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EXHIBIT 4.2
LOAN AGREEMENT
Dated as of June 22, 2001
among
ALLIANCE GAMING CORPORATION,
as Domestic Borrower,
BALLY XXXXX AUTOMATEN GMBH
and
BALLY XXXXX VERTRIEBS GMBH
collectively, as German Borrowers
The Lenders herein named
and
BANK OF AMERICA, N.A.
as Administrative Agent
BANC OF AMERICA SECURITIES LLC,
Sole Lead Arranger and Sole Book Manager
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TABLE OF CONTENTS
Page
Article 1
DEFINITIONS AND ACCOUNTING TERMS ....................................................1
1.1 Defined Terms ..........................................................1
1.2 Use of Defined Terms...................................................29
1.3 Accounting Terms - Fiscal Periods .....................................29
1.4 Rounding ..............................................................29
1.5 Exhibits and Schedules ................................................30
1.6 Miscellaneous Terms ...................................................30
1.7 Exchange Rate Conventions .............................................30
Article 2
LOANS AND LETTERS OF CREDIT ........................................................31
2.1 Loans-General .........................................................31
2.2 Base Rate Loans........................................................33
2.3 Eurocurrency Rate Loans ...............................................33
2.4 Letters of Credit .....................................................34
2.5 Swing Line ............................................................37
2.6 Voluntary Reduction of Revolving Commitment or German Commitment ......39
2.7 Mandatory Reductions of the Commitments ...............................39
2.8 Optional Increases to the Revolving Commitment ........................40
2.9 Administrative Agent's Right to Assume Funds Available for Advances ...41
2.10 Senior Indebtedness ...................................................41
2.11 Collateral ............................................................42
2.12 Participation in the German Commitment Loans ..........................42
2.13 Marking the German Commitment Loans to Market .........................42
Article 3
PAYMENTS AND FEES ..................................................................43
3.1 Principal and Interest ................................................43
3.2 Lead Arranger's Fees ..................................................44
3.3 Commitment Fees........................................................44
3.4 German Commitment Fronting Fees .......................................45
3.5 Letter of Credit Fees .................................................45
3.6 Administrative Fees ...................................................45
3.7 Increased Commitment Costs ............................................45
3.8 Eurocurrency Costs and Related Matters ................................46
3.9 Default Rate ..........................................................49
3.10 Computation of Interest and Fees ......................................49
3.11 Non-Business Days .....................................................50
3.12 Manner and Treatment of Payments ......................................50
3.13 Funding Sources........................................................51
3.14 Failure to Charge Not Subsequent Waiver ...............................51
3.15 Administrative Agent's Right to Assume Payments Will be Made by the
Borrowers..............................................................51
3.16 Fee Determination Detail ..............................................51
3.17 Survivability .........................................................51
3.18 Currency Conversion ...................................................52
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Article 4
REPRESENTATIONS AND WARRANTIES .....................................................53
4.1 Existence and Qualification; Power; Compliance With Laws ..............53
4.2 Authority; Compliance With Other Agreements and Instruments and
Government Regulations ................................................53
4.3 No Governmental Approvals Required - Consents to Pledge ...............54
4.4 Subsidiaries ..........................................................54
4.5 Financial Statements ..................................................54
4.6 No Other Liabilities; No Material Adverse Changes .....................55
4.7 Title to Property .....................................................55
4.8 Real Property .........................................................55
4.9 Intangible Assets .....................................................55
4.10 Public Utility Holding Company Act ....................................55
4.11 Litigation ............................................................55
4.12 Binding Obligations ...................................................56
4.13 No Default ............................................................56
4.14 ERISA .................................................................56
4.15 Regulations T, U and X; Investment Company Act ........................56
4.16 Disclosure ............................................................56
4.17 Tax Liability .........................................................57
4.18 Projections ...........................................................57
4.19 Hazardous Materials ...................................................57
Article 5
AFFIRMATIVE COVENANTS (OTHER THAN INFORMATION AND REPORTING REQUIREMENTS) ..........58
5.1 Payment of Taxes and Other Potential Liens ............................58
5.2 Preservation of Existence .............................................58
5.3 Maintenance of Properties .............................................58
5.4 Maintenance of Insurance ..............................................58
5.5 Compliance With Laws ..................................................58
5.6 Inspection Rights .....................................................59
5.7 Keeping of Records and Books of Account ...............................59
5.8 Compliance With Agreements ............................................59
5.9 Use of Proceed ........................................................59
5.10 New Significant Subsidiaries ..........................................59
5.11 Hazardous Materials Laws ..............................................60
5.12 Approvals of Pledge of Significant Subsidiary Shares ..................60
Article 6
NEGATIVE COVENANTS .................................................................61
6.1 Payment of Subordinated Obligations ...................................61
6.2 Disposition of Property ...............................................61
6.3 Mergers ...............................................................62
6.4 Hostile Acquisitions ..................................................62
6.5 Distributions .........................................................62
6.6 ERISA .................................................................62
6.7 Change in Nature of Business ..........................................63
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6.8 Liens and Negative Pledges ............................................63
6.9 Indebtedness and Contingent Obligations ...............................64
6.10 Transactions with Affiliates ..........................................65
6.11 Capital Expenditures ..................................................65
6.12 Investments and Acquisitions ..........................................65
6.13 Senior Leverage Ratio .................................................67
6.14 Total Leverage Ratio ..................................................67
6.15 Fixed Charge Coverage Ratio ...........................................67
6.16 Minimum EBITDA ........................................................68
Article 7
INFORMATION AND REPORTING REQUIREMENTS .............................................69
7.1 Financial and Business Information ....................................69
7.2 Compliance Certificates ...............................................71
Article 8
CONDITIONS .......................................................................72
8.1 Initial Advances on the Closing Date ..................................72
8.2 Any Increasing Advance ................................................74
Article 9
EVENTS OF DEFAULT AND REMEDIES UPON EVENT OF DEFAULT ...............................75
9.1 Events of Default .....................................................75
9.2 Remedies Upon Event of Default ........................................77
Article 10
THE ADMINISTRATIVE AGENT ...........................................................79
10.1 Appointment and Authorization .........................................79
10.2 Administrative Agent and Affiliates ...................................79
10.3 Proportionate Interest in any Collateral ..............................79
10.4 Lenders' Credit Decisions .............................................79
10.5 Action by Administrative Agent ........................................80
10.6 Liability of Administrative Agent .....................................81
10.7 Indemnification .......................................................82
10.8 Successor Administrative Agent ........................................83
10.9 German Commitment .....................................................83
10.10 No Obligations of Borrowers ...........................................83
Article 11
MISCELLANEOUS ......................................................................84
11.1 Cumulative Remedies; No Waiver ........................................84
11.2 Amendments; Consents ..................................................84
11.3 Costs, Expenses and Taxes .............................................85
11.4 Nature of Lenders' Obligations ........................................86
11.5 Survival of Representations and Warranties ............................86
11.6 Notices ...............................................................86
11.7 Execution of Loan Documents ...........................................87
11.8 Binding Effect; Assignment ............................................87
11.9 Right of Setoff .......................................................90
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11.10 Sharing of Setoffs ....................................................90
11.11 Indemnity by the Borrowers ............................................91
11.12 Nonliability of the Lenders ...........................................91
11.13 No Third Parties Benefitted ...........................................92
11.14 Confidentiality .......................................................92
11.15 Further Assurances ....................................................93
11.16 Integration ...........................................................93
11.17 Governing Law .........................................................93
11.18 Severability of Provisions ............................................93
11.19 Headings ..............................................................93
11.20 Time of the Essence ...................................................94
11.21 Foreign Lenders and Participants ......................................94
11.22 Hazardous Material Indemnity ..........................................94
11.23 Gaming Boards .........................................................95
11.24 Nevada Gaming Collateral ..............................................95
11.25 Construction of the Pledge Agreements .................................95
11.26 Specific Provisions Regarding German Borrowers ........................95
11.27 Consent to Jurisdiction; Choice of Forum ..............................96
11.28 Waiver of Right to Trial by Jury ......................................96
11.29 Purported Oral Amendments .............................................97
Exhibits
A Assignment Agreement
B Compliance Certificate
C German Note
D Pricing Certificate
E Request for Letter of Credit
F Request for Loan
G Request for Continuation or Conversion
H Revolving Note
I Term Note
Schedules
1.1 Refinanced Leases
1.2 German Security Documents
4.3 Governmental Approvals
4.4 Subsidiaries
4.7 Existing Liens, Negative Pledges and Rights of Others
4.8 Real Property
4.9 Intangible Assets
4.11 Material Litigation
4.19 Environmental Matters
5.12 Governmental Approvals to Licensee Pledges
6.9 Existing Indebtedness and Contingent Obligations
6.12 Existing Investments
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LOAN AGREEMENT
Dated as of June 22, 2001
This Loan Agreement ("Agreement") is entered into by and among
Alliance Gaming Corporation, a Nevada corporation ("Domestic Borrower"), Bally
Xxxxx Automaten GmbH and Bally Xxxxx Vertriebs GmbH (the "German Borrowers"),
each of which is a company organized under the laws of the Federal Republic of
Germany and a wholly-owned Subsidiary of the Domestic Borrower, each lender
whose name is set forth on the signature pages of this Agreement and each lender
which may hereafter become a party to this Agreement pursuant to Section 11.8,
and Bank of America, N.A., as Administrative Agent. While not a party hereto,
Banc of America Securities LLC has served as Lead Arranger and Sole Book Manager
for the credit facilities described herein.
RECITALS
A. The Borrowers have requested the provision of certain credit
facilities pursuant to this Agreement.
B. The Borrowers are engaged in integrated operations that
require financing on a basis permitting the availability of credit from time to
time to each Borrower as required for the continued successful operation of each
of them separately and their integrated operations collectively. Each Borrower
expects to derive benefit, directly or indirectly, from such availability
because the successful operation of each Borrower is dependent on the continued
successful performance of the functions of the integrated group.
C. The credit facilities provided to the Domestic Borrower are
separate and distinct from the credit facilities provided to the German
Borrowers.
D. The handling of the separate credit facilities made available
to the Domestic Borrower and the German Borrowers in a single Loan Agreement is
solely as an accommodation to Borrowers and at the request of the Borrowers, and
no Creditor shall incur liability to the Borrowers or any other Person as a
result thereof.
In consideration of the foregoing and of the mutual covenants
and agreements herein contained, Borrowers, the Administrative Agent, the
Issuing Lender and the Lenders, covenant and agree as follows:
Article 1
DEFINITIONS AND ACCOUNTING TERMS
1.1 Defined Terms. As used in this Agreement, the following
terms shall have the meanings set forth below:
"Acquisition" means any transaction, or any series of related
transactions, by which the Domestic Borrower or its Subsidiaries
directly or indirectly (i) acquire any going business or all or
substantially all of the assets of any Person, or any division thereof,
whether through purchase of assets, merger or otherwise, or (ii) acquire
(in one transaction or as the most recent transaction in a series of
related transactions) control of at least a majority in ordinary voting
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power of the securities of a corporation which have ordinary voting
power for the election of directors, or (iii) acquire control of a 50%
or more ownership interest in any partnership, joint venture, limited
liability company or any other Person.
"Administrative Agent" means Bank of America, when acting in its
capacity as the Administrative Agent under any of the Loan Documents, or
any successor Administrative Agent.
"Administrative Agent's Office" means the Administrative Agent's
address as set forth on the signature pages of this Agreement, or such
other address as the Administrative Agent hereafter may designate by
written notice to Borrowers and the Lenders.
"Advance" means (a) any advance made or to be made by any Lender
to the Domestic Borrower under the Domestic Commitments, and (b) any
Advance made by Bank of America, Frankfurt to the German Borrower under
the German Commitment, in each case as provided in Article 2, and
includes each Base Rate Advance, Eurocurrency Rate Advance and Swing
Line Advance.
"Affiliate" means, as to any Person, any other Person which
directly or indirectly controls, or is under common control with, or is
controlled by, such Person. As used in this definition, "control" (and
the correlative terms, "controlled by" and "under common control with")
shall mean possession, directly or indirectly, of power to direct or
cause the direction of management or policies (whether through ownership
of securities or partnership or other ownership interests, by contract
or otherwise); provided that, in any event, any Person that owns,
directly or indirectly, 10% or more of the securities having ordinary
voting power for the election of directors or other governing body of a
corporation that has more than 100 record holders of such securities, or
10% or more of the partnership or other ownership interests of any other
Person that has more than 100 record holders of such interests, will be
presumed (subject to rebuttal by a preponderance of the evidence) to
control such corporation, partnership or other Person. With respect to
any Lender, the term "Affiliate" shall be deemed to include (a) any
entity (whether a corporation, partnership, trust or otherwise) that is
engaged in making, purchasing, holding or otherwise investing in bank
loans and similar extensions of credit in the ordinary course of its
business and is administered or managed by such Lender or an Affiliate
of such Lender, and (b) in the case of any Lender that is a fund that
invests in bank loans and similar extensions of credit, any other fund
that invests in bank loans and similar extensions of credit and is
managed by the same investment advisor as such Lender or by an Affiliate
of such Lender.
"Aggregate Effective Amount" means, as of any date of
determination and with respect to all Letters of Credit then
outstanding, the sum of (a) the aggregate undrawn amount of all such
Letters of Credit then outstanding plus (b) the aggregate amounts paid
by the Issuing Lender under such Letters of Credit not then reimbursed
to the Issuing Lender by the Domestic Borrower pursuant to Section
2.4(d) and not the subject of Advances made pursuant to Section 2.4(e).
"Agreement" means this Loan Agreement, as it may from time to
time be supplemented, modified, amended, restated or extended.
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"Assignment Agreement" means an Assignment Agreement substantially in
the form of Exhibit A.
"Average Senior Debt" means, as of each date of determination, the
arithmetic average of the Senior Debt as of that date and as of the last day of
the two immediately preceding calendar months, provided that, in computing
Average Senior Debt, (a) that portion of the Senior Debt which has been
permanently repaid as of the date of determination using the proceeds of any
Disposition of any Person or assets involving a consideration in excess of
$5,000,000 shall be excluded, and (ii) any Senior Debt existing on the date of
determination which is attributable to the acquisition of any Person or assets
during the relevant period for a consideration which is in excess of $5,000,000
shall be deemed to have been outstanding on each such date.
"Average Total Debt" means, as of each date of determination, the
arithmetic average of the Total Debt as of that date and as of the last day of
the two immediately preceding calendar months, provided that, in computing
Average Total Debt, (a) that portion of the Total Debt which has been
permanently repaid as of the date of determination using the proceeds of any
Disposition of any Person or assets involving a consideration in excess of
$5,000,000 shall be excluded, and (ii) any Total Debt existing on the date of
determination which is attributable to the acquisition of any Person or assets
during the relevant period for a consideration which is in excess of $5,000,000
shall be deemed to have been outstanding on each such date.
"Bally Gaming Domestic Facilities Guaranty" means the guaranty of the
Obligations under the Domestic Commitments executed by Bally Gaming, Inc., on
the date hereof, either as originally executed or as the same may from time to
time be supplemented, modified, amended, extended or supplanted.
"Bally Gaming German Facility Guaranty" means the guaranty of the
Obligations under the German Commitment executed by Bally Gaming, Inc., on the
date hereof, either as originally executed or as the same may from time to time
be supplemented, modified, amended, extended or supplanted.
"Bally Gaming Patent Assignment" means the Bally Gaming Patent
Assignment executed by Bally Gaming, Inc., on the date hereof, either as
originally executed or as the same may from time to time be supplemented,
modified, amended, extended or supplanted.
"Bally Gaming Security Agreement" means the Bally Gaming Security
Agreement executed by Bally Gaming, Inc., on the date hereof, either as
originally executed or as the same may from time to time be supplemented,
modified, amended, extended or supplanted.
"Bally Gaming Trademark Assignment" means the Bally Gaming Trademark
Assignment executed by Bally Gaming, Inc., on the date hereof, either as
originally executed or as the same may from time to time be supplemented,
modified, amended, extended or supplanted.
"Bank of America" means Bank of America, N.A., its successors and
assigns.
"Bank of America, Frankfurt" means Bank of America, N.A., Frankfurt
Branch, its successors and assigns.
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"Base Rate" means, as of any date of determination, the rate per
annum (rounded upwards, if necessary, to the next 1/100 of 1%) equal to
the higher of (a) the Prime Rate in effect on such date and (b) the
Federal Funds Rate in effect on such date plus 1/2 of 1% (50 basis
points).
"Base Rate Advance" means an Advance made hereunder and
specified to be a Base Rate Advance in accordance with Article 2.
"Base Rate Loan" means a Loan made hereunder and specified to be
a Base Rate Loan in accordance with Article 2.
"Borrowers" means, collectively, the Domestic Borrower and the
German Borrowers. At such times, if any, as the German Commitment has
been terminated and the obligations thereunder repaid, the term
"Borrowers" shall mean the Domestic Borrower only.
"Business Day" means any Monday, Tuesday, Wednesday, Thursday or
Friday, other than a day on which banks are authorized or required to be
closed in California, Nevada or New York (or, in the context of any
Obligation arising under the German Commitment, a day on which banks are
generally closed in the Federal Republic of Germany).
"Capital Expenditure" means any expenditure for or related to
fixed assets or purchased intangibles that is treated as a capital
expenditure under Generally Accepted Accounting Principles, including
any amount which is required to be treated as an asset subject to a
Capital Lease Obligation.
"Capital Lease Obligations" means all monetary obligations of a
Person under any leasing or similar arrangement which, in accordance
with Generally Accepted Accounting Principles, is classified as a
capital lease.
"Cash" means, when used in connection with any Person, all
monetary and non-monetary items owned by that Person that are treated as
cash in accordance with Generally Accepted Accounting Principles.
"Cash Equivalents" means, when used in connection with any
Person, that Person's Investments in:
(a) Government Securities due within one year after the
date of the making of the Investment;
(b) readily marketable direct obligations of any State
of the United States of America or any political subdivision of any such
State or any public agency or instrumentality thereof given on the date
of such Investment a credit rating of at least Aa by Xxxxx'x or AA by
S&P in each case due within one year from the making of the Investment;
(c) certificates of deposit issued by, bank deposits in,
eurodollar deposits through, bankers' acceptances of, and repurchase
agreements covering Government Securities executed by any Lender or by
any bank incorporated under the Laws of the United States of America,
any State thereof or the District of Columbia and having on the date of
such Investment combined capital, surplus and undivided profits of at
least $250,000,000, or total
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assets of at least $5,000,000,000, in each case due within one year
after the date of the making of the Investment;
(d) certificates of deposit issued by, bank deposits in,
eurodollar deposits through, bankers' acceptances of, and repurchase
agreements covering Government Securities executed by any branch or
office located in the United States of America of a bank incorporated
under the Laws of any jurisdiction outside the United States of America
having on the date of such Investment combined capital, surplus and
undivided profits of at least $500,000,000, or total assets of at least
$15,000,000,000, in each case due within one year after the date of the
making of the Investment;
(e) repurchase agreements covering Government Securities
executed by a broker or dealer registered under Section 15(b) of the
Securities Exchange Act of 1934, as amended, having on the date of the
Investment capital of at least $50,000,000, due within 90 days after the
date of the making of the Investment; provided that the maker of the
Investment receives written confirmation of the transfer to it of record
ownership of the Government Securities on the books of a "primary
dealer" in such Government Securities or on the books of such registered
broker or dealer, as soon as practicable after the making of the
Investment;
(f) readily marketable commercial paper or other debt
securities issued by corporations doing business in and incorporated
under the Laws of the United States of America or any State thereof or
of any corporation that is the holding company for a bank described in
clause (c) or (d) above given on the date of such Investment a credit
rating of at least P-1 by Xxxxx'x or A-1 by S&P, in each case due within
one year after the date of the making of the Investment;
(g) "money market preferred stock" issued by a
corporation incorporated under the Laws of the United States of America
or any State thereof (i) given on the date of such Investment a credit
rating of at least Aa by Xxxxx'x and AA by S&P, in each case having an
investment period not exceeding 50 days or (ii) to the extent that
investors therein have the benefit of a standby letter of credit issued
by a Lender or a bank described in clauses (c) or (d) above;
(h) a readily redeemable "money market mutual fund"
sponsored by a bank described in clause (c) or (d) hereof, or a
registered broker or dealer described in clause (e) hereof, that has and
maintains an investment policy limiting its investments primarily to
instruments of the types described in clauses (a) through (g) hereof and
given on the date of such Investment a credit rating of at least Aa by
Xxxxx'x and AA by S&P;
(i) corporate notes or bonds having an original term to
maturity of not more than one year issued by a corporation incorporated
under the Laws of the United States of America or any State thereof, or
a participation interest therein; provided that any commercial paper
issued by such corporation is given on the date of such Investment a
credit rating of at least Aa by Xxxxx'x and AA by S&P; and
(j) in the case of the German Borrowers, investments of
a similar credit quality, liquidity and tenor made in securities issued
by institutions and governmental agencies within the European Union.
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"Change in Control" means, (a) any transaction or series of
related transactions in which any Unrelated Person or two or more
Unrelated Persons acting in concert acquire beneficial ownership (within
the meaning of Rule 13d-3(a)(1) under the Securities Exchange Act of
1934, as amended), directly or indirectly, of 25% or more of the
outstanding common stock of the Domestic Borrower, or (b) during any
period of 24 consecutive months, individuals who at the beginning of
such period constituted the board of directors of the Domestic Borrower
(together with any new or replacement directors whose election by the
board of directors, or whose nomination for election, was approved by a
vote of at least a majority of the directors then still in office who
were either directors at the beginning of such period or whose election
or nomination for reelection was previously so approved) cease for any
reason to constitute a majority of the directors then in office.
"Closing Date" means the time and Business Day on which the
conditions set forth in Section 8.1 are satisfied or waived.
"Code" means the Internal Revenue Code of 1986, as amended or
replaced and as in effect from time to time.
"Collateral" means, collectively, all of the collateral subject
to the Liens, or intended to be subject to the Liens, created by the
Collateral Documents.
"Collateral Documents" means, collectively, the Domestic
Borrower Security Agreement, the Domestic Subsidiaries Security
Agreement, the Domestic Facilities Pledge Agreement, the German Facility
Pledge Agreement, the Deeds of Trust, the Patent Assignment, the Bally
Gaming Patent Assignment, the Trademark Assignment, the Bally Gaming
Trademark Assignment, the German Security Documents and any other pledge
agreement, hypothecation agreement, security agreement, assignment, deed
of trust, mortgage or other instrument, document or agreement executed
by the Domestic Borrower, the German Borrowers or any of their
Subsidiaries to secure the Obligations.
"Commitment Fee Rate" means, (a) for the Initial Pricing Period,
0.50%, and (b) for each subsequent Pricing Period, the applicable
percentage set forth below opposite the Revolver Pricing Level for that
Pricing Period:
Revolver Pricing Level Commitment Fee Rate
---------------------- -------------------
I 0.375%
II 0.50%
III 0.50%
IV 0.50%
V 0.50%
"Commitments" means, collectively, the Domestic Commitments and
the German Commitment.
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"Compliance Certificate" means a certificate substantially in
the form of Exhibit B, properly completed and signed by a Senior Officer
of the Domestic Borrower.
"Contingent Obligation" means, as to any Person, any (a)
guarantee by that Person of Indebtedness of, or other obligation
performable by, any other Person or (b) assurance given by that Person
to an obligee of any other Person with respect to the performance of an
obligation by, or the financial condition of, such other Person, whether
direct, indirect or contingent, including any purchase or repurchase
agreement covering such obligation or any collateral security therefor,
any agreement to provide funds (by means of loans, capital contributions
or otherwise) to such other Person, any agreement to support the
solvency or level of any balance sheet item of such other Person or any
"keep-well" or other arrangement of whatever nature given for the
purpose of assuring or holding harmless such obligee against loss with
respect to any obligation of such other Person; provided, however, that
the term Contingent Obligation shall not include endorsements of
instruments for deposit or collection in the ordinary course of business
or guaranteed rentals payable in connection with the placement of gaming
machines by the Domestic Borrower or its Subsidiaries in the ordinary
course of their respective businesses. The amount of any Contingent
Obligation shall be deemed to be an amount equal to the stated or
determinable amount of the related primary obligation (unless the
Contingent Obligation is limited by its terms to a lesser amount, in
which case to the extent of such amount) or, if not stated or
determinable, the maximum reasonably anticipated liability in respect
thereof as determined by the Person in good faith.
"Contractual Obligation" means, as to any Person, any provision
of any outstanding security issued by that Person or of any material
agreement, instrument or undertaking to which that Person is a party or
by which it or any of its Property is bound.
"Creditors" means, collectively, the Administrative Agent, the
Issuing Lender, Bank of America, Frankfurt, the Swing Line Lender, each
Lender and, where the context requires, any one or more of them.
"Debtor Relief Laws" means the Bankruptcy Code of the United
States of America, as amended from time to time, and all other
applicable liquidation, conservatorship, bankruptcy, moratorium,
rearrangement, receivership, insolvency, reorganization, or similar
debtor relief Laws from time to time in effect affecting the rights of
creditors generally, including without limitation the applicable
insolvency laws of the Federal Republic of Germany.
"Deeds of Trust" means, collectively (a) the Deed of Trust,
Assignment of Rents and Security Agreement executed by Bally Gaming,
Inc. on the date hereof with respect to the Headquarters Property to
secure its obligations under the Bally Gaming Domestic Facilities
Guaranty and the Bally Gaming German Facility Guaranty, and (b) the Deed
of Trust, Assignment of Rents and Security Agreement executed by
Plantation Investments, Inc. on the date hereof with respect to the Rail
City Casino to secure its obligations under the Plantation Domestic
Facilities Guaranty and the Plantation German Facility Guaranty.
"Default" means any event specified in Section 9.1 that, with
the giving of any applicable notice or passage of time specified in
Section 9.1, or both, would be an Event of Default.
"Default Rate" means the interest rate prescribed in Section
3.9.
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"Designated Eurocurrency Market" means, with respect to any
Eurocurrency Rate Loan, (a) the London Eurocurrency Market, or (b) if
prime banks in the London Eurocurrency Market are at the relevant time
not accepting deposits of the relevant currency or if the Administrative
Agent determines in good faith that the London Eurocurrency Market does
not represent at the relevant time the effective pricing to the Lenders
for deposits of such currency in the London Eurocurrency Market, such
other Eurocurrency Market as may from time to time be selected by the
Administrative Agent with the approval of the Domestic Borrower and the
Requisite Lenders.
"Disposition" means the voluntary sale, transfer or other
disposition (including any sale and leaseback), in one transaction or a
series of related transactions, of any asset of the Domestic Borrower or
any of its Subsidiaries having a value in excess of $1,000,000 other
than the voluntary sale, transfer or other disposition of (a) Cash, Cash
Equivalents, inventory or other assets sold, leased or otherwise
disposed of in the ordinary course of business of the Domestic Borrower
or any of its Subsidiaries, (b) equipment sold or otherwise disposed of
where replacement equipment has theretofore been acquired, or thereafter
within 180 days is acquired, by the Domestic Borrower or any of its
Subsidiaries, or (c) Property to the Domestic Borrower or any of its
Subsidiaries.
"Distribution" means, with respect to any shares of capital
stock or any warrant or option to purchase an equity security or other
equity security issued by a Person, (a) the retirement, redemption,
purchase or other acquisition for Cash or for Property (other than
capital stock, or any warrants or options to purchase an equity security
or other security of such Person) by such Person of any such security,
(b) the declaration or payment by such Person of any dividend or
distribution in Cash or in Property (other than capital stock, or any
warrants or options to purchase an equity security or other security of
such Person) on or with respect to any such security, and (c) any
Investment by such Person in the holder of 5% or more of any such
security if a purpose of such Investment is to avoid characterization of
the transaction as a Distribution.
"Dollar Equivalent" means, as of each date of determination and
with respect to an amount denominated in any currency other than
Dollars, the amount of Dollars which could be purchased with the other
currency at the spot rate of exchange as quoted by the Administrative
Agent as of 8:00 a.m. (California local time) on any Eurocurrency
Business Day for purchase on such date.
"Dollars" or "$" means United States dollars.
"Domestic Borrower" means Alliance Gaming Corporation, a Nevada
corporation, its successors and permitted assigns.
"Domestic Borrower Security Agreement" means the Domestic
Borrower Security Agreement executed on the date hereof by the Domestic
Borrower to secure its Obligations, either as originally executed or as
the same may from time to time be supplemented, modified, amended,
extended or supplanted.
"Domestic Commitments" means, collectively, the Revolving
Commitment and the Term Commitment.
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14
"Domestic Facilities Guaranty" means the guaranty of the
Obligations under the Domestic Commitments executed by the Domestic
Significant Subsidiaries (other than, Bally Gaming, Inc., Plantation
Investments, Inc. and the Excluded Subsidiaries) on the date hereof,
either as originally executed or as the same may from time to time be
supplemented, modified, amended, extended or supplanted.
