Exhibit 10.1
EXECUTION COPY
$493,250,000
CREDIT AGREEMENT
Dated as of December 21, 2007
among
XXXXX ENTERTAINMENT RESORTS HOLDINGS, L.P.
as Borrower
XXXXX ENTERTAINMENT RESORTS, INC.
as General Partner
and
XXXX BANK NEVADA AND
XXXX BANK
as Initial Lenders
and
XXXX BANK
as Collateral Agent and Administrative Agent
T A B L E O F C O N T E N T S
SECTION PAGE
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS.......................................................................1
Section 1.01. Certain Defined Terms...............................................................................1
Section 1.02. Computation of Time Periods; Other Definitional Provisions.........................................24
Section 1.03. Accounting Terms...................................................................................24
Section 1.04. U.S. Dollars.......................................................................................24
ARTICLE II AMOUNTS AND TERMS OF THE ADVANCES....................................................................24
Section 2.01. The Advances.......................................................................................24
Section 2.02. Making the Advances................................................................................25
Section 2.03. Reserved...........................................................................................26
Section 2.04. Repayment of Term B Advances.......................................................................26
Section 2.05. Termination or Reduction of the Commitments........................................................27
Section 2.06. Prepayments........................................................................................27
Section 2.07. Interest...........................................................................................29
Section 2.08. Fees...............................................................................................30
Section 2.09. Conversion of Advances.............................................................................31
Section 2.10. Increased Costs, Etc...............................................................................31
Section 2.11. Payments and Computations..........................................................................33
Section 2.12. Taxes..............................................................................................35
Section 2.13. Sharing of Payments, Etc...........................................................................38
Section 2.14. Use of Proceeds....................................................................................39
Section 2.15. Defaulting Lenders.................................................................................39
Section 2.16. Evidence of Debt...................................................................................41
ARTICLE III CONDITIONS OF LENDING...............................................................................42
Section 3.01. Conditions Precedent to Initial Extension of Credit................................................42
Section 3.02. Conditions Precedent to Each Borrowing.............................................................47
Section 3.03. Determinations Under Section 3.01..................................................................48
ARTICLE IV REPRESENTATIONS AND WARRANTIES.......................................................................48
Section 4.01. Representations and Warranties of the Loan Parties.................................................48
ARTICLE V COVENANTS OF THE LOAN PARTIES.........................................................................55
Section 5.01. Affirmative Covenants..............................................................................55
Section 5.02. Negative Covenants.................................................................................61
Section 5.03. Reporting Requirements.............................................................................73
ARTICLE VI EVENTS OF DEFAULT....................................................................................77
Section 6.01. Events of Default..................................................................................77
(i)
ARTICLE VII THE AGENTS..........................................................................................79
Section 7.01. Authorization and Action...........................................................................79
Section 7.02. Agents' Reliance, Etc..............................................................................80
Xxxxxxx 0.00. XXX, XX and Affiliates.............................................................................81
Section 7.04. Lender Party Credit Decision.......................................................................81
Section 7.05. Indemnification....................................................................................81
Section 7.06. Successor Agents...................................................................................82
ARTICLE VIII GUARANTY...........................................................................................83
Section 8.01. Guaranty; Limitation of Liability..................................................................83
Section 8.02. Guaranty Absolute..................................................................................84
Section 8.03. Waivers and Acknowledgments........................................................................85
Section 8.04. Subrogation........................................................................................85
Section 8.05. Guaranty Supplements...............................................................................86
Section 8.06. Subordination......................................................................................86
Section 8.07. Continuing Guaranty; Assignments...................................................................87
ARTICLE IX MISCELLANEOUS........................................................................................88
Section 9.01. Amendments, Etc....................................................................................88
Section 9.02. Notices, Etc.......................................................................................89
Section 9.03. No Waiver; Remedies................................................................................91
Section 9.04. Costs and Expenses.................................................................................91
Section 9.05. Right of Set-off...................................................................................92
Section 9.06. Binding Effect.....................................................................................92
Section 9.07. Assignments and Participations.....................................................................93
Section 9.08. Execution in Counterparts..........................................................................96
Section 9.09. Reserved...........................................................................................97
Section 9.10. Non-Consenting Lenders.............................................................................97
Section 9.11. Confidentiality....................................................................................97
Section 9.12. Release of Collateral..............................................................................97
Section 9.13. Patriot Act Notice.................................................................................97
Section 9.14. Jurisdiction, Etc..................................................................................98
Section 9.15. Application of Liquor Laws and Gaming Laws.........................................................98
Section 9.16. Governing Law......................................................................................99
Section 9.17. WAIVER OF JURY TRIAL...............................................................................99
Section 9.18. Limitation of Liability............................................................................99
Section 9.19. Collateral Documents and Intercreditor Agreement..................................................100
(ii)
SCHEDULES
Schedule I - Commitments and Applicable Lending Offices
Schedule II - Guarantors
Schedule III - Pro Forma EBITDA
Schedule IV - Construction Contracts
Schedule V - Plans and Specifications
Schedule VI - Existing Unrestricted Subsidiaries
Schedule 4.01(b) - Subsidiaries
Schedule 4.01(d) - Authorizations, Approvals, Actions, Notices and Filings
Schedule 4.01(f) - Disclosed Litigation
Schedule 4.01(o) - Plans, Multiemployer Plans and Welfare Plans
Schedule 4.01(q) - Tax Disclosure
Schedule 4.01(s) - Existing Debt
Schedule 4.01(t) - Surviving Debt
Schedule 4.01(u) - Liens
Schedule 4.01(v) - Owned Real Property; Leased Real Property (Lessee);
Leased Real Property (Lessor)
Schedule 4.01(w) - Investments
Schedule 4.01(x) - Intellectual Property
Schedule 4.01(aa) - Budget and Construction Schedule
Schedule 5.01(d) - Insurance
Schedule 5.01(k) - Post-Closing Matters
EXHIBITS
Exhibit A-1 - Form of Term B-1 Note
Exhibit A-2 - Form of Term B-2 Note
Exhibit B - Form of Notice of Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Security Agreement
Exhibit E - Form of Guaranty Supplement
Exhibit F - Form of Mortgage
Exhibit G - Form of Solvency Certificate
Exhibit H-1 - Form of Opinion of Xxxxxx, Xxxxxx & Xxxxxxxx, P.A.
counsel to the Loan Parties
Exhibit H-2 - Form of Opinion of Xxxxxx & Xxxxxxxx, P.C., New Jersey
gaming counsel to the Loan Parties
(iii)
CREDIT AGREEMENT
CREDIT AGREEMENT dated as of December 21, 2007 among XXXXX
ENTERTAINMENT RESORTS HOLDINGS, L.P., a Delaware limited partnership (the
"BORROWER"), XXXXX ENTERTAINMENT RESORTS, INC., a Delaware corporation and
general partner of the Borrower (the "GENERAL PARTNER"), as a Guarantor (as
hereinafter defined), the Subsidiary Guarantors (as hereinafter defined), the
Initial Lenders (as hereinafter defined), XXXX BANK (as hereinafter defined), as
collateral agent (together with any successor collateral agent appointed
pursuant to Article VII, the "COLLATERAL AGENT") for the Secured Parties (as
hereinafter defined) and XXXX BANK, as administrative agent (together with any
successor administrative agent appointed pursuant to Article VII, the
"ADMINISTRATIVE AGENT") for the Lender Parties (as hereinafter defined).
PRELIMINARY STATEMENTS:
(1) The Borrower has requested that the Lender Parties lend to
the Borrower (a) $393,250,000 upon and concurrently with the consummation of the
Transaction, and (b) up to an additional $100,000,000.00 on a delay draw basis,
the proceeds of which loans shall be used, as more specifically required herein,
to (i) refinance all amounts outstanding under the Existing Credit Agreement,
(ii) fund the construction of the New Tower, (iii) pay the fees and expenses
incurred in connection with the Transaction and (iv) provide financing for
working capital, capital expenditures and other general corporate purposes.
(2) The Lender Parties have indicated their willingness to
agree to lend such amounts on the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants and agreements contained herein, the parties hereto hereby
agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.01. Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"ADMINISTRATION FEE" has the meaning set forth in Section
2.08(c).
"ADMINISTRATIVE AGENT" has the meaning specified in the
recital of parties to this Agreement.
"ADMINISTRATIVE AGENT'S ACCOUNT" means the account of the
Administrative Agent specified by the Administrative Agent in writing
to the Lender Parties from time to time.
"ADVANCE" means a Term B-1 Advance or a Term B-2 Advance.
"AFFILIATE" means, as to any Person, any other Person that,
directly or indirectly, controls, is controlled by or is under common
control with such Person or is a director or officer of such Person.
For purposes of this definition, the term "control" (including the
terms "controlling," "controlled by" and "under common control with")
of a Person means the possession, direct or indirect, of the power to
vote 10% or more of the Voting Interests of such Person or to direct or
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cause the direction of the management and policies of such Person,
whether through the ownership of Voting Interests, by contract or
otherwise.
"AGENTS" has the meaning specified in the recital of parties
to this Agreement.
"AGREEMENT VALUE" means, for each Hedge Agreement, on any date
of determination, an amount determined by the Administrative Agent
equal to the amount, if any, that would be payable by any Loan Party or
any of its Subsidiaries to its counterparty to such Hedge Agreement, as
if (a) such Hedge Agreement was being terminated early on such date of
determination, (b) such Loan Party or Subsidiary was the sole "Affected
Party," and (c) the Administrative Agent was the sole party determining
such payment amount (with the Administrative Agent making such
determination pursuant to the provisions of the form of Master
Agreement).
"APPLICABLE LENDING OFFICE" means, with respect to each Lender
Party, such Lender Party's Domestic Lending Office in the case of a
Base Rate Advance and such Lender Party's Eurodollar Lending Office in
the case of a Eurodollar Rate Advance.
"APPLICABLE MARGIN" means (a) 2.20% per annum for Base Rate
Advances and (b) 3.20% per annum for Eurodollar Rate Advances;
provided, however, that, at all times on or after January 31, 2008,
during which insurance coverage for terrorism as set forth in Section
5.01(d) (assuming that such insurance coverage for terrorism were
available) is not in full force and effect, the Applicable Margin for
Base Rate Advances and Eurodollar Rate Advances shall be increased to
2.45% and 3.45%, respectively.
"APPROPRIATE LENDER" means, at any time, with respect to
either of the Term B Facilities, a Lender that has a Commitment with
respect to such Facility at such time.
"APPROVED FUND" means any Fund that is administered or managed
by (a) a Lender Party, (b) an Affiliate of a Lender Party or (c) an
entity or an Affiliate of an entity that administers or manages a
Lender Party.
"ASSIGNMENT AND ACCEPTANCE" means an assignment and acceptance
entered into by a Lender Party and an Eligible Assignee (with the
consent of any party whose consent is required by Section 9.07 or the
definition of "ELIGIBLE ASSIGNEE"), and accepted by the Administrative
Agent, in accordance with Section 9.07 and in substantially the form of
EXHIBIT C hereto or any other form approved by the Administrative
Agent.
"ASSIGNMENTS OF LEASES AND RENTS" means those certain
assignments of leases and rents, each dated on the date hereof,
corresponding to the real property to which each of the Mortgages
relate.
"BB" means Xxxx Bank, S.S.B., in its capacity as one of the
Initial Lenders.
"BBN" means Xxxx Bank Nevada, one of the Initial Lenders.
"BANKRUPTCY CODE" means Title 11, U.S. Code.
"BANKRUPTCY LAW" means the Bankruptcy Code, or any similar
foreign, federal or state law for the relief of debtors.
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"BASE RATE" means a fluctuating interest rate per annum in
effect from time to time, which rate per annum shall at all times be
equal to the highest of:
(a) the rate of interest published by the Wall Street Journal,
from time to time, as the "prime rate";
(b) one-half of one percent (1/2 of 1%) per annum above the
Federal Funds Rate; and
(c) four percent (4%) per annum.
"BASE RATE ADVANCE" means an Advance that bears interest as
provided in Section 2.07(a)(i).
"XXXX BANK" means Xxxx Bank, S.S.B., a savings bank organized
under the laws of the State of Texas.
"BORROWER" has the meaning specified in the recital of parties
to this Agreement.
"BORROWER'S ACCOUNT" means the account of the Borrower
specified by the Borrower in writing to the Administrative Agent from
time to time.
"BORROWING" means a Term B-1 Borrowing or a Term B-2
Borrowing.
"BUDGET" has the meaning specified in Section 4.01(aa).
"BUSINESS DAY" means a day of the year on which banks are not
required or authorized by law to close in New York City and, if the
applicable Business Day relates to any Eurodollar Rate Advances, on
which dealings are carried on in the London interbank market.
"CAPITAL EXPENDITURES" means, for any Person for any period,
the sum of, without duplication, (a) all cash expenditures made,
directly or indirectly, by such Person or any of its Subsidiaries
during such period for equipment, fixed assets, real property or
improvements, or for replacements or substitutions therefor or
additions thereto, that have been or should be, in accordance with
GAAP, reflected as additions to property, plant or equipment on a
Consolidated balance sheet of such Person plus (b) the aggregate
principal amount of all Debt (including Obligations under Capitalized
Leases) assumed or incurred in connection with any such expenditures.
For purposes of this definition, the purchase price of equipment that
is purchased simultaneously with the trade in of existing equipment or
with insurance proceeds shall be included in Capital Expenditures only
to the extent of the gross amount of such purchase price less the
credit granted by the seller of such equipment for the equipment being
traded in at such time or the amount of such proceeds, as the case may
be.
"CAPITAL STOCK" means (a) in the case of a corporation,
corporate stock; (b) in the case of an association or business entity,
any and all shares, interests, participations, rights or other
equivalents (however designated) of corporate stock; (c) in the case of
a partnership or limited liability company, partnership or membership
interests (whether general or limited); and (d) any other interest or
participation that confers on a Person the right to receive a share of
the profits and losses of, or distributions of assets of, the issuing
Person.
"CAPITALIZED LEASES" means all leases that have been or should
be, in accordance with GAAP, recorded as capitalized leases.
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"CARRYOVER AMOUNT" means a Carryover Project Capex Amount, as
defined in Section 5.02(o).
"CASH EQUIVALENTS" means any of the following, to the extent
owned by the Borrower or any of its Subsidiaries free and clear of all
Liens other than Liens created under the Collateral Documents and
having a maturity of not greater than 180 days from the date of
acquisition thereof: (a) readily marketable direct obligations of the
Government of the United States or any agency or instrumentality
thereof or obligations unconditionally guaranteed by the full faith and
credit of the Government of the United States, (b) insured certificates
of deposit of or time deposits with any commercial bank that is a
Lender Party or a member of the Federal Reserve System, issues (or the
parent of which issues) commercial paper rated as described in clause
(c) below, is organized under the laws of the United States or any
State thereof and has combined capital and surplus of at least $1
billion or (c) commercial paper in an aggregate amount of no more than
$5,000,000 per issuer outstanding at any time, issued by any
corporation organized under the laws of any State of the United States
and rated at least "Prime-1" (or the then equivalent grade) by Xxxxx'x
or "A-1" (or the then equivalent grade) by S&P or (d) Investments,
classified in accordance with generally accepted accounting principles
as Current Assets of the Borrower or any of its Subsidiaries, in money
market investment programs registered under the Investment Company Act
of 1940, as amended, which are administered by financial institutions
that have the highest rating obtainable from either Xxxxx'x or S&P, and
the portfolios of which are limited solely to Investments of the
amount, character, quality and maturity described in clauses (a), (b)
and (c) of this definition.
"CASINO PROPERTY" means, (a) the hotel and complex currently
known as the "Xxxxx Plaza Hotel and Casino" in Atlantic City, New
Jersey, (b) the hotel and complex currently known as the "Xxxxx Xxxxxx
Hotel Casino" in Atlantic City, New Jersey, (c) the hotel and complex
currently known as the "Xxxxx Xxx Xxxxx Casino Resort" in Atlantic
City, New Jersey and (d) each future hotel and complex owned by the
Borrower or any of its Subsidiaries (other than its Unrestricted
Subsidiaries).
"CERCLA" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended from time to time.
"CERCLIS" means the Comprehensive Environmental Response,
Compensation and Liability Information System maintained by the U.S.
Environmental Protection Agency.
"CFC" means an entity that is a controlled foreign corporation
under Section 957 of the Internal Revenue Code.
"CHANGE OF CONTROL" means the occurrence of any of the
following: (a) any Person or two or more Persons acting in concert
shall have acquired beneficial ownership (within the meaning of Rule
13d-3 of the Securities and Exchange Commission under the Securities
Exchange Act of 1934), directly or indirectly, of Voting Interests of
the General Partner (or other securities convertible into such Voting
Interests) representing 51% or more of the combined voting power of all
Voting Interests of the General Partner; (b) during any period of up to
24 consecutive months, commencing before or after the date of this
Agreement, Continuing Directors shall cease for any reason to
constitute a majority of the board of directors of the General Partner;
(c) any Person or two or more Persons acting in concert shall have
acquired by contract or otherwise the power to exercise, directly or
indirectly, a controlling influence over the management or policies of
the General Partner (or other securities convertible into such Voting
Page 4
Interests) representing 51% or more of the combined voting power of all
Voting Interests of the General Partner; (d) the General Partner shall
cease to directly own all of the Equity Interests in TCI 2; or (e) the
General Partner shall cease to be the sole general partner of the
Borrower.
"CLOSING FEE" has the meaning specified in Section 2.08(a).
"COLLATERAL" means all "Collateral" and "Mortgaged Property"
referred to in the Collateral Documents and all other property that is
or is intended to be subject to any Lien in favor of the Collateral
Agent for the benefit of the Secured Parties.
"COLLATERAL ACCOUNT" has the meaning specified in the Security
Agreement.
"COLLATERAL AGENT" has the meaning specified in the recital of
parties to this Agreement.
"COLLATERAL AGENT'S OFFICE" means, with respect to the
Collateral Agent or any successor Collateral Agent, the office of such
Agent as such Agent may from time to time specify to the Borrower and
the Administrative Agent.
"COLLATERAL DOCUMENTS" means the Security Agreement, the
Mortgages, the Assignments of Leases and Rents, the Intellectual
Property Security Agreement, the Consents and Agreements, each of the
collateral documents, instruments and agreements delivered pursuant to
Section 5.01(j), and each other agreement that creates or purports to
create a Lien in favor of the Collateral Agent for the benefit of the
Secured Parties.
"COMMITMENT" means a Term B Commitment.
"COMPENSATION COMMITTEE" means the compensation committee of
the board of directors of the General Partner.
"CONFIDENTIAL INFORMATION" means information that any Loan
Party furnishes to any Agent or any Lender Party in a writing
designated as confidential, but does not include any such information
that is or becomes generally available to the public or that is or
becomes available to such Agent or such Lender Party from a source
other than the Loan Parties that is not, to the best of such Agent's or
such Lender Party's knowledge, acting in violation of a confidentiality
agreement with a Loan Party.
"CONSENTS AND AGREEMENTS" means (a) the Consent and Agreement,
dated as of December 21, 2007, executed by Xxxxxx X. Xxxxx, the
Collateral Agent and the Borrower pursuant to which Xx. Xxxxx, among
other things, consents to the assignment by the Borrower to the
Collateral Agent of all rights of the Borrower under the Trademark
License Agreement and (b) the Consent and Agreement, dated as of
December 21, 2007, executed by Xxxxxx X. Xxxxx, the Collateral Agent
and the Borrower pursuant to which Xx. Xxxxx, among other things,
consents to the assignment by the Borrower to the Collateral Agent of
all rights of the Borrower under the Trademark Security Agreement.
"CONSOLIDATED" refers to the consolidation of accounts in
accordance with GAAP.
"CONSTRUCTION CONTRACTS" means the construction contracts
entered into by any Loan Party relating to the construction of the New
Tower and which are described on Schedule IV attached hereto.
Page 5
"CONSTRUCTION SCHEDULE" has the meaning specified in Section
4.01(aa).
"CONTINUING DIRECTORS" means the directors of the Borrower on
the Effective Date and each other director if, in each case, such other
director's nomination for election to the board of directors of the
Borrower is recommended by at least a majority of the then Continuing
Directors.
"CONTRIBUTION AGREEMENT" means an agreement, in form and
substance satisfactory to Administrative Agent, executed by and among
the Loan Parties relating to their respective contribution rights and
obligations, as among themselves, under the Loan Documents.
"CONVERSION," "CONVERT" and "CONVERTED" each refer to a
conversion of Advances of one Type into Advances of the other Type
pursuant to Section 2.09 or 2.10.
"CURRENT ASSETS" of any Person means all assets of such Person
that would, in accordance with GAAP, be classified as current assets of
a company conducting a business the same as or similar to that of such
Person, after deducting adequate reserves in each case in which a
reserve is proper in accordance with GAAP.
"DEBT" of any Person means, without duplication, (a) all
indebtedness of such Person for borrowed money, (b) all Obligations of
such Person for the deferred purchase price of property or services
(other than trade payables not overdue by more than 90 days incurred in
the ordinary course of such Person's business), (c) all Obligations of
such Person evidenced by notes, bonds, debentures or other similar
instruments, (d) all Obligations of such Person created or arising
under any conditional sale or other title retention agreement with
respect to property acquired by such Person (even though the rights and
remedies of the seller or lender under such agreement in the event of
default are limited to repossession or sale of such property), (e) all
Obligations of such Person as lessee under Capitalized Leases, (f) all
Obligations of such Person under acceptance, letter of credit or
similar facilities, (g) all Obligations of such Person to purchase,
redeem, retire, defease or otherwise make any payment in respect of any
Equity Interests in such Person or any other Person or any warrants,
rights or options to acquire such Equity Interests, valued, in the case
of Redeemable Preferred Interests, at the greater of its voluntary or
involuntary liquidation preference plus accrued and unpaid dividends,
(h) all Obligations of such Person in respect of Hedge Agreements,
valued at the Agreement Value thereof, (i) all Guarantee Obligations
and Synthetic Debt of such Person and (j) all indebtedness and other
payment Obligations referred to in clauses (a) through (i) above of
another Person secured by (or for which the holder of such Debt has an
existing right, contingent or otherwise, to be secured by) any Lien on
property (including, without limitation, accounts and contract rights)
owned by such Person, even though such Person has not assumed or become
liable for the payment of such indebtedness or other payment
Obligations.
"DEBT FOR BORROWED MONEY" of any Person means, at any date of
determination, the sum of (a) the balance sheet amount of all items
that, in accordance with GAAP, would be classified as indebtedness for
borrowed money or Capitalized Leases on a Consolidated balance sheet of
such Person at such date and (b) all Synthetic Debt of such Person at
such date.
"DEFAULT" means any Event of Default or any event that would
constitute an Event of Default but for the passage of time or the
requirement that notice be given or both.
"DEFAULT INTEREST" has the meaning specified in Section
2.07(b).
Page 6
"DEFAULTED ADVANCE" means, with respect to any Lender Party at
any time, the portion of any Advance required to be made by such Lender
Party to the Borrower pursuant to Section 2.01 or 2.02 at or prior to
such time that has not been made by such Lender Party or by the
Administrative Agent for the account of such Lender Party pursuant to
Section 2.02(e) as of such time. In the event that a portion of a
Defaulted Advance shall be deemed made pursuant to Section 2.15(a), the
remaining portion of such Defaulted Advance shall be considered a
Defaulted Advance originally required to be made pursuant to Section
2.01 on the same date as the Defaulted Advance so deemed made in part.
"DEFAULTED AMOUNT" means, with respect to any Lender Party at
any time, any amount required to be paid by such Lender Party to any
Agent or any other Lender Party hereunder or under any other Loan
Document at or prior to such time that has not been so paid as of such
time, including, without limitation, any amount required to be paid by
such Lender Party to (a) the Administrative Agent pursuant to Section
2.02(e) to reimburse the Administrative Agent for the amount of any
Advance made by the Administrative Agent for the account of such Lender
Party, (b) any other Lender Party pursuant to Section 2.13 to purchase
any participation in Advances owing to such other Lender Party and (c)
any Agent pursuant to Section 7.05 to reimburse such Agent for such
Lender Party's ratable share of any amount required to be paid by the
Lender Parties to such Agent as provided therein. In the event that a
portion of a Defaulted Amount shall be deemed paid pursuant to Section
2.15(b), the remaining portion of such Defaulted Amount shall be
considered a Defaulted Amount originally required to be paid hereunder
or under any other Loan Document on the same date as the Defaulted
Amount so deemed paid in part.
"DEFAULTING LENDER" means, at any time, any Lender Party that,
at such time, (a) owes a Defaulted Advance or a Defaulted Amount or (b)
shall take any action or be the subject of any action or proceeding of
a type described in Section 6.01(f).
"DISCLOSED LITIGATION" has the meaning specified in Section
4.01(f).
"DOMESTIC LENDING OFFICE" means, with respect to any Lender
Party, the office of such Lender Party specified as its "Domestic
Lending Office" opposite its name on Schedule I hereto or in the
Assignment and Acceptance pursuant to which it became a Lender Party,
as the case may be, or such other office of such Lender Party as such
Lender Party may from time to time specify to the Borrower and the
Administrative Agent.
"EFFECTIVE DATE" has the meaning specified in Section 3.01.
"ELIGIBLE ASSIGNEE" means with respect to any Facility, (a) a
Lender Party; (b) an Affiliate of a Lender Party; (c) an Approved Fund;
and (d) any other Person (other than an individual) approved by (i) the
Administrative Agent (each such approval not to be unreasonably
withheld or delayed), and (ii) (A) unless an Event of Default has
occurred and is continuing and (B) except in the case of an assignment
in connection with the initial syndication of the Advances, the
Borrower (each such approval not to be unreasonably withheld or
delayed); provided, however, that neither any Loan Party nor any
Affiliate of a Loan Party shall qualify as an Eligible Assignee under
this definition.
"ELIGIBLE TRANSFEREE" means and includes a Person that is (a)
a commercial bank, financial institution or other institutional
"accredited investor" (as defined in Regulation D of the Securities
Act) and (b) (i) a retirement fund administered by a public agency for
the exclusive benefit of federal, state or local public employees; (ii)
an investment company registered under the Investment Company Act of
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1940 (15 U.S.C. ss. 80b-1 et seq.); (iii) a collective investment trust
organized by banks under Part Nine of the Rules of the Comptroller of
the Currency; (iv) a closed end investment trust; (v) a chartered or
licensed life insurance company or property and casualty insurance
company; (vi) a banking and other chartered or licensed lending
institution; (vii) an investment adviser registered under the
Investment Advisers Act of 1940 (15 U.S. ss. 80b-1 et seq.); or (viii)
such other Person as the Gaming Authorities may determine for reasons
in accordance with the policies of Gaming Laws.
"ENVIRONMENTAL ACTION" means any action, suit, demand, written
demand letter, claim, written notice of non-compliance or violation,
written notice of liability or potential liability, investigation,
proceeding, consent order or consent agreement relating in any way to
any Environmental Law, any Environmental Permit or Hazardous Material
or arising from alleged injury or threat to health, safety or the
environment, including, without limitation, (a) by any governmental or
regulatory authority for enforcement, cleanup, removal, response,
remedial or other actions or damages and (b) by any governmental or
regulatory authority or third party for damages, contribution,
indemnification, cost recovery, compensation or injunctive relief.
"ENVIRONMENTAL LAW" means any applicable Federal, state, local
or foreign statute, law, ordinance, rule, regulation, code, order,
writ, judgment, injunction, decree or judicial or enforceable agency
interpretation, legally enforceable policy or guidance relating to
pollution or protection of the environment, health, safety or natural
resources, including, without limitation, those relating to the use,
handling, transportation, treatment, storage, disposal, release or
discharge of Hazardous Materials.
"ENVIRONMENTAL PERMIT" means any permit, approval,
identification number, license or other authorization required under
any Environmental Law.
"EQUITY INTERESTS" means, with respect to any Person, shares
of capital stock of (or other ownership or profit interests in) such
Person, warrants, options or other rights for the purchase or other
acquisition from such Person of shares of capital stock of (or other
ownership or profit interests in) such Person, securities convertible
into or exchangeable for shares of capital stock of (or other ownership
or profit interests in) such Person or warrants, rights or options for
the purchase or other acquisition from such Person of such shares (or
such other interests), and other ownership or profit interests in such
Person (including, without limitation, partnership, member or trust
interests therein), whether voting or nonvoting, and whether or not
such shares, warrants, options, rights or other interests are
authorized or otherwise existing on any date of determination.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
"ERISA AFFILIATE" means any Person that for purposes of Title
IV of ERISA is a member of the controlled group of any Loan Party, or
under common control with any Loan Party, within the meaning of Section
414 of the Internal Revenue Code.
"ERISA EVENT" means (a)(i) the occurrence of a reportable
event, within the meaning of Section 4043 of ERISA, with respect to any
Plan unless the 30-day notice requirement with respect to such event
has been waived by the PBGC or (ii) the requirements of Section 4043(b)
of ERISA apply with respect to a contributing sponsor, as defined in
Section 4001(a)(13) of ERISA, of a Plan, and an event described in
paragraph (9), (10), (11), (12) or (13) of Section 4043(c) of ERISA is
reasonably expected to occur with respect to such Plan within the
following 30 days; (b) the application for a minimum funding waiver
Page 8
with respect to a Plan; (c) the provision by the administrator of any
Plan of a notice of intent to terminate such Plan, pursuant to Section
4041(a)(2) of ERISA (including any such notice with respect to a plan
amendment referred to in Section 4041(e) of ERISA); (d) the cessation
of operations at a facility of any Loan Party or any ERISA Affiliate in
the circumstances described in Section 4062(e) of ERISA; (e) the
withdrawal by any Loan Party or any ERISA Affiliate from a Multiple
Employer Plan during a plan year for which it was a substantial
employer, as defined in Section 4001(a)(2) of ERISA; (f) the conditions
for imposition of a lien under Section 302(f) of ERISA shall have been
met with respect to any Plan; (g) the adoption of an amendment to a
Plan requiring the provision of security to such Plan pursuant to
Section 307 of ERISA; or (h) the institution by the PBGC of proceedings
to terminate a Plan pursuant to Section 4042 of ERISA, or the
occurrence of any event or condition described in Section 4042 of ERISA
that could reasonably be expected to constitute grounds for the
termination of, or the appointment of a trustee to administer, such
Plan.
"ESCROW BANK" has the meaning specified in Section 2.15(c).
"EUROCURRENCY LIABILITIES" has the meaning specified in
Regulation D of the Board of Governors of the Federal Reserve System,
as in effect from time to time.
"EURODOLLAR LENDING OFFICE" means, with respect to any Lender
Party, the office of such Lender Party specified as its "Eurodollar
Lending Office" opposite its name on Schedule I hereto or in the
Assignment and Acceptance pursuant to which it became a Lender Party
(or, if no such office is specified, its Domestic Lending Office), or
such other office of such Lender Party as such Lender Party may from
time to time specify to the Borrower and the Administrative Agent.
"EURODOLLAR RATE" means, for any Interest Period for all
Eurodollar Rate Advances comprising part of the same Borrowing, an
interest rate per annum equal to the greater of (a) three percent (3%)
per annum or (b) the rate per annum obtained by dividing (i) the rate
per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%)
appearing on Page 3750 of the Dow Xxxxx Market Service (or any
successor page as may replace such page on such service for the purpose
of displaying the rates at which dollar deposits are offered by leading
banks in the London interbank deposit market) as the London interbank
offered rate for deposits in U.S. dollars at 11:00 A.M. (London time)
two Business Days before the first day of such Interest Period for a
period equal to such Interest Period (provided that, if for any reason
such rate is not available, the rate per annum for purposes of this
clause (i) shall mean, for any Interest Period for all Eurodollar Rate
Advances comprising part of the same Borrowing, the rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) appearing
on Page 3750 of MoneyLine Telerate as the London interbank offered rate
for deposits in Dollars at approximately 11:00 A.M. (London time) two
Business Days prior to the first day of such Interest Period for a term
comparable to such Interest Period; provided, however, if more than one
rate is specified on such MoneyLine Telerate page, the applicable rate
shall be the arithmetic mean of all such rates) by (ii) a percentage
equal to 100% minus the Eurodollar Rate Reserve Percentage for such
Interest Period. In the event that both of such rates referred to in
clause (i) of the preceding sentence are unavailable for any reason,
the rate referred to in such clause (i) shall be determined by the
Administrative Agent by reference to another comparable service, or as
otherwise determined by the Administrative Agent, in its reasonable
discretion.
"EURODOLLAR RATE ADVANCE" means an Advance that bears interest
as provided in Section 2.07(a)(ii).
Page 9
"EURODOLLAR RATE RESERVE PERCENTAGE" means, for any Interest
Period for all Eurodollar Rate Advances comprising part of the same
Borrowing, the reserve percentage applicable two Business Days before
the first day of such Interest Period under regulations issued from
time to time by the Board of Governors of the Federal Reserve System
(or any successor) for determining the maximum reserve requirement
(including, without limitation, any emergency, supplemental or other
marginal reserve requirement) for a member bank of the Federal Reserve
System in New York City with respect to liabilities or assets
consisting of or including Eurocurrency Liabilities (or with respect to
any other category of liabilities that includes deposits by reference
to which the interest rate on Eurodollar Rate Advances is determined)
having a term equal to such Interest Period.
"EVENTS OF DEFAULT" has the meaning specified in Section 6.01.
"EXCLUDED PROPERTIES" shall mean those real estate assets
identified as "Excluded Properties" on Schedule 4.01(v).
"EXISTING CREDIT AGREEMENT" means that certain Credit
Agreement, dated as of May 20, 2005, by and among the Borrower, the
General Partner, the initial lenders named therein, Xxxxxx Xxxxxxx &
Co. Incorporated, as collateral agent, Xxxxxx Xxxxxxx Senior Funding,
Inc., as administrative agent, UBS Securities LLC, as syndication
agent, Xxxxxxx Xxxxx Capital, a division of Xxxxxxx Xxxxx Business
Financial Services, Inc., and Xxxxx Fargo Foothill, Inc., as
documentation agents, and Xxxxxx Xxxxxxx Senior Funding, Inc. and UBS
Securities, LLC, as joint lead arrangers and joint book-runners, as
amended.
"EXISTING DEBT" means all Debt under the Existing Credit
Agreement and the New Notes and all other Debt of any Loan Party or any
of its Subsidiaries outstanding immediately before the occurrence of
the Effective Date.
"EXISTING NOTES" means the "Notes" as such term is defined in
the Existing Credit Agreement.
"EXTRAORDINARY RECEIPT" means any cash received by or paid to
or for the account of any Person not in the ordinary course of
business, including, without limitation, tax refunds, pension plan
reversions, proceeds of insurance (including, without limitation, any
key man life insurance but excluding proceeds of business interruption
insurance to the extent such proceeds constitute compensation for lost
earnings), condemnation awards (and payments in lieu thereof),
indemnity payments and any purchase price adjustment received in
connection with any purchase agreement; provided, however, that an
Extraordinary Receipt shall not include cash receipts received from
proceeds of insurance, condemnation awards (or payments in lieu
thereof) or indemnity payments to the extent that such proceeds, awards
or payments are received by any Person in respect of any third party
claim against such Person and applied to pay (or to reimburse such
Person for its prior payment of) such claim and the costs and expenses
of such Person with respect thereto.
"FACILITY" means the Term B-1 Facility or the Term B-2
Facility.
"FEDERAL FUNDS RATE" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to the
weighted average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal funds
brokers, as published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal Reserve Bank
Page 10
of New York, or, if such rate is not so published for any day that is a
Business Day, the average of the quotations for such day for such
transactions received by the Administrative Agent from three Federal
funds brokers of recognized standing selected by it.
"FISCAL YEAR" means a fiscal year of the Borrower and its
Consolidated Subsidiaries ending on December 31 in any calendar year.
"FUND" means any Person (other than an individual) that is or
will be engaged in making, purchasing, holding or otherwise investing
in commercial loans and similar extensions of credit in the ordinary
course.
"FUNDED DEBT" of any Person means Debt in respect of the
Advances, in the case of the Borrower, and all other Debt of such
Person that by its terms matures more than one year after the date of
determination or matures within one year from such date but is
renewable or extendible, at the option of such Person, to a date more
than one year after such date or arises under a revolving credit or
similar agreement that obligates the lender or lenders to extend credit
during a period of more than one year after such date.
"GAAP" has the meaning specified in Section 1.03.
"GAMING AUTHORITIES" means any agency, authority, board,
bureau, commission, department, office or instrumentality of any nature
whatsoever of the United States Federal government, any foreign
government, any state, province or city or other political subdivision
or otherwise, whether now or hereafter existing, or any officer or
official thereof, including, without limitation, the New Jersey Casino
Control Commission, the New Jersey Division of Gaming Enforcement and
any other agency, in each case, with authority to regulate any gaming
operation (or proposed gaming operation) owned, managed or operated by
the Loan Parties or any of their Subsidiaries.
"GAMING FACILITY" means the casinos owned or operated by the
Loan Parties and all other real property owned by a Loan Party which is
directly ancillary thereto or used in connection therewith, including
any hotels, resorts, card clubs, theaters, parking facilities,
recreational vehicle parks, timeshare operations, retail shops,
restaurants, other buildings, land, golf courses and other recreation
and entertainment facilities, marinas, vessels, barges, ships and
related equipment.
"GAMING LAWS" means all laws and regulations pursuant to which
any Gaming Authority possesses regulatory, licensing or permit
authority over gambling, gaming or casino activities conducted by the
Loan Parties.
"GAMING LICENSES" means every license, franchise or other
authorization required to own, lease, operate or otherwise conduct or
manage gambling, gaming or casino activities in any state or
jurisdiction where the Loan Parties conduct business, and any
applicable liquor licenses.
