EXHIBIT 10.1
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LOAN AGREEMENT
Dated as of March 23, 1998
among
HARD ROCK HOTEL, INC.
as Borrower,
The Lenders and Co-Agent referred to herein
and
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
as Administrative Agent
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TABLE OF CONTENTS
Page
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Article 1 DEFINITIONS AND ACCOUNTING TERMS . . . . . . . . . . . . . . . .1
1.1 Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . .1
1.2 Use of Defined Terms. . . . . . . . . . . . . . . . . . . . . 27
1.3 Accounting Terms. . . . . . . . . . . . . . . . . . . . . . . 27
1.4 Rounding. . . . . . . . . . . . . . . . . . . . . . . . . . . 27
1.5 Exhibits and Schedules. . . . . . . . . . . . . . . . . . . . 27
1.6 References to "Borrower and its Subsidiaries" . . . . . . . . 27
1.7 References to Times . . . . . . . . . . . . . . . . . . . . . 28
1.8 Miscellaneous Terms . . . . . . . . . . . . . . . . . . . . . 28
Article 2 LOANS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
2.1 Loans-General . . . . . . . . . . . . . . . . . . . . . . . . 29
2.2 Base Rate Loans . . . . . . . . . . . . . . . . . . . . . . . 30
2.3 LIBOR Loans . . . . . . . . . . . . . . . . . . . . . . . . . 30
2.4 Letters of Credit . . . . . . . . . . . . . . . . . . . . . . 31
2.5 Voluntary Reduction of Commitment . . . . . . . . . . . . . . 34
2.6 Scheduled Mandatory Reductions of Commitment. . . . . . . . . 35
2.7 Other Mandatory Reductions of Commitment. . . . . . . . . . . 35
2.8 Administrative Agent's Right to Assume Funds Available for
Advances. . . . . . . . . . . . . . . . . . . . . . . . . . . 35
2.9 Swing Line. . . . . . . . . . . . . . . . . . . . . . . . . . 36
Article 3 PAYMENTS AND FEES. . . . . . . . . . . . . . . . . . . . . . . 38
3.1 Principal and Interest. . . . . . . . . . . . . . . . . . . . 38
3.2 Upfront Fees. . . . . . . . . . . . . . . . . . . . . . . . . 39
3.3 Commitment Fees . . . . . . . . . . . . . . . . . . . . . . . 39
3.4 Letter of Credit Fees . . . . . . . . . . . . . . . . . . . . 39
3.5 Agency Management Fees. . . . . . . . . . . . . . . . . . . . 40
3.6 Construction Services Fees. . . . . . . . . . . . . . . . . . 40
3.7 Increased Commitment Costs. . . . . . . . . . . . . . . . . . 40
3.8 LIBOR Costs and Related Matters . . . . . . . . . . . . . . . 41
3.9 Late Payments . . . . . . . . . . . . . . . . . . . . . . . . 44
3.10 Computation of Interest and Fees. . . . . . . . . . . . . . . 44
3.11 Non-Banking Days. . . . . . . . . . . . . . . . . . . . . . . 45
3.12 Manner and Treatment of Payments. . . . . . . . . . . . . . . 45
3.13 Funding Sources . . . . . . . . . . . . . . . . . . . . . . . 46
3.14 Failure to Charge Not Subsequent Waiver . . . . . . . . . . . 46
3.15 Administrative Agent's Right to Assume Payments
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Will be Made by Borrower. . . . . . . . . . . . . . . . . . . 46
3.16 Fee Determination Detail. . . . . . . . . . . . . . . . . . . 47
3.17 Survival. . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Article 4 REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . 48
4.1 Existence and Qualification; Power; Compliance With Laws . . 48
4.2 Authority; Compliance With Other Agreements and
Instruments and Government Regulations. . . . . . . . . . . . 48
4.3 No Governmental Approvals Required. . . . . . . . . . . . . . 49
4.4 Subsidiaries. . . . . . . . . . . . . . . . . . . . . . . . . 49
4.5 Financial Statements. . . . . . . . . . . . . . . . . . . . . 49
4.6 No Material Adverse Changes . . . . . . . . . . . . . . . . . 49
4.7 Title to Property . . . . . . . . . . . . . . . . . . . . . . 49
4.8 Intangible Assets . . . . . . . . . . . . . . . . . . . . . . 49
4.9 Public Utility Holding Company Act. . . . . . . . . . . . . . 50
4.10 Litigation. . . . . . . . . . . . . . . . . . . . . . . . . . 50
4.11 Binding Obligations . . . . . . . . . . . . . . . . . . . . . 50
4.12 No Default. . . . . . . . . . . . . . . . . . . . . . . . . . 50
4.13 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
4.14 Regulations G, T, U and X; Investment Company Act . . . . . . 51
4.15 Disclosure. . . . . . . . . . . . . . . . . . . . . . . . . . 51
4.16 Tax Liability . . . . . . . . . . . . . . . . . . . . . . . . 51
4.17 Projections . . . . . . . . . . . . . . . . . . . . . . . . . 51
4.18 Hazardous Materials . . . . . . . . . . . . . . . . . . . . . 51
4.19 Gaming Laws . . . . . . . . . . . . . . . . . . . . . . . . . 52
4.20 Security Interests. . . . . . . . . . . . . . . . . . . . . . 52
Article 5 AFFIRMATIVE COVENANTS (OTHER THAN INFORMATION AND REPORTING
REQUIREMENTS).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
5.1 Payment of Taxes and Other Potential Liens. . . . . . . . . . 53
5.2 Preservation of Existence . . . . . . . . . . . . . . . . . . 53
5.3 Maintenance of Properties . . . . . . . . . . . . . . . . . . 53
5.4 Maintenance of Insurance. . . . . . . . . . . . . . . . . . . 53
5.5 Compliance With Laws. . . . . . . . . . . . . . . . . . . . . 54
5.6 Inspection Rights - Completion of Construction. . . . . . . . 54
5.7 Keeping of Records and Books of Account . . . . . . . . . . . 54
5.8 Compliance With Agreements. . . . . . . . . . . . . . . . . . 54
5.9 Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . 54
5.10 Hazardous Materials Laws. . . . . . . . . . . . . . . . . . . 55
Article 6 NEGATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . . 56
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6.1 Prepayment of Indebtedness. . . . . . . . . . . . . . . . . . 56
6.2 Payment of Subordinated Obligations . . . . . . . . . . . . . 56
6.3 Disposition of Property . . . . . . . . . . . . . . . . . . . 56
6.4 Hostile Tender Offers . . . . . . . . . . . . . . . . . . . . 57
6.5 Mergers . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
6.6 Distributions . . . . . . . . . . . . . . . . . . . . . . . . 57
6.7 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
6.8 Change in Nature of Business. . . . . . . . . . . . . . . . . 58
6.9 Liens, Negative Pledges and Rights of Others. . . . . . . . . 58
6.10 Indebtedness and Contingent Obligations . . . . . . . . . . . 58
6.11 Transactions with Affiliates. . . . . . . . . . . . . . . . . 60
6.12 Senior Leverage Ratio . . . . . . . . . . . . . . . . . . . . 60
6.13 Fixed Charge Coverage Ratio . . . . . . . . . . . . . . . . . 60
6.14 Capital Expenditures. . . . . . . . . . . . . . . . . . . . . 61
6.15 Acquisitions and Investments. . . . . . . . . . . . . . . . . 61
6.17 Construction of the Proposed Expansion. . . . . . . . . . . . 62
6.18 Changes to the Subordinated Obligations or Codes,
Covenants and Restrictions. . . . . . . . . . . . . . . . . . 64
Article 7 INFORMATION AND REPORTING REQUIREMENTS . . . . . . . . . . . . 65
7.1 Financial and Business Information. . . . . . . . . . . . . . 65
7.2 Compliance Certificates . . . . . . . . . . . . . . . . . . . 67
Article 8 CONDITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . 69
8.1 Initial Advances on the Closing Date. . . . . . . . . . . . . 69
8.2 Any Advance . . . . . . . . . . . . . . . . . . . . . . . . . 72
Article 9 EVENTS OF DEFAULT AND REMEDIES UPON EVENT OF DEFAULT . . . . . 74
9.1 Events of Default . . . . . . . . . . . . . . . . . . . . . . 74
9.2 Remedies Upon Event of Default. . . . . . . . . . . . . . . . 76
Article 10 THE ADMINISTRATIVE AGENT . . . . . . . . . . . . . . . . . . . 80
10.1 Appointment and Authorization . . . . . . . . . . . . . . . . 80
10.2 Administrative Agent and Affiliates . . . . . . . . . . . . . 80
10.3 Proportionate Interest in any Collateral. . . . . . . . . . . 80
10.4 Lenders' Credit Decisions . . . . . . . . . . . . . . . . . . 81
10.5 Action by Administrative Agent. . . . . . . . . . . . . . . . 81
10.6 Liability of Administrative Agent . . . . . . . . . . . . . . 82
10.7 Indemnification . . . . . . . . . . . . . . . . . . . . . . . 83
10.8 Successor Administrative Agent. . . . . . . . . . . . . . . . 83
10.9 Foreclosure on Collateral . . . . . . . . . . . . . . . . . . 84
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10.10 No Obligations of Borrower. . . . . . . . . . . . . . . . . . 84
Article 11 MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . . . . 85
11.1 Cumulative Remedies; No Waiver. . . . . . . . . . . . . . . . 85
11.2 Amendments; Consents. . . . . . . . . . . . . . . . . . . . . 85
11.3 Costs, Expenses and Taxes . . . . . . . . . . . . . . . . . . 86
11.4 Nature of Lenders' Obligations. . . . . . . . . . . . . . . . 87
11.5 Survival of Representations and Warranties. . . . . . . . . . 87
11.6 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
11.7 Execution of Loan Documents . . . . . . . . . . . . . . . . . 88
11.8 Binding Effect; Assignment. . . . . . . . . . . . . . . . . . 88
11.9 Right of Setoff . . . . . . . . . . . . . . . . . . . . . . . 90
11.10 Sharing of Setoffs. . . . . . . . . . . . . . . . . . . . . . 90
11.11 Indemnity by Borrower . . . . . . . . . . . . . . . . . . . . 91
11.12 Nonliability of the Lenders . . . . . . . . . . . . . . . . . 92
11.13 No Third Parties Benefited. . . . . . . . . . . . . . . . . . 93
11.14 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . 93
11.15 Further Assurances. . . . . . . . . . . . . . . . . . . . . . 93
11.16 Integration . . . . . . . . . . . . . . . . . . . . . . . . . 94
11.17 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . 94
11.18 Severability of Provisions. . . . . . . . . . . . . . . . . . 94
11.19 Headings. . . . . . . . . . . . . . . . . . . . . . . . . . . 94
11.20 Time of the Essence . . . . . . . . . . . . . . . . . . . . . 94
11.21 Foreign Lenders and Participants. . . . . . . . . . . . . . . 94
11.22 Hazardous Material Indemnity. . . . . . . . . . . . . . . . . 95
11.23 Gaming Boards . . . . . . . . . . . . . . . . . . . . . . . . 96
11.24 Waiver of Right to Trial by Jury. . . . . . . . . . . . . . . 96
11.25 Purported Oral Amendments . . . . . . . . . . . . . . . . . . 96
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Exhibits
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A - Assignment Agreement
B - Compliance Certificate
C - Liquidity Report
D - Note
E - Request for Loan
F - Request for Letter of Credit
Schedules
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1.1A Description of Proposed Expansion
1.1B Timetable
1.1C Pro Rata Shares of the Banks
4.3 Governmental Approvals
4.8 Intellectual Property
4.18 Environmental Matters
6.8 Permitted Title Exceptions
6.9 Existing Liens
6.10 Existing Indebtedness
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LOAN AGREEMENT
Dated as of March 23, 1998
This Loan Agreement ("Agreement") is entered into by and among
Hard Rock Hotel, Inc., a Nevada corporation ("Borrower"), each lender whose
name is set forth on the signature pages of this Agreement and each lender
which may hereafter become a party to this Agreement pursuant to Section 11.8
(collectively, the "Lenders" and individually, a "Lender") and Bank of
America National Trust and Savings Association, as Administrative Agent.
In consideration of the mutual covenants and agreements herein
contained, the parties hereto covenant and agree as follows:
Article 1
DEFINITIONS AND ACCOUNTING TERMS
A. DEFINED TERMS. As used in this Agreement, the following terms shall
have the meanings set forth below:
"ACQUISITION" means any transaction, or any series of
related transactions, by which Borrower directly or indirectly
(i) acquires any going business or all or substantially all of
the assets of any firm, partnership, joint venture, limited
liability company, corporation or division thereof, whether
through purchase of assets, merger or otherwise, or
(ii) acquires (in one transaction or as the most recent
transaction in a series of transactions) control of at least a
majority in ordinary voting power of the securities of a
corporation which have ordinary voting power for the election
of directors, or (iii) acquires control of a 50% or more
ownership interest in any partnership, limited liability
company or joint venture.
"ADMINISTRATIVE AGENT" means Bank of America, when acting
in its capacity as the Administrative Agent under any of the
Loan Documents, or any successor Administrative Agent.
"ADMINISTRATIVE AGENT'S OFFICE" means the Administrative
Agent's address as set forth on the signature pages of this
Agreement, or such other address as the Administrative Agent
hereafter may designate by written notice to Borrower and the
Lenders.
"ADVANCE" means any advance made or to be made by any
Lender to Borrower as provided in Article 2, and includes each
Base Rate Advance and each LIBOR Advance.
"AFFILIATE" means, as to any Person, any other Person
which directly or indirectly controls, or is under common
control with, or
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is controlled by, such Person. As used in this definition,
"control" (and the correlative terms, "controlled by" and
"under common control with") shall mean possession, directly
or indirectly, of power to direct or cause the direction of
management or policies (whether through ownership of
securities or partnership or other ownership interests, by
contract or otherwise); PROVIDED that, in any event, any
Person that owns, directly or indirectly, 10% or more of the
securities having ordinary voting power for the election of
directors or other governing body of a corporation that has
more than 100 record holders of such securities, or 10% or
more of the partnership or other ownership interests of any
other Person that has more than 100 record holders of such
interests, will be deemed to control such corporation,
partnership or other Person.
"AGGREGATE EFFECTIVE AMOUNT" means, as of any date of
determination and with respect to all Letters of Credit, the
SUM of (a) the aggregate effective face amounts of all
outstanding Letters of Credit PLUS (b) the aggregate amounts
paid by the Issuing Lender under Letters of Credit not then
reimbursed to the Issuing Lender by Borrower pursuant to
Section 2.4(d) and not then the subject of Advances made
pursuant to Section 2.4(e).
"AGREEMENT" means this Loan Agreement, either as
originally executed or as it may from time to time be
supplemented, modified, amended, restated or extended.
"ANNUALIZED EBITDA" means as of the last day of each
Fiscal Quarter which ends:
(a) prior to the date which is one full fiscal
quarter following the Opening, EBITDA for the twelve month
period ending as of the last day of that Fiscal Quarter;
(b) at any later date prior to the date which is
four full Fiscal Quarters following the Opening, EBITDA
for each full Fiscal Quarter which has occurred since the
Opening TIMES (i) four, if there is one such Fiscal
Quarter, (ii) two, if there are two such Fiscal Quarters,
and (ii) one and one third, if there are three such Fiscal
Quarters; and
(c) at any later date, EBITDA for the four most
recently ended Fiscal Quarters.
"ARRANGER" means BancAmerica Xxxxxxxxx Xxxxxxxx. The
Arranger shall have no obligations or liabilities under this
Agreement or the Loan Documents, but shall be entitled to the
benefits of Sections 11.3 and 11.11.
"ASSIGNMENT AGREEMENT" means an Assignment Agreement
substantially in the form of Exhibit A.
"BANK OF AMERICA" means Bank of America National Trust and
Savings Association, its successors and assigns.
"BANKING DAY" means any Monday, Tuesday, Wednesday,
Thursday or
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Friday, OTHER THAN a day on which banks are authorized or
required to be closed in California or Nevada.
"BASE RATE" means, as of any date of determination, the
rate per annum (rounded upwards, if necessary, to the next
1/100 of 1%) equal to the HIGHER OF (a) the Reference Rate in
effect on such date and (b) the Federal Funds Rate in effect on
such date plus 1/2 of 1%.
"BASE RATE ADVANCE" means an Advance made hereunder and
specified to be a Base Rate Advance in accordance with
Article 2.
"BASE RATE LOAN" means a Loan made hereunder and specified
to be a Base Rate Loan in accordance with Article 2.
"BASE RATE MARGIN" means, for each Pricing Period, the
percentage set forth opposite the Total Leverage Ratio as of
the last day of the Fiscal Quarter ending two months prior to
the first day of that Pricing Period:
TOTAL LEVERAGE RATIO BASE RATE MARGIN
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Greater than or equal to 5.75:1.00 2.25%
Less than 5.75:1.00 but greater than
or equal to 5.25:1.00 2.00%
Less than 5.25:1.00 but greater than
or equal to 4.75:1.00 1.75%
Less than 4.75:1.00 but greater than
or equal to 4.25:1.00 1.50%
Less than 4.25:1.00 but greater than
or equal to 3.75:1.00 1.25%
Less than 3.75:1.00 but greater than
or equal to 3.25:1.00 1.00%
Less than 3.25:1.00 but greater than
or equal to 2.75:1.00 0.50%
Less than 2.75:1.00 0.25%
"BORROWER" means Hard Rock Hotel, Inc., a Nevada
corporation, its successors and permitted assigns.
"BUDGET" means the budget for design, development and
construction of the Proposed Expansion submitted to the
Administrative Agent and the Lenders on the Closing Date
accordance with Section 8.1, as supplemented or amended from
time to time in accordance with Section 6.17.
"CAPITAL EXPENDITURE" means any expenditure that is
considered a capital expenditure under Generally Accepted
Accounting Principles, INCLUDING any amount which is required
to be treated as an asset
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subject to a Capital Lease Obligation.
"CAPITAL LEASE OBLIGATIONS" means all monetary obligations
of a Person under any leasing or similar arrangement which, in
accordance with Generally Accepted Accounting Principles, is
classified as a capital lease.
"CASH" means, when used in connection with any Person, all
monetary and non-monetary items owned by that Person that are
treated as cash in accordance with Generally Accepted
Accounting Principles, consistently applied.
"CASH EQUIVALENTS" means, when used in connection with any
Person, that Person's Investments in:
a. Government Securities due within one year after the
date of the making of the Investment;
b. readily marketable direct obligations of any State
of the United States of America or any political subdivision of any
such State or any public agency or instrumentality thereof given on
the date of such Investment a credit rating of at least Aa by Xxxxx'x
Investors Service, Inc. or AA by Standard & Poor's Ratings Group, in
each case due within one year from the making of the Investment;
c. certificates of deposit issued by, bank deposits
in, eurodollar deposits through, bankers' acceptances of, and
repurchase agreements covering Government Securities executed by, any
Lender or any bank incorporated under the Laws of the United States of
America, any State thereof or the District of Columbia and having on
the date of such Investment combined capital, surplus and undivided
profits of at least $250,000,000, in each case due within one year
after the date of the making of the Investment;
d. certificates of deposit issued by, bank deposits
in, eurodollar deposits through, bankers' acceptances of, and
repurchase agreements covering Government Securities executed by, any
branch or office located in the United States of America of a bank
incorporated under the Laws of any jurisdiction outside the United
States of America having on the date of such Investment combined
capital, surplus and undivided profits of at least $500,000,000, in
each case due within one year after the date of the making of the
Investment; and
e. readily marketable commercial paper of corporations
doing business in and incorporated under the Laws of the United States
of America or any State thereof or of any corporation that is the
holding company for a bank described in clause (c) or (d) above given
on the date of such Investment a credit rating of at least P-1 by
Xxxxx'x Investors Service, Inc. or A-1 by Standard & Poor's Ratings
Group, in each case due within 90 days after the date of the making of
the Investment.
"CERTIFICATE OF A RESPONSIBLE OFFICIAL" means a
certificate signed by a Responsible Official of the Person
providing the
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certificate.
"CHANGE OF CONTROL" means (a) any transaction or series of
related transactions in which any Unrelated Person or two or
more Unrelated Persons acting in concert acquire beneficial
ownership (within the meaning of Rule 13d-3(a)(1) under the
Securities Exchange Act of 1934, as amended), directly or
indirectly, of 35% or more of the outstanding common stock of
Borrower or (b) following the public offering of any equity
securities of Borrower, during any period of 24 consecutive
months, individuals who at the beginning of such period were
members of the board of directors of Borrower (together with
any new or replacement directors whose election by the board of
directors, or whose nomination for election, was approved by a
vote of at least a majority of the directors then still in
office who were either directors at the beginning of such
period or whose election or nomination for reelection was
previously so approved) cease for any reason to constitute a
majority of the directors then in office, or (c) Xxxxx X.
Xxxxxx, his spouse or immediate family members (or any trusts
established for their benefit) or any trustee, executor or
receiver appointed to manage or administer the assets of any
such Person who is an individual following the death of such
individual, fail to directly or indirectly own, and hold the
power to vote, at least 51% of Borrower's capital stock
entitled to ordinary voting power.
"CLOSING DATE" means the time and Banking Day on which the
conditions set forth in Section 8.1 are satisfied or waived.
The Administrative Agent shall notify Borrower and the Lenders
of the date that is the Closing Date.
"CO-AGENT" means Bear, Xxxxxxx & Co. Inc. The Co-Agent
shall have no obligations or liabilities under this Agreement
or the Loan Documents, but shall be entitled to the benefits of
Sections 11.3 and 11.11.
"CODE" means the Internal Revenue Code of 1986, as amended
or replaced and as in effect from time to time.
"COLLATERAL" means all of the collateral covered by the
Collateral Documents.
"COLLATERAL DOCUMENTS" means, collectively, the Security
Agreement, the Deed of Trust, the Completion Guaranty, the Make
Well Agreement, the Trademark Assignment and any other security
agreement, pledge agreement, deed of trust, mortgage or other
collateral security agreement hereafter executed and delivered
by Xxxxx Xxxxxx, Borrower or its Subsidiaries to secure the
Obligations.
"COMMITMENT" means $67,000,000 or such lesser amount to
which the Commitment may be reduced from time to time pursuant
to the terms of Sections 2.5, 2.6 and 2.7. As of the Closing
Date, the Commitments of the Banks are set forth on Schedule
1.1C.
"COMMITMENT FEE RATE" means, for each Pricing Period, the
percentage set forth opposite the Total Leverage Ratio as of
the last day of the Fiscal Quarter ending two months prior to
the first day of
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that Pricing Period:
Total Leverage Ratio Commitment Fee Rate
-------------------- -------------------
Greater than or equal to 3.75:1.00 .500%
Less than 3.75:1.00 .375%
"COMPLETION DATE" means August 1, 1999, PROVIDED that if a
Force Majeure Event occurs with respect to the Proposed
Expansion during the period between the Closing Date and
August 1, 1999, the Completion Date shall be extended by one
day for each day during which the Force Majeure Event remains
continuing.
"COMPLETION GUARANTY" means a Completion Guaranty issued
by Xxxxx X. Xxxxxx on the Closing Date in favor of the
Administrative Agent and the Trustee under the Indenture,
either as originally executed or as it may from time to time be
supplemented, modified, amended, restated or extended.
"COMPLIANCE CERTIFICATE" means a certificate in the form
of Exhibit B, properly completed and signed by a Senior Officer
of Borrower.
"CONSTRUCTION PROGRESS REPORT" means a report prepared by
CSG or its designated representative in a form which is
reasonably acceptable to the Administrative Agent.
"CONTINGENT OBLIGATION" means, as to any Person, any
(a) guarantee by that Person of Indebtedness of, or other
obligation performable by, any other Person or (b) assurance
given by that Person to an obligee of any other Person with
respect to the performance of an obligation by, or the
financial condition of, such other Person, whether direct,
indirect or contingent, INCLUDING any purchase or repurchase
agreement covering such obligation or any collateral security
therefor, any agreement to provide funds (by means of loans,
capital contributions or otherwise) to such other Person, any
agreement to support the solvency or level of any balance sheet
item of such other Person or any "keep-well" or other
arrangement of whatever nature given for the purpose of
assuring or holding harmless such obligee against loss with
respect to any obligation of such other Person; PROVIDED,
HOWEVER, that the term Contingent Obligation shall not include
endorsements of instruments for deposit or collection in the
ordinary course of business. The amount of any Contingent
Obligation shall be deemed to be an amount equal to the stated
or determinable amount of the related primary obligation
(unless the Contingent Obligation is limited by its terms to a
lesser amount, in which case to the extent of such amount) or,
if not stated or determinable, the maximum reasonably
anticipated liability in respect thereof as determined by the
Person in good faith.
"CONTRACTUAL OBLIGATION" means, as to any Person, any
provision of any outstanding security issued by that Person or
of any material
-6-
agreement, instrument or undertaking to which that Person is
a party or by which it or any of its Property is bound.
"CREDITORS" means, collectively, the Administrative Agent,
the Issuing Lender, the Swing Line Lender, the Lenders, the
Arranger and the Co-Agent.
"CSG" means Bank of America's Construction Services Group.
"DEBTOR RELIEF LAWS" means the Bankruptcy Code of the
United States of America, as amended from time to time, and all
other applicable liquidation, conservatorship, bankruptcy,
moratorium, rearrangement, receivership, insolvency,
reorganization, or similar debtor relief Laws from time to time
in effect affecting the rights of creditors generally.
"DEED OF TRUST" means the Construction Deed of Trust,
Assignment of Rents and Fixture Filing executed and delivered
by Borrower on the Closing Date, either as originally executed
or as it may from time to time be supplemented, modified,
amended, extended or supplanted.
"DEFAULT" means any event that, with the giving of any
applicable notice or passage of time specified in Section 9.1,
or both, would be an Event of Default.
"DEFAULT RATE" means the interest rate prescribed in
Section 3.9.
"DESIGNATED EURODOLLAR MARKET" means, with respect to any
LIBOR Loan, (a) the London Eurodollar Market, (b) if prime
banks in the London Eurodollar Market are at the relevant time
not accepting deposits of Dollars or if the Administrative
Agent determines in good faith that the London Eurodollar
Market does not represent at the relevant time the effective
pricing to the Lenders for deposits of Dollars in the London
Eurodollar Market, the Cayman Islands Eurodollar Market or
(c) if prime banks in the Cayman Islands Eurodollar Market are
at the relevant time not accepting deposits of Dollars or if
the Administrative Agent determines in good faith that the
Cayman Islands Eurodollar Market does not represent at the
relevant time the effective pricing to the Lenders for deposits
of Dollars in the Cayman Islands Eurodollar Market, such other
Eurodollar Market as may from time to time be selected by the
Administrative Agent with the approval of Borrower and the
Requisite Lenders.
"DISBURSEMENT ACCOUNT" means a deposit account to be
maintained by Borrower with Bank of America, as from time to
time designated by Borrower by written notification to the
Administrative Agent.
"DISPOSITION" means the voluntary sale, transfer or other
disposition of any asset of Borrower or any of its Subsidiaries
OTHER THAN (a) Cash, Cash Equivalents, inventory or other
assets sold, leased or otherwise disposed of in the ordinary
course of business of Borrower or its Subsidiaries,
(b) equipment sold or otherwise disposed of where substantially
similar equipment in replacement
-7-
thereof has theretofore been acquired, or thereafter within
90 days is acquired, by Borrower or its Subsidiaries, (c) leases
of retail space on the Project Site in the ordinary course of the
business of Borrower and in a manner consistent with other similar
hotel-casinos and (d) a disposition to Borrower or any of its
Subsidiaries.
"DISTRIBUTION" means, with respect to shares of capital
stock or any warrant or option to purchase an equity security
or other equity security issued by a Person, (i) the
retirement, redemption, purchase, or other acquisition for Cash
or for Property by such Person of any such security, (ii) the
declaration or (without duplication) payment by such Person of
any dividend in Cash or in Property on or with respect to any
such security, (iii) any Investment by such Person in the
holder of 5% or more of any such security if a purpose of such
Investment is to avoid characterization of the transaction as a
Distribution, and (iv) any other payment in Cash or Property by
such Person constituting a distribution under applicable Laws
with respect to such security.
"DOLLARS" or "$" means United States dollars.
