
or household purposes.
EXCEPT TO THE EXTENT OTHERWISE PROVIDED HEREIN, THIS REVOLVING
NOTE SHALL BE GOVERNED BY, AND CONSTRUED
-3-
AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF MISSISSIPPI, WITHOUT REGARD TO
THE CONFLICTS OF LAW PROVISIONS OF THE LAWS OF MISSISSIPPI. THE UNDERSIGNED
AND THE HOLDER OF THIS REVOLVING NOTE EACH HEREBY CONSENTS TO THE APPLICATION
OF MISSISSIPPI CIVIL LAW TO THE CONSTRUCTION, INTERPRETATION AND ENFORCEMENT
OF THIS REVOLVING NOTE AND THE OTHER LOAN DOCUMENTS, AND THE APPLICATION OF
MISSISSIPPI CIVIL LAW TO THE PROCEDURAL ASPECTS OF ANY SUIT, ACTION OR
PROCEEDING RELATING THERETO, INCLUDING BUT NOT LIMITED TO LEGAL PROCESS,
EXECUTION OF JUDGMENTS AND OTHER LEGAL REMEDIES, EXCEPT FOR ANY PROCEDURAL
MATTERS GOVERNED BY OR RELATING TO THE CONDUCT OF ARBITRATION UNDER SECTION
13.24 OF THE LOAN AGREEMENT.
THE MISSISSIPPI BAND OF CHOCTAW INDIANS
D/B/A CHOCTAW RESORT DEVELOPMENT ENTERPRISE
By: _______________________________________
Xxxxxxx Xxxxxx, Chairman of the Board
By:_______________________________________
Xxxxxxxx Xxx, Secretary Treasurer
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SCHEDULE OF ADVANCES AND
PAYMENTS OF PRINCIPAL
Date Amount Interest Amount of Unpaid Notation
of Advance Period Principal Principal Made by
Paid Balance
-1-
EXHIBIT H
TAX EXEMPT NOTE
$____,000,000 ______________, 2000
Philadelphia, Mississippi
FOR VALUE RECEIVED, the undersigned promises to pay to the
order of __________________________ (the "Lender"), the principal amount of
___________________ MILLION DOLLARS ($___,000,000) or such lesser aggregate
amount of Advances as may be made by the Lender as part of the Loans under the
Tax Exempt Commitment pursuant to the Loan Agreement referred to below, together
with interest on the principal amount of each Advance made hereunder as part of
the Loans under the Tax Exempt Commitment and remaining unpaid from time to time
from the date of each such Advance until the date of payment in full, payable as
hereinafter set forth. Once repaid, no portion of the Loans made under the Tax
Exempt Commitment may be reborrowed.
Reference is made to the Loan Agreement dated as of December
19, 2000, by and among the undersigned, as Borrower, The Mississippi Band of
Choctaw Indians, a federally recognized Indian tribe and Native American
sovereign nation, as an obligor with respect to certain representations,
warranties and covenants, the Lenders party thereto and Bank of America, N.A.,
as Administrative Agent for the benefit of the Lenders and Collateral Agent (as
such agreement may from time to time be amended, renewed, extended or otherwise
modified from time to time, the "Loan Agreement"). Terms defined in the Loan
Agreement and not otherwise defined herein are used herein with the meanings
given those terms in the Loan Agreement. This is one of the Tax Exempt Notes
referred to in the Loan Agreement, and any holder hereof (collectively,
"Holder") is entitled to all of the rights, remedies, benefits and privileges
provided for in the Loan Agreement as originally executed or as it may from time
to time be supplemented, modified or amended. The Loan Agreement, among other
things, contains provisions for acceleration of the maturity hereof upon the
happening of certain stated events upon the terms and conditions therein
specified.
The principal indebtedness evidenced by this Tax Exempt Note
shall be payable as provided in the Loan Agreement and in any event on the
Maturity Date, and without set off, counterclaim or reduction of any kind.
Interest shall be payable on the outstanding daily unpaid
principal amount of Advances made hereunder from the date of each such Advance
until payment in full and shall accrue and be payable at the rates and on the
dates set forth in the Loan Agreement both before and after default and before
and after maturity and judgment, with interest on overdue principal and interest
to bear interest at the rate set forth in Section 3.9 of the Loan Agreement, to
the fullest extent permitted by applicable Law.
-2-
Each payment hereunder shall be made to the Administrative
Agent at the Administrative Agent's Office for the account of the Lender in
immediately available funds not later than 11:00 a.m., California local time, on
the day of payment (which must be a Business Day). All payments received after
11:00 a.m., California local time, on any particular Business Day shall be
deemed received on the next succeeding Business Day. All payments shall be made
in lawful money of the United States of America.
The Lender shall use its best efforts to keep a record (which
may be in electronic or other intangible form) of Advances made by it as part of
Loans and payments received by it with respect to this Tax Exempt Note, and such
record shall be presumptive evidence of the amounts owing under this Tax Exempt
Note.
The undersigned hereby promises to pay all costs and expenses
of any rightful holder hereof incurred in collecting the undersigned's
obligations hereunder or in enforcing or attempting to enforce any of such
holder's rights hereunder, including reasonable attorneys' fees and
disbursements (including allocated costs of legal counsel employed by the
Administrative Agent or the holder), whether or not an action is filed in
connection therewith.
The undersigned hereby waives presentment, demand for payment,
dishonor, notice of dishonor, protest, notice of protest and any other notice or
formality, to the fullest extent permitted by applicable Laws.
THE UNDERSIGNED HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY
JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER THIS TAX
EXEMPT NOTE OR ANY OTHER LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH OR RELATED
OR INCIDENTAL TO THE DEALINGS OF THE UNDERSIGNED AND THE LENDER WITH RESPECT TO
ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW
EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR TORT OR
OTHERWISE; AND THE UNDERSIGNED HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A
JURY, AND THAT LENDER OR ANY HOLDER OF THIS TAX EXEMPT NOTE MAY FILE AN ORIGINAL
COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE
UNDERSIGNED TO THE WAIVER OF ITS RIGHT TO TRIAL BY JURY.
THE UNDERSIGNED HEREBY EXPRESSLY AND IRREVOCABLY WAIVES ITS
SOVEREIGN IMMUNITY (AND ANY DEFENSE BASED THEREON) FROM ANY SUIT, ACTION OR
PROCEEDING OR FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OF NOTICE,
ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF
-3-
EXECUTION, EXECUTION, EXERCISE OF CONTEMPT POWERS, OR OTHERWISE) EITHER
THROUGH ARBITRATION (AS PROVIDED HEREIN) OR IN THE REGULAR CIVIL DIVISION OF
THE MISSISSIPPI CHOCTAW TRIBAL COURT, WITH RESPECT TO THIS TAX EXEMPT NOTE
AND THE TRANSACTIONS CONTEMPLATED HEREBY. WITHOUT LIMITATION ON THE FOREGOING
PROVISIONS OF THIS PARAGRAPH, THE UNDERSIGNED AGREES THAT THE REGULAR CIVIL
DIVISION OF THE MISSISSIPPI CHOCTAW TRIBAL COURT SHALL, AFTER THE INVOCATION
OF ARBITRATION BY THE UNDERSIGNED OR ANY HOLDER OF THIS TAX EXEMPT NOTE
PURSUANT TO SECTION 13.24 OF THE LOAN AGREEMENT SHALL NOT BE ENTITLED TO
REVIEW THE MERITS OF THE PENDING ACTION OR PROCEEDING, BUT SHALL STAY THE
ACTION OR PROCEEDING UNTIL AN ARBITRATION HAS BEEN HAD IN COMPLIANCE WITH
SECTION 13.24 OF THE LOAN AGREEMENT AND SHALL, UPON APPLICATION BY THE
UNDERSIGNED OR ANY HOLDER OF THIS TAX EXEMPT NOTE, ORDER THE PARTIES TO
ARBITRATE IN ACCORDANCE WITH SECTION 13.24 OF THE LOAN AGREEMENT AND THE
QUESTION OF WHETHER AN OBLIGATION TO ARBITRATE THE DISPUTE AT ISSUE EXISTS
SHALL BE DECIDED BY THE ARBITRATOR(S). NO ARBITRATION AWARD SHALL BE SUBJECT
TO REVIEW OR MODIFICATION BY THE TRIBAL COURT FOR ANY REASON OTHER THAN THOSE
SPECIFIED IN SECTIONS 11-15-23 or 11-15-25, MISSISSIPPI CODE ANNOTATED 1972,
BUT SHALL BE CONFIRMED STRICTLY AS PROVIDED BY THE ARBITRATOR(S).
THE WAIVERS AND CONSENTS DESCRIBED IN THIS TAX EXEMPT NOTE
SHALL INURE TO THE BENEFIT OF EACH HOLDER OF THIS TAX EXEMPT NOTE. SUBJECT TO
SECTIONS 13.24 AND 13.28 OF THE LOAN AGREEMENT, THE HOLDER SHALL HAVE AND BE
ENTITLED TO ALL AVAILABLE LEGAL AND EQUITABLE REMEDIES, INCLUDING THE RIGHT TO
SPECIFIC PERFORMANCE, MONEY DAMAGES AND INJUNCTIVE OR DECLARATORY RELIEF. THE
WAIVERS OF SOVEREIGN IMMUNITY AND CONSENTS TO JURISDICTION CONTAINED HEREIN ARE
IRREVOCABLE.
The undersigned represents, warrants and acknowledges that the
transaction of which this Tax Exempt Note is a part is a commercial transaction
and not a consumer transaction. Monies now or in the future to be advanced to or
on behalf of the undersigned are not and will not be used for personal, family
or household purposes.
EXCEPT TO THE EXTENT OTHERWISE PROVIDED HEREIN, THIS TAX
EXEMPT NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH,
THE LAWS OF MISSISSIPPI, WITHOUT REGARD TO THE CONFLICTS OF LAW PROVISIONS OF
THE LAWS OF MISSISSIPPI. THE UNDERSIGNED AND THE HOLDER OF THIS
-4-
TAX EXEMPT NOTE EACH HEREBY CONSENTS TO THE APPLICATION OF MISSISSIPPI CIVIL
LAW TO THE CONSTRUCTION, INTERPRETATION AND ENFORCEMENT OF THIS TAX EXEMPT
NOTE AND THE OTHER LOAN DOCUMENTS, AND THE APPLICATION OF MISSISSIPPI CIVIL
LAW TO THE PROCEDURAL ASPECTS OF ANY SUIT, ACTION OR PROCEEDING RELATING
THERETO, INCLUDING BUT NOT LIMITED TO LEGAL PROCESS, EXECUTION OF JUDGMENTS
AND OTHER LEGAL REMEDIES, EXCEPT FOR ANY PROCEDURAL MATTERS GOVERNED BY OR
RELATING TO THE CONDUCT OF ARBITRATION UNDER SECTION 13.24 OF THE LOAN
AGREEMENT.