"GENERAL PARTNER" has the meaning specified in the Preliminary
Statements.
"GOVERNMENTAL AUTHORITY" means any nation or government, any
state, province, city, municipal entity or other political subdivision
thereof, and any governmental, executive, legislative, judicial,
administrative or regulatory agency, department, authority,
instrumentality, commission, board, bureau or similar body, whether
Page 00
xxxxxxx, xxxxx, xxxxxxxxxx, xxxxxxxxxxx, local or foreign.
"GOVERNMENTAL AUTHORIZATION" means any authorization,
approval, consent, franchise, license, covenant, order, ruling, permit,
certification, exemption, notice, declaration or similar right,
undertaking or other action of, to or by, or any filing, qualification
or registration with, any Governmental Authority.
"GUARANTEE OBLIGATION" means, with respect to any Person, any
Obligation or arrangement of such Person to guarantee or intended to
guarantee any Debt ("PRIMARY OBLIGATIONS") of any other Person (the
"PRIMARY obligor") in any manner, whether directly or indirectly,
including, without limitation, (a) the direct or indirect guarantee,
endorsement (other than for collection or deposit in the ordinary
course of business), co-making, discounting with recourse or sale with
recourse by such Person of the Obligation of a primary obligor, (b) the
Obligation to make take-or-pay or similar payments, if required,
regardless of nonperformance by any other party or parties to an
agreement or (c) any Obligation of such Person, whether or not
contingent, (i) to purchase any such primary obligation or any property
constituting direct or indirect security therefor, (ii) to advance or
supply funds (A) for the purchase or payment of any such primary
obligation or (B) to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency of
the primary obligor, (iii) to purchase property, assets, securities or
services primarily for the purpose of assuring the owner of any such
primary obligation of the ability of the primary obligor to make
payment of such primary obligation or (iv) otherwise to assure or hold
harmless the holder of such primary obligation against loss in respect
thereof. The amount of any Guarantee Obligation shall be deemed to be
an amount equal to the stated or determinable amount of the primary
obligation in respect of which such Guarantee Obligation is made (or,
if less, the maximum amount of such primary obligation for which such
Person may be liable pursuant to the terms of the instrument evidencing
such Guarantee Obligation) or, if not stated or determinable, the
maximum reasonably anticipated liability in respect thereof (assuming
such Person is required to perform thereunder), as determined by such
Person in good faith.
"GUARANTEED OBLIGATIONS" has the meaning specified in Section
8.01.
"GUARANTORS" means the General Partner and the Subsidiary
Guarantors.
"GUARANTY" means the Parent Guaranty and the Subsidiary
Guaranty.
"GUARANTY SUPPLEMENT" has the meaning specified in Section
8.05.
"HAZARDOUS MATERIALS" means (a) petroleum or petroleum
products, by-products or breakdown products, radioactive materials,
asbestos-containing materials, polychlorinated biphenyls and radon gas
and (b) any other chemicals, materials or substances designated,
classified or regulated as hazardous or toxic or as a pollutant or
contaminant under any Environmental Law.
"HEDGE AGREEMENTS" means interest rate swap, cap or collar
agreements, interest rate future or option contracts, currency swap
agreements, currency future or option contracts and other hedging
agreements.
"INDEMNIFIED PARTY" has the meaning specified in Section
9.04(b).
Page 12
"INITIAL EXTENSION OF CREDIT" means the initial Borrowing
hereunder.
"INITIAL LENDER PARTIES" means the Initial Lenders.
"INITIAL LENDERS" means the banks, financial institutions and
other institutional lenders listed on the signature pages hereof as the
Initial Lenders.
"INSUFFICIENCY" means, with respect to any Plan, the amount,
if any, of its unfunded benefit liabilities, as defined in Section
4001(a)(18) of ERISA.
"INTELLECTUAL PROPERTY" has the meaning specified in Section
1(b) of the Security Agreement.
"INTELLECTUAL PROPERTY SECURITY AGREEMENT" has the meaning
specified in Section 3.01(a)(ii)(G).
"INTERCREDITOR AGREEMENT" means the Amended and Restated
Intercreditor Agreement dated as of December 21, 2007 among the
Borrower, the Collateral Agent, as first lien collateral agent for the
Secured Parties, and U.S. Bank National Association, as second lien
collateral agent for the holders of the New Notes.
"INTEREST PERIOD" means, for each Eurodollar Rate Advance
comprising part of the same Borrowing, the period commencing on the
date of such Eurodollar Rate Advance or the date of the Conversion of
any Base Rate Advance into such Eurodollar Rate Advance, and, in all
cases subject to the requirements of Section 2.07(a)(ii), ending on the
corresponding day of the third month thereafter and, thereafter, each
subsequent period commencing on the last day of the immediately
preceding Interest Period and, in all cases subject to the requirements
of Section 2.07(a)(ii), ending on the corresponding day of the third
month thereafter. The duration of each such Interest Period shall be
three months; provided, however, that:
(a) the Borrower may not select any Interest Period with
respect to any Eurodollar Rate Advance under a Facility that ends after
any principal repayment installment date for such Facility unless,
after giving effect to such selection, the aggregate principal amount
of Base Rate Advances and of Eurodollar Rate Advances having Interest
Periods that end on or prior to such principal repayment installment
date for such Facility shall be at least equal to the aggregate
principal amount of Advances under such Facility due and payable on or
prior to such date;
(b) Interest Periods commencing on the same date for
Eurodollar Rate Advances comprising part of the same Borrowing shall be
of the same duration;
(c) whenever the last day of any Interest Period would
otherwise occur on a day other than a Business Day, the last day of
such Interest Period shall be extended to occur on the next succeeding
Business Day; provided, however, that, if such extension would cause
the last day of such Interest Period to occur in the next following
calendar month, the last day of such Interest Period shall occur on the
next preceding Business Day;
(d) whenever the first day of any Interest Period occurs on a
day of an initial calendar month for which there is no numerically
corresponding day in the third calendar month thereafter, such Interest
Period shall end on the last Business Day of such succeeding calendar
month;
Page 13
(e) the initial Interest Period for each Term B-2 Advance
shall commence on the day such Term B-2 Advance is made and shall end
on the last day of the then current Interest Period for the Term B-1
Advance; and
(f) all Interest Periods shall otherwise comply with the
requirements of Section 2.07(a)(ii).
"INTERNAL REVENUE CODE" means the Internal Revenue Code of
1986, as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
"INVENTORY" means all Inventory referred to in Section 1(b) of
the Security Agreement.
"INVESTMENT" in any Person means any loan or advance to such
Person, any purchase or other acquisition of any Equity Interests or
Debt or the assets comprising a division or business unit or a
substantial part or all of the business of such Person, any capital
contribution to such Person or any other direct or indirect investment
in such Person, including, without limitation, any acquisition by way
of a merger or consolidation (or similar transaction) and any
arrangement pursuant to which the investor incurs Debt of the types
referred to in clause (i) or (j) of the definition of "DEBT" in respect
of such Person.
"LENDER PARTY" means any Lender.
"LENDERS" means the Initial Lenders and each Person that shall
become a Lender hereunder pursuant to Section 9.07 for so long as such
Initial Lender or Person, as the case may be, shall be a party to this
Agreement.
"LICENSE REVOCATION" shall mean the loss, revocation, failure
to renew, termination or suspension of any Gaming License issued by any
Gaming Authority covering any Gaming Facility.
"LIEN" means any mortgage, deed of trust, lien, security
interest or other charge or encumbrance of any kind, or any other type
of preferential arrangement, including, without limitation, the lien or
retained security title of a conditional vendor and any easement, right
of way or other encumbrance on title to real property.
"LIQUOR LAWS" has the meaning specified in Section 9.15(a).
"LOAN DOCUMENTS" means (a) this Agreement, (b) the Notes, (c)
the Guaranty, (d) the Collateral Documents, (e) the Intercreditor
Agreement, (f) the Contribution Agreement, and (g) the Postclosing
Agreement, in each case as amended.
"LOAN PARTIES" means the Borrower and the Guarantors.
"MAINTENANCE CAPITAL EXPENDITURES" means Capital Expenditures
other than Project Capital Expenditures.
"MARGIN STOCK" has the meaning specified in Regulation U.
"MATERIAL ADVERSE CHANGE" means any material adverse change in
the business, condition (financial or otherwise), operations,
performance or properties of the General Partner and its Subsidiaries,
taken as a whole.
Page 14
"MATERIAL ADVERSE EFFECT" means a material adverse effect on
(a) the business, condition (financial or otherwise), operations,
performance or properties of the General Partner and its Subsidiaries,
taken as a whole, (b) the ability of the Loan Parties to perform their
Obligations under the Loan Documents or (c) the rights and remedies of
any Agent or any Lender Party under any Loan Document.
"MOODY'S" means Xxxxx'x Investor Services, Inc.
"MORTGAGE POLICIES" has the meaning specified in Section
3.01(a)(iv)(B).
"MORTGAGES" has the meaning specified in Section 3.01(a)(iv).
"MULTIEMPLOYER PLAN" means a multiemployer plan, as defined in
Section 4001(a)(3) of ERISA, to which any Loan Party or any ERISA
Affiliate is making or accruing an obligation to make contributions, or
has within any of the preceding five plan years made or accrued an
obligation to make contributions.
"MULTIPLE EMPLOYER PLAN" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of any Loan Party or any ERISA Affiliate and at least one
Person other than the Loan Parties and the ERISA Affiliates or (b) was
so maintained and in respect of which any Loan Party or any ERISA
Affiliate could have liability under Section 4064 or 4069 of ERISA in
the event such plan has been or were to be terminated.
"NET CASH PROCEEDS" means:
(a) with respect to any sale, lease, transfer or other
disposition of any asset of the Borrower or any of its Subsidiaries
(other than any sale, lease, transfer or other disposition of assets
(x) by any Unrestricted Subsidiary or (y) pursuant to clauses (i)
through (ix) of Section 5.02(e)), the excess, if any, of (i) the sum of
cash and Cash Equivalents received in connection with such sale, lease,
transfer or other disposition (including any cash or Cash Equivalents
received by way of deferred payment pursuant to, or by monetization of,
a note receivable or otherwise, but only as and when so received) over
(ii) the sum of (A) the principal amount of any Debt (other than Debt
under the Loan Documents) that (x) is secured by such asset and that is
required to be repaid or (y) is Debt of the Subsidiary that is the
subject of such sale, lease, transfer or disposition and repaid, in
each case in connection with such sale, lease, transfer or other
disposition thereof, (B) the reasonable and customary out-of-pocket
costs, fees, commissions, premiums and expenses incurred by the
Borrower or its Subsidiaries, (C) federal, state, provincial, foreign
and local taxes reasonably estimated (on a Consolidated basis) to be
actually payable within the current or the immediately succeeding tax
year as a result of any gain recognized in connection therewith
(including any Tax Distributions required to be paid in connection
therewith), and (D) a reasonable reserve for any purchase price
adjustment or any indemnification payments (fixed and contingent)
attributable to the seller's obligations to the purchaser undertaken by
the Borrower or any of its Subsidiaries in connection with such sale,
lease, transfer or other disposition (but excluding any purchase price
adjustment or any indemnity which, by its terms, will not under any
circumstances be made prior to the Term B Maturity Date); provided,
however, that Net Cash Proceeds shall not include any such amounts to
the extent such amounts are (1) reinvested in the business of the
Borrower and its Subsidiaries within 365 days after the date of receipt
thereof as permitted by Section 2.06(b)(ii) hereof or (2) reinvested in
Page 15
Casino Property of the applicable Loan Party within 365 days after the
date of receipt thereof as permitted by Section 5.02(e)(xi) hereof;
(b) with respect to the incurrence or issuance of any Debt by
the Borrower or any of its Subsidiaries (other than Debt incurred or
issued (x) by any Unrestricted Subsidiary or (y) pursuant to Section
5.02(b), but including Debt under clause (xi) thereof to the extent
such Debt is not used to make (A) Investments pursuant to Section
5.02(f) within 60 days following the incurrence thereof or (B) Capital
Expenditures pursuant to Section 5.02(o) that are committed to be made
within 365 days following the incurrence of such Debt pursuant to a
plan disclosed to the Lenders in reasonable detail within 60 days
following the incurrence of such Debt), an amount equal to the excess
of (i) the sum of the cash and Cash Equivalents received in connection
with such incurrence or issuance over (ii) the underwriting discounts
and commissions or other similar payments, and other out-of-pocket
costs, fees, commissions, premiums and expenses incurred by the
Borrower or any of its Subsidiaries in connection with such incurrence
or issuance to the extent such amounts were not deducted in determining
the amount referred to in clause (i);
(c) with respect to the sale or issuance of any Equity
Interests (including, without limitation, the receipt of any capital
contribution) by the Borrower or any of its Subsidiaries (other than
its Unrestricted Subsidiaries), an amount equal to the excess of (i)
the sum of the cash and Cash Equivalents received in connection with
such sale or issuance over (ii) the underwriting discounts and
commissions or similar payments, and other out-of-pocket costs, fees,
commissions, premiums and expenses, incurred by the Borrower or any of
its Subsidiaries in connection with such sale or issuance to the extent
such amounts were not deducted in determining the amount referred to in
clause (i), such excess amount to exclude any portion thereof that is
utilized to make Investments pursuant to Section 5.02(f)(vii); and
(d) with respect to any Extraordinary Receipt received by the
Borrower or any of its Subsidiaries (other than its Unrestricted
Subsidiaries) that is not otherwise included in clauses (a), (b) or (c)
above, an amount equal to the excess, if any, of (i) the sum of the
cash and Cash Equivalents received in connection therewith over (ii)
the sum of (A) premiums and expenses incurred by the Borrower or its
Subsidiaries and (B) federal, state, provincial, foreign and local
taxes reasonably estimated (on a Consolidated basis) to be actually
payable within the current or the immediately succeeding tax year as a
result of any gain recognized in connection therewith (including any
Tax Distributions required to be paid in connection therewith);
provided, however, that Net Cash Proceeds shall not include any such
amounts to the extent such amounts are (1) if the Extraordinary Receipt
in question is proceeds of casualty insurance, used to repair and/or
replace the damaged property or (2) as to all other Extraordinary
Receipts, reinvested in the business of the Borrower and its
Subsidiaries, in each case within 365 days after the date of receipt
thereof.
"NEW NOTES" means debt securities issued pursuant to the New
Notes Indenture.
"NEW NOTES INDENTURE" means the Indenture dated as of May 20,
2005, by and among the Borrower and Xxxxx Entertainment Resorts
Funding, Inc., a Delaware corporation, as issuers, the guarantors from
time to time party thereto, and U.S. Bank National Association, a
national banking association, as trustee.
Page 16
"NEW TOWER" means a new tower at the Xxxxx Xxx Mahal Casino
Resort in Atlantic City, New Jersey to be built substantially in
accordance with the Plans and Specifications and the Construction
Contracts.
"NON-CONSENTING LENDER" means, in the event that the Required
Lenders have agreed to any consent, waiver or amendment pursuant to
Section 9.01 that requires the consent of one or more Lenders in
addition to the Required Lenders, any Lender who is entitled to agree
to such consent, waiver or amendment but who does not so agree.
"NOTE" means a Term B Note.
"NOTICE OF BORROWING" has the meaning specified in Section
2.02(a).
"NPL" means the National Priorities List under CERCLA.
"OBLIGATION" means, with respect to any Person, any payment,
performance or other obligation of such Person of any kind, including,
without limitation, any liability of such Person on any claim, whether
or not the right of any creditor to payment in respect of such claim is
reduced to judgment, liquidated, unliquidated, fixed, contingent,
matured, disputed, undisputed, legal, equitable, secured or unsecured,
and whether or not such claim is discharged, stayed or otherwise
affected by any proceeding referred to in Section 6.01(f). Without
limiting the generality of the foregoing, the Obligations of any Loan
Party under the Loan Documents include (a) the obligation to pay
principal, interest, Prepayment Fee, charges, expenses, fees
(including, without limitation, commitment fees), attorneys' fees and
disbursements, indemnities and other amounts payable by such Loan Party
under any Loan Document and (b) the obligation of such Loan Party to
reimburse any amount in respect of any of the foregoing that any Lender
Party, in its sole discretion, may elect to pay or advance on behalf of
such Loan Party.
"OTHER TAXES" has the meaning specified in Section 2.12(b).
"PARENT GUARANTY" means the guaranty of the General Partner
set forth in Article VIII.
"PARTNERSHIP AGREEMENT" means the Fourth Amended and Restated
Agreement of Limited Partnership dated as of May 20, 2005, by and among
the General Partner, Xxxxxx X. Xxxxx, Xxxxx Casinos, Inc., a New Jersey
corporation and TCI 2.
"PATRIOT ACT" means the Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism Act of 2001, Pub. L. 107-56, signed into law October 26,2001.
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor).
"PERMIT" means any license (including, without limitation, any
Gaming License), franchise, authorization, statement of compliance,
certificate of operation, certificate of occupancy and permit required
for the lawful ownership, occupancy, operation and use of all or a
material portion of the Gaming Facilities (which may be temporary or
permanent) (including, without limitation, those required for the use
of the Gaming Facilities as a licensed casino facility).
"PERMITTED BUSINESS" means: (a) any line of business conducted
by the Borrower, the General Partner or any Subsidiary on the Effective
Date; (b) all businesses whether or not licensed by a Gaming Authority
Page 17
that are necessary for, incident to, useful to, arising out of,
supportive of or connected to the development, ownership or operation
of a gaming facility; (c) any casino and gaming activities (including,
without limitation, the development, ownership, operation or management
of casinos, casino hotels, riverboat casinos, slot machines, video
lottery terminals, racetracks, internet gaming or related activities);
or (d) any business that is a reasonable extension, development or
expansion of any of the foregoing.
"PERMITTED ENCUMBRANCES" has the meaning specified in the
Mortgages.
"PERMITTED LIENS" means such of the following as to which no
enforcement, collection, execution, levy or foreclosure proceeding
shall have been commenced (in each case, that is not being contested in
good faith and by proper proceedings or pursuant to this Agreement, is
not required to be contested and such enforcement, collection,
execution, levy or foreclosure proceeding could not, either
individually or in the aggregate, be reasonably expected to have a
Material Adverse Effect): (a) Liens for taxes, assessments and
governmental charges or levies to the extent not required to be paid
under Section 5.01(b); (b) Liens imposed by law, such as materialmen's,
mechanics', carriers', workmen's and repairmen's Liens and other
similar Liens arising in the ordinary course of business securing
obligations that either (i) (A) are not overdue for a period of more
than 60 days and (B) individually or together with all other Permitted
Liens outstanding on any date of determination do not materially
adversely affect the use of the property to which they relate or (ii)
are being contested in good faith and by proper proceedings, as to
which appropriate reserves are being maintained and each such Lien (A)
has not attached to such property, (B) has not become enforceable and
(C) is subject to a stay; (c) pledges or deposits in the ordinary
course of business to secure obligations under workers' compensation
laws or similar legislation or to secure public or statutory
obligations; (d) deposits to secure the performance of bids, trade
contracts and leases (other than Debt), statutory obligations, surety
bonds (other than bonds related to judgments or litigation),
performance bonds and other obligations of a like nature incurred in
the ordinary course of business; (e) Liens securing judgments (or the
payment of money not constituting an Event of Default under Section
6.01(g) or securing appeal or other surety bonds related to such
judgments); (f) easements, zoning restrictions, rights of way and other
encumbrances on title to real property that do not materially adversely
affect the use or value of such property for its present purposes; (g)
operating leases, subleases, licenses, occupancy agreements and
rights-of-use entered into by any Loan Party or any of their respective
Subsidiaries as a lessor or a similar capacity in the ordinary course
of business that do not materially and adversely affect the use of the
Properties encumbered thereby for its intended purpose; and (h)
Permitted Encumbrances.
"PERSON" means an individual, partnership, corporation
(including a business trust), limited liability company, joint stock
company, trust, unincorporated association, joint venture or other
entity, or a government or any political subdivision or agency thereof.
"PLAN" means a Single Employer Plan or a Multiple Employer
Plan.
"PLANS AND SPECIFICATIONS" means the plans and specifications
for the construction of the New Tower which are described in Schedule V
attached hereto.
"PLEDGED DEBT" has the meaning specified in the Security
Agreement.
"PLEDGED EQUITY" has the meaning specified in the Security
Agreement.
Page 18
"POSTCLOSING AGREEMENT" means the Postclosing Agreement, dated
as of the date hereof, among the Loan Parties, the Agents and the
Lenders.
"POST-PETITION INTEREST" has the meaning specified in Section
8.06(b).
"PREFERRED INTERESTS" means, with respect to any Person,
Equity Interests issued by such Person that are entitled to a
preference or priority over any other Equity Interests issued by such
Person upon any distribution of such Person's property and assets,
whether by dividend or upon liquidation.
"PREPAYMENT FEE" means (a) for prepayments made at any time
prior to the third (3rd) anniversary of the Effective Date, a yield
maintenance payment in an amount equal to the present value of the sum
of (i) the remaining scheduled interest payments on the principal
prepaid (assuming such principal prepaid would thereafter have been a
Eurodollar Rate Advance, but excluding the Eurodollar Rate from the
interest computed on such Eurodollar Rate Advance) through the third
(3rd) anniversary of the Effective Date plus (ii) two percent (2%) of
the amount of principal prepaid (assuming such principal amount would
have been prepaid on the first day following the third (3rd)
anniversary of the Effective Date), with such sum being discounted at
the equivalent weighted-average life U.S. Treasury yield as of the date
of prepayment, (b) for prepayments made after the third (3rd)
anniversary of the Effective Date and on or prior to the fourth (4th)
anniversary of the Effective Date, an amount equal to two percent (2%)
of the amount of principal prepaid, and (c) for prepayments made after
the fourth (4th) anniversary of the Effective Date, there shall be no
such fee.
"PROJECT CAPITAL EXPENDITURES" means Capital Expenditures
consisting of new construction (including, without limitation, the
construction of the New Tower) or other capital improvements.
"PROPERTIES" shall mean those real estate assets listed on
Schedule 4.01(v).
"REDEEMABLE" means, with respect to any Equity Interest, any
such Equity Interest that (a) the issuer has undertaken to redeem at a
fixed or determinable date or dates, whether by operation of a sinking
fund or otherwise, or upon the occurrence of a condition not solely
within the control of the issuer or (b) is redeemable at the option of
the holder.
"REFINANCING DEBT" has the meaning specified in Section
5.02(b)(xiv).
"REGISTER" has the meaning specified in Section 9.07(d).
"REGULATION U" means Regulation U of the Board of Governors of
the Federal Reserve System, as in effect from time to time.
"RELATED DOCUMENTS" means the New Notes Indenture, the New
Notes and all "Collateral Documents" and "Guarantees" as such terms are
defined in the New Notes Indenture.
"REQUIRED LENDERS" means, at any time, Lenders owed or holding
at least a majority in interest of the sum of (a) the aggregate
principal amount of the Advances outstanding at such time and (b) the
aggregate Unused Term B-2 Commitments at such time; provided, however,
that if any Lender shall be a Defaulting Lender at such time, there
shall be excluded from the determination of Required Lenders at such
time (i) the aggregate principal amount of the Advances owing to such
Page 19
Lender (in its capacity as a Lender) and outstanding at such time, and
(ii) the Unused Term B-2 Commitment of such Lender at such time.
"RESPONSIBLE OFFICER" means the chief executive officer,
president, chief financial officer or treasurer of a Loan Party. Any
document delivered hereunder that is signed by a Responsible Officer of
a Loan Party shall be conclusively presumed to have been authorized by
all necessary corporate, partnership and/or other action on the part of
such Loan Party and such Responsible Officer shall be conclusively
presumed to have acted on behalf of such Loan Party.
"ROFO AGREEMENT" means the Right of First Offer Agreement,
dated as of May 20, 2005, among Xxxxx Organization LLC, the General
Partner and the Borrower as amended by that certain Amended Right of
First Offer Agreement dated as of September 27, 2006 (and any renewals
or replacements thereof or amendments thereto so long as the terms of
such renewals, replacements or amendments are not less favorable to the
Secured Parties in any material respect, taken as a whole, as compared
to such agreement as in effect on the Effective Date).
"SECURED PARTIES" means the Agents and the Lender Parties.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SECURITY AGREEMENT" has the meaning specified in Section
3.01(a)(ii).
"SERVICES AGREEMENT" means the Services Agreement, dated as of
May 20, 2005, among the Borrower, the General Partner and Xxxxxx X.
Xxxxx (and any renewals or replacements thereof or amendments thereto
so long as the terms of such renewals, replacements or amendments are
not less favorable to the Secured Parties in any material respect,
taken as a whole, as compared to such agreement as in effect on the
Effective Date).
"SINGLE EMPLOYER PLAN" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of any Loan Party or any ERISA Affiliate and no Person other
than the Loan Parties and the ERISA Affiliates or (b) was so maintained
during any of the preceding five plan years and in respect of which any
Loan Party or any ERISA Affiliate could have liability under Section
4069 of ERISA in the event such plan has been or were to be terminated.
"SOLVENT" and "SOLVENCY" mean, with respect to any Person on a
particular date, that on such date (a) the fair value of the property
of such Person is greater than the total amount of liabilities,
including, without limitation, contingent liabilities, of such Person,
(b) the present fair salable value of the assets of such Person is not
less than the amount that will be required to pay the probable
liability of such Person on its debts as they become absolute and
matured, (c) such Person does not intend to, and does not believe that
it will, incur debts or liabilities beyond such Person's ability to pay
such debts and liabilities as they mature and (d) such Person is not
engaged in business or a transaction, and is not about to engage in
business or a transaction, for which such Person's property would
constitute an unreasonably small capital. The amount of contingent
liabilities at any time shall be computed as the amount that, in the
light of all the facts and circumstances existing at such time,
represents the amount that can reasonably be expected to become an
actual or matured liability.
"S&P" means Standard & Poor's, a division of The Xx-Xxxx Xxxx
Companies, Inc.
Page 20
"SUBORDINATED OBLIGATIONS" has the meaning specified in
Section 8.06.
"SUBSIDIARY" of any Person means any corporation, partnership,
joint venture, limited liability company, trust or estate of which (or
in which) more than 50% of (a) the issued and outstanding capital stock
having ordinary voting power to elect a majority of the Board of
Directors of such corporation (irrespective of whether at the time
capital stock of any other class or classes of such corporation shall
or might have voting power upon the occurrence of any contingency), (b)
the interest in the capital or profits of such partnership, joint
venture or limited liability company or (c) the beneficial interest in
such trust or estate is at the time directly or indirectly owned or
controlled by such Person, by such Person and one or more of its other
Subsidiaries or by one or more of such Person's other Subsidiaries. For
purposes of Section 2.06(b) and Articles IV (other than Section 4.01(h)
thereof), V (other than Section 5.03(b), (c) and (d) thereof) and VI,
the term "Subsidiary" shall not include any Unrestricted Subsidiary,
unless specifically referred to therein.
"SUBSIDIARY GUARANTORS" means the Subsidiaries of the General
Partner listed on Schedule II hereto and each other Subsidiary of the
General Partner that shall be required to execute and deliver a
guaranty pursuant to Section 5.01(j).
"SUBSIDIARY GUARANTY" means the guaranty of the Subsidiary
Guarantors set forth in Article VIII, together with each other guaranty
and guaranty supplement delivered pursuant to Section 5.01(j), in each
case as amended, amended and restated, modified or otherwise
supplemented.
"SUPPLEMENTAL COLLATERAL AGENT" has the meaning specified in
Section 7.01(c).
"SURVIVING DEBT" means Debt of each Loan Party and its
Subsidiaries outstanding immediately before and after giving effect to
the Initial Extension of Credit and set forth on Schedule 4.01(t).
"SYNTHETIC DEBT" means, with respect to any Person as of any
date of determination thereof, all Obligations of such Person in
respect of transactions entered into by such Person, that are intended
to function primarily as a borrowing of funds (including, without
limitation, any minority interest transactions that function primarily
as a borrowing) but are not otherwise included in the definition of
"Debt" or as a liability on the consolidated balance sheet of such
Person and its Subsidiaries in accordance with GAAP.
"TAX DISTRIBUTION" has the meaning specified in Section
5.02(g)(vi).
"TAXES" has the meaning specified in Section 2.12(a).
"TCI 2" means TCI 2 Holdings, LLC, a Delaware limited
liability.
"TERM B ADVANCE" means a Term B-1 Advance or a Term B-2
Advance.
"TERM B COMMITMENT" means a Term B-1 Commitment or a Term B-2
Commitment.
"TERM B FACILITY" means the Term B-1 Facility or the Term B-2
Facility.
"TERM B LENDER" means any Lender that has a Term B Commitment.
Page 21
"TERM B MATURITY DATE" means December 21, 2012. "TERM B NOTES"
means the Term B-1 Notes and the Term B-2 Notes.
"TERM B-1 NOTE" means a promissory note of the Borrower
payable to the order of any Term B-1 Lender, in substantially the form
of EXHIBIT A-1 hereto, evidencing the indebtedness of the Borrower to
such Lender resulting from the Term B-1 Advance made by such Lender, as
amended.
"TERM B-1 ADVANCE" has the meaning specified in Section
2.01(a).
"TERM B-1 BORROWING" means a borrowing consisting of
simultaneous Term B-1 Advances of the same Type made by the Term B-1
Lenders.
"TERM B-1 COMMITMENT" means, with respect to any Term B-1
Lender at any time, the amount set forth opposite such Lender's name on
Schedule I hereto under the caption "Term B-1 Commitment."
"TERM B-1 FACILITY" means, at any time, the aggregate amount
of the Term B-1 Lenders' Term B-1 Commitments at such time.
"TERM B-1 LENDER" means any Lender that has a Term B-1
Commitment.
"TERM B-2 ADVANCE" has the meaning specified in Section
2.01(b).
"TERM B-2 AVAILABILITY TERMINATION DATE" has the meaning
specified in Section 2.01(b).
"TERM B-2 BORROWING" means a borrowing consisting of
simultaneous Term B-2 Advances of the same Type made by the Term B-2
Lenders.
"TERM B-2 COMMITMENT" means, with respect to any Term B-2
Lender at any time, the amount set forth opposite such Lender's name on
Schedule I hereto under the caption "Term B-2 Commitment" or, if such
Lender has entered into one of more Assignment and Acceptance, set
forth for such Lender in the Register maintained by the Administrative
Agent pursuant to Section 9.07(d) as such Lender's "Term B-2
Commitment," as such amount may be reduced at or prior to such time
pursuant to Section 2.05.
"TERM B-2 FACILITY" means, at any time, the aggregate amount
of the Term B-2 Lenders' Term B-2 Commitments at such time.
"TERM B-2 LENDER" means any Lender that has a Term B-2
Commitment.
"TERM B-2 NOTE" means a promissory note of the Borrower
payable to the order of any Term B-2 Lender, in substantially the form
of EXHIBIT A-2 hereto, evidencing the indebtedness of the Borrower to
such Lender resulting from the Term B-2 Advance made by such Lender, as
amended.
"TERMINATION DATE" means December 21, 2012.
"TRADEMARK LICENSE AGREEMENT" means the Amended and Restated
Trademark License Agreement, dated as of May 20, 2005, between the
Borrower and Xxxxxx X. Xxxxx (and any renewals or replacements thereof
Page 22
or amendments thereto so long as the terms of such renewals,
replacements or amendments are not less favorable to the Lender Parties
in any material respect, taken as a whole, as compared to such
agreement as in effect on the Effective Date).
"TRADEMARK SECURITY AGREEMENT" means the Amended and Restated
Trademark Security Agreement, dated as of May 20, 2005, between the
Borrower and Xxxxxx X. Xxxxx (and any renewals or replacements thereof
or amendments thereto so long as the terms of such renewals,
replacements or amendments are not less favorable to the Lender Parties
in any material respect, taken as a whole, as compared to such
agreement as in effect on the Effective Date).
"TRANSACTION" means consummation of the transactions
contemplated by the Transaction Documents.
"TRANSACTION DOCUMENTS" means, collectively, the Loan
Documents and the Related Documents.
"XXXXX XXXXXX" means the hotel and complex currently known as
the "Xxxxx Xxxxxx Hotel Casino in Atlantic City, New Jersey located on
the real property described in item A of Schedule 4.01(v).
"XXXXX PLAZA" means the hotel and complex currently known as
the "Xxxxx Plaza Hotel and Casino" in Atlantic City, New Jersey located
on the real property described in item B of Schedule 4.01(v).
"TYPE" refers to the distinction between Advances bearing
interest at the Base Rate and Advances bearing interest at the
Eurodollar Rate.
"UNMATURED SURVIVING OBLIGATIONS" means Obligations under this
Agreement and the other Loan Documents that by their terms survive the
termination of this Agreement or the other Loan Documents but are not,
as of the date of determination, due and payable and for which no
outstanding claim has been made.
"UNRESTRICTED SUBSIDIARY" means (a) any direct or indirect
Subsidiary of the General Partner that (i) has been designated by the
Board of Directors of the General Partner to be an Unrestricted
Subsidiary, (ii) does not own any Equity Interests or Debt of, or own
or hold any Lien or any property of the Borrower or any Subsidiary
Guarantor, (iii) does not create, incur, issue, assume, guarantee or
otherwise become directly or indirectly liable with respect to any Debt
pursuant to which the relevant lender has recourse to the Borrower or
any Subsidiary Guarantor or any of their respective assets and (iv) may
be designated as an "Unrestricted Subsidiary" in compliance by the
Borrower with Section 5.02(f) and (b) any Subsidiary of an
"Unrestricted Subsidiary". In no event shall the Borrower or any
Subsidiary of the Borrower existing on the date hereof, other than the
Unrestricted Subsidiaries identified on Schedule VI hereto, be an
"Unrestricted Subsidiary" nor shall any Subsidiary of the Borrower that
is not designated as an "Unrestricted Subsidiary" on the date such
Subsidiary is created or acquired be designated as an "Unrestricted
Subsidiary" after the date of creation or acquisition unless (x) all
Investments made in such Unrestricted Subsidiary prior to such
designation shall be treated as Investments in an Unrestricted
Subsidiary and subject to the limitations set forth in Section 5.02(f)
and (y) after giving effect to such designation and the application of
the foregoing clause (x), no Default or Event of Default shall have
occurred and be continuing.
Page 23
"UNUSED TERM B-2 COMMITMENT" means, with respect to any Term
B-2 Lender at any time, (a) such Lender's B-2 Commitment at such time
minus (b) the sum of the aggregate principal amount of all Term B-2
Advances made by such Lender (in its capacity as a Lender) and
outstanding at such time.
"VOTING AGREEMENT" means the Voting Agreement, dated as of May
20, 2005, between the General Partner and Xxxxxx X. Xxxxx (and any
renewals or replacements thereof or amendments thereto so long as the
terms of such renewals, replacements or amendments are not less
favorable to the Secured Parties in any material respect, taken as a
whole, as compared to such agreement as in effect on the Effective
Date).
"VOTING INTERESTS" means shares of capital stock issued by a
corporation, or equivalent Equity Interests in any other Person, the
holders of which are ordinarily, in the absence of contingencies,
entitled to vote for the election of directors (or persons performing
similar functions) of such Person, even if the right so to vote has
been suspended by the happening of such a contingency.
"WARRANT AGREEMENT" means the Warrant Agreement, dated as of
May 20, 2005, between the General Partner and Xxxxxx X. Xxxxx (and any
renewals or replacements thereof or amendments thereto so long as the
terms of such renewals, replacements or amendments are not less
favorable to the Secured Parties in any material respect, taken as a
whole, as compared to such agreement as in effect on the Effective
Date).
"WEIGHTED AVERAGE LIFE TO MATURITY" means, when applied to any
Debt, or preferred stock, as the case may be, at any date, the quotient
obtained by dividing: (a) the sum of the products of (x) the number of
years from the date of determination to the date of each successive
scheduled principal payment of such Debt, including remaining sinking
fund payments or payments at serial or final maturity or redemption or
similar payment with respect to such preferred stock multiplied by (y)
the amount of such payment, by (b) the sum of all such payments.
"WITHDRAWAL LIABILITY" has the meaning specified in Part I of
Subtitle E of Title IV of ERISA.
Page 24
Section 1.02. Computation of Time Periods; Other Definitional
Provisions. In this Agreement and the other Loan Documents in the computation of
periods of time from a specified date to a later specified date, the word "FROM"
means "from and including" and the words "TO" and "UNTIL" each mean "to but
excluding". References in the Loan Documents to any agreement or contract "AS
AMENDED" shall mean and be a reference to such agreement or contract as amended,
amended and restated, supplemented or otherwise modified from time to time in
accordance with its terms.
Section 1.03. Accounting Terms. All accounting terms not specifically
defined herein shall be construed in accordance with generally accepted
accounting principles consistent with those applied in the preparation of the
financial statements referred to in Section 4.01(g) ("GAAP").
Section 1.04. U.S. Dollars. All Advances shall be made in U.S. Dollars,
and all payments made to the Agents and/or the Lenders shall be in U.S. Dollars
and neither any Agent nor any Lender is required to accept any payment or make
any Advance other than in U.S. Dollars.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
Section 2.01. The Advances.
(a) The Term B-1 Advances. Each Term B-1 Lender severally
agrees, on the terms and conditions hereinafter set forth, to make a
single advance (a "TERM B-1 ADVANCE") to the Borrower on the Effective
Date in an amount not to exceed such Lender's Term B-1 Commitment at
such time. The Term B-1 Borrowing shall consist of Term B-1 Advances
made simultaneously by the Term B-1 Lenders ratably according to their
Term B-1 Commitments. Amounts borrowed under this Section 2.01(a) and
repaid or prepaid may not be reborrowed.