"EBITDA" means, for any fiscal period, the SUM of (a) Net
Income for that period, PLUS (b) any extraordinary loss
reflected in such Net Income, MINUS (c) any extraordinary gain
reflected in such Net Income, PLUS (d) Interest Expense for
that period, PLUS (e) the aggregate amount of federal and state
taxes on or measured by income of Borrower and its Subsidiaries
for that period (whether or not payable during that period),
PLUS (f) depreciation, amortization and all other non-cash
expenses for that period, MINUS (g) to the extent not
previously deducted from Net Income, the Supervisory Fees and
any other management fees paid in Cash to Xxxxx X. Xxxxxx or
his Affiliates by Borrower or its Subsidiaries during that
period, PLUS (h) management fees paid to Xxxxxx'x Casino
Resorts during that period (including to the extent that the
same were paid during that period, the approximately
$24,000,000 payment made by Borrower to terminate Borrower's
management contract with Xxxxxx'x Casino Resorts), PLUS (i)
during each period which includes the month of September, 1997,
transactional expenses of $600,000, PLUS (j) the amount of
Borrower's litigation expense incurred during that period
associated with Borrower's lawsuit with Rank Organization PLC
(provided that the aggregate amount added to EBITDA pursuant to
this clause (j) shall not exceed $1,000,000 during the term of
this Agreement), PLUS (k) expenses classified as "pre-opening
expenses" on the applicable financial statements of Borrower or
its Subsidiaries for that period, in each case determined in
accordance with Generally Accepted Accounting Principles and,
in the case of items (d), (f), (h) and (i), only to the extent
deducted in the determination of Net Income for that period.
"ELIGIBLE ASSIGNEE" means, (a) another Lender, (b) with
respect to any Lender, any Affiliate of that Lender, (c) any
commercial bank having a combined capital and surplus of
$100,000,000 or more, (d) any (i) savings bank, savings and
loan association or similar financial institution or (ii)
insurance company engaged in the business of writing insurance
which, in either case (A) has a net
-8-
worth of $200,000,000 or more, (B) is engaged in the business
of lending money and extending credit under credit facilities
substantially similar to those extended under this Agreement
and (C) is operationally and procedurally able to meet the
obligations of a Lender hereunder to the same degree as a
commercial bank and (e) any other financial institution
(INCLUDING a mutual fund or other fund) having total assets
of $250,000,000 or more which meets the requirements set
forth in subclauses (B) and (C) of clause (d) above; PROVIDED
that (I) each Eligible Assignee must either (a) be organized
under the Laws of the United States of America, any State
thereof or the District of Columbia or (b) be organized under
the Laws of the Cayman Islands or any country which is a
member of the Organization for Economic Cooperation and
Development, or a political subdivision of such a country,
and (i) act hereunder through a branch, agency or funding
office located in the United States of America and (ii) be
exempt from withholding of tax on interest and deliver the
documents related thereto pursuant to Section 11.21 and (II)
to the extent required under applicable Gaming Laws, each
Eligible Assignee must be registered with, approved by, or
not disapproved by (whichever may be required under
applicable Gaming Laws), all applicable Gaming Boards.
"ERISA" means the Employee Retirement Income Security Act
of 1974, and any regulations issued pursuant thereto, as
amended or replaced and as in effect from time to time.
"EURODOLLAR BASE RATE" means, with respect to any LIBOR
Loan, the interest rate per annum (rounded upward, if
necessary, to the next 1/16 of 1%) at which deposits in Dollars
are offered by the Administrative Agent to prime banks in the
Designated Eurodollar Market at or about 11:00 a.m. local time
in the Designated Eurodollar Market, two Market Days before the
first day of the applicable Interest Period in an aggregate
amount approximately equal to the amount of the Advance made by
the Bank of America with respect to such LIBOR Loan and for a
period of time comparable to the number of days in the
applicable Interest Period. The determination of the LIBOR
Base Rate by the Administrative Agent shall be conclusive in
the absence of manifest error.
"EURODOLLAR MARKET" means a regular established market
located outside the United States of America by and among banks
for the solicitation, offer and acceptance of Dollar deposits
in such banks.
"EURODOLLAR OBLIGATIONS" means eurocurrency liabilities,
as defined in Regulation D.
"EVENT OF DEFAULT" shall have the meaning provided in
Section 9.1.
"EXCESS CASH FLOW" means, for any period, (a) EBITDA for
that period MINUS (b) principal and interest payments made by
Borrower and its Subsidiaries in Cash during that period with
respect to Indebtedness for borrowed money, MINUS (c) Capital
Expenditures made by Borrower and its Subsidiaries during that
period in Cash, MINUS (d) cash payments made by Borrower and
its Subsidiaries during that period with respect to federal and
state taxes on or measured by
-9-
income of Borrower and its Subsidiaries.
"EXISTING CREDIT FACILITY" means Borrower's existing
senior credit facilities with Xxxxx Fargo Bank, N.A. under the
Credit Agreement dated as of September 26, 1997, between
Borrower and Xxxxx Fargo Bank, N.A.
"FEDERAL FUNDS RATE" means, as of any date of
determination, the rate set forth in the weekly statistical
release designated as H.15(519), or any successor publication,
published by the Federal Reserve Board (including any such
successor, "H.15(519)") for such date opposite the caption
"Federal Funds (Effective)". If for any relevant date such
rate is not yet published in H.15(519), the rate for such date
will be the rate set forth in the daily statistical release
designated as the Composite 3:30 p.m. Quotations for
U.S. Government Securities, or any successor publication,
published by the Federal Reserve Bank of New York (including
any such successor, the "Composite 3:30 p.m. Quotation") for
such date under the caption "Federal Funds Effective Rate". If
on any relevant date the appropriate rate for such date is not
yet published in either H.15(519) or the Composite 3:30 p.m.
Quotations, the rate for such date will be the arithmetic mean
of the rates for the last transaction in overnight Federal
funds arranged prior to 9:00 a.m. (New York City time) on that
date by each of three leading brokers of Federal funds
transactions in New York City selected by the Administrative
Agent. For purposes of this Agreement, any change in the Base
Rate due to a change in the Federal Funds Rate shall be
effective as of the opening of business on the effective date
of such change.
"FIRREA" means the Financial Institutions Reform, Recovery
and Enforcement Act of 1989, as it may be amended from time to
time.
"FISCAL QUARTER" means the fiscal quarter of Borrower
consisting of a three-month fiscal period ending on each
February 28 (or 29th), May 31, August 31 and November 30.
"FISCAL YEAR" means the fiscal year of Borrower consisting
of a twelve-month period ending on each November 30.
"FIXED CHARGE COVERAGE RATIO" means, as of each date of
determination, the ratio of (a) Annualized EBITDA as of that
date PLUS Supervisory Fees paid in Cash during the twelve month
period preceding that date, to (b) the SUM of (i) required
payments of principal and interest and mandatory prepayments
made in Cash by Borrower and its Subsidiaries with respect to
Indebtedness made during such twelve month period, (ii)
Maintenance Capital Expenditures made during the same period,
(iii) taxes actually paid in cash with respect to income of
Borrower and its Subsidiaries during the same period, and (iv)
Supervisory Fees paid in cash during the same period.
"FORCE MAJEURE EVENT" means the occurrence of any strikes,
lockouts or other labor trouble; the occurrence of fire, flood,
earthquake, tornado, sandstorm or other casualty; governmental
-10-
preemption; breakdown, accident or other acts of God; acts of
war, insurrection, civil strife and commotion; any enactment,
promulgation or amendments of any statute, rule, order or
regulation of any legislature or governmental agency or any
department or subdivision thereof; any litigation not commenced
by Borrower, Xxxxx X. Xxxxxx or their respective Affiliates; or
any other event that occurs after the date of this Agreement
that is outside the control of Borrower or Xxxxx X. Xxxxxx
(excluding any event or circumstance which with reasonable
diligence or investigation is foreseeable as of the date of
this Agreement); in each such case which shall make it
physically impossible, unlawful or commercially impracticable
to continue construction of or complete the Proposed Expansion;
PROVIDED, however, that the following shall not constitute
Force Majeure Events: any increase in the Budget to an amount
in excess of $87,000,000 as a result of (i) any condition,
defect, or physical circumstance of the land, buildings or
improvements which either now exists or which results from the
demolition, development or construction of the Hard Rock Hotel
or the Proposed Expansion which should have been known or
discovered with the exercise of reasonable diligence or
investigation, including errors, omissions or defects in
construction, plans or development, (ii) the completion or
amendment of the Plans after the date hereof not approved by
the Administrative Agent with the consent of the Requisite
Lenders or omissions or defects in the construction plans in
existence on the date hereof, (iii) increase in the cost of
labor, materials and equipment as the result of ordinary
cyclical or seasonal forces, or general inflation, (iv) any
failure of any contractor or subcontractor, vendor or other
supplier that itself is not caused by a Force Majeure Event to
perform at the times, at the price or in the manner contracted
for or to adhere to the Plans, or (v) any defects, errors or
omissions in any construction contract, subcontract, supply
contract, or the Budget.
"GAMING BOARD" means, collectively, (a) the Nevada Gaming
Commission, (b) the Nevada State Gaming Control Board, and
(c) any other Governmental Agency that holds regulatory,
licensing or permit authority over gambling, gaming or casino
activities conducted by Borrower and its Subsidiaries within
its jurisdiction.
"GAMING LAWS" means all Laws pursuant to which any Gaming
Board possesses regulatory, licensing or permit authority over
gambling, gaming or casino activities conducted by Borrower and
its Subsidiaries within its jurisdiction.
"GENERALLY ACCEPTED ACCOUNTING PRINCIPLES" means, as of
any date of determination, accounting principles (a) set forth
as generally accepted in then currently effective Opinions of
the Accounting Principles Board of the American Institute of
Certified Public Accountants, (b) set forth as generally
accepted in then currently effective Statements of the
Financial Accounting Standards Board or (c) that are then
approved by such other entity as may be approved by a
significant segment of the accounting profession in the United
States of America. The term "CONSISTENTLY APPLIED," as used in
connection therewith, means that the accounting principles
applied are consistent in all material respects with those
applied at prior
-11-
dates or for prior periods.
"GOVERNMENT SECURITIES" means readily marketable
(a) direct full faith and credit obligations of the
United States of America or obligations guaranteed by the full
faith and credit of the United States of America, or
(b) obligations of an agency or instrumentality of, or
corporation owned, controlled or sponsored by, the United
States of America that are generally considered in the
securities industry to be implicit obligations of the United
States of America.
"GOVERNMENTAL AGENCY" means (a) any international,
foreign, federal, state, county or municipal government, or
political subdivision thereof, (b) any governmental or
quasi-governmental agency, authority, board, bureau,
commission, department, instrumentality or public body, or
(c) any court or administrative tribunal of competent
jurisdiction.
"HAZARDOUS MATERIALS" means substances regulated as
hazardous substances pursuant to (a) the Comprehensive
Environmental Response, Compensation and Liability Act of 1980,
42 U.S.C. Section 9601 et seq., or as hazardous or toxic wastes or
pollutants pursuant to the Hazardous Materials Transportation
Act, 49 U.S.C. Section 1801, et seq., the Resource Conservation and
Recovery Act, 42 U.S.C. Section 6901, et seq., or (b) any other Law
regulating hazardous substances or hazardous or toxic wastes or
pollutants or regulating the generation, use, storage,
treatment, handling or transportation of any such substances,
in each case as such Laws are amended from time to time.
"HAZARDOUS MATERIALS LAWS" means all federal, state or
local laws, ordinances, rules or regulations governing the
disposal, transfer, generation, storage or treatment of
Hazardous Materials applicable to any of the Real Property.
"INDEBTEDNESS" means, as to any Person (without
duplication), (a) indebtedness of such Person for borrowed
money or for the deferred purchase price of Property (excluding
trade and other accounts payable in the ordinary course of
business in accordance with customary trade terms), INCLUDING
any Contingent Obligation for any such indebtedness,
(b) indebtedness of such Person of the nature described in
clause (a) that is non-recourse to the credit of such Person
but is secured by assets of such Person, to the extent of the
value of such assets, (c) Capital Lease Obligations of such
Person, (d) indebtedness of such Person arising under bankers'
acceptance facilities or under facilities for the discount of
accounts receivable of such Person, (e) any direct or
contingent obligations of such Person under letters of credit
issued for the account of such Person and (f) any net
obligations of such Person under a Swap Agreement.
"INDENTURE" means the Indenture dated March 23, 1998
between Borrower and First Trust National Association, N.A., as
Trustee, governing Borrowers' $120,000,000 9.25% senior
subordinated notes due 2005.
"INTANGIBLE ASSETS" means assets that are considered
intangible
-12-
assets under Generally Accepted Accounting Principles, INCLUDING
customer lists, goodwill, computer software, copyrights, trade
names, trademarks and patents.
"INTEREST DIFFERENTIAL" means, with respect to any
prepayment of a LIBOR Loan on a day other than the last day of
the applicable Interest Period and with respect to any failure
to borrow a LIBOR Loan on the date or in the amount specified
in any Request for Loan, (a) the per annum interest rate
payable (or, with respect to a failure to borrow, the interest
rate which would have been payable) pursuant to Section 3.1(c)
with respect to the LIBOR Loan MINUS (b) the LIBOR on, or as
near as practicable to, the date of the prepayment or failure
to borrow for a LIBOR Loan with an Interest Period commencing
on such date and ending on the last day of the Interest Period
of the LIBOR Loan so prepaid or which would have been borrowed
on such date.
"INTEREST EXPENSE" means, as of the last day of any fiscal
period, the SUM of (a) all interest, fees, charges and related
expenses paid or payable (without duplication) for that fiscal
period to a lender in connection with borrowed money or the
deferred purchase price of assets that are considered "interest
expense" under Generally Accepted Accounting Principles, PLUS
(b) the portion of rent paid or payable (without duplication)
for that fiscal period under Capital Lease Obligations that
should be treated as interest in accordance with Financial
Accounting Standards Board Statement No. 13.
"INTEREST PERIOD" means, as to each LIBOR Loan, the period
commencing on the date specified by Borrower pursuant to
Section 2.1(b) and ending 1, 2, 3 or 6 months thereafter, as
specified by Borrower in the applicable Request for Loan;
PROVIDED that:
(a) The first day of any Interest Period shall be a
Market Day;
(b) Any Interest Period that would otherwise end on
a day that is not a Market Day shall be extended to the next
succeeding Market Day unless such Market Day falls in another
calendar month, in which case such Interest Period shall end on
the next preceding Market Day;
(c) Borrower may not specify a Interest Period that
extends beyond any Reduction Date unless the SUM of (i) the
aggregate principal amount of the LIBOR Loans having a Interest
Period ending after such Reduction Date PLUS (ii) the aggregate
maximum amount available for drawing under Letters of Credit
for which the expiry date is after such Reduction Date, does
not exceed the Commitment (after giving effect to any reduction
thereto scheduled to be made on such Reduction Date pursuant to
Section 2.6); and
(d) No Interest Period shall extend beyond the
Maturity Date.
-13-
"INVESTMENT" means, when used in connection with any
Person, any investment by or of that Person, whether by means
of purchase or other acquisition of stock or other securities
of any other Person or by means of a loan, advance creating a
debt, capital contribution, guaranty or other debt or equity
participation or interest in any other Person, INCLUDING any
partnership and joint venture interests of such Person. The
amount of any Investment shall be the amount actually invested,
without adjustment for subsequent increases or decreases in the
value of such Investment.
"ISSUING LENDER" means Bank of America National Trust and
Savings Association, or any successor thereto.
"LAWS" means, collectively, all federal, state and local
statutes, rules, regulations, ordinances, codes and
administrative or judicial precedents, or other matters having
the force of law and binding upon the parties hereto.
"LENDERS" has the meaning set forth in the preamble
hereto.
"LETTERS OF CREDIT" means any of the Letters of Credit
issued by the Issuing Lender under the Commitment pursuant to
Section 2.4, either as originally issued or as the same may be
supplemented, modified, amended, renewed, extended or
supplanted.
"LIBOR" means, with respect to any LIBOR Loan, an interest
rate per annum (rounded upward, if necessary, to the nearest
1/16 of one percent) determined pursuant to the following
formula:
LIBOR Base Rate
LIBOR = -----------------------------
1.00 - Reserve Percentage
"LIBOR ADVANCE" means an Advance made hereunder and
specified to be a LIBOR Advance in accordance with Article 2.
"LIBOR LOAN" means a Loan made hereunder and specified to
be a LIBOR Loan in accordance with Article 2.
"LIBOR MARGIN" means, for each Pricing Period, the
percentage set forth opposite the Total Leverage Ratio as of
the last day of the Fiscal Quarter ending two months prior to
the first day of that Pricing Period:
Total Leverage Ratio LIBOR Margin
-------------------- -------------
Greater than or equal to 5.75:1.00 3.50%
Less than 5.75:1.00 but greater than
or equal to 5.25:1.00 3.25%
Less than 5.25:1.00 but greater than
or equal to 4.75:1.00 3.00%
Less than 4.75:1.00 but greater than
or equal to 4.25:1.00 2.75%
-14-
Less than 4.25:1.00 but greater than
or equal to 3.75:1.00 2.50%
Less than 3.75:1.00 but greater than
or equal to 3.25:1.00 2.25%
Less than 3.25:1.00 but greater than
or equal to 2.75:1.00 1.75%
Less than 2.75:1.00 1.50%
"LIBOR OFFICE" means, as to each Lender, its office or
branch so designated by written notice the Administrative Agent
as its LIBOR Office. If no LIBOR Office is designated by a
Lender, its LIBOR Office shall be its office at its address for
purposes of notices hereunder.
"LICENSE REVOCATION" means the revocation, failure to
renew or suspension of, or the appointment of a receiver,
supervisor or similar official with respect to, any casino,
gambling or gaming license issued by any Gaming Board covering
any casino or gaming facility of Borrower and its Subsidiaries.
"LIEN" means any mortgage, deed of trust, pledge,
hypothecation, assignment for security, security interest,
encumbrance, lien or charge of any kind, whether voluntarily
incurred or arising by operation of Law or otherwise, affecting
any Property, INCLUDING any agreement to grant any of the
foregoing, any conditional sale or other title retention
agreement, any lease in the nature of a security interest,
and/or the filing of or agreement to give any financing
statement (OTHER THAN a precautionary financing statement with
respect to a lease that is not in the nature of a security
interest) under the Uniform Commercial Code or comparable Law
of any jurisdiction with respect to any Property.
"LIQUIDITY REPORT" means a report in the form of Exhibit C
stating that Xxxxx X. Xxxxxx owns as of the date of his
personal financial report delivered in accordance with Section
7.1, unencumbered Cash and Cash Equivalents in an amount not
less than $30,000,000 and signed by a Person authorized to
deliver the same on behalf of Xxxxx X. Xxxxxx.
"LOAN" means the aggregate of the Advances made at any one
time by the Lenders pursuant to Article 2.
"LOAN DOCUMENTS" means, collectively, this Agreement, the
Notes, the Swing Line Documents, the Collateral Documents, any
Secured Swap Agreement, the Subordination Agreement, each
Request for Letter of Credit, each Request for Loan, the letter
described in Sections 3.2, 3.4, 3.5 and 3.6, each Compliance
Certificate, each Construction Progress Report and any other
agreements of any type or nature hereafter executed and
delivered by Borrower or any of its Subsidiaries or Affiliates,
or by Xxxxx X. Xxxxxx, to the Administrative Agent or to any
Lender in any way relating to or in
-15-
furtherance of this Agreement, in each case either as originally
executed or as the same may from time to time be supplemented,
modified, amended, restated, extended or supplanted.
"MAKE WELL AGREEMENT" means the Make Well Agreement,
executed by Xxxxx X. Xxxxxx on the Closing Date, either as
originally executed or as it may from time to time be
supplemented, modified, amended, extended or supplanted.
"MAINTENANCE CAPITAL EXPENDITURES" means any Capital
Expenditure for the maintenance, repair, restoration or
refurbishment of any portion of the Hard Rock Hotel existing as
of the Closing Date (and after completion of the Proposed
Expansion, of the Proposed Expansion), but not any Capital
Expenditure which adds to or further improves such property.
"MARGIN STOCK" means "margin stock" as such term is
defined in Regulation G, T, U or X.
"MARKET DAY" means any Banking Day on which dealings in
Dollar deposits are conducted by and among banks in the
Designated Eurodollar Market.
"MATERIAL ADVERSE EFFECT" means any set of circumstances
or events which (a) has or could reasonably be expected to have
any material adverse effect whatsoever upon the validity or
enforceability of any Loan Document, (b) is or could reasonably
be expected to be material and adverse to the condition
(financial or otherwise), business operations or prospects of
Borrower and its Subsidiaries, taken as a whole, or
(c) materially impairs or could reasonably be expected to
materially impair the ability of Borrower and its Subsidiaries,
taken as a whole, to perform the Obligations.
"MATURITY DATE" means March 23, 2004.
"MULTIEMPLOYER PLAN" means any employee benefit plan of
the type described in Section 4001(a)(3) of ERISA.
"NEGATIVE PLEDGE" means a Contractual Obligation that
contains a covenant binding on Borrower or any of its
Subsidiaries that prohibits Liens on any of its or their
Property, OTHER THAN (a) any such covenant contained in a
Contractual Obligation granting a Lien permitted under Section
6.9 which affects only the Property that is the subject of such
permitted Lien and (b) any such covenant that does not apply to
Liens securing the Obligations.
"NET INCOME" means, with respect to any fiscal period, the
consolidated net income of Borrower and its Subsidiaries for
that period, determined in accordance with Generally Accepted
Accounting Principles, consistently applied.
"NET CASH PROCEEDS" means with respect to any Disposition
or any offerings of Indebtedness or equity securities of
Borrower or its Subsidiaries, the gross sales proceeds received
by Borrower and its Subsidiaries from such Disposition or
offering (INCLUDING Cash,
-16-
Property and the assumption by the purchaser of any liability
of Borrower or its Subsidiaries) NET OF brokerage commissions,
legal expenses and other transactional costs payable by Borrower
and its Subsidiaries with respect to such Disposition and NET
OF an amount determined in good faith by Borrower to be the
estimated amount of income taxes payable by Borrower attributable
to such Disposition.
"NOTE" means any of the promissory notes made by Borrower
to a Lender evidencing Advances under that Lender's Pro Rata
Share of the Commitment, substantially in the form of Exhibit
D, either as originally executed or as the same may from time
to time be supplemented, modified, amended, renewed, extended
or supplanted.
"OBLIGATIONS" means all present and future obligations of
every kind or nature of Borrower or any other Obligor at any
time and from time to time owed to the Administrative Agent or
the Lenders or any one or more of them, under any one or more
of the Loan Documents, whether due or to become due, matured or
unmatured, liquidated or unliquidated, or contingent or
noncontingent, INCLUDING obligations of performance as well as
obligations of payment, and INCLUDING interest that accrues
after the commencement of any proceeding under any Debtor
Relief Law by or against Borrower or any Subsidiary or
Affiliate of Borrower.
"OBLIGOR" means any Person other than the Creditors, which
now or hereafter is a party to any of the Loan Documents.
"OPENING" means the date upon which (a) the Proposed
Expansion, together with each of the amenities described on
Schedule 1.1A, is open and ready to accommodate hotel guests
and gaming patrons, (b) a certificate of occupancy has been
issued with respect to the Proposed Expansion, and (c) Borrower
has delivered a Certificate to the Administrative Agent,
executed by a Senior Officer of Borrower, stating that (i) the
Proposed Expansion, including all related amenities described
on Schedule 1.1A, have been substantially completed in
accordance with applicable Laws, the Plans and the Budget, (ii)
the Proposed Expansion is free and clear of all record Liens
and encumbrances (other than Permitted Encumbrances and those
described in Schedule B to the Title Policy described in
Section 8.1(a)(20) other than any Liens and encumbrances which
are the subject of bonds and indemnities which are reasonably
acceptable to the Administrative Agent) and Borrower has paid
all known claims against the Proposed Expansion, and (iii)
Borrower has obtained all necessary licenses, permits and
approvals (including without limitation all permits and
licenses required under Gaming Laws) for the operation of the
Proposed Expansion.
"OPINIONS OF COUNSEL" means the favorable written legal
opinions of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, special
counsel to Borrower and its Subsidiaries, and Xxxxxx & Silver,
Ltd., special Nevada counsel to Borrower and its Subsidiaries,
in each case issued on the Closing Date, together with copies
of all factual certificates and legal opinions upon which such
counsel have relied.
"OUTSTANDING OBLIGATIONS" means, as of each date of
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determination, and giving effect to the making of any such
credit accommodations requested on that date, the SUM of (i)
the aggregate principal amount of the outstanding Loans, plus
(ii) the Swing Line Outstandings, PLUS (iii) the Aggregate
Effective Amount of all Letters of Credit.
"PBGC" means the Pension Benefit Guaranty Corporation or
any successor thereof established under ERISA.
"PENSION PLAN" means any "employee pension benefit plan"
(as such term is defined in Section 3(2) of ERISA), OTHER THAN
a Multiemployer Plan, which is subject to Title IV of ERISA and
is maintained by Borrower or any of its Subsidiaries or to
which Borrower or any of its Subsidiaries contributes or has an
obligation to contribute.
"PERMITTED ENCUMBRANCES" means:
(a) inchoate Liens incident to construction on or
maintenance of Real Property; or Liens incident to construction
on or maintenance of Real Property now or hereafter filed of
record for which adequate reserves have been set aside (or
deposits made pursuant to applicable Law) and which are being
contested in good faith by appropriate proceedings and have not
proceeded to judgment, PROVIDED that, by reason of nonpayment
of the obligations secured by such Liens, no such Real Property
is subject to a material risk of loss or forfeiture;
(b) Liens for taxes and assessments on Real Property
which are not yet past due; or Liens for taxes and assessments
on Real Property for which adequate reserves have been set
aside and are being contested in good faith by appropriate
proceedings and have not proceeded to judgment, PROVIDED that,
by reason of nonpayment of the obligations secured by such
Liens, no such Real Property is subject to a material risk of
loss or forfeiture;
(c) minor defects and irregularities in title to any
Real Property which in the aggregate do not materially impair
the fair market value or use of the Real Property for the
purposes for which it is or may reasonably be expected to be
held;
(d) easements, exceptions, licenses, reservations,
or other agreements for the purpose of pipelines, conduits,
cables, telecommunications, wire communication lines, power
lines and substations, streets, trails, walkways, drainage,
irrigation, water, and sewerage purposes, dikes, canals,
ditches, the removal of oil, gas, coal, or other minerals, and
other like purposes affecting Real Property, facilities, or
equipment which in the aggregate do not materially burden or
impair the fair market value or use of such Real Property for
the purposes for which it is or may reasonably be expected to
be held;
(e) rights reserved to or vested in any Governmental
Agency to control or regulate, or obligations or duties to any
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Governmental Agency with respect to, the use of any Real Property;
(f) rights reserved to or vested in any Governmental
Agency to control or regulate, or obligations or duties to any
Governmental Agency with respect to, any right, power,
franchise, grant, approval, license, or permit;
(g) present or future zoning laws and ordinances or
other Laws and ordinances restricting the occupancy, use, or
enjoyment of Real Property;
(h) statutory Liens, other than those described in
clauses (a) or (b) above, arising in the ordinary course of
business with respect to obligations which are not delinquent
or are being contested in good faith by appropriate
proceedings, PROVIDED that, if delinquent, adequate reserves
have been set aside with respect thereto and, by reason of
nonpayment, no Property is subject to a material risk of loss
or forfeiture;
(i) rights of tenants under leases and rental
agreements covering Real Property entered into in the ordinary
course of business of the Person owning such Real Property;
(j) Liens consisting of pledges or deposits to
secure obligations under workers' compensation laws or similar
legislation, including Liens of judgments thereunder which are
not currently dischargeable;
(k) other non-consensual Liens incurred in the
ordinary course of business but not in connection with an
extension of credit, which do not in the aggregate, when taken
together with all other Liens, materially impair the value or
use of the Property of Borrower and the Subsidiaries of
Borrower, taken as a whole; and
(l) the matters disclosed on Schedule B to the ALTA
lenders policy of title insurance delivered to the
Administrative Agent pursuant to Section 8.1(a).
"PERMITTED RIGHT OF OTHERS" means a Right of Others
consisting of (a) an interest (other than a legal or equitable
co-ownership interest, an option or right to acquire a legal or
equitable co-ownership interest and any interest of a ground
lessor under a ground lease), that does not materially impair
the value or use of Property for the purposes for which it is
or may reasonably be expected to be held, and (b) an option or
right to acquire a Lien that would be a Permitted Encumbrance.
"PERSON" means any individual or entity, INCLUDING a
trustee, corporation, limited liability company, general
partnership, limited partnership, joint stock company, trust,
estate, unincorporated organization, business association,
firm, joint venture, Governmental Agency, or other entity.
"PLANS" means all drawings, plans and specifications
prepared by or for Borrower or its Subsidiaries or Affiliates
with respect to
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the Proposed Expansion, as amended or supplemented from time
to time, and, if required, submitted to and approved by the Xxxxx
County Building Department, all of which plans and specifications
describe and show the intended construction of the Proposed Expansion
and the labor and materials necessary for the construction thereof
together with the Budget.
"PRICING PERIOD" means (a) the period beginning on the
Closing Date and ending on April 30, 1998, and (b) each of the
succeeding three month periods beginning on each subsequent
May 1, August 1, November 1 and February 1.
