FIFTH AMENDED AND RESTATED CREDIT AGREEMENT among
Execution Version
FIFTH AMENDED AND RESTATED CREDIT AGREEMENT
among
MONARCH CASINO & RESORT, INC., GOLDEN ROAD MOTOR INN, INC., MONARCH GROWTH INC.,
and
MONARCH BLACK HAWK, INC.
as Borrowers,
THE LENDERS NAMED HEREIN,
and
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Administrative Agent, L/C Issuer and Swing Line Lender
Dated as of February 1, 2023
4147-6459-6034
TABLE OF CONTENTS
Page
-i-
4147-6459-6034
TABLE OF CONTENTS
(continued)
Page
ARTICLE III.CONDITIONS PRECEDENT93
ARTICLE IV.REPRESENTATIONS AND WARRANTIES94
ARTICLE XX.XXXXXX OF DEFAULT119
ARTICLE VII.ADMINISTRATIVE AGENT AND RELATIONS AMONG LENDERS125
-ii-
4147-6459-6034
TABLE OF CONTENTS
(continued)
Page
-iii-
4147-6459-6034
TABLE OF CONTENTS
(continued)
Page
SCHEDULES
SCHEDULE I-THE LENDERS
SCHEDULE II-EXISTING LETTERS OF CREDIT SCHEDULE A-ATLANTIS REAL PROPERTY SCHEDULE B-V/P PROPERTY
SCHEDULE 3.01-CONDITIONS PRECEDENT TO CLOSING SCHEDULE 4.01(G)-LITIGATION
SCHEDULE 4.01(H)-REAL PROPERTY SCHEDULE 4.01(J)(II)-EQUITY SECURITIES SCHEDULE 4.01(K)-MULTIEMPLOYER PLANS SCHEDULE 4.01(O)-SUBSIDIARIES SCHEDULE 4.01(U)-INSURANCE
SCHEDULE 4.01(V)-AGREEMENTS WITH AFFILIATES, ETC. SCHEDULE 5.01(Q)POST-CLOSING
SCHEDULE 5.02(B)-EXISTING LIENS SCHEDULE 5.02(E)-EXISTING INVESTMENTS
EXHIBITS
EXHIBIT A-NOTICE OF LOAN BORROWING
EXHIBIT B-NOTICE OF CONVERSION
EXHIBIT C-NOTICE OF INTEREST PERIOD SELECTION EXHIBIT D-NOTICE OF SWING LOAN BORROWING EXHIBIT E-REVOLVING LOAN NOTE
EXHIBIT F-SWING LOAN NOTE
EXHIBIT G-ASSIGNMENT AGREEMENT
EXHIBIT H-COMPLIANCE CERTIFICATE
EXHIBIT I-[RESERVED]
EXHIBIT J-U.S. TAX COMPLIANCE CERTIFICATE
-iv-
4147-6459-6034
FIFTH AMENDED AND RESTATED CREDIT AGREEMENT
THIS FIFTH AMENDED AND RESTATED CREDIT AGREEMENT, dated as of
February 1, 2023, is entered into by and among: (1) MONARCH CASINO & RESORT, INC., a Nevada corporation (“Parent”), GOLDEN ROAD MOTOR INN, INC., a Nevada corporation (“Golden Road”), MONARCH GROWTH INC., a Nevada corporation (“MGI”) and MONARCH BLACK HAWK, INC., a Colorado corporation (“Black Hawk” and together with Parent, Golden Road and MGI, each a “Borrower” and collectively, the “Borrowers”); (2) each of the financial institutions party to this Agreement from time to time (each a “Lender” and, collectively, the “Lenders”); and (3) XXXXX FARGO BANK, NATIONAL ASSOCIATION (“Xxxxx Fargo”), as Administrative Agent, L/C Issuer and Swing Line Lender.
RECITALS
(iii) certain other amendments set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the above Recitals and the mutual covenants herein contained, effective as of the Fifth Restatement Effective Date, the parties hereby amend and restate the Existing Credit Agreement in its entirety as follows:
“Acquired Portion” shall have the meaning given to that term in Section 2.01(b)(v). “Adjacent Driveway Property” shall mean the leasehold interest of Golden Road in that
portion of the Atlantis Hotel/Casino Property which is designated as Parcel 2 on Schedule A attached hereto, which leasehold interest is evidenced by the Adjacent Driveway Lease.
-1-
4147-6459-6034
“Adjacent Driveway Lease” shall mean that certain Lease Agreement and Option to Purchase dated January 29, 2004, by and between BLILP, as lessor, and Golden Road, as lessee, pursuant to which, among other things, Golden Road is granted a leasehold interest in, and an option to purchase, the Adjacent Driveway Property.
“Adjacent Driveway Estoppel” shall mean the Estoppel Certificate executed as of February 20, 2004, by Biggest Little City Investments L.P., a Delaware limited partnership, and recorded on February 20, 2004 in the Official Records of Washoe County, Nevada, as Document No. 2996371, pursuant to which: (a) it certified and represented to Administrative Agent that the Adjacent Driveway Lease represents the entire agreement between the parties thereto with respect to the Adjacent Driveway Property and supersedes all other previous documents and agreements between them, that the Adjacent Driveway Lease had not been modified, supplemented or amended except as set forth therein and that there are no defaults existing or continuing under any of the provisions of the Adjacent Driveway Lease; and (b) other agreements are made regarding notice to Administrative Agent in the event of a default under this Adjacent Driveway Lease, Administrative Agent’s right to cure and the rights of the Lenders and their successors to continue in possession of the Adjacent Driveway Property.
“Adjusted Term SOFR” means, for purposes of any calculation, the rate per annum equal to (a) Term SOFR for such calculation plus (b) the Term SOFR Adjustment; provided that if Adjusted Term SOFR as so determined shall ever be less than the Floor, then Adjusted Term SOFR shall be deemed to be the Floor.
“Administrative Agent” shall mean Xxxxx Fargo, when acting in its capacity as the administrative agent under any of the Loan Documents, and any successor Administrative Agent appointed pursuant to Section 7.06. In such capacity, Xxxxx Fargo is also acting as collateral agent for the Lender Rate Contract Counterparties and Lender Bank Product Providers.
“Affected Financial Institution” shall mean (a) any EEA Financial Institution or (b) any UK Financial Institution.
“Affiliate” shall mean, with respect to any Person, (a) each Person that, directly or indirectly, owns or controls, whether beneficially or as a trustee, guardian or other fiduciary, ten percent (10%) or more of any class of Equity Securities of such Person, (b) each Person that controls, is controlled by or is under common control with such Person or any Affiliate of such Person or (c) each of such Person’s officers, directors, managers, joint venturers and partners; provided, however, that in no case shall any Lender Party be deemed to be an Affiliate of any Loan Party for purposes of this Agreement. For the purpose of this definition, “control” of a Person shall mean the possession, directly or indirectly, of the power to direct or cause the direction of its management or policies, whether through the ownership of voting securities, by contract or otherwise.
“Agreement” shall mean this Credit Agreement.
“Anti-Corruption Laws” shall mean all laws, rules, and regulations of any jurisdiction from time to time concerning or relating to bribery or corruption, including the United States
-2-
4147-6459-6034
Foreign Corrupt Practices Act of 1977 and the rules and regulations thereunder and the U.K. Bribery Act 2010 and the rules and regulations thereunder.
“Anti-Money Laundering Laws” shall mean any and all laws, statutes, regulations or obligatory government orders, decrees, ordinances or rules applicable to the Borrowers related to terrorism financing or money laundering, including any applicable provision of the Patriot Act and The Currency and Foreign Transactions Reporting Act (also known as the “Bank Secrecy Act,” 31 U.S.C. §§ 5311-5330 and 12U.S.C. §§ 1818(s), 1820(b) and 1951-1959).
“Applicable Lending Office” shall mean, with respect to any Lender, (a) in the case of its Base Rate Loans, its Domestic Lending Office, and (b) in the case of its SOFR Loans, its Foreign Lending Office.
“Applicable Margin” shall mean, with respect to each Loan (and with respect to the calculation of Letter of Credit fees pursuant to Section 2.02(i)), the per annum margin which is determined pursuant to the Pricing Grid. The Applicable Margin shall be determined as provided in the Pricing Grid and may change as set forth in the definition of Pricing Grid.
“Approved Fund” shall mean any Fund that is administered or managed by (a) a Lender,
(b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.
“Assignee Lender” shall have the meaning given to that term in Section 8.05(c). “Assignment” shall have the meaning given to that term in Section 8.05(c). “Assignment Agreement” shall have the meaning given to that term in Section 8.05(c).
“Assignment Effective Date” shall have, with respect to each Assignment Agreement, the meaning set forth therein.
“Assignment of Entitlements” shall mean, collectively, (a) that certain Assignment of Entitlements, Contracts, Rents and Revenues, dated as of February 20, 2004, executed by Golden Road in favor of the Administrative Agent, (b) that certain Assignment of Entitlements, Contracts, Rents and Revenues, dated as of April 26, 2012, executed by MGI in favor of the Administrative Agent, (c) that certain Amended and Restated Assignment of Entitlements, Contracts, Rents and Revenues, dated as of July 20, 2016, executed by Black Hawk in favor of the Administrative Agent and (d) that certain Assignment of Entitlements, Contracts, Rents and Revenues, dated as of September 3, 2020, executed by Inter-Mountain Construction, LLC in favor of the Administrative Agent.
“Assignor Lender” shall have the meaning given to that term in Section 8.05(c).
“Atlantis - BLILP Estoppel” shall mean a Landlord Consent and Estoppel Agreement, dated as of August 17, 2016, executed by BLILP: (i) consenting to encumbrance of Golden Road’s interest in the Atlantis – BLILP Lease, with the lien and security agreement of the Atlantis Leasehold Deed of Trust; (ii) acknowledging that the Atlantis – BLILP Lease is in full force and effect and that Golden Road is not in default of any of its material obligations
-3-
4147-6459-6034
thereunder; and (iii) providing such other assurances as may be required by Administrative Agent.
“Atlantis - BLILP Lease” shall mean that certain Lease Agreement, dated August 28, 2015, between Golden Road and BLILP, as amended from time to time.
“Atlantis BLILP Property” shall mean the leasehold interest of Golden Road in that portion of the Atlantis Hotel/Casino Property which is described on Schedule A attached hereto, which leasehold interest is evidenced by the Atlantis – BLILP Lease.
“Atlantis Casino Resort Spa” shall mean a collective reference to the Atlantis Real Property, the improvements located thereon and the hotel and casino business and related activities conducted on the Atlantis Real Property.
“Atlantis Deed of Trust” shall mean the Amended and Restated Deed of Trust, Assignment of Leases and Rents, Security Agreement and Fixture Filing , dated as of November 15, 2011, by Golden Road in favor of Western Title Company, Inc., for the benefit of the Administrative Agent.
“Atlantis Hotel/Casino Property” shall mean that certain real property more particularly described on that certain schedule marked Schedule A, affixed hereto and by this reference incorporated herein and made a part hereof, and the CC Skybridge Xxxxxxx Xxxx Entitlements.
“Atlantis Leasehold Deed of Trust” shall mean a Leasehold Deed of Trust, Assignment of Leases and Rents, Security Agreement and Fixture Filing, dated as of August 18, 2016, by Golden Road in favor of Western Title Company, Inc., for the benefit of the Administrative Agent in connection with Atlantis - BLILP Lease.
“Atlantis Real Property” shall mean a collective reference to the Atlantis Hotel/Casino Property, the Pedestrian Crossing Airspace, the V/P Property, the CC Skybridge Easements and the Atlantis BLILP Property.
“Available Tenor” shall mean, as of any date of determination and with respect to the then-current Benchmark, as applicable, (a) if such Benchmark is a term rate, any tenor for such Benchmark (or component thereof) that is or may be used for determining the length of an interest period pursuant to this Agreement or (b) otherwise, any payment period for interest calculated with reference to such Benchmark (or component thereof) that is or may be used for determining any frequency of making payments of interest calculated with reference to such Benchmark, in each case, as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed from the definition of “Interest Period” pursuant to Section 2.11(c)(iv).
“Bail-In Action” shall mean the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.
“Bail-In Legislation” shall mean, (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council
-4-
4147-6459-6034
of the European Union, the implementing law, rule or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).
“Base Rate” shall mean, at any time, the highest of (a) the Prime Rate, (b) the Federal Funds Rate plus 1.50% and (c) Adjusted Term SOFR for a one-month tenor in effect on such day plus 1.50%; each change in the Base Rate shall take effect simultaneously with the corresponding change or changes in the Prime Rate, the Federal Funds Rate or Adjusted Term SOFR, as applicable (provided that clause (c) shall not be applicable during any period in which Adjusted Term SOFR is unavailable or unascertainable).
“Base Rate Loan” shall mean, at any time, a Revolving Loan which then bears interest as provided in Section 2.01(d)(i).
“Benchmark” shall mean, initially, the Term SOFR Reference Rate; provided that if a Benchmark Transition Event has occurred with respect to the Term SOFR Reference Rate or the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to Section 2.11(c)(i).
“Benchmark Replacement” shall mean, with respect to any Benchmark Transition Event, the sum of: (a) the alternate benchmark rate that has been selected by the Administrative Agent and the Borrowers giving due consideration to (i) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement to the then-current Benchmark for Dollar-denominated syndicated credit facilities and (b) the related Benchmark Replacement Adjustment; provided that, if such Benchmark Replacement as so determined would be less than the Floor, such Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Loan Documents.
“Benchmark Replacement Adjustment” shall mean, with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement for any applicable Available Tenor, the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by the Administrative Agent and the Borrowers giving due consideration to (a) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body or (b) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for Dollar-denominated syndicated credit facilities.
-5-
4147-6459-6034
“Benchmark Replacement Date” shall mean the earlier to occur of the following events with respect to the then-current Benchmark:
For the avoidance of doubt, the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (a) or (b) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Transition Event” shall mean the occurrence of one or more of the following events with respect to the then-current Benchmark:
-6-
4147-6459-6034
thereof) announcing that all Available Tenors of such Benchmark (or such component thereof) are not, or as of a specified future date will not be, representative.
For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Transition Start Date” shall mean in the case of a Benchmark Transition Event, the earlier of (a) the applicable Benchmark Replacement Date and (b) if such Benchmark Transition Event is a public statement or publication of information of a prospective event, the 90th day prior to the expected date of such event as of such public statement or publication of information (or if the expected date of such prospective event is fewer than 90 days after such statement or publication, the date of such statement or publication).
“Benchmark Unavailability Period” shall mean, the period (if any) (x) beginning at the time that a Benchmark Replacement Date has occurred if, at such time, no Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 2.11(c)(i) and (y) ending at the time that a Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 2.11(c)(i).
“Beneficial Ownership Certification” shall mean a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation.
“Beneficial Ownership Regulation” shall mean 31 CFR § 1010.230.
“Benefit Plan” shall mean any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in and subject to Section 4975 of the Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.
“Black Hawk” shall have the meaning given to that term in clause (1) of the introductory paragraph hereof.
“Black Hawk Deed of Trust” shall mean the Amended and Restated Construction Deed of Trust, Assignment of Leases and Rents, Security Agreement and Fixture Filing, dated as of the July 20, 2016, by Black Hawk in favor of Public Trustee of Gilpin County, Colorado, for the benefit of the Administrative Agent.
“BLILP” shall mean Biggest Little Investments L.P.
“Borrower” and “Borrowers” shall have the meaning given to such terms in clause (1) of the introductory paragraph hereof.
“Borrower Representative” shall have the meaning given to such term in Section 8.01(c).
-7-
4147-6459-6034
“Borrower Materials” shall have the meaning given to that term in Section 5.01(a).
“Borrowing” shall mean a Revolving Loan Borrowing or a Swing Loan Borrowing, as the context may require.
“Business Day” shall mean any day on which commercial banks are not authorized or required to close in San Francisco, California or New York, New York.
“Capital Asset” shall mean, with respect to any Person, any tangible fixed or capital asset owned or leased (in the case of a Capital Lease) by such Person, or any expense incurred by such Person that is required by GAAP, as in effect on the Fifth Restatement Effective Date, to be reported as a non-current asset on such Person’s balance sheet.
“Capital Expenditures” shall mean, with respect to any Person and any period, all amounts expended by such Person during such period to acquire or to construct Capital Assets (including renewals, improvements and replacements, but excluding repairs in the ordinary course) computed in accordance with GAAP as in effect on the Fifth Restatement Effective Date (including all amounts paid or accrued on Capital Leases and other Indebtedness incurred or assumed to acquire Capital Assets).
“Capital Leases” shall mean any and all lease obligations that, in accordance with GAAP as in effect on the Fifth Restatement Effective Date, are required to be capitalized on the books of a lessee.
“Cash Collateralize” shall mean to pledge and deposit with or deliver to the Administrative Agent, for its own benefit and for the benefit of the L/C Issuer, the Swing Line Lender and/or the Lenders, as applicable, as collateral subject to a first priority, perfected security interest securing the Obligations or the obligations of a Defaulting Lender, as applicable, cash or deposit account balances in an amount equal to the L/C Obligations, Obligations in respect of Swing Line Loans or obligations of a Defaulting Lender, as applicable, pursuant to documentation in form and substance satisfactory to the Administrative Agent and the L/C Issuer or the Swing Line Lender, as applicable (which documents are hereby consented to by the Lenders). Derivatives of such term shall have a corresponding meaning.
“Cash Equivalents” shall mean:
-8-
4147-6459-6034
(iv) such security or instrument so securing the repurchase obligations has a fair market value at the time such repurchase agreement is entered into of not less than 100% of such repurchase obligations.
Notwithstanding the foregoing, in no event shall “Cash Equivalents” include auction rate securities.
“CC Skybridge” shall mean a collective reference to: (i) the elevated pedestrian walkway which extends, from Parcel 1 of the Atlantis Hotel/Casino Property to the CC Skybridge Tower, over and across Xxxxxxx Xxxx and the north parking lot of the Convention Center Property to the Xxxx Xxxxxx Convention Center; (ii) the CC Skybridge Tower; and (iii) all elevators, escalators, support columns, landscaping, paving and other facilities and fixtures which are related to the foregoing, all as particularly set forth by the CC Skybridge Agreement.
“CC Skybridge Agreement” shall mean that certain Atlantis Convention Center Skybridge Agreement and Easement, dated May 9, 2007, between RSCVA and Golden Road, which was recorded in the Official Records of Washoe County, Nevada on May 10, 2007, as Document No. 3530942, pursuant to which, among other things: (i) RSCVA granted the CC Skybridge Easements to Golden Road; (ii) Golden Road granted, to RSCVA, certain access easements over Parcels 3 through 5 of the Atlantis Hotel/Casino Property; (iii) Golden Road agreed to construct and operate the CC Skybridge within the applicable CC Skybridge Easements; and (iv) Golden Road agreed that RSCVA would be entitled to reserve blocks of rooms at the Atlantis Casino Resort Spa for certain types of events being conducted by RSCVA; all in accordance with the terms and conditions set forth therein.
“CC Skybridge Documentation” shall mean a collective reference to: (i) the CC Skybridge Agreement; and (ii) the CC Skybridge Xxxxxxx Xxxx Entitlements.
“CC Skybridge Easements” shall mean certain permanent and temporary easements over the Convention Center Property which are granted to Golden Road by RSCVA, pursuant to the CC Skybridge Agreement, in order to facilitate Golden Road’s construction and operation of the CC Skybridge, all as more particularly set forth therein.
-9-
4147-6459-6034
“CC Skybridge Estoppel” shall mean the Estoppel Statement dated as of January 13, 2009 executed by RSCVA: (i) consenting to encumbrance of Golden Road’s interest in the CC Skybridge, and in the CC Skybridge Agreement, with the lien and security agreement of the Deed of Trust; (ii) acknowledging that the CC Skybridge Agreement is in full force and effect and that Golden Road is not in default of any of its material obligations thereunder; and
(iii) providing such other assurances as may be required by Administrative Agent.
“CC Skybridge Xxxxxxx Xxxx Entitlements” shall mean the documentation which sets forth the agreement, by all appropriate Governmental Authorities, authorizing and entitling Golden Road to construct and maintain the CC Skybridge over Xxxxxxx Xxxx in accordance with the CC Skybridge Agreement.
“CC Skybridge Tower” shall mean the pedestrian dispersal site for the CC Skybridge, which is situate on the Convention Center Property, including the dispersal tower, lobby, escalators, elevators and stairs.
“Change of Control” shall mean the occurrence of any one or more of the following:
-10-
4147-6459-6034
of such Indebtedness prior to the maturity date thereof or the right to require such Loan Party to redeem, purchase or otherwise defease, or offer to redeem, purchase or otherwise defease, all or any portion of such Indebtedness.
For the purpose of this definition, “control” of a Person shall mean the possession, directly or indirectly, of the power to direct or cause the direction of its management or policies, whether through the ownership of voting securities, by contract or otherwise.
“Change of Law” shall mean the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary,
(x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change of Law”, regardless of the date enacted, adopted or issued.
“Code” shall mean the U.S. Internal Revenue Code of 1986.
“Collateral” shall mean all property in which the Administrative Agent or any Lender has a Lien to secure the Obligations or the Guaranty.
“Commercial Letter of Credit” shall mean any documentary letter of credit issued by the L/C Issuer under this Agreement; either as originally issued or as the same may be supplemented, modified, amended, extended, restated or supplanted.
“Commitment Fee” shall have the meaning given to that term in Section 2.05(b). “Commitment Fee Percentage” shall mean, with respect to the Revolving Loan
Commitments at any time, the per annum percentage which is used to calculate Commitment
Fees for such Revolving Loan Commitments determined pursuant to the Pricing Grid. “Communications” shall have the meaning given to that term in Section 8.01(b).
“Compliance Certificate” shall have the meaning given to that term in Section 5.01(a)(iv).
“Confidential Information” shall mean information delivered to any Lender or the Administrative Agent by or on behalf of any Loan Party pursuant to the Loan Documents that is proprietary in nature and that is clearly marked or labeled as being confidential information of such Loan Party; provided; however, that such term does not include information that (a) was publicly known or otherwise known to the receiving party prior to the time of such disclosure,
(b) subsequently becomes publicly known through no act or omission by the receiving party or any person acting on its behalf, (c) otherwise becomes known to the receiving party other than
-11-
4147-6459-6034
through disclosure by any Loan Party or (d) constitutes financial statements delivered to the Lenders and the Administrative Agent under Section 5.01(a) that are otherwise publicly available.
“Conforming Changes” shall mean, with respect to the use or administration of an initial Benchmark or the use, administration, adoption or implementation of any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Base Rate,” the definition of “Business Day,” the definition of “U.S. Government Securities Business Day,” the definition of “Interest Period” or any similar or analogous definition (or the addition of a concept of “interest period”), timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, the applicability and length of lookback periods, the applicability of Section 2.11(c) and other technical, administrative or operational matters) that the Administrative Agent (upon consultation with the Borrowers) decides may be appropriate to reflect the adoption and implementation of any such rate or to permit the use and administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent determines that no market practice for the administration of any such rate exists, in such other manner of administration as the Administrative Agent decides is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents).
“Connection Income Taxes” shall mean Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.
“Contingent Obligation” shall mean, with respect to any Person, (a) any Guaranty Obligation of that Person; and (b) any direct or indirect obligation or liability, contingent or otherwise, of that Person (i) in respect of any Surety Instrument issued for the account of that Person or as to which that Person is otherwise liable for reimbursement of drawings or payments,
(ii) as a partner or joint venturer in any partnership or joint venture, (iii) to purchase any materials, supplies or other property from, or to obtain the services of, another Person if the relevant contract or other related document or obligation requires that payment for such materials, supplies or other property, or for such services, shall be made regardless of whether delivery of such materials, supplies or other property is ever made or tendered, or such services are ever performed or tendered, or (iv) in respect to any Rate Contract that is not entered into in connection with a bona fide hedging operation that provides offsetting benefits to such Person. The amount of any Contingent Obligation shall (subject, in the case of Guaranty Obligations, to the last sentence of the definition of “Guaranty Obligation”) be deemed equal to the maximum reasonably anticipated liability in respect thereof, and shall, with respect to item (b)(iv) of this definition be marked to market on a current basis.
“Contractual Obligation” of any Person shall mean, any indenture, note, lease, loan agreement, security, deed of trust, mortgage, security agreement, guaranty, instrument, contract, agreement or other form of contractual obligation or undertaking to which such Person is a party or by which such Person or any of its property is bound.
-12-
4147-6459-6034
“Control Agreement” shall mean a control agreement among a Borrower or a Guarantor, a depository bank, a securities intermediary or a commodity intermediary, as the case may be, and the Administrative Agent, in form and substance reasonably acceptable to the Administrative Agent.
“Convention Center Property” shall mean that certain real property owned by RSCVA, which is designated by Washoe County Assessor’s Parcel No. 000-000-00 and upon which Xxxx Xxxxxx Convention Center is situate.
“Credit Event” shall mean the making of any Loan (including a Swing Line Loan) or the making of an L/C Credit Extension. “Credit Event” shall not include the conversion of any Loan or the selection of a new Interest Period for any SOFR Loan.
“Cure Amount” shall have the meaning given to that term in Section 6.03. “Cure Proceeds” shall have the meaning given to that term in Section 6.03. “Cure Right” shall have the meaning given to that term in Section 6.03.
“Debtor Relief Laws” shall mean the Bankruptcy Code of the United States, and all other applicable liquidation, conservatorship, bankruptcy, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Governmental Rules from time to time in effect affecting the rights of creditors generally.
“Decreasing Lender” shall have the meaning given to that term in Section 2.01(b)(v). “Default” shall mean an Event of Default or any event or circumstance not yet
constituting an Event of Default which, with the giving of any notice or the lapse of any period of time or both, would become an Event of Default.
“Default Rate” shall have the meaning given to that term in Section 2.07(c).
“Defaulting Lender” shall mean, subject to Section 2.16(b), any Lender that (a) has failed to (i) fund all or any portion of its Loans within two Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies the Administrative Agent and the Borrowers in writing that such failure is the result of such Xxxxxx’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or
(ii) pay to the Administrative Agent or any other Lender any other amount required to be paid by it hereunder within two Business Days of the date when due, (b) has notified the Borrowers, the Administrative Agent in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Xxxxxx’s obligation to fund a Loan hereunder and states that such position is based on such Xxxxxx’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three Business Days after written request by the Administrative Agent or the Borrowers, to confirm in writing to the Administrative Agent and the Borrowers that it will comply with its prospective funding
-13-
4147-6459-6034
obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Borrower Representative), or (d) has, or has a direct or indirect parent company that has,
(i) become the subject of a proceeding under any Debtor Relief Law, (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity or (iii) becomes the subject of a Bail-In Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by the Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.16(b)) upon delivery of written notice of such determination to the Borrowers and each Lender.
“Defaulting Lender Amendment Paragraph” shall have the meaning given to that term in Section 8.04.
“Disqualified Securities” shall mean any Equity Security 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, (a) matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof, in whole or in part, on or prior to the date that is one year following the date of payment and satisfaction in full of the Obligations, (b) is convertible into or exchangeable for (i) debt securities or (ii) any Equity Security referred to in (a) above, in each case at any time on or prior to the date that is one year following the date of payment and satisfaction in full of the Obligations, or (c) is entitled to receive a cash Distribution (other than for taxes attributable to the operations of the business) or a Distribution of Disqualified Securities on or prior to the date that is one year following the date of payment and satisfaction in full of the Obligations.
“Distributions” shall mean the payment of any distributions or dividends (in cash, property or obligations) on, or other payments on account of, or the setting apart of money for a sinking or other analogous fund for, or the purchase, repurchase, redemption, retirement or other acquisition of, any Equity Securities of any Person or of any warrants, options or other rights to acquire the same (or to make any payments to any Person, such as “phantom membership” or “phantom stock” payments or similar payments, where the amount is calculated with reference to the fair market or equity value of any Person), but excluding distributions or dividends payable by a Person solely in membership interests or shares of common stock of such Person.
“Dollars” and “$” shall mean the lawful currency of the United States and, in relation to any payment under this Agreement, same day or immediately available funds.
-14-
4147-6459-6034
“Domestic Lending Office” shall mean, with respect to any Lender, (a) initially, its office designated as such in Schedule I (or, in the case of any Lender which becomes a Lender pursuant to Section 2.01(b) or by an assignment pursuant to Section 8.05(c), its office designated as such in the applicable documentation executed pursuant to those Sections, as applicable) and
(b) subsequently, such other office or offices as such Lender may designate to the Administrative Agent as the office at which such Xxxxxx’s Base Rate Loans will thereafter be maintained and for the account of which all payments of principal of, and interest on, such Xxxxxx’s Base Rate Loans will thereafter be made.
“EBITDA” shall mean, for any period to be measured, (a) Net Income (determined on a consolidated basis without duplication in accordance with GAAP) for such period, plus, without duplication (b) to the extent deducted in determining Net Income for such period, the sum of the following for such period: (i) Interest Expense (including expensed and capitalized), (ii) income tax expense, (iii) depreciation and amortization expense and other non-cash expenses, including non-cash expenses related to stock based compensation, (iv) pre-opening expenses, (v) capitalized fees and costs relating to the closing of this Agreement and (vi) extraordinary losses on sales of assets and other extraordinary losses and non-cash charges (other than any such non- cash charge to the extent it represents an accrual of or reserve for cash expenditures in any future period, other than such accruals that result from a change in accounting method), minus, without duplication (c) to the extent included as income in determining such Net Income for such period, the sum of the following for such period: (i) extraordinary gains and non-recurring gains,
(ii) interest income and minus (d) cash expenditures made during such period to the extent an accrual resulting from a change in accounting method with respect to such cash expenditures was added to Net Income in determining EBITDA for any prior period. Pro forma credit shall be given for an Acquired Person’s EBITDA as if owned on the first day of the applicable period; companies (or identifiable business units or divisions) sold, transferred or otherwise disposed of during any period will be treated as if not owned during the entire applicable period.