(b) The Term B-2 Advances. Each Term B-2 Lender severally
agrees, on the terms and conditions hereinafter set forth, to make
advances (each a "TERM B-2 ADVANCE") to the Borrower from time to time
on any Business Day during the period from the Effective Date until the
date that is twelve (12) months following the Effective Date (the "TERM
B-2 AVAILABILITY TERMINATION DATE") in an amount for each such Advance
not to exceed such Lender's Unused Term B-2 Commitment at such time.
Each Term B-2 Borrowing shall be in an aggregate amount of $25,000,000
or an integral multiple of $500,000 in excess thereof (or the remaining
Unused Term B-2 Commitments, if less) and shall consist of Term B-2
Advances made simultaneously by the Term B-2 Lenders ratably according
to their Term B-2 Commitments. Amounts borrowed under this Section
2.01(b) and repaid or prepaid may not be reborrowed. Term B-2 Advances
will be made no more frequently than once during any calendar quarter,
except for Term B-2 Advance(s) made pursuant to the last sentence of
this Section 2.01(b). If on the Term B-2 Availability Termination Date
there remains any unused Term B-2 Commitments, then (i) if so directed
by any Lender then holding an Unused Term B-2 Commitment (which
direction may or may not be given by such Lender in its sole
discretion) or (ii) upon request of the Borrower in accordance with
Section 2.02 and provided that all conditions precedent to the
obligations of the Lenders to the making of such requested Advance are
satisfied, the Administrative Agent will make an Advance to the
Borrower in the amount of each such Lender's Unused Term B-2 Commitment
on the Term B-2 Availability Termination Date.
Page 25
Section 2.02. Making the Advances.
(a) Except as otherwise provided in the last sentence of
Section 2.01(b) or in the case of the Term B-1 Borrowing on the
Effective Date which shall require the delivery of a Notice of
Borrowing (hereinafter defined) at any time on or before the Effective
Date without the necessity of more advance notice as otherwise required
in this Section 2.02(a), each Borrowing shall be made on notice, given
not later than 11:00 A.M. (New York City time) on (x) in regard to a
Borrowing in an aggregate amount less than or equal to $25,000,000, the
tenth (10th) Business Day prior to the date of the proposed Borrowing,
and (y) in regard to a Borrowing in an aggregate amount in excess of
$25,000,000, the twentieth (20th) Business Day prior to the date of the
proposed Borrowing, by the Borrower to the Administrative Agent, which
shall give to each Appropriate Lender prompt notice (but in any event
by no later than 3:00 P.M. on the date it receives such notice from the
Borrower) thereof by telecopier. Each such notice of a Borrowing (a
"NOTICE OF BORROWING") shall be by telephone, confirmed immediately in
writing, or telecopier, in substantially the form of EXHIBIT B hereto,
specifying therein the requested (i) date of such Borrowing, (ii) Type
of Advances comprising such Borrowing, and (iii) aggregate amount of
such Borrowing. For avoidance of doubt, any Borrowing on the Effective
Date in an amount equal to or less than the aggregate amount of the
Term B-1 Commitments shall be deemed to be a Term B-1 Borrowing, and
the amount of any Borrowing on the Effective Date in excess of the
aggregate amount of the Term B-1 Commitment shall be deemed to be a
Term B-2 Borrowing. No more than one Notice of Borrowing may be in
effect at any time. Each Appropriate Lender shall, before 1:00 P.M.
(New York City time) on the Effective Date, in the case of the Term B-1
Borrowing, or on the other date of such Borrowing, in the case of each
Term B-2 Borrowing, make available for the account of its Applicable
Lending Office to the Administrative Agent at the Administrative
Agent's Account, in same day funds, such Lender's ratable portion of
such Borrowing in accordance with the respective Commitments under the
applicable Facility of such Lender and the other Appropriate Lenders.
After the Administrative Agent's receipt of such funds and upon
fulfillment of the applicable conditions set forth in Article III, the
Administrative Agent will make such funds available to the Borrower by
crediting the Borrower's Account.
(b) Reserved.
(c) Reserved.
(d) Each Notice of Borrowing shall be irrevocable and binding
on the Borrower. In the case of any Borrowing that the related Notice
of Borrowing specifies is to be comprised of Eurodollar Rate Advances,
the Borrower shall indemnify each Appropriate Lender against any loss,
cost or expense incurred by such Lender as a result of any failure to
fulfill on or before the date specified in such Notice of Borrowing for
such Borrowing the applicable conditions set forth in Article III,
including, without limitation, any loss (including loss of anticipated
profits), cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by such Lender to fund
the Advance to be made by such Lender as part of such Borrowing when
such Advance, as a result of such failure, is not made on such date, so
long as such Lender shall have provided prompt notice and a detailed
calculation thereof.
(e) Unless the Administrative Agent shall have received notice
from an Appropriate Lender prior to the date of any Borrowing under a
Facility under which such Lender has a Commitment that such Lender will
not make available to the Administrative Agent such Lender's ratable
portion of such Borrowing, the Administrative Agent may assume that
Page 26
such Lender has made such portion available to the Administrative Agent
on the date of such Borrowing in accordance with subsection (a) of this
Section 2.02 and the Administrative Agent may, in reliance upon such
assumption, make available to the Borrower on such date a corresponding
amount. If and to the extent that such Lender shall not have so made
such ratable portion available to the Administrative Agent, such Lender
and the Borrower severally agree to repay or pay to the Administrative
Agent forthwith on demand such corresponding amount and to pay interest
thereon, for each day from the date such amount is made available to
the Borrower until the date such amount is repaid or paid to the
Administrative Agent, at (i) in the case of the Borrower, the interest
rate applicable at such time under Section 2.07 to Advances comprising
such Borrowing and (ii) in the case of such Lender, the Federal Funds
Rate. If such Lender shall pay to the Administrative Agent such
corresponding amount, such amount so paid shall constitute such
Lender's Advance as part of such Borrowing for all purposes.
(f) The failure of any Lender to make the Advance to be made
by it as part of any Borrowing shall not relieve any other Lender of
its obligation, if any, hereunder to make its Advance on the date of
such Borrowing, but no Lender shall be responsible for the failure of
any other Lender to make the Advance to be made by such other Lender on
the date of any Borrowing.
Section 2.03. Reserved.
Section 2.04. Repayment of Term B Advances. The Borrower shall repay to
the Administrative Agent for the ratable account of the Term B Lenders the
aggregate outstanding principal amount of the Term B Advances in quarterly
installments payable on the last Business Day of each March, June, September and
December, commencing on March 31, 2008, in an amount equal to 0.25% of the sum
of (i) the original aggregate principal amount of all Term B-1 Advances made on
the Effective Date plus (ii) the original aggregate principal amount of all Term
B-2 Advances made prior to the date such quarterly installment is due (which
amount shall be reduced as a result of the application of prepayments in
accordance with the order of priority set forth in Section 2.06); provided,
however, that the final principal installment shall be repaid on the Term B
Maturity Date and in any event shall be in an amount equal to the aggregate
principal amount of the Term B Advances outstanding on such date.
Section 2.05. Termination or Reduction of the Commitments. Subject to
the last sentence of Section 2.01(b), the Unused Term B-2 Commitment of each
Term B-2 Lender shall be terminated in full on the Term B-2 Availability
Termination Date.
Section 2.06. Prepayments.
(a) Optional. The Borrower may, upon at least one Business Day's notice
in the case of Base Rate Advances and three Business Days' notice in the case of
Eurodollar Rate Advances, in each case to the Administrative Agent stating the
proposed date and aggregate principal amount of the prepayment, and if such
notice is given the Borrower shall, prepay the outstanding aggregate principal
amount of the Advances comprising part of the same Borrowing in whole or ratably
in part, together with accrued interest to the date of such prepayment on the
aggregate principal amount prepaid and together with the applicable Prepayment
Fee; provided, however, that (x) each partial prepayment shall be in an
aggregate principal amount of $5,000,000 or an integral multiple of $500,000 in
excess thereof and (y) if any prepayment of a Eurodollar Rate Advance is made on
a date other than the last day of an Interest Period for such Advance, the
Borrower shall also pay any amounts owing pursuant to Section 9.04(c); provided,
Page 27
however, that, in the case of any such notice of an optional prepayment made in
connection with a proposed refinancing in full of the Facilities, the Borrower
shall be permitted to revoke such notice in the event that such refinancing is
not consummated subject to payment of all costs of the Lenders under Section
9.04(c) incurred by such Lenders as a result of such notice of prepayment. Each
such prepayment of any Term B Advances shall be applied ratably to each of the
Term B Facilities and to the remaining installments thereof on a pro rata basis.
Notwithstanding anything to the contrary contained in this Section 2.06(a), the
Borrower agrees that, in connection with the receipt of any Net Cash Proceeds by
any Loan Party or any of its Subsidiaries as referred to in Section 2.06(b), it
shall not be permitted to prepay the Advances by any amount which exceeds the
amount elected to be received by the Lenders as a prepayment in accordance with
Section 2.06(b).
(b) Mandatory.
(i) Subject to the Borrower's rights under clauses
(ii) and (iii) of this Section 2.06 below, the Borrower shall,
on the date of receipt of any Net Cash Proceeds by any Loan
Party or any of its Subsidiaries, offer to the Lenders to
prepay an aggregate principal amount of the Advances or
deposit into the Collateral Account an amount equal to the
amount of such Net Cash Proceeds. Each such prepayment
accepted by the Lenders shall be applied ratably to each of
the Term B Facilities on a pro rata basis. Each Lender shall
have the right to reject any offered mandatory prepayment
under this Section 2.06(b)(i) and, if a Lender does so reject
an offered mandatory prepayment, the Borrower will offer to
the Lenders that have agreed to accept the offered prepayment
to prepay to such Lenders ratably the amount of such
prepayment so rejected. Any amount of Net Cash Proceeds which
all Lenders reject as a mandatory prepayment under this
Section 2.06(b) may be retained and used by the Borrower
subject to compliance with the other requirements of the Loan
Documents.
(ii) If either the Xxxxx Plaza or the Xxxxx Xxxxxx is
sold as permitted by Section 5.02(e)(x), the Loan Party that
has sold such property (the Xxxxx Plaza or the Xxxxx Xxxxxx,
as applicable) may use the Net Cash Proceeds from such sale to
acquire substitute collateral acceptable to the Required
Lenders, which substitute collateral, in addition to
satisfying all such other conditions as the Required Lenders
may require, must be of like-kind with the property sold
(unless the Required Lenders, acting in their sole discretion,
expressly agree to accept substitute collateral that is not
like-kind with that sold), must be subjected to a perfected,
first priority Lien securing the Obligations in favor of the
Collateral Agent for the benefit of the Lenders granted
pursuant to the Collateral Documents in form and substance
satisfactory to the Collateral Agent, and must be accompanied
by all other agreements, documents and instruments (including,
without limitation, policies of title insurance insuring the
Collateral Agent's Lien) required by Section 5.01(j). In the
event the Net Cash Proceeds from the sale of the Xxxxx Plaza
or the Xxxxx Xxxxxx as permitted herein are not immediately
reinvested into substitute collateral acceptable to the
Required Lenders, then such Loan Party that has sold such
property must deposit such Net Cash Proceeds in a Collateral
Account at a bank acceptable to the Agents, with such
Collateral Account and all securities, property or other
assets held or contained therein to be pledged to the
Collateral Agent as additional Collateral. If substitute
collateral acceptable to the Required Lenders is identified
and is to be acquired by a Loan Party prior to the first
anniversary of the date of the closing of the sale of the
Xxxxx Plaza or the Xxxxx Xxxxxx, then the Net Cash Proceeds
Page 28
from such sale, to the extent required to complete the
purchase of the substitute collateral, will be released from
the Collateral Account into which they were placed at the
closing of the acquisition of the substitute collateral as if
such Net Cash Proceeds were an Advance, so long as all
applicable conditions to the Borrower's right to then receive
an Advance were satisfied and provided the Loan Parties
satisfy all applicable requirements of Section 5.01(j)
relating to such substitute collateral. Notwithstanding the
foregoing, and without limitation of any of the rights or
remedies the Lenders or either Agent, if, (A) at any time such
Net Cash Proceeds or any portion thereof remain in the
Collateral Account, either (1) a Default exists or (2) the
Required Lenders reasonably determine that a Material Adverse
Change has occurred, or (B) substitute collateral acceptable
to the Required Lenders has not been identified and subjected
to a perfected, first priority Lien as required in this
Section 2.06(b)(ii) above within 365 days after the date of
receipt of the proceeds of the sale of the Xxxxx Plaza or the
Xxxxx Xxxxxx (as applicable), then the Required Lenders may
instruct the Agents to (and if such instruction is given, the
Agents are authorized to and will) apply such Net Cash
Proceeds and all interest accrued thereon as an optional
prepayment under Section 2.06(a). Notwithstanding the
foregoing, in the event that a sale of either the Xxxxx Xxxxxx
or the Xxxxx Plaza constitutes an Extraordinary Asset Sale, as
such term is defined in the New Notes Indenture, then the Net
Cash Proceeds from such sale must first be made available to
the Administrative Agent for the benefit of the Lenders and
each Lender, in its sole discretion, may elect to either (1)
utilize all or a portion of such Net Cash Proceeds to prepay
the Loans, together with payment of the applicable Prepayment
Fee and accrued interest to the date of such prepayment on the
aggregate principal amount prepaid, or (2) decline to utilize
all or any portion of the Net Cash Proceeds to prepay the
Loans. In the event any of the Lenders elects to decline to
utilize any portion of the Net Cash Proceeds offered to such
Lender to prepay the portion of the Loans payable to such
Lender, the Net Cash Proceeds not so used to prepay such
portion of such Loans may be used by the Borrower for any
application allowed under the New Notes Indenture.
(iii) Notwithstanding anything to the contrary
contained in subsection (b)(i) of this Section 2.06, so long
as no Event of Default shall have occurred and be continuing,
if, on any date on which a prepayment of Advances would
otherwise be required pursuant to subsection (b)(i) of this
Section 2.06, the aggregate amount of Net Cash Proceeds or
other amounts otherwise required by such subsection to be
applied to prepay Advances on such date are less than or equal
to $5,000,000, the Borrower may defer such prepayment until
the date on which the aggregate amount of Net Cash Proceeds or
other amounts otherwise required by such subsections to be
applied to prepay Advances exceeds $10,000,000, at which time
the aggregate amount of all Net Cash Proceeds received and not
applied to prepay Advances shall be required to be offered as
a prepayment of Advances in accordance with Section
2.06(b)(i). Upon the occurrence of an Event of Default and
upon demand from the Administrative Agent, the Borrower shall
immediately prepay Advances in the amount of all Net Cash
Proceeds received by the Borrower and other amounts, as
applicable, that are required to be applied to prepay Advances
by this Section 2.06 (without giving effect to the first and
second sentences of this subsection (b)(iii)) but which have
not previously been so applied.
(iv) All prepayments under this subsection (b) shall
be made together with (A) accrued interest to the date of such
Page 29
prepayment on the principal amount prepaid, (B) any Prepayment
Fee due hereunder as a result of such prepayment and (c) any
amounts owing pursuant to Section 9.04(c).
Section 2.07. Interest.
(a) Scheduled Interest. The Borrower shall pay interest on the
unpaid principal amount of each Advance owing to each Lender from the
date of such Advance until such principal amount shall be paid in full,
at the following rates per annum:
(i) Base Rate Advances. During such periods as such
Advance is a Base Rate Advance, a rate per annum equal at all
times to the sum of (A) the Base Rate in effect from time to
time plus (B) the Applicable Margin in effect from time to
time, payable in arrears quarterly on the last Business Day of
each March, June, September and December during such periods
and on the date such Base Rate Advance shall be Converted or
paid in full.
(ii) Eurodollar Rate Advances. During such periods as
such Advance is a Eurodollar Rate Advance, a rate per annum
equal at all times during each Interest Period for such
Advance to the sum of (A) the Eurodollar Rate for such
Interest Period for such Advance plus (B) the Applicable
Margin in effect on the first day of such Interest Period,
payable in arrears on the last day of such Interest Period.
With respect to each Term B-2 Advance which is a Eurodollar
Rate Advance and each Eurodollar Rate Advance resulting from
the Conversion of any Base Rate Advance, the Eurodollar Rate
for the first Interest Period applicable thereto shall be the
then existing Eurodollar Rate applicable to any Term B-1
Advance which is a Eurodollar Rate Advance (or, if no such
Term B-1 Advance which is a Eurodollar Rate Advance is then
outstanding, any Term B-2 Advance which is a Eurodollar Rate
Advance). All Eurodollar Rate Advances shall be subject to an
Interest Period that ends on the same date, and each
Eurodollar Rate Advance in existence shall have the same
Interest Period, except that the Interest Period applicable to
the Eurodollar Rate Advance for each initial Term B-2 Advance
and applicable to any Eurodollar Rate Advance resulting from
the Conversion of a Base Rate Advance may have a different
commencement date.
(b) Default Interest. Upon the occurrence and during the
continuance of an Event of Default, the Administrative Agent may, and
upon the request of the Required Lenders shall, require that the
Borrower pay interest ("DEFAULT INTEREST") on (i) the unpaid principal
amount of each Advance owing to each Lender Party, payable in arrears
on the dates referred to in clause (i) or (ii) of Section 2.07(a), as
applicable, and on demand, at a rate per annum equal at all times to 2%
per annum above the rate per annum required to be paid on such Advance
pursuant to clause (i) or (ii) of Section 2.07(a), as applicable, and
(ii) to the fullest extent permitted by applicable law, the amount of
any interest, fee or other amount payable under this Agreement or any
other Loan Document to any Agent or any Lender Party that is not paid
when due, from the date such amount shall be due until such amount
shall be paid in full, payable in arrears on the date such amount shall
be paid in full and on demand, at a rate per annum equal at all times
to 2% per annum above the rate per annum required to be paid, in the
case of interest, on the Type of Advance on which such interest has
accrued pursuant to clause (i) or (ii) of Section 2.07(a), as
applicable, and, in all other cases, on Base Rate Advances pursuant to
clause (i) of Section 2.07(a); provided, however, that following the
acceleration of the Advances, or the giving of notice by the Agent to
accelerate the Advances, pursuant to Section 6.01, Default Interest
Page 30
shall accrue and be payable hereunder whether or not previously
required by the Administrative Agent.
(c) Notice of Interest Rate. Promptly after receipt of a
Notice of Borrowing pursuant to Section 2.02(a) or a notice of
Conversion pursuant to Section 2.09, the Administrative Agent shall
give notice to the Borrower and each Appropriate Lender of the
applicable interest rate determined by the Administrative Agent for
purposes of clause (a)(i) or (a)(ii) above.
Section 2.08. Fees.
(a) Closing Fee. On the Effective Date and as a condition to
the obligation of the Lenders to make any Term B Advance, the Borrower
shall pay to the Administrative Agent, for the account of the Lenders,
a closing fee equal to one percent (1%) of the sum of the maximum
principal amount of the Term B-1 Facility and the maximum principal
amount of the Term B-2 Facility (the "Closing Fee"). The Closing Fee is
irrevocably and unconditionally earned by the Lenders upon the funding
of the Term B-1 Advances notwithstanding whether any Term B-2 Advance
is made.
(b) Term B-2 Commitment Fee. The Borrower shall pay to the
Administrative Agent, for the account of the Term B-2 Lenders, a
commitment fee, from the date hereof in the case of each such Initial
Lender and from the effective date specified in the Assignment and
Acceptance pursuant to which it became a Lender in the case of each
other such Lender until the Term B-2 Availability Termination Date,
payable in arrears quarterly on the last Business Day of each March,
June, September and December and on the Term B-2 Availability
Termination Date, at the rate of one-half (1/2) of 1% per annum on the
average daily unused portion of each Appropriate Lender's Unused Term
B-2 Commitment of such Lender; provided, however, that any commitment
fee accrued with respect to the Term B-2 Commitment of a Defaulting
Lender during the period prior to the time such Lender became a
Defaulting Lender and unpaid at such time shall not be payable by the
Borrower so long as such Lender shall be a Defaulting Lender except to
the extent that such commitment fee shall otherwise have been due and
payable by the Borrower prior to such time; and provided further that
no commitment fee shall accrue on the Term B-2 Commitment of a
Defaulting Lender so long as such Lender shall be a Defaulting Lender.
(c) Administration Fee. The Borrower shall pay to the
Administrative Agent an annual Administration Fee of $60,000.00 (the
"ADMINISTRATION FEE"), which is payable in equal quarterly installments
on the last Business Day of each March, June, September and December.
(d) Agents' Fees. The Borrower shall pay to each Agent for its
own account such other fees as may from time to time be agreed between
the Borrower and such Agent.
Section 2.09. Conversion of Advances.
(a) Optional. The Borrower may on any Business Day, upon
notice given to the Administrative Agent not later than 11:00 A.M. (New
York City time) on the third Business Day prior to the date of the
proposed Conversion and subject to the provisions of Sections 2.07 and
2.10, Convert all or any portion of the Advances of one Type comprising
the same Borrowing into Advances of the other Type; provided, however,
that any Conversion of Eurodollar Rate Advances into Base Rate Advances
shall be made only on the last day of an Interest Period for such
Page 31
Eurodollar Rate Advances, and each Conversion of Advances comprising
part of the same Borrowing under any Facility shall be made ratably
among the Appropriate Lenders in accordance with their Commitments
under such Facility. Each such notice of Conversion shall, within the
restrictions specified above, specify (i) the date of such Conversion,
and (ii) the Advances to be Converted. Each notice of Conversion shall
be irrevocable and binding on the Borrower.
(b) Mandatory.
(i) On the date on which the aggregate unpaid
principal amount of Eurodollar Rate Advances comprising any
Borrowing shall be reduced, by payment or prepayment or
otherwise, to less than $1,000,000, such Advances shall
automatically Convert into Base Rate Advances.
(ii) Upon the occurrence and during the continuance
of any Default, (x) each Eurodollar Rate Advance will
automatically, on the last day of the then existing Interest
Period therefor, Convert into a Base Rate Advance and (y) the
obligation of the Lenders to make, or to Convert Advances
into, Eurodollar Rate Advances shall be suspended.
Section 2.10. Increased Costs, Etc.
(a) If, due to either (i) the introduction of or any change in
or in the interpretation of any law or regulation or (ii) the
compliance with any guideline or request issued after the Effective
Date from any central bank or other governmental authority (whether or
not having the force of law), there shall be any increase in the cost
to any Lender Party of agreeing to make or of making, funding or
maintaining Eurodollar Rate Advances (excluding, for purposes of this
Section 2.10, any such increased costs resulting from (x) Taxes or
Other Taxes (as to which Section 2.12 shall govern) and (y) changes in
the basis or rate of taxation of overall net income or overall gross
income by the United States or by the foreign jurisdiction or state
under the laws of which such Lender Party is organized or has its
Applicable Lending Office or any political subdivision thereof), then
the Borrower shall from time to time, upon demand by such Lender Party
and a certificate setting forth the calculation of such amount (with a
copy of such demand and such certificate to the Administrative Agent),
pay to the Administrative Agent for the account of such Lender Party
additional amounts sufficient to compensate such Lender Party for such
increased cost; provided, however, that the Borrower shall not be
responsible for costs under this Section 2.10(a) arising more than 180
days prior to receipt by the Borrower of the demand from the affected
Lender Party pursuant to this Section 2.10(a). A certificate as to the
amount of such increased cost, submitted to the Borrower by such Lender
Party, shall be conclusive and binding for all purposes, absent
manifest error.
(b) If any Lender Party determines that (i) the introduction
of or any change in or in the interpretation of any law or regulation
or (ii) compliance with any law or regulation or any guideline or
request issued after the Effective Date from any central bank or other
governmental authority (whether or not having the force of law) affects
or would affect the amount of capital required or expected to be
maintained by such Lender Party or any corporation controlling such
Lender Party and that the amount of such capital is increased by or
based upon the existence of such Lender Party's commitment to lend
hereunder and other commitments of such type, then, upon demand by such
Lender Party or such corporation and a certificate setting forth the
calculation of such amount (with a copy of such demand and such
Page 32
certificate to the Administrative Agent), the Borrower shall pay to the
Administrative Agent for the account of such Lender Party, from time to
time as specified by such Lender Party, additional amounts sufficient
to compensate such Lender Party in the light of such circumstances, to
the extent that such Lender Party reasonably determines such increase
in capital to be allocable to the existence of such Lender Party's
commitment to lend; provided, however, that the Borrower shall not be
responsible for costs under this Section 2.10(b) arising more than 180
days prior to receipt by the Borrower of the demand from the affected
Lender Party pursuant to this Section 2.10(b). A certificate as to such
amounts submitted to the Borrower by such Lender Party shall be
conclusive and binding for all purposes, absent manifest error.
(c) If, with respect to any Eurodollar Rate Advances under any
Facility, Lenders owed at least 51% of the then aggregate unpaid
principal amount thereof shall notify the Administrative Agent that the
Eurodollar Rate for any Interest Period for such Advances will not
adequately reflect the cost to such Lenders of making, funding or
maintaining their Eurodollar Rate Advances for such Interest Period,
the Administrative Agent shall forthwith so notify the Borrower and the
Appropriate Lenders, whereupon (i) each such Eurodollar Rate Advance
under such Facility will automatically, on the last day of the then
existing Interest Period therefor, Convert into a Base Rate Advance and
(ii) the obligation of the Appropriate Lenders to make, or to Convert
Advances into, Eurodollar Rate Advances shall be suspended until the
Administrative Agent shall notify the Borrower that such Lenders have
determined that the circumstances causing such suspension no longer
exist.
(d) Notwithstanding any other provision of this Agreement, if
the introduction of or any change in or in the interpretation of any
law or regulation shall make it unlawful, or any central bank or other
governmental authority shall assert that it is unlawful, for any Lender
or its Eurodollar Lending Office to perform its obligations hereunder
to make Eurodollar Rate Advances or to continue to fund or maintain
Eurodollar Rate Advances hereunder, then, on notice thereof and demand
therefor by such Lender to the Borrower through the Administrative
Agent, (i) each Eurodollar Rate Advance under each Facility under which
such Lender has a Commitment will automatically, upon such demand,
Convert into a Base Rate Advance and (ii) the obligation of the
Appropriate Lenders to make, or to Convert Advances into, Eurodollar
Rate Advances shall be suspended until the Administrative Agent shall
notify the Borrower that such Lender has determined that the
circumstances causing such suspension no longer exist; provided,
however, that, before making any such demand, such Lender agrees to use
reasonable efforts (consistent with its internal policy and legal and
regulatory restrictions) to designate a different Eurodollar Lending
Office if the making of such a designation would allow such Lender or
its Eurodollar Lending Office to continue to perform its obligations to
make Eurodollar Rate Advances or to continue to fund or maintain
Eurodollar Rate Advances and would not, in the judgment of such Lender,
be otherwise disadvantageous to such Lender.
(e) In the event that any Lender Party demands payment of
costs or additional amounts pursuant to Section 2.10 or Section 2.12 or
asserts, pursuant to Section 2.10(d), that it is unlawful for such
Lender Party to make Eurodollar Rate Advances or becomes a Defaulting
Lender then (subject to such Lender Party's right to rescind such
demand or assertion within ten days after the notice from the Borrower
referred to below) the Borrower may, at its sole cost and expense, upon
20 days' prior written notice to such Lender Party and the
Administrative Agent, elect to cause such Lender Party to assign its
Advances and Commitments in full to one or more Persons selected by the
Borrower so long as (i) each such Person satisfies the criteria of an
Eligible Assignee and is reasonably satisfactory to the Administrative
Agent, (ii) such Lender Party receives payment in full in cash of the
Page 33
outstanding principal amount of all Advances made by it and all accrued
and unpaid interest thereon and all other amounts due and payable to
such Lender Party as of the date of such assignment (including, without
limitation, amounts owing pursuant to Sections 2.10, 2.12 and 9.04) and
(iii) each such Lender Party assignee agrees to accept such assignment
and to assume all obligations of such Lender Party hereunder in
accordance with Section 9.07.
Section 2.11. Payments and Computations.
(a) The Borrower shall make each payment hereunder and under
the other Loan Documents, irrespective of any right of counterclaim or
set-off (except as otherwise provided in Section 2.15), not later than
11:00 A.M. (New York City time) on the day when due in U.S. dollars to
the Administrative Agent at the Administrative Agent's Account in same
day funds, with payments being received by the Administrative Agent
after such time being deemed to have been received on the next
succeeding Business Day. The Administrative Agent will promptly
thereafter cause like funds to be distributed (i) if such payment by
the Borrower is in respect of principal, interest, fees or any other
Obligation then payable hereunder and under the other Loan Documents to
more than one Lender Party, to such Lender Parties for the account of
their respective Applicable Lending Offices ratably in accordance with
the amounts of such respective Obligations then payable to such Lender
Parties and (ii) if such payment by the Borrower is in respect of any
Obligation then payable hereunder to one Lender Party, to such Lender
Party for the account of its Applicable Lending Office, in each case to
be applied in accordance with the terms of this Agreement. Upon its
acceptance of an Assignment and Acceptance and recording of the
information contained therein in the Register pursuant to Section
9.07(d), from and after the effective date of such Assignment and
Acceptance, the Administrative Agent shall make all payments hereunder
and under the other Loan Documents in respect of the interest assigned
thereby to the Lender Party assignee thereunder, and the parties to
such Assignment and Acceptance shall make all appropriate adjustments
in such payments for periods prior to such effective date directly
between themselves.
(b) The Borrower hereby authorizes each Lender Party and each
of its Affiliates, if and to the extent payment owed to such Lender
Party is not made when due hereunder or under the other Loan Documents,
to charge from time to time, to the fullest extent permitted by law,
against any or all of the Borrower's accounts with such Lender Party or
such Affiliate any amount so due.
(c) All computations of interest based on the Base Rate shall
be made by the Administrative Agent on the basis of a year of 365 or
366 days, as the case may be, and all computations of interest based on
the Eurodollar Rate or the Federal Funds Rate and of fees shall be made
by the Administrative Agent on the basis of a year of 360 days, in each
case for the actual number of days (including the first day but
excluding the last day) occurring in the period for which such
interest, fees or commissions are payable. Each determination by the
Administrative Agent of an interest rate, fee or commission hereunder
shall be conclusive and binding for all purposes, absent manifest
error.
(d) Whenever any payment hereunder or under the other Loan
Documents shall be stated to be due on a day other than a Business Day,
such payment shall be made on the next succeeding Business Day, and
such extension of time shall in such case be included in the
computation of payment of interest or commitment or other fee, as the
case may be; provided, however, that, if such extension would cause
payment of interest on or principal of Eurodollar Rate Advances to be
Page 34
made in the next following calendar month, such payment shall be made
on the next preceding Business Day.
(e) Unless the Administrative Agent shall have received notice
from the Borrower prior to the date on which any payment is due to any
Lender Party hereunder that the Borrower will not make such payment in
full, the Administrative Agent may assume that the Borrower has made
such payment in full to the Administrative Agent on such date and the
Administrative Agent may, in reliance upon such assumption, cause to be
distributed to each such Lender Party on such due date an amount equal
to the amount then due such Lender Party. If and to the extent the
Borrower shall not have so made such payment in full to the
Administrative Agent, each such Lender Party shall repay to the
Administrative Agent forthwith on demand such amount distributed to
such Lender Party together with interest thereon, for each day from the
date such amount is distributed to such Lender Party until the date
such Lender Party repays such amount to the Administrative Agent, at
the Federal Funds Rate.
(f) Whenever any payment received by the Administrative Agent
under this Agreement or any of the other Loan Documents is insufficient
to pay in full all amounts due and payable to the Agents and the Lender
Parties under or in respect of this Agreement and the other Loan
Documents on any date, such payment shall be distributed by the
Administrative Agent and applied by the Agents and the Lender Parties
in the following order of priority:
(i) first, to the payment of all of the fees,
indemnification payments, costs and expenses that are due and
payable to the Agents (solely in their respective capacities
as Agents) under or in respect of this Agreement and the other
Loan Documents on such date, ratably based upon the respective
aggregate amounts of all such fees, indemnification payments,
costs and expenses owing to the Agents on such date;
(ii) second, to the payment of all of the
indemnification payments, costs and expenses that are due and
payable to the Lenders under Sections 9.04 hereof, Section 22
of the Security Agreement and any similar section of any of
the other Loan Documents on such date, ratably based upon the
respective aggregate amounts of all such indemnification
payments, costs and expenses owing to the Lenders on such
date;
(iii) third, to the payment of all of the amounts
that are due and payable to the Administrative Agent and the
Lender Parties under Sections 2.10 and 2.12 hereof on such
date, ratably based upon the respective aggregate amounts
thereof owing to the Administrative Agent and Lender Parties
on such date;
(iv) fourth, to the payment of all of the fees that
are due and payable to the Appropriate Lenders under Section
2.08(a) or 2.08(b) on such date, ratably based upon the
respective undrawn aggregate Commitments of such Lenders under
the Facilities on such date;
(v) fifth, to the payment of all of the accrued and
unpaid interest on the Obligations of the Borrower under or in
respect of the Loan Documents that is due and payable to the
Agents and the Lender Parties under Section 2.07(b) on such
date, ratably based upon the respective aggregate amounts of
all such interest owing to the Agents and the Lender Parties
on such date;
Page 35
(vi) sixth, to the payment of all of the accrued and
unpaid interest on the Advances that is due and payable to the
Lender Parties under Section 2.07(a) on such date, ratably
based upon the respective aggregate amounts of all such
interest owing to the Lender Parties on such date;
(vii) seventh, to the payment of the principal amount
of all of the outstanding Advances that is due and payable to
the Lender Parties on such date, ratably based upon the
respective aggregate amounts of all such principal owing to
the Administrative Agent and the Lender Parties on such date;
and
(viii) eighth, to the payment of all other
Obligations of the Loan Parties owing under or in respect of
the Loan Documents that are due and payable to the Agents and
the other Secured Parties on such date, ratably based upon the
respective aggregate amounts of all such Obligations owing to
the Agents and the other Secured Parties on such date.
If the Administrative Agent receives funds for application to the Obligations of
the Loan Parties under or in respect of the Loan Documents under circumstances
for which the Loan Documents do not specify the Advances or the Facility to
which, or the manner in which, such funds are to be applied, the Administrative
Agent shall distribute such funds to each of the Lender Parties in accordance
with such Lender Party's Pro Rata Share of the aggregate principal amount of all
Advances outstanding at such time, in repayment or prepayment of such of the
outstanding Advances or other Obligations then owing to such Lender Party, and
for application to the principal repayment installments thereof in inverse order
of maturity.
Section 2.12. Taxes.
(a) Any and all payments by any Loan Party to or for the
account of any Lender Party or any Agent hereunder or under any other
Loan Document shall be made, in accordance with Section 2.11 or the
applicable provisions of such other Loan Document, if any, free and
clear of and without deduction for any and all present or future taxes,
levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto imposed by the United States or any
political subdivision thereof or any other jurisdiction or any
political subdivision thereof from or through which such payments are
made, excluding, in the case of each Lender Party and each Agent, taxes
that are imposed on its overall net income by the United States and
taxes that are imposed on its overall net income (and franchise taxes
imposed in lieu thereof) by the state or foreign jurisdiction under the
laws of which such Lender Party or such Agent, as the case may be, is
organized or any political subdivision thereof and, in the case of each
Lender Party, taxes that are imposed on its overall net income (and
franchise taxes imposed in lieu thereof) by the state or foreign
jurisdiction of such Lender Party's Applicable Lending Office or any
political subdivision thereof and branch profits taxes imposed by the
United States or similar tax imposed by the jurisdiction of such Lender
Party's Applicable Lending Office or any political subdivision thereof
(all such non-excluded taxes, levies, imposts, deductions, charges,
withholdings and liabilities in respect of payments hereunder or under
the other Loan Documents being hereinafter referred to as "TAXES"). If
any Loan Party shall be required by law to deduct any Taxes from or in
respect of any sum payable hereunder or under any other Loan Document
to any Lender Party or any Agent, (i) the sum payable by such Loan
Party shall be increased as may be necessary so that after such Loan
Party and the Administrative Agent have made all required deductions
(including deductions applicable to additional sums payable under this
Section 2.12) such Lender Party or such Agent, as the case may be,
receives an amount equal to the sum it would have received had no such
Page 36
deductions been made, (ii) such Loan Party shall make all such
deductions and (iii) such Loan Party shall pay the full amount deducted
to the relevant taxation authority or other authority in accordance
with applicable law.
(b) In addition, each Loan Party shall pay any present or
future stamp, documentary, excise, property, intangible, mortgage
recording or similar taxes, charges or levies that arise from any
payment made by such Loan Party hereunder or under any other Loan
Documents or from the execution, delivery or registration of,
performance under, or otherwise with respect to, this Agreement and/or
the other Loan Documents (hereinafter referred to as "OTHER TAXES").
(c) The Loan Parties shall indemnify each Lender Party and
each Agent for and hold them harmless against the full amount of Taxes
and Other Taxes, and for the full amount of Taxes and Other Taxes
imposed or asserted on amounts payable under this Section 2.12, imposed
on or paid by such Lender Party or such Agent (as the case may be) and
any liability (including penalties, additions to tax, interest and
expenses) arising therefrom or with respect thereto. This
indemnification shall be made within 30 days from the date such Lender
Party or such Agent (as the case may be) makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes, the
appropriate Loan Party shall furnish to the Administrative Agent, at
its address referred to in Section 9.02, the original or a certified
copy of a receipt evidencing such payment, to the extent such a receipt
is issued therefor, or other written proof of payment thereof that is
reasonably satisfactory to the Administrative Agent. In the case of any
payment hereunder or under the other Loan Documents by or on behalf of
a Loan Party through an account or branch outside the United States or
by or on behalf of a Loan Party by a payor that is not a United States
person, if such Loan Party determines that no Taxes are payable in
respect thereof, such Loan Party shall furnish, or shall cause such
payor to furnish, to the Administrative Agent, at such address, an
opinion of counsel acceptable to the Administrative Agent stating that
such payment is exempt from Taxes. For purposes of subsections (d) and
(e) of this Section 2.12, the terms "UNITED STATES" and "UNITED STATES
PERSON" shall have the meanings specified in Section 7701 of the
Internal Revenue Code.