"PROJECT SITE" means the 16.7 acre site which is the
location of the Hard Rock Hotel, including the proposed
location for the Proposed Expansion, which real property is
further described on the ALTA/ASCM Land Title Survey prepared
by HMH Engineering and Surveying, Inc. as their job 02031 dated
March 17, 1998.
"PROJECTIONS" means the financial projections dated
January 21, 1998, prepared based on information provided by
Borrower and previously delivered to the Administrative Agent.
"PROPERTY" means any interest in any kind of property or
asset, whether real, personal or mixed, or tangible or
intangible.
"PROPOSED EXPANSION" means the proposed expansion of the
Hard Rock Hotel facility consisting of not less than 290 rooms,
swimming pool enhancements, three restaurants, a five story
parking structure (providing for not less than 1000 parking
spaces and a net increase of not less than 400 parking spaces
at the Project Site), a conference center, and including
without limitation the amenities described on Schedule 1.1A,
together with related furnishings and equipment.
"PRO RATA SHARE" means, as of each date of determination
and with respect to each Lender, the percentage of the
Commitment owned by that Lender (or, if the Commitment has been
terminated, the percentage of the Outstanding Obligations owned
by that Lender). The records of the Administrative Agent shall
be presumed to correctly reflect the Pro Rata Share of the
Lenders then party to the Loan Agreement.
"QUARTERLY PAYMENT DATE" means each May 31, August 31,
November 3[1] and February 28 (or, in a leap year, February 29)
to occur following the date of this Agreement.
"REAL PROPERTY" means, as of any date of determination,
all real Property then or theretofore owned, leased or occupied
by Borrower or any of its Subsidiaries, INCLUDING the Project
Site.
"REDUCTION AMOUNT" means, as to each Reduction Date, the
amount set forth opposite that Reduction Date below, or such
lesser amount to which that Reduction Amount may be reduced in
accordance with the second sentence of Section 2.5 or the last
sentence of Section 2.7:
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Reduction Dates Reduction Amount
----------------- ----------------
February 28, 2000 $2,175,000
May 31, 2000 $2,175,000
August 31, 2000 $2,175,000
November 30, 2000 $2,175,000
February 28, 2001 $3,262,500
May 31, 2001 $3,262,500
August 31, 2001 $3,262,500
November 30, 2001 $3,262,500
February 28, 2002 $3,262,500
May 31, 2002 $3,262,500
August 31, 2002 $3,262,500
November 30, 2002 $3,262,500
February 28, 2003 $3,262,500
May 31, 2003 $3,262,500
August 31, 2003 $3,262,500
November 30, 2003 $3,262,500
February 28, 2004 $4,785,000
Maturity Date $14,365,000
"REDUCTION DATE" means February 28, 2000, and the last day
of each succeeding May, August, November and February through
the Maturity Date.
"REFERENCE RATE" means the rate of interest publicly
announced from time to time by Bank of America in
San Francisco, California, as its "reference rate." It is a
rate set by Bank of America based upon various factors
including Bank of America's costs and desired return, general
economic conditions and other factors, and is used as a
reference point for pricing some loans, which may be priced at,
above, or below such announced rate. Any change in the
Reference Rate announced by Bank of America shall take effect
at the opening of business on the day specified in the public
announcement of such change.
"REGULATION D" means Regulation D, as at any time amended,
of the Board of Governors of the Federal Reserve System, or any
other regulation in substance substituted therefor.
"REGULATIONS G, T, U and X" means Regulations G, T, U
and X, as at any time amended, of the Board of Governors of the
Federal Reserve System, or any other regulations in substance
substituted therefor.
"REQUEST FOR LETTER OF CREDIT" means a written request for
a Letter of Credit substantially in the form of Exhibit E,
signed by a Responsible Official of Borrower, on its behalf,
and properly completed to provide all information required to
be included therein.
"REQUEST FOR LOAN" means a written request for a Loan
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substantially in the form of Exhibit F, signed by a Responsible
Official of Borrower and properly completed to provide all
information required to be included therein.
"REQUIREMENT OF LAW" means, as to any Person, the articles
or certificate of incorporation and by-laws or other
organizational or governing documents of such Person, and any
Law, or judgment, award, decree, writ or determination of a
Governmental Agency, in each case applicable to or binding upon
such Person or any of its Property or to which such Person or
any of its Property is subject.
"REQUISITE LENDERS" means, as of each date of
determination (a) if the Commitment is then in effect, Lenders
having Pro Rata Shares constituting 66 2/3% or more of the
Commitment, and (b) if the Commitment has then been terminated
and there are then any Obligations outstanding, Lenders holding
66 2/3% or more of the Outstanding Obligations.
"RESERVE PERCENTAGE" means, with respect to any LIBOR
Loan, the maximum reserve percentage (expressed as a decimal,
rounded upward, if necessary, to the nearest 1/100th of 1%) in
effect on the date the LIBOR Base Rate for that LIBOR Loan is
determined (whether or not applicable to any Lender) under
regulations issued from time to time by the Federal Reserve
Board for determining the maximum reserve requirement
(including any emergency, supplemental or other marginal
reserve requirement) with respect to eurocurrency funding
(currently referred to as "eurocurrency liabilities") having a
term comparable to the Interest Period for such LIBOR Loan.
The determination by the Administrative Agent of any applicable
Reserve Percentage shall be conclusive in the absence of
manifest error.
"RESPONSIBLE OFFICIAL" means (a) when used with reference
to a Person other than an individual, any officer of such
Person, general partner of such Person, officer of a corporate
general partner of such Person, or corporate officer of a
corporate general partner of a partnership that is a general
partner of such Person, or any other responsible official
thereof duly acting on behalf thereof, and (b) when used with
reference to a Person who is an individual, such Person. Any
document or certificate hereunder that is signed or executed by
a Responsible Official of another Person shall be conclusively
presumed to have been authorized by all necessary corporate,
partnership and/or other action on the part of such other
Person.
"RIGHT OF OTHERS" means, as to any Property in which a
Person has an interest, any legal or equitable right, title or
other interest (other than a Lien) held by any other Person in
that Property, and any option or right held by any other Person
to acquire any such right, title or other interest in that
Property, INCLUDING any option or right to acquire a Lien.
"SECURED SWAP AGREEMENT" means a Swap Agreement between
Borrower and a Lender.
"SECURITY AGREEMENT" means the security agreement executed
and
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delivered by Borrower on the Closing Date, either as
originally executed or as it may from time to time be
supplemented, modified, amended, extended or supplanted.
"SENIOR DEBT" means, as of each date of determination,
Total Debt MINUS Subordinated Obligations.
"SENIOR LEVERAGE RATIO" means, as of the last day of each
Fiscal Quarter, the ratio of (a) the average principal amount
of the outstanding Senior Debt as of the last day of each of
the three constituent calendar months in that Fiscal Quarter,
to (b) Annualized EBITDA as of such date.
"SENIOR OFFICER" means the (a) chief executive officer,
(b) president, (c) any vice president, (d) chief financial
officer, (e) treasurer or (f) assistant treasurer of the Person
designated.
"SPECIAL LIBOR CIRCUMSTANCE" means the application or
adoption after the Closing Date of any Law or interpretation,
or any change therein or thereof, or any change in the
interpretation or administration thereof by any Governmental
Agency, central bank or comparable authority charged with the
interpretation or administration thereof, or compliance by any
Lender or its LIBOR Office with any request or directive
(whether or not having the force of Law) of any such
Governmental Agency, central bank or comparable authority, or
the existence or occurrence of circumstances affecting the
Designated Eurodollar Market generally that are beyond the
reasonable control of the Lenders.
"SUBORDINATED OBLIGATIONS" means (a) the Indebtedness of
Borrower pursuant to the Indenture, and (B) any other
Indebtedness of Borrower which is subordinated in right of
payment to the Obligations, the terms of which are approved by
the Administrative Agent, acting with the consent of the
Requisite Lenders, in writing.
"SUBORDINATION AGREEMENT" means the Subordination
Agreement, executed by Xxxxx X. Xxxxxx regarding Supervisory
Fees on the Closing Date, either as originally executed or as
it may from time to time be supplemented, modified, amended,
extended or supplanted.
"SUBSIDIARY" means, as of any date of determination and
with respect to any Person, any corporation, limited liability
company or partnership (whether or not, in either case,
characterized as such or as a "joint venture"), whether now
existing or hereafter organized or acquired: (a) in the case
of a corporation or limited liability company, of which a
majority of the securities having ordinary voting power for the
election of directors or other governing body (other than
securities having such power only by reason of the happening of
a contingency) are at the time beneficially owned by such
Person and/or one or more Subsidiaries of such Person, or
(b) in the case of a partnership, of which a majority of the
partnership or other ownership interests are at the time
beneficially owned by such Person and/or one or more of its
Subsidiaries.
"SUPERVISORY FEES" means fees paid to Xxxxx X. Xxxxxx on a
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monthly basis pursuant to the Amended and Restated Supervisory
Agreement dated as of October 21, 1997, between Xxxxx X. Xxxxxx
and Borrower, as in effect on the Closing Date.
"SWAP AGREEMENT" means a written agreement between
Borrower and one or more financial institutions providing for
"swap", "cap", "collar" or other interest rate protection with
respect to any Indebtedness.
"SWING LINE" means the revolving line of credit
established by the Swing Line Lender in favor of Borrower
pursuant to Section 2.9.
"SWING LINE ADVANCES" means loans made by the Swing Line
Lender to Borrower pursuant to Section 2.9.
"SWING LINE LENDER" means Bank of America, through its
Nevada Commercial Banking Division, or any successor thereto.
"SWING LINE DOCUMENTS" means the $2,000,000 promissory
note of even date herewith (as at any time amended) and any
other documents executed by Borrower in favor of the Swing Line
Lender in connection with the Swing Line.
"SWING LINE OUTSTANDINGS" means, as of any date of
determination, the aggregate principal Indebtedness of Borrower
on all Swing Line Loans then outstanding.
"TIMETABLE" means the construction timetable attached
hereto as Schedule 1.1B, together with any modifications
thereto approved by the Requisite Lenders.
"TITLE COMPANY" means Commonwealth Land Title Insurance
Company or such other title insurance company as is reasonably
acceptable to the Administrative Agent.
"TOTAL DEBT" means, as of each date of determination, the
aggregate principal Indebtedness of Borrower and its
Subsidiaries for borrowed money and Capital Lease Obligations
on that date (including any Contingent Obligations in support
of such Indebtedness or Capital Lease Obligations to the extent
then required by Borrower's independent auditors to be shown on
Borrower's consolidated balance sheet as of that date in
accordance with Generally Accepted Accounting Principles).
"TOTAL LEVERAGE RATIO" means, as of the last day of each
Fiscal Quarter, the ratio of (a) the average principal amount
of the outstanding Total Debt as of the last day of each of the
three constituent calendar months in that Fiscal Quarter, to
(b) Annualized EBITDA as of such date.
"TO THE BEST KNOWLEDGE OF" means, when modifying a representation,
warranty or other statement or any Person, that the fact or situation
described therein is known by the Person (or, in the case of a Person
other than a natural Person, known by a Responsible Official of that
Person) making the representation,
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warranty or other statement, or with the exercise of reasonable due
diligence under the circumstances (in accordance with the standard of what
a reasonable Person in similar circumstances would have done) would have
been known by the Person (or, in the case of a Person other than a natural
Person, would have been known by a Responsible Official of that Person).
"TRADEMARK ASSIGNMENT" means the Trademark Security
Interest Assignment, executed by Borrower on the Closing Date,
either as originally executed or as it may from time to time be
supplemented, modified, amended, extended or supplanted.
"TRIGGER DATE" means the date, not earlier than one year
following the Opening, upon which Borrower has delivered a
Compliance Certificate indicating that the Total Leverage Ratio
as of that date is less than 4.25:1.00.
"TYPE", when used with respect to any Loan or Advance,
means the designation of whether such Loan or Advance is a Base
Rate Loan or Advance, or a LIBOR Loan or Advance.
"UNRELATED PERSON" means any Person OTHER THAN (i) an
employee stock ownership plan or other employee benefit plan
covering the employees of Borrower and its Subsidiaries or
(ii) an Affiliate of any Person or group of related Persons
which as of the date of this Agreement is the beneficial owner
of 25% or more (in the aggregate) of the outstanding common
stock of Borrower.
1.2 USE OF DEFINED TERMS. Any defined term used in the
plural shall refer to all members of the relevant class, and any
defined term used in the singular shall refer to any one or more of
the members of the relevant class.
1.3 ACCOUNTING TERMS. All accounting terms not
specifically defined in this Agreement shall be construed in
conformity with, and all financial data required to be submitted by
this Agreement shall be prepared in conformity with, Generally
Accepted Accounting Principles applied on a consistent basis, EXCEPT
as otherwise specifically prescribed herein. In the event that
Generally Accepted Accounting Principles change during the term of
this Agreement such that the covenants contained in Sections 6.12
through 6.14 would then be calculated in a different manner or with
different components, (a) Borrower and the Lenders agree to amend this
Agreement in such respects as are necessary to conform those covenants
as criteria for evaluating Borrower's financial condition to
substantially the same criteria as were effective prior to such change
in Generally Accepted Accounting Principles and (b) Borrower shall be
deemed to be in compliance with the covenants contained in the
aforesaid Sections during the 120-day period following any such change
in Generally Accepted Accounting Principles if and to the extent that
Borrower would have been in compliance therewith under Generally
Accepted Accounting Principles as in effect immediately prior to such
change.
1.4 ROUNDING. Any financial ratios required to be
maintained by Borrower pursuant to this Agreement shall be calculated
by dividing the appropriate component by the other component, carrying
the result to one place more than the number of places by which such
ratio is expressed in
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this Agreement and rounding the result up or down to the nearest number (with
a round-up if there is no nearest number) to the number of places by which
such ratio is expressed in this Agreement.
1.5 EXHIBITS AND SCHEDULES. All Exhibits and Schedules
to this Agreement, either as originally existing or as the same may
from time to time be supplemented, modified or amended, are
incorporated herein by this reference.
1.6 REFERENCES TO "BORROWER AND ITS SUBSIDIARIES". Any
reference herein to "Borrower and its Subsidiaries" or the like shall
refer solely to Borrower during such times as Borrower shall have no
Subsidiaries. No use of the term "Subsidiary" or any derivative
thereof in the Loan Documents shall imply a right in Borrower to make
any Investments in or Acquisitions of any Person.
1.7 REFERENCES TO TIMES. Each reference to a time of day
set forth in the Loan Documents shall, unless expressly stated to the
contrary, be a reference to the then prevailing time in the city in
which the Administrative Agent's Office is located.
1.8 MISCELLANEOUS TERMS. The term "or" is disjunctive;
the term "and" is conjunctive. The term "shall" is mandatory; the
term "may" is permissive. Masculine terms also apply to females;
feminine terms also apply to males. The term "including" is by way of
example and not limitation.
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Article 2
LOANS
2.1 LOANS-GENERAL.
(a) Subject to the terms and conditions set forth in
this Agreement, from time to time from the Closing Date through
the Maturity Date each Lender shall, pro rata according to that
Lender's Pro Rata Share of the then applicable Commitment, make
revolving Advances to Borrower under the Commitment in such
amounts as Borrower may request that do not result in the
Outstanding Obligations being in excess of the Commitment.
Subject to the limitations set forth herein, Borrower may
borrow, repay and reborrow under the Commitment without premium
or penalty.
(b) Subject to the next sentence, each Loan shall be
made pursuant to a Request for Loan which shall specify the
requested (i) date of such Loan, (ii) type of Loan,
(iii) amount of such Loan, and (iv) in the case of a LIBOR
Loan, the Interest Period for such Loan. Unless the
Administrative Agent has previously notified Borrower to the
contrary (which notice may be given in the sole and absolute
discretion of the Administrative Agent), Loans may be requested
by telephone by a Responsible Official of Borrower, in which
case Borrower shall confirm such request by promptly delivering
a Request for Loan in person or by telecopier conforming to the
preceding sentence to the Administrative Agent. Neither the
Administrative Agent nor any Lender shall incur any liability
whatsoever hereunder in acting upon any telephonic request for
a Loan purportedly made by a Responsible Official of Borrower,
which hereby agrees to indemnify the Administrative Agent and
the Lenders from any loss, cost, expense or liability as a
result of so acting.
(c) Promptly following receipt of a Request for
Loan, the Administrative Agent shall notify each Lender by
telephone or telecopier (and if by telephone, promptly
confirmed by telecopier) of the date and type of the Loan, the
applicable Interest Period, and that Lender's Pro Rata Share of
the Loan. Not later than 11:00 a.m. on the date specified for
any Loan (which must be a Banking Day), each Lender shall make
its Pro Rata Share of the Loan in immediately available funds
available to the Administrative Agent at the Administrative
Agent's Office. Upon satisfaction or waiver of the applicable
conditions set forth in Article 8, all Advances shall be
credited on that date in immediately available funds to the
Disbursement Account.
(d) Unless the Requisite Lenders otherwise consent,
each Loan shall be in an amount which is an integral multiple
of $500,000 which, in the case of any LIBOR Loan, is not less
than $1,000,000.
(e) The Advances made by each Lender shall be
evidenced by that Lender's Note.
(f) A Request for Loan shall be irrevocable upon the
Administrative Agent's receipt thereof (or, in the case of a
telephonic request for Loan referred to in the second sentence
of Section 2.1(b), upon the Administrative Agent's receipt of
that
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telephone call).
(g) If no Request for Loan (or telephonic request
for Loan referred to in the second sentence of Section 2.1(b),
if applicable) has been made within the requisite notice
periods set forth in Section 2.2 or 2.3 in connection with a
Loan which, if made and giving effect to the application of the
proceeds thereof, would not increase the outstanding principal
Indebtedness evidenced by the Notes, then Borrower shall be
deemed to have requested, as of the date upon which the related
then outstanding Loan is due pursuant to Section 3.1(e), a Base
Rate Loan in an amount equal to the amount necessary to cause
the outstanding principal Indebtedness evidenced by the Notes
to remain the same and the Lenders shall make the Advances
necessary to make such Loan notwithstanding Sections 2.1(b),
2.2 and 2.3.
(h) If a Loan is to be made on the same date that
another Loan is due and payable, Borrower or the Lenders, as
the case may be, shall at the request of the Administrative
Agent make available to the Administrative Agent the net amount
of funds giving effect to both such Loans and the effect for
purposes of this Agreement shall be the same as if separate
transfers of funds had been made with respect to each such
Loan.
2.2 BASE RATE LOANS. Each request by Borrower for a Base
Rate Loan shall be made pursuant to a Request for Loan (or telephonic
or other request for loan referred to in the second sentence of
Section 2.1(b), if applicable) received by the Administrative Agent,
at the Administrative Agent's Office, not later than 10:00 a.m. on the
date (which must be a Banking Day) of the requested Base Rate Loan.
All Loans shall constitute Base Rate Loans unless properly designated
as LIBOR Loans pursuant to Section 2.3.
2.3 LIBOR LOANS.
(a) Each request by Borrower for a LIBOR Loan shall
be made pursuant to a Request for Loan (or telephonic or other
request for Loan referred to in the second sentence of
Section 2.1(b), if applicable) received by the Administrative
Agent, at the Administrative Agent's Office, not later than
10:00 a.m. at least three Market Days before the first day of
the applicable Interest Period.
(b) On the date which is two Market Days before the
first day of the applicable Interest Period, the Administrative
Agent shall confirm its determination of the applicable LIBOR
(which determination shall be conclusive in the absence of
manifest error) and promptly shall give notice of the same to
Borrower and the Lenders by telephone or telecopier (and if by
telephone, promptly confirmed by telecopier).
(c) Unless the Administrative Agent and the
Requisite Lenders otherwise consent, no more than twelve LIBOR
Loans shall be outstanding at any one time.
(d) No LIBOR Loan may be requested where a Default
or Event of Default has occurred and remains continuing.
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(e) Nothing contained herein shall require any
Lender to fund any LIBOR Advance in the Designated Eurodollar
Market.
2.4 LETTERS OF CREDIT.
(a) Subject to the terms and conditions hereof, at
any time and from time to time from the Closing Date through
the Banking Day immediately prior to the Maturity Date, the
Issuing Lender shall issue such Letters of Credit under the
Commitment as Borrower may request by a Request for Letter of
Credit; PROVIDED that (i) giving effect to all such Letters of
Credit, the Outstanding Obligations do not exceed the then
applicable Commitment and (ii) the Aggregate Effective Amount
under all outstanding Letters of Credit shall not exceed
$2,000,000. Each Letter of Credit shall be in a form
reasonably acceptable to the Issuing Lender. Unless all the
Lenders otherwise consent in a writing delivered to the
Administrative Agent, no Letter of Credit shall have a term
which exceeds one year or extends beyond the Maturity Date.
(b) Each Request for Letter of Credit shall be
submitted to the Issuing Lender, with a copy to the
Administrative Agent, at least two Banking Days prior to the
date upon which the related Letter of Credit is proposed to be
issued. The Administrative Agent shall promptly notify the
Issuing Lender whether such Request for Letter of Credit, and
the issuance of a Letter of Credit pursuant thereto, conforms
to the requirements of this Agreement. Upon issuance of a
Letter of Credit, the Issuing Lender shall promptly notify the
Administrative Agent, who shall promptly notify the Lenders, of
the amount and terms thereof.
(c) Upon the issuance of a Letter of Credit, each
Lender shall be deemed to have purchased a pro rata
participation in such Letter of Credit from the Issuing Lender
in an amount equal to that Lender's Pro Rata Share. Without
limiting the scope and nature of each Lender's participation in
any Letter of Credit, to the extent that the Issuing Lender has
not been reimbursed by Borrower for any payment required to be
made by the Issuing Lender under any Letter of Credit, each
Lender shall, pro rata according to its Pro Rata Share, pay the
purchase price for such participation to the Issuing Lender
through the Administrative Agent promptly upon demand therefor.
The obligation of each Lender to so pay the participation
purchase price to the Issuing Lender shall be absolute and
unconditional and shall not be affected by the occurrence of an
Event of Default or any other occurrence or event. Any such
payment of the purchase price shall not relieve or otherwise
impair the obligation of Borrower to reimburse the Issuing
Lender for the amount of any payment made by the Issuing Lender
under any Letter of Credit together with interest as
hereinafter provided.
(d) Borrower agrees to pay to the Issuing Lender
through the Administrative Agent an amount equal to any payment
made by the Issuing Lender with respect to each Letter of
Credit upon demand by the Issuing Lender therefor, together
with interest on such amount from the date of any payment made
by the Issuing Lender at the Default Rate. The principal
amount of any such payment shall be used to reimburse the
Issuing Lender for the payment made by it under the Letter of
Credit and, to the extent that the Lenders have not reimbursed
the Issuing Lender pursuant to Section 2.4(c), the
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interest amount of any such payment shall be for the account of the
Issuing Lender. Each Lender that has paid the participation
purchase price to the Issuing Lender pursuant to Section 2.4(c)
shall thereupon acquire a pro rata participation, to the extent
of such payment, in the claim of the Issuing Lender against
Borrower for reimbursement of principal and interest under this
Section 2.4(d) and shall share, in accordance with that
pro rata participation, in any principal payment made by
Borrower with respect to such claim and in any interest payment
made by Borrower (but only with respect to periods subsequent
to the date such Lender paid the participation purchase price
to the Issuing Lender) with respect to such claim.
(e) Borrower may, pursuant to a Request for Loan,
request that Advances be made pursuant to Section 2.1(a) to
provide funds for the payment required by Section 2.4(d) and,
for this purpose, the conditions precedent set forth in
Article 8 shall not apply. The proceeds of such Advances shall
be paid directly to the Issuing Lender to reimburse it for the
payment made by it under the Letter of Credit.
(f) If Borrower fails to make the payment required
by Section 2.4(d) on a timely basis then, in lieu of the
payment of the participation purchase price to the Issuing
Lender under Section 2.4(c), the Issuing Lender may (but is not
required to), without notice to or the consent of Borrower,
instruct the Administrative Agent to cause Base Rate Advances
to be made by the Lenders under their Pro Rata Shares of the
Commitment in an aggregate amount equal to the amount paid by
the Issuing Lender with respect to that Letter of Credit and,
for this purpose, the conditions precedent to Advances set
forth in Article 8 shall not apply. The proceeds of such
Advances shall be paid directly to the Issuing Lender to
reimburse it for the payment made by it under the Letter of
Credit.
(g) The issuance of any supplement, modification,
amendment, renewal, or extension to or of any Letter of Credit
shall be treated in all respects the same as the issuance of a
new Letter of Credit, PROVIDED that this clause (g) shall not
require the payment of any letter of credit fees except to the
extent that such supplementation, modification, amendment,
renewal or extension results in an increase to the amount of
the related Letter of Credit or any extension of its tenor.
(h) The obligation of Borrower to pay to the Issuing
Lender the amount of any payment made by the Issuing Lender
under any Letter of Credit shall be absolute, unconditional,
and irrevocable, subject only to performance by the Issuing
Lender of its obligations to Borrower under Uniform Commercial
Code Section 5109, as in effect in the State of Nevada.
Without limiting the foregoing, the obligations of Borrower to
the Issuing Lender shall not be affected by any of the
following circumstances:
(i) any lack of validity or enforceability of the
Letter of Credit, this Agreement, or any other Agreement or
instrument relating thereto;
(ii) any amendment or waiver of the terms of the
Letter of Credit, or any consent to departure from the
Letter of Credit, this Agreement, or any other Agreement or
instrument
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relating thereto;
(iii) the existence of any claim, setoff, defense,
or other rights which Borrower may have at any time against
any Creditor, any beneficiary of the Letter of Credit (or
any persons or entities for whom any such beneficiary may be
acting) or any other Person, whether in connection with the
Letter of Credit, this Agreement, or any other Agreement or
instrument relating thereto, or any unrelated transactions;
(iv) any demand, statement, or any other document
presented under the Letter of Credit proving to be forged,
fraudulent, invalid, or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect
whatsoever so long as any such document appeared to comply
with the terms of the Letter of Credit;
(v) payment by the Issuing Lender in good faith
under the Letter of Credit against presentation of a draft
or any accompanying document which does not strictly comply
with the terms of the Letter of Credit;
(vi) the existence, character, quality, quantity,
condition, packing, value or delivery of any Property
purported to be represented by documents presented in
connection with any Letter of Credit or any difference
between any such Property and the character, quality,
quantity, condition, or value of such Property as described
in such documents;
(vii) the time, place, manner, order or contents of
shipments or deliveries of Property as described in
documents presented in connection with any Letter of Credit
or the existence, nature and extent of any insurance
relative thereto;
(viii) the solvency or financial responsibility of
any party issuing any documents in connection with a Letter
of Credit;
(ix) any failure or delay in notice of shipments
or arrival of any Property;
(x) any error in the transmission of any message
relating to a Letter of Credit, or any delay or interruption
in any such message, not caused by the Issuing Lender;
(xi) any error, neglect or default of any
correspondent of the Issuing Lender in connection with a
Letter of Credit (but without prejudice to any claim by
Borrower against such correspondent);
(xii) any consequence arising from acts of God,
war, insurrection, civil unrest, disturbances, labor
disputes, emergency conditions or other causes beyond the
control of the Issuing Lender;
(xiii) so long as the Issuing Lender in good faith
determines that the contract or document appears to comply
with the terms of the Letter of Credit, the form, accuracy,
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genuineness or legal effect of any contract or document
referred to in any document submitted to the Issuing Lender
in connection with a Letter of Credit; and
(xiv) where the Issuing Lender has acted in good
faith and observed general banking usage, any other
circumstances whatsoever.
(i) The Issuing Lender shall be entitled to the
protection accorded to the Administrative Agent pursuant to
Article 10, mutatis mutandis.
(j) The Uniform Customs and Practice for Documentary
Credits, as published in its most current version by the
International Chamber of Commerce, shall be deemed a part of
this Section and shall apply to all Letters of Credit to the
extent not inconsistent with applicable Law.
2.5 VOLUNTARY REDUCTION OF COMMITMENT. Borrower shall
have the right, at any time and from time to time, without penalty or
charge, upon at least three Banking Days' prior written notice by
Borrower to the Administrative Agent, to voluntarily reduce,
permanently and irrevocably, in amounts which are integral multiples
of $500,000, or to terminate, all or a portion of the then undisbursed
portion of the Commitment, PROVIDED that any such reduction or
termination shall be accompanied by payment of all accrued and unpaid
commitment fees with respect to the portion of the Commitment being
reduced or terminated. Concurrently with the making of any such
reduction in the Commitment, Borrower may specify that the Reduction
Amounts for one or more Reduction Dates will be reduced in an
aggregate amount which is the same as the amount of the reduction of
the Commitment, PROVIDED that in the absence of a timely specification
to this effect by Borrower, each such reduction shall be applied to
Reduction Amounts in the inverse order of their occurrence. The
Administrative Agent shall promptly notify the Lenders of any
reduction or termination of the Commitment under this Section, and of
any changes to the Reduction Amounts.