The Borrower has designated this Tax Exempt Note as a
"qualified tax-exempt obligation" within the meaning of Section 265(b) of the
Internal Revenue Code.
THE MISSISSIPPI BAND OF CHOCTAW
INDIANS D/B/A CHOCTAW RESORT
DEVELOPMENT ENTERPRISE
By: _____________________________
Xxxxxx Xxxxxx, Chairman of the Board
By: ______________________________
Xxxxxxxx Xxx, Secretary Treasurer
-5-
SCHEDULE OF ADVANCES AND
PAYMENTS OF PRINCIPAL
Amount of Unpaid
Amount Interest Principal Principal Notation
Date of Advance Period Paid Balance Made by
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EXHIBIT J
[[$10,000,000]] TAX EXEMPT NOTES
OF THE MISSISSIPPI BAND OF CHOCTAW INDIANS
D/B/A/ CHOCTAW RESORT DEVELOPMENT ENTERPRISE
EVIDENCING THE
TAX EXEMPT LOANS UNDER
THE LOAN AGREEMENT DATED AS OF DECEMBER 19, 0000
XXXX XXXX XX XXXXXXX, N.A. AND THE LENDERS NAMED THEREIN
TAX CERTIFICATE AND AGREEMENT AS TO ARBITRAGE AND
THE PROVISIONS OF SECTIONS 141-150 OF
THE INTERNAL REVENUE CODE OF 1986
IN CONNECTION WITH the issuance by The Mississippi Band of Choctaw
Indians d/b/a/ Choctaw Resort Development Enterprise (the "Borrower") of its
[[$10,000,000]] Tax Exempt Notes (the "Notes") evidencing the Tax Exempt Loans
under that certain Loan Agreement dated as of December 19, 2000 (the
"Agreement") by and among the Borrower, the lenders named therein and Bank of
America, N.A., as Administrative Agent (the "Bank"), and IN FURTHERANCE OF the
covenants of the Borrower contained in Section 6.12 of the Agreement, the
Borrower makes and enters into the following Tax Certificate and Agreement as to
Arbitrage and the Provisions of Sections 141-150 of the Internal Revenue Code of
1986 (the "Tax Certificate").
1. DEFINITIONS.
Capitalized terms, if not otherwise defined herein, shall have the
meanings set forth in Appendix I or, where not so defined, then in the
Agreement; PROVIDED, HOWEVER, THAT terms enclosed in quotation marks and not
otherwise defined herein shall have the same meanings as when used in sections
103 and 141-150 of the Code or the Treasury Regulations promulgated thereunder.
2. REPRESENTATIONS.
(a) BORROWER IS INDIAN TRIBAL GOVERNMENT. The Borrower is an
"Indian tribal government" within the meaning of section 7701(a)(40) of the Code
and section 305.7701-1 of the Treasury Regulations.
(b) ISSUANCE OF THE NOTES; PURPOSES OF THE NOTES. On the date
hereof (the "Initial Tax Exempt Advance Date"), the initial Tax Exempt Loan is
being made under the Tax Exempt Commitment established in the Agreement. The
Notes evidence successive Tax Exempt Loans until the limit of [[$10,000,000]] in
principal amount under the Tax Exempt Commitment is reached. The Notes are being
issued and the Tax
-7-
Exempt Loans are being made for the purpose of [[(i) FINANCING CERTAIN PUBLIC
IMPROVEMENTS GENERALLY CONSISTING OF STREET, DRAINAGE AND SEWER SYSTEM
IMPROVEMENTS AND (ii) THE FUNDING OF CERTAIN COSTS OF ISSUANCE OF THE NOTES
(COLLECTIVELY, THE "PROJECT").]] The Project constitutes an essential
governmental function of the Borrower within the meaning of section 7871 of
the Code.
(c) SOURCE OF PAYMENT OF NOTES. The Borrower reasonably expects
that revenues derived from its ownership of a hotel-casino and other funds of
the Borrower will be sufficient on an annual basis to make all payments of debt
service on the Notes as and when the same become due and payable within such
annual period.
(d) SINGLE ISSUE. The Borrower does not expect to issue other
obligations that will be (a) sold at substantially the same time as the Notes
(I.E., less than 15 days apart); (b) sold pursuant to the same plan of financing
with the Notes; and (c) reasonably expected to be paid from substantially the
same sources of funds as will be used to pay the Notes.
(e) NO REPLACEMENT; AVERAGE MATURITY. No portion of the amounts
received from the issuance of the Notes will be used as a substitute for other
funds that otherwise were to be used as a source of financing for the Project
and that have been or will be used to acquire, directly or indirectly,
Investment Property producing a yield in excess of the "yield" on the Notes. The
weighted average maturity of the Notes ([[5]] years, treating the entire Tax
Exempt Commitment as borrowed on the Initial Tax Exempt Advance Date and not
repaid until the maturity date of the Notes) does not exceed 120 percent of the
average reasonably expected economic life of the Project, determined in the same
manner as under section 147(b).
(f) STATEMENT AS TO FACTS, ESTIMATES AND CIRCUMSTANCES. The facts
and estimates set forth in this Tax Certificate on which the Borrower's
expectations as to the amount and use of the Gross Proceeds of the Notes are
based are made to the best of the knowledge and belief of the undersigned
officer of the Borrower and the Borrower's expectations are reasonable. The
undersigned is an officer of the Borrower responsible for the issuance of the
Notes, who has made due inquiry with respect to and is fully informed as to the
matters set forth herein.
(g) NOTES NOT TAXABLE HEDGE BONDS. The Borrower (i) reasonably
expects as of the date hereof (a) no less than 10 percent of the spendable
proceeds of the Notes will be spent for the governmental purposes of the issue
within the 1-year period beginning on the Initial Tax Exempt Advance Date; (b)
no less than 30 percent of the spendable proceeds of the Notes will be spent for
such purposes within the 2-year period beginning on such date; (c) no less than
60 percent of the spendable proceeds of the Notes will be spent for such
purposes within the 3-year period beginning on such date; and (d) no less than
85 percent of the spendable proceeds of the Notes will be spent for such
purposes within the 5-year period beginning on such date; and (ii) [[COVENANTS
THAT NO MORE THAN
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50% OF THE PROCEEDS OF THE NOTES WILL BE INVESTED IN INVESTMENTS HAVING A
SUBSTANTIALLY GUARANTEED YIELD FOR FOUR YEARS OR MORE.]]
(h) NOTES ARE BANK QUALIFIED. The Borrower hereby designates the
Notes as qualified tax-exempt obligations pursuant to section 265(b) of the Code
and reasonably expects that the aggregate amount of tax-exempt obligations that
will be issued by the Borrower and all of its subordinate entities during the
____ calendar year will not exceed $10,000,000. The Borrower covenants that it
will not designate in excess of $10,000,000 of obligations as qualified
tax-exempt obligations pursuant to section 265(b) of the Code during any
calendar year.
3. REASONABLE EXPECTATIONS OF THE BORROWER AS TO FACTS, ESTIMATES
AND CIRCUMSTANCES
The Borrower makes the following representations and statements of fact
and expectation on the basis of which it is not expected that the proceeds of or
other amounts (including replaced proceeds) in respect of the Note will be used
in a manner that will cause such Note to be an "arbitrage bond" within the
meaning of section 148 of the Code.
(a) APPLICATION OF NOTE PROCEEDS; NO OVERISSUANCE. The aggregate
amount to be received by the Borrower from the issuance of the Note (the "Note
Proceeds") will be equal to the aggregate amount of all Tax Exempt Advances
made. The maximum aggregate amount of Tax Exempt Advances cannot exceed the Tax
Exempt Commitment under the Agreement, which is [[$10,000,000]]. The Note
Proceeds and any anticipated investment earnings thereon, after taking into
account the other monies described below and made available for the Project by
reason of the current transaction, do not exceed the amount necessary for the
Project by more than $100,000. The Borrower does not anticipate receiving any
investment earnings on Note Proceeds.
(b) NO REPLACEMENT FUNDS. The Borrower neither has established nor
will establish any fund or account monies in which are reasonably expected to be
used to pay directly or indirectly debt service on the Note or within which
there can be any reasonable assurance that monies would be available for the
payment of such debt service were the Borrower to encounter financial
difficulties.
(c) YIELD. The Notes constitute a variable yield issue, the yield
on which pursuant to section 1.148-4(c) of the Treasury Regulations is to be
computed separately for each Computation Period. The Borrower hereby designates
the first Computation Date in respect of the Notes to be ________________, and
the subsequent Computation Dates to fall on each five-year anniversary of such
first Computation Date. The yield on the Notes for any Computation Period is the
discount rate that, when used in computing the present value as of the first day
of the Computation Period of all the payments of principal and interest and fees
for qualified guarantees that are attributable to the Computation Period,
produces an amount equal to the present value, using the same
-9-
discount rate, of the aggregate issue price of the Notes as of the first day
of the Computation Period.
4. REBATE REQUIREMENT, CALCULATIONS AND PAYMENT. The Borrower has
covenanted to comply with the rebate requirements of section 148(f) of the Code
as the same apply to the Notes. As long as the Borrower complies with its
agreement hereunder not to invest Note Proceeds, no rebate payment to the U.S.
Treasury will be required under present laws and regulations.
5. ALLOCATION AND ACCOUNTING RULES. The Borrower has covenanted
to comply with the requirements of section 148 of the Code. The regulations
promulgated thereunder pertaining to the allocation and accounting for proceeds,
investments and expenditures are summarized in Appendix II.
6. RESTRICTIONS ON LOANS AND NONGOVERNMENTAL USE. The Borrower
has covenanted that, except as would not cause the Note to become "private
activity bonds" within the meaning of section 141 of the Code, it will take all
actions necessary to assure that (i) it will own, operate and possess all
property financed directly or indirectly with Gross Proceeds of the Notes and
will not otherwise permit any property so financed to be subject to the "private
business use" of any Nongovernmental Person, and (ii) will not directly or
indirectly impose or accept any charge or other payment by any Nongovernmental
Person who is treated as using any Gross Proceeds of the Notes or any property
the acquisition, construction or improvement of which is to be financed directly
or indirectly with such Gross Proceeds other than taxes of general application
within the Tribe or interest earned on investments acquired with such Gross
Proceeds pending application for their intended purposes. Substantially all of
the proceeds (90% or more) of the Notes will be expended for "essential
governmental functions" of the Borrower (within the meaning of section 7871 of
the Code and section 305.7871-1(d) of the Treasury Regulations). For purposes of
this section, "Nongovernmental Person" refers to the United States of America or
any agency, department or instrumentality thereof, or any other person other
than (i) a state or local governmental unit or (ii) an Indian tribal government
within the meaning of Section 7701(a)(40) of the Code or a subdivision thereof
within the meaning of Section 7871(d) of the Code.