For the avoidance of doubt, any PPP Loan, if forgiven (or that portion of a PPP Loan that is forgiven if less than the entire amount of such PPP Loan), shall not constitute income and shall be disregarded for purposes of the calculation of EBITDA for all purposes in this Agreement.
“EEA Financial Institution” shall mean (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“EEA Member Country” shall mean any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority” shall mean any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any credit institution or investment firm established in any EEA Member Country.
-15-
4147-6459-6034
“Effective Amount” shall mean (a) with respect to Revolving Loans and Swing Line Loans on any date, the aggregate outstanding principal amount thereof after giving effect to
(i) any borrowings and prepayments or repayments of Revolving Loans and Swing Line Loans and (ii) with respect to Swing Line Loans, any risk participation amongst the Lenders, as the case may be, occurring on such date; and (b) with respect to any L/C Obligations on any date, the amount of such L/C Obligations on such date after giving effect to any L/C Credit Extension occurring on such date and any other changes in the aggregate amount of the L/C Obligations as of such date, including as a result of any reimbursements of outstanding unpaid drawings under any Letters of Credit or any reductions in the maximum amount available for drawing under Letters of Credit taking effect on such date.
“Eligible Assignee” shall mean (a) any Lender, any Affiliate of any Lender and any Approved Fund of any Lender; and (b) a Person that is (i) a commercial bank, savings and loan association or savings bank organized under the laws of the United States, or any state thereof, and having a combined capital and surplus of at least $100,000,000, (ii) a commercial bank organized under the laws of any other country which is a member of the Organization for Economic Cooperation and Development (the “OECD”), or a political subdivision of any such country, and having a combined capital and surplus of at least $100,000,000; provided that such bank is acting through a branch or agency located in the country in which it is organized or another country which is also a member of the OECD, (iii) a finance company, insurance company or other financial institution that is engaged in making, purchasing or otherwise investing in commercial loans in the ordinary course of its business and having total assets in excess of $100,000,000, or (iv) a Person that is primarily engaged in the business of commercial lending and that is (x) a Subsidiary of a Lender, (y) a Subsidiary of a Person of which a Lender is a Subsidiary, or (z) a Person of which a Lender is a Subsidiary; provided that notwithstanding the foregoing, “Eligible Assignee” shall not include (i) without the prior consent of all of the Lenders, any Loan Party or any Affiliate of a Loan Party or any natural person, (ii) a Defaulting Lender or (iii) any Person that has been found unsuitable by any Gaming Board or as to whom such assignment would violate any Gaming Law.
“Environmental Damages” shall mean all claims, judgments, damages, losses, penalties, liabilities (including strict liability), costs and expenses (including costs of investigation, remediation, defense, settlement and attorneys’ fees and consultants’ fees and any diminution in the value of the security afforded to the Lenders with respect to any real property owned or used by any Loan Party), that are incurred at any time (a) as a result of the existence of any Hazardous Materials upon, about or beneath any real property owned by or leased by any Loan Party or migrating or threatening to migrate to or from any such real property regardless of whether or not caused by or within the control of any Loan Party, (b) arising from any investigation, proceeding or remediation of any location at which any Loan Party or any predecessors are alleged to have directly or indirectly disposed of Hazardous Materials or (c) arising in any manner whatsoever out of any violation of Environmental Laws by any Loan Party or with respect to any real property owned or used by any Loan Party.
“Environmental Indemnity Agreement” shall mean, collectively, (a) that certain Certificate and Indemnification Regarding Hazardous Substances, dated as of the First Restatement Effective Date, executed by Golden Road and Parent in favor of the Administrative Agent, (b) that certain Certificate and Indemnification Regarding Hazardous Substances, dated
-16-
4147-6459-6034
as of April 26, 2012, executed by MGI in favor of the Administrative Agent, (c) that certain Certificate and Indemnification Regarding Hazardous Substances, dated as of April 26, 2012, executed by Black Hawk in favor of the Administrative Agent and (d) that certain Certificate and Indemnification Regarding Hazardous Substances, dated as of September 3, 2020, executed by Inter-Mountain Construction, LLC in favor of the Administrative Agent.
“Environmental Laws” shall mean the Clean Air Act, 42 U.S.C. Section 7401 et seq.; the Federal Water Pollution Control Act, 33 U.S.C. Section 1251 et seq.; the Resource Conservation and Recovery Act of 1976, 42 U.S.C. Section 6901 et seq.; the Comprehensive Environment Response, Compensation and Liability Act of 1980 (including the Superfund Amendments and Reauthorization Act of 1986, “CERCLA”), 42 U.S.C. Section 9601 et seq.; the Toxic Substances Control Act, 15 U.S.C. Section 2601 et seq.; the Occupational Safety and Health Act, 29 U.S.C. Section 651; the Emergency Planning and Community Right-to-Know Act of 1986, 42 U.S.C. Section 11001 et seq.; the Mine Safety and Health Act of 1977, 30 U.S.C. Section 801 et seq.; the Safe Drinking Water Act, 42 U.S.C. Section 300f et seq.; and all other Governmental Rules relating to the protection of human health and safety and the environment, including all Governmental Rules pertaining to the reporting, licensing, permitting, transportation, storage, disposal, investigation or remediation of emissions, discharges, releases, or threatened releases of Hazardous Materials into the air, surface water, groundwater, or land, or relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transportation or handling of Hazardous Materials.
“Equity Securities” of any Person shall mean (a) all common stock, preferred stock, participations, shares, partnership interests, limited liability company interests or other equity interests in and of such Person (regardless of how designated and whether or not voting or non- voting) and (b) all warrants, options and other rights to acquire any of the foregoing.
“ERISA” shall mean the Employee Retirement Income Security Act of 1974.
“ERISA Affiliate” shall mean any Person which is treated as a single employer with any Loan Party under Sections 414(b) and (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of the provisions relating to Section 412 of the Code).
“ERISA Event” shall mean (a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal by any Loan Party or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a “substantial employer” (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA which could reasonably be expected to give rise to any liability with respect to such withdrawal; (c) a complete or partial withdrawal by a Loan Party or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (d) the filing of a notice of intent to terminate, the treatment of a Pension Plan or Multiemployer Plan amendment as a termination under Sections 4041 or 4041A of ERISA, or the commencement of proceedings to terminate a Pension Plan or Multiemployer Plan; (e) the institution by the PBGC of proceedings to terminate a Pension Plan; (f) an event or condition which could reasonably be expected to constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; (g) the determination that a Pension Plan is considered an at-risk plan or a plan is in
-17-
4147-6459-6034
endangered or critical status within the meaning of Sections 430, 431 and 432 of the Code or Sections 303, 304 and 305 of ERISA; (h) the imposition of any liability under Title IV of ERISA, other than PBGC premiums due but not delinquent under Section 4007 of ERISA, upon a Loan Party or any ERISA Affiliate; (i) any failure by any Pension Plan to satisfy the minimum funding standards (within the meaning of Sections 412 or 430 of the Code or Section 302 of ERISA) applicable to such Pension Plan, whether or not waived; or (j) the filing pursuant to Section 412 of the Code or Section 302 of ERISA of an application for a waiver of the minimum funding standard with respect to any Pension Plan, the failure to make by its due date a required installment under Section 430(j) of the Code with respect to any Pension Plan or the failure by any Loan Party or any of its ERISA Affiliates to make any required contribution to a Multiemployer Plan.
“Erroneous Payment” has the meaning assigned thereto in Section 7.13(a).
“Erroneous Payment Deficiency Assignment” has the meaning assigned thereto in Section 7.13(d).
“Erroneous Payment Impacted Class” has the meaning assigned thereto in Section 7.13(d).
“Erroneous Payment Return Deficiency” has the meaning assigned thereto in Section 7.13(d).
“EU Bail-In Legislation Schedule” shall mean the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.
“Event of Default” shall have the meaning given to that term in Section 6.01.
“Evergreen Letter of Credit” shall have the meaning given to that term in Section 2.02(b)(iii).
“Excluded Accounts” shall mean, collectively, (i) the Pari-mutuel Accounts, (ii) zero balance accounts and (iii) gaming reserve accounts required to be maintained by the Borrowers in accordance with Requirements of Law.
“Excluded Subsidiary” shall mean (i) a Subsidiary which does not own, operate or hold any assets or property or (ii) a single purpose Subsidiary which is formed to own, operate and hold, and at all time only owns, operates and holds assets and property not related to the gaming operations of the Loan Parties and which do not directly or indirectly affect such gaming operations and with respect to which none of the Loan Parties has any obligations, direct or contingent. As of the Fifth Restatement Effective Date, Golden North, Inc., a Nevada corporation, High Desert Sunshine, Inc., a Nevada corporation, Golden Town, Inc., a Nevada corporation, Golden East, Inc., a Nevada corporation, Monarch Interactive, Inc., a Nevada corporation, Chicago Dogs Eatery Inc, a Colorado corporation and Monarch Promotional Association, Inc., a Colorado corporation are Excluded Subsidiaries.
-18-
4147-6459-6034
“Excluded Swap Obligation” shall mean, with respect to any Guarantor, any Swap Obligation if, and to the extent that, all or a portion of the guaranty of such Guarantor of, or the grant by such Guarantor of a security interest to secure, such Swap Obligation (or any guaranty thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder at the time the guaranty of such Guarantor or the grant of such security interest becomes effective with respect to such Swap Obligation. If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such guaranty or security interest is or becomes illegal.
“Excluded Taxes” shall mean any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Revolving Loan Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or Revolving Loan Commitment (other than pursuant to an assignment request by the Borrowers under Section 2.15(b)) or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 2.12, amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office,
(c) Taxes attributable to such Recipient’s failure to comply with Section 2.12(g) and (d) any U.S. federal withholding Taxes imposed under FATCA.
“Existing Credit Agreement” shall have the meaning set forth in the recitals to this Agreement.
“Existing Letters of Credit” shall mean the letters of credit described on Schedule II and issued by Xxxxx Fargo prior to the Fifth Restatement Effective Date.
“Extended Revolving Loan Commitment” shall mean any Revolving Loan Commitments the maturity of which have been extended pursuant to Section 2.17.
“Extended Revolving Loans” shall mean any Revolving Loans made pursuant to the Extended Revolving Loan Commitments.
“Extension” shall have the meaning set forth in Section 2.17.
“Extension Amendment” shall mean an amendment to this Agreement (which may, at the option of the Administrative Agent and the Borrowers, be in the form of an amendment and restatement of this Agreement) among the Borrowers, the applicable extending Lenders, the
-19-
4147-6459-6034
Administrative Agent and, to the extent required by Section 2.17, the L/C Issuer and/or the Swing Line Lender implementing an Extension in accordance with Section 2.17.
“Extension Offer” shall have the meaning set forth in Section 2.17.
“Farahi Family Group” shall mean a collectively reference to Xxxx Xxxxxx, Xxxxxx (Xxx) Xxxxxx, Xxxxxxx (Xxx) Xxxxxx, Xxxx Xxxxxx Trust created by agreement dated May 20, 2002, and their respective children, grandchildren, executors, administrators, testamentary trustees, heirs, legatees and beneficiaries.
“FASB ASC” shall mean the Accounting Standards Codification of the Financial Accounting Standards Board.
“FATCA” shall mean Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof and any agreement entered into pursuant to Section 1471(b)(1) of the Code.
“Federal Funds Rate” shall mean, for any day, the rate per annum equal to the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve System, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day, provided that if such rate is not so published for any day which is a Business Day, the Federal Funds Rate for such day shall be the average of the quotation for such day on such transactions received by the Administrative Agent from three federal funds brokers of recognized standing selected by the Administrative Agent. Notwithstanding the foregoing, if the Federal Funds Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.
“Fee Letter” shall mean, collectively, (a) the letter agreement dated as of February 1, 2023 regarding certain fees applicable to the Administrative Agent as expressly indicated therein and (b) any fee letter or engagement letter executed after the Fifth Restatement Effective Date by one or more Loan Parties and the Administrative Agent in connection with this Agreement.
“Fifth Restatement Effective Date” shall mean the time and Business Day on which the satisfaction of all the conditions precedent and the consummation of all of the transactions contemplated in Section 3.01 occurs.
“Financial Statements” shall mean, with respect to any accounting period for any Person, statements of income and cash flows (and, in the case of financial statements in respect of a fiscal year, statements of retained earnings, or stockholders’ equity or members’ equity or partners’ capital) of such Person for such period, and a balance sheet of such Person as of the end of such period, setting forth in each case in comparative form figures for the corresponding period in the preceding fiscal year if such period is less than a full fiscal year or, if such period is a full fiscal year, corresponding figures from the preceding annual audited financial statements and, in each case, corresponding figures from the comparable budgeted and projected figures for such period, all prepared in reasonable detail and in accordance with GAAP.
-20-
4147-6459-6034
“First Restatement Effective Date” shall mean January 20, 2009.
“Fixed Charge Coverage Ratio” shall mean, as at any date of determination, with respect to the Loan Parties for the period of four consecutive fiscal quarters ending on or most recently ended prior to such date (a) the sum of (i) EBITDA minus (ii) income taxes paid in cash during such period minus (iii) Distributions made during such period (other than the Special Dividend) minus (iv) Investments in Excluded Subsidiaries made during such period minus
(v) Maintenance Capital Expenditures made during such period divided by (b) Fixed Charges for such period.
“Fixed Charges” shall mean, for any four consecutive fiscal quarter period, the sum, for the Loan Parties (determined on a consolidated basis without duplication), of the following items: (a) Interest Expense required to be paid in cash during such period, (b) principal payments on Indebtedness required to be paid during such period and (c) the portion of payments under Capital Leases that should be treated as payment of principal in accordance with GAAP scheduled to be paid during such period.
“Floor” shall mean a rate of interest equal to 0.00%.
“Flood Insurance Laws” shall mean, collectively, (a) the National Flood Insurance Act of 1968, (b) the Flood Disaster Protection Act of 1973, (c) the National Flood Insurance Reform Act of 1994, (d) the Flood Insurance Reform Act of 2004 and (e) the Xxxxxxx-Xxxxxx Flood Insurance Reform Act of 2012, as each of the foregoing is now or hereafter in effect and any successor statute to any of the foregoing.
“Foreign Lending Office” shall mean, with respect to any Lender, (a) initially, its office designated as such in Schedule I (or, in the case of any Lender which becomes a Lender pursuant to Section 2.01(b) or by an assignment pursuant to Section 8.05(c), its office designated as such in the applicable documentation executed pursuant to those Sections, as applicable) and
(b) subsequently, such other office or offices as such Lender may designate for a particular currency to the Administrative Agent as the office at which such Xxxxxx’s SOFR Loans will thereafter be maintained and for the account of which all payments of principal of, and interest on, such Xxxxxx’s SOFR Loans will thereafter be made.
“Foreign Plan” shall mean any employee benefit plan maintained or contributed to by any Loan Party or any ERISA Affiliate which is mandated or governed by any Governmental Rule of any Governmental Authority other than the United States.
“FRB” shall mean the Board of Governors of the Federal Reserve System of the United
States.
“Fronting Exposure” shall mean, at any time there is a Defaulting Lender, (a) with
respect to the L/C Issuer, such Defaulting Lender’s Revolving Proportionate Share of the Effective Amount of all L/C Obligations, other than L/C Obligations as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof and (b) with respect to the Swing Line Lender, such Defaulting Lender’s Revolving Proportionate Share of the Effective Amount of all Swing Line Loans, other
-21-
4147-6459-6034
than Swing Line Loans as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders in accordance with the terms hereof.
“Fund” shall mean any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its business.
“GAAP” shall mean generally accepted accounting principles and practices as in effect in the United States from time to time, consistently applied.
“Gaming Board” shall mean any Governmental Authority that holds licensing or permit authority over gambling, gaming or casino activities conducted by any Loan Party within its jurisdiction.
“Gaming Laws” shall mean all Laws pursuant to which any Gaming Board possesses licensing or permit authority over gambling, gaming, or casino activities conducted by any Loan Party within its jurisdiction.
“Governmental Authority” shall mean any international, domestic or foreign national, state or local government, any political subdivision thereof, any department, agency, authority or bureau of any of the foregoing, or any other entity exercising executive, legislative, judicial, regulatory, tax or administrative functions of or pertaining to government, including, without limitation, the Federal Trade Commission, the Federal Deposit Insurance Corporation, the FRB, the Comptroller of the Currency, any central bank or any comparable authority and any supra- national bodies such as the European Union.
“Governmental Authorization” shall mean any permit, license, registration, approval, finding of suitability or licensing, authorization, plan, directive, order, consent, exemption, waiver, consent order or consent decree of or from, or notice to, action by or filing with, any Governmental Authority (including any Gaming Board).
“Governmental Charges” shall mean, with respect to any Person, all levies, assessments, fees, claims or other charges imposed by any Governmental Authority upon such Person or any of its property or otherwise payable by such Person.
“Governmental Rule” shall mean any law, rule, regulation, ordinance, order, code interpretation, judgment, decree, directive, Governmental Authorization, guidelines, policy or similar form of decision of any Governmental Authority (including all Gaming Laws).
“Guarantor” shall mean each now existing or hereafter acquired or created direct or indirect Subsidiary of Parent (other than any Borrower and Excluded Subsidiary) which becomes a party to the Guaranty.
“Guaranty” shall mean the Guaranty Agreement, dated as of June 18, 2020, by each Guarantor from time to time party thereto in favor of the Administrative Agent and the Lender Parties.
-22-
4147-6459-6034
“Guaranty Obligation” shall mean, with respect to any Person, any direct or indirect liability of that Person with respect to any Indebtedness, lease, dividend, letter of credit or other obligation (the “primary obligations”) of another Person (the “primary obligor”), including any obligation of that Person, whether or not contingent, (a) to purchase, repurchase or otherwise acquire such primary obligations or any property constituting direct or indirect security therefor, or (b) to advance or provide funds (i) for the payment or discharge of any such primary obligation, or (ii) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency or any balance sheet item, level of income or financial condition of the primary obligor, or (c) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation, or (d) otherwise to assure or hold harmless the holder of any such primary obligation against loss in respect thereof, provided that the term “Guaranty Obligation” shall not include endorsements for collection or deposit in the ordinary course of business. The amount of any Guaranty Obligation shall be deemed equal to the stated or determinable amount of the primary obligation in respect of which such Guaranty Obligation is made or, if not stated or if indeterminable, the maximum liability in respect thereof.
“Hazardous Materials” shall mean all pollutants, contaminants and other materials, substances and wastes which are hazardous, toxic, caustic, harmful or dangerous to human health or the environment, including petroleum and petroleum products and byproducts, radioactive materials, asbestos, polychlorinated biphenyls and all materials, substances and wastes which are classified or regulated as “hazardous,” “toxic” or similar descriptions under any Environmental Law.
“Honor Date” shall have the meaning given to that term in Section 2.02(c)(i).
“Increase Effective Date”shallhavethemeaninggiventothattermin Section 2.01(b)(iv).
“Increasing Lenders” shall have the meaning given to that term in Section 2.01(b)(i). “Incremental Debt Limit” shall mean (a) $100,000,000 less (b) the total aggregate initial
principal amount (as of the date of incurrence thereof) of all previously incurred increases in the Total Revolving Loan Commitment pursuant to Section 2.01(b)(i).
“Indebtedness” of any Person shall mean, without duplication:
-23-
4147-6459-6034
Leases;
| (e) | All obligations of such Person, contingent or otherwise, under or with |
respect to Surety Instruments;
(x) the amount of all obligations of such Primary Obligors so secured by (or for which any holder of such obligations has an existing right, contingent or otherwise, to be secured by) the property of such Person and (y) the value of such property).
To the extent not included above, “Indebtedness” shall include all Obligations, but shall not include all or any portion of a PPP Loan, unless and until such PPP Loan or portion thereof is not forgiven and is required to be repaid in accordance with its terms.
“Indemnified Taxes” shall mean (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Loan Party under any Loan Document and (b) to the extent not otherwise described in (a), Other Taxes.
“Indemnitees” shall have the meaning given to that term in Section 8.03.
-24-
4147-6459-6034
“Interest Expense” shall mean, for any period, the sum, for the Loan Parties (determined on a consolidated basis without duplication in accordance with GAAP), of the following: (a) all interest, fees, charges and related expenses payable during such period to any Person in connection with Indebtedness or the deferred purchase price of assets that are treated as interest in accordance with GAAP, (b) the portion of rent actually paid during such period under Capital Leases that should be treated as interest in accordance with GAAP and (c) the net amounts payable (or minus the net amounts receivable) under Rate Contracts accrued during such period (whether or not actually paid or received during such period).
“Interest Period” shall mean, with respect to any SOFR Loan, the time periods selected by the Borrowers pursuant to Section 2.01(c) or Section 2.01(e) which commences on the first day of such Loan or the effective date of any conversion and ends on the last day of such time period, and thereafter, each subsequent time period selected by the Borrowers pursuant to Section 2.01(f) which commences on the last day of the immediately preceding time period and ends on the last day of that time period.
“Inter-Mountain Deed of Trust” shall mean the Deed of Trust, Assignment of Leases and Rents, Security Agreement and Fixture Filing, dated as of September 3, 2020, by Inter-Mountain Construction, LLC in favor of the Public Trustee of Clear Creek County, Colorado, for the benefit of the Administrative Agent.
“Investment” of any Person shall mean any loan or advance of funds by such Person to any other Person (other than advances to employees of such Person for moving and travel expenses, drawing accounts and similar expenditures in the ordinary course of business consistent with past practice), any purchase or other acquisition of any Equity Securities or Indebtedness of any other Person, any capital contribution by such Person to or any other investment by such Person in any other Person (including (x) any Guaranty Obligations of such Person with respect to any obligations of any other Person and (y) any payments made by such Person on account of obligations of any other Person); provided, however, that Investments shall not include (a) accounts receivable or other indebtedness owed by customers of such Person (other than any Loan Party) which are current assets and arose from sales of inventory in the ordinary course of such Person’s business consistent with past practice or (b) prepaid expenses of such Person incurred and prepaid in the ordinary course of business consistent with past practice.
“ISP” shall have the meaning given to that term in Section 2.02(h).
“Joint Venture” shall mean a joint venture, limited liability company, corporation, partnership, other entity or other legal arrangement (whether created pursuant to a contract or conducted through a separate legal entity) formed by a Loan Party and one or more other Persons who are not Loan Parties.
“L/C Advance” shall mean, with respect to each Lender, such Lender’s payment or participation in any L/C Borrowing in accordance with its L/C Risk Participation therein.
“L/C Borrowing” shall mean an extension of credit resulting from a drawing under any Letter of Credit which has not been reimbursed on the date when made or refinanced as a Revolving Loan Borrowing.
-25-
4147-6459-6034
“L/C Credit Extension” shall mean, with respect to any Letter of Credit, the issuance thereof, the amendment thereof, the extension of the expiry date thereof, or the renewal or increase of the amount thereof.
“L/C Issuer” shall mean Xxxxx Fargo in its capacity as issuer of Letters of Credit hereunder, or any successor issuer of Letters of Credit hereunder.
“L/C Obligations” shall mean, as at any date of determination, the aggregate undrawn face amount of all outstanding Letters of Credit plus the aggregate of all Unreimbursed Amounts, including all L/C Borrowings.
“L/C Risk Participation” shall mean, with respect to any Lender and any Letter of Credit as of any date of determination, the sum of (a) such Xxxxxx’s Revolving Proportionate Share of the Effective Amount of the L/C Obligation attributable to such Letter of Credit outstanding at such time plus (b) the aggregate amount of all Defaulting Lenders’ Revolving Proportionate Shares of the Effective Amount of the L/C Obligation attributable to such Letter of Credit outstanding at such time that have been reallocated to such Lender pursuant to Section 2.16(a)(iv).
“Lender” and “Lenders” shall have the meaning given to such terms in clause (2) of the introductory paragraph hereof and includes the L/C Issuer and the Swing Line Lender.
“Lender Bank Product Provider” shall mean any Lender or Affiliate of a Lender which provides one or more Lender Bank Products.
“Lender Bank Products” shall mean each and any of the following types of services or facilities extended to any Borrower by any Lender Bank Product Provider: (a) commercial credit cards; (b) cash management services (including daylight overdrafts, multicurrency accounts, foreign cash letters, merchant card services, controlled disbursement services, ACH transactions, and interstate depository network services), and (c) returned items. The obligations with respect to Lender Bank Products shall be secured by the Liens created by the Security Documents to the extent set forth in Section 2.14(a).
“Lender Parties” shall mean, collectively, the Lenders, the Lender Rate Contract Counterparties, the Lender Bank Product Providers and the Administrative Agent.
“Lender Rate Contract(s)” shall mean one or more Rate Contracts between a Borrower or the Borrowers and one or more Lender Rate Contract Counterparties with respect to the Indebtedness evidenced by this Agreement, on terms acceptable to such Borrower or the Borrowers and such Lender Rate Contract Counterparty that is a party to such Rate Contract. Each Lender Rate Contract shall be secured by the Liens created by the Security Documents to the extent set forth in Section 2.14(a).
“Lender Rate Contract Counterparty” shall mean any Lender or Affiliate of a Lender which enters into a Lender Rate Contract.
-26-
4147-6459-6034
“Lenders” shall have the meaning given to that term in clause (2) of the introductory paragraph hereof and includes the L/C Issuer and the Swing Line Lender (unless the context otherwise requires).
“Letter of Credit” shall mean any letter of credit issued hereunder. A Letter of Credit may be a Commercial Letter of Credit or a Standby Letter of Credit.
“Letter of Credit Application” shall mean an application and agreement (including any master letter of credit agreement) for the issuance or amendment of a letter of credit in the form from time to time in use by the L/C Issuer.
“Letter of Credit Expiration Date” shall mean the day that is thirty days prior to the Maturity Date (or, if such day is not a Business Day, the next preceding Business Day).
“Letter of Credit Sublimit” shall mean an amount equal to the lesser of (a) $5,000,000 and (b) the Total Revolving Loan Commitment. The Letter of Credit Sublimit is part of, and not in addition to, the Total Revolving Loan Commitment.
“Leverage Financial Performance Covenant” shall have the meaning given to that term in Section 6.03.
“Licenses” shall mean, collectively, any and all licenses (including provisional licenses), certificates of need, accreditations, permits, franchises, rights to conduct business, approvals (by a Governmental Authority or otherwise), consents, qualifications, operating authority and any other authorizations.
“Lien” shall mean, with respect to any property, any security interest, mortgage, pledge, lien, charge or other encumbrance in, of, or on such property or the income therefrom, including, without limitation, the interest of a vendor or lessor under a conditional sale agreement, Capital Lease or other title retention agreement, or any agreement to provide any of the foregoing, and the filing of any financing statement or similar instrument under the Uniform Commercial Code or comparable law of any jurisdiction.
“Loan” shall mean a Revolving Loan or a Swing Line Loan.
“Loan Account” shall have the meaning given to that term in Section 2.08(a).
“Loan Documents” shall mean and include this Agreement, the Notes, the Guaranty, the Security Documents, the Environmental Indemnity Agreement, each Letter of Credit Application, each Notice of Borrowing, each Notice of Interest Period Selection, each Notice of Conversion, the Fee Letter, the Reaffirmation Agreement and all other documents, instruments and agreements delivered to the Administrative Agent or any Lender pursuant to Section 3.01 or Section 3.02 and all other documents, instruments and agreements delivered by any Loan Party to the Administrative Agent or any Lender in connection with this Agreement or any other Loan Document on or after the date of this Agreement, including, without limitation, any amendments, consents or waivers, as the same may be amended, restated, supplemented or modified from time to time, but excluding all Lender Rate Contracts and all documents related to Lender Bank Products.
-27-
4147-6459-6034
“Loan Parties” shall mean, collectively, the Borrowers and the Guarantors.
“Maintenance Capital Expenditure” shall mean, with respect to any Person and any period, all amounts expended by such Person during such period for the maintenance, repair, restoration or refurbishment of the Capital Assets of such Person computed in accordance with GAAP.
FRB.
“Margin Stock” shall have the meaning given to that term in Regulation U issued by the
“Material Adverse Effect” shall mean any event or circumstance that has or could
reasonably be expected to have a material adverse effect on (a) the business, operations, condition (financial or otherwise), assets or liabilities (whether actual or contingent) of the Loan Parties taken as a whole, (b) the ability of any Borrower to pay or perform the Obligations in accordance with the terms of this Agreement and the other Loan Documents or the ability of the Guarantors, collectively, to pay or perform any portion of their obligations in accordance with the terms of the Guaranty and the other Loan Documents; (c) the rights and remedies of the Administrative Agent or any Lender under this Agreement, the other Loan Documents or any related document, instrument or agreement; (d) the value of the Collateral, the Administrative Agent’s or any Lender’s security interest in the Collateral or the perfection or priority of such security interests; or (e) the validity or enforceability of any of the Loan Documents.
“Material Contract” shall mean (a) the Adjacent Driveway Estoppel, (b) the CC Skybridge Estoppel, (c) the Atlantis - BLILB Estoppel and (d) any other agreement or arrangement to which any Loan Party is a party (other than the Loan Documents) with respect to which breach, termination, nonperformance or failure to renew could reasonably be expected to have a Material Adverse Effect.
“Material Documents” shall mean (i) the Organizational Documents of the Loan Parties and (ii) the Material Contracts.
“Maturity” or maturity” shall mean, with respect to any Loan, interest, fee or other amount payable by the Borrowers under this Agreement or the other Loan Documents, the date such Loan, interest, fee or other amount becomes due, whether upon the stated maturity or due date, upon acceleration or otherwise.
“Maturity Date” shall mean January 1, 2025.
“MGI” shall have the meaning given to that term in clause (1) of the introductory paragraph hereof.
“MGI Deed of Trust” shall mean the Deed of Trust, Assignment of Leases and Rents, Security Agreement and Fixture Filing, dated as of the April 26, 2012, by MGI in favor of Public Trustee of Gilpin County, Colorado, for the benefit of the Administrative Agent.