2.6 SCHEDULED MANDATORY REDUCTIONS OF COMMITMENT. The
Commitment shall automatically and permanently reduce on each
Reduction Date by the related Reduction Amount.
2.7 OTHER MANDATORY REDUCTIONS OF COMMITMENT. The
Commitment shall automatically and permanently reduce (a) on April 1,
2000 by an amount equal to 80% of Excess Cash Flow for the Fiscal Year
ending November 30, 1999, and thereafter on each April 1 by an amount
equal to 80% of Excess Cash Flow for the then most recently ended
Fiscal Year, and (b) upon receipt by Borrower or any of its
Subsidiaries thereof, by an amount equal to 100% of the Net Cash
Proceeds from offerings of Indebtedness or equity securities of
Borrower or its Subsidiaries; PROVIDED, however, that the requirements
of this Section shall terminate on the Trigger Date. The Commitment
shall also automatically and permanently reduce on the date of any
payment by Xxxxx Xxxxxx under the Make Well Agreement in the amount of
such payment. Each reduction of the Commitment pursuant to this
Section 2.7 shall be applied to Reduction Amounts in the inverse order
of their occurrence.
2.8 ADMINISTRATIVE AGENT'S RIGHT TO ASSUME FUNDS
AVAILABLE FOR ADVANCES. Unless the Administrative Agent shall have
been notified by a Lender no later than the Banking Day prior to the
funding by the
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Administrative Agent of any Loan that such Lender does not intend to make
available to the Administrative Agent such Lender's Pro Rata Share of that
Loan, the Administrative Agent may assume that such Lender has made such
amount available to the Administrative Agent on the date of the Loan and the
Administrative Agent may, in reliance upon such assumption, make available to
Borrower a corresponding amount. If the Administrative Agent has made funds
available to Borrower based on such assumption and such corresponding amount
is not in fact made available to the Administrative Agent by such Lender, the
Administrative Agent shall be entitled to recover such corresponding amount
on demand from such Lender. If such Lender does not pay such corresponding
amount forthwith upon the Administrative Agent's demand therefor, the
Administrative Agent promptly shall notify Borrower and Borrower shall pay
such corresponding amount to the Administrative Agent. The Administrative
Agent also shall be entitled to recover from such Lender interest on such
corresponding amount in respect of each day from the date such corresponding
amount was made available by the Administrative Agent to Borrower to the date
such corresponding amount is recovered by the Administrative Agent, at a rate
per annum equal to (a) the Federal Funds Rate for the first two days
following a demand by the Administrative Agent and (b) thereafter, the rate
of interest then payable by Borrower with respect to Base Rate Advances.
Nothing herein shall be deemed to relieve any Lender from its obligation to
fulfill its share of the Commitment or to prejudice any rights which the
Administrative Agent or Borrower may have against any Lender as a result of
any default by such Lender hereunder.
2.9 SWING LINE. Subject to the terms and conditions set
forth herein, from time to time through the day prior to the Maturity
Date the Swing Line Lender shall make Swing Line Advances to Borrower
in such amounts as Borrower may request that do not result in the
Outstanding Obligations being in excess of the then applicable
Commitment, PROVIDED that (i) giving effect to such Swing Line
Advance, the Swing Line Outstandings shall not exceed $2,000,000 and
(ii) without the consent of all of the Lenders, no Swing Line Advance
may be made during the continuation of a Default or an Event of
Default. Borrower may borrow, repay and reborrow under this Section.
Unless the Swing Line Lender otherwise agrees, each Swing Line Advance
shall be in an amount which is an integral multiple of $100,000 and
shall be made pursuant to a telephonic request by a Responsible
Official of Borrower made to the Swing Line Lender not later than
3:00 p.m., Las Vegas time, on the Banking Day of the requested
borrowing (which telephonic request shall be promptly confirmed in
writing by telecopier with a copy submitted by telecopier to the
Administrative Agent). Promptly after receipt of such a request for
borrowing, the Swing Line Lender shall obtain telephonic verification
from the Administrative Agent that, giving effect to such request,
availability for Loans will exist under Section 2.1 (and such
verification shall be promptly confirmed in writing by telecopier).
Unless the Swing Line Lender otherwise agrees, each repayment of a
Swing Line Advance shall be in an amount which is an integral multiple
of $100,000. If Borrower instructs the Swing Line Lender to debit its
demand deposit account at the Swing Line Lender in the amount of any
payment with respect to a Swing Line Advance, or the Swing Line Lender
otherwise receives repayment, after 3:00 p.m., Las Vegas time, on a
Banking Day, such payment shall be deemed received on the next Banking
Day. The Swing Line Lender shall promptly notify the Administrative
Agent of the Swing Line Outstandings each time there is a change
therein.
Swing Line Advances shall bear interest at a fluctuating
rate per annum equal to the Base Rate PLUS the Base Rate Margin,
payable upon
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demand or at such intervals as may be specified by the
Swing Line Lender and in any event on the Maturity Date. The Swing
Line Lender shall be responsible for invoicing Borrower for such
interest. The interest payable on Swing Line Advances shall be solely
for the account of the Swing Line Lender, except to the extent that
any Lender has funded the participation purchased by that Lender in
accordance with this Section.
The Swing Line Advances shall be payable on demand made by
the Swing Line Lender and in any event on the Maturity Date.
Upon the making of a Swing Line Advance, each Lender shall
be deemed to have purchased from the Swing Line Lender a participation
therein in an amount equal to that Lender's Pro Rata Share TIMES the
amount of the Swing Line Advance. Upon demand made by the Swing Line
Lender through the Administrative Agent, each Lender shall, according
to its Pro Rata Share, promptly provide to the Administrative Agent
for the account of the Swing Line Lender its purchase price therefor
in an amount equal to its participation therein. The obligation of
each Lender to so provide its purchase price to the Swing Line Lender
with respect to any Swing Line Advance made in accordance with the
terms hereof shall be absolute and unconditional and shall not be
affected by the occurrence of a Default or Event of Default or any
other occurrence or event.
In the event that there are Swing Line Outstandings on
three consecutive Banking Days, then on the next Banking Day (unless
Borrower has made other arrangements acceptable to the Swing Line
Lender to repay the Swing Line Outstandings in full), Borrower shall
request a Loan pursuant to Section 2.1(a) in an amount complying with
Section 2.1(d) and sufficient to repay the Swing Line Outstandings in
full. The Administrative Agent shall automatically provide such
amount to the Swing Line Lender (which the Swing Line Lender shall
then apply to the Swing Line Outstandings) and credit any balance of
the Loan in immediately available funds to the Disbursement Account.
In the event that Borrower fails to request a Loan within the time
specified by Section 2.2 on any such date, the Administrative Agent
may, but is not required to, without notice to or the consent of
Borrower, cause Advances to be made by the Lenders under the
Commitment in the amount necessary to comply with Section 2.1(d) and
sufficient to repay all Swing Line Outstandings and, for this purpose,
the conditions precedent set forth in Article 8 shall not apply. The
proceeds of such Advances shall be paid to the Swing Line Lender for
application to the Swing Line Outstandings.
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Article 3
PAYMENTS AND FEES
3.1 PRINCIPAL AND INTEREST.
(a) Interest shall be payable on the outstanding
daily unpaid principal amount of each Advance from the date
thereof until payment in full is made and shall accrue and be
payable at the rates set forth or provided for herein before
and after default, before and after maturity, before and after
judgment, and before and after the commencement of any
proceeding under any Debtor Relief Law, with interest on
overdue interest at the Default Rate to the fullest extent
permitted by applicable Laws.
(b) Interest accrued on each Base Rate Loan on the
last Banking Day of each calendar month, and on the date of any
prepayment of the Notes pursuant to Section 3.1(f), shall be
due and payable on that day. EXCEPT as otherwise provided in
Section 3.9, the unpaid principal amount of each Base Rate Loan
shall bear interest at a fluctuating rate per annum equal to
the Base Rate PLUS the Base Rate Margin. Each change in the
interest rate under this Section 3.1(b) due to a change in the
Base Rate shall take effect simultaneously with the
corresponding change in the Base Rate.
(c) Interest accrued on each LIBOR Loan which is for
a term of three months or less shall be due and payable on the
last day of the related Interest Period. Interest accrued on
each other LIBOR Loan shall be due and payable on the date
which is three months after the date such LIBOR Loan was made
and on the last day of the related Interest Period. EXCEPT as
otherwise provided in Sections 3.1(d) and 3.9, the unpaid
principal amount of any LIBOR Loan shall bear interest at a
rate per annum equal to the LIBOR for that LIBOR Loan PLUS the
LIBOR Margin.
(d) During the existence of a Default or Event of
Default, the Requisite Lenders may determine that any or all
then outstanding LIBOR Loans shall be converted to Base Rate
Loans. Such conversion shall be effective upon notice to
Borrower from the Requisite Lenders (or from the Administrative
Agent on behalf of the Requisite Lenders) and shall continue so
long as such Default or Event of Default continues to exist.
(e) If not sooner paid, the principal Indebtedness
evidenced by the Notes shall be payable as follows:
(i) the principal amount of each LIBOR Loan shall
be payable on the last day of the Interest Period for such
Loan (PROVIDED that such principal amount may be paid using
the proceeds of a Base Rate Loan made pursuant to Section
2.1(g));
(ii) the amount, if any, by which the Outstanding
Obligations at any time exceed the Commitment shall be
payable immediately;
(iii) the principal Indebtedness evidenced by the
Notes shall be immediately payable in the amount of any
payment made by Xxxxx Xxxxxx pursuant to the Make Well
Agreement; and
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(iv) the principal Indebtedness evidenced by the
Notes and the Swing Line Documents shall in any event be
payable on the Maturity Date.
(f) The Notes may, at any time and from time to
time, voluntarily be paid or prepaid in whole or in part
without premium or penalty, EXCEPT that with respect to any
voluntary prepayment under this Section (i) any partial
prepayment shall be not less than $500,000, (ii) the
Administrative Agent shall have received written notice of any
prepayment by 10:00 a.m. on the Banking Day prior to such
prepayment (which must be a Banking Day) in the case of a Base
Rate Loan, and, in the case of a LIBOR Loan, three Market Days
before the date of prepayment, which notice shall identify the
date and amount of the prepayment and the Loans being prepaid,
(iii) each prepayment of principal shall be accompanied by
payment of interest accrued to the date of payment on the
amount of principal paid and (iv) any payment or prepayment of
all or any part of any LIBOR Loan on a day other than the last
day of the applicable Interest Period shall be subject to
Section 3.8(d).
3.2 UPFRONT FEES. On the Closing Date, Borrower shall
pay to the Arranger upfront fees in the respective amounts heretofore
agreed upon by a letter agreement among Borrower and the
Administrative Agent. The fees are for the account of the Lenders in
accordance with their separate agreements with the Arranger. The
upfront fees are for the credit facilities provided to Borrower under
this Agreement, are fully earned as of the Closing Date and are
nonrefundable.
3.3 COMMITMENT FEES. From the Closing Date, Borrower
shall pay to the Administrative Agent, for the ratable accounts of the
Lenders according to their Pro Rata Shares, a commitment fee equal to
the then applicable Commitment Fee Rate per annum TIMES the average
daily amount by which (a) the Commitment exceeds (b) the SUM OF (i)
the aggregate principal Indebtedness outstanding under the Notes
(exclusive of the Swing Line Outstandings) PLUS (ii) the Aggregate
Effective Amount. Commitment fees shall be payable quarterly in
arrears on each Quarterly Payment Date, on the date of any reduction
or termination of the Commitment pursuant to Sections 2.5, 2.6, 2.7 or
2.8, and on the Maturity Date.
3.4 LETTER OF CREDIT FEES. With respect to each Letter
of Credit, Borrower shall pay the following fees:
(a) to the Issuing Lender for its sole account, a
fronting fee payable in an amount and at such times as set
forth in a letter agreement between Borrower and the Issuing
Lender;
(b) on the issuance date of each Letter of Credit, a
risk participation fee in an amount equal to the face amount of
the Letter of Credit TIMES the then applicable LIBOR Margin,
which the Administrative Agent shall promptly pay to the
Lenders; and
(c) concurrently with each issuance, negotiation,
drawing or amendment of each Letter of Credit, to the Issuing
Lender for the sole account of the Issuing Lender, issuance,
negotiation, drawing and amendment fees in the amounts set
forth from time to time as the Issuing Lender's published
scheduled fees for such services.
Each of the fees payable with respect to Letters of Credit under this
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Section is earned when due and is nonrefundable.
3.5 AGENCY MANAGEMENT FEES. Borrower shall pay to the
Administrative Agent an agency management fee in such amounts and at
such times as heretofore agreed upon by letter agreement between
Borrower and the Administrative Agent. This fee is for the services
to be performed by the Administrative Agent in acting as
Administrative Agent and is fully earned on the date paid. The agency
fee paid to the Administrative Agent is solely for its own account and
is nonrefundable.
3.6 CONSTRUCTION SERVICES FEES. Borrower shall pay to
Bank of America a construction services fee in such amounts and at
such times as heretofore agreed upon by letter agreement between
Borrower and CSG. The construction services fees are for the services
to be performed by CSG and each installment is fully earned on the
date paid. The construction services fees are solely for the account
of CSG and are nonrefundable.
3.7 INCREASED COMMITMENT COSTS. If any Lender shall
determine in good faith that the introduction after the Closing Date
of any applicable law, rule, regulation or guideline regarding capital
adequacy, or any change therein or any change in the interpretation or
administration thereof by any central bank or other Governmental
Agency charged with the interpretation or administration thereof, or
compliance by such Lender (or its LIBOR Office) or any corporation
controlling the Lender, with any request, guideline or directive
regarding capital adequacy (whether or not having the force of law) of
any such central bank or other authority, affects or would affect the
amount of capital required or expected to be maintained by such Lender
or any corporation controlling such Lender and (taking into
consideration such Lender's or such corporation's policies with
respect to capital adequacy and such Lender's desired return on
capital) determines in good faith that the amount of such capital is
increased, or the rate of return on capital is reduced, as a
consequence of its obligations under this Agreement, then, within
ten Banking Days after demand of such Lender, Borrower shall pay to
such Lender, from time to time as specified in good faith by such
Lender, additional amounts sufficient to compensate such Lender in
light of such circumstances, to the extent reasonably allocable to
such obligations under this Agreement. Each Lender's determination of
such amounts shall be conclusive in the absence of manifest error.
3.8 LIBOR COSTS AND RELATED MATTERS.
(a) If, after the date hereof, the existence or
occurrence of any Special LIBOR Circumstance:
(1) shall subject any Lender or its LIBOR
Office to any tax, duty or other charge or cost with
respect to any LIBOR Advance, any of its Notes evidencing
LIBOR Loans or its obligation to make LIBOR Advances, or
shall change the basis of taxation of payments to any
Lender attributable to the principal of or interest on any
LIBOR Advance or any other amounts due under this
Agreement in respect of any LIBOR Advance, any of its
Notes evidencing LIBOR Loans or its obligation to make
LIBOR Advances, EXCLUDING, in the case of each Lender, the
Administrative Agent and each Eligible Assignee, and any
Affiliate or LIBOR Office thereof, (i) taxes imposed on or
measured in whole or in part by its overall net income,
gross income or gross receipts or capital and franchise
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taxes imposed on it, by (A) any jurisdiction (or political
subdivision thereof) in which it is organized or maintains
its principal office or LIBOR Office or (B) any
jurisdiction (or political subdivision thereof) in which
it is "doing business" (unless it would not be doing
business in such jurisdiction (or political subdivision
thereof) absent the transactions contemplated hereby),
(ii) any withholding taxes or other taxes based on gross
income imposed by the United States of America (other than
withholding taxes and taxes based on gross income
resulting from or attributable to any change in any law,
rule or regulation or any change in the interpretation or
administration of any law, rule or regulation by any
Governmental Agency) or (iii) any withholding taxes or
other taxes based on gross income imposed by the United
States of America for any period with respect to which it
has failed to provide Borrower with the appropriate form
or forms required by Section 11.21, to the extent such
forms are then required by applicable Laws;
(2) shall impose, modify or deem applicable any
reserve not applicable or deemed applicable on the date
hereof (INCLUDING, without limitation, any reserve imposed
by the Board of Governors of the Federal Reserve System,
BUT EXCLUDING the Reserve Percentage taken into account in
calculating the LIBOR), special deposit, capital or
similar requirements against assets of, deposits with or
for the account of, or credit extended by, any Lender or
its LIBOR Office; or
(3) shall impose on any Lender or its LIBOR
Office or the Designated LIBOR Market any other condition
affecting any LIBOR Advance, any of its Notes evidencing
LIBOR Loans, its obligation to make LIBOR Advances or this
Agreement, or shall otherwise affect any of the same;
and the result of any of the foregoing, as determined in good
faith by such Lender, increases the cost to such Lender or its
LIBOR Office of making or maintaining any LIBOR Advance or in
respect of any LIBOR Advance, any of its Notes evidencing LIBOR
Loans or its obligation to make LIBOR Advances or reduces the
amount of any sum received or receivable by such Lender or its
LIBOR Office with respect to any LIBOR Advance, any of its
Notes evidencing LIBOR Loans or its obligation to make LIBOR
Advances (assuming such Lender's LIBOR Office had funded 100%
of its LIBOR Advance in the Designated LIBOR Market), then,
within five (5) Banking Days after demand by such Lender (with
a copy to the Administrative Agent), Borrower shall pay to such
Lender such additional amount or amounts as will compensate
such Lender for such increased cost or reduction (determined as
though such Lender's LIBOR Office had funded 100% of its LIBOR
Advance in the Designated LIBOR Market). Borrower hereby
indemnifies each Lender against, and agrees to hold each Lender
harmless from and reimburse such Lender within ten Banking Days
after demand for (without duplication) all costs, expenses,
claims, penalties, liabilities, losses, reasonable legal fees
and damages incurred or sustained by each Lender in connection
with this Agreement, or any of the rights, obligations or
transactions provided for or contemplated herein, as a direct
result of the existence or occurrence of any Special LIBOR
Circumstance. A statement of any Lender claiming compensation
under this subsection and setting forth in reasonable
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detail the additional amount or amounts to be paid to it hereunder
shall be conclusive in the absence of manifest error. Each Lender
agrees to endeavor promptly to notify Borrower of any event of which
it has actual knowledge, occurring after the Closing Date, which will
entitle such Lender to compensation pursuant to this Section, and
agrees to designate a different LIBOR Office if such designation will
avoid the need for or reduce the amount of such compensation and will
not, in the good faith judgment of such Lender, otherwise be materially
disadvantageous to such Lender. If any Lender claims compensation
under this Section, Borrower may at any time, upon at least four Market
Days' prior notice to the Administrative Agent and such Lender and
upon payment in full of the amounts provided for in this Section through
the date of such payment plus any prepayment fee required by Section
3.8(d), pay in full the affected LIBOR Advances of such Lender or
request that such LIBOR Advances be converted to Base Rate Advances.
(b) If, after the date hereof, the existence or occurrence
of any Special LIBOR Circumstance shall, in the good faith opinion of
any Lender, make it unlawful or impossible for such Lender or its LIBOR
Office to make, maintain or fund its portion of any LIBOR Loan, or
materially restrict the authority of such Lender to purchase or sell,
or to take deposits of, Dollars in the Designated LIBOR Market, or to
determine or charge interest rates based upon the LIBOR, and such Lender
shall so notify the Administrative Agent, then such Lender's obligation
to make LIBOR Advances shall be suspended for the duration of such
illegality or impossibility and the Administrative Agent forthwith shall
give notice thereof to the other Lenders and Borrower. Upon receipt of
such notice, the outstanding principal amount of such Lender's LIBOR
Advances, together with accrued interest thereon, automatically shall be
converted to Base Rate Advances with Interest Periods corresponding to
the LIBOR Loans of which such LIBOR Advances were a part on either
(1) the last day of the Interest Period(s) applicable to such LIBOR
Advances if such Lender may lawfully continue to maintain and fund such
LIBOR Advances to such day(s) or (2) immediately if such Lender may not
lawfully continue to fund and maintain such LIBOR Advances to such day(s),
provided that in such event the conversion shall not be subject to
payment of a prepayment fee under Section 3.8(d). Each Lender agrees to
endeavor promptly to notify Borrower of any event of which it has actual
knowledge, occurring after the Closing Date, which will cause that Lender
to notify the Administrative Agent under this Section 3.8(b), and agrees
to designate a different LIBOR Office if such designation will avoid the
need for such notice and will not, in the good faith judgment of such
Lender, otherwise be materially disadvantageous to such Lender. In the
event that any Lender is unable, for the reasons set forth above, to
make, maintain or fund its portion of any LIBOR Loan, such Lender shall
fund such amount as a Base Rate Advance for the same period of time, and
such amount shall be treated in all respects as a Base Rate Advance.
Any Lender whose obligation to make LIBOR Advances has been suspended
under this Section 3.8(b) shall promptly notify the Administrative Agent
and Borrower of the cessation of the Special LIBOR Circumstance which
gave rise to such suspension.
(c) If, with respect to any proposed LIBOR Loan:
(1) the Administrative Agent reasonably
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determines that, by reason of circumstances affecting the Designated
LIBOR Market generally that are beyond the reasonable control of
the Lenders, deposits in Dollars (in the applicable amounts) are
not being offered to any Lender in the Designated LIBOR Market for
the applicable Interest Period; or
(2) the Requisite Lenders advise the Administrative
Agent that the LIBOR as determined by the Administrative Agent
(i) does not represent the effective pricing to such Lenders for
deposits in Dollars in the Designated LIBOR Market in the relevant
amount for the applicable Interest Period, or (ii) will not
adequately and fairly reflect the cost to such Lenders of making the
applicable LIBOR Advances;
then the Administrative Agent forthwith shall give notice thereof to
Borrower and the Lenders, whereupon until the Administrative Agent
notifies Borrower that the circumstances giving rise to such suspension
no longer exist, the obligation of the Lenders to make any future LIBOR
Advances shall be suspended. If at the time of such notice there is
then pending a Request for Loan that specifies a LIBOR Loan, such Request
for Loan shall be deemed to specify a Base Rate Loan.
(d) Upon payment or prepayment of any LIBOR Advance (other
than as the result of a conversion required under Section 3.1(e)
or 3.8(b)), on a day other than the last day in the applicable
Interest Period (whether voluntarily,involuntarily, by reason of
acceleration, or otherwise), or upon the failure of Borrower (for a
reason other than the failure of a Lender to make an Advance) to borrow
on the date or in the amount specified for a LIBOR Loan in any Request for
Loan, Borrower shall pay to the appropriate Lender within ten Banking
Days after demand a prepayment fee or failure to borrow fee, as the case
may be (determined as though 100% of the LIBOR Advance had been funded in
the Designated LIBOR Market) equal to the sum of:
(1) the principal amount of the LIBOR Advance prepaid or
not borrowed, as the case may be, times the number of days between
the date of prepayment or failure to borrow, as applicable, and the
last day in the applicable Interest Period, divided by 360, times the
applicable Interest Differential (provided that the product of the
foregoing formula must be a positive number); plus
(2) all out-of-pocket expenses incurred by the Lender
reasonably attributable to such payment, prepayment or failure to
borrow.
Each Lender's determination of the amount of any prepayment fee payable
under this Section 3.8(d) shall be conclusive in the absence of manifest
error.
3.9 LATE PAYMENTS. If any installment of principal or interest
or any fee or cost or other amount payable under any Loan Document to the
Administrative Agent or any Lender is not paid when due, it shall thereafter
bear interest at a fluctuating interest rate per annum at all times equal to
the sum of the Base Rate plus the Base Rate Margin plus 2%,
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to the fullest extent permitted by applicable Laws. Accrued and unpaid
interest on past due amounts (INCLUDING, without limitation, interest on past
due interest) shall be compounded monthly, on the last day of each calendar
month, to the fullest extent permitted by applicable Laws.
3.10 COMPUTATION OF INTEREST AND FEES. Computation of interest on
Base Rate Loans shall be calculated on the basis of a year of 365 or 366
days, as the case may be, and the actual number of days elapsed; computation
of interest on LIBOR Loans and all fees under this Agreement shall be
calculated on the basis of a year of 360 days and the actual number of days
elapsed. Borrower acknowledges that such latter calculation method will
result in a higher yield to the Lenders than a method based on a year of 365
or 366 days. Interest shall accrue on each Loan for the day on which the
Loan is made; interest shall not accrue on a Loan, or any portion thereof,
for the day on which the Loan or such portion is paid. Any Loan that is
repaid on the same day on which it is made shall bear interest for one day.
3.11 NON-BANKING DAYS. If any payment to be made by Borrower or
any other Obligor under any Loan Document shall come due on a day other than
a Banking Day, payment shall instead be considered due on the next succeeding
Banking Day and the extension of time shall be reflected in computing
interest and fees.
3.12 MANNER AND TREATMENT OF PAYMENTS.
(a) Each payment hereunder (except payments pursuant to
Sections 3.7, 3.8, 11.3, 11.11 and 11.22) or on the Notes, on the Swing
Line Documents or under any other Loan Document shall be made to the
Administrative Agent, at the Administrative Agent's Office, for the
account of each of the Lenders or the Administrative Agent, as the case
may be, in immediately available funds not later than 11:00 a.m. on the
day of payment (which must be a Banking Day). All payments received
after 11:00 a.m. on any Banking Day, shall be deemed received on the
next succeeding Banking Day. The amount of all payments received by
the Administrative Agent for the account of each Lender shall be
immediately paid by the Administrative Agent to the applicable Lender
in immediately available funds and, if such payment was received by
the Administrative Agent by 11:00 a.m. on a Banking Day and not so made
available to the account of a Lender on that Banking Day, the
Administrative Agent shall reimburse that Lender for the cost to such
Lender of funding the amount of such payment at the Federal Funds Rate.
All payments shall be made in lawful money of the United States of
America.
(b) Each payment or prepayment on account of any Loan (other
than Swing Line Advances) shall be applied pro rata according to the
outstanding Advances made by each Lender comprising such Loan.
(c) Each Lender shall use its best efforts to keep a record
of Advances made by it and payments received by it with respect to each
of its Notes and, subject to Section 10.6(g), such record shall, as
against Borrower, be presumptive evidence of the amounts owing.
Notwithstanding the foregoing sentence, no Lender shall be liable to
any Obligor for any failure to keep such a record.
(d) Each payment of any amount payable by Borrower or
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any other Obligor under this Agreement or any other Loan Document shall
be made free and clear of, and without reduction by reason of, any taxes,
assessments or other charges imposed by any Governmental Agency, central
bank or comparable authority, EXCLUDING, in the case of each Lender, the
Administrative Agent and each Eligible Assignee, and any Affiliate or
LIBOR Office thereof, (i) taxes imposed on or measured in whole or in
part by its overall net income, gross income or gross receipts or capital
and franchise taxes imposed on it, (ii) any withholding taxes or other
taxes based on gross income imposed by the United States of America
(other than withholding taxes and taxes based on gross income resulting
from or attributable to any change in any law, rule or regulation or
any change in the interpretation or administration of any law, rule or
regulation by any Governmental Agency) or (iii) any withholding taxes
or other taxes based on gross income imposed by the United States of
America for any period with respect to which it has failed to provide
Borrower with the appropriate form or forms required by Section 11.21,
to the extent such forms are then required by applicable Laws (all such
non-excluded taxes, assessments or other charges being hereinafter
referred to as "Taxes"). To the extent that Borrower is obligated by
applicable Laws to make any deduction or withholding on account of Taxes
from any amount payable to any Lender under this Agreement, Borrower
shall (i) make such deduction or withholding and pay the same to the
relevant Governmental Agency and (ii) pay such additional amount to that
Lender as is necessary to result in that Lender's receiving a net
after-Tax amount equal to the amount to which that Lender would have
been entitled under this Agreement absent such deduction or withholding.
If and when receipt of such payment results in an excess payment or
credit to that Lender on account of such Taxes, that Lender shall
promptly refund such excess to Borrower.
3.13 FUNDING SOURCES. Nothing in this Agreement shall be deemed
to obligate any Lender to obtain the funds for any Loan or Advance in any
particular place or manner or to constitute a representation by any Lender
that it has obtained or will obtain the funds for any Loan or Advance in any
particular place or manner.
3.14 FAILURE TO CHARGE NOT SUBSEQUENT WAIVER. Any decision by the
Administrative Agent or any Lender not to require payment of any interest
(INCLUDING interest arising under Section 3.8), fee, cost or other amount
payable under any Loan Document, or to calculate any amount payable by a
particular method, on any occasion shall in no way limit or be deemed a
waiver of the Administrative Agent's or such Lender's right to require full
payment of any interest (INCLUDING interest arising under Section 3.8), fee,
cost or other amount payable under any Loan Document, or to calculate an
amount payable by another method that is not inconsistent with this
Agreement, on any other or subsequent occasion.
