Exhibit 4.9
CREDIT AGREEMENT
among
XXXXXX'X ENTERTAINMENT, INC.,
XXXXXX'X OPERATING COMPANY, INC.,
CERTAIN SUBSIDIARIES OF XXXXXX'X OPERATING COMPANY, INC.,
VARIOUS BANKS,
CANADIAN IMPERIAL BANK OF COMMERCE
and
SOCIETE GENERALE,
as CO-SYNDICATION AGENTS,
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION,
as DOCUMENTATION AGENT,
and
BANKERS TRUST COMPANY,
as ADMINISTRATIVE AGENT
----------------------------------
Dated as of June 9, 1995
and
Amended and Restated
as of April 1, 1998
----------------------------------
TABLE OF CONTENTS
Page
SECTION 1. Amount and Terms of Credit.......................................1
1.01 The Commitments..................................................1
1.02 Minimum Amount of Each Borrowing of Revolving Loans..............3
1.03 Notice of Borrowing..............................................3
1.04 Competitive Bid Borrowings.......................................3
1.05 Disbursement of Funds............................................5
1.06 Notes............................................................6
1.07 Conversions......................................................7
1.08 Pro Rata Borrowings..............................................8
1.09 Interest.........................................................8
1.10 Interest Periods.................................................9
1.11 Increased Costs, Illegality, etc................................10
1.12 Compensation....................................................13
1.13 Change of Lending Office........................................13
1.14 Replacement of Banks............................................13
SECTION 2. Fees; Reductions of Revolving Loan Commitment; Final
Maturity Date Extensions..............................................14
2.01 Fees............................................................15
2.02 Voluntary Termination of Unutilized Revolving Loan
Commitments.....................................................15
2.03 Mandatory Reduction of Revolving Loan Commitments...............16
2.04 Final Maturity Date Extensions..................................17
SECTION 3. Prepayments; Payments; Taxes....................................18
3.01 Voluntary Prepayments...........................................18
3.02 Mandatory Repayments............................................19
3.03 Method and Place of Payment.....................................20
3.04 Net Payments...................................................21
SECTION 4A. Conditions Precedent to the First Restatement Effective Date...23
4A.01 Execution of Agreement; Notes..................................23
4A.02 Officer's Certificate..........................................24
4A.03 Opinions of Counsel............................................24
4A.04 Corporate Documents; Proceedings...............................24
4A.05 Company/Sub Guaranty...........................................25
4A.06 8-3/4% Senior Subordinated Notes Redemption....................25
4A.07 Adverse Change.................................................25
4A.08 Litigation.....................................................25
4A.09 Approvals, etc.................................................26
4A.10 5-Year Credit Agreement........................................27
4A.11 Solvency Certificate...........................................27
4A.12 Historical Financial Statements; Pro Forma Financial
Statements and Projections.....................................27
4A.13 Payment of Fees; etc...........................................27
SECTION 4B. Conditions Precedent to the Showboat Merger Effective
Date and the incurrence of Loans on such date.........................28
4B.01 First Restatement Effective Date...............................28
4B.02 Officer's Certificate..........................................28
4B.03 Opinions of Counsel............................................28
4B.04 Corporate Documents; Proceedings...............................29
4B.05 The Showboat Merger............................................29
4B.06 Existing Showboat Notes Tender Offers/Consent Solicitations....29
4B.07 Existing Showboat Working Capital Facility.....................30
4B.08 Adverse Change.................................................30
4B.09 Litigation.....................................................30
4B.10 Approvals, etc.................................................30
4B.11 Solvency Certificate...........................................31
4B.12 Schedules......................................................32
SECTION 5. Conditions Precedent to All Loans..............................32
5.01 No Default; Representations and Warranties.....................32
5.02 Notice of Borrowing; Competitive Bid Loans.....................32
5.03 Election to Become a Subsidiary Borrower.......................32
(2)
SECTION 6. Representations, Warranties and Agreements......................33
6.01 Status..........................................................34
6.02 Power and Authority.............................................34
6.03 No Violation....................................................34
6.04 Governmental Approvals..........................................35
6.05 Financial Statements; Financial Condition; Undisclosed
Liabilities; Projections; etc...................................35
6.06 Litigation......................................................37
6.07 True and Complete Disclosure....................................37
6.08 Use of Proceeds; Margin Regulations.............................38
6.09 Tax Returns and Payments........................................38
6.10 Compliance with ERISA...........................................39
6.11 Properties......................................................39
6.12 Capitalization..................................................39
6.13 Subsidiaries....................................................40
6.14 Compliance with Statutes, etc...................................40
6.15 Investment Company Act..........................................40
6.16 Public Utility Holding Company Act..............................40
6.17 Environmental Matters...........................................41
6.18 Labor Relations.................................................42
6.19 Patents, Licenses, Franchises and Formulas......................42
6.20 Existing Indebtedness...........................................42
6.21 Transaction.....................................................43
6.22 No Other Ventures...............................................43
SECTION 7. Affirmative Covenants...........................................43
7.01 Information Covenants...........................................43
7.02 Books, Records and Inspections..................................46
7.03 Maintenance of Property; Insurance..............................47
7.04 Corporate Franchises............................................48
7.05 Compliance with Statutes, etc...................................48
7.06 Compliance with Environmental Laws..............................48
7.07 ERISA...........................................................49
7.08 End of Fiscal Years; Fiscal Quarters............................50
7.09 Performance of Obligations......................................50
7.10 Payment of Taxes................................................50
7.11 Additional Guarantors; etc.....................................51
(3)
7.12 Showboat Change of Control Offers to Purchase and Showboat
Change of Control Purchases; Existing Showboat Notes Tender
Offers/Consent Solicitations....................................52
7.13 Existing Showboat Notes Defeasances.............................53
7.14 8-3/4% Senior Subordinated Notes Redemption.....................53
SECTION 8. Negative Covenants..............................................53
8.01 Liens...........................................................53
8.02 Consolidation, Merger, Purchase or Sale of Assets, etc..........57
8.03 Dividends.......................................................59
8.04 Indebtedness....................................................61
8.05 Advances, Investments and Loans.................................64
8.06 Transactions with Affiliates....................................67
8.07 Maximum Leverage Ratio..........................................67
8.08 Consolidated Interest Coverage Ratio............................68
8.09 Minimum Consolidated Net Worth..................................69
8.10 Limitation on Payments and Modifications of Certain Other
Debt; Modifications of Certificate of Incorporation,
Partnership Agreements, Limited Liability Company Agreements
and By-Laws; etc................................................69
8.11 Limitation on Certain Restrictions on Subsidiaries..............71
8.12 Limitation on Issuance of Capital Stock.........................72
8.13 Business........................................................72
8.14 Ownership of Subsidiaries.......................................72
8.15 Special Purpose Corporation.....................................72
SECTION 9. Events of Default...............................................72
9.01 Payments........................................................72
9.02 Representations, etc............................................73
9.03 Covenants.......................................................73
9.04 Default Under Other Agreements..................................73
9.05 Bankruptcy, etc.................................................73
9.06 ERISA...........................................................74
9.07 Guarantees......................................................75
9.08 Judgments.......................................................75
9.09 Gaming Authority................................................75
9.10 Change of Control...............................................75
9.11 Xxxxxxxx/Las Vegas Stock Restrictions...........................75
(4)
SECTION 10. Definitions and Accounting Terms...............................76
10.01 Defined Terms..................................................76
SECTION 11. The Administrative Agent......................................104
11.01 Appointment...................................................104
11.02 Nature of Duties..............................................105
11.03 Lack of Reliance on the Administrative Agent..................105
11.04 Certain Rights of the Administrative Agent....................106
11.05 Reliance......................................................106
11.06 Indemnification...............................................106
11.07 The Administrative Agent in its Individual Capacity...........106
11.08 Holders.......................................................107
11.09 Resignation by the Administrative Agent.......................107
11.10 The Documentation Agent and the Co-Syndication Agents ........108
SECTION 12. Miscellaneous.................................................109
12.01 Payment of Expenses, etc......................................110
12.02 Right of Setoff...............................................111
12.03 Notices.......................................................112
12.04 Benefit of Agreement..........................................112
12.05 No Waiver; Remedies Cumulative................................116
12.06 Payments Pro Rata.............................................116
12.07 Calculations; Computations....................................117
12.08 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF
JURY TRIAL....................................................118
12.09 Counterparts..................................................119
12.10 Effectiveness.................................................119
12.11 Headings Descriptive..........................................119
12.12 Amendment or Waiver...........................................120
12.13 Survival......................................................121
12.14 Domicile of Loans.............................................121
12.15 Application of Gaming Regulations.............................122
12.16 Confidentiality...............................................123
12.17 Miscellaneous; Register.......................................123
12.18 Requisite Gaming Approvals....................................124
SECTION 13. Parent Guaranty...............................................125
13.01 The Guaranty..................................................125
13.02 Bankruptcy....................................................125
(5)
13.03 Nature of Liability...........................................126
13.04 Independent Obligation........................................126
13.05 Authorization.................................................126
13.06 Reliance......................................................127
13.07 Subordination.................................................128
13.08 Waiver........................................................128
SCHEDULE I Revolving Loan Commitments
SCHEDULE II Tax Matters
SCHEDULE III Subsidiaries
SCHEDULE IV Existing Indebtedness
SCHEDULE V Joint Ventures
SCHEDULE VI Insurance
SCHEDULE VII Existing Liens
SCHEDULE VIII Litigation
EXHIBIT A-1 Notice of Borrowing
EXHIBIT A-2 Notice of Competitive Bid Borrowing
EXHIBIT B Revolving Note
EXHIBIT C Section 3.04(b)(iii) Certificate
EXHIBIT D Election to Become a Subsidiary Borrower
EXHIBIT E Assignment and Assumption Agreement
(6)
CREDIT AGREEMENT, dated as of June 9, 1995, and amended and restated
as of April 1, 1998, among XXXXXX'X ENTERTAINMENT, INC., a Delaware corporation
("Parent"), XXXXXX'X OPERATING COMPANY, INC., a Delaware corporation (the
"Company"), each Subsidiary Borrower (together with the Company, each a
"Borrower" and, collectively, the "Borrowers"), the Banks party hereto from time
to time, CANADIAN IMPERIAL BANK OF COMMERCE and SOCIETE GENERALE, as
Co-Syndication Agents, BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
as Documentation Agent, and BANKERS TRUST COMPANY, as Administrative Agent (all
capitalized terms used herein and defined in Section 10 are used herein as
therein defined).
W I T N E S S E T H :
WHEREAS, Parent, the Borrowers, the Existing Banks and the
Administrative Agent are party to a Credit Agreement, dated as of June 9, 1995
(as the same has been amended, modified or supplemented to, but not including,
the First Restatement Effective Date, the "Existing Credit Agreement"); and
WHEREAS, the parties hereto wish to amend and restate the Existing
Credit Agreement in its entirety as herein provided;
NOW, THEREFORE, the parties hereto agree that the Existing Credit
Agreement shall be and hereby is amended and restated in its entirety as
follows:
SECTION 1. Amount and Terms of Credit.
1.01 The Commitments. (a) Subject to and upon the terms and
conditions set forth herein, each Bank severally agrees, (A) to convert, on the
First Restatement Effective Date, Existing Revolving Loans made by such Bank to
the respective Borrower pursuant to the Existing Credit Agreement and
outstanding on the First Restatement Effective Date into a Borrowing of
Revolving Loans hereunder to such Borrowers (as so converted, together with all
Revolving Loans made pursuant to following clause (B), the "Revolving Loans" and
each, a "Revolving Loan") and (B) at any time and from time to time on and after
the First Restatement Effective Date and prior to the Maturity Date for such
Bank, to make one or more additional Revolving Loans to one or more Borrowers,
all of which Revolving Loans made pursuant to preceding clauses (A) and (B):
(i) shall, at the option of the respective Borrower, be Base Rate
Loans or Eurodollar Loans, provided that, except as otherwise specifically
provided in Section
1
1.11(b), all Revolving Loans comprising the same Borrowing shall at all
times be of the same Type;
(ii) may be repaid and reborrowed in accordance with the provisions
hereof;
(iii) shall not exceed for any Bank at any time outstanding that
aggregate principal amount which equals the Revolving Loan Commitment of
such Bank at such time;
(iv) shall not exceed for all Banks at any time outstanding that
aggregate principal amount which, when added to the aggregate principal
amount of all Competitive Bid Loans (exclusive of Competitive Bid Loans
which are repaid with the proceeds of, and simultaneously with the
incurrence of, the respective incurrence of Revolving Loans) then
outstanding, equals the Total Revolving Loan Commitment at such time
(after giving effect to any reductions to the Total Revolving Loan
Commitment on such date); and
(v) shall not exceed for any Subsidiary Borrower at any time
outstanding that aggregate principal amount which equals such Subsidiary
Borrower's Sub-Limit.
(b) Subject to and upon the terms and conditions set forth herein,
each Bank severally agrees that the Company may incur a loan or loans (each a
"Competitive Bid Loan" and, collectively, the "Competitive Bid Loans") pursuant
to a Competitive Bid Borrowing from time to time on and after the First
Restatement Effective Date and prior to the date which is the Business Day
preceding the date which is 30 days prior to the Final Maturity Date then in
effect, provided that after giving effect to any Competitive Bid Borrowing then
being made the aggregate principal amount of all Competitive Bid Loans then
outstanding, when added to the aggregate principal amount of all Revolving Loans
then outstanding, shall not exceed the Total Revolving Loan Commitment at such
time. Within the foregoing limits and subject to the terms and conditions set
forth in Sections 1.04 and 5, Competitive Bid Loans may be repaid and reborrowed
in accordance with the provisions hereof.
(c) Notwithstanding anything to the contrary contained in this
Agreement, on the First Restatement Effective Date the Borrowers shall, in
coordination with the Administrative Agent and the Banks, repay outstanding
Revolving Loans (after giving effect to the conversion of Existing Revolving
Loans on such date) of certain Banks and, if necessary, incur additional
Revolving Loans from other Banks in each case so that the Banks continue to
participate in each Borrowing of Revolving Loans pro rata on the basis of their
Revolving Loan Commitments.
2
1.02 Minimum Amount of Each Borrowing of Revolving Loans. The
aggregate principal amount of each Borrowing of Revolving Loans shall not be
less than $5,000,000 and, if greater, shall be in an integral multiple of
$1,000,000. More than one Borrowing of Revolving Loans may occur on the same
date, but at no time shall there be outstanding more than six Borrowings of
Eurodollar Loans.
1.03 Notice of Borrowing. Whenever a Borrower desires to incur
Revolving Loans hereunder, such Borrower shall give the Administrative Agent at
the Notice Office at least one Business Day's prior notice of each Base Rate
Loan and at least three Business Days' prior notice of each Eurodollar Loan to
be made hereunder, provided that any such notice shall be deemed to have been
given on a certain day only if given before 12:00 Noon (New York time) on such
day. Each such notice (each a "Notice of Borrowing"), except as otherwise
expressly provided in Section 1.11, shall be irrevocable and shall be given by
such Borrower in the form of Exhibit A-1, appropriately completed to specify the
aggregate principal amount of the Revolving Loans to be made pursuant to such
Borrowing, the date of such Borrowing (which shall be a Business Day), whether
the Revolving Loans being made pursuant to such Borrowing are to be initially
maintained as Base Rate Loans or Eurodollar Loans and, if Eurodollar Loans, the
initial Interest Period to be applicable thereto. The Administrative Agent shall
promptly give each Bank written notice of such proposed Borrowing, of such
Bank's proportionate share thereof and of the other matters required by the
immediately preceding sentence to be specified in the Notice of Borrowing.
1.04 Competitive Bid Borrowings. (a) Whenever the Company desires to
incur a Competitive Bid Borrowing, it shall deliver to the Administrative Agent
at the Notice Office not later than 11:00 A.M (New York time) at least three
Business Days prior to the date of such proposed Competitive Bid Borrowing, a
written notice substantially in the form of Exhibit A-2 (each a "Notice of
Competitive Bid Borrowing"), such notice to specify in each case (i) the date
(which shall be a Business Day) and the aggregate principal amount of the
proposed Competitive Bid Borrowing (which shall not be less than $5,000,000),
(ii) the maturity date for repayment of each Competitive Bid Loan to be made as
part of such Competitive Bid Borrowing (which maturity date may not be earlier
than seven days after the date of such Competitive Bid Borrowing or later than
the fifth Business Day preceding the Final Maturity Date then in effect), (iii)
the interest payment date or dates relating thereto (which shall be at least
every three months in the case of maturities in excess of three months), (iv)
the Senior Implied Indebtedness rating assigned by S&P and Xxxxx'x to the
Company's Indebtedness, which ratings shall be at least BBB- Senior Implied in
the case of S&P
3
or Baa3 Senior Implied in the case of Xxxxx'x and (v) any other terms to be
applicable to such Competitive Bid Borrowing. The Administrative Agent shall
promptly notify each Bidder Bank of each such request for a Competitive Bid
Borrowing received by it from the Company by telecopying to each such Bidder
Bank a copy of the related Notice of Competitive Bid Borrowing.
(b) Each Bidder Bank shall, if in its sole discretion it elects to
do so, irrevocably offer to make one or more Competitive Bid Loans to the
Company as part of such proposed Competitive Bid Borrowing at a rate or rates of
interest specified by such Bidder Bank in its sole discretion and determined by
such Bidder Bank independently of each other Bidder Bank by notifying the
Administrative Agent in writing (which shall give prompt written notice thereof
to the Company), before 10:00 A.M. (New York time) on the date (the "Reply
Date") which is two Business Days before the date of such proposed Competitive
Bid Borrowing of the minimum amount, if any, and maximum amount of each
Competitive Bid Loan which such Bidder Bank would be willing to make as part of
such proposed Competitive Bid Borrowing (which amounts may, subject to the
proviso to the first sentence of Section 1.01(b), exceed such Bank's Revolving
Loan Commitment) and the rate or rates of interest therefor; provided, that if
the Administrative Agent in its capacity as a Bidder Bank shall, in its sole
discretion, elect to make any such offer, it shall notify the Company in writing
of such offer before 9:30 A.M. (New York time) on the Reply Date. If any Bidder
Bank shall elect not to make such an offer, such Bidder Bank shall so notify the
Administrative Agent, before 10:00 A.M. (New York time) on the Reply Date, and
such Bidder Bank shall not be obligated to, and shall not, make any Competitive
Bid Loan as part of such Competitive Bid Borrowing; provided, that the failure
by any Bidder Bank to give such notice shall not cause such Bidder Bank to be
obligated to, and such Bidder Bank shall not, make any Competitive Bid Loan as
part of such proposed Competitive Bid Borrowing.
(c) The Company shall, in turn, before 12:00 Noon (New York time) on
the Reply Date, either:
(1) cancel such Competitive Bid Borrowing by giving the
Administrative Agent notice (in writing or by telephone confirmed in
writing) to that effect, or
(2) accept one or more of the offers made by any Bidder Bank or
Bidder Banks pursuant to clause (b) above by giving notice (in writing or
by telephone confirmed in writing) to the Administrative Agent of the
amount of each Competitive Bid Loan (which amount shall be equal to or
greater than the minimum amount, if any, and equal to or
4
less than the maximum amount, notified to the Company by the
Administrative Agent on behalf of each such Bidder Bank for such
Competitive Bid Borrowing) and reject any remaining offers made by Bidder
Banks pursuant to clause (b) above by giving the Administrative Agent
notice to that effect; provided that acceptance of offers may only be made
on the basis of ascending Absolute Rates commencing with the lowest rate
so offered; provided further, however, if offers are made by two or more
Bidder Banks at the same rate and acceptance of all such equal offers
would result in a greater principal amount of Competitive Bid Loans being
accepted than the aggregate principal amount requested by the Company, the
Company shall have the right to accept one or more such equal offers in
their entirety and reject the other equal offer or offers or to allocate
acceptance among all such equal offers (but giving effect to the minimum
amounts, if any, and maximum amounts specified for each such offer
pursuant to clause (b) above), as the Company may elect in its sole
discretion.
(d) If the Company notifies the Administrative Agent that such
Competitive Bid Borrowing is cancelled pursuant to clause (c)(1) above, the
Administrative Agent shall give prompt written notice thereof to the Bidder
Banks and such Competitive Bid Borrowing shall not be made.
(e) If the Company accepts one or more of the offers made by any
Bidder Bank or Bidder Banks pursuant to clause (c)(2) above, the Administrative
Agent shall in turn promptly notify (in writing or by telephone confirmed in
writing) (x) each Bidder Bank that has made an offer as described in clause (b)
above, of the date and aggregate amount of such Competitive Bid Borrowing and
whether or not any offer or offers made by such Bidder Bank pursuant to clause
(b) above have been accepted by the Company and (y) each Bidder Bank that is to
make a Competitive Bid Loan as part of such Competitive Bid Borrowing, of the
amount of each Competitive Bid Loan to be made by such Bidder Bank as part of
such Competitive Bid Borrowing.
(f) On the last Business Day of each calendar quarter, the
Administrative Agent shall notify the Company and the Banks of the aggregate
principal amount of Competitive Bid Loans outstanding at such time.
1.05 Disbursement of Funds. Not later than 10:00 A.M. (New York
time) on the date specified in each Notice of Borrowing (or in the case of
Competitive Bid Borrowings, not later than 10:00 A.M. (New York time) on
the date specified pursuant to Section 1.04(b)), each Bank will make
available its pro rata portion of each such Borrowing requested to be
5
made on such date (or in the case of Competitive Bid Loans, each Bidder
Bank participating in the respective Competitive Bid Borrowing will make
available its share thereof). All such amounts shall be made available in
Dollars and in immediately available funds at the Payment Office, and the
Administrative Agent will make available to the respective Borrower at the
Payment Office the aggregate of the amounts so made available by the
Banks. Unless the Administrative Agent shall have been notified by any
Bank prior to the date of Borrowing that such Bank does not intend to make
available to the Administrative Agent such Bank's portion of any Borrowing
to be made on such date, the Administrative Agent may assume that such
Bank has made such amount available to the Administrative Agent on such
date of Borrowing and the Administrative Agent may, in reliance upon such
assumption, make available to the respective Borrower a corresponding
amount. If such corresponding amount is not in fact made available to the
Administrative Agent by such Bank, the Administrative Agent shall be
entitled to recover such corresponding amount on demand from such Bank. If
such Bank does not pay such corresponding amount forthwith upon the
Administrative Agent's demand therefor, the Administrative Agent shall
promptly notify the respective Borrower and such Borrower shall
immediately pay such corresponding amount to the Administrative Agent. The
Administrative Agent shall also be entitled to recover on demand from such
Bank or such Borrower, as the case may be, interest on such corresponding
amount in respect of each day from the date such corresponding amount was
made available by the Administrative Agent to such Borrower until the date
such corresponding amount is recovered by the Administrative Agent, at a
rate per annum equal to (i) if recovered from such Bank, the overnight
Federal Funds Rate and (ii) if recovered from such Borrower, the rate of
interest applicable to the respective Borrowing, as determined pursuant to
Section 1.09. Nothing in this Section 1.05 shall be deemed to relieve any
Bank from its obligation to make Loans hereunder or to prejudice any
rights which the respective Borrower may have against any Bank as a result
of any failure by such Bank to make Loans hereunder.
1.06 Notes. (a) Each Borrower's obligation to pay the principal of,
and interest on, the Revolving Loans made by each Bank to such Borrower shall be
set forth in the Register maintained by the Administrative Agent pursuant to
Section 12.17(b) and shall, if requested by any Bank, be evidenced by a
promissory note duly executed and delivered by such Borrower substantially in
the form of Exhibit B, with blanks appropriately completed in conformity
herewith (each a "Revolving Note" and, collectively, the "Revolving Notes").
6
(b) The Revolving Note issued by each Borrower to each Bank shall
(i) be payable to the order of such Bank and be dated the First Restatement
Effective Date, (ii) be in a stated principal amount equal to the Revolving Loan
Commitment of such Bank and be payable in the principal amount of the
outstanding Revolving Loans evidenced thereby, (iii) mature on such Bank's
Maturity Date, (iv) bear interest as provided in the appropriate clause of
Section 1.09 in respect of the Base Rate Loans and Eurodollar Loans, as the case
may be, evidenced thereby, (v) be subject to voluntary prepayment as provided in
Section 3.01, and mandatory repayment as provided in Section 3.02, and (vi) be
entitled to the benefits of this Agreement and the other Credit Documents.
(c) Each Bank will note on its internal records the amount of each
Revolving Loan made by it and each payment in respect thereof and will prior to
any transfer of any of its Revolving Notes endorse on the reverse side thereof
the outstanding principal amount of Revolving Loans evidenced thereby. Failure
to make any such notation (or any error in such notation) shall not affect any
Borrower's obligations in respect of such Revolving Loans.
1.07 Conversions. Each Borrower shall have the option to convert, on
any Business Day, at least $5,000,000 of the outstanding principal amount of the
Revolving Loans made pursuant to one or more Borrowings of one or more Types of
Revolving Loans into a Borrowing of another Type of Revolving Loan, provided
that (i) except as otherwise provided in Section 1.11(b), Eurodollar Loans may
be converted into Base Rate Loans only on the last day of an Interest Period
applicable to the Revolving Loans being converted and no such conversion of
Eurodollar Loans shall reduce the outstanding principal amount of such
Eurodollar Loans made pursuant to a single Borrowing to less than $5,000,000,
(ii) unless the Required Banks otherwise agree, Base Rate Loans may only be
converted into Eurodollar Loans if no Event of Default is in existence on the
date of the conversion and (iii) no conversion pursuant to this Section 1.07
shall result in a greater number of Borrowings of Eurodollar Loans than is
permitted under Section 1.02. Each such conversion shall be effected by the
respective Borrower by giving the Administrative Agent at the Notice Office
prior to 12:00 Noon (New York time) at least three Business Days' prior notice
(each a "Notice of Conversion") specifying the Revolving Loans to be so
converted, the Borrowing(s) pursuant to which such Revolving Loans were made
and, if to be converted into Eurodollar Loans, the Interest Period to be
initially applicable thereto. The Administrative Agent shall give each Bank
prompt written notice of any such proposed conversion affecting any of its
Revolving Loans. Upon any such conversion the proceeds thereof will be deemed to
be
7
applied directly on the day of such conversion to prepay the outstanding
principal amount of the Revolving Loans being converted.
1.08 Pro Rata Borrowings. All Borrowings of Revolving Loans under
this Agreement shall be incurred from the Banks pro rata on the basis of their
Revolving Loan Commitments. It is understood that no Bank shall be responsible
for any default by any other Bank of its obligation to make Revolving Loans
hereunder and that each Bank shall be obligated to make the Revolving Loans
provided to be made by it hereunder, regardless of the failure of any other Bank
to make its Revolving Loans hereunder.
1.09 Interest. (a) Each Borrower agrees to pay interest in respect
of the unpaid principal amount of each Base Rate Loan from the date of Borrowing
thereof until the earlier of (i) the maturity thereof (whether by acceleration
or otherwise) and (ii) the conversion of such Base Rate Loan to a Eurodollar
Loan pursuant to Section 1.07 or 1.10, as applicable, at a rate per annum which
shall be equal to the Base Rate in effect from time to time.
(b) Each Borrower agrees to pay interest in respect of the unpaid
principal amount of each Eurodollar Loan from the date of Borrowing thereof
until the earlier of (i) the maturity thereof (whether by acceleration or
otherwise) and (ii) the conversion of such Eurodollar Loan to a Base Rate Loan
pursuant to 1.06, 1.10 or 1.11, as applicable, at a rate per annum which shall,
during each Interest Period applicable thereto, be equal to the sum of the
Applicable Margin plus the Eurodollar Rate for such Interest Period.
(c) The Company agrees to pay interest in respect of the unpaid
principal amount of each Competitive Bid Loan from the date the proceeds thereof
are made available to the Company until the maturity thereof (whether by
acceleration or otherwise) at the rate or rates per annum specified pursuant to
Section 1.04(b) by the Bidder Bank or Bidder Banks, as the case may be, making
such Competitive Bid Loans and accepted by the Company pursuant to Section
1.04(c)(2).
(d) Overdue principal and, to the extent permitted by law, overdue
interest in respect of each Loan and any other overdue amount payable hereunder
shall, in each case, bear interest at a rate per annum equal to the greater of
(x) 2% per annum in excess of the Base Rate in effect from time to time and (y)
the rate which is 2% in excess of the rate then borne by such Loans, in each
case with such interest to be payable on demand.
8
(e) Accrued (and theretofore unpaid) interest shall be payable (i)
in respect of each Base Rate Loan, quarterly in arrears on the last Business Day
of each March, June, September and December, (ii) in respect of each Eurodollar
Loan, on the last day of each Interest Period applicable thereto and, in the
case of an Interest Period in excess of three months, on each date occurring at
three month intervals after the first day of such Interest Period, (iii) in
respect of each Competitive Bid Loan, at such times as specified in the Notice
of Competitive Bid Borrowing relating thereto and (iv) in respect of each Loan,
on any repayment (on the amount repaid), at maturity (whether by acceleration or
otherwise) and, after such maturity, on demand.
(f) Upon each Interest Determination Date, the Administrative Agent
shall determine the Eurodollar Rate for each Interest Period applicable to
Eurodollar Loans and shall promptly notify the respective Borrower and the Banks
thereof. Each such determination shall, absent manifest error, be final and
conclusive and binding on all parties hereto.
1.10 Interest Periods. At the time a Borrower gives any Notice of
Borrowing or Notice of Conversion in respect of the making of, or conversion
into, any Eurodollar Loan (in the case of the initial Interest Period applicable
thereto) or on the third Business Day prior to the expiration of an Interest
Period applicable to such Eurodollar Loan (in the case of any subsequent
Interest Period), such Borrower shall have the right to elect, by giving the
Administrative Agent notice thereof, the interest period (each an "Interest
Period") applicable to such Eurodollar Loan, which Interest Period shall, at the
option of such Borrower, be a one, two, three or six month period, provided
that:
(i) all Eurodollar Loans comprising a Borrowing shall at all times
have the same Interest Period;
(ii) the initial Interest Period for any Eurodollar Loan shall
commence on the date of Borrowing of such Eurodollar Loan (including the
date of any conversion thereto from a Base Rate Loan) and each Interest
Period occurring thereafter in respect of such Eurodollar Loan shall
commence on the day on which the next preceding Interest Period applicable
thereto expires;
(iii) if any Interest Period relating to a Eurodollar Loan begins on
a day for which there is no numerically corresponding day in the calendar
month at the end of such Interest Period, such Interest Period shall end
on the last Business Day of such calendar month;
9
(iv) if any Interest Period would otherwise expire on a day which is
not a Business Day, such Interest Period shall expire on the next
succeeding Business Day; provided, however, that if any Interest Period
for a Eurodollar Loan would otherwise expire on a day which is not a
Business Day but is a day of the month after which no further Business Day
occurs in such month, such Interest Period shall expire on the next
preceding Business Day;
(v) unless the Required Banks otherwise agree, no Interest Period
may be selected at any time when an Event of Default is then in existence;
and
(vi) no Interest Period shall be selected which extends beyond the
Final Maturity Date as then in effect.
If upon the expiration of any Interest Period applicable to a
Borrowing of Eurodollar Loans, the respective Borrower has failed to elect, or
is not permitted to elect, a new Interest Period to be applicable to such
Eurodollar Loans as provided above, such Borrower shall be deemed to have
elected to convert such Eurodollar Loans into Base Rate Loans effective as of
the expiration date of such current Interest Period.
1.11 Increased Costs, Illegality, etc. (a) In the event that any
Bank shall have determined (which determination shall, absent manifest error, be
final and conclusive and binding upon all parties hereto but, with respect to
clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any
changes arising after the First Restatement Effective Date affecting the
interbank Eurodollar market, adequate and fair means do not exist for
ascertaining the applicable interest rate on the basis provided for in the
definition of Eurodollar Rate; or
(ii) at any time, that such Bank shall incur increased costs or
reductions in the amounts received or receivable hereunder with respect to
any Eurodollar Loan or Competitive Bid Loan, as the case may be, because
of (x) any change since the First Restatement Effective Date in any
applicable law or governmental rule, regulation, order, guideline or
request (whether or not having the force of law) or in the interpretation
or administration thereof and including the introduction of any new law or
governmental rule, regulation, order, guideline or request, such as, for
example, but not limited to: (A) a change in the basis of taxation of
payment to any Bank of the principal of or interest on any Loans or any
other amounts payable hereunder (except for changes in the rate of tax on,
or determined by
10
reference to, the net income or profits of such Bank pursuant to the laws
of the jurisdiction in which it is organized or in which its principal
office or applicable lending office is located or any subdivision thereof
or therein) or (B) a change in official reserve requirements, but, in all
events, excluding reserves required under Regulation D to the extent
included in the computation of the Eurodollar Rate and/or (y) other
circumstances since the First Restatement Effective Date affecting such
Bank or the interbank Eurodollar market or the position of such Bank in
such market; or
(iii) at any time, that the making or continuance of any Eurodollar
Loan or Competitive Bid Loan, as the case may be, has been made (x)
unlawful by any law or governmental rule, regulation or order, (y)
impossible by compliance by any Bank in good faith with any governmental
request (whether or not having force of law) or (z) impracticable as a
result of a contingency occurring after the First Restatement Effective
Date which materially and adversely affects the interbank Eurodollar
market;
then, and in any such event, such Bank (or the Administrative Agent, in the case
of clause (i) above) shall promptly give telephonic notice (confirmed in
writing) to the respective Borrower and, except in the case of clause (i) above,
to the Administrative Agent of such determination (which notice the
Administrative Agent shall promptly transmit to each of the other Banks).
Thereafter (x) in the case of clause (i) above, Eurodollar Loans shall no longer
be available until such time as the Administrative Agent notifies the respective
Borrower and the Banks that the circumstances giving rise to such notice by the
Administrative Agent no longer exist, and any Notice of Borrowing or Notice of
Conversion given by such Borrower with respect to Eurodollar Loans which have
not yet been incurred (including by way of conversion) shall be deemed rescinded
by such Borrower, (y) in the case of clause (ii) above, the respective Borrower
shall pay to such Bank, upon written demand therefor, such additional amounts
(in the form of an increased rate of, or a different method of calculating,
interest or otherwise as such Bank in its sole discretion shall determine) as
shall be required to compensate such Bank for such increased costs or reductions
in amounts received or receivable hereunder (a written notice as to the
additional amounts owed to such Bank, showing the basis for the calculation
thereof, submitted to such Borrower by such Bank shall, absent manifest error,
be final and conclusive and binding on all the parties hereto) and (z) in the
case of clause (iii) above, the respective Borrower shall take one of the
actions specified in Section 1.11(b) as promptly as possible and, in any event,
within the time period required by law.
11
(b) At any time that any Eurodollar Loan or Competitive Bid Loan is
affected by the circumstances described in Section 1.11(a)(ii) or (iii), the
respective Borrower may (and in the case of any Eurodollar Loan or Competitive
Bid Loan affected by the circumstances described in Section 1.11(a)(iii) shall)
either (x) if the affected Eurodollar Loan or Competitive Bid Loan is then being
made initially or pursuant to a conversion, cancel the respective Borrowing by
giving the Administrative Agent telephonic notice (confirmed in writing) on the
same date that such Borrower was notified by the affected Bank or the
Administrative Agent pursuant to Section 1.11(a)(ii) or (iii), (y) if the
affected Eurodollar Loan is then outstanding, upon at least three Business Days'
written notice to the Administrative Agent, require the affected Bank to convert
such Eurodollar Loan into a Base Rate Loan or (z) if the affected Competitive
Bid Loan is then outstanding, repay such Competitive Bid Loan in full; provided
that, if more than one Bank is affected at any time, then all affected Banks
must be treated the same pursuant to this Section 1.11(b).
(c) If at any time any Bank determines that the introduction of or
any change in any applicable law or governmental rule, regulation, order,
guideline, directive or request (whether or not having the force of law and
including, without limitation, those announced or published prior to the First
Restatement Effective Date) concerning capital adequacy, or any change in
interpretation or administration thereof by any governmental authority, central
bank or comparable agency, will have the effect of increasing the amount of
capital required or expected to be maintained by such Bank or any corporation
controlling such Bank based on the existence of such Bank's Revolving Loan
Commitment hereunder or its obligations hereunder, then the Borrowers shall pay
(and shall be jointly and severally obligated to pay) to such Bank, upon its
written demand therefor, such additional amounts as shall be required to
compensate such Bank or such other corporation for the increased cost to such
Bank or such other corporation or the reduction in the rate of return to such
Bank or such other corporation as a result of such increase of capital. In
determining such additional amounts, each Bank will act reasonably and in good
faith and will use averaging and attribution methods which are reasonable,
provided that such Bank's determination of compensation owing under this Section
1.11(c) shall, absent manifest error, be final and conclusive and binding on all
the parties hereto. Each Bank, upon determining that any additional amounts will
be payable pursuant to this Section 1.11(c), will give prompt written notice
thereof to the Borrowers, which notice shall show the basis for calculation of
such additional amounts.
12
1.12 Compensation. The respective Borrower shall compensate each
Bank, upon its written request (which request shall (x) set forth the basis for
requesting such compensation and (y) absent manifest error, be final and
conclusive and binding upon all the parties hereto), for all reasonable losses,
expenses and liabilities (including, without limitation, any loss, expense or
liability incurred by reason of the liquidation or reemployment of deposits or
other funds required by such Bank to fund its Eurodollar Loans or Competitive
Bid Loans) which such Bank may sustain: (i) if for any reason (other than a
default by such Bank or the Administrative Agent) a Borrowing of Eurodollar
Loans or Competitive Bid Loans, or conversion from or into Eurodollar Loans,
does not occur on a date specified therefor in a Notice of Borrowing, Notice of
Competitive Bid Borrowing or Notice of Conversion (whether or not withdrawn by
such Borrower or deemed withdrawn pursuant to Section 1.11(a)); (ii) if any
repayment (including any repayment made pursuant to Section 3.01 or 3.02 or a
result of an acceleration of the Loans pursuant to Section 9) or conversion of
any of its Eurodollar Loans or Competitive Bid Loans occurs on a date which is
not the last day of an Interest Period with respect thereto or the maturity date
thereof; (iii) if any prepayment of any of its Eurodollar Loans is not made on
any date specified in a notice of prepayment given by such Borrower; or (iv) as
a consequence of (x) any other default by such Borrower to repay its Loans when
required by the terms of this Agreement or any Revolving Note held by such Bank
or (y) any election made pursuant to Section 1.11(b).