"Domestic Facilities Pledge Agreement" means the Domestic
Facilities Pledge Agreement to be executed by the Domestic Borrower and
each of its Domestic Significant Subsidiaries, pursuant to which they
shall grant security interests in (a) 100% of the stock and other equity
securities of the Domestic Significant Subsidiaries, and (b) 100% of the
Rainbow Partnership Interests to secure (i) the Obligations under the
Revolving Commitment and the Term Commitment, in the case of the
Domestic Borrower, and (ii) the Domestic Facilities Guaranty, as to each
Domestic Significant Subsidiary, either as originally executed or as the
same may from time to time be supplemented, modified, amended, extended
or supplanted.
"Domestic Funding Account" means an account to be maintained by
the Domestic Borrower with Bank of America, as from time to time
designated by Domestic Borrower by written notification to the
Administrative Agent to which Loans made under the Domestic Commitments
will be credited pursuant to Section 2.1(d).
"Domestic Significant Subsidiary" means each Significant
Subsidiary which is formed under the Laws of the United States of
America or any political subdivision thereof.
"Domestic Subsidiaries Security Agreement" means the Domestic
Subsidiaries Security Agreement executed on the date hereof by each
Domestic Significant Subsidiary other than the Excluded Subsidiaries to
secure its Guaranty of the Domestic Commitments, either as originally
executed or as the same may from time to time be supplemented, modified,
amended, extended or supplanted.
"EBITDA" means, for any fiscal period, the sum of (a) Net Income
for that period, plus (b) any extraordinary loss reflected in such Net
Income, minus (c) any extraordinary gain reflected in such Net Income,
plus (d) Interest Charges of the Domestic Borrower and its Subsidiaries
for that period to the extent deducted in arriving at Net Income, plus
(e) the aggregate amount of federal, state, local, and foreign taxes on
or measured by income of the Domestic Borrower and its Subsidiaries for
that period (whether or not payable during that period) to the extent
deducted in arriving at Net Income, plus (f) depreciation, amortization
and all other non-cash expenses for that period, plus (g) any
non-recurring charges reflected in such Net Income to the extent that
the same are not in excess of $5,000,000 during that period, provided
that in determining EBITDA, (i) the results of operations of any Person
or assets which have been the subject of a Disposition involving a
consideration in excess of $5,000,000 during the relevant period shall
be excluded, and (ii) the results of operations of any Person or assets
acquired by the Domestic Borrower and its Subsidiaries during the
relevant period for a consideration which is in excess of $5,000,000
shall be annualized on a straight line - basis from the date of such
acquisition and included.
"Eligible Assignee" means (a) with respect to any Lender,
another Lender, (b) with respect to any Lender, any Affiliate of that
Lender which (A) has a net worth of $200,000,000 or more, (B) is engaged
in the business of lending money and extending credit under credit
facilities substantially similar to those extended under this Agreement
or making, purchasing,
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holding or otherwise investing in bank loans and similar extensions of
credit in the ordinary course of its business and (C) is operationally
and procedurally able to meet the obligations of a Lender hereunder to
the same degree as a commercial bank, (c) any commercial bank having a
combined capital and surplus of $100,000,000 or more, (d) any (i)
savings bank, savings and loan association or similar financial
institution or (ii) insurance company engaged in the business of writing
insurance which, in either case (A) has a net worth of $200,000,000 or
more, (B) is engaged in the business of lending money and extending
credit under credit facilities substantially similar to those extended
under this Agreement and (C) is operationally and procedurally able to
meet the obligations of a Lender hereunder to the same degree as a
commercial bank and (e) any other financial institution including a
mutual fund or other fund) having total assets of $250,000,000 or more
which meets the requirements set forth in subclauses (B) and (C) of
clause (b) above; provided that each Eligible Assignee must either (a)
be organized under the Laws of the United States of America, any State
thereof or the District of Columbia or (b) be organized under the Laws
of the Cayman Islands or any country which is a member of the
Organization for Economic Cooperation and Development, or a political
subdivision of such a country, and (i) act hereunder through a branch,
agency or funding office located in the United States of America and
(ii) be exempt from withholding of tax on interest and deliver the
documents related thereto pursuant to Section 11.21, provide further, no
assignment shall be made to any Person if such assignment would result
in a violation of any Gaming Laws or otherwise require the consent or
approval of any Gaming Board.
"ERISA" means the Employee Retirement Income Security Act of
1974, and any regulations issued pursuant thereto, as amended or
replaced and as in effect from time to time.
"ERISA Affiliate" means, with respect to any Person, any other
Person (or any trade or business, whether or not incorporated) that is
under common control with that Person within the meaning of Section 414
of the Code.
"Euro" means the currency of the European Economic and Monetary
Union.
"Euro Equivalent" means, as of each date of determination and
with respect to an amount denominated in any currency other than the
Euro, the amount of Euros which could be purchased with the other
currency at the spot rate of exchange as quoted by the Administrative
Agent as of 11:00 a..m. (Frankfurt am Main, Germany, local time) on the
date two Eurocurrency Business Days prior to the date of any
determination thereof for purchase on such date.
"Euro Reserve" means, as of each date of determination, the
amount which is 5% of the Dollar Equivalent of the amount of Euros then
outstanding under the German Commitment.
"Eurocurrency Business Day" means any Business Day on which
dealings in Dollar deposits are conducted by and among banks in the
Designated Eurocurrency Market.
"Eurocurrency Lending Office" means, as to each Lender, its
office or branch so designated by written notice to the Domestic
Borrower and the Administrative Agent as its Eurocurrency Lending
Office. If no Eurocurrency Lending Office is designated by a Lender, its
Eurocurrency Lending Office shall be its office at its address for
purposes of notices hereunder.
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"Eurocurrency Market" means a regular established market located
outside the United States of America by and among banks for the
solicitation, offer and acceptance of deposits in such banks denominated
in the relevant currency.
"Eurocurrency Obligations" means eurocurrency liabilities, as
defined in Regulation D or any comparable regulation of any Governmental
Agency having jurisdiction over any Lender.
"Eurocurrency Rate" means, with respect to any Eurocurrency Rate
Loan, the interest rate per annum (rounded, if necessary, upward to the
next 1/100 of 1% at which deposits denominated in the relevant currency
are offered by Bank of America to prime banks in the Designated
Eurocurrency Market at or about 11:00 a.m. local time in the Designated
Eurocurrency Market, two Eurocurrency Business Days before the first day
of the applicable Interest Period in an aggregate amount approximately
equal to the amount of the Advance made by Bank of America with respect
to such Eurocurrency Rate Loan and for a period of time comparable to
the number of days in the applicable Interest Period.
"Eurocurrency Rate Advance" means an Advance made hereunder and
specified to be a Eurocurrency Rate Advance in accordance with Article
2.
"Eurocurrency Rate Loan" means a Loan made hereunder and
specified to be a Eurocurrency Rate Loan in accordance with Article 2.
"Event of Default" means as provided in Section 9.1.
"Excluded Subsidiaries" means, collectively, Video Services,
Inc., a Louisiana corporation, Video Distributing Services, Inc., a
Louisiana corporation, Southern Video Services, Inc., a Louisiana
corporation and Rainbow Casino Vicksburg Partnership, L.P. (d/b/a/
Rainbow Casino), a Mississippi limited partnership, in each case unless
and until any such Subsidiary becomes a Wholly-Owned Subsidiary.
"Existing Credit Agreement" means the obligations of the
Domestic Borrower, the German Borrowers and their respective
Subsidiaries under the Credit Agreement dated as of August 8, 1997,
among the Domestic Borrower, the German Borrowers, the lenders described
therein, and Credit Suisse First Boston, as Administrative Agent and
each of the security agreements, guaranties, pledge agreements and other
instruments, documents and agreements in connection therewith.
"Existing Senior Subordinated Notes" means Borrower's
$150,000,000 10% Senior Subordinated Notes due 2007 issued pursuant to
the Indenture, dated as of August 8, 1997, among Borrower and United
States Trust Company of New York, as Trustee, as amended as of the
Closing Date.
"Federal Funds Rate" means, as of any date of determination, the
rate set forth in the weekly statistical release designated as
H.15(519), or any successor publication, published by the Federal
Reserve Board (including any such successor, "H.15(519)") for such date
opposite the caption "Federal Funds (Effective)". If for any relevant
date such rate is not yet published in H.15(519), the rate for such date
will be the rate set forth in the daily statistical release designated
as the Composite 3:30 p.m. Quotations for U.S. Government Securities, or
any
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successor publication, published by the Federal Reserve Bank of New York
(including any such successor, the "Composite 3:30 p.m. Quotation") for
such date under the caption "Federal Funds Effective Rate". If on any
relevant date the appropriate rate for such date is not yet published in
either H.15(519) or the Composite 3:30 p.m. Quotations, the rate for
such date will be the arithmetic mean of the rates for the last
transaction in overnight Federal funds arranged prior to 9:00 a.m. (New
York City time) on that date by each of three leading brokers of Federal
funds transactions in New York City selected by the Administrative
Agent. For purposes of this Agreement, any change in the Base Rate due
to a change in the Federal Funds Rate shall be effective as of the
opening of business on the effective date of such change.
"Fiscal Quarter" means each fiscal quarter of the Domestic
Borrower consisting of the three calendar month periods ending on each
March 31, June 30, September 30 and December 31.
"Fiscal Year" means the fiscal year of the Domestic Borrower
consisting of the twelve month period ending on each June 30.
"Fixed Charge Coverage Ratio" means, as of the last day of each
Fiscal Quarter, the ratio of (a) EBITDA for the four Fiscal Quarter
period ending on such date to (b) Fixed Charges for the same period.
"Fixed Charges" means, as of any date, the sum of (a) the
consolidated Interest Charges of the Domestic Borrower and its
Subsidiaries paid in cash during the twelve month period ending on that
date, plus (b) all payments of principal scheduled to be made by the
Domestic Borrower and its Subsidiaries to lenders in connection with
borrowed money or Capital Lease Obligations during the twelve month
period FOLLOWING that date, plus (c) all Maintenance Capital
Expenditures made by the Domestic Borrower and its Subsidiaries during
the twelve month period ending on that date, plus (d) all taxes paid in
Cash by the Domestic Borrower and its Subsidiaries during the twelve
month period ending on that date, us (e) all Distributions made by the
Domestic Borrower and its Subsidiaries during the twelve month period
ending on that date (other than Distributions to one another and to
shareholders and partners in the Excluded Subsidiaries in the ordinary
course of business to the extent that such Distributions have been
deducted in arriving at Net Income), provided that the Fixed Charges
shall be adjusted to include, on a pro forma basis, the financial
results of any new Subsidiary (or operating assets) acquired by the
Domestic Borrower and its Subsidiaries during the twelve month period
ending on that date for a consideration in excess of $5,000,000, and to
exclude, on a pro forma basis, the financial results of any Subsidiary
(or operating assets) sold, transferred or otherwise disposed of by the
Domestic Borrower and its Subsidiaries for a consideration in excess of
$5,000,000 during the twelve month period ending on that date.
"Foreign Significant Subsidiary" means each Significant
Subsidiary of the Domestic Borrower other than a Domestic Significant
Subsidiary.
"Gaming Board" means, collectively, (a) the Nevada Gaming
Commission, (b) the Nevada State Gaming Control Board, (b) the
Mississippi Gaming Commission, (c) the Mississippi State Tax Commission,
(d) the Missouri Gaming Commission, (e) the Louisiana Gaming Control
Board, (f) the Governmental Agencies of the Federal Republic of Germany
having jurisdiction over the gaming activities of the German Borrowers,
and (g) any other Governmental Agency that holds regulatory, licensing
or permit authority over gambling,
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gaming, lottery or casino activities conducted by the Domestic Borrower
or any Subsidiary of the Domestic Borrower within its jurisdiction.
"Gaming Laws" means, collectively, The Nevada Gaming Control
Act, The Louisiana Draw Poker Devices Control Law, the Mississippi
Gaming Control Act, Missouri laws relating to licensed gaming
activities, excursion gambling boats and suppliers of gaming equipment
and slot machines set forth in Chapter 313 of the Revised Statutes of
Missouri, in each case together with the rules and regulations
thereunder, and the applicable gaming legislation, rules and regulations
of the Federal Republic of Germany all Laws pursuant to which any Gaming
Board possesses regulatory, licensing or permit authority over gambling,
gaming, lottery or casino activities conducted by the Borrowers and
their Subsidiaries within its jurisdiction.
"Generally Accepted Accounting Principles" means, as of any date
of determination, accounting principles (a) set forth as generally
accepted in then currently effective Opinions of the Accounting
Principles Board of the American Institute of Certified Public
Accountants, (b) set forth as generally accepted in then currently
effective Statements of the Financial Accounting Standards Board or (c)
that are then approved by such other entity as may be approved by a
significant segment of the accounting profession in the United States of
America. The term "consistently applied," as used in connection
therewith, means that the accounting principles applied are consistent
in all material respects with those applied at prior dates or for prior
periods.
"German Commitment" means the commitment by Bank of America,
Frankfurt to make Loans to the German Borrower in Euros in an aggregate
principal amount, subject to any decrease in the amount thereof pursuant
to Sections 2.6 and 2.7, not to exceed a Dollar Equivalent of
$25,000,000. Each Lender which has a Pro Rata Share of the Revolving
Commitment has purchased a participation in the German Commitment which
is equal (on a percentage basis) to its Pro Rata Share of the Revolving
Commitment.
"German Commitment Loan" means a Loan under the German
Commitment.
"German Facility Guaranty" means the Guaranty of the Obligations
under the German Commitment executed by the Domestic Borrower and each
of the Domestic Significant Subsidiaries of the Domestic Borrower (other
than the Bally Gaming, Inc., Plantation Investments, Inc. and the
Excluded Subsidiaries) on the date hereof, as the same may from time to
time be supplemented, modified, amended, extended or supplanted.
"German Facility Pledge Agreement" means the German Facility
Pledge Agreement to be executed by the Domestic Borrower and each of its
Domestic Significant Subsidiaries, pursuant to which they shall grant
security interests in (a) 100% of the stock and other equity securities
of the Domestic Significant Subsidiaries, and (b) 100% of the Rainbow
Partnership Interests to secure the German Facility Guaranty, either as
originally executed or as the same may from time to time be
supplemented, modified, amended, extended or supplanted.
"German Funding Account" means an account established at the
office of Bank of America, N.A. in Frankfurt am Main, Germany.
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"German Holdings" means Alliance Automaten GmbH & Co. KG, which
is the owner of 100% of the capital stock of each of the German
Borrowers, its successors and permitted assigns.
"German Note" means the promissory note made by the German
Borrowers in favor of Bank of America, Frankfurt evidencing Loans under
the German Commitment, substantially in the form of Exhibit C, either as
originally executed or as the same may from time to time be
supplemented, modified, amended, renewed, extended or supplanted, in
which each Lender having a Pro Rata Share in the Revolving Commitment
has acquired a risk participation pursuant to Section 2.12.
"German Security Documents" means the documents described on
Schedule 1.2, either as originally executed or as they may from time to
time be supplemented, modified, amended, restated or extended, together
with such other documents that may from time to time be executed by
Foreign Significant Subsidiaries pursuant to the terms of Section 5.10
of this Agreement.
"Government Securities" means readily marketable (a) direct full
faith and credit obligations of the United States of America or
obligations guaranteed by the full faith and credit of the United States
of America and (b) obligations of an agency or instrumentality of, or
corporation owned, controlled or sponsored by, the United States of
America that are generally considered in the securities industry to be
implicit obligations of the United States of America.
"Governmental Agency" means (a) any international, foreign,
federal, state, county or municipal government, or political subdivision
thereof, (b) any governmental or quasi-governmental agency, authority,
board, bureau, commission, department, instrumentality or public body or
(c) any court or administrative tribunal of competent jurisdiction.
"Guaranties" means, collectively, the Domestic Facilities
Guaranty, the Bally Gaming Domestic Facilities Guaranty, the Plantation
Domestic Facilities Guaranty, the German Facility Guaranty, the Bally
Gaming German Facility Guaranty and the Plantation German Facility
Guaranty.
"Hazardous Materials" means substances defined as "hazardous
substances" pursuant to the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, 42 U.S.C. Section 9601 et seq.,
or as "hazardous", "toxic" or "pollutant" substances or as "solid waste"
pursuant to the Hazardous Materials Transportation Act, 49 U.S.C.
Section 1801, et seq., the Resource Conservation and Recovery Act, 42
U.S.C. Section 6901, et seq., or as "friable asbestos" pursuant to the
Toxic Substances Control Act, 15 U.S.C. Section 2601 et seq., in each
case as such Laws are amended from time to time.
"Hazardous Materials Laws" means all Laws governing the
treatment, transportation or disposal of Hazardous Materials applicable
to any of the Real Property.
"Headquarters Property" means the real property located at 0000
Xxxxx Xxxxxxx Xxxx, Xxx Xxxxx, Xxxxxx, 00000 more particularly described
in Schedule 4.8 and the improvements located thereon.
"Increased Commitment" has the meaning set forth for that term
in Section 2.8.
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"Indebtedness" means, as to any Person (without duplication),
(a) indebtedness of such Person for borrowed money or for the deferred
purchase price of Property (excluding trade and other accounts payable
in the ordinary course of business in accordance with ordinary trade
terms), including any Contingent Obligation for any such indebtedness,
(b) indebtedness of such Person of the nature described in clause (a)
that is non-recourse to the credit of such Person but is secured by
assets of such Person, not to exceed the value of such assets, (c) the
principal portion of the Capital Lease Obligations of such Person, (d)
indebtedness of such Person arising under bankers' acceptance facilities
or under facilities for the discount of accounts receivable of such
Person, (e) any direct or contingent obligations of such Person under
letters of credit issued for the account of such Person, (f) the present
value of obligations with respect to any synthetic lease, financing
lease or similar arrangement, to the extent that the same is secured by
a Lien on any asset of such Person, and (g) any net obligations of such
Person under Swap Agreements.
"Initial Pricing Period" means the period from the Closing Date
to and including August 31, 2001.
"Intangible Assets" means assets that are considered intangible
assets under Generally Accepted Accounting Principles, including
customer lists, goodwill, computer software, copyrights, mask works,
trade names, trademarks and patents.
"Interest Charges" means, for any Person, for any fiscal period,
the consolidated net interest expense of that Person during that period
determined in accordance Generally Accepted Accounting Principles.
"Interest Differential" means, with respect to any prepayment of
a Eurocurrency Rate Loan on a day other than the last day of the
applicable Interest Period and with respect to any failure to borrow a
Eurocurrency Rate Loan on the date or in the amount specified in any
Request for Loan, the positive difference, if any, between (a) the
Eurocurrency Rate payable (or, with respect to a failure to borrow, the
Eurocurrency Rate which would have been payable) with respect to the
Eurocurrency Rate Loan minus (b) the Eurocurrency Rate on, or as near as
practicable to, the date of the prepayment or failure to borrow for a
Eurocurrency Rate Loan with an Interest Period commencing on such date
and ending on the last day of the Interest Period of the Eurocurrency
Rate Loan so prepaid or which would have been borrowed on such date.
"Interest Period" means, as to each Eurocurrency Rate Loan, the
period commencing on the date specified by the Domestic Borrower
pursuant to Section 2.1 (d) and ending one week, one month, two months,
three months or six months thereafter (or, with the written consent of
all of the affected Lenders, any other period), as specified by the
Domestic Borrower in the applicable Request for Loan; provided that:
(a) The first day of any Interest Period shall be a
Eurocurrency Business Day;
(b) Any Interest Period that would otherwise end on a
day that is not a Eurocurrency Business Day shall be extended to the
next succeeding Eurocurrency Business Day unless such Eurocurrency
Business Day falls in another calendar month, in which case such
Interest Period shall end on the next preceding Eurocurrency Business
Day;
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(c) The Domestic Borrower may not specify an Interest
Period for any Term Loan that extends beyond any Quarterly Payment Date
unless the aggregate principal amount of Term Loans that are Base Rate
Loans or Eurocurrency Rate Loans having Interest Periods ending after
such Quarterly Payment Date will not thereby exceed the principal amount
of the Term Loans that will be outstanding (after giving effect to any
reduction thereto scheduled to be made on that Quarterly Payment Date
pursuant to Section 2.7(c));
(d) The Domestic Borrower may not specify an Interest
Period for any Revolving Loan that extends beyond any Quarterly Payment
Date unless the sum of (i) the aggregate principal amount of the
Eurocurrency Rate Loans under the Revolving Commitment having Interest
Periods ending after such Quarterly Payment Date plus (ii) the aggregate
maximum amount available for drawing under Letters of Credit for which
the expiry date is after such Quarterly Payment Date, plus the amount of
any Loans under the German Commitment having Interest Periods ending
after that Quarterly Payment Date, will not thereby exceed the Revolving
Commitment (after giving effect to any reduction thereto scheduled to be
made on that Quarterly Payment Date pursuant to Section 2.7(d));
(e) The German Borrowers may not specify an Interest
Period for any Loan under the German Commitment that extends beyond any
Quarterly Payment Date unless the sum of (i) the Dollar Equivalent of
the aggregate principal amount of the Eurocurrency Rate Loans under the
German Commitment having Interest Periods ending after such Quarterly
Payment Date plus the Dollar Equivalent of the Euro Reserve, will not
thereby exceed the German Commitment (after giving effect to any
reduction thereto scheduled to be made on that Quarterly Payment Date
pursuant to Section 2.7(b));
(f) No Interest Period shall extend beyond the Revolver
Maturity Date, in the case of a Revolving Loan or a German Commitment
Loan, or the Term Maturity Date, in the case of a Term Loan.
"Investment" means, when used in connection with any Person, any
investment by or of that Person, whether by means of purchase or other
acquisition of stock or other securities of any other Person or by means
of a loan, advance creating a debt, capital contribution, guaranty or
other debt or equity participation or interest in any other Person,
including any partnership and joint venture interests of such Person,
but excluding any Acquisition. The amount of any Investment shall be the
amount actually invested (minus any return of capital with respect to
such Investment which has actually been received in Cash or Cash
Equivalents or has been converted into Cash or Cash Equivalents),
without adjustment for subsequent increases or decreases in the value of
such Investment.
"Issuing Lender" means Bank of America, N.A.
"Laws" means, collectively, all international, foreign, federal,
state and local statutes, treaties, rules, regulations, ordinances,
codes and administrative or judicial precedents.
"Lead Arranger" means Banc of America Securities LLC.
"Lender" means each lender whose name is set forth in the
signature pages of this Agreement and each lender which may hereafter
become a party to this Agreement pursuant to
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Section 11.8, together with Bank of America, Frankfurt (as the sole
lender under the German Commitment).
"Letter of Credit" means any Letter of Credit issued by the
Issuing Lender under the Revolving Commitment pursuant to Section 2.4,
either as originally issued or as the same may be supplemented,
modified, amended, renewed, extended or supplanted.
"Letter of Credit Fee" means, for each Pricing Period, the per
annum rate which is equal to the Revolver Eurocurrency Margin for that
Pricing Period.
"License Revocation" means the revocation, failure to renew or
suspension of, or the appointment of a receiver, supervisor or similar
official with respect to, any casino, gambling or gaming license issued
by any Gaming Board covering any casino or gaming facility of the
Domestic Borrower or any of its Subsidiaries.
"Lien" means any mortgage, deed of trust, pledge, hypothecation,
assignment for security, security interest, encumbrance, lien or charge
of any kind, whether voluntarily incurred or arising by operation of Law
or otherwise, affecting any Property, including any agreement to grant
any of the foregoing, any conditional sale or other title retention
agreement, any lease in the nature of a security interest, and/or the
filing of or agreement to give any financing statement (other than a
precautionary financing statement with respect to a lease that is not in
the nature of a security interest and pre-filing of any financing
statements associated with a financing under which Liens will be granted
only concurrently with the refinancing of the Obligations in their
entirety) under the Uniform Commercial Code or comparable Law of any
jurisdiction with respect to any Property.
"Loan" means any Revolving Loan, German Commitment Loan or Term
Loan, each of which may also be a Base Rate Loan or a Eurocurrency Rate
Loan.
"Loan Documents" means, collectively, this Agreement, the Notes,
the Swing Line Documents, the Collateral Documents, the German Security
Documents, the Guaranties, each Request for Loan, each Request for
Letter of Credit, each Compliance Certificate, each Pricing Certificate,
each Swap Agreement entered into with any Lender and any other
agreements of any type or nature hereafter executed and delivered by the
Domestic Borrower or any of its Subsidiaries to the Administrative Agent
or to any Lender in any way relating to or in furtherance of this
Agreement, in each case either as originally executed or as the same may
from time to time be supplemented, modified, amended, restated, extended
or supplanted.
"Maintenance Capital Expenditure" means a Capital Expenditure
for the maintenance, repair, restoration or refurbishment of tangible
Property of the Domestic Borrower or its Subsidiaries, but excluding any
Capital Expenditure which adds to or further improves any such Property.
"Margin Stock" means "margin stock" as such term is defined in
Regulation U.
"Material Adverse Effect" means any set of circumstances or
events which (a) has or could reasonably be expected to have a material
adverse effect upon the validity or enforceability of any Loan Document,
(b) is or could reasonably be expected to be material and adverse to the
business or condition (financial or otherwise) or prospects of the
Domestic
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Borrower and its Subsidiaries, taken as a whole and with a view to the
totality of circumstances then existing with respect to the Domestic
Borrower and its Subsidiaries, or (c) materially impairs or could
reasonably be expected to materially impair the ability of the Domestic
Borrower or and its Subsidiaries (taken as a whole) to perform the
Obligations under the Revolving Commitment, the Term Commitment or the
German Facility Guaranty.
Moody's" means Xxxxx'x Investors Service, Inc.
"Multiemployer Plan" means any employee benefit plan of the type
described in Section 4001(a)(3) of ERISA to which the Domestic Borrower
or any of its ERISA Affiliates contribute or are obligated to
contribute.
"Negative Pledge" means a Contractual Obligation that contains
a covenant binding on the Domestic Borrower or any of its Subsidiaries
that prohibits Liens on any of its or their Property in favor of the
Administrative Agent or the creditors under any successor or replacement
senior credit facility, other than (a) any such covenant contained in a
Contractual Obligation granting a Lien permitted under Section 6.8 or
pursuant to which the Domestic Borrower or its Subsidiaries acquire a
right to use or occupy Property, in each case to the extent that such
covenant which affects only the Property that is the subject of such
permitted Lien or which is so acquired and (b) any such covenant that
does not apply to Liens securing the Obligations and to any indebtedness
which is used, directly or indirectly, to refinance the Obligations.
"Net Cash Proceeds" means, with respect to any sale, transfer or
other disposition of assets of the Domestic Borrower and its United
States domestic Subsidiaries, the cash proceeds received by the Domestic
Borrower or by any Subsidiary of the Domestic Borrower upon such sale,
transfer or other disposition minus (a) the actual expenses of such sale
paid or payable by the Domestic Borrower or by any Subsidiary of the
Domestic Borrower in connection with such sale, transfer or other
disposition, and minus (b) an amount equal to the taxes paid or payable
in cash by the Domestic Borrower with respect to such sale, transfer or
other disposition.
"Net Income" means, for any period, the consolidated net income
of the Domestic Borrower and its Subsidiaries from continuing operations
for that period, determined in accordance with Generally Accepted
Accounting Principles, consistently applied.
"Note" means, collectively, the Revolving Notes, the Term Notes
and the German Note.
"Obligations" means all present and future obligations of every
kind or nature of the Domestic Borrower, the German Borrowers or their
respective Subsidiaries at any time and from time to time owed to the
Administrative Agent, the Issuing Lender, the Swing Line Lender, Bank of
America, Frankfurt or the Lenders or any one or more of them, under any
one or more of the Loan Documents, whether due or to become due, matured
or unmatured, liquidated or unliquidated, or contingent or
noncontingent, including obligations of performance as well as
obligations of payment, and including interest that accrues after the
commencement of any proceeding under any Debtor Relief Law by or against
the Domestic Borrower, the German Borrowers or any of their respective
Subsidiaries, whether or not allowed as a claim in such proceeding.
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"Opinions" means the favorable written legal opinions of Xxxxxx
Xxxx & Xxxxxxxx LLP, special counsel to the Domestic Borrower and its
Subsidiaries, Xxxxx Xxxxxx special Nevada local counsel to the Domestic
Borrower and its Subsidiaries, and Freshfields Bruckhaus Xxxxxxxx,
special German counsel to the German Borrowers and their German
Affiliates.
"Outstanding Obligations" means, as of each date of
determination, and giving effect to the making of any such credit
accommodations requested on that date, the sum of (i) the aggregate
principal amount of the outstanding Loans, plus (ii) the Swing Line
Outstandings, plus (iii) the Aggregate Effective Amount of all
outstanding Letters of Credit.
"Party" means any Person other than the Administrative Agent,
the Issuing Lender, the Swing Line Lender and the Lenders, which now or
hereafter is a party to any of the Loan Documents.
"Patent Assignment" means the Patent Assignment executed by
United Coin Machine Co., Bally Gaming International, Inc. and Domestic
Borrower on the date hereof, either as originally executed or as the
same may from time to time be supplemented, modified, amended, extended
or supplanted.