(e) Each Lender Party that is not a United States person
shall, on or prior to the date of its execution and delivery of this
Agreement in the case of each Initial Lender Party and on the date of
the Assignment and Acceptance pursuant to which it becomes a Lender
Party in the case of each other Lender Party, and from time to time
thereafter as reasonably requested in writing by the Loan Party (but
only so long thereafter as such Lender Party remains lawfully able to
do so), provide each of the Administrative Agent and such Loan Party
with two original Internal Revenue Service Forms W-8BEN and/or Form
W-8IMY, as applicable (in each case, certifying that it is entitled to
benefits under an income tax treaty to which the United States is a
party) or W-8ECI, or in the case of a Lender Party that has certified
in writing to the Administrative Agent that it is not (i) a "bank" as
defined in Section 881(c)(3)(A) of the Internal Revenue Code, (ii) a
10-percent shareholder (within the meaning of Section 871(h)(3)(B) of
the Internal Revenue Code) of any Loan Party or (iii) a controlled
foreign corporation related to the Borrower (within the meaning of
Section 864(d)(4) of the Internal Revenue Code), Internal Revenue
Service Form W-8BEN or Form W-8IMY, as appropriate, or any successor or
other form prescribed by the Internal Revenue Service, certifying that
such Lender Party is exempt from or entitled to a reduced rate of
United States withholding tax on payments pursuant to this Agreement or
the other Loan Documents. If the forms provided by a Lender Party at
Page 37
the time such Lender Party first becomes a party to this Agreement
indicate a United States interest withholding tax rate in excess of
zero, withholding tax at such rate shall be considered excluded from
Taxes unless and until such Lender Party provides the appropriate forms
certifying that a lesser rate applies, whereupon withholding tax at
such lesser rate only shall be considered excluded from Taxes for
periods governed by such forms; provided, however, that if, at the
effective date of the Assignment and Acceptance pursuant to which a
Lender Party becomes a party to this Agreement, the Lender Party
assignor was entitled to payments under subsection (a) of this Section
2.12 in respect of United States withholding tax with respect to
interest paid at such date, then, to such extent, the term Taxes shall
include (in addition to withholding taxes that may be imposed in the
future or other amounts otherwise includable in Taxes) United States
withholding tax, if any, applicable with respect to the Lender Party
assignee on such date. To the extent required by applicable law, each
Lender Party that is a United States person shall, on the date of its
execution and delivery of this Agreement in the case of each Initial
Lender Party and on the date of the Assignment and Acceptance pursuant
to which it becomes a Lender Party in the case of each other Lender
Party, upon expiration or obsolescence of any form previously submitted
under this Section 2.12(e), and from time to time thereafter as
reasonably requested in writing by the Loan Party (but only so long
thereafter as such Lender Party remains lawfully able to do so),
provide each of the Administrative Agent and such Loan Party with two
original Internal Revenue Service Forms W-9 (or successor forms)
establishing that such Lender Party is not subject to U.S. backup
withholding tax. If any form or document referred to in this subsection
(e) requires the disclosure of information, other than information
necessary to compute the tax payable and information required on the
date hereof by Internal Revenue Service Form W-8BEN or W-8EC1 or the
related certificate described above, that the applicable Lender Party
reasonably considers to be confidential, such Lender Party shall give
notice thereof to the Borrower and shall not be obligated to include in
such form or document such confidential information.
(f) For any period with respect to which a Lender Party has
failed to provide the Borrower with the appropriate form, certificate
or other document described in subsection (e) above (other than if such
failure is due to a change in law, or in the interpretation or
application thereof, occurring after the date on which a form,
certificate or other document originally was required to be provided or
if such form, certificate or other document otherwise is not required
under subsection (e) above), such Lender Party shall not be entitled to
payments of additional amounts or indemnification under subsection (a)
or (c) of this Section 2.12 with respect to Taxes imposed by the United
States by reason of such failure; provided, however, that should a
Lender Party become subject to Taxes because of its failure to deliver
a form, certificate or other document required hereunder, the Loan
Parties shall take such steps as such Lender Party shall reasonably
request to assist such Lender Party to recover such Taxes.
(g) If a Lender Party determines, in its sole discretion, that
it has received a refund from a taxing authority of Taxes as to which
it has been indemnified or paid additional amounts by a Loan Party
pursuant to this Section 2.12, it shall pay to such Loan Party an
amount equal to such refund (but only to the extent of indemnity
payments made, or additional amounts paid, by such Loan Party under
this Section 2.12 with respect to the Taxes giving rise to such
refund), net of all out of pocket expenses of the Lender Party, and
without interest (other than any interest paid by the relevant taxing
authority with respect to such refund), within 60 days after receipt of
such refund. Notwithstanding the foregoing, (i) no Loan Party shall be
entitled to review the tax records or financial information of any
Lender Party, (ii) no Lender Party shall have any obligation to pursue
(and no Loan Party shall have any right to assert) any refund of Taxes
Page 38
that may be paid by a Loan Party, and (iii) a Loan Party receiving any
such refund from a Lender Party pursuant to this Section 2.12(g) shall
promptly pay over to the Lender Party any portion of such refund that
subsequently is disallowed by the relevant taxing authority (plus any
interest, penalties or other charges imposed by the relevant taxing
authority).
Section 2.13. Sharing of Payments, Etc. If any Lender Party shall
obtain at any time any payment (whether voluntary, involuntary, through the
exercise of any right of set-off, or otherwise, other than as a result of an
assignment pursuant to Section 9.07) (a) on account of Obligations due and
payable to such Lender Party hereunder and under the other Loan Documents at
such time in excess of its ratable share (according to the proportion of (i) the
amount of such Obligations due and payable to such Lender Party at such time to
(ii) the aggregate amount of the Obligations due and payable to all Lender
Parties hereunder and under the other Loan Documents at such time) of payments
on account of the Obligations due and payable to all Lender Parties hereunder
and under the other Loan Documents at such time obtained by all the Lender
Parties at such time or (b) on account of Obligations owing (but not due and
payable) to such Lender Party hereunder and under the other Loan Documents at
such time in excess of its ratable share (according to the proportion of (i) the
amount of such Obligations owing to such Lender Party at such time to (ii) the
aggregate amount of the Obligations owing (but not due and payable) to all
Lender Parties hereunder and under the other Loan Documents at such time) of
payments on account of the Obligations owing (but not due and payable) to all
Lender Parties hereunder and under the other Loan Documents at such time
obtained by all of the Lender Parties at such time, such Lender Party shall
forthwith purchase from the other Lender Parties such interests or participating
interests in the Obligations due and payable or owing to them, as the case may
be, as shall be necessary to cause such purchasing Lender Party to share the
excess payment ratably with each of them; provided, however, that if all or any
portion of such excess payment is thereafter recovered from such purchasing
Lender Party, such purchase from each other Lender Party shall be rescinded and
such other Lender Party shall repay to the purchasing Lender Party the purchase
price to the extent of such Lender Party's ratable share (according to the
proportion of (i) the purchase price paid to such Lender Party to (ii) the
aggregate purchase price paid to all Lender Parties) of such recovery together
with an amount equal to such Lender Party's ratable share (according to the
proportion of (i) the amount of such other Lender Party's required repayment to
(ii) the total amount so recovered from the purchasing Lender Party) of any
interest or other amount paid or payable by the purchasing Lender Party in
respect of the total amount so recovered; provided further that, so long as the
Obligations under the Loan Documents shall not have been accelerated, any excess
payment received by any Appropriate Lender shall be shared on a pro rata basis
only with other Appropriate Lenders. The Borrower agrees that any Lender Party
so purchasing an interest or participating interest from another Lender Party
pursuant to this Section 2.13 may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right of set-off) with respect
to such interest or participating interest, as the case may be, as fully as if
such Lender Party were the direct creditor of the Borrower in the amount of such
interest or participating interest, as the case may be.
Section 2.14. Use of Proceeds. The proceeds of the Term B Advances
shall only be utilized solely to (i) refinance all amounts outstanding under the
Existing Credit Agreement, (ii) fund the construction of the New Tower, (iii)
pay the fees and expenses incurred in connection with the Transaction and (iv)
provide for the ongoing working capital and general corporate needs (including
Capital Expenditures to the extent permitted by Section 5.02(o)) of the Borrower
and its Subsidiaries, provided that $146,625,000 of the Term B Advances shall be
restricted in use to, and the Borrower agrees to use such amount solely for, the
construction of the New Tower or to refinance the outstanding principal of the
Existing Debt previously advanced as "Term B Advances" under the Existing Credit
Agreement that was previously used to finance the construction of the New Tower.
The Borrower hereby certifies to the Lenders that the amounts currently
outstanding under the Existing Credit Agreement consist of $199,625,000 as a
Credit Facility as described in Section 4.09(b)(l)(A) of the New Notes Indenture
Page 39
(consisting of $53,000,000 of revolving loans and $146,625,000 of term loans)
and $146,625,000 of term loan borrowings as described in Section 4.09(b)(l)(B)
of the New Notes Indenture.
Section 2.15. Defaulting Lenders.
(a) In the event that, at any one time, (i) any Lender Party
shall be a Defaulting Lender, (ii) such Defaulting Lender shall owe a
Defaulted Advance to the Borrower, (iii) the Borrower shall receive a
notice from any applicable Governmental Authority that any Lender is no
longer qualified or suitable to make Advances to the Borrower under the
applicable Gaming Laws (and such Lender is notified by the Borrower and
the Administrative Agent in writing of such disqualification),
including because such Lender has been denied a license, qualification
or finding of suitability or has failed to deliver information required
under the applicable Gaming Laws and (iv) the Borrower shall be
required to make any payment hereunder or under any other Loan Document
to or for the account of such Defaulting Lender, then the Borrower may,
so long as no Default shall occur or be continuing at such time and to
the fullest extent permitted by applicable law, set off and otherwise
apply the Obligation of the Borrower to make such payment to or for the
account of such Defaulting Lender against the obligation of such
Defaulting Lender to make such Defaulted Advance. In the event that, on
any date, the Borrower shall so set off and otherwise apply its
obligation to make any such payment against the obligation of such
Defaulting Lender to make any such Defaulted Advance on or prior to
such date, the amount so set off and otherwise applied by the Borrower
shall constitute for all purposes of this Agreement and the other Loan
Documents an Advance by such Defaulting Lender made on the date of such
setoff under the Facility pursuant to which such Defaulted Advance was
originally required to have been made pursuant to Section 2.01. Such
Advance shall be considered, for all purposes of this Agreement, to
comprise part of the Borrowing in connection with which such Defaulted
Advance was originally required to have been made pursuant to Section
2.01, even if the other Advances comprising such Borrowing shall be
Eurodollar Rate Advances on the date such Advance is deemed to be made
pursuant to this subsection (a). The Borrower shall notify the
Administrative Agent at any time the Borrower exercises its right of
set-off pursuant to this subsection (a) and shall set forth in such
notice (A) the name of the Defaulting Lender and the Defaulted Advance
required to be made by such Defaulting Lender and (B) the amount set
off and otherwise applied in respect of such Defaulted Advance pursuant
to this subsection (a). Any portion of such payment otherwise required
to be made by the Borrower to or for the account of such Defaulting
Lender which is paid by the Borrower, after giving effect to the amount
set off and otherwise applied by the Borrower pursuant to this
subsection (a), shall be applied by the Administrative Agent as
specified in subsection (b) or (c) of this Section 2.15.
(b) In the event that, at any one time, (i) any Lender Party
shall be a Defaulting Lender, (ii) such Defaulting Lender shall owe a
Defaulted Amount to any Agent or any of the other Lender Parties and
(iii) the Borrower shall make any payment hereunder or under any other
Loan Document to the Administrative Agent for the account of such
Defaulting Lender, then the Administrative Agent may, on its behalf or
on behalf of such other Agents or such other Lender Parties and to the
fullest extent permitted by applicable law, apply at such time the
amount so paid by the Borrower to or for the account of such Defaulting
Lender to the payment of each such Defaulted Amount to the extent
required to pay such Defaulted Amount. In the event that the
Administrative Agent shall so apply any such amount to the payment of
Page 40
any such Defaulted Amount on any date, the amount so applied by the
Administrative Agent shall constitute for all purposes of this
Agreement and the other Loan Documents payment, to such extent, of such
Defaulted Amount on such date. Any such amount so applied by the
Administrative Agent shall be retained by the Administrative Agent or
distributed by the Administrative Agent to such other Agents or such
other Lender Parties, ratably in accordance with the respective
portions of such Defaulted Amounts payable at such time to the
Administrative Agent, such other Agents and such other Lender Parties
and, if the amount of such payment made by the Borrower shall at such
time be insufficient to pay all Defaulted Amounts owing at such time to
the Administrative Agent, such other Agents and such other Lender
Parties, in the following order of priority:
(i) first, to the Agents for any Defaulted Amounts
then owing to them, in their capacities as such, ratably in
accordance with such respective Defaulted Amounts then owing
to the Agents;
(ii) second, to any other Lender Parties for any
Defaulted Amounts then owing to such other Lender Parties,
ratably in accordance with such respective Defaulted Amounts
then owing to such other Lender Parties; and
(iii) Any portion of such amount paid by the Borrower
for the account of such Defaulting Lender remaining, after
giving effect to the amount applied by the Administrative
Agent pursuant to this subsection (b), shall be applied by the
Administrative Agent as specified in subsection (c) of this
Section 2.15.
(c) In the event that, at any one time, (i) any Lender Party
shall be a Defaulting Lender, (ii) such Defaulting Lender shall not owe
a Defaulted Advance or a Defaulted Amount and (iii) the Borrower, any
Agent or any other Lender Party shall be required to pay or distribute
any amount hereunder or under any other Loan Document to or for the
account of such Defaulting Lender, then the Borrower or such Agent or
such other Lender Party shall pay such amount to the Administrative
Agent to be held by the Administrative Agent, to the fullest extent
permitted by applicable law, in escrow or the Administrative Agent
shall, to the fullest extent permitted by applicable law, hold in
escrow such amount otherwise held by it. Any funds held by the
Administrative Agent in escrow under this subsection (c) shall be
deposited by the Administrative Agent in an account with a bank (the
"ESCROW BANK") selected by the Administrative Agent, in the name and
under the control of the Administrative Agent, but subject to the
provisions of this subsection (c). The terms applicable to such
account, including the rate of interest payable with respect to the
credit balance of such account from time to time, shall be the Escrow
Bank's standard terms applicable to escrow accounts maintained with it.
Any interest credited to such account from time to time shall be held
by the Administrative Agent in escrow under, and applied by the
Administrative Agent from time to time in accordance with the
provisions of, this subsection (c). The Administrative Agent shall, to
the fullest extent permitted by applicable law, apply all funds so held
in escrow from time to time to the extent necessary to make any
Advances required to be made by such Defaulting Lender and to pay any
amount payable by such Defaulting Lender hereunder and under the other
Loan Documents to the Administrative Agent or any other Lender Party,
as and when such Advances or amounts are required to be made or paid
and, if the amount so held in escrow shall at any time be insufficient
to make and pay all such Advances and amounts required to be made or
paid at such time, in the following order of priority:
(i) first, to the Agents for any amounts then due and
payable by such Defaulting Lender to them hereunder, in their
capacities as such, ratably in accordance with such respective
amounts then due and payable to the Agents;
Page 41
(ii) second, to any other Lender Parties for any
amount then due and payable by such Defaulting Lender to such
other Lender Parties hereunder, ratably in accordance with
such respective amounts then due and payable to such other
Lender Parties; and
(iii) third, to the Borrower for any Advance then
required to be made by such Defaulting Lender pursuant to a
Commitment of such Defaulting Lender.
In the event that any Lender Party that is a Defaulting Lender shall, at any
time, cease to be a Defaulting Lender, any funds held by the Administrative
Agent in escrow at such time with respect to such Lender Party shall be
distributed by the Administrative Agent to such Lender Party and applied by such
Lender Party to the Obligations owing to such Lender Party at such time under
this Agreement and the other Loan Documents ratably in accordance with the
respective amounts of such Obligations outstanding at such time.
(d) The rights and remedies against a Defaulting Lender under
this Section 2.15 are in addition to other rights and remedies that the
Borrower may have against such Defaulting Lender with respect to any
Defaulted Advance and that any Agent or any Lender Party may have
against such Defaulting Lender with respect to any Defaulted Amount.
Section 2.16. Evidence of Debt.
(a) Each Lender Party shall maintain in accordance with its
usual practice an account or accounts evidencing the indebtedness of
the Borrower to such Lender resulting from each Advance owing to such
Lender Party from time to time, including the amounts of principal and
interest payable and paid to such Lender from time to time hereunder.
On the Effective Date or, in the case of any change after the Effective
Date in the identity of any Lender or, as a result of any Assignment
and Acceptance, in the principal amount of the Term B-1 Advance held by
any Lender or the Term B-2 Commitment of any Lender, and promptly upon
the request of any Lender, the Borrower shall execute and deliver to
each applicable Lender, with a copy to the Administrative Agent, a Term
B-1 Note in substantially the form of EXHIBIT A-1 hereto, payable to
the order of such Lender in a principal amount equal to the Term B-1
Advance held by such Lender and/or, as applicable, a Term B-2 Note in
substantially in the form of EXHIBIT A-2 hereto, payable to the order
of such Lender in a principal amount equal to the Term B-2 Commitment
of such Lender. All references to Notes in the Loan Documents shall
mean Notes, if any, to the extent issued hereunder.
(b) If requested by Required Lenders, the Register maintained
by the Administrative Agent pursuant to Section 9.07(d) shall include a
control account, and a subsidiary account for each Lender Party, in
which accounts (taken together) shall be recorded (i) the date and
amount of each Borrowing made hereunder, the Type of Advances
comprising such Borrowing and, if appropriate, the Interest Period
applicable thereto, (ii) the terms of each Assignment and Acceptance
delivered to and accepted by it, (iii) the amount of any principal or
interest due and payable or to become due and payable from the Borrower
to each Lender Party hereunder, and (iv) the amount of any sum received
by the Administrative Agent from the Borrower hereunder and each Lender
Party's share thereof.
(c) Entries made in good faith by the Administrative Agent in
the Register pursuant to subsection (b) above, and entries made in good
faith by each Lender Party in its account or accounts pursuant to
subsection (a) above, shall be prima facie evidence of the amount of
Page 42
principal and interest due and payable or to become due and payable
from the Borrower to, in the case of the Register, each Lender Party
and, in the case of such account or accounts, such Lender, under this
Agreement, absent manifest error; provided, however, that the failure
of the Administrative Agent or such Lender Party to make an entry, or
any finding that an entry is incorrect, in the Register or such account
or accounts shall not limit or otherwise affect the obligations of the
Borrower under this Agreement.
ARTICLE III
CONDITIONS OF LENDING
Section 3.01. Conditions Precedent to Initial Extension of Credit.
Section 2.01 of this Agreement shall become effective on and as of the first
date (the "EFFECTIVE DATE") on which the following conditions have been
satisfied or waived and the obligation of each Lender to make an Advance on the
Effective Date is subject to the satisfaction or waiver of such conditions
precedent before or concurrently with the Effective Date:
(a) The Administrative Agent shall have received on or before
the Effective Date the following, each dated such day (unless otherwise
specified), in form and substance reasonably satisfactory to the
Administrative Agent (unless otherwise specified) and (except for the
Notes) in sufficient copies for each Lender Party:
(i) The Notes payable to the order of the Lenders.
(ii) A security agreement in substantially the form
of EXHIBIT D hereto (together with each other security
agreement and security agreement supplement delivered pursuant
to Section 5.01(j), in each case as amended, the "SECURITY
AGREEMENT"), duly executed by each Loan Party, together with:
(A) certificates, if any, representing the
Pledged Equity referred to therein accompanied by
undated stock powers executed in blank and
instruments evidencing the Pledged Debt indorsed in
blank,
(B) proper financing statements in form
appropriate for filing under the Uniform Commercial
Code of all jurisdictions that the Administrative
Agent may reasonably deem necessary or desirable in
order to perfect and protect the first priority liens
and security interests created under the Security
Agreement, covering the Collateral described in the
Security Agreement,
(C) completed requests for information,
dated on or before the Effective Date, listing all
effective financing statements filed in the
jurisdictions referred to in clause (B) above that
name any Loan Party as debtor, together with copies
of such other financing statements,
(D) evidence of the completion of all other
recordings and filings of or with respect to the
Security Agreement that the Administrative Agent may
reasonably deem necessary or desirable in order to
perfect and protect the security interest created
thereunder,
Page 43
(E) evidence of the insurance required by
the terms of the Security Agreement,
(F) copies of the Trademark License
Agreement, together with a consent to the assignment
of such agreement in substantially the form of
EXHIBIT B to the Security Agreement, duly executed by
each party to such assignment other than the Loan
Parties,
(G) the Intellectual Property Security
Agreement referred to in the Security Agreement (the
"INTELLECTUAL PROPERTY SECURITY AGREEMENT") in form
appropriate for filing with the U.S. Copyright Office
and/or U.S. Patent and Trademark Office, as
applicable, duly executed by each Loan Party,
(H) the Account Control Agreements referred
to in the Security Agreement, duly executed by each
Pledged Account Bank referred to in the Security
Agreement,
(I) the Securities Account Control
Agreements referred to in the Security Agreement,
duly executed by the Collateral Agent, the applicable
Loan Party and the applicable securities
intermediary, and
(J) evidence that all other action that the
Administrative Agent may reasonably deem necessary or
desirable in order to perfect and protect the first
priority liens and security interests created under
the Security Agreement has been taken (including,
without limitation, receipt of duly executed payoff
letters, UCC-3 termination statements and landlords'
and bailees' waiver and consent agreements).
(iii) Reserved.
(iv) Deeds of trust, trust deeds, mortgages,
leasehold mortgages and leasehold deeds of trust in
substantially the form of EXHIBIT F hereto (with such changes
as may be reasonably satisfactory to the Administrative Agent
and its counsel to account for local law matters) and
otherwise in form and substance reasonably satisfactory to the
Administrative Agent and covering the Properties (other than
Excluded Properties) (together with Assignments of Leases and
Rents and each other mortgage delivered pursuant to Section
5.01(j), in each case as amended, the "MORTGAGES"), duly
executed by the appropriate Loan Party, together with:
(A) evidence that counterparts of the
Mortgages have been either (x) duly recorded on or
before the day of the Initial Extension of Credit or
(y) duly executed, acknowledged and delivered in form
suitable for filing or recording, in all filing or
recording offices that the Administrative Agent may
reasonably deem necessary or desirable in order to
create a valid first and subsisting Lien on the
property described therein in favor of the Collateral
Agent for the benefit of the Secured Parties and that
all filing and recording taxes and fees have been
paid,
(B) fully paid American Land Title
Association Lender's Extended Coverage title
insurance policies (the "MORTGAGE POLICIES") in form
and substance, with endorsements and in amount
Page 44
reasonably acceptable to the Administrative Agent,
issued, coinsured and reinsured by title insurers
acceptable to the Administrative Agent, insuring the
Mortgages to be valid first and subsisting Liens on
the property described therein, free and clear of all
defects (including, but not limited to, mechanics'
and materialmen's Liens) and encumbrances, excepting
only Permitted Liens and Permitted Encumbrances, and
providing for such other affirmative insurance
(including endorsements for future advances under the
Loan Documents and for mechanics' and materialmen's
Liens) and such coinsurance and direct access
reinsurance as the Administrative Agent may deem
necessary or desirable,
(C) American Land Title Association/American
Congress on Surveying and Mapping form surveys, for
which all necessary fees (where applicable) have been
paid, and dated no more than 30 days before the day
of the Initial Extension of Credit, certified to the
Administrative Agent and the issuer of the Mortgage
Policies in a manner satisfactory to the
Administrative Agent by a land surveyor duly
registered and licensed in the States in which the
property described in such surveys is located and
acceptable to the Administrative Agent, showing all
buildings and other improvements, any off-site
improvements, the location of any easements, parking
spaces, rights of way, building set-back lines and
other dimensional regulations and the absence of
encroachments, either by such improvements or on to
such property, and other defects, other than
encroachments and other defects acceptable to the
Administrative Agent,
(D) estoppel and consent agreements, in form
and substance reasonably satisfactory to the
Administrative Agent, executed by each of the lessors
of the leased real properties listed on Part B of
Schedule 4.01(v) hereto, along with (x) a memorandum
of lease in recordable form with respect to such
leasehold interest, executed and acknowledged by the
owner of the affected real property, as lessor, or
(y) evidence that the applicable lease with respect
to such leasehold interest or a memorandum thereof
has been recorded in all places necessary or
desirable, in the Administrative Agent's reasonable
judgment, to give constructive notice to third-party
purchasers of such leasehold interest, or (z) if such
leasehold interest was acquired or subleased from the
holder of a recorded leasehold interest, the
applicable assignment or sublease document, executed
and acknowledged by such holder, in each case in form
sufficient to give such constructive notice upon
recordation and otherwise in form reasonably
satisfactory to the Administrative Agent,
(E) evidence of the insurance required by
the terms of the Mortgages,
(F) certified copies of all management
agreements, duly executed by each of the parties
thereto, relating to each of the Properties,
(G) duly executed management subordination
agreements, each in a form satisfactory to the
Administrative Agent, corresponding to each of the
management agreements, and
Page 45
(H) such other consents, agreements and
confirmations of lessors and third parties as the
Administrative Agent may reasonably deem necessary or
desirable and evidence that all other actions that
the Administrative Agent may deem necessary or
desirable in order to create valid first and
subsisting Liens on the property described in the
Mortgages has been taken.
(v) Certified copies of the resolutions of the board
of directors (or similar governing body) of each Loan Party
approving the Transaction and each Transaction Document to
which it is or is to be a party, and of all documents
evidencing other necessary corporate (or limited liability
company) action and governmental and other third party
approvals and consents, if any, with respect to the
Transaction and each Transaction Document to which it is or is
to be a party.
(vi) A copy of a certificate of the Secretary of
State of the jurisdiction of incorporation or formation, as
applicable, of each Loan Party, dated reasonably near the date
of the Initial Extension of Credit, certifying (A) as to a
true and correct copy of the charter of such Loan Party and
each amendment thereto on file in such Secretary's office and
(B) that (1) such amendments are the only amendments to such
Loan Party's charter on file in such Secretary's office, (2)
such Loan Party has paid all franchise taxes to the date of
such certificate and (3) such Loan Party is duly incorporated
or formed, as applicable, and in good standing or presently
subsisting under the laws of the State of the jurisdiction of
its incorporation or formation, as applicable.
(vii) A certificate of each Loan Party, signed on
behalf of such Loan Party by its President or a Vice President
and its Secretary or any Assistant Secretary, dated the date
of the Initial Extension of Credit (the statements made in
which certificate shall be true on and as of the date of the
Initial Extension of Credit), certifying as to (A) the absence
of any amendments to the charter of such Loan Party since the
date of the Secretary of State's certificate referred to in
Section 3.01(a)(vi), (B) a true and correct copy of the bylaws
(or other applicable formation documents) of such Loan Party
as in effect on the date on which the resolutions referred to
in Section 3.01(a)(v) were adopted and on the date of the
Initial Extension of Credit, (C) the due incorporation (or
formation) and good standing or valid existence of such Loan
Party as a corporation organized (or, in the case of a limited
liability company, formed) under the laws of the jurisdiction
of its incorporation (or formation) and the absence of any
proceeding for the dissolution or liquidation of such Loan
Party, (D) the truth in all material respects of the
representations and warranties contained in the Loan Documents
as though made on and as of the date of the Initial Extension
of Credit and (E) the absence of any event occurring and
continuing, or resulting from the Initial Extension of Credit,
that constitutes a Default.
(viii) A certificate of the Secretary or an Assistant
Secretary of each Loan Party certifying the names and true
signatures of the officers of such Loan Party authorized to
sign each Transaction Document to which it is or is to be a
party and the other documents to be delivered hereunder and
thereunder.
(ix) Certified copies of each of the Related
Documents and other material agreements or contracts executed
and/or delivered in connection therewith as the Administrative
Agent may request.
Page 46
(x) An "Officers' Certificate", as such term is
defined in the New Notes Indenture, executed by two
appropriate officers of the Borrower and delivered to the
Collateral Agent and the "Collateral Agent", as such term is
defined in the New Notes Indenture, which provides that the
Obligations of any Loan Party under the Loan Documents
constitute, and satisfy each of the requirements as set forth
in the definition of the term, "Priority Lien Debt", as such
term is defined in the New Notes Indenture.
(xi) Certificates, in substantially the form of
EXHIBIT G hereto, attesting to the Solvency of each Loan Party
before and after giving effect to the Transaction, from a
Responsible Officer of each Loan Party.
(xii) Such financial, business and other information
regarding each Loan Party and its Subsidiaries as the Lender
Parties shall have reasonably requested, including, without
limitation, information as to the use of proceeds of the loans
previously advanced to the Borrower and/or for the benefit of
the Loan Parties under the Existing Credit Agreement, possible
contingent liabilities, tax matters, environmental matters,
obligations under Plans and Multiemployer Plans, collective
bargaining agreements and other arrangements with employees,
audited annual financial statements dated December 31, 2006,
interim financial statements dated the end of the most recent
fiscal quarter for which financial statements are available
(or, in the event the Lender Parties' due diligence review
reveals material changes since such financial statements, as
of a later date within 45 days of the day of the Initial
Extension of Credit), pro forma financial statements as to the
Borrower and forecasts prepared by management of the Borrower,
in form and substance reasonably satisfactory to the Lender
Parties, of balance sheets, income statements and cash flow
statements on a quarterly basis for each year following the
Effective Date until the Term B Maturity Date.
(xiii) Phase I environmental assessment reports, to
be generated in accordance with standards promulgated by the
American Society for Testing and Materials for Phase I
Assessments, from an environmental consulting firm reasonably
acceptable to the Administrative Agent, as to any hazards,
costs or liabilities under Environmental Laws to which any
Loan Party or any of its Subsidiaries may be subject.
(xiv) A Notice of Borrowing relating to the Initial
Extension of Credit.
(xv) The Contribution Agreement as executed by all
parties thereto.
(xvi) A favorable opinion of Xxxxxx Xxxxxx, A
Professional Association, counsel for the Loan Parties, in
substantially the form of EXHIBIT H-1 hereto and as to such
other matters as any Lender Party through the Administrative
Agent may reasonably request.
(xvii) A favorable opinion of Xxxxxx & Xxxxxxxx,
P.C., gaming counsel for the Loan Parties in New Jersey, in
substantially the form of EXHIBIT H-2 hereto and as to such
other matters as any Lender Party through the Administrative
Agent may reasonably request.
(xviii) The Postclosing Agreement as executed by all
parties thereto.
Page 47
(xix) The Intercreditor Agreement, duly executed by
the Borrower, the General Partner, the Collateral Agent and
U.S. Bank National Association, as second lien collateral
agent for the holders of the New Notes.
(b) The Administrative Agent shall be reasonably satisfied
with the corporate and legal structure and capitalization of each Loan
Party and each of its Subsidiaries the Equity Interests in which
Subsidiaries are being pledged pursuant to the Loan Documents,
including the terms and conditions of the charter, bylaws and each
class of Equity Interest in each Loan Party and each such Subsidiary
and of each agreement or instrument relating to such structure or
capitalization.
(c) The Administrative Agent shall be satisfied that all
Existing Debt, other than Surviving Debt, has been prepaid, redeemed or
defeased in full or otherwise satisfied and extinguished and all
commitments relating thereto terminated.
(d) The Administrative Agent shall be satisfied that all
approvals, acknowledgments and consents from all applicable Gaming
Authorities shall have been received in connection with the execution,
delivery and performance of this Agreement and the other Loan
Documents, including, without limitation, an acknowledgment that the
Initial Lenders are exempt from the financial source requirements of
the New Jersey Casino Control Act and that all conditions or
requirements relating to any such approval, acknowledgment or consent
have been obtained.
(e) The Borrower shall have paid the Closing Fee and all other
accrued fees of the Agents and the Lender Parties and all expenses of
the Agents (including the accrued fees and expenses of counsel to the
Administrative Agent and local counsel to the Lender Parties) due and
payable on or prior to the Effective Date.
Section 3.02. Conditions Precedent to Each Borrowing. The obligation of
each Appropriate Lender to make an Advance on the occasion of each Borrowing
(including the initial Borrowing), shall be subject to the further conditions
precedent that, on the date of such Borrowing, (i) the Required Lenders shall
not have notified the Administrative Agent that they believe a Material Adverse
Change has occurred and (ii) the following statements shall be true and the
Administrative Agent shall have received for the account of such Lender a
certificate signed by a duly authorized officer of the Borrower, dated the date
of such Borrowing or issuance, stating that:
(a) the representations and warranties contained in each Loan
Document are true and correct in all material respects on and as of
such date, before and after giving effect to such Borrowing or issuance
or renewal and to the application of the proceeds therefrom, as though
made on and as of such date, other than any such representations or
warranties that, by their terms, refer to a specific date other than
the date of such Borrowing or issuance, in which case as of such
specific date;
(b) no Default has occurred and is continuing, or would result
from such Borrowing or issuance or from the application of the proceeds
therefrom (including, without limitation, under Section 2.14); and
(c) with respect to any requested Term B-2 Advance, all
insurance required by Section 5.01(d) hereof shall be in full force and
effect.
Page 48
Section 3.03. Determinations Under Section 3.01. For purposes of
determining compliance with the conditions specified in Section 3.01, each
Lender Party shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to the Lender Parties unless an
officer of the Administrative Agent responsible for the transactions
contemplated by the Loan Documents shall have received notice from such Lender
Party prior to the Effective Date specifying its objection thereto and such
Lender Party shall not have made available to the Administrative Agent such
Lender Party's ratable portion of such Borrowing.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.01. Representations and Warranties of the Loan Parties. Each
Loan Party represents and warrants as follows:
(a) Each Loan Party and each of its Subsidiaries (i) is a
corporation, limited liability company or limited partnership duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its formation, (ii) is duly qualified and in good
standing as a foreign corporation or company in each other jurisdiction
in which it owns or leases property or in which the conduct of its
business requires it to so qualify or be licensed, except where the
failure to so qualify or be licensed could not be reasonably expected
to have a Material Adverse Effect and (iii) has all requisite
corporate, limited liability company or partnership (as applicable)
power and authority (including, without limitation, all Governmental
Authorizations) to own or lease and operate its properties and to carry
on its business as now conducted and as proposed to be conducted. All
of the outstanding Equity Interests in the Borrower have been validly
issued, are fully paid and non-assessable.
(b) Set forth on Schedule 4.01(b) hereto is a complete and
accurate list of all Subsidiaries of each Loan Party, showing as of the
date hereof (as to each such Subsidiary) the jurisdiction of its
formation, the number of shares, membership interests or partnership
interests (as applicable) of each class of its Equity Interests
authorized, and the number outstanding, on the date hereof and the
percentage of each such class of its Equity Interests owned (directly
or indirectly) by such Loan Party and the number of shares covered by
all outstanding options, warrants, rights of conversion or purchase and
similar rights at the date hereof. All of the outstanding Equity
Interests in each Subsidiary Guarantor have been validly issued, are
fully paid and non-assessable and are owned by the Persons set forth in
Schedule 4.01(b) and, to the extent owned by a Loan Party, are free and
clear of all Liens, except those created under the Collateral Documents
and, subject to the Intercreditor Agreement, Liens permitted under
Section 5.02(a)(ii).
(c) The execution, delivery and performance by each Loan Party
of each Transaction Document to which it is or is to be a party, and
the consummation of the Transaction, are within such Loan Party's
corporate, limited liability company or limited partnership (as
applicable) powers, have been duly authorized by all necessary
corporate, limited liability company or limited partnership (as
applicable) action, and do not (i) contravene such Loan Party's
charter, bylaws, limited liability company agreement, partnership
agreement or other constituent documents, (ii) violate any law, rule,
regulation (including, without limitation, Regulation X of the Board of
Governors of the Federal Reserve System and Gaming Laws), order, writ,
judgment, injunction, decree, determination or award, except for any
such violation which could not, either individually or in the
Page 49
aggregate, reasonably be expected to have a Material Adverse Effect,
(iii) conflict with or result in the breach of, or constitute a default
or require any payment to be made under, any contract, loan agreement,
indenture, mortgage, deed of trust, lease or other instrument binding
on or affecting any Loan Party, any of its Subsidiaries or any of their
properties, except for any such conflict, breach, default or required
payment which could not, either individually or in the aggregate
reasonably be expected to have a Material Adverse Effect or (iv) except
for the Liens created under the Loan Documents, result in or require
the creation or imposition of any Lien upon or with respect to any of
the properties of any Loan Party or any of its Subsidiaries. No Loan
Party or any of its Subsidiaries is in violation of any such law, rule,
regulation, order, writ, judgment, injunction, decree, determination or
award or in breach of any such contract, loan agreement, indenture,
mortgage, deed of trust, lease or other instrument, the violation or
breach of which could be reasonably likely to have a Material Adverse
Effect.