1.13 Change of Lending Office. Each Bank agrees that on the
occurrence of any event giving rise to the operation of Section 1.11(a)(ii) or
(iii), Section 1.11(c) or Section 3.04 with respect to such Bank, it will, if
requested by the Company, use reasonable efforts (subject to overall policy
considerations of such Bank) to designate another lending office for any Loans
affected by such event, provided that such designation is made on such terms
that such Bank and its lending office suffer no economic, legal or regulatory
disadvantage, with the object of avoiding the consequence of the event giving
rise to the operation of such Section. Nothing in this Section 1.13 shall affect
or postpone any of the obligations of any Borrower or the right of any Bank
provided in Sections 1.11 and 3.04.
1.14 Replacement of Banks. If any Bank (1) becomes a Defaulting Bank
or otherwise defaults in its obligation to make Revolving Loans, (2) is
incurring or is reasonably expected to incur costs which are or would be
material in amount and are associated with a Gaming Authority's investigation of
whether or not such Bank is a Qualified Person, (3) refuses to consent to
certain proposed changes, waivers, discharges or terminations with respect to
this Agreement which have been approved by the
13
Required Banks as provided in Section 12.12(b) or (4) becomes a Non-Continuing
Bank, the Company shall have the right, if no Default or Event of Default will
exist immediately after giving effect to such replacement, to replace such Bank
(the "Replaced Bank") with one or more other Qualified Person or Persons, none
of whom shall constitute a Defaulting Bank at the time of such replacement
(collectively, the "Replacement Bank"), and each of whom shall be reasonably
acceptable to the Administrative Agent, provided that:
(i) at the time of any replacement pursuant to this Section 1.14,
the Replacement Bank shall enter into one or more Assignment and
Assumption Agreements pursuant to, and in accordance with the terms of,
Section 12.04(b) (and with all fees payable pursuant to said Section
12.04(b) to be paid by the Replacement Bank) pursuant to which the
Replacement Bank shall acquire the Revolving Loan Commitment and all
outstanding Loans of the Replaced Bank and, in connection therewith, shall
pay to the Replaced Bank in respect thereof an amount equal to the sum of
(A) an amount equal to the principal of, and all accrued interest on, all
outstanding Loans of the Replaced Bank and (B) an amount equal to all
accrued, but theretofore unpaid, Fees owing to the Replaced Bank pursuant
to Section 2.01;
(ii) all obligations of the Borrowers owing to the Replaced Bank
(including all obligations, if any, owing pursuant to Section 1.12, but
excluding those obligations specifically described in clause (i) above in
respect of which the assignment purchase price has been, or is
concurrently being, paid) shall be paid in full to such Replaced Bank
concurrently with such replacement; and
(iii) the Maturity Date applicable to the Replacement Bank's
Revolving Loan Commitment shall be the Final Maturity Date then in effect
(or as same may be extended from time to time thereafter by such Bank
pursuant to Section 2.04).
Upon the execution of the respective Assignment and Assumption Agreements, the
payment of amounts referred to in clauses (i) and (ii) above and, if so
requested by the Replacement Bank, delivery to the Replacement Bank of the
appropriate Revolving Notes executed by the Borrowers, the Replacement Bank
shall become a Bank hereunder and the Replaced Bank shall cease to constitute a
Bank hereunder, except with respect to indemnification provisions under this
Agreement (including, without limitation, Sections 1.11, 1.12, 3.04, 12.01 and
12.06), which shall survive as to such Replaced Bank.
SECTION 2. Fees; Reductions of Revolving Loan Commitment; Final
Maturity Date Extensions.
14
2.01 Fees. (a) The Company agrees to pay to the Administrative Agent
for distribution to each Non-Defaulting Bank a facility fee (the "Facility Fee")
for the period from the First Restatement Effective Date to but excluding the
Final Maturity Date then in effect (or such earlier date as the Total Revolving
Loan Commitment shall have been terminated), computed at a rate for each day
equal to the Applicable Facility Fee Percentage on the daily average Revolving
Loan Commitment of such Non-Defaulting Bank. Accrued Facility Fees shall be due
and payable quarterly in arrears on the last Business Day of each March, June,
September and December and on the Final Maturity Date then in effect or such
earlier date upon which the Total Revolving Loan Commitment shall have been
terminated and, with respect to any Facility Fee owing to any Bank whose
Revolving Loan Commitment shall have been terminated pursuant to Section 1.14,
on the date on which such Bank's Revolving Loan Commitment shall have been
terminated.
(b) Each Borrower agrees to pay to the Administrative Agent, for its
own account, such other fees as have been agreed to in writing by such Borrower
and the Administrative Agent.
2.02 Voluntary Termination of Unutilized Revolving Loan Commitments.
(a) Upon at least two Business Days' prior written notice to the Administrative
Agent at the Notice Office (which notice the Administrative Agent shall promptly
transmit to each of the Banks), the Company shall have the right, at any time or
from time to time, without premium or penalty, to terminate the Total Unutilized
Revolving Loan Commitment, in whole or in part, in integral multiples of
$5,000,000 in the case of partial reductions to the Total Unutilized Revolving
Loan Commitment, provided that each such reduction shall apply proportionately
to permanently reduce the Revolving Loan Commitment of each Bank.
(b) In the event of certain refusals by a Bank to consent to certain
proposed changes, waivers, discharges or terminations with respect to this
Agreement which have been approved by the Required Banks as provided in Section
12.12(b), the Company shall have the right, upon five Business Days' prior
written notice to the Administrative Agent at the Notice Office (which notice
the Administrative Agent shall promptly transmit to each of the Banks), to
terminate the entire Revolving Loan Commitment of such Bank, so long as all
Loans, together with accrued and unpaid interest, Fees and all other amounts
owing to such Bank are repaid concurrently with the effectiveness of such
termination pursuant to Section 3.01(iv) (at which time Schedule I shall be
deemed modified to reflect such changed amounts), and at such time, such Bank
shall no longer constitute a "Bank" for purposes of this Agreement, except with
respect to indemnifications under this Agreement (including, without
15
limitation, Sections 1.11, 1.12, 3.04, 12.01 and 12.06), which shall survive as
to such repaid Bank.
2.03 Mandatory Reduction of Revolving Loan Commitments. (a) (i) In
addition to any other mandatory commitment reductions pursuant to this Section
2.03, the Total Revolving Loan Commitment (and the Revolving Loan Commitment of
each Bank) shall terminate in its entirety on the Final Maturity Date then in
effect.
(ii) In addition to any other mandatory commitment reductions
pursuant to this Section 2.03, each Bank's Revolving Loan Commitment shall
terminate in its entirety on such Bank's Maturity Date.
(b) In addition to any other mandatory commitment reductions
pursuant to this Section 2.03, on the 15th day after the date on which any
Change of Control occurs, the Total Revolving Loan Commitment shall be reduced
to zero unless the Required Banks otherwise agree in writing in their sole
discretion.
(c) In addition to any other mandatory commitment reductions
pursuant to this Section 2.03, on each date after the First Restatement
Effective Date upon which Parent or any of its Subsidiaries receives any
proceeds from any incurrence by Parent or any of its Subsidiaries of Permitted
Designated Indebtedness, the Total Revolving Loan Commitment shall be reduced by
an amount equal to its Share of the cash proceeds of the respective incurrence
of Permitted Designated Indebtedness (net of underwriting or placement discounts
and commissions and other reasonable costs associated therewith), provided, to
the extent that the 5-Year Banks do not require that their full Share be applied
to reduce the Total 5-Year Revolving Loan Commitment, the amount of their Share
not so applied shall instead be applied to reduce the Total Revolving Loan
Commitment as required by clause (e) of this Section 2.03.
(d) In addition to any other mandatory commitment reductions
pursuant to this Section 2.03, on each date after the First Restatement
Effective Date upon which Parent or any of its Subsidiaries receives proceeds
from any Designated Asset Sale, the Total Revolving Loan Commitment shall be
reduced by an amount equal to its Share of the Net Sale Proceeds from the
respective Designated Asset Sale, provided that, to the extent that the 5-Year
Banks do not require that their full Share be applied to reduce the Total 5-Year
Revolving Loan Commitment, the amount of their Share not so applied shall
instead be applied to reduce the Total Revolving Loan Commitment as required by
clause (e) of this Section 2.03.
16
(e) In addition to any other mandatory commitment reductions
pursuant to this Section 2.03, following any mandatory commitment reduction
required by Section 2.03(c) or (d) with respect to which the Shares of the
various Issues of Senior Debt have been calculated in accordance with clause (A)
of the definition of "Share," on the first date thereafter upon which it is
subsequently determined that the amount which will actually be required to
mandatorily reduce the Total 5-Year Revolving Loan Commitment is less than the
Share applicable thereto (whether because the 5-Year Banks elected not to
require such reduction or otherwise), then the amount which will not be so
required to mandatorily reduce the Total 5-Year Revolving Loan Commitment shall
instead be required to reduce the Total Revolving Loan Commitment as required by
Section 2.03(c) or (d), as the case may be.
(f) The Total Revolving Loan Commitment shall be reduced, and the
Revolving Loan Commitment of the respective Former Bank shall be terminated, in
the amount and at the times provided in Section 12.04(d).
(g) Except as otherwise provided in clauses (a)(ii) and (f) of this
Section 2.03, each reduction to the Total Revolving Loan Commitment pursuant to
this Section 2.03 shall be applied proportionately to reduce the Revolving Loan
Commitment of each Bank.
2.04 Final Maturity Date Extensions. (a) Not less than 45 days and
not more than 90 days prior to the Final Maturity Date then in effect, the
Company may make a written request to the Administrative Agent, who shall
forward a copy of each such request to each of the Banks, that the Final
Maturity Date then in effect be extended to the date which occurs 364 days after
the Requested Extension Effective Date specified by the Company in its written
request as described in the immediately succeeding sentence. Each request by the
Company pursuant to the immediately preceding sentence shall specify a date (the
"Requested Extension Effective Date"), which shall be not earlier than 15 days
after the giving of the respective notice and not later than 15 days prior to
the Final Maturity Date then in effect, which would be the date of the
effectiveness of the changes to the Final Maturity Date and the Maturity Dates
of the consenting Banks. Each request pursuant to the first sentence of this
Section 2.04 shall also be accompanied by a certificate of a senior officer of
the Company stating that no Default or Event of Default has occurred and is
continuing. Each Bank, acting in its sole discretion and with no obligation to
grant any extension pursuant to this Section 2.04, shall, by written notice to
the Company and the Administrative Agent, such notice to be given on or prior to
the earlier of (x) the Requested Extension Effective Date and (y) the 30th day
following receipt by such Bank of such
17
request by the Company, advise the Company and the Administrative Agent whether
or not such Bank agrees to such extension, provided that any Bank which fails to
so notify the Company and the Administrative Agent as provided above shall be
deemed to have elected not to grant such extension. In giving any extensions
pursuant to the immediately preceding sentence, any Bank, at its option, may
specify that its extension is conditioned upon each other Bank agreeing to the
extension of the Final Maturity Date or, in lieu thereof, may specify that Banks
with a certain minimum aggregate amount of Revolving Loan Commitments (to be
specified by such Bank) shall have agreed to such extension. The Administrative
Agent shall notify the Company and each of the Banks as to which Banks have
agreed to such extension and as to the new Final Maturity Date as a result
thereof.
(b) In the event that the Final Maturity Date is extended by some
but not all of the Banks, unless the Non-Continuing Bank or Banks shall have
been replaced by a Replacement Bank on or before the Maturity Date of each such
Non-Continuing Bank pursuant to Section 1.14, on the Maturity Date of each such
Non-Continuing Bank the Borrower shall repay all Loans of each such
Non-Continuing Bank, together with all accrued and unpaid interest thereon, and
all Fees and other amounts owing to each such Non-Continuing Bank and upon such
payment each such Non-Continuing Bank shall cease to constitute a Bank
hereunder, except with respect to the indemnification provisions under this
Agreement (including, without limitation, Sections 1.11, 1.12, 3.04, 12.01 and
12.06), which shall survive as to each such Non-Continuing Bank.
SECTION 3. Prepayments; Payments; Taxes.
3.01 Voluntary Prepayments. Each Borrower shall have the right to
prepay the Loans made to it, without premium or penalty, in whole or in part at
any time and from time to time on the following terms and conditions:
(i) except as otherwise provided in clause (iv) of this Section
3.01, such Borrower shall give the Administrative Agent prior to 12:00
Noon (New York time) at the Notice Office (x) at least one Business Day's
prior written notice (or telephonic notice promptly confirmed in writing)
of its intent to prepay Base Rate Loans and (y) at least three Business
Days' prior written notice (or telephonic notice promptly confirmed in
writing) of its intent to prepay Eurodollar Loans, the amount of such
prepayment and the Types of Revolving Loans to be prepaid and, in the case
of Eurodollar Loans, the specific Borrowing or Borrowings pursuant to
which made, which notice the Administrative Agent shall promptly transmit
to each of the Banks;
18
(ii) except as otherwise provided in clause (iv) of this Section
3.01, each prepayment shall be in an aggregate principal amount of at
least $5,000,000, provided that, if any partial prepayment of Eurodollar
Loans made pursuant to any Borrowing shall reduce the outstanding
Eurodollar Loans made pursuant to such Borrowing to an amount less than
$5,000,000, then such Borrowing may not be continued as a Borrowing of
Eurodollar Loans and any election of an Interest Period with respect
thereto given by the Borrower shall have no force or effect (and such
Borrowing shall be converted at such time into a Borrowing of Base Rate
Loans);
(iii) except as otherwise provided in clause (iv) of this Section
3.01, each prepayment in respect of any Revolving Loans made pursuant to a
Borrowing shall be applied pro rata among such Revolving Loans, provided
that, at the respective Borrower's election in connection with any
prepayment of Revolving Loans pursuant to this Section 3.01, such
prepayment shall not be applied to any Revolving Loan of a Defaulting
Bank;
(iv) in the event of certain refusals by a Bank to consent to
certain proposed changes, waivers, discharges or terminations with respect
to this Agreement which have been approved by the Required Banks as
provided in Section 12.12(b), the Borrowers shall have the right, upon
five Business Days' prior written notice to the Administrative Agent at
the Notice Office (which notice the Administrative Agent shall promptly
transmit to each of the Banks), to repay all Loans, together with accrued
and unpaid interest, Fees, and other amounts owing to such Bank in
accordance with said Section 12.12(b) so long as (A) the Revolving Loan
Commitment of such Bank is terminated concurrently with such repayment
pursuant to Section 2.02(b) (at which time Schedule I shall be deemed
modified to reflect the changed Revolving Loan Commitments) and (B) the
consents required by Section 12.12(b) in connection with the repayment
pursuant to this clause (iv) have been obtained; and
(v) except as otherwise provided in preceding clause (iv), the
Company may not voluntarily prepay any Competitive Bid Loans without the
consent of the Bank that had made such Competitive Bid Loans.
3.02 Mandatory Repayments. (a)(i) On any day on which the sum of the
aggregate outstanding principal amount of Revolving Loans and Competitive Bids
Loans exceeds the Total Revolving Loan Commitment as then in effect, there shall
be required to be repaid on such date that principal amount of Revolving Loans
and, after all such Revolving Loans have been
19
repaid in full, Competitive Bid Loans in an amount equal to such excess.
(ii) On any day on which the aggregate outstanding principal amount
of Revolving Loans made to any Subsidiary Borrower exceeds such Subsidiary
Borrower's Sub-Limit, such Subsidiary Borrower shall repay principal of its
Revolving Loans in an amount equal to such excess.
(b) With respect to each repayment of Revolving Loans required by
this Section 3.02, the respective Borrower may designate the Types of Revolving
Loans which are to be repaid and, in the case of Eurodollar Loans, the specific
Borrowing or Borrowings pursuant to which made, provided that: (i) repayments of
Eurodollar Loans pursuant to this Section 3.02 may only be made on the last day
of an Interest Period applicable thereto unless all Eurodollar Loans with
Interest Periods ending on such date of required repayment and all Base Rate
Loans have been paid in full; (ii) if any repayment of Eurodollar Loans made
pursuant to a single Borrowing shall reduce the outstanding Eurodollar Loans
made pursuant to such Borrowing to an amount less than $5,000,000, such
Borrowing shall be converted on such day into a Borrowing of Base Rate Loans;
and (iii) each repayment of any Revolving Loans made pursuant to a Borrowing
shall be applied pro rata among such Revolving Loans. Each prepayment of
Competitive Bid Loans required by this Section 3.02 shall be applied pro rata
among all outstanding Competitive Bid Loans. In the absence of a designation by
any Borrower as described in the second preceding sentence, the Administrative
Agent shall, upon telephonic notice to the Company and subject to the above,
make such designation in its sole discretion.
(c) Notwithstanding anything to the contrary contained elsewhere in
this Agreement, (i) all then outstanding Competitive Bid Loans shall be repaid
in full on the fifth Business Day preceding the Final Maturity Date then in
effect and (ii) all then outstanding Revolving Loans shall be repaid in full on
the Final Maturity Date then in effect.
3.03 Method and Place of Payment. Except as otherwise specifically
provided herein, all payments under this Agreement or under any Revolving Note
shall be made to the Administrative Agent for the account of the Bank or Banks
entitled thereto not later than 12:00 Noon (New York time) on the date when due
and shall be made in Dollars in immediately available funds at the Payment
Office. Whenever any payment to be made hereunder or under any Revolving Note
shall be stated to be due on a day which is not a Business Day, the due date
thereof shall be extended to the next succeeding Business Day and, with respect
to payments of
20
principal, interest shall be payable at the applicable rate during such
extension.
3.04 Net Payments. (a) All payments made by any Borrower hereunder
or under any Revolving Note will be made without setoff, counterclaim or other
defense. Except as provided in Section 3.04(b), all such payments will be made
free and clear of, and without deduction or withholding for, any present or
future taxes, levies, imposts, duties, fees, assessments or other charges of
whatever nature now or hereafter imposed by any jurisdiction or by any political
subdivision or taxing authority thereof or therein with respect to such payments
(but excluding, except as provided in the immediately succeeding sentence, any
tax imposed on or measured by the net income or profits of a Bank pursuant to
the laws of the United States and the jurisdiction in which such Bank is
organized or in which the principal office or applicable lending office of such
Bank is located or any subdivision or taxing authority thereof or therein) and
all interest, penalties or similar liabilities with respect thereto
(collectively, "Taxes"). If any amounts are payable in respect of Taxes pursuant
to the preceding sentence, then the Borrowers agree to reimburse each Bank, upon
the written request of such Bank, for taxes imposed on or measured by the net
income of such Bank pursuant to the laws of the jurisdiction in which the
principal office or applicable lending office of such Bank is located or under
the laws of any political subdivision or taxing authority of any such
jurisdiction in which the principal office or applicable lending office of such
Bank is located and for any withholding of income or similar taxes imposed by
the United States of America as such Bank shall determine are payable by, or
withheld from, such Bank in respect of such amounts so paid to or on behalf of
such Bank pursuant to the preceding sentence and in respect of any amounts paid
to or on behalf of such Bank pursuant to this sentence. If any Taxes are so
levied or imposed, the Borrowers agree to pay the full amount of such Taxes, and
such additional amounts as may be necessary so that every payment of all amounts
due under this Agreement or under any Revolving Note, after withholding or
deduction for or on account of any Taxes, will not be less than the amount
provided for herein or in such Revolving Note. The Borrowers will furnish to the
Administrative Agent within 45 days after the date the payment of any Taxes is
due pursuant to applicable law copies of official tax receipts received from the
relevant taxing authority evidencing such payment by the Borrowers. The
Borrowers agree to indemnify and hold harmless each Bank, and reimburse such
Bank upon its written request, for the amount of any Taxes so levied or imposed
and paid by such Bank.
(b) Each Bank which is not a United States person (as such term is
defined in Section 7701(a)(30) of the Code) for U.S. Federal income tax purposes
agrees (i) in the case of any such
21
Bank that is a "bank" within the meaning of Section 881(c)(3)(A) of the Code and
which constitutes a Bank hereunder on the First Restatement Effective Date, to
provide to the Company and the Administrative Agent within five days after the
First Restatement Effective Date two original signed copies of Internal Revenue
Service Form 4224 or Form 1001 (or successor forms) certifying to such Bank's
entitlement (as of such date) to an exemption from United States withholding tax
with respect to payments to be made under this Agreement and under any Revolving
Note, (ii) in the case of any such Bank that is a "bank" within the meaning of
Section 881(c)(3)(A) of the Code, that, to the extent legally entitled to do so,
(x) with respect to a Bank that is an assignee or transferee of an interest
under this Agreement pursuant to Section 1.14 or 12.04 (unless the respective
Bank was already a Bank hereunder immediately prior to such assignment or
transfer), within five days after such assignment or transfer to such Bank, and
(y) with respect to any such Bank, from time to time upon the reasonable written
request of the Company or the Administrative Agent after the First Restatement
Effective Date, such Bank will provide to the Company and the Administrative
Agent two original signed copies of Internal Revenue Service Form 4224 or Form
1001 (or any successor forms) certifying to such Bank's entitlement to an
exemption from, or reduction in, United States withholding tax with respect to
payments to be made under this Agreement and under any Revolving Note, (iii) in
the case of any such Bank (other than a Bank described in clause (i) or (ii)
above) which constitutes a Bank hereunder on the First Restatement Effective
Date, to provide to the Company and the Administrative Agent, within five days
after the First Restatement Effective Date (x) a certificate substantially in
the form of Exhibit C (any such certificate, a "Section 3.04(b)(iii)
Certificate") and (y) two accurate and complete original signed copies of
Internal Revenue Service Form W-8, certifying to such Bank's entitlement at the
date of such certificate to an exemption from United States withholding tax
under the provisions of Section 881(c) of the Code with respect to payments to
be made under this Agreement and under any Revolving Note and (iv) in the case
of any such Bank (other than a Bank described in clause (i) or (ii) above), to
the extent legally entitled to do so, (x) with respect to a Bank that is an
assignee or transferee of an interest under this Agreement pursuant to Section
1.14 or 12.04 (unless the respective Bank was already a Bank hereunder
immediately prior to such assignment or transfer), within five days after such
assignment or transfer to such Bank, and (y) with respect to any such Bank, from
time to time upon the reasonable written request of the Company or the
Administrative Agent after the First Restatement Effective Date, to provide to
the Company and the Administrative Agent such other forms as may be required in
order to establish the entitlement of such Bank to an exemption from withholding
with respect to payments under this Agreement and under any Revolving Note, or
it
22
shall immediately notify the Borrowers and the Administrative Agent of its
inability to deliver such other forms, in which case such Bank shall not be
required to deliver any such other forms pursuant to this Section 3.04(b).
Notwithstanding anything to the contrary contained in Section 3.04(a), but
subject to the immediately succeeding sentence, each Borrower shall be entitled,
to the extent it is required to do so by law, to deduct or withhold income or
similar taxes imposed by the United States (or any political subdivision or
taxing authority thereof or therein) from interest, fees or other amounts
payable hereunder (without any obligation to pay the respective Bank additional
amounts with respect thereto) for the account of any Bank which is not a United
States person (as such term is defined in Section 7701(a)(30) of the Code) for
U.S. Federal income tax purposes and which has not provided to the Company such
forms required to be provided to the Company pursuant to the first sentence of
this Section 3.04(b). Notwithstanding anything to the contrary contained in the
preceding sentence and except as set forth in Section 12.04(b), each Borrower
agrees to indemnify each Bank in the manner set forth in Section 3.04(a) in
respect of any amounts deducted or withheld by it as described in the
immediately preceding sentence as a result of any changes after the First
Restatement Effective Date in any applicable law, treaty, governmental rule,
regulation, guideline or order, or in the interpretation thereof, relating to
the deducting or withholding of income or similar Taxes.
(c) If any Borrower pays any additional amount under this Section
3.04 to a Bank and such Bank determines that it has received or realized in
connection therewith any refund or any reduction of, or credit against, its Tax
liabilities in or with respect to the taxable year in which the additional
amount is paid, such Bank shall pay to the respective Borrower an amount that
the Bank shall, in its sole discretion, determine is equal to the net benefit,
after tax, which was obtained by the Bank in such taxable year as a consequence
of such refund, reduction or credit.
SECTION 4A. Conditions Precedent to the First Restatement Effective
Date. The occurrence of the First Restatement Effective Date pursuant to Section
12.10, and the obligation of each Bank to make Revolving Loans on the First
Restatement Effective Date is subject to the satisfaction of the following
conditions:
4A.01 Execution of Agreement; Notes. On or prior to the First
Restatement Effective Date, (i) this Agreement shall have been executed and
delivered as provided in Section 12.10 and (ii) there shall have been delivered
to the Administrative Agent for the account of each Bank that has requested the
same the
23
appropriate Revolving Notes executed by the respective Borrowers, in each case
in the amount, maturity and as otherwise provided herein.
4A.02 Officer's Certificate. On the First Restatement Effective
Date, the Administrative Agent shall have received a certificate dated the First
Restatement Effective Date signed on behalf of the Company by the President, any
Senior Vice President or any Vice President of the Company stating that all of
the conditions in Sections 4A.06, 4A.07, 4A.08, 4A.09 and 5.01 have been
satisfied on such date.
4A.03 Opinions of Counsel. On the First Restatement Effective Date,
the Administrative Agent shall have received (i) from Xxxxxx & Xxxxxxx, counsel
to Parent, the Company and the Subsidiary Borrowers, an opinion addressed to the
Administrative Agent and each of the Banks and dated the First Restatement
Effective Date in form and substance reasonably satisfactory to the
Administrative Agent and the Required Banks, (ii) from X.X. Xxxxxxxx, Xx.,
General Counsel to Parent and the Company, an opinion addressed to the
Administrative Agent and each of the Banks and dated the First Restatement
Effective Date in form and substance reasonably satisfactory to the
Administrative Agent and the Required Banks and (iii) from local gaming counsel
reasonably satisfactory to the Administrative Agent, opinions each of which
shall be in form and substance reasonably satisfactory to the Administrative
Agent and the Required Banks and shall cover New Jersey, Nevada and Illinois
Gaming Regulations and such other matters incident to the transactions
contemplated herein as the Administrative Agent may reasonably request.
4A.04 Corporate Documents; Proceedings. (a) On the First Restatement
Effective Date, the Administrative Agent shall have received a certificate from
each Credit Party, dated the First Restatement Effective Date, signed by the
President, any Senior Vice President or any Vice President of such Credit Party,
and attested to by the Secretary or any Assistant Secretary of such Credit
Party, in the form of Exhibit E to the 5-Year Credit Agreement with appropriate
insertions, together with copies of the certificate of incorporation,
partnership agreement and by-laws of such Credit Party (or equivalent
organizational documents), as the case may be, and the resolutions of such
Credit Party referred to in such certificate, and the foregoing shall be
reasonably acceptable to the Administrative Agent in its reasonable discretion.
(b) All corporate, partnership, limited liability company and legal
proceedings and all instruments and agreements in connection with the
transactions contemplated by this Agreement and the other Documents shall be
reasonably satisfactory in form and substance to the Administrative Agent
24
and the Required Banks, and the Administrative Agent shall have received true
and correct copies of all Documents, together with all information and copies of
all other documents and papers, including records of corporate proceedings,
partnership proceedings, limited liability company proceedings, governmental
approvals, good standing certificates and bring-down telegrams, if any, which
the Administrative Agent reasonably may have requested in connection therewith,
such documents and papers where appropriate to be certified by proper corporate
or governmental authorities.
4A.05 Company/Sub Guaranty. On the First Restatement Effective Date,
the Company and each other Guarantor (other than Parent) shall have duly
authorized, executed and delivered an amended and restated Company/Sub Guaranty
in the form of Exhibit F to the 5-Year Credit Agreement (as amended, modified or
supplemented from time to time in accordance with the terms hereof and thereof,
the "Company/Sub Guaranty").
4A.06 8-3/4% Senior Subordinated Notes Redemption. On or prior to
the First Restatement Effective Date, (i) the Company shall have mailed, or
caused to be mailed, to the trustee for, and to the holders of, the 8-3/4%
Senior Subordinated Notes a notice of redemption satisfying the applicable
provisions of the 8-3/4% Senior Subordinated Notes Indenture, which notice of
redemption shall call for redemption all of the outstanding 8-3/4% Senior
Subordinated Notes on a date on or before the 33rd day after the First
Restatement Effective Date and (ii) the Administrative Agent shall have received
evidence, in form and substance reasonably satisfactory to it, that all
outstanding 8-3/4% Senior Subordinated Notes have been called for redemption in
accordance with the provisions of this Section 4A.06.
4A.07 Adverse Change. Since December 31, 1997, nothing shall have
occurred (and neither the Administrative Agent nor the Banks shall have become
aware of any facts or conditions not previously known) which the Administrative
Agent or the Required Banks shall determine has had, or could reasonably be
expected to have, (i) a material adverse effect on the rights or remedies of the
Administrative Agent or the Banks, or on the ability of Parent, any Borrower or
any other Credit Party to perform its obligations to the Administrative Agent
and the Banks or (ii) a materially adverse effect on the business, operations,
property, assets, liabilities, condition (financial or otherwise) or prospects
of Parent and its Subsidiaries taken as a whole.
4A.08 Litigation. On the First Restatement Effective Date, no
litigation by any entity (private or governmental) shall be pending or
threatened (i) with respect to the Transaction, this Agreement, the other
Documents or any documentation executed
25
in connection herewith or therewith or the transactions contemplated hereby or
thereby, (ii) with respect to any material Indebtedness of Parent or any of its
Subsidiaries or (iii) which the Administrative Agent or the Required Banks shall
determine could reasonably be expected to have a materially adverse effect on
the business, operations, property, assets, liabilities, condition (financial or
otherwise) or prospects of Parent and its Subsidiaries taken as a whole.
4A.09 Approvals, etc. (a) On or prior to the First Restatement
Effective Date, (i) all necessary governmental (domestic and foreign) and third
party approvals and consents (including, in any event, (x) all required Gaming
Authority approvals and consents, (y) all shareholder and board of director
approvals and consents and (z) all approvals and consents (if any) required
under Parent's and the Company's guaranty of the Cherokee Casino financing and
the proposed Jazz Casino financing) required in connection with the transactions
contemplated by this Agreement and the other Credit Documents which are to occur
by the First Restatement Effective Date and otherwise referred to herein or
therein shall have been obtained and remain in full force and effect and all
applicable waiting periods shall have expired without any action being taken by
any competent authority which restrains, prevents or imposes materially adverse
conditions upon the consummation of such transactions or otherwise referred to
herein or therein and (ii) the Administrative Agent shall have received copies
or other evidence reasonably satisfactory to it of all such approvals and
consents. Additionally, there shall not exist any judgment, order, injunction or
other restraint issued or filed or a hearing seeking injunctive relief or other
restraint pending or notified prohibiting or imposing materially adverse
conditions upon the consummation of the transactions contemplated by this
Agreement or the other Credit Documents which are to occur by the First
Restatement Effective Date or otherwise referred to herein or therein.
(b) On or prior to the First Restatement Effective Date, the
Administrative Agent shall have received evidence that the Banks are qualified
under the New Jersey Gaming Regulations as financial sources or qualifiers, or
are exempt or waived therefrom, and shall be satisfied that no other New Jersey,
Nevada or other gaming license, authorization, qualification, waiver or
exemption of the Banks is required on or prior to the First Restatement
Effective Date by reason of this Agreement. The Administrative Agent also shall
be satisfied in its discretion with any conditions or requirements imposed by
the New Jersey, Nevada or other relevant Gaming Authorities upon the Banks, this
Agreement, the other Documents or the Transaction.
26
(c) On or prior to the First Restatement Effective Date, Parent, its
shareholders and Subsidiaries shall have received any qualifications required
under applicable Gaming Regulations in connection with this Agreement and the
other Credit Documents, and the Borrowers and the Guarantors shall have received
all other approvals, authorizations or consents of, or notices to or
registrations with any governmental body and required releases and consents from
other appropriate Persons (including, without limitation, the shareholders of
Parent) in connection with this Agreement and the other Credit Documents and
shall have provided copies or other satisfactory evidence of all approvals,
authorizations or consents referred to above to the Administrative Agent.
4A.10 5-Year Credit Agreement. On the First Restatement Effective
Date, Parent, the Company, the Subsidiary Borrowers, the 5-Year Banks and the
Administrative Agent shall have entered into the 5-Year Credit Agreement, and
the 5-Year Credit Agreement shall be in full force and effect. On the First
Restatement Effective Date, the Company shall have delivered to the
Administrative Agent a true and correct copy of the 5-Year Credit Agreement,
which shall be required to be in form and substance satisfactory to the
Administrative Agent and the Required Banks.
4A.11 Solvency Certificate. On the First Restatement Effective Date,
there shall have been delivered to the Administrative Agent a certificate in the
form of Exhibit G to the 5-Year Credit Agreement (appropriately completed),
addressed to the Administrative Agent and each of the Banks and dated the First
Restatement Effective Date, from the treasurer of Parent, providing the opinion
of such treasurer as to the solvency of Parent, the Company, each Subsidiary
Borrower and Parent and its Subsidiaries taken as a whole.
4A.12 Historical Financial Statements; Pro Forma Financial
Statements and Projections. On or prior to the First Restatement Effective Date,
the Administrative Agent shall have received true and correct copies of the
historical financial statements, the pro forma financial statements and the
Projections referred to in Sections 6.05(a) and (d), which historical financial
statements, pro forma financial statements and Projections shall be in form and
substance reasonably satisfactory to the Administrative Agent and the Required
Banks.
4A.13 Payment of Fees; etc. (a) On the First Restatement Effective
Date, all interest and Fees accrued (and not theretofore paid) under the
Existing Credit Agreement shall be paid in full, and all other costs, fees and
expenses owing to any of the Banks or the Administrative Agent under the
Existing
27
Credit Agreement shall be paid to the extent due. Furthermore, on the First
Restatement Effective Date, all costs, fees and expenses (including, without
limitation, legal fees and expenses) and other compensation contemplated hereby
or otherwise agreed and payable to the Banks or the Administrative Agent shall
have been paid to the extent due.
(b) On the First Restatement Effective Date, all Interest Periods
with respect to any outstanding Existing Revolving Loans shall have expired in
accordance with the terms thereof or shall have been terminated by the
Borrowers.
SECTION 4B. Conditions Precedent to the Showboat Merger Effective
Date and the incurrence of Loans on such date. The obligation of each Bank to
make Loans on the Showboat Merger Effective Date to consummate the Showboat
Merger is subject to the satisfaction of the following conditions:
4B.01 First Restatement Effective Date. The First Restatement
Effective Date shall have occurred.
4B.02 Officer's Certificate. On the Showboat Merger Effective Date,
the Administrative Agent shall have received a certificate dated the Showboat
Merger Effective Date signed on behalf of the Company by the President, any
Senior Vice President or any Vice President of the Company stating that all of
the conditions in Section 4B.05, 4B.06, 4B.07, 4B.08, 5B.09, 4B.10, 4B.11 and
5.01 have been satisfied on such date.
4B.03 Opinions of Counsel. On the Showboat Merger Effective Date,
the Administrative Agent shall have received (i) from Xxxxxx & Xxxxxxx, counsel
to Parent, the Company and the Subsidiary Borrowers, an opinion addressed to the
Administrative Agent and each of the Banks and dated the Showboat Merger
Effective Date in form and substance reasonably satisfactory to the
Administrative Agent and the Required Banks, (ii) from X.X. Xxxxxxxx, Xx.,
General Counsel to Parent and the Company, an opinion addressed to the
Administrative Agent and each of the Banks and dated the Showboat Merger
Effective Date in form and substance reasonably satisfactory to the
Administrative Agent and the Required Banks and (iii) from local and foreign
gaming counsel reasonably satisfactory to the Administrative Agent, opinions
each of which shall be in form and substance reasonably satisfactory to the
Administrative Agent and the Required Banks and shall cover New Jersey, Nevada,
Indiana, Illinois and Australian Gaming Regulations and such other matters
incident to the transactions contemplated herein as the Administrative Agent may
reasonably request.
28
4B.04 Corporate Documents; Proceedings. All corporate, partnership,
limited liability company and legal proceedings and all instruments and
agreements in connection with the transactions contemplated by this Agreement
and the other Documents shall be reasonably satisfactory in form and substance
to the Administrative Agent and the Required Banks, and the Administrative Agent
shall have received true and correct copies of all the Documents, together with
all information and copies of all other documents and papers, including records
of corporate proceedings, partnership proceedings, limited liability company
proceedings, governmental approvals, good standing certificates and bring-down
telegrams, if any, which the Administrative Agent reasonably may have requested
in connection therewith, such documents and papers where appropriate to be
certified by proper corporate or governmental authorities.
4B.05 The Showboat Merger. On the Showboat Merger Effective Date,
(i) the Showboat Merger shall have been consummated in accordance with the
Showboat Merger Documents and all applicable laws, (ii) each of the conditions
precedent to the consummation of the Showboat Merger as set forth in the
Showboat Merger Agreement (other than any immaterial conditions precedent) shall
have been satisfied and not waived except with the consent of the Administrative
Agent and the Required Banks to the satisfaction of the Administrative Agent and
the Required Banks and (iii) the Administrative Agent shall have received true
and correct copies of the Showboat Merger Agreement and the articles of merger
to be filed with the Secretary of State of Nevada and the Administrative Agent
shall have received verbal confirmation that such articles of merger have been
filed therewith and all of the terms and conditions of the Showboat Merger
Documents shall be in form and substance reasonably satisfactory to the
Administrative Agent and the Required Banks.
4B.06 Existing Showboat Notes Tender Offers/Consent Solicitations.