"Pension Plan" means any "employee pension benefit plan" (as
such term is defined in Section 3(2) of ERISA), other than a
Multiemployer Plan, which is subject to Title IV of ERISA and is
maintained by the Domestic Borrower or any of its Subsidiaries or to
which the Domestic Borrower or any of its Subsidiaries contributes or
has an obligation to contribute.
"Permitted Encumbrances" means:
(a) inchoate Liens incident to construction on or
maintenance of real property; or Liens incident to construction on or
maintenance of real property now or hereafter filed of record for which
adequate reserves have been set aside in accordance with Generally
Accepted Accounting Principles (or deposits made pursuant to applicable
Law) and which are being contested in good faith by appropriate
proceedings and have not proceeded to judgment, provided that, by reason
of nonpayment of the obligations secured by such Liens, no such real
property is subject to a material risk of loss or forfeiture;
(b) Liens for taxes and assessments which are not yet
delinquent; or Liens for taxes and assessments for which adequate
reserves have been set aside in accordance with Generally Accepted
Accounting Principles and are being contested in good faith by
appropriate proceedings and have not proceeded to judgment, provided
that, by reason of nonpayment of the obligations secured by such Liens,
no Property is subject to a material risk of loss or forfeiture;
(c) minor defects and irregularities in title to any
real property which in the aggregate do not materially impair the fair
market value or use of the real property for the purposes for which it
is or may reasonably be expected to be held;
(d) easements, exceptions, reservations, or other
agreements for the purpose of pipelines, conduits, cables, wire
communication lines, power lines and substations, streets, trails,
walkways, drainage, irrigation, water, and sewerage purposes, dikes,
canals, ditches, the removal of oil, gas, coal, or other minerals, and
other like purposes affecting real
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property, facilities, or equipment which in the aggregate do not
materially burden or impair the fair market value or use of such real
property for the purposes for which it is or may reasonably be expected
to be held;
(e) easements, exceptions, reservations, or other
agreements for the purpose of facilitating the joint or common use of
real property in or adjacent to a shopping center or similar project
affecting real property which in the aggregate do not materially burden
or impair the fair market value or use of such real property for the
purposes for which it is or may reasonably be expected to be held;
(f) rights reserved to or vested in any Governmental
Agency to control or regulate, or obligations or duties to any
Governmental Agency with respect to, the use of any real property;
(g) present or future zoning laws and ordinances or
other laws and ordinances restricting the occupancy, use, or enjoyment
of real property;
(h) statutory or common law Liens, other than those
described in clauses (a) or (b) above, arising in the ordinary course of
business with respect to obligations which are not delinquent or are
being contested in good faith, provided that, if delinquent, adequate
reserves have been set aside in accordance with Generally Accepted
Accounting Principles with respect thereto and, by reason of nonpayment,
no real property is subject to a material risk of loss or forfeiture;
(i) covenants, conditions, and restrictions affecting
the use of real property which in the aggregate do not materially impair
the fair market value or use of the real property for the purposes for
which it is or may reasonably be expected to be held;
(j) rights of tenants under leases and rental agreements
covering real property entered into in the ordinary course of business
of the Person owning such real property;
(k) Liens consisting of pledges or deposits to secure
obligations under workers' compensation laws, mandatory unemployment
insurance or similar legislation, including Liens of judgments
thereunder which are not currently dischargeable;
(l) Liens consisting of pledges or deposits of Property
to secure performance in connection with operating leases made in the
ordinary course of business to which the Domestic Borrower or a
Subsidiary of the Domestic Borrower is a party as lessee, provided the
aggregate value of all such pledges and deposits in connection with any
such lease does not at any time exceed 20% of the annual fixed rentals
payable under such lease; and
(m) Liens in favor of Governmental Agencies on the
assets of the Borrowers and their Subsidiaries imposed by applicable
Gaming Laws to the extent required in connection with the operation of
lotteries in various jurisdictions.
"Permitted Right of Others" means a Right of Others consisting
of (a) an interest (other than a legal or equitable co-ownership
interest, an option or right to acquire a legal or equitable
co-ownership interest and any interest of a ground lessor under a ground
lease), that does not
-20-
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materially impair the value or use of Property for the purposes for
which it is or may reasonably be expected to be held, (b) an option or
right to acquire a Lien that would be a Permitted Encumbrance, (c) the
subordination of a lease or sublease in favor of a financing entity, (d)
a lease, rental or similar agreement covering Property entered into in
the ordinary course of business and (e) a license, or similar right, of
or to Intangible Assets granted in the ordinary course of business.
"Person" means any individual or entity, including a trustee,
corporation, limited liability company, general partnership, limited
partnership, joint stock company, trust, estate, unincorporated
organization, business association, firm, joint venture, Governmental
Agency, or other entity.
"Plantation Domestic Facilities Guaranty" means the guaranty of
the Obligations under the Domestic Commitments executed by Plantation
Investments, Inc., on the date hereof, either as originally executed or
as the same may from time to time be supplemented, modified, amended,
extended or supplanted.
"Plantation German Facility Guaranty" means the guaranty of the
Obligations under the German Commitment executed by Plantation
Investments, Inc., on the date hereof, either as originally executed or
as the same may from time to time be supplemented, modified, amended,
extended or supplanted.
"Plantation Security Agreement" means the Plantation Security
Agreement executed by Plantation Investments, Inc., on the date hereof,
either as originally executed or as the same may from time to time be
supplemented, modified, amended, extended or supplanted.
"Pricing Certificate" means each Pricing Certificate delivered
to the Administrative Agent in accordance with Section 7.1(c),
substantially in the form of Exhibit D, properly completed and signed by
a Senior Officer of the Domestic Borrower.
"Pricing Period" means, the Initial Pricing Period and each
subsequent period of three calendar months which commences on the first
day of each March, June, September and December.
"Prime Rate" means the rate of interest publicly announced from
time to time by Bank of America as its Prime Rate. The Prime Rate is set
by Bank of America based on various factors, including Bank of America's
costs and desired return, general economic conditions and other factors,
and is used as a reference point for pricing some loans. Bank of America
may price loans to its customers at, above, or below the Prime Rate. Any
change in the Prime Rate shall take effect at the opening of business on
the day specified in the public announcement of a change in Bank of
America's Prime Rate.
"Pro Rata Share" means, as to each of the Commitments and Loans
and with respect to each Lender, the percentage of the Loans (and of any
the Letters of Credit and the Swing Line Advances) held by that Lender
(or by an SPC (as defined in Section 11.8(f)) for which that Lender is
the Granting Lender) with respect to each Commitment, or if no
Commitment is outstanding, the principal amount of all Loans made
pursuant to the expired Commitment, provided that as to the German
Commitment, the term "Pro Rata Share" shall refer to the
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participation interests created in the German Commitment Loans pursuant
to Section 2.12 except to the extent the participating Lender is then in
default under Section 2.12.
"Projections" means the financial projections for the Domestic
Borrower and its Subsidiaries prepared on behalf of the Domestic
Borrower and heretofore distributed to the Lenders.
"Property" means any interest in any kind of property or asset,
whether real, personal or mixed, or tangible or intangible.
"Quarterly Payment Date" means the last Business Day of each
calendar quarter following the date hereof.
"Rainbow Partnership Interests" means those partnership
interests in Rainbow Casino Vicksburg Partnership, L.P. which are at any
time owned, directly or indirectly, by the Domestic Borrower.
"Real Property" means, as of any date of determination, all real
Property then or theretofore owned, leased or occupied by the Domestic
Borrower or any of its Subsidiaries.
"Refinanced Leases" means each of the Leases described on
Schedule 1.1.
"Regulations D, T, U and X" means Regulations D, T, U and X, as
at any time amended, of the Board of Governors of the Federal Reserve
System, or any other regulations in substance substituted therefor.
"Request for Conversion or Continuation" means a written request
for a the conversion or continuation of Loan substantially in the form
of Exhibit G, signed by a Responsible Official of the Domestic Borrower
or the German Borrowers on their behalf, and properly completed to
provide all information required to be included therein.
"Request for Letter of Credit" means a written request for a
Letter of Credit substantially in the form of Exhibit E, signed by a
Responsible Official of the Domestic Borrower on its behalf (and by any
Subsidiary of the Domestic Borrower which is designated by the Domestic
Borrower as the account party with respect to the related Letter of
Credit), and properly completed to provide all information required to
be included therein.
"Request for Loan" means a written request for a Loan
substantially in the form of Exhibit F, signed by a Responsible Official
of the Domestic Borrower or the German Borrowers on their behalf, and
properly completed to provide all information required to be included
therein.
"Requirement of Law" means, as to any Person, the articles or
certificate of incorporation and by-laws or other organizational or
governing documents of such Person, and any Law, or judgment, award,
decree, writ or determination of a Governmental Agency, in each case
applicable to or binding upon such Person or any of its Property or to
which such Person or any of its Property is subject.
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"Requisite Lenders" means (a) as of any date of determination if
the Commitments are then in effect, Lenders having Pro Rata Shares of
the Revolving Commitment and the Term Commitment which are, in the
aggregate, 51% or more of the Pro Rata Shares of the aggregate Revolving
Commitment and Term Commitment then in effect, and (b) as of any date of
determination if any of the Commitments have then been terminated and
there are then any Obligations outstanding, Lenders or other Creditors
holding 51% or more of all the Outstanding Obligations (including the
Obligations under the German Commitment).
"Responsible Official" means (a) when used with reference to a
Person other than an individual, any officer or manager of such Person,
general partner of such Person, officer of a corporate or limited
liability company general partner of such Person, officer of a corporate
or limited liability company general partner of a partnership that is a
general partner of such Person, or any other responsible official
thereof duly acting on behalf thereof, and (b) when used with reference
to a Person who is an individual, such Person. The Lenders shall be
entitled to conclusively rely upon any document or certificate that is
signed or executed by a Responsible Official of the Domestic Borrower or
any of its Subsidiaries as having been authorized by all necessary
corporate, limited liability company, partnership and/or other action on
the part of the Domestic Borrower or such Subsidiary.
"Revolver Base Rate Margin" means (a) for the Initial Pricing
Period, 2.50%, and (b) for each subsequent Pricing Period, the
applicable percentage set forth below opposite the Revolver Pricing
Level for that Pricing Period:
Revolver Pricing Level Revolver Base Rate Margin
---------------------- -------------------------
I 1.50%
II 1.75%
III 2.00%
IV 2.25%
V 2.50%
"Revolver Eurocurrency Margin" means (a) for the Initial Pricing
Period, 3.50%, and (b) for each subsequent Pricing Period, the
applicable percentage set forth below opposite the Revolver Pricing
Level for that Pricing Period:
Revolver Pricing Level Revolver Eurocurrency Margin
---------------------- ----------------------------
I 2.50%
II 2.75%
III 3.00%
IV 3.25%
V 3.50%
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"Revolver Maturity Date" means June 30, 2006.
"Revolver Pricing Level" means, for each Pricing Period, the
level set forth below opposite the Total Leverage Ratio as of the last
day of the Fiscal Quarter ending two months prior to the commencement of
that Pricing Period:
Revolver Pricing Level Total Leverage Ratio
---------------------- --------------------
I Less than 2.50:1.00
II Greater than or equal to 2.50:1.00, but
less than 3.00:1.00
III Greater than or equal to 3.00:1.00, but
less than 3.50:1.00
IV Greater than or equal to 3.50:1.00, but
less than 4.00:1.00
V Greater than or equal to 4.00:1.00
The Revolver Pricing Level shall change as of the first day of each
Pricing Period on the basis of the then most recently delivered
Compliance Certificate. In the event that the Domestic Borrower fails to
deliver a Compliance Certificate on a timely basis, the Revolver Pricing
Level shall increase to Pricing Level V until such time as the Domestic
Borrower delivers a Compliance Certificate.
"Revolver Reduction Amount" means, as to each Quarterly Payment
Date, the amount set forth below opposite that Quarterly Payment Date:
Quarterly Payment Dates Revolver Reduction Amount
----------------------- -------------------------
September 30, 2001 though and $0
including December 31, 2002
March 31, 2003 and June 30, 2003 $667,500
September 30, 2003 through and $1,000,000
including June 30, 2004
September 30, 2004 through and $1,332,500
including June 30, 2005
September 30, 2005 through and $2,000,000
including March 31, 2006
provided that, in the event that the Commitment is hereafter increased
in the manner contemplated by Section 2.8, then the Revolver Reduction
Amount for each then remaining Quarterly Payment Date shall be increased
in the same proportion that (a) the Increased Commitment bears to (b)
the Commitment prior to the effective date of such increase.
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"Revolving Commitment" means the commitment by Lenders having
Pro Rata Shares thereof to make Revolving Loans to the Domestic Borrower
in an aggregate principal amount, subject to any decrease in the amount
thereof pursuant to Sections 2.6 and 2.7, not to exceed $25,000,000,
provided that the amount thereof may be increased pursuant to Section
2.8.
"Revolving Loan" means any Advance or group of Advances made by
the Lenders at any one time under the Revolving Commitment pursuant to
Article 2.
"Revolving Notes" means, collectively, each of the promissory
notes made by the Domestic Borrower to a Lender evidencing Loans under
the Revolving Commitment, substantially in the form of Exhibit H, either
as originally executed or as the same may from time to time be
supplemented, modified, amended, renewed, extended or supplanted.
"Revolving Usage" means as of each date of determination, the
sum of (a) the aggregate principal Indebtedness then outstanding under
the Revolving Notes, plus (b) the Dollar Equivalent of the aggregate
principal Indebtedness then outstanding under the German Commitment plus
(c) Swing Line Outstandings plus (d) the Aggregate Effective Amount of
all outstanding Letters of Credit.
"Right of Others" means, as to any Property in which a Person
has an interest, any legal or equitable right, title or interest (other
than a Lien) held by any other Person in that Property, and any option
or right held by any other Person to acquire any such right, title or
interest in that Property, including any option or right to acquire a
Lien; provided, however, that (a) any covenant restricting the use or
disposition of Property of such Person contained in any Contractual
Obligation of such Person and (b) any provision contained in a contract
creating a right of payment or performance in favor of a Person that
conditions, limits, restricts, diminishes, transfers or terminates such
right, shall not be deemed to constitute a Right of Others.
"Senior Debt" means, as of each date of determination, Total
Debt as of that date minus the aggregate principal amount of the
Subordinated Obligations as of that date.
"Senior Leverage Ratio" means, as of the last day of each Fiscal
Quarter, the ratio of (a) Average Senior Debt as of that date to (b)
EBITDA for the four Fiscal Quarter period ending on that date.
"Senior Officer" means the (a) chief executive officer or
manager, (b) president, (c) executive vice president, (d) senior vice
president, (e) chief financial officer, (f) treasurer, (g) assistant
treasurer, (h) secretary, or (i) assistant secretary of the Domestic
Borrower or any of its Subsidiaries.
"Significant Subsidiaries" means each Subsidiary which either as
of the Closing Date or any subsequent date has (a) a consolidated
tangible net worth which is in excess of $500,000, (b) consolidated net
income during any fiscal year of that Subsidiary which is in excess of
$250,000, or (c) consolidated revenues which are in excess of $500,000.
No Person which is at any time a Significant Subsidiary shall cease to
be a Significant Subsidiary by reason of its failure to achieve any one
of the financial benchmarks described above.
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"Special Eurocurrency Circumstance" means the application or
adoption after the date hereof of any Law or interpretation, or any
change therein or thereof, or any change in the interpretation or
administration thereof by any Governmental Agency, central bank or
comparable authority charged with the interpretation or administration
thereof, or change in the manner of compliance by any Lender or its
Eurocurrency Lending Office with any request or directive (whether or
not having the force of Law) of any such Governmental Agency, central
bank or comparable authority, or the existence or occurrence of
circumstances affecting the Designated Eurocurrency Market generally
that are beyond the reasonable control of the Lenders.
"Subordinated Obligations" means (a) the Existing Senior
Subordinated Notes, and (b) any other unsecured Indebtedness of the
Domestic Borrower (but not Indebtedness of any Subsidiary of the
Domestic Borrower), the incurrence of which is approved by the Requisite
Lenders, and which, in any event:
(i) does not require amortization prior to the first
anniversary of the Term Maturity Date;
(ii) is governed by agreements which contain
representations, warranties, covenants, defaults and other provisions
which are approved by the Requisite Lenders in writing and in any event
less restrictive upon and onerous to, the Domestic Borrower and its
Subsidiaries than the provisions of the Loan Documents; and
(iii) is subordinated in right of payment to the
Obligations pursuant to subordination provisions which are acceptable to
the Requisite Lenders in the exercise of their sole discretion.
"Subsidiary" means, as of any date of determination and with
respect to any Person, any other Person the accounts of which should in
accordance with Generally Accepted Accounting Principles be consolidated
with those of the first Person for financial accounting purposes. Each
reference to the "Domestic Borrower and its Subsidiaries" or to the
"Domestic Borrower or its Subsidiaries" shall be deemed to include
without limitation the German Borrowers.
"Swap Agreement" means a written agreement between the Domestic
Borrower and one or more financial institutions providing for "swap",
"cap", "collar" or other interest rate protection with respect to any
Indebtedness.
"Swing Line" means the revolving line of credit established by
the Swing Line Lender in favor of the Domestic Borrower pursuant to
Section 2.5.
"Swing Line Advance" means an Advance made under the Swing Line.
"Swing Line Documents" means the promissory note and any other
documents executed by the Domestic Borrower in favor of the Swing Line
Lender in connection with the Swing Line, either as originally executed
or as it may from time to time be supplemented, modified, amended,
restated or extended.
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00
"Xxxxx Xxxx Xxxxxx" means Bank of America, acting through its
Nevada Commercial Banking Division.
"Swing Line Loans" means loans made by the Swing Line Lender to
the Domestic Borrower pursuant to Section 2.5.
"Swing Line Outstandings" means, as of any date of
determination, the aggregate principal Indebtedness of the Domestic
Borrower on all Swing Line Loans then outstanding.
"S&P" means Standard & Poor's Ratings Group (a division of
McGraw Hill, Inc.).
"Term Base Rate Margin" means the applicable percentage set
forth below opposite the Term Pricing Level then in effect:
Term Pricing Level Term Base Rate Margin
------------------ ---------------------
I 2.75%
II 3.00%
"Term Commitment" means the commitment by Lenders having Pro
Rata Shares of thereof to make a loan to the Domestic Borrower on the
Closing Date in the amount of $190,000,000, and to refinance the
outstanding balance thereof from time to time in accordance with the
terms hereof by new Loans.
"Term Eurocurrency Margin" means the applicable percentage set
forth below opposite the Term Pricing Level then in effect:
Term Pricing Level Term Eurocurrency Margrin
------------------ -------------------------
I 3.75%
II 4.00%
"Term Loan" means any Advance or group of Advances made by the
Lenders at any one time under the Term Commitment pursuant to Article 2.
"Term Maturity Date" means December 31, 2006.
"Term Notes" means, collectively, each of the promissory notes
made by the Domestic Borrower to a Lender evidencing Loans under the
Term Commitment, substantially in the form of Exhibit I, either as
originally executed or as the same may from time to time be
supplemented, modified, amended, renewed, extended or supplanted.
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"Term Pricing Level" means, at any time, the level set forth
below opposite the senior secured debt rating of the Domestic Borrower
at such time:
Term Pricing Level Senior Secured Debt Ratings
------------------ ---------------------------
I Both a Xxxxx'x rating of B1 or above and
an S&P rating of B+ or above
II Either a Xxxxx'x rating of less than B1 or
an S&P rating of less than B+
The Term Pricing Level shall change as of the first day of a change in
either the Xxxxx'x or S&P senior secured debt rating for the Domestic
Borrower.
"Title Policies" means the policies of title insurance issued by
First American Title Company of Nevada with respect to the Deeds of
Trust and delivered to the Administrative Agent pursuant to Section 8.1.
"Total Debt" means, as of any date of determination, the sum
(without duplication) of (a) the outstanding principal Indebtedness of
the Domestic Borrower and its Subsidiaries for borrowed money (including
debt securities issued by the Domestic Borrower or any of its
Subsidiaries) on that date, plus (b) the aggregate amount of the
principal portion of all Capital Lease Obligations of the Domestic
Borrower and its Subsidiaries on that date, plus (c) all obligations in
respect of letters of credit or other similar instruments for which the
Domestic Borrower or any of its Subsidiaries are account parties or are
otherwise obligated, plus (d) without duplication the aggregate amount
of all Contingent Obligations and other similar contingent obligations
of the Domestic Borrower and its Subsidiaries with respect to any of the
foregoing, and plus (e) any other obligations of the Domestic Borrower
or any of its Subsidiaries to the extent that the same are secured by a
Lien on any of the assets of the Domestic Borrower or its Subsidiaries.
"Total Leverage Ratio" means, as of the last day of each Fiscal
Quarter, the ratio of (a) Average Total Debt, to (b) EBITDA for the four
Fiscal Quarter period ending on that date.
"to the best knowledge of" means, when modifying a
representation, warranty or other statement of any Person, that the fact
or situation described therein is known by the Person (or, in the case
of a Person other than a natural Person, known by a Responsible Official
of that Person) making the representation, warranty or other statement,
or with the exercise of reasonable due diligence under the circumstances
(in accordance with the standard of what a reasonable Person in similar
circumstances would have done) would have been known by the Person (or,
in the case of a Person other than a natural Person, would have been
known by a Responsible Official of that Person).
"Trademark Assignment" means the Trademark Assignment executed
by United Coin Machine Co., Bally Gaming International, Inc. and
Domestic Borrower on the date hereof, either as originally executed or
as the same may from time to time be supplemented, modified, amended,
extended or supplanted.
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"type", when used with respect to any Loan or Advance, means the
designation of whether such Loan or Advance is a Base Rate Loan or
Advance, or a Eurocurrency Rate Loan or Advance.
"Unrelated Person" means any Person other than (i) an employee
stock ownership plan or other employee benefit plan covering the
employees of the Domestic Borrower and its Subsidiaries or (ii) an
Affiliate of any Person or group of related Persons which as of the date
of this Agreement is the beneficial owner of 25% or more (in the
aggregate) of the outstanding common stock of the Domestic Borrower.
"Wholly-Owned Subsidiary" shall mean, as to any Person, (i) any
corporation 100% of whose capital stock is at the time owned by such
Person and/or one or more Wholly-Owned Subsidiaries of such Person and
(ii) any partnership, association, joint venture or other entity in
which such Person and/or one or more Wholly-Owned Subsidiaries of such
Person has a 100% equity interest at such time. Notwithstanding anything
to the contrary contained above, a foreign Subsidiary of the Domestic
Borrower shall be deemed to be a Wholly-Owned Subsidiary of the Domestic
Borrower if both (x) it would satisfy the requirements of the definition
contained above with respect to the Domestic Borrower if the percentages
"100%" contained above were changed to "99%" and (y) the reduction to
99% as contemplated by preceding clause (x) is necessary because
director's qualifying shares, ownership of shares by foreign nationals,
or other ownership requirements apply under applicable law (or is
necessary to obtain applicable approvals required by law) to the
respective such Foreign Subsidiary.
1.2 Use of Defined Terms. Any defined term used in the plural
shall refer to all members of the relevant class, and any defined term used in
the singular shall refer to any one or more of the members of the relevant
class.
1.3 Accounting Terms - Fiscal Periods. All accounting terms not
specifically defined in this Agreement shall be construed in conformity with,
and all financial data required to be submitted by this Agreement shall be
prepared in conformity with, Generally Accepted Accounting Principles applied on
a consistent basis, except as otherwise specifically prescribed herein. In the
event that Generally Accepted Accounting Principles or the Domestic Borrower's
Fiscal Year or Fiscal Quarters change during the term of this Agreement such
that the covenants contained in Sections 6.13 through 6.17 would then be
calculated for different periods, in a different manner or with different
components, (a) the Domestic Borrower and the Lenders agree to amend this
Agreement in such respects as are necessary to conform those covenants as
criteria for evaluating the Domestic Borrower's financial condition to
substantially the same criteria as were effective prior to such change in Fiscal
Year, Fiscal Quarters or in Generally Accepted Accounting Principles and (b) the
Domestic Borrower shall be deemed to be in compliance with the covenants
contained in the aforesaid Sections if and to the extent that the Domestic
Borrower would have been in compliance therewith for the pre-existing fiscal
periods and under Generally Accepted Accounting Principles as in effect
immediately prior to such change, but shall have the obligation to deliver each
of the materials described in Article 7 to the Creditors, on the dates therein
specified, with financial data presented for its pre-existing fiscal periods and
in a manner which conforms with Generally Accepted Accounting Principles as in
effect immediately prior to such change.
1.4 Rounding. Any financial ratios required to be maintained by
the Domestic Borrower pursuant to this Agreement shall be calculated by dividing
the appropriate component by the other component, carrying the result to one
place more than the number of places by which such ratio is
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expressed in this Agreement and rounding the result up or down to the nearest
number (with a round-up if there is no nearest number) to the number of places
by which such ratio is expressed in this Agreement.
1.5 Exhibits and Schedules. All Exhibits and Schedules to this
Agreement, either as originally existing or as the same may from time to time be
supplemented, modified or amended, are incorporated herein by this reference. A
matter disclosed on any Schedule shall be deemed disclosed on all Schedules.
1.6 Miscellaneous Terms. In the Loan Documents, the term "or" is
disjunctive; the term "and" is conjunctive. The term "shall" is mandatory; the
term "may" is permissive. Masculine terms also apply to females; feminine terms
also apply to males. The term "including" is by way of example and not
limitation.
1.7 Exchange Rate Conventions. Each of the definitions,
representations, warranties, covenants, Defaults and Events of Default set forth
in this Agreement and the other Loan Documents has been made with reference to
Dollars. Except to the extent expressly set forth herein and in the other Loan
Documents, the Creditors assume no currency rate fluctuation risk; all such risk
being allocated to the Borrowers. The Dollar amounts set forth in the
representations, warranties, covenants, Defaults and Events of Default have been
calculated solely with reference to Dollars, and to the extent that any relevant
amount under any representation, warranty, covenant (other than the covenants
set forth in Section 6.11 through 6.17 and the related definitions set forth in
this Section) or Default or Event of Default is payable in any other currency,
as of each date of determination, the Dollar Equivalent of any amount
denominated in such other currency shall be used.
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Article 2
LOANS AND LETTERS OF CREDIT
2.1 Loans-General.
(a) Subject to the terms and conditions set forth in
this Agreement, at any time and from time to time from the Closing Date
through the Business Day immediately prior to the Revolver Maturity
Date, each Lender shall, pro rata according to that Lender's Pro Rata
Share of the then applicable Revolving Commitment, make Advances to the
Domestic Borrower in Dollars under the Revolving Commitment in such
amounts as the Domestic Borrower may request that do not exceed in the
aggregate at any one time outstanding that Lender's Pro Rata Share of
the Revolving Commitment; provided that, giving effect to the requested
Loan, the Revolving Usage plus the then applicable Euro Reserve shall
not exceed the then applicable Revolving Commitment. Subject to the
limitations set forth herein, the Advances by each Lender under its Pro
Rata Share of the Revolving Commitment may be prepaid without premium or
penalty, and amounts that are prepaid may, subject to the conditions set
forth herein, be reborrowed.
(b) Subject to the terms and conditions set forth in
this Agreement, on the Closing Date, each Lender shall make a Term Loan
to the Domestic Borrower in Dollars under the Term Commitment in the
full amount of such Lender's Pro Rata Share of the Term Commitment. The
Term Loan shall be evidenced by the Term Notes. Amounts repaid under the
Term Commitment may not be reborrowed, but may be refinanced with the
proceeds of new Term Loans.
(c) Subject to the terms and conditions set forth in
this Agreement, at any time and from time to time from the Closing Date
through the Business Day immediately prior to the Revolver Maturity
Date, Bank of America, Frankfurt shall make Advances in Euros to the
German Borrowers under the German Commitment in such amounts as the
German Borrowers may request that do not exceed the German Commitment;
provided that, giving effect to the making of each requested Loan, (i)
giving effect to the requested Loan, the Dollar Equivalent of the
outstanding Loans under the German Commitment plus the then applicable
Euro Reserve shall not exceed the German Commitment, (ii) the Revolving
Usage plus the then applicable Euro Reserve shall not exceed the then
applicable Revolving Commitment, and (iii) Bank of America, Frankfurt
shall be excused from funding the Pro Rata Share of each Loan under the
German Commitment which is attributable to the participation of any
Lender which is then in default under the Section 2.12 (but without
prejudice to the rights of the German Borrowers to proceed against the
defaulting Lender for any violation of Section 2.12). Each Lender which
has a Pro Rata Share in the Revolving Commitment shall participate in
each Loan under the German Commitment in accordance with its Pro Rata
Share of the German Commitment pursuant to the terms of Section 2.12.
Subject to the limitations set forth herein, the Loans under the German
Commitment may be prepaid without premium or penalty, and amounts that
are prepaid may, subject to the conditions set forth herein, be
reborrowed.