(d) No Governmental Authorization, and no notice to or filing
with, any Governmental Authority or any other third party is required
for (i) the due execution, delivery, recordation, filing or performance
by any Loan Party of any Transaction Document to which it is or is to
be a party, or for the consummation of the Transaction, (ii) the grant
by any Loan Party of the Liens granted by it pursuant to the Collateral
Documents, (iii) the perfection or maintenance of the Liens created
under the Collateral Documents (including the first priority nature
thereof) or (iv) the exercise by any Agent or any Lender Party of its
rights under the Loan Documents or the remedies in respect of the
Collateral pursuant to the Collateral Documents, except for the
authorizations, approvals, actions, notices and filings specifically
contemplated in the Collateral Documents or listed on Schedule 4.01(d)
hereto, all of which (other than those specifically contemplated by the
Collateral Documents) have been duly obtained, taken, given or made and
are in full force and effect. All applicable waiting periods in
connection with the Transaction have expired without any action having
been taken by any competent authority restraining, preventing or
imposing materially adverse conditions upon the Transaction or the
rights of the Loan Parties or their Subsidiaries freely to transfer or
otherwise dispose of, or to create any Lien on, any properties now
owned or hereafter acquired by any of them.
(e) This Agreement has been, and each other Transaction
Document when delivered hereunder will have been, duly executed and
delivered by each Loan Party party thereto. This Agreement is, and each
other Transaction Document when delivered hereunder will be, the legal,
valid and binding obligation of each Loan Party party thereto,
enforceable against such Loan Party in accordance with its terms.
(f) There is no action, suit, investigation, litigation or
proceeding affecting any Loan Party or any of its Subsidiaries,
including any Environmental Action, pending or threatened before any
Governmental Authority or arbitrator that (i) could be reasonably
likely to have a Material Adverse Effect (other than the matters
described in Schedule 4.01(f) hereto (the "DISCLOSED LITIGATION") or
(ii) purports to affect the legality, validity or enforceability of any
Transaction Document or the consummation of the Transaction, and there
has been no adverse change in the status, or financial effect on any
Loan Party or any of its Subsidiaries, of the Disclosed Litigation from
that described on Schedule 4.01(f) hereto.
(g) The Consolidated balance sheet of the General Partner and
its Subsidiaries as at December 31, 2006, and the related Consolidated
statements of income and Consolidated statement of cash flows of the
General Partner and its Subsidiaries for the fiscal year then ended,
accompanied by an opinion of Ernst & Young LLP, independent public
Page 50
accountants, duly certified by the Responsible Officer of the General
Partner, copies of which have been furnished to each Lender Party,
fairly present the Consolidated financial condition of the General
Partner and its Subsidiaries as at such dates and the Consolidated
results of operations of the General Partner and its Subsidiaries for
the periods ended on such dates, all in accordance with generally
accepted accounting principles applied on a consistent basis, and since
December 31, 2006, there has been no Material Adverse Change, other
than any change disclosed in publicly filed documents filed by the
General Partner or any of its Subsidiaries not less than five Business
Days prior to the Effective Date.
(h) The Consolidated forecasted balance sheet, statements of
income and statements of cash flows of the General Partner and its
Subsidiaries delivered to the Lender Parties pursuant to Section
3.01(a)(xii) or 5.03 were prepared in good faith on the basis of the
assumptions stated therein, which assumptions were fair in light of the
conditions existing at the time of delivery of such forecasts, and
represented, at the time of delivery, the General Partner's reasonable
estimate of its future financial performance.
(i) No information, exhibit or report furnished by or on
behalf of any Loan Party to any Agent or any Lender Party in connection
with the negotiation and syndication of the Loan Documents or pursuant
to the terms of the Loan Documents contained any untrue statement of a
material fact or omitted to state a material fact necessary to make the
statements made therein not misleading.
(j) All Gaming Licenses have been duly obtained and are in
full force and effect without any known conflict with the rights of
others and free from any unduly burdensome restrictions, except where
any such failure to obtain such Gaming Licenses or any such conflict or
restriction could not reasonably be expected to have a Material Adverse
Effect. None of the Loan Parties has received any written notice or
other written communications from any Gaming Authority regarding (A)
any revocation, withdrawal, suspension, termination or modification of,
or the imposition of any material conditions with respect to, any
Gaming License, or (B) any other limitations on the conduct of business
by any Loan Party, except where any such revocation, withdrawal,
suspension, termination, modification, imposition or limitation could
not reasonably be expected to have a Material Adverse Effect.
(k) No Loan Party is engaged in the business of extending
credit for the purpose of purchasing or carrying Margin Stock, and no
proceeds of any Advance will be used to purchase or carry any Margin
Stock or to extend credit to others for the purpose of purchasing or
carrying any Margin Stock.
(l) Neither any Loan Party nor any of its Subsidiaries is an
"investment company," or an "affiliated person" of, or "promoter" or
"principal underwriter" for, an "investment company," as such terms are
defined in the Investment Company Act of 1940, as amended. Neither any
Loan Party nor any of its Subsidiaries is a "holding company," or a
"subsidiary company" of a "holding company," or an "affiliate" of a
"holding company" or of a "subsidiary company" of a "holding company,"
as such terms are defined in the Public Utility Holding Company Act of
1935, as amended. Neither the making of any Advances, nor the
application of the proceeds or repayment thereof by the Borrower, nor
the consummation of the other transactions contemplated by the
Transaction Documents, will violate any provision of any such Act or
any rule, regulation or order of the Securities and Exchange Commission
thereunder.
Page 51
(m) All filings and other actions necessary or desirable to
perfect and protect the security interest in the Collateral created
under the Collateral Documents have been duly made or taken and are in
full force and effect, and the Collateral Documents create in favor of
the Collateral Agent for the benefit of the Secured Parties a valid
and, together with such filings and other actions, perfected first
priority security interest in the Collateral (subject solely to
Permitted Liens), securing the payment of the Secured Obligations, and
all filings and other actions necessary or desirable to perfect and
protect such security interest have been duly taken. The Loan Parties
are the legal and beneficial owners of the Collateral free and clear of
any Lien, except for the liens and security interests created or
permitted under the Loan Documents and Permitted Liens. Each Mortgage
creates, as security for the obligations purported to be secured
thereby, a valid and enforceable first mortgage Lien on the respective
Property in favor of the Administrative Agent (or such other trustee as
may be required or desired under local law) for the benefit of the
Secured Parties, superior and prior to the rights of all third Persons,
subject to Permitted Liens.
(n) Each Loan Party is, individually and together with its
Subsidiaries, Solvent.
(o) (i) Set forth on Schedule 4.01(o) hereto is a complete and
accurate list of all Plans and Multiemployer Plans.
(ii) No ERISA Event has occurred or is reasonably
expected to occur with respect to any Plan that could
reasonably be expected to result in a material liability to a
Loan Party or any ERISA Affiliate.
(iii) Schedule B (Actuarial Information) to the most
recent annual report (Form 5500 Series) for each Plan, copies
of which have been filed with the Internal Revenue Service and
furnished to the Lender Parties, is complete and accurate in
all material respects and fairly presents in all material
respects the funding status of such Plan, and since the date
of such Schedule B there has been no material adverse change
in such funding status.
(iv) Neither any Loan Party nor any ERISA Affiliate
has incurred or is reasonably expected to incur any Withdrawal
Liability to any Multiemployer Plan.
(v) Neither any Loan Party nor any ERISA Affiliate
has been notified by the sponsor of a Multiemployer Plan that
such Multiemployer Plan is in reorganization or has been
terminated, within the meaning of Title IV of ERISA, and no
such Multiemployer Plan is reasonably expected to be in
reorganization or to be terminated, within the meaning of
Title IV of ERISA.
(p) (i) The operations and properties of each Loan Party and
each of its Subsidiaries comply in all material respects with
all applicable Environmental Laws and Environmental Permits,
all past non-compliance with such Environmental Laws and
Environmental Permits has been resolved without ongoing
material obligations or costs, and no circumstances exist that
could be reasonably likely to (A) form the basis of an
Environmental Action against any Loan Party or any of its
Subsidiaries or any of their properties that could reasonably
be expected to have a Material Adverse Effect or (B) cause any
such property to be subject to any restrictions on ownership,
occupancy, use or transferability under any Environmental Law.
Page 52
(ii) Except for matters that could not, individually
or in the aggregate, reasonably be expected to have a Material
Adverse Effect, none of the properties currently or formerly
owned or operated by any Loan Party or any of its Subsidiaries
is listed or proposed for listing on the NPL or on the CERCLIS
or any analogous foreign, state or local list or is adjacent
to any such property; there are no and to its knowledge never
have been any underground or aboveground storage tanks or any
surface impoundments, septic tanks, pits, sumps or lagoons in
which Hazardous Materials are being or have been treated,
stored or disposed on any property currently owned or operated
by any Loan Party or any of its Subsidiaries or, to the best
of its knowledge, on any property formerly owned or operated
by any Loan Party or any of its Subsidiaries; there is no
friable asbestos or asbestos-containing material on any
property currently owned or operated by any Loan Party or any
of its Subsidiaries; Hazardous Materials have not been
released, discharged or disposed of on any property currently
or formerly owned or operated by any Loan Party or any of its
Subsidiaries; neither any Loan Party nor any of its
Subsidiaries is undertaking, and has not completed, either
individually or together with other potentially responsible
parties, any investigation or assessment or remedial or
response action relating to any actual or threatened release,
discharge or disposal of Hazardous Materials at any site,
location or operation, either voluntarily or pursuant to the
order of any governmental or regulatory authority or the
requirements of any Environmental Law; and all Hazardous
Materials generated, used, treated, handled or stored at, or
transported to or from, any property currently or formerly
owned or operated by any Loan Party or any of its Subsidiaries
at the time owned or operated by said entity have been
disposed of in a manner not reasonably expected to result in
liability to any Loan Party or any of its Subsidiaries.
(q) (i) Except as set forth on Part I of Schedule 4.01(q),
neither any Loan Party nor any of its Subsidiaries is party to
any tax sharing agreement.
(ii) Each Loan Party and each of its Subsidiaries and
Affiliates has filed, has caused to be filed or has been
included in all material tax returns (Federal, state, local
and foreign) required to be filed and has paid all taxes shown
thereon to be due, together with applicable interest and
penalties.
(iii) Except as set forth in Part II of Schedule
4.01(q), no issues have been raised by any Federal, state,
local or foreign tax authorities in respect of tax periods for
which the applicable statute of limitations for assessment or
collection has not expired that, individually or in the
aggregate, could be reasonably likely to have a Material
Adverse Effect.
(r) Neither the business nor the properties of any Loan Party
or any of its Subsidiaries are affected by any fire, explosion,
accident, strike, lockout or other labor dispute, drought, storm, hail,
earthquake, embargo, act of God or of the public enemy or other
casualty (whether or not covered by insurance) that would be reasonably
likely to have a Material Adverse Effect.
(s) Set forth on Schedule 4.01(s) hereto is a complete and
accurate list of all Existing Debt (other than Surviving Debt), showing
as of the date set forth therein the obligor and the principal amount
outstanding thereunder.
Page 53
(t) Set forth on Schedule 4.01(t) hereto is a complete and
accurate list of all Surviving Debt, showing as of the date set forth
therein the obligor and the principal amount outstanding thereunder,
the maturity date thereof and the amortization schedule therefor.
(u) Set forth on Schedule 4.01(u) hereto is a complete and
accurate list of all Liens on the property or assets of any Loan Party
or any of its Subsidiaries as of the date set forth therein, showing
the lienholder thereof, the principal amount of the obligations secured
thereby and the property or assets of such Loan Party or such
Subsidiary subject thereto as of the date set forth therein.
(v) (i) Set forth on Part A of Schedule 4.01(v) hereto is a
complete and accurate list of all real property owned by any
Loan Party or any of its Subsidiaries, as of the date hereof,
showing the street address, county or other relevant
jurisdiction, state, record owner and book value thereof as of
the date set forth therein. Each Loan Party or such Subsidiary
has good, marketable and insurable fee simple title to such
real property, free and clear of all Liens, other than Liens
created or permitted by the Loan Documents.
(ii) Set forth on Part B of Schedule 4.01(v) is a
complete and accurate list, as of the date hereof, of all
leases of the real property under which any Loan Party is the
lessee, showing as of the date hereof the material terms
thereof (including the street address, county or other
relevant jurisdiction, state, lessor, lessee, expiration date
and annual rental cost thereof) to the reasonable satisfaction
of the Administrative Agent. To the knowledge of the Borrower,
each such lease is the legal, valid and binding obligation of
the lessor thereof, enforceable in accordance with its terms.
(iii) Set forth on Part C of Schedule 4.01(v) hereto
is a complete and accurate list, as of the date hereof, of all
leases of real property under which any Loan Party is the
lessor, showing as of the date hereof the street address,
county or other relevant jurisdiction, state, lessor, lessee,
expiration date and annual rental cost thereof. To the
knowledge of the Borrower, each such lease is the legal, valid
and binding obligation of the lessee thereof, enforceable in
accordance with its terms.
(w) Set forth on Schedule 4.01(w) hereto is a complete and
accurate list of all Investments held by any Loan Party or any of its
Subsidiaries on the date hereof, showing as of the date hereof the
amount, obligor or issuer and maturity, if any, thereof.
(x) Set forth on Schedule 4.01(x) hereto is a complete and
accurate list of all patents, trademarks, trade names, service marks
and copyrights, and all applications therefor and licenses thereof on
the date hereof, of each Loan Party or any of its Subsidiaries, showing
as of the date hereof the jurisdiction in which registered, the
registration number, the date of registration and the expiration date.
(y) To the knowledge of each Loan Party, no action has been
taken to perfect or protect the Liens and security interests of the
holders of the New Notes by or for the benefit of such holders (or any
agent for such holders) in the Collateral without a substantially
similar action having been taken, or substantially concurrently
herewith being taken, in respect of the Liens and security interests
created under the Collateral Documents.
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(z) Each of the Loan Parties represents and warrants that, as
of the Closing Date, it is not a party to any management, franchise
agreement or other similar agreement with any Person (other than a Loan
Party) relating to the management or operation of any Casino Property;
and each of the Loan Parties agrees that it shall not enter into any
such agreement with any Person (other than a Loan Party) if, (i) in the
case of a management agreement, such agreement relates to the
day-to-day management of substantially all of the hotel operations of
any Casino Property or (ii) in the case of a franchise agreement or
similar agreement, such agreement relates to the management and
operation of substantially all of the hotel operations of any Casino
Property, unless, in each case, it causes such Person to enter into,
contemporaneously therewith, a subordination agreement, in the case of
a management agreement, or a comfort letter, in the case of a franchise
agreement or similar agreement, in either case in form and substance
reasonably satisfactory to Administrative Agent.
(aa) The New Tower is being constructed and developed
substantially in accordance with the Plans and Specifications, the
Construction Contracts, all requirements of Governmental Authorities
and all applicable provisions of the New Note Indenture. All amounts
heretofore due in regard to the construction of the New Tower have been
paid to the knowledge of the Loan Parties, and no Lien or Lien claim,
including, without limitation, any Lien or Lien claim in favor of any
person or entity providing labor and/or materials for the construction
of the New Tower, exist or are threatened, other than the Liens
securing the New Notes. The construction of the New Tower is currently
in compliance with the budget applicable therefor (the "BUDGET") and
the construction schedule therefor (the "CONSTRUCTION SCHEDULE") as
such Budget and Construction Schedule are described on Schedule
4.01(aa) hereto, and it is currently expected that the New Tower will
be completed and open for business on or before December 31, 2008. All
material permits, licenses and authorizations necessary for the
construction and operation of the New Tower as of the date hereof have
been obtained and are in effect, and all material permits, licenses and
authorizations necessary for the completion of the construction thereof
will be obtained as required to complete the New Tower substantially in
accordance with the Construction Schedule.
(bb) Each of the Subsidiaries of the Borrower identified on
Schedule VI hereto was previously designated as an "Unrestricted
Subsidiary" in accordance with the terms and provisions of the Existing
Credit Agreement and, as of the date of such initial designation
thereunder and as of the date hereof, such Unrestricted Subsidiary
satisfies all requirements of an Unrestricted Subsidiary under the
Existing Credit Agreement and under this Agreement.
(cc) Each of the Loan Parties represents and warrants that
none of the Casino Properties contains any asbestos or
asbestos-containing material.
ARTICLE V
COVENANTS OF THE LOAN PARTIES
Section 5.01. Affirmative Covenants. So long as any Advance or any
other Obligation (other than Unmatured Surviving Obligations) of any Loan Party
under any Loan Document shall remain unpaid, or any Lender Party shall have any
Commitment hereunder, each Loan Party will:
(a) Compliance with Laws; Maintenance of Gaming Licenses, Etc.
Page 55
(i) Comply, and cause each of its Subsidiaries to
comply, in all material respects, with all applicable laws,
rules, regulations and orders, such compliance to include,
without limitation, compliance with ERISA, the Racketeer
Influenced and Corrupt Organizations Chapter of the Organized
Crime Control Act of 1970 and Gaming Laws.
(ii) Maintain, and cause each of its Subsidiaries to
maintain, (A) such valid Gaming Licenses in all jurisdictions
as may be necessary to operate each of its Gaming Facilities,
the absence of which could reasonably be expected to have a
Material Adverse Effect, and (B) all liquor licenses and
registrations as may be necessary to sell alcoholic beverages
from and in its Gaming Facilities.
(iii) Except in the case of any License Revocation or
a revocation or non-renewal of a liquor license or
registration that could not, either individually or in the
aggregate, reasonably be expected to have a Material Adverse
Effect, notify, and cause each of its Subsidiaries to notify,
the Administrative Agent promptly upon a License Revocation or
a revocation or non-renewal of a liquor license or
registration.
(b) Payment of Taxes, Etc. Pay and discharge, and cause each
of its Subsidiaries to pay and discharge, before the same shall become
delinquent, (i) all material taxes, assessments and governmental
charges or levies imposed upon it or upon its property and (ii) all
material lawful claims that, if unpaid, might by law become a Lien upon
its property; provided, however, that neither any Loan Party nor any of
its Subsidiaries shall be required to pay or discharge any such tax,
assessment, charge or claim that is being contested in good faith and
by proper proceedings and as to which appropriate reserves are being
maintained, unless and until any Lien resulting therefrom attaches to
its property and becomes enforceable against its other creditors and is
not subject to a stay.
(c) Compliance with Environmental Laws. Comply, and cause each
of its Subsidiaries and all lessees and other Persons operating or
occupying its properties to comply, in all material respects, with all
applicable Environmental Laws and Environmental Permits; obtain and
renew, and cause each of its Subsidiaries to obtain and renew, all
Environmental Permits necessary for its operations and properties; and
conduct, and cause each of its Subsidiaries to conduct, any
investigation, study, sampling and testing, and undertake any cleanup,
removal, remedial or other action necessary to remove and clean up
Hazardous Materials from any of its properties, in accordance with the
requirements of all Environmental Laws; provided, however, that neither
any Loan Party nor any of its Subsidiaries shall be required to
undertake any such investigation, cleanup, removal, remedial or other
action to the extent that its obligation to do so is being contested in
good faith and by proper proceedings and appropriate reserves are being
maintained with respect to such circumstances.
(d) Maintenance of Insurance. Maintain, and cause each of its
Subsidiaries to maintain, property and liability insurance with
responsible and reputable insurance companies or associations (rated A-
or better by Best's Insurance Guide and Key Ratings with a minimum
Financial Size Condition of "X") that, with regard to property
insurance, is in the forms, types (and covering the perils) and
amounts, and with the deductibles, set forth in Schedule 5.01(d)
hereto; provided, however, that the amount of coverage for each peril
must at all times be at least equal to the greater of (i) the amount
therefor set forth on Schedule 5.01(d), or (ii) the then outstanding
aggregate principal amount of the Advances, in each case more than the
deductible therefor and the associated deductible cannot be greater
than $20,000,000, except that, with respect to flood and named storm
Page 56
coverage only, such deductible may be as much as 3% of insurable
values; provided, further, however, that at any time during which
insurance coverage for terrorism is unavailable, then the Loan Parties
and their Subsidiaries shall not be required to maintain such
insurance. The Agents and the Lenders shall have the right, but not the
obligation, to independently investigate options for insurance and/or
to obtain any of the aforesaid insurance for the benefit of the Agents
and the Lenders and add such insurance costs to the Obligations. The
Collateral Agent shall be named as loss payee and mortgagee with
respect to all property insurance policies, and the Agents and the
Lenders shall be named as additional insureds with respect to all
liability insurance policies.
(e) Preservation of Legal Existence, Etc. Preserve and
maintain, and cause each of its Subsidiaries to preserve and maintain,
its existence, legal structure, legal name, rights (charter and
statutory), permits, licenses, approvals, privileges and franchises,
other than those, in each case, which could not reasonably be expected
to have a Material Adverse Effect; provided, however, that such Loan
Party and its Subsidiaries may consummate any merger or consolidation
permitted under Section 5.02(d).
(f) Visitation Rights. At any reasonable time during normal
business hours and from time to time upon reasonable notice, permit any
of the Agents or any of the Lender Parties, or any agents or
representatives thereof, to examine and make copies of and abstracts
from the records and books of account of, and visit the properties of,
such Loan Party and any of its Subsidiaries, and to discuss the
affairs, finances and accounts of such Loan Party and any of its
Subsidiaries with any of their officers, directors or members and with
their independent certified public accountants at the Borrower's
expense; provided that only one such visit of each Agent and Lender
Party per Fiscal Year shall be at the expense of the Borrower.
(g) Keeping of Books. Keep, and cause each of its Subsidiaries
to keep, proper books of record and account, in which full and correct
entries shall be made of all financial transactions and the assets and
business of such Loan Party and each such Subsidiary in accordance with
generally accepted accounting principles in effect from time to time.
(h) Maintenance of Properties, Etc. Maintain and preserve, and
cause each of its Subsidiaries to maintain and preserve, all of its
properties that are used or useful in the conduct of its business in
good working order and condition, ordinary wear and tear excepted.
(i) Transactions with Affiliates. Conduct, and cause each of
its Subsidiaries to conduct, all transactions otherwise permitted under
the Loan Documents with any of their Affiliates on terms that are fair
and reasonable and no less favorable to such Loan Party or such
Subsidiary than it would obtain in a comparable arm's-length
transaction with a Person not an Affiliate; provided that the foregoing
provision shall not apply to: (i) the payment of (x) reasonable and
customary fees paid to, and (y) indemnities in the ordinary course of
business provided on behalf of, officers, directors, employees or
consultants of the Borrower, the General Partner or any of their
respective Subsidiaries; (ii) the Trademark License Agreement; (iii)
the Trademark Security Agreement; (iv) the ROFO Agreement; (v) the
Services Agreement; (vi) the Voting Agreement; and (vii) the Warrant
Agreement.
(j) Covenant to Guarantee Obligations and Give Security. Upon
(x) the request of the Collateral Agent following the occurrence and
during the continuance of an Event of Default, (y) the formation or
acquisition of any new direct or indirect Subsidiary (other than a CFC
or a Subsidiary that is held directly or indirectly by a CFC) by any
Loan Party (each, a "NEW SUBSIDIARY") or (z) the acquisition of any
Page 57
property by any Loan Party, and such property, in the judgment of the
Collateral Agent, shall not already be subject to a perfected first
priority Lien in favor of the Collateral Agent for the benefit of the
Secured Parties (including, without limitation, the acquisition of
property which becomes or is required to become substitute collateral
upon a sale of the Xxxxx Plaza or the Xxxxx Xxxxxx in accordance with
Section 2.06(b)(ii)), then (subject to the proviso at the end of this
Section 5.01(j) below in the case of substitute collateral provided or
to be provided pursuant to Section 2.06(b)(i)) in each case at the
Borrower's expense:
(i) in connection with the formation or acquisition
of a New Subsidiary, within 10 days after such formation or
acquisition, cause each such New Subsidiary, and cause each
direct and indirect parent of such New Subsidiary (if it has
not already done so), to duly execute and deliver to the
Collateral Agent a guaranty or guaranty supplement, in form
and substance reasonably satisfactory to the Collateral Agent,
guaranteeing the other Loan Parties' obligations under the
Loan Documents,
(ii) within 10 days after (A) such request furnish to
the Collateral Agent a description of the real and personal
properties of the Loan Parties and their respective
Subsidiaries in detail reasonably satisfactory to the
Collateral Agent and (B) such formation or acquisition,
furnish to the Collateral Agent a description of the real and
personal properties of such New Subsidiary or the real and
personal properties so acquired, in each case in detail
reasonably satisfactory to the Collateral Agent,
(iii) within 15 days after (A) such request or
acquisition by any Loan Party of a parcel of real property
with a value greater than $5,000,000, duly execute and
deliver, and cause each Loan Party to duly execute and
deliver, to the Collateral Agent such additional mortgages,
pledges, assignments, security agreement supplements,
intellectual property security agreement supplements and other
security agreements as specified by, and in form and substance
reasonably satisfactory to the Collateral Agent, securing
payment of all the Obligations of such Loan Party under the
Loan Documents and constituting Liens on all such properties
and (B) such formation or acquisition of any New Subsidiary,
duly execute and deliver and cause each New Subsidiary to duly
execute and deliver to the Collateral Agent mortgages,
pledges, assignments, security agreement supplements and other
security agreements as specified by, and in form and substance
satisfactory to the Collateral Agent, securing payment of all
of the obligations of such New Subsidiary under the Loan
Documents; provided that if such new property is Equity
Interests in a CFC, only 66% of such Equity Interests shall be
pledged in favor of the Secured Parties,
(iv) within 30 days after such request, formation or
acquisition, take, and cause each Loan Party and each such New
Subsidiary to take, whatever action (including, without
limitation, the recording of mortgages, the filing of Uniform
Commercial Code financing statements, the giving of notices
and the endorsement of notices on title documents) may be
necessary or advisable in the reasonable opinion of the
Collateral Agent to vest in the Collateral Agent (or in any
representative of the Collateral Agent designated by it) valid
and subsisting Liens on the properties purported to be subject
to the mortgages, pledges, assignments, security agreement
supplements and security agreements delivered pursuant to this
Section 5.01(j), enforceable against all third parties in
accordance with their terms,
Page 58
(v) within 60 days after such request, formation or
acquisition, deliver to the Collateral Agent, upon the
reasonable request of the Collateral Agent, a signed copy of a
favorable opinion, addressed to the Collateral Agent and the
other Lender Parties, of counsel for the Loan Parties
acceptable to the Collateral Agent as to (A) such guaranties,
guaranty supplements, mortgages, pledges, assignments,
security agreement supplements and security agreements being
legal, valid and binding obligations of each Loan Party
thereto enforceable in accordance with their terms, as to the
matters contained in clause (iv) above, (B) such recordings,
filings, notices, endorsements and other actions being
sufficient to create valid perfected Liens on such properties,
and (C) such other matters as the Collateral Agent may
reasonably request,
(vi) as promptly as practicable after such request,
formation or acquisition, deliver, upon the reasonable request
of the Collateral Agent, to the Collateral Agent with respect
to each parcel of real property with a value greater than
$5,000,000 owned or held by each Loan Party and each New
Subsidiary, title reports, surveys and engineering, soils and
other reports, environmental assessment reports, tenant
estoppels and each of the other items, mutatis mutandis, set
forth in Section 3.01(a)(iv) as may be applicable, each in
scope, form and substance reasonably satisfactory to the
Collateral Agent, provided, however, that to the extent that
any Loan Party or any of its Subsidiaries shall have otherwise
received any of the foregoing items with respect to such real
property, such items shall, promptly after the receipt
thereof, be delivered to the Collateral Agent, and
(vii) at any time and from time to time, promptly
execute and deliver, and cause each Loan Party and each New
Subsidiary to execute and deliver, any and all further
instruments and documents and take, and cause each Loan Party
and each New Subsidiary to take, all such other action as the
Collateral Agent may reasonably deem necessary or desirable in
perfecting and preserving the Liens of, such guaranties,
mortgages, pledges, assignments, security agreement
supplements, intellectual property security agreement
supplements and security agreements;
provided, however, that, notwithstanding the forgoing provisions of
this Section 5.01(j), with respect to any property provided or to be
provided as substitute collateral pursuant to Section 2.06(b)(ii), each
of the foregoing requirements referred to in this Section 5.01(j) shall
be satisfied on or before the Collateral Agent's release of its Lien on
the (1) Xxxxx Plaza or the Xxxxx Xxxxxx (as applicable) property being
sold or (2) the Net Cash Proceeds of the sale thereof which have been
deposited into a Collateral Account pursuant to Section 2.06(b)(ii), as
applicable, and shall be required to be satisfied without regard to the
value of the substitute collateral (and without exception or exclusion
for any real property with a value equal to or less than $5,000,000).
(k) Further Assurances.
(i) Promptly upon request by any Agent, or any Lender
Party through the Administrative Agent, correct, and cause
each of its Subsidiaries promptly to correct, any material
defect or error that may be discovered in any Loan Document or
in the execution, acknowledgment, filing or recordation
thereof,
(ii) promptly upon request by any Agent, or any
Lender Party through the Administrative Agent, do, execute,
acknowledge, deliver, record, re-record, file, re-file,
register and re-register any and all such further acts, deeds,
Page 59
conveyances, pledge agreements, mortgages, deeds of trust,
trust deeds, assignments, financing statements and
continuations thereof, termination statements, notices of
assignment, transfers, certificates, assurances and other
instruments as any Agent, or any Lender Party through the
Administrative Agent, may reasonably require from time to time
in order to (A) carry out more effectively the provisions of
the Loan Documents, (B) to the fullest extent permitted by
applicable law and agreements with third parties, subject any
Loan Party's or any of its Subsidiaries' properties, assets,
rights or interests to the Liens now or hereafter covered by
any of the Collateral Documents, (C) perfect and maintain the
validity, effectiveness and priority of any of the Collateral
Documents and any of the Liens created thereunder and (D)
assure, convey, grant, assign, transfer, preserve, protect and
confirm more effectively unto the Secured Parties the rights
granted or now or hereafter granted to the Secured Parties
under any Loan Document or under any other instrument executed
in connection with any Loan Document to which any Loan Party
or any of its Subsidiaries is or is to be a party, and cause
each of its Subsidiaries to do so, and
(iii) take each action set forth on Schedule 5.01(k)
hereto within the time period set forth on such Schedule for
the taking of such action.
(l) Performance of Related Documents. Perform and observe, and
cause each of its Subsidiaries to perform and observe, all of the terms
and provisions of each Related Document to be performed or observed by
it, maintain each such Related Document in full force and effect,
enforce each such Related Document in accordance with its terms, take
all such action to such end as may be from time to time requested by
the Administrative Agent and, upon request of the Administrative Agent,
make to each other party to each such Related Document such demands and
requests for information and reports or for action as any Loan Party or
any of its Subsidiaries is entitled to make thereunder, other than, in
each case, where the failure to take such action could not reasonably
be expected to have a Material Adverse Effect.
(m) Preparation of Environmental Reports. Upon and during the
continuance of an Event of Default, permit the Administrative Agent on
five days' prior written notice to the Borrower to retain an
environmental consulting firm to prepare an environmental site
assessment report at the expense of the Borrower or such Loan Party,
and each Loan Party hereby grants and agrees to cause any Subsidiary
that owns any property described in such request to grant at the time
of such request to the Agents, the Lender Parties, such firm and any
agents or representatives thereof an irrevocable non-exclusive license,
subject to the rights of tenants and customary access terms, to enter
onto their respective properties to undertake such an assessment.
(n) Compliance with Terms of Leaseholds. Make all material
payments and otherwise perform in all material respects all obligations
in respect of all material leases of real property to which each Loan
Party or any of its Subsidiaries is a party, keep such leases in full
force and effect and not allow such leases to lapse or be terminated
prior to the end of their term or any rights to renew such leases to be
forfeited or cancelled, notify the Administrative Agent of any material
default by any party with respect to such leases and cooperate with the
Administrative Agent in all respects to cure any such default, and
cause each of its Subsidiaries to do so, except in any case, where the
failure to do so, either individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect.
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(o) Cash Concentration Accounts. Maintain, and cause each of
its Subsidiaries to maintain, main cash concentration
accounts with depositories reasonably acceptable to the
Administrative Agent that have complied with the
requirements set forth in the Security Agreement for
Pledged Banks (as defined in the Security Agreement) with
respect to each such account.
(p) New Tower Construction. Xxxxx Xxx Xxxxx Associates, LLC
will (i) diligently and in good faith complete the construction of the
New Tower substantially in accordance with the Plans and
Specifications, the Construction Contracts, all requirements of
Governmental Authorities, all applicable provisions of the New Notes
Indenture, the Budget and the Construction Schedule, and will not
effect or consent to any material changes to the Plans and
Specifications, the Construction Contracts, the Budget or the
Construction Schedule without obtaining the written consent of the
Required Lenders, which consent will not be unreasonably withheld and
(ii) fully and timely pay all costs due in connection with such
construction. Xxxxx Xxx Mahal Associates, LLC will commence operations
of the New Tower promptly following the completion of construction
thereof and will obtain all necessary licenses (including, if
applicable, Gaming Licenses), permits and authorizations required for
such operations. For the purposes hereof, a material change to the
Plans and Specifications, the Construction Contracts, and the Budget
will be a change with an aggregate cost or value of $20,000,000, and a
material change to the Construction Schedule will be a change involving
not less than 90 days.
(q) Property Condition Assessment. The Administrative Agent
has contracted to have a property condition assessment performed in
regard to each Casino Property. The Loan Parties hereby agree to permit
reasonable access to each Casino Property to allow the preparation of
such property condition assessment and to cooperate with the
Administrative Agent and its representatives, as reasonably requested
by the Administrative Agent and/or its representatives, in the conduct
of such property condition assessment; provided such access shall be
subject to the other terms and conditions applicable to the
Administrative Agent's access to the Casino Properties as are set forth
elsewhere in this Agreement and the Collateral Documents.
(r) Trademark License Agreement, etc.
(i) Ensure that each of the Trademark License
Agreement and the Trademark Security Agreement remains in full
force and effect and is not amended, modified or terminated,
(ii) comply with all of its obligations under each of
such agreements,
(iii) reasonably enforce all of its available rights
and remedies under and in connection with each of such
agreements,
(iv) deliver to the Administrative Agent, promptly
upon any delivery thereof by or to any party thereto, a true
and correct copy of any notice given or received under any
such agreement, and
(v) promptly notify the Administrative Agent,
promptly upon such Loan Party's becoming aware thereof, of any
alleged default under, noncompliance with or termination of
any such agreement.
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In addition, and without limitation of any other right or remedy of any
Agent or any Lender, if a "Termination Event" (as such term is defined
in the Trademark License Agreement) should occur, the Borrower agrees
to timely exercise its option under Section 5.1.1 of the Trademark
License Agreement to convert the "License" (as such term is defined in
the Trademark License Agreement) to a royalty-bearing license as
contemplated by such Section 5.1.1. The Borrower hereby appoints the
Administrative Agent as its agent and attorney-in-fact to exercise any
and all rights or remedies on behalf of the Borrower and to give all
notices that the Borrower may be entitled to give with respect to the
Trademark License Agreement, including, without limitation, those
rights and remedies and notices with respect to Section 5.1.1 thereof.
This appointment by the Borrower of the Administrative Agent is
irrevocable, shall last for the full term of the Trademark License
Agreement, including all renewals and extensions of its term, and is
coupled with an interest.
(s) Gaming Laws. Promptly perform and observe, and cause each
of its Subsidiaries to promptly perform and observe, all conditions,
requirements and other terms and provisions of each resolution, notice,
approval, consent or other action of or by any Gaming Authority in any
way relating to the execution, delivery or performance of this
Agreement or any other Loan Document or any transaction contemplated
hereby or thereby.