On or prior to the Showboat Merger Effective Date, Parent, the Company or
Showboat shall have commenced the Existing Showboat Notes Tender Offers/Consent
Solicitations and the Administrative Agent shall have received true and correct
copies of all Existing Showboat Notes Tender Offers/Consent Solicitations
Documents and all of the terms and conditions of such Documents shall be in form
and substance reasonably satisfactory to the Administrative Agent; it being
understood and agreed that, in any event, the terms of the Existing Showboat
Notes Tender Offers/Consent Solicitations Documents will provide for each issue
of Existing Showboat Notes to be purchased at the same time and for the Existing
Showboat Notes Tender Offers/Consent Solicitations to remain open for the period
required by law and to expire before the 90th day after the Showboat Merger
Effective Date.
29
4B.07 Existing Showboat Working Capital Facility. On or prior to the
Showboat Merger Effective Date (x) the total commitments in respect of the
Existing Showboat Working Capital Facility shall have been terminated, all loans
with respect thereto shall have been repaid in full, together with interest
thereon, all letters of credit issued thereunder shall have been terminated and
all other amounts owing with respect thereto shall have been repaid in full and
(y) the creditors in respect of the Existing Showboat Working Capital Facility
shall have terminated and released all guarantees granted by, and all security
interests in and Liens on the capital stock of and assets owned by, Showboat or
any of its Subsidiaries, or release arrangements satisfactory to the
Administrative Agent with respect thereto shall have been made.
4B.08 Adverse Change. Since December 31, 1997, nothing shall have
occurred (and neither the Administrative Agent nor the Banks shall have become
aware of any facts or conditions not previously known) which the Administrative
Agent or the Required Banks shall determine has had, or could reasonably be
expected to have, (i) a material adverse effect on the rights or remedies of the
Administrative Agent or the Banks, or on the ability of Parent, any Borrower or
any other Credit Party to perform its obligations to the Administrative Agent
and the Banks or (ii) a materially adverse effect on the business, operations,
property, assets, liabilities, condition (financial or otherwise) or prospects
of Parent and its Subsidiaries taken as a whole or Showboat and its Subsidiaries
taken as a whole.
4B.09 Litigation. On the Showboat Merger Effective Date, no
litigation by any entity (private or governmental) shall be pending or
threatened (i) with respect to the Transaction, this Agreement, the other
Documents or any documentation executed in connection herewith or therewith or
the transactions contemplated hereby or thereby, (ii) with respect to any
material Indebtedness of Parent, Showboat or any of their respective
Subsidiaries or (iii) which the Administrative Agent or the Required Banks shall
determine could reasonably be expected to have a materially adverse effect on
the business, operations, property, assets, liabilities, condition (financial or
otherwise) or prospects of Parent and its Subsidiaries taken as a whole or
Showboat and its Subsidiaries taken as a whole.
4B.10 Approvals, etc. (a) On or prior to the Showboat Merger
Effective Date (i) all necessary governmental (domestic and foreign) and third
party approvals and consents (including, in any event, (x) all required Gaming
Authority approvals and consents and (y) all shareholder and board of director
approvals and consents) required in connection with the Showboat Merger and the
other components of the Transaction that are to occur on or
30
after such date and otherwise referred to herein or therein shall have been
obtained and remain in full force and effect (other than any approvals not then
required to be obtained with respect to the Existing Showboat Notes Tender
Offers/Consent Solicitations), and all applicable waiting periods shall have
expired without any action being taken by any competent authority which
restrains, prevents or imposes materially adverse conditions upon the
consummation of the Showboat Merger or such other component of the Transaction
that is to occur on or after such date or otherwise referred to herein or
therein and (ii) the Administrative Agent shall have received copies or other
evidence reasonably satisfactory to it of all such approvals and consents.
Additionally, there shall not exist any judgment, order, injunction or other
restraint issued or filed or a hearing seeking injunctive relief or other
restraint pending or notified prohibiting or imposing materially adverse
conditions upon the consummation of the Showboat Merger or such other component
of the Transaction that is to occur on or after such date or otherwise referred
to herein or therein.
(b) On or prior to the Showboat Merger Effective Date, the
Administrative Agent shall be satisfied that, except as obtained pursuant to
Section 4A.09, no other New Jersey, Nevada, Illinois, Indiana or other gaming
license, authorization, qualification, waiver or exemption of the Banks is
required on or prior to the Showboat Merger Effective Date by reason of this
Agreement or the other Documents. The Administrative Agent also shall be
satisfied in its discretion with any conditions or requirements imposed by the
New Jersey, Nevada, Illinois or Indiana or other relevant Gaming Authorities
upon the Banks, this Agreement, the other Documents or the Transaction.
(c) On or prior to the Showboat Merger Effective Date, Parent, its
shareholders and Subsidiaries and Showboat and its Subsidiaries shall have
received any qualifications required under applicable Gaming Regulations in
connection with the Showboat Merger and the other components of the Transaction
that are to occur on or after such date, and the Borrowers, the Guarantors and
Showboat and its Subsidiaries shall have received all other approvals,
authorizations or consents of, or notices to or registrations with any
governmental body and required releases and consents from other appropriate
Persons (including, without limitation, the shareholders of Parent) in
connection therewith and shall have provided copies or other satisfactory
evidence of all approvals, authorizations or consents referred to above to the
Administrative Agent.
4B.11 Solvency Certificate. On the Showboat Merger Effective Date,
there shall have been delivered to the Administrative Agent a certificate in the
form of Exhibit G to the 5-Year Credit Agreement (appropriately completed),
addressed
31
to the Administrative Agent and each of the Banks and dated the Showboat Merger
Effective Date, from the treasurer of Parent, providing the opinion of such
treasurer as to the solvency of Parent, the Company, each Subsidiary Borrower
and Parent and its Subsidiaries taken as a whole.
4B.12 Schedules. On the Showboat Merger Effective Date, the Company
shall have delivered to the Administrative Agent true and complete copies of
supplements to Schedules III through VIII, which Schedules (i) shall be
supplemented to set forth the relevant information with respect to Showboat and
its Subsidiaries and (ii) shall be in form and substance satisfactory to the
Administrative Agent.
SECTION 5. Conditions Precedent to All Loans. The obligation of each
Bank to make Loans (including Loans made on the First Restatement Effective Date
and on the Showboat Merger Effective Date), is subject, at the time of the
making of each such Loan (except as hereinafter indicated), to the satisfaction
of the following conditions:
5.01 No Default; Representations and Warranties. At the time of each
such Loan and also after giving effect thereto (i) there shall exist no Default
or Event of Default and (ii) all representations and warranties contained herein
and in the other Credit Documents shall be true and correct in all material
respects with the same effect as though such representations and warranties had
been made on the date of the making of such Loan (it being understood and agreed
that any representation or warranty which by its terms is made as of a specified
date shall be required to be true and correct in all material respects only as
of such specified date).
5.02 Notice of Borrowing; Competitive Bid Loans. (a) Prior to the
making of each Revolving Loan, the Administrative Agent shall have received a
Notice of Borrowing meeting the requirements of Section 1.03.
(b) Prior to the making of any Competitive Bid Loans, (i) all of the
applicable conditions specified in Section 1.04 shall have been satisfied and
(ii) the Company's Indebtedness shall be rated at least BBB- Senior Implied by
S&P or at least Baa3 Senior Implied by Xxxxx'x.
5.03 Election to Become a Subsidiary Borrower. Prior to the
incurrence of any Loans by a Subsidiary Borrower which is not a Subsidiary
Borrower on the First Restatement Effective Date, the following additional
conditions shall be satisfied:
(i) such new Subsidiary Borrower shall have duly authorized,
executed and delivered to the Administrative
32
Agent an Election to Become a Subsidiary Borrower in the form of Exhibit
D, which shall be in full force and effect; and
(ii) to the extent not previously accomplished, such Subsidiary
Borrower shall have duly authorized, executed and delivered to the
Administrative Agent counterparts of the Company/Sub Guaranty, together
with such other documents, certificates, resolutions, opinions and
writings that would have been required to be delivered pursuant to
Sections 4.03 and 4.04 if such Subsidiary Borrower had been subject to
such Sections on the First Restatement Effective Date, all of which shall
be in form and substance reasonably satisfactory to the Administrative
Agent.
The occurrence of the First Restatement Effective Date and the
acceptance of the proceeds of each Loan shall constitute a representation and
warranty by Parent and the respective Borrower to the Administrative Agent and
each of the Banks that all the conditions specified in Section 4 and in this
Section 5 and applicable to such Loan have been satisfied as of that time. All
of the Revolving Notes, certificates, legal opinions and other documents and
papers referred to in Section 4 and in this Section 5, unless otherwise
specified, shall be delivered to the Administrative Agent at the Notice Office
for the account of each of the Banks and, except for the Revolving Notes, in
sufficient counterparts for each of the Banks and shall be in form and substance
satisfactory to the Required Banks.
Notwithstanding anything to the contrary contained above or in
Section 12.10, if the First Restatement Effective Date does not occur on or
prior to July 1, 1998, then it shall not thereafter occur (unless the Required
Banks agree in writing to an extension of such date), and this Agreement shall
cease to be of any force or effect and the Existing Credit Agreement shall
continue to be effective, as the same may have been, or may thereafter be,
amended, modified or supplemented from time to time.
SECTION 6. Representations, Warranties and Agreements. In order to
induce the Banks to enter into this Agreement and to make the Loans, each of
Parent, the Company and each Subsidiary Borrower makes the following
representations, warranties and agreements, in each case after giving effect to
the First Restatement Effective Date, all of which shall survive the execution
and delivery of this Agreement and any Revolving Notes issued hereunder and the
making of the Loans, with the occurrence of the First Restatement Effective Date
and the making of each Loan on or after the First Restatement Effective Date
being deemed to constitute a representation and warranty that the matters
specified in this Section 6 are true and correct on and
33
as of the First Restatement Effective Date and on the date of each such Loan (it
being understood and agreed that (x) any representation or warranty which by its
terms is made as of a specified date shall be required to be true and correct in
all material respects only as of such specified date and (y) any representation
or warranty as to Showboat or any of its Subsidiaries shall not be made until
the consummation of the Showboat Merger).
6.01 Status. Each of Parent and each of its Subsidiaries (i) is a
duly organized and validly existing corporation, partnership or limited
liability company, in good standing under the laws of the jurisdiction of its
organization, (ii) has the corporate, partnership or limited liability company
power and authority to own its property and assets and to transact the business
in which it is engaged and presently proposes to engage and (iii) is duly
qualified and is authorized to do business and is in good standing in each
jurisdiction where the ownership, leasing or operation of its property or the
conduct of its business requires such qualifications except for failures to be
so qualified which, individually or in the aggregate, could not reasonably be
expected to have a material adverse effect on the business, operations,
property, assets, liabilities, condition (financial or otherwise) or prospects
of Parent and its Subsidiaries taken as a whole.
6.02 Power and Authority. Each Credit Party has the corporate,
partnership or limited liability company power and authority to execute, deliver
and perform the terms and provisions of each of the Documents to which it is
party and has taken all necessary corporate, partnership or limited liability
company action to authorize the execution, delivery and performance by it of
each of such Documents. Each Credit Party has duly executed and delivered each
of the Documents to which it is party, and each of such Documents constitutes
its legal, valid and binding obligation enforceable in accordance with its
terms, except to the extent that the enforceability thereof may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws generally affecting creditors' rights and by equitable principles
(regardless of whether enforcement is sought in equity or at law).
6.03 No Violation. Neither the execution, delivery or performance by
any Credit Party of the Documents to which it is a party, nor compliance by it
with the terms and provisions thereof, (i) will contravene any provision of any
law, statute, rule or regulation or any order, writ, injunction or decree of any
court or governmental instrumentality, (ii) will conflict with or result in any
breach of any of the terms, covenants, conditions or provisions of, or
constitute a default under, or
34
result in the creation or imposition of (or the obligation to create or impose)
any Lien upon any of the property or assets of Parent or any of its Subsidiaries
pursuant to the terms of any indenture (including the indentures governing the
terms of the Existing Showboat Notes or any other Indebtedness of Showboat or
any of its Subsidiaries which is to remain outstanding after the Showboat Merger
Effective Date), mortgage, deed of trust, credit agreement or loan agreement, or
any other material agreement, contract or instrument, to which Parent or any of
its Subsidiaries is a party or by which it or any of its property or assets is
bound or to which it may be subject or (iii) will violate any provision of the
certificate of incorporation, partnership agreement, limited liability company
agreement or by-laws (or equivalent organizational documents) of Parent or any
of its Subsidiaries.
6.04 Governmental Approvals. No order, consent, approval, license,
authorization or validation of, or filing, recording or registration with
(except as have been obtained or made on or prior to the First Restatement
Effective Date or on or prior to the Showboat Merger Effective Date in the case
of the Showboat Merger), or exemption by, any governmental or public body or
authority, or any subdivision thereof, is required to authorize, or is required
in connection with, (i) the Transaction, (ii) the execution, delivery and
performance of any Document or (iii) the legality, validity, binding effect or
enforceability of any such Document.
6.05 Financial Statements; Financial Condition; Undisclosed
Liabilities; Projections; etc. (a) The statements of financial condition of
Parent and its Consolidated Subsidiaries at December 31, 1997, and the related
statements of income and cash flow and changes in shareholders' equity of Parent
and its Consolidated Subsidiaries for the fiscal year ended on such date, copies
of which were furnished to the Banks prior to the First Restatement Effective
Date, present fairly the financial condition of Parent and its Consolidated
Subsidiaries at the date of such statements of financial condition and the
results of the operations of Parent and its Consolidated Subsidiaries for the
fiscal year covered thereby. The statements of financial condition of Showboat
and its Consolidated Subsidiaries at December 31, 1997, and the related
statements of income and cash flow and changes in shareholders' equity of
Showboat and its Consolidated Subsidiaries for the fiscal year ended on such
date, copies of which were furnished to the Banks prior to the First Restatement
Effective Date, present fairly the financial condition of Showboat and its
Consolidated Subsidiaries at the date of such statements of financial condition
and the results of the operations of Showboat and its Consolidated Subsidiaries
for the fiscal year covered thereby. All of the
35
foregoing historical financial statements have been prepared in accordance with
generally accepted accounting principles and practices consistently applied. The
pro forma consolidated financial statements of Parent and its Consolidated
Subsidiaries as of December 31, 1997, after giving effect to the Transaction and
the financing therefor, copies of which have been furnished to the Banks prior
to the First Restatement Effective Date, present fairly the pro forma
consolidated financial position of Parent and its Consolidated Subsidiaries as
of December 31, 1997 and the pro forma consolidated results of operations of
Parent and its Consolidated Subsidiaries for the fiscal year covered thereby.
All such pro forma financial statements have been prepared in accordance with
generally accepted accounting principles and practices consistently applied.
Since December 31, 1997, there has been no material adverse change in the
business, operations, property, assets, liabilities, condition (financial or
otherwise) or prospects of Parent and its Subsidiaries taken as a whole.
(b) On and as of the First Restatement Effective Date and the
Showboat Merger Effective Date, both before and after giving effect to all
Indebtedness (including the Loans) being incurred or assumed and Liens created
by Parent and its Subsidiaries in connection therewith, (a) the sum of the
assets, at a fair valuation, of each of Parent, the Company, each Subsidiary
Borrower, Parent and its Subsidiaries taken as a whole and the Company and its
Subsidiaries taken as a whole will exceed their respective debts; (b) none of
Parent, the Company, any Subsidiary Borrower, Parent and its Subsidiaries taken
as a whole or the Company and its Subsidiaries taken as a whole has incurred,
nor do they intend to incur or believe that they will incur, debts beyond their
ability to pay such debts as such debts mature; and (c) each of Parent, the
Company, each Subsidiary Borrower, Parent and its Subsidiaries taken as a whole
and the Company and its Subsidiaries taken as a whole will have sufficient
capital with which to conduct its respective business. For purposes of this
Section 6.05(b), "debt" means any liability on a claim, and "claim" means (i)
right to payment, whether or not such a right is reduced to judgment,
liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed,
undisputed, legal, equitable, secured or unsecured or (ii) right to an equitable
remedy for breach of performance if such breach gives rise to a payment, whether
or not such right to an equitable remedy is reduced to judgment, fixed,
contingent, matured, unmatured, disputed, undisputed, secured or unsecured.
(c) Except as fully disclosed in the financial statements delivered
pursuant to Section 6.05(a), there were as of the First Restatement Effective
Date no liabilities or obligations with respect to Parent or any of its
Subsidiaries of any
36
nature whatsoever (whether absolute, accrued, contingent or otherwise and
whether or not due) which, either individually or in aggregate, would be
material to Parent and its Subsidiaries taken as a whole. As of the First
Restatement Effective Date, neither Parent nor any Borrower knows of any basis
for the assertion against Parent or any of its Subsidiaries of any liability or
obligation of any nature whatsoever that is not fully disclosed in the financial
statements delivered pursuant to Section 6.05(a) which, either individually or
in the aggregate, is material to Parent and its Subsidiaries taken as a whole.
(d) On and as of the First Restatement Effective Date and, assuming
the consummation of the Showboat Merger as contemplated herein, on and as of the
Showboat Merger Effective Date, (i) the financial projections (the
"Projections") set forth in the Confidential Information Memorandum and prepared
by Parent were prepared based upon the assumptions concerning various industry
trends described therein for the periods presented, (ii) the Projections were
based on good faith assumptions and estimates, and (iii) although a range of
possible different assumptions and estimates might also be reasonable, neither
Parent nor the Company is aware of any facts that would lead either of them to
believe that the assumptions and estimates on which the Projections were based
are not reasonable; provided that no assurance can be given that the projected
results will be realized or with respect to the ability of Parent and its
Subsidiaries to achieve the projected results, and while the Projections are
necessarily presented with numerical specificity, the actual results achieved
during the periods presented in all likelihood will differ from the projected
results and such differences may be material.
6.06 Litigation. There are no actions, suits or proceedings pending
or, to the best knowledge of Parent or any Borrower, threatened (i) with respect
to any Document or the Transaction, (ii) with respect to any material
Indebtedness of Parent or any of its Subsidiaries or (iii) except as set forth
on Schedule VIII so long as there are no adverse judgments regarding such
litigation, that could reasonably be expected to materially and adversely affect
the business, operations, property, assets, liabilities, condition (financial or
otherwise) or prospects of Parent and its Subsidiaries taken as a whole.
6.07 True and Complete Disclosure. All factual information (taken as
a whole) furnished by or on behalf of Parent or its Subsidiaries in writing to
the Administrative Agent or any Bank (including, without limitation, all
information contained in the Confidential Information Memorandum and the
Documents) for purposes of or in connection with this Agreement, the other
Documents or any transaction contemplated herein or therein is, and all other
such factual information (taken as a
37
whole) hereafter furnished by or on behalf of Parent or its Subsidiaries in
writing to the Administrative Agent or any Bank will be, true and accurate in
all material respects on the date as of which such information is dated or
certified and not incomplete by omitting to state any fact necessary to make
such information (taken as a whole) not misleading in any material respect at
such time in light of the circumstances under which such information was
provided.
6.08 Use of Proceeds; Margin Regulations. (a) All proceeds of the
Loans shall be used by the Borrowers (i) to effect the Transaction, (ii) to pay
fees and expenses related to the Transaction and (iii) for the Borrowers' and
their Subsidiaries' general corporate purposes.
(b) Except to finance the Showboat Merger and as otherwise permitted
by Section 8.05, but in each case subject to the last sentence of this Section
6.08(b), no part of the proceeds of any Loan will be used to purchase or carry
any Margin Stock or to extend credit for the purpose of purchasing or carrying
any Margin Stock. Neither the making of any Loan nor the use of the proceeds
thereof will violate or be inconsistent with the provisions of Regulation G, T,
U or X of the Board of Governors of the Federal Reserve System. At the time of
each Loan and after giving effect thereto (including after giving effect to the
application of the proceeds therefrom), no more than 25% of the value of the
assets of Parent and its Subsidiaries on a consolidated basis shall constitute
Margin Stock.
6.09 Tax Returns and Payments. Each of Parent and each of its
Subsidiaries and each Person for whose tax Parent or any of its Subsidiaries
could be liable has filed or caused to be filed with the appropriate taxing
authority, all Federal and all other material returns, statements, forms and
reports for all taxes (the "Returns") required to be filed by it and has paid or
caused to be paid (i) all material taxes due for the periods covered thereby and
(ii) all taxes pursuant to any assessment received by Parent, any of its
Subsidiaries or any such Person, excluding, in each case, any such taxes that
have been contested in good faith and for which adequate reserves have been
established in accordance with generally accepted accounting principles. Except
as disclosed on Schedule II, as of the First Restatement Effective Date, there
is no action, suit, proceeding, investigation, audit, or claim now pending or,
to the knowledge of Parent or any of its Subsidiaries, threatened by any
governmental or taxing authority regarding any material taxes relating to Parent
or any of its Subsidiaries. Except as disclosed on Schedule II, as of the First
Restatement Effective Date, neither Parent nor any of its Subsidiaries has
entered into an agreement or waiver extending any statute of limitations
38
relating to the payment or collection of any material taxes of Parent or any of
its Subsidiaries.
6.10 Compliance with ERISA. Each Plan is in substantial compliance
with ERISA and the Code; no Reportable Event has occurred with respect to a
Plan; no Plan is insolvent or in reorganization; no Plan has an Unfunded Current
Liability; no Plan has an accumulated or waived funding deficiency, has
permitted decreases in its funding standard account or has applied for an
extension of any amortization period within the meaning of Section 412 of the
Code; neither Parent nor any Subsidiary of Parent nor any ERISA Affiliate has
incurred any material liability to or on account of a Plan pursuant to Section
409, 502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or
Section 401(a)(29), 4971 or 4975 of the Code or expects to incur any liability
under any of the foregoing Sections with respect to any Plan; no proceedings
have been instituted by the PBGC to terminate or appoint a trustee to administer
any Plan; no condition exists which presents a material risk to Parent or any
Subsidiary of Parent or any ERISA Affiliate of incurring a liability to or on
account of a Plan pursuant to the foregoing provisions of ERISA and the Code; no
lien imposed under the Code or ERISA on the assets of Parent or any Subsidiary
of Parent or any ERISA Affiliate exists or is likely to arise on account of any
Plan; and Parent and its Subsidiaries may cease contributions to or terminate
any employee benefit plan maintained by any of them without incurring any
material liability to any person interested therein other than accrued benefits;
it being understood that any representation or warranty made in this Section
6.10 with respect to any multiemployer plan (labor union) is to the best
knowledge of Parent, the Company and each Subsidiary Borrower.
6.11 Properties. Parent and each of its Subsidiaries have good title
to all material properties owned by them, free and clear of all Liens, other
than Liens permitted by Section 8.01.
6.12 Capitalization. (a) On the First Restatement Effective Date,
the authorized capital stock of Parent shall consist of (i) 360,000,000 shares
of common stock, $.10 par value per share, of which, as of December 31, 1997,
101,035,898 shares were issued and outstanding, (ii) 150,000 shares of preferred
stock, $100 par value per share, of which no shares are issued and outstanding
and (iii) 5,000,000 shares of special stock, $1.125 par value per share, of
which no shares are issued and outstanding. All such outstanding shares have
been duly and validly issued, are fully paid and nonassessable and are free of
preemptive rights. As of the First Restatement Effective Date and except as
disclosed in the most recent report on Form 10-K
39
filed by Parent with the SEC, Parent does not have outstanding any securities
convertible into or exchangeable for its capital stock or outstanding any rights
to subscribe for or to purchase, or any options for the purchase of, or any
agreement providing for the issuance (contingent or otherwise) of, or any calls,
commitments or claims of any character relating to, its capital stock.
(b) On the First Restatement Effective Date, the authorized capital
stock of the Company shall consist of 1,000 shares of common stock, $1.00 par
value per share, all of which shares were issued and outstanding and owned by
Parent. All such outstanding shares have been duly and validly issued, are fully
paid and nonassessable and are free of preemptive rights. The Company does not
have outstanding any securities convertible into or exchangeable for its capital
stock or outstanding any rights to subscribe for or to purchase, or any options
for the purchase of, or any agreements providing for the issuance (contingent or
otherwise) of, or any calls, commitments or claims of any character relating to,
its capital stock.
6.13 Subsidiaries. Except as otherwise agreed by the Required Banks,
Parent has no Subsidiaries other than (i) the Company and its Subsidiaries and
(ii) Aster Insurance Ltd. All Subsidiaries of the Company as of the First
Restatement Effective Date, and the direct owner of the capital stock thereof,
are listed on Schedule III. Schedule III also accurately shows, as of the First
Restatement Effective Date, with respect to each Subsidiary (i) whether such
Subsidiary is a Material Subsidiary and (ii) whether such Subsidiary is a
Guarantor.
6.14 Compliance with Statutes, etc. Each of Parent and each of its
Subsidiaries is in compliance with all applicable statutes, regulations and
orders of, and all applicable restrictions imposed by, all governmental bodies,
domestic or foreign, in respect of the conduct of its business and the ownership
of its property (including applicable statutes, regulations, orders and
restrictions relating to environmental standards and controls), except such
noncompliances as could not, individually or in the aggregate, reasonably be
expected to have a material adverse effect on the business, operations,
property, assets, liabilities, condition (financial or otherwise) or prospects
of Parent and its Subsidiaries taken as a whole.
6.15 Investment Company Act. Neither Parent nor any of its
Subsidiaries is an "investment company" or a company "controlled" by an
"investment company," within the meaning of the Investment Company Act of 1940,
as amended.
6.16 Public Utility Holding Company Act. Neither Parent nor any of
its Subsidiaries is a "holding company," or a
40
"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.
6.17 Environmental Matters. (a) Parent and each of its Subsidiaries
have complied with, and on the date of each such Loan are in compliance with,
all applicable Environmental Laws and the requirements of any permits issued
under such Environmental Laws. There are no pending or, to the best knowledge of
Parent or any Borrower after due inquiry, past or threatened Environmental
Claims against Parent or any of its Subsidiaries or any Real Property owned or
operated by Parent or any of its Subsidiaries that individually or in the
aggregate could reasonably be expected to materially and adversely affect the
business, operations, property, assets, liabilities, condition (financial or
otherwise) or prospects of Parent and its Subsidiaries taken as a whole. There
are no facts, circumstances, conditions or occurrences on any Real Property
owned or operated by Parent or any of its Subsidiaries or, to the best knowledge
of Parent or any Borrower after due inquiry, on any property adjoining or in the
vicinity of any such Real Property that, to the best knowledge of Parent or any
Borrower after due inquiry, could reasonably be expected (i) to form the basis
of an Environmental Claim against Parent or any of its Subsidiaries or any such
Real Property that individually or in the aggregate could reasonably be expected
to materially and adversely affect the business, operations, property, assets,
liabilities, condition (financial or otherwise) or prospects of Parent and its
Subsidiaries taken as a whole, or (ii) to cause any such Real Property to be
subject to any restrictions on the ownership, occupancy, use or transferability
of such Real Property by Parent or any of its Subsidiaries under any applicable
Environmental Law.
(b) Hazardous Materials have not at any time been generated, used,
treated or stored on, or transported to or from, any Real Property owned or
operated by Parent or any of its Subsidiaries where such generation, use,
treatment or storage has violated or could reasonably be expected to violate any
Environmental Law. Hazardous Materials have not at any time been Released on or
from any Real Property owned or operated by Parent or any of its Subsidiaries
where such Release has violated or could reasonably be expected to violate any
applicable Environmental Law. There are not now any underground storage tanks
located on any Real Property owned or operated by Parent or any of its
Subsidiaries which are not in compliance with all Environmental Laws.
(c) Notwithstanding anything to the contrary in this Section 6.17,
the representations made in this Section 6.17 shall
41
only be untrue if the effect of any or all failures and noncompliances of the
types described above, either individually or in the aggregate, could reasonably
be expected to have a material adverse effect on the business, operations,
property, assets, liabilities, condition (financial or otherwise) or prospects
of Parent and its Subsidiaries taken as a whole.
6.18 Labor Relations. Neither Parent nor any of its Subsidiaries is
engaged in any unfair labor practice that could reasonably be expected to have a
material adverse effect on Parent and its Subsidiaries taken as a whole. There
is (i) no unfair labor practice complaint pending against Parent or any of its
Subsidiaries or, to the best knowledge of the Parent or any Borrower, threatened
against Parent or any of its Subsidiaries, before the National Labor Relations
Board, and no grievance or arbitration proceeding arising out of or under any
collective bargaining agreement is so pending against Parent or any of its
Subsidiaries or, to the best knowledge of Parent or any Borrower, threatened
against any of them, (ii) no strike, labor dispute, slowdown or stoppage pending
against Parent or any of its Subsidiaries or, to the best knowledge of Parent or
any Borrower, threatened against Parent or any of its Subsidiaries and (iii) to
the best knowledge of Parent or any Borrower, no union representation question
existing with respect to the employees of Parent or any of its Subsidiaries,
except (with respect to any matter specified in clause (i), (ii) or (iii) above,
either individually or in the aggregate) such as could not reasonably be
expected to have a material adverse effect on the business, operations,
property, assets, liabilities, condition (financial or otherwise) or prospects
of Parent and its Subsidiaries taken as a whole.
6.19 Patents, Licenses, Franchises and Formulas. Each of Parent and
its Subsidiaries own all the patents, trademarks, permits, service marks, trade
names, copyrights, licenses, franchises and formulas, or rights with respect to
the foregoing, and has obtained assignments of all leases and other rights of
whatever nature, necessary for the present conduct of its business, without any
known conflict with the rights of others which, or the failure to obtain which,
as the case may be, either individually or in the aggregate, could reasonably be
expected to result in a material adverse effect on the business, operations,
property, assets, liabilities, condition (financial or otherwise) or prospects
of Parent and its Subsidiaries taken as a whole.
6.20 Existing Indebtedness. Schedule IV sets forth a true and
complete list of all Indebtedness of Parent and its Subsidiaries as of the First
Restatement Effective Date and which is to remain outstanding after giving
effect thereto, in each case showing the respective borrower thereof (excluding
42
Indebtedness under this Agreement and the 5-Year Credit Agreement), with Part A
of such Schedule IV to indicate that Indebtedness which constitutes "Existing
Indebtedness" under Section 8.04(ii) of the Existing Credit Agreement and Part B
of such Schedule IV to indicate all such other Indebtedness of Parent and its
Subsidiaries.
6.21 Transaction. At the time of consummation thereof, each
component of the Transaction shall have been consummated in accordance with the
terms of the respective Documents and all applicable laws. At the time of
consummation thereof, all consents and approvals of, and filings and
registrations with, and all other actions in respect of, all governmental
agencies, authorities or instrumentalities required in order to make or
consummate each component of the Transaction have been obtained, given, filed or
taken and are or will be in full force and effect (or effective judicial relief
with respect thereto has been obtained). All applicable waiting periods with
respect thereto have or, prior to the time when required, will have, expired
without, in all such cases, any action being taken by any competent authority
which restrains, prevents, or imposes material adverse conditions upon any
component of the Transaction. Additionally, there does not exist any judgment,
order or injunction prohibiting or imposing material adverse conditions upon any
component of the Transaction, or the incurrence of any Loan or the performance
by a Credit Party of its obligations under the Documents to which it is party.
All actions taken by each Credit Party pursuant to or in furtherance of each
component of the Transaction have been taken in compliance with the respective
Documents and all applicable laws.
6.22 No Other Ventures. Except as set forth on Schedule V, as of the
First Restatement Effective Date, neither Parent nor any of its Subsidiaries is
engaged in any Joint Venture or partnership with any other Person.
SECTION 7. Affirmative Covenants. Each of Parent, the Company and
each Subsidiary Borrower covenants and agrees that on and after the First
Restatement Effective Date and until the Total Revolving Loan Commitment has
terminated and the Loans and the Revolving Notes, together with interest, Fees
and all other obligations incurred hereunder and thereunder, are paid in full:
7.01 Information Covenants. Parent will furnish to each Bank:
(a) Quarterly Financial Statements. Within 45 days after the close
of the first three quarterly accounting periods in each fiscal year of
Parent, the consolidated balance sheet of Parent and its Consolidated
Subsidiaries as
43
at the end of such quarterly accounting period and the related
consolidated statements of income and retained earnings and statement of
cash flows, in each case for such quarterly accounting period and for the
elapsed portion of the fiscal year ended with the last day of such
quarterly accounting period, in each case setting forth comparative
figures for the related periods in the prior fiscal year, all of which
shall be certified by the chief financial officer, controller or treasurer
of Parent, subject to normal year-end audit adjustments.
(b) Annual Financial Statements. Within 120 days after the close of
each fiscal year of Parent, the consolidated balance sheet of Parent and
its Consolidated Subsidiaries as at the end of such fiscal year and the
related consolidated statements of income and retained earnings and
statement of cash flows for such fiscal year setting forth comparative
figures for the preceding fiscal year and certified by Xxxxxx Xxxxxxxx LLP
or another firm of independent certified public accountants of recognized
national standing, together with a statement of the firm of such
independent accountants as to whether, in conducting their audit, anything
came to their attention to cause them to believe that Parent and the
Company were not in compliance with Sections 8.07, 8.08 and 8.09, insofar
as such Sections relate to accounting and auditing matters, on the date of
such statements.
(c) Budgets. No later than 90 days after the commencement of each
fiscal year of Parent, a budget which shall include an annual balance
sheet for such fiscal year, quarterly statements of income and sources and
uses of cash for each of the four fiscal quarters of such fiscal year,
together with a business plan for such fiscal year, in each case
consolidated for Parent and its Subsidiaries, and accompanied by a
statement of the chief financial officer, controller or treasurer of
Parent that the budget has been approved by the Board of Directors of
Parent or the Company.
(d) Officer's Certificates. At the time of the delivery of the
financial statements provided for in Sections 7.01(a) and (b), a
certificate of the chief financial officer, controller or treasurer of
Parent to the effect that, to the best of such officer's knowledge, no
Default or Event of Default has occurred and is continuing or, if any
Default or Event of Default has occurred and is continuing, specifying the
nature and extent thereof, which certificate shall set forth (i) the
calculations required to establish whether Parent and the Borrowers were
in compliance with the provisions of Sections 2.03(c) and (d),
44
8.03(v), 8.04(vi), 8.04(vii), 8.04(x) through and including 8.04(xii) and
8.04(xv), 8.05 and 8.07 through 8.09, inclusive, at the end of such fiscal
quarter or year, as the case may be, (ii) the Senior Implied Indebtedness
ratings, if any, assigned by Xxxxx'x and S&P to the Company's Indebtedness
at the end of such fiscal quarter or year, as the case may be, and (iii)
the Reduction Discount, if any, for the Margin Reduction Period commencing
with the delivery of such financial statements.
(e) Notice of Default or Litigation. Promptly upon, and in any event
within three Business Days after, an officer of Parent or any Borrower
obtains knowledge thereof, notice of (i) the occurrence of any event which
constitutes a Default or an Event of Default and (ii) any litigation or
governmental investigation or proceeding (including any investigation by
any Gaming Authority) pending (x) against Parent or any of its
Subsidiaries which could reasonably be expected to materially and
adversely affect the business, operations, property, assets, liabilities,
condition (financial or otherwise) or prospects of Parent and its
Subsidiaries taken as a whole, (y) with respect to any material
Indebtedness of Parent or any of its Subsidiaries or (z) with respect to
the Transaction or any Document.
(f) Other Reports and Filings. Promptly, (i) copies of all financial
statements, reports and proxy materials which Parent has mailed to its
shareholders generally, (ii) copies of all registration statements (other
than the exhibits thereto and any registration statements on Form S-8 or
its equivalent) and reports on Forms 10-K, 10-Q and 8-K (or their
equivalent) which Parent or any of its Subsidiaries shall file with the
Securities and Exchange Commission or any successor thereof (the "SEC")
and (iii) to the extent not otherwise provided to the Banks, copies of all
notices, reports and financial statements which Parent or any of its
Subsidiaries shall deliver to holders of any issue of Indebtedness if the
aggregate principal amount thereof exceeds (or upon the utilization of any
unused commitments may exceed) $25,000,000 pursuant to the terms of the
documentation governing any such issue of Indebtedness (or any trustee,
agent or other representative therefor).
(g) Environmental Matters. Promptly upon, and in any event within
ten Business Days after, an officer of Parent or any Borrower obtains
knowledge thereof, notice of one or more of the following environmental
matters, unless such environmental matters could not, individually or when
aggregated with all other such environmental matters, be reasonably
expected to materially and adversely affect the
45
business, operations, property, assets, liabilities, condition (financial
or otherwise) or prospects of Parent and its Subsidiaries taken as a
whole: (i) any pending or threatened Environmental Claim against Parent or
any of its Subsidiaries or any Real Property owned or operated by Parent
or any of its Subsidiaries; (ii) any condition or occurrence on or arising
from any Real Property owned or operated by Parent or any of its
Subsidiaries that (a) results in noncompliance by Parent or any of its
Subsidiaries with any applicable Environmental Law or (b) could reasonably
be expected to form the basis of an Environmental Claim against Parent or
any of its Subsidiaries or any such Real Property; (iii) any condition or
occurrence on any Real Property owned or operated by Parent or any of its
Subsidiaries that could reasonably be expected to cause such Real Property
to be subject to any restrictions on the ownership, occupancy, use or
transferability by Parent or any of its Subsidiaries of such Real Property
under any Environmental Law; and (iv) the taking of any removal or
remedial action in response to the actual or alleged presence of any
Hazardous Material on any Real Property owned or operated by Parent or any
of its Subsidiaries as required by any Environmental Law or any
governmental or other administrative agency; provided that in any event
Parent shall deliver to each Bank all notices received by Parent or any of
its Subsidiaries from any government or governmental agency under, or
pursuant to, CERCLA. All such notices shall describe in reasonable detail
the nature of the claim, investigation, condition, occurrence or removal
or remedial action and Parent's or such Subsidiary's response thereto. In
addition, Parent will provide the Banks with copies of all material
written communications by Parent or any of its Subsidiaries with any
government or governmental agency relating to Environmental Laws, all
material written communications with any person relating to Environmental
Claims, and such detailed reports of any Environmental Claim as may
reasonably be requested by the Banks.
(h) Other Information. From time to time, such other information or
documents (financial or otherwise) with respect to Parent or its
Subsidiaries as the Administrative Agent or any Bank may reasonably
request.