“Minimum Collateral Amount” shall mean, at any time, (i) with respect to Cash Collateral consisting of cash or deposit account balances, an amount equal to 105% of the Fronting Exposure of the L/C Issuer with respect to Letters of Credit issued and outstanding at
-28-
4147-6459-6034
such time and (ii) otherwise, if Event of Default has occurred and is continuing an amount equal to 105% of the L/C Obligations.
“Monarch Casino Black Hawk” shall mean collectively the real property encumbered by the Black Hawk Deed of Trust and the MGI Deed of Trust, the improvements located thereon and the hotel and casino business and related activities conducted thereon.
“Multiemployer Plan” shall mean any multiemployer plan within the meaning of Section 3(37) of ERISA maintained or contributed to by any Loan Party or any ERISA Affiliate.
“Negative Pledge” shall mean a Contractual Obligation which contains a covenant binding on any Loan Party that prohibits Liens on any of its Property, other than (a) any such covenant contained in a Contractual Obligation granting or relating to a particular Permitted Lien which affects only the Property that is the subject of such Permitted Lien and (b) any such covenant that does not apply to Liens securing the Obligations.
“Net Condemnation Proceeds” shall mean an amount equal to: (a) any cash payments or proceeds received by a Loan Party or the Administrative Agent as a result of any condemnation or other taking or temporary or permanent requisition of any Property of a Loan Party, any interest therein or right appurtenant thereto, or any change of grade affecting such Property, as the result of the exercise of any right of condemnation or eminent domain by a Governmental Authority (including a transfer to a Governmental Authority in lieu or anticipation of a condemnation), minus (b) (i) any actual and reasonable costs incurred by a Loan Party in connection with any such condemnation or taking (including reasonable fees and expenses of counsel), and (ii) provisions for all taxes payable as a result of such condemnation, without regard to the consolidated results of operations of the Loan Parties, taken as a whole.
“Net Income” shall mean with respect to any fiscal period, the net income of the Loan Parties for such period determined on a consolidated basis in accordance with GAAP, consistently applied; provided, that Net Income shall not include any income (or loss) attributable to any net income or (net loss) of any Excluded Subsidiary; provided, further that Net Income shall not include any dividends or distributions received by any Loan Party from any Excluded Subsidiary during such fiscal period other than cash dividends or distributions in an aggregate amount not to exceed the lesser of (x) the net income of such Excluded Subsidiary for such fiscal period and (y) the aggregate amount of cash distributions or dividends made by such Excluded Subsidiary to any Loan Party at a time when the Net Investment for such Excluded Subsidiary was equal to or less than zero.
“Net Insurance Proceeds” shall mean an amount equal to: (a) any cash payments or proceeds received by a Loan Party or the Administrative Agent under any key man life insurance policy or any casualty policy in respect of a covered loss thereunder with respect to any property, minus (b) (i) any actual and reasonable costs incurred by a Loan Party in connection with the adjustment or settlement of any claims of a Loan Party in respect thereof (including reasonable fees and expenses of counsel) and (ii) provisions for all taxes payable as a result of such event without regard to the consolidated results of operations of Loan Parties, taken as a whole.
-29-
4147-6459-6034
“Net Investment” shall mean, at any time with respect to any Excluded Subsidiary, an amount equal to (a) the aggregate amount of Investments made by the Loan Parties in such Excluded Subsidiary since the First Restatement Effective Date minus (b) the aggregate amount of cash dividends or distributions received by the Loan Parties from such Excluded Subsidiary since the First Restatement Effective Date.
“Net Proceeds” shall mean:
(iii) income taxes reasonably estimated to be payable by such Person as a result of such sale, and
(iv) the amount of any Indebtedness (other than the Obligations) which is secured by such asset and is required to be repaid or prepaid by such Person as a result of such sale; and
“New Lender” shall have the meaning given to that term in Section 2.01(b)(ii).
“Non-Consenting Lender” shall mean any Lender that does not approve any consent, waiver or amendment that (i) requires the approval of all affected Lenders in accordance with the terms of Section 8.04 and (ii) has been approved by the Required Lenders.
“Non-Defaulting Lender” shall mean, at any time, a Lender that is not a Defaulting Lender at such time.
“Nonrenewal Notice Date” shall have the meaning given to that term in Section 2.02(b)(iii).
“Non-Wholly-Owned Subsidiary” shall mean a direct or indirect Subsidiary of Parent that is not a Wholly-Owned Subsidiary.
“Note” shall mean a Revolving Loan Note or a Swing Loan Note.
-30-
4147-6459-6034
“Notice of Borrowing” shall mean a Notice of Loan Borrowing or a Notice of Swing Loan Borrowing.
“Notice of Conversion” shall have the meaning given to that term in Section 2.01(e). “Notice of Interest Period Selection” shall have the meaning given to that term in
Section 2.01(f)(ii).
“Notice of Loan Borrowing” shall have the meaning given to that term in Section 2.01(c). “Notice of Swing Loan Borrowing” shall mean a notice of a Swing Loan Borrowing
pursuant to Section 2.03(b), which, if in writing, shall be substantially in the form of Exhibit D.
“Obligations” shall mean and include (a) all loans, advances, debts, liabilities and obligations, howsoever arising, owed or owing by one or more of the Borrowers of every kind and description (whether or not evidenced by any note or instrument and whether or not for the payment of money), direct or indirect, absolute or contingent, due or to become due, now existing or hereafter arising pursuant to the terms of this Agreement or any of the other Loan Documents, including without limitation all interest (including interest that accrues after the commencement of any bankruptcy or other insolvency proceeding by or against one or more of the Borrowers, whether or not allowed or allowable), fees, charges, expenses, attorneys’ fees and accountants’ fees chargeable to and payable by the Borrowers hereunder and thereunder and
(b) any and all obligations, howsoever arising, owed or owing by a Borrower to any Lender Party under or in connection with any Lender Rate Contract or Lender Bank Product (provided that if any such Lender Party ceases to be a Lender or an Affiliate of a Lender hereunder, such obligations under this clause (b) shall be limited to those that relate to any Lender Rate Contract entered into or any Lender Bank Product extended or provided, as applicable, prior to the date such party ceased to be a Lender or an Affiliate of a Lender); provided, further that “Obligations” shall exclude all Excluded Swap Obligations.
“Organizational Documents” shall mean, with respect to any Person, collectively,
(a) such Person’s articles or certificate of incorporation, articles or certificate of organization, certificate of limited partnership, certificate of formation, or comparable documents filed or recorded with the applicable Governmental Authority of such Person’s jurisdiction of formation and (b) such Person’s, bylaws, limited liability company agreement, partnership agreement or other comparable organizational or governing documents.
“Other Connection Taxes” shall mean, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).
“Other Taxes” shall mean all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are
-31-
4147-6459-6034
Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 2.15(b)).
“Parent” shall have the meaning given to such term in clause (1) of the introductory paragraph hereof.
“Participant” shall have the meaning given to that term in Section 8.05(b).
“Participant Register” shall mean a register maintained by the Administrative Agent at its address referred to in Section 8.01 on which the participations and the related commitments and Loans (and each repayment with respect to the principal amount thereof) of all Participants that exercise the right of setoff and offset described in Section 8.05(b) are recorded.
“Participation Seller” shall have the meaning given to that term in Section 8.05(h). “Patriot Act” shall mean the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56
(commonly known as the USA Patriot Act).
“Payment Recipient” has the meaning assigned thereto in Section 7.13(a). “PBGC” shall mean the Pension Benefit Guaranty Corporation.
“PCL Litigation” shall mean litigation between MGI, Parent and Black Hawk, on the one side, and PCL Construction Services, Inc., on the other side, as described in the complaint filed by PCL Construction Services, Inc. on August 30, 2019 in state district court in Denver, CO (Case Number 2019CV33368).
“PCL Litigation Liens” shall mean any mechanic’s Lien filed in connection with the PCL Litigation.
“Pedestrian Crossing” shall mean the elevated pedestrian crossing which is constructed between the Atlantis Hotel/Casino Property and the V/P Property which includes, among other things, a restaurant, bar, gaming space and other public areas.
“Pedestrian Crossing Air Space” shall mean that portion of the airspace between the Atlantis Hotel/Casino Property and the V/P Property within which the Pedestrian Crossing is constructed.
“Pedestrian Crossing Air Space License” shall mean that certain Application and Permit for Occupancy of Nevada Department of Transportation Right of Way, which was issued to Golden Road by the State of Nevada Department of Transportation, under Permit Number 2-28- 97, for the purpose of authorizing Golden Road’s construction and use of the Pedestrian Crossing within the Pedestrian Crossing Air Space.
“Pension Plan” shall mean any “employee pension benefit plan” (as such term is defined in Section 3(2) of ERISA), other than a Multiemployer Plan and a Foreign Plan, that is subject to
-32-
4147-6459-6034
Title IV of ERISA and is sponsored or maintained by a Loan Party or any ERISA Affiliate or to which a Loan Party or any ERISA Affiliate contributes or has an obligation to contribute.
“Permitted Indebtedness” shall have the meaning given to that term in Section 5.02(a). “Permitted Liens” shall have the meaning given to that term in Section 5.02(b).
“Person” shall mean and include an individual, a partnership, a corporation (including a business trust), a joint stock company, an unincorporated association, a limited liability company, a joint venture, a trust or other entity or a Governmental Authority.
“Platform” shall have the meaning set forth in Section 8.01(b).
“Pledged Intercompany Notes” shall mean original demand promissory notes in favor of one or more of the Borrowers and the Guarantors evidencing intercompany advances pledged to the Administrative Agent pursuant to the Security Agreement.
“Pricing Grid” shall mean,
Pricing Grid | ||||
Tier | Total Leverage Ratio | Applicable Margin for SOFR Loans | Applicable Margin for Base Rate Loans | Commitment Fee Percentage |
I | > 1.75 but < 2.50 | 1.50% | 0.50% | 0.225% |
II | > 1.00 but < 1.75 | 1.25% | 0.25% | 0.200% |
III | < 1.00 | 1.00% | 0.00% | 0.175% |
Any increase or decrease in the Applicable Margin and Commitment Fee Percentage resulting from a change in the Total Leverage Ratio shall become effective as of the first day of the third calendar month following the end of the fiscal quarter for which the Administrative Agent receives a Compliance Certificate indicating the then current Total Leverage Ratio and applicable Tier level; provided, however, that if no Compliance Certificate is delivered when due in accordance with such Section, then Tier I shall apply as of the date of the failure to deliver such Compliance Certificate until such date as the Borrowers deliver such Compliance Certificate in form and substance acceptable to the Administrative Agent and thereafter the Applicable Margin and Commitment Fee Percentage shall be based on the Total Leverage Ratio indicated on such Compliance Certificate until such time as the Applicable Margin and Commitment Fee Percentage are further adjusted as set forth in this definition. Notwithstanding anything to the contrary herein, the Applicable Margin and Commitment Fee Percentage in effect as of the Fifth Restatement Effective Date shall be set at Tier III until the first adjustment to occur thereafter in accordance with this definition. If the Total Leverage Ratio reported in any Compliance Certificate shall be determined to have been incorrectly reported and if correctly reported would have resulted in a higher Applicable Margin or Commitment Fee Percentage, then the Applicable Margin or Commitment Fee Percentage, as applicable, shall be retroactively adjusted to reflect the higher rate that would have been applicable had the Total Leverage Ratio
-33-
4147-6459-6034
been correctly reported in such Compliance Certificate and the additional amounts resulting therefrom shall be due and payable upon demand from the Administrative Agent or any Lender or, after the occurrence of an actual or deemed entry of an order for relief with respect to any Borrower under any Debtor Relief Laws, automatically and without further action by the Administrative Agent or any Lender (the Borrowers’ obligations to pay such additional amounts shall survive the payment and performance of all other Obligations and the termination of this Agreement). If the Total Leverage Ratio reported in any Compliance Certificate shall be determined to have been incorrectly reported and if correctly reported would have resulted in a lower Applicable Margin or Commitment Fee Percentage, then the Applicable Margin or Commitment Fee Percentage, as applicable, shall be retroactively adjusted to reflect the lower rate that would have been applicable had the Total Leverage Ratio been correctly reported in such Compliance Certificate and the adjusted amounts resulting therefrom shall be credited against future payments of interest and Commitment Fees owing by the Borrowers to the Lenders.
“Prime Rate” shall mean, at any time, the rate of interest per annum publicly announced from time to time by the Administrative Agent as its prime rate. Each change in the Prime Rate shall be effective as of the opening of business on the day such change in such prime rate occurs. The parties hereto acknowledge that the rate announced publicly by the Administrative Agent as its prime rate is an index or base rate and shall not necessarily be its lowest or best rate charged to its customers or other banks.
“PTE” shall mean a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.
“Public Lender” shall have the meaning given to that term in Section 5.01(a).
“Rate Contract” shall mean any agreement with respect to any swap, cap, collar, hedge, forward, future or derivative transaction or option or similar agreement involving, or settled by reference to, one or more rates, currencies, commodities, equity or debt instruments or securities, or economic, financial or pricing indices or measures of economic, financial or pricing risk or value or any similar transaction or any combination of these transactions.
“Reaffirmation Agreement” shall mean the Reaffirmation of Guaranty and Security Agreement, dated as of the Fifth Restatement Effective Date, executed by the Loan Parties in favor of the Administrative Agent whereby the Loan Parties have given certain reaffirmations regarding the Guaranty and the Security Documents.
“Real Property Security Documents” shall mean (a) the Atlantis Deed of Trust, (b) the Black Hawk Deed of Trust, (c) the MGI Deed of Trust, (d) the Inter-Mountain Deed of Trust,
(e) the Assignment of Entitlements and (f) each deed of trust or mortgage delivered from time to time in accordance with Section 5.01(l) or otherwise in connection with the Loan Documents.
“Receipt Date” shall have the meaning given to that term in Section 2.06(c)(vi). “Reduction Notice” shall have the meaning given to that term in Section 2.04(a). “Register” shall have the meaning given to that term in Section 8.05(d).
-34-
4147-6459-6034
“Relevant Governmental Body” shall mean the FRB or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the FRB or the Federal Reserve Bank of New York, or any successor thereto.
“Relevant Sale” shall have the meaning given to that term in Section 2.06(c)(iii). “Reportable Event” shall mean any of the events set forth in Section 4043(c) of ERISA
and applicable regulations thereunder (other than events for which the thirty (30) day notice period has been waived).
“Required Lenders” shall mean, at any time, the Lenders whose Revolving Proportionate Shares then exceed fifty percent (50%) of the total Revolving Proportionate Shares of all Lenders; provided that at any time any Lender is a Defaulting Lender, such Defaulting Lender shall be excluded in determining “Required Lenders”, and “Required Lenders” shall mean at such time Non-Defaulting Lenders having total Revolving Proportionate Shares exceeding fifty percent (50%) of the total Revolving Proportionate Shares of all Non-Defaulting Lenders; provided that, in no event shall the Required Lenders consist of fewer than two Non-Defaulting Lenders at any time at which there shall be at least two Non-Defaulting Lenders who are Lenders party to this Agreement, and for purposes of the foregoing, Lenders that are Affiliates of one another shall be treated as a single Lender.
“Requirement of Law” applicable to any Person shall mean (a) such Person’s Organizational Documents, (b) any Governmental Rule applicable to such Person, (c) any Governmental Authorization granted by or obtained from any Governmental Authority or under any Governmental Rule for the benefit of such Person or (d) any judgment, decision, award, decree, writ or determination of any Governmental Authority or arbitrator, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.
“Resolution Authority” shall mean an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
“Responsible Officer” shall mean, with respect to a Loan Party, the chief executive officer, president, chief operating officer, director, chief financial officer, vice president of finance or treasurer of such Loan Party. Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party and any request or other communication conveyed telephonically or otherwise by a Responsible Officer of a Loan Party (or any Person reasonably believed by the Administrative Agent to be a Responsible Officer of a Loan Party) shall be conclusively presumed to have been authorized by all necessary corporate, company, partnership and/or other action on the part of such Loan Party and such Responsible Officer (or such Person reasonably believed by the Administrative Agent to be a Responsible Officer) shall be conclusively presumed to have acted on behalf of such Loan Party.
“Revolving Loan” shall have the meaning given to that term in Section 2.01(a). “Revolving Loan Borrowing” shall mean a borrowing by the Borrowers consisting of the
Revolving Loans made by each of the Lenders to the Borrowers on the same date and of the same Type pursuant to a single Notice of Loan Borrowing for Revolving Loans.
-35-
4147-6459-6034
“Revolving Loan Commitment” shall mean, with respect to each Lender, the Dollar amount set forth under the caption “Revolving Loan Commitment” opposite such Xxxxxx’s name on Part A of Schedule I, or, if changed in accordance with this Agreement, such Dollar amount as may be set forth for such Lender in the Register.
“Revolving Loan Note” shall have the meaning given to that term in Section 2.08(b). “Revolving Proportionate Share” shall mean:
The initial Revolving Proportionate Share of each Lender is set forth under the caption “Revolving Proportionate Share” opposite such Xxxxxx’s name on Schedule I.
“RSCVA” shall mean the Xxxx Xxxxxx Convention and Visitors Authority, a political subdivision of the County of Washoe, State of Nevada.
“Sale and Leaseback” shall mean, with respect to any Person, the sale of Property owned by such Person (the “Seller”) to another Person (the “Buyer”), together with the substantially concurrent leasing of such Property by the Buyer to the Seller.
“Sanctioned Country” shall mean at any time, a country, region or territory which is itself (or whose government is) the subject or target of any Sanctions (including, as of the Fifth Restatement Effective Date, Cuba, Iran, North Korea, Syria and Crimea).
“Sanctioned Person” shall mean, at any time, (a) any Person listed in any Sanctions- related list of designated Persons maintained by OFAC (including OFAC’s Specially Designated Nationals and Blocked Persons List and OFAC’s Consolidated Non-SDN List), the U.S. Department of State, the United Nations Security Council, the European Union, any European member state, Her Majesty’s Treasury, or other relevant sanctions authority, (b) any Person operating, organized or resident in a Sanctioned Country, (c) any Person owned or controlled by, or acting or purporting to act for or on behalf of, directly or indirectly, any such Person or Persons described in clauses (a) and (b), including a Person that is deemed by OFAC to be a Sanctions target based on the ownership of such legal entity by Sanctioned Person(s) or (d) any Person otherwise a target of Sanctions, including vessels and aircraft that are designated under any Sanctions program.
-36-
4147-6459-6034
“Sanctions” shall mean any and all economic or financial sanctions, sectoral sanctions, secondary sanctions, trade embargoes and restrictions and anti-terrorism laws, including but not limited to those imposed, administered or enforced from time to time by the U.S. government (including those administered by OFAC or the U.S. Department of State), the United Nations Security Council, the European Union, any European member state, Her Majesty’s Treasury, or other relevant sanctions authority in any jurisdiction in which (a) the Borrowers or any of its Subsidiaries or Affiliates is located or conducts business, (b) in which any of the proceeds of the Loans will be used, or (c) from which repayment of the Loans will be derived.
“SBA” shall mean the Small Business Act of 1953, as in effect from time to time. “Security Agreement” shall mean that certain Amended and Restated Security
Agreement, dated as of July 20, 2016, among each Loan Party party thereto and the Administrative Agent.
“Security Documents” shall mean and include the Security Agreement, each Control Agreement, each Real Property Security Document, each pledge agreement or security agreement delivered in accordance with Section 5.01(j) and all other instruments, agreements, certificates, opinions and documents (including Uniform Commercial Code financing statements and fixture filings) delivered to the Administrative Agent or any Lender in connection with any Collateral or to secure the Obligations or the obligation of a Guarantor under the Loan Documents.
“SOFR” shall mean a rate equal to the secured overnight financing rate as administered by the SOFR Administrator.
“SOFR Administrator” shall mean the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate).
“SOFR Loan” shall mean any Revolving Loan bearing interest at a rate based on Adjusted Term SOFR as provided in Section 2.01(d)(ii).
“Solvent” shall mean, with respect to any Person on any date, that on such date (a) the fair value of the property of such Person is greater than the fair value of the liabilities (including contingent, subordinated, matured and unliquidated liabilities) of such Person, (b) the present fair saleable value of the assets of such Person is greater than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured, (c) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay as such debts and liabilities mature and (d) such Person is not engaged in or about to engage in business or transactions for which such Person’s property would constitute an unreasonably small capital.
“Spaceleases” shall mean the executed leases and concession agreements pertaining to the Atlantis Casino Resort Spa or any portion thereof where Golden Road is the lessor.
“Special Dividend” shall mean cash distributions to the equity holders of the Parent made no later than the first anniversary of the Fifth Restatement Effective Date, in an aggregate amount not to exceed $160,000,000.
-37-
4147-6459-6034
“Standby Letter of Credit” shall mean any of the standby letters of credit issued by the L/C Issuer under this Agreement, either as originally issued or as the same may be supplemented, modified, amended, extended, restated or supplanted.
“Subsidiary” of any Person shall mean (a) any corporation of which more than 50% of the issued and outstanding Equity Securities having ordinary voting power to elect a majority of the board of directors of such corporation (irrespective of whether at the time capital stock of any other class or classes of such corporation shall or might have voting power upon the occurrence of any contingency) is at the time directly or indirectly owned or controlled by such Person, by such Person and one or more of its other Subsidiaries or by one or more of such Person’s other Subsidiaries, (b) any partnership, joint venture, limited liability company or other association of which more than 50% of the Equity Securities having the power to vote, direct or control the management of such partnership, joint venture or other association is at the time owned and controlled by such Person, by such Person and one or more of the other Subsidiaries or by one or more of such Person’s other Subsidiaries or (c) any other Person included in the Financial Statements of such Person on a consolidated basis. Unless otherwise indicated in this Agreement, “Subsidiary” shall mean a Subsidiary of Parent.
“Surety Instruments” shall mean all letters of credit (including standby and commercial), banker’s acceptances, bank guaranties, shipside bonds, surety bonds and similar instruments.
“Swap Obligation” shall mean with respect to any Guarantor, any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of section 1a(47) of the Commodity Exchange Act.
“Swing Line” shall mean the revolving credit facility made available by the Swing Line Lender pursuant to Section 2.03.
“Swing Line Lender” shall mean Xxxxx Fargo in its capacity as provider of Swing Line Loans, or any successor swing line lender hereunder.
“Swing Line Loan” shall mean the meaning specified in Section 2.03(a).
“Swing Line Risk Participation” shall mean, with respect to any Lender and any Swing Line Loan as of any date of determination, the sum of (a) such Xxxxxx’s Revolving Proportionate Share of the Effective Amount of such Swing Line Loan outstanding at such time plus (b) the aggregate amount of all Defaulting Lenders’ Revolving Proportionate Shares of the Effective Amount of such Swing Line Loan outstanding at such time that have been reallocated to such Lender pursuant to Section 2.16(a)(iv).
“Swing Line Settlement Date” shall mean the fifteenth day of each month and the last Business Day of each month.
“Swing Line Sublimit” shall mean an amount equal to the lesser of (a) $10,000,000 and
(b) the Total Revolving Loan Commitment.The Swing Line Sublimit is part of, and not in addition to, the Total Revolving Loan Commitment.
“Swing Loan Borrowing” shall mean a borrowing of a Swing Line Loan.
-38-
4147-6459-6034
“Swing Loan Note” shall have the meaning given to that term in Section 2.08(c).
“Taxes” shall mean all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
“Termination Value” shall mean, in respect of any one or more Rate Contracts, after taking into account the effect of any legally enforceable netting agreement relating to such Rate Contracts, (a) for any date on or after the date such Rate Contracts have been closed out and termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior to the date referenced in clause (a) the amount(s) determined as the mark-to- market value(s) for such Rate Contracts, as determined by the Administrative Agent based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Rate Contracts which may include any Lender.
“Term SOFR” shall mean:
U.S. Government Securities Business Day is not more than three (3) U.S. Government Securities Business Days prior to such Periodic Term SOFR Determination Day, and
-39-
4147-6459-6034
provided, further, that if Term SOFR determined as provided above (including pursuant to the proviso under clause (a) or clause (b) above) shall ever be less than the Floor, then Term SOFR shall be deemed to be the Floor.
“Term SOFR Adjustment” shall mean a percentage equal to 0.10% per annum.
“Term SOFR Administrator” shall mean CME Group Benchmark Administration Limited (CBA) (or a successor administrator of the Term SOFR Reference Rate selected by the Administrative Agent in its reasonable discretion).
“Term SOFR Reference Rate” shall mean the forward-looking term rate based on SOFR published by the Term SOFR Administrator on its website (or other commercially available source providing such quotations as may be selected by the Administrative Agent from time to time).
“Third Amendment Effective Date” shall mean April 30, 2021.
“Title Company” shall mean (a) First American Title Insurance Company and (b) each other title company that issues a title policy to the Administrative Agent in connection with real property Collateral.
“Total Funded Debt” shall mean all Indebtedness of the Loan Parties (determined on a consolidated basis without duplication in accordance with GAAP).
“Total Leverage Ratio” shall mean, at any time, the ratio of (a) Total Funded Debt at such time, to (b) EBITDA for the four consecutive fiscal quarter period most recently ended for which Financial Statements are available.
“Total Lender Risk Participation” shall mean, with respect to any Lender as of any date of determination, the sum of (a) such Xxxxxx’s L/C Risk Participations in all Letters of Credit outstanding at such time plus (b) such Xxxxxx’s Swing Line Risk Participations in all Swing Line Loans outstanding at such time.
“Total Revolving Loan Commitment” shall mean, as of the Fifth Restatement Effective Date, One Hundred Million Dollars ($100,000,000) or, when such amount is reduced pursuant to Section 2.04(a) or (b), the amount to which so reduced and in effect at such time or, if such amount is increased pursuant to Section 2.01(b), the amount to which it is increased and in effect at such time.
“Type” shall mean, with respect to any Loan or Borrowing at any time, the classification of such Loan or Borrowing by the type of interest rate it then bears, whether an interest rate based upon the Base Rate or the Adjusted Term SOFR.
“UCP” shall have the meaning given to that term in Section 2.02(h).
“UK Financial Institution” shall mean any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook
-40-
4147-6459-6034
(as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.
“UK Resolution Authority” shall mean the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.
“Unadjusted Benchmark Replacement” shall mean the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment.
“Unfunded Pension Liability” shall mean the excess of a Pension Plan’s benefit liabilities under Section 4001(a)(16) of ERISA, over the current value of that Pension Plan’s assets, determined in accordance with the assumptions used for funding the Pension Plan pursuant to Section 412 of the Code for the applicable plan year.
“United States” and “U.S.” shall mean the United States of America. “Unreimbursed Amount” shall have the meaning set forth in Section 2.02(c)(i).
“Unused Revolving Commitment” shall mean, at any time (a) the Total Revolving Loan Commitment at such time minus (b) the sum of the Effective Amount of all Revolving Loans and the Effective Amount of all L/C Obligations outstanding at such time. For the avoidance of doubt, Swing Line Loans shall not be counted as Revolving Loans for purposes of determining the amount of Unused Revolving Commitment.
“U.S. Government Securities Business Day” shall mean any day except for (a) a Saturday, (b) a Sunday or (c) a day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities; provided, that for purposes of notice requirements in Sections 2.01(c), 2.01(e), 2.01(f) and 2.06(b), in each case, such day is also a Business Day.
“U.S. Person” shall mean any Person that is a “United States Person” as defined in Section 7701(a)(30) of the Code.
“U.S. Tax Compliance Certificate” shall have the meaning specified in Section 2.12(g)(ii).
“Village Shopping Center” shall mean the shopping center known as the Sierra Marketplace Shopping Center, located at the southeast corner of Virginia Street and Xxxxx Xxxx, Reno, Nevada, that is owned by BLILP, a portion of which is the subject of the Adjacent Driveway Lease.
“V/P Property” shall mean the real property more particularly described on that certain schedule marked Schedule B, affixed hereto and by this reference incorporated herein and made a part hereof.
-41-
4147-6459-6034
“Xxxxx Fargo” shall have the meaning given to that term in clause (3) of the introductory paragraph hereof.
“Wholly-Owned Subsidiary” shall mean any Person in which 100% of the Equity Securities of each class having ordinary voting power, and 100% of the Equity Securities of every other class, in each case, at the time as of which any determination is being made, is owned, beneficially and of record, by Parent, or by one or more Wholly-Owned Subsidiaries of Parent, or both.
“Withholding Agent” shall mean any Loan Party and the Administrative Agent.
“Write-Down and Conversion Powers” shall mean, (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.
-42-
4147-6459-6034
| 1.10. | References. |
-43-
4147-6459-6034
thereby, and (iii) shall mean such document, instrument or agreement, or replacement or predecessor thereto, as amended, restated, modified and supplemented from time to time and in effect at any given time if such amendment, restatement, modification or supplement is permitted hereby or thereby.
-44-
4147-6459-6034
submission of, calculation of or any other matter related to the Term SOFR Reference Rate, Adjusted Term SOFR or Term SOFR, or any component definition thereof or rates referred to in the definition thereof, or with respect to any alternative, successor or replacement rate thereto (including any Benchmark Replacement), including whether the composition or characteristics of any such alternative, successor or replacement rate (including any Benchmark Replacement), as it may or may not be adjusted pursuant to Section 2.11(c), will be similar to, or produce the same value or economic equivalence of, or have the same volume or liquidity as, the Term SOFR Reference Rate, Adjusted Term SOFR, Term SOFR or any other Benchmark prior to its discontinuance or unavailability, or (b) the effect, implementation or composition of any Conforming Changes. The Administrative Agent and its Affiliates or other related entities may engage in transactions that affect the calculation of the Term SOFR Reference Rate, Adjusted Term SOFR, Term SOFR, any alternative, successor or replacement rate (including any Benchmark Replacement) or any relevant adjustments thereto and such transactions may be adverse to the Borrower. The Administrative Agent may select information sources or services in its reasonable discretion to ascertain the Term SOFR Reference Rate, Adjusted Term SOFR or Term SOFR, or any other Benchmark, any component definition thereof or rates referred to in the definition thereof, in each case pursuant to the terms of this Agreement, and shall have no liability to the Borrower, any Lender or any other person or entity for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or calculation of any such rate (or component thereof) provided by any such information source or service.