Section 5.02. Negative Covenants. So long as any Advance or any other
Obligation (other than an Unmatured Surviving Obligation) of any Loan Party
under any Loan Document shall remain unpaid or any Lender Party shall have any
Commitment hereunder, no Loan Party will at any time:
(a) Liens, Etc. Create, incur, assume or suffer to exist, or
permit any of its Subsidiaries to create, incur, assume or suffer to
exist, any Lien on or with respect to any of its properties of any
character (including, without limitation, accounts) whether now owned
or hereafter acquired, or sign or file or suffer to exist, or permit
any of its Subsidiaries to sign or file or suffer to exist, under the
Uniform Commercial Code of any jurisdiction, a financing statement that
names such Loan Party or any of its Subsidiaries as debtor, or sign or
suffer to exist, or permit any of its Subsidiaries to sign or suffer to
exist, any security agreement authorizing any secured party thereunder
to file such financing statement, or assign, or permit any of its
Subsidiaries to assign, any accounts or other right to receive income,
except:
(i) Liens created under the Loan Documents;
(ii) Liens on the Collateral securing Debt permitted
under Section 5.02(b)(ii) on a second-priority basis to the
Facilities and subject to the terms of the Intercreditor
Agreement;
(iii) Permitted Liens;
(iv) Liens relating to any custom duties imposed in
the ordinary course of business;
(v) Liens existing on the date hereof and described
on Schedule 4.01(u) hereto;
(vi) purchase money Liens upon or in moveable
personal property not essential (as determined by the
Administrative Agent in its reasonable judgment) to the
operation of any property owned by such Loan Party taken as a
whole, and, in the case of any Loan Party that owns any Casino
Page 62
Property, not essential (as determined by the Administrative
Agent in its reasonable judgment) to the operation of such
Casino Property taken as a whole, and acquired or held by such
Loan Party or any of its Subsidiaries in the ordinary course
of business to secure the purchase price of such property or
to secure Debt incurred solely for the purpose of financing
the acquisition, construction or improvement of any such
property to be subject to such Liens, or Liens existing on any
such property at the time of acquisition (other than any such
Liens created in contemplation of such acquisition that do not
secure the purchase price), or extensions, renewals or
replacements of any of the foregoing for the same or a lesser
amount; provided, however, that no such Lien shall extend to
or cover any property other than the property being acquired,
constructed or improved, and no such extension, renewal or
replacement shall extend to or cover any property not
theretofore subject to the Lien being extended, renewed or
replaced; and provided further that the aggregate principal
amount of the Debt secured by Liens permitted by this clause
(vi) shall not exceed the amount permitted under Section
5.02(b)(iii) at any time outstanding;
(vii) Liens arising in connection with Capitalized
Leases permitted under Section 5.02(b)(iv); provided that no
such Lien shall extend to or cover any Collateral or assets
other than the assets subject to such Capitalized Leases;
(viii) Liens arising under applicable Gaming Laws;
provided that no such Lien constitutes a Lien securing
repayment of Debt;
(ix) bankers' Liens, rights of setoff and other
similar Liens existing solely with respect to cash and Cash
Equivalents on deposit in one or more accounts maintained by
the Borrower, the General Partner or any of their respective
Subsidiaries, in each case granted in the ordinary course of
business in favor of the financial institutions with which
such accounts are maintained, securing amounts owing to such
financial institutions with respect to cash management and
operating account arrangements, including those involving
pooled accounts and netting arrangements, so long as, in no
event, shall any such Lien secure (either directly or
indirectly) the repayment of any Debt;
(x) licenses of Intellectual Property granted by the
Borrower or any of their respective Subsidiaries in the
ordinary course of business and not interfering in any
material respect with the ordinary conduct of the business of
the Borrower and any of their respective Subsidiaries;
(xi) Leases with respect to the properties (other
than those relating to any material part of any Casino
Property) of the Borrower or any Subsidiary, in each case
entered into in the ordinary course of the Borrower or any
Subsidiary's business, so long as such leases are expressly
subordinate to the Liens of the Collateral Agent on the
properties subject to such leases and such leases do not,
individually or in the aggregate, (x) interfere in any
material respect with the ordinary conduct of the business of
any of the Gaming Facilities and (y) materially impair the use
(for its intended purposes) or the value of the property
subject thereto;
(xii) Liens on property of a Person existing at the
time such Person is acquired or merged with or into or
consolidated with the Borrower, the General Partner or any of
Page 63
their respective Subsidiaries (and not created in anticipation
or contemplation thereof) in accordance with Section 5.02(f);
provided that such Liens were in existence prior to the
contemplation of the acquisition, merger or consolidation and
do not extend to property not subject to such Liens at the
time of acquisition (other than improvements thereon) and are
no more favorable to the lienholders than the existing Lien;
(xiii) Liens on Equity Interests in any Unrestricted
Subsidiary solely to secure Debt of such Unrestricted
Subsidiary; and
(xiv) other Liens securing Debt outstanding in an
aggregate principal amount not to exceed $15,000,000.
(b) Debt. Create, incur, assume or suffer to exist, or permit
any of its Subsidiaries to create, incur, assume or suffer to exist,
any Debt, except:
(i) Debt under the Loan Documents;
(ii) Debt under the New Notes in an principal
aggregate amount not to exceed $1,250,000,000;
(iii) Debt secured by Liens permitted by Section
5.02(a)(vi) not to exceed, together with Debt permitted under
clause (iv) below, in an aggregate principal amount of
$20,000,000 per Casino Property at any time outstanding;
(iv) Capitalized Leases not to exceed in an aggregate
principal amount, together with Debt permitted pursuant to
clause (iii) above, $20,000,000 per Casino Property at any
time outstanding, and in the case of Capitalized Leases to
which any Subsidiary of any Loan Party is a party, Debt of
such Loan Party of the type described in clause (i) of the
definition of "DEBT" guaranteeing the Obligations of such
Subsidiary under such Capitalized Leases;
(v) the Surviving Debt;
(vi) Reserved.
(vii) Debt owed to the Borrower or a wholly-owned
Subsidiary of the Borrower, which Debt shall (x) in the case
of Debt owed to a Loan Party, constitute Pledged Debt, (y) be
on terms reasonably acceptable to the Administrative Agent and
(z) be otherwise permitted under the provisions of Section
5.02(f);
(viii) to the extent such incurrence does not result
in the incurrence by the Borrower or any of its Subsidiaries
of any obligation for the payment of Debt for Borrowed Money
of others, Debt of the Borrower or any of its Subsidiaries
owed to any Person in connection with the termination of
employment of or severance obligations owed to such Person and
not to exceed $5,000,000 in the aggregate;
(ix) Debt arising from agreements of the Borrower or
a Subsidiary Guarantor providing for indemnifications and
adjustments of purchase price or similar obligations, in each
case, incurred or assumed in connection with the disposition
of any business, assets or a Subsidiary, other than Guarantees
Obligations in respect of Debt incurred by any Person
Page 64
acquiring all or any portion of such business, assets or a
Subsidiary for the purpose of financing such acquisition;
provided, however, that:
(A) such Debt is not reflected on the
balance sheet of the Borrower or any Subsidiary
(contingent obligations referred to in a footnote to
financial statements and not otherwise reflected on
the balance sheet will not be deemed to be reflected
on such balance sheet for purposes of this clause
(ix)(A)); and
(B) the maximum assumable liability in
respect of all such Debt shall at no time exceed the
gross proceeds including noncash proceeds (the fair
market value of such noncash proceeds being measured
at the time received and without giving effect to any
subsequent changes in value) actually received by the
Borrower and any Subsidiary in connection with such
disposition; or
(x) Debt of the type described in clause (i) or (j)
of the definition of Debt that constitutes an Investment
solely to the extent permitted by Section 5.02(f) ;
(xi) unsecured Debt of the Borrower, subordinated to
the Obligations under the Loan Documents on terms reasonably
acceptable to the Administrative Agent and having a maturity
date of not less than six months following the Term B Maturity
Date and having no amortization prior to the Term B Maturity
Date;
(xii) unsecured Debt in an aggregate principal amount
not to exceed $30,000,000, subordinated to the Obligations
under the Loan Documents on terms reasonably acceptable to the
Administrative Agent, and having a maturity date of not less
than six months following the Term B Maturity Date and having
no amortization prior to the Term B Maturity Date;
(xiii) Debt secured by Liens permitted by Section
5.02(a)(xii) in an aggregate principal amount not to exceed
$10,000,000; and
(xiv) Debt representing a refinancing, replacement or
refunding of Debt permitted by clauses (b)(ii) through (b)(v)
and (b)(xiii) above (the "REFINANCING DEBT"); provided that
(A) such Refinancing Debt has a Weighted
Average Life to Maturity at the time such Refinancing
Debt is incurred which is not less than the remaining
Weighted Average Life to Maturity of the Debt being
extended, refunded, refinanced, defeased, renewed or
replaced,
(B) the terms relating to principal amount,
amortization, maturity and subordination (if any) and
other material terms, taken as a whole, of any such
Refinancing Debt, and of any agreement entered into
and of any instrument issued in connection therewith,
are no less favorable in any material respect to the
Loan Parties or the Lender Parties than the terms of
any agreement or instrument governing the Debt being
extended, refunded or refinanced and the interest
rate applicable to any such Refinancing Debt does not
exceed the then applicable market interest rate,
Page 65
(C) the principal amount (or accreted value,
if applicable) of such Refinancing Debt does not
exceed the sum of the outstanding principal amount
(or accreted value, if applicable) of the Debt so
extended, refunded, refinanced, defeased, renewed or
replaced (plus all accrued interest thereon and the
amount of all premiums and reasonable expenses
incurred in connection therewith),
(D) the Debt is incurred either by the
Borrower or the Subsidiary that is the obligor of the
Debt being extended, refunded, refinanced, defeased,
renewed or replaced,
(E) the Debt shall be secured only by the
property or assets (if any) securing the Debt to be
so extended, refunded, refinanced, defeased, renewed
or replaced, and
(F) such Refinancing Debt shall not include:
(i) Debt of a Subsidiary that extends, refunds,
refinances, defeases, renews or replaces Debt or
preferred stock of the Borrower, or (ii) Debt of the
Borrower or a Subsidiary that extends, refunds,
refinances, defeases, renews or replaces Debt or
preferred stock of an Unrestricted Subsidiary.
(c) Change in Nature of Business. Engage in, or permit any of
its Subsidiaries to engage in, any business, other than Permitted
Businesses.
(d) Mergers, Etc. Merge into or consolidate with any Person or
permit any Person to merge into it, or permit any of its Subsidiaries
to do so, except that:
(i) any Subsidiary of the Borrower may merge into or
consolidate with the Borrower or any other Subsidiary of the
Borrower; provided that, in the case of any such merger or
consolidation, the Person formed by such merger or
consolidation shall be the Borrower or a wholly-owned
Subsidiary of the Borrower; provided, further that, in the
case of any such merger or consolidation to which a Guarantor
is a party, the Person formed by such merger or consolidation
shall be a Guarantor; provided, further, that, in the case of
any such merger or consolidation to which the Borrower is a
party, the surviving entity in such merger or consolidation
shall be the Borrower; and
(ii) in connection with any acquisition permitted
under Section 5.02(f), the Borrower or any Subsidiary of the
Borrower may merge into or consolidate with any other Person
or permit any other Person to merge into or consolidate with
it; provided that the Person surviving such merger shall be
the Borrower or a wholly-owned Subsidiary of the Borrower;
provided, further that, in the case of any merger or
consolidation to which a Guarantor is a party, the Person
formed by such merger or consolidation shall be a Guarantor;
provided, further, that, in the case of any such merger or
consolidation to which the Borrower is a party, the surviving
entity in such merger or consolidation shall be the Borrower;
and
(iii) in connection with any sale or other
disposition permitted under Section 5.02(e) (other than clause
(viii) thereof), any Subsidiary of the Borrower may merge into
or consolidate with any other Person or permit any other
Person to merge into or consolidate with it;
Page 66
provided, however, that in each case, immediately before and after giving effect
thereto, no Default shall have occurred and be continuing and, in the case of
any such merger to which the Borrower is a party, the Borrower is the surviving
corporation.
(e) Sales, Etc. of Assets. Sell, lease, transfer or otherwise
dispose of, or permit any of its Subsidiaries to sell, lease, transfer
or otherwise dispose of, any assets, or grant any option or other right
to purchase, lease or otherwise acquire any assets, except:
(i) sales, transfers or other dispositions of
obsolete assets;
(ii) the lease or sublease of real property (other
than any material part of any Casino Property) or equipment in
the ordinary course of business;
(iii) the license or sublicense (subject to the Liens
in favor of the Agents and/or the Lenders) of Intellectual
Property in the ordinary course of business and on ordinary
business terms;
(iv) sales, transfers or other dispositions of cash
and Cash Equivalents or other property sold or disposed of in
the ordinary course of business and on ordinary business
terms, including sales of delinquent accounts receivables in
connection with the compromise or collection thereof;
(v) transfers resulting from or made directly in
connection with any casualty, condemnation of property or
assets;
(vi) transfers in connection with any Investment
permitted by Section 5.02(f);
(vii) sales of Inventory in the ordinary course of
its business and the granting of any option or other right to
purchase, lease or otherwise acquire Inventory in the ordinary
course of business;
(viii) in a transaction authorized by Section 5.02(d)
(other than subsection (iii) thereof);
(ix) sales, transfers or other dispositions of assets
among Loan Parties;
(x) provided Borrower obtains the prior written
consent of the Required Lenders, which consent will not be
unreasonably withheld or delayed, a sale of either the Xxxxx
Xxxxxx or the Xxxxx Plaza (but not both) for cash in an
aggregate amount not less than the fair market value of the
property and assets sold, provided that the Net Cash Proceeds
arising from such sale are used or applied as required by
Section 2.06 (b)(ii) hereof; and
(xi) so long as no Default shall have occurred and be
continuing or would result from such sale, sales, transfers or
other dispositions of assets for at least 85% cash
consideration and for fair value in an aggregate amount not to
exceed $10,000,000 in a single transaction or a series of
related transactions; provided that the aggregate amount of
all assets disposed under this clause (xi) shall not exceed
$50,000,000 and, in the case of any such sale, transfer or
other disposition by a Loan Party that owns any Casino
Property, all Net Cash Proceeds of such sale, if and to the
extent not applied to pay the Obligations, shall be reinvested
Page 67
into Casino Property within 365 days after the date of such
sale, transfer or other disposition.
(f) Investments in Other Persons. Make or hold, or permit any
of its Subsidiaries to make or hold, any Investment in any Person,
except:
(i) (A) Investments by the Borrower and its
Subsidiaries in their Subsidiaries outstanding on the date
hereof, (B) additional Investments by the Borrower and its
Subsidiaries in Loan Parties, (C) additional Investments by
Subsidiaries of the Borrower that are not Loan Parties in
other Subsidiaries that are not Loan Parties and (D) so long
as no Default has occurred and is continuing or would result
from such Investment, additional Investments by the Loan
Parties in wholly-owned Subsidiaries that are not Loan Parties
in an aggregate amount invested from and after May 20, 2005,
not to exceed $15,000,000;
(ii) loans and advances to employees in the ordinary
course of the business of the Borrower and its Subsidiaries as
presently conducted in an aggregate principal amount not to
exceed $500,000 at any time outstanding;
(iii) Investments by the Borrower and its
Subsidiaries in Cash Equivalents;
(iv) Investments existing on the date hereof and
described on Schedule 4.01(w) hereto;
(v) Reserved;
(vi) Investments consisting of intercompany Debt
permitted under Section 5.02(b);
(vii) the purchase or other acquisition of all of the
Equity Interests in, or all or substantially all of the
property and assets of, any Person that, upon the consummation
thereof, will be wholly-owned directly by the Borrower or one
or more of its wholly-owned Subsidiaries (including, without
limitation, as a result of a merger or consolidation);
provided that, with respect to each purchase or other
acquisition made pursuant to this clause (vii):
(A) any such newly created or acquired
Subsidiary shall comply with the requirements of
Section 5.01(j);
(B) the lines of business of the Person to
be (or the property and assets of which are to be) so
purchased or otherwise acquired shall be Permitted
Businesses;
(C) such purchase or other acquisition shall
not include or result in any contingent liabilities
that could reasonably be expected to be material to
the business, financial condition or operations of
the Borrower and its Subsidiaries, taken as a whole
(as determined in good faith by the board of
directors (or the persons performing similar
functions) of the Borrower or such Subsidiary if the
board of directors is otherwise approving such
transaction and, in each other case, by the
Responsible Officer);
Page 68
(D) immediately before and immediately after
giving effect to any such purchase or other
acquisition, no Default shall have occurred ; and
(E) the Borrower shall have delivered to the
Administrative Agent, on behalf of the Lender
Parties, at least five Business Days prior to the
date on which any such purchase or other acquisition
is to be consummated, a certificate of a Responsible
Officer, in form and substance reasonably
satisfactory to the Administrative Agent, certifying
that all of the requirements set forth in this clause
(vii) have been satisfied or will be satisfied on or
prior to the consummation of such purchase or other
acquisition;
(viii) Investments by the Borrower and its
Subsidiaries not otherwise permitted under this Section
5.02(f) in an aggregate amount (together with the aggregate
amount of Investments made pursuant to clause (ix)(B) below)
not to exceed $50,000,000; provided, however, that, with
respect to each Investment made pursuant to this clause
(viii):
(A) such Investment shall not include or
result in any contingent liabilities that could
reasonably be expected to be material to the
business, financial condition or operations of the
Borrower and its Subsidiaries, taken as a whole (as
determined in good faith by the board of directors
(or persons performing similar functions) of the
Borrower or such Subsidiary if the board of directors
is otherwise approving such transaction and, in each
other case, by a Responsible Officer);
(B) such Investment shall be in property and
assets which are part of, or in lines of business
which are, Permitted Businesses;
(C) any determination of the amount of such
Investment shall include all cash and noncash
consideration (including, without limitation, the
fair market value of all Equity Interests issued or
transferred to the sellers thereof, all indemnities,
earnouts and other contingent payment obligations to,
and the aggregate amounts paid or to be paid under
noncompete, consulting and other affiliated
agreements with, the sellers thereof, all write-downs
of property and assets and reserves for liabilities
with respect thereto and all assumptions of debt,
liabilities and other obligations in connection
therewith) paid by or on behalf of the Borrower and
its Subsidiaries in connection with such Investment;
and
(D) immediately before and immediately after
giving effect to any such purchase or other
acquisition, no Default shall have occurred and be
continuing ;
(ix) Investments in Unrestricted Subsidiaries (A)
with proceeds from the sale or issuance of Equity Interests
not required to prepay the Facilities under Section 2.06(b)(i)
and (B) otherwise, in an aggregate amount for such Investments
(together with the aggregate amount of Investments made
pursuant to clause (viii) above) not to exceed $50,000,000;
Page 69
(x) Investments consisting of trade payables of the
Borrower or any of its Subsidiaries created in the ordinary
course of business;
(xi) Investments acquired by the Borrower or any of
its Subsidiaries in exchange for settlements and collections;
(xii) Investments that constitute redemptions,
retirements or defeasances of Equity Interests otherwise
permitted under Section 5.02(g);
(xiii) Investments in securities or other assets not
constituting cash or Cash Equivalents and received in
connection with any transaction permitted under Section
5.02(e);
(xiv) Investments consisting of Capital Expenditures
permitted under Section 5.02(o);
(xv) Investments required to be made in order to
comply with the rules, regulations and requirements of Gaming
Authorities and/or Gaming Laws;
(xvi) Reserved; and
(xvii) any Investment consisting of the extension of
gaming credit to gaming patrons consistent with industry
practice in the ordinary course of business.
(g) Restricted Payments. Declare or pay any dividends,
purchase, redeem, retire, defease or otherwise acquire for value any of
its Equity Interests now or hereafter outstanding, return any capital
to its stockholders, partners or members (or the equivalent Persons
thereof) as such, make any distribution of assets, Equity Interests,
obligations or securities to its stockholders, partners or members (or
the equivalent Persons thereof) as such or (except in the case of the
General Partner) issue or sell any Equity Interests or accept any
capital contributions, or, in each case, permit any of its Subsidiaries
to do any of the foregoing, or permit any of its Subsidiaries to
purchase, redeem, retire, defease or otherwise acquire for value any
Equity Interests in the General Partner or to issue or sell any Equity
Interests therein, except that, so long as no Default shall have
occurred and be continuing at the time of any action described below or
would result therefrom:
(i) the Borrower may declare and pay distributions or
dividends to the General Partner in amounts required by the
General Partner for ordinary course costs and expenses in an
aggregate amount not to exceed $1,500,000 in any Fiscal Year;
(ii) the Borrower may declare and pay distributions
or dividends for the redemption, repurchase or other
acquisition or retirement of, or any distribution or dividends
to the General Partner to, and the General Partner may, effect
the redemption, repurchase or acquisition or retirement of,
any Equity Interests or Debt of the Borrower or the General
Partner to the extent required by any Gaming Authority;
(iii) the Borrower may declare and pay distributions
or dividends for the repurchase, retirement or other
acquisition or retirement of common Equity Interests of the
General Partner held by any future, present or former
employee, director or consultant of the General Partner, the
Borrower or any of their respective Subsidiaries pursuant to
Page 70
any management equity plan or stock option plan or any other
management or employee benefit plan or agreement; provided,
however, that the aggregate payments made under this clause
(iii) shall be in an aggregate amount not to exceed $1,000,000
in any calendar year;
(iv) the General Partner may repurchase Equity
Interests deemed to occur upon the exercise of stock options
if such Equity Interests represent a portion of the exercise
price of such options;
(v) the Borrower and the General Partner may (A)
declare and pay dividends and distributions payable only in
Equity Interests of the Borrower or the General Partner, as
applicable, and (B) except to the extent the Net Cash Proceeds
thereof are required to be applied to the prepayment of the
Advances pursuant to Section 2.06(b), purchase, redeem,
retire, defease or otherwise acquire shares of its Capital
Stock with the proceeds received contemporaneously from the
issue of new Capital Stock with equal or inferior voting
powers, designations, preferences and rights;
(vi) the Borrower may make cash distributions
pursuant to the tax distribution provisions of Section 6.2 of
the Partnership Agreement in an amount reasonably determined
by the General Partner not to exceed the product of the
taxable income of the partners of the Borrower attributable to
their ownership interests in the Borrower multiplied by the
highest applicable marginal tax rate of such partners and may
make payments under the indemnification provisions of Section
6.3 the Partnership Agreement (such distributions, the "TAX
DISTRIBUTIONS"), provided that the amount of any such Tax
Distributions attributable to Unrestricted Subsidiaries of the
General Partner, as determined by the Borrower in a manner
reasonably acceptable to the Administrative Agent, which is in
excess of the amount of cash distributions made by
Unrestricted Subsidiaries to the Borrower and its Subsidiaries
(other than Unrestricted Subsidiaries), shall be deemed to be
an Investment under Section 5.02(f)(ix); and
(vii) any Subsidiary of the Borrower may (A) declare
and pay cash dividends to the Borrower, (B) declare and pay
cash dividends to its equity owners so long as such dividends
are made ratably among its equity owners and (C) accept
capital contributions from its parent to the extent permitted
under Section 5.02(f)(i).
(h) Amendments of Constitutive Documents. Amend, or permit any
of its Subsidiaries to amend, its certificate of incorporation or
bylaws or other constitutive documents other than amendments that could
not be reasonably expected to have a Material Adverse Effect.
(i) Accounting Changes. Make or permit, or permit any of its
Subsidiaries to make or permit, any change in (i) accounting policies
or reporting practices, except as required or permitted by generally
accepted accounting principles, or (ii) Fiscal Year.
(j) Prepayments, Etc., of Debt. Prepay, redeem, purchase,
defease or otherwise satisfy prior to the scheduled maturity thereof in
any manner, or make any payment in violation of any subordination terms
of, any Debt, except (i) the prepayment of the Advances in accordance
with the terms of this Agreement, (ii) regularly scheduled or required
repayments or regularly scheduled or required redemptions of Debt
incurred in accordance with the provisions of this Agreement or (iii)
Page 71
any prepayment, redemption or repayment of Debt arising in connection
with any Refinancing Debt incurred in accordance with the terms hereof,
or amend, modify or change in any manner any term or condition of any
Debt in a manner materially adverse to the Loan Parties or the Lender
Parties, or permit any of its Subsidiaries to do any of the foregoing
other than to prepay any Debt payable to a Loan Party.
(k) Reserved.
(l) Negative Pledge. Enter into or suffer to exist, or permit
any of its Subsidiaries to enter into or suffer to exist, any agreement
prohibiting or conditioning the creation or assumption of any Lien upon
any of its property or assets except (i) in favor of the Secured
Parties or (ii) in connection with (A) any Surviving Debt, (B) any
purchase money Debt permitted by Section 5.02(b)(iii) solely to the
extent that the agreement or instrument governing such Debt prohibits a
Lien on the property acquired with the proceeds of such Debt, (C) any
Capitalized Lease permitted by Section 5.02(b)(iv) solely to the extent
that such Capitalized Lease prohibits a Lien on the property subject
thereto, (D) any Debt outstanding on the date any Subsidiary of such
Loan Party becomes such a Subsidiary (so long as such agreement was not
entered into solely in contemplation of such Subsidiary becoming a
Subsidiary of such Loan Party), (E) restrictions imposed by Gaming
Authorities on the payment of dividends by entities holding Gaming
Licenses, (F) contracts for the sale of assets, including customary
restrictions with respect to a Subsidiary pursuant to an agreement that
has been entered into for the sale or disposition of all or
substantially all of the Capital Stock or assets of such Subsidiary,
provided that such restrictions or encumbrances relate only to the
assets (or Capital Stock of an entity directly or indirectly owning
such assets) being sold pursuant to these contracts and such sale is
permitted pursuant to Section 5.02(e), (G) customary provisions in
joint venture agreements and other similar agreements so long as the
related joint venture or Investment is permitted pursuant to Section
5.02(f), (H) customary provisions contained in leases and other
agreements entered into in the ordinary course of business, and (I)
customary restrictions in connection with Debt permitted under Section
5.02(b) so long as the Liens in favor of the Secured Parties are
specifically permitted.
(m) Partnerships, Etc. Become a general partner in any general
or limited partnership or joint venture, or permit any of its
Subsidiaries to do so, other than any Subsidiary the sole assets of
which consist of its interest in such partnership or joint venture.
(n) Speculative Transactions. Engage, or permit any of its
Subsidiaries to engage, in any transaction involving commodity options
or futures contracts or any similar speculative transactions.
(o) Capital Expenditures. Make, or permit any of its
Subsidiaries to make, any Capital Expenditures other than:
(i) Project Capital Expenditures made by the Borrower
and its Subsidiaries; provided, however, that the aggregate
amount of such Project Capital Expenditures shall not exceed
(A) during the period commencing on the Effective Date through
December 31, 2010, $275,000,000 in the aggregate, and (B)
during any Fiscal Year commencing with the Fiscal Year ending
December 31, 2011, $75,000,000 in the aggregate, provided that
if, for any such Fiscal Year under this clause (B), the amount
of Project Capital Expenditures permitted to be made in such
Fiscal Year exceeds the aggregate amount of Project Capital
Expenditures made by the Borrower and its Subsidiaries during
Page 72
such Fiscal Year (the amount of such excess being the "EXCESS
PROJECT CAPEX AMOUNT"), the Borrower and its Subsidiaries
shall be entitled to make additional Project Capital
Expenditures in the immediately succeeding Fiscal Year in an
amount (such amount being referred to herein as the "CARRYOVER
PROJECT CAPEX AMOUNT") equal to the lesser of (1) the Excess
Project Capex Amount and (2) 50% of the amount permitted to be
made in such immediately preceding Fiscal Year (after giving
effect to any Carryover Project Capex Amount); provided,
further, that the amount specified above for any Fiscal Year
shall not be deemed to have been utilized to make Project
Capital Expenditures until the Carryover Project Capex Amount,
if any, applicable to such Fiscal Year shall be utilized in
full; and
(ii) Maintenance Capital Expenditures made by the
Borrower and its Subsidiaries.
(p) Payment Restrictions Affecting Subsidiaries. Directly or
indirectly, enter into or suffer to exist, or permit any of its
Subsidiaries to enter into or suffer to exist, any agreement or
arrangement limiting the ability of any of its Subsidiaries to declare
or pay dividends or other distributions in respect of its Equity
Interests or repay or prepay any Debt owed to, make loans or advances
to, or otherwise transfer assets to or invest in, the Borrower or any
Subsidiary of the Borrower (whether through a covenant restricting
dividends, loans, asset transfers or investments, a financial covenant
or otherwise), except (i) the Loan Documents, (ii) the New Notes
Indenture and the New Notes, (iii) any agreement or instrument
evidencing Surviving Debt, (iv) any agreement in effect at the time
such Subsidiary becomes a Subsidiary of such Loan Party, so long as
such agreement was not entered into solely in contemplation of such
Person becoming a Subsidiary of such Loan Party, (v) any purchase money
Debt permitted by Section 5.02(b)(iii) solely to the extent that the
agreement or instrument governing such Debt prohibits a Lien on the
property acquired with the proceeds of such Debt, (vi) any Capitalized
Lease permitted by Section 5.02(b)(iv) solely to the extent that such
Capitalized Lease prohibits a Lien on the property subject thereto,
(vii) restrictions imposed by Gaming Authorities on the payment of
dividends by entities holding Gaming Licenses, (viii) contracts for the
sale of assets, including customary restrictions with respect to a
Subsidiary pursuant to an agreement that has been entered into for the
sale or disposition of all or substantially all of the Capital Stock or
assets of such Subsidiary, provided that such restrictions or
encumbrances relate only to the assets (or Capital Stock of an entity
directly or indirectly owning such assets) being sold pursuant to these
contracts and such sale is permitted pursuant to Section 5.02(e), (ix)
customary provisions in joint venture agreements and other similar
agreements so long as the related joint venture or Investment is
permitted pursuant to Section 5.02(f), and (x) customary restrictions
in connection with Debt permitted under Section 5.02(b) so long as such
restrictions are customary in the market for similar types of Debt for
issuers or borrowers of similar credit quality.
(q) Restrictions on Certain Agreements. Enter into, or permit
any of its Subsidiaries to enter into, any management or consulting
agreement with Xxxxxx X. Xxxxx or any Affiliate of Xxxxxx X. Xxxxx,
other than (i) employment agreements in the ordinary course of business
consistent with industry practice and approved by the Compensation
Committee, (ii) the Services Agreement and (iii) the ROFO Agreement.
(r) General Partner as Holding Company. In the case of the
General Partner, enter into or conduct any business, or engage in any
activity other than (i) the holding of the Equity Interests in the
Borrower; (ii) the performance of its duties as general partner of the
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Borrower and the performance of its Obligations under this Agreement;
(iii) the performance of its obligations under agreements in existence
on the Effective Date; (iv) the making of equity Investments in the
Borrower and its Subsidiaries; (v) the maintenance of any deposit
accounts required in connection with the conduct of business or
activities otherwise permitted under the Loan Documents; and (vi)
activities incidental to each of the foregoing. Notwithstanding
anything herein to the contrary, the General Partner shall be permitted
to make Investments in Unrestricted Subsidiaries to the extent
permitted under Section 5.02(f).
(s) New Notes Indenture, etc. Agree to any amendment of the
New Notes Indenture, the New Notes or any other Related Document or any
waiver of the terms of the New Notes Indenture, the New Notes or any
such other Related Document without obtaining the consent of the
Required Lenders to such amendment or waiver, except in the case of any
such amendment or waiver that seeks the consent of any of the Required
Second Lien Secured Parties (as defined in the Intercreditor Agreement)
to do only one or more of the following: (i) amend the maturity date of
the New Notes to a date later than the date set forth in the New Notes
Indenture as in effect on the date hereof, or decrease the amount of
any scheduled principal amortization payment on or any interest rate
applicable to the New Notes, or delete any mandatory prepayment
provision with respect to the New Notes; (ii) amend or modify any
covenant in the New Notes Indenture or any Second Lien Collateral
Document (as defined in the Intercreditor Agreement) in such a manner
as to make such covenant less restrictive to the Loan Parties; (iii)
delete or waive any "Default" (as defined therein) under the New Notes
Indenture; or (iv) cure any ambiguity, defect or inconsistency of a
technical nature in the Indenture.
(t) ROFO Agreement. Renew, replace, amend or extend the term
of the ROFO Agreement without the prior written consent of the
Administrative Agent.
Section 5.03. Reporting Requirements. So long as any Advance or any
other Obligation (other than any Unmatured Surviving Obligation) of any Loan
Party under any Loan Document shall remain unpaid or any Lender Party shall have
any Commitment hereunder, the Loan Parties will furnish to the Agents and the
Lender Parties:
(a) Default Notice. As soon as possible and in any event
within two Business Days after the occurrence of each Default or any
event, development or occurrence reasonably likely to have a Material
Adverse Effect continuing on the date of such statement, a statement of
the Responsible Officer of the Borrower setting forth details of such
Default and the action that the Borrower has taken and proposes to take
with respect thereto.
(b) Annual Financials. As soon as available and in any event
within 120 days after the end of each Fiscal Year, a copy of the annual
audit report for such year for the Borrower and its Subsidiaries,
including therein a Consolidated balance sheet of the Borrower and its
Subsidiaries as of the end of such Fiscal Year and a Consolidated
statement of income and a Consolidated statement of cash flows of the
Borrower and its Subsidiaries for such Fiscal Year, in each case
accompanied by (i) an opinion as to such audit report of independent
public accountants of recognized standing acceptable to the
Administrative Agent, (ii) a report of such independent public
accountants as to the Borrower's internal controls required under
Section 404 of the Xxxxxxxx-Xxxxx Act of 2002, in each case certified
in a manner to which the Required Lenders have not reasonably objected
in writing, together with (w) a certificate of such accounting firm to
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the Lender Parties stating that in the course of the regular audit of
the business of the Borrower and its Subsidiaries, which audit was
conducted by such accounting firm in accordance with generally accepted
auditing standards, such accounting firm has obtained no knowledge that
a Default has occurred and is continuing, or if, in the opinion of such
accounting firm, a Default has occurred and is continuing, a statement
as to the nature thereof, (x) if the General Partner has any
Unrestricted Subsidiaries, a consolidating balance sheet, consolidating
statement of income and a consolidating statement of cash flows, in
each case of the General Partner and its Subsidiaries (showing the
General Partner and its Subsidiaries (other than Unrestricted
Subsidiaries), taken as a whole, and the Unrestricted Subsidiaries of
the General Partner, taken as a whole) as at the end of such Fiscal
Year certified by a Responsible Officer of the General Partner, and (y)
a certificate of the Responsible Officer of the Borrower stating that
no Default has occurred and is continuing or, if a Default has occurred
and is continuing, a statement as to the nature thereof and the action
that the Borrower has taken and proposes to take with respect thereto.
In the event of any change in generally accepted accounting principles
used in the preparation of such financial statements, the General
Partner shall also provide a statement of reconciliation conforming
such financial statements to GAAP.
(c) Quarterly Financials. As soon as available and in any
event within 45 days after the end of each of the first three quarters
of each Fiscal Year, a Consolidated balance sheet of the General
Partner and its Subsidiaries as of the end of such fiscal quarter and a
Consolidated statement of income and a Consolidated statement of cash
flows of the General Partner and its Subsidiaries for the period
commencing at the end of the previous fiscal quarter and ending with
the end of such fiscal quarter and a Consolidated statement of income
and a Consolidated statement of cash flows of the General Partner and
its Subsidiaries for the period commencing at the end of the previous
Fiscal Year and ending with the end of such quarter, setting forth in
each case in comparative form the corresponding figures for the
corresponding date or period of the preceding Fiscal Year, all in
reasonable detail and duly certified (subject to normal year-end audit
adjustments) by the Responsible Officer of the General Partner as
having been prepared in accordance with generally accepted accounting
principles, together with (i) a certificate of said officer stating
that no Default has occurred and is continuing or, if a Default has
occurred and is continuing, a statement as to the nature thereof and
the action that the Borrower has taken and proposes to take with
respect thereto, and (ii) if the General Partner has any Unrestricted
Subsidiaries, a consolidating balance sheet, consolidating statement of
income and a consolidating statement of cash flows, in each case of the
General Partner and its Subsidiaries (showing the General Partner and
its Subsidiaries (other than Unrestricted Subsidiaries), and taken as a
whole, and the Unrestricted Subsidiaries of the General Partner, taken
as a whole) as at the end of such quarter certified by a Responsible
Officer of the General Partner. In the event of any change in generally
accepted accounting principles, the General Partner shall also provide,
a statement of reconciliation conforming such financial statements to
GAAP.
(d) Annual Forecasts. As soon as available and in any event no
later than 60 days after the end of each Fiscal Year, forecasts
prepared by management of the General Partner, in form reasonably
satisfactory to the Administrative Agent, of balance sheets, income
statements and cash flow statements of the General Partner and
Subsidiaries (other than Unrestricted Subsidiaries) on a quarterly
basis for the Fiscal Year following such Fiscal Year and on a quarterly
basis for each Fiscal Year thereafter until the Term B Maturity Date.
(e) Litigation. Promptly after the commencement thereof,
notice of all actions, suits, investigations, litigation and
proceedings before any Governmental Authority affecting any Loan Party
or any of its Subsidiaries of the type described in Section 4.01(f),
and promptly after the occurrence thereof, notice of any adverse change
in the status or the financial effect on any Loan Party or any of its
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Subsidiaries of the Disclosed Litigation from that described on
Schedule 4.01(f) hereto.
(f) Securities Reports. Promptly after the sending or filing
thereof, copies of all proxy statements, financial statements and
reports that any Loan Party or any of its Subsidiaries sends to its
stockholders, and copies of all regular, periodic and special reports,
and all registration statements, that any Loan Party or any of its
Subsidiaries files with the Securities and Exchange Commission or any
governmental authority that may be substituted therefor, or with any
national securities exchange.
(g) Creditor Reports. Promptly after the furnishing thereof,
copies of any statement or report furnished to any holder of Debt
securities of any Loan Party or of any of its Subsidiaries pursuant to
the terms of any indenture, loan or credit or similar agreement and not
otherwise required to be furnished to the Lender Parties pursuant to
any other clause of this Section 5.03.
(h) Agreement Notices. Promptly upon receipt thereof, copies
of all notices, requests and other documents received by any Loan Party
or any of its Subsidiaries under or pursuant to any Related Document or
any instrument, indenture, loan or credit or similar agreement with
respect to Debt in excess of $20,000,000 and, from time to time upon
request by the Administrative Agent, such information and reports
regarding the New Notes Indenture and such instruments, indentures and
loan and credit and similar agreements as the Administrative Agent may
reasonably request.
(i) Revenue Agent Reports. Within 10 days after receipt,
copies of all Revenue Agent Reports (Internal Revenue Service Form
886), or other written proposals of the Internal Revenue Service, that
propose, determine or otherwise set forth positive adjustments to the
Federal income tax liability of any Loan Party or, as applicable, the
affiliated group (within the meaning of Section 1504(a)(1) of the
Internal Revenue Code) of which any Loan Party is a member aggregating
$15,000,000 or more.
(j) ERISA.
(i) ERISA Events and ERISA Reports. (A) Promptly and
in any event within 10 days after any Loan Party or any ERISA
Affiliate knows or has reason to know that any ERISA Event has
occurred, a statement of the Responsible Officer of the
Borrower describing such ERISA Event and the action, if any,
that such Loan Party or such ERISA Affiliate has taken and
proposes to take with respect thereto and (B) on the date any
records, documents or other information must be furnished to
the PBGC with respect to any Plan pursuant to Section 4010 of
ERISA, a copy of such records, documents and information.
(ii) Plan Terminations. Promptly and in any event
within two Business Days after receipt thereof by any Loan
Party or any ERISA Affiliate, copies of each notice from the
PBGC stating its intention to terminate any Plan or to have a
trustee appointed to administer any Plan.