7. INFORMATION REPORTING. The Borrower has reviewed the Internal
Revenue Service Form 8038-G to be filed in connection with the issuance of the
Note, a copy of which is attached hereto as EXHIBIT B, and all of the
information contained therein is, to the best of the Borrower's knowledge, true
and complete.
8. AMENDMENTS. This Tax Certificate has been executed pursuant to
the Agreement wherein the Borrower has covenanted to take such actions as are
necessary to maintain the exclusion pursuant to section 103(a) of the Code of
interest on the Note from the gross income of the owners thereof for purposes of
federal income taxation. This Tax Certificate sets forth the information,
representations, and procedures necessary
-10-
in order for Bond Counsel to render its opinion regarding such exclusion of
interest and may be amended or supplemented from time to time only to
maintain such exclusion and only with the approval of Bond Counsel.
Notwithstanding any other provision herein, the covenants and
obligations contained herein may be and shall be deemed modified to the extent
the Borrower secures an opinion of Bond Counsel that any action required
hereunder is no longer required or that some further action is required in order
to maintain the exclusion of interest on the Notes from the gross income for
purposes of federal income taxation.
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9. SUPPLEMENTATION OF THIS CERTIFICATE. The Borrower understands the
need to supplement this Tax Certificate periodically to reflect further
developments in the federal income tax laws governing the exclusion pursuant to
section 103(a) of the Code of interest on governmental obligations, and will, at
least once every Bond Year, seek the advice of its counsel as to the propriety
of seeking the review of and supplements to this Tax Certificate from Bond
Counsel.
Dated: ________________
THE MISSISSIPPI BAND OF CHOCTAW INDIANS
D/B/A CHOCTAW RESORT DEVELOPMENT ENTERPRISE
By_________________________________________
Title:_____________________________________
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APPENDIX I
DEFINITIONS
"BOND COUNSEL" shall mean ________________________, or any other law
firm appointed by the Borrower, having a national reputation in the field of
municipal finance whose opinions are generally accepted by purchasers of
municipal bonds.
"CODE" shall mean the Internal Revenue Code of 1986, as amended.
"COMMINGLED FUND" shall mean any fund or account containing both Gross
Proceeds of an issue and amounts in excess of $25,000 that are not Gross
Proceeds of that issue if the amounts in the fund or account are invested and
accounted for collectively, without regard to the source of funds deposited in
the fund or account.
"COMPUTATION DATE" shall mean each date on which the rebate for an
issue is computed.
"COMPUTATION DATE CREDIT" shall mean with respect to an issue a credit
of $1,000 against the rebatable arbitrage on (i) the last day of each Note Year
during which there are amounts allocated to Gross Proceeds of an issue subject
to the Rebate Requirement; and (ii) the final maturity date for an issue.
"COMPUTATION PERIOD" shall mean the period between Computation Dates.
The first Computation Period begins on the date hereof and ends on the first
Computation Date. Each succeeding Computation Period begins on the date
immediately following the Computation Date and ends on the next Computation
Date.
"GROSS PROCEEDS" shall mean any Proceeds or Replacement Proceeds of an
issue.
"INVESTMENT PROCEEDS" shall mean any amounts actually or constructively
received from investing Proceeds of an issue.
"INVESTMENT PROPERTY" shall mean any security or obligation within the
meaning of section 148(b)(2) of the Code, any annuity contract, any interest in
any residential rental property for family units which is not located within the
jurisdiction of the Borrower, any "specified private activity bond" within the
meaning of section 57(a)(5)(C), and any other Investment-Type Property.
"INVESTMENT-TYPE PROPERTY" includes any property that is held
principally as a passive vehicle for the production of income. A prepayment for
property or services is Investment-Type Property if a principal purpose for
prepaying is to receive an investment return from the time the prepayment is
made until the time payment otherwise would be made. A prepayment is not
Investment-Type Property if (i) the prepayment is made for a substantial
business purpose other than investment return and the Borrower has no
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commercially reasonable alternative to the prepayment; and (ii) prepayments on
substantially the same terms are made by a substantial percentage of persons who
are similarly situated to the Borrower but who are not beneficiaries of
tax-exempt financing.
"NONPURPOSE INVESTMENT" shall mean any Investment Property that is not
a Purpose Investment.
"NONPURPOSE PAYMENT" shall mean:
(i) amounts actually or constructively paid to acquire a Nonpurpose
Investment (or treated as paid to a Commingled Fund);
(ii) in the case of a Nonpurpose Investment that is first allocated to
an issue on a date after it is actually acquired (E.G., an investment that
becomes allocable to Transferred Proceeds or to Replacement Proceeds) or that
becomes subject to the Rebate Requirement on a date after it is actually
acquired (E.G., an investment allocated to a reasonably required reserve or
replacement fund for a construction issue at the end of the two year spending
period), the Value of that investment on that date;
(iii) in the case of a Nonpurpose Investment that was allocated to an
issue at the end of the preceding Computation Period, the Value of that
Nonpurpose Investment at the beginning of the Computation Period; and
(iv) the Computation Date Credit.
"NONPURPOSE RECEIPT" shall mean:
(i) amounts actually or constructively received from a Nonpurpose
Investment(including amounts treated as received from a
Commingled Fund);
(ii) in the case of a Nonpurpose Investment that ceases to be
allocated to an issue before its disposition or redemption
date (E.G., an investment that becomes allocable to
Transferred Proceeds of another issue or that ceases to be
allocable to the issue pursuant to the Universal Cap) or that
ceases to be subject to the Rebate Requirement on a date
earlier than its disposition or redemption date (E.G., an
investment allocated to a fund initially subject to the Rebate
Requirement but that subsequently qualifies as a bona fide
debt service fund), the Value of that Nonpurpose Investment on
that date; and
(iii) in the case of a Nonpurpose Investment that is held at the end
of a Computation Period, the Value of that Nonpurpose
Investment at the end of that Computation Period.
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"NOTE YEAR" shall mean each one year period that ends on the day
selected by the Borrower. If no day is selected by the Borrower before the date
that is five years from the Initial Tax Exempt Advance Date, each Note Year ends
on the anniversary of the Initial Tax Exempt Advance Date and on the final
maturity date.
"NOTE YIELD" shall have the meaning set forth in Section 3 of the Tax
Certificate.
"PLAIN PAR BOND" (or "PLAIN PAR INVESTMENT") shall mean a bond (or an
investment) (i) issued (or in the case of an investment acquired on a date other
than the issue date, acquired) with not more than a de minimis amount (I.E., two
percent of stated principal amount) of original issue discount or original issue
premium; (ii) issued for a price that does not include accrued interest, other
than Pre-Issuance Accrued Interest; (iii) that bears interest from the issue
date at a single, stated, fixed rate or that is a variable rate debt instrument
under section 1275 of the Code, in each case with interest payable at least
annually; and (iv) that has a lowest stated redemption price that is not less
than its outstanding principal amount.
"PRE-ISSUANCE ACCRUED" Interest shall mean amounts representing
interest that has accrued on an obligation for a period of not greater than one
year before its issue date but only if those amounts are paid within one year
after the Initial Tax Exempt Advance Date.
"PROCEEDS" shall mean any Sale Proceeds, Investment Proceeds and
Transferred Proceeds of an issue.
"PURPOSE INVESTMENT" shall mean an investment that is acquired to carry
out the governmental purpose of an issue.
"QUALIFIED ADMINISTRATIVE COSTS" shall mean reasonable, direct
administrative costs, other than carrying costs, such as separately stated
brokerage and selling commissions that are comparable to those charged
nongovernmental entities in transactions not involving tax-exempt bond proceeds,
but NOT legal and accounting fees, recordkeeping, custody or similar costs. For
a guaranteed investment contract, a broker's commission paid on behalf of either
an issuer or the provider is NOT a Qualified Administrative Cost to the extent
that the commission exceeds .05 percent of the amount reasonably expected to be
invested per year.
"REBATE NOTE YIELD" shall mean the Note Yield unless:
(i) the issuer or any conduit borrower enters into a hedge transaction
(E.G., interest rate swap, interest rate cap or collar) which has not
been taken into account in computing the Note Yield, in which case the
issuer shall consult with Bond Counsel for guidance in determining the
Rebate Note Yield; or
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(ii) the issuer or any conduit borrower, in a transaction that is
separate and apart from the original sale of an issue, transfers,
waives or modifies any right that is part of the terms of an issue
(E.G., a sale of the call rights on an issue). The issuer shall consult
with Bond Counsel prior to entering into any such transaction and for
guidance in determining the Rebate Note Yield.
"REBATE REQUIREMENT" shall have the same meaning as when used in
Section 4 of the Tax Certificate.
"REPLACEMENT PROCEEDS" shall mean amounts that have a sufficiently
direct nexus to an issue to conclude that the amounts would have been used for
that governmental purpose if the Proceeds of the issue were not used or to be
used for that governmental purpose. For this purpose, governmental purposes
include the expected use of amounts for the payment of debt service on a
particular date. The mere availability or preliminary earmarking of amounts for
a governmental purpose, however, does not in itself establish a sufficient nexus
to cause those amounts to be Replacement Proceeds. Replacement Proceeds include,
but are not limited to, amounts held in a sinking fund or a pledged fund. For
these purposes, an amount is pledged to pay principal of or interest on an issue
if there is reasonable assurance that the amount will be available for such
purposes in the event that the issuer encounters financial difficulties.
"SALE PROCEEDS" shall mean any amounts actually or constructively
received by the issuer from the sale of an issue, including amounts used to pay
underwriters' discount or compensation and interest other than Pre-Issuance
Accrued Interest.
"TREASURY REGULATIONS" shall mean the Treasury Regulations contained in
sections 1.148-0 through 1.148-11, inclusive, 1.149(b)-1, 1.149(d)-1 and
1.149(g)-1, and 1.150-1 and 1.150-2 as published on June 14, 1993 and to the
extent applicable, any subsequent amendments to such regulations or any
successor regulations.
"UNIVERSAL CAP" shall mean the value of all then outstanding Notes of
the issue.