(d) Subject to the next sentence, each Loan shall be
made pursuant to a Request for Loan which shall specify the requested
(i) date of such Loan, (ii) Commitment under which the Loan is to be
made, (iii) type of Loan, (iv) amount of such Loan, (v) in the case of a
Eurocurrency Rate Loan, the Interest Period for such Loan, and (vi) in
the case of each
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Loan under the Revolving Commitment or the German Commitment, the amount
of the Revolving Usage and the Euro Reserve. Unless the Administrative
Agent, in its sole and absolute discretion, has notified the Borrowers
to the contrary, a Loan may be requested by telephone by a Responsible
Official of the relevant Borrower, in which case the relevant Borrower
shall confirm such request by promptly delivering a Request for Loan in
person or by telecopier conforming to the preceding sentence to the
Administrative Agent. The Administrative Agent shall incur no liability
whatsoever hereunder in acting upon any telephonic request purportedly
made by a Responsible Official of the relevant Borrower, and each
Borrower hereby agrees to indemnify each Creditor from any loss, cost,
expense or liability as a result of so acting.
(e) So long as no Default or Event of Default has
occurred and is continuing, each Borrower shall have the option at any
time (i) to convert all or any part of its outstanding Base Rate Loans
which are in integral multiples of $500,000 and which are not less than
$2,500,000 into Eurocurrency Rate Loans or (ii) upon the expiration of
any Interest Period applicable to Eurocurrency Rate Loans, to continue
all or any portion of such Loans equal to $2,500,000 and integral
multiples of $500,000 (or, in the case of Loans under the German
Commitment, 100,000 Euros) in excess of that amount as Eurocurrency Rate
Loans or to convert such Loans into Base Rate Loans.
(f) The appropriate Borrowers shall deliver to the
Administrative Agent notice of any such conversion or continuation,
substantially in the form of Exhibit D (each a "Notice of
Conversion/Continuation"), no later than 8:00 A.M. (California local
time) (A) at least one Business Day in advance of the proposed
conversion date (in the case of a conversion to a Base Rate Loan), (B)
at least three Eurocurrency Business Days in advance of the proposed
conversion/continuation date (in the case of a conversion to, or a
continuation of, a Eurocurrency Rate Loan under the Term Commitment or
the Revolving Commitment), and (C) at least four Eurocurrency Business
Days in advance of the proposed conversion/continuation date (in the
case of a conversion to, or a continuation of, a Eurocurrency Rate Loan
under the German Commitment). A Notice of Conversion/Continuation shall
specify (i) the proposed conversion/continuation date (which shall be a
Business Day in the case of Base Rate Loans and a Eurocurrency Business
Day in the case of conversion to or continuation of Eurocurrency Rate
Loans), (ii) the amount and type of the Loan to be converted/continued,
(iii) the nature of the proposed conversion/continuation, (iv) in the
case of a conversion to, or a continuation of, a Eurocurrency Rate Loan,
the requested Interest Period, and (v) in the case of a conversion to,
or a continuation of, a Eurocurrency Rate Loan, that no Default or Event
of Default has occurred and is continuing.
(g) Promptly following receipt of a Request for Loan,
the Administrative Agent shall notify each Lender by telephone or
telecopier of the date and type of the Loan, any applicable Interest
Period, and that Lender's Pro Rata Share of the Loan. Not later than
11:00 a.m., California local time, on the date specified for any Loan
under the Revolving Commitment or the Term Commitment (which must be a
Business Day), each Lender shall make its Pro Rata Share thereof
available to the Administrative Agent in immediately available funds at
the Administrative Agent's Office. Upon satisfaction or waiver of the
applicable conditions set forth in Article 8, all Advances shall be
credited on that date in immediately available funds to the relevant
Domestic Funding Account (or, in the case of Loans under the German
Commitment, Bank of America, Frankfurt shall make such Loans to the
German Funding Account).
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(h) Unless the Requisite Lenders otherwise consent, each
Loan shall be in an integral multiple of $500,000 which is not less than
$2,500,000, except that Loans under the German Commitment shall be
integral multiples of 100,000 Euros.
(i) The Advances made by each Lender under the Revolving
Commitment, the Term Commitment and the German Commitment shall be
evidenced by that Lender's Revolving Note, Term Note and German Note,
respectively.
(j) A Request for Loan shall be irrevocable upon the
Administrative Agent's first notification thereof.
(k) If no Request for Loan (or telephonic request for
Loan referred to in the second sentence of Section 2.1(d), if
applicable) has been made within the requisite notice periods set forth
in Section 2.2 or 2.3 prior to the end of the Interest Period for any
Eurocurrency Rate Loan, then on the last day of such Interest Period,
such Eurocurrency Rate Loan shall be automatically converted into a Base
Rate Loan in the same amount.
(1) If a Loan is to be made on the same date that
another Loan under the same Commitment is due and payable, the relevant
Borrower or the Lenders (as the case may be) shall upon the request of
the Administrative Agent make available to the Administrative Agent the
net amount of funds (giving effect to both such Loans) and the effect
for purposes of this Agreement shall be the same as if separate
transfers of funds had been made with respect to each such Loan.
2.2 Base Rate Loans.
(a) Each request by the Domestic Borrower for a Base
Rate Loan shall be made pursuant to a Request for Loan (or telephonic or
other request for loan referred to in the second sentence of Section
2.1(d), if applicable) received by the Administrative Agent, at the
Administrative Agent's Office, not later than 8:00 a.m. California local
time, on the date (which must be a Business Day) of the requested Base
Rate Loan.
(b) Each request by the German Borrowers for a Base Rate
Loan shall be made pursuant to a Request for Loan (or telephonic or
other request for loan referred to in the second sentence of Section
2.1(d), if applicable) received by the Administrative Agent (with a copy
to Bank of America, Frankfurt's designated officer), not later than 8:00
a.m., California local time, on the Business Day prior to the date
(which must be a Business Day) of the requested Base Rate Loan. The
Administrative Agent shall confirm to Bank of America, Frankfurt, that
the requested Loan is available under the German Commitment with the
Administrative Agent, that the applicable conditions thereto have been
met, and Bank of America, Frankfurt shall fund the requested Loan
directly to the German Funding Account. All Loans shall constitute Base
Rate Loans unless properly designated as Eurocurrency Rate Loans
pursuant to Section 2.3.
2.3 Eurocurrency Rate Loans.
(a) Each request by the Domestic Borrower for a
Eurocurrency Rate Loan shall be made pursuant to a Request for Loan (or
telephonic or other request for Loan referred
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to in the second sentence of Section 2.1(d), if applicable) received by
the Administrative Agent, at the Administrative Agent's Office, not
later than 8:00 a.m., California local time, at least three Eurocurrency
Business Days before the first day of the applicable Interest Period.
(b) Each request by the German Borrowers for a
Eurocurrency Rate Loan shall be made pursuant to a Request for Loan (or
telephonic or other request for Loan referred to in the second sentence
of Section 2.1(d), if applicable) received by the Administrative Agent,
at the Administrative Agent's Office (with a copy to Bank of America,
Frankfurt), not later than 8:00 a.m., California local time, at least
four Eurocurrency Business Days before the first day of the applicable
Interest Period. The Administrative Agent shall confirm to Bank of
America, Frankfurt, that the requested Loan is available under the
German Commitment, that the applicable conditions thereto have been met,
and Bank of America, Frankfurt shall fund the requested Loan directly to
the German Funding Account.
(c) On the date which is two Eurocurrency Business Days
before the first day of the applicable Interest Period, the
Administrative Agent shall confirm its determination of the applicable
Eurocurrency Rate (which determination shall be conclusive in the
absence of manifest error) and promptly shall give notice of the same to
the relevant Borrower and the Lenders by telephone or telecopier.
(d) Unless the Administrative Agent and the Requisite
Lenders otherwise consent, no more than fifteen Eurocurrency Rate Loans
shall be outstanding at any one time.
(e) No Eurocurrency Rate Loan may be requested during
the continuation of a Default or Event of Default.
(f) Nothing contained herein shall require any Lender to
fund any Eurocurrency Rate Advance in the Designated Eurocurrency
Market.
2.4 Letters of Credit.
(a) Subject to the terms and conditions hereof, at any
time and from time to time from the Closing Date through the Business
Day immediately prior to the Revolver Maturity Date, the Issuing Lender
shall issue such Letters of Credit under the Revolving Commitment as the
Domestic Borrower may request by a Request for Letter of Credit;
provided that (i) giving effect to all such Letters of Credit, the
Revolving Usage plus the Euro Reserve shall not exceed the then
Revolving Commitment, and (ii) the Aggregate Effective Amount of all
outstanding Letters of Credit shall not exceed $15,000,000. Each Letter
of Credit shall be in a form acceptable to the Issuing Lender. Unless
all the Lenders otherwise consent, no Letter of Credit shall have a term
which exceeds one year or extends beyond the Revolver Maturity Date.
(b) Each Request for a Letter of Credit shall be
submitted to the Issuing Lender, with a copy to the Administrative
Agent, at least five Business Days prior to the date upon which the
related Letter of Credit is proposed to be issued. The Administrative
Agent shall promptly notify the Issuing Lender whether such Request for
Letter of Credit, and the issuance of a Letter of Credit pursuant
thereto, conforms to the requirements of this Agreement. Upon issuance
of a Letter of Credit, the Issuing Lender shall promptly notify the
Administrative Agent, and the Administrative Agent shall promptly notify
the Lenders, of the amount and terms thereof.
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(c) Upon the issuance of a Letter of Credit, each Lender
which owns a Pro Rata Share of the Revolving Commitment shall be deemed
to have purchased at par a pro rata participation in such Letter of
Credit from the Issuing Lender in an amount equal to that Lender's Pro
Rata Share of the Revolving Commitment. Without limiting the scope and
nature of each Lender's participation in any Letter of Credit, to the
extent that the Issuing Lender has not been reimbursed by the Domestic
Borrower for any payment required to be made by the Issuing Lender under
any Letter of Credit, each Lender shall, pro rata according to its Pro
Rata Share of the Revolving Commitment, pay the purchase price for such
participation to the Issuing Lender through the Administrative Agent
promptly upon demand therefor. The obligation of each Lender to so pay
the participation purchase price to the Issuing Lender shall be absolute
and unconditional and shall not be affected by the occurrence of an
Event of Default or any other occurrence or event. Any such payment of
the purchase price shall not relieve or otherwise impair the obligation
of the Domestic Borrower to reimburse the Issuing Lender for the amount
of any payment made by the Issuing Lender under any Letter of Credit
together with interest as hereinafter provided.
(d) The Domestic Borrower shall pay to the Issuing
Lender through the Administrative Agent an amount equal to any payment
made by the Issuing Lender with respect to each Letter of Credit upon
demand made by the Issuing Lender therefor, together with interest on
such amount from the date of any payment made by the Issuing Lender at
the Default Rate (unless the Domestic Borrower has made arrangements for
the making of a Loan in the amount of such payment on the date thereof
or had otherwise arranged for the timely reimbursement of such payment).
The principal amount of any such payment shall be used to reimburse the
Issuing Lender for the payment made by it under the Letter of Credit
and, to the extent that the Lenders have not reimbursed the Issuing
Lender pursuant to Section 2.4(c), the interest amount of any such
payment shall be for the account of the Issuing Lender. Each Lender that
has paid the participation purchase price to the Issuing Lender pursuant
to Section 2.4(c) shall thereupon acquire a pro rata participation, to
the extent of such payment, in the claim of the Issuing Lender against
the Domestic Borrower for reimbursement of principal and interest under
this Section 2.4(d) and shall share, in accordance with that pro rata
participation, in any principal payment made by the Domestic Borrower
with respect to such claim and in any interest payment made by the
Domestic Borrower (but only with respect to periods subsequent to the
date such Lender paid the participation purchase price to the Issuing
Lender) with respect to such claim.
(e) Subject to Article 8, the Domestic Borrower may
request, pursuant to a Request for Loan, that Advances be made pursuant
to Section 2.1(a) to provide funds for the payment required by Section
2.4(d). The proceeds of such Advances shall be paid directly to the
Issuing Lender to reimburse it for the payment made by it under the
Letter of Credit.
(f) If the Domestic Borrower fails to make the payment
required by Section 2.4(d) on a timely basis then, in lieu of the
payment of the participation purchase price to the Issuing Lender under
Section 2.4(c), the Issuing Lender may (but is not required to), without
notice to or the consent of the Domestic Borrower, instruct the
Administrative Agent to cause Advances to be made by the Lenders under
their Pro Rata Shares of the Revolving Commitment in an aggregate amount
equal to the amount paid by the Issuing Lender with respect to that
Letter of Credit and, for this purpose, the conditions precedent set
forth in
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Article 8 shall not apply. The proceeds of such Advances shall be paid
directly to the Issuing Lender to reimburse it for the payment made by
it under the Letter of Credit.
(g) The issuance of any supplement, modification,
amendment, renewal, or extension to or of any Letter of Credit shall be
treated in all respects the same as the issuance of a new Letter of
Credit, provided that no new issuance fees shall be assessed except to
the extent that the tenor or amount of the related Letter of Credit are
thereby increased.
(h) The obligation of the Domestic Borrower to pay to
the Issuing Lender the amount of any payment made by the Issuing Lender
under any Letter of Credit shall be absolute, unconditional, and
irrevocable, subject only to performance by the Issuing Lender of its
obligations to the Domestic Borrower under Uniform Commercial Code
Sections 5108 and 5109. Without limiting the foregoing, the obligations
of the Domestic Borrower to the Issuing Lender shall not be affected by
any of the following circumstances:
(i) any lack of validity or enforceability of
the Letter of Credit, this Agreement, or any other agreement or
instrument relating thereto;
(ii) any amendment or waiver of or any consent
to departure from the Letter of Credit, this Agreement, or any
other agreement or instrument relating thereto, with the consent
of the Domestic Borrower;
(iii) the existence of any claim, setoff,
defense, or other rights which the Domestic Borrower may have at
any time against the Issuing Lender, the Administrative Agent or
any Lender, any beneficiary of the Letter of Credit (or any
persons or entities for whom any such beneficiary may be acting)
or any other Person, whether in connection with the Letter of
Credit, this Agreement, or any other agreement or instrument
relating thereto, or any unrelated transactions;
(iv) any demand, statement, or any other
document presented under the Letter of Credit proving to be
forged, fraudulent or invalid or any statement therein being
untrue or inaccurate in any respect whatsoever so long as any
such document appeared to comply with the terms of the Letter of
Credit;
(v) payment by the Issuing Lender in good faith
under the Letter of Credit against presentation of a draft or
any accompanying document which does not strictly comply with
the terms of the Letter of Credit;
(vi) the existence, character, quality,
quantity, condition, packing, value or delivery of any Property
purported to be represented by documents presented in connection
with any Letter of Credit or any difference between any such
Property and the character, quality, quantity, condition, or
value of such Property as described in such documents;
(vii) the time, place, manner, order or contents
of shipments or deliveries of Property as described in documents
presented in connection with any Letter of Credit or the
existence, nature and extent of any insurance relative thereto;
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(viii) the solvency or financial responsibility
of any party issuing any documents in connection with a Letter
of Credit;
(ix) any failure or delay in notice of shipments
or arrival of any Property;
(x) any error in the transmission of any message
relating to a Letter of Credit not caused by the Issuing Lender,
or any delay or interruption in any such message;
(xi) any error, neglect or default of any
correspondent of the Issuing Lender in connection with a Letter
of Credit;
(xii) any consequence arising from acts of God,
war, insurrection, civil unrest, disturbances, labor disputes,
emergency conditions or other causes beyond the control of the
Issuing Lender;
(xiii) so long as the Issuing Lender in good
faith determines that the contract or document appears to comply
with the terms of the Letter of Credit, the form, accuracy,
genuineness or legal effect of any contract or document referred
to in any document submitted to the Issuing Lender in connection
with a Letter of Credit; and
(xiv) where the Issuing Lender has acted in good
faith and observed general banking usage, any other
circumstances whatsoever.
(i) The Issuing Lender shall be entitled to the
protection accorded to the Administrative Agent pursuant to Article 10,
mutatis mutandis.
(j) The Uniform Customs and Practice for Documentary
Credits, as published in its most current version by the International
Chamber of Commerce, shall be deemed a part of this Section and shall
apply to all Letters of Credit to the extent not inconsistent with
applicable Law.
2.5 Swing Line. Subject to the terms and conditions set forth
herein, from the Closing Date through the day prior to the Revolver Maturity
Date, the Swing Line Lender shall make Swing Line Loans to the Domestic Borrower
in such amounts as the Domestic Borrower may request which do not result in the
Revolving Usage plus the Euro Reserve being in excess of the then effective
Revolving Commitment, provided that (i) after giving effect to each Swing Line
Loan, the Swing Line Outstandings shall not exceed $5,000,000 and (ii) without
the consent of all of the Lenders, no Swing Line Loan may be made during the
continuation of an Event of Default. The Domestic Borrower may borrow, repay and
reborrow under this Section. Unless notified to the contrary by the Swing Line
Lender, borrowings under the Swing Line may be made in amounts which are
integral multiples of $100,000 upon telephonic request by a Responsible Official
of the Domestic Borrower made to the Administrative Agent not later than 1:00
p.m., California local time, on the Business Day of the requested borrowing
(which telephonic request shall be promptly confirmed in writing by telecopier),
provided that if the requested Swing Line Loan is to be credited to an account
which is not with the Swing Line Lender, the request must be submitted by 11:30
a.m., California local time. Promptly after receipt of such a request for
borrowing, the Administrative Agent shall provide telephonic verification to
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the Swing Line Lender that, after giving effect to such request, the Revolving
Usage plus the Euro Reserve will not exceed the Revolving Commitment. Unless
notified to the contrary by the Swing Line Lender, each repayment of a Swing
Line Loan shall be in an amount which is an integral multiple of $100,000. If
the Domestic Borrower instructs the Swing Line Lender to debit its demand
deposit account at the Swing Line Lender in the amount of any payment with
respect to a Swing Line Loan, or the Swing Line Lender otherwise receives
repayment, after 3:00 p.m., California local time, on a Business Day, such
payment shall be deemed received on the next Business Day. The Swing Line Lender
shall promptly notify the Administrative Agent of the Swing Line Outstandings
each time there is a change therein under the Swing Line.
(a) Swing Line Loans shall bear interest at a
fluctuating rate per annum equal to the Base Rate plus the Revolver Base
Rate Margin (unless the Default Rate is then applicable under Section
3.9). Interest shall be payable on such dates, not more frequent than
monthly, as may be specified by the Swing Line Lender and in any event
on the Revolver Maturity Date. The Swing Line Lender shall be
responsible for invoicing the Domestic Borrower for such interest.
Interest payable on Swing Line Loans is solely for the account of the
Swing Line Lender (subject to clause (d) below).
(b) The Swing Line Loans shall be payable within five
Business Days after demand made by the Swing Line Lender and in any
event on the Revolver Maturity Date or any earlier date when all other
Obligations are due.
(c) Upon the making of a Swing Line Loan in accordance
with Section 2.5(a), each Lender shall be deemed to have purchased from
the Swing Line Lender a participation therein in an amount equal to that
Lender's Pro Rata Share times the amount of the Swing Line Loan. Upon
demand made by the Swing Line Lender through the Administrative Agent,
each Lender shall, according to its Pro Rata Share, promptly provide to
the Swing Line Lender its purchase price therefor in an amount equal to
its participation therein. The obligation of each Lender to so provide
its purchase price to the Swing Line Lender shall be absolute and
unconditional (subject only to the making of a demand upon that Lender
by the Swing Line Lender) and shall not be affected by the occurrence of
a Default or Event of Default; provided that no Lender shall be
obligated to purchase its Pro Rata Share of (i) Swing Line Loans to the
extent that Swing Line Outstandings are in excess of $5,000,000 or to
the extent that the sum of the Revolving Usage plus the Euro Reserve
exceeds the Revolving Commitment (as in effect on the date of the making
of the related Swing Line Loan) and (ii) any Swing Line Loan made
(absent the consent of all of the Lenders) during the continuation of an
Event of Default. Each Lender that has provided the purchase price due
for its participation in Swing Line Loans to the Swing Line Lender shall
thereupon acquire a pro rata participation, to the extent of such
payment, in the claim of the Swing Line Lender against the Domestic
Borrower for principal and interest and shall share, in accordance with
that pro rata participation, in any principal payment made by the
Domestic Borrower with respect to such claim and in any interest payment
made by the Domestic Borrower (but only with respect to periods
subsequent to the date such Lender paid the Swing Line Lender its
purchase price) with respect to such claim.
(d) Upon any demand for payment of the Swing Line
Outstandings by the Swing Line Lender (unless the Domestic Borrower has
made other arrangements acceptable to the Swing Line Lender to reduce
the Swing Line Outstandings to $0), the Domestic Borrower shall request
a Loan pursuant to Section 2.1 (a) sufficient to repay all Swing Line
Outstandings
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(and, for this purpose, Section 2.1 (g) shall not apply). In each case,
the Administrative Agent shall automatically provide the respective
Advances made by each Lender to the Swing Line Lender (which the Swing
Line Lender shall then apply to the Swing Line Outstandings). In the
event that the Domestic Borrower fails to request a Loan within the time
specified by Section 2.2 on any such date, the Administrative Agent may,
but is not required to, without notice to or the consent of the Domestic
Borrower, cause Advances to be made by the Lenders under the Revolving
Commitment in amounts which are sufficient to reduce the Swing Line
Outstandings as required above. The conditions precedent set forth in
Article 8 shall not apply to Advances to be made by the Lenders pursuant
to the three preceding sentences. The proceeds of such Advances shall be
paid directly to the Swing Line Lender for application to the Swing Line
Outstandings.
2.6 Voluntary Reduction of Revolving Commitment or German
Commitment. The Borrowers shall have the right, at any time and from time to
time, without penalty or charge, effective following at least five Business
Days' prior written notice by a Responsible Official of the relevant Borrowers
to the Administrative Agent, voluntarily to reduce, permanently and irrevocably,
in aggregate principal amounts in an integral multiple of $1,000,000 but not
less than $5,000,000, or to terminate, all or a portion of the then undisbursed
portion of the Revolving Commitment or the German Commitment; provided that the
Revolving Commitment may not be so reduced below an amount equal to the sum of
(i) the aggregate principal amount outstanding under the Revolving Notes, plus
(ii) the aggregate principal amount available for borrowing under the German
Commitment (denominated in Dollars), plus (iii) the Aggregate Effective Amount
of all outstanding Letters of Credit plus (iv) the Swing Line Outstandings, in
each case as of the effective date of the reduction in the Revolving Commitment.
Any voluntary reduction of the Revolving Commitment by the Domestic Borrower
under this Section shall have no effect upon the requirement of mandatory
reductions thereof in accordance with Section 2.7. The Administrative Agent
shall promptly notify the Lenders of any reduction or termination of the
Commitments under this Section.
2.7 Mandatory Reductions of the Commitments.
(a) The Revolving Commitment and the Term Commitment
shall each concurrently automatically and permanently and ratably
reduce:
(i) on the date of a Disposition made pursuant
to Section 6.2(b) in an amount equal to 50% of the Net Cash
Proceeds of such Disposition;
(ii) on the date of a Disposition made pursuant
to Section 6.2(c) in an amount equal to 100% of the first
$10,000,000 of the Net Cash Proceeds of such Disposition and 60%
of the Net Cash Proceeds of such Disposition in excess of
$15,000,000;
(iii) 180 days following the date upon which the
Domestic Borrower or any of its Subsidiaries receive the
proceeds of any other Disposition (including by way of any
Disposition resulting from any casualty insurance or the
proceeds of any eminent domain, condemnation or similar taking),
in an amount equal to 100% of the Net Cash Proceeds thereof
unless during that period the Domestic Borrower or such
Subsidiary has reinvested such Net Cash Proceeds fixed or
capital assets performing the same or a similar function;
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(iv) on the date following the Closing Date upon
which the Domestic Borrower or its Subsidiaries receive the
proceeds of the issuance of any Indebtedness of the types
contemplated by Section 6.9(g), in an amount equal to the net
proceeds to the Domestic Borrower and its Subsidiaries of such
Indebtedness; and
(v) on the date upon which the Domestic Borrower
or any of its Subsidiaries receive the proceeds of the issuance
of any equity securities following the Closing Date, in an
amount equal to 50% of the Net Cash Proceeds thereof.
(b) The German Commitment shall automatically and
permanently be terminated on the date upon which any Disposition of the
type contemplated by Section 6.2(b) occurs (but the Revolving Commitment
shall not be reduced as a result thereof).
(c) The German Commitment shall automatically and
permanently be reduced upon any date upon which the amount of the German
Commitment would otherwise be in excess of the Revolving Commitment.
(d) The Term Commitment shall automatically and
permanently reduce on the date of each payment required by Section
3.1(d)(ii) in the amount of such payment.
(e) The Revolving Commitment shall automatically and
permanently reduce on each Quarterly Payment Date in the related
Revolver Reduction Amount.
(f) The obligations of Borrower to pay proceeds from
Dispositions as set forth in Section 2.7(a) continue so long as any
Loans remaining outstanding.
2.8 Optional Increases to the Revolving Commitment.
(a) Following the Closing Date, the Domestic Borrower may from
time to time through December 31, 2002, propose to increase the
aggregate amount of the Revolving Commitment in accordance with this
Section. The aggregate principal amount of the increases to the
Revolving Commitment made pursuant to this Section (the amount of any
such increase, the "Increased Revolving Commitment"), shall not exceed
$15,000,000. The Domestic Borrower shall provide at least 30 days'
notice to the Administrative Agent (which shall promptly provide a copy
of such notice to the Lenders) of any requested Increased Revolving
Commitment. Each Lender shall have the right (but not the obligation),
for a period of 30 days following receipt of such notice, to elect by
notice to the Domestic Borrower and the Administrative Agent to
participate in the Increased Revolving Commitment to the extent of its
Pro Rata Share of the Revolving Commitment. No Lender which fails to
respond shall be deemed to have elected to increase its Pro Rata Share
of the Revolving Commitment in response to a notice by the Domestic
Borrower under this Section.
(b) If any Lender party to this Agreement elects not to increase
its Pro Rata Share of the Revolving Commitment pursuant to subsection
(a) of this Section, the Domestic Borrower may designate one or more
other lenders which qualify as Eligible Assignees (which may be, but
need not be, existing Lenders) which at the time agrees to (i) in the
case of any such designated Lender that is an existing Lender, increase
its Pro Rata Share of the Revolving Commitment and (ii) in the case of
any other such lender (an "Additional Lender"), become a party to this
Agreement. The sum of the increases in the Pro Rata Shares of the
Revolving
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Commitment of the existing Lenders pursuant to this subsection (b) plus
the new commitments of the Additional Lenders shall not in the aggregate
exceed the unsubscribed amount of the Increased Revolving Commitment.
(c) An increase in the aggregate amount of the Revolving
Commitment pursuant to this Section shall become effective upon the
receipt by the Administrative Agent of an agreement in form and
substance satisfactory to the Administrative Agent signed by the
Domestic Borrower, by each Additional Lender and by each other Lender
whose Pro Rata Share of the Revolving Commitment is to be increased,
setting forth the new Pro Rata Shares of the Revolving Commitment of
such Lenders and setting forth the agreement of each Additional Lender
to become a party to this Agreement and to be bound by all the terms and
provisions hereof, together with such evidence of appropriate corporate
authorization on the part of the Domestic Borrower with respect to the
Increased Revolving Commitment, amendments to any Loan Documents
requested by the Administrative Agent in relation to the Increased
Revolving Commitment (which amendments the Administrative Agent is
hereby authorized to execute on behalf of the Creditors) and such
opinions of counsel for the Domestic Borrower with respect to the
Increased Revolving Commitments, title endorsements and other assurances
as the Administrative Agent may reasonably request.
(d) No increase in the Revolving Commitment shall result in an
increase in the amount of the German Commitment.
2.9 Administrative Agent's Right to Assume Funds Available for
Advances. Unless the Administrative Agent shall have been notified by any Lender
no later than 10:00 a.m. on the Business Day of the proposed funding by the
Administrative Agent of any Loan that such Lender does not intend to make
available to the Administrative Agent such Lender's portion of the total amount
of such Loan, the Administrative Agent may assume that such Lender has made such
amount available to the Administrative Agent on the date of the Loan and the
Administrative Agent may, in reliance upon such assumption, make available to
the relevant Borrower the corresponding amount. If the Administrative Agent has
made funds available to the Borrowers based on such assumption and such
corresponding amount is not in fact made available to the Administrative Agent
by such Lender, the Administrative Agent shall be entitled to recover such
corresponding amount on demand from such Lender. If such Lender does not pay
such corresponding amount forthwith upon the Administrative Agent's demand
therefor, the Administrative Agent promptly shall notify the relevant Borrower
who shall pay such corresponding amount to the Administrative Agent. The
Administrative Agent also shall be entitled to recover from such Lender interest
on such corresponding amount in respect of each day from the date such
corresponding amount was made available by the Administrative Agent to the
Borrowers to the date such corresponding amount is recovered by the
Administrative Agent, at a rate per annum equal to the daily Federal Funds Rate.
Nothing herein shall be deemed to relieve any Lender from its obligation to
fulfill its Pro Rata Shares Commitments.