3.15 ADMINISTRATIVE AGENT'S RIGHT TO ASSUME PAYMENTS WILL BE MADE
BY BORROWER. Unless the Administrative Agent shall have been notified by
Borrower prior to the date on which any payment to be made by Borrower
hereunder is due that Borrower does not intend to remit such payment, the
Administrative Agent may, in its discretion, assume that Borrower has
remitted such payment when so due and the Administrative Agent may, in its
discretion and in reliance upon such assumption, make available to each
Lender on such payment date an amount equal to such Lender's share of such
assumed payment. If Borrower has not in fact remitted such payment to the
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Administrative Agent, each Lender shall forthwith on demand repay to the
Administrative Agent the amount of such assumed payment made available to
such Lender, together with interest thereon in respect of each day from and
including the date such amount was made available by the Administrative Agent
to such Lender to the date such amount is repaid to the Administrative Agent
at the Federal Funds Rate.
3.16 FEE DETERMINATION DETAIL. The Administrative Agent, and any
Lender, shall provide reasonable detail to Borrower regarding the manner in
which the amount of any payment to the Administrative Agent and the Lenders,
or that Lender, under Article 3 has been determined, concurrently with demand
for such payment.
3.17 SURVIVAL. All of Borrower's obligations under
Sections 3.7, 3.8 and 11.22 shall survive for ninety days following
the date on which the Commitment is terminated, and all Loans
hereunder are fully paid.
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Article 4
REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants to the Creditors that:
4.1 EXISTENCE AND QUALIFICATION; POWER; COMPLIANCE WITH LAWS.
Borrower is a corporation duly formed, validly existing and in good standing
under the Laws of Nevada. Borrower is duly qualified or registered to
transact business and is in good standing in each other jurisdiction in which
the conduct of its business or the ownership or leasing of its Properties
makes such qualification or registration necessary, EXCEPT where the failure
so to qualify or register and to be in good standing would not constitute a
Material Adverse Effect. Borrower has all requisite corporate or other
organizational power and authority to conduct its business, to own and lease
its Properties and to execute and deliver each Loan Document to which it is a
party and to perform its Obligations. All outstanding shares of the capital
stock of Borrower are duly authorized and validly issued, fully paid and
non-assessable, and no holder thereof has any enforceable right of rescission
under any applicable state or federal securities Laws. Borrower is in
compliance with all Laws and other legal requirements applicable to its
business, has obtained all authorizations, consents, approvals, orders,
licenses and permits from, and has accomplished all filings, registrations
and qualifications with, or obtained exemptions from any of the foregoing
from, any Governmental Agency that are necessary for the transaction of its
business, EXCEPT where the failure so to comply, file, register, qualify or
obtain exemptions does not constitute a Material Adverse Effect.
4.2 AUTHORITY; COMPLIANCE WITH OTHER AGREEMENTS AND INSTRUMENTS
AND GOVERNMENT REGULATIONS. The execution, delivery and performance by
Borrower, Xxxxx X. Xxxxxx and each other Obligor of the Loan Documents to
which they are a party have been duly authorized by all necessary corporate
action, and do not and will not:
(a) Require any consent or approval not heretofore obtained
of any director, stockholder, security holder or creditor of such Obligor;
(b) Violate or conflict with any provision of such Obligor's
articles of incorporation or bylaws;
(c) Except to the extent contemplated by the Loan Documents,
result in or require the creation or imposition of any Lien or Right of
Others upon or with respect to any Property now owned or leased or
hereafter acquired by such Obligor;
(d) Violate any Requirement of Law applicable to such Obligor;
(e) Result in a breach of or constitute a default under, or
cause or permit the acceleration of any obligation owed under, any
indenture or loan or credit agreement or any other Contractual Obligation
to which such Obligor is a party or by which such Obligor or any of its
Property is bound or affected;
and neither Borrower, Xxxxx X. Xxxxxx nor any other Obligor is in violation
of, or default under, any Requirement of Law or Contractual Obligation, or
any indenture, loan or credit agreement described in Section 4.2(e), in any
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respect that constitutes a Material Adverse Effect.
4.3 NO GOVERNMENTAL APPROVALS REQUIRED. Except as set forth in
Schedule 4.3 or previously obtained or made, no authorization, consent,
approval, order, license or permit from, or filing, registration or
qualification with, any Governmental Agency is or will be required to
authorize or permit under applicable Laws the execution, delivery and
performance by Borrower and Xxxxx X. Xxxxxx of the Loan Documents to which it
is a Obligor. All authorizations from, or filings with, any Governmental
Agency described in Schedule 4.3 will be accomplished as of the Closing Date
or such other date as is specified in Schedule 4.3.
4.4 SUBSIDIARIES. Borrower does not have any Subsidiaries and
Borrower does not own any capital stock, equity interest or debt security
which is convertible, or exchangeable, for capital stock or equity interests
in any Person.
4.5 Financial Statements. Borrower has furnished (a) the audited
financial statements of Borrower for the Fiscal Year ended November 30, 1996,
and (b) the unaudited financial statement of Borrower for the Fiscal Quarter
ended August 31, 1997, to the Administrative Agent and the Lenders, which
financial statements fairly present the financial condition, results of
operations and changes in financial position of Borrower as of such dates and
for such periods in conformity with Generally Accepted Accounting Principles,
consistently applied. Xxxxx X. Xxxxxx has furnished his personal financial
report and a Liquidity Report as of December 31, 1997 to the Administrative
Agent, which accurately reflects the matters therein stated as of such date.
4.6 NO MATERIAL ADVERSE CHANGES. As of the Closing Date, no
circumstance or event has occurred that constitutes a Material Adverse Effect
since November 30, 1997, or, as of any date subsequent to the Closing Date,
since the Closing Date.
4.7 TITLE TO PROPERTY. On the Closing Date and on each
subsequent date, Borrower has valid title in fee simple to the Project Site
and all improvements (if any) located thereon, free and clear of all Liens
and Rights of Others, other than Liens or Rights of Others permitted by
Section 6.9.
4.8 INTANGIBLE ASSETS. Borrower and its Subsidiaries own, or
possess the right to use to the extent necessary in their respective
businesses, all material trademarks, trade names, copyrights, patents, patent
rights, computer software, licenses and other Intangible Assets that are
necessary to complete and operate the Proposed Expansion or which are used or
contemplated to be used in the conduct of their businesses as now operated
and as contemplated to be operated, and no such Intangible Asset, to the best
knowledge of Borrower, conflicts with the valid trademark, trade name,
copyright, patent, patent right or Intangible Asset of any other Person to
the extent that such conflict constitutes a Material Adverse Effect. Without
limitation on the foregoing, Borrower holds a valid license to use the name
and xxxx "Hard Rock Hotel" in Las Vegas Nevada in connection with its
operation of the existing Hard Rock Hotel and the Proposed Expansion. Each
registered patent, trademark or copyright owned by Borrower, or as to which
Borrower is a licensee, is described on Schedule 4.8 or, after the Closing
Date, on a supplement to the Trademark Assignment.
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4.9 PUBLIC UTILITY HOLDING COMPANY ACT. Neither Borrower 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", within the meaning of the Public
Utility Holding Company Act of 1935, as amended.
4.10 LITIGATION. Other than Borrower's intellectual property
litigation with Rank described in the Prospectus for the senior subordinated
notes issued pursuant to the Indenture, there are no actions, suits,
proceedings or investigations pending as to which Borrower or any of its
Subsidiaries have been served or have received notice or, to the best
knowledge of Borrower, threatened against or affecting Borrower or any of its
Subsidiaries or any Property of any of them (including the Real Property)
before any Governmental Agency, which may reasonably be expected to have a
monetary impact which is in excess of $500,000, and neither the Rank
Litigation nor any other such action, suit proceeding or investigation
described in this Section may reasonably be expected to have a Material
Adverse Effect.
4.11 BINDING OBLIGATIONS. Each of the Loan Documents to which
Xxxxx X. Xxxxxx, Borrower or any of its Subsidiaries is a party will, when
executed and delivered by such Obligor, constitute the legal, valid and
binding obligation of such Obligor, enforceable against such Obligor in
accordance with its terms, except as enforcement may be limited by Debtor
Relief Laws, Gaming Laws or equitable principles relating to the granting of
specific performance and other equitable remedies as a matter of judicial
discretion.
4.12 NO DEFAULT. No event has occurred and is continuing that is
a Default or Event of Default.
4.13 ERISA.
(a) With respect to each Pension Plan:
(i) such Pension Plan complies in all material
respects with ERISA and any other applicable Laws to the extent
that noncompliance could reasonably be expected to have a Material
Adverse Effect;
(ii) such Pension Plan has not incurred any "accumulated
funding deficiency" (as defined in Section 302 of ERISA) that could
reasonably be expected to have a Material Adverse Effect;
(iii) no "reportable event" (as defined in Section 4043 of
ERISA) has occurred that could reasonably be expected to have a
Material Adverse Effect; and
(iv) neither Borrower nor any of its Subsidiaries has
engaged in any non-exempt "prohibited transaction" (as defined in
Section 4975 of the Code) that could reasonably be expected to
have a Material Adverse Effect.
(b) Neither Borrower nor any of its Subsidiaries has incurred
or expects to incur any withdrawal liability to any Multiemployer Plan
that could reasonably be expected to have a Material Adverse Effect.
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4.14 REGULATIONS G, T, U AND X; INVESTMENT COMPANY ACT. No part of
the proceeds of any Loan hereunder will be used to purchase or carry, or to
extend credit to others for the purpose of purchasing or carrying, any Margin
Stock in violation of Regulations G, T, U and X. Neither Borrower nor any of
its Subsidiaries is or is required to be registered as an "investment
company" under the Investment Company Act of 1940.
4.15 DISCLOSURE. No statement made by Borrower or any of its
Affiliates to the Administrative Agent or any Lender in connection with this
Agreement, or in connection with any Loan, as of the date thereof contained
any untrue statement of a material fact or omitted a material fact necessary
to make the statement made not misleading in light of all the circumstances
existing at the date the statement was made.
4.16 TAX LIABILITY. Borrower and its Subsidiaries have filed all
tax returns which are required to be filed, and have paid, or made provision
for the payment of, all taxes with respect to the periods, Property or
transactions covered by said returns, or pursuant to any assessment received
by Borrower or any of its Subsidiaries, except (a) such taxes, if any, as are
being contested in good faith by appropriate proceedings and as to which
adequate reserves have been established and maintained and (b) immaterial
taxes so long as no material item or portion of Property of Borrower or any
of its Subsidiaries is in jeopardy of being seized, levied upon or forfeited.
4.17 PROJECTIONS. As of the Closing Date, to the best knowledge
of Borrower, the assumptions set forth in the Projections are reasonable and
consistent with each other and with all facts known to Borrower, and the
Projections are reasonably based on such assumptions. Nothing in this
Section shall be construed as a representation or covenant that the
Projections in fact will be achieved.
4.18 HAZARDOUS MATERIALS. Except as described in Schedule 4.18 or
except as would not individually or in the aggregate have a Material Adverse
Effect, (a) none of Borrower nor any of its Subsidiaries at any time has
disposed of, discharged, released or threatened the release of any Hazardous
Materials on, from or under the Project Site (or, to the best of Borrower or
any of its Subsidiaries knowledge, any other Real Property) in violation of
any Hazardous Materials Law, (b) to the best knowledge of Borrower, no
condition exists that violates any Hazardous Material Law affecting any Real
Property, (c) neither the Project Site nor any portion thereof (nor, to the
best knowledge of Borrower and its Subsidiaries, any other Real Property) is
or has been utilized by Borrower or any of its Subsidiaries as a site for the
manufacture of any Hazardous Materials and (d) to the extent that any
Hazardous Materials are used, generated or stored by Borrower or any of its
Subsidiaries on the Project Site, or transported to or from the Project Site,
such use, generation, storage and transportation are in compliance in all
material respects with all Hazardous Materials Laws.
4.19 GAMING LAWS. Borrower and its Subsidiaries are in compliance
in all material respects with all Gaming Laws that are applicable to them.
4.20 SECURITY INTERESTS. Upon the execution and delivery of the
Security Agreement and the Trademark Assignment, the Security Agreement
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and the Trademark Assignment will create a valid first priority security
interests in the Collateral described therein securing the Obligations, and
all action necessary to perfect the security interests so created (including
without limitation Borrower's license to use the name and xxxx "Hard Rock
Hotel"), other than filing of the UCC-1 financing statements delivered to the
Administrative Agent pursuant to Section 8.1 with the appropriate
Governmental Agency and the filing of the Trademark Assignment with the
United States Patent and Trademark Office, shall have been taken and
completed. Upon the execution and delivery of the Deed of Trust, the Deed of
Trust will create a valid Lien in the Collateral described therein securing
the Obligations, other than those arising under Sections 4.18, 5.10 and 11.22
(subject only to Permitted Encumbrances and Permitted Rights of Others), and
all action necessary to perfect the Lien so created, other than recordation
or filing thereof with the appropriate Governmental Agencies, will have been
taken and completed.
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Article 5
AFFIRMATIVE COVENANTS
(OTHER THAN INFORMATION AND
REPORTING REQUIREMENTS)
So long as any Advance remains unpaid, or any Letter of Credit
remains outstanding, or any other Obligation remains unpaid or unperformed,
or any portion of the Commitment remains in force, Borrower shall, and shall
cause each of its Subsidiaries to, unless the Administrative Agent (with the
written approval of the Requisite Lenders) otherwise consents:
5.1 PAYMENT OF TAXES AND OTHER POTENTIAL LIENS. Pay and
discharge promptly all taxes, assessments and governmental charges or levies
imposed upon any of them, upon their respective Property or any part thereof
and upon their respective income or profits or any part thereof, EXCEPT that
Borrower and its Subsidiaries shall not be required to pay or cause to be
paid (a) any tax, assessment, charge or levy that is not yet past due, or is
being contested in good faith by appropriate proceedings so long as the
relevant entity has established and maintains adequate reserves for the
payment of the same or (b) any immaterial tax so long as no material item or
portion of Property of Borrower or any of its Subsidiaries is in jeopardy of
being seized, levied upon or forfeited.
5.2 PRESERVATION OF EXISTENCE. Preserve and maintain their
respective existences in the jurisdiction of their formation and all material
authorizations, rights, franchises, privileges, consents, approvals, orders,
licenses, permits, or registrations from any Governmental Agency that are
necessary for the transaction of their respective business, EXCEPT where the
failure to so preserve and maintain the existence of any Subsidiary or such
authorizations would not constitute a Material Adverse Effect; and qualify
and remain qualified to transact business in each jurisdiction in which such
qualification is necessary in view of their respective business or the
ownership or leasing of their respective Properties EXCEPT where the failure
to so qualify or remain qualified would not constitute a Material Adverse
Effect.
5.3 MAINTENANCE OF PROPERTIES. Maintain, preserve and protect
all of their respective depreciable Properties in good order and condition,
subject to wear and tear in the ordinary course of business, and not permit
any waste of their respective Properties, EXCEPT that the failure to
maintain, preserve and protect a particular item of depreciable Property that
is not of significant value, either intrinsically or to the operations of
Borrower and its Subsidiaries, taken as a whole, shall not constitute a
violation of this covenant.
5.4 MAINTENANCE OF INSURANCE. Maintain liability, casualty and
other insurance (subject to customary deductibles and retentions) with
responsible insurance companies in such amounts and against such risks as is
carried by responsible companies engaged in similar businesses and owning
similar assets in the general areas in which Borrower and its Subsidiaries
operate and, in any event, such insurance as may be required under the Deed
of Trust.
5.5 COMPLIANCE WITH LAWS. Comply, within the time period, if
any, given for such compliance by the relevant Governmental Agency or
Agencies with enforcement authority, with all Requirements of Law
noncompliance with which constitutes a Material Adverse Effect, EXCEPT that
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Borrower and its Subsidiaries need not comply with a Requirement of Law then
being contested by any of them in good faith by appropriate proceedings.
5.6 INSPECTION RIGHTS - COMPLETION OF CONSTRUCTION. Borrower
hereby engages CSG to monitor the construction of the Proposed Expansion and
to prepare Construction Progress Reports for submission to the Administrative
Agent. The fees for such services shall be as set forth in Section 3.6.
From the Closing Date through the Completion Date, Borrower shall provide CSG
with such information and access to the Project Site and the Proposed
Expansion and individuals employed by Borrower, the project architect and the
project contractor as it may reasonably request upon reasonable advance
notice for that purpose and at any time during regular business hours and as
often as reasonably requested (but not so as to materially interfere with the
business of Borrower or any of its Subsidiaries), and shall permit CSG, at
its own cost, the Administrative Agent or any Lender, or any authorized
employee, agent or representative thereof, to examine, audit and make copies
and abstracts from the records and books of account of, and to visit and
inspect the Properties of, Borrower and its Subsidiaries and to discuss the
affairs, finances and accounts of Borrower and its Subsidiaries with any of
their officers, key employees or accountants and, upon request, furnish
promptly to CSG, the Administrative Agent or any Lender true copies of all
financial information made available to senior management of or shareholders
in Borrower.
5.7 KEEPING OF RECORDS AND BOOKS OF ACCOUNT. Keep adequate
records and books of account reflecting all financial transactions in
conformity with Generally Accepted Accounting Principles, consistently
applied, and in material conformity with all applicable requirements of any
Governmental Agency having regulatory jurisdiction over Borrower or any of
its Subsidiaries.
5.8 COMPLIANCE WITH AGREEMENTS. Promptly and fully comply with
all Contractual Obligations under all material agreements, indentures, leases
and/or instruments to which any one or more of them is a party, whether such
material agreements, indentures, leases or instruments are with a Lender or
another Person, EXCEPT for any such Contractual Obligations (a) the
performance of which would cause a Default or (b) then being contested by any
of them in good faith by appropriate proceedings or if the failure to comply
with such agreements, indentures, leases or instruments does not constitute a
Material Adverse Effect.
5.9 USE OF PROCEEDS. Use the proceeds of the Loans to refinance
the outstanding Indebtedness under the Existing Credit Facility and,
subsequent thereto, for other proper corporate purposes of Borrower,
INCLUDING construction of the Proposed Expansion.
5.10 HAZARDOUS MATERIALS LAWS. Keep and maintain all Real
Property and each portion thereof in compliance in all material respects with
all applicable Hazardous Materials Laws and promptly notify the
Administrative Agent in writing (attaching a copy of any pertinent written
material) of (a) any and all material enforcement, cleanup, removal or other
governmental or regulatory actions instituted, completed or threatened in
writing by a Governmental Agency pursuant to any applicable Hazardous
Materials Laws with regard to the Real Property, (b) any and all material
claims made or threatened in writing by any Person against Borrower relating
to damage, contribution, cost recovery, compensation, loss or injury
resulting from any Hazardous Materials with regard to the
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Real Property, and (c) discovery by any Senior Officer of Borrower of any
material occurrence or condition on any real Property adjoining or in the
vicinity of such Real Property and affecting the Real Property that could
reasonably be expected to cause such Real Property or any part thereof to be
subject to any restrictions on the ownership, occupancy, transferability or
use of such Real Property under any applicable Hazardous Materials Laws.
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Article 6
NEGATIVE COVENANTS
So long as any Advance remains unpaid, or any Letter of Credit
remains outstanding or any other Obligation remains unpaid or unperformed, or
any portion of the Commitment remains in force, Borrower shall not, and shall
not permit any of its Subsidiaries to, unless the Administrative Agent (with
the written approval of the Requisite Lenders or, if required by Section
11.2, of all of the Lenders) otherwise consents:
6.1 PREPAYMENT OF INDEBTEDNESS. Pay any principal or interest on
any Indebtedness of Borrower or any of its Subsidiaries prior to the date
when due, or make any payment or deposit with any Person that has the effect
of providing for the satisfaction of any Indebtedness of Borrower or any of
its Subsidiaries prior to the date when due, in each case IF a Default or
Event of Default then exists or would result therefrom.
6.2 PAYMENT OF SUBORDINATED OBLIGATIONS. Pay any principal
(INCLUDING sinking fund payments) or any other amount with respect to any
Subordinated Obligation, or purchase or redeem any Subordinated Obligation,
or make any payment of any Supervisory Fees EXCEPT for (a) regularly
scheduled payments of interest with respect to Subordinated Obligations, and
(b) regularly scheduled payments of Supervisory Fees, in each case made when
no Default or Event of Default exists or would result from the making of such
payment and consistently with the Indenture and the Subordination Agreement.
6.3 DISPOSITION OF PROPERTY. Make any Disposition of its
Property, whether now owned or hereafter acquired, except for:
(a) Dispositions of obsolete equipment or other personal
property no longer necessary to the business of Borrower and
its Subsidiaries having a value (in each transaction or series
of related transactions) of less than $250,000); and
(b) Dispositions of easements or minor strips and gores
of property in connection with the construction of the Proposed
Expansion or other improvements to the Project Site and which
are approved in advance by the Administrative Agent as
reasonably necessary to the construction or maintenance
thereof, PROVIDED that the Administrative Agent shall
concurrently receive any endorsements to its policy of title
insurance as it may reasonably request in connection therewith;
PROVIDED, HOWEVER, that this Section shall not apply to prohibit a
Disposition to the extent necessary to prevent a License Revocation if (i) no
Default or Event of Default then exists which is not curable by such
Disposition, (ii) Borrower has notified the Administrative Agent in writing
of the necessity to invoke this proviso at least ten Banking Days (or such
shorter period as may be necessary in order to comply with a regulation or
order of the relevant Gaming Board) in advance and (iii) the Net Cash
Proceeds from such Disposition are paid to the Administrative Agent promptly
after receipt and applied to reduce the principal outstanding under the Notes
(first, to Base Rate Loans and thereafter to LIBOR Loans, shortest Interest
Periods first), and PROVIDED FURTHER that nothing in this Section shall apply
to restrict the Disposition of any of the equity
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securities of any Person that holds, directly or indirectly through a holding
company or otherwise, a license under any Gaming Law to the extent such
restriction is unlawful under that Gaming Law.
6.4 HOSTILE TENDER OFFERS. Make any offer to purchase or
acquire, or consummate a purchase or acquisition of, 5% or more of the
capital stock of any corporation or other business entity if the board of
directors or management of such corporation or business entity has notified
Borrower that it opposes such offer or purchase and such notice has not been
withdrawn or superseded.
6.5 MERGERS. Merge or consolidate with or into any Person,
EXCEPT:
(a) mergers and consolidations of a Subsidiary of
Borrower into Borrower or another Subsidiary of Borrower (in
the case of any such merger or consolidation to which Borrower
is a party, with Borrower as the surviving entity), PROVIDED
that Borrower and each of such Subsidiaries have executed such
amendments to the Loan Documents as the Administrative Agent
may reasonably determine are appropriate as a result of such
merger; and
(b) mergers or consolidations of Borrower or any of
its Subsidiaries with any other Person, PROVIDED that
(i) either (A) Borrower or such Subsidiary is the surviving
entity, or (B) the surviving entity is a corporation organized
under the Laws of a State of the United States of America or
the District of Columbia and, as of the date of such merger or
consolidation, expressly assumes, by an appropriate instrument,
the Obligations of Borrower or such Subsidiary, as the case may
be, (ii) giving effect thereto on a pro-forma basis, no Default
or Event of Default exists or would result therefrom, and
(iii) as a result thereof, no Change of Control has occurred.
6.6 DISTRIBUTIONS. Make any Distribution, whether from
capital, income or otherwise, and whether in Cash or other Property,
OTHER THAN:
(a) Distributions from any Subsidiary of Borrower to
Borrower;
(b) Provided that no Default or Event of Default shall
have occurred or be continuing or would result therefrom, and
that the Opening has occurred, following the date upon which
Borrower has delivered a Compliance Certificate demonstrating a
Total Leverage Ratio which is less than 4.25:1.00 Borrower may
make Distributions (including without limitation Distributions
made to repurchase shares of the capital stock of Borrower
owned by employees in connection with the termination of their
employment) in an aggregate amount to exceed $7,500,000; and
(c) Provided that no Default or Event of Default
shall have occurred or be continuing or would result therefrom,
Borrower may make Distributions in an aggregate amount not to
exceed $1,500,000 to Xxxx Xxxxxxxx to repurchase common stock
of Borrower held by him in connection with any termination of
his employment with Borrower.
6.7 ERISA. At any time, permit any Pension Plan to:
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(i) engage in any non-exempt "prohibited transaction" (as defined in Section
4975 of the Code); (ii) fail to comply with ERISA or any other applicable
Laws; (iii) incur any material "accumulated funding deficiency" (as defined
in Section 302 of ERISA); or (iv) terminate in any manner, which, with
respect to each event listed above, could reasonably be expected to result in
a Material Adverse Effect, or (b) withdraw, completely or partially, from any
Multiemployer Plan if to do so could reasonably be expected to result in a
Material Adverse Effect.
6.8 CHANGE IN NATURE OF BUSINESS. Make any material change in
the nature of the business of Borrower and the its Subsidiaries, taken as a
whole.
6.9 LIENS, NEGATIVE PLEDGES AND RIGHTS OF OTHERS. Create, incur,
assume or suffer to exist any Lien, Negative Pledge prohibiting the granting
of Liens to the Banks or any Right of Others of any nature upon or with
respect to any of their respective Properties, or engage in any sale and
leaseback transaction with respect to any of their respective Properties,
whether now owned or hereafter acquired, EXCEPT:
(a) Liens and Negative Pledges described on Schedule 6.9;
(b) Permitted Encumbrances and Permitted Rights of Others;
(c) Liens and Negative Pledges under the Loan Documents;
(d) To the extent that the same constitute Liens, the
exceptions reflected on Schedule B to the ALTA Lender's policy of title
insurance described in Section 8.1;
(e) purchase money Liens securing Indebtedness permitted by
Section 6.9(c) on and limited to the Property acquired, constructed or
financed with the proceeds of such Indebtedness and Negative Pledges in
favor of the holders of such Indebtedness with respect to such Property;
and
(f) Liens on Property acquired by Borrower and its Subsidiaries
following the Closing Date securing Indebtedness permitted by Section
6.10, which are in existence at the time of such acquisition and not
created in contemplation thereof.
6.10 INDEBTEDNESS AND CONTINGENT OBLIGATIONS. Create, incur or
assume any Indebtedness or Contingent Obligation EXCEPT:
(a) Indebtedness and Contingent Obligations existing on the
Closing Date and disclosed in Schedule 6.10, and renewals, extensions or
amendments that do not increase the amount thereof;
(b) Indebtedness and Contingent Obligations under the Loan
Documents;
(c) purchase money Indebtedness and Capital Lease Obligations
incurred when no Default or Event of Default has occurred and remains
continuing, PROVIDED that the aggregate principal amount of such
Indebtedness and Capital Lease Obligations outstanding at any time
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does not exceed $3,000,000;
(d) Indebtedness consisting of one or more Swap Agreements
entered into with respect to the Obligations;
(e) refinancings of any of the Indebtedness and Capital Lease
Obligations described in the foregoing clauses of this Section, PROVIDED
that the amount thereof is not increased;
(f) Indebtedness incurred pursuant to the Indenture in an
aggregate principal amount not to exceed $120,000,000 and refinancings
thereof which are subordinated in the same manner and which do not
increase the amount thereof;
(g) subordinated Indebtedness of Borrower incurred to
Xxxxx X. Xxxxxx in connection with a contribution made pursuant to the
Completion Guaranty or the Make Well Agreement in the amounts required
thereby, PROVIDED that (i) such Indebtedness has a stated maturity not
less than 91 days following that of the Indebtedness under the Indenture
and accrues interest at a rate which is not greater than 9.25%, and (ii)
such Indebtedness may be incurred by Borrower only if Borrower is unable
to obtain approval from the appropriate Gaming Authorities for the
issuance of the preferred stock contemplated by the Completion Guaranty
and the Make Well Agreement;
(h) Contingent Obligations under mechanics lien indemnity
agreements executed in favor of Commonwealth Land Title Insurance Company
as of the Closing Date;
(i) Provided that the Opening has then occurred and that no
Default or Event of Default has occurred and remains continuing or would
result from such incurrence or assumption, following the date upon which
Borrower has delivered a Compliance Certificate demonstrating a the Total
Leverage Ratio of Borrower which is less than 4.25:1.00, Borrower may
incur or assume, in addition to the Indebtedness and Contingent
Obligations heretofore described in this Section, unsecured Indebtedness
in an aggregate outstanding principal amount which does not exceed
$10,000,000 at any time; and
(j) Contingent Obligations of Borrower with respect to
Indebtedness of Subsidiaries of Borrower incurred pursuant to the
foregoing clauses of this Section.