"VALUE" (OF A BOND) shall mean with respect to a bond issued with not
more than two percent original issue discount or original issue premium, the
outstanding principal amount, plus accrued unpaid interest; for any other bond,
its present value.
"VALUE" (OF AN INVESTMENT) shall have the following meaning in the
following circumstances:
(i) General Rules. Subject to the special rules in the following
paragraph, an issuer may determine the value of an investment on a date
using one of the following valuation methods consistently applied for
all purposes relating to arbitrage and rebate with respect to that
investment on that date:
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(a) an investment with not more than two percent original
issue discount or original issue premium may be valued at its
outstanding stated principal amount, plus accrued unpaid
interest;
(b) a fixed rate investment may be valued at its present
value; and
(c) an investment may be valued at its fair market value on a
date.
(ii) SPECIAL RULES. Yield restricted investments are to be valued at
present value provided that (except for purposes of allocating
transferred proceeds to an issue, for purposes of the universal cap and
for investments in a commingled fund other than a bona fide debt
service fund unless it is a certain commingled fund):
(a) an investment must be valued at its fair market value when
it is first allocated to an issue, when it is disposed of and
when it is deemed acquired or deemed disposed of, and provided
further that;
(b) in the case of transferred proceeds, the value of a
nonpurpose investment that is allocated to transferred
proceeds of a refunding issue on a transfer date may not
exceed the value of that investment on the transfer date used
for purposes of applying the arbitrage restrictions to the
refunded issue.
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APPENDIX II
ALLOCATION AND ACCOUNTING RULES
1. GENERAL RULE. An issuer may use any reasonable, consistently applied
accounting method to account for Gross Proceeds, investments and expenditures of
an issue. An accounting method is "consistently applied" if it is applied
uniformly within a Fiscal Period and between Fiscal Periods to account for Gross
Proceeds of an issue and any amounts that are in a commingled fund.
2. ALLOCATION OF GROSS PROCEEDS TO AN ISSUE. Amounts are allocable to
only one issue at a time as Gross Proceeds. Amounts cease to be allocated to an
issue as Proceeds only when those amounts (i) are allocated to an expenditure
for a governmental purpose; (ii) are allocated to transferred proceeds of
another issue of obligations; or (iii) cease to be allocated to that issue at
retirement of the issue or under the Universal Cap.
3. ALLOCATION OF GROSS PROCEEDS TO INVESTMENTS. Upon the purchase or
sale of a Nonpurpose Investment, Gross Proceeds of an issue are not allocated to
a payment for that Nonpurpose Investment in an amount greater than, or to a
receipt from that Nonpurpose Investment in an amount less than, the fair market
value of the Nonpurpose Investment as of the purchase or sale date. The fair
market value of a Nonpurpose Investment is adjusted to take into account
Qualified Administrative Costs allocable to the investment. Thus, Qualified
Administrative Costs increase the payments for, or decrease the receipts from, a
Nonpurpose Investment.
4. ALLOCATION OF GROSS PROCEEDS TO EXPENDITURES. Reasonable accounting
methods for allocating funds from different sources to expenditures for the same
governmental purpose include a "specific tracing" method, a
"gross-proceeds-spent-first" method, a "first-in-first-out" method or a ratable
allocation method, so long as the method used is consistently applied. An
allocation of Gross Proceeds of an issue to an expenditure must involve a
current outlay of cash for a governmental purpose of the issue. A current outlay
of cash means an outlay reasonably expected to occur not later than five banking
days after the date as of which the allocation of Gross Proceeds to the
expenditure is made.
5. COMMINGLED FUNDS. Any fund or account that contains both Gross
Proceeds of an issue and amounts in excess of $25,000 that are not Gross
Proceeds of that issue if the amounts in the fund or account are invested and
accounted for collectively, without regard to the source of the funds deposited
therein, constitutes a "commingled fund." All payments and receipts (including
deemed payments and receipts) on investments held by a commingled fund must be
allocated (but not necessarily distributed) among each different source of funds
invested in the commingled fund in accordance with a consistently applied,
reasonable ratable allocation method. Reasonable ratable allocation methods
include, without limitation, methods that allocate payments and receipts in
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proportion to either (i) the average daily balances of the amounts in the
commingled fund from each different source of funds during any consistent time
period within its fiscal year, but at least quarterly (the "Fiscal Period"); or
(ii) the average of the beginning and ending balances of the amounts in the
commingled fund from each different source of funds for a Fiscal Period that
does not exceed one month.
Funds invested in the commingled fund may be allocated
directly to expenditures for governmental purposes pursuant to a reasonable
consistently applied accounting method. If a ratable allocation method is used
to allocate expenditures from the commingled fund, the same ratable allocation
method must be used to allocate payments and receipts on investments in the
commingled fund.
Generally a commingled fund must treat all its investments as
if sold at fair market value either on the last day of the fiscal year or on the
last day of each Fiscal Period. The net gains or losses from these deemed sales
of investments must be allocated to each different source of funds invested in
the commingled fund during the period since the last allocation. This
xxxx-to-market requirement does not apply if (i) the remaining weighted average
maturity of all investments held by a commingled fund during a particular fiscal
year does not exceed 18 months, and the investments held by the commingled fund
during that fiscal year consist exclusively of obligations; or (ii) the
commingled fund operated exclusively as a reserve fund, sinking fund or
replacement fund for two or more issues of the same issuer. Subject to the
Universal Cap limitation, and the principle that amounts are allocable to only
one issue at a time as Gross Proceeds, investments held by a commingled fund
that serves as a common reserve fund, replacement fund or sinking fund must be
allocated ratably among the issues served by the commingled fund in proportion
to either (i) the relative values of the bonds of those issues; (ii) the
relative amounts of the remaining maximum annual debt service requirements on
the outstanding principal amounts of those issues; or (iii) the relative
original stated principal amounts of the outstanding issues.
6. UNIVERSAL CAP. Amounts that would otherwise be Gross Proceeds
allocable to an issue are allocated (and remain allocated) to the issue only to
the extent that the Value of the Nonpurpose Investments allocable to those Gross
Proceeds does not exceed the Value of all outstanding bonds of the issue.
Nonpurpose Investments allocated to Gross Proceeds in a bona fide debt service
fund for an issue are not taken into account in determining the Value of the
Nonpurpose Investments, and those Nonpurpose Investments remain allocated to the
issue. To the extent that the Value of the Nonpurpose Investments allocable to
the Gross Proceeds of an issue exceed the Value of all outstanding bonds of that
issue, an issuer should seek the advice of Bond Counsel for the procedures
necessary to comply with the Universal Cap.
7. EXPENDITURE FOR WORKING CAPITAL PURPOSES. Subject to certain
exceptions, the Proceeds of an issue may be allocated to "working capital
expenditures" as of any date
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only to the extent that those expenditures exceed "available amounts" as of
that date (I.E., "proceeds-spent-last").
For purposes of this section, "working capital expenditures"
include all expenditures other than "capital expenditures." "Capital
expenditures" are costs of a type properly chargeable (or chargeable upon proper
election) to a capital account under general Federal income tax principles. Such
costs include, for example, costs incurred to acquire, construct, or improve
land, buildings and equipment having a reasonably expected useful life in excess
of one year. Thus, working capital expenditures include, among other things,
expenditures for current operating expenses and debt service.
For purposes of this section, "available amount" means any
amount that is available to an issuer for working capital expenditure purposes
of the type financed by the issue. Available amount excludes Proceeds of the
issue but includes cash, investments and other amounts held in accounts or
otherwise by an issuer for working capital expenditures of the type being
financed by the issue without legislative or judicial action and without a
legislative, judicial, or contractual requirement that those amounts be
reimbursed. Notwithstanding the preceding sentence, a "reasonable working
capital reserve" is treated as unavailable. A working capital reserve is
reasonable if it does not exceed five percent of the actual working capital
expenditures of an issuer in the fiscal year before the year in which the
determination of available amounts is made. For purpose of the preceding
sentence only, in determining the working capital expenditures of an issuer for
a prior fiscal year, any expenditures (whether capital or working capital
expenditures) that are paid out of current revenues may be treated as working
capital expenditures.
The proceeds-spent-last requirement does not apply to
expenditures to pay (i) any issuance costs of the issue or any qualified
administrative costs; (ii) fees for qualified guarantees of the issue or
payments for a qualified hedge for the issue; (iii) interest on the issue for a
period commencing on the Initial Tax Exempt Advance Date and ending on the date
that is the later of three years from the Initial Tax Exempt Advance Date or one
year after the date on which the financed project is placed in service; (iv) the
United States for yield reduction payments (including rebate payments) or
penalties for the failure to meet the spend down requirements associated with
certain spending exceptions to the rebate requirement; (v) costs, other than
those described in (i) through (iv) above, that do not exceed five percent of
the Sale Proceeds of an issue and that are directly related to capital
expenditures financed by the issue (E.G., initial operating expenses for a new
capital project); (vi) principal or interest on an issue paid from unexpected
excess sale or investment proceeds; (vii) principal or interest on an issue paid
from investment earnings on a reserve or replacement fund that are deposited in
a bona fide debt service fund; and (viii) principal, interest, or redemption
premium on a prior issue and, for a crossover refunding issue, interest on that
issue. Notwithstanding the preceding paragraph, the exceptions described above
do not apply if the allocation
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merely substitutes Gross Proceeds for other amounts that would have been used
to make those expenditures in a manner that gives rise to Replacement
Proceeds.
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EXHIBIT A
FORM OF BORROWER CERTIFICATION FOR TAX EXEMPT LOAN
In connection with a request for a Tax Exempt Loan on ___________,
20___ pursuant to Section 2.4 of the Loan Agreement dated as of December 19,
2000 (the "Agreement") among The Mississippi Band of Choctaw Indians d/b/a
Choctaw Resort Development Enterprise (the "Borrower"), the lenders therein
named and Bank of America, N.A., as Administrative Agent, the undersigned on
behalf of the Borrower hereby certifies that it will immediately use the
proceeds of the Tax Exempt Loan requested thereby solely to pay costs of the
Project not previously paid by any prior Tax Exempt Loan or to reimburse itself
for Project costs previously paid within the past 60 days, and further certifies
that such use is consistent with the Borrower's representations and covenants in
Section ____ of the Agreement and in the Tax Certificate of the Borrower dated
___________ (the "Tax Certificate").
Capitalized terms not otherwise defined herein shall have the meanings
set forth in the Agreement, or if not defined therein, in the Tax Certificate.