(iii) Plan Annual Reports. Promptly and in any event
within 30 days after the filing thereof with the Internal
Revenue Service, copies of each Schedule B (Actuarial
Information) to the annual report (Form 5500 Series) with
respect to each Plan.
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(iv) Multiemployer Plan Notices. Promptly and in any
event within five Business Days after receipt thereof by any
Loan Party or any ERISA Affiliate from the sponsor of a
Multiemployer Plan, copies of each notice concerning (A) the
imposition of Withdrawal Liability by any such Multiemployer
Plan, (B) the reorganization or termination, within the
meaning of Title IV of ERISA, of any such Multiemployer Plan
or (C) the amount of liability incurred, or that may be
incurred, by such Loan Party or any ERISA Affiliate in
connection with any event described in clause (A) or (B).
(k) Environmental Conditions. Promptly after the assertion or
occurrence thereof, notice of any Environmental Action against or of
any noncompliance by any Loan Party or any of its Subsidiaries with any
Environmental Law or Environmental Permit that could (i) reasonably be
expected to have a Material Adverse Effect or (ii) cause any property
described in the Mortgages to be subject to any restrictions on
ownership, occupancy, use or transferability under any Environmental
Law.
(l) Real Property. At the same time as delivery of financial
statements under Section 5.03(b), a report supplementing Schedule
4.01(v) hereto, including an identification of all owned and leased
real property disposed of by the Borrower or any of its Subsidiaries
during such Fiscal Year, a list and description (including the street
address, county or other relevant jurisdiction, state, record owner,
book value thereof and, in the case of leases of property, lessor,
lessee, expiration date and annual rental cost thereof) of all real
property acquired or leased during such Fiscal Year and a description
of such other changes in the information included in such Schedules as
may be necessary for such Schedules to be accurate and complete.
(m) Insurance. At the same time as delivery of financial
statements under Section 5.03(b), a report summarizing the insurance
coverage (specifying type, amount and carrier) in effect for each Loan
Party and its Subsidiaries and containing such additional information
as any Agent, or any Lender Party through the Administrative Agent, may
reasonably specify.
(n) Other Information. Such other information respecting the
business, condition (financial or otherwise), operations, performance,
properties or prospects of any Loan Party or any of its Subsidiaries as
any Agent, or any Lender Party through the Administrative Agent, may
from time to time reasonably request.
(o) New Tower. Within twenty (20) days following the end of
each calendar quarter, until such time as a certificate of occupancy
has been issued, the Borrower shall provide to the Administrative Agent
a report detailing the status of construction of the New Tower,
containing such information as the Administrative Agent may reasonably
request.
(p) Trademark License Agreement. Promptly upon receipt
thereof, copies of all notices, petitions, complaints or other writings
that reflect or evidence the seeking of an injunction or similar order
under the Trademark License Agreement.
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ARTICLE VI
EVENTS OF DEFAULT
Section 6.01. Events of Default. If any of the following events
("EVENTS OF DEFAULT") shall occur and be continuing:
(a) (i) the Borrower shall fail to pay any principal of any
Advance when the same shall become due and payable or (ii) the Borrower
shall fail to pay any interest on any Advance, or any Loan Party shall
fail to make any other payment under any Loan Document, in each case
under this clause (ii) within five Business Days after the same shall
become due and payable; or
(b) any representation or warranty made by any Loan Party (or
any of its officers) under or in connection with any Loan Document
shall prove to have been incorrect in any material respect when made;
or
(c) the Borrower shall fail to perform or observe any term,
covenant or agreement contained in Section 2.14, Section 5.01(e) (as it
relates to preservation of existence) or (i), Section 5.02 or Section
5.03(a), (b) or (c); or
(d) any Loan Party shall fail to perform or observe any other
term, covenant or agreement contained in any Loan Document on its part
to be performed or observed if such failure shall remain unremedied for
30 days after the earlier of the date on which (i) any officer of a
Loan Party becomes aware of such failure or (ii) written notice thereof
shall have been given to the Borrower by any Agent or any Lender Party;
or
(e) any Loan Party or any of its Subsidiaries shall fail to
pay any principal of, premium or interest on or any other amount
payable in respect of any Debt of such Loan Party or such Subsidiary
(as the case may be) that is outstanding in a principal amount of at
least $15,000,000 either individually or in the aggregate for all such
Loan Parties and Subsidiaries (but excluding Debt outstanding
hereunder), when the same becomes due and payable (whether by scheduled
maturity, required prepayment, acceleration, demand or otherwise), and
such failure shall continue after the applicable grace period, if any,
specified in the agreement or instrument relating to such Debt; or any
other event shall occur or condition shall exist under any agreement or
instrument relating to any such Debt and shall continue after the
applicable grace period, if any, specified in such agreement or
instrument, if the effect of such event or condition is to accelerate,
or to permit the acceleration of, the maturity of such Debt or
otherwise to cause, or to permit the holder thereof to cause, such Debt
to mature; or any such Debt shall be declared to be due and payable or
required to be prepaid or redeemed (other than by a regularly scheduled
required prepayment or redemption), purchased or defeased, or an offer
to prepay, redeem, purchase or defease such Debt shall be required to
be made, in each case prior to the stated maturity thereof; or
(f) any Loan Party or any of its Subsidiaries shall generally
not pay its debts as such debts become due, or shall admit in writing
its inability to pay its debts generally, or shall make a general
assignment for the benefit of creditors; or any proceeding shall be
instituted by or against any Loan Party or any of its Subsidiaries
seeking to adjudicate it a bankrupt or insolvent, or seeking
liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief, or composition of it or its debts under any law
relating to bankruptcy, insolvency or reorganization or relief of
debtors, or seeking the entry of an order for relief or the appointment
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of a receiver, trustee or other similar official for it or for any
substantial part of its property and, in the case of any such
proceeding instituted against it (but not instituted by it) that is
being diligently contested by it in good faith, either such proceeding
shall remain undismissed or unstayed for a period of 30 consecutive
days or any of the actions sought in such proceeding (including,
without limitation, the entry of an order for relief against, or the
appointment of a receiver, trustee, custodian or other similar official
for, it or any substantial part of its property) shall occur; or any
Loan Party or any of its Subsidiaries shall take any corporate action
to authorize any of the actions set forth above in this subsection (f);
or
(g) any judgments or orders, either individually or in the
aggregate, for the payment of money in excess of $15,000,000 shall be
rendered against any Loan Party or any of its Subsidiaries and either
(i) enforcement proceedings shall have been commenced by any creditor
upon such judgment or order or (ii) there shall be any period of 30
consecutive days during which a stay of enforcement of such judgment or
order, by reason of a pending appeal or otherwise, shall not be in
effect and such judgment has not been paid or discharged; or
(h) any non-monetary judgment or order shall be rendered
against any Loan Party or any of its Subsidiaries that could be
reasonably likely to have a Material Adverse Effect, and there shall be
any period of 30 consecutive days during which a stay of enforcement of
such judgment or order, by reason of a pending appeal or otherwise,
shall not be in effect and such judgment or order remains in effect; or
(i) any Loan Document after delivery thereof pursuant to
Section 3.01 or 5.01(j) shall for any reason cease to be valid and
binding on or enforceable against any Loan Party to it, or any such
Loan Party shall so state in writing; or
(j) any Collateral Document or financing statement after
delivery thereof pursuant to Section 3.01 or 5.01(j) shall for any
reason (other than pursuant to the terms thereof) cease to create a
valid and perfected first priority lien on and security interest in the
Collateral covered thereby or any Loan Party shall so assert in
writing; or
(k) a Change of Control shall occur; or
(l) any ERISA Event shall have occurred with respect to a Plan
and the sum (determined as of the date of occurrence of such ERISA
Event) of the Insufficiency of such Plan and the Insufficiency of any
and all other Plans with respect to which an ERISA Event shall have
occurred and then exist (or the liability of the Loan Parties and the
ERISA Affiliates related to such ERISA Event) exceeds $15,000,000; or
(m) any Loan Party or any ERISA Affiliate shall have been
notified by the sponsor of a Multiemployer Plan that it has incurred
Withdrawal Liability to such Multiemployer Plan in an amount that, when
aggregated with all other amounts required to be paid to Multiemployer
Plans by the Loan Parties and the ERISA Affiliates as Withdrawal
Liability (determined as of the date of such notification), exceeds
$15,000,000 or requires payments exceeding $5,000,000 per annum; or
(n) any Loan Party or any ERISA Affiliate shall have been
notified by the sponsor of a Multiemployer Plan that such Multiemployer
Plan is in reorganization or is being terminated, within the meaning of
Title IV of ERISA, and as a result of such reorganization or
termination the aggregate annual contributions of the Loan Parties and
the ERISA Affiliates to all Multiemployer Plans that are then in
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reorganization or being terminated have been or will be increased over
the amounts contributed to such Multiemployer Plans for the plan years
of such Multiemployer Plans immediately preceding the plan year in
which such reorganization or termination occurs by an amount exceeding
$5,000,000; or
(o) the occurrence of a License Revocation with respect to a
Gaming License in any jurisdiction in which any Loan Party owns or
operates a Gaming Facility (except where such License Revocation or
such revocation could not be reasonably expected to have a Material
Adverse Effect); provided that such License Revocation continues for at
least ten consecutive Business Days; or
(p) either of the Trademark License Agreement or the Trademark
Security Agreement shall terminate or expire for any reason, or any
injunction or similar order is granted against any Loan Party under the
Trademark License Agreement; or
(q) the occurrence of an Event of Default under or as referred
to in the Postclosing Agreement;
then, and in any such event, the Administrative Agent (i) shall at the request,
or may with the consent, of the Required Lenders, by notice to the Borrower,
declare the Commitments of each Lender Party and the obligation of each Lender
Party to make Advances to be terminated, whereupon the same shall forthwith
terminate, and (ii) shall at the request, or may with the consent, of the
Required Lenders, by notice to the Borrower, declare the Advances, all interest
thereon and all other amounts payable under this Agreement and the other Loan
Documents (including, without limitation, the Prepayment Fee, if otherwise due
as provided in this Agreement) to be forthwith due and payable, whereupon the
Advances, all such interest and all such amounts shall become and be forthwith
due and payable, without presentment, demand, protest or further notice of any
kind, all of which are hereby expressly waived by the Borrower; provided,
however, that in the event of an actual or deemed entry of an order for relief
with respect to the Borrower under the Federal Bankruptcy Code, (x) the
Commitments of each Lender Party and the obligation of each Lender Party to make
Advances shall automatically be terminated and (y) the Advances, all such
interest and all such amounts shall automatically become and be due and payable,
without presentment, demand, protest or any notice of any kind, all of which are
hereby expressly waived by the Borrower. If an Event of Default under Section
6.01(f) above should occur at any time prior to the fourth (4th) anniversary of
the Effective Date, the Prepayment Fee which would have been due if an optional
prepayment on the Facility had been made on the day immediately prior to the
date such Event of Default occurs under Section 6.01(f), shall be due and
payable as of the day immediately prior to the date such Event of Default under
Section 6.01(f) occurred.
ARTICLE VII
THE AGENTS
Section 7.01. Authorization and Action.
(a) Each Lender Party hereby appoints and authorizes each
Agent to take such action as agent on its behalf and to exercise such
powers and discretion under this Agreement and the other Loan Documents
as are delegated to such Agent by the terms hereof and thereof,
together with such powers and discretion as are reasonably incidental
thereto, including the execution and filing of documents in accordance
with the regulatory requirements of any Gaming Authority and consistent
with this Agreement. As to any matters not expressly provided for by
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the Loan Documents (including, without limitation, enforcement or
collection of the Advances), no Agent shall be required to exercise any
discretion or take any action, but shall be required to act or to
refrain from acting (and shall be fully protected in so acting or
refraining from acting) upon the instructions of the Required Lenders,
and such instructions shall be binding upon all Lender Parties and all
holders of Notes; provided, however, that no Agent shall be required to
take any action that exposes such Agent to personal liability or that
is contrary to this Agreement or applicable law. Each Agent agrees to
give to each Lender Party prompt notice of each notice given to it by
the Borrower pursuant to the terms of this Agreement.
(b) In furtherance of the foregoing, each Lender Party hereby
appoints and authorizes the Collateral Agent to act as the agent of
such Lender Party for purposes of acquiring, holding and enforcing any
and all Liens on Collateral granted by any of the Loan Parties to
secure any of the Secured Obligations, together with such powers and
discretion as are reasonably incidental thereto. In this connection,
the Collateral Agent (and any Supplemental Collateral Agents appointed
by the Collateral Agent pursuant to Section 7.01(c) for purposes of
holding or enforcing any Lien on the Collateral (or any portion
thereof) granted under the Collateral Documents, or for exercising any
rights or remedies thereunder at the direction of the Collateral
Agent), shall be entitled to the benefits of this Article VII
(including, without limitation, Section 7.05 as though any such
Supplemental Collateral Agents were an "Agent" under the Loan
Documents) as if set forth in full herein with respect thereto.
(c) Any Agent may execute any of its duties under this
Agreement or any other Loan Document (including for purposes of holding
or enforcing any Lien on the Collateral (or any portion thereof)
granted under the Collateral Documents or of exercising any rights and
remedies thereunder at the direction of the Collateral Agent) by or
through agents, employees or attorneys-in-fact and shall be entitled to
advice of counsel and other consultants or experts concerning all
matters pertaining to such duties. The Collateral Agent may also from
time to time, when the Collateral Agent deems it to be necessary or
desirable, appoint one or more trustees, co-trustees, collateral
co-agents, collateral subagents or attorneys-in-fact (each, a
"SUPPLEMENTAL COLLATERAL AGENT") with respect to all or any part of the
Collateral; provided, however, that no such Supplemental Collateral
Agent shall be authorized to take any action with respect to any
Collateral unless and except to the extent expressly authorized in
writing by the Collateral Agent. Should any instrument in writing from
the Borrower or any other Loan Party be required by any Supplemental
Collateral Agent so appointed by the Collateral Agent to more fully or
certainly vest in and confirm to such Supplemental Collateral Agent
such rights, powers, privileges and duties, the Borrower shall, or
shall cause such Loan Party to, execute, acknowledge and deliver any
and all such instruments promptly upon request by the Collateral Agent.
If any Supplemental Collateral Agent, or successor thereto, shall die,
become incapable of acting, resign or be removed, all rights, powers,
privileges and duties of such Supplemental Collateral Agent, to the
extent permitted by law, shall automatically vest in and be exercised
by the Collateral Agent until the appointment of a new Supplemental
Collateral Agent. No Agent shall be responsible for the negligence or
misconduct of any agent, attorney-in-fact or Supplemental Collateral
Agent that it selects in accordance with the foregoing provisions of
this Section 7.01(c) in the absence of such Agent's gross negligence or
willful misconduct.
Section 7.02. Agents' Reliance, Etc. Neither any Agent nor any of their
respective directors, officers, agents or employees shall be liable for any
action taken or omitted to be taken by it or them under or in connection with
the Loan Documents, except for its or their own gross negligence or willful
misconduct. Without limitation of the generality of the foregoing, each Agent:
(a) may consult with legal counsel (including counsel for any Loan Party),
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independent public accountants and other experts selected by it and shall not be
liable for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or experts; (b) makes no
warranty or representation to any Lender Party and shall not be responsible to
any Lender Party for any statements, warranties or representations (whether
written or oral) made in or in connection with the Loan Documents; (c) shall not
have any duty to ascertain or to inquire as to the performance, observance or
satisfaction of any of the terms, covenants or conditions of any Loan Document
on the part of any Loan Party or the existence at any time of any Default under
the Loan Documents or to inspect the property (including the books and records)
of any Loan Party; (d) shall not be responsible to any Lender Party for the due
execution, legality, validity, enforceability, genuineness, sufficiency or value
of, or the perfection or priority of any lien or security interest created or
purported to be created under or in connection with, any Loan Document or any
other instrument or document furnished pursuant thereto; and (e) shall incur no
liability under or in respect of any Loan Document by acting upon any notice,
consent, certificate or other instrument or writing (which may be by telegram or
telecopy) believed by it to be genuine and signed or sent by the proper party or
parties.
Xxxxxxx 0.00. XXX, XX and Affiliates. With respect to its Commitments,
the Advances made by it and any Notes issued to it, each of BBN and BB shall
have the same rights and powers under the Loan Documents as any other Lender
Party and may exercise the same as though BB, was not an Agent; and the term
"Lender Party" or "Lender Parties" shall, unless otherwise expressly indicated,
include BBN and BB in their individual capacities. BBN, BB and their affiliates
may accept deposits from, lend money to, act as trustee under indentures of,
accept investment banking engagements from and generally engage in any kind of
business with, any Loan Party, any of its Subsidiaries and any Person that may
do business with or own securities of any Loan Party or any such Subsidiary, all
as if BBN and BB (and/or the Affiliates of either) were not an Agent and without
any duty to account therefor to the Lender Parties. No Agent shall have any duty
to disclose any information obtained or received by it or any of its Affiliates
relating to any Loan Party or any of its Subsidiaries to the extent such
information was obtained or received in any capacity other than as such Agent.
Section 7.04. Lender Party Credit Decision. Each Lender Party
acknowledges that it has, independently and without reliance upon any Agent or
any other Lender Party and based on the financial statements referred to in
Section 4.01 and such other documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender Party also acknowledges that it will, independently and
without reliance upon any Agent or any other Lender Party 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.
Section 7.05. Indemnification.
(a) Each Lender Party severally agrees to indemnify each Agent
(to the extent not promptly reimbursed by the Borrower) from and
against such Lender Party's ratable share (determined as provided
below) of any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever that may be imposed on, incurred by,
or asserted against such Agent in any way relating to or arising out of
the Loan Documents or any action taken or omitted by such Agent under
the Loan Documents (collectively, the "INDEMNIFIED COSTS"); provided,
however, that no Lender Party shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from such
Agent's gross negligence or willful misconduct as found in a final,
non-appealable judgment by a court of competent jurisdiction. Without
limitation of the foregoing, each Lender Party agrees to reimburse each
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Agent promptly upon demand for its ratable share of any costs and
expenses (including, without limitation, reasonable fees and expenses
of counsel) payable by the Borrower under Section 9.04, to the extent
that such Agent is not promptly reimbursed for such costs and expenses
by the Borrower. In the case of any investigation, litigation or
proceeding giving rise to any Indemnified Costs, this Section 7.05
applies whether any such investigation, litigation or proceeding is
brought by any Lender Party or any other Person.
(b) Reserved.
(c) For purposes of this Section 7.05, each Lender Party's
respective ratable share of any amount shall be determined, at any
time, according to the sum of (i) the aggregate principal amount of the
Advances outstanding at such time and owing to such Lender Party and
(ii) such Lender Party's Unused Term B-2 Commitments at such time. The
failure of any Lender Party to reimburse any Agent promptly upon demand
for its ratable share of any amount required to be paid by the Lender
Parties to such Agent as provided herein shall not relieve any other
Lender Party of its obligation hereunder to reimburse such Agent for
its ratable share of such amount, but no Lender Party shall be
responsible for the failure of any other Lender Party to reimburse such
Agent for such other Lender Party's ratable share of such amount.
Without prejudice to the survival of any other agreement of any Lender
Party hereunder, the agreement and obligations of each Lender Party
contained in this Section 7.05 shall survive the payment in full of
principal, interest and all other amounts payable hereunder and under
the other Loan Documents.
Section 7.06. Successor Agents. Any Agent may resign as to any or all
of the Facilities at any time by giving written notice thereof to the Lender
Parties and the Borrower and may be removed as to all of the Facilities at any
time with or without cause by the Required Lenders; provided, however, that any
removal of the Administrative Agent will not be effective until it or its
Affiliate has also been replaced as Collateral Agent and discharged from all of
its obligations in respect thereof. Upon any such resignation or removal, the
Required Lenders shall have the right (with the consent of the Borrower, so long
as no Event of Default has occurred or is continuing) to appoint a successor
Agent as to such of the Facilities as to which such Agent has resigned or been
removed. If no successor Agent shall have been so appointed by the Required
Lenders (or, so long as no Event of Default has occurred or is continuing,
consented to by the Borrower), and shall have accepted such appointment, within
30 days after the retiring Agent's giving of notice of resignation or the
Required Lenders' removal of the retiring Agent, then the retiring Agent may, on
behalf of the Lender Parties, appoint a successor Agent, which shall be a
commercial bank organized under the laws of the United States or of any State
thereof and having a combined capital and surplus of at least $250,000,000. Upon
the acceptance of any appointment as Agent hereunder by a successor Agent as to
all of the Facilities and, in the case of a successor Collateral Agent, upon the
execution and filing or recording of such financing statements, or amendments
thereto, and such amendments or supplements to the Mortgages, and such other
instruments or notices, as may be necessary or desirable, or as the Required
Lenders may reasonably request, in order to continue the perfection of the Liens
granted or purported to be granted by the Collateral Documents, such successor
Agent shall succeed to and become vested with all the rights, powers,
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discretion, privileges and duties of the retiring Agent, and the retiring Agent
shall be discharged from its duties and obligations under the Loan Documents.
Upon the acceptance of any appointment as Agent hereunder by a successor Agent
as to less than all of the Facilities and, in the case of a successor Collateral
Agent, upon the execution and filing or recording of such financing statements,
or amendments thereto, and such amendments or supplements to the Mortgages, and
such other instruments or notices, as may be reasonably necessary or desirable,
or as the Required Lenders may request, in order to continue the perfection of
the Liens granted or purported to be granted by the Collateral Documents, such
successor Agent shall succeed to and become vested with all the rights, powers,
discretion, privileges and duties of the retiring Agent as to such Facilities,
other than with respect to funds transfers and other similar aspects of the
administration of Borrowings under such Facilities, and payments by the Borrower
in respect of such Facilities, and the retiring Administrative Agent shall be
discharged from its duties and obligations under this Agreement as to such
Facilities, other than as aforesaid. If within 45 days after written notice is
given of the retiring Agent's resignation or removal under this Section 7.06 no
successor Agent shall have been appointed and shall have accepted such
appointment, then on such 45th day (a) the retiring Agent's resignation or
removal shall become effective, (b) the retiring Agent shall thereupon be
discharged from its duties and obligations under the Loan Documents and (c) the
Required Lenders shall thereafter perform all duties of the retiring Agent under
the Loan Documents until such time, if any, as the Required Lenders appoint a
successor Agent as provided above. After any retiring Agent's resignation or
removal hereunder as Agent as to any of the Facilities shall have become
effective, the provisions of this Article VII shall inure to its benefit as to
any actions taken or omitted to be taken by it while it was Agent as to such
Facilities under this Agreement.
ARTICLE VIII
GUARANTY
Section 8.01. Guaranty; Limitation of Liability.
(a) Each Guarantor, jointly and severally, hereby absolutely,
unconditionally and irrevocably guarantees the punctual payment when
due, whether at scheduled maturity or on any date of a required
prepayment or by acceleration, demand or otherwise, of all Obligations
of each other Loan Party now or hereafter existing under or in respect
of the Loan Documents (including, without limitation, any extensions,
modifications, substitutions, amendments or renewals of any or all of
the foregoing Obligations), whether direct or indirect, absolute or
contingent, and whether for principal, interest, premiums, fees,
indemnities, contract causes of action, costs, expenses or otherwise
(such Obligations being the "GUARANTEED OBLIGATIONS"), and agrees to
pay any and all reasonable expenses (including, without limitation,
reasonable fees and expenses of counsel) incurred by any Agent or any
Lender Party in enforcing any rights under this Guaranty or any other
Loan Document. Without limiting the generality of the foregoing, each
Guarantor's liability shall extend to all amounts that constitute part
of the Guaranteed Obligations and would be owed by any other Loan Party
to any Agent or any Lender Party under or in respect of the Loan
Documents but for the fact that they are unenforceable or not allowable
due to the existence of a bankruptcy, reorganization or similar
proceeding involving such other Loan Party.
(b) Each Guarantor, and by its acceptance of this Guaranty,
the Administrative Agent and each Lender Party, hereby confirms that it
is the intention of all such Persons that this Guaranty and the
Obligations of each Subsidiary Guarantor (that is a Subsidiary of the
Borrower) hereunder not constitute a fraudulent transfer or conveyance
for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act,
the Uniform Fraudulent Transfer Act or any similar foreign, federal or
state law to the extent applicable to this Guaranty and the Obligations
of each Subsidiary Guarantor (that is a Subsidiary of the Borrower)
hereunder. To effectuate the foregoing intention, the Administrative
Agent, the Lender Parties and the Guarantors hereby irrevocably agree
that the Obligations of each Guarantor under this Guaranty at any time
shall be limited to the maximum amount as will result in the
Obligations of such Guarantor under this Guaranty not constituting a
fraudulent transfer or conveyance.
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(c) Each Guarantor hereby unconditionally and irrevocably
agrees that in the event any payment shall be required to be made to
any Lender Party under this Guaranty or any other guaranty, such
Guarantor will contribute, to the maximum extent permitted by law, such
amounts to each other Guarantor and each other guarantor so as to
maximize the aggregate amount paid to the Agents and the Lender Parties
under or in respect of the Loan Documents.
Section 8.02. Guaranty Absolute. Each Guarantor guarantees that the
Guaranteed Obligations will be paid strictly in accordance with the terms of the
Loan Documents, regardless of any law, regulation or order now or hereafter in
effect in any jurisdiction affecting any of such terms or the rights of any
Agent or any Lender Party with respect thereto. The Obligations of each
Guarantor under or in respect of this Guaranty are independent of the Guaranteed
Obligations or any other Obligations of any other Loan Party under or in respect
of the Loan Documents, and a separate action or actions may be brought and
prosecuted against each Guarantor to enforce this Guaranty, irrespective of
whether any action is brought against the Borrower or any other Loan Party or
whether the Borrower or any other Loan Party is joined in any such action or
actions. The liability of each Guarantor under this Guaranty shall be
irrevocable, absolute and unconditional irrespective of, and each Guarantor
hereby irrevocably waives any defenses it may now have or hereafter acquire in
any way relating to, any or all of the following:
(a) any lack of validity or enforceability of any Loan
Document or any agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Guaranteed Obligations or any
other Obligations of any other Loan Party under or in respect of the
Loan Documents, or any other amendment or waiver of or any consent to
departure from any Loan Document, including, without limitation, any
increase in the Guaranteed Obligations resulting from the extension of
additional credit to any Loan Party or any of its Subsidiaries or
otherwise;
(c) any taking, exchange, release or non-perfection of any
Collateral or any other collateral, or any taking, release or amendment
or waiver of, or consent to departure from, any other guaranty, for all
or any of the Guaranteed Obligations;
(d) any manner of application of Collateral or any other
collateral, or proceeds thereof, to all or any of the Guaranteed
Obligations, or any manner of sale or other disposition of any
Collateral or any other collateral for all or any of the Guaranteed
Obligations or any other Obligations of any Loan Party under the Loan
Documents or any other assets of any Loan Party or any of its
Subsidiaries;
(e) any change, restructuring or termination of the corporate
structure or existence of any Loan Party or any of its Subsidiaries;
(f) any failure of any Agent or any Lender Party to disclose
to any Loan Party any information relating to the business, condition
(financial or otherwise), operations, performance, properties or
prospects of any other Loan Party now or hereafter known to such Agent
or such Lender Party, as the case may be (each Guarantor waiving any
duty on the part of the Agents and the Lender Parties to disclose such
information);
Page 85
(g) the failure of any other Person to execute or deliver this
Guaranty, any Guaranty Supplement or any other guaranty or agreement or
the release or reduction of liability of any Guarantor or other
guarantor or surety with respect to the Guaranteed Obligations; or
(h) any other circumstance (including, without limitation, any
statute of limitations) or any existence of or reliance on any
representation by any Agent or any Lender Party that might otherwise
constitute a defense available to, or a discharge of, any Loan Party or
any other guarantor or surety, in its capacity as a guarantor or
surety.
This Guaranty shall continue to be effective or be reinstated, as the case may
be, if at any time any payment of any of the Guaranteed Obligations is rescinded
or must otherwise be returned by any Agent or any Lender Party or any other
Person upon the insolvency, bankruptcy or reorganization of the Borrower or any
other Loan Party or otherwise, all as though such payment had not been made.
Section 8.03. Waivers and Acknowledgments.
(a) Each Guarantor hereby unconditionally and irrevocably
waives promptness, diligence, notice of acceptance, presentment, demand
for performance, notice of nonperformance, default, intent to
accelerate, acceleration, protest or dishonor and any other notice with
respect to any of the Guaranteed Obligations and this Guaranty and any
requirement that any Agent or any Lender Party protect, secure, perfect
or insure any Lien or any property subject thereto or exhaust any right
or take any action against any Loan Party or any other Person or any
Collateral.
(b) Each Guarantor hereby unconditionally and irrevocably
waives any right to revoke this Guaranty and acknowledges that this
Guaranty is continuing in nature and applies to all Guaranteed
Obligations, whether existing now or in the future.
(c) Each Guarantor hereby unconditionally and irrevocably
waives (i) any defense arising by reason of any claim or defense based
upon an election of remedies by any Agent or any Lender Party that in
any manner impairs, reduces, releases or otherwise adversely affects
the subrogation, reimbursement, exoneration, contribution or
indemnification rights of such Guarantor or other rights of such
Guarantor to proceed against any of the other Loan Parties, any other
guarantor or any other Person or any Collateral and (ii) any defense
based on any right of set-off or counterclaim against or in respect of
the Obligations of such Guarantor hereunder.
(d) Each Guarantor acknowledges that the Collateral Agent may,
without notice to or demand upon such Guarantor and without affecting
the liability of such Guarantor under this Guaranty, foreclose under
any mortgage by nonjudicial sale, and each Guarantor hereby waives any
defense to the recovery by the Collateral Agent and the other Secured
Parties against such Guarantor of any deficiency after such nonjudicial
sale and any defense or benefits that may be afforded by applicable
law.
(e) Each Guarantor hereby unconditionally and irrevocably
waives any duty on the part of any Agent or any Lender Party to
disclose to such Guarantor any matter, fact or thing relating to the
business, condition (financial or otherwise), operations, performance,
properties or prospects of any other Loan Party or any of its
Subsidiaries now or hereafter known by such Agent or such Secured
Party, as the case may be.
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(f) Each Guarantor acknowledges that it will receive
substantial direct and indirect benefits from the financing
arrangements contemplated by the Loan Documents and that the waivers
set forth in Section 8.02 and this Section 8.03 are knowingly made in
contemplation of such benefits.
Section 8.04. Subrogation. Each Guarantor hereby unconditionally and
irrevocably agrees not to exercise any rights that it may now have or hereafter
acquire against the Borrower, any other Loan Party or any other insider
guarantor that arise from the existence, payment, performance or enforcement of
such Guarantor's Obligations under or in respect of this Guaranty or any other
Loan Document, including, without limitation, any right of subrogation,
reimbursement, exoneration, contribution or indemnification and any right to
participate in any claim or remedy of any Agent or any Lender Party against the
Borrower, any other Loan Party or any other insider guarantor or any Collateral,
whether or not such claim, remedy or right arises in equity or under contract,
statute or common law, including, without limitation, the right to take or
receive from the Borrower, any other Loan Party or any other insider guarantor,
directly or indirectly, in cash or other property or by set-off or in any other
manner, payment or security on account of such claim, remedy or right, unless
and until all of the Guaranteed Obligations (other than Unmatured Surviving
Obligations) and all other amounts payable under this Guaranty shall have been
paid in full in cash and the Commitments shall have expired or been terminated.
If any amount shall be paid to any Guarantor in violation of the immediately
preceding sentence at any time prior to the latest of (a) the payment in full in
cash of the Guaranteed Obligations (other than Unmatured Surviving Obligations)
and all other amounts payable under this Guaranty and (b) the Termination Date,
such amount shall be received and held in trust for the benefit of the Secured
Parties, shall be segregated from other property and funds of such Guarantor and
shall forthwith be paid or delivered to the Administrative Agent in the same
form as so received (with any necessary endorsement or assignment) to be
credited and applied to the Guaranteed Obligations and all other amounts payable
under this Guaranty, whether matured or unmatured, in accordance with the terms
of the Loan Documents, or to be held as Collateral for any Guaranteed
Obligations or other amounts payable under this Guaranty thereafter arising. If
(i) any Guarantor shall make payment to any Secured Party of all or any part of
the Guaranteed Obligations, (ii) all of the Guaranteed Obligations and all other
amounts payable under this Guaranty shall have been paid in full in cash and
(iii) the Termination Date shall have occurred, the Agents and the Lender
Parties will, at such Guarantor's request and expense, execute and deliver to
such Guarantor appropriate documents, without recourse and without
representation or warranty, necessary to evidence the transfer by subrogation to
such Guarantor of an interest in the Guaranteed Obligations resulting from such
payment made by such Guarantor pursuant to this Guaranty.
Section 8.05. Guaranty Supplements. Upon the execution and delivery by
any Person of a guaranty supplement in substantially the form of EXHIBIT E
hereto (each, a "GUARANTY SUPPLEMENT"), (a) such Person shall be referred to as
an "ADDITIONAL GUARANTOR" and shall become and be a Guarantor hereunder, and
each reference in this Guaranty to a "Guarantor" shall also mean and be a
reference to such Additional Guarantor, and each reference in any other Loan
Document to a "GUARANTOR" shall also mean and be a reference to such Additional
Guarantor, and (b) each reference herein to " THIS GUARANTY," "HEREUNDER,"
"HEREOF" or words of like import referring to this Guaranty, and each reference
in any other Loan Document to the "GUARANTY," "THEREUNDER," "THEREOF" or words
of like import referring to this Guaranty, shall mean and be a reference to this
Guaranty as supplemented by such Guaranty Supplement.
Section 8.06. Subordination. Each Guarantor hereby subordinates any and
all debts, liabilities and other Obligations owed to such Guarantor by each
other Loan Party (the "SUBORDINATED OBLIGATIONS") to the Guaranteed Obligations
to the extent and in the manner hereinafter set forth in this Section 8.06:
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(a) Prohibited Payments, Etc. Except during the continuance of
an Event of Default, each Guarantor may receive payments from any other
Loan Party on account of the Subordinated Obligations. After the
occurrence and during the continuance of any Event of Default, however,
unless the Required Lenders otherwise agree, no Guarantor shall demand,
accept or take any action to collect any payment on account of the
Subordinated Obligations.
(b) Prior Payment of Guaranteed Obligations. In any proceeding
under any Bankruptcy Law relating to any other Loan Party, each
Guarantor agrees that the Agents and the Lender Parties shall be
entitled to receive payment in full in cash of all Guaranteed
Obligations (including all interest and expenses accruing after the
commencement of a proceeding under any Bankruptcy Law, whether or not
constituting an allowed claim in such proceeding ("POST-PETITION
INTEREST")) before such Guarantor receives payment of any Subordinated
Obligations.
(c) Turn-Over. After the occurrence and during the continuance
of any Event of Default, each Guarantor shall, if the Administrative
Agent, acting at the direction of, or with the consent of, the Required
Lenders, so requests, collect, enforce and receive payments on account
of the Subordinated Obligations as trustee for the Agents and the
Lender Parties and deliver such payments to the Administrative Agent on
account of the Guaranteed Obligations (including all Post-Petition
Interest), together with any necessary endorsements or other
instruments of transfer, but without reducing or affecting in any
manner the liability of such Guarantor under the other provisions of
this Guaranty.
(d) Administrative Agent Authorization. After the occurrence
and during the continuance of any Event of Default, the Administrative
Agent acting at the direction of, or with the consent of, the Required
Lenders, is authorized and empowered (but without any obligation to so
do), in its discretion, (i) in the name of each Guarantor, to collect
and enforce, and to submit claims in respect of, the Subordinated
Obligations and to apply any amounts received thereon to the Guaranteed
Obligations (including any and all Post-Petition Interest), and (ii) to
require each Guarantor (A) to collect and enforce, and to submit claims
in respect of, Subordinated Obligations and (B) to pay any amounts
received on such obligations to the Administrative Agent for
application to the Guaranteed Obligations (including any and all
Post-Petition Interest).
Section 8.07. Continuing Guaranty; Assignments. This Guaranty is a
continuing guaranty and shall (a) remain in full force and effect until the
latest of (i) the payment in full in cash of the Guaranteed Obligations (other
than Unmatured Surviving Obligations) and all other amounts payable under this
Guaranty and (ii) the Termination Date, (b) be binding upon each Guarantor, its
successors and assigns and (c) inure to the benefit of and be enforceable by the
Agents and the Lender Parties and their successors, transferees and assigns.
Without limiting the generality of clause (c) of the immediately preceding
sentence, any Lender Party may assign or otherwise transfer all or any portion
of its rights and obligations under this Agreement (including, without
limitation, all or any portion of its Commitments, the Advances owing to it and
any Note or Notes held by it) to any other Person, and such other Person shall
thereupon become vested with all the benefits in respect thereof granted to such
Lender Party herein or otherwise, in each case as and to the extent provided in
Section 9.07. No Guarantor shall have the right to assign its rights hereunder
or any interest herein without the prior written consent of the Secured Parties;
provided that any Guarantor may assign its rights to the applicable Loan Party
in a transaction permitted pursuant to Section 5.02(d).