6.11 TRANSACTIONS WITH AFFILIATES. Enter into any transaction of
any kind with any Affiliate of Borrower OTHER THAN (a) salary, bonus and
other compensation arrangements with directors, officers, partners or
employees in the ordinary course of business and those no more favorable than
those in existence as of the Closing Date, (b) transactions between or among
Borrower and its Subsidiaries, (c) transactions on overall terms at least as
favorable to Borrower or its Subsidiaries as would be the case in an
arm's-length transaction between unrelated parties of equal bargaining power,
(d) reimbursement of expenses incurred by Persons controlled by Xxxxx X.
Xxxxxx in providing support and travel services to Borrower and its
Subsidiaries in the ordinary course of their business and consistent with
past practices, and (e) loans to employees of Borrower and its Subsidiaries
in the ordinary course of their business, PROVIDED that any loan in excess of
$200,000 shall have been approved by the disinterested
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members of the Board of Directors of Borrower.
6.12 SENIOR LEVERAGE RATIO. Permit the Senior Leverage Ratio as
of the last day of any Fiscal Quarter set forth below to exceed the ratio set
forth opposite that Fiscal Quarter:
Fiscal Quarter Ending Maximum Ratio
--------------------- -------------
11/30/98 2.25:1.00
2/28/99 3.75:1.00
5/31/99 3.85:1.00
8/31/99 3.00:1.00
11/30/99 2.35:1.00
Thereafter 2.00:1.00
6.13 FIXED CHARGE COVERAGE RATIO. Permit the Fixed Charge
Coverage Ratio as of the last day of any Fiscal Quarter set forth below to be
less than the ratio set forth opposite that Fiscal Quarter:
Fiscal Quarter Ending Minimum Ratio
--------------------- -------------
Closing Date through 1.15:1.00
February 1999
May 31, 1999 1.05:1.00
August 1999 and
November 30, 1999 1.15:1.00
Thereafter 1.20:1.00.
6.14 CAPITAL EXPENDITURES. Make or commit to make any
Capital Expenditure other than:
(a) Capital Expenditures made in connection with the
construction of the Proposed Expansion in an aggregate amount
which does not exceed $87,000,000; and
(b) Maintenance Capital Expenditures in an aggregate
amount not to exceed $5,000,000 during any Fiscal Year.
6.15 ACQUISITIONS AND INVESTMENTS. Make or suffer to
exist any Investment, OTHER THAN:
(a) Investments consisting of Cash and Cash
Equivalents;
(b) Investments consisting of advances to officers,
directors, partners and employees of Borrower and its
Subsidiaries for travel, entertainment, relocation and
analogous ordinary business purposes;
(c) Investments in Subsidiaries engaged solely in
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businesses reasonably related to the conduct of the business of
the Hard Rock Hotel and which are made in compliance with
Section 6.16; and
(d) Investments consisting of credit extended to
gaming patrons in the ordinary course of business and in
accordance with past practices.
6.16 NEW SUBSIDIARIES. Make or suffer to exist any
Investment in any Subsidiary, or form or acquire any Subsidiary,
unless:
(a) the Requisite Lenders have approved the same,
with such approval not to be unreasonably withheld; and
(b) concurrently with such Investment, acquisition
or formation, (i) Borrower has pledged its interest in the
capital stock and debt securities of such Subsidiary to the
Administrative Agent and the Lenders, (ii) such Subsidiary has
issued a guaranty of the Obligations and has granted perfected
first priority Liens in substantially all of its Property, in
each case pursuant to agreements which are in form and
substance acceptable to the Administrative Agent, and (iii)
Borrower and such Subsidiary have provided to the
Administrative Agent such other opinions, assurances and the
like as the Administrative Agent or the Requisite Lenders have
reasonably requested.
6.17 CONSTRUCTION OF THE PROPOSED EXPANSION.
(a) Fail to proceed diligently and without
interruption (EXCEPT as may be caused by Force Majeure Events)
to construct and furnish the Proposed Expansion in accordance
in all material respects with the Plans, the Budget and the
Timetable, and in any event on or before the Completion Date.
(b) Make any change to the Plans or Budget which
would (i) allocate or require the allocation of more than
$1,000,000 (in the aggregate of all such allocations) of the
$7,200,000 "contingency" line item in the Budget to any line
item not included in the Budget as of the Closing Date without
the prior written consent of the Requisite Lenders (not to be
unreasonably withheld or delayed), or (ii) increase the Budget
to more than $87,000,000.
(c) Make any change to the Plans, the Budget or
the Timetable which would cause the Completion Date to occur
after August 1, 1999.
(d) Fail to construct the Proposed Expansion in
a good and workmanlike manner in accordance with sound building
practices and the Plans, and comply in all material respects
with all existing Laws and requirements of all Governmental
Agencies having jurisdiction over the Project Site or the
Proposed Expansion and with all future Laws and requirements
that become applicable to the Project Site or the Proposed
Expansion prior to the Completion Date.
(e) Purchase or contract for any materials,
equipment, furnishings, fixtures or articles of personal
property to be placed or installed on the Project Site under
any security agreement or other agreement where the seller
reserves or purports to reserve
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title or the right of removal or repossession (EXCEPT for such
reservations as may arise solely by operation of Law), or the
right to consider such materials personal property after their
incorporation in the work of construction (except to the extent
permitted by Section 6.9 hereof), unless the Administrative Agent
in each instance has authorized Borrower to do so in writing.
(f) Fail to promptly pay when due (subject to
applicable retentions) or otherwise discharge all claims and
Liens for labor done and materials and services furnished in
connection with the construction of the Proposed Expansion,
EXCEPT for claims contested in good faith by appropriate
proceedings and without prejudice to the Timetable, PROVIDED
that any such claims are covered by such payment bonds or title
insurance policy endorsements as may be requested by the
Administrative Agent.
(g) Fail to promptly provide to the Administrative
Agent and CSG such information and documents respecting the
Proposed Expansion as either may reasonably request from time
to time, INCLUDING detailed identification of each significant
subcontractor or supplier to the Proposed Expansion and the
nature and dollar amount of the related subcontract or supply
contract.
(h) Fail to properly obtain, comply with and keep in
effect all permits, licenses and approvals which are
customarily required to be obtained from Governmental Agencies
in order to construct and occupy the Project Site and the
Proposed Expansion as of the then current stage of
construction, and deliver copies of all such permits, licenses
and approvals to the Administrative Agent promptly following a
request therefor.
(i) Make any material change to the Plans or Budget,
or in any event make any change to the Plan or Budget which
results in (A) any increase in the overall amount of the
Budget, or (B) any change in the scope of the Proposed
Expansion so that the square footage of the casino area would
be decreased, or (C) delete or amend any of the amenities
described on Schedule 1.1A.
(j) Fail to provide any and all information, which
is reasonably required for the preparation of a monthly
Construction Progress Report, to cooperate in the preparation
of each Construction Progress Report and, if requested by the
Administrative Agent, cause the Proposed Expansion architect
and general contractor to certify that the improvements
constructed as of the date of any Construction Progress Report
conform to the Plans in all material respects;
(k) Fail to maintain a full set of working drawings
at the Project Site for review by CSG;
(l) Fail, within 15 days following any request by
the Administrative Agent, to deliver (i) then current
construction plans for the Proposed Expansion certified as true
and correct by the Proposed Expansion architect and the project
engineer, (ii) a then current list of the names, addresses and
telephone numbers of each contractor, subcontractor and
material supplier with respect to the Proposed Expansion and
the dollar value and amounts paid with respect to the related
contracts, and (iii) then current versions of the construction
schedule for all uncompleted work on the Proposed
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Expansion and all executed contracts and subcontracts for such
work;
(m) Fail to promptly notify the Administrative
Agent if it purchases any construction materials for the
Proposed Expansion having a value in excess of $1,000,000 that
are not located on the Project Site, or will not be delivered
to the Project Site within fifteen days after purchase
(describing such construction materials, the purchase price
therefor and the location thereof) and, if requested by the
Administrative Agent, provide to the Administrative Agent the
written acknowledgment of the Person having custody of such
construction materials of the existence of the Administrative
Agent's Lien on such construction materials and the right of
the Administrative Agent to have access to and to remove such
construction materials when an Event of Default has occurred
and remains continuing.
(n) On or before the Opening, fail to provide the
Administrative Agent with a written certificate executed by the
project architect and contractor certifying that the Proposed
Expansion has been completed in all material respects in
accordance with the Plans and complies in all material respects
with all applicable zoning, building and land use Laws and that
the Proposed Expansion is ready to be opened for business
together with a Certificate executed by a Senior Officer to
that effect.
(o) Fail, as soon as practicable after
completion of the Proposed Expansion, provide the
Administrative Agent with an ALTA survey of the Project Site
that (i) demonstrates compliance of the Proposed Expansion in
all material respects with all applicable Laws and requirements
of Governmental Agencies, (ii) sets forth all easements and
licenses burdening the Project Site, (iii) reflects no
encroachments onto the Project Site and no encroachments by the
Proposed Expansion onto adjoining real property (other than as
reflected on the ALTA Survey described in the definition of
Project Site) and (iv) certifies the legal description of the
Project Site to be the same as that set forth in the title
insurance policies referred to in Section 8.1(a).
6.18 CHANGES TO THE SUBORDINATED OBLIGATIONS OR CODES, COVENANTS
AND RESTRICTIONS. Make any changes, amendments or modifications to the
terms of the Supervisory Agreement, the Indenture or any other Subordinated
Obligations which are materially adverse to the interests of the Creditors,
or amend, modify or fail to enforce (in any manner which is materially
adverse to the interests of the Lenders or which is directed by the
Administrative Agent) the Declaration of Codes, Covenants and Restrictions
dated made by Hotel Xxxxxx Limited Partnership dated July 27, 1989 and of
record as of the Closing Date.
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Article 7
INFORMATION AND REPORTING REQUIREMENTS
7.1 FINANCIAL AND BUSINESS INFORMATION. So long as any
Advance remains unpaid, or any Letter of Credit remains outstanding,
or any other Obligation remains unpaid or unperformed, or any portion
of the Commitment remains in force, Borrower shall, unless the
Administrative Agent (with the written approval of the Requisite
Lenders) otherwise consents, at Borrower's sole expense, deliver to
the Administrative Agent, a sufficient number of copies for all of the
Lenders, of the following:
(a) As soon as practicable, and in any event within
45 days after the end of each Fiscal Quarter, (i) the
consolidated and consolidating balance sheet, statement of
income and cash flows for the portion of the Fiscal Year ended
with such Fiscal Quarter, all in reasonable detail, and (ii) a
quarterly operating report with a narrative description in a
format which is mutually acceptable to Borrower and the
Administrative Agent. Such financial statements shall be
certified by the Chief Financial Officer or Treasurer of
Borrower as fairly presenting the financial condition, results
of operations and cash flows of Borrower and its Subsidiaries
in accordance with Generally Accepted Accounting Principles
(other than footnote disclosures), consistently applied, as at
such date and for such periods, subject only to normal year-end
accruals and audit adjustments;
(b) As soon as practicable, and in any event within
90 days after the end of each Fiscal Year, the consolidated and
consolidating balance sheet, statements of operations and cash
flows, in each case of Borrower and its Subsidiaries for such
Fiscal Year, in each case as at the end of and for the Fiscal
Year, all in reasonable detail. Such financial statements
shall be prepared in accordance with Generally Accepted
Accounting Principles, consistently applied, and such
consolidated balance sheet and consolidated statements shall be
accompanied by a report and opinion of independent public
accountants of recognized standing selected by Borrower and
reasonably satisfactory to the Requisite Lenders, which report
and opinion shall be prepared in accordance with generally
accepted auditing standards as at such date, and shall not be
subject to any qualifications or exceptions which are not
acceptable to the Requisite Lenders. Such accountants' report
shall be accompanied by a certificate stating that, in making
the examination pursuant to generally accepted auditing
standards necessary for the certification of such financial
statements and such report, such accountants have obtained no
knowledge of any Default or, if, in the opinion of such
accountants, any such Default shall exist, stating the nature
and status of such Default, and stating that such accountants
have reviewed Borrower's financial calculations as at the end
of such Fiscal Year (which shall accompany such certificate)
under Sections 6.12, 6.13 and 6.14, have read such Sections
(including the definitions of all defined terms used therein)
and that nothing has come to the attention of such accountants
in the course of such examination that would cause them to
believe that the same were not calculated by Borrower in the
manner prescribed by this Agreement;
(c) As soon as practicable, and in any event within
90 days after the commencement of each Fiscal Year, a budget
and
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projection by Fiscal Quarter for that Fiscal Year and by
Fiscal Year for the four succeeding Fiscal Years, INCLUDING
projected consolidated balance sheets, statements of operations
and statements of cash flow of Borrower and its Subsidiaries,
all in reasonable detail;
(d) Promptly after the same are available, copies of
each material change to the Plans (whether such changes require
the consent of the Lenders or not). Without limitation on the
foregoing, Borrower shall promptly provide CSG with (i) copies
of all change orders with respect to the Plans including plans
and specifications indicating the proposed change, a written
description of the proposed change and related work drawings
and a written estimate of the cost of the proposed change and
the time necessary to complete it, and (ii) any and all other
information and documents with respect thereto reasonably
requested by CSG;
(e) Promptly after request by the Administrative
Agent or any Lender, copies of any detailed audit reports,
management letters or recommendations submitted to Borrower by
independent accountants in connection with the accounts or
books of Borrower or any of its Subsidiaries, or any audit of
any of them;
(f) Promptly after the same are available, copies of
each annual report, proxy or financial statement or other
report or communication sent to the stockholders of Borrower,
and copies of all annual, regular, periodic and special reports
and registration statements which Borrower may file or be
required to file with the Securities and Exchange Commission
under Section 13 or 15(d) of the Securities Exchange Act of
1934, as amended, and not otherwise required to be delivered to
the Lenders pursuant to other provisions of this Section 7.1;
(g) Promptly after the same are available, copies of
the Nevada "Regulation 6.090 Report" and "6-A Report" and
copies of any written communication to Borrower or any of its
Subsidiaries from any Gaming Board advising it of a violation
of or non-compliance with any Gaming Law by Borrower or any of
its Subsidiaries;
(h) Promptly after request by the Administrative
Agent or any Lender, copies of any other material report or
other document that was filed by Borrower or any of its
Subsidiaries with any Governmental Agency;
(i) Promptly, and in any event within ten Banking
Days upon a Senior Officer becoming aware, of the occurrence of
any (i) "reportable event" (as such term is defined in
Section 4043 of ERISA) or (ii) "prohibited transaction" (as
such term is defined in Section 406 of ERISA or Section 4975 of
the Code) in connection with any Pension Plan or any trust
created thereunder, telephonic notice specifying the nature
thereof, and, no more than five Banking Days after such
telephonic notice, written notice again specifying the nature
thereof and specifying what action Borrower or any of its
Subsidiaries is taking or proposes to take with respect
thereto, and, when known, any action taken by the Internal
Revenue Service with respect thereto;
(j) As soon as practicable, and in any event within
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three Banking Days after a Senior Officer becomes aware of the
existence of any condition or event which constitutes a
Default, telephonic notice specifying the nature and period of
existence thereof, and, no more than two Banking Days after
such telephonic notice, written notice again specifying the
nature and period of existence thereof and specifying what
action Borrower is taking or proposes to take with respect
thereto;
(k) Promptly upon a Senior Officer becoming aware
that (i) any Person has commenced a legal proceeding with
respect to a claim against Borrower or any of its Subsidiaries
that is $500,000 or more in excess of the amount thereof that
is fully covered by insurance, (ii) any creditor or lessor
under a written credit agreement or material lease has asserted
a default thereunder on the part of Borrower or any of its
Subsidiaries, (iii) any Person has commenced a legal proceeding
with respect to a claim against Borrower or any of its
Subsidiaries under a contract that is not a credit agreement or
material lease in excess of $500,000 or which otherwise may
reasonably be expected to result in a Material Adverse Effect,
(iv) any labor union has notified Borrower of its intent to
strike Borrower or any of its Subsidiaries on a date certain
and such strike would involve more than 100 employees of
Borrower and its Subsidiaries, or (v) any Gaming Board has
indicated its intent to consider or act upon a License
Revocation or a fine or penalty of $1,000,000 or more with
respect to Borrower or any of its Subsidiaries, a written
notice describing the pertinent facts relating thereto and what
action Borrower or its Subsidiaries are taking or propose to
take with respect thereto;
(l) As soon as practicable, and in any event prior
to April 1 of any calendar year, (a) a Liquidity Report, and
(b) the annual personal financial report of Xxxxx X. Xxxxxx
with respect to the preceding calendar year; PROVIDED THAT it
is agreed that Xxxxx X. Xxxxxx'x personal financial report and
the Liquidity Report are subject to the provisions of Section
11.14; and
(m) Such other data and information as from time to
time may be reasonably requested by the Administrative Agent,
any Lender (through the Administrative Agent) or the Requisite
Lenders.
7.2 COMPLIANCE CERTIFICATES. For so long as any Advance remains
unpaid, any Letter of Credit remains outstanding, any other Obligation
remains unpaid or unperformed, or any portion of the Commitment remains
outstanding, Borrower shall deliver to the Administrative Agent for
distribution by it to the Lenders concurrently with the financial statements
required pursuant to Sections 7.1(a) a properly completed Compliance
Certificate signed by a Senior Officer.
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Article 8
CONDITIONS
8.1 INITIAL ADVANCES ON THE CLOSING DATE. The obligation of each
Lender to make the initial Advance to be made by it on the Closing Date, is
subject to the following conditions precedent, each of which shall be
satisfied prior to the making of the initial advances (unless all of the
Lenders, in their sole and absolute discretion, shall agree otherwise):
(a) The Administrative Agent shall have received all
of the following, each of which shall be originals unless
otherwise specified, each properly executed by a Responsible
Official of each party thereto, each dated as of the Closing
Date and each in form and substance satisfactory to the
Administrative Agent and its legal counsel (unless otherwise
specified or, in the case of the date of any of the following,
unless the Administrative Agent otherwise agrees or directs):
(1) executed counterparts of this Agreement,
sufficient in number for distribution to the Lenders and
Borrower;
(2) Notes executed by Borrower in favor of each
Lender, each in a principal amount equal to that Lender's
Pro Rata Share;
(3) the Swing Line Documents executed by
Borrower in favor of the Swing Line Lender;
(4) the Deed of Trust, executed and
acknowledged by Borrower;
(5) a fixture filing on form UCC-1 with respect
to the Project Site;
(6) the Security Agreement executed by
Borrower;
(7) such financing statements on Form UCC-1
executed by Borrower with respect to the Security
Agreement as the Administrative Agent may request;
(8) the Trademark Assignment, executed by
Borrower;
(9) a Certificate, signed by a Senior Officer
of Borrower certifying that attached thereto are true,
correct and complete copies of the Trademark Sublicense
Agreement, dated October 24, 1997 between Xxxxx X. Xxxxxx
and Borrower, as amended (which amendment shall be in form
and substance acceptable to the Lenders);
(10) the Completion Guaranty, executed by Xxxxx
X. Xxxxxx;
(11) the Make Well Agreement, executed by Xxxxx
X. Xxxxxx;
(12) the Subordination Agreement (regarding
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Supervisory Fees) executed by Xxxxx X. Xxxxxx;
(13) a certified execution copy of the
Indenture;
(14) the fee letter with respect to certain fees
due and owing to the Administrative Agent and the
Arranger, executed by Borrower;
(15) such documentation with respect to Borrower
as the Administrative Agent may require to establish its
due organization, valid existence and good standing, its
qualification to engage in business in each material
jurisdiction in which it is engaged in business or
required to be so qualified, its authority to execute,
deliver and perform the Loan Documents, the identity,
authority and capacity of each Responsible Official
thereof authorized to act on its behalf, INCLUDING
certified copies of articles of incorporation and
amendments thereto, bylaws and amendments thereto,
certificates of good standing and/or qualification to
engage in business, tax clearance certificates,
certificates of corporate resolutions, and incumbency
certificates;
(16) a Certificate of a Responsible Official
signed by a Senior Officer of Borrower attaching true,
correct and complete copies of the Plans and the Budget;
(17) the "Phase I" environmental report dated
September 27, 1989 prepared with respect to the Project
Site by Western Technologies, Inc.;
(18) a written appraisal by a qualified
independent appraiser acceptable to the Administrative
Agent and complying in all respects with FIRREA of
the Project Site that reflects (i) the fair market value
of the Project Site and the existing Hard Rock Hotel
improvements as of the Closing Date of not less than
$100,000,000 and (ii) a projected "as-built" value of the
Project Site and related improvements upon Completion of
the Expansion Project of not less than $150,000,000;
(19) a certificate of insurance issued by
Borrower's insurance carrier or agent with respect to the
insurance required to be maintained pursuant to the Deed
of Trust, including without limitation flood insurance and
a policy or policies of xxxxxx'x "all risk" insurance in
non-reporting form and in an amount not less than the then
current value of the improvements located on the Real
Property, to be increased on the Completion Date to the
full insurable completed value of Hard Rock Hotel and the
Proposed Expansion on a replacement cost basis, together
with lenders' loss payable endorsements thereof on
Form 438BFU or other form acceptable to the Administrative
Agent;
(20) assurances acceptable to the Administrative
Agent that the Commonwealth Land Title Insurance Company
is prepared to issue its ALTA lenders policy (with an
LP-10 pricing package), insuring that Borrower is the
owner of the Project Site in fee simple absolute and
insuring the Lien of
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the Deed of Trust in an amount not less than the amount
of the Commitment, subject only to the exceptions to title
described on Schedule 6.9 and with endorsements to coverage as
are reasonably acceptable to the Administrative Agent or as are
reasonably requested by the Requisite Lenders (including any
endorsements providing coverage as to exceptions to title
described on Schedule 6.9 as may be reasonably requested by the
Administrative Agent with respect thereto), with such
assurances as the Administrative Agent may reasonably require
from title re-insurers acceptable to the Administrative Agent;
(21) the Opinions of Counsel;
(22) a Certificate of a Responsible Official of
Borrower stating that attached thereto and incorporated
therein by reference are true, correct and complete copies
of the architect contract for the Proposed Expansion;
(23) The Timetable shall have been approved by
the Administrative Agent and the Lenders;
(24) a geotechnical report by a qualified
licensed soils engineer satisfactory to the Lenders and
certified as applicable to the improvements of the Project
Site contemplated by the Proposed Expansion;
(25) evidence satisfactory to the Requisite
Lenders of such zoning (including variances and use
permits) and other land use entitlements as may be
necessary to permit the use of the Project Site and the
Proposed Expansion as a hotel, casino and resort property;
(26) such assurances as the Administrative Agent
deems appropriate that the relevant Gaming Boards have
approved the transactions contemplated by the Loan
Documents (other than the Negative Pledge contemplated by
the Make Well Agreement) to the extent that such approval
is required by applicable Gaming Laws;
(27) a Certificate of a Responsible Official
signed by a Senior Officer of Borrower certifying that the
conditions specified in Sections 8.1(e) and 8.1(f) have
been satisfied;
(28) such other assurances, certificates,
documents, consents or opinions as the Administrative
Agent reasonably may require.
(b) Borrower shall have concurrently terminated the
Existing Credit Agreement pursuant to agreements acceptable to
the Administrative Agent, and shall have made arrangements
satisfactory to the Administrative Agent for the termination of
the deed of trust, financing statements and other security held
by the lenders under the Existing Credit Agreement.
(c) Evidence that the security interests of the
Administrative Agent in the personal property of Borrower are
of first priority, except as otherwise contemplated by the Loan
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Documents.
(d) The reasonable costs and expenses of the
Administrative Agent in connection with the preparation of the
Loan Documents payable pursuant to Section 11.3, and invoiced
to Borrower prior to the Closing Date, shall have been paid.
(e) The representations and warranties of Borrower
contained in Article 4 shall be true and correct.
(f) Borrower and any other Obligors shall be in
compliance with all the terms and provisions of the Loan
Documents, and after giving effect to the initial Advance, no
Default or Event of Default shall have occurred and be
continuing.
(g) The fees due and payable on the Closing Date
pursuant to Article 3 shall have been paid.
(h) Borrower shall have received, or shall
concurrently receive, the net proceeds of the issuance of its
$120,000,000 Senior Subordinated Notes due 2005 issued pursuant
to the Indenture, and the terms of the Indenture shall be
acceptable to the Administrative Agent.
(i) All legal matters relating to the Loan Documents
shall be satisfactory to Sheppard, Mullin, Xxxxxxx & Xxxxxxx,
LLP special counsel to the Administrative Agent.
8.2 ANY ADVANCE. The obligation of each Lender to make any
Advance, the obligation of the Issuing Lender to issue any Letter of Credit,
and the obligation of the Swing Line Lender to make any Swing Line Advance,
are each subject to the conditions precedent that:
(a) EXCEPT as disclosed by Borrower and approved in
writing by the Requisite Lenders, the representations and
warranties contained in Article 4 (OTHER THAN the
representations set forth in Sections 4.4, 4.10 and 4.17) shall
be true and correct on the date of such Advance as though made
on that date, (PROVIDED that after the release of the Make Well
Agreement, no such representations or warranties made with
respect to Xxxxx X. Xxxxxx shall be conditions to the making of
Loans, Letters of Credit or Swing Line Advances hereunder);
(b) There shall not be any pending or threatened
action, suit, proceeding or investigation affecting Borrower or
any of its Subsidiaries before any Governmental Agency that
constitutes a Material Adverse Effect;
(c) EXCEPT as provided for in Section 2.1(g), the
Administrative Agent shall have timely received a Request for
Loan in compliance with Article 2 (or telephonic or other
request for Loan referred to in the second sentence of
Section 2.1(b), if applicable) or the Issuing Lender shall have
received a Request for Letter of Credit, as the case may be, in
compliance with Article 2;
(d) no Default or Event of Default shall have
occurred and remain continuing or will result from such Advance
or Swing Line Advance or the issuance of such Letter of Credit;
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(e) the Administrative Agent shall have received, in
form and substance satisfactory to the Administrative Agent,
such other assurances, certificates, documents or consents
related to the foregoing as the Administrative Agent or the
Requisite Lenders reasonably may require.