-45-
4147-6459-6034
| 2.01. | Loan Facility. |
$1,000,000 in excess thereof;
-46-
4147-6459-6034
documents related to real property Collateral, title insurance endorsements, new or amended Notes, any related fee letters, documents evidencing the increased Revolving Loan Commitment held by any applicable Lender, a compliance certificate evidencing pro forma compliance with the financial covenants, any joinder agreements related to a New Lender, reaffirmations of the Guaranty, resolutions regarding the increase in the Total Revolving Loan Commitment and related actions taken by the Borrowers and the Guarantors, certified as true and correct by a Responsible Officer and legal opinions, all in form and substance reasonably satisfactory to the Administrative Agent).
Any request under this Section 2.01(b) shall be submitted by the Borrowers to the Administrative Agent (which shall promptly forward copies to the Lenders), specify the proposed effective date and amount of such increase and be accompanied by a certificate of a Responsible Officer stating that no Event of Default exists or will occur as a result of such increase. If any fees are to be paid or offered in connection with such increase, the Administrative Agent (with the consent of Borrowers) may also specify any fees offered to those Lenders (the “Increasing Lenders”) which agree to increase the amount of their respective Revolving Loan Commitment, which fees may be variable based upon the amount by which any such Lender is willing to increase the amount of its Revolving Loan Commitment; no Lender which is not an Increasing Lender shall be entitled to receive any such fees. No Lender shall have any obligation, express or implied, to increase the amount of its Revolving Loan Commitment. Only the consent of each Increasing Lender shall be required for an increase in the amount of the Total Revolving Loan Commitment pursuant to this Section 2.01(b)(i). No Lender which elects not to increase the amount of its Revolving Loan Commitment may be replaced in respect of its existing Revolving Loan Commitment as a result thereof without such Xxxxxx’s written consent.
-47-
4147-6459-6034
instrument of joinder, in each case prepared by the Administrative Agent and otherwise in form and substance reasonably satisfactory to the Administrative Agent. Each New Lender shall provide the documentation required by Section 2.12(g).
(ii) the amount offered by the New Lenders with respect to the Total Revolving Loan Commitment, in either case as adjusted by the Borrowers and the Administrative Agent pursuant to the last sentence of Section 2.01(b)(ii).
-48-
4147-6459-6034
records accordingly to reflect the payment of the Acquired Portion. The payments to be made in respect of the Acquired Portion shall be made by the applicable Increasing Lenders and New Lenders to the Administrative Agent in Dollars in immediately available funds at or before 11:00 a.m. on the Increase Effective Date, such payments to be made by the applicable Increasing Lenders and New Lenders pro rata based upon the respective increases in the amount of the Revolving Loan Commitments held by such Lenders on the Increase Effective Date.
The Borrowers shall give each Notice of Loan Borrowing for Revolving Loans to the Administrative Agent not later than (1) 11:00 a.m. at least three (3) U.S. Government Securities Business Days before the date of the requested Revolving Loan Borrowing in the case of a Revolving Loan Borrowing consisting of SOFR Loans and (2) 11:00 a.m. at least one
(1) Business Day before the date of the requested Revolving Loan Borrowing in the case of a
-49-
4147-6459-6034
Revolving Loan Borrowing consisting of Base Rate Loans.
Each Notice of Loan Borrowing shall be delivered by first-class mail or facsimile or by e- mail containing a PDF of such signed and completed Notice of Loan Borrowing to the Administrative Agent at the office or facsimile number or e-mail address, as the case may be, and during the hours specified in Section 8.01; provided, however, that, if requested by the Administrative Agent, the Borrowers shall promptly deliver to the Administrative Agent the original of any Notice of Loan Borrowing initially delivered by facsimile or e-mail. The Administrative Agent shall promptly notify each Lender of the contents of each Notice of Loan Borrowing for Revolving Loans and of the amount and Type of (and, if applicable, the Interest Period for) the Revolving Loan to be made by such Lender as part of the requested Revolving Loan Borrowing.
The number of Interest Periods for SOFR Loans shall not exceed eight (8) in the aggregate at any time.
-50-
4147-6459-6034
Day.
The Borrowers shall give each Notice of Conversion to the Administrative Agent not later than 11:00 a.m. at least three (3) U.S. Government Securities Business Days before the date of the requested conversion of a Base Rate Loan into a SOFR Loan or at least one (1) Business Day before the date of the requested conversion of a SOFR Loan into a Base Rate Loan. Each Notice of Conversion shall be delivered by first-class mail or facsimile or by e-mail containing a PDF of such signed and completed Notice of Conversion to the Administrative Agent at the office or to the facsimile number or e-mail address and during the hours specified in Section 8.01; provided, however, that, if requested by the Administrative Agent, the Borrowers shall promptly deliver to the Administrative Agent the original of any Notice of Conversion initially delivered by facsimile or e-mail. The Administrative Agent shall promptly notify each Lender of the contents of each Notice of Conversion relating to Revolving Loans.
-51-
4147-6459-6034
facsimile or e-mail), not later than 11:00 a.m. at least three U.S. Government Securities (3) Business Days prior to the last day of each Interest Period for a Revolving Loan Borrowing consisting of SOFR Loans; provided, however, that no SOFR Loan shall be continued for an additional Interest Period after the occurrence and during the continuance of an Event of Default. Each Notice of Interest Period Selection shall be given by first-class mail or facsimile or by e- mail containing a PDF of such signed and completed Notice of Interest Period Selection to the Administrative Agent to the office or the facsimile number or e- mail address and during the hours specified in Section 8.01; provided, however, that, if requested by the Administrative Agent, the Borrowers shall promptly deliver to the Administrative Agent the original of any Notice of Interest Period Selection initially delivered by facsimile or e-mail. If the Borrowers shall fail to notify the Administrative Agent of the next Interest Period for a Revolving Loan Borrowing consisting of SOFR Loans in accordance with this Section 2.01(f), such SOFR Loan(s) shall automatically convert on the last day of the current Interest Period therefor to SOFR Loan(s) with the same Interest Period as the SOFR Loan(s) to be converted. If an Event of Default has occurred and is continuing on the last date of an Interest Period for any SOFR Loan, such SOFR Loan(s) shall automatically convert on the last day of the current Interest Period therefor to Base Rate Loan(s) in Dollars. The Administrative Agent shall promptly notify each Lender of the contents of each Notice of Interest Period Selection for the Revolving Loans.
The Borrowers shall also make the mandatory prepayments required by Section 2.06(c).
| 2.02. | Letters of Credit. |
-52-
4147-6459-6034
thereupon acquire a participation interest therein in accordance with its Revolving Proportionate Share and the terms of this Section 2.02. The Existing Letters of Credit shall be deemed to have been issued pursuant hereto, and from and after the Fifth Restatement Effective Date shall be subject to and governed by the terms and conditions hereof. On the terms and subject to the conditions set forth herein,
(A) the L/C Issuer (1) shall, from time to time on any Business Day during the period from the Fifth Restatement Effective Date until the Letter of Credit Expiration Date, issue Letters of Credit in Dollars for the account of a Borrower in support of the obligations of such Borrower or any other Loan Party, and to amend or renew Letters of Credit previously issued by it, in accordance with subsection (b) below, and (2) shall honor drafts under the Letters of Credit; and
(B) the Lenders severally agree to participate in Letters of Credit issued for the account of a Borrower in support of the obligations of such Borrower or any other Loan Party; provided that the L/C Issuer shall not be obligated to make any L/C Credit Extension with respect to any Letter of Credit, and no Lender shall be obligated to participate in, any Letter of Credit if as of the date of such L/C Credit Extension, (x) the Effective Amount of all Revolving Loans, Swing Line Loans and L/C Obligations would exceed the Total Revolving Loan Commitment at such time, (y) the aggregate Effective Amount of the Revolving Loans of any Lender, plus such Lender’s Total Lender Risk Participation would exceed such Xxxxxx’s Revolving Proportionate Share of the Total Revolving Loan Commitment, or (z) the Effective Amount of the L/C Obligations would exceed the Letter of Credit Sublimit. Each Letter of Credit shall be in a form acceptable to the L/C Issuer. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrowers’ ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrowers may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed.
-53-
4147-6459-6034
-54-
4147-6459-6034
-55-
4147-6459-6034
(which date shall be a Business Day); (B) the amount thereof; (C) the expiry date thereof; (D) the name and address of the beneficiary thereof; (E) the documents to be presented by such beneficiary in case of any drawing thereunder; (F) the full text of any certificate to be presented by such beneficiary in case of any drawing thereunder; (G) the account party thereunder, and (H) such other matters as the L/C Issuer may require. In the case of a request for an amendment of any outstanding Letter of Credit, such Letter of Credit Application shall specify in form and detail satisfactory to the L/C Issuer (A) the Letter of Credit to be amended; (B) the proposed date of amendment thereof (which date shall be a Business Day); (C) the nature of the proposed amendment; and (D) such other matters as the L/C Issuer may require.
-56-
4147-6459-6034
hereof, or (B) it has received notice (which may be by telephone or in writing) on or before the Business Day immediately preceding the Nonrenewal Notice Date
(1) from the Administrative Agent that the Required Lenders have elected not to permit such renewal or (2) from the Administrative Agent, any Lender or the Borrowers that one or more of the applicable conditions specified in Section 3.02 is not then satisfied. Notwithstanding anything to the contrary contained herein, the L/C Issuer shall have no obligation to permit the renewal of any Evergreen Letter of Credit at any time.
| (c) | Drawings and Reimbursements; Funding of Participations. |
-57-
4147-6459-6034
Agent’s Office in an amount equal to its L/C Risk Participation with respect to the Unreimbursed Amount not later than 1:00 p.m. on the Business Day specified in such notice by the Administrative Agent, whereupon, subject to the provisions of Section 2.02(c)(iii), each Lender that so makes funds available shall be deemed to have made a Base Rate Loan to the Borrowers in such amount. The Administrative Agent shall remit the funds so received to the L/C Issuer.
(A) any set-off, counterclaim, recoupment, defense or other right which such Lender may have against the L/C Issuer, the Borrowers or any other Person for any reason whatsoever; (B) the occurrence or continuance of a Default or Event of Default, or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing. Any such reimbursement shall not relieve or otherwise impair the obligation of the Borrowers to reimburse the L/C Issuer for the amount of any payment made by the L/C Issuer under any Letter of Credit, together with interest as provided herein.
-58-
4147-6459-6034
to the daily Federal Funds Rate. A certificate of the L/C Issuer submitted to any Lender (through the Administrative Agent) with respect to any amounts owing under this clause (vi) shall be conclusive absent manifest error.
-59-
4147-6459-6034
-60-
4147-6459-6034
The Borrowers shall promptly examine a copy of each Letter of Credit and each amendment thereto that is delivered to it and, in the event of any claim of noncompliance with the Borrowers’ instructions or other irregularity, the Borrowers will immediately notify the L/C Issuer. The Borrowers shall be conclusively deemed to have waived any such claim against the L/C Issuer and its correspondents unless such notice is given as aforesaid.
-61-
4147-6459-6034
-62-
4147-6459-6034
issuance of such Letter of Credit and on the Letter of Credit Expiration Date. Each such fee, when due, shall be fully earned and when paid, shall be non-refundable. If there is any change in the Applicable Margin for SOFR Loans during any quarter, the Applicable Margin used for the calculation of the Letter of Credit fee shall be the Applicable Margin for SOFR Loans on each day during such quarter.
| 2.03. | Swing Line. |
-63-
4147-6459-6034
into arrangements satisfactory to the Swing Line Lender with the Borrowers or such Defaulting Lender to eliminate the Swing Line Lender’s Fronting Exposure.
(A) directing the Swing Line Lender not to make such Swing Line Loan as a result of the limitations set forth in the first proviso to the first sentence of Section 2.03(a), or (B) that one or more of the applicable conditions specified in Section 3.02 is not then satisfied, then, subject to the terms and conditions hereof, the Swing Line Lender will, not later than 2:00 p.m., on the borrowing date specified in such Notice of Swing Loan Borrowing, make the amount of its Swing Line Loan available to the Borrowers by crediting the account of the Borrowers on the books of the Swing Line Lender in immediately available funds.
-64-
4147-6459-6034
Xxxx Xxxxxx at the Administrative Agent’s Office not later than 12:00 noon, on the day specified in such Notice of Loan Borrowing for Revolving Loans, whereupon, subject to Section 2.03(c)(ii), each Lender that so makes funds available shall be deemed to have made a Base Rate Loan to the Borrowers in such amount. The Administrative Agent shall remit the funds so received to the Swing Line Lender.
(iii) shall be conclusive absent manifest error.
| (d) | Repayment of Participations. |
-65-
4147-6459-6034
Risk Participation was outstanding and funded) in the same funds as those received by the Swing Line Lender.
| 2.04. | Amount Limitations, Commitment Reductions, Etc. |
(3) Business Days written notice to the Administrative Agent (each a “Reduction Notice”), permanently reduce the Total Revolving Loan Commitment by the amount of
$500,000 or an integral multiple of $50,000 in excess thereof or cancel the Total Revolving Loan Commitment in its entirety; provided, however, that:
Any Reduction Notice shall be irrevocable; provided that any Reduction Notice may state that such notice is conditioned upon the effectiveness of other credit facilities, in which case such
-66-
4147-6459-6034
notice may be revoked by the Borrowers (by written notice to the Administrative Agent on or prior to the specified effective date previously provided in the applicable Reduction Notice) if such condition is not satisfied.
| 2.05. | Fees. |
-67-
4147-6459-6034
ending after the Fifth Restatement Effective Date) and on the Maturity Date (or if the Total Revolving Loan Commitment is cancelled on a date prior to the Maturity Date, on such prior date).
| 2.06. | Prepayments. |
-68-
4147-6459-6034
L/C Obligations. In each case, to the extent possible, such principal payment shall be first applied to prepay Base Rate Loans and then if any funds remain, to prepay SOFR Loans; provided that if an Event of Default has occurred and is continuing at the time any such prepayment is made, the Lenders shall apply such prepayments to such Obligations as the Administrative Agent may determine in its discretion which determination shall be effective as to all Lenders (but for regulatory purposes, the Lenders may apply such payments internally as they shall determine).
(A) prepay the Swing Line Loans to the extent Swing Line Loans in a sufficient amount are then outstanding, (B) then prepay the Revolving Loans to the extent Revolving Loans in a sufficient amount are then outstanding and (C) otherwise, Cash Collateralize the Obligations in an amount equal to the then Effective Amount of the L/C Obligations, in an aggregate principal amount equal to such excess.
(5) Business Days after the completion of each such sale or other disposition which results in such excess or an increase in such excess, prepay (or Cash Collateralize, as applicable) the outstanding Loans and other Obligations in the
-69-
4147-6459-6034
manner set forth in Section 2.06(d), in each case, in an aggregate principal amount equal to one hundred percent (100%) of the Net Proceeds of such excess or increase in such excess. Notwithstanding the foregoing, the Borrowers shall not be required to make a prepayment pursuant to this Section 2.06(c)(iii) with respect to any sale or other disposition (a “Relevant Sale”) if the Borrowers advise the Administrative Agent in writing within four (4) Business Days after the time the Net Proceeds from such Relevant Sale are received that the applicable Loan Party intends to reinvest all or any portion of such Net Proceeds in replacement assets to the extent the acquisition of such replacement assets occurs within 180 days from the date of such Relevant Sale. If, at any time after the occurrence of a Relevant Sale and prior to the acquisition of the related replacement assets, the 180-day period provided in the preceding sentence shall elapse or an Event of Default shall occur, then the Borrowers shall immediately prepay (or Cash Collateralize, as applicable), the outstanding Loans and other Obligations in the amount and in the manner described in the first sentence of this Section 2.06(c)(iii).
-70-
4147-6459-6034
and proceeds will be held by the Administrative Agent and disbursed under procedures established by the Administrative Agent in good faith. If, at any time after the occurrence of a Receipt Date and prior to the completion of the corresponding repair, restoration or replacement, the applicable 180-day period provided in the preceding sentence shall elapse without the completion of the related repair, restoration or replacement, or the Borrowers shall fail to provide and deposit the funds and proceeds required under clause (B) above, or an Event of Default shall occur, then the Borrowers shall immediately prepay (or Cash Collateralize, as applicable) the outstanding Loans and other Obligations in the amount and in the manner described in the first sentence of this Section 2.06(c)(vi). If the Borrowers have provided the written notice contemplated by the prior sentence, then until such Net Insurance Proceeds or Net Condemnation Proceeds are needed to pay for the related repair, restoration or replacement such proceeds shall be held by the Administrative Agent as Collateral in an interest bearing account with the Administrative Agent as directed by the Borrowers. No right to apply proceeds to repair, restoration or replacement shall exist if any such repair, restoration or replacement cannot reasonably be completed prior to 180 days before the Maturity Date.
-71-
4147-6459-6034
| 2.07. | Other Payment Terms. |
-72-
4147-6459-6034
| 2.08. | Loan Accounts; Notes. |
(iii) dated the Fifth Restatement Effective Date or other date acceptable to such Lender and (iv) otherwise appropriately completed. The Borrowers authorize each Lender to record on the schedule annexed to such Xxxxxx’s Revolving Loan Note the date and amount of each Revolving Loan made by such Lender and of each payment or
-73-
4147-6459-6034
prepayment of principal thereon made by the Borrowers, and agrees that all such notations shall be conclusive absent manifest error with respect to the matters noted; provided, however, that any failure by a Lender to make, or any error by any Lender in making, any such notation shall not affect the Borrowers’ Obligations. The Borrowers further authorize each Lender to attach to and make a part of such Xxxxxx’s Revolving Loan Note continuations of the schedule attached thereto as necessary. If, because any Lender designates separate Applicable Lending Offices for Base Rate Loans and SOFR Loans, such Lender requests that separate promissory notes be executed to evidence separately such Revolving Loans, then each such note shall be in the form of Exhibit E, mutatis mutandis to reflect such division, and shall be (w) payable to the order of such Lender, (x) in the amount of such Lender’s Revolving Loan Commitment, (y) dated the Fifth Restatement Effective Date or other date acceptable to such Lender and
(z) otherwise appropriately completed. Such notes shall, collectively, constitute a Revolving Loan Note.
| 2.09. | Loan Funding. |
-74-
4147-6459-6034
may on such date, in reliance upon such assumption, disburse or otherwise credit to the Borrowers a corresponding amount. If any Lender does not make the amount of such Xxxxxx’s Revolving Proportionate Share of any Borrowing available to the Administrative Agent on or prior to the date of such Borrowing, such Lender shall pay to the Administrative Agent, on demand, interest which shall accrue on such amount from the date of such Borrowing until such amount is paid to the Administrative Agent at per annum rates equal to the daily Federal Funds Rate. A certificate of the Administrative Agent submitted to any Lender with respect to any amount owing by such Lender under this Section 2.09(b) shall be conclusive absent manifest error with respect to such amount. If the amount of any Lender’s Revolving Proportionate Share of any Borrowing is not paid to the Administrative Agent by such Lender within three (3) Business Days after the date of such Borrowing, the Borrowers shall repay such amount to the Administrative Agent, on demand, together with interest thereon, for each day from the date such amount was disbursed to the Borrowers until the date such amount is repaid to the Administrative Agent, at the interest rate applicable at the time to the Loans comprising such Borrowing.
| 2.10. | Pro Rata Treatment. |
-75-
4147-6459-6034
there is a Defaulting Lender, each payment of principal on Loans or L/C Advances shall be shared by only the Non-Defaulting Lenders that made such Loans or L/C Advances pro rata according to the respective unpaid principal amounts of such Loans or L/C Advances then owed to such Non-Defaulting Lenders until the unpaid principal amounts of all Loans or L/C Advances, as applicable, are held by all Lenders according to their respective Revolving Proportionate Shares; provided, further that (x) no Extension shall in and of itself constitute a payment or prepayment of the Loans and (y) any actions permitted by Section 2.17 (including permitted modifications of pricing, amortization and repayment or prepayment of Extended Revolving Loans and Extended Revolving Loan Commitments) shall not give rise to any violation of this Section 2.10;
-76-
4147-6459-6034
amendment, consent, waiver or the like) shall be for the benefit of the Person or Persons specified and entitled to payment.
(i) the amount of such other Lender’s required repayment to (ii) the total amount so recovered from the purchasing Lender) of any interest or other amount paid or payable by the purchasing Lender in respect of the total amount so recovered. The Borrowers agree that any Lender so purchasing a participation from another Lender pursuant to this Section 2.10(b) may, to the fullest extent permitted by law, exercise all its rights of payment (including the right of setoff) with respect to such participation as fully as if such Lender were the direct creditor of the Borrowers in the amount of such participation.
For the avoidance of doubt, the provisions of this Section 2.10(b) shall not be construed to apply to (x) any payment made by the Borrowers pursuant to and in accordance with the express terms of this Agreement (including (1) the sharing of principal payments among Non-Defaulting Lenders pursuant to the proviso to Section 2.10(a)(ii) and (2) the application of funds provided for under Section 2.16(a)(ii) arising from the existence of a Defaulting Lender) or (y) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in L/C Obligations or in Swing Line Loans to any assignee or participant.
| 2.11. | Change of Circumstances. |
-77-
4147-6459-6034
obligation of the Lenders to make SOFR Loans, and any right of the Borrowers to convert any Loan to or continue any Loan as a SOFR Loan, shall be suspended (to the extent of the affected SOFR Loans or the affected Interest Periods) until the Administrative Agent (with respect to clause (ii), at the instruction of the Required Lenders) revokes such notice. Upon receipt of such notice, (A) the Borrowers may revoke any pending request for a borrowing of, conversion to or continuation of SOFR Loans (to the extent of the affected SOFR Loans or the affected Interest Periods) or, failing that, the Borrowers will be deemed to have converted any such request into a request for a borrowing of or conversion to Base Rate Loans in the amount specified therein and (B) any outstanding affected SOFR Loans will be deemed to have been converted into Base Rate Loans at the end of the applicable Interest Period. Upon any such prepayment or conversion, the Borrowers shall also pay accrued interest on the amount so prepaid or converted, together with any additional amounts required pursuant to Section 2.13.
-78-
4147-6459-6034
-79-
4147-6459-6034
definition of “Interest Period” (or any similar or analogous definition) for any Benchmark settings at or after such time to remove such unavailable or non- representative tenor and (B) if a tenor that was removed pursuant to clause (A) above either (1) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (2) is not, or is no longer, subject to an announcement that it is not or will not be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent may modify the definition of “Interest Period” (or any similar or analogous definition) for all Benchmark settings at or after such time to reinstate such previously removed tenor.
-80-
4147-6459-6034
and the result of any of the foregoing shall be to increase the cost to the Administrative Agent or any such Lender of making, converting to, continuing or maintaining any Loan or of maintaining its obligation to make any such Loan, or to increase the cost to the Administrative Agent or such Lender of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by the Administrative Agent or such Lender (whether of principal, interest or any other amount) then, upon request of the Administrative Agent or such Lender, the Borrowers will, within five (5) Business Days after written demand therefor, pay to the Administrative Agent or such Lender, as the case may be, such additional amount or amounts as will compensate the Administrative Agent or such Lender, as the case may be, for such additional costs incurred or reduction suffered. The obligations of the Borrowers under this Section 2.11(e) shall survive the payment and performance of the Obligations and the termination of this Agreement.
-81-
4147-6459-6034
| 2.12. | Taxes on Payments. |
-82-
4147-6459-6034
the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.
-83-
4147-6459-6034
U.S. Tax Compliance Certificate substantially in the form of Exhibit J-2 or Exhibit J-3, IRS Form W-9, and/or other
-84-
4147-6459-6034
certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit J-4 on behalf of each such direct and indirect partner;
Each Lender agrees that if any form or certification it previously delivered becomes inaccurate in any respect, it shall update such form or certification or promptly notify the Borrowers and the Administrative Agent in writing of its legal inability to do so.
-85-
4147-6459-6034
Each Lender’s determination of the amount of any prepayment fee payable under this Section 2.13 shall be demonstrated pursuant to calculations in reasonable detail and shall be conclusive in the absence of manifest error. The obligations of the Borrowers under this Section 2.13 shall survive the payment and performance of the Obligations and the termination of this Agreement.
| 2.14. | Security. |
-86-
4147-6459-6034
Product shall be secured by the Lien of the Security Documents with the priority set forth in Section 6.02.
The Borrowers shall fully cooperate with the Administrative Agent and the Lenders and perform all additional acts requested by the Administrative Agent or any Lender to effect the purposes of this Section 2.14.
| 2.15. | Lender Mitigation; Replacement of the Lenders. |
(iv) any Loan Party shall receive a notice from any applicable Governmental Authority
-87-
4147-6459-6034
that a Lender is no longer qualified or suitable to make Loans to one or more Borrowers under the applicable Gaming Laws (and such Lender is notified by the Borrowers and the Administrative Agent in writing of such disqualification), including because such Lender has been denied a License, qualification or finding of suitability or has failed to deliver information required under the applicable Gaming Laws, then the Borrowers may, at their sole expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 8.05), all of its interests, rights (other than its existing rights to payments pursuant to Section 2.11(d), Section 2.11(e) or Section 2.12) and obligations under this Agreement and the related Loan Documents to an Eligible Assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided that:
A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrowers to require such assignment and delegation cease to apply.
| 2.16. | Defaulting Lenders. |
-88-
4147-6459-6034
restricted as set forth in the definition of Required Lenders and in the Defaulting Lender Amendment Paragraph.
(x) such payment is a payment of the principal amount of any Loans or L/C Borrowing in respect of which such Defaulting Lender has not fully funded its appropriate share, and
(y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 3.02 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and L/C Borrowings owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or L/C Borrowings owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in L/C Obligations and Swing Line Loans are held by the Lenders pro rata in accordance with the Revolving Loan Commitments under the applicable this Agreement without giving effect to Section 2.16(a)(iv). Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to this Section 2.16(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
-89-
4147-6459-6034
(x) pay to each Non-Defaulting Lender that portion of any such fee otherwise payable to such Defaulting Lender with respect to such Defaulting Lender’s participation in L/C Obligations that has been reallocated to such Non-Defaulting Lender pursuant to clause (iv) below, (y) pay to the L/C Issuer the amount of any such fee otherwise payable to such Defaulting Lender to the extent allocable to the L/C Issuer’s Fronting Exposure to such Defaulting Lender, and (z) not be required to pay the remaining amount of any such fee.
-90-
4147-6459-6034
account of such Defaulting Lender under this Agreement (whether on account of principal, interest, fees, indemnity or other amounts); provided that (i) no Event of Default shall have occurred and be continuing and (ii) such termination will not be deemed to be a waiver or release of any claim the Borrowers, the Administrative Agent, the L/C Issuer or any Lender may have against such Defaulting Lender.
-91-
4147-6459-6034
Credit shall be applied to the satisfaction of the Defaulting Lender’s obligation to fund participations in respect of L/C Obligations (including, as to Cash Collateral provided by a Defaulting Lender, any interest accrued on such obligation) for which the Cash Collateral was so provided, prior to any other application of such property as may otherwise be provided for herein.
| 2.17. | Amend and Extend Transactions. |
$50,000,000), (ii) set forth the date on which such Extension is requested to become effective (which shall be not less than ten (10) Business Days nor more than sixty (60) days after the date of such Extension notice (or such longer or shorter periods as the Administrative Agent shall agree in its sole discretion)) and (iii) identify the relevant Revolving Loan Commitments to which such Extension relates. Each Lender shall be offered (an “Extension Offer”) an opportunity to participate in such Extension on a pro rata basis and on the same terms and conditions as each other Lender pursuant to procedures established by, or reasonably acceptable to, the Administrative Agent and the Borrower. If the aggregate principal amount of Revolving Loan Commitments in respect of which Lenders shall have accepted the relevant Extension Offer shall exceed the maximum aggregate principal amount of Revolving Loan Commitments subject to the Extension Offer as set forth in the Extension notice, then the Revolving Loan Commitments of applicable Lenders shall be extended ratably up to such maximum amount based on the respective principal amounts with respect to which such Lenders have accepted such Extension Offer.
-92-
4147-6459-6034
prior to and immediately after giving effect to such Extension, (ii) the representations and warranties set forth in Article IV and in each other Loan Document shall be deemed to be made and shall be true and correct in all material respects on and as of the effective date of such Extension, (iii) the L/C Issuer and the Swing Line Lender shall have consented to any Extension of the Revolving Loan Commitments, to the extent that such Extension provides for the issuance or extension of Letters of Credit or making of Swing Line Loans at any time during the extended period and (iv) the terms of such Extended Revolving Loan Commitments shall comply with paragraph (c) of this Section.
(v) borrowing and prepayment of Extended Revolving Loans, or reductions of Extended Revolving Loan Commitments, and participation in Letters of Credit and Swing Line Loans, shall be on a pro rata basis with the other Revolving Loans or Revolving Loan Commitments (other than upon the maturity of the non-extended Revolving Loans’ Revolving Loan Commitments) and (vi) the terms of the Extended Revolving Loan Commitments shall be substantially identical to the terms set forth herein (except as set forth in clauses (i) through (v) above).
-93-
4147-6459-6034
The submission by the Borrowers to the Administrative Agent of each Notice of Borrowing and each Letter of Credit Application shall be deemed to be a representation and warranty by the Borrowers that each of the statements set forth above in Section 3.02(b) is true and correct as of the date of such notice.
ARTICLE IV. REPRESENTATIONS AND WARRANTIES.
-94-
4147-6459-6034
-95-
4147-6459-6034
delivery of the Loan Documents (or any documents executed in connection therewith) executed by any Loan Party or the performance or consummation of the transactions contemplated hereby and thereby, except for those which have been made or obtained and are in full force and effect.