2.10 Senior Indebtedness. The Obligations shall be and hereby
are designated by the Borrowers as "Senior Indebtedness" and "Designated Senior
Indebtedness" with respect to all Indebtedness and other obligations of the
Domestic Borrower and its Subsidiaries (to the effect that the Obligations shall
be afforded all rights afforded to the most senior class of creditors
thereunder) which are subordinated in any manner or to any extent to any other
Indebtedness and other obligations of any Borrower or its Subsidiaries.
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2.11 Collateral. The Obligations shall be secured by a first
priority (subject to Liens permitted by Section 6.8) perfected Lien on the
Collateral pursuant to the Collateral Documents.
2.12 Participation in the German Commitment Loans. Upon the
making of each German Commitment Loan, each Lender which owns a Pro Rata Share
of the Revolving Commitment shall be deemed to have purchased at par a pro rata
participation in that German Commitment Loan from Bank of America, Frankfurt in
an amount equal to that Lender's Pro Rata Share of the Revolving Commitment.
Without limiting the scope and nature of each Lender's participation in the
German Commitment Loans, to the extent that any payment with respect to the
German Commitment Loans is not made to Bank of America, Frankfurt when due, each
Lender shall, pro rata according to its Pro Rata Share of the Revolving
Commitment, pay the purchase price for such participation to Bank of America,
Frankfurt through the Administrative Agent promptly upon demand therefor, and
the German Borrowers shall have the same right to proceed against any defaulting
Lender as if that Lender were a direct lender to the German Borrowers. The
obligation of each Lender to so pay the participation purchase price to Bank of
America, Frankfurt shall be absolute and unconditional and shall not be affected
by the occurrence of an Event of Default or any other occurrence or event. Any
such payment of the purchase price shall not relieve or otherwise impair the
obligation of the German Borrowers to make the related payment to Bank of
America, Frankfurt together with interest as hereinafter provided.
2.13 Marking the German Commitment Loans to Market. The
Administrative Agent shall xxxx the outstanding German Commitment Loans to
market (using the Dollar Equivalent of such Loans) concurrently with the making
of each new Loan under the Revolving Commitment and the German Commitment and
may xxxx such Loans to market on a more frequent basis (but shall not be
obligated to do so unless it is informed by a party hereto that the making of a
particular Loan would otherwise be prohibited by the terms hereof or that the
Dollar Equivalent of the outstanding Obligations has, by reason of a fluctuation
in the Euro, become greater than the limits expressed herein).
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Article 3
PAYMENTS AND FEES
3.1 Principal and Interest.
(a) Interest shall be payable on the outstanding daily
unpaid principal amount of each Advance from the date thereof until
payment in full is made and shall accrue and be payable at the rates set
forth or provided for herein before and after any Default or Event of
Default, before and after maturity, before and after judgment, and
before and after the commencement of any proceeding under any Debtor
Relief Law, with interest on overdue interest at the Default Rate to the
fullest extent permitted by applicable Laws.
(b) Interest accrued on Base Rate Loans shall be due and
payable on each Quarterly Payment Date. Except as otherwise provided in
Section 3.9, the unpaid principal amount of each Base Rate Loan shall
bear interest at a fluctuating rate per annum (a) in the case of each
Term Loan, equal to the Base Rate plus the applicable Term Base Rate
Margin, and (b) in the case of each Revolving Loan equal to the Base
Rate plus the applicable Revolver Base Rate Margin. Each change in the
interest rate under this Section 3.1 (b) due to a change in the Base
Rate shall take effect simultaneously with the corresponding change in
the Base Rate.
(c) Interest accrued on each Eurocurrency Rate Loan
which is for a term of three months or less shall be due and payable on
the last day of the related Interest Period. Interest accrued on each
other Eurocurrency Rate Loan shall be due and payable on the date which
is three months after the date such Eurocurrency Rate Loan was made
(and, in the event that all of the Lenders have approved an Interest
Period of longer than six months, every three months thereafter through
the last day of the Interest Period) and on the last day of the related
Interest Period. Except as otherwise provided in Section 3.9, the unpaid
principal amount of any Eurocurrency Rate Loan shall bear interest at a
rate per annum (a) in the case of each Term Loan, equal to the
Eurocurrency Rate for that Eurocurrency Rate Loan plus the applicable
Term Eurocurrency Margin, and (b) in the case of each Revolving Loan
equal to the Eurocurrency Rate for that Eurocurrency Rate Loan plus the
applicable Revolver Eurocurrency Margin.
(d) If not sooner paid, the principal Indebtedness
evidenced by the Notes shall be payable as follows, and without set off,
counterclaim or reduction of any kind:
(i) the amount, if any, by which the Revolving
Usage plus the Euro Reserve at any time exceeds the then
applicable Revolving Commitment (as reduced from time to time
pursuant to Sections 2.6 or 2.7), shall be payable immediately;
(ii) The principal Indebtedness evidenced by the
Term Notes shall be payable on each Quarterly Payment Date,
commencing June 30, 2002, in the amount of $475,000;
(iii) The principal Indebtedness evidenced by
the German Note shall be payable on the date of any Disposition
of the Bally Xxxxx division pursuant to Section 6.2(b);
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(iv) The principal Indebtedness evidenced by the
German Note shall be payable on any date upon which the Dollar
Equivalent of the outstanding German Commitment Loans is at any
time in excess of 95% of the German Commitment;
(v) the principal Indebtedness evidenced by the
Revolving Notes shall in any event be payable on the Revolver
Maturity Date;
(vi) the principal Indebtedness evidenced by the
German Note shall in any event be payable on the Revolver
Maturity Date; and
(vii) the principal Indebtedness evidenced by
the Term Notes shall in any event be payable on the Term
Maturity Date.
(e) The Notes may, at any time and from time to time,
voluntarily be paid or prepaid in whole or in part without premium or
penalty, except that (i) with respect to any voluntary prepayment under
this Section 3.1 (e) any partial prepayment shall be not less than
$2,500,000, or in integral multiples of $500,000 which are in excess of
$2,500,000, except that partial prepayments of the Loans under the
German Commitment shall be in integral multiples of 100,000 Euros, (ii)
the Administrative Agent shall have received written notice of any
prepayment by 9:00 a.m., California local time, on the Business Day
prior to the date of prepayment (which must be a Business Day) in the
case of a Base Rate Loan, and, in the case of a Eurocurrency Rate Loan,
three Eurocurrency Business Days (or in the case of Loans under the
German Commitment, four Eurocurrency Business Days) before the date of
prepayment, which notice shall identify the date and amount of the
prepayment and the Loan(s) being prepaid, (iii) each prepayment of
principal on any Eurocurrency Rate Loan shall be accompanied by payment
of interest accrued to the date of payment on the amount of principal
paid and (iv) any payment or prepayment of all or any part of any
Eurocurrency Rate Loan on a day other than the last day of the
applicable Interest Period shall be subject to Section 3.8(e). Promptly
following receipt of a notice of prepayment under clause (ii) above, the
Administrative Agent shall notify each Lender by telephone or telecopier
(and if by telephone, promptly confirmed by telecopier) of the date and
amount thereof.
(f) Each payment of principal by the Domestic Borrower
hereunder shall be applied ratably to the Advances made to the Domestic
Borrower which are then due and payable, provided that if the
Obligations are then accelerated or have deemed to have been
accelerated, each payment of principal hereunder shall be applied
ratably to the outstanding Advances.
3.2 Lead Arranger's Fees. On the date hereof, the Domestic
Borrower shall pay to Lead Arranger through the Administrative Agent certain
fees in the amount heretofore agreed upon by letter agreement between the
Domestic Borrower and the Lead Arranger. These fees are for the services of the
Lead Arranger in arranging the credit facilities under this Agreement and are
fully earned when paid and are nonrefundable.
3.3 Commitment Fees. From the date hereof, the Domestic Borrower
shall pay to the Administrative Agent, for the ratable accounts of the Lenders
pro rata according to their Pro Rata Shares of the Revolving Commitment, a
commitment fee equal to the Commitment Fee Rate in effect
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from time to time times the actual daily amount by which the Revolving
Commitment exceeds the Revolving Usage (other than the Swing Line Outstandings).
The commitment fee shall be payable quarterly in arrears on each Quarterly
Payment Date, on the Revolver Maturity Date and upon the date of any partial
reduction or termination of the Revolving Commitment pursuant to Sections 2.6 or
2.7.
3.4 German Commitment Fronting Fees. From the date hereof, the
German Borrowers shall pay to Bank of America, Frankfurt, for its own account, a
fronting fee equal to 25 basis points times the outstanding principal balance of
the Loans outstanding under the German Commitment from time to time. Bank of
America, Frankfurt shall provide advices directly to the German Borrowers of the
amount thereof due from time to time. The fronting fee shall be payable
quarterly in arrears on each Quarterly Payment Date, on the Revolver Maturity
Date and upon the date of any partial reduction or termination of the German
Commitment pursuant to Sections 2.6 or 2.7.
3.5 Letter of Credit Fees. Concurrently with the issuance of
each Letter of Credit, the Domestic Borrower shall pay a letter of credit
issuance fee to the Issuing Bank, for the sole account of the Issuing Bank, in
an amount set forth in a letter agreement between the Domestic Borrower and the
Issuing Bank. Each letter of credit issuance fee is nonrefundable. On each
Quarterly Payment Date and on the Revolver Maturity Date, the Domestic Borrower
shall also pay to the Administrative Agent in arrears, for the ratable account
of the Lenders in accordance with their Pro Rata Share, letter of credit fees in
an amount equal to the Letter of Credit Fee per annum times the actual daily
Aggregate Effective Amount of all Letters of Credit for the period from the
Closing Date or the most recent Quarterly Payment Date. All letter of credit
fees shall also be non-refundable.
3.6 Administrative Fees. On the date hereof and annually
thereafter, the Domestic Borrower shall pay to the Administrative Agent an
administrative fee in such amounts as heretofore agreed upon by letter agreement
between the Domestic Borrower and Bank of America and the Lead Arranger. The
Domestic Borrower and the German Borrower may make their own arrangements
concerning any allocation of a portion of the administrative fee which is
attributable to the German Commitments to the German Borrowers. The
administrative fee is for the services to be performed by the Administrative
Agent in acting as Administrative Agent and is fully earned on the date paid.
The administrative fee paid to the Administrative Agent is solely for its own
account and is nonrefundable.
3.7 Increased Commitment Costs. If any Lender shall determine in
good faith that the introduction after the date hereof of any applicable law,
rule, regulation or guideline regarding capital adequacy, or any change therein
or any change in the interpretation or administration thereof by any central
bank or other Governmental Agency charged with the interpretation or
administration thereof, or change in the manner of compliance by such Lender (or
its Eurocurrency Lending Office) or any corporation controlling the Lender, with
any request, guideline or directive regarding capital adequacy (whether or not
having the force of Law) of any such central bank or other authority, affects or
would affect the amount of capital required or expected to be maintained by such
Lender or any corporation controlling such Lender and (taking into consideration
such Lender's or such corporation's policies with respect to capital adequacy
and such Lender's desired return on capital) determines in good faith that the
amount of such capital is increased, or the rate of return on capital is
reduced, as a consequence of its obligations under this Agreement, then, within
ten Business Days after demand of such Lender, the Borrowers shall pay to such
Lender, from time to time as specified in good faith by such Lender, additional
amounts sufficient to compensate such Lender in light of such circumstances, to
the extent reasonably allocable to such obligations under this Agreement.
Notwithstanding the foregoing, the Borrowers shall not be required to reimburse
any Lender for any increased costs, reductions or payments under this Section
arising prior to 90 days preceding the date of any claim or
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demand by that Lender for compensation under this Section except to the extent
the applicable law or regulation is imposed retroactively and the demand or
claim is made within 90 days of the effect (in which case such claim or demand
shall be submitted within 90 days of the date upon which such Lender becomes
aware or should reasonably be aware of such law or regulation). Each Lender's
determination of such amounts shall be conclusive in the absence of manifest
error. Any request for compensation by a Lender under this Section shall set
forth the basis upon which it has been determined that such an amount is due
from the Borrowers, a calculation of the amount due, and a certification that
the corresponding costs or diminished rate of return on capital have been
incurred or sustained by the Lender.
3.8 Eurocurrency Costs and Related Matters.
(a) In the event that any Governmental Agency imposes on
any Lender any reserve or comparable requirement (including any
emergency, supplemental or other reserve) with respect to the
Eurocurrency Obligations of that Lender, the relevant Borrowers shall
pay that Lender within 5 Business Days after demand all amounts
necessary to compensate such Lender (determined as though such Lender's
Eurocurrency Lending Office had funded 100% of its Eurocurrency Rate
Advance in the Designated Eurocurrency Market) in respect of the
imposition of such reserve requirements. The Lender's determination of
such amount shall be conclusive in the absence of manifest error.
(b) If, after the date hereof, the existence or
occurrence of any Special Eurocurrency Circumstance:
(1) shall subject any Lender or its Eurocurrency
Lending Office to any tax, duty or other charge or cost with
respect to any Eurocurrency Rate Advance, any of its Notes
evidencing Eurocurrency Rate Advances or its obligation to make
Eurocurrency Rate Advances, or shall change the basis of
taxation of payments to any Lender attributable to the principal
of or interest on any Eurocurrency Rate Advance or any other
amounts due under this Agreement in respect of any Eurocurrency
Rate Advance, any of its Notes evidencing Eurocurrency Rate
Advances or its obligation to make Eurocurrency Rate Advances,
excluding (i) taxes imposed on or measured in whole or in part
by its overall net income, gross income or gross receipts, (ii)
franchise taxes imposed by (A) any jurisdiction (or political
subdivision thereof) in which it is organized or maintains its
principal office or Eurocurrency Lending Office or (B) any
jurisdiction (or political subdivision thereof) in which it is
"doing business," and (iii) any withholding taxes or other taxes
based on gross income imposed by the United States of America
for any period with respect to which it has failed to provide
the Borrowers with the appropriate form or forms required by
Section 11.21, to the extent such forms are then required by
applicable Laws to avoid withholding tax payments;
(2) shall impose, modify or deem applicable any
reserve not applicable or deemed applicable on the date hereof
(including any reserve imposed by the Board of Governors of the
Federal Reserve System, special deposit, capital or similar
requirements against assets of, deposits with or for the account
of, or credit extended by, any Lender or its Eurocurrency
Lending Office); or
(3) shall impose on any Lender or its
Eurocurrency Lending Office or the Designated Eurocurrency
Market any other condition affecting any
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Eurocurrency Rate Advance, any of its Notes evidencing
Eurocurrency Rate Advances, its obligation to make Eurocurrency
Rate Advances or this Agreement, or shall otherwise affect any
of the same;
and the result of any of the foregoing, as determined in good faith by
such Lender, increases the cost to such Lender or its Eurocurrency
Lending Office of making or maintaining any Eurocurrency Rate Advance or
in respect of any Eurocurrency Rate Advance, any of its Notes evidencing
Eurocurrency Rate Advances or its obligation to make Eurocurrency Rate
Advances or reduces the amount of any sum received or receivable by such
Lender or its Eurocurrency Lending Office with respect to any
Eurocurrency Rate Advance, any of its Notes evidencing Eurocurrency Rate
Advances or its obligation to make Eurocurrency Rate Advances (assuming
such Lender's Eurocurrency Lending Office had funded 100% of its
Eurocurrency Rate Advance in the Designated Eurocurrency Market), then,
within five Business Days after demand by such Lender (with a copy to
the Administrative Agent), the Borrowers shall pay to such Lender such
additional amount or amounts as will compensate such Lender for such
increased cost or reduction (determined as though such Lender's
Eurocurrency Lending Office had funded 100% of its Eurocurrency Rate
Advance in the Designated Eurocurrency Market). A statement of any
Lender claiming compensation under this subsection and setting forth in
reasonable detail the additional amount or amounts to be paid to it
hereunder shall be conclusive in the absence of manifest error.
Notwithstanding the foregoing, the Borrowers shall not be required to
reimburse any Lender for any increased costs, reductions or payments
under this clause (b) arising prior to 90 days preceding the date of any
claim or demand by that Lender for compensation under this clause (b)
except to the extent the circumstances giving rise thereto result in
retroactive imposition of the related costs and the demand or claim is
made within 90 days of the effect (in which case such claim or demand
shall be submitted within 90 days of the date upon which such Lender
becomes aware or should reasonably be aware of such effect).
(c) If, after the date hereof, the existence or
occurrence of any Special Eurocurrency Circumstance shall, in the good
faith opinion of any Lender, make it unlawful or impossible for such
Lender or its Eurocurrency Lending Office to make, maintain or fund its
portion of any Eurocurrency Rate Advance or materially restrict the
authority of such Lender to purchase or sell, or to take deposits of,
Dollars in the Designated Eurocurrency Market, or to determine or charge
interest rates based upon the Eurocurrency Rate, and such Lender shall
so notify the Administrative Agent, then such Lender's obligation to
make Eurocurrency Rate Advances shall be suspended for the duration of
such illegality or impossibility and the Administrative Agent forthwith
shall give notice thereof to the other Lenders and the Borrowers. Upon
receipt of such notice, the outstanding principal amount of such
Lender's Eurocurrency Rate Advances, together with accrued interest
thereon, automatically shall be converted to Base Rate Advances on
either (1) the last day of the Interest Period(s) applicable to such
Eurocurrency Rate Advances if such Lender may lawfully continue to
maintain and fund such Eurocurrency Rate Advances to such day(s) or (2)
immediately if such Lender may not lawfully continue to fund and
maintain such Eurocurrency Rate Advances to such day(s), provided that
in such event the conversion shall not be subject to payment of a
prepayment fee under clause (e) of this Section. Each Lender agrees to
endeavor promptly to notify the Borrowers of any event of which it has
actual knowledge, occurring after the date hereof, which will cause that
Lender to notify the Administrative Agent under this Section, and agrees
to designate a different Eurocurrency Lending Office if such designation
will avoid the need for such notice and will not, in the good faith
judgment of such Lender, otherwise be materially
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disadvantageous to such Lender. In the event that any Lender is unable,
for the reasons set forth above, to make, maintain or fund its portion
of any Eurocurrency Rate Loan or Advance, such Lender shall fund such
amount as a Base Rate Advance for the same period of time, and such
amount shall be treated in all respects as a Base Rate Advance. Any
Lender whose obligation to make Eurocurrency Rate Advances has been
suspended under this Section shall promptly notify the Administrative
Agent and the Borrowers of the cessation of the Special Eurocurrency
Circumstance which gave rise to such suspension.
(d) If, with respect to any proposed Eurocurrency Rate
Loan:
(1) the Administrative Agent reasonably
determines that, by reason of circumstances affecting the
Designated Eurocurrency Market generally that are beyond the
reasonable control of the Lenders, deposits in Dollars (in the
applicable amounts) are not being offered to any Lender in the
Designated Eurocurrency Market for the applicable Interest
Period; or
(2) the Requisite Lenders advise the
Administrative Agent that the Eurocurrency Rate as determined by
the Administrative Agent (i) does not represent the effective
pricing to such Lenders for deposits in Dollars in the
Designated Eurocurrency Market in the relevant amount for the
applicable Interest Period, or (ii) will not adequately and
fairly reflect the cost to such Lenders of making the applicable
Eurocurrency Rate Advances;
then the Administrative Agent forthwith shall give notice thereof to the
relevant Borrower and the Lenders, whereupon until the Administrative
Agent notifies that Borrower that the circumstances giving rise to such
suspension no longer exist, the obligation of the Lenders to make any
future Eurocurrency Rate Advances to that Borrower shall be suspended.
(e) Upon payment or prepayment of any Eurocurrency Rate
Advance (other than as the result of a conversion required under clause
(c) of this Section) on a day other than the last day in the applicable
Interest Period (whether voluntarily, involuntarily, by reason of
acceleration, or otherwise), or upon the failure of any Borrower (for a
reason other than the failure of a Lender to make an Advance) to borrow
on the date or in the amount specified for a Eurocurrency Rate Advance
in any Request for Loan, or upon the failure of that Borrower to prepay
a Eurocurrency Rate Loan or Advance on the date specified in a notice of
prepayment delivered to the Administrative Agent pursuant to Section
3.1(e), the relevant Borrower shall pay to the appropriate Lender within
ten Business Days after demand a prepayment fee, failure to borrow fee
or failure to prepay fee, as the case may be (determined as though 100%
of that Lender's Eurocurrency Rate Advance had been funded in the
Designated Eurocurrency Market), equal to the sum of:
(1) the principal amount of the Eurocurrency
Rate Advance prepaid or not borrowed or prepaid, as the case may
be, times [the number of days from and including the date of
prepayment or failure to borrow or prepay, as applicable, to but
excluding the last day in the applicable Interest Period],
divided by 360, times the applicable Interest Differential
(provided that the product of the foregoing formula must be a
positive number); plus
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(2) all out-of-pocket expenses incurred by the
Lender reasonably attributable to such payment, prepayment or
failure to borrow.
Each Lender's determination of the amount of any prepayment fee, failure
to borrow fee or failure to prepay fee payable under this Section shall
be conclusive in the absence of manifest error.
(f) Each Lender agrees to endeavor promptly to notify
the Borrowers of any event of which it has actual knowledge, occurring
after the date hereof, which will entitle such Lender to compensation
pursuant to clause (a) or clause (b) of this Section, and agrees to
designate a different Eurocurrency Lending Office if such designation
will avoid the need for or reduce the amount of such compensation and
will not, in the good faith judgment of such Lender, otherwise be
materially disadvantageous to such Lender. Any request for compensation
by a Lender under this Section shall set forth the basis upon which it
has been determined that such an amount is due from the Borrowers, a
calculation of the amount due, and a certification that the
corresponding costs have been incurred by the Lender.
(g) If any Lender claims compensation or is excused from
making or continuing Eurocurrency Rate Loans or Advances under this
Section, the Borrowers may at any time, upon at least 4 Eurocurrency
Business Days' prior notice to the Administrative Agent and such Lender
and upon payment in full of the amounts provided for in this Section
through the date of such payment plus any prepayment fee (subject to
clause (c) of this Section) required by clause (e) of this Section, pay
in full the affected Eurocurrency Rate Advances of such Lender or
request that such Eurocurrency Rate Advances be converted to Base Rate
Advances.
3.9 Default Rate. If any installment of principal or interest or
any fee or cost or other amount payable under any Loan Document to the
Administrative Agent or any Lender is not paid when due, or at the option of the
Requisite Lenders upon the occurrence and during the continuance of any Event of
Default, the outstanding Loans, and any such delinquent fees, costs or other
amounts, shall thereafter bear interest at a rate which is 2% per annum in
excess of the otherwise applicable rate, and the outstanding Letters of Credit
shall thereafter accrue fees at a rate which is 2% per annum in excess of the
otherwise applicable fees, in each case to the fullest extent permitted by
applicable Laws. Accrued and unpaid interest on past due amounts (including
interest on past due interest) shall be compounded monthly, on the last day of
each calendar month, to the fullest extent permitted by applicable Laws.
3.10 Computation of Interest and Fees. Computation of interest
on Base Rate Loans shall be calculated on the basis of a year of 365 or 366
days, as the case may be, and the actual number of days elapsed; computation of
interest on Eurocurrency Rate Loans and all fees under this Agreement shall be
calculated on the basis of a year of 360 days and the actual number of days
elapsed. The Borrowers acknowledge that such latter calculation method will
result in a higher yield to the Lenders than a method based on a year of 365 or
366 days. Interest shall accrue on each Loan for the day on which the Loan is
made; interest shall not accrue on a Loan, or any portion thereof, for the day
on which the Loan or such portion is paid. Any Loan that is repaid on the same
day on which it is made shall bear interest for one day. Notwithstanding
anything in this Agreement to the contrary, interest in excess of the maximum
amount permitted by applicable Laws shall not accrue or be payable hereunder or
under the Notes, and any amount paid as interest hereunder or under the Notes
which would otherwise be in excess of such maximum permitted amount shall
instead be treated as a payment of principal.
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3.11 Non-Business Days. If any payment to be made by the
Borrowers or any other Party under any Loan Document shall come due on a day
other than a Business Day, payment shall instead be considered due on the next
succeeding Business Day and the extension of time shall be reflected in
computing interest and fees.
3.12 Manner and Treatment of Payments.
(a) Each payment hereunder (except payments pursuant
to Sections 3.7, 3.8, 11.3, 11.11 and 11.22) or on the Notes or under
any other Loan Document shall be made to the Administrative Agent, at
the Administrative Agent's Office, for the account of each of the
Lenders or the Administrative Agent, as the case may be, in immediately
available funds (by wire transfer, debit of an account with the
Administrative Agent or by other means acceptable to the Administrative
Agent) not later than 11:00 a.m. other than payments with respect to
Swing Line Loans, which must be paid directly to the Swing Line Lender
and received by 3:00 p.m.), California local time, on the day of payment
(which must be a Business Day). All payments received after such time,
on any Business Day, shall be deemed received on the next succeeding
Business Day. The amount of all payments received by the Administrative
Agent for the account of each Lender shall be immediately paid by the
Administrative Agent to the applicable Lender in immediately available
funds and, if such payment was received by the Administrative Agent by
11:00 a.m., California local time, on a Business Day and not so made
available to the account of a Lender on that Business Day, the
Administrative Agent shall reimburse that Lender for the cost to such
Lender of funding the amount of such payment at the Federal Funds Rate.
All payments shall be made in lawful money of the United States of
America except that payments in respect of the German Commitment Loans
shall be made in Euros.
(b) Each payment or prepayment on account of any Loan
shall be applied pro rata according to the outstanding Advances made by
each Lender comprising such Loan.
(c) Each Lender shall use its best efforts to keep a
record (which may be in tangible or electronic or other intangible form)
of Advances made by it and payments received by it with respect to each
of its Notes and, subject to Section 10.6(g), such record shall, as
against the Borrowers, be presumptive evidence of the amounts owing.
Notwithstanding the foregoing sentence, the failure by any Lender to
keep such a record shall not affect the Borrowers' obligation to pay the
Obligations.
(d) Each payment of any amount payable by the Borrowers
or any other Party under this Agreement or any other Loan Document shall
be made free and clear of, and without reduction by reason of, any
taxes, assessments or other charges imposed by any Governmental Agency,
central bank or comparable authority, excluding (i) taxes imposed on or
measured in whole or in part by overall net income, gross income or
gross receipts, (ii) franchise taxes imposed on any Lender by (A) any
jurisdiction (or political subdivision thereof) in which it is organized
or maintains its principal office or Eurocurrency Lending Office or (B)
any jurisdiction (or political subdivision thereof) in which it is
"doing business", (iii) any withholding taxes or other taxes based on
gross income imposed by the United States of America that are not
attributable to any change in any Law or the interpretation or
administration of any Law by any Governmental Agency and (iv) any
withholding tax or other taxes based on gross income imposed by the
United States of America for any period with
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respect to which it has failed to provide the Borrowers with the
appropriate form or forms required by Section 11.21 (all such
non-excluded taxes, assessments or other charges being hereinafter
referred to as "Taxes"). To the extent that the Borrowers or any other
Party is obligated by applicable Laws to make any deduction or
withholding on account of Taxes from any amount payable to any Lender
under this Agreement, they shall (i) make such deduction or withholding
and pay the same to the relevant Governmental Agency and (ii) pay such
additional amount to that Lender as is necessary to result in that
Lender's receiving a net after-Tax amount equal to the amount to which
that Lender would have been entitled under this Agreement absent such
deduction or withholding. If and when receipt of such payment results in
an excess payment or credit to that Lender on account of such Taxes,
that Lender shall promptly refund such excess to the Borrowers or the
relevant Party.
3.13 Funding Sources. Nothing in this Agreement shall be deemed
to obligate any Lender to obtain the funds for any Loan or Advance in any
particular place or manner or to constitute a representation by any Lender that
it has obtained or will obtain the funds for any Loan or Advance in any
particular place or manner.
3.14 Failure to Charge Not Subsequent Waiver. Any decision by
the Administrative Agent or any Lender not to require payment of any interest
(including interest at the Default Rate), fee, cost or other amount payable
under any Loan Document, or to calculate any amount payable by a particular
method, on any occasion shall in no way limit or be deemed a waiver of the
Administrative Agent's or such Lender's right to require full payment of any
interest (including interest at the Default Rate), fee, cost or other amount
payable under any Loan Document, or to calculate an amount payable by another
method that is not inconsistent with this Agreement, on any other or subsequent
occasion.
3.15 Administrative Agent's Right to Assume Payments Will be
Made by the Borrowers. Unless the Administrative Agent shall have been notified
by the Borrowers prior to the date on which any payment to be made by the
Borrowers hereunder is due that the Borrowers do not intend to remit such
payment, the Administrative Agent may, in its discretion, assume that the
relevant Borrower has remitted such payment when so due and the Administrative
Agent may, in its discretion and in reliance upon such assumption, make
available to each Lender on such payment date an amount equal to such Lender's
share of such assumed payment. If the relevant Borrower has not in fact remitted
such payment to the Administrative Agent, each Lender shall forthwith on demand
repay to the Administrative Agent the amount of such assumed payment made
available to such Lender, together with interest thereon in respect of each day
from and including the date such amount was made available by the Administrative
Agent to such Lender to the date such amount is repaid to the Administrative
Agent at the Federal Funds Rate.