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ARTICLE IX
MISCELLANEOUS
Section 9.01. Amendments, Etc. No amendment or waiver of, or
forbearance from taking any action in respect of, any provision of this
Agreement or any other Loan Document, nor consent to any departure by any Loan
Party therefrom, shall in any event be effective unless the same shall be in
writing and signed (or, in the case of the Collateral Documents, consented to)
by the Required Lenders, and then such waiver or consent shall be effective only
in the specific instance and for the specific purpose for which given; provided,
however, that
(a) no amendment, waiver or consent shall, unless in writing
and signed by all of the Lender Parties (other than any Lender Party
that is, at such time, a Defaulting Lender), do any of the following at
any time:
(i) waive any of the conditions specified in Section
3.01 or, in the case of the Initial Extension of Credit,
Section 3.02; or
(ii) change the definition of "Required Lenders" or
otherwise change the number of Lenders or the percentage of
(x) the Commitments, or (y) the aggregate unpaid principal
amount of the Advances that, in each case, shall be required
for the Lenders or any of them to take any action hereunder;
or
(iii) change the order of application of payments set
forth in Section 2.11(f); or
(iv) other than in connection with a transaction
specifically permitted hereby, release one or more Guarantors
(or otherwise limit such Guarantors' liability with respect to
the Obligations owing to the Agents and the Lender Parties
under the Guaranties) if such release or limitation is in
respect of all or substantially all of the value of the
Guaranties to the Lender Parties; or
(v) other than in connection with a transaction
specifically permitted under this Agreement, release any
material portion of the Collateral having a value in excess of
$50,000,000 in any transaction or series of related
transactions.
(b) no amendment, waiver or consent shall, unless in writing
and signed by the Required Lenders and each Lender specified below for
such amendment, waiver or consent:
(i) increase the Commitments of a Lender Party
without the consent of such Lender Party;
(ii) reduce or forgive the principal of, or stated
rate of interest (other than Default Interest) on, the
Advances owed to a Lender Party or any fees or other amounts
stated to be payable hereunder or under the other Loan
Documents to such Lender Party without the consent of such
Lender Party;
(iii) postpone any date scheduled for any payment of
principal of, or interest (other than Default Interest) on,
the Advances pursuant to Section 2.04 or 2.07 or any date
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fixed for any payment of fees hereunder to a Lender Party
without the consent of such Lender Party;
(iv) Reserved;
(v) change the order of application of any reduction
in the Commitments or any prepayment of Advances among the
Facilities from the application thereof set forth in the
applicable provisions of Section 2.05 or 2.06(b),
respectively, in any manner that materially adversely affects
the Lenders under one Facility without the consent of holders
of a majority of the Commitments or Advances outstanding under
such Facility;
(vi) shorten the time period in which any Lender is
required to fund any Advance without the consent of such
Lender; or
(vii) amend, waive, modify or consent to any
departure from the provisions of this Section 9.01 in a manner
that would adversely affect the rights of any Lender under
this Section 9.01 without the consent of such Lender;
provided, further, that no amendment, waiver or consent shall, unless in writing
and signed by an Agent in addition to the Lenders required above to take such
action, affect the rights or duties of such Agent under this Agreement or the
other Loan Documents.
Section 9.02. Notices, Etc.
(a) All notices and other communications provided for
hereunder shall be either (x) in writing (including telegraphic or
telecopy communication) and mailed, telegraphed, telecopied or
delivered, or (y) as and to the extent set forth in Section 9.02(b) and
in the proviso to this Section 9.02(a), in an electronic medium and as
delivered as set forth in Section 9.02(b) if to any Loan Party, at the
Borrower's address at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Mr. Xxxx Xxxxx, Executive Vice President and Corporate
Treasurer; if to any Initial Lender Party, at its Domestic Lending
Office specified opposite its name on Schedule I hereto; if to any
other Lender Party, at its Domestic Lending Office specified in the
Assignment and Acceptance pursuant to which it became a Lender Party;
if to the Collateral Agent or the Administrative Agent, at its address
at 0000 Xxxxxx Xxxxx, Xxxxx, Xxxxx 00000, Attention: Xxxxx Xxxxx, or,
as to any party, at such other address as shall be designated by such
party in a written notice to the other parties; provided, however, that
materials and information described in Section 9.02(b) shall be
delivered to the Administrative Agent in accordance with the provisions
thereof or as otherwise specified to the Borrower by the Administrative
Agent. All such notices and other communications shall, when mailed,
telegraphed or telecopied, be effective when deposited in the mails,
delivered to the telegraph company or transmitted by telecopier,
respectively, except that notices and communications to any Agent
pursuant to Article II, III or VII shall not be effective until
received by such Agent. Delivery by telecopier of an executed
counterpart of a signature page to any amendment or waiver of any
provision of this Agreement or the Notes or of any Exhibit hereto to be
executed and delivered hereunder shall be effective as delivery of an
original executed counterpart thereof. As agreed to among the Borrower,
including as set forth in subsection (b) below, the Administrative
Agent and the applicable Lender Parties from time to time, notices and
other communications may also be delivered by e-mail to the e-mail
address of a representative of the applicable Person provided from time
to time by such Person.
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(b) The Borrower hereby agrees that it will provide to the
Administrative Agent all information, documents and other materials
that it is obligated to furnish to the Administrative Agent pursuant to
the Loan Documents, including, without limitation, all notices,
requests, financial statements, financial and other reports,
certificates and other information materials, but excluding (i) any
Notice of Borrowing or Notice of Conversion pursuant to Section 2.09,
(ii) any notice of any prepayment of the Advances pursuant to Section
2.06, (iii) any notice of a Default or Event of Default under this
Agreement or (iv) any certificate, agreement or other document required
to be delivered to satisfy any condition set forth in Article III of
this Agreement (all such non-excluded communications being referred to
herein collectively as "Communications"), by delivering the
Communications by e-mail to an e-mail address specified by the
Administrative Agent to the Borrower. In addition, the Borrower agrees
to continue to provide the Communications to the Administrative Agent
in the manner specified in the Loan Documents but only to the extent
requested by the Administrative Agent. The Borrower further agrees that
the Administrative Agent may make the Communications available to the
Lenders by posting the Communications on Intralinks or a substantially
similar electronic transmission system reasonably acceptable to the
Borrower (the "PLATFORM").
(c) The Platform is provided on an "as is" and "as available"
basis and the Agent Parties (as defined below) make no representation
or warranty of any kind as the accuracy or completeness of the
Communications or as to the adequacy of the Platform, and expressly
disclaim any liability for any errors or omissions in the
Communications. In no event shall the Administrative Agent or any of
its Affiliates or any of their respective officers, directors,
employees, agents, Advisors or representatives (collectively, the
"AGENT PARTIES") have any liability to the Borrower, any Lender Party
or any other Person or entity for damages of any kind, including,
without limitation, any direct or indirect, special, incidental or
consequential damages, losses or expenses (whether in tort, contract or
otherwise) arising out of either Borrower's or the Administrative
Agent's delivery of any Communications through the internet, except to
the extent the liability of any Agent Party is found in a final
non-appealable judgment by a court of competent jurisdiction to have
resulted primarily from such Agent Party's gross negligence or willful
misconduct.
(d) The Administrative Agent agrees that the receipt of the
Communications by the Administrative Agent at its e-mail address set
forth above shall constitute effective delivery of the Communications
to the Administrative Agent for purposes of the Loan Documents. Each
Lender Party agrees that notice to it (as provided in the next
sentence) specifying that the Communications have been posted to the
Platform shall constitute effective delivery of the Communications to
such Lender Party for purposes of the Loan Documents. Each Lender Party
agrees to (i) notify the Administrative Agent in writing (including by
e-mail) from time to time of such Lender Party's e-mail address to
which the foregoing notice may be sent by electronic transmission and
(ii) that the foregoing notice may be sent to such e-mail address.
Nothing herein shall prejudice the right of the Administrative Agent or
any Lender Party to give any notice or other communication pursuant to
any Loan Document in any other manner specified in such Loan Document.
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Section 9.03. No Waiver; Remedies. No failure on the part of any Lender
Party or any Agent to exercise, and no delay in exercising, any right hereunder
or under any Note or any other Loan Document shall operate as a waiver thereof;
nor shall any single or partial exercise of any such right preclude any other or
further exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
Section 9.04. Costs and Expenses.
(a) The Borrower agrees to pay on demand (i) all reasonable
costs and expenses of each Agent in connection with the preparation,
execution, delivery, administration, modification and amendment of, or
any consent or waiver under, the Loan Documents (including, without
limitation, (A) all reasonable due diligence, collateral review,
syndication, transportation, computer, duplication, appraisal, audit,
insurance, title insurance, survey, environmental, inspection, due
diligence, consultant, search, filing and recording fees and expenses
and (B) the reasonable fees and expenses of counsel for each Agent with
respect thereto, with respect to advising such Agent as to its rights
and responsibilities, or the perfection, protection or preservation of
rights or interests, under the Loan Documents, with respect to
negotiations with any Loan Party or with other creditors of any Loan
Party or any of its Subsidiaries arising out of any Default or any
events or circumstances that may give rise to a Default and with
respect to presenting claims in or otherwise participating in or
monitoring any bankruptcy, insolvency or other similar proceeding
involving creditors' rights generally and any proceeding ancillary
thereto) and (ii) all reasonable costs and expenses of each Agent and
each Lender Party in connection with the enforcement of the Loan
Documents, whether in any action, suit or litigation, or any
bankruptcy, insolvency or other similar proceeding affecting creditors'
rights generally (including, without limitation, the reasonable fees
and expenses of counsel (A) for the Administrative Agent and (B)
counsel for each Lender Party with respect thereto).
(b) The Borrower agrees to indemnify, defend and save and hold
harmless each Agent, each Lender Party and each of their Affiliates and
their respective officers, directors, trustees, employees, agents and
advisors (each, an "INDEMNIFIED PARTY") from and against, and shall pay
on demand, any and all claims, damages, losses, liabilities and
reasonable expenses (including, without limitation, reasonable fees and
expenses of counsel) that may be incurred by or asserted or awarded
against any Indemnified Party, in each case arising out of or in
connection with or by reason of (including, without limitation, in
connection with any investigation, litigation or proceeding or
preparation of a defense in connection therewith) (i) the Facilities,
the actual or proposed use of the proceeds of the Advances, the
Transaction Documents or any of the transactions contemplated thereby
or (ii) the actual or alleged presence of Hazardous Materials on any
property of any Loan Party or any of its Subsidiaries or any
Environmental Action relating in any way to any Loan Party or any of
its Subsidiaries, except to the extent such claim, damage, loss,
liability or expense is found in a final, non-appealable judgment by a
court of competent jurisdiction to have resulted from such Indemnified
Party's gross negligence or willful misconduct. In the case of an
investigation, litigation or other proceeding to which the indemnity in
this Section 9.04(b) applies, such indemnity shall be effective whether
or not such investigation, litigation or proceeding is brought by any
Loan Party, its directors, shareholders or creditors or any Indemnified
Party or any other Person, whether or not any Indemnified Party is
otherwise a party thereto and whether or not the Transaction is
consummated.
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(c) If any payment of principal of, or Conversion of, any
Eurodollar Rate Advance is made by the Borrower to or for the account
of a Lender Party other than on the last day of the Interest Period for
such Advance, as a result of a payment or Conversion pursuant to
Section 2.06, 2.09(b)(i) or 2.10(d), acceleration of the maturity of
the Advances pursuant to Section 6.01 or for any other reason, or by an
Eligible Assignee to a Lender Party other than on the last day of the
Interest Period for such Advance upon an assignment of rights and
obligations under this Agreement pursuant to Section 9.07 as a result
of a demand by the Borrower pursuant to Section 2.10(e), Section 9.10
or Section 9.15(b), or if the Borrower fails to make any payment or
prepayment of an Advance for which a notice of prepayment has been
given or that is otherwise required to be made, whether pursuant to
Section 2.04, 2.06 or 6.01 or otherwise, the Borrower shall, upon
demand by such Lender Party (with a copy of such demand to the
Administrative Agent), pay to the Administrative Agent for the account
of such Lender Party any amounts required to compensate such Lender
Party for any additional losses, costs or expenses that it may
reasonably incur as a result of such payment or Conversion or such
failure to pay or prepay, as the case may be, including, without
limitation, any loss (including loss of anticipated profits), cost or
expense incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by any Lender Party to fund or
maintain such Advance.
(d) If any Loan Party fails to pay when due any costs,
expenses or other amounts payable by it under any Loan Document,
including, without limitation, fees and expenses of counsel and
indemnities, such amount may be paid on behalf of such Loan Party by
the Administrative Agent or any Lender Party, in its sole discretion.
(e) Without prejudice to the survival of any other agreement
of any Loan Party hereunder or under any other Loan Document, the
agreements and obligations of the Borrower contained in Sections 2.10
and 2.12 and this Section 9.04 shall survive the payment in full of
principal, interest and all other amounts payable hereunder and under
any of the other Loan Documents.
Section 9.05. Right of Set-off. Upon (a) the occurrence and during the
continuance of any Event of Default and (b) the making of the request or the
granting of the consent specified by Section 6.01 to authorize the
Administrative Agent to declare the Advances due and payable pursuant to the
provisions of Section 6.01, each Agent and each Lender Party and each of their
respective Affiliates is hereby authorized at any time and from time to time, to
the fullest extent permitted by law, to set off and otherwise apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held and other indebtedness at any time owing by such Agent, such Lender Party
or such Affiliate to or for the credit or the account of the Borrower against
any and all of the Obligations of the Borrower now or hereafter existing under
the Loan Documents, irrespective of whether such Agent or such Lender Party
shall have made any demand under this Agreement or the other Loan Documents and
although such Obligations may be unmatured. Each Agent and each Lender Party
agrees promptly to notify the Borrower after any such set-off and application;
provided, however, that the failure to give such notice shall not affect the
validity of such set-off and application. The rights of each Agent and each
Lender Party and their respective Affiliates under this Section are in addition
to other rights and remedies (including, without limitation, other rights of
set-off) that such Agent, such Lender Party and their respective Affiliates may
have.
Section 9.06. Binding Effect. This Agreement shall become effective
when it shall have been executed by the Borrower and each Agent and the
Administrative Agent shall have been notified by each Initial Lender Party that
such Initial Lender Party has executed it and thereafter shall be binding upon
and inure to the benefit of the Borrower, each Agent and each Lender Party and
their respective successors and assigns, except that the Borrower shall not have
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the right to assign its rights hereunder or any interest herein without the
prior written consent of each Lender Party.
Section 9.07. Assignments and Participations.
(a) Each Lender may assign all or a portion of its rights and
obligations under this Agreement (including, without limitation, all or
a portion of its Commitment or Commitments, the Advances owing to it
and the Note or Notes held by it); provided, however, that (i) each
such assignment shall be of a uniform, and not a varying, percentage of
all rights and obligations under and in respect of any or all
Facilities, (ii) except in the case of an assignment to a Person that,
immediately prior to such assignment, was a Lender, an Affiliate of any
Lender or an Approved Fund of any Lender or an assignment of all of a
Lender's rights and obligations under this Agreement, the aggregate
amount of the Commitments being assigned to such Eligible Assignee
pursuant to such assignment (determined as of the date of the
Assignment and Acceptance with respect to such assignment) shall in no
event be less than $1,000,000 (or such lesser amount as shall be
approved by the Administrative Agent and, so long as no Default shall
have occurred and be continuing at the time of effectiveness of such
assignment, the Borrower) under each Facility for which a Commitment is
being assigned, (iii) each such assignment shall be to an Eligible
Assignee, (iv) each such assignment made as a result of a demand by the
Borrower pursuant to Section 2.10(e) or Section 9.15(b) shall be
arranged by the Borrower after consultation with the Administrative
Agent and shall be either an assignment of all of the rights and
obligations of the assigning Lender under this Agreement or an
assignment of a portion of such rights and obligations made
concurrently with another such assignment or other such assignments
that together cover all of the rights and obligations of the assigning
Lender under this Agreement, (v) no Lender shall be obligated to make
any such assignment as a result of a demand by the Borrower pursuant to
Section 2.10(e) or Section 9.15(b) unless and until such Lender shall
have received one or more payments from either the Borrower or one or
more Eligible Assignees in an aggregate amount at least equal to the
aggregate outstanding principal amount of the Advances owing to such
Lender, together with accrued interest thereon to the date of payment
of such principal amount and all other amounts payable to such Lender
under this Agreement and (vi) the parties to each such assignment shall
execute and deliver to the Administrative Agent, for its acceptance and
recording in the Register, an Assignment and Acceptance, together with
any Note or Notes (if any) subject to such assignment.
(b) Upon such execution, delivery, acceptance and recording,
from and after the effective date specified in such Assignment and
Acceptance, (i) the assignee thereunder shall be a party hereto and, to
the extent that rights and obligations hereunder have been assigned to
it pursuant to such Assignment and Acceptance, have the rights and
obligations of a Lender hereunder and (ii) the Lender assignor
thereunder shall, to the extent that rights and obligations hereunder
have been assigned by it pursuant to such Assignment and Acceptance,
relinquish its rights (other than its rights under Sections 2.10, 2.12
and 9.04 to the extent any claim thereunder relates to an event arising
prior to such assignment) and be released from its obligations under
this Agreement (and, in the case of an Assignment and Acceptance
covering all of the remaining portion of an assigning Lender's rights
and obligations under this Agreement, such Lender shall cease to be a
party hereto).
(c) By executing and delivering an Assignment and Acceptance,
each Lender Party assignor thereunder and each assignee thereunder
confirm to and agree with each other and the other parties thereto and
hereto as follows: (i) other than as provided in such Assignment and
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Acceptance, such assigning Lender Party makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with any Loan
Document or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of, or the perfection or priority of
any lien or security interest created or purported to be created under
or in connection with, any Loan Document or any other instrument or
document furnished pursuant thereto; (ii) such assigning Lender Party
makes no representation or warranty and assumes no responsibility with
respect to the financial condition of any Loan Party or the performance
or observance by any Loan Party of any of its obligations under any
Loan Document or any other instrument or document furnished pursuant
thereto; (iii) such assignee confirms that it has received a copy of
this Agreement, together with copies of the financial statements
referred to in Section 4.01 and such other documents and information as
it has deemed appropriate to make its own credit analysis and decision
to enter into such Assignment and Acceptance; (iv) such assignee will,
independently and without reliance upon any Agent, such assigning
Lender Party or any other Lender Party 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) such assignee confirms that it is an Eligible Assignee;
(vi) such assignee appoints and authorizes each Agent to take such
action as agent on its behalf and to exercise such powers and
discretion under the Loan Documents as are delegated to such Agent by
the terms hereof and thereof, together with such powers and discretion
as are reasonably incidental thereto; and (vii) such assignee agrees
that it will perform in accordance with their terms all of the
obligations that by the terms of this Agreement are required to be
performed by it as a Lender.
(d) The Administrative Agent, acting for this purpose (but
only for this purpose) as the agent of the Borrower, shall maintain at
its address referred to in Section 9.02 a copy of each Assignment and
Acceptance delivered to and accepted by it and a register for the
recordation of the names and addresses of the Lender Parties and the
Commitment under each Facility of, and principal amount of the Advances
owing under each Facility to, each Lender Party from time to time (the
"REGISTER"). The entries in the Register shall be conclusive and
binding for all purposes, absent manifest error, and the Borrower, the
Agents and the Lender Parties may treat each Person whose name is
recorded in the Register as a Lender Party hereunder for all purposes
of this Agreement. The Register shall be available for inspection by
the Borrower or any Agent or any Lender Party at any reasonable time
and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed
by an assigning Lender Party and an assignee, together with any Note or
Notes subject to such assignment, the Administrative Agent shall, if
such Assignment and Acceptance has been completed and is in
substantially the form of EXHIBIT C hereto, (i) accept such Assignment
and Acceptance, (ii) record the information contained therein in the
Register and (iii) give prompt notice thereof to the Borrower and each
other Agent. In the case of any assignment by a Lender, within five
Business Days after its receipt of such notice, the Borrower, at its
own expense, shall execute and deliver to the Administrative Agent in
exchange for the surrendered Note or Notes (if any) a new Note to the
order of such Eligible Assignee in an amount equal to the Commitment
assumed by it under each Facility pursuant to such Assignment and
Acceptance and, if any assigning Lender that had a Note or Notes prior
to such assignment has retained a Commitment hereunder under such
Facility, a new Note to the order of such assigning Lender in an amount
equal to the Commitment retained by it hereunder. Such new Note or
Notes shall be dated the effective date of such Assignment and
Acceptance and shall otherwise be in substantially the form of EXHIBIT
A-1 or EXHIBIT A-2 hereto, as the case may be.
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(f) Reserved.
(g) Each Lender Party may sell participations to one or more
Persons (other than any Loan Party or any of its Affiliates) in or to
all or a portion of its rights and obligations under this Agreement
(including, without limitation, all or a portion of its Commitments,
the Advances owing to it and any Note or Notes held by it); provided,
however, that (i) such Lender Party's obligations under this Agreement
(including, without limitation, its Commitments) shall remain
unchanged, (ii) such Lender Party shall remain solely responsible to
the other parties hereto for the performance of such obligations, (iii)
such Lender Party shall remain the holder of any such Note for all
purposes of this Agreement, (iv) the Borrower, the Agents and the other
Lender Parties shall continue to deal solely and directly with such
Lender Party in connection with such Lender Party's rights and
obligations under this Agreement, (v) no participant under any such
participation shall have any right to approve any amendment or waiver
of any provision of any Loan Document, or any consent to any departure
by any Loan Party therefrom, except to the extent that such amendment,
waiver or consent would reduce the principal of, or interest (other
than default interest) on, the Advances or any fees or other amounts
payable hereunder, in each case to the extent subject to such
participation, postpone any date fixed for any payment of principal of,
or interest on, the Advances or any fees or other amounts payable
hereunder, in each case to the extent subject to such participation, or
release a substantial portion of the value of the Collateral or the
value of the Guaranties and (vi) the participating banks or other
entities shall be entitled to the benefit of Section 2.12 to the same
extent as if they were a Lender Party but, with respect to any
particular participant, to no greater extent than the Lender Party that
sold the participation to such participant and only if such participant
agrees to comply with Section 2.12(e) and 2.12(g) as though it were a
Lender Party.
(h) Any Lender Party may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this
Section 9.07, disclose to the assignee or participant or proposed
assignee or participant any information relating to the Borrower
furnished to such Lender Party by or on behalf of the Borrower;
provided, however, that, prior to any such disclosure, the assignee or
participant or proposed assignee or participant shall agree to preserve
the confidentiality of any Confidential Information received by it from
such Lender Party.
(i) Notwithstanding any other provision set forth in this
Agreement, any Lender Party may at any time (and without the consent of
the Administrative Agent or the Borrower) create a security interest in
all or any portion of its rights under this Agreement (including,
without limitation, the Advances owing to it and any Note or Notes held
by it) in favor of any Federal Reserve Bank, in accordance with
Regulation A of the Board of Governors of the Federal Reserve System,
or any Federal Home Loan Bank.
(j) Notwithstanding anything to the contrary contained herein,
any Lender that is a fund that invests in bank loans may create a
security interest in all or any portion of the Advances owing to it and
the Note or Notes held by it to the trustee for holders of obligations
owed, or securities issued, by such fund as security for such
obligations or securities, provided, however, that unless and until
such trustee actually becomes a Lender in compliance with the other
provisions of this Section 9.07, (i) no such pledge shall release the
pledging Lender from any of its obligations under the Loan Documents
and (ii) such trustee shall not be entitled to exercise any of the
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rights of a Lender under the Loan Documents even though such trustee
may have acquired ownership rights with respect to the pledged interest
through foreclosure or otherwise.
(k) Notwithstanding anything to the contrary contained herein,
any Lender Party (a "GRANTING LENDER") may grant to a special purpose
funding vehicle identified as such in writing from time to time by the
Granting Lender to the Administrative Agent and the Borrower (an "SPC")
the option to provide all or any part of any Advance that such Granting
Lender would otherwise be obligated to make pursuant to this Agreement;
provided, however, that (i) nothing herein shall constitute a
commitment by any SPC to fund any Advance, and (ii) if an SPC elects
not to exercise such option or otherwise fails to make all or any part
of such Advance, the Granting Lender shall be obligated to make such
Advance pursuant to the terms hereof. The making of an Advance by an
SPC hereunder shall utilize the Commitment of the Granting Lender to
the same extent, and as if, such Advance were made by such Granting
Lender. Each party hereto hereby agrees that (i) no SPC shall be liable
for any indemnity or similar payment obligation under this Agreement
for which a Lender Party would be liable, (ii) no SPC shall be entitled
to the benefits of Sections 2.10 and 2.12 (or any other increased costs
protection provision) and (iii) the Granting Lender shall for all
purposes, including, without limitation, the approval of any amendment
or waiver of any provision of any Loan Document, remain the Lender
Party of record hereunder. In furtherance of the foregoing, each party
hereto hereby agrees (which agreement shall survive the termination of
this Agreement) that, prior to the date that is one year and one day
after the payment in full of all outstanding commercial paper or other
senior Debt 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 proceeding
under the laws of the United States or any State thereof.
Notwithstanding anything to the contrary contained in this Agreement,
any SPC may (i) with notice to, but without prior consent of, the
Borrower and the Administrative Agent, assign all or any portion of its
interest in any Advance to the Granting Lender and (ii) disclose on a
confidential basis any non-public information relating to its funding
of Advances to any rating agency, commercial paper dealer or provider
of any surety or guarantee or credit or liquidity enhancement to such
SPC. This subsection (k) may not be amended without the prior written
consent of each Granting Lender, all or any part of whose Advances are
being funded by the SPC at the time of such amendment.
(l) In connection with any of the transactions described above
in this Section 9.07, the Loan Parties agree to use all commercially
reasonable efforts to assist each applicable Lender in its efforts to
syndicate and assign interests in the Facilities and Advances and/or to
sell participation interests in such Lender's interest in the
Facilities and Advances. Such assistance by the Loan Parties and its
affiliates shall include, without limitation, (i) using commercially
reasonable efforts to ensure that the syndication efforts benefit
materially from the Loan Parties' existing lending relationships, (ii)
direct contact between senior management and advisors of the Loan
Parties and the proposed syndicate lenders, (iii) assistance in the
preparation of a Confidential Information Memorandum and other
marketing materials to be used in connection with any syndication and
(iv) the hosting, with each applicable Lender, of one or more meetings,
consulting with each applicable Lender with respect to the
presentations to be made at such meetings, and making available
appropriate officers and representatives of the Loan Parties to
rehearse such presentations prior to such meetings, as requested by
each applicable Lender.
Section 9.08. Execution in Counterparts. This Agreement may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
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and all of which taken together shall constitute one and the same agreement.
Delivery by telecopier or email transmission of an executed counterpart of a
signature page to this Agreement shall be effective as delivery of an original
executed counterpart of this Agreement.
Section 9.09. Reserved.
Section 9.10. Non-Consenting Lenders. If at any time, any Lender
becomes a Non-Consenting Lender, then the Borrower may, at its sole cost and
expense, on five Business Days' prior written notice to the Administrative Agent
and such Lender, replace such Lender by causing such Lender to (and such Lender
shall be obligated to) assign pursuant to Section 9.07 all of its rights and
obligations under this Agreement to one or more Eligible Assignees; provided
that neither the Administrative Agent nor any Lender shall have any obligation
to the Borrower to find a replacement Lender or other such Person; provided,
further, that such Non-Consenting Lender shall be entitled to receive the full
outstanding principal amount of Advances so assigned, together with accrued
interest and fees payable in respect of such Advances as of the date of such
assignment.
Section 9.11. Confidentiality. Neither any Agent nor any Lender Party
shall disclose any Confidential Information to any Person without the consent of
the Borrower, other than (a) to such Agent's or such Lender Party's Affiliates
and their officers, directors, employees, agents and advisors and to actual or
prospective Eligible Assignees and participants, and then only on a confidential
basis, (b) as required by any law, rule or regulation or judicial process, (c)
as requested or required by any state, Federal or foreign authority or examiner
(including the Federal Home Loan Bank, the Federal Deposit Insurance
Corporation, the National Association of Insurance Commissioners or any similar
organization or quasi-regulatory authority) regulating such Lender Party, (d) to
any rating agency when required by it; provided that, prior to any such
disclosure, such rating agency shall undertake to preserve the confidentiality
of any Confidential Information relating to the Loan Parties received by it from
such Lender Party, (e) in connection with any litigation or proceeding to which
such Agent or such Lender Party or any of its Affiliates may be a party or (f)
in connection with the exercise of any right or remedy under this Agreement or
any other Loan Document.
Section 9.12. Release of Collateral. Upon the sale, lease, transfer or
other disposition of any item of Collateral of any Loan Party (including,
without limitation, as a result of the sale, in accordance with the terms of the
Loan Documents, of the Loan Party that owns such Collateral) in accordance with
the terms of the Loan Documents or sale of all of the assets of, or all of the
Equity Interests in, a Subsidiary in a transaction permitted by Section 5.02(e),
the Collateral Agent will, at the Borrower's expense, execute and deliver to
such Loan Party such documents as such Loan Party may reasonably request to
evidence the release of such item or such Subsidiary of Collateral from the
assignment and security interest granted under the Collateral Documents in
accordance with the terms of the Loan Documents.
Section 9.13. Patriot Act Notice. Each Lender Party and each Agent (for
itself and not on behalf of any Lender Party) hereby notifies the Loan Parties
that pursuant to the requirements of the Patriot Act, it is required to obtain,
verify and record information that identifies each Loan Party, which information
includes the name and address of such Loan Party and other information that will
allow such Lender Party or such Agent, as applicable, to identify such Loan
Party in accordance with the Patriot Act. The Borrower shall, and shall cause
each of its Subsidiaries to, provide to the extent commercially reasonable, such
information and take such actions as are reasonably requested by any Agents or
any Lender Party in order to assist the Agents and the Lender Parties in
maintaining compliance with the Patriot Act.
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Section 9.14. Jurisdiction, Etc.
(a) Each of the parties hereto hereby irrevocably and
unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of any Texas State court or Federal court of
the United States of America sitting in Dallas, Texas, and any
appellate court from any thereof, in any action or proceeding arising
out of or relating to this Agreement or any of the other Loan Documents
to which it is a party, or for recognition or enforcement of any
judgment, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in any such Texas State court
or, to the fullest extent permitted by law, in such Federal court. Each
of the parties hereto agrees that a final judgment in any such action
or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided
by law. Nothing in this Agreement shall affect any right that any party
may otherwise have to bring any action or proceeding relating to this
Agreement or any of the other Loan Documents in the courts of any
jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this
Agreement or any of the other Loan Documents to which it is a party in
any Texas State or Federal court of the United States of America
sitting in Dallas, Texas. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in
any such court.
(c) Notwithstanding the foregoing, any action to enforce any
Mortgage shall be brought in the State of New Jersey.
Section 9.15. Application of Liquor Laws and Gaming Laws.
(a) This Agreement and the other Loan Documents are subject to
laws involving the sale or distribution of liquor (the "LIQUOR LAWS").
Without limiting the foregoing, each of the Administrative Agent and
the Lenders acknowledges that (i) it is subject to being called forward
by the Governmental Authorities enforcing the Liquor Laws, in their
discretion, for licensing or a finding of suitability or to file or
provide other information, and (ii) all rights, remedies and powers in
or under this Agreement and the other Loan Documents, including with
respect to the Collateral (including the Pledged Equity) and the
ownership and operation of Gaming Facilities, may be exercised only to
the extent that the exercise thereof does not violate any applicable
provisions of the Liquor Laws and only to the extent that required
approvals (including prior approvals) are obtained from the requisite
Governmental Authorities.
(b) This Agreement and the other Loan Documents are subject to
Gaming Laws. Without limiting the foregoing, each of the Administrative
Agent and the Lenders acknowledges that if the Borrower receives a
notice from any applicable Gaming Authority that a Lender has been
found disqualified to make Advances to the Borrower under applicable
Gaming Laws (a "DISQUALIFICATION FINDING"), then the Borrower shall,
within thirty (30) days after the date of the Disqualification Finding,
either (i) replace such Lender with a Person that is both an Eligible
Assignee and an Eligible Transferee or (ii) prepay the Advances (and
other Obligations as set forth in the proviso below) held by or owed to
or for the benefit of such disqualified Lender, even where a Default
has occurred and is continuing; provided, however, that, concurrently
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with such replacement or prepayment (as applicable), all Advances,
accrued and unpaid interest, fees and other Obligations then payable or
owed to or for the benefit of such disqualified Lender shall be paid in
full. Any such payment under this Section 9.15(b) shall be deemed to be
a prepayment as set forth in Section 2.06(a). Notice to such
disqualified Lender and the Administrative Agent shall be given by the
Borrower within three (3) days of receipt of notice of such
Disqualification Finding from the applicable Gaming Authority, and
shall be accompanied by evidence demonstrating that such transfer or
prepayment is required pursuant to Gaming Laws. Upon receipt of a
notice in accordance with the foregoing, the disqualified Lender shall
cooperate with the Borrower in effectuating the required transfer or
prepayment within the time period set forth in such notice. Commencing
on the date the Gaming Authority serves notice of its Disqualification
Finding upon the Borrower, and to the extent (but only to the extent)
required by applicable Gaming Laws, (A) such Lender shall no longer
receive any interest payment on the Advances, (B) such Lender shall no
longer exercise, directly or indirectly, any right conferred by the
Advances, and (C) such Lender shall not receive any remuneration in any
form from the Borrower for services or otherwise in respect of the
Advances.
(c) Each of the Administrative Agent and the Lenders agrees to
cooperate with all Gaming Authorities (or be subject to the provisions
of Section 2.15) in connection with the provision of such documents or
other information as may be requested by such Gaming Authorities
relating to the Loan Parties or to the Loan Documents.
(d) If during the existence of an Event of Default hereunder
or under any of the other Loan Documents it shall become necessary, or
in the opinion of the Required Lenders advisable, for an agent,
supervisor, receiver or other representative of the Administrative
Agent and the Lenders to become licensed under any Gaming Law as a
condition to receiving the benefit of any Collateral encumbered by the
Collateral Documents or other Loan Documents or to otherwise enforce
the rights of the Administrative Agent and the Lenders under the Loan
Documents, the Borrower hereby agrees to grant such license or licenses
and to execute such further documents as may be required in connection
with the evidencing of such consent.
Section 9.16. Governing Law. This Agreement and the Notes shall be
governed by, and construed in accordance with, the laws of the State of New
Jersey.
Section 9.17. WAIVER OF JURY TRIAL. EACH OF THE BORROWER, THE AGENTS
AND THE LENDER PARTIES IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR
OTHERWISE) ARISING OUT OF OR RELATING TO ANY OF THE LOAN DOCUMENTS, THE ADVANCES
OR THE ACTIONS OF ANY AGENT OR ANY LENDER PARTY IN THE NEGOTIATION,
ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.
Section 9.18. Limitation of Liability. Each of the Borrower and the
other Loan Parties agrees not to assert any claim against any Agent, any Lender
Party or any of their Affiliates, or any of their respective officers,
directors, employees, agents and advisors, on any theory of liability, for
special, indirect, consequential or punitive damages arising out of or otherwise
relating to the Facilities, the actual or proposed use of the proceeds of the
Advances, the Transaction Documents or any of the transactions contemplated by
the Transaction Documents.
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Section 9.19. Collateral Documents and Intercreditor Agreement. Each
Lender, for the benefit of the Agents, consents and agrees to the terms of the
Collateral Documents and the Intercreditor Agreement as the same may be in
effect or may be amended from time to time in accordance with its terms and the
terms of this Agreement, and authorizes and directs the Collateral Agent to
enter into the Collateral Documents and the Intercreditor Agreement and to
perform its obligations and exercise its rights and remedies thereunder in
accordance therewith, subject in each case to any discretion that may be
provided to the Collateral Agent by any of the terms of any such Collateral
Document or Intercreditor Agreement or this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
XXXX BANK, S.S.B.,
as Administrative Agent, Collateral Agent and an
Initial Lender
By: /s/ Xxxxxx Xxxx
-------------------------------------------------
Name: Xxxxxx Xxxx
Title: President
XXXX BANK NEVADA,
as an Initial Lender
By: /s/ Xxxxxx Xxxx
-------------------------------------------------
Name: Xxxxxx Xxxx
Title: President
XXXX BANK, S.S.B.,
as an Initial Lender
By: /s/ Xxxxxx Xxxx
-------------------------------------------------
Name: Xxxxxx Xxxx
Title: President
Page 101
XXXXX ENTERTAINMENT RESORTS HOLDINGS, L.P.,
as Borrower
By: Xxxxx Entertainment Resorts, Inc., its
general partner
By: /s/ Xxxx X. Xxxxx
-------------------------------------------------
Name: Xxxx X. Xxxxx
Title: Executive Vice President and
Corporate Treasurer
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XXXXX ENTERTAINMENT RESORTS, INC.,
as Guarantor
By: /s/ Xxxx X. Xxxxx
-------------------------------------------------
Name: Xxxx X. Xxxxx
Title: Executive Vice President and
Corporate Treasurer
TCI 2 HOLDINGS, LLC,
as a Subsidiary Guarantor
By: Xxxxx Entertainment Resorts, Inc.,
its sole member
By: /s/ Xxxx X. Xxxxx
-------------------------------------------------
Name: Xxxx X. Xxxxx
Title: Executive Vice President and
Corporate Treasurer
XXXXX XXXXXX ASSOCIATES, LLC;
XXXXX PLAZA ASSOCIATES, LLC;
XXXXX XXX MAHAL ASSOCIATES, LLC;
XXXXX ENTERTAINMENT RESORTS DEVELOPMENT COMPANY, LLC;
each as a Subsidiary Guarantor
By: Xxxxx Entertainment Resorts Holdings, L.P.,
their sole member
By: Xxxxx Entertainment Resorts, Inc.,
its general partner
By: /s/ Xxxx X. Xxxxx
-------------------------------------------------
Name: Xxxx X. Xxxxx
Title: Executive Vice President and
Corporate Treasurer
Page 103
XXXXX ENTERTAINMENT RESORTS FUNDING, INC.,
as a Subsidiary Guarantor
By: /s/ Xxxx X. Xxxxx
-------------------------------------------------
Name: Xxxx X. Xxxxx
Title: Executive Vice President and
Corporate Treasurer
Page 104