Dated: ________________
THE MISSISSIPPI BAND OF CHOCTAW INDIANS
D/B/A CHOCTAW RESORT DEVELOPMENT ENTERPRISE
By__________________________________
Title:________________________________
X-0
XXXXXXX X
XXXX 0000-X
X-0
EXHIBIT K
COLLATERAL AGENT AND INTERCREDITOR AGREEMENT
THIS COLLATERAL AGENT AND INTERCREDITOR AGREEMENT (this
"Agreement"), dated as of December 19, 2000, is entered into by and among Bank
of America, N.A. ("Bank of America"), as Administrative Agent for the Revolver
Lenders (as hereinafter defined), Bank of America, as Administrative Agent for
the Term Lenders (as hereinafter defined), Bank of America as a Secured Creditor
(as hereinafter defined) under the Paired Swap Agreement (as hereinafter
defined), each other Secured Creditor who may become a party hereto pursuant to
Section 8.4 of this Agreement and Bank of America, as Collateral Agent for each
of the Secured Creditors (the "Collateral Agent"), with reference to the
following facts:
RECITALS
A. Concurrently herewith, The Mississippi Band of Choctaw
Indians d/b/a Choctaw Resort Development Enterprise (the "Borrower"), an
unincorporated business enterprise of The Mississippi Band of Choctaw Indians, a
federally recognized Indian Tribe and Native American sovereign nation (the
"Tribe") are entering into an Amended and Restated Term Loan Agreement, of even
date herewith with the Term Lenders (as defined below) and Bank of America, as
Administrative Agent (as amended from time to time, the "Term Loan Agreement")
pursuant to which a loan to the Borrower in the principal amount of $59,375,000
is outstanding. Pursuant to the Term Loan Agreement, the Borrower has
concurrently executed a Security Agreement encumbering substantially all of its
personal property in favor of the Collateral Agent for the benefit of the
Secured Creditors under the Term Loan Agreement.
B. Tribe and Borrower are concurrently entering into a Loan
Agreement of even date herewith among Borrower, the Revolver Lenders (as defined
below) and Bank of America, as Administrative Agent (as amended from time to
time, the "Revolving Loan Agreement"), pursuant to which the Revolver Lenders
will provide Borrower with certain secured revolving loan and letter of credit
facilities in an initial principal amount of $125,000,000. Pursuant to the
Revolving Loan Agreement, the Borrower has concurrently executed a Security
Agreement encumbering substantially all of its personal property in favor of the
Collateral Agent for the benefit of the Secured Creditors under the Revolving
Loan Agreement. Unless otherwise herein defined, capitalized terms herein are
used with the same meanings as set forth in the Revolving Loan Agreement.
C. The Tribe and Bank of America, as counterparty, have
entered into an ISDA Master Agreement dated as of February 1, 2000 with respect
to the Term
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Obligations, providing for the hedging of interest rates under the Term Loan
Agreement (as amended concurrently herewith so as to make the Borrower a
party thereto, and as further amended from time to time, the "Paired Swap
Agreement"). It is contemplated that Borrower, Tribe and one or more of the
Revolver Lenders or their affiliates may from time to time enter into Secured
Swap Agreements providing for hedging of interest rates under the Revolving
Loan Agreement (such Secured Swap Agreements collectively with the Paired
Swap Agreement, the "Swap Agreements").
D. Subject to the terms and conditions of the Revolving Loan
Agreement and the Term Loan Agreement, it is contemplated that Tribe, Borrower
and certain other lenders may in the future enter into certain senior secured
financing in an principal amount not to exceed $150,000,000 (such financing, the
"Proposed Senior Financing" and the holders thereof from time to time, the
"Additional Creditors"). The proposed Senior Financing may (or may not) have the
benefit of a security agreement executed by the Borrower for the benefit of the
Additional Creditors.
E. The Borrower has also executed, or will execute, certain
Deposit Account Agreements in favor of the Collateral Agent with respect to
deposit, brokerage or other similar accounts maintained by Borrower, for the
benefit of the Secured Creditors.
F. Pursuant to this Agreement, the Secured Creditors (a) shall
agree as to the relative priority and enforcement rights of their respective
Liens and security interests in the assets and properties of Borrower and (b)
shall appoint the Collateral Agent as their common collateral agent to take the
actions described herein with respect to the Collateral (as hereinafter
defined).
G. The execution of this agreement by Bank of America, as
Collateral Agent and representative of the Lenders party hereto on the date
hereof, is authorized by Section 12.1 of the Revolving Loan Agreement and
Section 12.1 of the Term Loan Agreement.
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereby agree as follows:
ARTICLE I
DEFINITIONS
1.1 DEFINITIONS OF CERTAIN TERMS. As used herein, the following
terms have the meanings set forth below:
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"AGGREGATE PERMITTED OBLIGATIONS" means, as of each date of
determination, the SUM OF the Permitted Term Obligations, the Permitted Revolver
Obligations, the Permitted Swap Obligations and the Permitted Additional
Obligations.
"COLLATERAL" means, collectively, the Collateral described in
the Revolving Loan Agreement, the Collateral described in the Term Loan
Agreement, the Collateral described in the Swap Agreements and any Collateral
for the Proposed Senior Financing.
"COLLATERAL DOCUMENTS" means, collectively, all security
agreements, pledge agreements or other collateral security agreements granting
liens or security interests in any Collateral, including, the Collateral
Documents described in the Revolving Loan Agreement, and the Collateral
Documents described in the Term Loan Agreement, and, following the closing of
the Proposed Senior Financing, the similar security agreements, pledge
agreements or other security agreements granting liens or security interests in
any Collateral to the Collateral Agent for the benefit of the creditors
thereunder.
"CREDIT DOCUMENTS" means, collectively, the Loan Documents
described in the Revolving Loan Agreement, the Loan Documents described in the
Term Loan Agreement, the Paired Swap Agreement, each Secured Swap Agreement and,
following the closing of the Proposed Senior Financing, the instruments,
documents and agreements executed in connection therewith.
"CREDITOR REPRESENTATIVE" means (a) when used in the context
of the Revolving Loan Agreement, the Administrative Agent under the Revolving
Loan Agreement, (b) when used in the context of the Term Loan Agreement, the
Administrative Agent under the Term Loan Agreement, (c) when used in the context
of the Proposed Senior Financing, the trustee or other representative for the
Additional Creditors, and (d) when used in the context of any Swap Agreement,
the Secured Creditor party to such Swap Agreement.
"L/C EXPOSURE" means, as of any date of determination, the
aggregate maximum available amount which may be drawn under all Letters of
Credit which are outstanding under the Revolving Loan Agreement as of such date
of determination.
"NOTICE OF DEFAULT" has the meaning set forth in Section 2.1.
"PERMITTED ADDITIONAL OBLIGATIONS" means indebtedness not to
exceed the principal amount of $150,000,000.
"PERMITTED REVOLVER OBLIGATIONS" means Obligations under the
Revolving Loan Agreement in an amount not to exceed $125,000,000.
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"PERMITTED SWAP OBLIGATIONS" means, as of each date of
determination, the obligations of Borrower and the Tribe with respect to the
Paired Swap Agreement and the other Swap Agreements, in each case to the extent
of the relevant Administrative Agent's risk assessment factor in accordance with
the relevant Loan Agreement.
"PERMITTED TERM OBLIGATIONS" means Obligations under the Term
Loan Agreement in an amount not to exceed $59,750,000 minus any repayments
thereof to the extent that the same are not subject to return by the Lenders
under the Term Loan Agreement.
"REQUIRED CREDITORS" means Secured Creditors holding a simple
majority of the Aggregate Permitted Obligations which are entitled to share in
the priority distribution of the proceeds of the Collateral in accordance with
Section 2.1.
"REVOLVER LENDERS" means the Lenders from time to time party
to the Revolving Loan Agreement.
"SECURED CREDITORS" means, collectively, the Revolver Lenders,
the Term Lenders, the Additional Creditors and the Swap Creditors.
"SWAP CREDITORS" means Bank of America, as counterparty under
the Paired Swap Agreement and each other Lender who, from time to time, is a
party to a Swap Agreement and a party hereto.
"TERM LENDERS" means the Lenders party to the Term Loan
Agreement from time to time.
1.2 TERMS GENERALLY. The definitions in Section 1.1 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." All references herein to
Articles and Sections shall be deemed references to Articles and Sections of
this Agreement unless the context shall otherwise require.
ARTICLE II
SHARING OF LIENS AND GUARANTIES
2.1 SHARING OF LIENS. The Collateral Agent is hereby appointed by the
Secured Creditors to hold, on behalf of all of the Secured Creditors, all of the
Liens granted pursuant to the Collateral Documents for the equal, ratable and
PARI PASSU benefit of all of the Secured Creditors. Concurrently with
acceleration of the obligations under any Credit Document, the Creditor
Representative for the respective
-5-
Secured Creditors party thereto, will deliver a notice thereof (a "Notice of
Default") to the Collateral Agent (or, if the Obligations are deemed
accelerated pursuant to Section 11.1(m) of the Revolving Loan Agreement,
Section 11.1(m) of the Term Loan Agreement or any comparable provision in the
Proposed Senior Financing, such Creditor Representative shall be deemed to
have delivered a Notice of Default). Upon any foreclosure of the Liens under
the Collateral Documents or upon any other realization of the benefits of the
Collateral Documents, the Collateral Agent shall make any distribution of the
proceeds thereof in accordance with Section 5.1 through the respective
Creditor Representatives to the Secured Creditors in accordance with the
following proportions, determined on the basis of the principal obligations
outstanding to the Secured Creditors as of the date of its first receipt (or
deemed receipt) of a Notice of Default:
(i) the Term Lenders shall be entitled to
distribution of an amount which is proportionately equal to
the amount which the principal amount of the Permitted Term
Obligations bear to the Aggregate Permitted Obligations;
(ii) the Revolver Lenders shall be entitled to
distribution of an amount which is proportionately equal to
the amount which the principal amount of the Permitted
Revolver Obligations bear to the Aggregate Permitted
Obligations;
(iii) the Additional Creditors shall be entitled to
distribution of an amount which is proportionately equal to
the amount which the principal amount of the Permitted
Additional Obligations bear to the Aggregate Permitted
Obligations; and
(iv) the Swap Creditors shall be entitled to
distribution of an amount which is proportionately equal to
the amount which the principal amount of the Permitted Swap
Obligations bear to the Aggregate Permitted Obligations;
PROVIDED in each case that, for the purposes of such priority distribution, the
amount of such obligations owed to any Secured Creditor or group thereof shall
be deemed reduced in an amount equal to that portion of such obligations which
is (x) not secured by a perfected and unavoidable lien or security interest in
the Collateral (without regard to the value of the Collateral in comparison to
the amounts so secured), or (y) avoidable as a fraudulent transfer or fraudulent
conveyance, or (z) subject to equitable subordination or otherwise subordinated
by law, equity or contract to the other obligations entitled to the benefits of
this agreement. Subject to the foregoing proviso, the priority of the liens and
security interests governed by this Agreement shall be determined hereby
irrespective of the time or manner of perfection of the interests granted to the
Collateral Agent for the benefit of any particular creditor.