7.02 Books, Records and Inspections. Parent will, and will cause
each of its Subsidiaries to, keep proper books of record and account in which
full, true and correct entries in conformity with generally accepted accounting
principles and all requirements of law shall be made of all dealings and
transactions in relation to its business and activities. Parent
46
will, and will cause each of its Subsidiaries to, permit officers and designated
representatives of the Administrative Agent or any Bank to visit and inspect, at
the Administrative Agent's or such Bank's expense and under guidance of officers
of Parent or such Subsidiary, any of the properties of Parent or such
Subsidiary, and to examine the books of account of Parent or such Subsidiary and
discuss the affairs, finances and accounts of Parent or such Subsidiary with,
and be advised as to the same by, its and their officers and independent public
accountants, provided that a representative of Parent or such Subsidiary is
present, all at such reasonable times and intervals and to such reasonable
extent as the Administrative Agent or such Bank may request, provided that the
Administrative Agent and the Banks shall have no right pursuant to this Section
7.02 to obtain any information relating to (i) the identity of gaming patrons
obligated under Markers or (ii) any filings made pursuant to Regulation 6A or
6.090 of the Regulations of the Nevada Gaming Commission (except that the
Administrative Agent and the Banks may review the reports of an independent
auditor with respect to such filings).
7.03 Maintenance of Property; Insurance. (a) Parent will, and will
cause each of its Material Subsidiaries to, keep all property necessary in the
reasonable conduct of its business in good working order and condition.
(b) Schedule VI sets forth a true and complete listing of all
insurance maintained by Parent and its Subsidiaries as of the First Restatement
Effective Date. Parent will maintain, and will cause each of its Material
Subsidiaries to maintain, (i) physical damage insurance on all real and personal
property on an all risk basis (including the perils of flood and quake),
covering the repair and replacement cost of all such property and consequential
loss coverage for business interruption and extra expense, and (ii) such other
insurance coverage in such amounts and with respect to such risks as is
consistent and in accordance with industry practice for companies similarly
situated owning similar properties in the same general areas in which Parent or
any of its Subsidiaries operates; provided, however, that flood, earthquake and
business interruption insurance will be required only to the extent available on
a commercially reasonable basis and so long as it is consistent with reasonable
and prudent insurance underwriting practices. All such insurance shall be
provided by insurers having an A.M. Best general policyholders service rating of
not less than "B+VI" or such other insurers as the Administrative Agent may
approve in writing. Parent will deliver to the Banks (i) upon request of any
Bank through the Administrative Agent from time to time full information as to
the insurance carried, (ii) for all material insurance, within five days of
receipt of notice from any insurer, a copy of any notice of cancellation or
material change in coverage from that existing
47
on the date of this Agreement and (iii) forthwith, notice of any cancellation or
nonrenewal of any insurance coverage of Parent or any of its Material
Subsidiaries with respect to any material insurance coverage of Parent or any of
its Subsidiaries. Nothing in this Section 7.03(b) shall be construed to restrict
the right of Parent or any Material Subsidiaries from obtaining blanket
insurance, or self insurance of certain risks to the extent such insurance is
consistent with the past practices of Parent or such Material Subsidiary and
consistent with reasonable and prudent insurance underwriting practices. If
Parent or any of its Material Subsidiaries shall fail to insure its property in
accordance with this Section 7.03(b), the Administrative Agent shall have the
right (but shall be under no obligation) upon notice to Parent or the respective
Material Subsidiary to procure such insurance and Parent and each Borrower
agrees to reimburse the Administrative Agent for all costs and expenses of
procuring such insurance.
7.04 Corporate Franchises. Parent will, and will cause each of its
Material Subsidiaries to, do or cause to be done, all things necessary to
preserve and keep in full force and effect its existence and its material
rights, franchises, licenses and patents; provided, however, that nothing in
this Section 7.04 shall prevent (i) sales of stock or assets by Parent or any of
its Subsidiaries in accordance with Section 8.02, (ii) the withdrawal by Parent
or any of its Subsidiaries of its qualification as a foreign corporation in any
jurisdiction where such withdrawal could not, individually or in the aggregate,
reasonably be expected to have a material adverse effect on the business,
operations, property, assets, liabilities, condition (financial or otherwise) or
prospects of Parent and its Subsidiaries taken as a whole or (iii) the taking of
any action respecting any right, franchise, license or patent determined by the
management of Parent or such Subsidiary to be in the best interest of Parent or
such Subsidiary.
7.05 Compliance with Statutes, etc. Parent will, and will cause each
of its Subsidiaries to, comply with all applicable statutes, regulations
(including Gaming Regulations) and orders of, and all applicable restrictions
imposed by, all governmental bodies, domestic or foreign, in respect of the
conduct of its business and the ownership of its property, except such
noncompliances as could not, individually or in the aggregate, reasonably be
expected to have a material adverse effect on the business, operations,
property, assets, liabilities, condition (financial or otherwise) or prospects
of Parent and its Subsidiaries taken as a whole.
7.06 Compliance with Environmental Laws. Except where the failure to
do so could not, individually or in the aggregate,
48
reasonably be expected to have a material adverse effect on the business,
operations, property, assets, liabilities, condition (financial or otherwise) or
prospects of Parent and its Subsidiaries taken as a whole, (i) Parent will
comply, and will cause each of its Subsidiaries to comply, with all
Environmental Laws applicable to the ownership or use of its Real Property now
or hereafter owned, leased or operated by Parent or any of its Subsidiaries,
(ii) Parent will, and will cause each of its Subsidiaries to, promptly pay or
cause to be paid all costs and expenses incurred in such compliance, (iii)
Parent will, and will cause each of its Subsidiaries to, keep or cause to be
kept all such Real Property free and clear of any Liens imposed pursuant to such
Environmental Laws and (iv) neither Parent nor any of its Subsidiaries will
generate, use, treat, store, release or dispose of, or permit (to the extent
within Parent's or such Subsidiary's reasonable control) the generation, use,
treatment, storage, release or disposal of Hazardous Materials on any Real
Property now or hereafter owned, leased or managed by Parent or any of its
Subsidiaries, or transport or permit (to the extent within Parent's or such
Subsidiary's reasonable control) the transportation of Hazardous Materials to or
from any such Real Property except in compliance with all applicable
Environmental Laws and as reasonably required in connection with the operation,
use and maintenance of any such Real Property in the conduct of Parent's or such
Subsidiary's business.
7.07 ERISA. As soon as possible and, in any event, within 10 days
after Parent or any Borrower or any ERISA Affiliate knows or has reason to know
of the occurrence of any of the following, Parent will deliver to each of the
Banks a certificate of the chief financial officer, controller or treasurer of
Parent setting forth details as to such occurrence and the action, if any, which
Parent, such Subsidiary or such ERISA Affiliate is required or proposes to take,
together with any notices required or proposed to be given to or filed with or
by Parent, such Subsidiary, such ERISA Affiliate, the PBGC, a Plan participant
or the Plan administrator with respect thereto: that a Reportable Event has
occurred (except to the extent to that Parent has previously delivered to the
Banks a certificate and notices (if any) concerning such event pursuant to the
next clause hereof); that a contributing sponsor (as defined in Section
4001(a)(13) of ERISA) of a Plan subject to Title IV of ERISA is subject to the
advance reporting requirement of PBGC Regulation Section 4043.61 (without regard
to subparagraph (b)(1) thereof), and an event described in subsection .62, .63,
.64, .65, .66, .67 or .68 of PBGC Regulation Section 4043 is reasonably expected
to occur with respect to such Plan within the following 30 days; that an
accumulated funding deficiency has been incurred or an application may be or has
been made to the Secretary of the Treasury for a waiver or modification of the
49
minimum funding standard (including any required installment payments) or an
extension of any amortization period under Section 412 of the Code with respect
to a Plan; that a Plan has been or may be terminated, reorganized, partitioned
or declared insolvent under Title IV of ERISA; that a Plan has an Unfunded
Current Liability giving rise to a lien under ERISA or the Code; that
proceedings may be or have been instituted by the PBGC to terminate or appoint a
trustee to administer a Plan; that a proceeding has been instituted pursuant to
Section 515 of ERISA to collect a delinquent contribution to a Plan; that
Parent, any Subsidiary of Parent or any ERISA Affiliate will or may incur any
material liability (including any contingent, or secondary liability) to or on
account of the termination of or withdrawal from a Plan under Section 4062,
4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or with respect to a Plan under
Section 401(a)(29), 4971 or 4975 of the Code or Section 409 or 502(i) or 502(l)
of ERISA. At the request of any Bank, Parent will deliver to such Bank (i) a
complete copy of the annual report (Form 5500) of each Plan (including, to the
extent required to be filed with Form 5500, the related financial and actuarial
statements and opinions and other supporting statements, certifications,
schedules and information) required to be filed with the Internal Revenue
Service and (ii) in addition to any certificates or notices delivered to the
Banks pursuant to the first sentence hereof, copies of any records, documents or
other information required to be furnished to the PBGC, and any material notices
received by Parent or any Subsidiary of Parent or any ERISA Affiliate with
respect to any Plan.
7.08 End of Fiscal Years; Fiscal Quarters. Parent and the Company
will cause (i) each of its fiscal years to end on December 31, and (ii) each of
its fiscal quarters to end on March 31, June 30, September 30 and December 31.
7.09 Performance of Obligations. Parent will, and will cause each of
its Subsidiaries to, perform all of its obligations under the terms of each
mortgage, indenture, security agreement and other debt instrument by which it is
bound, except such non-performances as could not, individually or in the
aggregate, reasonably be expected to have a material adverse effect on the
business, operations, property, assets, liabilities, condition (financial or
otherwise) or prospects of Parent and its Subsidiaries taken as a whole.
7.10 Payment of Taxes. Parent will pay and discharge, and will cause
each of its Subsidiaries to pay and discharge, all taxes, assessments and
governmental charges or levies imposed upon it or upon its income or profits, or
upon any properties belonging to it, in each case on a timely basis, and all
lawful claims which, if unpaid, might become a lien or charge upon any
50
properties of Parent or any of its Subsidiaries; provided that neither Parent
nor any of its Subsidiaries shall be required to pay any such tax, assessment,
charge, levy or claim which is being contested in good faith and by proper
proceedings if it has maintained adequate reserves with respect thereto in
accordance with generally accepted accounting principles.
7.11 Additional Guarantors; etc. (a) In the event that at any time
after the First Restatement Effective Date (A) Des Plaines Development L.P.
becomes a Wholly-Owned Subsidiary of the Company, (B) any Person becomes (x) a
First-Tier Material Subsidiary, (y) a Material Subsidiary pursuant to clause
(ii) of the definition thereof or (z) a guarantor under the 5-Year Credit
Agreement or (C) any Person is required to comply with the provisions of this
Section 7.11(a) as a result of a merger or consolidation permitted by Section
8.02(vi) or a transfer permitted by Section 8.02(vii) (it being understood and
agreed that any such Person under this clause (C) shall be required to take the
action required below contemporaneously with such merger, consolidation or
transfer), then Parent and the Company will, except as otherwise provided in the
last sentence of this clause (a), cause Des Plaines Development L.P. and each
such other Person (Des Plaines Development L.P. and each such other Person,
together with any Person required to execute a counterpart of the Company/Sub
Guaranty pursuant to clause (b) of this Section 7.11, a "Required Additional
Guarantor"), within 30 days after it becomes (or at the time it becomes, as the
case may be) a Required Additional Guarantor, to duly authorize, execute and
deliver to the Administrative Agent a counterpart of the Company/Sub Guaranty,
together with such other documents, certificates, resolutions, opinions and
writings that would have been required to be delivered pursuant to Sections
4A.03 and 4A.04 if such Subsidiary had been a Guarantor on the First Restatement
Effective Date and subject to such Sections on such date, all of which shall be
in form and substance reasonably satisfactory to the Administrative Agent.
Notwithstanding the foregoing, (x) any Subsidiary of the Company which is not a
Wholly-Owned Subsidiary or which has outstanding Non-Recourse Indebtedness
pursuant to Section 8.04(x) shall not be required to become a Guarantor pursuant
to the Company/Sub Guaranty and (y) neither Showboat nor any of its Subsidiaries
shall be required to become a Guarantor under the Company/Sub Guaranty pursuant
to this clause (a) until the consummation of the Existing Showboat Notes Tender
Offers/Consent Solicitations, the Existing Showboat Notes Defeasances or such
earlier time as the terms of the Existing Showboat Notes would permit.
(b) In addition to the requirements of clause (a) of this Section
7.11, within 30 days following the consummation of the Existing Showboat Notes
Tender Offers/Consent Solicitations,
51
the Existing Showboat Notes Defeasances or such earlier time as the terms of the
Existing Showboat Notes would permit, Showboat, Ocean Showboat, Inc., Atlantic
City Showboat, Inc., Showboat Operating Company, Showboat Indiana Investment
Limited Partnership and, if and when it becomes a Wholly-Owned Subsidiary of the
Company and to the extent permitted by the terms of its existing indebtedness
agreements, Showboat Marino Casino Partnership, each shall execute and deliver
to the Administrative Agent a counterpart of the Company/Sub Guaranty, together
with the other documents, certificates, resolutions, opinions and writings
required to be delivered by a Required Additional Guarantor pursuant to clause
(a) of this Section 7.11.
7.12 Showboat Change of Control Offers to Purchase and Showboat
Change of Control Purchases; Existing Showboat Notes Tender Offers/Consent
Solicitations. (a) Parent, the Company or Showboat will commence the Showboat
Change of Control Offers to Purchase in accordance with (and to the extent
required by) the terms of the respective Existing Showboat Notes Indentures and
all applicable laws. In addition, Parent, the Company or Showboat will purchase
all Existing Showboat Notes required to be purchased by it pursuant to the terms
of the Showboat Change of Control Offers to Purchase, it being understood that
the Showboat Change of Control Offers to Purchase shall occur before the 90th
day after the Showboat Merger Effective Date.
(b) At the expiration of the Existing Showboat Notes Tender
Offers/Consents Solicitations, and provided that the Minimum Condition and the
other conditions precedent described in the Existing Showboat Notes Tender
Offers/Consent Solicitations Documents have been satisfied, (i) Parent, the
Company or Showboat will purchase all Existing Showboat Notes tendered, and not
theretofore withdrawn, pursuant to the Existing Showboat Notes Tender
Offers/Consents Solicitations and (ii) in the event that less than 100% of the
Existing Showboat Notes have been so purchased, Showboat and each of the
trustees for the Existing Showboat Notes shall have duly executed and delivered
the respective Existing Showboat Notes Indenture Supplements. It is understood
and agreed that, notwithstanding anything to the contrary contained above in
this clause (b) or elsewhere in this Agreement, in the event that the Minimum
Condition has not been satisfied on or prior to the 90th day following the
Showboat Merger Effective Date, then no Existing Showboat Notes will be accepted
for purchase pursuant to the Existing Showboat Notes Tender Offers/Consent
Solicitations or otherwise (other than pursuant to the Showboat Change of
Control Offers to Purchase or pursuant to the Existing Showboat Notes
Defeasances).
(c) Parent and the Company will promptly deliver to the
Administrative Agent evidence reasonably satisfactory to it
52
that the applicable provisions of this Section 7.12 have been complied with in
accordance with the terms hereof.
7.13 Existing Showboat Notes Defeasances. In the event that Parent,
the Company or Showboat elects to consummate the Existing Showboat Notes
Defeasances (and to the extent) as permitted by Section 8.10, Parent, the
Company or Showboat shall take all actions as are required pursuant to the
applicable provisions of the Existing Showboat Note Indentures to ensure that
Showboat's and its Subsidiaries' respective obligations under the Existing
Showboat Note Indentures and the Existing Showboat Notes are terminated (other
than those limited obligations which expressly survive such defeasances as set
forth in the respective Existing Showboat Note Indentures) and that all
collateral securing such obligations are released (other than those Liens
permitted by Section 8.01(xx)). Within 95 days following the deposit of cash
and/or U.S. government obligations by Parent, the Company or Showboat to
consummate the Existing Showboat Notes Defeasances, Parent, the Company or
Showboat shall deliver to the Administrative Agent evidence, in form and
substance reasonably satisfactory to the Administrative Agent, that the Existing
Showboat Notes Defeasances have become effective in accordance with the terms of
the Existing Showboat Note Indentures and that the Existing Showboat Notes are
no longer deemed "outstanding".
7.14 8-3/4% Senior Subordinated Notes Redemption. On or prior to the
33rd day after the First Restatement Effective Date, (i) the Company shall have
consummated the 8-3/4% Senior Subordinated Notes Redemption in accordance with
the 8-3/4% Senior Subordinated Note Redemption Documents, the 8-3/4% Senior
Subordinated Notes Indenture and all applicable laws and (ii) the Administrative
Agent shall have received evidence, in form and substance reasonably
satisfactory to it, that all outstanding 8-3/4% Senior Subordinated Notes have
been redeemed in full and that the 8-3/4% Senior Subordinated Notes Indenture
has been discharged.
SECTION 8. Negative Covenants. Each of Parent, the Company and each
Subsidiary Borrower covenants and agrees that on and after the First Restatement
Effective Date and until the Total Revolving Loan Commitment has terminated and
the Loans and the Revolving Notes, together with interest, Fees and all other
Obligations incurred hereunder and thereunder, are paid in full:
8.01 Liens. Parent will not, and will not permit any of its
Subsidiaries to, create, incur, assume or suffer to exist any Lien upon or with
respect to any property or assets (real or personal, tangible or intangible) of
Parent or any of its Subsidiaries, whether now owned or hereafter acquired, or
sell
53
any such property or assets subject to an understanding or agreement, contingent
or otherwise, to repurchase such property or assets (including sales of accounts
receivable with recourse to Parent or any of its Subsidiaries), or assign any
right to receive income or permit the filing of any financing statement under
the UCC or any other similar notice of Lien under any similar recording or
notice statute; provided that the provisions of this Section 8.01 shall not
prevent the creation, incurrence, assumption or existence of the following
(Liens described below are herein referred to as "Permitted Liens"):
(i) inchoate Liens for taxes, assessments or governmental charges or
levies not yet due or Liens for taxes, assessments or governmental charges
or levies being contested in good faith and by appropriate proceedings for
which adequate reserves have been established in accordance with generally
accepted accounting principles;
(ii) Liens in respect of property or assets of Parent or any of its
Subsidiaries imposed by law, which were incurred in the ordinary course of
business and do not secure Indebtedness for borrowed money, such as
carriers', warehousemen's, materialmen's and mechanics' liens and other
similar Liens arising in the ordinary course of business, and (x) which do
not in the aggregate materially detract from the value of Parent's or such
Subsidiary's property or assets or materially impair the use thereof in
the operation of the business of Parent or such Subsidiary or (y) which
are being contested in good faith by appropriate proceedings, which
proceedings have the effect of preventing the forfeiture or sale of the
property or assets subject to any such Lien;
(iii) Liens permitted pursuant to Section 8.01(iii) of the Existing
Credit Agreement which remain in existence on the First Restatement
Effective Date and which are listed, and the property subject thereto
described, in Schedule VII, but only to the respective date, if any, set
forth in such Schedule VII for the removal and termination of any such
Liens, without any renewals or extensions thereof and Liens on the assets
of Showboat and its Subsidiaries which remain in existence on the Showboat
Merger Effective Date and which are listed, and the property thereto
described, in the supplement to Schedule VIII delivered pursuant to
Section 5B.12, but only to the respective date, if any, set forth in such
supplement to Schedule VIII for the removal and termination of any such
Liens, without any renewals or extensions thereof;
(iv) Liens on cash and/or U.S. government obligations that are
deposited by the Company with the trustee under the
54
8-3/4% Senior Subordinated Notes Indenture pending the consummation of the
8-3/4% Senior Subordinated Notes Redemption;
(v) leases or subleases granted to other Persons not materially
interfering with the conduct of the business of Parent or any of its
Subsidiaries or materially detracting from the value of the respective
assets of Parent or such Subsidiary;
(vi) Liens incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment insurance
and other types of social security in the ordinary course of business;
(vii) Liens placed upon equipment or machinery used in the ordinary
course of business of the Company or any of its Subsidiaries at the time
of acquisition thereof by the Company or any such Subsidiary or within 90
days thereafter to secure Indebtedness incurred to pay all or a portion of
the purchase price thereof provided that (x) the aggregate principal
amount of all Indebtedness secured by Liens permitted by this clause (vii)
incurred in any fiscal year of Parent does not exceed $1,000,000 and (y)
in all events, the Lien encumbering the equipment or machinery so acquired
does not encumber any other asset of Parent or such Subsidiary;
(viii) easements, rights-of-way, restrictions, encroachments and
other similar charges or encumbrances, and minor title deficiencies, in
each case not securing Indebtedness and not materially interfering with
the conduct of the business of Parent or any of its Subsidiaries;
(ix) Liens arising from precautionary UCC financing statement
filings regarding operating leases;
(x) Liens arising out of judgments or awards in respect of which
Parent or any of its Subsidiaries shall in good faith be prosecuting an
appeal or proceedings for review in respect of which there shall have been
secured a subsisting stay of execution pending such appeal or proceedings,
provided that the aggregate amount of all such judgments or awards (and
any cash and the fair market value of any property subject to such Liens)
does not exceed $15,000,000 at any time outstanding;
(xi) statutory and common law landlords' liens under leases to which
Parent or any of its Subsidiaries is a party;
55
(xii) Liens incurred or deposits made to secure the performance of
tenders, bids, statutory obligations, government contracts, performance
and return-of-money bonds and other obligations of a like nature incurred
in the ordinary course of business (exclusive of obligations for the
payment of borrowed money);
(xiii) Liens securing reimbursement obligations with respect to
commercial and standby letters of credit incurred by the Company or any of
its Subsidiaries in the ordinary course of business provided that (x) each
such letter of credit is in a face amount of less than $1,000,000 and (y)
the aggregate face amount of all such letters of credit does not exceed
$5,000,000;
(xiv) restrictions pursuant to legends on stock required by (x)
Gaming Regulations and (y) the partnership agreement for Xxxxxx'x Jazz (as
such partnership agreement is in effect on the Restatement Effective
Date), in each case to the extent such restrictions constitute a Lien;
(xv) any Lien existing on any asset of any corporation at the time
such corporation becomes a Subsidiary of Parent so long as any such Lien
was not created in contemplation of such event;
(xvi) any Lien existing on any asset prior to the acquisition
thereof by the Company or any of its Subsidiaries so long as any such Lien
was not created in contemplation of such acquisition;
(xvii) Liens on equipment or machinery subject to Capitalized Lease
Obligations to the extent permitted by Section 8.04(v);
(xviii) Liens securing Non-Recourse Indebtedness of Specified
Subsidiaries permitted under Section 8.04(x) so long as such Liens only
encumber the Gaming Properties owned by Specified Subsidiaries being
developed or financed with such Non-Recourse Indebtedness, including any
Real Property and furniture, fixtures and equipment related thereto, it
being understood and agreed that such assets of Specified Subsidiaries
also may secure Non-Recourse Indebtedness incurred by other Specified
Subsidiaries pursuant to Section 8.04(x);
(xix) Liens on the Company's or any of its Subsidiaries' respective
equity interest in any Joint Venture so long as such Liens only secure
Indebtedness of such Joint Venture; and
56
(xx) Liens on cash and/or U.S. government obligations that are
deposited by the Company or Showboat with the respective trustees under
the Existing Showboat Notes Indenture in order to effect the Existing
Showboat Notes Defeasances.
8.02 Consolidation, Merger, Purchase or Sale of Assets, etc. (a)
Parent will not, and will not permit any of its Subsidiaries to, wind up,
liquidate or dissolve its affairs or enter into any transaction of merger or
consolidation, or convey, sell, lease or otherwise dispose of (or agree to do
any of the foregoing at any future time) all or any part of its assets, whether
in a single transaction or a series of related transactions, except that:
(i) the Company and its Subsidiaries may sell assets, whether in a
single sale or series of related sales, having a fair market value (as
determined in good faith by Parent or the Company) of less than
$50,000,000 so long as (i) no Default or Event of Default then exists or
would result therefrom, (ii) each such sale is in an arm's-length
transaction and the Company or the respective Subsidiary receives at least
fair market value (as determined in good faith by Parent or the Company),
(iii) the total consideration received by the Company or such Subsidiary
is at least 50% cash and is received at the time of the closing of such
sale and (iv) any Net Sale Proceeds in excess of $75,000,000 that are
received in any fiscal year of the Company in connection with all asset
sales made pursuant to this clause (i) are applied to reduce the Total
Revolving Loan Commitment pursuant to Section 2.03(d);
(ii) the Company and its Subsidiaries may sell assets, whether in a
single sale or series of related sales, having a fair market value (as
determined in good faith by Parent or the Company) of more than or equal
to $50,000,000 but less than $100,000,000 so long as (i) no Default or
Event of Default then exists or would result therefrom, (ii) each such
sale is in an arm's length transaction and the Company or the respective
Subsidiary receives at least fair market value (as determined in good
faith by Parent or the Company), (iii) the total consideration received by
the Company or such Subsidiary is at least 50% cash and is received at the
time of the closing of such sale and (iv) the Net Sale Proceeds therefrom
are applied to reduce the Total Revolving Loan Commitment pursuant to
Section 2.03(d);
(iii) Showboat and its Subsidiaries may sell the Showboat Las Vegas
Hotel Casino so long as (i) no Default or Event of Default then exists or
would result therefrom, (ii) such sale is in an arm's-length transaction
and Showboat or
57
the respective Subsidiary receives at least fair market value (as
determined in good faith by Parent or the Company) and (iii) the total
consideration received by Showboat or such Subsidiary is at least 75% cash
and is received at the time of the closing of such sale;
(iv) Showboat and its Subsidiaries may sell their equity interest in
Sydney Harbour Casino Holdings Limited as well as the management contract
for the Sydney Harbour Casino so long as (i) no Default or Event of
Default then exists or would result therefrom, (ii) each such sale is in
an arm's-length transaction and Showboat or the respective Subsidiary
receives at least fair market value (as determined in good faith by Parent
or the Company), (iii) the total consideration received by Showboat or
such Subsidiary is at least 90% cash and is received at the time of the
closing of each such sale and (iv) the Net Sale Proceeds therefrom are
applied to reduce the Total Revolving Loan Commitment pursuant to Section
2.03(d);
(v) any Subsidiary of the Company may be merged or consolidated with
or into the Company so long as the Company is the surviving corporation of
such merger or consolidation;
(vi) any Subsidiary of the Company may be merged or consolidated
with or into any other Subsidiary of the Company so long as (i) in the
case of any such merger or consolidation involving a Subsidiary that is a
Guarantor, the Guarantor is the surviving corporation of such merger or
consolidation or such surviving corporation becomes a Required Additional
Guarantor contemporaneously with such merger or consolidation pursuant to
Section 7.11(a) and (ii) in addition to the requirements of preceding
clause (i), in the case of any such merger or consolidation involving a
Wholly-Owned Subsidiary of the Company, the Wholly-Owned Subsidiary is the
surviving corporation of such merger or consolidation;
(vii) any Subsidiary of the Company may transfer assets to the
Company, any Subsidiary Guarantor or any other Wholly-Owned Subsidiary of
the Company, provided, to the extent that any Guarantor transfers a Gaming
Property (or any gaming license with respect thereto) to a Wholly-Owned
Subsidiary that is not a Guarantor at such time, such Wholly-Owned
Subsidiary shall become a Required Additional Guarantor contemporaneously
with such transfer pursuant to Section 7.11(a); and
(viii) the Showboat Merger shall be permitted.
58
(b) Notwithstanding anything to the contrary contained in this
Agreement, (i) sales of inventory, materials and equipment may be made in the
ordinary course of business (which sales shall not be included as sales made
pursuant to clause (a) of this Section 8.02 unless made in connection with the
sale of a Gaming Property), (ii) sales of obsolete, uneconomic or worn out
equipment or materials shall be permitted (which sales shall not be included as
sales made pursuant to clause (a) of this Section 8.02 unless made in connection
with the sale of a Gaming Property), (iii) the "Xxxxxx'x" or "Showboat" name may
not be sold pursuant to this Agreement (although either such name may be used or
licensed on a non-exclusive basis in connection with the extension of the Gaming
Business of the Company and its Subsidiaries and Joint Ventures or in connection
with the sale of the Showboat Las Vegas Hotel Casino) and (iv) in the event that
any Subsidiary Borrower is sold in connection with a sale permitted by this
Agreement, such Subsidiary Borrower shall cease to be a Subsidiary Borrower and
all Loans incurred by it shall be repaid in full on or before the date of such
sale and the Company shall become the account party with respect to all Letters
of Credit issued for the account of such Subsidiary Borrower pursuant to
documentation satisfactory to the Administrative Agent and the respective Letter
of Credit Issuer.
8.03 Dividends. Parent will not, and will not permit any of its
Subsidiaries to, authorize, declare or pay any Dividends with respect to Parent
or any of its Subsidiaries, except that:
(i) any Subsidiary of the Company may pay Dividends to the Company
or any Wholly-Owned Subsidiary of the Company;
(ii) any non-Wholly-Owned Subsidiary of the Company may pay cash
Dividends to its shareholders generally on a pro rata basis;
(iii) so long as no Default or Event of Default shall exist (both
before and after giving effect to the payment thereof), the Company may
pay cash Dividends to Parent which are used by Parent to pay cash
Dividends to its shareholders to the extent necessary, as determined in
the good faith judgment of the Board of Directors of Parent or the
Company, to prevent the filing of any disciplinary action by any Gaming
Authority or to prevent the loss or secure the reinstatement of any
license or franchise from any governmental agency, including Gaming
Authorities, held by Parent or any of its Subsidiaries which license or
franchise is conditioned upon some or all of the holders of Parent's
capital stock possessing prescribed qualifications, in each case only if
such loss or failure to reinstate would have a material adverse effect on
the business, operations,
59
property, assets, liabilities, condition (financial or otherwise) or
prospects of Parent and its Subsidiaries taken as a whole, provided that
the aggregate amount of cash Dividends permitted to be paid pursuant to
this clause (iii) shall not exceed $5,000,000;
(iv) so long as no Default or Event of Default shall exist (both
before and after giving effect to the payment thereof), the Company may
pay cash Dividends to Parent in the amounts permitted pursuant to clauses
(v) and (vi) of this Section 8.03, provided that Parent uses the proceeds
thereof to pay Dividends within three days after receipt thereof for the
purposes set forth in such clauses (v) and (vi);
(v) so long as no Default or Event of Default shall exist (both
before and after giving effect to the payment thereof), Parent may pay
cash Dividends in an aggregate amount for any fiscal year of Parent not to
exceed the lesser of (x) 10% of Consolidated Net Income for the prior
fiscal year and (y) $20,000,000;
(vi) so long as no Default or Event of Default shall exist (both
before and after giving effect to the payment thereof), Parent may redeem
the Rights outstanding pursuant to the terms of the Rights Agreement,
provided that (i) Parent shall not pay more than $.05 per Right in
connection therewith and (ii) the aggregate amount of Dividends paid
pursuant to this clause (vi) shall not exceed $2,500,000;
(vii) so long as no Default or Event of Default shall exist (both
before and after giving effect to the payment thereof), the Company may
pay cash Dividends to Parent so long as the proceeds thereof are promptly
used by Parent to pay (i) operating expenses in the ordinary course of
business and other similar corporate overhead costs and expenses and (ii)
amounts necessary to fund Aster Insurance Ltd. in the ordinary course of
its business;
(viii) the Company may pay cash Dividends to Parent in the amounts
and at the times of any payment by Parent in respect of federal, state,
franchise or other taxes (provided that any refund shall be promptly
returned by Parent to the Company);
(ix) the Showboat Merger consideration may be paid pursuant to the
terms of the Showboat Merger Agreement; and
(x) in the event that the Existing Showboat Notes Tender
Offers/Consent Solicitations, the Showboat Change of Control Purchases
and/or the Existing Showboat Notes
60
Defeasances are to be consummated by Parent, then the Company may pay cash
Dividends to Parent at the times, and in the amounts, necessary to
consummate same.
Nothing in this Section 8.03 shall prohibit the making of any Dividend within 45
days after the declaration thereof if such declaration was not prohibited by
this Section 8.03 at the time of such declaration.
8.04 Indebtedness. Parent will not, and will not permit any of its
Subsidiaries to, contract, create, incur, assume or suffer to exist any
Indebtedness, except:
(i) Indebtedness incurred pursuant to this Agreement and the other
Credit Documents;
(ii) (x) Indebtedness of Parent and its Subsidiaries permitted under
Section 8.04(ii) of the Existing Credit Agreement which remains
outstanding on the First Restatement Effective Date and which is listed on
Part A of Schedule IV, provided that no refinancings or renewals thereof
shall be permitted except as expressly set forth on Part A of Schedule IV
and then, in any event, such refinancings and renewals shall not be in
excess of the respective amounts set forth on Part A of Schedule IV and
(y) from and after the consummation of the Showboat Merger, Indebtedness
of Showboat and its Subsidiaries which remains outstanding on the First
Restatement Effective Date and which is listed on the supplement to
Schedule IV delivered pursuant to Section 4B.12, provided that no
refinancings or renewals thereof shall be permitted except as expressly
set forth on the supplement to Schedule IV and then, in any event, such
refinancings and renewals shall not be in excess of the respective amounts
set forth on the supplement to Schedule IV;
(iii) accrued expenses and current trade accounts payable incurred
in the ordinary course;
(iv) unsecured Indebtedness of Parent or the Company under
performance bonds and guarantees in respect of the completion of the
construction of any property in accordance with the plans or standards as
agreed with the obligee of such guarantee so long as such bonds or
guarantees are incurred by Parent or the Company in the ordinary course of
the Gaming Property development business of the Company and its
Subsidiaries;
(v) Indebtedness of the Company or any of its Subsidiaries subject
to Liens permitted under Section 8.01(vii) or evidenced by Capitalized
Lease Obligations provided that
61
such Capitalized Lease Obligations only relate to equipment or machinery
of the Company or any of its Subsidiaries acquired after the Effective
Date;
(vi) Indebtedness of the Company or any of its Subsidiaries
consisting of (x) reimbursement obligations on letters of credit, bankers
acceptances or similar instruments, provided that (i) the aggregate amount
thereof at any one time outstanding shall not exceed $5,000,000 and (ii)
any such Indebtedness in excess of $1,000,000 in the aggregate at any one
time outstanding shall be unsecured other than by documents of title and
(y) surety, performance or appeal bonds to the extent permitted by Section
8.01(x);
(vii) Indebtedness of Parent and the other Guarantors under the
5-Year Credit Agreement (but only to the extent that Parent or such other
Guarantors are Guarantors under, or in respect of, this Agreement) in an
aggregate principal amount not to exceed $1,950,000,000 (as reduced by any
mandatory reductions thereto as contemplated by Section 2.03(c) and (d))
at any one time outstanding;
(viii) Indebtedness of Parent, the Company or any Wholly-Owned
Subsidiary of the Company to Parent, the Company or any Subsidiary of the
Company (other than a Subsidiary that has incurred Non-Recourse
Indebtedness) or Indebtedness of any Subsidiary of Parent to the Parent,
the Company or any Wholly-Owned Subsidiary of the Company (other than a
Subsidiary that has incurred Non-Recourse Indebtedness), provided that in
the case of any Indebtedness of a Credit Party to a non-Credit Party, such
Indebtedness shall be subordinated to the Obligations on a basis
satisfactory to the Administrative Agent;
(ix) [intentionally omitted];
(x) Non-Recourse Indebtedness of Specified Subsidiaries to finance
the development of Gaming Properties (other than Specified Casino
Properties) so long as the aggregate principal amount of all such
Non-Recourse Indebtedness at any time outstanding does not exceed
$25,000,000, it being understood and agreed, however, that (i) a Specified
Subsidiary which has incurred outstanding Non-Recourse Indebtedness
pursuant to this Section 8.04(x) may guaranty the Non-Recourse
Indebtedness incurred pursuant to this Section 8.04(x) by other Specified
Subsidiaries, and (ii) such Non-Recourse Indebtedness may be guaranteed by
the Company and its other Subsidiaries to the extent provided in Section
8.04(xii);
62
(xi) Additional Unsecured Senior Debt of the Company and
Subordinated Debt of the Company (which, in each case, may be guaranteed
on a like basis by Parent) not otherwise outstanding on October 15, 1996
so long as (i) (x) the covenants and the events of default of any such
Subordinated Debt (including, but not limited to, subordination
provisions) are no more favorable to the holders of such Subordinated Debt
than those set forth in the 8-3/4% Senior Subordinated Notes Indenture
(provided that the indebtedness covenant contained in any such issue of
Subordinated Debt shall have sufficient availability (without relying on
any incurrence ratios) to justify the full amount of the Total Revolving
Loan Commitment and the Total 5-Year Revolving Loan Commitment, in each
case as such commitments are in effect at the time of the issuance of such
Subordinated Debt) and (y) the terms and conditions of any such
Subordinated Debt do not have any mandatory repayment, prepayment,
redemption, sinking fund, amortization or maturity prior to the date that
is one year after the Final Maturity Date (other than an option of the
holders to require the Company to repurchase such Subordinated Debt upon a
change of control thereunder), (ii) any such Additional Unsecured Senior
Debt (x) does not contain any financial maintenance or capital expenditure
covenants or defaults, (y) does not have any mandatory repayment,
prepayment, redemption, sinking fund, amortization or maturity prior to
the date that is one year after the Final Maturity Date (other than an
option of the holders thereof to require the Company to repurchase such
Additional Unsecured Senior Debt upon a change of control thereunder) and
(z) does not contain any covenants or events of default that are more
favorable to the holders of such Additional Unsecured Senior Debt than
those set forth in this Agreement (provided that the indebtedness covenant
contained in any such issue of Additional Unsecured Senior Debt shall have
sufficient availability (without relying on any incurrence ratios) to
justify the full amount of the Total Revolving Loan Commitment and the
Total 5-Year Revolving Loan Commitment, in each case as such commitments
are in effect at the time of the issuance of such Additional Unsecured
Senior Debt), and (iii) the Total Revolving Loan Commitment shall be
reduced as (and to the extent) required by Section 2.03(e);
(xii) Parent and its Subsidiaries may guarantee on an unsecured
basis obligations of Specified Subsidiaries, Joint Ventures and parties to
management agreements with the Company or its Subsidiaries or with such
Joint Ventures, in each case with respect to the development of Gaming
Property in an amount not to exceed $150,000,000 at any one time
outstanding for any individual Gaming Property and
63
$425,000,000 at any one time outstanding for all such Gaming Properties,
provided that (i) the aggregate limitation set forth above shall be (A)
increased (or decreased if Consolidated Net Income is negative) on the
first day of each fiscal year of the Company commencing on January 1, 1996
by an amount equal to 50% (or 100% for each fiscal year for which
Consolidated Net Income is negative) of the Consolidated Net Income for
the fiscal year last ended, and (B) decreased from time to time by the
amount of Dividends paid by the Company to Parent pursuant to Section
8.03(iv) on and after January 1, 1998 and prior to the date of
determination and (ii) the aggregate amount of guarantees permitted to be
outstanding by Parent and its Subsidiaries pursuant to this Section
8.04(xii) shall be reduced by the amount of Investments outstanding
pursuant to clause (i) of the proviso to Section 8.05;
(xiii) Parent and the Company may guarantee on an unsecured basis
any obligations of their respective Subsidiaries (except that neither
Parent nor the Company may provide any guaranties, direct or indirect, of
Non-Recourse Indebtedness, any Existing Showboat Notes or any Designated
Showboat Indebtedness, in each case pursuant to this clause (xiii));
(xiv) on and after the Jazz Casino Trigger Date, Parent and/or the
Company may enter into the Jazz Casino Completion Guaranties, the Jazz
Casino Minimum Payment Guaranty, the Jazz Casino Bank Guaranties, the Jazz
Casino Loan Guaranty, and the Jazz Casino Indemnity Arrangements and
perform their respective obligations thereunder; and
(xv) Indebtedness of Parent or any of its Subsidiaries not otherwise
permitted under this Section 8.04 in an aggregate principal amount not to
exceed $25,000,000 at any one time outstanding.