3.16 Fee Determination Detail. The Administrative Agent and any
Lender shall provide reasonable detail to the Borrowers regarding the manner in
which the amount of any payment to the Creditors, or that Lender, under Article
3 has been determined, concurrently with demand for such payment.
3.17 Survivability. All of the Borrowers' obligations under
Sections 3.7 and 3.8 shall survive for ninety days following the date on which
the last occurs: (a) the Commitments are terminated, (b) all Obligations are
fully paid, and (c) all Letters of Credit have expired or have been cash
collateralized in a manner which is acceptable to the Administrative Agent and
the Issuing Lender.
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3.18 Currency Conversion.
(a) All Obligations of the Domestic Borrower to the
Creditors shall be paid to the Creditors in Dollars. All Obligations of
the German Borrowers to the Creditors shall be paid to the Creditors in
Euros. The Borrowers' obligations hereunder and under the other Loan
Documents to make payments in either such currency (the "Obligation
Currency") shall not be discharged or satisfied by any tender or
recovery pursuant to any judgment expressed in or converted into any
other currency, except to the extent that such tender or recovery
results in the effective receipt by the Creditors of the full amount
expressed to be payable to the Creditors under this Agreement or the
other Loan Documents. If for the purpose of obtaining or enforcing
judgment against any Borrower in any court or in any jurisdiction, it
becomes necessary to convert into or from any currency other than the
Obligation Currency (such other currency being hereinafter referred to
as the "Judgment Currency") an amount due in the Obligation Currency,
the conversion shall be made, at the Euro Equivalent or the Dollar
Equivalent thereof, as the case may be, and, in the case of other
currencies, the rate of exchange (as quoted by the Administrative Agent
or if the Administrative Agent does not quote a rate of exchange on such
currency, by a known dealer in such currency designated by the
Administrative Agent) determined, in each case, as of the day
immediately preceding the day on which the judgment is given (such
Business Day being hereinafter referred to as the "Judgment Currency
Conversion Date").
(b) If there is a change in the rate of exchange
prevailing between the Judgment Currency Conversion Date and the date of
actual payment of the amount due, the Borrowers covenant and agree to
pay, or cause to be paid, such additional amounts, if any (but in any
event not a lesser amount) as may be necessary to ensure that the amount
paid in the Judgment Currency, when converted at the rate of exchange
prevailing on the date of payment, will produce the amount of the
Obligation Currency which could have been purchased with the amount of
Judgment Currency stipulated in the judgment or judicial award at the
rate or exchange prevailing on the Judgment Currency Conversion Date.
(c) For purposes of determining the Euro Equivalent or
the Dollar Equivalent or any other rate of exchange for this Section,
such amounts shall include any premium and costs payable in connection
with the purchase of the Obligation Currency.
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Article 4
REPRESENTATIONS AND WARRANTIES
Each Borrower represents and warrants to the Lenders that:
4.1 Existence and Qualification; Power; Compliance With Laws.
The Domestic Borrower is a corporation duly incorporated, validly existing and
in good standing under the Laws of Nevada. Each of the German Borrowers are each
companies duly formed, validly existing and in good standing under the Laws of
the Federal Republic of Germany. Each of the Subsidiaries of the Domestic
Borrowers is duly formed, validly existing and in good standing under the Laws
of its state or jurisdiction of formation. Each of the Borrowers and each of
their respective Subsidiaries are duly qualified or registered to transact
business and are in good standing in each other jurisdiction in which the
conduct of their business or the ownership or leasing of their Properties makes
such qualification or registration necessary, except where the failure so to
qualify or register and to be in good standing would not constitute a Material
Adverse Effect. The Borrowers and each of their respective Subsidiaries have all
requisite corporate or other organizational power and authority to conduct their
business, to own and lease their Properties and to execute and deliver each Loan
Document to which each is a Party and to perform the Obligations. All
outstanding shares of the capital stock of the Domestic Borrower are duly
authorized, validly issued, fully paid and non-assessable, and no holder thereof
has any enforceable right of rescission under any applicable state or federal
securities Laws. Each Borrower is in compliance with all Requirements of Law
applicable to its business as at present conducted, has obtained all
authorizations, consents, approvals, orders, licenses and permits from, and has
accomplished all filings, registrations and qualifications with, or obtained
exemptions from any of the foregoing from, any Governmental Agency that are
necessary for the transaction of its business as at present conducted, except
where the failure so to comply, file, register, qualify or obtain exemptions
does not constitute a Material Adverse Effect.
4.2 Authority; Compliance With Other Agreements and Instruments
and Government Regulations. The execution, delivery and performance by each
Borrower and each Significant Subsidiary of the Loan Documents to which it is a
Party have been duly authorized by all necessary corporate or other
organizational action, and do not and will not:
(a) Require any consent or approval not heretofore
obtained of any member, partner, director, stockholder, security holder
or creditor of such Party;
(b) Violate or conflict with any provision of such
Party's charter, articles of incorporation, operating agreement or
bylaws, as applicable;
(c) Result in or require the creation or imposition of
any Lien or Right of Others upon or with respect to any Property now
owned or leased or hereafter acquired by such Party;
(d) Violate any Requirement of Law applicable to such
Party, subject to obtaining the authorizations from, or filings with,
the Governmental Agencies described in Schedule 4.3;
(e) Result in a breach of or constitute a default under,
or cause or permit the acceleration of any obligation owed under, any
indenture or loan or credit agreement or any
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other Contractual Obligation to which such Party is a party or by which
such Party or any of its Property is bound or affected;
and neither the Borrowers nor any Significant Subsidiary is in violation of, or
default under, any Requirement of Law or Contractual Obligation, or any
indenture, loan or credit agreement described in Section 4.2(e), in any respect
that constitutes a Material Adverse Effect.
4.3 No Governmental Approvals Required - Consents to Pledge.
Except as set forth in Schedule 4.3 or previously obtained or made, no
authorization, consent, approval, order, license or permit from, or filing,
registration or qualification with, any Governmental Agency is or will be
required to authorize or permit under applicable Laws the execution, delivery
and performance by the Domestic Borrower, the German Borrowers and their
respective Subsidiaries of the Loan Documents to which it is a Party. Except as
set forth in Schedule 4.3, all authorizations from, or filings with, any
Governmental Agency described in Schedule 4.3 will be accomplished as of the
Closing Date. As to the items set forth on Schedule 5.12, the Borrowers
represent and warrant that they have filed all applications and petitions
necessary to obtain the authorizations, consents and approvals described therein
(except to the extent that the same require the filing of this Agreement, in
which case the same shall be accomplished within 10 days following the execution
hereof).
4.4 Subsidiaries.
(a) Schedule 4.4 hereto correctly sets forth the names,
form of legal entity, number of shares of capital stock issued and
outstanding, number of shares owned by the Domestic Borrower or a
Subsidiary of the Domestic Borrower (specifying such owner) and
jurisdictions of organization of all Subsidiaries of the Domestic
Borrower. Except as described in Schedule 4.4 (and Investments and
Acquisitions made after the date hereof and permitted hereby), the
Domestic Borrower does not own any capital stock, equity interest or
debt security which is convertible, or exchangeable, for capital stock
or equity interests in any Person. Unless otherwise indicated in
Schedule 4.4, all of the outstanding shares of capital stock, or all of
the units of equity interest, as the case may be, of each Subsidiary are
owned of record and beneficially by the Domestic Borrower, there are no
outstanding options, warrants or other rights to purchase capital stock
of any such Subsidiary, and all such shares or equity interests so owned
are duly authorized, validly issued, fully paid and non-assessable, and
were issued in compliance with all applicable state and federal
securities and other Laws, and are free and clear of all Liens and
Rights of Others, except for Permitted Encumbrances and Permitted Rights
of Others.
(b) Each Subsidiary of the Domestic Borrower is in
compliance with all Requirements of Law applicable to its business and
has obtained all authorizations, consents, approvals, orders, licenses,
and permits from, and each such Subsidiary has accomplished all filings,
registrations, and qualifications with, or obtained exemptions from any
of the foregoing from, any Governmental Agency that are necessary for
the transaction of its business, except where the failure to be in such
compliance, obtain such authorizations, consents, approvals, orders,
licenses, and permits, accomplish such filings, registrations, and
qualifications, or obtain such exemptions, does not constitute a
Material Adverse Effect.
4.5 Financial Statements. The Domestic Borrower has furnished to
the Lenders (a) the audited consolidated and consolidating financial statements
of the Domestic Borrower and its Subsidiaries for the Fiscal Year ended June 30,
2000 and (b) the unaudited consolidated and
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consolidating financial statements of each of the Domestic Borrower and its
Subsidiaries for the Fiscal Quarter ended March 31, 2001, and (c) the unaudited
consolidated and consolidating financial statements of German Holdings and its
Subsidiaries for the Fiscal Quarter ended March 31, 2001. The financial
statements described above fairly present in all material respects the financial
condition, results of operations and changes in financial position of the
Domestic Borrower and its Subsidiaries or their German Borrowers and their
Subsidiaries, as the case may be, as of such dates and for such periods in
conformity with Generally Accepted Accounting Principles, consistently applied.
4.6 No Other Liabilities; No Material Adverse Changes. As of the
Closing Date, the Domestic Borrower and its Subsidiaries do not have any
material liability or material contingent liability required under Generally
Accepted Accounting Principles to be reflected or disclosed and not reflected or
disclosed in the financial statements described in Section 4.5(b), other than
liabilities and contingent liabilities arising in the ordinary course of
business since the date of such financial statements. As of the Closing Date, no
circumstance or event has occurred that constitutes a Material Adverse Effect as
to the Domestic Borrower and its Subsidiaries since June 30, 2000. As of any
date subsequent to the Closing Date, no circumstance or event has occurred that
constitutes a Material Adverse Effect since the Closing Date.
4.7 Title to Property. The Domestic Borrower and its
Subsidiaries have rights in the Property reflected in the financial statements
described in Section 4.5(b), other than immaterial items of Property and
Property subsequently sold or disposed of in the ordinary course of business,
free and clear of all Liens and Rights of Others, other than Permitted
Encumbrances, Permitted Rights of Others and Liens or Rights of Others described
in Schedule 4.7 or permitted by Section 6.8.
4.8 Real Property. Schedule 4.8 sets forth as of the Closing
Date a summary description of all real property owned and real property
leasehold estates held by the Domestic Borrower and its Subsidiaries, which
summary is accurate and complete in all material respects except for real
property acquired or leased after the Closing Date after notice to the
Administrative Agent.
4.9 Intangible Assets. The Domestic Borrower and its
Subsidiaries own, or possess the right to use to the extent necessary in their
businesses, all material trademarks, trade names, copyrights, patents, patent
rights, computer software, licenses and other Intangible Assets that are used in
the conduct of their businesses, and no such Intangible Asset, to the actual
best knowledge of the Domestic Borrower, conflicts with the valid trademark,
trade name, copyright, mask work, patent, patent right or Intangible Asset of
any other Person to the extent that such conflict constitutes a Material Adverse
Effect. Schedule 4.9 sets forth all material patents, trademarks, trade names,
trade styles, copyrights and mask works owned by the Domestic Borrower and its
Subsidiaries.
4.10 Public Utility Holding Company Act. Neither the Domestic
Borrower nor any of its Subsidiaries is a "holding company", or a "subsidiary
company" of a "holding company", or an "affiliate" of a "holding company" or of
a "subsidiary company" of a "holding company", within the meaning of the Public
Utility Holding Company Act of 1935, as amended.
4.11 Litigation. Except for (a) any matter fully covered as to
subject matter and amount (subject to applicable deductibles and retentions) by
insurance as to which the insurance carrier has been notified and has not
asserted lack of subject matter coverage or reserved its right to do so, (b) any
matter, or series of related matters, involving a claim against the Domestic
Borrower or any of its Subsidiaries of less than $2,500,000, (c) matters of an
administrative nature not involving a claim or charge against the Domestic
Borrower or any of its Subsidiaries and (d) matters set forth in
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Schedule 4.11, there are no actions, suits, proceedings or investigations
pending as to which the Domestic Borrower or any of its Subsidiaries have been
served or have received notice or, to the best knowledge of the Domestic
Borrower, threatened against or affecting the Domestic Borrower or any of its
Subsidiaries or any Property of any of them before any Governmental Agency which
may reasonably be expected to have a Material Adverse Effect.
4.12 Binding Obligations. Each of the Loan Documents to which
the Domestic Borrower or any of its Subsidiaries is a Party will, when executed
and delivered by such Party, constitute the legal, valid and binding obligation
of such Party, enforceable against such Party in accordance with its terms,
except as enforcement may be limited by Debtor Relief Laws, Gaming Laws or
equitable principles relating to the granting of specific performance and other
equitable remedies as a matter of judicial discretion.
4.13 No Default. No event has occurred and is continuing that is
a Default or Event of Default.
4.14 ERISA.
(a) With respect to each Pension Plan:
(i) such Pension Plan complies in all material
respects with ERISA and any other applicable Laws to the extent
that noncompliance could reasonably be expected to have a
Material Adverse Effect;
(ii) such Pension Plan has not incurred any
"accumulated funding deficiency" (as defined in Section 302 of
ERISA) that could reasonably be expected to have a Material
Adverse Effect;
(iii) no "reportable event" (as defined in
Section 4043 of ERISA) has occurred that could reasonably be
expected to have a Material Adverse Effect; and
(iv) neither the Domestic Borrower nor any of
its Subsidiaries has engaged in any non-exempt "prohibited
transaction" (as defined in Section 4975 of the Code) that could
reasonably be expected to have a Material Adverse Effect.
(b) Neither the Domestic Borrower nor any of its
Subsidiaries has incurred or expects to incur any withdrawal liability
to any Multiemployer Plan that could reasonably be expected to have a
Material Adverse Effect.
4.15 Regulations T, U and X; Investment Company Act. No part of
the proceeds of any Loan hereunder will be used to purchase or carry, or to
extend credit to others for the purpose of purchasing or carrying, any Margin
Stock in violation of Regulations T, U and X. Neither the Domestic Borrower nor
any of its Subsidiaries is or is required to be registered as an "investment
company" under the Investment Company Act of 1940.
4.16 Disclosure. Taken as a whole, the written statements made
by Senior Officers of the Domestic Borrower, the German Borrowers and their
respective Subsidiaries to the Administrative Agent and to the Lenders in
connection with this Agreement, and in connection with the Loans, do not contain
as of the date thereof, any untrue statement of a material fact or omitted a
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material fact necessary to make the statement made not misleading in light of
all the circumstances existing at the date the statement was made.
4.17 Tax Liability. The Domestic Borrower and its Subsidiaries
have filed all tax returns which are required to be filed, and have paid, or
made provision for the payment of, all taxes with respect to the periods,
Property or transactions covered by said returns, or pursuant to any assessment
received by the Domestic Borrower or its Subsidiaries, except (a) such taxes, if
any, as are being contested in good faith by appropriate proceedings and as to
which adequate reserves have been established and maintained and (b) immaterial
taxes so long as no material Property of the Domestic Borrower or any of its
Subsidiaries is in jeopardy of being seized, levied upon or forfeited.
4.18 Projections. As of the Closing Date, the assumptions set
forth in the Projections are reasonable and consistent with each other and with
all facts known to the Domestic Borrower and its Subsidiaries, and the
Projections are reasonably based on such assumptions. Nothing in this Section
shall be construed as a representation or covenant that the Projections in fact
will be achieved. The Creditors acknowledge that the Projections are
forward-looking statements and that actual financial results for the Domestic
Borrower and its Subsidiaries could differ materially from those set forth in
the Projections.
4.19 Hazardous Materials. Except as described in Schedule 4.19,
(a) neither the Domestic Borrower nor any of its Subsidiaries at any time has
disposed of, discharged, released or threatened the release of any Hazardous
Materials on, from or under the Real Property in violation of any Hazardous
Materials Law that would individually or in the aggregate constitute a Material
Adverse Effect, (b) to the actual best knowledge of the Domestic Borrower, no
condition exists that violates any Hazardous Material Law affecting any Real
Property except for such violations that would not individually or in the
aggregate have a Material Adverse Effect, (c) no Real Property or any portion
thereof is or has been utilized by the Domestic Borrower or any of its
Subsidiaries as a site for the manufacture of any Hazardous Materials and (d) to
the extent that any Hazardous Materials are used, generated or stored by the
Domestic Borrower or any of its Subsidiaries on any Real Property, or
transported to or from such Real Property by the Domestic Borrower or any of its
Subsidiaries, such use, generation, storage and transportation are in compliance
in all material respects with all Hazardous Materials Laws.
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Article 5
AFFIRMATIVE COVENANTS
(OTHER THAN INFORMATION AND REPORTING REQUIREMENTS)
So long as any Advance remains unpaid, or any Letter of Credit
remains outstanding or any other Obligation remains unpaid, or any portion of
the Commitments remains in force, Borrowers shall, and shall cause each of their
respective Subsidiaries to, unless the Administrative Agent (with the written
approval of the Requisite Lenders (or, if required by Section 11.2, another
group of the Lenders)) otherwise consents:
5.1 Payment of Taxes and Other Potential Liens. Pay and
discharge promptly all taxes, assessments and governmental charges or levies
imposed upon any of them, upon their respective Property or any part thereof and
upon their respective income or profits or any part thereof, except that the
Domestic Borrower and its Subsidiaries shall not be required to pay or cause to
be paid (a) any tax, assessment, charge or levy that is not yet past due, or is
being contested in good faith by appropriate proceedings so long as the relevant
entity has established and maintains adequate reserves for the payment of the
same or (b) any immaterial tax so long as no material Property of the Domestic
Borrower or any of its Subsidiaries is in jeopardy of being seized, levied upon
or forfeited.
5.2 Preservation of Existence. Except for transactions permitted
by Sections 6.2 and 6.3, preserve and maintain their respective existences in
the jurisdiction of their formation and all material authorizations, rights,
franchises, privileges, consents, approvals, orders, licenses, permits, or
registrations from any Governmental Agency that are necessary for the
transaction of their respective business except where the failure to so preserve
and maintain the existence of any Subsidiary of the Domestic Borrower and such
authorizations, rights, franchises, privileges, consents, approvals, orders,
licenses, permits, or registrations would not constitute a Material Adverse
Effect; and qualify and remain qualified to transact business in each
jurisdiction in which such qualification is necessary in view of their
respective business or the ownership or leasing of their respective Properties
except where the failure to so qualify or remain qualified would not constitute
a Material Adverse Effect.
5.3 Maintenance of Properties. Maintain, preserve and protect
all of their respective Properties in good order and condition, subject to wear
and tear in the ordinary course of business, and not permit any waste of their
respective Properties, except that neither (a) the failure to maintain, preserve
and protect a particular item of Property that is not of significant value,
either intrinsically or to the operations of the Domestic Borrower and its
Subsidiaries, taken as a whole, nor (b) any Disposition permitted by Section
6.2, shall constitute a violation of this covenant.
5.4 Maintenance of Insurance. Maintain liability, casualty and
other insurance (subject to customary deductibles and retentions) with
responsible insurance companies in such amounts and against such risks as is
carried by responsible companies engaged in similar businesses and owning
similar assets in the general areas in which the Domestic Borrower and its
Subsidiaries operate, and in any event coverages which are not materially less
than those maintained as of the Closing Date.
5.5 Compliance With Laws. Comply, within the time period, if
any, given for such compliance by the relevant Governmental Agency with
enforcement authority, with all Requirements of Law noncompliance with which
constitutes a Material Adverse Effect, except that the Domestic Borrower and its
Subsidiaries need not comply with a Requirement of Law then being contested by
any of them in good faith by appropriate proceedings.
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5.6 Inspection Rights. Upon reasonable notice, at any time
during regular business hours and as often as reasonably requested (but not so
as to materially interfere with the business of the Domestic Borrower or any of
its Subsidiaries) permit the Administrative Agent or any Lender, or any
authorized employee, agent or representative thereof, to examine, audit and make
copies and abstracts from the records and books of account of, and to visit and
inspect the Properties of, the Domestic Borrower and its Subsidiaries and to
discuss the affairs, finances and accounts of the Domestic Borrower and its
Subsidiaries with any of their officers, managers, key employees or accountants
and, upon request, furnish promptly to the Administrative Agent or any Lender
true copies of all financial information made available to the board of
directors or audit committee of the board of directors of the Domestic Borrower.
5.7 Keeping of Records and Books of Account. Keep adequate
records and books of account reflecting all financial transactions in conformity
with Generally Accepted Accounting Principles, consistently applied, and in
material conformity with all applicable requirements of any Governmental Agency
having regulatory jurisdiction over the Domestic Borrower or any of its
Subsidiaries.
5.8 Compliance With Agreements. Promptly and fully comply with
all Contractual Obligations under all material agreements, indentures, leases
and/or instruments to which any one or more of them is a party, whether such
material agreements, indentures, leases or instruments are with a Lender or
another Person, except for any such Contractual Obligations (a) the performance
of which would cause a Default or (b) then being contested by any of them in
good faith by appropriate proceedings or if the failure to comply with such
agreements, indentures, leases or instruments does not constitute a Material
Adverse Effect.
5.9 Use of Proceeds. Use the proceeds of Loans (a) on the
Closing Date, to repay the obligations under and terminate the Existing Credit
Agreement and the Refinanced Leases, and (b) for capital expenditures, to
provide working capital and for other general corporate purposes of the Domestic
Borrower and its Subsidiaries including the Acquisitions and Investments
permitted or described herein.
5.10 New Significant Subsidiaries. Cause each Person, other than
any Excluded Subsidiary, (a) that hereafter becomes a Domestic Significant
Subsidiary of the Domestic Borrower to execute and deliver, concurrently with
its formation, acquisition or otherwise becoming a Domestic Significant
Subsidiary, joinders to the Domestic Facilities Guaranty, the Domestic
Subsidiaries Security Agreement and the German Facility Guaranty, together with
such other instruments, documents and agreements, including financing
statements, as the Administrative Agent may require to grant and perfect Liens
in substantially all of its Property to secure its obligations under such
guarantees, and (b) that hereafter becomes a Foreign Significant Subsidiary, to
execute and deliver, concurrently with its formation, acquisition or otherwise
becoming a Foreign Significant Subsidiary, a guarantee of the German Note and
additional German Security Documents together with such other instruments,
documents and agreements, including financing statements, as the Administrative
Agent may require to grant and perfect Liens in substantially all of its
Property to secure its obligations under its guarantee of the German Note. In
addition thereto, the Borrowers shall cause (A) 100% of the capital stock of
each such Person which is a Domestic Significant Subsidiary to be pledged to the
Administrative Agent pursuant to the Domestic Facilities Pledge Agreement,
(B) 100% of the capital stock of each such Person which is a Foreign Significant
Subsidiary to be pledged to the Administrative Agent pursuant to the German
Facility Pledge Agreement and 65% of the capital stock of each such Person which
is a
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Foreign Significant Subsidiary to be pledged to the Administrative Agent
pursuant to the Domestic Facilities Pledge Agreement, together with any other
Collateral Documents requested by the Administrative Agent.
5.11 Hazardous Materials Laws. Keep and maintain all Real
Property and each portion thereof in compliance in all material respects with
all applicable Hazardous Materials Laws and promptly notify the Administrative
Agent in writing (attaching a copy of any pertinent written material) of (a) any
and all material enforcement, cleanup, removal or other governmental or
regulatory actions instituted, completed or threatened in writing by a
Governmental Agency pursuant to any applicable Hazardous Materials Laws, (b) any
and all material claims made or threatened in writing by any Person against the
Domestic Borrower or its Subsidiaries relating to damage, contribution, cost
recovery, compensation, loss or injury resulting from any Hazardous Materials
and (c) discovery by any Senior Officer of the Domestic Borrower of any material
occurrence or condition on Property adjoining or in the vicinity of such Real
Property that could reasonably be expected to cause such Real Property or any
part thereof to be subject to any restrictions on the ownership, occupancy,
transferability or use of such Real Property under any applicable Hazardous
Materials Laws.
5.12 Approvals of Pledge of Significant Subsidiary Shares.
Diligently pursue by appropriate proceedings and in all events shall obtain on
or before October 31, 2001, all Gaming Board and other Governmental Agency
approvals required for the Domestic Borrower and its Subsidiaries to pledge its
shares of gaming licensees described in Schedule 5.12 to the Administrative
Agent to secure the Obligations pursuant to the Domestic Facilities Pledge
Agreement and the German Facility Pledge Agreement.
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Article 6
NEGATIVE COVENANTS
So long as any Advance remains unpaid, or any Letter of Credit
remains outstanding or any other Obligation remains unpaid, or any portion of
the Commitments remain in force, the Borrowers shall not, and shall not permit
any of their respective Subsidiaries to, unless the Administrative Agent (with
the written approval of the Requisite Lenders or, if required by Section 11.2,
of any other group of the Lenders) otherwise consents:
6.1 Payment of Subordinated Obligations. Prepay any principal
including sinking fund payments) or any other amount with respect to any
Subordinated Obligation, or purchase or redeem (or offer to purchase or redeem)
any Subordinated Obligation prior to the scheduled maturity date thereof, or
deposit any monies, securities or other Property with any trustee or other
Person to provide assurance that the principal or any portion thereof of any
Subordinated Obligation will be paid when due or otherwise to provide for the
defeasance of any Subordinated Obligation provided that so long as no Default or
Event of Default then exists or would result therefrom, the Domestic Borrower
may make payments of scheduled interest on any Subordinated Obligations in
accordance with the terms thereof.
6.2 Disposition of Property. Make any Disposition of its
Property, whether now owned or hereafter acquired, other than Dispositions of
the types described below made when no Default or Event of Default exists or
would result therefrom:
(a) Dispositions of obsolete or worn-out Property, tools
or equipment no longer used or useful in its business or Real Property
no longer used or useful in its business;
(b) Dispositions of the stock or assets of the Bally
Xxxxx division (including without limitation the capital stock or assets
of the German Borrowers), provide that the Loans under the German
Commitment are concurrently repaid in full and the German Commitment is
terminated (but without any requirement of reduction of the Domestic
Commitments);
(c) Dispositions consisting of any sale and leaseback of
the Headquarters Property, provided that (i) a portion of the proceeds
of such sale is applied to prepay the Loans as set forth in Section 2.7
and (ii) the related sale transaction is on a non-recourse basis to the
Domestic Borrower and its Subsidiaries (other than as to conventional
representations, warranties and indemnities regarding the condition
thereof) and the residual liability of the Domestic Borrower and its
Subsidiaries is limited to rental obligations with respect to the
Headquarters Property;
(d) so long as no Event of Default has occurred and is
continuing or would result therefrom, the Domestic Borrower and its
Subsidiaries may sell equipment and other assets, to the extent not
otherwise permitted under any other clause of this Section 6.2, at the
fair market value thereof (as determined in good faith by management of
the Domestic Borrower), provided that the aggregate consideration
(valued as described above) for all sales pursuant to this clause (d)
shall not exceed $5,000,000 in any Fiscal Year of the Domestic Borrower;
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(e) the Domestic Borrower and its Subsidiaries may, in
the ordinary course of business, license, as licensor or licensee,
patents, trademarks, copyrights, mask works and know-how to third
Persons and to one another; and
(f) liquidations and dissolutions of Subsidiaries
permitted by Section 5.2 (including, without limitation, the transfer of
the assets of Bally Gaming Missouri, Inc., to Bally Gaming, Inc., in
compliance with all Gaming Laws and the requirements of all Gaming
Boards).
6.3 Mergers. Merge or consolidate with or into any Person,
except (a) mergers and consolidations of a Wholly-Owned Subsidiary of the
Domestic Borrower into the Domestic Borrower or another Wholly-Owned Subsidiary
of the Domestic Borrower, and (b) mergers with any Person in connection with
Acquisitions permitted under Section 6.12 so long as the Domestic Borrower and
its Subsidiaries execute such amendments to the Loan Documents as may be
reasonably requested by the Administrative Agent to reflect such change.
6.4 Hostile Acquisitions. Directly or indirectly use the
proceeds of any Loan in connection with the acquisition of part or all of a
voting interest of five percent or more in any corporation or other business
entity if such acquisition is opposed by the board of directors or management of
such corporation or business entity.
6.5 Distributions. Make any Distribution, whether from capital,
income or otherwise, and whether in Cash or other Property, except:
(a) Distributions by a Subsidiary of the Domestic
Borrower to the Domestic Borrower or to a Wholly-Owned Significant
Subsidiary and by the Excluded Subsidiaries to their other stakeholders
in the ordinary course of business and consistent with past practices;
(b) so long as no Default or Event of Default has
occurred and is continuing or would result therefrom, Distributions by
the Domestic Borrower to repurchase outstanding shares of its common
stock (or options to purchase such common stock) following the death,
disability or termination of employment of employees of the Domestic
Borrower or any of its Subsidiaries, provided that the aggregate amount
of Distributions made by the Domestic Borrower pursuant to this clause
(b) shall not exceed $1,000,000 in any Fiscal Year of the Domestic
Borrower; and
(c) so long as no Default or Event of Default has
occurred and is continuing or would result therefrom, Distributions by
the Domestic Borrower to repurchase other outstanding shares of its
common stock (or options to purchase such common stock), provide that
the aggregate amount of Distributions made by the Domestic Borrower
pursuant to this clause (c) shall not exceed $5,000,000 in any Fiscal
Year.