-6-
2.2 SUBORDINATION OF EXCESS AMOUNTS. To the extent that the aggregate
principal amount of the obligations under the Revolving Loan Agreement exceeds
the Permitted Revolver Obligations, the aggregate principal amount of the
obligations under the Term Loan Agreement exceeds the Permitted Term
Obligations, the aggregate principal amount of the obligations under the
Proposed Senior Financing exceeds the Permitted Additional Obligations or the
aggregate principal amount of the obligations under the Swap Agreements exceeds
the Permitted Swap Obligations (in each case as of the date of the giving of a
Notice of Default) such excess amounts shall continue to be secured by the
Collateral but shall be subordinate and junior in right of payment from the
proceeds of the Liens of the Collateral Documents to the prior payment (ratably,
as set forth above) of the other obligations entitled to the benefits of this
agreement.
ARTICLE III
ENFORCEMENT OF LIENS
3.1 RIGHTS OF ACTION. Each of the Secured Creditors and each of the
Creditor Representatives agrees that all rights and remedies of the Secured
Creditors and Creditor Representatives with respect to the Collateral shall be
exercised by the Collateral Agent. Each Creditor Representative under the
Revolving Loan Agreement, Term Loan Agreement and Proposed Senior Financing
shall independently have the unilateral right, acting alone, to direct the
Collateral Agent, subject to and in accordance with the Credit Documents to
which it is a party, to proceed against the Collateral in an expeditious manner.
The order and manner pursuant to which such rights and remedies are exercised
shall be determined initially by the Collateral Agent in the exercise of its
discretion PROVIDED THAT the Required Creditors (or a committee appointed
thereby for the purpose of overseeing such enforcement of such rights and
remedies) shall, upon written notice to the Collateral Agent, have the right to
direct the order and manner of such enforcement. The Collateral Agent hereby
agrees (and each Lender and Creditor Representative acknowledges such agreement)
that, upon receipt of such written notice, it shall enforce such rights and
remedies promptly in such order and manner as the Required Creditors (or a
committee appointed thereby for the purpose of overseeing such enforcement) may,
from time to time, direct, PROVIDED that the Collateral Agent shall not be
required to act or not act if to do so would be contrary to any Credit Document
or to applicable Laws or would result, in the judgment of the Collateral Agent,
in substantial risk of liability to the Collateral Agent.
ARTICLE IV
THE COLLATERAL AGENT
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4.1 APPOINTMENT OF COLLATERAL AGENT. Each of the Secured Creditors
hereby irrevocably appoints and authorizes Bank of America to act as Collateral
Agent pursuant to the terms of the Credit Documents and this Agreement, and Bank
of America agrees to act as Collateral Agent for such Secured Creditors,
pursuant to the terms of the Credit Documents and this Agreement.
4.2 BUSINESS ACTIVITIES WITH THE TRIBE AND THE BORROWER. Bank of
America (and any successor Collateral Agent) has the same rights and powers
under the Credit Documents as any other Secured Creditor and may exercise the
same as though it was not the Collateral Agent, and the term "Secured Creditor"
or "Secured Creditors" includes Bank of America in its individual capacity. Each
Secured Creditor (including Bank of America and any successor Collateral Agent)
and its Affiliates may accept deposits from, lend money to and generally engage
in any kind of banking, trust or other business with the Tribe or the Borrower
or any of its Affiliates. Bank of America may engage in these activities in the
same manner as the other Secured Creditors as if it was not the Collateral Agent
and without any duty to account therefor to the Secured Creditors. Bank of
America (and any successor Collateral Agent) need not account to any other
Secured Creditor for any monies received by it for reimbursement of its costs
and expenses as Collateral Agent, or for any monies received by it in its
capacity as a Secured Creditor hereunder. The Collateral Agent shall not be
deemed to hold a fiduciary, trust or other special relationship with any Secured
Creditor and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or otherwise exist
against the Collateral Agent.
4.3 SECURED CREDITORS' CREDIT DECISIONS. Each Secured Creditor agrees
that it has, independently and without reliance upon the Collateral Agent, any
other Secured Creditor or the directors, officers, agents, employees or
attorneys of the Collateral Agent or of any other Secured Creditor, and instead
in reliance upon information supplied to it by or on behalf of the Tribe and the
Borrower and upon such other information as it has deemed appropriate, made its
own independent credit analysis and decision to enter into the Credit Documents.
Each Secured Creditor also agrees that it shall, independently and without
reliance upon the Collateral Agent, any other Secured Creditor or the directors,
officers, agents, employees or attorneys of the Collateral Agent or of any other
Secured Creditor, continue to make its own independent credit analyses and
decisions in acting or not acting under the Credit Documents.
4.4 ACTION BY COLLATERAL AGENT.
A. The Collateral Agent has only those obligations under the
Credit Documents and this Agreement as are expressly set forth therein
and herein.
-8-
B. EXCEPT for any obligation expressly set forth in the Credit
Documents and this Agreement, the Collateral Agent may, but shall not
be required to, exercise its discretion to act or not act.
C. The Collateral Agent shall have no liability to any Secured
Creditor for acting as instructed by the Required Creditors, or for
refraining from acting, if so instructed by the Required Creditors
pursuant to Section 3.1, notwithstanding any other provision hereof.
4.5 LIABILITY OF COLLATERAL AGENT. Neither the Collateral Agent nor any
of its directors, officers, agents, employees or attorneys shall be liable for
any action taken or not taken by them under or in connection with the Credit
Documents or this Agreement, EXCEPT for their own gross negligence or willful
misconduct. Without limitation on the foregoing, the Collateral Agent and its
directors, officers, agents, employees and attorneys:
A. May treat each Secured Creditor identified in its records
as the owner of its Pro Rata Share reflected in such records until the
Collateral Agent receives notice of the assignment or transfer thereof.
B. May consult with legal counsel (INCLUDING in-house legal
counsel), accountants (INCLUDING in-house accountants) and other
professionals or experts selected by it, or with legal counsel,
accountants or other professionals or experts for the Tribe, the
Borrower or the Secured Creditors, and shall not be liable for any
action taken or not taken by it in good faith in accordance with any
advice of such legal counsel, accountants or other professionals or
experts.
C. Shall not be responsible to any Secured Creditor for any
statement, warranty or representation made in any of the Credit
Documents or this Agreement or in any notice, certificate, report,
request or other statement (written or oral) given or made in
connection with any of the Credit Documents or this Agreement.
D. EXCEPT to the extent expressly set forth in the Credit
Documents, shall have no duty to ask or inquire as to the performance
or observance by the Tribe, the Borrower or any other Party of any of
the terms, conditions or covenants of any of the Credit Documents or to
inspect any Collateral or the Property, books or records of the Tribe
or the Borrower.
E. Will not be responsible to any Secured Creditor for the due
execution, legality, validity, enforceability, genuineness,
effectiveness, sufficiency or value of any Credit Document, any other
instrument or writing furnished pursuant thereto or in connection
therewith, or any collateral.
-9-
F. Will not incur any liability by acting or not acting in
reliance upon any Credit Document, notice, consent, certificate,
statement, request or other instrument or writing believed by it to be
genuine and signed or sent by the proper party or parties.
G. Will not incur any liability for any arithmetical error in
computing any amount paid or payable by the Borrower or any Affiliate
thereof or paid or payable to or received or receivable from any
Secured Creditor under any Credit Document, INCLUDING, without
limitation, principal, interest, Advances and other amounts; PROVIDED
that, promptly upon discovery of such an error in computation, the
Collateral Agent, the Secured Creditors and (to the extent applicable)
the Borrower or its Affiliates shall make such adjustments as are
necessary to correct such error and to restore the parties to the
position that they would have occupied had the error not occurred.
4.6 SUCCESSOR COLLATERAL AGENT. The Collateral Agent may, and at the
request of the Required Creditors shall, resign as Collateral Agent (i) upon 30
days' notice to the Borrower and the Secured Creditors or (ii) if the Collateral
Agent determines that for it to continue as Collateral Agent would result in a
conflict of interest affecting the Collateral Agent, or would create an
unacceptable risk of significant liability of the Collateral Agent to a third
party, or would otherwise be inadvisable under prevailing standards of banking
prudence, at any time, and effective immediately upon written notice to the
Borrower and the Secured Creditors. If the Collateral Agent so resigns, (a) the
Required Creditors shall appoint a successor Collateral Agent, who must be from
among the Secured Creditors (and reasonably acceptable to the Borrower unless an
Event of Default exists), PROVIDED that any resigning Collateral Agent shall be
entitled to appoint a successor Collateral Agent from among the Secured
Creditors, subject to acceptance of appointment by that successor Collateral
Agent, if the Required Creditors have not appointed a successor Collateral Agent
within 30 days after the date the resigning Collateral Agent gave notice of
resignation; (b) upon a successor's acceptance of appointment as Collateral
Agent, the successor will thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the resigning Collateral Agent or the
removed Collateral Agent; and (c) upon the effectiveness of any resignation, the
resigning Collateral Agent thereupon will be discharged from its duties and
obligations thereafter arising under the Credit Documents other than obligations
arising as a result of any action or inaction of the resigning Collateral Agent
prior to the effectiveness of such resignation.