8.05 Advances, Investments and Loans. Parent will not, and will not
permit any of its Subsidiaries to, directly or indirectly, lend money or credit
or make advances to any Person, or purchase or acquire any stock, obligations or
securities of, or any other interest in, or make any capital contribution to,
any other Person (collectively, "Investments") other than Investments in the
ordinary course of business, Subsidiary Investments, other Investments existing
on the Restatement Effective Date and Investments by Showboat and its
Subsidiaries existing on the Showboat Merger Effective Date, provided that:
(i) Investments other than Subsidiary Investments shall not be made
with respect to the development or operation of Gaming Properties or in
connection with Gaming
64
Businesses (and reasonable extensions thereof), except that Investments in
any Joint Venture relating to the Gaming Business or Investments in
parties to management agreements with the Company or its Subsidiaries or
such Joint Ventures for gaming projects may be made so long as the
aggregate amount thereof does not exceed $150,000,000 at any one time
outstanding (determined without regard to any write-downs or write-offs of
such Investments) for any individual Gaming Business or gaming project or
$425,000,000 at any one time outstanding (determined without regard to any
write-downs or write-offs of such Investments) for all such Gaming
Businesses and gaming projects, provided that (x) the aggregate limitation
set forth above shall be (A) increased (or decreased if Consolidated Net
Income is negative) on the first day of each fiscal year of the Company
commencing on January 1, 1996 by an amount equal to 50% (or 100% for each
fiscal year for which Consolidated Net Income is negative) of the
Consolidated Net Income for the fiscal year last ended and (B) decreased
from time to time by the amount of Dividends paid by the Company to Parent
pursuant to Section 8.03(iv) on and after January 1, 1998, (y) the
aggregate amount of such Investments permitted to be made pursuant to this
Section 8.05(i) shall be reduced by the aggregate amount of guarantees
outstanding pursuant to Section 8.04(xii) and (z) Investments in, to or
for the benefit of Xxxxxx'x Jazz and its Subsidiaries and JCC Holding and
its Subsidiaries shall not be permitted to be made pursuant to this
Section 8.05(i), provided that, after the Jazz Casino Trigger Date, up to
$25,000,000 of Investments in, to or for the benefit of JCC Holding and
its Subsidiaries may be made pursuant to this Section 8.05(i) as well as
any Investments made in JCC Holding as a result of the exercise by the
Company or a Subsidiary thereof of any warrants to purchase shares of
common stock of JCC Holding issued to the Company or a Subsidiary thereof
as part of the Xxxxxx'x Jazz Reorganization Plan;
(ii) Investments constituting Xxxxxx'x Jazz Investments shall be
permitted, provided that the aggregate amount of all such Investments
(other than in respect of the Xxxxxx'x Jazz Completion Obligation Loans,
the Xxxxxx'x Jazz Title Indemnity Arrangements and the Xxxxxx'x Jazz
Completion Guaranties), whether made prior to, on or after the Restatement
Effective Date, shall not exceed $180,000,000, provided further, that (x)
no part of the Investments permitted by this clause (ii) may be used to
make Investments in, to or for the benefit of, JCC Holding and its
Subsidiaries except to the extent that any then existing Xxxxxx'x Jazz
Investments are converted into equity of JCC Holding as part of the
Xxxxxx'x Jazz Reorganization Plan and
65
(y) on and after the Jazz Casino Trigger Date, Parent and its Subsidiaries
may not make any additional Xxxxxx'x Jazz Investments;
(iii) on and after the Jazz Casino Trigger Date, Parent and/or the
Company may enter into (x) the Jazz Casino Completion Guaranties, the Jazz
Casino Bank Guaranties, the Jazz Casino Loan Guaranty and the Jazz Casino
Indemnity Arrangements and perform their respective obligations
thereunder, and make (or be deemed to make) Jazz Casino Completion
Obligation Loans to Jazz Casino as a result of such performance and (y)
the Jazz Casino Minimum Payment Guaranty and perform their respective
obligations thereunder so long as their aggregate exposure under the Jazz
Casino Minimum Payment Guaranty (including the amount of any unreimbursed
guarantee drawings thereunder) does not exceed $100,000,000 (plus any
applicable interest and attorney's fees) at any time outstanding; and
(iv) on and after the Jazz Casino Trigger Date, Parent and its
Subsidiaries may make the Jazz Casino Loans to Jazz Casino and may make
additional Investments in, to or for the benefit of, JCC Holding and its
Subsidiaries in an aggregate amount not to exceed the remainder of (x)
$75,000,000 less (y) the aggregate amount of Xxxxxx'x Jazz Investments
made by Parent and/or its Subsidiaries in excess of $130,500,000.
Notwithstanding (x) the foregoing provisions of this Section 8.05, (A)
Investments in the ordinary course of business shall not include the purchases
of (i) Margin Stock and (ii) non-investment grade debt securities of any Person,
it being understood and agreed, however that in connection with any Investment
in a Joint Venture as permitted by Section 8.05(i) or in connection with any
Subsidiary Investment made in a Subsidiary acquired or created after March 31,
1996, the Company may, subject to Section 6.08(b), make an Investment consisting
of Margin Stock or non-investment grade debt securities of such Joint Venture or
such Subsidiary, as the case may be, and (B) prior to the consummation of the
Existing Showboat Notes Tender Offers/Consent Solicitations or in the event that
same is not consummated unless the Existing Showboat Notes Defeasances have
become effective in accordance with the terms of the Existing Showboat Note
Indentures, Parent and its Subsidiaries (other than Showboat and its
Subsidiaries) may only make Investments in Showboat and its Subsidiaries in an
aggregate amount not to exceed $100,000,000 at any time outstanding (determined
without regard to any write-downs or write-offs thereof) plus that amount
necessary to fund any Showboat Change of Control Purchases, and with such
Investments only to be made pursuant to, and to the extent permitted by, Section
8.05(i), it being understood and agreed however, to the extent that the
conditions set forth above
66
in this clause (B) are satisfied after any such Investments in Showboat or its
Subsidiaries have been made, such Investments shall be reclassified as
Subsidiary Investments and shall not reduce the amount of Investments permitted
to be made under Section 8.05(i), and (y) the foregoing provisions of this
Section 8.05 or Section 8.04, (A) in no event shall the aggregate amount of Jazz
Casino Loans made by Parent and its Subsidiaries plus the amount of the Jazz
Casino Loan Guaranty and the Jazz Casino Bank Guarantees exceed $180,000,000
(with such amount to be reduced by any permanent reductions in any Jazz Casino
Loans theretofore made (whether or not made by Parent or any of its
Subsidiaries) and/or any permanent reductions in the Jazz Casino Loan Guaranty
and/or Jazz Casino Bank Guarantees) and (B) the terms and conditions of the Jazz
Casino Surety Bond shall be in form and substance satisfactory to the
Administrative Agent.
8.06 Transactions with Affiliates. Parent will not, and will not
permit any of its Subsidiaries to, enter into any transaction or series of
related transactions, whether or not in the ordinary course of business, with
any Affiliate of Parent or any of its Subsidiaries, other than in the ordinary
course of business and on terms and conditions substantially as favorable to
Parent or such Subsidiary as would reasonably be obtained by Parent or such
Subsidiary at that time in a comparable arm's-length transaction with a Person
other than an Affiliate, except that (i) Dividends may be paid to the extent
provided in Section 8.03, (ii) loans may be made and other transactions may be
entered into by Parent and its Subsidiaries to the extent permitted by Sections
8.04 and 8.05 and (iii) transactions among Parent, the Company and any
Subsidiary of the Company shall be permitted so long as any such transactions
are otherwise permitted by this Agreement and such transactions, individually or
in the aggregate, would not have a material adverse effect on the business,
operations, property, assets, liabilities, condition (financial or otherwise) or
prospects of Parent and its Subsidiaries taken as a whole.
8.07 Maximum Leverage Ratio. (a) Prior to the consummation of the
Showboat Merger, Parent will not permit the ratio of Consolidated Debt to
Consolidated Net Worth at any time during a period set forth below to be greater
than the ratio set forth opposite such period below:
67
Period Ratio
------ -----
January 1, 1998 to and
including December 31, 1998 2.80:1.00
January 1, 1999 to and including
December 31, 1999 2.30:1.00
January 1, 2000 and thereafter 2.00:1.00
(b) On or after the consummation of the Showboat Merger, Parent will
not permit the ratio of Consolidated Debt at any time to Consolidated EBITDA for
the Test Period then most recently ended at any time during a period set forth
below to be greater than the ratio set forth opposite such period below:
Period Ratio
------ -----
Showboat Merger Effective Date to
and including June 30, 1998 5.50: 1.00
July 1, 1998 to and
including September 30, 1998 5.00: 1.00
October 1, 1998 to and
including December 31, 1998 4.50: 1.00
January 1, 1999 to and
including December 31, 1999 4.00: 1.00
Thereafter 3.50: 1.00
8.08 Consolidated Interest Coverage Ratio. (a) Prior to the
consummation of the Showboat Merger, Parent will not permit the Consolidated
Interest Coverage Ratio for any Test Period ended on the last day of a fiscal
quarter of Parent set forth below to be less than the ratio set forth opposite
such fiscal quarter below:
Fiscal Quarter Ratio
-------------- -----
Fiscal quarters ending
March 31, 1998, June 30,
1998 and September 30, 1998 2.50:1.00
Fiscal quarters ending
December 31, 1998
and thereafter 3.00:1.00
(b) On or after the consummation of the Showboat Merger, Parent will
not permit the Consolidated Interest Coverage Ratio for any Test Period ended on
the last day of a fiscal quarter of Parent set forth below to be less than the
ratio set forth opposite such fiscal quarter below:
68
Fiscal Quarter Ratio
-------------- -----
Fiscal quarters ending
June 30, 1998,
September 30, 1998 and
December 31, 1998 2.00: 1.00
Fiscal quarters ending
March 31, 1999,
June 30, 1999,
September 30, 1999 and
December 31, 1999 2.25: 1.00
Fiscal quarters ending
March 31, 2000
and thereafter 3.00: 1.00
8.09 Minimum Consolidated Net Worth. Parent will not permit
Consolidated Net Worth at any time during a period set forth below to be less
than the amount set forth opposite such period below:
Period Amount
------ ------
Year ending December 31, 1998 $ 650,000,000
Year ending December 31, 1999 $ 800,000,000
Year ending December 31, 2000 $1,000,000,000
8.10 Limitation on Payments and Modifications of Certain Other Debt;
Modifications of Certificate of Incorporation, Partnership Agreements, Limited
Liability Company Agreements and By-Laws; etc. Parent will not, and will not
permit any of its Subsidiaries to, (i) make (or give any notice in respect of)
any voluntary or optional payment or prepayment on or redemption or acquisition
for value of (including, without limitation, by way of depositing with the
trustee with respect thereto money or securities before due for the purpose of
paying when due) any Subordinated Debt, any Additional Unsecured Senior Debt,
any Designated Showboat Indebtedness or any Existing Showboat Notes, provided
that, from and after the consummation of the Showboat Merger, the Company or any
of its Subsidiaries and, in the case of the following clause (A), Parent, may
(A) repurchase Existing Showboat Notes (x) pursuant to the Existing Showboat
Notes Tender Offers/Consent Solicitations so long as such repurchases are
permitted by Section 8.12 and pursuant to the Showboat Change of Control Offers
to Purchase and (y) pursuant to the Existing Showboat Notes Defeasances so long
as all then outstanding Existing Showboat Notes are defeased and the cash and/or
the U.S. government obligations necessary to consummate the Existing Showboat
Notes Defeasances are deposited with the trustee for the Existing Showboat Notes
on or prior to the 90th day after the Showboat Merger Effective Date) and (B)
repurchase the East Chicago Showboat Notes so long as (i) the Company or a
Wholly-Owned Subsidiary thereof owns at least 79% of
69
the total equity interest (as determined on a fully diluted basis) in the
Showboat East Chicago Riverboat Casino and (ii) such repurchases are made with
the proceeds of Subordinated Debt issued under Section 8.04(xi) or with proceeds
of Loans, provided that, to the extent proceeds of Loans are used, the sum of
the Total Unutilized Revolving Loan Commitment plus the total unutilized
revolving loan commitment under the 5-Year Credit Agreement immediately after
giving effect to such repurchase is at least $100,000,000, (ii) make (or give
any notice in respect of) any mandatory payment or prepayment on or redemption
or acquisition for value of (including, without limitation, by way of depositing
with the trustee with respect thereto money or securities before due for the
purpose of when due) any Subordinated Debt, any Additional Unsecured Senior
Debt, any Existing Showboat Notes or any Designated Showboat Indebtedness as a
result of any sale of assets by Parent or any of its Subsidiaries or any "change
of control" provision other than pursuant to the Showboat Change of Control
Offers to Purchase, (iii) amend or modify, or permit the amendment or
modification of, any provision of (x) any Subordinated Debt or any Additional
Unsecured Senior Debt or of any agreement (including, without limitation, any
purchase agreement, indenture or loan agreement) relating thereto or (y) any
Existing Showboat Notes or any Designated Showboat Indebtedness other than
pursuant to the Existing Showboat Notes Tender Offers/Consent Solicitations and
such amendments or modifications that would make the terms of such Indebtedness
less restrictive on Showboat and its Subsidiaries and would not otherwise be
adverse to the interests of the Banks in any material respects, (iv) amend or
modify, or permit the amendment or modification of, any financial or business
covenants and/or defaults of the 5-Year Credit Agreement which would have the
effect of making the same more stringent or restrictive as applied to Parent or
any of its Subsidiaries in each case unless parallel changes are made to both
this Agreement and the 5-Year Credit Agreement, (v) amend, modify or change its
certificate of incorporation (including, without limitation, by the filing or
modification of any certificate of designation), partnership agreement, limited
liability company agreement or by-laws except such modifications which would not
have a material adverse effect on Parent and its Subsidiaries taken as a whole
or an adverse effect on the rights and remedies of the Administrative Agent or
the Banks under any of the Credit Documents or (vi) after the commencement of
the Existing Showboat Notes Tender Offers/Consent Solicitations, amend or
modify, or permit the amendment or modification of, any of the terms of the
Existing Showboat Notes Tender Offers/Consent Solicitations in a way that would
be material to Parent and its Subsidiaries taken as a whole. Notwithstanding
anything to the contrary contained in clause (i) of this Section 8.10, the
Company or, in the case of Indebtedness of Showboat and its Subsidiaries,
Showboat, may
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prepay, repurchase, redeem, defease or otherwise retire Subordinated Debt,
Additional Unsecured Senior Debt or such Indebtedness of Showboat and its
Subsidiaries if no Default or Event of Default then exists or would result
therefrom to the extent necessary in the good faith judgment of the Board of
Directors of Parent or the Company to prevent the filing of a disciplinary
action by any Gaming Authority or to prevent the loss or secure the
reinstatement of any license or franchise from any governmental agency
(including the Gaming Authorities) held by Parent, the Company or any Subsidiary
of Parent or the Company which license or franchise is conditioned upon some or
all of the holders of such Subordinated Debt, such Additional Unsecured Senior
Debt or such Indebtedness of Showboat and its Subsidiaries possessing prescribed
qualifications, if such loss or failure to reinstate would have a material
adverse effect on the business, operations, property, assets, liabilities,
conditions (financial or otherwise) or prospects of Parent and its Subsidiaries
taken as a whole.
8.11 Limitation on Certain Restrictions on Subsidiaries. Parent will
not, and will not permit any of its Subsidiaries to, directly or indirectly,
create or otherwise cause or suffer to exist or become effective any encumbrance
or restriction on the ability of any Subsidiary of Parent to (a) pay dividends
or make any other distributions on its capital stock or any other interest or
participation in its profits owned by Parent or any Subsidiary of Parent, or pay
any Indebtedness owed to Parent or a Subsidiary of Parent, (b) make loans or
advances to Parent or any Subsidiary of Parent or (c) transfer any of its
properties or assets to Parent or any Subsidiary of Parent, except for such
encumbrances or restrictions existing under or by reason of (i) regulatory
actions or applicable law, (ii) this Agreement, the other Credit Documents and
the 5-Year Credit Agreement, (iii) customary provisions restricting subletting
or assignment of any lease governing a leasehold interest of Parent or a
Subsidiary of Parent, (iv) customary provisions restricting the assignment or
transfer of any licensing agreement, franchise agreement, management contract,
joint venture agreement or any similar types of agreement entered into by Parent
or a Subsidiary of Parent in the ordinary course of business, (v) customary
restrictions imposed in connection with any asset sale permitted by this
Agreement for the benefit of the purchaser or owner of such asset, (vi)
restrictions existing in any document executed in connection with Non-Recourse
Indebtedness permitted under Section 8.04(x) so long as such restrictions only
apply to the property serving as security for such Non-Recourse Indebtedness,
(vii) customary restrictions on the transfer of assets used to secure
Indebtedness permitted to be incurred (and so long as the Liens are permitted to
exist) by this Agreement, (viii) restrictions set forth in any Indebtedness of
Showboat and its
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Subsidiaries as such restrictions are in effect on the Showboat Merger Effective
Date and (ix) restrictions imposed in connection with any new gaming
Subsidiaries of the Company which are not Material Subsidiaries.
8.12 Limitation on Issuance of Capital Stock. Parent will not permit
any of its Material Subsidiaries to issue any capital stock (including by way of
sales of treasury stock) or any options or warrants to purchase, or securities
convertible into, capital stock, except (i) for transfers and replacements of
then outstanding shares of capital stock, (ii) for stock splits, stock dividends
and similar issuances which do not decrease the percentage ownership of Parent
or any of its Subsidiaries in any class of the capital stock of such Subsidiary
and (iii) to qualify directors to the extent required by applicable law.
8.13 Business. Parent will not, and will not permit any of its
Subsidiaries to, engage (directly or indirectly) in any business other than the
business in which Parent or such Subsidiary is engaged on the Restatement
Effective Date and any other reasonably related businesses.
8.14 Ownership of Subsidiaries. Parent will maintain its direct 100%
ownership interest in the Company, and, except in the case of the sale of all of
the capital stock or other equity interests of a Subsidiary pursuant to Section
8.02(a), the Company will maintain the same direct or indirect 100% ownership
interest in each of the Material Subsidiaries, provided that if the Company owns
(directly or indirectly) less than 100% of the capital stock or other equity
interest of any Material Subsidiary at the time such Material Subsidiary becomes
a Material Subsidiary, then the Company shall maintain at least such direct or
indirect ownership interest in such Material Subsidiary so long as it remains a
Material Subsidiary.
8.15 Special Purpose Corporation. Parent will engage in no material
business activities other than the ownership of the capital stock of the
Company.
SECTION 9. Events of Default. Upon the occurrence of any of the
following specified events (each an "Event of Default"):
9.01 Payments. Any Borrower shall (i) default in the payment when
due of any principal of any Loan or any Revolving Note or (ii) default, and such
default shall continue unremedied for three or more days, in the payment when
due of interest on any Loan or Revolving Note or any regularly accruing Fees or
(iii) default, and such default shall continue unremedied for five or more days
after written notice to the Company by the
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Administrative Agent or any Bank, in the payment when due of any other Fees or
amounts owing hereunder or under any other Credit Document, provided, however,
that such notice shall not be required to be given if a Bankruptcy Event shall
have occurred and be continuing; or
9.02 Representations, etc. Any representation, warranty or statement
made or deemed made by any Credit Party herein or in any other Credit Document
or in any certificate delivered pursuant hereto or thereto shall prove to be
untrue in any material respect on the date as of which made or deemed made; or
9.03 Covenants. Parent or any Borrower shall (i) default in the due
performance or observance by it of any term, covenant or agreement contained in
Section 7.01(e)(i), 7.08 or 8 or (ii) default in the due performance or
observance by it of any other term, covenant or agreement contained in this
Agreement and such default shall continue unremedied for a period of 30 days
after written notice to the Company by the Administrative Agent or any Bank; or
9.04 Default Under Other Agreements. (i) Parent or any Subsidiary of
Parent shall (x) default in any payment of any Indebtedness (other than the
Loans and the Revolving Notes) beyond the period of cure or grace, if any,
provided in the instrument or agreement under which such Indebtedness was
created or (y) default in the observance or performance of any agreement or
condition relating to any Indebtedness (other than the Loans and the Revolving
Notes) or contained in any instrument or agreement evidencing, securing or
relating thereto, or any other event shall occur or condition exist, the effect
of which default or other event or condition is to cause, or to permit the
holder or holders of such Indebtedness (or a trustee or agent on behalf of such
holder or holders) to cause (determined without regard to whether any notice is
required), any such Indebtedness to become due prior to its stated maturity, or
(ii) any Indebtedness (other than the Loans and the Revolving Notes) of Parent
or any Subsidiary of Parent shall be declared to be due and payable, or required
to be prepaid other than by a regularly scheduled required prepayment, prior to
the stated maturity thereof, provided that it shall not be a Default or an Event
of Default under this Section 9.04 unless the aggregate principal amount of all
Indebtedness as described in preceding clauses (i) and (ii) is at least
$25,000,000; or
9.05 Bankruptcy, etc. Parent or any Subsidiary of Parent shall
commence a voluntary case concerning itself under Title 11 of the United States
Code entitled "Bankruptcy," as now or hereafter in effect, or any successor
thereto (the "Bankruptcy
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Code"); or an involuntary case is commenced against Parent or any Subsidiary of
Parent, and the petition is not controverted within 10 days, or is not dismissed
within 60 days, after commencement of the case; or a custodian (as defined in
the Bankruptcy Code) is appointed for, or takes charge of, all or substantially
all of the property of Parent or any Subsidiary of Parent, or Parent or any
Subsidiary of Parent commences any other proceeding under any reorganization,
arrangement, adjustment of debt, relief of debtors, dissolution, insolvency or
liquidation or similar law of any jurisdiction whether now or hereafter in
effect relating to Parent or any Subsidiary of Parent, or there is commenced
against Parent or any Subsidiary of Parent any such proceeding which remains
undismissed for a period of 60 days, or Parent or any Subsidiary of Parent is
adjudicated insolvent or bankrupt; or any order of relief or other order
approving any such case or proceeding is entered; or Parent or any Subsidiary of
Parent suffers any appointment of any custodian or the like for it or any
substantial part of its property to continue undischarged or unstayed for a
period of 60 days; or Parent or any Subsidiary of Parent makes a general
assignment for the benefit of creditors; or any corporate action is taken by
Parent or any Subsidiary of Parent for the purpose of effecting any of the
foregoing; or
9.06 ERISA. (a) Any Plan shall fail to satisfy the minimum funding
standard required for any plan year or part thereof or a waiver of such standard
or extension of any amortization period is sought or granted under Section 412
of the Code, any Plan shall have had a trustee appointed by the PBGC to
administer such Plan, any Plan is, shall have been or is likely to be terminated
or to be the subject of termination proceedings under ERISA, any Plan shall have
an Unfunded Current Liability, Parent or any Subsidiary of Parent or any ERISA
Affiliate has incurred or is likely to incur a liability to or on account of a
Plan under Section 409, 502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201, 4204
or 4212 of ERISA or Section 401(a)(29), 4971 or 4975 of the Code, or Parent or
any Subsidiary of Parent has incurred or is likely to incur liabilities pursuant
to one or more employee welfare benefit plans (as defined in Section 3(1) of
ERISA) which provide benefits to retired employees (other than as required by
Section 601 of ERISA) or employee pension benefit plans (as defined in Section
3(2) of ERISA); (b) there shall result from any such event or events the
imposition of a lien, the granting of a security interest, or a liability or a
material risk of incurring a liability; and (c) which lien, security interest or
liability, in the opinion of the Required Banks, could reasonably be expected to
have a material adverse effect upon the business, operations, property, assets,
liabilities, condition (financial or otherwise) or prospects of Parent and its
Subsidiaries taken as a whole; or
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9.07 Guarantees. Any Guaranty or any provision thereof shall cease
to be a legal, valid and binding obligation enforceable against the obligor
thereof, or any Guarantor or any Person acting by or on behalf of any Guarantor
shall deny or disaffirm such Guarantor's obligations under its Guaranty, or any
Guarantor shall default in its due performance of any term, covenant or
agreement on its part to be performed or observed pursuant to its Guaranty; or
9.08 Judgments. One or more judgments or decrees shall be entered
against Parent or any Subsidiary of Parent involving in the aggregate for Parent
and its Subsidiaries a liability (not paid or fully covered by a reputable
insurance company) and such judgments and decrees either shall be final and
non-appealable or shall not be vacated, discharged or stayed or bonded pending
appeal for any period of 30 consecutive days, and the aggregate amount of all
such judgments exceeds $10,000,000; or
9.09 Gaming Authority. Any Gaming Authority having jurisdiction over
any Specified Casino Property shall determine that Parent or any of its
Subsidiaries that is required to be qualified under the Gaming Regulations does
not qualify, or that the qualification or license of any of them with respect to
any Specified Casino Property should be revoked, not renewed or suspended for
more than 30 days, or any such Gaming Authority shall have appointed a
conservator, supervisor or trustee to oversee any of the operations of any of
them; or
9.10 Change of Control. A Change of Control shall occur; or
9.11 Laughlin/Las Vegas Stock Restrictions. (x) At any time on or
prior to the Laughlin/Las Vegas Stock Restrictions Approval Date, any Lien shall
be created with respect to, or any disposition shall occur with respect to, any
capital stock of Xxxxxx'x Xxxxxxxx or Xxxxxx'x Las Vegas, Inc., if such Lien or
disposition, as the case may be, would not have been permitted in the
Laughlin/Las Vegas Stock Restrictions contained in this Agreement were then
fully effective in accordance with the terms hereof or (y) the Laughlin/Las
Vegas Stock Restrictions Requisite Gaming Approvals shall not have been obtained
on or before July 31, 1998;
then, and in any such event, and at any time thereafter, if any Event of Default
shall then be continuing, the Administrative Agent, upon the written request of
the Required Banks, shall by written notice to the Borrowers, take any or all of
the following actions, without prejudice to the rights of the Administrative
Agent, any Bank or the holder of any Revolving Note to enforce
75
its claims against any Credit Party (provided that, if an Event of Default
specified in Section 9.05 shall occur with respect to Parent or any Borrower,
the result which would occur upon the giving of written notice by the
Administrative Agent to the Borrowers as specified in clauses (i) and (ii) below
shall occur automatically without the giving of any such notice): (i) declare
the Total Revolving Loan Commitment terminated, whereupon the Revolving Loan
Commitment of each Bank shall forthwith terminate immediately and any Facility
Fees shall forthwith become due and payable without any other notice of any
kind; and (ii) declare the principal of and any accrued interest in respect of
all Loans and the Revolving Notes and all Obligations owing hereunder and
thereunder to be, whereupon the same shall become, forthwith due and payable
without presentment, demand, protest or other notice of any kind, all of which
are hereby waived by each Credit Party.
SECTION 10. Definitions and Accounting Terms.
10.01 Defined Terms. As used in this Agreement, the following terms
shall have the following meanings (such meanings to be equally applicable to
both the singular and plural forms of the terms defined):
"Absolute Rate" shall mean an interest rate (rounded to the nearest
.0001) expressed as a decimal.
"Additional Unsecured Senior Debt" shall mean each issue of
unsecured senior Indebtedness issued by the Company pursuant to Section 8.04(xi)
so long as any such issue of unsecured senior Indebtedness is issued pursuant to
an effective registration statement under the Securities Act or pursuant to Rule
144A thereunder.
"Adjusted Certificate of Deposit Rate" shall mean, on any day, the
sum (rounded to the nearest 1/100 of 1%) of (1) the rate obtained by dividing
(x) the most recent weekly average dealer offering rate for negotiable
certificates of deposit with a three-month maturity in the secondary market as
published in the most recent Federal Reserve System publication entitled "Select
Interest Rates," published weekly on Form H.15 as of the date hereof, or if such
publication or a substitute containing the foregoing rate information shall not
be published by the Federal Reserve System for any week, the weekly average
offering rate determined by the Administrative Agent on the basis of quotations
for such certificates received by it from three certificate of deposit dealers
in New York of recognized standing or, if such quotations are unavailable, then
on the basis of other sources reasonably selected by the Administrative Agent,
by (y) a percentage equal to 100% minus the stated maximum rate of all reserve
requirements as specified in Regulation D applicable
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on such day to a three-month certificate of deposit of a member bank of the
Federal Reserve System in excess of $100,000 (including, without limitation, any
marginal, emergency, supplemental, special or other reserves), plus (2) the then
daily net annual assessment rate as estimated by the Administrative Agent for
determining the current annual assessment payable by the Administrative Agent to
the Federal Deposit Insurance Corporation for insuring three-month certificates
of deposit.
"Administrative Agent" shall mean Bankers Trust Company, in its
capacity as Administrative Agent for the Banks hereunder, and shall include any
successor to the Administrative Agent appointed pursuant to Section 11.09.
"Affiliate" shall mean, with respect to any Person, any other Person
(i) directly or indirectly controlling (including, but not limited to, all
directors and officers of such Person), controlled by, or under direct or
indirect common control with, such Person or (ii) that directly or indirectly
owns more than 5% of the voting securities or capital stock of such Person. A
Person shall be deemed to control another Person if such Person possesses,
directly or indirectly, the power to direct or cause the direction of the
management and policies of such other Person, whether through the ownership of
voting securities, by contract or otherwise.
"Agreement" shall mean this Credit Agreement, as modified,
supplemented or amended from time to time.
"Applicable Facility Fee Percentage" shall mean 15/100 of 1% less
the then applicable Reduction Discount.
"Applicable Margin" shall mean 7/8 of 1% less the then applicable
Reduction Discount.
"Assignment and Assumption Agreement" shall mean the Assignment and
Assumption Agreement substantially in the form of Exhibit E (appropriately
completed).
"Atlantic City Showboat Land Debt" shall mean the $100,000,000
aggregate face principal amount of Showboat Land, L.L.C.'s 7.09% Promissory Note
due February 1, 2028.
"Bank" shall mean each financial institution listed on Schedule I,
as well as any institution which becomes a "Bank" hereunder pursuant to Section
1.14 or 12.04(b) or (c), provided that in any event each such institution shall
be a Qualified Person.
"Bank Default" shall mean (i) the refusal (which has not been
retracted) of a Bank to make available its portion of
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any Borrowing or (ii) a Bank having notified in writing the Borrowers and/or the
Administrative Agent that it does not intend to comply with its obligations
under Section 1.01(a), in the case of either clause (i) or (ii) above as a
result of any takeover of such Bank by any regulatory authority or agency.
"Bankruptcy Code" shall have the meaning provided in Section 9.05.
"Bankruptcy Event" shall mean any Default or Event of Default of the
type described in Section 9.05.
"Base Rate" at any time shall mean the highest of (i) 1/2 of 1% in
excess of the Adjusted Certificate of Deposit Rate, (ii) the Prime Lending Rate
and (iii) 1/2 of 1% in excess of the overnight Federal Funds Rate.
"Base Rate Loan" shall mean any Revolving Loan designated or deemed
designated as such by a Borrower at the time of the incurrence thereof or
conversion thereto.
"Bidder Bank" shall mean each Bank that has informed the
Administrative Agent and the Company in writing (which has not been retracted)
that such Bank desires to participate generally in the bidding arrangements
relating to Competitive Bid Borrowings.
"Borrower" shall have the meaning provided in the first paragraph of
this Agreement.
"Borrowing" shall mean and include (i) the borrowing of one Type of
Revolving Loan from all the Banks on a given date (or resulting from a
conversion or conversions on such date) having in the case of Eurodollar Loans
the same Interest Period, provided that Base Rate Loans incurred pursuant to
Section 1.11(b) shall be considered part of the related Borrowing of Eurodollar
Loans and (ii) a Competitive Bid Borrowing.
"BTCo" shall mean Bankers Trust Company in its individual capacity.
"Business Day" shall mean (i) for all purposes other than as covered
by clause (ii) below, any day except Saturday, Sunday and any day which shall be
in New York City a legal holiday or a day on which banking institutions are
authorized or required by law or other government action to close and (ii) with
respect to all notices and determinations in connection with, and payments of
principal and interest on, Eurodollar Loans, any day which is a Business Day
described in clause (i) above and which is also a day for trading by and between
banks in the New York interbank Eurodollar market.
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"Capitalized Lease Obligations" of any Person shall mean all rental
obligations which, under generally accepted accounting principles, are or will
be required to be capitalized on the books of such Person, in each case taken at
the amount thereof accounted for as indebtedness in accordance with such
principles.
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as the same may be amended from time to
time, 42 U.S.C. ss. 9601 et seq.
"Change of Control" shall mean (i) Parent shall cease to own 100% of
the capital stock of the Company, (ii) the direct or indirect acquisition by any
Person or group (as such term is defined in Section 13(d)(3) of the Securities
Exchange Act) of beneficial ownership (as such term is defined in Rule 13D-3
promulgated under the Securities Exchange Act) of 25% or more of the outstanding
shares of common stock of Parent, (iii) the Board of Directors of Parent shall
not consist of a majority of Continuing Directors or (iv) any "change of
control" or similar event shall occur under any issue of Indebtedness of Parent
or any of its Subsidiaries in an aggregate principal amount which exceeds (or
upon utilization of any unused commitments may exceed) $25,000,000 (other than
under the Existing Showboat Notes as a result of the Merger).
"Cherokee Casino" shall mean the casino constructed, developed and
operated by the Eastern Band of Cherokee Indians in Cherokee, North Carolina,
and the manager of which is Parent or a Wholly-Owned Subsidiary of Parent.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time, and the regulations promulgated and the rulings issued thereunder.
Section references to the Code are to the Code, as in effect on the date of this
Agreement, and to any subsequent provision of the Code, amendatory thereof,
supplemental thereto or substituted therefor.
"Collateral Agent" shall have the meaning provided in the Existing
Credit Agreement.
"Collateral Documents" shall have the meaning provided in the
Existing Credit Agreement.
"Company" shall have the meaning provided in the first paragraph of
this Agreement.
"Company/Sub Guaranty" shall have the meaning provided in Section
4A.05.
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"Competitive Bid Borrowing" shall mean a Borrowing of Competitive
Bid Loans pursuant to Section 1.04 with respect to which the Company has
requested that the Bidder Banks offer to make Competitive Bid Loans at Absolute
Rates.
"Competitive Bid Loans" shall have the meaning provided in Section
1.01(b).
"Confidential Information Memorandum" shall mean the Confidential
Information Memorandum dated February 1998 delivered by the Administrative Agent
to the Banks in connection with the Transaction.
"Consolidated Debt" shall mean, at any time, the sum of the
aggregate outstanding principal amount of all Indebtedness (including, without
limitation, guarantees, Non-Recourse Indebtedness and the principal component of
Capitalized Lease Obligations) of Parent and its Consolidated Subsidiaries.
"Consolidated EBIT" shall mean, for any period, the Consolidated Net
Income plus Consolidated Interest Expense (to the extent same was deducted in
determining Consolidated Net Income) and provision for taxes, and without giving
effect to any extraordinary gains or losses or gains or losses from sales of
assets other than inventory sold in the ordinary course of business.
"Consolidated EBITDA" shall mean, for any period, Consolidated EBIT
for such period, adjusted by (x) adding thereto (i) the amount of all
amortization of intangibles and depreciation and the amount of all other
non-cash expenses, in each case that were deducted in arriving at Consolidated
EBIT for such period and (ii) the amount of all pre-opening expenses that were
recorded during such period with respect to the opening of new Gaming Properties
to the extent that such expenses were deducted in arriving at Consolidated EBIT
for such period and (y) subtracting therefrom any cash expenses, cash charges or
cash payments arising from any non-cash expenses that were deducted in arriving
at Consolidated EBIT in a previous period.
"Consolidated Interest Coverage Ratio" for any period shall mean the
ratio of Consolidated EBIT to Consolidated Interest Expense.
"Consolidated Interest Expense" shall mean, for any period, the
total consolidated interest expense of Parent and its Consolidated Subsidiaries
(without deduction for minority interests in Subsidiaries) for such period
(calculated without regard to any limitations on the payment thereof) plus,
without duplication, (i) that portion of Capitalized Lease Obligations of Parent
and its Consolidated Subsidiaries representing the
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interest factor for such period and (ii) the Company's or such Consolidated
Subsidiary's share of interest expense of any Joint Venture.
"Consolidated Net Income" shall mean, for any period, net income of
Parent and its Consolidated Subsidiaries (without deduction for minority
interests in Subsidiaries) for such period.
"Consolidated Net Worth" shall mean, at any time, the net worth of
Parent and its Consolidated Subsidiaries determined on a consolidated basis.