-96-
4147-6459-6034
contemplated thereby (or any documents executed in connection therewith or the transactions contemplated thereby).
(ii) The Borrowers conduct, in the ordinary course of business, for themselves and the other Loan Parties, a review of the effect of existing Environmental Laws and claims alleging potential liability or responsibility for violation of any Environmental Law on their respective businesses, operations and properties. No Loan Party (A) has violated any Environmental Laws, (B) has any liability under any Environmental Laws or (C) has received notice or other communication of an investigation or is under investigation by any Governmental Authority having authority to enforce Environmental Laws, where such violation, liability or investigation could have, individually or in the aggregate, a Material Adverse Effect. Each Loan Party’s use and operation of its business properties are in compliance with all applicable Governmental Rules, including all applicable land use and zoning laws, except to the extent that non-compliance could not reasonably be expected to have a Material Adverse Effect.
-97-
4147-6459-6034
outstanding obligations which, in any such case, are material in the aggregate, except as disclosed in the Financial Statements of Parent and its Subsidiaries furnished to the Administrative Agent and the Lenders pursuant to item (d) of Schedule 3.01 or in the Financial Statements delivered to the Administrative Agent pursuant to clause (i) or (ii) of Section 5.01(a).
-98-
4147-6459-6034
Requirements of Law, except where any failure to comply could not reasonably be expected to have a Material Adverse Effect.
-99-
4147-6459-6034
any Multiemployer Plan intends to terminate or has been terminated under Section 4041A of ERISA.
(C) otherwise failed to comply with the requirements of any Governmental Rule applicable to any Foreign Plan, where singly or cumulatively, the above could reasonably be expected to have a Material Adverse Effect.
-100-
4147-6459-6034
law to withhold or collect in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder or other third party have been duly withheld or collected, and have been timely paid over to the proper authorities to the extent due and payable. No Loan Party has executed or filed with the Internal Revenue Service or any other Governmental Authority any agreement or other document extending, or having the effect of extending, the period for assessment or collection of any taxes or Governmental Charges.
-101-
4147-6459-6034
Documents and the transactions contemplated thereby have been prepared on a basis consistent with the historical Financial Statements described above, except as described therein, have been based upon reasonable assumptions and represent, as of their respective dates of presentations, the Loan Parties’ good faith and reasonable estimates of the future performance of the Loan Parties, and the Borrowers have no reason to believe that such estimates and assumptions are not reasonable.
-102-
4147-6459-6034
any Affiliate of any Loan Party, except upon terms at least as favorable to such Loan Party as an arms-length transaction with unaffiliated Persons, based on the totality of the circumstances. No Loan Party is a party to or is bound by any Contractual Obligation or is subject to any restriction under its respective charter or formation documents, which could not reasonably be expected to have a Material Adverse Effect.
| (w) | Anti-Corruption Laws; Anti-Money Laundering Laws and Sanctions. |
(4) is or will be under administrative, civil or criminal investigation for an alleged violation of, or received notice from or made a voluntary disclosure to any governmental entity regarding a possible violation of, Anti-Corruption Laws, Anti-Money Laundering Laws or Sanctions by a governmental authority that enforces Sanctions or any Anti-Corruption Laws or Anti-Money Laundering Laws, or (5) directly or indirectly derives or will derive revenues from investments in, or transactions with, Sanctioned Persons.
-103-
4147-6459-6034
Xxxxxxx Xxxx Entitlements are each in full force and effect and have not been amended or otherwise modified except as set forth by documents delivered to the Administrative Agent pursuant to Schedule 3.01, except as permitted under Section 5.01(p).
-104-
4147-6459-6034
(I) breach or non-performance of, or any default under, a Contractual Obligation of a Borrower or any Guarantor; (II) any dispute, litigation, investigation, proceeding or suspension between a Borrower or any Guarantor and any Governmental Authority; or (III) the commencement of, or any material development in, any litigation or proceeding affecting a Borrower or any Guarantor, including pursuant to any applicable Environmental Laws; or (D) any material change in accounting policies of or financial reporting practices by the applicable Loan Party. Each notice pursuant to this Section 5.01(a)(v) shall be accompanied by a statement of a Responsible Officer of the Borrowers setting forth details of the occurrence referred to therein and stating what action the Borrowers have taken and proposes to take with respect thereto. Each notice pursuant to this Section 5.01(a)(v) shall describe with particularity any and all provisions of this Agreement or other Loan Document that have been breached;
-105-
4147-6459-6034
new Subsidiary or the issuance of any new Equity Securities of any existing Loan Party;
The Borrowers hereby acknowledge that (a) the Administrative Agent will make available to the Lenders and the L/C Issuer materials and/or information provided by or on behalf of the Borrowers hereunder (the “Borrower Materials”) by posting the Borrower Materials on one or more Platforms and (b) certain of the Lenders may be “public-side” Lenders (i.e. Lenders that do not wish to receive non-public information with respect to the Loan Parties or their securities) (each, a “Public Lender”). The Borrowers hereby agrees that (w) all Borrower Material that are to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof, (x) by marking Borrower Materials “PUBLIC” the Borrowers shall be deemed to have authorized the Administrative Agent, the L/C Issuer and the Lenders to treat such Borrower Materials as either publicly available information or not material information (although it may be sensitive and proprietary) with respect to the Loan Parties or their securities for purposes of United States Federal and state security laws; (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the
-106-
4147-6459-6034
Platform designated “Public Investor;” and (z) the Administrative Agent shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Investor”.
(2) Business Days’, notice and during normal business hours so long as no Default shall have occurred and be continuing and otherwise at any time as the Administrative Agent and any Lender may determine with or without prior notice to the Borrowers, to visit and inspect any of the properties and offices of the Loan Parties, to conduct audits of any or all of the Collateral, to examine the books and records of the Loan Parties and make copies thereof, and to discuss the affairs, finances and business of the Loan Parties with, and to be advised as to the same by, their officers, auditors and accountants, all at such times and intervals as the Administrative Agent or any Lender may request, all at the Borrowers’ expense; provided that Borrowers shall not be responsible for such expenses unless an Event of Default has occurred and was continuing at the time of any such inspection.
| (d) | Insurance. The Loan Parties shall: |
30 days prior written notice by the insurer to the Administrative Agent and
(C) insurance required by any Real Property Security Document.
-107-
4147-6459-6034
provided, however, that if any Loan Party shall fail to maintain insurance in accordance with this Section 5.01(d), or if any Loan Party shall fail to provide the required endorsements with respect thereto, the Administrative Agent shall have the right (but shall be under no obligation) to procure such insurance and the Borrowers agree to reimburse the Administrative Agent for all costs and expenses of procuring such insurance.
(iii) to pay the Special Dividend and (iv) to provide for the working capital and general corporate purpose needs of the Loan Parties. The Borrowers shall not request any Loans, and the Borrowers shall not use, and shall ensure that their respective directors, officers, employees and agents shall not use, the proceeds of any Loans or any Letter of Credit (A) to purchase, acquire or carry any Margin Stock, (B) for any purpose that entails a violation of any of the regulations of the FRB, including Regulations T, U, and X, (C) in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation of any Anti- Corruption Laws, (D) for the purpose of funding, financing or facilitating any activities, business or transaction of or with any Sanctioned Person, or in any Sanctioned Country,
-108-
4147-6459-6034
or (E) in any manner that would result in the violation of any Sanctions applicable to any party hereto.
-109-
4147-6459-6034
Excluded Subsidiary ceases to be an Excluded Subsidiary (A) notify the Administrative Agent of such event in writing (to the extent notice has not already been provided in accordance with Section 5.01(a)(viii)), (B) cause such Subsidiary to execute and deliver or otherwise become a party to the Guaranty and to become a party to the Security Agreement and each other applicable Security Document, in each case in accordance with the terms thereof and amend the Security Documents as appropriate in light of such event to pledge to the Administrative Agent for the benefit of itself and the Lenders 100% of the Equity Securities of such Subsidiary and execute and deliver all documents or instruments required thereunder or appropriate to perfect the security interest created thereby, provided that any Excluded Subsidiary that ceases to be an Excluded Subsidiary shall only be required to become a party to the Security Documents if no Default or Event of Default would result therefrom, (C) deliver (or cause the appropriate Person to deliver) to the Administrative Agent all stock certificates and other instruments constituting Collateral thereunder free and clear of all adverse claims, accompanied by undated stock powers or other instruments of transfer executed in blank (and take such other steps as may be requested by the Administrative Agent to perfect the Administrative Agent’s first priority Lien in such Collateral consisting of Equity Securities in compliance with any applicable laws of jurisdictions outside of the United States), (D) cause each document (including each Uniform Commercial Code financing statement and each filing with respect to intellectual property owned by each new Subsidiary) required by law or requested by the Administrative Agent to be filed, registered or recorded in order to create in favor of the Administrative Agent, for the benefit of the Lender Parties, a valid, legal and perfected first-priority security interest in and lien on the Collateral subject to the Security Documents to be so filed, registered or recorded and evidence thereof delivered to the Administrative Agent, (E) deliver (or cause the appropriate Person to deliver) the Organizational Documents, certificates, resolutions and other documents that would have been required of such Subsidiary under clause (a) of Schedule 3.01 if such Subsidiary had been a Borrower on the Fifth Restatement Effective Date and (F) deliver an opinion of counsel in form and substance satisfactory to the Administrative Agent with respect to each new Guarantor, the pledge of the Equity Securities of each Subsidiary, and the other matters set forth in this Section 5.01(j).
| (k) | Appraisals. |
(B) which is encumbered by any Security Document.
-110-
4147-6459-6034
-111-
4147-6459-6034
assumed by it under the CC Skybridge Documentation. The Borrowers shall not, and shall not agree to, enter into any material amendment or modification of or terminate any of the CC Skybridge Documentation without the prior written consent of the Required Lenders.
-112-
4147-6459-6034
trade payables incurred in the ordinary course of business that are one hundred twenty (120) or more days past due, such trade payables, if any, are being contested in good faith by the applicable Loan Party by appropriate proceedings and for which such Loan Party has maintained adequate reserve for the payment thereof.
(vi) above; provided that any extension, renewal or replacement Lien (A) is limited to the property covered by the existing Lien and (B) secures Indebtedness
-113-
4147-6459-6034
which is no greater in amount and has material terms no less favorable to the Lenders than the Indebtedness secured by the existing Lien;
(A) not interfering in any material respect with the ordinary conduct of the business of any Loan Party or (B) granted to any Governmental Authority or public utility providing services to the real property of the Loan Parties;
provided, however, that the foregoing exceptions shall not permit any Lien on any Equity Securities issued by any Loan Party except for Liens in favor of the Administrative Agent securing the Obligations (or any guaranty thereof).
-114-
4147-6459-6034
-115-
4147-6459-6034
| (F) | The Borrowers have delivered to the Administrative Agent, |
(1) financial statements of the subject of such acquisition (or, in the case of assets constituting less than all of the assets of a Person, the equivalent of financial statements with respect to such assets) to the extent available, but in no event for less than the immediately preceding 12 months (or such other period of time agreed to by the Administrative Agent in its sole discretion), and (2) pro forma financial statements reflecting the combined projected performance of the Loan Parties during the 12 months immediately following consummation of such transaction, certified to the Administrative Agent and the Lenders as being the good faith projections of the Borrowers, in form and detail reasonably acceptable to the Administrative Agent, which projections shall show that such acquisition will not result in any Default;
-116-
4147-6459-6034
$1,000,000 at any one time outstanding;
-117-
4147-6459-6034
result in a violation of the Fixed Charge Coverage Ratio (x) at the end of the fiscal quarter during which such Investment is made and (y) either (1) as of the end of the next ensuing fiscal quarter, or (2) as of the end of each fiscal quarter remaining during the fiscal year during which such Investment is made, whichever period is longer from the date of such Investment.
-118-
4147-6459-6034
(C) otherwise fail to comply with the requirements of any Governmental Rule applicable to any Foreign Plan, where singly or cumulatively, the above could have a Material Adverse Effect.
| (l) | Rate Contracts. No Loan Party shall enter into any Rate Contract, except |
-119-
4147-6459-6034
ARTICLE VI. EVENTS OF DEFAULT.
-120-
4147-6459-6034
days and the Loan Parties are diligently proceeding to cure such failure, the Loan Parties shall have an additional fifteen (15) days within which to cure such failure; or any Loan Party shall fail to observe or perform any covenant, obligation, condition or agreement in any Lender Rate Contract or documentation for any Lender Bank Product and such failure shall continue beyond any period of grace provided with respect thereto; or
(vi) commence a voluntary case or other proceeding seeking liquidation, reorganization or other relief with respect to itself or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or consent to any such relief or to the appointment of or taking possession of its property by any official in an involuntary case or other
-121-
4147-6459-6034
proceeding commenced against it, or, in each case, any analogous procedure or step is taken in any jurisdiction; or
-122-
4147-6459-6034
priority (except as expressly otherwise provided in this Agreement or such Security Document) perfected Lien in the Collateral covered thereby, or any Loan Party shall issue, create or permit to be outstanding any Equity Securities which shall not be subject to a first priority perfected Lien under the Security Documents (other than Equity Securities not required to be pledged under the Loan Documents); or
-123-
4147-6459-6034
Atlantis Casino Resort Spa or the Monarch Casino Black Hawk, open to conduct gaming activities for any reason for more than fifteen (15) consecutive days (or more than sixty
(60) days if during such period the Borrowers are entitled to the proceeds of business interruption insurance sufficient in amount to cover at least 80% of the anticipated loss associated with such failure to have such material portion open to conduct gaming activities) or which results in the prohibition by any Gaming Board of the conduct gaming activities at either the Atlantis Casino Resort Spa or the Monarch Casino Black Hawk, for a period in excess of two (2) consecutive days; or
The proceeds of any sale, disposition or other realization upon all or any part of the Collateral (subject to the prior sentence with respect to Cash Collateral) and any payment under the Guaranty shall be distributed by the Administrative Agent in the following order of priorities:
-124-
4147-6459-6034
First, to the Administrative Agent in an amount sufficient to pay in full the costs and expenses of the Administrative Agent in connection with such sale, disposition or other realization (including all fees, costs, expenses, liabilities and advances incurred or made by the Administrative Agent in connection therewith, including, without limitation, attorneys’ fees and costs) and any and all other unpaid and unreimbursed liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, fees, expenses or disbursements of the Administrative Agent;
Second, pari passu and ratably, to the Lenders in an amount sufficient to pay fees, expenses and indemnities of the Lenders under the Loan Documents;
Third, to the Lenders and Lender Rate Contract Counterparties in an amount equal to accrued interest then due and payable on the Obligations (including any net scheduled payments in respect of Lender Rate Contracts but excluding any obligations in respect of Lender Bank Products and excluding the Termination Value of any Lender Rate Contracts);
Fourth, pari passu and ratably, to (i) the Lenders in an amount equal to the principal amount of the outstanding Loans and L/C Borrowings and to Cash Collateralize the remaining L/C Obligations on a pro rata basis in accordance with the then outstanding principal amount of the Loans and L/C Obligations (with the portion allocated to the Revolving Loans, Swing Line Loans and L/C Obligations to be applied first to repay the Swing Line Loans in full, second to repay the Revolving Loans in full and then to Cash Collateralize the Obligations in an amount equal to the then Effective Amount of all L/C Obligations) and (ii) to the Lender Rate Contract Counterparties in an amount equal to Obligations owed in connection with any Lender Rate Contract the terms of which comply with the Credit Agreement (which amount, for the avoidance of doubt, shall include the Termination Value);
Fifth, to the Lender Parties in an amount equal to any other Obligations which are then unpaid (including any amount owed to Lender Bank Product Providers for Obligations related to Lender Bank Products); and
Finally, upon payment in full of all of the Obligations, to the persons legally entitled thereto.
No application of payments will cure any Event of Default, or prevent acceleration, or continued acceleration, of amounts payable under the Loan Documents, or prevent the exercise, or continued exercise, of rights or remedies of the Administrative Agent and the Lenders hereunder or thereunder or at law or in equity.
-125-
4147-6459-6034
Notwithstanding anything herein to the contrary, (i) there shall be no more than two Cure Rights in any period of four consecutive fiscal quarters, (ii) no Cure Amount may be greater than the amount required to cause the Borrowers to be in compliance with the Leverage Financial Performance Covenant, (iii) there shall be no more than four Cure Rights made on or before the Maturity Date and (iv) this Section 6.03 may not be relied on for purposes of calculating compliance with any covenants other than compliance with the Leverage Financial Performance Covenant and shall not result in any adjustment to any baskets or other amounts.
ARTICLE VII. ADMINISTRATIVE AGENT AND RELATIONS AMONG LENDERS.
| 7.01. | Appointment, Powers and Immunities. |
-126-
4147-6459-6034
Administrative Agent is not acting as administrative agent for any other Lender Parties; the Lender Parties (other than the Lenders) that are receiving the benefit of the Collateral are receiving such benefit as an accommodation from the Administrative Agent in its capacity as collateral agent for such Lender Parties and the Administrative Agent shall have no liability whatsoever to such Lender Parties. The Administrative Agent shall not have any duties or responsibilities except those expressly set forth in this Agreement or in any other Loan Document, be a trustee for any Lender (or any Affiliate of such Lender that is party to a Lender Rate Contract or providing Lender Bank Products) or have any fiduciary duty to any Lender (or any Affiliate of such Lender that is party to a Lender Rate Contract or providing Lender Bank Products). Notwithstanding anything to the contrary contained herein the Administrative Agent shall not be required to take any action which is contrary to this Agreement or any other Loan Document or any applicable Governmental Rules. Neither the Administrative Agent nor any Lender shall be responsible to any other Lender for any recitals, statements, representations or warranties made by any Loan Party contained in this Agreement or in any other Loan Document, for the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Loan Document or for any failure by any Loan Party to perform its obligations hereunder or thereunder. The Administrative Agent may employ agents and attorneys-in-fact and shall not be responsible to any Lender for the negligence or misconduct of any such agents or attorneys-in-fact selected by it with reasonable care. Neither the Administrative Agent nor any of its directors, officers, employees, agents or advisors shall be responsible to any Lender for any action taken or omitted to be taken by it or them hereunder or under any other Loan Document or in connection herewith or therewith, except to the extent determined by a final, non-appealable judgment of a court of competent jurisdiction to have arisen from its or their own gross negligence or willful misconduct. Except as otherwise provided under this Agreement, the Administrative Agent shall take such action with respect to the Loan Documents as shall be directed by the Required Lenders or in the absence of such direction, such action as the Administrative Agent in good xxxxx xxxxx advisable under the circumstances.
-127-
4147-6459-6034
L/C Issuer with respect to such acts or omissions, and (ii) as additionally provided herein with respect to the L/C Issuer.
-128-
4147-6459-6034
take any such action. The obligations of each Lender under this Section 7.04 shall survive the payment and performance of the Obligations, the termination of this Agreement and any Lender ceasing to be a party to this Agreement (with respect to events which occurred prior to the time such Lender ceased to be a Lender hereunder).
-129-
4147-6459-6034
been appointed. If no such successor has been appointed, the Required Xxxxxxx shall act as the Administrative Agent hereunder and under the other Loan Documents. After any retiring or removed Administrative Agent’s resignation or removal hereunder as the Administrative Agent, the provisions of this Article VII shall continue in effect for its benefit in respect of any actions taken or omitted to be taken by it while it was acting as the Administrative Agent. The successor Administrative Agent (or if there is no successor, one of the Lenders appointed by the Required Lenders that accepts such appointment) shall also simultaneously replace the then existing Administrative Agent and the then existing Administrative Agent shall be fully released as “L/C Issuer” and “Swing Line Lender” hereunder pursuant to documentation in form and substance reasonably satisfactory to the then existing Administrative Agent.
| 7.07. | Collateral Matters. |
-130-
4147-6459-6034
-131-
4147-6459-6034
are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders and the Administrative Agent and their respective agents and counsel and all other amounts due the Lenders, the L/C Issuer and the Administrative Agent under Sections 2.02(i), 2.02(j), 2.05, 8.02 and 8.03) allowed in such judicial proceeding; and
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent under Sections 2.05, 8.02 and 8.03.
| 7.12. | Application of Gaming Laws. |
-132-
4147-6459-6034
agent, supervisor, receiver or other representative obtain licenses and to execute such further documents as may be required in connection therewith.
| 7.13. | Erroneous Payments. |
-133-
4147-6459-6034
together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
-134-
4147-6459-6034
satisfaction of any of the Obligations, the Obligations or any part thereof that were so credited, and all rights of the Payment Recipient, as the case may be, shall be reinstated and continue in full force and effect as if such payment or satisfaction had never been received.
| 8.01. | Notices. |
The Administrative Agent, the L/C Issuer and the
Swing Line Lender:For Notices of Borrowing, Notices of Conversion and
Notices of Interest Period Selection:
Xxxxx Fargo Bank, National Association 1525 W. W.T. Xxxxxx Blvd
MAC D1109-019
Charlotte, NC 28262 Attention: Agency Services
-135-
4147-6459-6034
Fax No. (000) 000-0000
E-mail. xxxxxxxxxxxxxx.xxxxxxxx@xxxxxxxxxx.xxx
For all other notices:
Xxxxx Fargo Bank, National Association 0000 Xxxxxxx Xxxx, Xxxxx 000
Reno, Nevada 89511 Attention: Xxxxx XxXxxx Tel. No. (000) 000-0000
Fax No. (000) 000-0000
E-mail. xxxxx.x.xxxxxx@xxxxxxxxxx.xxx
The Borrowers:c/o Golden Road Motor Inn, Inc.
0000 Xxxxx Xxxxxxxx Xxxxxx Xxxx, XX 00000
Attention: Xxxx Xxxxxx Tel. No. (000) 000-0000
Fax No. (000) 000-0000
E-mail. xxxxxxx@xxxxxxxxxxxxx.xxx and
Attention: Xxxx Xxxxxxxx Tel. No. (000) 000-0000
Fax No. (000) 000-0000
E-mail. xxxxxxxxx@xxxxxxxxxxxxx.xxx
Each Notice of Borrowing, Notice of Conversion and Notice of Interest Period Selection shall be given by the Borrowers to the Administrative Agent’s office located at the address referred to above during the Administrative Agent’s normal business hours; provided, however, that any such notice received by the Administrative Agent after 11:00 a.m. on any Business Day shall be deemed received by the Administrative Agent on the next Business Day. In any case where this Agreement authorizes notices, requests, demands or other communications by the Borrowers to the Administrative Agent or any Lender to be made by telephone, facsimile or e-mail, the Administrative Agent or any Lender may conclusively presume that anyone purporting to be a person designated in any incumbency certificate or other similar document received by the Administrative Agent or a Lender is such a person.
-136-
4147-6459-6034
Person that is not an Affiliate of the Administrative Agent), such as IntraLinks, The Debt Exchange, Inc., SyndTrak Online or a substantially similar electronic system (the “Platform”). The Borrowers acknowledge that (i) the distribution of material through an electronic medium is not necessarily secure and that there are confidentiality and other risks associated with such distribution, (ii) the Platform is provided “as is” and “as available” and (iii) neither the Administrative Agent nor any of its Affiliates warrants the accuracy, completeness, timeliness, sufficiency, or sequencing of the Communications posted on the Platform. The Administrative Agent and its Affiliates expressly disclaim with respect to the Platform any liability for errors in transmission, incorrect or incomplete downloading, delays in posting or delivery, or problems accessing the Communications posted on the Platform and any liability for any losses, costs, expenses or liabilities that may be suffered or incurred in connection with the Platform except for liability determined by a final, non-appealable judgment of a court of competent jurisdiction to be due to the Administrative Agent’s gross negligence or willful misconduct. No warranty of any kind, express, implied or statutory, including, without limitation, any warranty of merchantability, fitness for a particular purpose, non- infringement of third party rights or freedom from viruses or other code defects, is made by the Administrative Agent or any of its Affiliates in connection with the Platform. Each Lender agrees that notice to it (as provided in the next sentence) (a “Notice”) specifying that any Communication has been posted to the Platform shall for purposes of this Agreement constitute effective delivery to such Lender of such information, documents or other materials comprising such Communication. Each Lender agrees
(i) to notify, on or before the date such Lender becomes a party to this Agreement, the Administrative Agent in writing of such Xxxxxx’s e-mail address to which a Notice may be sent (and from time to time thereafter to ensure that the Administrative Agent has on record an effective e-mail address for such Lender) and (ii) that any Notice may be sent to such e-mail address.
-137-
4147-6459-6034
-138-
4147-6459-6034
effective whether or not such investigation, litigation or proceeding is brought by a Borrower, the holders of a Borrower’s Equity Securities, any creditor of a Borrower or an Indemnitee and whether or not an Indemnitee is otherwise a party thereto. Upon receiving knowledge of any suit, claim or demand asserted by a third party that the Administrative Agent or any Xxxxxx believes is covered by this indemnity, the Administrative Agent or such Lender shall give the Borrowers notice of the matter; provided that the failure of the Administrative Agent or such Lender to so notify the Borrowers shall not relieve the Borrowers from their obligations under this Section 8.03 or result in any liability of the Administrative Agent or the Lenders. In connection with any such suit, claim or demand, the Administrative Agent or such Lender may select its own counsel or request that the Borrowers defend such suit, claim or demand, with legal counsel satisfactory to the Administrative Agent or such Lender as the case may be, at the Borrowers’ sole cost and expense; provided, however, that the Administrative Agent or such Lender shall not be required to so notify the Borrowers and the Administrative Agent or such Lender shall have the right to defend, at the Borrowers’ sole cost and expense, any such matter that is in connection with a formal proceeding instituted by any Governmental Authority having authority to regulate or oversee any aspect of the Administrative Agent’s or such Xxxxxx’s business or that of its Affiliates. The Administrative Agent or such Lender may also require the Borrowers to defend the matter. Notwithstanding the foregoing provisions, the Indemnitees will be entitled to employ counsel separate from counsel for the Borrowers and for any other party in such action if any such Indemnitee reasonably determines that a conflict of interest or other reasonable basis exists which makes representation by counsel chosen by the Borrowers not advisable, all at the Borrowers’ expense. In the event an Indemnitee (or any of its officers, directors or employees) appears as a witness in any action or proceeding brought against the Borrowers in which an Indemnitee is not named as a defendant, the Borrowers agree to reimburse such Indemnitee for all out-of-pocket expenses incurred by it (including fees and expenses of counsel) in connection with its appearing as a witness. Any failure or delay of the Administrative Agent or any Lender to notify the Borrowers of any such suit, claim or demand shall not relieve the Borrowers of their obligations under this Section 8.03. No Indemnitee referred to above shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed to such unintended recipients by such Indemnitee through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby other than for direct or actual damages resulting from the gross negligence or willful misconduct of such Indemnitee as determined by a final and non-appealable judgment of a court of competent jurisdiction. The Borrowers shall not, without the prior written consent of each Indemnitee affected thereby (which consent will not be unreasonably withheld), settle any threatened or pending claim or action that would give rise to the right of any Indemnitee to claim indemnification hereunder unless such settlement (x) includes a full and unconditional release of all liabilities arising out of such claim or action against such Indemnitee and (y) does not include any statement as to or an admission of fault, culpability or failure to act by or on behalf of any Indemnitee. The Borrowers agrees that no Indemnitee shall have any liability (whether direct or indirect, in contract or tort, or otherwise) to the Borrowers or their Affiliates or to their respective equity holders or creditors arising out of, related to or in connection with any aspect of the transactions contemplated hereby, except to the extent such liability is determined in a final, nonappealable judgment by a court of competent jurisdiction to have resulted from such Indemnitee’s own gross negligence or willful misconduct. The obligations of the Borrowers
-139-
4147-6459-6034
under this Section 8.03 shall survive the payment and performance of the Obligations and the termination of this Agreement. The obligations of the Loan Parties with respect to Environmental Damages are (1) separate and distinct from the Obligations described within the Real Property Security Documents and the Liens and security interests created in the Real Property Security Documents, and (2) may be enforced against the Loan Parties without regard to the existence of the Real Property Security Documents and independently of any action with respect to the Real Property Security Documents.
-140-
4147-6459-6034
No failure or delay by the Administrative Agent or any Lender in exercising any right under this Agreement or any other Loan Document shall operate as a waiver thereof or of any other right hereunder or thereunder nor shall any single or partial exercise of any such right preclude any other further exercise thereof or of any other right hereunder or thereunder. Unless otherwise specified in such waiver or consent, a waiver or consent given hereunder shall be effective only in the specific instance and for the specific purpose for which given. The Lenders may condition the giving or making of any amendment, waiver or consent of any term, covenant, agreement or condition of this Agreement or any other Loan Document on payment of a fee by the Borrowers (which may be payable only to the Lenders that consent to such matters within specified periods).
In addition, notwithstanding the foregoing, (x) the Fee Letter may only be amended, modified or changed, or rights or privileges thereunder waived, only by the parties thereto in accordance with the respective provisions thereof and (y) each Lender Rate Contract and agreement with respect to Lender Bank Products may only be amended, modified or changed, or rights or privileges thereunder waived, only by the parties thereto in accordance with the respective provisions thereof.
Notwithstanding anything to the contrary herein, any Defaulting Lender shall not have any right to approve or disapprove any amendment, waiver or consent hereunder, except that (i) any Revolving Proportionate Share of such Defaulting Lender may not be increased, (ii) the applicable maturity date of any Loans of such Defaulting Lender, as applicable, may not be extended, and (iii) principal and interest owing to such Defaulting Lender may not be reduced, in each case without the consent of such Defaulting Lender. This paragraph is referred to as the “Defaulting Lender Amendment Paragraph.”
Any amendment, modification, supplement, termination, waiver or consent pursuant to this Section 8.04 shall apply equally to, and shall be binding upon, each of the Administrative Agent, and the Lenders.