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Article 9
EVENTS OF DEFAULT AND REMEDIES UPON EVENT OF DEFAULT
9.1 EVENTS OF DEFAULT. The existence or occurrence of any one or
more of the following events, whatever the reason therefor and under any
circumstances whatsoever, shall constitute an Event of Default:
(a) Borrower (i) fails to pay any principal on any
of the Notes, or any portion thereof, on the date when due,
(ii) fails to make any payment with respect to any Letter of
Credit when due, or (iii) fails to make any payment of
principal with respect to any Swing Line Advance when due; or
(b) Borrower fails to pay any interest on any of the
Notes, or any fees under Sections 3.4, 3.5, 3.6 or 3.7 or any
portion thereof, within two Banking Days after the date when
due; or fails to pay any other fee or amount payable to the
Lenders under any Loan Document, or any portion thereof, within
two Banking Days after demand therefor; or
(c) Borrower fails to comply with any of the
covenants contained in Article 6, PROVIDED that (i) at such
times as the Make Well Agreement is in effect, no Event of
Default shall exist solely by reason of a Default under
Sections 6.12 or 6.13 if, within ten Banking Days following the
first date upon which Borrower becomes aware of such a Default,
Xxxxx X. Xxxxxx makes all of the Additional Contributions
contemplated by the Make Well Agreement and cures all such
Defaults, and (ii) at such times as the Completion Guaranty is
in effect, no Event of Default shall exist under Section 6.17
solely by reason of the completion of the Proposed Expansion
and the related amenities described in Schedule 1.1A for an
amount which is in excess of the Budget, to the extent that
Xxxxx X. Xxxxxx has made Additional Contributions under the
Completion Guaranty in an amount which is not less than such
excess amount within the time periods provided for in the
Completion Guaranty;
(d) Borrower fails to comply with Sections 5.6 or
7.1(j) in any respect that is materially adverse to the
interests of the Lenders; or
(e) Borrower or any other Obligor fails to perform
or observe any other covenant or Agreement (not specified in
clauses (a), (b), (c) or (d) above) contained in any Loan
Document on its part to be performed or observed within
fifteen Banking Days after the giving of notice by the
Administrative Agent on behalf of the Requisite Lenders of such
Default; or
(f) Any representation or warranty of Borrower or
any other Obligor made in any Loan Document, or in any
certificate or other writing delivered by Borrower pursuant to
any Loan Document, proves to have been incorrect when made or
reaffirmed in any respect that is materially adverse to the
interests of the Lenders; or
(g) Borrower or any of its Subsidiaries (i) fails to
pay the principal, or any principal installment, of any present
or future Indebtedness for borrowed money of $1,000,000 or
more, or any guaranty of present or future Indebtedness for
borrowed money of
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$1,000,000 or more, on its part to be paid,
when due (or within any stated grace period), whether at the
stated maturity, upon acceleration, by reason of required
prepayment, the exercise of any "put" exercised by the holder
of such Indebtedness or otherwise or (ii) fails to perform or
observe any other term, covenant or Agreement on its part to be
performed or observed, or suffers any event to occur, in
connection with any present or future Indebtedness for borrowed
money of $1,000,000 or more, or of any guaranty of present or
future indebtedness for borrowed money of $1,000,000 or more,
if as a result of such failure or sufferance any holder or
holders thereof (or an agent or trustee on its or their behalf)
has the right to declare such indebtedness due before the date
on which it otherwise would become due; or
(h) Any event occurs which gives the holder or
holders of any Subordinated Obligation (or an agent or trustee
on its or their behalf) the right to declare such Subordinated
Obligation due before the date on which it otherwise would
become due, or the right to require the issuer thereof to
redeem or purchase, or offer to redeem or purchase, all or any
portion of any Subordinated Obligation; or
(i) Any Loan Document, at any time after its
execution and delivery and for any reason other than the
agreement of the Lenders or satisfaction in full of all the
Obligations ceases to be in full force and effect or is
declared by a court of competent jurisdiction to be null and
void, invalid or unenforceable in any respect which, in any
such event in the reasonable opinion of the Requisite Lenders,
is materially adverse to the interests of the Lenders; or any
Obligor thereto denies in writing that it has any or further
liability or obligation under any Loan Document, or purports to
revoke, terminate or rescind same; or
(j) A final judgment against Borrower or any of its
Subsidiaries is entered for the payment of money in excess of
$1,000,000 and, absent procurement of a stay of execution, such
judgment remains unsatisfied for thirty calendar days after the
date of entry of judgment, or in any event later than five days
prior to the date of any proposed sale thereunder; or any writ
or warrant of attachment or execution or similar process is
issued or levied against all or any part of the Property of any
such Person and is not released, vacated or fully bonded within
thirty calendar days after its issue or levy; or
(k) Borrower or any of its Subsidiaries institutes
or consents to the institution of any proceeding under a Debtor
Relief Law relating to it or to all or any part of its
Property, or is unable or admits in writing its inability to
pay its debts as they mature, or makes an assignment for the
benefit of creditors; or applies for or consents to the
appointment of any receiver, trustee, custodian, conservator,
liquidator, rehabilitator or similar officer for it or for all
or any part of its Property; or any receiver, trustee,
custodian, conservator, liquidator, rehabilitator or similar
officer is appointed without the application or consent of that
Person and the appointment continues undischarged or unstayed
for sixty calendar days; or any proceeding under a Debtor
Relief Law relating to any such Person or to all or any part of
its Property is instituted without the consent of that Person
and continues
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undismissed or unstayed for sixty calendar days; or
(l) The occurrence of an Event of Default (as such
term is or may hereafter be specifically defined in any other
Loan Document) under any other Loan Document; or
(m) Any determination is made by a court of
competent jurisdiction that any Subordinated Obligation is not
subordinated in accordance with its terms to the Obligations;
or
(n) Any Pension Plan maintained by Borrower or any
of its Subsidiaries is determined to have an "accumulated
funding deficiency" as that term is defined in Section 302 of
ERISA and the result is a Material Adverse Effect; or
(o) The occurrence of any License Revocation that
continues for five consecutive calendar days with respect to
any material gaming operations at the Hard Rock Hotel; or
(p) The occurrence of any Change of Control;
(q) At any time when the Completion Guaranty or the
Make Well Agreement is in effect, any event or circumstance of
the types described in Section 9.1(g), (j) or (k) occurs with
respect to Xxxxx X. Xxxxxx; or
(r) Any amendment is made to the terms of the
Indenture or any instrument, document or Agreement governing
Subordinated Obligations in violation of Section 6.18, or any
payment is made in violation of the terms of the Indenture or
the Subordination Agreement, or Xxxxx X. Xxxxxx or any of the
holders of the senior subordinated notes issued pursuant to the
Indenture asserts in writing that the obligations evidenced
thereby are not subordinated in accordance with their terms to
the Obligations.
9.2 Remedies Upon Event of Default. Without limiting any
other rights or remedies of the Administrative Agent or the Lenders
provided for elsewhere in this Agreement, or the other Loan Documents,
or by applicable Law, or in equity, or otherwise:
(a) Upon the occurrence, and during the continuance,
of any Event of Default other than an Event of Default
described in Section 9.1(k):
(1) the Commitment to make Advances, the
obligation of the Issuing Lender to issue Letters of
Credit, the obligation of the Swing Line Lender to make
Swing Line Advances and all other obligations of the
Creditors to the Obligors and all rights of Borrower and
the other Obligors under the Loan Documents shall be
suspended without notice to or demand upon Borrower, which
are expressly waived by Borrower, except that all of the
Lenders or the Requisite Lenders (as the case may be, in
accordance with Section 11.2) may waive an Event of
Default or, without waiving, determine, upon terms and
conditions satisfactory to the Lenders or Requisite
Lenders, as the case may be, to reinstate the Commitment
and make further Advances, and cause the Issuing Lender to
issue further Letters of Credit, which waiver or
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determination shall apply equally to, and shall be binding
upon, all the Lenders;
(2) the Issuing Lender may, with the approval
of the Administrative Agent on behalf of the Requisite
Lenders, demand immediate payment by Borrower of an amount
equal to the aggregate amount of all outstanding Letters
of Credit to be held by the Issuing Lender as cash
collateral hereunder; and
(3) the Requisite Lenders may request the
Administrative Agent to, and the Administrative Agent
thereupon shall, terminate the Commitment and may declare
all or any part of the unpaid principal of the Notes, all
interest accrued and unpaid thereon and all other amounts
payable under the Loan Documents to be forthwith due and
payable, whereupon the same shall become and be forthwith
due and payable, without protest, presentment, notice of
dishonor, demand or further notice of any kind, all of
which are expressly waived by Borrower.
(b) Upon the occurrence of any Event of Default
described in Section 9.1(k):
(1) the Commitment to make Advances, the
obligation of the Issuing Lender to issue Letters of
Credit, the obligation of the Swing Line Lender to make
Swing Line Advances and all other obligations of the
Creditors to the Obligors and all rights of Borrower and
any other Obligors under the Loan Documents shall
terminate without notice to or demand upon Borrower, which
are expressly waived by Borrower, except that all the
Lenders may waive the Event of Default or, without
waiving, determine, upon terms and conditions satisfactory
to all the Lenders, to reinstate the Commitment and make
further Advances and to cause the Issuing Lender to issue
further Letters of Credit,, which determination shall
apply equally to, and shall be binding upon, all the
Lenders;
(2) an amount equal to the aggregate amount of
all outstanding Letters of Credit shall be immediately due
and payable to the Issuing Lender without notice to or
demand upon Borrower, which are expressly waived by
Borrower, to be held by the Issuing Lender in an interest-
bearing account as collateral hereunder; and
(3) the unpaid principal of all Notes, all
interest accrued and unpaid thereon and all other amounts
payable under the Loan Documents shall be forthwith due
and payable, without protest, presentment, notice of
dishonor, demand or further notice of any kind, all of
which are expressly waived by Borrower.
(c) Upon the occurrence and during the continuance
of any Event of Default, the Lenders and the Administrative
Agent, or any of them, without notice to (except as expressly
provided for in any Loan Document) or demand upon Borrower,
which are expressly waived by Borrower (except as to notices
expressly provided for in any Loan Document), may proceed (but
only with the consent of the Requisite Lenders) to protect,
exercise and enforce their rights and remedies under the Loan
Documents against Borrower and any other
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Obligor and such other rights and remedies as are provided by Law
or equity. Without limitation upon the foregoing, if any Event of
Default occurs before the Opening, the Administrative Agent shall
have the right (to the extent not prohibited by applicable Laws)
in the sole discretion of the Requisite Lenders to enter and take
possession of the Proposed Expansion, whether in person, by
agent or by court-appointed receiver, and to take any and all
actions which the Administrative Agent in its sole discretion
after consultation with the Lenders may consider necessary to
complete construction of the Proposed Expansion, including
making changes in the Plans, work or materials and entering
into, modifying or terminating any contractual arrangements,
all subject to the Administrative Agent's and the Lenders'
right at any time to discontinue any work without liability,
PROVIDED that the Administrative Agent shall discontinue the
exercise of the rights provided by this sentence if the Event
of Default is cured to the satisfaction of the Requisite
Lenders. If the Administrative Agent and the Requisite Lenders
choose to complete the Proposed Expansion, neither the
Administrative Agent nor the Lenders shall assume any liability
to Borrower or any other Person for completing the Proposed
Expansion, or for the manner or quality of construction of the
Proposed Expansion, and Borrower expressly waives any such
liability not associated with the gross negligence and willful
misconduct of the Administrative Agent or the Lenders. If the
Administrative Agent exercises any of the rights or remedies
provided in this paragraph on behalf of the Lenders, that
exercise shall not make the Administrative Agent or the
Lenders, or cause the Administrative Agent or the Lenders to be
deemed to be, a partner or joint venturer of Borrower. The
Administrative Agent in its sole discretion may choose to
complete construction in its own name. All sums which are
expended by the Administrative Agent and/or the Lenders in
completing construction shall be considered to have been
disbursed to Borrower and shall be secured by the Collateral;
any sums of principal shall be considered to be additional
Loans to Borrower bearing interest at the Default Rate, and
shall be secured by the Collateral. For these purposes the
Administrative Agent, in its sole discretion, may reallocate
any line item or cost category of the Budget.
(d) The order and manner in which the Lenders'
rights and remedies are to be exercised shall be determined by
the Requisite Lenders in their sole discretion, and all
payments received by the Administrative Agent and the Lenders,
or any of them, shall be applied first to the costs and
expenses (including reasonable attorneys' fees and
disbursements and the reasonably allocated costs of attorneys
employed by the Administrative Agent or by any Lender) of the
Administrative Agent and of the Lenders, and thereafter paid
pro rata to the Lenders in the same proportions that the
aggregate Obligations owed to each Lender under the Loan
Documents bear to the aggregate Obligations owed under the Loan
Documents to all the Lenders, without priority or preference
among the Lenders. Regardless of how each Lender may treat
payments for the purpose of its own accounting, for the purpose
of computing Borrower's Obligations hereunder and under the
Notes, payments shall be applied FIRST, to the costs and
expenses of the Administrative Agent and the Lenders, as set
forth above, SECOND, to the payment of accrued and unpaid
interest due under any Loan Documents to and including the date
of such application (ratably, and without duplication,
according to the accrued and unpaid interest due under each of
the Loan
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Documents), and THIRD, to the payment of all other amounts (including
principal and fees) then owing to the Administrative Agent or the
Lenders under the Loan Documents. No application of payments will cure
any Event of Default, or prevent acceleration, or continued
acceleration, of amounts payable under the Loan Documents, or prevent
the exercise, or continued exercise, of rights or remedies of the
Lenders hereunder or thereunder or at Law or in equity.
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Article 10
THE ADMINISTRATIVE AGENT
10.1 APPOINTMENT AND AUTHORIZATION. Subject to Section 10.8, each
Creditor hereby irrevocably appoints and authorizes the Administrative Agent
to take such action as administrative agent on its behalf and to exercise
such powers under the Loan Documents as are delegated to the Administrative
Agent by the terms thereof or are reasonably incidental, as determined by the
Administrative Agent, thereto. This appointment and authorization is
intended solely for the purpose of facilitating the servicing of the Loans
and does not constitute appointment of the Administrative Agent as a trustee
or agent for any Lender or as representative of any Lender for any other
purpose and, EXCEPT as specifically set forth in the Loan Documents to the
contrary, the Administrative Agent shall take such action and exercise such
powers only in an administrative and ministerial capacity.
10.2 ADMINISTRATIVE AGENT AND AFFILIATES. Bank of America (and
each successor Administrative Agent) has the same rights and powers under the
Loan Documents as any other Lender and may exercise the same as though it
were not the Administrative Agent, and the term "Lender" or "Lenders"
includes Bank of America in its individual capacity. Bank of America (and
each successor Administrative Agent) and its Affiliates may accept deposits
from, lend money to and generally engage in any kind of banking, trust or
other business with Borrower, any Subsidiary thereof, or any Affiliate of
Borrower or any Subsidiary thereof, as if it were not the Administrative
Agent and without any duty to account therefor to the other Creditors. Bank
of America (and each successor Administrative Agent) need not account to any
other Creditor for any monies received by it for reimbursement of its costs
and expenses as Administrative Agent hereunder, or for any monies received by
it in its capacity as a Lender hereunder. The Administrative Agent shall not
be deemed to hold a fiduciary trust or other special relationship or any
other special relationship with any other Creditor and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be read
into this Agreement or otherwise exist against the Administrative Agent.
10.3 PROPORTIONATE INTEREST IN ANY COLLATERAL. The Administrative
Agent, on behalf of all the Creditors, shall hold in accordance with the Loan
Documents all items of any collateral or interests therein received or held
by the Administrative Agent. Subject to the Administrative Agent's right to
reimbursement for its costs and expenses hereunder (INCLUDING reasonable
attorneys' fees and disbursements and other professional services and the
reasonably allocated costs of attorneys employed by the Administrative Agent)
and subject to the application of payments in accordance with Section 9.2(d),
each Lender shall have an interest in the Collateral or interests therein in
the same proportions that the aggregate Obligations owed such Lender under
the Loan Documents bear to the aggregate Obligations owed under the Loan
Documents to all the Lenders, without priority or preference among the
Lenders, EXCEPT that Obligations owed to any Lender under a Secured Swap
Agreement shall be secured on a PARI PASSU basis with all other Obligations
up to an amount equal to the Administrative Agent's then customary credit
risk factor for Swap Agreements times the notional amount of Indebtedness
covered by such Secured Swap Agreement and shall be secured on a subordinate
basis as to amounts in excess of such amount.
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10.4 LENDERS' CREDIT DECISIONS. Each Creditor agrees that it has,
independently and without reliance any other Creditor or the directors,
officers, agents, employees or attorneys thereof, and instead in reliance
upon information supplied to it by or on behalf of Borrower and upon such
other information as it has deemed appropriate, made its own independent
credit analysis and decision to enter into this Agreement. Each Lender
agrees that it shall, independently and without reliance upon any other
Creditor or the directors, officers, agents, employees or attorneys thereof,
continue to make its own independent credit analyses and decisions in acting
or not acting under the Loan Documents.
10.5 ACTION BY ADMINISTRATIVE AGENT.
(a) Absent actual knowledge of the Administrative Agent of
the existence of a Default or Event of Default, the Administrative
Agent may assume that no Default or Event of Default has occurred and
is continuing, unless the Administrative Agent has received notice from
Borrower stating the nature of the Default or has received notice from
a Lender stating the nature of the Default and that such Lender
considers the Default to have occurred and to be continuing.
(b) The Administrative Agent has only those obligations
under the Loan Documents as are expressly set forth therein.
(c) EXCEPT for any obligation expressly set forth in the
Loan Documents and as long as the Administrative Agent may assume that
no Event of Default has occurred and is continuing, the Administrative
Agent may, but shall not be required to, exercise its discretion to act
or not act, PROVIDED that (i) the Administrative Agent shall be
required to act or not act upon the instructions of the Requisite
Lenders (or of all the Lenders, to the extent required by Section 11.2)
and those instructions shall be binding upon the Administrative Agent
and all of the other Creditors, and (ii) the Administrative Agent shall
not be required to act or not act if to do so would be contrary to any
Loan Document or to applicable Law or would result, in the reasonable
judgment of the Administrative Agent, in substantial risk of liability
to the Administrative Agent.
(d) If the Administrative Agent has received a notice
specified in clause (a), the Administrative Agent shall immediately
give notice thereof to the Lenders and shall act or not act upon the
instructions of the Requisite Lenders (or of all the Lenders, to the
extent required by Section 11.2), PROVIDED that (i) the Administrative
Agent shall not be required to act or not act if to do so would be
contrary to any Loan Document or to applicable Law or would result, in
the reasonable judgment of the Administrative Agent, in substantial
risk of liability to the Administrative Agent, and (ii) if the
Requisite Lenders (or all the Lenders, if required under Section 11.2)
fail, for five Banking Days after the receipt of notice from the
Administrative Agent, to instruct the Administrative Agent, then the
Administrative Agent, in its sole discretion, may act or not act as it
deems advisable for the protection of the interests of the Lenders.
(e) The Administrative Agent shall have no liability to any
Creditor for acting, or not acting, as instructed by the Requisite
Lenders (or all the Lenders, if required under Section 11.2),
notwithstanding any other provision hereof.
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10.6 LIABILITY OF ADMINISTRATIVE AGENT. Neither the
Administrative Agent nor any of its directors, officers, agents, employees or
attorneys shall be liable for any action taken or not taken by them under or
in connection with the Loan Documents, EXCEPT for their own gross negligence
or willful misconduct. Without limitation on the foregoing, the
Administrative Agent and its directors, officers, agents, employees and
attorneys:
(a) May treat the payee of any Note as the holder thereof
until the Administrative Agent receives notice of the assignment or
transfer thereof, in form satisfactory to the Administrative Agent,
signed by the payee, and may treat each Lender as the owner of that
Lender's interest in the Obligations for all purposes of this Agreement
until the Administrative Agent receives notice of the assignment or
transfer thereof, in form satisfactory to the Administrative Agent,
signed by that Lender.
(b) May consult with legal counsel (INCLUDING in-house legal
counsel), accountants (INCLUDING in-house accountants) and other
professionals or experts selected by it, or with legal counsel,
accountants or other professionals or experts for Borrower or its
Subsidiaries or the Lenders, and shall not be liable for any action
taken or not taken by it in good faith in accordance with any advice of
such legal counsel, accountants or other professionals or experts.
(c) Shall not be responsible to any Creditor for any
statement, warranty or representation made in any of the Loan Documents
or in any notice, certificate, report, request or other statement
(written or oral) given or made in connection with any of the Loan
Documents.
(d) EXCEPT to the extent expressly set forth in the Loan
Documents, shall have no duty to ask or inquire as to the performance
or observance by any Obligor of any of the terms, conditions or
covenants of any of the Loan Documents or to inspect any Collateral or
the Property, books or records of Obligor.
(e) Will not be responsible to any Creditor for the due
execution, legality, validity, enforceability, genuineness,
effectiveness, sufficiency or value of any Loan Document, any other
instrument or writing furnished pursuant thereto or in connection
therewith, or any Collateral.
(f) Will not incur any liability by acting or not acting in
reliance upon any Loan Document, notice, consent, certificate,
statement, request or other instrument or writing believed by it to be
genuine and signed or sent by the proper party or parties.
(g) Will not incur any liability for any arithmetical error
in computing any amount paid or payable by any Obligor or paid or
payable to or received or receivable from any Lender under any Loan
Document, INCLUDING, without limitation, principal, interest,
commitment fees, Advances and other amounts; PROVIDED that, promptly
upon discovery of such an error in computation, the Administrative
Agent, the Lenders and (to the extent applicable) Borrower and/or its
Subsidiaries or Affiliates shall make such adjustments as are neces-
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sary to correct such error and to restore the parties to the position
that they would have occupied had the error not occurred.
10.7 INDEMNIFICATION. Each Lender shall, ratably in accordance
with its Pro Rata Share (if the Commitment is then in effect) or in
accordance with its proportion of the aggregate Indebtedness then evidenced
by the Notes (if the Commitment has then been terminated), indemnify and hold
the Administrative Agent, the Arranger and the Co-Agent and each of their
respective directors, officers, agents, employees and attorneys harmless
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever (INCLUDING, without limitation, attorneys' fees and
disbursements and reasonably allocated costs of attorneys employed by the
Administrative Agent, the Arranger or the Co-Agent) that may be imposed on,
incurred by or asserted against it or them in any way relating to or arising
out of the Loan Documents (other than losses incurred by reason of the
failure of Borrower to pay the Indebtedness represented by the Notes) or any
action taken or not taken by such indemnitee thereunder, except such as
result from its own gross negligence or willful misconduct. Without
limitation on the foregoing, each Lender shall reimburse the Administrative
Agent upon demand for that Lender's Pro Rata Share of any out-of-pocket cost
or expense incurred by the Administrative Agent in connection with the
negotiation, preparation, execution, delivery, amendment, waiver,
restructuring, reorganization (INCLUDING a bankruptcy reorganization),
enforcement or attempted enforcement of the Loan Documents, to the extent
that Borrower or any other Obligor is required by Section 11.3 to pay that
cost or expense but fails to do so upon demand. Nothing in this Section 10.7
shall entitle the Administrative Agent, the Arranger or the Co-Agent to
recover any amount from the Lenders if and to the extent that such amount has
theretofore been recovered from Borrower or any of its Subsidiaries. To the
extent that the Administrative Agent, the Arranger or the Co-Agent are later
reimbursed such cost or expense by Borrower or any of its Subsidiaries, they
shall return the amounts paid to it by the Lenders in respect of such cost or
expense.
10.8 SUCCESSOR ADMINISTRATIVE AGENT. The Administrative Agent
may, and at the request of the Requisite Lenders shall, resign as
Administrative Agent upon thirty days' notice to the Lenders and Borrower.
If the Administrative Agent resigns as Administrative Agent under this
Agreement, the Requisite Lenders shall appoint from among the Lenders a
successor administrative agent for the Lenders, which successor
administrative agent shall be approved by Borrower (and such approval shall
not be unreasonably withheld or delayed or, if any Event of Default exists,
required). If no successor administrative agent is appointed prior to the
effective date of the resignation of the Administrative Agent, the
Administrative Agent may appoint, after consulting with the Lenders and
Borrower, a successor administrative agent from among the Lenders. Upon the
acceptance of its appointment as successor administrative agent hereunder,
such successor administrative agent shall succeed to all the rights, powers
and duties of the retiring Administrative Agent and the term "Administrative
Agent" shall mean such successor administrative agent and the retiring
Administrative Agent's appointment, powers and duties as Administrative Agent
shall be terminated. After any retiring Administrative Agent's resignation
hereunder as Administrative Agent, the provisions of this Article 10, and
Sections 11.3, 11.11 and 11.22, shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Administrative Agent. If (a)
the Administrative Agent has not been paid its agency fees under Section 3.6
or has not been reimbursed for
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any expense reimbursable to it under Section 11.3, in either case for a
period of at least one year and (b) no successor administrative agent has
accepted appointment as Administrative Agent by the date which is thirty days
following a retiring Administrative Agent's notice of resignation, the
retiring Administrative Agent's resignation shall nevertheless thereupon
become effective and the Lenders shall perform all of the duties of the
Administrative Agent hereunder until such time, if any, as the Requisite
Lenders appoint a successor administrative agent as provided for above.
10.9 FORECLOSURE ON COLLATERAL. In the event of foreclosure or
enforcement of the Lien created by any of the Collateral Documents, title to
the Collateral covered thereby shall be taken and held by the Administrative
Agent (or any designee thereof) pro rata for the benefit of the Lenders in
accordance with their Pro Rata Share of the Commitment and shall be
administered in accordance with the standard form of collateral holding
participation agreement used by the Administrative Agent in comparable
syndicated credit facilities.
10.10 NO OBLIGATIONS OF BORROWER. Nothing contained in this
Article 10 shall be deemed to impose upon Borrower any obligation in respect
of the due and punctual performance by the Administrative Agent of its
obligations to the Lenders under any provision of this Agreement, and
Borrower shall have no liability to the Administrative Agent or any of the
Lenders in respect of any failure by the Administrative Agent or any Lender
to perform any of its obligations to the Administrative Agent or the Lenders
under this Agreement. Without limiting the generality of the foregoing,
where any provision of this Agreement relating to the payment of any amounts
due and owing under the Loan Documents provides that such payments shall be
made by Borrower to the Administrative Agent for the account of the Lenders,
Borrower's obligations to the Lenders in respect of such payments shall be
deemed to be satisfied upon the making of such payments to the Administrative
Agent in the manner provided by this Agreement.
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Article 11
MISCELLANEOUS
11.1 CUMULATIVE REMEDIES; NO WAIVER. The rights, powers,
privileges and remedies of the Creditors provided herein, in the Notes and in
the other Loan Documents are cumulative and not exclusive of any right,
power, privilege or remedy provided by Law or equity. No failure or delay on
the part of any Creditor in exercising any right, power, privilege or remedy
may be, or may be deemed to be, a waiver thereof; nor may any single or
partial exercise of any right, power, privilege or remedy preclude any other
or further exercise of the same or any other right, power, privilege or
remedy. The terms and conditions of Article 8 are inserted for the sole
benefit of the Creditors; the same may be waived in whole or in part, with or
without terms or conditions, in respect of any Loan or Letter of Credit
without prejudicing the Creditors' rights to assert them in whole or in part
in respect of any other Loan.
11.2 AMENDMENTS; CONSENTS. No amendment, modification,
supplement, extension, termination or waiver of any provision of this
Agreement or any other Loan Document, no approval or consent thereunder, and
no consent to any departure by Borrower or any other Obligor therefrom, may
in any event be effective unless in writing signed or approved in writing by
the Requisite Lenders ( and, in the case of any amendment, modification or
supplement to Article 10, signed by the Administrative Agent), and then only
in the specific instance and for the specific purpose given; and, without the
approval in writing of all the Lenders, no amendment, modification,
supplement, termination, waiver or consent may be effective:
(a) To amend or modify the principal of, or the amount of
principal, principal prepayments or the rate of interest payable on,
any Note, or the amount of the Commitment or the Pro Rata Share of any
Lender (except in connection with any assignments made in accordance
with Section 11.8 with the consent of all necessary parties) or to
decrease the amount of any commitment fee payable to any Lender, or to
decrease any other fee or amount payable to any Lender under the Loan
Documents;
(b) To postpone any date fixed for any payment of principal
of, prepayment of principal of or any installment of interest on, any
Note or any installment of any commitment fee or letter of credit fee,
or to extend the term of the Commitment, or to release the Completion
Guaranty or any collateral for the Completion Guaranty (except as
otherwise provided in any Loan Document), or the Make Well Agreement;
(c) To permit the term of any Letter of Credit to exceed one
year or extend beyond the Maturity Date;
(d) to release any portion of the Collateral having an
aggregate value in excess of $500,000 (EXCEPT as provided in Section
11.24 or as otherwise expressly provided in any Loan Document);
(e) To amend the provisions of the definition of "REQUISITE
LENDERS", Articles 8 or 9 or this Section 11.2; or
(f) To amend any provision of this Agreement that
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expressly requires the consent or approval of all the Lenders.
Any amendment, modification, supplement, termination, waiver or
consent pursuant to this Section 11.2 shall apply equally to, and
shall be binding upon, all of the Creditors.
11.3 COSTS, EXPENSES AND TAXES. Borrower shall pay within two
Banking Days after demand, accompanied by an invoice therefor:
(a) the reasonable costs and expenses of the Administrative
Agent and the Arranger in connection with the negotiation, preparation,
syndication, administration, execution and delivery of the Loan
Documents;
(b) the reasonable costs and expenses of the Administrative
Agent in connection with any amendment to the Loan Documents or any
waiver of the terms thereof; and
(c) the reasonable costs and expenses of the Administrative
Agent and the Lenders in connection with the refinancing,
restructuring, reorganization (INCLUDING a bankruptcy reorganization)
and enforcement or attempted enforcement of the Loan Documents, and any
matter related thereto.
The foregoing costs and expenses shall include the actual environmental
review fees, filing fees, recording fees, title insurance premiums and fees,
appraisal fees, search fees, and other out-of-pocket expenses and the
reasonable fees and out-of-pocket expenses of any legal counsel (INCLUDING
reasonably allocated costs of legal counsel employed by the Administrative
Agent or any Lender), independent public accountants and other outside
experts retained by the Administrative Agent or any Lender, whether or not
such costs and expenses are incurred or suffered by the Administrative Agent
or any Lender in connection with or during the course of any bankruptcy or
insolvency proceedings of any Obligor. Such costs and expenses shall also
include, in the case of any amendment or waiver of any Loan Document
requested by Borrower, the administrative costs of the Administrative Agent
reasonably attributable thereto. Borrower shall pay any and all documentary
and other taxes, EXCLUDING, in the case of each Creditor, (i) taxes imposed
on or measured in whole or in part by its overall net income, gross income or
gross receipts or capital and franchise taxes imposed on it, (ii) any
withholding taxes or other taxes based on gross income imposed by the United
States of America (other than withholding taxes and taxes based on gross
income resulting from or attributable to any change in any law, rule or
regulation or any change in the interpretation or administration of any law,
rule or regulation by any Governmental Agency) or (iii) any withholding taxes
or other taxes based on gross income imposed by the United States of America
for any period with respect to which it has failed to provide Borrower with
the appropriate form or forms required by Section 11.21, to the extent such
forms are then required by applicable Laws, and all costs, expenses, fees and
charges payable or determined to be payable in connection with the filing or
recording of this Agreement, any other Loan Document or any other instrument
or writing to be delivered hereunder or thereunder, or in connection with any
transaction pursuant hereto or thereto, and shall reimburse, hold harmless
and indemnify the Administrative Agent and the Lenders from and against any
and all loss, liability or legal or other expense with respect to or
resulting from any delay in paying or failure to pay any such tax, cost,
expense, fee or charge or that any of them may
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suffer or incur by reason of the failure of any Obligor to perform any
of its Obligations. Any amount payable to the Administrative Agent or
any Lender under this Section 11.3 shall bear interest from the second
Banking Day following the date of demand for payment at the Default Rate.