"Consolidated Subsidiaries" shall mean, as to any Person, all
Subsidiaries of such Person which are consolidated with such Person for
financial reporting purposes in accordance with generally accepted accounting
principles in the United States.
"Contingent Obligation" shall mean, as to any Person, any
obligation, contingent or otherwise, of such Person directly or indirectly
guaranteeing (including, without limitation, as a result of such Person being a
general partner of the other Person, unless the underlying obligation is
expressly made non-recourse as to such general partner) any Indebtedness or
other obligation of any other Person and, without limiting the generality of the
foregoing, any obligation, direct or indirect, contingent or otherwise, of such
Person (i) to purchase or pay (or advance or supply funds for the purchase or
payment of) such Indebtedness or other obligation (whether arising by virtue of
partnership arrangements, by agreement to keepwell, to purchase assets, goods,
securities or services, to take-or-pay or to maintain financial statement
conditions or otherwise) or (ii) entered into for the purpose of assuring in any
other manner the obligee of such Indebtedness or other obligation of the payment
thereof or to protect the obligee against loss in respect thereof (in whole or
in part), provided that the term Indebtedness shall not include endorsements for
collection or deposit in the ordinary course of business.
"Continuing Directors" shall mean the directors of Parent on the
First Restatement Effective Date and each other director, if such other
director's nomination for election to the Board of Directors of Parent is
recommended by a majority of the then Continuing Directors.
"Credit Documents" shall mean this Agreement, each Revolving Note
and each Guaranty.
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"Credit Party" shall mean Parent, the Company and each other
Subsidiary of Parent that is a Subsidiary Borrower or a Guarantor.
"Default" shall mean any event, act or condition which with notice
or lapse of time, or both, would constitute an Event of Default.
"Defaulting Bank" shall mean any Bank with respect to which a Bank
Default is in effect.
"Designated Asset Sale" shall mean any asset sale pursuant to
Section 8.02(a) (other than pursuant to clause (iii) thereof), provided that an
asset sale pursuant to Section 8.02(a)(i) shall only be a Designated Asset Sale
to the extent set forth in Section 8.02(a)(i)(iv).
"Designated Bank" shall have the meaning provided in Section 12.14.
"Designated Showboat Indebtedness" shall mean the East Chicago
Showboat Notes and the Showboat Land Debt.
"Designating Bank" shall have the meaning provided in Section 12.14.
"Disqualified Stock" shall mean any capital stock which, by its
terms (or by the terms of any security into which it is convertible or for which
it is exchangeable), or upon the happening of any event, matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or
redeemable at the option of the holder thereof, in whole or in part on, or prior
to, or is exchangeable for debt securities of Parent or its Subsidiaries prior
to, the first anniversary of the Final Maturity Date.
"Dividend" with respect to any Person shall mean that such Person
has declared or paid a dividend or returned any equity capital to its
stockholders or authorized or made any other distribution, payment or delivery
of property (other than common stock of such Person) or cash to its stockholders
as such, or redeemed, retired, purchased or otherwise acquired, directly or
indirectly, for a consideration any shares of any class of its capital stock
outstanding on or after the First Restatement Effective Date (or any options or
warrants issued by such Person with respect to its capital stock), or set aside
any funds for any of the foregoing purposes, or shall have permitted any of its
Subsidiaries to purchase or otherwise acquire for a consideration any shares of
any class of the capital stock of such Person outstanding on or after the First
Restatement Effective Date (or any options or warrants issued by such Person
with respect to its
82
capital stock). Without limiting the foregoing, "Dividends" with respect to any
Person shall also include all payments made or required to be made by such
Person with respect to any stock appreciation rights, plans, equity incentive or
achievement plans or any similar plans or setting aside of any funds for the
foregoing purposes.
"Documents" shall mean (i) the Credit Documents, (ii) the 8-3/4%
Senior Subordinated Note Redemption Documents, (iii) the Showboat Merger
Documents and (iv) the Existing Showboat Notes Tender Offers/Consent
Solicitations Documents.
"Dollars" and the sign "$" shall each mean freely transferable
lawful money of the United States.
"East Chicago Showboat Notes" shall mean the $140,000,000 aggregate
face principal amount of Showboat Marina Casino Partnership's and Showboat
Marina Finance Corporation's Series A and Series B 13-1/2% First Mortgage Notes
due 2003.
"Effective Date" shall mean the "Effective Date" under, and as
defined in, the Existing Credit Agreement.
"8-3/4% Senior Subordinated Notes" shall mean the Company's 8-3/4%
Senior Subordinated Notes due 2000. "8-3/4% Senior Subordinated Notes Indenture"
shall mean the indenture relating to the 8-3/4% Senior Subordinated Notes.
"8-3/4% Senior Subordinated Notes Redemption" shall mean the
redemption by the Company of all of its outstanding 8-3/4% Senior Subordinated
Notes pursuant to the 8-3/4% Senior Subordinated Notes Redemption Documents and
the 8-3/4% Senior Subordinated Notes Indenture.
"8-3/4% Senior Subordinated Notes Redemption Documents" shall mean
all of the documents entered into by the Company in connection with the 8-3/4%
Senior Subordinated Notes Redemption.
"Election to Become a Subsidiary Borrower" shall mean an Election to
Become a Subsidiary Borrower substantially in the form of Exhibit D, which shall
be executed by each Subsidiary of the Company which becomes a Subsidiary
Borrower after the date hereof.
"End Date" shall have the meaning provided in the definition of
Reduction Discount.
"Environmental Claims" shall mean any and all administrative,
regulatory or judicial actions, suits, demands, demand letters, directives,
claims, liens, notices of noncompliance or
83
violation, investigations of which Parent, any Borrower or Showboat has received
notice or proceedings relating in any way to any Environmental Law or any permit
issued, or any approval given, under any such Environmental Law (hereafter,
"Claims"), including, without limitation, (a) any and all Claims by governmental
or regulatory authorities for enforcement, cleanup, removal, response, remedial
or other actions or damages pursuant to any applicable Environmental Law, and
(b) any and all Claims by any third party seeking damages, contribution,
indemnification, cost recovery, compensation or injunctive relief in connection
with alleged injury or threat of injury to health, safety or the environment due
to the presence of Hazardous Materials.
"Environmental Law" shall mean any Federal, state, foreign or local
statute, law, rule, regulation, ordinance, code, guideline, written policy and
rule of common law now or hereafter in effect and in each case as amended,
including any judicial or administrative order, consent decree or judgment,
relating to the environment, employee health and safety or Hazardous Materials,
including, without limitation, CERCLA; RCRA; the Federal Water Pollution Control
Act, 33 U.S.C. ss. 1251 et seq.; the Toxic Substances Control Act, 15 U.S.C. ss.
2601 et seq.; the Clean Air Act, 42 U.S.C. ss. 7401 et seq.; the Safe Drinking
Water Act, 42 U.S.C. ss. 3803 et seq.; the Oil Pollution Act of 1990, 33 U.S.C.
ss. 2701 et seq.; the Emergency Planning and the Community Right-to-Know Act of
1986, 42 U.S.C. ss. 11001 et seq.; the Hazardous Material Transportation Act, 49
U.S.C. ss. 1801 et seq.; the Occupational Safety and Health Act, 29 U.S.C. ss.
651 et seq.; and any state and local or foreign counterparts or equivalents, in
each case as amended from time to time.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and rulings
issued thereunder. Section references to ERISA are to ERISA, as in effect at the
date of this Agreement, and to any subsequent provisions of ERISA, amendatory
thereof, supplemental thereto or substituted therefor.
"ERISA Affiliate" shall mean each person (as defined in Section 3(9)
of ERISA) which together with Parent or any Subsidiary of Parent would be deemed
to be a "single employer" within the meaning of Section 414(b), (c), (m) or (o)
of the Code.
"Eurodollar Loan" shall mean each Revolving Loan designated as such
by a Borrower at the time of the incurrence thereof or conversion thereto.
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"Eurodollar Rate" shall mean (a) the arithmetic average (rounded to
the nearest 1/1000 of 1%) of the offered quotation to first-class banks in the
New York interbank Eurodollar market by each Reference Bank for Dollar deposits
of amounts in immediately available funds comparable to the outstanding
principal amount of the Eurodollar Loan of such Reference Bank with maturities
comparable to the Interest Period applicable to such Eurodollar Loan commencing
two Business Days thereafter as of 10:00 A.M. (New York time) on the date which
is two Business Days prior to the commencement of such Interest Period, divided
by (b) a percentage equal to 100% minus the then stated maximum rate of all
reserve requirements (including, without limitation, any marginal, emergency,
supplemental, special or other reserves required by applicable law) applicable
to any member bank of the Federal Reserve System in respect of Eurocurrency
funding or liabilities as defined in Regulation D (or any successor category of
liabilities under Regulation D); provided that if one or more of the Reference
Banks fails to provide the Administrative Agent with its aforesaid rate, then
the Eurodollar Rate shall be determined based on the rate or rates provided to
the Administrative Agent by the other Reference Bank or Banks.
"Event of Default" shall have the meaning provided in Section 9.
"Existing Agents" shall mean the "Agents" under, and as defined in,
the Existing Credit Agreement.
"Existing Banks" shall mean those lenders which were party to the
Existing Credit Agreement.
"Existing Credit Agreement" shall have the meaning provided in the
first WHEREAS clause of this Agreement.
"Existing Revolving Loans" shall mean the "Revolving Loans" under,
and as defined in, the Existing Credit Agreement.
"Existing Showboat 9-1/4% First Mortgage Bonds" shall mean the
$275,000,000 aggregate face principal amount of Showboat's 9-1/4% First Mortgage
Bonds due 2008.
"Existing Showboat Note Indenture Supplements" shall mean each of
the supplemental indentures to the Existing Showboat Note Indentures in the
forms delivered to the Administrative Agent pursuant to Section 4B.06 and
entered into by Showboat and the respective trustee for the respective issue of
Existing Showboat Notes in connection with the Existing Showboat Notes Tender
Offers/Consent Solicitations, which supplemental indentures shall eliminate
substantially all of the covenants contained in the Existing Showboat Note
Indentures.
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"Existing Showboat Note Indentures" shall mean each of the
respective indentures entered into by Showboat in connection with the Existing
Showboat 13% Senior Subordinated Notes and the Existing Showboat 9-1/4% First
Mortgage Bonds.
"Existing Showboat Notes" shall mean each of (i) the Existing
Showboat 13% Senior Subordinated Notes and (ii) the Existing Showboat 9-1/4%
First Mortgage Bonds.
"Existing Showboat Notes Defeasances" shall mean legal or covenant
defeasances of the Existing Showboat Notes pursuant to, and in accordance with,
the respective terms and conditions of the Existing Showboat Note Indentures.
"Existing Showboat Notes Tender Offers/Consent Solicitations" shall
mean (i) the offer by Parent, the Company or Showboat to purchase for cash any
and all of the Existing Showboat Notes and (ii) the solicitation by Parent, the
Company or Showboat of consents from the holders of each issue of Existing
Showboat Notes to amend each Existing Showboat Note Indenture, each of the
foregoing to be effected pursuant to the Existing Showboat Notes Tender
Offers/Consent Solicitations Documents and the Existing Showboat Note
Indentures.
"Existing Showboat Notes Tender Offers/Consent Solicitations
Documents" shall mean each of the documents distributed and/or executed by
Parent, the Company and/or Showboat to effectuate the Existing Showboat Notes
Tender Offers/Consent Solicitations, including the Existing Showboat Note
Indenture Supplements and the offers to purchase the Existing Showboat Notes.
"Existing Showboat 13% Senior Subordinated Notes" shall mean the
$120,000,000 aggregate face principal amount of Showboat's 13% Senior
Subordinated Notes due 2009.
"Existing Showboat Working Capital Facility" shall mean the existing
$35,000,000 senior secured working capital facility of Showboat.
"Facility Fee" shall have the meaning provided in Section 2.01(a).
"Federal Funds Rate" shall mean for any period, a fluctuating
interest rate equal for each day during such period to the weighted average of
the rates on overnight Federal Funds transactions with members of the Federal
Reserve System arranged by Federal Funds brokers, as published for such day (or,
if such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day which is a Business Day, the average of
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the quotations for such day on such transactions received by the Administrative
Agent from three Federal Funds brokers of recognized standing selected by the
Administrative Agent.
"Fees" shall mean all amounts payable pursuant to or referred to in
Section 2.01.
"Final Maturity Date" shall mean May 27, 1998, as the same may be
extended from time to time pursuant to Section 2.04, it being understood and
agreed, however, that no extension pursuant to such Section 2.04 shall be
effective if the Final Maturity Date would extend beyond July 31, 2000.
"First Restatement Effective Date" shall have the meaning provided
in Section 12.10.
"First-Tier Material Subsidiary" shall mean each Material Subsidiary
which is a direct Subsidiary of the Company.
"5-Year Banks" shall mean the lenders from time to time party to the
5-Year Credit Agreement.
"5-Year Credit Agreement" shall mean the Credit Agreement, dated as
of July 22, 1993 and amended and restated as of June 9, 1995 and further amended
and restated as of April 1, 1998, among Parent, the Company, the Subsidiaries of
the Company party thereto, the 5-Year Banks, Canadian Imperial Bank of Commerce
and Societe Generale, as Co-Syndication Agents, Bank of America National Trust
and Savings Association, as Documentation Agent, and Bankers Trust Company, as
Administrative Agent, as amended, modified, supplemented, extended, refinanced
or replaced from time to time in accordance with the terms thereof and hereof.
"Former Bank" shall have the meaning provided in Section 12.04(c).
"Gaming Authority" shall mean the governmental authorities charged
with the administration and enforcement of the Gaming Regulations.
"Gaming Business" shall mean the businesses and operations of the
Company and its Subsidiaries with respect to, and the properties and assets of
the Company and its Subsidiaries used in connection with, the Specified Casino
Properties and any other casinos, hotel casinos or gaming businesses now or in
the future owned by the Company or any of its Subsidiaries or in which Parent or
any of its Subsidiaries has an interest either through a Joint Venture or as a
party to a management agreement.
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"Gaming Property" of any Person shall mean those properties and
assets of such Person which relate to such Person's casino or hotel casino
businesses and operations.
"Gaming Regulations" shall mean the laws, rules, regulations and
orders applicable to the casino and gaming business or activities of Parent, the
Company or any of their Subsidiaries, as in effect from time to time, including
the policies, interpretations and administration thereof by the Gaming
Authorities.
"Guaranteed Obligations" shall mean the irrevocable and
unconditional guaranty made by Parent under the Parent Guaranty (i) to the
Administrative Agent and each Bank for the full and prompt payment when due
(whether at the stated maturity, by acceleration or otherwise) of the principal
and interest on each Revolving Note issued by each Borrower to such Bank, and
Loans made, under this Agreement, together with all the other obligations and
liabilities (including, without limitation, indemnities, fees and interest
thereon) of each of the Borrowers to the Administrative Bank and such Bank now
existing or hereafter incurred under, arising out of or in connection with this
Agreement or any other Credit Document and the due performance and compliance
with the terms of the Credit Documents by the Borrowers and (ii) to each
Interest Rate Protection Creditor which has entered into, or in the future
enters into, an Interest Rate Protection or Other Hedging Agreement with any
Borrower, the full and prompt payment when due (whether by acceleration or
otherwise) of all obligations of each Borrower owing under, or with respect to,
any such Interest Rate Protection or Other Hedging Agreement, whether now in
existence or hereafter arising, and the due performance and compliance with all
terms, conditions and agreements contained therein.
"Guarantor", at any time, shall mean each of the Initial Guarantors
and each Required Additional Guarantor which has executed and delivered a
counterpart of the Company/Sub Guaranty in accordance with Section 7.11,
provided that, from and after the date of the release of any Subsidiary of the
Company from the provisions of the Company/Sub Guaranty in accordance with the
terms thereof or hereof, such Subsidiary shall cease to constitute a Guarantor.
"Guaranty" shall mean and include the Parent Guaranty and the
Company/Sub Guaranty.
"Xxxxxx'x Atlantic City" shall mean Xxxxxx'x Atlantic City, Inc., a
New Jersey corporation.
"Xxxxxx'x Jazz" shall mean Xxxxxx'x Jazz Company, a Louisiana
general partnership.
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"Xxxxxx'x Jazz Completion Guaranties" shall mean one or more
completion guaranties heretofore given by Parent and/or the Company in favor of
certain lenders to Xxxxxx'x Jazz, the City of New Orleans and one or more other
governmental agencies of the State of Louisiana.
"Xxxxxx'x Jazz Completion Obligation Loans" shall mean any payments
made by Parent and/or the Company under the Xxxxxx'x Jazz Completion Guaranties
or the Xxxxxx'x Jazz Title Indemnity Arrangements to the extent that such
payments are characterized as additional loans or advances made by Parent and/or
the Company to Xxxxxx'x Jazz.
"Xxxxxx'x Jazz Investments" shall mean Investments in or to Xxxxxx'x
Jazz and/or for the benefit of Xxxxxx'x Jazz, including the Xxxxxx'x Jazz
Completion Obligation Loans, the Xxxxxx'x Jazz Completion Guaranties and the
Xxxxxx'x Jazz Title Indemnity Arrangements.
"Xxxxxx'x Jazz Plan Effective Date" shall mean the effective date of
the Xxxxxx'x Jazz Reorganization Plan.
"Xxxxxx'x Jazz Reorganization Plan" shall mean Xxxxxx'x Jazz's and
Xxxxxx'x Jazz Finance Corp.'s joint plan of reorganization under Chapter 11 of
the Bankruptcy Code, as amended from time to time.
"Xxxxxx'x Jazz Title Indemnity Arrangements" shall mean those
certain indemnity agreements heretofore given by Parent and the Company to the
title insurance companies providing title insurance for Xxxxxx'x Jazz's casino
in the City of New Orleans.
"Xxxxxx'x Xxxxxxxx" shall mean Xxxxxx'x Laughlin, Inc., a Nevada
corporation.
"Xxxxxx'x New Jersey" shall mean Xxxxxx'x New Jersey, Inc., a New
Jersey corporation.
"Hazardous Materials" shall mean (a) any petroleum or petroleum
products, radioactive materials, asbestos in any form that is or could become
friable, urea formaldehyde foam insulation, transformers or other equipment that
contain dielectric fluid containing levels of polychlorinated biphenyls, and
radon gas; (b) any chemicals, materials or substances defined as or included in
the definition of "hazardous substances," "hazardous waste," "hazardous
materials," "extremely hazardous substances," "restricted hazardous waste,"
"toxic substances," "toxic pollutants," "contaminants," or "pollutants," or
words of similar import, under any applicable Environmental Law; and (c) any
other chemical, material or substance, exposure to which
89
is prohibited, limited or regulated by any governmental authority.
"HNOIC" shall mean Xxxxxx'x New Orleans Investment Company, a Nevada
corporation.
"Indebtedness" shall mean, as to any Person, without duplication,
(i) all obligations of such Person for borrowed money, (ii) all obligations of
such Person evidenced by bonds, debentures, notes or other similar instruments,
(iii) all obligations of such Person to pay the deferred purchase price of
property or services, except trade accounts payable arising in the ordinary
course of business, (iv) all obligations of such person as lessee which are
capitalized in accordance with generally accepted accounting principles, (v) all
obligations of such Person to reimburse or repay any bank or other Person in
respect of amounts paid or available to be drawn under a letter of credit,
banker's acceptance, surety, performance or appeal bond or any similar
instrument (each such obligation to be valued at the face amount of such
instrument), (vi) all Indebtedness of others secured by a Lien on any asset of
such Person, (vii) all Contingent Obligations of such Person with respect to any
Indebtedness of any other Person and (viii) the amount of any Disqualified
Stock.
"Initial Guarantors" shall mean each of Parent, the Company, Marina,
Xxxxxx'x Atlantic City, Xxxxxx'x Las Vegas, Inc., Xxxxxx'x Xxxxxxxx, Xxxxxx'x
New Jersey, Xxxxxx'x Xxxx Holding Company, Inc., Xxxxxx'x Illinois Corporation,
Tunica Partners II, L.P., Xxxxxx'x Tunica Corporation, Xxxxxx'x Vicksburg
Corporation and Xxxxxx'x-North Kansas City Corporation.
"Interest Determination Date" shall mean, with respect to any
Eurodollar Loan, the second Business Day prior to the commencement of any
Interest Period relating to such Eurodollar Loan.
"Interest Period" shall have the meaning provided in Section 1.10.
"Interest Rate Protection Creditor" shall have the meaning provided
in the Company/Sub Guaranty.
"Interest Rate Protection or Other Hedging Agreements" shall mean
one or more (i) interest rate protection agreements (including, without
limitation, interest rate swaps, caps, floors, collars and similar agreements),
(ii) foreign exchange contracts, currency swap agreements or other similar
agreements or arrangements designed to protect against the fluctuations in
currency values and/or (iii) other types of hedging agreements
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from time to time entered into by the Company or any of its Subsidiaries.
"Investments" shall have the meaning provided in Section 8.05.
"Issue" shall mean each of the two different types of Senior Debt,
there being two separate Issues for purposes of this Agreement, i.e., the
Indebtedness under this Agreement and the Indebtedness under the 5-Year Credit
Agreement.
"Jazz Casino" shall mean Jazz Casino Company, L.L.C., a Louisiana
limited liability company.
"Jazz Casino Bank Guarantees" shall mean one or more additional
guarantees, put agreements, keep-well agreements and/or other similar credit
support to be provided by Parent and/or the Company in favor of the lenders
under the Jazz Casino Construction Credit Facility.
"Jazz Casino Completion Guaranties" shall mean one or more
completion guaranties to be given by Parent and/or the Company in favor of the
lenders to Jazz Casino under the Jazz Casino Construction Credit Facility, the
City of New Orleans, the Rivergate Development Corporation, the Louisiana Gaming
Control Board, the holders of the New Jazz Casino Senior Subordinated Bonds and
the holders of the New Jazz Casino Contingent Bonds.
"Jazz Casino Completion Obligation Loans" shall mean any payments
made by Parent and/or the Company under the Jazz Casino Completion Guaranties or
the Jazz Casino Indemnity Arrangements to the extent that such payments are
characterized as additional loans or advances made by Parent and/or the Company
to Jazz Casino.
"Jazz Casino Construction Credit Facility" shall mean the
construction and working capital credit facility to be entered into by Jazz
Casino as part of the Xxxxxx'x Jazz Reorganization Plan.
"Jazz Casino Indemnity Arrangements" shall mean those certain
indemnity agreements to be given by Parent and the Company to the title
insurance companies providing the title insurance for the New Orleans Casino and
to the provider of the Jazz Casino Surety Bonds.
"Jazz Casino Loan Guaranty" shall mean, with respect to any Jazz
Casino Loans made to Jazz Casino by a Person other than Parent or any of its
Subsidiary, any guaranty of Parent and/or the Company in respect thereof.
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"Jazz Casino Loans" shall mean loans made to Jazz Casino (other than
as part of the Jazz Casino Construction Credit Facility) by Parent and/or its
Subsidiaries or by a third Person, provided that the aggregate amount of Jazz
Casino Loans made by Parent and its Subsidiaries, when added to the amount of
the Jazz Casino Bank Guarantees and the amount of the Jazz Casino Loan Guaranty,
shall not exceed $180,000,000.
"Jazz Casino Minimum Payment Guaranty" shall mean any guaranty to be
given by Parent and/or the Company in favor of the Louisiana Gaming Control
Board guaranteeing Jazz Casino's minimum payment obligations to the Louisiana
Gaming Control Board of $100,000,000 per year.
"Jazz Casino Surety Bond" shall mean a surety bond to be provided in
connection with the completion of the New Orleans Casino.
"Jazz Casino Trigger Date" shall mean the date on which (i) the
Xxxxxx'x Jazz Plan Effective Date shall have occurred in accordance with the
terms of the Xxxxxx'x Jazz Reorganization Plan and (ii) all material
governmental and material third party approvals with respect to the construction
and operation of the New Orleans Casino to the extent required to be obtained by
the Xxxxxx'x Jazz Plan Effective Date shall have been obtained and remain in
full force and effect, including, without limitation any vote of the legislature
of Louisiana.
"JCC Holding" shall mean JCC Holding Company, a Delaware
corporation.
"Joint Venture" shall mean any entity or arrangement between the
Company or any of its Subsidiaries (so long as the Company and its Subsidiaries
own 50% or less of such entity) and one or more Persons other than Parent or any
of its Subsidiaries (whether now existing or created in the future) for (i) the
joint ownership, management, construction or development of any Gaming Property
or (ii) the joint ownership or operation of any Gaming Business.
"Laughlin/Las Vegas Stock Restrictions" shall mean the negative
pledge (i.e., the prohibition of Liens pursuant to Section 8.01), and
restrictions on transfers pursuant to Section 8.02, on the capital stock of
Xxxxxx'x Xxxxxxxx and Xxxxxx'x Las Vegas, Inc., in each case to the extent such
restrictions require the approval of the Nevada Gaming Authority.
"Laughlin/Las Vegas Stock Restrictions Approval Date" shall mean the
first date occurring after the First Restatement Effective Date upon which (i)
all requisite approvals of Gaming Authorities have been obtained to permit the
Laughlin/Las Vegas
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Stock Restrictions, so that same may be fully effective in accordance with the
terms of this Agreement (without giving effect to the limitations provided in
Section 12.18) and (ii) the Administrative Agent shall have received a
satisfactory opinion of Nevada gaming counsel to the Company to the effect that
such approvals have been obtained and that the Laughlin/Las Vegas Stock
Restrictions contained in this Agreement are fully enforceable in accordance
with the terms hereof, which opinions shall be in form and substance reasonably
satisfactory to the Administrative Agent.
"Laughlin/Las Vegas Stock Restrictions Requisite Gaming Approvals"
shall have the meaning provided in Section 12.18.
"Leaseholds" of any Person means all the right, title and interest
of such Person as lessee or licensee in, to and under leases or licenses of
land, improvements and/or fixtures.
"Lien" shall mean any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), preference,
priority or other security agreement of any kind or nature whatsoever
(including, without limitation, any conditional sale or other title retention
agreement, any financing or similar statement or notice filed under the UCC or
any other similar recording or notice statute, and any lease having
substantially the same effect as any of the foregoing).
"Loan" shall mean each Revolving Loan and each Competitive Bid Loan.
"Margin Reduction Period" shall mean each period which shall
commence on a date on which the financial statements are delivered pursuant to
Section 7.01(a) or (b) and which shall end on the earlier of (i) the date of
actual delivery of the next financial statements pursuant to Section 7.01(a) or
(b) and (ii) the latest date on which the next financial statements are required
to be delivered pursuant to Section 7.01(a) or (b).
"Margin Stock" shall have the meaning provided in Regulation U.
"Marina" shall mean Marina Associates, a New Jersey general
partnership.
"Material Subsidiary" shall mean each of (a) each Initial Guarantor
other than Parent and the Company, (b) each Subsidiary Borrower, (c) from and
after the consummation of the Showboat Merger, Showboat, Ocean Showboat, Inc.,
Atlantic City Showboat, Inc., Showboat Operating Company, Showboat Indiana
Investment Partnership and Showboat Marina Casino Partnership and (d) as at the
date of determination, (i) any direct or indirect
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Subsidiary of Parent that holds any license or licenses needed to conduct gaming
operations with respect to any Specified Casino Property, (ii) any direct or
indirect Subsidiary of Parent that owns or leases any Specified Casino Property
or that directly or indirectly owns stock of a Subsidiary which owns or leases
any Specified Casino Property, or (iii) any Subsidiary of Parent that (together
with its Subsidiaries) accounts for, or holds, at least 10% of any of (x) the
consolidated assets of Parent and its Subsidiaries, (y) the consolidated
revenues of Parent and its Subsidiaries or (z) the Consolidated EBIT of Parent
and its Subsidiaries, in each case as determined at the end of each fiscal
quarter of Parent and, in the case of preceding clauses (y) and (z), for the
Test Period then last ended, it being understood and agreed that Xxxxxx'x Jazz,
JCC Holding and Desplaines Development Limited Partnership and their respective
Subsidiaries shall not be considered Material Subsidiaries under this sub-clause
(iii) to the extent that such Subsidiaries would otherwise constitute such a
Material Subsidiary so long as such Subsidiaries would not otherwise constitute
a Material Subsidiary under any of the other clauses of this definition.
"Maturity Date" shall mean, with respect to each Bank, the Final
Maturity Date in effect at the time such Bank first became party to this
Agreement, as the same may be extended pursuant to Section 2.04, provided that
such extension has been consented to by such Bank. It is understood that in the
event that a Bank does not consent to an extension of the Final Maturity Date,
the Maturity Date for such Bank shall be the Final Maturity Date in effect
immediately prior to the effectiveness of such extension.
"Minimum Condition" shall mean that condition which shall be
satisfied only when at least a majority of the outstanding Existing Showboat 13%
Senior Subordinated Notes and at least a majority of the outstanding Existing
Showboat 9-1/4% First Mortgage Bonds shall have been validly tendered, and not
withdrawn, pursuant to the Existing Showboat Notes Tender Offers/Consent
Solicitations.
"Moody's" shall mean Xxxxx'x Investors Service, Inc.
"Net Sale Proceeds" shall mean for any Designated Asset Sale, the
gross cash proceeds (including any cash received by way of deferred payment
pursuant to a promissory note, receivable or otherwise, but only as and when
received) received from any Designated Asset Sale, net of reasonable transaction
costs and payments of unassumed liabilities relating to the assets sold at the
time of, or within 60 days after, the date of such sale and the amount of such
gross cash proceeds required to be used to repay any Indebtedness (other than
Indebtedness of the Banks pursuant to the Credit Documents) which is secured by
the
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respective assets which were sold, and net of the incremental taxes paid or
payable as a result of such Designated Asset Sale.
"New Jazz Casino Contingent Bonds" shall mean the Senior
Subordinated Contingent Notes due 2009 to be issued by Jazz Casino as part of
the Xxxxxx'x Jazz Reorganization Plan.
"New Jazz Casino Senior Subordinated Bonds" shall mean the
$187,500,000 aggregate principal amount of Senior Subordinated Notes due 2009 to
be issued by Jazz Casino as part of the Xxxxxx'x Jazz Reorganization Plan.
"New Orleans Casino" shall mean the land based casino to be
constructed in New Orleans, Louisiana which is currently owned by Xxxxxx'x Jazz
and which will be owned by Jazz Casino as part of the Xxxxxx'x Jazz
Reorganization Plan.
"Non-Continuing Bank" shall mean, at any time, each Bank the
Maturity Date of which has not been extended pursuant to Section 2.04.
"Non-Defaulting Bank" shall mean and include each Bank other than a
Defaulting Bank.
"Non-Recourse Indebtedness" shall mean with respect to any Specified
Subsidiary, Indebtedness incurred by such Specified Subsidiary which shall be
(i) secured only by Gaming Properties being developed with Non-Recourse
Indebtedness incurred pursuant to Section 8.04(x), including any fixtures,
furniture and equipment related thereto and (ii) non-recourse to Parent and its
Subsidiaries, provided that recourse may be had to the extent permitted by
Section 8.04(x) and to the respective property or properties serving as security
therefor.
"Notice of Borrowing" shall have the meaning provided in Section
1.03(a).
"Notice of Competitive Bid Borrowing" shall have the meaning
provided in Section 1.04(a).
"Notice of Conversion" shall have the meaning provided in Section
1.07.
"Notice Office" shall mean the office of the Administrative Agent
located at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxxx
Xxxxxxxxx, or such other office as the Administrative Agent may hereafter
designate in writing as such to the other parties hereto.
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"Obligations" shall mean all amounts owing to the Administrative
Agent or any Bank pursuant to the terms of this Agreement or any other Credit
Document.
"Parent" shall have the meaning provided in the first paragraph of
this Agreement.
"Parent Guaranty" shall mean the guaranty provided by Parent
pursuant to Section 13.
"Payment Office" shall mean the office of the Administrative Agent
located at Xxx Xxxxxxx Xxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, or such other
office as the Administrative Agent may hereafter designate in writing as such to
the other parties hereto.
"PBGC" shall mean the Pension Benefit Guaranty Corporation
established pursuant to Section 4002 of ERISA, or any successor thereto.
"Percentage" of any Bank at any time shall mean a fraction
(expressed as a percentage) the numerator of which is the Revolving Loan
Commitment of such Bank at such time and the denominator of which is the Total
Revolving Loan Commitment at such time, provided that, if the Percentage of any
Bank is to be determined after the Total Revolving Loan Commitment has been
terminated, then the Percentage of such Bank shall be determined immediately
prior (and without giving effect) to such termination.
"Permitted Designated Indebtedness" shall mean (i) all Subordinated
Debt (or portions thereof) incurred pursuant to Section 8.04(xi) to the extent
that the aggregate amount of Subordinated Debt incurred after the First
Restatement Effective Date pursuant to said Section is in excess of $200,000,000
and (ii) all Additional Unsecured Senior Debt.
"Permitted Liens" shall have the meaning provided in Section 8.01.
"Person" shall mean any individual, partnership, joint venture,
firm, corporation, limited liability company, association, trust or other
enterprise or any government or political subdivision or any agency, department
or instrumentality thereof.
"Plan" shall mean any multiemployer or single-employer plan, as
defined in Section 4001 of ERISA, which is maintained or contributed to by (or
to which there is an obligation to contribute of), Parent or a Subsidiary of
Parent or an ERISA Affiliate, and each such plan for the five year period
96
immediately following the latest date on which Parent, or a Subsidiary of Parent
or an ERISA Affiliate maintained, contributed to or had an obligation to
contribute to such plan.
"Prime Lending Rate" shall mean the rate which BTCo announces from
time to time as its prime lending rate, the Prime Lending Rate to change when
and as such prime lending rate changes. The Prime Lending Rate is a reference
rate and does not necessarily represent the lowest or best rate actually charged
to any customer. BTCo may make commercial loans or other loans at rates of
interest at, above or below the Prime Lending Rate.
"Projections" shall have the meaning provided in Section 6.05(d).
"Qualified Person" shall mean, with respect to any Bank party to
this Agreement on the First Restatement Effective Date or that becomes a Bank
pursuant to Section 1.14, 12.04(b) or 12.04(c), a banking or other licensed
lending institution within the meaning of the New Jersey Gaming Regulations or a
financial source or qualifier approved under the Gaming Regulations of the State
of New Jersey applicable to lenders (or waived or exempted from the applicable
requirements thereof) and which shall not have been found unsuitable under the
Gaming Regulations of the State of Nevada applicable to lenders and which meets
the requirements of all other jurisdictions regulating the gaming business of
Parent and its Subsidiaries to the extent that the Company has so notified the
Banks of such requirements of such other jurisdiction pursuant to Section
12.04(e).
"RCRA" shall mean the Resource Conservation and Recovery Act, as the
same may be amended from time to time, 42 U.S.C. ss. 6901 et seq.
"Real Property" of any Person shall mean all the right, title and
interest of such Person in and to land, improvements and fixtures, including
Leaseholds.
"Reduction Discount" shall mean initially zero and from and after
the first day of any Margin Reduction Period (the "Start Date") to and including
the last day of such Margin Reduction Period (the "End Date"), the Reduction
Discount shall be the respective percentage per annum set forth in clause (A),
(B) or (C) below if, but only if, as of the last day of the most recent fiscal
quarter of Parent ended immediately prior to such Start Date (the "Test Date")
the conditions in clause (A), (B) or (C) below are met:
(A) (x) in the case of Eurodollar Loans, 1/4 of 1% and (y) in the
case of the Facility Fee, 4/100 of 1% in each case if, but only if, as of
the Test Date for such Start
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Date either of the following conditions are met and none of the conditions
set forth in clauses (B) and (C) below are satisfied:
(i) the Consolidated Interest Coverage Ratio for the Test
Period ended on such Test Date shall be greater than 3.00:1.00; or
(ii) the Indebtedness of the Company on such Test Date shall
be rated at least BBB- Senior Implied by S&P or Baa3 Senior Implied
by Moody's;
(B) (x) in the case of Eurodollar Loans, 1/2 of 1% and (y) in the
case of the Facility Fee, 5.5/100 of 1% in each case if, but only if, as
of the Test Date for such Start Date either of the following conditions
are met and none of the conditions set forth in clause (C) below are
satisfied:
(i) the Consolidated Interest Coverage Ratio for the Test
Period ended on such Test Date shall be greater than 3.50:1.00; or
(ii) the Indebtedness of the Company on such Test Date shall
be rated at least BBB Senior Implied by S&P or Baa2 Senior Implied
by Moody's; or
(C) (x) in the case of Eurodollar Loans, 5/8 of 1% and (y) in the
case of the Facility Fee, 7/100 of 1% in each case if, but only if, as of
the Test Date for such Start Date either of the following conditions are
met:
(i) the Consolidated Interest Coverage Ratio for the Test
Period ended on such Test Date shall be greater than 4.00:1.00; or
(ii) the Indebtedness of the Company on such Test Date shall
be rated at least BBB+ Senior Implied by S&P or Baa1 Senior Implied
by Moody's.
Notwithstanding anything to the contrary above in this definition, (i) for the
period from the First Restatement Effective Date through, but not including, the
first Start Date thereafter, the Reduction Discount shall be (x) in the case of
Eurodollar Loans, 1/2 of 1% and (y) in the case of the Facility Fee, 5.5/100 of
1% and (ii) the Reduction Discount shall be reduced to zero at all times when a
Default under Section 7.01(a) or (b) shall exist or an Event of Default shall
exist.
"Reference Banks" shall mean BTCo, Bank of America National Trust
and Savings Association and Canadian Imperial Bank of Commerce.
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"Register" shall have the meaning provided in Section 12.17(b).
"Regulation D" shall mean Regulation D of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor to
all or a portion thereof establishing reserve requirements.
"Regulation G" shall mean Regulation G of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor to
all or a portion thereof.
"Regulation T" shall mean Regulation T of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor to
all or a portion thereof.
"Regulation U" shall mean Regulation U of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor to
all or a portion thereof.
"Regulation X" shall mean Regulation X of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor to
all or a portion thereof.
"Release" means disposing, discharging, injecting, spilling,
pumping, leaking, leaching, dumping, emitting, escaping, emptying, seeping,
placing, pouring and the like, into or upon any land or water or air, or
otherwise entering into the environment.