Notwithstanding anything to the contrary contained herein or in any other Loan Document, the authority to enforce rights and remedies hereunder and under the other Loan Documents against
-141-
4147-6459-6034
the Borrowers or either of them shall be vested exclusively in, and all actions and proceedings at law in connection with such enforcement shall be instituted and maintained exclusively by, the Administrative Agent in accordance with Section 6.02 for the benefit of all the Lenders; provided, however, that the foregoing shall not prohibit (a) the Administrative Agent from exercising on its own behalf the rights and remedies that inure to its benefit (solely in its capacity as Administrative Agent) hereunder and under the other Loan Documents, (b) the L/C Issuer from exercising the rights and remedies that inure to its benefit (solely in its capacity as L/C Issuer) hereunder and under the other Loan Documents or (c) any Lender from exercising setoff rights in accordance with Section 8.06 (subject to the terms of Section 2.10); and provided, further, that if at any time there is no Person acting as Administrative Agent hereunder and under the other Loan Documents, then (i) the Required Lenders shall have the rights otherwise ascribed to the Administrative Agent pursuant to Section 6.02 and (ii) in addition to the matters set forth in clauses (b) and (c) of the preceding proviso and subject to Section 2.10, any Lender may, with the consent of the Required Lenders, enforce any rights and remedies available to it and as authorized by the Required Lenders.
Notwithstanding the foregoing, (i) the Administrative Agent (and, if applicable, the Borrowers) may, without the consent of any Lender, enter into amendments or modifications to this Agreement or any of the other Loan Documents or enter into additional Loan Documents as the Administrative Agent reasonably deems appropriate in order to implement any Benchmark Replacement or any Conforming Changes or otherwise effectuate the terms of Section 2.11(c) in accordance with the terms of Section 2.11(c) and (ii) if the Administrative Agent and the Borrowers shall have jointly identified an obvious error, or any error or omission of a purely technical nature, in the Loan Documents, then the Administrative Agent and the Borrowers shall be permitted to amend such provision without further action or consent of any other party if the same is not objected to in writing by the Required Lenders to the Administrative Agent within five (5) Business Days following receipt of notice thereof.
Notwithstanding anything in this Agreement to the contrary, each Lender hereby irrevocably authorizes the Administrative Agent on its behalf, and without further consent, to enter into amendments or modifications to this Agreement (including amendments to Section 2.10 and this Section 8.04) or any of the other Loan Documents or to enter into additional Loan Documents as the Administrative Agent reasonably deems appropriate in order to effectuate the terms of Section 2.01(b) or Section 2.17 (subject to the consents of any Lenders required in such Section); provided that no amendment or modification shall result in (i) any increase in the amount of any Lender’s Revolving Loan Commitment or any increase in any Lender’s Revolving Proportionate Share, (ii) any extension in the Maturity Date applicable to any Lender’s Loans or Revolving Loan Commitments or (iii) any extension of any date fixed for payment of principal, interest or fees on any Lender’s Loans or Revolving Loan Commitments, in each case, without the written consent of such affected Lender.
| 8.05. | Successors and Assigns. |
-142-
4147-6459-6034
under any Loan Document (except in connection with a merger or consolidation permitted by Section 5.02(d)) without the prior written consent of the Administrative Agent and each Lender. Any purported assignment or transfer by a Loan Party in violation of the foregoing shall be null and void.
The Borrowers agree that each Participant shall be entitled to the benefits of Section 2.11 and Section 2.12 (subject to the requirements and limitations therein, including the requirements under Section 2.12 (it being understood that the documentation required under Section 2.12(g) shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (c) of this Section; provided that such Participant (A) agrees to be subject to the provisions of Section 2.15 as if it were an assignee under paragraph (c) of this Section; and (B) shall not be entitled to receive any greater payment under Section 2.11 or Section 2.12, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change of Law that occurs after the Participant acquired the
-143-
4147-6459-6034
applicable participation. Each Lender that sells a participation agrees, at the Borrowers’ request and expense, to use reasonable efforts to cooperate with the Borrowers to effectuate the provisions of Section 2.15 with respect to any Participant. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrowers, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(5) Business Days after having received notice thereof;
-144-
4147-6459-6034
occurred and is continuing, the Borrowers (which consent shall not be unreasonably withheld or delayed), no Lender may make any Assignment to any Assignee Lender (I) that is less than Five Million Dollars ($5,000,000) in the aggregate or (II) if, after giving effect to such Assignment, the Revolving Loan Commitment or Loans of such Lender or such Assignee Lender would be less than Five Million Dollars ($5,000,000) (except that, in each case, a Lender may make an Assignment which reduces its Revolving Loan Commitment or Loans to zero without the written consent of the Borrowers and the Administrative Agent except to the extent such written consent is required by clause (ii) above and clause (iv) below); and
Upon such execution, delivery, acceptance and recording of each Assignment Agreement, from and after the Assignment Effective Date determined pursuant to such Assignment Agreement,
(A) each Assignee Lender thereunder shall be a Lender hereunder with a Revolving Loan Commitment and Loans as set forth on Attachment 1 to such Assignment Agreement and shall have the rights, duties and obligations of such a Lender under this Agreement and the other Loan Documents, and (B) the Assignor Lender thereunder shall be a Lender with a Revolving Loan Commitment and Loans as set forth on Attachment 1 to such Assignment Agreement or, if the Revolving Loan Commitment and Loans of the Assignor Lender have been reduced to $0, the Assignor Lender shall cease to be a Lender and to have any obligation to make any Loan; provided, however, that any such Assignor Lender which ceases to be a Lender shall continue to be entitled to the benefits of any provision of this Agreement which by its terms survives the termination of this Agreement; provided further, that except to the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that Xxxxxx’s having been a Defaulting Lender. Each Assignment Agreement shall be deemed to amend Schedule I to the extent, and only to the extent, necessary to reflect the addition of each Assignee Lender, the deletion of each Assignor Lender which reduces its Revolving Loan Commitment and Loans to $0 and the resulting adjustment of Revolving Loan Commitment and Loans arising from the purchase by each Assignee Lender of all or a portion of the rights and obligations of an Assignor Lender under this Agreement and the other Loan Documents. On or prior to the Assignment Effective Date determined pursuant to each Assignment Agreement, the Borrowers, at their own expense, shall execute and deliver to the Administrative Agent, in exchange for the surrendered Note(s) of the Assignor Lender thereunder, new Note(s) to each Assignee Lender thereunder that requests such a note (with each new Note to be in an amount equal to the Revolving Loan Commitment assumed by such Assignee Lender) and, if the Assignor Lender is continuing as a Lender hereunder, new Note(s) to the Assignor Lender if so requested by such Assignor Lender (with each new Note to be in an amount equal to the Revolving Loan Commitment retained by it). Each such new Note shall be dated the Fifth Restatement Effective Date or other date acceptable
-145-
4147-6459-6034
to such Lender, and each such new Note shall otherwise be in the form of the Note replaced thereby. The Notes surrendered by the Assignor Xxxxxx shall be returned by the Administrative Agent to the Borrowers marked “Replaced”.
Notwithstanding anything to the contrary contained herein, if at any time Xxxxx Fargo assigns all of its Revolving Loan Commitment and Loans pursuant to subsection (c) above, Xxxxx Fargo may, (i) upon 30 days’ notice to the Borrowers and the Lenders, resign as L/C Issuer and/or
(ii) upon five Business Days’ notice to the Borrowers, terminate the Swing Line. In the event of any such resignation as L/C Issuer or termination of the Swing Line, the Borrowers shall be entitled to appoint from among the Lenders a successor L/C Issuer or Swing Line Lender hereunder; provided, however, that no failure by the Borrowers to appoint any such successor shall affect the resignation of Xxxxx Fargo as L/C Issuer or the termination of the Swing Line, as the case may be. Xxxxx Fargo shall retain all the rights and obligations of the L/C Issuer hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as L/C Issuer and all L/C Obligations with respect thereto (including the right to require the Lenders to make Base Rate Loans or fund participations in Unreimbursed Amounts pursuant to Section 2.02(c)). If Xxxxx Fargo terminates the Swing Line, it shall retain all the rights of the Swing Line Lender provided for hereunder with respect to Swing Line Loans made by it and outstanding as of the effective date of such termination, including the right to require the Lenders to make Base Rate Loans or fund participations in outstanding Swing Line Loans pursuant to Section 2.03(c).
In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or subparticipations, or other compensating actions, including funding, with the consent of the Borrowers and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent, the L/C Issuer, the Swing Line Lender or any Lender hereunder (and interest accrued thereon), and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Line Loans in accordance with its Revolving Proportionate Share. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under Governmental Rules without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
-146-
4147-6459-6034
shall not affect the Borrowers’ obligations in respect of such Loans or Letters of Credit. With respect to any Lender, the transfer of the Revolving Loan Commitment of such Lender and the rights to the principal of, and interest on, any Loan or Letter of Credit made pursuant to such Revolving Loan Commitment shall not be effective until such transfer is recorded on the Register maintained by the Agent, such recordation not to be unreasonably delayed. The ownership of such Revolving Loan Commitment, Loans and Letters of Credit prior to such recordation and all amounts owing to the transferor with respect to such Revolving Loan Commitment, Loans and Letters of Credit shall remain owing to the transferor. In addition, the Administrative Agent shall maintain on the Register information regarding the designation and revocation of designation, of any Lender as a Defaulting Lender. The registration of an assignment or transfer of all or part of any Revolving Loan Commitment, Loan or Letter of Credit shall be recorded by the Agent on the Register only upon the acceptance by the Agent of a properly executed and delivered Assignment Agreement pursuant to Section 8.05(c). Coincident with the delivery of such an Assignment Agreement to the Agent for acceptance and registration of assignment or transfer of all or part of a Loan, or as soon thereafter as practicable, the assigning or transferor Lender shall surrender the Note evidencing such Loan, and thereupon one or more new Notes in the same aggregate principal amount shall be issued to assigning or transferor Lender. The Borrowers agree to indemnify the 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 Agent in performing its duties under this Section 8.05(d); and the Borrowers hereby designate the Administrative Agent, and the Administrative Agent agrees, to serve as the Borrowers’ agent, solely for purposes of this Section 8.05(d), to maintain the Participant Register.
$3,500, the Administrative Agent shall (i) promptly accept such Assignment Agreement and (ii) on the Assignment Effective Date determined pursuant thereto record the information contained therein in the Register and give notice of such acceptance and recordation to the Lenders and the Borrowers. The Administrative Agent may, from time to time at its election, prepare and deliver to the Lenders and the Borrowers a revised Schedule I reflecting the names, addresses and respective Revolving Loan Commitment or Loans of all Lenders then parties hereto (and in any event Schedule I shall be deemed amended to reflect any assignment consummated pursuant to the terms of this Agreement or upon any Lender becoming a party to this Agreement by any other means (including pursuant to a joinder as contemplated by Section 2.01(b)).
-147-
4147-6459-6034
assign all or a portion of its rights under this Agreement and the other Loan Documents to a Federal Reserve Bank. No such assignment shall relieve the assigning Lender from its obligations under this Agreement and the other Loan Documents. In the case of any Lender that is a Fund, such Lender may (i) assign or pledge all or any portion of the Loans held by it (and Notes evidencing such Loans) to the trustee under any indenture to which such Lender is a party in support of its obligations to the trustee for the benefit of the applicable trust beneficiaries, or (ii) pledge all or any portion of the Loans held by it (and Notes evidencing such Loans) to its lenders for collateral security purpose; provided, however, no such pledgee under clause (i) or (ii) shall become a Lender hereunder (by foreclosure, transfer in lieu of foreclosure or otherwise) unless and until it complies with the assignment provisions of this Agreement to become a Lender hereunder and has received all consents required hereunder.
| 8.06. | Setoff; Security Interest. |
-148-
4147-6459-6034
promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of set- off. The aforesaid right of set-off may be exercised by such Lender or its Affiliates against the Borrowers or against any trustee in bankruptcy, debtor in possession, assignee for the benefit of creditors, receiver or execution, judgment or attachment creditor of the Borrowers or against anyone else claiming through or against the Borrowers or such trustee in bankruptcy, debtor in possession, assignee for the benefit of creditors, receiver, or execution, judgment or attachment creditor, notwithstanding the fact that such right of set-off may not have been exercised by such Lender at any prior time. Each Lender agrees promptly to notify the Borrowers after any such set-off and application made by such Lender; provided, that the failure to give such notice shall not affect the validity of such set-off and application.
(c) which is otherwise known or available to the public or which is otherwise known to the
-149-
4147-6459-6034
receiving party prior to the time such Confidential Information was delivered to the Administrative Agent or any Lender; (d) if required or appropriate in any report, statement or testimony submitted to any Governmental Authority having or claiming to have jurisdiction over the Administrative Agent or such Lender (including as required in connection with pledges and assignments permitted under Section 8.05(g)); (e) if required in response to any summons or subpoena; (f) in connection with any enforcement by the Administrative Agent or the Lenders of their rights under this Agreement or the other Loan Documents or any litigation among the parties relating to the Loan Documents or the transactions contemplated thereby; (g) to comply with any Requirement of Law applicable to the Administrative Agent or such Lender; (h) to any Assignee Lender or Participant or any prospective Assignee Lender or Participant; provided that such Assignee Lender or Participant or prospective Assignee Lender or Participant agrees to be bound by the provisions of (or provisions substantially similar to) this Section 8.10; (i) the Title Company or (j) otherwise with the prior consent of such Loan Party; provided, however, that any disclosure made in violation of this Agreement shall not affect the obligations of the Loan Parties under this Agreement and the other Loan Documents. In addition, the Administrative Agent and the Lenders may disclose the existence of this Agreement and information about this Agreement to market data collectors, similar service providers to the lending industry and service providers to the Administrative Agent and the Lenders in connection with the administration of this Agreement and the other Loan Documents. Nothing in this Section 8.10 shall limit the use of any Platform as described in Section 8.01(b).
-150-
4147-6459-6034
parties to this Agreement irrevocably waives to the fullest extent permitted by applicable Governmental Rules (a) any objection which it may have now or in the future to the laying of the venue of any such action, suit or proceeding in any court referred to in the first sentence above;
(b) any claim that any such action, suit or proceeding has been brought in an inconvenient forum;
(c) its right of removal of any matter commenced by any other party in the courts of the State of Nevada or any Real Property State or to any court of the United States; (d) any immunity which it or its assets may have in respect of its obligations under this Agreement or any other Loan Document from any suit, execution, attachment (whether provisional or final, in aid of execution, before judgment or otherwise) or other legal process; and (e) any right it may have to require the moving party in any suit, action or proceeding brought in any of the courts referred to above arising out of or in connection with this Agreement or any other Loan Document to post security for the costs of any party or to post a bond or to take similar action.
-151-
4147-6459-6034
other information that will allow such Lender to identify the Borrowers in accordance with the Patriot Act.
-152-
4147-6459-6034
| 8.22. | Certain ERISA Matters. |
-153-
4147-6459-6034
Benefit Plans in connection with any Loans, Letters of Credit or the Revolving Loan Commitments;
-154-
4147-6459-6034
-155-
4147-6459-6034
“BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.
“Covered Entity” shall mean any of the following: (i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12
C.F.R. § 382.2(b).
“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).
-156-
4147-6459-6034
[The first signature page follows]
-157-
4147-6459-6034
IN WITNESS WHEREOF, the Borrowers, the Lenders, the Administrativ Agent, the L/C Issuer and the Swing Line Lender have caused this Agreement to be executed s of the day and year first above written.
BORROWERS:
MONARCH CASINO & RESORT, use.,
a Nevada corporation
BNaK:Jyohn:Fi =
Title:SecretaryJ
GOLDEN ROAD MOTOR INN, INC,,
a Nevada corporation
/2
// /,
By : ..-::7-::::>-:;x
X Xxxxxx
Title: Secretary
MONARCH GROWTH INC.,
B
a Nevada corporation
N. oFJr6hi Title:Director
--<-
MONARCH BLACK HAWK, INC.,
a Colorado corporation
[Signature Page to Fifth Amended and Restated Credit Agreement- Monarch 202f]
/
By: Nam2'ToimFarahi
Title:Director
[Signature Page to Fifth Amended and Restated Credit Agreement- Monarch 202f]
ADMINISTRATIVE AGENT, L/C ISSUER AND SWING LINE LENDER:
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Administrative Agent, L/C Issuer and Swing Line Lender
By::eiAt=
Name: Xxxxx XxXxxx
Title:Vice President
THE LENDERS:
XXXXX FARGO BANK, NATIONAL ASSOCIATION
By:'13UiJ..JA--u -
Name: Xxxxx XxXxxx
Title:Vice President
[Signature Page to Fifth Amended and Restated Credit Agreement- Monarch 2023]
LENDER
SCHEDULE I THE LENDERS
Part A
REVOLVING LOAN COMMITMENT
REVOLVING PROPORTIONATE SHARE
Xxxxx Fargo Bank, National Association
$100,000,000100%
TOTAL$100,000,000100%
1
Part B
XXXXX FARGO BANK, NATIONAL ASSOCIATION
as a Lender Notices:
Xxxxx Fargo Bank, National Association 0000 Xxxxxxx Xxxx, Xxxxx 000
Reno, Nevada 89511 Attention: Xxxxx XxXxxx Tel. No. (000) 000-0000
Fax No. (000) 000-0000
E-mail. xxxxx.x.xxxxxx@xxxxxxxxxx.xxx
Domestic and Foreign Lending Office:
Xxxxx Fargo Bank, National Association 1525 W. W.T. Xxxxxx Blvd
MAC D1109-019
Charlotte, NC 28262 Attention: Agency Services Fax No. (000) 000-0000
E-mail. xxxxxxxxxxxxxx.xxxxxxxx@xxxxxxxxxx.xxx
2
SCHEDULE II
SCHEDULE OF EXISTING LETTERS OF CREDIT
Standby Letter of Credit No. IS0502348U dated April 19, 2017 issued by Xxxxx Fargo in favor of The Hartford Fire Insurance Company.
SCHEDULE A
LEGAL DESCRIPTION
All that real property situated in the City of Reno, County of Washoe, State of Nevada, described as follows: PARCEL 1:
That certain parcel of land situate within the Northeast 1/4 of Section 25, Township 19 North, Range 19 East, M.D.B.&M., City of Reno, County of Washoe, State of Nevada and a portion of land shown on that certain "Reversion to Acreage" Parcel Map No. 2105, recorded March 5, 1987, as File No. 1144922, filed in the office of the Washoe County Recorder, State of Nevada, said Parcel No. 2105, being a reversion of acreage of Parcels A, B and C of Parcel Map No. 1085 filed April 18, 1980, as File No. 668558 in the office of the Washoe County Recorder, State of Nevada, more particularly described as follows:
BEGINNING at a point on the westerly line of Coliseum Way, said point being the Southwest corner of Parcel B of the above-mentioned Parcel Map No. 1085, from which point the Northeast corner of said Section 25 bears North 55°01'17" East 761.93 feet, said point being the true point of beginning; thence along said westerly line of Coliseum Way North 7°29'17" West 89.52 feet; thence South 69°53'10" West 1,082.38 feet to a point on the easterly line of S. Virginia Street; thence along said easterly line South 20°06'52" East 379.15 feet to the beginning of a tangent 25.00 foot radius curve to the left concave to the East, Northeast and North from which point the radius point bears North 69°53'08" East; thence southerly, southeasterly and easterly along said curve an arc distance of 37.15 feet through a central angle of 85°08'58" to a point on the North line of Xxxxxxx Xxxx; thence along said North line North 74°44'13" East 101.26 feet; thence North 77°47'44" East 99.26 feet to the beginning of a tangent 600.50 foot radius curve to the right concave to the South from which point the radius point bears South 12°12'16" East; thence easterly along said curve an arc distance of 117.60 feet through a central angle of 11°13'14"; thence North 76°58'43" East 27.42 feet to the beginning of a non-tangent 597.04 foot radius curve to the right concave to the South from which point the radius point bears South 0°02'01" East; thence from a tangent which bears North 89°57'59" East easterly along said curve an arc distance of 270.26 feet through a central angle of 25°56'08"; thence South 64°05'50" East 364.55 feet; thence North 25°54'07" East 23.81 feet to the beginning of a tangent 200.00 foot radius curve to the left concave to the Northwest and West from which point the radius point bears North 64°05'53" West; thence northeasterly and northerly along said curve an arc distance of
116.55 feet through a central angle of 33°23'24"; thence North 7°29'17" West 677.86 feet to the true point of beginning.
The basis of bearings for this description is the Nevada State Plane Coordinate System, West Zone (NAD 83/94).
Being further described as Parcel A as shown on Record of Survey Map No. 4880, according to the map thereof, filed in the office of the County Recorder of Washoe County, State of Nevada on April 6, 2007, as File No. 3518334, Official Records.
Page 1 of 7
NOTE: The above metes and bounds description appeared previously in that certain instrument recorded in the office of the County Recorder of Washoe County, Nevada on April 3, 2007, as Document No. 3516901 of Official Records.
(APN 020-254-58)
PARCEL 2:
That certain parcel of land situated within the Southeast 1/4 of Section 24 and in the Northeast 1/4 of Section 25, Township 19 North, Range 19 East, M.D.B.&M., City or Reno, County of Washoe, State of Nevada, more particularly described as follows:
BEGINNING at a point on the East line of Virginia Street as it presently exists from which point the Southwest corner of Parcel C of Reversion-Parcel Map No. 2105 recorded as File No. 1144922 on March 05, 1987 in the office of the County Recorder of Washoe County, Nevada, bears South 0°58'33" East 14.73 feet; said point also bears South 65°44'38" West 1,802.49 feet the Northeast corner of said Section 25, said point being the true point of beginning; thence North 69°10'56" East 173.39 feet; thence North 20°47'32" West 215.45 feet; thence South 69°10'54" West 173.49 feet; thence South 20°49'06" East 215.44 feet to the true point of beginning.
The basis of bearing used herein is the centerline tangent of Coliseum Way taken as North 8°11'31" West. Record per Parcel Map No. 1085 id North 8°10'00" West.
NOTE (NRS 111.312): The above metes and bounds description was prepared by Xxxxxxx X. Xxxxxxxxx, PLS# 5666, at Castle Land Surveying, 000 Xxxxxx Xxxxxx, Xxxx, XX 00000.
Being further described as Parcel C of Parcel Map No. 5226 according to the map thereof, filed in the office of the county recorder of Washoe county, State of Nevada, on April 8, 2016, as document no. 4577857, official records of Washoe county, Nevada.. (APN 020-254-63)
PARCEL 3:
All that certain real property situate in the County of Washoe, State of Nevada, described as follows:
Parcel B of Parcel Map No. 5226 for Biggest Little Investments, L.P., according to the map thereof, filed in the office of the County Recorder of Washoe County, State of Nevada, on April 8, 2016, as Document No. 4577857, Official Records of Washoe County, Nevada.
(APN 020-254-62)
Page 2 of 7
PARCEL 4:
The following easements:
| (1) | LAND EASEMENT AREAS |
The intent of the description of Land Easement Area 1 is for the purpose of describing the area related to the access to and from the Sky-bridge Walkway and the Skybridge-Tower structure and any appurtenances thereto, and the description of the Land Easement Areas 2 through 8 are to envelope the footings of the Skybridge-Tower structure and support columns for the Skybridge-Walkway, as such terms are defined by that certain Atlantis Convention Center Skybridge Agreement and Easement which was recorded in the Official Records of Was-hoe County, Nevada on May 10, 2007 as Document No. 3530942.
All those certain land easements described below as Land Easement Area 1 through 8 (collectively, "Land Easement Areas") situate in the NE % of Section 25, T19N, R19E, M.D.M., City of Reno, County of Washoe, State of Nevada, being portions of Parcel IA of Record of Survey No. 4385, recorded May 13, 2004 as File No. 3037530 in the Official Records of Washoe County, Nevada being more particularly described as follows:
LAND EASEMENT AREA 1
COMMENCING on the northerly boundary of said Parcel lA also being the southerly right-of-way of East Xxxxxxx Xxxx at the southeasterly end of a line labeled "N64°05'19"W, 61.68' " being the POINT OF COMMENCEMENT for the following descriptions;
THENCE departing said boundary and right-of-way South 44°25'38"
West, 19.24 feet to the POINT OF BEGINNING of EASEMENT AREA 1;
THENCE along the following fourteen (14) courses:
| 1) | South 19°24'41" West, 37.53 feet; |
| 2) | North 70°35'19" West, 62.00 feet; |
| 3) | North 19°24'41" East, 14.84 feet; |
| 4) | North 70°35'19" West, 5.00 feet; |
| 5) | South 19°24'41" West, 3.80 feet; |
| 6) | North 70°35'19" West, 27.00 feet; |
| 7) | North 19°24'41" East, 7.00 feet; |
| 8) | North 11°58'48" East, 11.60 feet; |
| 9) | North 19°24'41" East, 10.00 feet; |
| 10) | South 70°35'19" East, 30.00 feet; |
| 11) | South 19°24'41" West, 3.02 feet; |
| 12) | South 70°35'19" East, 19.00 feet; |
| 13) | North 19°24'41" East, 1.02 feet; |
| 14) | South 70°35'19" East, 46.50 feet to the POINT OF BEGINNING. |
Page 3 of 7
LAND EASEMENT AREA 2
THENCE departing said boundary and right-of-way South 76°19'26" West, 91.47 feet to the POINT OF BEGINNING of EASEMENT AREA 2;
THENCE along the following four (4) courses:
| 1) | South 19°24'41" West, 18.00 feet; |
| 2) | North 70°35'19" West, 24.00 feet; |
| 3) | North 19°24'41" East, 18.00 feet; |
| 4) | South 70°35'19" East, 24.00 feet to the POINT OF BEGINNING. |
LAND EASEMENT AREA 3
THENCE departing said boundary and right-of-way South 51°27'37" West, 102.62 feet to the POINT OF BEGINNING of EASEMENT AREA 3;
THENCE along the following four (4) courses:
| 1) | South 19°47'10" East, 20.00 feet; |
| 2) | South 70°12'50" West, 20.00 feet; |
| 3) | North 19°47'10" West, 20.00 feet; |
| 4) | North 70°12'50" East, 20.00 feet to the POINT OF BEGINNING; |
XXX) EASEMENT AREA 4
THENCE departing said boundary and right-of-way South 25°16'00" West, 137.29 feet to the POINT OF BEGINNING of EASEMENT AREA 4;
THENCE along the following four (4) courses:
| 1) | South 19°47'10" East, 20.00 feet; |
| 2) | South 70°12'50" West, 20.00 feet; |
| 3) | North 19°47'10" West, 20.00 feet; |
| 4) | North 70°12'50" East, 20.00 feet to the POINT OF BEGINNING; |
Page 4 of 7
LAND EASEMENT AREA 5
THENCE departing said boundary and right-of-way South 11°19'40" West, 188.04 feet to the POINT OF BEGINNING of EASEMENT AREA 5;
THENCE along the following four (4) courses:
| 1) | South 19°47'10" East, 20.00 feet; |
| 2) | South 70°12'50" West, 20.00 feet; |
| 3) | North 19°47'10" West, 20.00 feet; |
| 4) | North 70°12'50" East, 20.00 feet to the POINT OF BEGINNING; |
LAND EASEMENT AREA 6
THENCE departing said boundary and right-of-way South 03°34'21" West, 245.08 feet to the POINT OF BEGINNING of EASEMENT AREA 6;
THENCE along the following four (4) courses:
| 1) | South 19°47'10" East, 20.00 feet; |
| 2) | South 70°12'50" West, 20.00 feet; |
| 3) | North 19°47'10" West, 20.00 feet; |
| 4) | North 70°12'50" East, 20.00 feet to the POINT OF BEGINNING; |
LAND EASEMENT AREA 7
THENCE departing said boundary and right-of-way South 01°12'05" East, 304.89 feet to the POINT OF BEGINNING of EASEMENT AREA 7;
THENCE along the following four (4) courses:
| 1) | South 19°47'10" East, 20.00 feet; |
| 2) | South 70°12'50" West, 20.00 feet; |
| 3) | North 19°47'10" West, 20.00 feet; |
| 4) | North 70°12'50" East, 20.00 feet to the POINT OF BEGINNING; |
Page 5 of 7
LAND EASEMENT AREA 8
THENCE departing said boundary and right-of-way South 04°19'59" East, 351.55 feet to the POINT OF BEGINNING of EASEMENT AREA 8;
THENCE along the following four (4) courses:
| 1) | South 19°47'10" East, 7.00 feet; |
| 2) | South 70°12'50" West, 27.00 feet; |
| 3) | North 19°47'10" West, 7.00 feet; |
| 4) | North 70°12'50" East, 27.00 feet to the POINT OF BEGINNING; |
The basis of bearings for these descriptions is identical to the aforementioned Record of Survey No. 4385.
| (2) | AIRSPACE EASEMENT AREA |
The intent of this description is to create a three-dimensional corridor of that portion of the existing Skybridge-Walkway which is situate above the RSCC Land, as such terms are defined by that certain Atlantis Convention Center Skybridge Agyeement and Easement which was recorded in the Official Records of Washoe County, Nevada on May 10, 2007, as Document No. 3530942.
All that certain airspace easement situate in the NE 1/4 of Section 25, T19N, R19E, M.D.M., City of Reno, County of Washoe, State of Nevada, being a portion of Parcel 1 A of Record of Survey No. 4385, recorded May 13, 2004 as File No. 3037530 in the Official Records of Washoe County, Nevada being the basis of bearings for the description as follows:
COMMENCING on the northerly boundary of said Parcel lA also being the southerly right-of-way of East Xxxxxxx Xxxx at the northwesterly end of a line labeled "N64°05'19"W, 61.68' ";
THENCE along a non-tangent curve to the left having a radial bearing of South 21°41'28" West, a radius of
465.00 feet, a central angle of 01°38'45" and an arc length of 13.36 feet along said boundary to the POINT OF BEGINNING;
THENCE departing said common boundary and along the following six (6) courses:
| 1) | South 19°24'41" West, 47.45 feet; |
| 2) | South 70°35'19" East, 4.50 feet; |
| 3) | South 19°24'41" West, 14.30 feet; |
| 4) | North 70°35'19" West, 4.50 feet; |
| 5) | South 19°24'41" West, 1.46 feet; |
THENCE South 70°12'50" West, 28.00 feet along said wall;
Page 6 of 7
THENCE departing said wall and along the following two (2) courses:
| 1) | North 19°47'10" West, 373.32 feet; |
THENCE along a non-tangent curve to the right, having a radial bearing of South 16°35'39" West, a radius of 465.00 feet, a central angle of 03°27'04" and an arc length of 28.01 feet along said common boundary to the POINT OF BEGINNING.