6.6 ERISA. At any time, permit any Pension Plan to (i) engage in
any non-exempt "prohibited transaction" (as defined in Section 4975 of the
Code), (ii) fail to comply with ERISA or any other applicable Laws, (iii) incur
any material "accumulated funding deficiency" (as defined in Section 302 of
ERISA), or (iv) terminate in any manner, which, with respect to each event
listed above, could reasonably be expected to result in a Material Adverse
Effect, or (v) withdraw, completely or partially, from any Multiemployer Plan if
to do so could reasonably be expected to result in a Material Adverse Effect.
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6.7 Change in Nature of Business. Make any material change in
the nature of the business of the Domestic Borrower and its Subsidiaries, taken
as a whole.
6.8 Liens and Negative Pledges. Create, incur, assume or suffer
to exist any Lien or Negative Pledge of any nature upon or with respect to any
of its Properties, or engage in any sale and leaseback transaction with respect
to any of its Properties, whether now owned or hereafter acquired, except:
(a) Permitted Encumbrances;
(b) Liens and Negative Pledges under the Loan Documents;
(c) Liens and Negative Pledges existing on the Closing
Date and disclosed in Schedule 4.7 and any renewals/extensions or
amendments thereof, provided that the obligations secured or benefitted
thereby are not increased;
(d) Liens and related Negative Pledges on Property
acquired by the Domestic Borrower or any of its Subsidiaries following
the Closing Date securing Indebtedness permitted under Section 6.9(e)
and which and are not created in contemplation of the acquisitions
described in that Section;
(e) Liens securing Indebtedness permitted by Section
6.9(d) on and limited to the capital assets acquired, constructed or
financed with the proceeds of such Indebtedness or with the proceeds of
any Indebtedness directly or indirectly refinanced by such Indebtedness,
and related Negative Pledges with respect to such assets, provided that
the scope of such Liens and Negative Pledges are not increased and the
obligations secured or benefitted thereby are not increased;
(f) any Negative Pledge created by an agreement or
instrument entered into by the Domestic Borrower or any of its
Subsidiaries in the ordinary course of its business which consists of a
restriction on the assignability, transfer or hypothecation of such
agreement or instrument;
(g) Liens created by operation of applicable Gaming Laws
or imposed by contract with the relevant Gaming Board;
(h) Liens securing the Indebtedness and contingent
obligations described in Section 6.9(h) that are equal, ratable and pari
passu with the Liens securing the Obligations, it being understood that
the Administrative Agent may enter into intercreditor agreements with
the creditors holding such Indebtedness and contingent obligations;
(i) judgment Liens securing judgments which do not
result in an Event of Default;
(j) Liens on Cash Equivalents or Investments securing
liabilities for jackpots payable for progressive games in a manner
consistent with industry practice and applicable Gaming Laws;
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(k) Liens securing Indebtedness incurred in connection
with a mortgage financing of the Headquarters Property so long as such
Liens extend solely to the real property that composes the Headquarters
Property and related Negative Pledges with respect thereto;
(l) licenses, leases, sublicenses or subleases granted
to other Persons in the ordinary course of business and not materially
interfering with the conduct of the business of the Domestic Borrower
and its Subsidiaries, taken as a whole; and
(m) any extension, renewal or replacement of the
foregoing provided that the scope of the Property so encumbered and the
related obligations are not increased.
6.9 Indebtedness and Contingent Obligations. Create, incur or
assume any Indebtedness or Contingent Obligation except:
(a) Indebtedness and Contingent Obligations existing on
the Closing Date and disclosed in Schedule 6.9, and refinancings,
renewals, extensions or amendments thereto by the same obligors that do
not increase the amount thereof,
(b) Indebtedness and Contingent Obligations under the
Loan Documents;
(c) Indebtedness and Contingent Obligations owed to the
Domestic Borrower or a Wholly-Owned Subsidiary of the Domestic Borrower;
(d) Indebtedness consisting of Capital Lease
Obligations, or otherwise incurred to finance the purchase or
construction of capital assets (which shall be deemed to be so incurred
if the Indebtedness is incurred at or within 90 days before or after the
purchase or commencement of construction of the capital asset), or to
refinance any such Indebtedness, provided that the aggregate principal
amount of such Indebtedness outstanding at any time does not exceed
$10,000,000;
(e) Indebtedness owing by Persons, or secured by
Property, acquired by the Domestic Borrower or any of its Subsidiaries
following the Closing Date that is in existence at the time of such
acquisition and is not created in contemplation of such acquisition,
provided that the aggregate outstanding principal amount of any such
Indebtedness shall not exceed $10,000,000 at any time;
(f) Indebtedness consisting of one or more Swap
Agreements entered into in the ordinary course of business with respect
to outstanding Indebtedness or existing currency exchange risk;
provided, that the aggregate notional amount of Indebtedness covered by
all Swap Agreements shall not exceed the aggregate amount of the
Commitments;
(g) The Existing Senior Subordinated Notes and other
Subordinated Obligations incurred when no Default or Event of Default
exists, together with Contingent Obligations with respect thereto
incurred by Subsidiaries which have also entered into the Domestic
Facilities Guaranty and the German Facilities Guaranty;
(h) Indebtedness in an aggregate principal amount not to
exceed $50,000,000 and related contingent obligations consisting of
guarantees by those Subsidiaries of the Domestic Borrower which have
also guaranteed the Obligations; provided, that both the
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Revolving Commitment and German Commitment have been terminated and the
Obligations thereunder paid in full;
(i) Contingent Obligations in support of the obligations
of the Domestic Borrower or a Wholly-Owned Subsidiary of the Domestic
Borrower;
(j) certificates of deposit, bonds and other surety
obligations required to be maintained in accordance with applicable
Gaming Laws or in accordance with industry practice;
(k) Indebtedness and Contingent Obligations with respect
to performance bonds, surety bonds, appeal bonds or customs bonds
required in the ordinary course of business or in connection with the
enforcement of right or claims of the Domestic Borrower or any of its
Subsidiaries;
(l) Indebtedness constituting intercompany loans and
advances to the extent permitted by Section 6.12;
(m) Indebtedness incurred in connection with a mortgage
financing of the Headquarters Property; and
(n) other Indebtedness of a type not described in
clauses (a) through (m) above in an aggregate principal amount not to
exceed $10,000,000 at any time.
6.10 Transactions with Affiliates. Except as set forth on
Schedule 6.10, enter into any transaction of any kind with any Affiliate of the
Domestic Borrower other than (a) salary, bonus, employee stock option and other
compensation arrangements with directors, officers or managers in the ordinary
course of business, (b) transactions that are fully disclosed to the board of
directors of the Domestic Borrower and expressly authorized by a resolution of
the board of directors of the Domestic Borrower which is approved by a majority
of the directors not having an interest in the transaction, (c) transactions
between or among the Domestic Borrower and its Subsidiaries, and (d)
transactions on overall terms at least as favorable to the Domestic Borrower or
its Subsidiaries as would be the case in an arm's-length transaction between
unrelated parties of equal bargaining power.
6.11 Capital Expenditures. Make, or become legally obligated to
make, any Capital Expenditure except:
(a) Maintenance Capital Expenditures in an aggregate
amount not to exceed $10,000,000 in any Fiscal Year; and
(b) other Capital Expenditures in an aggregate amount
not to exceed $20,000,000 in any Fiscal Year.
6.12 Investments and Acquisitions. Make any Acquisition or enter
into any agreement to make any Acquisition, or suffer to exist any Investment,
other than:
(a) Investments in existence on the Closing Date and
disclosed on Schedule 6.12;
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(b) Investments consisting of Cash Equivalents;
(c) Investments consisting of advances to officers,
managers, directors and employees of the Domestic Borrower and the
Subsidiaries for travel, entertainment, relocation and analogous
ordinary business purposes;
(d) Investments (i) in the Domestic Borrower or in
Wholly-Owned Subsidiaries of the Domestic Borrower, (ii) to purchase
equity interests in Rainbow Casino Vickburg Partnership, L.P., or (iii)
in any other Excluded Subsidiaries if the effect thereof would be to
make such Excluded Subsidiaries Wholly-Owned Subsidiaries;
(e) Investments consisting of or evidencing the
extension of credit to customers or suppliers of the Domestic Borrower
and its Subsidiaries in the ordinary course of business and any
Investments received in satisfaction or partial satisfaction thereof,
(f) Investments received in connection with the
settlement of a bona fide dispute with another Person;
(g) Investments representing all or a portion of the
sales price of Property sold or services provided to another Person in
the ordinary course of business;
(h) Investments consisting of Contingent Obligations
permitted by Section 6.9;
(i) Investments in Swap Agreements with respect to the
Obligations and other floating rate Indebtedness of the Domestic
Borrower and its Subsidiaries;
(j) Acquisitions made when no Default or Event of
Default exists of Persons engaged primarily in the same or similar lines
of business as the Domestic Borrower and its existing Subsidiaries (and
existing Investments of such Persons whether or not primarily related to
such business) or of assets used in such businesses, provided that (i)
the consideration paid (net of Cash and Cash Equivalents acquired) by
the Domestic Borrower and its Subsidiaries for such Acquisitions
consists solely of the capital stock of the Domestic Borrower or Cash
and other Property having an aggregate value not in excess of
$20,000,000 (of which not more than $15,000,000 shall be Cash or other
Property other than the capital stock of the Domestic Borrower) during
the term of this Agreement; and (ii) giving pro forma effect to the
making of such Acquisition as of the last day of the then most recently
ended Fiscal Quarter, the Domestic Borrower is in pro forma compliance
with Sections 6.13 through 6.17;
(k) so long as no Event of Default has occurred and is
continuing or would result therefrom, Investments by the Domestic
Borrower in one or more joint ventures for the development of gaming
equipment in an aggregate amount not to exceed $10,000,000;
(l) Investments by the Domestic Borrower or its
Wholly-Owned Subsidiaries to establish new Wholly-Owned Subsidiaries
which are Significant Subsidiaries, executes the documents required by
Section 5.10;
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(m) Investments consisting of non-ordinary course
advances to officers, managers, directors, and employees of the Domestic
Borrower and the Subsidiaries in an aggregate amount outstanding at any
one time not to exceed $1,000,000; and
(n) other Investments of a type not described in clauses
(a) through (m) above in an aggregate amount not to exceed $10,000,000.
Notwithstanding the foregoing provisions of this Section 6.12, the Domestic
Borrower and its United States domestic Subsidiaries shall not make any new
Investment in any Subsidiary organized under the Laws of any jurisdiction which
is outside of the United States at any time when, giving effect thereto, more
than 20% of Net Income for the then most recent period of four consecutive
Fiscal Quarters for which a Compliance Certificate has been delivered resulted
from the operations of such Subsidiaries.
6.13 Senior Leverage Ratio. Permit the Senior Leverage Ratio as
of the last day of any Fiscal Quarter ending during a period set forth in the
matrix below, to be greater than the ratio set forth opposite that period:
Fiscal Quarters Ended Maximum Senior Leverage Ratio
--------------------- -----------------------------
Closing Date through June 30, 2001 2.65:1.00
September 30, 2001 through June 30, 2002 2.50:1.00
September 30, 2002 through March 31, 2004 2.25:1.00
June 30, 2004 and thereafter 2.00:1.00.
6.14 Total Leverage Ratio. Permit the Total Leverage Ratio as of
the last day of any Fiscal Quarter ending during a period set forth in the
matrix below, to be greater than the ratio set forth opposite that period:
Fiscal Quarters Ended Maximum Total Leverage Ratio
--------------------- ----------------------------
Closing Date through September 30, 2001 4.50:1.00
December 31, 2001 through September 30, 2003 4.25:1.00
December 31, 2003 and March 31, 2004 4.00:1.00
June 30, 2004 through December 31, 2004 3.75:1.00
March 31, 2005 and June 30, 2005 3.50:1.00
September 30, 2005 and thereafter 3.25:1.00.
6.15 Fixed Charge Coverage Ratio. Permit the Fixed Charge
Coverage Ratio, as of the last day of any Fiscal Quarter, to be less than
1.50:1.00.
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6.16 Minimum EBITDA. Permit EBITDA, for any Fiscal Quarter, to
be less than $75,000,000, provided that this requirement shall be adjusted (i)
to subtract an amount equal to the results of operations of any Person or assets
which are the subject of a Disposition involving a consideration in excess of
$5,000,000 following the Closing Date, in each case for the last period of four
consecutive Fiscal Quarters prior to the Disposition thereof, and (ii) to add an
amount equal to the results of operations of any Person or assets acquired by
the Domestic Borrower and its Subsidiaries following the Closing Date for a
consideration which is in excess of $5,000,000, in each case for the first four
Fiscal Quarter period ending following their acquisition thereof.
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Article 7
INFORMATION AND REPORTING REQUIREMENTS
7.1 Financial and Business Information. So long as any Advance
remains unpaid, or any Letter of Credit remains outstanding or any other
Obligation remains unpaid, or any portion of the Commitments remains in force,
the Domestic Borrower shall, unless the Administrative Agent (with the written
approval of the Requisite Lenders) otherwise consents, at the Domestic
Borrower's sole expense, deliver to the Administrative Agent for distribution by
it to the Lenders, a sufficient number of copies for all of the Lenders of the
following:
(a) As soon as practicable, and in any event within 45
days after the end of each Fiscal Quarter (other than the fourth Fiscal
Quarter in any Fiscal Year), the consolidated and consolidating balance
sheet of the Domestic Borrower and its Subsidiaries as at the end of
such Fiscal Quarter and the consolidated and consolidating statement of
operations for such Fiscal Quarter, and its statement of cash flows for
the portion of the Fiscal Year ended with such Fiscal Quarter, all in
reasonable detail, and with comparisons to the combined results of
operations, on a pro forma basis for the same Fiscal Quarter in the
prior year and setting forth on a combined and combining basis the
results of operations of the Bally Xxxxx division of the Domestic
Borrower. Such financial statements shall be certified by a Senior
Officer of the Domestic Borrower as fairly presenting the financial
condition, results of operations and cash flows of the Domestic Borrower
and its Subsidiaries in accordance with Generally Accepted Accounting
Principles (other than footnote disclosures), consistently applied, as
at such date and for such periods, subject only to normal year-end
accruals and audit adjustments;
(b) As soon as practicable, and in any event within
ninety days after the end of each Fiscal Year, (i) the consolidated and
consolidating balance sheet of the Domestic Borrower and its
Subsidiaries as at the end of such Fiscal Year and the consolidated and
consolidating statements of operations, shareholders' equity and cash
flows, in each case of the Domestic Borrower and its Subsidiaries for
such Fiscal Year, in each case as at the end of and for the Fiscal Year,
all in reasonable detail. Such financial statements shall be prepared in
accordance with Generally Accepted Accounting Principles, consistently
applied, and such consolidated balance sheet and consolidated statements
shall be accompanied by a report of one of the five largest public
accounting firms in the United States of America or other independent
public accountants of recognized standing selected by the Domestic
Borrower and reasonably satisfactory to the Requisite Lenders, which
report shall be prepared in accordance with generally accepted auditing
standards as at such date, and shall not be subject to any
qualifications or exceptions as to the scope of the audit nor to any
other qualification or exception determined by the Requisite Lenders in
their good faith business judgment to be adverse to the interests of the
Lenders. Such accountants' report shall be accompanied by a certificate
stating that, in making the examination pursuant to generally accepted
auditing standards necessary for the certification of such financial
statements and such report, such accountants have obtained no knowledge
of any Default under Sections 6.13 through 6.17 or, if, in the opinion
of such accountants, any such Default shall exist, stating the nature of
such Default, and stating that such accountants have reviewed the
Domestic Borrower's financial calculations as at the end of such Fiscal
Year (which shall accompany such certificate) under Sections 6.13
through 6.17, have read such Sections (including the definitions of all
defined terms used therein) and that nothing has come to the attention
of such accountants in the course
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of such examination that would cause them to believe that the same were
not calculated by the Domestic Borrower in the manner prescribed by this
Agreement;
(c) As soon as practicable, and in any event not later
than 45 days following the end of the Fiscal Quarter ending on each June
30, a completed Pricing Certificate setting forth the Total Leverage
Ratio as of the last day of the that Fiscal Quarter;
(d) As soon as practicable, and in any event within 45
days after the commencement of each Fiscal Year, a budget and projection
by Fiscal Quarter for that Fiscal Year and by Fiscal Year for the next
two succeeding Fiscal Years, including for the first such Fiscal Year,
projected consolidated balance sheets, statements of operations and
statements of cash flow and, for the second and third such Fiscal Years,
projected consolidated condensed balance sheets and statements of
operations and cash flows, of the Domestic Borrower and its
Subsidiaries, all in reasonable detail;
(e) Promptly after request by the Administrative Agent
or any Lender, copies of any detailed audit reports, management letters
or recommendations submitted to the board of directors (or the audit
committee of the board of directors) of the Domestic Borrower by
independent accountants in connection with the accounts or books of the
Domestic Borrower or any of its Subsidiaries, or any audit of any of
them;
(f) Promptly after the same are available, copies of
each annual report, proxy or financial statement or other report or
communication sent to the stockholders of the Domestic Borrower, and
copies of all annual, regular, periodic and special reports and
registration statements which the Domestic Borrower may file or be
required to file with the Securities and Exchange Commission under
Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended,
and not otherwise required to be delivered to the Lenders pursuant to
other provisions of this Section;
(g) Promptly after request by the Administrative Agent
or any Lender, copies of the Nevada "Regulation 6.090 Report" and "6-A
Report";
(h) Promptly after request by the Administrative Agent
or any Lender, copies of any other report or other document that was
filed by the Domestic Borrower or any of its Subsidiaries with any
Governmental Agency (other than routine applications and reports filed
by the Domestic Borrower and its Subsidiaries with any Gaming Board);
(i) As soon as practicable, and in any event within 10
Business Days after a Senior Officer of the Domestic Borrower becomes
aware of the occurrence of any material (i) "reportable event" (as such
term is defined in Section 4043 of ERISA) or (ii) "prohibited
transaction" (as such term is defined in Section 406 of ERISA or Section
4975 of the Code) in connection with any Pension Plan or any trust
created thereunder, telephonic notice specifying the nature thereof,
and, no more than five Business Days after such telephonic notice,
written notice again specifying the nature thereof and specifying what
action the Domestic Borrower or any of its Subsidiaries is taking or
proposes to take with respect thereto, and, when known, any action taken
by the Internal Revenue Service with respect thereto;
(j) As soon as practicable, and in any event within 2
Business Days after a Senior Officer of the Domestic Borrower becomes
aware of the existence of any condition or
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event which constitutes a Default or Event of Default, telephonic notice
specifying the nature and period of existence thereof, and, no more than
2 Business Days after such telephonic notice, written notice again
specifying the nature and period of existence thereof and specifying
what action the Borrowers or their Subsidiaries are taking or propose to
take with respect thereto;
(k) Promptly upon a Senior Officer of a Borrower
becoming aware that (i) any Person has commenced a legal proceeding with
respect to a claim against the Domestic Borrower or any of its
Subsidiaries that is $2,500,000 or more in excess of the amount thereof
that is fully covered by insurance, (ii) any creditor or lessor under a
written credit agreement or material lease has asserted a default
thereunder on the part of the Domestic Borrower or any of its
Subsidiaries, (iii) any Person has commenced a legal proceeding with
respect to a claim against the Domestic Borrower or any of its
Subsidiaries under a contract that is not a credit agreement or material
lease in excess of $2,500,000 or which otherwise may reasonably be
expected to result in a Material Adverse Effect, (iv) any labor union
has notified the Domestic Borrower of its intent to strike the Domestic
Borrower or any of its Subsidiaries on a date certain and such strike
would involve more than 100 employees of the Borrowers or their
Subsidiaries, (v) any Gaming Board has indicated its intent to consider
or act upon a License Revocation or a fine or penalty of $500,000 or
more with respect to the Domestic Borrower or any of its Subsidiaries,
or (vi) any Governmental Agency has notified the Domestic Borrower of
the commencement of any material action, suit, proceeding or
investigation against the Domestic Borrower or any of its Subsidiaries
by such Governmental Agency, including any action, suit, proceeding or
investigation relating to any Hazardous Materials Laws, a written notice
describing the pertinent facts relating thereto and what action the
Borrowers or their Subsidiaries are taking or propose to take with
respect thereto;
(l) Promptly and in any event within five Business Days
following the occurrence of any Change in Control, notice thereof, and
(m) Such other data and information as from time to time
may be reasonably requested by the Administrative Agent, any Lender
(through the Administrative Agent) or the Requisite Lenders.
7.2 Compliance Certificates. So long as any Advance remains
unpaid, or any Letter of Credit remains outstanding or any other Obligation
remains unpaid or unperformed, or any portion of the Commitments remains
outstanding, the Domestic Borrower shall, at its sole expense, deliver to the
Administrative Agent for distribution by it to the Lenders concurrently with the
financial statements required pursuant to Sections 7.1 (a) and 7.1(b),
Compliance Certificates signed by a Senior Officer of the Domestic Borrower.
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Article 8
CONDITIONS
8.1 Initial Advances on the Closing Date. The obligation of each
Lender to make the initial Advance to be made by it on the Closing Date, is
subject to the following conditions precedent, each of which shall be satisfied
prior to the making of the initial Advances (unless all of the Lenders, in their
sole and absolute discretion, shall agree otherwise):
(a) The Administrative Agent shall have received all of
the following, each of which shall be originals unless otherwise
specified, each properly executed by a Responsible Official of each
party thereto, each dated as of the Closing Date (unless otherwise
specified or unless the Administrative Agent otherwise agrees) and each
in form and substance reasonably satisfactory to the Administrative
Agent and its legal counsel:
(1) executed counterparts of this Agreement,
sufficient in number for distribution to the Administrative
Agent, the Lenders and the Domestic Borrower;
(2) a Note executed by the Domestic Borrower in
favor of each Lender, each in a principal amount equal to that
Lender's Pro Rata Share;
(3) with respect to each Borrower and each
Significant Subsidiary, such documentation as the Administrative
Agent may reasonably require to establish the due incorporation
or other organization, valid existence and good standing of the
Borrowers and the Significant Subsidiaries, their qualification
to engage in business in each material jurisdiction in which
they are engaged in business or required to be so qualified,
their authority to execute, deliver and perform any Loan
Documents to which they are a Party, the identity, authority and
capacity of each Responsible Official thereof authorized to act
on their behalf, including (if applicable) certified copies of
articles of incorporation or organization and amendments
thereto, bylaws or operating agreements and amendments thereto,
certificates of good standing and/or qualification to engage in
business, tax clearance certificates, certificates of corporate
or other organizational resolutions, incumbency certificates,
Certificates of Responsible Officials, and the like;
(4) the Swing Line Documents;
(5) the Domestic Facilities Guaranty executed by
each Domestic Significant Subsidiary other than the Excluded
Subsidiaries;
(6) the Bally Gaming Domestic Facilities
Guaranty, the Plantation Domestic Facilities Guaranty, the Bally
Gaming German Facility Guaranty and the Plantation German
Facility Guaranty;
(7) the German Facility Guaranty executed by the
Domestic Borrower and each Significant Subsidiary other than the
Excluded Subsidiaries;
(8) the German Security Documents, executed by
German Holdings, the German Borrowers and each Significant
Subsidiary thereof,
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(9) the Collateral Documents executed by the
parties thereto except that the Domestic Facilities Pledge
Agreement and the German Facility Pledge Agreement shall not
include the stock of Bally Gaming Missouri, Inc., until the
expiration of all notice periods and the obtaining of
appropriate consents under applicable Gaming Laws;
(10) the Title Policies;
(11) Stock certificates evidencing 100% of the
issued and outstanding shares of each Domestic Significant
Subsidiary, together with stock powers duly endorsed in blank,
except as contemplated by Section 5.12;
(12) evidence that each such Foreign Significant
Subsidiary has annotated its share registry or otherwise taken
action acceptable to the Administrative Agent to evidence the
Administrative Agent's security interest in the shares thereof,
(13) a certificate of insurance issued by the
Domestic Borrower's insurance carrier or agent with respect to
the insurance required to be maintained pursuant to Section 5.4;
(14) the Opinions;
(15) a Request for Loan in compliance with
Article 2 (or in the appropriate case, a Request for Letter of
Credit in compliance with Article 2);
(16) the letter agreement described in Sections
3.2 and 3.5;
(17) such assurances as the Administrative Agent
deems appropriate that the relevant Gaming Boards have approved
the transactions contemplated by the Loan Documents to the
extent that such approval is required by applicable Gaming Laws,
except as contemplated by Section 5.12;
(18) a Certificate signed by a Senior Officer of
the Domestic Borrower certifying that the conditions specified
in Sections 8.1 (d) and 8.1 (e) have been satisfied;
(19) a Certificate signed by a Senior Officer of
the Domestic Borrower certifying that the attached copy of the
Indenture governing the Existing Senior Subordinated Notes is
true, correct and complete; and
(20) such other assurances, certificates,
documents, consents or opinions as the Administrative Agent
reasonably may require.
(b) The fees payable on the Closing Date pursuant to
Sections 3.2 and 3.6 shall have been paid.
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(c) The reasonable costs and expenses of the
Administrative Agent in connection with the preparation of the Loan
Documents payable pursuant to Section 11.3, and invoiced to the Domestic
Borrower prior to the Closing Date, shall have been paid.
(d) The representations and warranties of the Domestic
Borrower contained in Article 4 shall be true and correct.
(e) the Domestic Borrower and all other Parties shall be
in compliance with all the terms and provisions of the Loan Documents,
and giving effect to the initial Advance, no Default or Event of Default
shall have occurred and be continuing.
(f) the Refinanced Leases shall be concurrently
terminated, the Obligations of the Domestic Borrower and its
Subsidiaries thereunder repaid in full, and all Liens securing the same
shall be concurrently released.
8.2 Any Increasing Advance. The obligation of each Lender to
make any Advance which results in an increase in the aggregate outstanding
principal amount of the Obligations, and the obligation of the Issuing Lender to
issue a Letter of Credit, is subject to the following conditions precedent
(unless the Requisite Lenders, in their sole and absolute discretion, shall
agree otherwise):
(a) except (i) for representations and warranties which
expressly speak as of a particular date or are no longer true and
correct as a result of a change which is permitted by this Agreement or
(ii) as disclosed by the Domestic Borrower and approved in writing by
the Requisite Lenders, the representations and warranties contained in
Article 4 other than Sections 4.4(a), 4.6 (first sentence), 4.11, and
4.18) shall be true and correct on and as of the date of the Advance as
though made on that date;
(b) other than matters described in Schedule 4.11 or not
required as of the Closing Date to be therein described, there shall not
be then pending or threatened any action, suit, proceeding or
investigation against or affecting the Domestic Borrower or any of its
Subsidiaries or any Property of any of them before any Governmental
Agency that constitutes a Material Adverse Effect;
(c) the Administrative Agent shall have timely received
a Request for Loan in compliance with Article 2 (or telephonic or other
request for Loan referred to in the second sentence of Section 2.1(d),
if applicable) or the Issuing Lender shall have received a Request for
Letter of Credit, as the case may be, in compliance with Article 2; and
(d) the Administrative Agent shall have received, in
form and substance satisfactory to the Administrative Agent, such other
assurances, certificates, documents or consents related to the foregoing
as the Administrative Agent or Requisite Lenders reasonably may require.