"Replaced Bank" shall have the meaning provided in Section 1.14.
"Replacement Bank" shall have the meaning provided in Section 1.14.
"Reply Date" shall have the meaning provided in Section 1.04(b).
"Reportable Event" shall mean an event described in Section 4043(c)
of ERISA with respect to a Plan as to which the 30-day notice requirement has
not been waived by the PBGC.
"Requested Extension Effective Date" shall have the meaning provided
in Section 2.04(a).
"Required Additional Guarantor" shall have the meaning provided in
Section 7.11(a).
"Required Banks" shall mean Non-Defaulting Banks, the sum of whose
Revolving Loan Commitments (or after the termination
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thereof, outstanding Revolving Loans and Competitive Bid Loans) represent an
amount greater than fifty percent of the sum of the Total Revolving Loan
Commitment (or after the termination thereof, the sum of the then total
outstanding Revolving Loans and Competitive Bid Loans).
"Returns" shall have the meaning provided in Section 6.09.
"Revolving Loan" shall have the meaning provided in Section 1.01(a).
"Revolving Loan Commitment" shall mean, for each Bank, the amount
set forth opposite such Bank's name in Schedule I directly below the column
entitled "Revolving Loan Commitment," as same may (x) be reduced from time to
time pursuant to Sections 2.02, 2.03 and/or 9 or (y) be adjusted from time to
time as a result of assignments to or from such Bank pursuant to Section 1.14,
12.04(b) or 12.04(c).
"Revolving Note" shall have the meaning provided in Section 1.06(a).
"Rights" shall have the meaning provided in the Rights Agreement.
"Rights Agreement" shall mean the Rights Agreement, dated as of
February 7, 1990, between Parent and The Bank of New York, as Rights Agent, as
in effect on the date hereof.
"S&P" shall mean Standard & Poor's Ratings Services.
"SEC" shall have the meaning provided in Section 7.01(f).
"Section 3.04(b)(iii) Certificate" shall have the meaning provided
in Section 3.04(b).
"Securities Act" shall mean the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder.
"Securities Exchange Act" shall mean the Securities Exchange Act of
1934, as amended, and the rules and regulations promulgated thereunder.
"Senior Debt" shall mean the Indebtedness under this Agreement and
the Indebtedness under the 5-Year Credit Agreement.
"Share" shall mean, for each Issue, (A) if the event requiring a
mandatory commitment reduction to Senior Debt pursuant to Section 2.03(c) or (d)
would, in accordance with the
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terms of the 5-Year Credit Agreement, give rise to a mandatory commitment
reduction to the Total 5-Year Revolving Loan Commitment, then the "Share" (x)
applicable to the Total 5-Year Revolving Loan Commitment shall equal the lesser
of (1) the amount required to be applied to reduce the commitments in respect of
Senior Debt pursuant to Section 2.03(c) or (d) multiplied by a fraction the
numerator of which is the amount of the Total 5-Year Revolving Loan Commitment
then in effect and the denominator of which is the sum of (i) the Total 5-Year
Revolving Loan Commitment then in effect plus (ii) the Total Revolving Loan
Commitment then in effect and (2) the maximum amount which would be required to
be applied to mandatorily reduce the Total 5-Year Revolving Loan Commitment in
accordance with the terms of the 5-Year Credit Agreement as a result of the
respective event requiring a reduction to the commitments in respect of Senior
Debt pursuant to Section 2.03(c) or (d) and (y) applicable to the Total
Revolving Loan Commitment shall equal the remainder of the amount required to be
applied to reduce the commitments in respect of Senior Debt pursuant to Section
2.03(c) or (d), less the "Share" applicable to the Total 5-Year Revolving Loan
Commitment as determined pursuant to preceding clause (x), and (B) if the event
giving rise to a mandatory commitment reduction in respect of Senior Debt would
not require a mandatory reduction to the Total 5-Year Revolving Loan Commitment
of the 5-Year Credit Agreement in accordance with the terms of the 5-Year Credit
Agreement, the "Share" of each Issue shall equal (x) in the case of the 5-Year
Credit Agreement, $0 and (y) in the case of this Agreement, the amount required
to be applied to Senior Debt pursuant to Section 2.03(c) or (d).
"Showboat" shall mean Showboat, Inc., a Nevada corporation.
"Showboat Change of Control Offers to Purchase" shall mean any
required offers by Showboat under the Existing Showboat Note Indentures to
purchase the outstanding Existing Showboat Notes as a result of the Merger.
"Showboat Change of Control Purchases" shall mean any purchases made
by Parent, the Company or Showboat of the Existing Showboat Notes pursuant to
any Showboat Change of Control Offer to Purchase.
"Showboat Merger" shall mean the merger of HEI Acquisition Corp.
with and into Showboat, pursuant to and in accordance with the terms of the
Showboat Merger Agreement.
"Showboat Merger Agreement" shall mean the Agreement and Plan of
Merger, dated as of December 18, 1997, among Parent, HEI Acquisition Corp. and
Showboat.
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"Showboat Merger Documents" shall mean the Showboat Merger Agreement
and all other agreements and documents entered into by Parent, Showboat or any
Subsidiary of Parent or Showboat and relating to the Showboat Merger.
"Showboat Merger Effective Date" shall mean the date on which the
Showboat Merger occurs in accordance with the terms of the Showboat Merger
Agreement.
"Specified Casino Owner" shall mean any Subsidiary of the Company
that owns a Specified Casino Property or an interest in an entity owning a
Specified Casino Property.
"Specified Casino Property" shall mean and include each of the
Xxxxxx'x Xxxx Hotel Casino, Xxxxxx'x Lake Tahoe Hotel Casino (including Bill's
Casino), Xxxxxx'x Las Vegas Hotel Casino, Xxxxxx'x Atlantic City Hotel Casino,
Xxxxxx'x Xxxxxxxx Hotel Casino, Xxxxxx'x Tunica Riverboat Casino, Xxxxxx'x North
Kansas Riverboat Casino, Xxxxxx'x Joliet Riverboat Casino, East Showboat Chicago
Riverboat Casino and Showboat Atlantic City Hotel Casino.
"Specified Subsidiary" shall mean any Subsidiary of the Company
(other than any Subsidiary Borrower or Specified Casino Owner) created after the
First Restatement Effective Date so long as such Subsidiary has no material
assets other than the Gaming Properties to be developed and financed with
Non-Recourse Indebtedness incurred pursuant to Section 8.04(x).
"Start Date" shall have the meaning provided in the definition of
Reduction Discount.
"Sub-Limit" shall mean (i) with respect to Marina, $150,000,000 and
(ii) with respect to each other Subsidiary of the Company that becomes a
Subsidiary Borrower after the date hereof, such aggregate amount as shall be
established by the Administrative Agent and the Required Banks at the time such
Subsidiary becomes a Subsidiary Borrower hereunder.
"Subordinated Debt" shall mean each issue of subordinated debt of
the Company that is issued under Section 8.04(xi).
"Subsidiary" shall mean, as to any Person, (i) any corporation more
than 50% of whose stock of any class or classes having by the terms thereof
ordinary voting power to elect a majority of the directors of such corporation
(irrespective of whether or not at the time stock of any class or classes of
such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time owned by such Person and/or one or
more Subsidiaries of such Person and (ii)
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any partnership, association, joint venture or other entity in which such Person
and/or one or more Subsidiaries of such Person has more than a 50% equity
interest at the time.
"Subsidiary Borrower" shall mean Marina and any other Wholly-Owned
Subsidiary of the Company that is found acceptable to, and approved in writing
by, the Administrative Agent and the Required Banks, provided that at the time
any such Subsidiary is sold pursuant to Section 8.02, such Subsidiary shall
cease to be a Subsidiary Borrower.
"Subsidiary Investments" shall mean any Investment by the Company in
one or more of its Subsidiaries, provided that (x) any acquisition of a new
Subsidiary shall be through a transaction not involving the acquisition by the
Company or any of its Subsidiaries of Margin Stock (other than as permitted by
Sections 6.08(b) and 8.05) and (y) any new Subsidiary so acquired shall be
engaged primarily in the Gaming Business.
"Substitute Bank" shall have the meaning in Section 12.04(c).
"Taxes" shall have the meaning provided in Section 3.04(a).
"Test Date" shall have a meaning provided in the definition of
Reduction Discount.
"Test Period" shall mean the four consecutive fiscal quarters of
Parent then last ended (in each case taken as one accounting period).
"Total 5-Year Revolving Loan Commitment" shall mean the "Total
Revolving Loan Commitment" under, and as defined in, the 5-Year Credit
Agreement.
"Total Revolving Loan Commitment" shall mean, at any time, the sum
of the Revolving Loan Commitments of each of the Banks.
"Total Unutilized Revolving Loan Commitment" shall mean, at any
time, an amount equal to the remainder of (x) the then Total Revolving Loan
Commitment less (y) the sum of the aggregate principal amount of Revolving Loans
and Competitive Bid Loans then outstanding.
"Transaction" shall mean, collectively, (i) the consummation of the
8-3/4% Senior Subordinated Notes Redemption, (ii) the consummation of the
Showboat Merger, (iii) the Existing Showboat Notes Tender Offers/Consent
Solicitations, (iv) the entering into of this Agreement and the 5-Year Credit
Agreement,
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(v) the Showboat Change of Control Purchases, the consummation of the Existing
Showboat Notes Defeasances and (vi) the payment of fees and expenses in
connection with the foregoing.
"Type" shall mean the type of Revolving Loan determined with regard
to the interest option applicable thereto, i.e., whether a Base Rate Loan or a
Eurodollar Loan.
"UCC" shall mean the Uniform Commercial Code as from time to time in
effect in the relevant jurisdiction.
"Unfunded Current Liability" of any Plan means the amount, if any,
by which the actuarial present value of the accumulated benefits under the Plan
as of the close of its most recent plan year, determined in accordance with
Statement of Financial Accounting Standards No. 87, based upon the actuarial
assumptions used by the Plan's actuary in the most recent annual valuation of
the Plan, exceeds the fair market value of the assets allocable thereto,
determined in accordance with Section 412 of the Code.
"United States" and "U.S." shall each mean the United States of
America.
"Wholly-Owned Subsidiary" shall mean, as to any Person, (i) any
corporation 100% of whose capital stock (other than director's qualifying
shares) is at the time owned by such Person and/or one or more Wholly-Owned
Subsidiaries of such Person and (ii) any partnership, association, joint venture
or other entity in which such Person and/or one or more Wholly-Owned
Subsidiaries of such Person has a 100% equity interest at such time.
"Withdrawal Period" shall have the meaning provided in Section
12.04(d).
SECTION 11. The Administrative Agent.
11.01 Appointment. The Banks hereby designate Bankers Trust Company
as Administrative Agent to act as specified herein and in the other Credit
Documents. Each Bank hereby irrevocably authorizes, and each holder of any
Revolving Note by the acceptance of such Revolving Note shall be deemed
irrevocably to authorize, the Administrative Agent to take such action on its
behalf under the provisions of this Agreement, the other Credit Documents and
any other instruments and agreements referred to herein or therein and to
exercise such powers and to perform such duties hereunder and thereunder as are
specifically delegated to or required of the Administrative Agent by the terms
hereof and thereof and such other powers as are reasonably incidental thereto.
The Administrative Agent may perform any of its duties
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hereunder by or through its respective officers, directors, agents or employees.
11.02 Nature of Duties. The Administrative Agent shall not have any
duties or responsibilities except those expressly set forth in this Agreement.
Neither the Administrative Agent nor any of its officers, directors, agents or
employees shall be liable for any action taken or omitted by it or them
hereunder or under any other Credit Document or in connection herewith or
therewith, unless caused by its or their gross negligence or willful misconduct.
The duties of the Administrative Agent shall be mechanical and administrative in
nature; the Administrative Agent shall not have by reason of this Agreement or
any other Credit Document a fiduciary relationship in respect of any Bank or the
holder of any Revolving Note; and nothing in this Agreement or any other Credit
Document, expressed or implied, is intended to or shall be so construed as to
impose upon the Administrative Agent any obligations in respect of this
Agreement or any other Credit Document except as expressly set forth herein or
therein.
11.03 Lack of Reliance on the Administrative Agent. Independently
and without reliance upon the Administrative Agent, each Bank and the holder of
each Revolving Note, to the extent it deems appropriate, has made and shall
continue to make (i) its own independent investigation of the financial
condition and affairs of Parent and its Subsidiaries in connection with the
making and the continuance of the Loans and the taking or not taking of any
action in connection herewith and (ii) its own appraisal of the creditworthiness
of Parent and its Subsidiaries and, except as expressly provided in this
Agreement, the Administrative Agent shall not have any duty or responsibility,
either initially or on a continuing basis, to provide any Bank or the holder of
any Revolving Note with any credit or other information with respect thereto,
whether coming into its possession before the making of the Loans or at any time
or times thereafter. The Administrative Agent shall not be responsible to any
Bank or the holder of any Revolving Note for any recitals, statements,
information, representations or warranties herein or in any document,
certificate or other writing delivered in connection herewith or for the
execution, effectiveness, genuineness, validity, enforceability, perfection,
collectibility, priority or sufficiency of this Agreement or any other Credit
Document or the financial condition of Parent or any of its Subsidiaries or be
required to make any inquiry concerning either the performance or observance of
any of the terms, provisions or conditions of this Agreement or any other Credit
Document, or the financial condition of Parent or any of its Subsidiaries or the
existence or possible existence of any Default or Event of Default.
105
11.04 Certain Rights of the Administrative Agent. If the
Administrative Agent shall request instructions from the Required Banks with
respect to any act or action (including failure to act) in connection with this
Agreement or any other Credit Document, the Administrative Agent shall be
entitled to refrain from such act or taking such action unless and until the
Administrative Agent shall have received instructions from the Required Banks;
and the Administrative Agent shall not incur liability to any Person by reason
of so refraining. Without limiting the foregoing, no Bank or the holder of any
Revolving Note shall have any right of action whatsoever against the
Administrative Agent as a result of the Administrative Agent acting or
refraining from acting hereunder or under any other Credit Document in
accordance with the instructions of the Required Banks.
11.05 Reliance. The Administrative Agent shall be entitled to rely,
and shall be fully protected in relying, upon any note, writing, resolution,
notice, statement, certificate, telex, teletype or telecopier message,
cablegram, radiogram, order or other document or telephone message signed, sent
or made by any Person that the Administrative Agent believed to be the proper
Person, and, with respect to all legal matters pertaining to this Agreement and
any other Credit Document and its duties hereunder and thereunder, upon advice
of counsel selected by the Administrative Agent.
11.06 Indemnification. To the extent the Administrative Agent is not
reimbursed and indemnified by the Credit Parties, the Banks will reimburse and
indemnify the Administrative Agent, in proportion to their respective
"percentages" as used in determining the Required Banks, for and against any and
all liabilities, obligations, losses, damages, penalties, claims, actions,
judgments, costs, expenses or disbursements of whatsoever kind or nature which
may be imposed on, asserted against or incurred by the Administrative Agent in
performing its duties hereunder or under any other Credit Document, in any way
relating to or arising out of this Agreement or any other Credit Document;
provided that no Bank shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from the Administrative Agent's gross
negligence or willful misconduct.
11.07 The Administrative Agent in its Individual Capacity. With
respect to its obligation to make Loans under this Agreement, the Administrative
Agent shall have the rights and powers specified herein for a "Bank" and may
exercise the same rights and powers as though it were not performing the duties
specified herein; and the term "Banks," "Required Banks,"
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"holders of Revolving Notes" or any similar terms shall, unless the context
clearly otherwise indicates, include the Administrative Agent in its individual
capacity. The Administrative Agent may accept deposits from, lend money to, and
generally engage in any kind of banking, trust or other business with any Credit
Party or any Affiliate of any Credit Party as if it were not performing the
duties specified herein, and may accept fees and other consideration from the
Borrowers or any other Credit Party for services in connection with this
Agreement and otherwise without having to account for the same to the Banks.
11.08 Holders. The Administrative Agent may deem and treat the payee
of any Revolving Note as the owner thereof for all purposes hereof unless and
until a written notice of the assignment, transfer or endorsement thereof, as
the case may be, shall have been filed with the Administrative Agent. Any
request, authority or consent of any Person who, at the time of making such
request or giving such authority or consent, is the holder of any Revolving Note
shall be conclusive and binding on any subsequent holder, transferee, assignee
or indorsee, as the case may be, of such Revolving Note or of any Revolving Note
or Revolving Notes issued in exchange therefor.
11.09 Resignation by the Administrative Agent. (a) The
Administrative Agent may resign from the performance of all its functions and
duties hereunder and/or under the other Credit Documents at any time by giving
15 Business Days' prior written notice to the Company and the Banks. Such
resignation shall take effect upon the appointment of a successor Administrative
Agent pursuant to clauses (b) and (c) below or as otherwise provided below.
(b) Upon any such notice of resignation, the Company shall appoint a
successor Administrative Agent hereunder or thereunder who shall be a commercial
bank or trust company reasonably acceptable to the Required Banks (it being
understood and agreed that any Bank is deemed to be acceptable to the Required
Banks), provided that, if a Default or an Event of Default exists at the time of
such resignation, the Required Banks shall appoint such successor Administrative
Agent.
(c) If a successor Administrative Agent shall not have been so
appointed within such 15 Business Day period, the Administrative Agent, with the
consent of the Company, shall then appoint a successor Administrative Agent who
shall serve as Administrative Agent hereunder or thereunder until such time, if
any, as the Company or Required Banks, as the case may be, appoint a successor
Administrative Agent as provided above.
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(d) If no successor Administrative Agent has been appointed pursuant
to clause (b) or (c) above by the 30th Business Day after the date such notice
of resignation was given by the Administrative Agent, the Administrative Agent's
resignation shall become effective and the Banks shall thereafter perform all
the duties of the Administrative Agent hereunder and/or under any other Credit
Document until such time, if any, as the Required Banks appoint a successor
Administrative Agent.
11.10 The Documentation Agent and the Co-Syndication Agents.
Notwithstanding anything else to the contrary contained in this Agreement or in
any other Credit Document, none of Canadian Imperial Bank of Commerce, Societe
Generale or Bank of America National Trust and Savings Association in their
capacities as Documentation Agent or Co-Syndication Agents, as the case may be,
shall have any rights, duties or responsibilities under this Agreement or under
any other Credit Document, or any fiduciary relationship with the Company, the
Parent, any Borrower or any other Bank, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Credit Document or otherwise exist against either the
Documentation Agent or the Co-Syndication Agents in such capacities.
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SECTION 12. Miscellaneous.
109
12.01 Payment of Expenses, etc. (a) The Borrowers jointly and
severally shall: (i) whether or not the transactions herein contemplated are
consummated, pay all reasonable out-of-pocket costs and expenses of the
Administrative Agent (including, without limitation, the reasonable fees and
disbursements of White & Case LLP and local counsel) in connection with the
preparation, execution and delivery of this Agreement and the other Credit
Documents and the documents and instruments referred to herein and therein and
any amendment, waiver or consent relating hereto or thereto, of the
Administrative Agent in connection with its syndication efforts with respect to
this Agreement and of the Administrative Agent and each of the Banks in
connection with the enforcement of this Agreement and the other Credit Documents
and the documents and instruments referred to herein and therein (including,
without limitation, the reasonable fees and disbursements of counsel (including
allocated costs of in-house counsel) for the Administrative Agent and for each
of the Banks); (ii) pay and hold each of the Banks harmless from and against any
and all present and future stamp, excise and other similar taxes with respect to
the foregoing matters and save each of the Banks harmless from and against any
and all liabilities with respect to or resulting from any delay or omission
(other than to the extent attributable to such Bank) to pay such taxes; and
(iii) indemnify the Administrative Agent and each Bank, and each of their
respective officers, directors, employees, representatives and agents from and
hold each of them harmless against any and all liabilities, obligations
(including removal or remedial actions), losses, damages, penalties, claims,
actions, judgments, suits, costs, expenses and disbursements (including
reasonable attorneys' (including allocated costs of in-house counsel) and
consultants' fees and disbursements) incurred by, imposed on or assessed against
any of them as a result of, or arising out of, or in any way related to, or by
reason of, (a) any investigation, litigation or other proceeding (whether or not
the Administrative Agent or any Bank is a party thereto) related to the entering
into and/or performance of this Agreement or any other Credit Document or the
proceeds of any Loans hereunder or the consummation of any transactions
contemplated herein (including, without limitation, the Transaction) or in any
other Credit Document or the exercise of any of their rights or remedies
provided herein or in the other Credit Documents, or (b) the actual or alleged
presence of Hazardous Materials in the air, surface water or groundwater or on
the surface or subsurface of any Real Property owned or at any time operated by
Parent or any of its Subsidiaries, the generation, storage, transportation,
handling or disposal of Hazardous Materials at any location, whether or not
owned or operated by Parent or any of its Subsidiaries, the non-compliance of
any Real Property with foreign, federal, state and local laws, regulations, and
ordinances (including applicable permits
110
thereunder) applicable to any Real Property, or any Environmental Claim relating
in any way to Parent, any of its Subsidiaries, their operations or any Real
Property owned or at any time operated by Parent or any of its Subsidiaries,
including, in each case, without limitation, the reasonable fees and
disbursements of counsel and other consultants incurred in connection with any
such investigation, litigation or other proceeding (but excluding any losses,
liabilities, claims, damages or expenses to the extent incurred by reason of the
gross negligence or willful misconduct of the Person to be indemnified). To the
extent that the undertaking to indemnify, pay or hold harmless the
Administrative Agent or any Bank set forth in the preceding sentence may be
unenforceable because it is violative of any law or public policy, the Borrowers
shall make the maximum contribution to the payment and satisfaction of each of
the indemnified liabilities which is permissible under applicable law.
(b) The Borrowers further jointly and severally agree to pay the
reasonable legal fees of gaming counsel for the Administrative Agent in Nevada
and New Jersey and any other relevant state or other jurisdiction and all
reasonable costs (including costs of investigation) associated with any
qualification (or exemption or waiver therefrom) of any Bank under, or
compliance in connection with the Gaming Regulations in connection with the
syndication under this Agreement, provided that in the event that any assignee
Bank or potential assignee Bank is not already a Qualified Person (before giving
effect to any actions taken to become such in connection with this Agreement),
then all costs associated with such Person becoming a Qualified Person shall be
borne by the respective assignee Bank or potential assignee Bank.
Notwithstanding the foregoing, after a Bank has been replaced pursuant to
Section 1.14, the Borrowers shall not be required to reimburse such Bank for any
such costs incurred by it after the date of such replacement.
12.02 Right of Setoff. In addition to any rights now or hereafter
granted under applicable law or otherwise, and not by way of limitation of any
such rights, upon the occurrence of an Event of Default, each Bank is hereby
authorized at any time or from time to time, without presentment, demand,
protest or other notice of any kind to any Credit Party or to any other Person,
any such notice being hereby expressly waived, to set off and to appropriate and
apply any and all deposits (general or special) and any other Indebtedness at
any time held or owing by such Bank (including, without limitation, by branches
and agencies of such Bank wherever located) to or for the credit or the account
of the Credit Parties against and on account of the Obligations and liabilities
of the Credit Parties to such Bank under this Agreement or under any of the
other Credit Documents, including, without limitation, all interests in
Obligations pur-
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chased by such Bank pursuant to Section 12.06(b), and all other claims of any
nature or description arising out of or connected with this Agreement or any
other Credit Document, irrespective of whether or not such Bank shall have made
any demand hereunder and although said Obligations, liabilities or claims, or
any of them, shall be contingent or unmatured, provided that such right of
set-off may only be exercised by any such Bank if Nevada Revised Statutes
40.430(4)(g) (1989) remains in force and effect without modification.
12.03 Notices. Except as otherwise expressly provided herein, all
notices and other communications provided for hereunder shall be in writing
(including telegraphic, telex, telecopier or cable communication) and mailed,
telegraphed, telexed, telecopied, cabled or delivered: if to Parent or any
Borrower, at such Credit Party's address specified opposite its signature below
or in the respective Election to Become a Subsidiary Borrower; if to any Bank,
at its address specified opposite its name below; and if to the Administrative
Agent, at the Notice Office; or, as to any Credit Party or the Administrative
Agent, at such other address as shall be designated by such party in a written
notice to the other parties hereto and, as to each Bank, at such other address
as shall be designated by such Bank in a written notice to the Company and the
Administrative Agent. All such notices and communications shall, when mailed,
telegraphed, telexed, telecopied, or cabled or sent by overnight courier, be
effective when deposited in the mails, delivered to the telegraph company, cable
company or overnight courier, as the case may be, or sent by telex or
telecopier, except that notices to the Administrative Agent and the Company
shall not be effective until received by such Person.
12.04 Benefit of Agreement. (a) This Agreement shall be binding upon
and inure to the benefit of and be enforceable by the respective successors and
assigns of the parties hereto; provided, however, except as provided in Sections
8.02 and 12.17(a), no Borrower may assign or transfer any of its rights,
obligations or interest hereunder or under any other Credit Document without the
prior written consent of the Administrative Agent and the Banks (although any
Subsidiary Borrower may, at its request and with the consent of the Required
Banks, otherwise cease to be a Subsidiary Borrower hereunder so long as no
Default or Event of Default then exists and all Loans incurred by such
Subsidiary are repaid in full and, provided further, that, although any Bank may
transfer, assign or grant participations in its rights hereunder, such Bank
shall remain a "Bank" for all purposes hereunder (and may not transfer or assign
all or any portion of its Revolving Loan Commitments hereunder except as
provided in Section 12.04(b)) and the transferee, assignee or participant, as
the case may be, shall not constitute a "Bank"
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hereunder and, provided further, that no Bank shall transfer or grant any
participation under which the participant shall have rights to approve any
amendment to or waiver of this Agreement or any other Credit Document except to
the extent such amendment or waiver would extend the final scheduled maturity of
any Loan or Revolving Note in which such participant is participating, or reduce
the rate or extend the time of payment of interest or Fees thereon (except in
connection with a waiver of applicability of any post-default increase in
interest rates) or reduce the principal amount thereof, or increase the amount
of the participant's participation over the amount thereof then in effect (it
being understood that a waiver of any Default or Event of Default or of a
mandatory reduction in the Total Revolving Loan Commitment shall not constitute
a change in the terms of such participation, and that an increase in any
Revolving Loan Commitment or Loan shall be permitted without the consent of any
participant if the participant's participation is not increased as a result
thereof). In the case of any such participation, the participant shall not have
any rights under this Agreement or any of the other Credit Documents (the
participant's rights against such Bank in respect of such participation to be
those set forth in the agreement executed by such Bank in favor of the
participant relating thereto) and the Borrowers shall continue to deal solely
and directly with such Bank in connection with such Bank's rights and
obligations under this Agreement and the other Credit Documents and all amounts
payable by the Borrowers hereunder shall be determined as if such Bank had not
sold such participation. Any agreement pursuant to which any Bank may grant such
a participation shall be in a form approved by the Administrative Agent and
Parent and shall be satisfactory under the Gaming Regulations of the State of
New Jersey so as not to require participants to be approved financial sources or
qualified under such Gaming Regulations applicable to lenders.
(b) Notwithstanding the foregoing, any Bank (or any Bank together
with one or more other Banks) may (x) assign all or a portion of its Revolving
Loan Commitments and related outstanding Obligations hereunder to its parent
company and/or any affiliate of such Bank which is at least 50% owned by such
Bank or its parent company or to one or more Banks or (y) assign all, or if less
than all, a portion equal to at least $5,000,000 in the aggregate for the
assigning Bank or assigning Banks, of such Revolving Loan Commitments and
related outstanding Obligations hereunder, in either case to one or more
Qualified Persons, each of which assignees shall become a party to this
Agreement as a Bank by execution of an Assignment and Assumption Agreement,
provided that, (i) at such time Schedule I shall be deemed modified to reflect
the Revolving Loan Commitments of such new Bank and of the existing Banks, (ii)
new Revolving Notes will be issued to such new Bank and to the assigning Bank
upon the
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request of such new Bank or assigning Bank, such new Revolving Notes to be in
conformity with the requirements of Section 1.06 to the extent needed to reflect
the revised Revolving Loan Commitments, (iii) the consent of BTCo shall be
required in connection with any assignment (which consent shall not be
unreasonably withheld), (iv) the Administrative Agent shall receive at the time
of each such assignment, from either the assigning or assignee Bank or Banks,
the payment of a non-refundable assignment fee of $3,500 in the case of any
assignment to a Qualified Person which is not a Bank immediately prior to such
assignment or $1,000 in the case of any assignment to a then existing Bank and
(v) no such transfer will be effective until recorded by the Administrative
Agent on the Register pursuant to Section 12.17(b). To the extent of any
assignment pursuant to this Section 12.04(b), the assigning Bank shall be
relieved of its obligations hereunder with respect to its assigned Revolving
Loan Commitments. At the time of each assignment pursuant to this Section
12.04(b) to a Person which is not already a Bank hereunder and which is not a
United States person (as such term is defined in Section 7701(a)(30) of the
Code) for Federal income tax purposes, the respective assignee Bank shall, to
the extent legally entitled to do so, provide to the Borrowers in the case of a
Bank described in clause (ii) or (iv) of Section 3.04(b), the forms described in
such clause (ii) or (iv), as the case may be. To the extent that an assignment
of all or any portion of a Bank's Revolving Loan Commitments and related
outstanding Obligations pursuant to Section 1.14 or this Section 12.04(b) would,
at the time of such assignment, result in increased costs under Section 1.11,
1.12 or 3.04 from those being charged by the respective assigning Bank prior to
such assignment, then the Borrowers shall not be obligated to pay such increased
costs (although the Borrowers shall be obligated to pay any other increased
costs of the type described above resulting from changes after the date of the
respective assignment).
(c) If the New Jersey Gaming Authorities shall determine that any
Bank is not qualified as an approved financial source or otherwise does not meet
the standards pursuant to the Gaming Regulations in New Jersey, or the Nevada
Gaming Authorities shall determine that any Bank does not meet the Suitability
Standards under the Nevada Gaming Regulations or any other Gaming Authority with
jurisdiction over the gaming business of Parent and its Subsidiaries shall
determine that any Bank does not meet its suitability standards (in any such
case, a "Former Bank"), the Administrative Agent or the Company shall have the
right (but not the duty) to designate a bank or banks (in each case, a
"Substitute Bank," which may be any Bank or Banks that agree to become a
Substitute Bank) that has agreed to assume the rights
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and obligations of the Former Bank, subject to receipt by the Administrative
Agent of evidence that such Substitute Bank is a Qualified Person. The
Substitute Bank shall assume the rights and obligations of the Former Bank under
this Agreement pursuant to an Assignment and Assumption Agreement, which
assumption shall be required to comply with, and shall become effective in
accordance with, the provisions of Section 12.04(b), provided that the purchase
price to be paid by the Substitute Bank to the Administrative Agent for the
account of the Former Bank for such assumption shall equal the sum of (i) the
unpaid principal amount of any Revolving Notes held or Loans made by the Former
Bank plus accrued interest thereon plus (ii) such Former Bank's pro rata share
of accrued Fees to the date of the assumption, and, provided further, the
Borrowers shall pay all obligations owing to the Former Bank under the Credit
Documents (including all obligations, if any, owing pursuant to Section 1.12,
but excluding those amounts in respect of which the purchase price is being paid
as provided above). Each Bank agrees that if it becomes a Former Bank, upon
payment to it by the Borrowers of all such amounts, if any, owing to it under
the Credit Documents, it will execute and deliver an Assignment and Assumption
Agreement, upon payment of such purchase price.
(d) Notwithstanding the provisions of subsection (c) of this Section
12.04, if any Bank becomes a Former Bank, and if the Administrative Agent or the
Company fails to find a Substitute Bank pursuant to subsection (c) of this
Section within any time period specified by the appropriate Gaming Authority for
the withdrawal of a Former Bank (the "Withdrawal Period"), the Borrowers shall,
immediately (i) prepay in full the outstanding principal amount of each
Revolving Note held or Loan made by such Former Bank, together with accrued
interest thereon to the earlier of (x) the date of payment or (y) the last day
of any Withdrawal Period, and (ii) if no Default or Event of Default then
exists, terminate the Revolving Loan Commitment of such Former Bank at which
time the other Banks' Percentages will be automatically adjusted as a result
thereof.
(e) Subject to the last sentence of this Section 12.04(e), each Bank
agrees that all participations and assignments made hereunder shall be subject
to, and made in compliance with, all Gaming Regulations applicable to lenders.
Each Bank agrees further that it will not grant participations or assignments
prior to receiving notice from the Administrative Agent that it has completed
the primary syndication of this facility. The Administrative Agent shall provide
such notice to the Banks promptly after completing such primary syndication.
Each Borrower hereby acknowledges that unless the Company has provided the Banks
with a written opinion of counsel as to the suitability standards applicable to
lenders of any relevant Gaming Authority (excluding New Jersey and Nevada except
to the extent that the suitability standards set forth in the Gaming Regulations
of such States change from those in effect on the
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Effective Date) with jurisdiction over the Gaming Business of Parent and its
Subsidiaries, no Bank shall have the responsibility of determining whether or
not a potential assignee of such Bank would be a Qualified Person under the
Gaming Regulations of any such jurisdiction.
(f) Nothing in this Agreement shall prevent or prohibit any Bank
from pledging its Loans and Revolving Notes hereunder to a Federal Reserve Bank
in support of borrowings made by such Bank from such Federal Reserve Bank.
12.05 No Waiver; Remedies Cumulative. No failure or delay on the
part of the Administrative Agent or any Bank or any holder of any Revolving Note
in exercising any right, power or privilege hereunder or under any other Credit
Document and no course of dealing between the Borrowers or any other Credit
Party and the Administrative Agent or any Bank or the holder of any Revolving
Note shall operate as a waiver thereof; nor shall any single or partial exercise
of any right, power or privilege hereunder or under any other Credit Document
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege hereunder or thereunder. The rights, powers and
remedies herein or in any other Credit Document expressly provided are
cumulative and not exclusive of any rights, powers or remedies which the
Administrative Agent or any Bank or the holder of any Revolving Note would
otherwise have. No notice to or demand on any Credit Party in any case shall
entitle any Credit Party to any other or further notice or demand in similar or
other circumstances or constitute a waiver of the rights of the Administrative
Agent or any Bank or the holder of any Revolving Note to any other or further
action in any circumstances without notice or demand.
12.06 Payments Pro Rata. (a) Except as otherwise provided in this
Agreement, the Administrative Agent agrees that promptly after its receipt of
each payment from or on behalf of a Borrower in respect of any Obligations
hereunder, it shall distribute such payment to the Banks (other than any Bank
that has consented in writing to waive its pro rata share of any such payment)
pro rata based upon their respective shares, if any, of the Obligations with
respect to which such payment was received.
(b) Each of the Banks agrees that, if it should receive any amount
hereunder (whether by voluntary payment, by realization upon security, by the
exercise of the right of setoff or banker's lien, by counterclaim or cross
action, by the enforcement of any right under the Credit Documents, or
otherwise), which is applicable to the payment of the principal of, or interest
on, the Loans or Facility Fees, of a sum which with respect to the related sum
or sums received by other Banks is in a greater proportion than the total of
such Obligation then
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owed and due to such Bank bears to the total of such Obligation then owed and
due to all of the Banks immediately prior to such receipt, then such Bank
receiving such excess payment shall purchase for cash without recourse or
warranty from the other Banks an interest in the Obligations of the respective
Party to such Banks in such amount as shall result in a proportional
participation by all the Banks in such amount; provided that if all or any
portion of such excess amount is thereafter recovered from such Bank, such
purchase shall be rescinded and the purchase price restored to the extent of
such recovery, but without interest.
(c) Notwithstanding anything to the contrary contained herein, the
provisions of the preceding Sections 12.06(a) and (b) shall be subject to the
express provisions of this Agreement which require, or permit, differing
payments to be made to Non-Defaulting Banks as opposed to Defaulting Banks.
12.07 Calculations; Computations. (a) The financial statements to be
furnished to the Banks pursuant hereto shall be made and prepared in accordance
with generally accepted accounting principles in the United States consistently
applied throughout the periods involved (except as set forth in the notes
thereto or as otherwise disclosed in writing by Parent to the Banks); provided
that, (i) except as otherwise specifically provided herein, all computations
determining compliance with Sections 8.03 through 8.05, inclusive, and Sections
8.07 through 8.09, inclusive, shall utilize accounting principles and policies
in conformity with those used to prepare the historical financial statements
delivered to the Banks pursuant to Section 6.05(a) (ii) at such time as the
Company and/or Showboat deposits cash and U.S. government obligations with the
respective trustees to effect the Existing Showboat Notes Defeasances and/or the
8-3/4% Senior Subordinated Notes Redemption, the Existing Showboat Notes and/or
the 8-3/4% Senior Subordinated Notes, as the case may be, shall no longer be
considered outstanding for purposes of Sections 8.07, 8.08 and 8.09 and (iii) at
no time shall (I) HNOIC (so long as HNOIC's only significant business
activities, assets or liabilities are associated with its general partner's
interest in Xxxxxx'x Jazz), (II) Xxxxxx'x Jazz and its Subsidiaries or (III) JCC
Holding and its Subsidiaries be treated as Subsidiaries of Parent for purposes
of this Agreement even though (x) HNOIC, Xxxxxx'x Jazz and its Subsidiaries and
JCC Holding and its Subsidiaries may at any time fall within the definition of
"Subsidiary" or (y) generally accepted accounting principles would require
otherwise, but shall, in each case instead be treated as an equity investment by
Parent.
(b) All computations of interest, Facility Fees and other Fees
hereunder shall be made on the basis of a year of 360
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days for the actual number of days (including the first day but excluding the
last day) occurring in the period for which such interest, Facility Fees or
other Fees are payable.