11.4 NATURE OF LENDERS' OBLIGATIONS. The obligations of the
Lenders hereunder are several and not joint or joint and several. Nothing
contained in this Agreement or any other Loan Document and no action taken by
any Creditor pursuant hereto or thereto may, or may be deemed to, make any of
the Creditors a partnership, an association, a joint venture or other entity,
either among themselves or with Borrower or any Affiliate of Borrower. Each
Lender's obligation to make any Advance pursuant hereto is several and not
joint or joint and several, and in the case of the initial Advance only, is
conditioned upon the performance by all other Lenders of their obligations to
make initial Advances. A default by any Lender will not increase the Pro
Rata Share of the Commitment attributable to any other Lender. Any Lender not
in default may, if it desires, assume in such proportion as the nondefaulting
Lenders agree the obligations of any Lender in default, but is not obligated
to do so.
11.5 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties contained herein or in any other Loan
Document, or in any certificate or other writing delivered by or on behalf of
any one or more of the Obligors, will survive the making of the Loans
hereunder and the execution and delivery of the Notes, and have been or will
be relied upon by each Creditor, notwithstanding any investigation made by
the Creditors or on their behalf.
11.6 NOTICES. EXCEPT as otherwise expressly provided in the Loan
Documents, all notices, requests, demands, directions and other
communications provided for hereunder or under any other Loan Document must
be in writing and must be mailed, telecopied, dispatched by commercial
courier or delivered to the appropriate party at the address set forth on the
signature pages of this Agreement or other applicable Loan Document or, as to
any party to any Loan Document, at any other address as may be designated by
it in a written notice sent to all other parties to such Loan Document in
accordance with this Section. EXCEPT as otherwise expressly provided in any
Loan Document, if any notice, request, demand, direction or other
communication required or permitted by any Loan Document is given by mail it
will be effective on the earlier of receipt or the third calendar day after
deposit in the United States mail with first class or airmail postage
prepaid; if given by telecopier, when sent; if dispatched by commercial
courier, on the scheduled delivery date; or if given by personal delivery,
when delivered.
11.7 EXECUTION OF LOAN DOCUMENTS. Unless the Administrative Agent
otherwise specifies with respect to any Loan Document, (a) this Agreement and
any other Loan Document may be executed in any number of counterparts and any
party hereto or thereto may execute any counterpart, each of which when
executed and delivered will be deemed to be an original and all of which
counterparts of this Agreement or any other Loan Document, as the case may
be, when taken together will be deemed to be but one and the same instrument
and (b) execution of any such counterpart may be evidenced by a telecopier
transmission of the signature of such party. The execution of this Agreement
or any other Loan Document by any party hereto or thereto will not become
effective until counterparts hereof or thereof, as the case may be, have been
executed by all the parties hereto or thereto.
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11.8 BINDING EFFECT; ASSIGNMENT.
(a) This Agreement and the other Loan Documents to which
Borrower is a party will be binding upon and inure to the benefit of
Borrower and the Creditors, and their respective successors and
assigns, EXCEPT that Borrower may not assign its rights hereunder or
thereunder or any interest herein or therein without the prior written
consent of all the Lenders. Each Lender represents that it is not
acquiring its Note with a view to the distribution thereof within the
meaning of the Securities Act of 1933, as amended (subject to any
requirement that disposition of such Note must be within the control of
such Lender). Any Lender may at any time pledge its Note or any other
instrument evidencing its rights as a Lender under this Agreement to a
Federal Reserve Bank, but no such pledge shall release that Lender from
its obligations hereunder or grant to such Federal Reserve Bank the
rights of a Lender hereunder absent foreclosure of such pledge.
(b) From time to time following the Closing Date, each
Lender may assign to one or more Eligible Assignees all or any portion
of its Pro Rata Share; PROVIDED that (i) such Eligible Assignee, if not
then a Lender or an Affiliate of the assigning Lender, shall be
approved by the Administrative Agent and Borrower (neither of which
approvals shall be unreasonably withheld or delayed), PROVIDED that the
consent of Borrower to assignments shall not be required when any
Default or Event of Default has occurred and remains continuing, (ii)
such assignment shall be evidenced by an Assignment Agreement, a copy
of which shall be furnished to the Administrative Agent as provided
below, (iii) EXCEPT in the case of an assignment to an Affiliate of the
assigning Lender, to another Lender or of the entire remaining
Commitment of the assigning Lender, the assignment shall not assign a
Pro Rata Share of the Commitment equivalent to less than $5,000,000,
and (iv) the effective date of any such assignment shall be as
specified in the Assignment Agreement, but not earlier than the date
which is five Banking Days after the date the Administrative Agent has
received the Assignment Agreement. Upon the effective date of such
Assignment Agreement, the Eligible Assignee named therein shall be a
Lender for all purposes of this Agreement, with the Pro Rata Share
therein set forth and, to the extent of such Pro Rata Share, the
assigning Lender shall be released from its further obligations under
the Loan Documents. Borrower agrees that it shall execute and deliver
(against delivery by the assigning Lender to Borrower of its Note) to
such assignee Lender, a Note evidencing that assignee Lender's Pro Rata
Share, and to the assigning Lender, a Note evidencing the remaining
balance Pro Rata Share retained by the assigning Lender.
(c) By executing and delivering an Assignment Agreement, the
Eligible Assignee thereunder acknowledges and agrees that: (i) other
than the representation and warranty that it is the legal and
beneficial owner of the Pro Rata Share being assigned thereby free and
clear of any adverse claim, the assigning Lender has made no
representation or warranty and assumes no responsibility with respect
to any statements, warranties or representations made in or in
connection with this Agreement or the execution, legality, validity,
enforceability, genuineness or sufficiency of this Agreement or any
other Loan Document; (ii) the assigning Lender has
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made no representation or warranty and assumes no responsibility with
respect to the financial condition of Borrower or the performance by
Borrower of the Obligations; (iii) it has received a copy of this
Agreement, together with copies of the most recent financial statements
delivered pursuant to Section 7.1 and such other documents and
information as it has deemed appropriate to make its own credit
analysis and decision to enter into such Assignment Agreement; (iv) it
will, independently and without reliance upon the Administrative Agent
or any Lender and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions
in taking or not taking action under this Agreement; (v) it appoints
and authorizes the Administrative Agent to take such action and to
exercise such powers under this Agreement and the other Loan Documents
as are delegated to the Administrative Agent by this Agreement; and
(vi) it will perform in accordance with their terms all of the
obligations which by the terms of this Agreement are required to be
performed by it as a Lender.
(d) The Administrative Agent shall maintain at the
Administrative Agent's Office a copy of each Assignment Agreement
delivered to it. After receipt of a completed Assignment Agreement
executed by any Lender and an Eligible Assignee, and receipt of an
assignment fee of $3,500 from such Eligible Assignee, the
Administrative Agent shall, promptly following the effective date
thereof, provide to Borrower and the Lenders a revised list of the Pro
Rata Shares of the Lenders giving effect thereto.
(e) Each Lender may from time to time grant participations
to one or more banks or other financial institutions (INCLUDING another
Lender) in a portion of its Pro Rata Share; PROVIDED, HOWEVER, that (i)
such Lender's obligations under this Agreement shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations, (iii) the participating
banks or other financial institutions shall not be a Lender hereunder
for any purpose except, if the participation Agreement so provides, for
the purposes of Sections 3.7, 3.8, 11.11 and 11.22 but only to the
extent that the cost of such benefits to Borrower does not exceed the
cost which Borrower would have incurred in respect of such Lender
absent the participation, (iv) Borrower, the Administrative Agent and
the other Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under
this Agreement, (v) the participation interest shall be expressed as a
percentage of the granting Lender's Pro Rata Share as it then exists
and shall not restrict an increase in the Commitment, or in the
granting Lender's Pro Rata Share, so long as the amount of the
participation interest is not affected thereby and (vi) the consent of
the holder of such participation interest shall not be required for
amendments or waivers of provisions of the Loan Documents OTHER THAN
those which (A) extend the Maturity Date or any other date upon which
any payment of money is due to the Lenders, (B) reduce the rate of
interest on the Notes, any fee or any other monetary amount payable to
the Lenders, (C) reduce the amount of any installment of principal due
under the Notes, (D) change the definition of "Requisite Lenders" or
(E) release any material portion of the Collateral.
(f) Notwithstanding anything in this Section 11.8 to
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the contrary, the rights of the Lenders to make assignments of, and
grant participations in, their Pro Rata Shares of the Commitment shall
be subject to the approval of any Gaming Board (including the approval
of the identity of any proposed assignee or participant), to the extent
required by applicable Gaming Laws.
11.9 RIGHT OF SETOFF. If an Event of Default has occurred and is
continuing, each Creditor may (but only with the consent of the Requisite
Lenders) exercise its rights under Article 9 of the Uniform Commercial Code
and other applicable Laws and, to the extent permitted by applicable Laws,
apply any funds in any deposit account maintained with it by Borrower or any
Property of Borrower in its possession against the Obligations.
11.10 SHARING OF SETOFFS. Each Lender severally agrees that if
it, through the exercise of any right of setoff, banker's lien or
counterclaim against Borrower, or otherwise, receives payment of the
Obligations held by it that is ratably more than any other Lender, through
any means, receives in payment of the Obligations held by that Lender, then,
subject to applicable Laws (a) the Lender exercising the right of setoff,
banker's lien or counterclaim or otherwise receiving such payment shall
purchase, and shall be deemed to have simultaneously purchased, from the
other Lender a participation in the Obligations held by the other Lender and
shall pay to the other Lender a purchase price in an amount so that the share
of the Obligations held by each Lender after the exercise of the right of
setoff, banker's lien or counterclaim or receipt of payment shall be in the
same proportion that existed prior to the exercise of the right of setoff,
banker's lien or counterclaim or receipt of payment; and (b) such other
adjustments and purchases of participations shall be made from time to time
as shall be equitable to ensure that all of the Lenders share any payment
obtained in respect of the Obligations ratably in accordance with each
Lender's share of the Obligations immediately prior to, and without taking
into account, the payment; PROVIDED that, if all or any portion of a
disproportionate payment obtained as a result of the exercise of the right of
setoff, banker's lien, counterclaim or otherwise is thereafter recovered from
the purchasing Lender by Borrower or any Person claiming through or
succeeding to the rights of Borrower, the purchase of a participation shall
be rescinded and the purchase price thereof shall be restored to the extent
of the recovery, but without interest. Each Lender that purchases a
participation in the Obligations pursuant to this Section 11.10 shall from
and after the purchase have the right to give all notices, requests, demands,
directions and other communications under this Agreement with respect to the
portion of the Obligations purchased to the same extent as though the
purchasing Lender were the original owner of the Obligations purchased.
Borrower expressly consents to the foregoing arrangements and agrees that any
Lender holding a participation in an Obligation so purchased may exercise any
and all rights of setoff, banker's lien or counterclaim with respect to the
participation as fully as if the Lender were the original owner of the
Obligation purchased.
11.11 INDEMNITY BY BORROWER. Borrower agrees to indemnify, save
and hold harmless the Creditors and their directors, officers, agents,
attorneys and employees (collectively the "INDEMNITEES") from and against:
(a) any and all claims, demands, actions or causes of action, if the claim,
demand, action or cause of action arises out of or relates to any act or
omission (or alleged act or omission) of Borrower, any other Obligor, their
respective Affiliates or any of their respective partners,
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officers, directors or stockholders relating to the Commitment, the use or
contemplated use of proceeds of any Loan, Letter of Credit or Swing Line
Advance, or the relationship between any such Person and the Creditors under
this Agreement; (b) any administrative or investigative proceeding by any
Governmental Agency arising out of or related to a claim, demand, action or
cause of action described in clause (a) above; and (c) any and all
liabilities, losses, costs or expenses (INCLUDING reasonable attorneys' fees
and the reasonably allocated costs of attorneys employed by any Indemnitee
and disbursements of such attorneys and other professional services) that any
Indemnitee suffers or incurs as a result of the assertion of any foregoing
claim, demand, action or cause of action; PROVIDED that no Indemnitee shall
be entitled to indemnification for any loss caused by its own gross
negligence or willful misconduct. If any claim, demand, action or cause of
action is asserted against any Indemnitee, such Indemnitee shall promptly
notify Borrower, but the failure to so promptly notify Borrower shall not
affect Borrower's obligations under this Section unless such failure
materially prejudices Borrower's right to participate in the contest of such
claim, demand, action or cause of action, as hereinafter provided. Each
Indemnitee may contest the validity, applicability and amount of such claim,
demand, action or cause of action with counsel of its own chosing and shall
permit Borrower to participate in such contest. Any Indemnitee that proposes
to settle or compromise any claim or proceeding for which Borrower may be
liable for payment of indemnity hereunder shall give Borrower written notice
of the terms of such proposed settlement or compromise reasonably in advance
of settling or compromising such claim or proceeding. In connection with any
claim, demand, action or cause of action covered by this Section 11.11
against more than one Indemnitee, all such Indemnitees shall be represented
by the same legal counsel (which may be a law firm engaged by the Indemnitees
or attorneys employed by an Indemnitee or a combination of the foregoing)
selected by the Indemnitees and reasonably acceptable to Borrower; PROVIDED,
that if such legal counsel determines in good faith that representing all
such Indemnitees would or could result in a conflict of interest under Laws
or ethical principles applicable to such legal counsel or that a defense or
counterclaim is available to an Indemnitee that is not available to all such
Indemnitees, then to the extent reasonably necessary to avoid such a conflict
of interest or to permit unqualified assertion of such a defense or
counterclaim, each Indemnitee shall be entitled to separate representation by
legal counsel selected by that Indemnitee and reasonably acceptable to
Borrower, with all such legal counsel using reasonable efforts to avoid
unnecessary duplication of effort by counsel for all Indemnitees; and FURTHER
PROVIDED that the Administrative Agent and the Arranger (as Indemnitees)
shall at all times be entitled to representation by separate legal counsel
(which may be a law firm or attorneys employed by the Administrative Agent or
the Arranger or a combination of the foregoing). Any obligation or liability
of Borrower to any Indemnitee under this Section 11.11 shall survive the
expiration or termination of this Agreement, the repayment of all Loans, the
expiration or termination of all Letters of Credit and the payment and
performance of all other Obligations owed to the Lenders.
11.12 NONLIABILITY OF THE LENDERS. Borrower acknowledges and
agrees that:
(a) Any inspections of any Property of Borrower made by or
through the Creditors are for purposes of administration of the Loans
and Letters of Credit only and Borrower is not entitled to rely upon
the same (whether or not such inspections are at the expense of
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Borrower);
(b) By accepting or approving anything required to
be observed, performed, fulfilled or given to the Creditors
pursuant to the Loan Documents, no Creditor shall be deemed to
have warranted or represented the sufficiency, legality,
effectiveness or legal effect of the same, or of any term,
provision or condition thereof, and such acceptance or approval
thereof shall not constitute a warranty or representation to
anyone with respect thereto by any Creditor;
(c) The relationship between Borrower and Creditors
is, and shall at all times remain, solely that of borrower and
lenders; no Creditor shall under any circumstance be construed
to be a partner or joint venturer with of Borrower or its
Affiliates; no creditor shall under any circumstance be deemed
to be in a relationship of confidence or trust or a fiduciary
or other special relationship with Borrower or its Affiliates,
or to owe any fiduciary duty or other special duty to Borrower
or its Affiliates; no Creditor undertakes or assumes any
responsibility or duty to Borrower or its Affiliates to select,
review, inspect, supervise, pass judgment upon or inform
Borrower or its Affiliates of any matter in connection with
their Property or the operations of Borrower or its Affiliates;
Borrower and its Affiliates shall rely entirely upon their own
judgment with respect to such matters; and any review,
inspection, supervision, exercise of judgment or supply of
information undertaken or assumed by the Creditors in
connection with such matters is solely for the protection of
the Creditors and neither Borrower nor any other Person is
entitled to rely thereon; and
(d) The Creditors shall not be responsible or liable
to any Person for any loss, damage, liability or claim of any
kind relating to injury or death to Persons or damage to
Property caused by the actions, inaction or negligence of
Borrower or its Affiliates and Borrower hereby indemnifies and
holds each Creditor harmless from any such loss, damage,
liability or claim.
11.13 NO THIRD PARTIES BENEFITED. This Agreement is
made for the purpose of defining and setting forth certain obligations,
rights and duties of Borrower and the Creditors in connection with
the Loans, Letters of Credit and Swing Line Advances and is made
for the sole benefit of Borrower, the Creditors and the Creditors'
successors and assigns. EXCEPT as provided in Sections 11.8,
11.11 and 11.14, no other Person shall have any rights of any
nature hereunder or by reason hereof.
11.14 CONFIDENTIALITY. Each Lender agrees to hold any
confidential information that it may receive from Xxxxx X. Xxxxxx or
Borrower pursuant to this Agreement in confidence, EXCEPT for
disclosure: (a) to other Lenders; (b) to legal counsel and
accountants for Borrower or any Lender; (c) to other professional
advisors to Borrower or any Lender, provided that the recipient has
accepted such information subject to a confidentiality Agreement
substantially similar to this Section 11.14; (d) to regulatory
officials having jurisdiction over that Lender; (e) to any Gaming
Board having regulatory jurisdiction over Borrower or its
Subsidiaries; (f) as required by Law or legal process or in connection
with any legal proceeding to which that Lender and Borrower are
adverse parties; and (g) to another financial institution in
connection with a disposition or proposed disposition to that
financial institution of all or part of that Lender's interests
hereunder or a participation interest in its Note,
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provided that the recipient has accepted such information subject to a
written confidentiality Agreement. For purposes of the foregoing,
"confidential information" shall mean (x) any information respecting Borrower
reasonably considered by Borrower to be confidential, OTHER THAN (i)
information previously filed with any Governmental Agency and available to
the public, (ii) information previously published in any public medium from a
source other than, directly or indirectly, that Lender, and (iii) information
previously disclosed by Borrower to any Person not associated with themselves
without a confidentiality Agreement or obligation substantially similar to
this Section 11.14, and (y) the personal financial reports of Xxxxx X. Xxxxxx
and the Liquidity Reports delivered hereunder, and any other information
concerning Xxxxx X. Xxxxxx delivered to the Creditors marked confidential or
otherwise delivered in a confidential manner. Notwithstanding the foregoing
provisions of this Section, the Administrative Agent shall not disclose the
contents of any personal financial report to any of the other Creditors or
any other Person except to the extent required by Law or legal process.
Nothing in this Section shall be construed to create or give rise to any
fiduciary duty or other special duty on the part of any Creditor to Xxxxx X.
Xxxxxx or to Borrower. Xxxxx X. Xxxxxx is an intended third party
beneficiary of this Section.
11.15 FURTHER ASSURANCES. Borrower and its Subsidiaries
shall, at their expense and without expense to the Creditors, do, execute and
deliver such further acts and documents as any Creditor from time to time
reasonably requires for the assuring and confirming unto the Creditors of the
rights hereby created or intended now or hereafter so to be, or for carrying
out the intention or facilitating the performance of the terms of any Loan
Document.
11.16 INTEGRATION. This Agreement, together with the other
Loan Documents and the letter agreements referred to in Sections 3.2, 3.3,
3.5, 3.6, 3.7 and 11.3, comprises the complete and integrated Agreement of
the parties on the subject matter hereof and supersedes all prior agreements,
written or oral, on the subject matter hereof. In the event of any conflict
between the provisions of this Agreement and those of any other Loan
Document, the provisions of this Agreement shall control and govern; PROVIDED
that the inclusion of supplemental rights or remedies in favor of the
Creditors in any other Loan Document shall not be deemed a conflict with this
Agreement. Each Loan Document was drafted with the joint participation of
the respective parties thereto and shall be construed neither against nor in
favor of any party, but rather in accordance with the fair meaning thereof.
11.17 GOVERNING LAW. EXCEPT to the extent otherwise provided
therein, each Loan Document shall be governed by, and construed and enforced
in accordance with, the local Laws of Nevada, without reference to the choice
of law or conflicts of laws provisions thereof.
11.18 SEVERABILITY OF PROVISIONS. Any provision in any Loan
Document that is held to be inoperative, unenforceable or invalid as to any
party or in any jurisdiction shall, as to that party or jurisdiction, be
inoperative, unenforceable or invalid without affecting the remaining
provisions or the operation, enforceability or validity of that provision as
to any other party or in any other jurisdiction, and to this end the
provisions of all Loan Documents are declared to be severable.
11.19 HEADINGS. Article and Section headings in this
Agreement
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and the other Loan Documents are included for convenience of
reference only and are not part of this Agreement or the other Loan
Documents for any other purpose.
11.20 TIME OF THE ESSENCE. Time is of the essence of
the Loan Documents.
11.21 FOREIGN LENDERS AND PARTICIPANTS. Each Lender, and each
holder of a participation interest herein, that is incorporated or otherwise
organized under the Laws of a jurisdiction other than the United States of
America or any State thereof or the District of Columbia shall deliver to
Borrower (with a copy to the Administrative Agent) within twenty days after
the Closing Date (or after accepting an assignment or receiving a
participation interest herein pursuant to Section 11.8, if applicable) two
duly completed copies, signed by a Responsible Official, of either Form 1001
(relating to such Person and entitling it to a complete exemption from
withholding on all payments to be made to such Person by Borrower pursuant to
this Agreement) or Form 4224 (relating to all payments to be made to such
Person by Borrower pursuant to this Agreement) of the United States Internal
Revenue Service or such other evidence (INCLUDING, if reasonably necessary,
Form W-9) satisfactory to Borrower and the Administrative Agent that no
withholding under the federal income tax laws is required with respect to
such Person. Thereafter and from time to time, each such Person shall (a)
promptly submit to Borrower (with a copy to the Administrative Agent) such
additional duly completed and signed copies of one of such forms (or such
successor forms as shall be adopted from time to time by the relevant United
States taxing authorities) as may then be available under then current United
States laws and regulations to avoid, or such evidence as is satisfactory to
Borrower and the Administrative Agent of any available exemption from, United
States withholding taxes in respect of all payments to be made to such Person
by Borrower pursuant to this Agreement and (b) take such steps as shall not
be materially disadvantageous to it, in the reasonable judgment of such
Lender, and as may be reasonably necessary (including the re-designation of
its LIBOR Office, if any) to avoid any requirement of applicable Laws that
Borrower make any deduction or withholding for taxes from amounts payable to
such Person.
11.22 HAZARDOUS MATERIAL INDEMNITY. Borrower hereby
agrees to indemnify, hold harmless and defend (by counsel reasonably
satisfactory to the Administrative Agent) the Creditors and their
respective directors, officers, employees, agents, successors and
assigns from and against any and all claims, losses, damages,
liabilities, fines, penalties, charges, administrative and judicial
proceedings and orders, judgments, remedial action requirements,
enforcement actions of any kind, and all reasonable costs and expenses
incurred in connection therewith (including but not limited to
reasonable attorneys' fees and the reasonably allocated costs of
attorneys employed by any of the Creditors, and expenses to the extent
that the defense of any such action has not been assumed by Borrower),
arising directly or indirectly out of:
(a) the presence on, in, under or attributable to any Real
Property of any Hazardous Materials, or any releases or
discharges of any Hazardous Materials on, under or from any
Real Property; and
(b) any activity carried on or undertaken on any Real Property
by Borrower, any of its Subsidiaries, or any of their
respective predecessors in title, whether prior to or during
the term of this Agreement (but not after the Obligations are
paid in full and the
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Commitment terminated), and whether by Borrower, its Subsidiaries or
any predecessor in title or any employees, agents, contractors or
subcontractors of Borrower, its Subsidiaries or any predecessor in
title, or any third persons at any time prior to the payment in full of
the Obligations and the termination of the Commitment occupying or
present on any Real Property, in connection with the handling,
treatment, removal, storage, decontamination, clean-up, transport or
disposal of any Hazardous Materials at any time located or present on,
in, under or affecting any Real Property.
The foregoing indemnity shall further apply to any residual contamination on,
in, under or affecting any Real Property, or affecting any natural resources,
and to any contamination of any Real Property or related natural resources
arising from the generation, use, handling, storage, transport or disposal of
any such Hazardous Materials, and irrespective of whether any of such
activities were or will be undertaken in accordance with applicable Hazardous
Materials Laws, but the foregoing indemnity shall not apply to Hazardous
Materials on any Real Property, the presence of which is caused by the
relevant Creditor. Borrower hereby acknowledges and agrees that,
notwithstanding any other provision of this Agreement or any of the other
Loan Documents to the contrary, the obligations of Borrower under this
Section (and under Sections 4.18 and 5.10) shall be unlimited obligations of
Borrower and shall not be secured by any mortgage or deed of trust on any
Real Property. Any obligation or liability of Borrower to any Indemnitee
under this Section shall survive the expiration or termination of this
Agreement and the repayment of all of the Obligations until (but not beyond)
the date upon which the applicable statute of limitations for the related
cause of action shall have expired.
11.23 GAMING BOARDS. The Administrative Agent and each of the
Lenders agree to cooperate with all Gaming Boards in connection with the
administration of their regulatory jurisdiction over Borrower and its
Subsidiaries, INCLUDING the provision of such documents or other information
as may be requested by any such Gaming Board relating to Borrower or any of
its Subsidiaries or to the Loan Documents.
11.24 WAIVER OF RIGHT TO TRIAL BY JURY. EACH PARTY TO THIS
AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY
WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES
HERETO OR ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS
RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND
WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY
AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION
SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS
AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY
COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE
WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
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11.25 PURPORTED ORAL AMENDMENTS. BORROWER EXPRESSLY
ACKNOWLEDGES THAT THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS MAY ONLY BE
AMENDED OR MODIFIED, OR THE PROVISIONS HEREOF OR THEREOF WAIVED OR
SUPPLEMENTED, BY AN INSTRUMENT IN WRITING THAT COMPLIES WITH SECTION 11.2.
BORROWER AGREES THAT IT WILL NOT RELY ON ANY COURSE OF DEALING, COURSE OF
PERFORMANCE, OR ORAL OR WRITTEN STATEMENTS BY ANY CREDITOR OR ITS
REPRESENTATIVES THAT DOES NOT COMPLY WITH SECTION 11.2 TO EFFECT AN
AMENDMENT, MODIFICATION, WAIVER OR SUPPLEMENT TO THIS AGREEMENT OR THE OTHER
LOAN DOCUMENTS.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the date first above written.
HARD ROCK HOTEL, INC., a Nevada corporation
By: /s/ Xxxxx X. Xxxxxx
----------------------------
Title: CEO
-------------------------
Address for notices:
Hard Rock Hotel and Casino
000 Xxxxx Xxxxxxxxx Xxxxxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxx
Telephone: 000 000-0000
Telecopier: 000 000-0000
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, as Administrative Agent and
Issuing Lender
By: /s/ Xxxxx Xxxxx
----------------------------
Title: Vice President
-------------------------
Address:
Bank of America National Trust and Savings
Association
000 Xxxxx Xxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx Xxxxxxx, Vice President
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
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XXXX XX XXXXXXX NATIONAL TRUST AND SAVINGS
ASSOCIATION, as a Lender
By: /s/ Xxxxx Xxxxx
----------------------------
Title: Vice President
-------------------------
Address:
Bank of America National Trust and Savings
Association
000 Xxxxx Xxxxxx Xxxxxx, #0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx Xxxxx, Vice President
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
With a copy to:
Bank of America National Trust and
Savings Association
000 Xxxxx Xxxxxx Xxxxxx (XX-0000)
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx Xxxxx, Managing Director
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
IMPERIAL BANK, as a Lender
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------
Xxxxxx X. Xxxxxxx, Vice President
Address for Notices:
Imperial Bank
0000 Xxxxx Xx Xxxxxxx
00xx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx
Telephone: 310/000-0000
Telecopier: 310/417-5997
XXXXX FARGO BANK, N.A., as a Lender
By: /s/ Xxxxxx Xxxxxxxx
---------------------------
Xxxxxx Xxxxxxxx, V.P.
-------------------------
Address for Notices:
Xxxxx Fargo Bank, N.A.
0 Xxxx 0xx Xxxxxx, Xxxxx 000
Xxxx, Xxxxxx 00000
Telephone: 702/000-0000
Telecopier: 702/334-5637
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Schedule 1.1C
LENDER AMOUNT PRO RATA SHARE
----- ------ --------------
Bank of America National Trust
and Savings Association $37,000,000 55.0000000%
Imperial Bank $15,000,000 22.3880597%
Xxxxx Fargo Bank, N.A. $15,000,000 22.3880597%
-------------------------------------------------------------------
Total $67,000,000 100%
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