The airspace easement is bounded vertically between the elevations of 4467.5 feet, bottom of bridge, to 4491.0 feet, top of parapet. Basis of Elevation are the control points as shown on Sheet C1.1 of the improvements plans for the Convention Center Skybridge as prepared by Xxxxxxxx Xxxxx Architect dated October 16, 2007.
| (3) | ENTRY EASEMENT AREA |
All that certain Skybridge Easement situate in the NE 1/4 of Section 25, T19N, R19E, M.D.M., City of Reno, County of Washoe, State of Nevada, being a portion of Parcel lA of Record of Survey Map No. 4385 as recorded in Washoe County Official Records on May 13th, 2004 as Filing No. 3037530 and being more particularly described as follows:
BEGINNING at an angle point on the southerly right-of-way line of East Xxxxxxx Xxxx, said point being on the South end of a course labeled S 30°24'11" W, 1.27' as shown in "Detail A" of said Record of Survey Map No. 4385; thence along the following nine (9) courses;
| 2. | S 26°38'07" W, 49.21 feet along said existing back of sidewalk; |
| 3. | N 64°56'08" W, 27.04 feet; |
| 5. | S 70°12'50" W, 89.00 feet along said North building line; |
| 6. | N 19°47'10" W, 368.05 feet; |
| 9. | S 64°05'19" E, 61.68 feet along said right-of-way to the POINT OF BEGINNING. |
NOTE: (NRS 111.312) The above metes and bounds description appeared previously in that certain document recorded in the office of the County Recorder of Washoe County, Nevada as Document No. 3721320, of Official Records.
Page 7 of 7
SCHEDULE B
LEGAL DESCRIPTION
All that real property situated in the City of Reno, County of Washoe, State of Nevada, described as follows:
PARCEL 1:
BEGINNING at the intersection of the Western line of South Virginia Street (U.S. 395), (86 feet wide) with the Southern line of the parcel of land described in Parcel 1 in the Deed to Xxxxxxx X. Xxxxxx, recorded in Book 74, File No. 44494, Deed Records, from said point of beginning the Southeast corner of Section 25, Township 19 North, Range 19 East, M.D.B.&M., bears South 20°42'22" East 4413.18 feet; thence along a fence line along the Southern boundary of said Moffat parcel the five following courses and distances: South 70°36'51" West 358.52 feet; North 19°50'56" West 63.62 feet; South 70°36'51" West 27.66 feet; North 22°02'59" West 27.33 feet; and South 67°27'53" West 635.24 feet to a fence line along the Western line of the Xxxxxxx Ditch; thence along said fence line along said Western line of said Xxxxxxx Ditch the ten following courses and distances: North 38°59'53" West 45.40 feet; North 3°43'20" West 65.74 feet; North 38°06'35" East 102.87 feet; North 0°22'42" West 86.15 feet; North 0°06'57" West 24.68 feet; North
7°46'41" West 49.06 feet; North 21°40'34" West 131.88 feet; North 10°43'03" West 84.24 feet; North 1°13'59" East 94.68 feet; and North 8°27'39" East 119.99 feet to a fence along the Northern boundary of said Moffat parcel; thence North 68°59'51" East along said fence line along said Northern boundary of said Moffat parcel 754.93 feet to said Western line of South Virginia Street; thence South 20°52'13" East along the last mentioned line 794.38 feet to the point of beginning, situate in the Northeast '/4 of said Section 25. Reference is made to License Survey No. 298942.
EXCEPTING THEREFROM that parcel described in Deed recorded November 3, 1970, under File No. 189261, Official Records of Washoe County.
ALSO EXCEPTING THEREFROM all that portion of the herein described property lying within West Xxxxxxx Xxxx as it presently exists, and or conveyed to the City of Reno by Xxxx recorded November 3, 1970, under File No. 189266.
AND ALSO EXCEPTING THEREFROM that portion described as Parcel 2 in Deed to Eagle Thrifty Drugs and Markets, Inc., a Nevada corporation, recorded January 7, 1972, under File No. 231197.
ALSO EXCEPTING THEREFROM that portion conveyed by an instrument recorded February 15, 2006 as File No. 3349617, Official Records.
Page 1 of 3
PARCEL 2:
COMMENCING at the East quarter corner of said Section 25; thence South 89°26'06" West along the East-West centerline of said Section 25, a distance of 1002.7 feet to the Western line of South Virginia Street (U. S. Highway 395); thence along said Western line of said South Virginia Street the two following courses and distances: North 20°34'25' West 353.34 feet and North 20°52'13" West a distance of 1243.52 feet to the most Easterly Northeast corner of Parcel 3 conveyed to Xxxxx Xxxxxxx, et al, by Xxxx recorded March 25, 1946, in Book 179 of Deeds, Page 586, Washoe County, Nevada, Records; thence along the Northerly boundary of said parcel South 70°36'37" West 370.46 feet, shown as South 68°19' West 364.7 feet in said Deed, the true point of beginning; thence along the Northerly boundary of said parcel the following courses and distances: North 19°51'17" West 63.54 feet, shown as North 20°56' West 64.00 feet in said Deed; South 70°40'05" West 27.67 feet, shown as South 66°36' West 28.7 feet in said Deed; North 22°02'34" West 27.34 feet, shown as North 19°25' West 28.00 feet in said Deed; and South 67°28'58" West a distance of
238.80 feet, shown as South 65°50' West in said Deed; thence leaving the Northerly boundary line of said parcel North 89°39'39" East 210.34 feet; thence on a curve to the left the tangent of which bears the last described course, having a radius of 170.00 feet through a central angle of 19°03'02" for an arc distance of 56.52; thence North 70°36'37" East a distance of 13.55 feet to the true point of beginning.
PARCEL 3:
COMMENCING at the Northwest corner of Section 25, Township 19 North, Range 19 East, M.D.B.&M.; thence South 73°50'45" East 1807.93 feet; thence East 900 feet to a point on the North-South quarter line of said Section 25; thence along said line South 0°23'30" East 245 feet to the true point of beginning, said point being on the same line as described in the Deed to Xxxxxxx X. Xxxxxxx and wife, recorded in Book 171, Page 172, Deed Records; thence South 89°36'30" East 82.08 feet to a point on the West bank of the Xxxxxxx Ditch marked by an iron pin; thence Southerly and along said West bank to a point and iron rod on said bank, at a point
9.0 feet South of the South line of the Northwest 1/4 of the Northeast 1/4 of said Section 25; thence parallel to said line West 62.3 feet to a rod on said North-South quarter line of said Section 25; thence along said quarter line North 0°23'30" West 581.00 feet to the true point of beginning, situate in the Northwest 1/4 of the Northeast 'A and the Southwest V of Northeast 1/4 of Section 25, Township 19 North, Range 19 East, M.D.B.&M.
EXCEPTING THEREFROM that portion conveyed to the City of Reno, by Xxxx recorded November 3, 1970, under File No. 189266.
Page 2 of 3
NOTE (NRS 111.312): THE ABOVE METES AND BOUNDS DESCRIPTION APPEARED PREVIOUSLY IN THAT CERTAIN INSTRUMENT RECORDED IN THE OFFICE OF THE COUNTY RECORDER OF WASHOE COUNTY, NEVADA ON AUGUST 5, 1993, AS DOCUMENT NO. 1699466 OF OFFICIAL RECORDS.
Page 3 of 3
SCHEDULE 3.01
Conditions Precedent to Closing
The Fifth Restatement Effective Date is subject to: (i) in the case of all conditions listed below which can be satisfied by the delivery of documentation or other items by the Loan Parties, receipt by the Administrative Agent of such documentation or other items, each in form and substance reasonably satisfactory to the Administrative Agent and each Lender and with sufficient copies for the Administrative Agent (and, where expressly indicated, each Lender) and
(ii) in the case of all other conditions listed below, the Administrative Agent’s determination that such conditions have been reasonably satisfied or waived.
-2-
-3-
as applicable, duly executed and acknowledged and in recordable form for all appropriate jurisdictions, as applicable;
-4-
contemplated under this Agreement in the manner contemplated by the Loan Documents (or any documents executed in connection therewith); or (B) any litigation pending or threatened against any Loan Party as of the Fifth Restatement Effective Date which could have a Material Adverse Effect;
-5-
or deemed applicable to the Loan Documents by a Governmental Authority having authority over any such Person that makes the closing of the Loan Documents or any extensions of credit thereunder illegal;
-6-
SCHEDULE 4.01(g) SCHEDULE OF LITIGATION
Negligence and fraud counterclaims asserted in the ongoing PCL Litigation, as defined in the Fourth Amended and Restated Credit Agreement.
We are also party to claims that arise in the normal course of business. Management believes that the outcomes of such claims will not have a material adverse impact on our financial condition, cash flows or results of operations.
SCHEDULE 4.01(h)
SCHEDULE OF REAL PROPERTY OWNED OR LEASED BY LOAN PARTIES
PARCEL 1:
ALL THAT PORTION OF THE NORTHWEST QUARTER OF THE NORTHEAST QUARTER OF SECTION 25, TOWNSHIP 19 NORTH, RANGE 19 EAST, M.D. B. & M., LYING WESTERLY OF THE WESTERLY BANK OF THE XXXXXXX DITCH.
EXCEPTING THEREFROM THAT PORTION CONVEYED TO XXXX X. XXXXX BY DEED RECORDED DECEMBER 26, 1947 IN BOOK 208, PAGE 547 AS DOCUMENT NO. 159106.
ALSO EXCEPTING THEREFROM THAT PORTION CONVEYED TO THE CITY OF RENO BY DEED OF DEDICATION RECORDED DECEMBER 11, 1969 IN BOOK 432, PAGE 538 AS DOCUMENT NO.
161681.
(portion of APN 024-040-07)
PARCEL 2:
COMMENCING AT THE NORTHWEST CORNER OF SECTION 25, TOWNSHIP 19 NORTH, RANGE 19 EAST, M.D.B.&M.;
THENCE SOUTH 73°50'45" EAST 1807.93 FEET;
THENCE EAST 900 FEET TO A POINT ON THE NORTH-SOUTH QUARTER LINE OF SAID SECTION 25;
THENCE ALONG SAID LINE SOUTH 0°23'30" EAST 205 FEET TO A FENCE AT THE NORTHWEST CORNER OF THE PARCEL OF LAND DESCRIBED IN THE DEED TO XXXX X. XXXXX, RECORDED DECEMBER 26, 1947 IN BOOK 208 OF DEEDS, PAGE 547, FILE NO. 159106, DEED RECORDS.
THENCE CONTINUING SOUTH 0°23'30" EAST 40.00 FEET TO THE TRUE POINT OF BEGINNING, SAID POINT BEING ON THE SAME LINE AS DESCRIBED IN THE DEED TO XXXXXXX X. XXXXXXX AND WIFE, RECORDED IN BOOK 171, PAGE 172, DEED RECORDS;
THENCE ALONG SAID LINE NORTH 0°23'30" WEST 40.0 FEET TO SAID FENCE ALONG THE NORTHERN LINE OF THE PARCEL DESCRIBED IN SAID DEED TO XXXXX;
Page 1 of 4
THENCE ALONG LAST MENTIONED LINE, NORTH 67°20'30" EAST, 97.32 FEET, MORE OR LESS TO A FENCE ALONG THE WESTERN BANK OF THE COCHRANE DITCH;
THENCE ALONG SAID LAST MENTIONED LINE, SOUTH 5°32'30" WEST, 77.29 FEET, MORE OR LESS, TO A LINE DRAWN NORTH 89°36'30" EAST FROM THE TRUE POINT OF BEGINNING;
THENCE SOUTH 89°36'30" WEST, 82.08 FEET, MORE OR LESS TO THE TRUE POINT OF BEGINNING, BEING A PORTION OF THE NORTHWEST QUARTER OF THE NORTHEAST QUARTER OF SAID SECTION 25.
NOTE: The above metes and bounds description appeared previously in that certain Xxxxx, Bargain and Sale Deed recorded in the office of the County Recorder of Washoe County, Nevada on October 2, 2015, as Document No. 4519742 of Official Records.
(remainder of APN 024-040-07)
Lot 1, Block 1, Monarch Casino Filing No. 1, plat recorded December 12, 2014, at Reception No. 152710, County of Xxxxxx, State of Colorado.
Parcel 2:
Tract “B”, Monarch Casino Filing No. 1, City of Black Hawk, County of Xxxxxx, State of Colorado, more particularly describe as follows:
Beginning at the Southeast corner of said Tract “B” thence along the Southerly line of said Tract N 72°00’00” W, 147.63 feet , with all bearings contained herein relative thereto; Thence continuing along said Tract the following five (5) courses:
| 1. | N 13°53’59” E, 48.33 feet; |
| 2. | Thence N 34°27’04” E, 38.61 feet; |
| 4. | Thence S 54°11’53” E 6.45 feet; |
| 5. | Thence S 32°28’22” E, 108.60 feet to the Point of Beginning |
Also described in Exhibit A of Ordinance Number 2015-24 recorded November 13, 2015, at Reception No. 155143.
Parcel 3:
A Parcel of Land located within the Main Street right-of-way, City of Black Hawk, County of Xxxxxx, State of Colorado, more particularly described as follows:
Beginning at the Southeast corner of Tract “B”, Monarch Casino Filing No. 1, Whence the
Page 2 of 4
Southerly line thereof bears N 72°00’00” W with all bearings contained herein relative thereto; Thence S 12°21’00” W, 27.06 feet; Thence N 66°15’29” W, 27.44 feet; Thence N 73°32’04” W,
43.49 feet; Thence N 75°33’29” W, 71.19 feet; Thence N 77°03’55” W, 81.60 feet; Thence N 13°54’36” E, 6.00 feet to a point along the Southerly line of Monarch Casino Filing No. 1; Thence along the common line of said Subdivision and the Main Street right-of-way the following four (4) courses:
| 1. | S 76°05’24” E, 63.64 feet; |
| 3. | Thence N 13°53’59” E, 15.80 feet; |
| 4. | Thence S 72°00’00” E, 149.27 feet to the Point of Beginning. |
As described in Exhibit B of Ordinance Number 2015-24 recorded November 13, 2015, at Reception No. 155143.
The Land referred to herein below is situated in the County of Clear Creek, State of Colorado, and is described as follows:
A tract of land in the Southeast Quarter of the Southeast Quarter of Section 2, Township 4 South, Range 72 West of the 6th p.m., County of Clear Creek, State of Colorado, being more particularly described as follows:
Commencing at the Southeast Corner of said Section 2, said point being a 3-1/4 inch aluminum cap PLS 6735 dated 1988; thence N 70°50'20" W, 435.58 feet to the True Point of Beginning, said point being a No. 5 rebar with 1-1/2 inch aluminum cap, PLS 12405;
thence N 88°44'42" W, 47.13 feet to a No. 5 rebar with 1-1/2 inch aluminum cap PLS 12405; thence N 75°54'34" W, 149.90 feet to a ½" pinch-top pipe;
thence S 00°09'12" E, 121.70 feet to a No. 5 rebar with a 1-1/2 inch aluminum cap PLS 6964; thence N 54°57'27" W, 368.61 feet to a No. 5 rebar with a 1-1/2 inch aluminum cap stamped "CDOH";
thence N 72°20'53" W, 149.52 feet to a No. 5 rebar with a 1-1/2 inch aluminum cap stamped "CDOH";
thence S 81°02'06" W, 480.58 feet to a 3-1/4 inch aluminum cap stamped "CDOT ROW MON 113 PLS 25384;
thence N 68°47'49" W, 206.11 feet to a No. 5 rebar with a 1-1/2 inch aluminum cap PLS 12405; thence N 10°53'25" E, 250.83 feet to a No. 5 rebar with a 1-1/2 inch aluminum cap LS 13258; thence S 86°12'38" E, 483.12 feet to a No. 5 rebar with a 1-1/2 inch aluminum cap LS 13258; thence N 03°46'49" E, 32.54 feet to a set No. 5 rebar with 1-1/4 inch plastic cap PLS 23518;
thence S 86°12'57" E, 773.15 feet to a set No. 5 rebar with a 1-1/4 inch plastic cap PLS 23518;
Page 3 of 4
thence S 00°02'29" E, 368.31 feet to the True Point of Beginning,
Which is shown as Lot 1 on the Xxxxx Xxxx Crossing Division of Land Survey Plat, Minor Subdivision Exemption Case No. 06-BX-02, recorded with the Clear Creek County Clerk and Recorder's Office at Reception No. 239987, in Book 758 at Page 887,
County of Clear Creek, State of Colorado.
For informational purposes only: APN: 1963-024-02-001
Page 4 of 4
SCHEDULE 4.01(j)(ii)
SCHEDULE OF OUTSTANDING SUBSCRIPTIONS, OPTIONS, CONVERSION RIGHTS OR WARRANTS
None, other than officer, director and employee stock options issued pursuant to stock option plans disclosed to Administrative Agent.
SCHEDULE 4.01(k)
SCHEDULE OF MULTIEMPLOYER PLANS
None.
SCHEDULE 4.01(o)
SCHEDULE OF SUBSIDIARIES
Inter-Mountain Construction, LLC, plus the Excluded Subsidiaries.
AMS Risk Management & Consulting, Inc.
SCHEDULE 4.01(u)
Borrowers shall secure, pay for and maintain for all gaming, restaurant and hotel facilities for the Atlantis Hotel Casino Resort Spa and the Monarch Casino Black Hawk (collectively, the “Gaming Facilities”), without interruption, at its own expense, the following insurance policies including all specified coverages and limits during the term of this Credit Agreement:
| a. | PROPERTY INSURANCE – Borrowers shall maintain a Special Causes of Loss ("All Risk" - ISO Form or Equivalent), perils policy covering the buildings and improvements, and any other permanent structures, relating to any Gaming Facilities for one hundred percent (100%) of the replacement cost. Borrowers shall maintain Earthquake coverage at no less than Twenty-Five Million Dollars ($25,000,000) for Atlantis Hotel Casino Resort Spa and Fifty Million Dollars ($50,000,000) for Monarch Casino Black Hawk. Flood coverage must be maintained at Fifty Million Dollars ($50,000,000) for Gaming Facilities. Upon the request of the Administrative Agent, replacement cost for insurance purposes will be established by an independent appraiser mutually selected by Xxxxxxxxx and Administrative Agent. The policy will include Agreed Amount (waiving co- insurance), replacement cost valuation and building ordinance endorsements. The policy shall provide that all losses in excess of One Million Dollars ($1,000,000) be adjusted with the Administrative Agent. Borrowers waive any and all rights of subrogation against Administrative Agent and Xxxxxxx resulting from losses to property. |
FIXTURES, STOCK) – Borrowers shall maintain a Special Causes of Loss (“All Risk”) perils property coverage which represents one hundred percent (100%) of the values at Replacement Cost for all personal property relating to the Gaming Facilities, owned, leased or for which Borrowers are legally liable. The coverage will include a Lender’s Loss Payable Endorsement in favor of the Administrative Agent (i.e. Borrowers’ acts will not impair Xxxxxx's right to recover, exclusive payment of loss to Lender and automatic notice of cancellation/non-renewal to Lender).
The policy providing Real Property and Personal Property coverages, as specified in clauses (a) and (b), hereinabove, may include a deductible of no more than Two- Hundred and Fifty Thousand Dollars ($250,000) for any single occurrence.
| c. | BUSINESS INCOME/EXTRA EXPENSE – Borrowers shall maintain combined Business Income/Extra Expense coverage with a limit at an amount sufficient to cover annual net profit plus continuing expenses (including debt service) for the Gaming Facilities. Such coverage shall include extensions for Off Premises Power losses at Two Million Five Hundred Thousand Dollars ($2,500,000) and Extended Period of Indemnity of one hundred eighty (180) days endorsement. These coverages may have deductibles of no greater than forty-eight (48) hours, or One Hundred Thousand Dollars ($100,000), if a separate deductible applies. This coverage will be specifically endorsed to include the Administrative Agent as Loss Payee (i.e. loss payments will be made to the Borrowers and Administrative Agent). |
All Property coverage including Real Property, Personal Property and Business Income cannot include any exclusion/limitation regarding coverage for Terrorism or Terrorist Acts.
| d. | BOILER & MACHINERY – Borrowers shall maintain a Boiler & Machinery policy for the Gaming Facilities written on a Comprehensive Form with a combined direct and indirect limit of no less than Fifty Million Dollars ($50,000,000). The policy shall include extensions for Agreed Amount (waiving co-insurance) and Replacement Cost Valuation. The policy may contain deductibles of no greater than One Hundred Thousand Dollars ($100,000) direct and forty-eight (48) hours indirect. |
| e. | CRIME INSURANCE – Borrowers shall obtain a comprehensive Crime policy, including the following coverages: |
| iii. | Money and Securities (Outside) – One Million Dollars ($1,000,000) |
The policy must be amended so that money is defined to include “tokens and chips”. The policy may contain a deductible of no greater than Fifty Thousand ($50,000) for all coverages.
Borrowers shall maintain a Commercial General Liability Policy with a One Million Dollar ($1,000,000) combined single limit for bodily injury and property damage, including Products Liability, Contractual Liability and all standard policy form extensions. The policy must provide a Two Million Dollar ($2,000,000) general
aggregate (per location, if multi-location risk) and be written on an “occurrence form”. The policy will include extensions for Employee Benefits Legal and Liquor Legal Liability. If the policy contains a self-insured retention, it shall be no greater than Fifty Thousand Dollars ($50,000) per occurrence.
The policy shall be endorsed to include the Administrative Agent as an Additional Insured. Definition of Additional Insured shall include all Officers, Directors, Employees, Agents and Representatives of the Additional Insured. The coverage for Additional Insured shall apply on a primary basis irrespective of any other insurance whether collectible or not (ISO Endorsement Form #CG 20261185 Additional Insured – Designated Person or Organization or Equivalent).
| g. | AUTOMOBILE – Borrowers shall maintain a comprehensive Automobile Liability Insurance Policy written under coverage Symbol “1” providing a One Million Dollar ($1,000,000) combined single limit for bodily injury and property damage covering all owned, non-owned and hired vehicles of the Borrowers and used in connection with any Gaming Facilities. |
Garagekeepers Legal Liability – A One Million Dollar ($1,000,000) limit for comprehensive and collision coverages for physical damage to vehicles in the Borrowers’ care, custody and control. The policy can be subject to a deductible of no greater than Five Thousand Dollars ($5,000) for each auto and Twenty Five Thousand Dollars ($25,000) for each loss.
shall maintain a standard Workers Compensation policy covering the State of Nevada (Atlantis), Colorado (Black Hawk) and any other state where Borrowers own or operate Gaming Facilities, including Employers Liability coverage subject to a limit of no less than One Million Dollars ($1,000,000) for each employee, One Million Dollars ($1,000,000) for each accident, One Million Dollars ($1,000,000) policy limit. The policy shall include endorsements for Voluntary Compensation Coverage and Stop Gap Liability. If Borrowers have elected to self-insure Workers Compensation coverage in the State of Nevada (Atlantis), Colorado (Black Hawk), (or any other state), then the Administrative Agent must be furnished with a copy of the self-insurance program documentation in form and substance acceptable to Lender and its insurance consultant, and evidence of the Stop Loss Excess Workers Compensation policy with a specific retention of no greater than Five Hundred Thousand Dollars ($500,000) per occurrence.
| i. | RETENTION – If Borrowers’ General Liability, Automobile and Workers Compensation policies include a self-insured retention, it is agreed and fully understood that Borrowers are solely responsible for payment of all amounts due within said self-insured retentions. Any Indemnification/ Hold Harmless provision is extended to cover all liability associated with said self-insured retentions. |
| j. | UMBRELLA LIABILITY – An Umbrella Liability policy shall be purchased with a limit of not less than Seventy Five Million Dollars ($75,000,000) providing excess coverage over all limits and coverages indicated in Paragraphs (f), (g) and (h) of this Schedule 4.01(u). The limits can be secured by a combination of policies as long as they follow form over policies required under (f), (g) and (h) of this Schedule and are written on an “occurrence” form. This policy shall be endorsed to include Administrative Agent as an Additional Insured, in the same manner set forth in this Schedule 4.01(u) hereinabove. |
| l. | GENERAL REQUIREMENTS (ALL POLICIES) – All policies indicated above shall be written with insurance companies licensed and admitted to do business in all states Borrowers are operating and shall be rated no lower than “A X” in the most recent edition of A.M. Best’s ratings. All policies discussed above shall be endorsed to provide that in the event of a cancellation, non-renewal or material modification, the Administrative Agent shall receive thirty (30) days prior written notice thereof. Borrowers shall furnish the Administrative Agent with certificates of insurance executed by an authorized agent evidencing compliance with all insurance provisions discussed above on an annual basis. Borrowers shall also furnish the Declaration Page of each policy required and policy endorsements evidencing the appropriate status of the Administrative Agent, as Administrative Agent for the Lenders (as Loss Payee, Additional Insured, etc) under each policy. Certificates of insurance executed by an authorized agent of each carrier providing insurance evidencing continuation of all coverages shall be provided on the Fifth Restatement Effective Date and annually on or before ten (10) days prior to expiration of each policy. All certificates and other notices related to the insurance program shall be delivered to the Administrative Agent concurrently with the delivery of such certificates or notices to such carrier or to the Borrowers, or any of them, as applicable. |
| m. | OTHER – Any other insurance reasonably requested by Administrative Agent in such amounts and covering such risks as may reasonably be required and customary for the operation/facility of the Borrowers. Approval of any insurance by the Administrative Agent shall not be a representation of the solvency of any insurer or the sufficiency of any coverage required under this Agreement. All requirements are considered minimums in terms of the purchase and maintenance of insurance under this Agreement. |
| n. | NOTICE – The Borrowers shall provide the Administrative Agent with 30 days’ prior written notice of (i) any proposed material change in any of the policies maintained in connection with the foregoing and (ii) any proposed change from any insurance company or carrier of the policies maintained in connection with the foregoing together with the rating of the proposed insurance company or carrier in the most recent edition of A.M. Best’s Ratings. |
SCHEDULE 4.01(v)
SCHEDULE OF AGREEMENTS WITH AFFILIATES
None.
SCHEDULE 5.02(B) SCHEDULE OF LIENS
Debtor | Jurisdiction Searched | Secured Party | Filing Number | Filing Date | Amendment/ Continuation/ Assignment/ Release |
Monarch Black Hawk, Inc. | CO SOS | US Foods, Inc. | 20162018218 | 2/29/2016 | |
| | | 20212005644 | 01/19/202 1 | Continuation |
Monarch Casino & | NV SOS | Aristocrat | 2018009288-6 | 4/3/2018 | |
Resort, Inc. | | Technologies, Inc. | | | |
Atlantis Casino | | | | | |
Report Spa-Reno | | | | | |
Monarch Casino & | NV SOS | Aristocrat | 2018013800-0 | 5/17/2018 | |
Resort, Inc. | | Technologies, Inc. | | | |
Atlantis Casino | | | | | |
Report Spa-Reno | | | | |
SCHEDULE 5.02(e)
SCHEDULE OF EXISTING INVESTMENTS
None, other than investments previously made in Excluded Subsidiaries.
EXHIBIT A
NOTICE OF LOAN BORROWING
[Date]
Xxxxx Fargo Bank, National Association as the Administrative Agent
1525 West X.X. Xxxxxx Boulevard MAC D1109-019
Charlotte, NC 28262
Attn: Agency Services Manager Tel: (000) 000-0000
Fax: (000) 000-0000
Email: Xxxxxxxxxxxxxx.xxxxxxxx@xxxxxxxxxx.xxx
| (a) | The principal amount of the requested Borrowing is to be $ ; |
A-1
0000-0000-0000
material respects (except to the extent that such representation and warranty is qualified by materiality, in which case such representation and warranty must be true in all respects) as if made on such date (except for representations and warranties expressly made as of a specified date, which shall be true and correct in all material respects (except to the extent that such representation and warranty is qualified by materiality, in which case such representation and warranty must be true in all respects) as of such date);
[This Space Intentionally Left Blank]
A-2
0000-0000-0000
IN WITNESS WHEREOF, the Borrowers have executed this Notice of Loan Borrowing on the date set forth above.
MONARCH CASINO & RESORT, INC.,
a Nevada corporation
By: Name: Title:
GOLDEN ROAD MOTOR INN, INC.,
a Nevada corporation
By: Name: Title:
MONARCH GROWTH INC.,
a Nevada corporation
By: Name: Title:
MONARCH BLACK HAWK, INC.,
a Colorado corporation
By: Name: Title:
0000-0000-0000
A-3
0000-0000-0000
EXHIBIT B
NOTICE OF CONVERSION
[Date]
Xxxxx Fargo Bank, National Association as the Administrative Agent
1525 West X.X. Xxxxxx Boulevard MAC D1109-019
Charlotte, NC 28262
Attn: Agency Services Manager Tel: (000) 000-0000
Fax: (000) 000-0000
Email: Xxxxxxxxxxxxxx.xxxxxxxx@xxxxxxxxxx.xxx
TypeAmountInterest Period
The Revolving Loans of the Borrowing are to be converted into [“Base Rate”] [“SOFR”] Loans, as applicable;
B-1
0000-0000-0000
[This Space Intentionally Left Blank]
B-2
0000-0000-0000
IN WITNESS WHEREOF, the Borrowers have executed this Notice of Conversion on the date set forth above.