12.08 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF
JURY TRIAL. (a) THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE CONSTRUED IN
ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK. ANY LEGAL
ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT
MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES
FOR THE SOUTHERN DISTRICT OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS
AGREEMENT, EACH OF PARENT AND EACH BORROWER HEREBY IRREVOCABLY ACCEPTS FOR
ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE
JURISDICTION OF THE AFORESAID COURTS. EACH OF PARENT AND EACH BORROWER HEREBY
FURTHER IRREVOCABLY WAIVES ANY CLAIM THAT ANY SUCH COURTS LACK PERSONAL
JURISDICTION OVER IT, AND AGREES NOT TO PLEAD OR CLAIM, IN ANY LEGAL ACTION
PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENTS BROUGHT
IN ANY OF THE AFOREMENTIONED COURTS, THAT SUCH COURTS LACK PERSONAL JURISDICTION
OVER IT. EACH OF PARENT AND EACH BORROWER FURTHER IRREVOCABLY CONSENTS TO THE
SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR
PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL,
POSTAGE PREPAID, TO SUCH CREDIT PARTY AT ITS ADDRESS SET FORTH OPPOSITE ITS
SIGNATURE BELOW, SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER SUCH MAILING.
EACH OF PARENT AND EACH BORROWER HEREBY IRREVOCABLY WAIVES ANY OBJECTION TO SUCH
SERVICE OF PROCESS AND FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR
CLAIM IN ANY ACTION OR PROCEEDING COMMENCED HEREUNDER OR UNDER ANY OTHER CREDIT
DOCUMENT THAT SERVICE OF PROCESS WAS IN ANY WAY INVALID OR INEFFECTIVE. NOTHING
HEREIN SHALL AFFECT THE RIGHT OF THE ADMINISTRATIVE AGENT, ANY BANK OR THE
HOLDER OF ANY REVOLVING NOTE TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY
LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST ANY SUCH
CREDIT PARTY IN ANY OTHER JURISDICTION.
(b) EACH OF PARENT AND EACH BORROWER HEREBY IRREVOCABLY WAIVES ANY
OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF
THE AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT OR ANY OTHER CREDIT DOCUMENT BROUGHT IN THE COURTS REFERRED TO IN
CLAUSE (a) ABOVE AND HEREBY FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD
OR CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY
SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
(c) EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES
ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING
OUT OF OR RELATING TO THIS
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AGREEMENT, THE OTHER CREDIT DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY.
12.09 Counterparts. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A set of counterparts
executed by all the parties hereto shall be lodged with the Borrowers and the
Administrative Agent. Delivery of an executed signature page of this Agreement
or any other Credit Document by facsimile transmission shall be as effective as
delivery of a manually executed counterpart thereof.
12.10 Effectiveness. This Agreement shall become effective on the
date (the "First Restatement Effective Date") and at the time on which (i)
Parent, the Company, each existing Subsidiary Borrower and the Required Banks
(under, and as defined in, the Existing Credit Agreement) shall have signed a
counterpart hereof (whether the same or different counterparts) and shall have
delivered the same to the Administrative Agent at the Notice Office or, in the
case of such Required Banks, shall have given to the Administrative Agent
telephonic (confirmed in writing), written or telex notice (actually received)
at such office that the same has been signed and mailed to it and (ii) the
conditions contained in Sections 4A and 5 are met to the satisfaction of the
Administrative Agent and the Required Banks. Unless the Administrative Agent has
received actual notice from any Bank that the conditions contained in Sections
4A and 5 have not been met to its satisfaction, upon the satisfaction of the
condition described in clause (i) of the immediately preceding sentence and upon
the Administrative Agent's good faith determination that the conditions
described in clause (ii) of the immediately preceding sentence have been met,
then the First Restatement Effective Date shall have been deemed to have
occurred, regardless of any subsequent determination that one or more of the
conditions thereto had not been met (although the occurrence of the First
Restatement Effective Date shall not release Parent or any Borrower from any
liability for failure to satisfy one or more of the applicable conditions
contained in Section 4A or 5). The Administrative Agent will give Parent, the
Company, each existing Subsidiary Borrower and each Bank prompt written notice
of the occurrence of the First Restatement Effective Date.
12.11 Headings Descriptive. The headings of the several sections and
subsections of this Agreement are inserted for convenience only and shall not in
any way affect the meaning or construction of any provision of this Agreement.
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12.12 Amendment or Waiver. (a) Neither this Agreement nor any other
Credit Document nor any terms hereof or thereof may be changed, waived,
discharged or terminated unless such change, waiver, discharge or termination is
in writing signed by the respective Credit Parties party thereto (except as
otherwise provided in Section 12.02) and the Required Banks (or the Required
Secured Parties in the case of a change, waiver, discharge or termination with
respect to a Collateral Document to the extent provided therein), provided that
no such change, waiver, discharge or termination shall, without the consent of
each Bank (other than a Defaulting Bank) (with Obligations being directly
affected thereby), (i) extend the final scheduled maturity of any Loan or
Revolving Note, or reduce the rate or extend the time of payment of interest or
Fees thereon, or reduce the principal amount thereof, (ii) release all or
substantially all of the Collateral (except as expressly provided in the
Collateral Documents) under all the Collateral Documents, provided that such
release of Collateral may be effected by only the Required Banks if at the time
of such release the Company's Indebtedness shall be rated at least BBB- Senior
Implied by S&P or Baa3 Senior Implied by Xxxxx'x, (iii) amend, modify or waive
any provision of this Section 12.12, (iv) reduce the percentage specified in the
definition of Required Banks (it being understood that, with the consent of the
Required Banks, additional extensions of credit pursuant to this Agreement may
be included in the determination of the Required Banks on substantially the same
basis as the extensions of Revolving Loan Commitments are included on the
Effective Date) or (v) except as set forth in Section 8.02, 8.04(ix) or
12.17(a), consent to the assignment or transfer by any Borrower of any of its
rights and obligations under this Agreement (although any Subsidiary Borrower
may, at its request and with the consent of the Required Banks, otherwise cease
to be a Subsidiary Borrower hereunder so long as no Default or Event of Default
exists and all Loans incurred by such Subsidiary Borrower are repaid in full;
provided further, that no such change, waiver, discharge or termination shall
(x) increase the Revolving Loan Commitment of any Bank over the amount thereof
then in effect without the consent of such Bank (it being understood that
waivers or modifications of conditions precedent, covenants, Defaults or Events
of Default or of a mandatory reduction in the Total Revolving Loan Commitment
shall not constitute an increase of the Revolving Loan Commitment of any Bank,
and that an increase in the available portion of any Revolving Loan Commitment
of any Bank shall not constitute an increase in the Revolving Loan Commitment of
such Bank), (y) without the consent of the Administrative Agent, amend, modify
or waive any provision of Section 11 or any other provision as same relates to
the rights or obligations of the Administrative Agent and (z) without the
consent of the Collateral Agent, amend,
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modify or waive any provision relating to the rights or obligations of the
Collateral Agent.
(b) If, in connection with any proposed change, waiver, discharge or
termination to any of the provisions of this Agreement as contemplated by
clauses (i) through (v), inclusive, of the first proviso to Section 12.12(a),
the consent of the Required Banks is obtained but the consent of one or more of
such other Banks whose consent is required is not obtained, then the Company
shall have the right, so long as all non-consenting Banks whose individual
consent is required are treated as described in either clauses (A) or (B) below,
to either (A) replace each such non-consenting Bank or Banks with one or more
Replacement Banks pursuant to Section 1.14 so long as at the time of such
replacement, each such Replacement Bank consents to the proposed change, waiver,
discharge or termination or (B) terminate such non-consenting Bank's Revolving
Loan Commitment and repay all outstanding Revolving Loans of such Bank in
accordance with Sections 2.02(b) and/or 3.01(iv), provided that, unless the
Revolving Loan Commitments are terminated, and Loans repaid, pursuant to
preceding clause (B) are immediately replaced in full at such time through the
addition of new Banks or the increase of the Revolving Loan Commitments and/or
outstanding Loans of existing Banks (who in each case must specifically consent
thereto), then in the case of any action pursuant to preceding clause (B) the
Required Banks (determined before giving effect to the proposed action) shall
specifically consent thereto, provided further, that in any event the Company
shall not have the right to replace a Bank, terminate its Revolving Loan
Commitment or repay its Loans solely as a result of the exercise of such Bank's
rights (and the withholding of any required consent by such Bank) pursuant to
the second proviso to Section 12.12(a).
12.13 Survival. All indemnities set forth herein (including, without
limitation, in Sections 1.11, 1.12, 3.04, 11.06 and 12.01) shall survive the
execution, delivery and termination of this Agreement and the Revolving Notes
and the making and repayment of the Loans. Notwithstanding the occurrence of the
First Restatement Effective Date, all indemnities set forth in the Existing
Credit Agreement for the benefit of the Existing Banks and the Existing Agents
shall survive in accordance with the terms thereof.
12.14 Domicile of Loans. (a) Each Bank may transfer and carry its
Loans at, to or for the account of any office, Subsidiary or Affiliate of such
Bank. In addition, each Bank (each, a "Designating Bank") may, with the prior
written consent of the Administrative Agent and the Company (each of which
consents shall not be unreasonably withheld) and on terms and conditions
reasonably satisfactory to the Administrative Agent and the Company, designate a
special purpose corporation (each, a
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"Designated Bank") to make Revolving Loans in respect of such Designating Bank's
Revolving Loan Commitment, provided that (i) such Designating Bank shall remain
the "Bank" for all purposes of this Agreement and the other Credit Documents,
shall not otherwise be relieved of any of its obligations under this Agreement
or any such other Credit Document (including, without limitation, its
obligations under Sections 1.01(a), 1.01(c), 2.04 and 12.06) and shall be liable
for any losses, claims, damages or expenses incurred by any Credit Party, the
Administrative Agent or any Bank as a result of such Designating Bank's
designation of any such special purpose corporation as a Designated Bank, (ii)
all payments entitled to be received by such Designated Bank with respect to the
Revolving Loans made by it in respect of such Designating Bank's Revolving Loan
Commitment shall be made directly to such Designating Bank for the distribution
to such Designated Bank, (iii) the Credit Parties and the Administrative Agent
shall continue to deal solely with the respective Designating Bank and such
Designated Bank shall not have any right to approve any amendment, modification
or waiver to this Agreement or any other Credit Document, and all amendments,
waivers, consents and/or modifications to this Agreement and the other Credit
Documents which are binding on such Designating Bank also shall be binding on
such Designated Bank regardless of whether or not such Designated Bank actually
had notice of any such amendment, waiver, consent and/or other modification and
(iv) each Designating Bank may only designate one Designated Bank at any time to
make Revolving Loans in respect of such Designating Bank's Revolving Loan
Commitment. In addition, each party hereto hereby agrees that prior to the date
that is one year and one day after the payment in full of all outstanding senior
indebtedness of any Designated Bank, no party will institute against, or join
any other Person in instituting against, such Designated Bank any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings under any
federal or state bankruptcy or similar law arising from any actions of such
Designated Bank under this Agreement.
(b) Notwithstanding anything to the contrary contained herein, to
the extent that a transfer of Loans pursuant to this Section 12.14 would, at the
time of such transfer, result in increased costs under Section 1.11, 1.12 or
3.04 from those being charged by the respective Bank prior to such transfer,
then the Borrowers shall not be obligated to pay such increased costs (although
the Borrowers shall be obligated to pay any other increased costs of the type
described above resulting from changes after the date of the respective
transfer).
12.15 Application of Gaming Regulations. Parent, the Company, each
Subsidiary Borrower and the Banks acknowledge that the consummation of the
transactions contemplated by the Credit Documents is subject to the Gaming
Regulations (and Parent, the
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Company and each Subsidiary Borrower represent and warrant that all requisite
approvals thereunder have been duly obtained).
12.16 Confidentiality. (a) Subject to the provisions of clause (b)
of this Section 12.16, each Bank agrees that it will use its best effort not to
disclose without the prior consent of the Company (other than to its employees,
auditors or counsel or to another Bank if the Bank or such Bank's holding or
parent company in its sole discretion determines that any such party should have
access to such information) any information with respect to Parent or any of its
Subsidiaries which is now or in the future furnished pursuant to this Agreement
or any other Credit Document and which is designated by the Company to the Banks
in writing as confidential, provided that any Bank may disclose any such
information (a) as has become generally available to the public, (b) as may be
required or appropriate in any report, statement or testimony submitted to any
municipal, state or Federal regulatory body having or claiming to have
jurisdiction over such Bank or to the Federal Reserve Board or the Federal
Deposit Insurance Corporation or similar organizations (whether in the United
States or elsewhere) or their successors, (c) as may be required or appropriate
in respect to any summons or subpoena or in connection with any litigation, (d)
in order to comply with any law, order, regulation or ruling applicable to such
Bank, and (e) to any prospective or actual transferee or participant in
connection with any contemplated transfer or participation of any of the
Revolving Notes or Revolving Loan Commitments or any interest therein by such
Bank, provided, that such prospective transferee or participant executes an
agreement with such Bank containing provisions substantially identical to those
contained in this Section.
(b) Each Borrower hereby acknowledges and agrees that each Bank may
share with any of its affiliates any information related to Parent or any of its
Subsidiaries (including, without limitation, any nonpublic customer information
regarding the creditworthiness of Parent and its Subsidiaries).
12.17 Miscellaneous; Register. (a) Notwithstanding anything to the
contrary contained in this Agreement, the Required Banks may consent to a
corporate reorganization of Parent and its Subsidiaries, which corporate
reorganization may include the transfer of one or more Subsidiaries of the
Company as direct Subsidiaries of Parent. In connection with any such corporate
reorganization, the Required Banks may, at their option, require that Parent or
one or more of its Subsidiaries become direct borrowers with respect to the
Obligations. In addition, any necessary amendments or supplements to this
Agreement or the other Credit Documents to effect such corporate
123
reorganization, including to retain the benefits of the Guarantees, may be made
with consent of the Required Banks.
(b) The Borrowers hereby designate the Administrative Agent to serve
as the Borrowers' agent, solely for purposes of this Section 12.17(b), to
maintain a register (the "Register") on which it will record the Revolving Loan
Commitment from time to time of each of the Banks, the Loans made by each of the
Banks and each Designated Bank, if any, and each repayment in respect of the
principal amount of the Loans of each Bank and each Designated Bank, if any (it
being understood and agreed that any repayment of Revolving Loans of a
Designated Bank is subject to clause (ii) of Section 12.14(a)). Failure to make
any such recordation, or any error in such recordation shall not affect the
Borrowers' obligations in respect of such Loans. With respect to any Bank, the
transfer of the Revolving Loan Commitment of such Bank and the rights to the
principal of, and interest on, any Loan made pursuant to such Revolving Loan
Commitment shall not be effective until such transfer is recorded on the
Register maintained by the Administrative Agent with respect to ownership of
such Revolving Loan Commitment and Loans and prior to such recordation all
amounts owing to the transferor with respect to such Revolving Loan Commitment
and Loans shall remain owing to the transferor. The registration of assignment
or transfer of all or part of any Revolving Loan Commitment and Loans shall be
recorded by the Administrative Agent on the Register only upon the acceptance by
the Administrative Agent of a properly executed and delivered Assignment and
Assumption Agreement pursuant to Section 12.04(b). Coincident with the delivery
of such an Assignment and Assumption Agreement to the Administrative Agent for
acceptance and registration of assignment or transfer of all or part of a
Revolving Loan, or as soon thereafter as practicable, the assigning or
transferor Bank shall surrender the Revolving Note, if any, evidencing such
Revolving Loan, and thereupon one or more new Revolving Notes in the same
aggregate principal amount shall be issued to the assigning or transferor Bank
and/or the new Bank, if requested by any such Bank. Each Borrower agrees to
indemnify the Administrative Agent from and against any and all losses, claims,
damages and liabilities of whatsoever nature which may be imposed on, asserted
against or incurred by the Administrative Agent in performing its duties under
this Section 12.17(b) (other than any losses, claims, damages and liabilities to
the extent incurred by reason of the gross negligence or willful misconduct of
the Administrative Agent).
12.18 Requisite Gaming Approvals. Notwithstanding anything to the
contrary contained elsewhere in this Agreement or in the other Credit Documents,
it is understood and agreed that to become effective, the Laughlin/Las Vegas
Stock Restrictions require the approvals described in the definition thereof
(the
124
"Laughlin/Las Vegas Stock Restrictions Requisite Gaming Approvals"). On the
First Restatement Effective Date, the Company in good faith believes that it
shall be able to obtain the Laughlin/Las Vegas Stock Restrictions Requisite
Gaming Approvals on or prior to July 31, 1998. Notwithstanding anything to the
contrary contained in this Agreement or any other Credit Document, unless and
until the Laughlin/Las Vegas Stock Restrictions Requisite Gaming Approvals have
been obtained, the Laughlin/Las Vegas Stock Restrictions contained in Sections
8.01 and 8.02 shall not apply (although the provisions of Section 9.11 shall be
fully effective in accordance with the terms thereof, with the Borrowers hereby
representing and warranting that no approvals or consents from any Gaming
Authority are required for the effectiveness of said Section in accordance with
the express terms thereof). Furthermore, the Company agrees to use its best
efforts to obtain as promptly as practicable the `Laughlin/Las Vegas Stock
Restrictions Requisite Gaming Approvals.
SECTION 13. Parent Guaranty.
13.01 The Guaranty. In order to induce the Administrative Agent and
Banks to enter into this Agreement and to extend credit hereunder and in
recognition of the direct benefits to be received by Parent from the proceeds of
the Loans, Parent hereby agrees with the Administrative Agent, the Banks and the
Interest Rate Protection Creditors as follows: Parent hereby unconditionally and
irrevocably guarantees as primary obligor and not merely as surety the full and
prompt payment and performance when due, whether upon maturity, by acceleration
or otherwise, of any and all of the Guaranteed Obligations of the Borrowers to
the Administrative Agent, the Banks and the Interest Rate Protection Creditors.
If any or all of the Guaranteed Obligations of the Borrowers to the
Administrative Agent, the Banks or the Interest Rate Protection Creditors
becomes due and payable, Parent unconditionally promises to pay such
indebtedness to the Administrative Agent, the Banks and the Interest Rate
Protection Creditors, or order, on demand, together with any and all reasonable
expenses which may be incurred by the Administrative Agent, the Banks or the
Interest Rate Protection Creditors in collecting any of the Guaranteed
Obligations. This Guaranty is a guaranty of payment and not collection.
13.02 Bankruptcy. Additionally, Parent unconditionally and
irrevocably guarantees the payment of any and all of the Guaranteed Obligations
of the Borrowers to the Administrative Agent, the Banks and the Interest Rate
Protection Creditors whether or not due or payable by the Borrowers upon the
occurrence in respect of any Borrowers of any of the events specified in Section
9.05, and unconditionally and irrevocably promises to pay such Guaranteed
Obligations to the Administrative
125
Agent, the Banks or the Interest Rate Protection Creditors, as the case may be,
or order, on demand, in Dollars.
13.03 Nature of Liability. The liability of Parent hereunder is
exclusive and independent of any security for or other guaranty of the
Guaranteed Obligations of the Borrowers whether executed by Parent, any other
Guarantor, any other guarantor or by any other party, and the liability of
Parent hereunder shall not be affected or impaired by (a) any direction as to
application of payment by any Borrower or by any other party (other than for
misappropriation of funds by the respective Bank), or (b) any other continuing
or other guaranty, undertaking or maximum liability of a guarantor or of any
other party as to the Guaranteed Obligations of any Borrower, or (c) any payment
on or in reduction of any such other guaranty or undertaking, or (d) any
dissolution, termination or increase, decrease or change in personnel by any
Borrower, or (e) any payment made to the Administrative Agent, the Banks or the
Interest Rate Protection Creditors on the indebtedness which the Administrative
Agent, such Banks or such Interest Rate Protection Creditors repay to such
Borrower pursuant to court order in any bankruptcy, reorganization, arrangement,
moratorium or other debtor relief proceeding, and Parent waives any right to the
deferral or modification of its obligations hereunder by reason of any such
proceeding.
13.04 Independent Obligation. The obligations of Parent hereunder
are independent of the obligations of any other Guarantor, any other guarantor
or any Borrower, and a separate action or actions may be brought and prosecuted
against Parent whether or not action is brought against any other Guarantor, any
other guarantor or any Borrower and whether or not any other Guarantor, any
other guarantor or any Borrower be joined in any such action or actions. Parent
waives, to the fullest extent permitted by law, the benefit of any statute of
limitations affecting its liability hereunder or the enforcement thereof. Any
payment by any Borrower or other circumstance which operates to toll any statute
of limitations as to such Borrower shall operate to toll the statute of
limitations as to Parent.
13.05 Authorization. Parent authorizes the Administrative Agent, the
Banks and the Interest Rate Protection Creditors without notice or demand
(except (i) as shall be required by applicable statute and cannot be waived and
(ii) for any consents of the respective Credit Parties required by the terms of
the respective Credit Documents), and without affecting or impairing its
liability hereunder, from time to time to:
(a) change the manner, place or terms of payment of, and/or change
or extend the time of payment of, renew, increase, accelerate or alter,
any of the Guaranteed
126
Obligations (including any increase or decrease in the rate of interest
thereon), any security therefor, or any liability incurred directly or
indirectly in respect thereof, and the Parent Guaranty herein made shall
apply to the Guaranteed Obligations as so changed, extended, renewed or
altered;
(b) take and hold security for the payment of the Guaranteed
Obligations and sell, exchange, release, surrender, realize upon or
otherwise deal with in any manner and in any order any property by
whomsoever at any time pledged or mortgaged to secure, or howsoever
securing, the Guaranteed Obligations or any liabilities (including any of
those hereunder) incurred directly or indirectly in respect thereof or
hereof, and/or any offset thereagainst;
(c) exercise or refrain from exercising any rights against any
Borrower or others or otherwise act or refrain from acting;
(d) release or substitute any one or more endorsers, guarantors, any
Borrower or other obligors;
(e) settle or compromise any of the Guaranteed Obligations, any
security therefor or any liability (including any of those hereunder)
incurred directly or indirectly in respect thereof or hereof, and may
subordinate the payment of all or any part thereof to the payment of any
liability (whether due or not) of any Borrower to its creditors other than
the Administrative Agent, the Banks and the Interest Rate Protection
Creditors;
(f) apply any sums by whomsoever paid or howsoever realized to any
liability or liabilities of the Borrowers to the Administrative Agent, the
Banks and the Interest Rate Protection Creditors regardless of what
liability or liabilities of Parent or the Borrowers remain unpaid; and/or
(g) consent to or waive any breach of, or any act, omission or
default under, this Agreement or any of the instruments or agreements
referred to herein, or otherwise amend, modify or supplement this
Agreement or any of such other instruments or agreements.
13.06 Reliance. It is not necessary for the Administrative Agent,
the Banks or the Interest Rate Protection Creditors to inquire into the capacity
or powers of Parent or its Subsidiaries or the officers, directors, partners or
agents acting or purporting to act on its behalf, and any Guaranteed Obligations
made or created in reliance upon the professed exercise of such powers shall be
guaranteed hereunder.
127
13.07 Subordination. Any of the indebtedness of the Borrowers
relating to the Guaranteed Obligations now or hereafter owing to Parent is
hereby subordinated to the Guaranteed Obligations of the Borrowers owing to the
Administrative Agent, the Banks and the Interest Rate Protection Creditors,
provided that payment may be made by any Borrower on any such indebtedness
relating to the Guaranteed Obligations owing to Parent so long as the same is
not prohibited by this Agreement and provided further, that if the
Administrative Agent so requests at a time when an Event of Default exists, all
such indebtedness relating to the Guaranteed Obligations of the Borrowers to
Parent shall be collected, enforced and received by Parent for the benefit of
the Banks and the Interest Rate Protection Creditors and be paid over to the
Administrative Agent on behalf of the Administrative Agent, the Banks and the
Interest Rate Protection Creditors on account of the Guaranteed Obligations of
the Borrowers to the Administrative Agent and the Banks, but without affecting
or impairing in any manner the liability of Parent under the other provisions of
this Parent Guaranty. Prior to the transfer by Parent of any note or negotiable
instrument evidencing any of the indebtedness relating to the Guaranteed
Obligations of the Borrowers to Parent, Parent shall xxxx such note or
negotiable instrument with a legend that the same is subject to this
subordination.
13.08 Waiver. (a) Parent waives any right (except as shall be
required by applicable statute and cannot be waived) to require the
Administrative Agent, the Banks or the Interest Rate Protection Creditors to (i)
proceed against any Borrower, any other Guarantor, any other guarantor or any
other party, (ii) proceed against or exhaust any security held from any
Borrower, any other Guarantor, any other guarantor or any other party or (iii)
pursue any other remedy in the Administrative Agent's, the Banks' or the
Interest Rate Protection Creditors' power whatsoever. Parent waives any defense
based on or arising out of any defense of any Borrower, any other Guarantor, any
other guarantor or any other party other than payment in full of the Guaranteed
Obligations, including, without limitation, any defense based on or arising out
of the disability of any Borrower, any other Guarantor, any other guarantor or
any other party, or the unenforceability of the Guaranteed Obligations or any
part thereof from any cause, or the cessation from any cause of the liability of
any Borrower other than payment in full of the Guaranteed Obligations. The
Administrative Agent, the Banks and the Interest Rate Protection Creditors may,
at their election, foreclose on any security held by the Administrative Agent,
the Banks or the Interest Rate Protection Creditors by one or more judicial or
nonjudicial sales, whether or not every aspect of any such sale is commercially
reasonable (to the extent such sale is permitted by applicable law), or exercise
any other right or remedy the Administrative Agent, the Banks and the
128
Interest Rate Protection Creditors may have against any Borrower or any other
party, or any security, without affecting or impairing in any way the liability
of Parent hereunder except to the extent the Guaranteed Obligations have been
paid. Parent waives any defense arising out of any such election by the
Administrative Agent, the Banks and the Interest Rate Protection Creditors, even
though such election operates to impair or extinguish any right of reimbursement
or subrogation or other right or remedy of Parent against any Borrower or any
other party or any security.
(b) Parent waives all presentments, demands for performance,
protests and notices, including without limitation notices of nonperformance,
notices of protest, notices of dishonor, notices of acceptance of this Parent
Guaranty, and notices of the existence, creation or incurring of new or
additional Guaranteed Obligations. Parent assumes all responsibility for being
and keeping itself informed of the Borrowers' financial condition and assets,
and of all other circumstances bearing upon the risk of nonpayment of the
Guaranteed Obligations and the nature, scope and extent of the risks which
Parent assumes and incurs hereunder, and agrees that the Administrative Agent,
the Banks and the Interest Rate Protection Creditors shall have no duty to
advise Parent of information known to them regarding such circumstances or
risks.
129
IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Agreement as of the date first
above written.
Address:
0000 Xxxxxx Xxxx XXXXXX'X ENTERTAINMENT, INC.
Xxxxxxx, Xxxxxxxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000 By /s/ Xxxxxxx X. Xxxxxx
Attention: Treasurer ------------------------------------
Title: Vice President &
Treasurer
with a copy to the same
address to the attention
of the Corporate Secretary
0000 Xxxxxx Xxxx XXXXXX'X OPERATING COMPANY, INC.
Xxxxxxx, Xxxxxxxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000 By /s/ Xxxx Xxxxxxxx
Attention: Treasurer ------------------------------------
Title: Authorized Signatory
with a copy to the same
address to the attention
of the Corporate Secretary
0000 Xxxxxx Xxxx MARINA ASSOCIATES
Xxxxxxx, Xxxxxxxxx 00000
Tel: (000) 000-0000 By: XXXXXX'X ATLANTIC CITY, INC.,
Fax: (000) 000-0000 a general partner
Attention: Treasurer
with a copy to the same By /s/ Xxxxxxx X. Xxxxxxxx
address to the attention ------------------------------------
of the Corporate Secretary Title: Authorized Signatory
130
By: XXXXXX'X NEW JERSEY, INC.,
a general partner
By /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------
Title: Authorized Signatory
000 Xxxxxxx Xxxxxx BANKERS TRUST COMPANY,
New York, New York 10006 Individually and as
Tel: (000) 000-0000 Administrative Agent
Fax: (000) 000-0000
Attention: Xxxx Xxx Xxxxx By /s/ Xxxx X. Xxxxxxxx
------------------------------------
Title: Vice President
with a copy to the same
address to the attention
of Xxxxxx Xxxxxx
131
000 Xxxxx Xxxxx Xxxxxx XXXXXXXX IMPERIAL BANK OF
Suite 2600 COMMERCE, Individually
Xxx Xxxxxxx, XX 00000 and as a Co-Syndication Agent
Tel: (000) 000-0000
Fax: (000) 000-0000 By /s/ Xxxx X. Xxxxxxx
Attention: Xxxxx Xxxxxxx ------------------------------------
Title: Managing Director
CIBC Xxxxxxxxxxx Corp.
as Agent
2029 Century Park East SOCIETE GENERALE, Individually
Suite 2900 and as a Co-Syndication Agent
Xxx Xxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000 By /s/ Xxxxxx X. Xxxxxxxx
Attention: Xxx Xxxxxxxx ------------------------------------
Title: First Vice President
000 Xxxxx Xxxxxx Xxxxxx XXXX XX XXXXXXX NATIONAL
Xxx Xxxxxxx, XX 00000 TRUST AND SAVINGS ASSOCIATION,
Tel: (000) 000-0000 Individually and as Documentation
Fax: (000) 000-0000 Agent
Attention: Xxxxx Xxxxx
By /s/ Xxxxx Xxxxx
------------------------------------
Title: Vice President
000 Xxxxx Xxxxx Xxxxxx NATIONSBANK, N.A. (SOUTH)
Xxxxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000 By /s/ Xxxx Xxxxxxxxx
Attention: Xxxx Xxxxxxxx ------------------------------------
Title: Vice President
132
One Wall Street THE BANK OF NEW YORK
Xxx Xxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000 By /s/ Xxxx X. Xxxxxx, Xx.
Attention: Xxxx Xxxxx Xxxxxx ------------------------------------
Title: Vice President
One Peachtree Center CREDIT LYONNAIS ATLANTA AGENCY
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 0000
Xxxxxxx, XX 00000 By /s/ Xxxxx X. Xxxxxx
Tel: (000) 000-0000 ------------------------------------
Fax: (000) 000-0000 Title: First Vice President
Attention: Xxxxxxxxx Xxxxxxxx & Manager
000 Xxxxxxxx THE LONG-TERM CREDIT BANK OF JAPAN,
Xxx Xxxx, XX 00000 LIMITED, NEW YORK BRANCH
Tel: (000) 000-0000
Fax: (000) 000-0000
By /s/ Xxxxxx Mersder
------------------------------------
Title: Senior Vice President
000 X.X. Xxx Xxxxxx, XX-0 XXXXXX XXXXXX NATIONAL BANK OF
Xxxxxxxx, XX 00000 OREGON
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxx Xxxxxxxx By /s/ Xxxx Xxxxxxxx
------------------------------------
Title: Vice President
Georgia-Pacific Center THE SUMITOMO BANK, LIMITED,
Suite 3210 ATLANTA AGENCY
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, XX 00000
Tel: (000) 000-0000 By /s/ Xxxx Xxxxxx
Fax: (000) 000-0000 ------------------------------------
Attention: Xxxx Xxxxxx Title: Vice President
133
000 Xxxxxxxxx Xxxxxx, X.X. THE BANK OF NOVA SCOTIA
Xxxxx 0000
Xxxxxxx, XX 00000
Tel: (000) 000-0000 By /s/ F.C.H. Xxxxx
Fax: (000) 000-0000 ------------------------------------
Attention: F.C.H. Xxxxx Title: Senior Manager
Loan Operations
191 Peachtree Tower THE INDUSTRIAL BANK OF JAPAN,
000 Xxxxxxxxx Xxxxxx, X.X. XXXXXXX, XXXXXXX AGENCY
Xxxxx 0000
Xxxxxxx, XX 00000-0000
Tel: (000) 000-0000 By /s/ Xxxxx Xxxx
Fax: (000) 000-0000 ------------------------------------
Attention: Xxxxx Xxxxxxx Title: General Manager
000 Xxxxxxx Xxxxxx THE MITSUBISHI TRUST & BANKING
26th Floor CORP.
Xxx Xxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000 By /s/ Xxxxxxxxx Xxxxxxx
Attention: Xxx Xxxxxxx ------------------------------------
Title: Senior Vice President
Park Avenue Plaza THE TOKAI BANK, LIMITED,
00 Xxxx 00xx Xxxxxx XXX XXXX XXXXXX
Xxx Xxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000 By /s/ Schinichi Nakatani
Attention: Xxxxxxxx Xxxxxxxx ------------------------------------
Title: Assistant General Manager
000
Xxxxxxx-Xxxxxxx Xxxxxx THE SANWA BANK, LIMITED,
Suite 4950 ATLANTA AGENCY
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, XX 00000
Tel: (000) 000-0000 By /s/ Xxxxxx X. Xxxxx
Fax: (000) 000-0000 ------------------------------------
Attention: Xxxxxx Xxxxx Title: Vice President
One East First Street XXXXX FARGO BANK, NATIONAL
Suite 300 ASSOCIATION
Xxxx, XX 00000
Tel: (000) 000-0000 By /s/ Xxx Xxxxxx
Fax: (000) 000-0000 ------------------------------------
Attention: Xxx Xxxxxx Title: Vice President
0000 Xxxxx 0 Xxxxx XXXXX BANK, N.A.
Xxxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000 By /s/ Xxxx Xxxxxxxx
Attention: Xxxx Xxxxxxxx ------------------------------------
Title: Vice President
Two Tower Center Boulevard PNC BANK, NATIONAL ASSOCIATION
Xxxx Xxxxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000 By /s/ Xxxxxx X. Xxxxxx
Attention: Xxxxxx X. Xxxxxx ------------------------------------
Title: Vice President
135
1211 Avenue of the Americas WESTDEUTSCHE LANDESBANK
New York, NY GIROZENTRALE, NEW YORK BRANCH
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxx Xxxxxxxx By /s/ Xxxx X. Bookspar
------------------------------------
Title: Vice President
By /s/ Xxxxx Xxxxxx
------------------------------------
Title: Associate
000 Xxxxxxxxxx Xxxxxx ABN AMRO BANK N.V., SAN FRANCISCO
Suite 4550 BRANCH
Xxx Xxxxxxxxx, XX 00000
Tel: (000) 000-0000 By: ABN AMRO NORTH AMERICA,
Fax: (000) 000-0000 INC., as its Agent
Attention: Xxxxxxx Xxxxxxxxx
By /s/ Xxxxxx Xxxxxxxx-Xxxxxxx
------------------------------------
Title: Vice President & Director
By /s/ Xxxxxxx Xxxxxxxxx
------------------------------------
Title: Assistant Vice President
000 Xxxxxx Xxxxxx FIRST AMERICAN XXXXXXXX XXXX
Xxxxx 000
Xxxxxxx, XX 00000
Tel: (000) 000-0000 By /s/ Xxxxxxxxx X. Xxxxxx
Fax: (000) 000-0000 ------------------------------------
Attention: Xxxxxxxxx Xxxxxx Title: Senior Vice President
136
000 Xxxxxxx Xxxxxx XXXXX XXXXXXXXX BANK NATIONAL
0xx Xxxxx XXXXXXXXXXX
Xxxxxxx, XX 00000-0000
Tel: (000) 000-0000
Fax: (000) 000-0000 By /s/ Xxxxx X. Xxxxx, Xx.
Attention: Xxxxx Xxxxx, Jr. ------------------------------------
Title: Vice President
000 Xxxx Xxxxxxx Xxxxxx DEPOSIT GUARANTY NATIONAL BANK
Xxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000 By /s/ Xxxxx X. Xxxxxxxx
Attention: Xxxxx Xxxxxxxx ------------------------------------
Title: Senior Vice President
000 Xxxx Xxxxxx, Xxxx Building ERSTE BANK DER OESTERREICHISCHEN
Xxx Xxxx, XX 00000 SPARKASSEN AG
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxx Xxxxxxx By /s/ Xxxx Xxxxxxx
------------------------------------
Title: First Vice President
By /s/ Xxxxx Xxxxxxx
------------------------------------
Title: Assistant Vice President
0000 Xxxxxx Xxxxxx SUNTRUST BANK, NASHVILLE, N.A.
Xxxxx 000
Xxxxxxx, XX 00000
Tel: (000) 000-0000 By /s/ Xxxxx X. Xxxxx
Fax: (000) 000-0000 ------------------------------------
Attention: Xxxxx Xxxxx Title: Vice President
000 Xxxxxxx Xxxxxx FIRST NATIONAL BANK OF COMMERCE
Xxx Xxxxxxx, XX 00000
Tel: (000) 000-0000
137
Fax: (000) 000-0000 By /s/ Xxxxx Xxxxxxx
Attention: Xxxxx Xxxxxxx ------------------------------------
Title: Senior Vice President
138
SCHEDULE I
REVOLVING LOAN COMMITMENTS
Bank Amount
---- ------
Bankers Trust Company $ 10,500,000
Canadian Imperial Bank of Commerce $ 11,000,000
Societe Generale $ 8,500,000
Bank of America National Trust and Savings Association $ 6,500,000
NationsBank, N.A. (South) $ 11,500,000
The Bank of New York $ 8,500,000
Credit Lyonnais Atlanta Agency $ 8,500,000
The Long-Term Credit Bank of Japan, Limited, New York Branch $ 8,500,000
United States National Bank of Oregon $ 8,000,000
The Sumitomo Bank, Limited, Atlanta Agency $ 7,000,000
The Bank of Nova Scotia $ 6,500,000
The Industrial Bank of Japan, Limited, Atlanta Agency $ 6,000,000
The Mitsubishi Trust & Banking Corp. $ 6,000,000
The Tokai Bank, Limited, New York Branch $ 6,000,000
The Sanwa Bank, Limited, Atlanta Agency $ 5,000,000
Xxxxx Fargo Bank, National Association $ 4,500,000
Fleet Bank, N.A $ 4,000,000
PNC Bank, National Association $ 4,000,000
Westdeutsche Landesbank Girozentrale, New York Branch $ 3,500,000
ABN AMRO Bank N.V., San Xxxxxxxxx Xxxxxx $ 3,000,000
First American National Bank $ 3,000,000
First Tennessee Bank National Association $ 3,000,000
Deposit Guaranty National Bank $ 2,000,000
Erste Bank der Oesterreichischen Sparkassen AG $ 2,000,000
SunTrust Bank, Nashville, N.A $ 2,000,000
First National Bank of Commerce $ 1,000,000
TOTAL $150,000,000