4.7 INDEMNITY. Each of the Secured Creditors agrees to indemnify, save
and hold harmless Collateral Agent and its respective Affiliates, directors,
officers, agents, attorneys and employees (collectively the "INDEMNITEES") from
and against: (a) any and all claims, demands, actions or causes of action that
are asserted against any Indemnitee by any third party, if the claim, demand,
action or cause of action directly
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or indirectly relates to a claim, demand, action or cause of action that such
Person asserts or may assert against the Secured Creditors (or, to the extent
related to any Credit Document or the transactions contemplated thereby, any
Affiliate or any officer of the Secured Creditor); (b) any and all claims,
demands, actions or causes of action by a third party if the claim, demand,
action or cause of action arises out of or relates to any transaction
contemplated by the Credit Documents; (c) any administrative or investigative
proceeding by any governmental agency arising out of or related to a claim,
demand, action or cause of action described in clauses (a) or (b) above; and
(d) any and all liabilities, losses, costs or expenses (INCLUDING reasonable
attorneys' fees and disbursements and other professional services) that any
Indemnitee suffers or incurs as a result of the assertion of any foregoing
claim, demand, action or cause of action; PROVIDED that no Indemnitee shall
be entitled to indemnification for any loss caused by its own gross
negligence or willful misconduct. If any claim, demand, action or cause of
action is asserted against any Indemnitee, such Indemnitee shall promptly
notify the Secured Creditors, but the failure to so promptly notify the
Secured Creditors shall not affect the Secured Creditor's obligations under
this Section unless the Secured Creditor is materially prejudiced thereby
(and then only to the extent prejudiced). Each Indemnitee may contest the
validity, applicability and amount of such claim, demand, action or cause of
action with counsel selected by such Indemnitee. Each Indemnitee is
authorized to employ counsel in enforcing its rights hereunder and in
defending any claim, demand, action or cause of action covered by this
Section; PROVIDED that each Indemnitee shall endeavor in connection with any
matter covered by this Section which also involves other Indemnitees, to use
reasonable efforts to avoid unnecessary duplication of effort by counsel for
all Indemnitees. Any obligation or liability of the Secured Creditors to any
Indemnitee under this Section shall survive the expiration or termination of
this Agreement
-11-
ARTICLE V
PROCEEDS RECEIVED UNDER CREDIT DOCUMENTS;
OTHER AMOUNTS RECEIVED FOLLOWING EVENT OF DEFAULT
5.1 APPLICATION OF PROCEEDS OF COLLATERAL.
(a) Upon its receipt of any Notice of Default,
the Collateral Agent shall notify each of the Creditor
Representatives thereof, and each Creditor Representative
shall promptly deliver to the Collateral Agent a certificate
setting forth the principal amount of the obligations owed to
the Secured Creditors under its respective Credit Document and
that portion of such obligations which constitutes L/C
Exposure as of the date of its receipt of such Notice of
Default.
(b) Upon its receipt of any proceeds of the
Collateral, the Collateral Agent shall disburse such proceeds
as follows:
(i) First, to the costs and expenses of
the Collateral Agent incurred in connection with the
enforcement of the Collateral Documents (including
the allocated costs of internal counsel to the
Collateral Agent) and to a reserve established by the
Collateral Agent for any reasonably anticipated
future expenses;
(ii) Second, to each of the Creditor
Representatives for the ratable benefit of the
Secured Creditors in accordance with the principal
obligations which are owning to them constituting
Permitted Revolver Obligations, Permitted Term
Obligations, Permitted Additional Obligations or
Permitted Swap Obligations PROVIDED that the
Collateral Agent shall withhold from any such
disbursement any amount allocable to L/C Exposure
until such amounts are fully liquidated (and shall
instead retain such amounts in an interest-bearing
collateral account for the benefit of the Secured
Creditors as their interest may appear). In the event
that any L/C Exposure is ultimately discharged or
eliminated (whether by expiration without drawing of
the related Letter of Credit or otherwise) the
Collateral Agent shall disburse the related amounts
in the collateral account to the Creditor
Representatives for the account of the Secured
Creditors as aforesaid;
(iii) Third, to the Secured Creditors
ratably in accordance with the principal obligations
owed to them which do not constituted Permitted Term
Obligations, Permitted Revolver
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Obligations, Permitted Additional Obligations or
Permitted Swap Obligations (until the payment in
full of all such Obligations); and
(iv) Finally, to the person or persons
otherwise legally entitled thereto.
5.2 TURNOVER OF COLLATERAL RECEIVED BY SECURED CREDITORS. Each
Secured Creditor shall promptly put in the custody, possession or control of the
Collateral Agent for disposition or distribution in accordance with the
provisions of Section 5.1 any Collateral, or proceeds therefrom, over which such
Secured Creditor obtains custody, control or possession. Until such time as each
Secured Creditor shall have complied with the provisions of the immediately
preceding sentence, such Secured Creditor shall be deemed to hold such
Collateral or proceeds in trust for the parties entitled thereto hereunder.
5.3 RATABLE SHARING OF CERTAIN AMOUNTS RECEIVED BY SECURED
CREDITORS. Each Secured Creditor severally agrees that if it, through the
exercise of any right of setoff, banker's lien or counterclaim against a Party,
or otherwise, receives payment of the Aggregate Permitted Obligations held by it
that is ratably more than any other Secured Creditor, through any means,
receives in payment of the Aggregate Permitted Obligations held by that Secured
Creditor, then: (a) the Secured Creditor exercising the right of setoff,
banker's lien or counterclaim or otherwise receiving such payment shall notify
the Collateral Agent and thereafter shall purchase, and shall be deemed to have
simultaneously purchased, from the other Secured Creditor a participation in the
Aggregate Permitted Obligations held by the other Secured Creditor and shall pay
to the other Secured Creditor a purchase price in an amount so that the share of
the Aggregate Permitted Obligations held by each Secured Creditor after the
exercise of the right of setoff, banker's lien or counterclaim or receipt of
payment shall be in the same proportion that existed prior to the exercise of
the right of setoff, banker's lien or counterclaim or receipt of payment; and
(b) such other adjustments and purchases of participations shall be made from
time to time as shall be equitable to ensure that all of the Secured Creditors
share any payment obtained in respect of the Aggregate Permitted Obligations
ratably in accordance with each Secured Creditor's share of the Aggregate
Permitted Obligations immediately prior to, and without taking into account, the
payment; PROVIDED that, if all or any portion of a disproportionate payment
obtained as a result of the exercise of the right of setoff, banker's lien,
counterclaim or otherwise is thereafter recovered from the purchasing Secured
Creditor by the Borrower or any Person claiming through or succeeding to the
rights of the Borrower, the purchase of a participation shall be rescinded and
the purchase price thereof shall be restored to the extent of the recovery. Each
Secured Creditor that purchases a participation in the Aggregate Permitted
Obligations pursuant to this Section shall from and after the purchase have the
right to give all notices, requests, demands, directions and other
communications under this Agreement with respect to the portion of the Aggregate
Permitted Obligations purchased to the same extent as
-13-
though the purchasing Secured Creditor were the original owner of the
Aggregate Permitted Obligations purchased. Each Party expressly consents to
the foregoing arrangements and agrees that any Secured Creditor holding a
participation in an Aggregate Permitted Obligation so purchased may exercise
any and all rights of setoff, banker's lien or counterclaim with respect to
the participation as fully as if the Secured Creditor were the original owner
of the Aggregate Permitted Obligation purchased; PROVIDED, however, that each
Secured Creditor agrees that it shall not exercise any right of setoff,
banker's lien or counterclaim with respect to the Aggregate Permitted
Obligations without first obtaining the consent of the Required Creditors.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
The Collateral Agent and each Secured Creditor represents and
warrants to each of the other parties hereto that (a) the execution, delivery
and performance of this Agreement (i) have been duly authorized by all requisite
corporate action on its part and (ii) will not contravene any provision of its
charter or by-laws or any order of any court or other governmental authority
having applicability to it or any applicable law, and (b) this Agreement has
been duly executed and delivered by it and constitutes its legal, valid and
binding obligation.
ARTICLE VII
INTERCREDITOR ARRANGEMENTS
7.1 BANKRUPTCY PROCEEDINGS. Nothing contained herein shall limit or
restrict the independent right of any Secured Creditor to initiate an action or
actions in any proceeding under a Debtor Relief Law and to appear or be heard on
any matter before the bankruptcy or other applicable court in any such
proceeding. The Collateral Agent is not entitled to initiate such actions on
behalf of any Secured Creditor or to appear and be heard on any matter before
the bankruptcy or other applicable court in any such proceeding as the
representative of any Secured Creditor, unless such action or appearance has
been approved in writing by such Secured Creditor. The Collateral Agent is not
authorized in any such proceeding to enter into any agreement for, or give any
authorization or consent with respect to, the postpetition usage of Collateral,
unless such agreement, authorization or consent has been approved in writing by
the Required Creditors. This Agreement shall survive the commencement of any
proceeding under a Debtor Relief Law.
7.2 WAIVER OF MARSHALING. Each of the Secured Creditors waives any
right it may now or hereafter have to require the Collateral Agent to marshal
assets, to exercise rights or remedies in a particular manner, or to forbear
exercising such rights and remedies in any particular manner or order.
-14-
7.3 FURTHER ASSURANCES, ETC. Each party hereto shall execute and
deliver such other documents and instruments, in form and substance reasonably
satisfactory to the other parties hereto, and shall take such other action, in
each case as any other party hereto may reasonably have requested (at the cost
and expense of Borrower) to effectuate and carry out the provisions of this
Agreement, including by recording or filing this Agreement or such other
documents or instruments in such places as the requesting party may reasonably
deem desirable.
ARTICLE VIII
MISCELLANEOUS
8.1 SUCCESSORS AND ASSIGNS. This Agreement shall be binding on and
inure to the benefit of the Collateral Agent, each of the Secured Creditors and
their respective successors and permitted assigns and participants pursuant to
the terms of the Credit Documents to which they are party, as applicable.
8.2 BENEFITTED PARTIES. All understandings and agreements contained
herein are solely for the benefit of the Secured Creditors and their respective
successors and assigns, and, notwithstanding the execution of this Agreement by
Borrower and Tribe solely for the purpose of acknowledging and consenting to
such understandings and agreements, neither Borrower, Tribe nor any other Person
other than the Secured Creditors and their respective successors and permitted
assigns and participants are intended to be benefitted in any way by this
Agreement.
8.3 NOTICES. Notices and other communications provided for herein shall
be delivered in the manner set forth in Section 13.6 of the Revolving Loan
Agreement.
8.4 JOINDER OF SECURED CREDITORS. Any Additional Creditor or other
Lender who is a counterparty to a Secured Swap Agreement may become a Secured
Creditor under and bound by the terms and conditions of this Agreement by
executing and delivering to Collateral Agent an Instrument of Joinder
substantially in the form attached hereto as EXHIBIT A accompanied by such
documentation as Collateral Agent may reasonably require in connection with such
Joinder, including, for the purpose of verifying the accuracy of the
representations and warranties set out in Article VI hereof.
8.5 APPLICABLE LAW. This Agreement shall be governed by, and construed
and enforced in accordance with, the Laws of Mississippi, without regard to the
conflicts of law provisions of the Laws of Mississippi. The Borrower and each
other party hereto each hereby consents to the application of Mississippi civil
law to the construction, interpretation and enforcement of this Agreement and
the other Loan Documents, and to the application of Mississippi civil law to the
procedural aspects of any suit, action or proceeding relating thereto, including
but not limited to legal
-15-
process, execution of judgments and other legal remedies, except for any
procedural matters governed by or relating to the conduct of arbitration
under Section 13.24 of the Loan Agreements.