MONARCH CASINO & RESORT, INC.,
a Nevada corporation
By: Name: Title:
GOLDEN ROAD MOTOR INN, INC.,
a Nevada corporation
By: Name: Title:
MONARCH GROWTH INC.,
a Nevada corporation
By: Name: Title:
MONARCH BLACK HAWK, INC.,
a Colorado corporation
By: Name: Title:
0000-0000-0000
B-3
0000-0000-0000
EXHIBIT C
NOTICE OF INTEREST PERIOD SELECTION
[Date]
Xxxxx Fargo Bank, National Association as the Administrative Agent
1525 West X.X. Xxxxxx Boulevard MAC D1109-019
Charlotte, NC 28262
Attn: Agency Services Manager Tel: (000) 000-0000
Fax: (000) 000-0000
Email: Xxxxxxxxxxxxxx.xxxxxxxx@xxxxxxxxxx.xxx
, ; and
[This Space Intentionally Left Blank]
C-1
0000-0000-0000
IN WITNESS WHEREOF, the Borrowers have executed this Notice of Interest Period Selection on the date set forth above.
MONARCH CASINO & RESORT, INC.,
a Nevada corporation
By: Name: Title:
GOLDEN ROAD MOTOR INN, INC.,
a Nevada corporation
By: Name: Title:
MONARCH GROWTH INC.,
a Nevada corporation
By: Name: Title:
MONARCH BLACK HAWK, INC.,
a Colorado corporation
By: Name: Title:
C-2
0000-0000-0000
EXHIBIT D
NOTICE OF SWING LOAN BORROWING
[Date]
Xxxxx Fargo Bank, National Association as the Administrative Agent
1525 West X.X. Xxxxxx Boulevard MAC D1109-019
Charlotte, NC 28262
Attn: Agency Services Manager Tel: (000) 000-0000
Fax: (000) 000-0000
Email: Xxxxxxxxxxxxxx.xxxxxxxx@xxxxxxxxxx.xxx
| (a) | TheprincipalamountoftheSwingLoanBorrowingistobe |
$ ; and
D-1
0000-0000-0000
warranty is qualified by materiality, in which case such representation and warranty must be true in all respects) as of such date);
[This Space Intentionally Left Blank]
D-2
0000-0000-0000
IN WITNESS WHEREOF, the Borrowers have executed this Notice of Swing Loan Borrowing on the date set forth above.
MONARCH CASINO & RESORT, INC.,
a Nevada corporation
By: Name: Title:
GOLDEN ROAD MOTOR INN, INC.,
a Nevada corporation
By: Name: Title:
MONARCH GROWTH INC.,
a Nevada corporation
By: Name: Title:
MONARCH BLACK HAWK, INC.,
a Colorado corporation
By: Name: Title:
0000-0000-0000
D-3
0000-0000-0000
EXHIBIT E
SIXTH AMENDED AND RESTATED REVOLVING LOAN NOTE
$ ,
FOR VALUE RECEIVED, MONARCH CASINO & RESORT, INC., a Nevada
corporation (“Parent”), GOLDEN ROAD MOTOR INN, INC., a Nevada corporation (“Golden Road”), MONARCH GROWTH INC., a Nevada corporation (“MGI”) and MONARCH BLACK HAWK, INC., a Colorado corporation (“Black Hawk” and together with Parent, Golden Road and MGI, each a “Borrower” and collectively, the “Borrowers”) hereby promise to pay to the
orderof (the“Lender”),theprincipalsumof
DOLLARS ($ ) or such lesser amount as shall equal the aggregate outstanding principal balance of the Revolving Loans made by the Lender to the Borrowers pursuant to that certain Fifth Amended and Restated Credit Agreement, dated as of February 1, 2023, among the Borrowers, each of the financial institutions party thereto from time to time, Xxxxx Fargo Bank, National Association, as administrative agent for the Lenders (in such capacity, the “Administrative Agent”), as L/C Issuer and as Swing Line Lender (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), on or before the Maturity Date specified in the Credit Agreement; and to pay interest on said sum, or such lesser amount, at the rates and on the dates provided in the Credit Agreement.
This Sixth Amended and Restated Revolving Loan Note (the “Note”) amends, restates and replaces in its entirety that certain Fifth Amended and Restated Revolving Loan Note dated as of ¸ executed by the Borrowers in favor of the Lender.
The Borrowers shall make all payments hereunder, for the account of the Lender’s Applicable Lending Office, to the Administrative Agent as indicated in the Credit Agreement, in lawful money of the United States and in same day or immediately available funds.
Each Borrower hereby authorizes the Lender to record on the schedule(s) annexed to this Note, the date and amount of each Revolving Loan and of each payment or prepayment of principal made by the Borrowers and agrees that all such notations shall be conclusive absent manifest error with respect to the matters noted; provided, however, that the failure of the Lender to make, or any error in making, any such notation shall not affect the Borrowers’ obligations hereunder.
This Note is one of the Revolving Loan Notes referred to in the Credit Agreement. This Note is subject to the terms of the Credit Agreement, including the rights of prepayment and the rights of acceleration of maturity set forth therein, and is secured by the Security Documents. Terms used herein have the meanings assigned to those terms in the Credit Agreement, unless otherwise defined herein.
The transfer, sale or assignment of any rights under or interest in this Note is subject to certain restrictions contained in the Credit Agreement, including Section 8.05 thereof.
E-1
0000-0000-0000
The Borrowers shall pay all fees and expenses, including attorneys’ fees, incurred by the Lender in the enforcement or attempt to enforce any of the Borrowers’ obligations hereunder not performed when due. Each Borrower hereby waives notice of presentment, demand, protest or notice of any kind.
All obligations of the Borrowers hereunder shall be joint and several.
This Note shall be governed by and construed in accordance with the laws of the State of Nevada without reference to conflicts of law rules.
[This Space Intentionally Left Blank]
E-2
0000-0000-0000
above.
IN WITNESS WHEREOF, the Borrowers have executed this Note on the date set forth
MONARCH CASINO & RESORT, INC.,
a Nevada corporation
By: Name: Title:
GOLDEN ROAD MOTOR INN, INC.,
a Nevada corporation
By: Name: Title:
MONARCH GROWTH INC.,
a Nevada corporation
By: Name: Title:
MONARCH BLACK HAWK, INC.,
a Colorado corporation
By: Name: Title:
E-3
0000-0000-0000
LOANS AND PAYMENTS OF PRINCIPAL
Date | Type of Loan | Amount of Loan | Interest Period Amount of Principal Paid or Prepaid | Unpaid Principal Balance | Notation Made By |
| | | | | |
| | | | | |
| | | | | |
| | | | | |
E-4
0000-0000-0000
EXHIBIT F
FOURTH AMENDED AND RESTATED SWING LOAN NOTE
$ ,
FOR VALUE RECEIVED, MONARCH CASINO & RESORT, INC., a Nevada
corporation (“Parent”), GOLDEN ROAD MOTOR INN, INC., a Nevada corporation (“Golden Road”), MONARCH GROWTH INC., a Nevada corporation (“MGI”) and MONARCH BLACK HAWK, INC. (“Black Hawk” and together with Parent, Golden Road and MGI, each a “Borrower” and collectively, the “Borrowers”), hereby promise to pay to the order of
(the “Lender”), the principal sum of DOLLARS ($ ) or such lesser amount as shall equal the aggregate outstanding principal balance of the Swing Line Loans made by the Lender to the Borrowers pursuant to that certain Fifth Amended and Restated Credit Agreement, dated as of February 1, 2023, among the Borrowers, each of the financial institutions party thereto from time to time, Xxxxx Fargo Bank, National Association, as administrative agent for the Lenders (in such capacity, the “Administrative Agent”), as L/C Issuer and as Swing Line Lender (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), on or before the Maturity Date specified in the Credit Agreement; and to pay interest on said sum, or such lesser amount, at the rates and on the dates provided in the Credit Agreement.
This Fourth Amended and Restated Note (the “Note”) amends, restates and replaces in its entirety that certain Third Amended and Restated Swing Loan Note dated as of July 20, 2016¸ executed by the Borrowers in favor of the Lender.
The Borrowers shall make all payments hereunder, for the account of the Lender’s Applicable Lending Office, to the Administrative Agent as indicated in the Credit Agreement, in lawful money of the United States and in same day or immediately available funds.
Each Borrower hereby authorizes the Lender to record on the schedule(s) annexed to this Note the date and amount of each Swing Line Loan and of each payment or prepayment of principal made by the Borrowers and agrees that all such notations shall be conclusive absent manifest error with respect to the matters noted; provided, however, that the failure of the Lender to make, or any error in making, any such notation shall not affect the Borrowers’ obligations hereunder.
This Note is one of the Swing Loan Notes referred to in the Credit Agreement. This Note is subject to the terms of the Credit Agreement, including the rights of prepayment and the rights of acceleration of maturity set forth therein, and is secured by the Security Documents. Terms used herein have the meanings assigned to those terms in the Credit Agreement, unless otherwise defined herein.
The transfer, sale or assignment of any rights under or interest in this Note is subject to certain restrictions contained in the Credit Agreement, including Section 8.05 thereof.
F-1
0000-0000-0000
The Borrowers shall pay all fees and expenses, including attorneys’ fees, incurred by the Lender in the enforcement or attempt to enforce any of the Borrowers’ obligations hereunder not performed when due. Each Borrower hereby waives notice of presentment, demand, protest or notice of any other kind.
All obligations of the Borrowers hereunder shall be joint and several.
This Note shall be governed by and construed in accordance with the laws of the State of Nevada without reference to conflicts of law rules.
[This Space Intentionally Left Blank]
F-2
0000-0000-0000
above.
IN WITNESS WHEREOF, the Borrowers have executed this Note on the date set forth
MONARCH CASINO & RESORT, INC.,
a Nevada corporation
By: Name: Title:
GOLDEN ROAD MOTOR INN, INC.,
a Nevada corporation
By: Name: Title:
MONARCH GROWTH INC.,
a Nevada corporation
By: Name: Title:
MONARCH BLACK HAWK, INC.,
a Colorado corporation
By: Name: Title:
0000-0000-0000
F-3
0000-0000-0000
EXHIBIT G ASSIGNMENT AGREEMENT
This Assignment Agreement (the “Assignment Agreement”) is dated as of the Effective Date set forth below and is entered into by and between [INSERT NAME OF ASSIGNOR] (the “Assignor”) and the parties identified on the Schedules hereto and [the] [each]1 Assignee identified on the Schedules hereto as “Assignee” or as “Assignees” (collectively, the “Assignees” and each, an “Assignee”). [It is understood and agreed that the rights and obligations of [the Assignees][the Assignors]2 hereunder are several and not joint.]3 Capitalized terms used but not defined herein shall have the meanings given to them in the Credit Agreement identified below (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), receipt of a copy of which is hereby acknowledged by [the] [each] Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment Agreement as if set forth herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells and assigns to [the Assignee] [the respective Assignees], and [the] [each] Assignee hereby irrevocably purchases and assumes from the Assignor, subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the Administrative Agent as contemplated below (i) all of the Assignor’s rights and obligations in its capacity as a Lender under the Credit Agreement and any other documents or instruments delivered pursuant thereto to the extent related to the amount and percentage interest identified below of all of such outstanding rights and obligations of the Assignor under the respective facilities identified below (including without limitation any letters of credit and guarantees included in such facilities) and
(ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action and any other right of the Assignor (in its capacity as a Lender) against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including, but not limited to, contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold and assigned to [the] [any] Assignee pursuant to clauses (i) and (ii) above being referred to herein collectively as, [the] [an] “Assigned Interest”). Each such sale and assignment is without recourse to the Assignor and, except as expressly provided in this Assignment Agreement, without representation or warranty by the Assignor.
1 For bracketed language here and elsewhere in this form relating to the Assignee(s), if the assignment is to a single Assignee, choose the first bracketed language. If the assignment is to multiple Assignees, choose the second bracketed language.
2 Select as appropriate.
3 Include bracketed language if there are multiple Assignees.
G-1
0000-0000-0000
| 1. | Assignor:[INSERT NAME OF ASSIGNOR] |
| 2. | Assignee(s):See Schedules attached hereto |
| 3. | Borrowers:Monarch Casino & Resort, Inc., Golden Road Motor Inn, Inc., |
Monarch Growth Inc., and Monarch Black Hawk, Inc.
| 4. | Administrative Agent: |
Xxxxx Fargo Bank, National Association, as the administrative agent under the Credit Agreement
| 5. | Credit Agreement: Fifth Amended and Restated Credit Agreement, dated as of |
February 1, 2023 (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), among: (1) Monarch Casino & Resort, Inc., a Nevada corporation (“Parent”), Golden Road Motor Inn, Inc., a Nevada corporation (“Golden Road”), Monarch Growth Inc., a Nevada corporation (“MGI”) and Monarch Black Hawk, Inc., a Colorado corporation (“Black Hawk” and together with Parent, Golden Road and MGI, each a “Borrower” and collectively, the “Borrowers”); (2) each of the financial institutions party thereto from time to time (each a “Lender” and, collectively, the “Lenders”); and (3) Xxxxx Fargo Bank, National Association (“Xxxxx Fargo”), as administrative agent for the Lenders (in such capacity, the “Administrative Agent”), as L/C Issuer and as Swing Line Lender.
| 6. | Assigned Interest: See Schedules attached hereto |
[0.Xxxxx Date:
4 To be completed if the Assignor and the Assignees intend that the minimum assignment amount is to be
G-2
0000-0000-0000
determined as of the Trade Date.
G-3
0000-0000-0000
Effective Date: , 2 [TO BE INSERTED BY THE ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR]
The terms set forth in this Assignment Agreement are hereby agreed to:
ASSIGNOR
[NAME OF ASSIGNOR]
By: Name:
Title:
ASSIGNEES
See Schedules attached hereto
G-4
0000-0000-0000
[Consented to and]5 Accepted:
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Administrative Agent
By: Name: Title:
G-5
0000-0000-0000
5 To be added only if the consent of the Administrative Agent is required by the terms of the Credit Agreement.
G-6
0000-0000-0000
[Consented to:]6
MONARCH CASINO & RESORT, INC.,
as a Borrower
By: Name: Title:
GOLDEN ROAD MOTOR INN, INC.,
as a Borrower
By: Name: Title:
MONARCH GROWTH INC.,
as a Borrower
By: Name: Title:
MONARCH BLACK HAWK, INC.,
as a Borrower
By: Name: Title:
G-7
0000-0000-0000
6 To be added only if the consent of the Borrowers is required by the terms of the Credit Agreement.
G-8
0000-0000-0000
SCHEDULE 1
To Assignment Agreement
By its execution of this Schedule, the Assignee identified on the signature block below agrees to the terms set forth in the attached Assignment Agreement.
Assigned Interests:
Aggregate | Amount of | Percentage | CUSIP Number | |
Assigned1 | Amount of | Assigned of | | |
| Commitment/ | Loans Assigned3 | | |
| | Loans4 | | |
| Lenders2 | | | |
| $ | $ | % | |
| $ | $ | % | |
| $ | $ | % | |
[NAME OF ASSIGNEE]5
[and is an Affiliate/Approved Fund of [identify Lender]6]
By: Name: Title:
1 Fill in the appropriate terminology for the types of facilities under the Credit Agreement that are being assigned under this Agreement (e.g. “Revolving Loan Commitment,” etc.)
2 Amount to be adjusted by the counterparties to take into account any payments or prepayments made between the Trade Date and the Effective Date.
3 Amount to be adjusted by the counterparties to take into account any payments or prepayments made between the Trade Date and the Effective Date.
4 Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans of all Lenders thereunder.
5 Add additional signature blocks, as needed.
G-6
0000-0000-0000
6 Select as appropriate.
G-6
0000-0000-0000
ANNEX 1
to Assignment Agreement
STANDARD TERMS AND CONDITIONS FOR ASSIGNMENT AGREEMENT
1.2. Assignee[s]. [The] [Each] Assignee (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment Agreement and to consummate the transactions contemplated hereby and to become a Lender under the Credit Agreement, (ii) it meets the requirements of an Eligible Assignee under the Credit Agreement (subject to such consents, if any, as may be required under Section 8.05(c) of the Credit Agreement), (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit Agreement as a Lender thereunder and, to the extent of [the] [the relevant] Assigned Interest, shall have the obligations of a Lender thereunder, (iv) it is sophisticated with respect to decisions to acquire assets of the type represented by the Assigned Interest and either it, or the Person exercising discretion in making its decision to acquire [the] [such] Assigned Interest, is experienced in acquiring assets of such type, (v) it has received a copy of the Credit Agreement, and has received or has been accorded the opportunity to receive copies of the most recent financial statements delivered pursuant to Section 5.01(a) thereof, as applicable, and such other documents and information as it deems appropriate to make its own credit analysis and decision to enter into this Assignment Agreement and to purchase [the] [such] Assigned Interest, (vi) it has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Assignment Agreement and to purchase [the] [such] Assigned Interest, and (vii) if it is a Foreign Lender, attached to the Assignment Agreement is any documentation required to be delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by [the] [such] Assignee; and (b) agrees that (i) it will, independently and without reliance upon the Administrative Agent, [the] [any] Assignor or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Credit Documents, and (ii) it will perform in accordance with their terms all of the
G-6
0000-0000-0000
obligations which by the terms of the Credit Documents are required to be performed by it as a Lender.
G-8
0000-0000-0000
EXHIBIT H COMPLIANCE CERTIFICATE
, 20
Xxxxx Fargo Bank, National Association 0000 Xxxxxxx Xxxx, Xxxxx 000
Reno, Nevada 89511 Attention: Xxxxx XxXxxx Tel. No. (000) 000-0000
Fax No. (000) 000-0000
E-mail. Xxxxx.x.xxxxxx@xxxxxxxxxx.xxx
This Compliance Certificate is delivered pursuant to Section 5.01(a)(iv) of that certain Fifth Amended and Restated Credit Agreement, dated as of February 1, 2023 (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), by and among: (1) Monarch Casino & Resort, Inc., a Nevada corporation (“Parent”), Golden Road Motor Inn, Inc., a Nevada corporation (“Golden Road”), Monarch Growth Inc., a Nevada corporation (“MGI”) and Monarch Black Hawk, Inc., a Colorado corporation (“Black Hawk” and together with Parent, Golden Road and MGI, each a “Borrower” and collectively, the “Borrowers”); (2) each of the financial institutions party thereto from time to time (each a “Lender” and, collectively, the “Lenders”); and (3) Xxxxx Fargo Bank, National Association (“Xxxxx Fargo”), as administrative agent for the Lenders (in such capacity, the “Administrative Agent”), as L/C Issuer and as Swing Line Lender.
Terms defined in the Credit Agreement and not otherwise defined in this Compliance Certificate (this “Certificate”) shall have the meanings defined for them in the Credit Agreement. Section references herein relate to the Credit Agreement unless stated otherwise. In the event of any conflict between the calculations set forth in this Compliance Certificate and the manner of calculation required by the Credit Agreement, the terms of the Credit Agreement shall govern and control.
This Compliance Certificate is delivered in accordance with Section 5.01(a)(iv) of the Credit Agreement by the undersigned president, chief executive officer, chief operating officer or chief financial officer of the Borrowers, on behalf of the Borrowers. This Compliance Certificate is delivered for the fiscal [quarter/year] ended ,
(the “Test Date”). Computations indicating compliance with respect to the covenants in Sections 5.01(j), 5.02(a)(iv), 5.02(a)(vii), 5.02(e)(iii), 5.02(e)(vi) and 5.03 of the Credit Agreement are set forth below:
During the fiscal [quarter][year] ended on the Test Date, no Loan Party has reorganized, recapitalized or consolidated with or merged into any other Person or
H-1
0000-0000-0000
permitted any other Person to merge into it, acquired or formed any Person as a new Subsidiary or acquired all or substantially all of the assets of any other Person, except as previously disclosed to the Administrative Agent or as follows:
$10,000,000 at any one time outstanding.
$ . The aggregate amount of such Investments made since the Fifth Restatement Effective Date shall not exceed and has never exceeded $5,000,000.13
The Total Leverage Ratio as of the Test Date was computed as follows:
13 To the extent the Loan Parties receive Cash from any Excluded Subsidiary, the amount of such Cash shall be credited towards any Investments made under this clause (B) so that the amount of Investments outstanding in Excluded Subsidiaries from time to time shall be the aggregate amounts invested less the aggregate amounts received by the Loan Parties in Cash from Excluded Subsidiaries.
H-2
0000-0000-0000
recourse)$
maintained adequate reserves for the payment thereof$
to repossession or sale of such property)$
| (iv) | all obligations arising as lessee under or |
with respect to Capital Leases$
| (v) | all obligations, contingent or otherwise, |
under or with respect to Surety Instruments$
| (vi) | all Unfunded Pension Liabilities |
| (vii) | all Disqualified Securities$ |
| (viii) | with respect to any Rate Contracts that |
have been terminated, the Termination Value thereof$
| (x) | all Contingent Obligations |
otherwise
clauses (i) - (xi) above
H-3
0000-0000-0000
above to the extent secured by (or for which any holder of such obligations has an existing right, contingent or otherwise, to be secured by) any Lien on any property (including accounts and contract rights), even though such Person has not assumed or become liable for the payment of such obligations (and, for purposes of this clause (xiii), the amount of the Indebtedness shall be deemed to be the lesser of (1) the amount of all obligations of such primary obligors so secured by (or for which any holder of such obligations has an existing right, contingent or otherwise, to be secured by) such property and (2) the value of such property)
xii)+(xiii)]$
| (i) | Net Income (determined in accordance with |
GAAP) during the Test Period$
| (ii) | Interest Expenses (including expensed and |
capitalized) during the Test Period+$
| (iii) | income tax expense during the Test Period+$ |
| (iv) | depreciation and amortization expenses |
during the Test Period+$
Test Period+$
| (vi) | pre-opening expenses for the Test Period+$ |
| (vii) | capitalized fees and costs relating to the |
closing of the Credit Agreement for the Test Period+$
accruals that result from a change in accounting method)+$
| (ix) | extraordinary gains and non-recurring gains |
during the Test Period-$
H-4
0000-0000-0000
| (x) | interest income and cash expenditures made |
during the Test Period-$
Items (ii) through (viii) are included to the extent deducted in determining such Net Income for the Test Period (without duplication).
Items (ix) through (x) are included to the extent added in determining such Net Income for the Test Period (without duplication).
(b) – EBITDA – equals
[(i)+(ii)+(iii)+(iv)+(v)+(vi)+(vii)+(viii)-(ix)-(x)]$
Total Leverage Ratio equals [(a)÷(b)]
The maximum permitted Total Leverage Ratio as of the Test Date is:
:1.00
:1.00
In compliance:[YES][NO]
The Fixed Charge Coverage Ratio as of the Test Date was computed as follows:
| (a) | The sum of |
| (i) | EBITDA for the Test Period (as calculated in |
paragraph 5(A)(b) above) | $ |
(ii)income taxes paid in cash during the Test Period | -$ |
(iii) Distributions made during the Test Period | -$ |
(iv) Investments in Excluded Subsidiaries made during the Test Period | -$ |
(v)Maintenance Capital Expenditures made during the Test Period | -$ |
(a) – equals | |
[(i)-(ii)-(iii)-(iv)-(v)] | $ |
(b)Fixed Charges for the Test Period | |
(i) Interest Expense required to be paid in cash during the Test Period | $ |
| (ii) | principal payments on Indebtedness required |
to be paid during the Test Period+$
H-5
0000-0000-0000
Test Period+$
| (b) | – Fixed Charges – equals |
[(i)+(ii)+(iii)]$
Fixed Charge Coverage Ratio equals [(a)÷(b)]
The minimum permitted Fixed Charge Coverage Ratio as of the Test Date is:
:1.00
:1.00
In compliance:[YES][NO]
[This Space Intentionally Left Blank]
0000-0000-0000
H-6
0000-0000-0000
The undersigned president, chief executive officer, chief operating officer or chief financial officer of the Borrowers, on behalf of the Borrowers certifies that the calculations made and the information contained herein are derived from the books and records of the Borrowers and that each and every matter contained herein correctly reflects those books and records.
Dated: , 20
BORROWERS:
MONARCH CASINO & RESORT, INC.,
a Nevada corporation
By: Name: Title:
GOLDEN ROAD MOTOR INN, INC.,
a Nevada corporation
By: Name: Title:
MONARCH GROWTH INC.,
a Nevada corporation
By: Name: Title:
MONARCH BLACK HAWK, INC.,
a Colorado corporation
0000-0000-0000
By: Name: Title:
0000-0000-0000
Schedule I
Excluded Subsidiaries
(see attached)
0000-0000-0000
EXHIBIT I [RESERVED]
I-1
0000-0000-0000
EXHIBIT J-1
FORM OF U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes) Reference is hereby made to the Fifth Amended and Restated Credit Agreement,
dated as of February 1, 2023 (as amended, restated, supplemented or otherwise modified
from time to time, the “Credit Agreement”), among: (1) Monarch Casino & Resort, Inc., a Nevada corporation (“Parent”), Golden Road Motor Inn, Inc., a Nevada corporation (“Golden Road”), Monarch Growth Inc., a Nevada corporation (“MGI”) and Monarch Black Hawk, Inc., a Colorado corporation (“Black Hawk” and together with Parent, Golden Road and MGI, each a “Borrower” and collectively, the “Borrowers”); (2) each of the financial institutions party thereto from time to time (each a “Lender” and, collectively, the “Lenders”); and (3) Xxxxx Fargo Bank, National Association (“Xxxxx Fargo”), as administrative agent for the Lenders (in such capacity, the “Administrative Agent”), as L/C Issuer and as Swing Line Lender.
Pursuant to the provisions of Section 2.12(g) of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the Loan(s) (as well as any Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder of the Borrowers within the meaning of Section 871(h)(3)(B) of the Code and (iv) it is not a controlled foreign corporation related to the Borrowers as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished the Administrative Agent and the Borrowers with a certificate of its non-U.S. Person status on IRS Form W-8BEN. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform the Borrowers and the Administrative Agent, and (2) the undersigned shall have at all times furnished the Borrowers and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
[NAME OF XXXXXX]
By: Name: Title:
[Date]
J-1
0000-0000-0000
EXHIBIT J-2
FORM OF U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Fifth Amended and Restated Credit Agreement, dated as of February 1, 2023 (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), among: (1) Monarch Casino & Resort, Inc., a Nevada corporation (“Parent”), Golden Road Motor Inn, Inc., a Nevada corporation (“Golden Road”), Monarch Growth Inc., a Nevada corporation (“MGI”) and Monarch Black Hawk, Inc., a Colorado corporation (“Black Hawk” and together with Parent, Golden Road and MGI, each a “Borrower” and collectively, the “Borrowers”); (2) each of the financial institutions party thereto from time to time (each a “Lender” and, collectively, the “Lenders”); and (3) Xxxxx Fargo Bank, National Association (“Xxxxx Fargo”), as administrative agent for the Lenders (in such capacity, the “Administrative Agent”), as L/C Issuer and as Swing Line Lender.
Pursuant to the provisions of Section 2.12(g) of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the participation in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder of the Borrowers within the meaning of Section 871(h)(3)(B) of the Code, and (iv) it is not a controlled foreign corporation related to the Borrowers as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished its participating Lender with a certificate of its non-U.S. Person status on IRS Form W-8BEN. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender in writing, and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
[NAME OF PARTICIPANT]
By: Name: Title:
[Date]
J-2
0000-0000-0000
EXHIBIT J-3
FORM OF U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Fifth Amended and Restated Credit Agreement, dated as of February 1, 2023 (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), among: (1) Monarch Casino & Resort, Inc., a Nevada corporation (“Parent”), Golden Road Motor Inn, Inc., a Nevada corporation (“Golden Road”), Monarch Growth Inc., a Nevada corporation (“MGI”) and Monarch Black Hawk, Inc., a Colorado corporation (“Black Hawk” and together with Parent, Golden Road and MGI, each a “Borrower” and collectively, the “Borrowers”); (2) each of the financial institutions party thereto from time to time (each a “Lender” and, collectively, the “Lenders”); and (3) Xxxxx Fargo Bank, National Association (“Xxxxx Fargo”), as administrative agent for the Lenders (in such capacity, the “Administrative Agent”), as L/C Issuer and as Swing Line Lender.
Pursuant to the provisions of Section 2.12(g) of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the participation in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such participation, (iii) with respect such participation, neither the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a ten percent shareholder of the Borrowers within the meaning of Section 871(h)(3)(B) of the Code and
(v) none of its direct or indirect partners/members is a controlled foreign corporation related to the Borrowers as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished its participating Lender with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
[NAME OF PARTICIPANT]
By: Name: Title:
[Date]
J-3
0000-0000-0000
EXHIBIT J-4
FORM OF U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Fifth Amended and Restated Credit Agreement, dated as of February 1, 2023 (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), among: (1) Monarch Casino & Resort, Inc., a Nevada corporation (“Parent”), Golden Road Motor Inn, Inc., a Nevada corporation (“Golden Road”), Monarch Growth Inc., a Nevada corporation (“MGI”) and Monarch Black Hawk, Inc., a Colorado corporation (“Black Hawk” and together with Parent, Golden Road and MGI, each a “Borrower” and collectively, the “Borrowers”); (2) each of the financial institutions party thereto from time to time (each a “Lender” and, collectively, the “Lenders”); and (3) Xxxxx Fargo Bank, National Association (“Xxxxx Fargo”), as administrative agent for the Lenders (in such capacity, the “Administrative Agent”), as L/C Issuer and as Swing Line Lender.
Pursuant to the provisions of Section 2.12(g) of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the Loan(s) (as well as any Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such Loan(s) (as well as any Note(s) evidencing such Loan(s)), (iii) with respect to the extension of credit pursuant to this Credit Agreement or any other Credit Document, neither the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a ten percent shareholder of the Borrowers within the meaning of Section 871(h)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a controlled foreign corporation related to the Borrowers as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished the Administrative Agent and the Borrowers with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or
(ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform the Borrowers and the Administrative Agent, and (2) the undersigned shall have at all times furnished the Borrowers and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
J-4
[NAME OF XXXXXX]
By: Name: Title:
[Date]
0000-0000-0000
J-6