8.6 WAIVER OF RIGHT TO TRIAL BY JURY. EACH PARTY TO THIS AGREEMENT
HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION
OR CAUSE OF ACTION ARISING UNDER THIS AGREEMENT OR IN ANY WAY CONNECTED WITH OR
RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH
RESPECT TO THIS AGREEMENT, OR THE TRANSACTIONS RELATED HERETO, IN EACH CASE
WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR
TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY A COURT TRIAL
WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL
COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE
CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
8.7 COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall constitute an original, but all of which, when
taken together, shall constitute but one and the same instrument.
8.8 COMPLETE AGREEMENT. This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof and
supersedes all prior representations, negotiations, writings, memoranda and
agreements. To the extent any provision of this Agreement conflicts with any
Creditor Agreement, the provisions of this Agreement shall be controlling.
-16-
IN WITNESS WHEREOF, the Collateral Agent, the Administrative
Agent for the Revolver Lenders, the Administrative Agent for the Term Lenders,
and Bank of America, as Secured Creditor, have caused this Agreement to be
executed by their respective duly authorized officers as of the date first above
written.
BANK OF AMERICA , N.A., as Collateral Agent
By: ____________________________________
Xxxxxx Xxxxxxx, Vice President
BANK OF AMERICA, N.A., as Administrative Agent for
the Revolver Lenders
By: ____________________________________
Xxxxxx Xxxxxxx, Vice President
BANK OF AMERICA, N.A., as Administrative Agent for
the Term Lenders
By: ____________________________________
Xxxxxx Xxxxxxx, Vice President
BANK OF AMERICA, N.A., as Secured Creditor
By: ____________________________________
Xxxxxx Xxxxxxx, Vice President
-17-
Acknowledged by and Agreed to:
Borrower:
THE MISSISSIPPI BAND OF CHOCTAW INDIANS D/B/A CHOCTAW RESORT DEVELOPMENT
ENTERPRISE
By: ______________________________________________
Xxxxxxx Xxxxxx, Chairman of the Board
By: _______________________________________________
Xxxxxxxx Xxx, Secretary Treasurer
Tribe:
THE MISSISSIPPI BAND OF CHOCTAW INDIANS
By: ______________________________________________
Xxxxxxx Xxxxxx, Chief
By: _______________________________________________
Xxxxxxxx Xxx, Secretary Treasurer
-18-
EXHIBIT A
TO
COLLATERAL AGENT AND INTERCREDITOR AGREEMENT
INSTRUMENT OF JOINDER
THIS INSTRUMENT OF JOINDER ("Joinder") is executed as of
_________________, ____, by _____________________________________, a
___________________________ ("Joining Party"), and delivered to Bank of America,
N.A. ("Collateral Agent") pursuant to the Collateral Agent and Intercreditor
Agreement dated as of _____________, 2000 made by and among Bank of America,
N.A. ("Bank of America"), as Administrative Agent for the Revolver Lenders, Bank
of America, as Administrative Agent for the Term Lenders, Bank of America as a
Secured Creditor under the Paired Swap Agreement, each other Secured Creditor
who may become a party hereto pursuant to Section 8.4 of the Intercreditor
Agreement and Bank of America, as Collateral Agent for each of the Secured
Creditors (as the same may be amended or supplemented from time to time, the
"Intercreditor Agreement"). Terms used but not defined in this Joinder shall
have the meanings defined for those terms in the Intercreditor Agreement.
RECITALS
(A) Joining Party has become a Secured Creditor of Borrower, and as such is
permitted pursuant to Section 8.4 of the Intercreditor Agreement to become a
party thereto.
(b) Joining Party expects to realize direct and indirect benefits as a
result of becoming party to the Intercreditor Agreement.
NOW THEREFORE, Joining Party agrees as follows:
AGREEMENT
(1) By this Joinder, Joining Party becomes a "Secured Creditor" under
and pursuant to Section 8.4 of the Intercreditor Agreement. Joining Party agrees
that, upon its execution hereof, it will be bound by all terms, conditions, and
duties applicable to a Secured Creditor under the Intercreditor Agreement.
(2) By this Joinder, the Secured Creditor affirms that each of the
representations and warranties set forth Article VI of the Intercreditor
Agreement are true and correct on the date hereof.
(3) The effective date of this Joinder is _________, ____.
"Joining Party"
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____________________________________________
a __________________________________________
By: _______________________________________
Title: _____________________________________
ACKNOWLEDGED:
BANK OF AMERICA, N.A.
as Collateral Agent
By: ________________________________
Title: ________________________________
By: ________________________________
Title: ________________________________
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Schedule 1.1B
Material Amenities of the Golden Moon
Material Amenities of the Golden Moon Project are as follows:
1. Parking garage at Silver Star with not less than 1100 spaces
2. Exterior Show Venue
3. Retail Promenade at Silver Star
4. Golden Moon Hotel with not less than 550 Rooms
5. Golden Moon Casino with not less than 90,000 square feet of
gaming space, lounges and bars
6. Skybridge between Golden Moon and Silver Star
7. Golden Moon Restaurants - not less than 6 facilities with
different themes
8. Golden Moon parking and service amenities
-1-
Schedule 4.7A
GOLDEN MOON SITE DESCRIPTION
-1-
Schedule 4.7B
SILVER STAR SITE DESCRIPTION
DESCRIPTION CORNER #2
FROM THE S.W. CORNER OF SECTION 30, T. 11N., R. 11E., NESHOBA COUNTY,
MISSISSIPPI, RUN S. 89 DEG. -46'-54" E. 2,662.80 FEET TO THE POINT OF
BEGINNING WHICH IS THE MIDPOINT OF SAID SOUTH SECTION LINE; THENCE
CONTINUE S. 89 DEG. -46'-54" E. 658.48 FEET ALONG THE MENTIONED SOUTH
SECTION LINE; THENCE N. 0 DEG. -23'-48" W. 778.57 FEET TO THE MIDDLE
OF A +/- 30 FOOT WIDE DRAINAGE DITCH; THENCE N. 29 DEG. -02'-44" E.
525.35 FEET ALONG THE CENTER LINE OF SAID +/- 30 FOOT WIDE DRAINAGE
DITCH TO THE EXISTING SOUTHERNLY RIGHT OF WAY LINE OF MISSISSIPPI
HIGHWAY #16, THENCE N. 73 DEG. -38'-41" W. 955.56 FEET ALONG SAID
SOUTHERNLY RIGHT OF WAY OF MISSISSIPPI #16, THENCE S. 0 DEG. -20'-00"
E. 181.12 FEET TO THE FIELD ESTABLISHED NORTH LINE OF THE SE 1/4 OF THE
SW 1/4, SECTION 30, T. 11N., R. 11E., NESHOBA COUNTY, MISSISSIPPI;
THENCE N. 89 DEG. -24'-52" W. 476.62 FEET ALONG FIELD ESTABLISHED
NORTH LINE OF SAID SE 1/4 OF THE SW 1/4 OF SECTION 30, T. 11N.,
R. 11E.; THENCE S. 89 DEG. -29'-45" W. 186.27 FEET ALONG SAID FIELD
ESTABLISHED NORTH LINE OF THE SE 1/4 OF THE SW 1/4, SECTION 30,
T. 11N., R. 11E., NESHOBA COUNTY, MISSISSIPPI; THENCE S. 0 DEG.
-06'-12" E. 660.60 FEET; THENCE S. 89 DEG. -37'56" E. 665.37 FEET;
THENCE S. 0 DEG. -20'-00" E. 661.65 FEET TO THE POINT OF BEGINNING,
CONTAINING A GROSS AREA OF 32.96 ACRES, MORE OR LESS, OF WHICH
3.43 ACRES IS DEDICATED FOR RIGHT OF WAY FOR BIA ROUTE 0221 (XXX XXXXXX
ROAD EXTENSION) LEAVING A NET OF 29.43 ACRES, MORE OR LESS, WHICH IS
SITUATED IN THE SE 1/4 OF THE SW 1/4, THE SW 1/4 OF THE SE 1/4, AND THE
NW 1/4 OF THE SE 1/4, SECTION 30, T. 11N., R. 11E., NESHOBA COUNTY,
MISSISSIPPI.
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SCHEDULE 5.26
SILVER STAR RESORT & CASINO
ACTIVE BANK ACCOUNTS
as of 12/5/00
-------------------------------------- ------------------------------------------ ------------------------------
BANK ACCOUNT TITLE ACCOUNT
NUMBER
-------------------------------------- ------------------------------------------ ------------------------------
Trustmark General Operating 1002826196
-------------------------------------- ------------------------------------------ ------------------------------
Trustmark Payroll 1002826469
-------------------------------------- ------------------------------------------ ------------------------------
Bank of America Credit Card 990103491
-------------------------------------- ------------------------------------------ ------------------------------
Trustmark ABC Liquor Draft 1004292629
-------------------------------------- ------------------------------------------ ------------------------------
Xxxxxxx Sachs Operating Account 4502324001
-------------------------------------- ------------------------------------------ ------------------------------
Trustmark Health-Dental-Vision 1006952584
-------------------------------------- ------------------------------------------ ------------------------------
Trustmark Short Term Disability 1006952576
-------------------------------------- ------------------------------------------ ------------------------------
Trustmark Workmen's Comp. 1006953293
-------------------------------------- ------------------------------------------ ------------------------------
Xxxxxxx Xxxxx Claims Reserve 4502324003
-------------------------------------- ------------------------------------------ ------------------------------
Trustmark Employee Benefits 1007310857
-------------------------------------- ------------------------------------------ ------------------------------
Trustmark Health-Dental-Vision 1007494370
-------------------------------------- ------------------------------------------ ------------------------------
Trustmark Cage Account 1007549843
-------------------------------------- ------------------------------------------ ------------------------------
Trustmark CD as Security for ABC 9107663172
-------------------------------------- ------------------------------------------ ------------------------------
Trustmark CD as Security for ABC 9107663180
-------------------------------------- ------------------------------------------ ------------------------------
Trustmark Security Repurchase 0009753420
-------------------------------------- ------------------------------------------ ------------------------------
Trustmark Operating Account 1007601628
-------------------------------------- ------------------------------------------ ------------------------------
Trustmark Disbursement Fund 1007601636
-------------------------------------- ------------------------------------------ ------------------------------
Trustmark Project Disbursement Account 1007601610
-------------------------------------- ------------------------------------------ ------------------------------
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