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Article 9
EVENTS OF DEFAULT AND REMEDIES UPON EVENT OF DEFAULT
9.1 Events of Default. The existence or occurrence of any one or
more of the following events, whatever the reason therefor and under any
circumstances whatsoever, shall constitute an Event of Default:
(a) any Borrower fails to pay any principal on any of
the Notes, or any portion thereof, on the date when due; or
(b) any Borrower fails to pay any interest on any of the
Notes, or any fees under Article 3, or any portion thereof, within 2
Business Days after the date when due; or fails to pay any other fee or
amount payable to the Lenders under any Loan Document, or any portion
thereof, within five Business Days after demand therefor; or
(c) any Borrower fails to comply with any of the
covenants contained in Article 6, other than the covenants contained in
Sections 6.6, 6.7, or 6.10; or
(d) any Borrower fails to comply with Section 7.10) in
any respect that is materially adverse to the interests of the Lenders;
or
(e) any Borrower, any of their Subsidiaries or any other
Party fails to perform or observe any other covenant or agreement (not
specified in clause (a), (b), (c), or (d) above) contained in any Loan
Document on its part to be performed or observed within 25 Business Days
after the giving of notice by the Administrative Agent on behalf of the
Requisite Lenders of such Default; or
(f) Any representation or warranty of the Borrowers or
any of their Subsidiaries or any other Party made in any Loan Document,
or in any certificate or other writing delivered by any Borrower or such
Subsidiary or Party pursuant to any Loan Document, proves to have been
incorrect when made or reaffirmed; or
(g) any Borrower or any of their Subsidiaries (i) fails
to pay the principal, or any principal installment, of any present or
future Indebtedness of $5,000,000 or more, or any guaranty of present or
future Indebtedness of $5,000,000 or more, on its part to be paid, when
due (or within any stated grace period), whether at the stated maturity,
upon acceleration, by reason of required prepayment or otherwise or (ii)
fails to perform or observe any other term, covenant or agreement on its
part to be performed or observed, or suffers any event of default to
occur, in connection with any present or future Indebtedness of
$5,000,000 or more, or of any guaranty of present or future Indebtedness
of $5,000,000 or more, if as a result of such failure or sufferance any
holder or holders thereof (or an agent or trustee on its or their
behalf) has the right to declare such Indebtedness due before the date
on which it otherwise would become due or the right to require the
Domestic Borrower or any of its Subsidiaries to redeem or purchase, or
offer to redeem or purchase, all or any portion of such Indebtedness; or
(h) Any event occurs which gives the holder or holders
of any Subordinated Obligation (or an agent or trustee on its or their
behalf) the right to declare such Subordinated Obligation due before the
date on which it otherwise would become due, or the
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right to require the issuer thereof to redeem or purchase, or offer to
redeem or purchase, all or any portion of any Subordinated Obligation;
or the trustee for, or any holder of, a Subordinated Obligation breaches
any subordination provision applicable to such Subordinated Obligation;
or
(i) Any Loan Document, at any time after its execution
and delivery and for any reason other than the agreement or action (or
omission to act) of the Administrative Agent or any of the Lenders or
satisfaction in full of all the Obligations ceases to be in full force
and effect or is declared by a court of competent jurisdiction to be
null and void, invalid or unenforceable in any respect which, in any
such event in the reasonable opinion of the Requisite Lenders, is
materially adverse to the interests of the Lenders; or any Party thereto
denies in writing that it has any or further liability or obligation
under any Loan Document, or purports to revoke, terminate or rescind
same; or
(j) A final judgment against any Borrower or any of
their Subsidiaries is entered for the payment of money in excess of
$2,500,000 and, absent procurement of a stay of execution, such judgment
remains unsatisfied for 30 days after the date of entry of judgment, or
in any event later than five days prior to the date of any proposed sale
thereunder; or any writ or warrant of attachment or execution or similar
process is issued or levied against all or any material part of the
Property of any such Person and is not released, vacated or fully bonded
within 30 days after its issue or levy; or
(k) any Borrower or any of their Subsidiaries institutes
or consents to the institution of any proceeding under a Debtor Relief
Law relating to it or to all or any material part of its Property, or is
unable or admits in writing its inability to pay its debts as they
mature, or makes an assignment for the benefit of creditors; or applies
for or consents to the appointment of any receiver, trustee, custodian,
conservator, liquidator, rehabilitator or similar officer for it or for
all or any material part of its Property; or any receiver, trustee,
custodian, conservator, liquidator, rehabilitator or similar officer is
appointed without the application or consent of that Person and the
appointment continues undischarged or unstayed for ninety days; or any
proceeding under a Debtor Relief Law relating to any such Person or to
all or any part of its Property is instituted without the consent of
that Person and continues undismissed or unstayed for ninety days; or
(l) The occurrence of an Event of Default (as such term
is or may hereafter be specifically defined in any other Loan Document)
under any other Loan Document; or
(m) A final judgment is entered by a court of competent
jurisdiction that any Subordinated Obligation is not subordinated in
accordance with its terms to the Obligations; or
(n) Any Pension Plan maintained by a Borrower or any of
its Subsidiaries is determined to have a material "accumulated funding
deficiency" as that term is defined in Section 302 of ERISA and the
result is a Material Adverse Effect or the Domestic Borrower or any of
its ERISA Affiliates incurs any withdrawal liability in respect of any
Multiemployer Plan which is in an amount in excess of $5,000,000 which
withdrawal liability is not paid or otherwise satisfied within 30 days;
or
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(o) The occurrence of a License Revocation affecting the
main operating licenses of any of United Coin Machine Co., Plantation
Investments, Inc. (d/b/a Rail City Casino), Rainbow Casino Vicksburg
Partnership LP (d/b/a Rainbow Casino), or (to the extent any such
licenses exist) the German Borrowers, that continues for three
consecutive days; or
(p) a Change in Control occurs.
9.2 Remedies Upon Event of Default. Without limiting any other
rights or remedies of the Creditors provided for elsewhere in this Agreement, or
the other Loan Documents, or by applicable Law, or in equity, or otherwise:
(a) Upon the occurrence and during the continuance of
any Event of Default other than an Event of Default described in Section
9.1 (k) with respect to any Borrower or any Significant Subsidiary:
(1) the Commitments to make Advances, the
obligation of the Issuing Lender to issue Letters of Credit, the
obligation of the Swing Line Lender to make Swing Line Loans and
all other obligations of the Creditors and all rights of the
Borrowers and any other Parties under the Loan Documents shall
be suspended without notice to or demand upon the Borrowers
which are expressly waived by the Borrowers, except that all of
the Requisite Lenders (or, if required by Section 11.2, another
group of the Lenders) may waive an Event of Default or, without
waiving, determine, upon terms and conditions satisfactory to
the Lenders or Requisite Lenders, as the case may be, to
reinstate the Commitments and such other obligations and rights
and make Advances, and cause the Issuing Lender to issue further
Letters of Credit which waiver or determination shall apply
equally to, and shall be binding upon, all the Lenders;
(2) the Issuing Lender may, with the approval of
the Administrative Agent on behalf of the Requisite Lenders,
demand immediate payment by the Borrowers of an amount equal to
the aggregate amount of all outstanding Letters of Credit to be
held by the Issuing Lender in an interest-bearing cash
collateral account as collateral hereunder; and
(3) the Requisite Lenders may request the
Administrative Agent to, and the Administrative Agent thereupon
shall, terminate the Commitments and/or declare all or any part
of the unpaid principal of all Notes, all interest accrued and
unpaid thereon and all other amounts payable under the Loan
Documents to be forthwith due and payable, whereupon the same
shall become and be forthwith due and payable, without protest,
presentment, notice of dishonor, demand or further notice of any
kind, all of which are expressly waived by the Borrowers.
(b) Upon the occurrence and during the continuance of
any Event of Default described in Section 9.1 (k) with respect to any
Borrower or any of their Significant Subsidiaries:
(1) the Commitments to make Advances, the
obligation of the Issuing Lender to issue Letters of Credit, the
obligation of the Swing Line Lender to make Swing Line Loans and
all other obligations of the Creditors and all rights of the
Borrower and any other Parties under the Loan Documents shall
terminate without
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notice to or demand upon the Borrowers, which are expressly
waived by the Borrowers, except that all of the Lenders may
waive the Event of Default or, without waiving, determine, upon
terms and conditions satisfactory to all the Lenders, to
reinstate the Commitments and such other obligations and rights
and make further Advances and to cause the Issuing Lender to
issue further Letters of Credit, which determination shall apply
equally to, and shall be binding upon, all the Lenders;
(2) an amount equal to the aggregate amount of
all outstanding Letters of Credit shall be immediately due and
payable to the Issuing Lender without notice to or demand upon
the Borrowers, which are expressly waived by the Borrowers, to
be held by the Issuing Lender in an interest-bearing cash
collateral account as collateral hereunder; and
(3) the unpaid principal of all Notes, all
interest accrued and unpaid thereon and all other amounts
payable under the Loan Documents shall be forthwith due and
payable, without protest, presentment, notice of dishonor,
demand or further notice of any kind, all of which are expressly
waived by the Borrowers.
(c) Upon the occurrence, and during the continuance, of
any Event of Default, the Creditors, or any of them, without notice to
except as expressly provided for in any Loan Document) or demand upon
the Borrowers, which are expressly waived by the Borrowers (except as
to notices expressly provided for in any Loan Document), may proceed
(but only with the consent of the Requisite Lenders) to protect,
exercise and enforce their rights and remedies under the Loan Documents
against the Borrowers and any other Party and such other rights and
remedies as are provided by Law or equity.
(d) The order and manner in which the Creditors' rights
and remedies are to be exercised shall be determined by the Requisite
Lenders in their sole discretion, and all payments received by the
Creditors, or any of them, shall be applied first to the costs and
expenses (including reasonable attorneys' fees and disbursements and the
reasonably allocated costs of attorneys employed by any of the
Creditors) of the Creditors, and thereafter paid pro rata to the Lenders
in the same proportions that the aggregate Obligations owed to each
Lender under the Loan Documents bear to the aggregate Obligations owed
under the Loan Documents to all the Lenders, without priority or
preference among the Lenders. Regardless of how each Lender may treat
payments for the purpose of its own accounting, for the purpose of
computing the Obligations hereunder and under the Notes, payments shall
be applied first, to the costs and expenses of the Creditors, as set
forth above, second, to the payment of accrued and unpaid interest due
under any Loan Documents to and including the date of such application
(ratably, and without duplication, according to the accrued and unpaid
interest due under each of the Loan Documents), and third, to the
payment of all other amounts (including principal and fees) then owing
to the Creditors under the Loan Documents. No application of payments
will cure any Event of Default, or prevent acceleration, or continued
acceleration, of amounts payable under the Loan Documents, or prevent
the exercise, or continued exercise, of rights or remedies of the
Lenders hereunder or thereunder or at Law or in equity.
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Article 10
THE ADMINISTRATIVE AGENT
10.1 Appointment and Authorization. Subject to Section 10.8,
each Lender hereby irrevocably appoints and authorizes the Administrative Agent
to take such action as agent on its behalf and to exercise such powers under the
Loan Documents as are delegated to the Administrative Agent by the terms thereof
or are reasonably incidental, as determined by the Administrative Agent,
thereto, including, without limitation, complying with Gaming Laws. This
appointment and authorization is intended solely for the purpose of facilitating
the servicing of the Loans and does not constitute appointment of the
Administrative Agent as trustee for any Lender or as representative of any
Lender for any other purpose and, except as specifically set forth in the Loan
Documents to the contrary, the Administrative Agent shall take such action and
exercise such powers only in an administrative and ministerial capacity.
10.2 Administrative Agent and Affiliates. Bank of America (and
each successor Administrative Agent) has the same rights and powers under the
Loan Documents as any other Lender and may exercise the same as though it were
not the Administrative Agent, and the term "Lender" or "Lenders" includes Bank
of America in its individual capacity. Bank of America (and each successor
Administrative Agent) and its Affiliates may accept deposits from, lend money to
and generally engage in any kind of banking, trust or other business with the
Borrowers, any Subsidiary thereof, or any Affiliate of the Borrowers, as if it
were not the Administrative Agent and without any duty to account therefor to
the Lenders. Bank of America (and each successor Administrative Agent) need not
account to any other Lender for any monies received by it for reimbursement of
its costs and expenses as Administrative Agent hereunder, or for any monies
received by it in its capacity as a Lender hereunder. The Administrative Agent
shall not be deemed to hold a fiduciary or other special relationship with any
Lender and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or otherwise exist
against the Administrative Agent.
10.3 Proportionate Interest in any Collateral. The
Administrative Agent, on behalf of all the Lenders, shall hold in accordance
with the Loan Documents all items of any collateral or interests therein
received or held by the Administrative Agent. Subject to the Administrative
Agent's and the Lenders' rights to reimbursement for their costs and expenses
hereunder (including reasonable attorneys' fees and disbursements and other
professional services and the reasonably allocated costs of attorneys employed
by the Administrative Agent or a Lender) and subject to the application of
payments in accordance with Section 9.2(d), each Lender shall have an interest
in the Lenders' interest in any collateral or interests therein in the same
proportions that the aggregate Obligations owed such Lender under the Loan
Documents bear to the aggregate Obligations owed under the Loan Documents to all
the Lenders, without priority or preference among the Lenders, except that
Obligations owed to any Lender under a Swap Agreement shall be secured on a pari
passu basis with all other Obligations up to an amount equal to the
Administrative Agent's then customary credit risk factor for Swap Agreements
times the notional amount of Indebtedness covered by such Swap Agreement and
shall be secured on a subordinate basis as to amounts in excess of such amount.
10.4 Lenders' Credit Decisions. Each Lender agrees that it has,
independently and without reliance upon the Administrative Agent, any other
Creditor or the directors, officers, agents, employees or attorneys thereof, and
instead in reliance upon information supplied to it by or on behalf of the
Borrowers and their Subsidiaries and upon such other information as it has
deemed appropriate, made its own independent credit analysis and decision to
enter into this Agreement. Each Lender also
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agrees that it shall, independently and without reliance upon the Administrative
Agent, any other Creditor or the directors, officers, agents, employees or
attorneys thereof, continue to make its own independent credit analyses and
decisions in acting or not acting under the Loan Documents.
10.5 Action by Administrative Agent.
(a) Absent actual knowledge of the Administrative Agent
of the existence of a Default, the Administrative Agent may assume that
no Default has occurred and is continuing, unless the Administrative
Agent has received notice from the Borrowers stating the nature of the
Default or has received notice from a Lender stating the nature of the
Default and that such Lender considers the Default to have occurred and
to be continuing.
(b) The Administrative Agent has only those obligations
under the Loan Documents as are expressly set forth therein.
(c) Except for any obligation expressly set forth in the
Loan Documents and as long as the Administrative Agent may assume that
no Event of Default has occurred and is continuing, the Administrative
Agent may, but shall not be required to, exercise its discretion to act
or not act, except that the Administrative Agent shall be required to
act or not act upon the instructions of the Requisite Lenders (or, if
required by Section 11.2, another group of the Lenders) and those
instructions shall be binding upon the Administrative Agent and all the
Lenders, provided that the Administrative Agent shall not be required to
act or not act if to do so would be contrary to any Loan Document or to
applicable Law or could result, in the judgment of the Administrative
Agent, in a material risk of liability to the Administrative Agent.
(d) If the Administrative Agent has received a notice
specified in clause (a), the Administrative Agent shall immediately give
notice thereof to the Lenders and shall act or not act upon the
instructions of the Requisite Lenders (or, if required by Section 11.2,
another group of the Lenders), provided that the Administrative Agent
shall not be required to act or not act if to do so would be contrary to
any Loan Document or to applicable Law or could result, in the judgment
of the Administrative Agent, in a material risk of liability to the
Administrative Agent, and except that if the Requisite Lenders (or, if
required by Section 11.2, another group of the Lenders) fail, for five
Business Days after the receipt of notice from the Administrative Agent,
to instruct the Administrative Agent, then the Administrative Agent, in
its sole discretion, may act or not act as it deems advisable for the
protection of the interests of the Lenders.
(e) The Administrative Agent shall have no liability to
any Lender for acting, or not acting, as instructed by the Requisite
Lenders (or, if required by Section 11.2, another group of the Lenders),
notwithstanding any other provision hereof.
(f) The Administrative Agent is authorized on behalf of
all the Lenders, without the necessity of any notice to or further
consent from the Lenders, from time to time to take any action with
respect to any Collateral or the Collateral Documents which may be
necessary to perfect and maintain perfected the security interest in and
Liens upon the Collateral granted pursuant to the Collateral Documents.
(g) The Lenders irrevocably authorize the Administrative
Agent, at its option and in its discretion, to release any Lien granted
to or held by the Administrative Agent
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upon any Collateral (i) upon termination of the Commitments and payment
in full of all Loans and all other Obligations payable under this
Agreement and under any other Loan Document; (ii) constituting Property
sold or to be sold or disposed of as part of or in connection with any
disposition permitted hereunder; (iii) constituting Property in which
the Borrowers or any of their Subsidiaries owned no interest at the time
the Lien was granted or at any time thereafter; (iv) constituting
Property leased to the Borrowers or any of their Subsidiaries under a
lease which has expired or been terminated in a transaction permitted
under this Agreement or is about to expire and which has not been, and
is not intended by the Borrowers or such Subsidiary to be, renewed or
extended; (v) consisting of an instrument evidencing Indebtedness or
other debt instrument, if the Indebtedness evidenced thereby has been
paid in full; or (vi) if approved, authorized or ratified in writing by
the Requisite Lenders (or, if required by Section 11.2, another group of
the Lenders). Upon request by the Administrative Agent at any time, the
Lenders will confirm in writing the Administrative Agent's authority to
release particular types or items of Collateral pursuant to this Section
10.5(g).
(h) Each Lender agrees with and in favor of each other
(which agreement shall not be for the benefit of the Borrowers or any of
their Subsidiaries) that the Obligations are not and shall not be
secured by any real property collateral now or hereafter acquired by
such Lender unless all of the Lenders otherwise agree.
10.6 Liability of Administrative Agent. Neither the
Administrative Agent nor any of its directors, officers, agents, employees or
attorneys shall be liable for any action taken or not taken by them under or in
connection with the Loan Documents, except for their own gross negligence or
willful misconduct. Without limitation on the foregoing, the Administrative
Agent and its directors, officers, agents, employees and attorneys:
(a) May treat the payee of any Note as the holder
thereof until the Administrative Agent receives notice of the assignment
or transfer thereof, in form satisfactory to the Administrative Agent,
signed by the payee, and may treat each Lender as the owner of that
Lender's interest in the Obligations for all purposes of this Agreement
until the Administrative Agent receives notice of the assignment or
transfer thereof, in form satisfactory to the Administrative Agent,
signed by that Lender;
(b) May consult with legal counsel (including in-house
legal counsel), accountants (including in-house accountants) and other
professionals or experts selected by it, or with legal counsel,
accountants or other professionals or experts for the Borrowers and
their Subsidiaries or the Lenders, and shall not be liable for any
action taken or not taken by it in good faith in accordance with any
advice of such legal counsel, accountants or other professionals or
experts;
(c) Shall not be responsible to any Lender for any
statement, warranty or representation made in any of the Loan Documents
or in any notice, certificate, report, request or other statement
(written or oral) given or made in connection with any of the Loan
Documents;
(d) Shall have no duty to ask or inquire as to the
performance or observance by the Borrowers or theirs Subsidiaries of any
of the terms, conditions or covenants of any of the Loan Documents or to
inspect any collateral or the Property, books or records of the
Borrowers or their Subsidiaries;
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(e) Will not be responsible to any Lender for the due
execution, legality, validity, enforceability, genuineness,
effectiveness, sufficiency or value of any Loan Document, any other
instrument or writing furnished pursuant thereto or in connection
therewith, or any collateral;
(f) Will not incur any liability by acting or not acting
in reliance upon any Loan Document, notice, consent, certificate,
statement, request or other instrument or writing believed in good faith
by it to be genuine and signed or sent by the proper party or parties;
and
(g) Will not incur any liability for any arithmetical
error in computing any amount paid or payable by the Borrowers or any
Subsidiary or Affiliate thereof or paid or payable to or received or
receivable from any Lender under any Loan Document, including,
principal, interest, commitment fees, Advances and other amounts;
provided that, promptly upon discovery of such an error in computation,
the Administrative Agent, the Lenders and (to the extent applicable) the
Borrowers and/or their Subsidiaries or Affiliates shall make such
adjustments as are necessary to correct such error and to restore the
parties to the position that they would have occupied had the error not
occurred.
10.7 Indemnification. Each Lender shall, ratably in accordance
with its Pro Rata Share (if the Commitments are then in effect) or in accordance
with its portion of the aggregate Indebtedness then evidenced by the Notes,
including its risk participation in any Swing Line Obligations, Letters of
Credit or German Commitment Loans (if the Commitments have then been
terminated), indemnify and hold the Administrative Agent and its directors,
officers, agents, employees and attorneys harmless against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever (including,
without limitation, attorneys' fees and disbursements and allocated costs of
attorneys employed by the Administrative Agent) that may be imposed on, incurred
by or asserted against it or them in such capacity in any way relating to or
arising out of the Loan Documents (other than losses incurred by reason of the
failure of the Borrowers to pay the Indebtedness represented by the Notes) or
any action taken or not taken by it as Administrative Agent thereunder, except
such as result from its own gross negligence or willful misconduct. Without
limitation on the foregoing, each Lender shall reimburse the Administrative
Agent upon demand for that Lender's Pro Rata Share of any out-of-pocket cost or
expense incurred by the Administrative Agent in connection with the negotiation,
preparation, execution, delivery, amendment, waiver, restructuring,
reorganization (including a bankruptcy reorganization), enforcement or attempted
enforcement of the Loan Documents, to the extent that the Borrowers or any other
Party is required by Section 11.3 to pay that cost or expense but fails to do so
upon demand. Nothing in this Section shall entitle the Administrative Agent to
recover any amount from the Lenders if and to the extent that such amount has
theretofore been recovered from the Borrowers or any other Party. To the extent
that the Administrative Agent is later reimbursed such cost or expense by the
Borrowers or any other Party, it shall return the amounts paid to it by the
Lenders in respect of such cost or expense. Without limiting the generality of
the foregoing, if the Internal Revenue Service or any other Governmental Agency
of the United States, the Federal Republic of Germany or other jurisdiction
asserts a claim that the Administrative Agent did not properly withhold tax from
amounts paid to or for the account of any Lender (because the appropriate form
was not delivered, was not properly executed, or because such Lender failed to
notify the Administrative Agent of a change in circumstances which rendered the
exemption from, or reduction of, withholding tax ineffective, or for any other
reason) such Lender shall indemnify the Administrative Agent fully for all
amounts paid, directly or indirectly, by the Administrative Agent as tax or
otherwise, including penalties and interest, and including any taxes
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imposed by any jurisdiction on the amounts payable to the Administrative Agent
under this Section, together with all costs and expenses (including attorneys
fees and expenses and the allocated fees and expenses of any internal counsel to
the Administrative Agent).
10.8 Successor Administrative Agent. The Administrative Agent
may, and at the request of the Requisite Lenders shall, resign as Administrative
Agent upon 30 days' notice to the Lenders and the Borrowers. If the
Administrative Agent shall resign as Administrative Agent under this Agreement,
the Requisite Lenders shall appoint from among the Lenders a successor
Administrative Agent for the Lenders, which successor Administrative Agent shall
be approved by the Borrowers (and such approval shall not be unreasonably
withheld or delayed). If no successor Administrative Agent is appointed prior to
the effective date of the resignation of the Administrative Agent, the
Administrative Agent may appoint a successor Administrative Agent from among the
Lenders. Upon the acceptance of its appointment as successor Administrative
Agent hereunder, such successor Administrative Agent shall succeed to all the
rights, powers and duties of the retiring Administrative Agent and the term
"Administrative Agent" shall mean such successor Administrative Agent and the
retiring Administrative Agent's appointment, powers and duties as Administrative
Agent shall be terminated. After any retiring Administrative Agent's resignation
hereunder as Administrative Agent, the provisions of this Article 10, and
Sections 11.3, 11.11 and 11.22, shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Administrative Agent under this
Agreement. If (a) the Administrative Agent has not been paid its agency fees
under Section 3.5 or has not been reimbursed for any expense reimbursable to it
under Section 11.3, in either case for a period of at least one year and (b) no
successor Administrative Agent has accepted appointment as Administrative Agent
by the date which is 30 days following a retiring Administrative Agent's notice
of resignation, the retiring Administrative Agent's resignation shall
nevertheless thereupon become effective and the Lenders shall perform all of the
duties of the Administrative Agent hereunder until such time, if any, as the
Requisite Lenders appoint a successor Administrative Agent as provided for
above.
10.9 German Commitment. In order to facilitate the making of
Loans under the German Commitment, the Administrative Agent and each Lender
hereby designate Bank of America, Frankfurt as their representative and agent
for the making of such Loans, and each Lender having a Pro Rata Share of the
Revolving Commitment severally agrees to participate in each such Loan in
accordance with the terms of Section 2.12. Bank of America, Frankfurt's
appointment is intended to be administrative and ministerial in nature, and (in
its capacity as lender under the German Commitment), Bank of America, Frankfurt
shall be treated as the agent and representative of the Administrative Agent and
shall be entitled to the indemnifications and other protections afforded hereby
to the Administrative Agent, mutatis mutandis.
10.10 No Obligations of Borrowers. Nothing contained in this
Article 10 shall be deemed to impose upon the Borrowers any obligation in
respect of the due and punctual performance by the Administrative Agent of its
obligations to the Lenders under any provision of this Agreement, and the
Borrowers shall have no liability to the Administrative Agent or any of the
Lenders in respect of any failure by the Administrative Agent or any Lender to
perform any of its obligations to the Creditors under this Agreement.
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Article 11
MISCELLANEOUS
11.1 Cumulative Remedies; No Waiver. The rights, powers,
privileges and remedies of the Creditors provided herein or in any Note or other
Loan Document are cumulative and not exclusive of any right, power, privilege or
remedy provided by Law or equity. No failure or delay on the part of the
Administrative Agent or any Lender in exercising any right, power, privilege or
remedy may be, or may be deemed to be, a waiver thereof, nor may any single or
partial exercise of any right, power, privilege or remedy preclude any other or
further exercise of the same or any other right, power, privilege or remedy. The
terms and conditions of Article 8 hereof are inserted for the sole benefit of
the Creditors; the same may be waived in whole or in part, with or without terms
or conditions, in respect of any Loan or Letter of Credit without prejudicing
the Administrative Agent's or the Lenders' rights to assert them in whole or in
part in respect of any other Loan.
11.2 Amendments; Consents.
(a) No amendment, modification, supplement, extension,
termination (except as permitted by Section 2.6) or waiver of any
provision of this Agreement or any other Loan Document, no approval or
consent thereunder, and no consent to any departure by the Borrowers or
any other Party therefrom, may in any event be effective unless in
writing signed by the Administrative Agent with the written approval of
Requisite Lenders under each of the Domestic Commitments (and, in the
case of any amendment, modification or supplement of or to any Loan
Document to which any of the Borrowers or any of their Subsidiaries is a
Party, signed by each such Party, and, in the case of any amendment,
modification or supplement to Article 10, signed by the Administrative
Agent), and then only in the specific instance and for the specific
purpose given.
(b) Notwithstanding any other provision of this Section,
no amendment, modification, supplement, termination, waiver or consent
may be effective to:
(i) extend the Term Maturity Date or the date of
upon which any amortization of the Term Loans is scheduled to
occur pursuant to Section 3.1(d) without the written consent of
each of the Lenders having Pro Rata Shares of that Term Loan;
(ii) extend the Revolver Maturity Date or the
date upon which any reduction to the Revolving Commitment or the
German Commitment is scheduled to occur pursuant to Section
3.1(d) without the written consent of each of the Lenders having
Pro Rata Shares of the Revolving Commitment;
(iii) increase the Pro Rata Share of a Lender in
any Commitment without the written consent of that Lender;
(iv) without the written consent of each
affected Lender, postpone the date upon which any other payment
of money is due to such Lender, or reduce the rate of interest
or the amount of any commitment fee payable to that Lender, or
any other fee or amount payable to that Lender under the Loan
Documents or to waive an
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Event of Default consisting of the failure of any Borrower to pay when
due principal, interest or any commitment fee;
(v) release from the Guaranties any Subsidiaries having
aggregate total assets in excess of $1,000,000 except to the extent that
such Subsidiaries are the subject of any Disposition permitted hereby,
or to release any assets from the Liens of the Collateral Documents
having a value in excess of $1,000,000 (other than in accordance with
the terms of the Loan Documents), without the written consent of all
Lenders;
(vi) amend or waive Article 8, Section 6.4 or this
Section without the written consent of all Lenders;
(vii) amend any provision of this Agreement that
expressly requires the consent or approval of all the Lenders, all of
the Lenders having Pro Rata Shares of the Revolving Commitment, or all
of the Lenders having Pro Rata Shares of the Term Commitment without the
written consent of all Lenders;
(viii) amend the definition of Requisite Lenders,
without the written consent of all Lenders; or
(ix) waive or amend Section 2.7(a), while the
Commitments are in effect, without the consent of Lenders holding 51% or
more of the Pro Rata Shares of the Revolving Commitment and Lenders
holding 51% or more of the Pro Rata Shares of the Term Commitment.
Any amendment, modification, supplement, termination, waiver or consent pursuant
to this Section shall apply equally to, and shall be binding upon, all the
Lenders and the Administrative Agent.
11.3 Costs, Expenses and Taxes. The Borrowers shall pay, within
five Business Days after demand, accompanied by an invoice therefor, the
reasonable costs and expenses of the Administrative Agent and the Lead Arranger
in connection with the negotiation, preparation, syndication, administration,
execution and delivery of the Loan Documents and any amendment thereto or waiver
thereof. The Borrowers shall also pay on demand, accompanied by an invoice
therefor, the reasonable costs and expenses of the Creditors after any Event of
Default in connection with the amendment, restructuring, reorganization
(including a bankruptcy reorganization) and enforcement or attempted enforcement
of the Loan Documents, and any matter related thereto. The foregoing costs and
expenses shall include filing fees, recording fees, title insurance fees,
appraisal fees, search fees, and other out-of-pocket expenses and the reasonable
fees and out-of-pocket expenses of any legal counsel (including reasonably
allocated costs of legal counsel employed by the Administrative Agent, the Lead
Arranger or any Lender), independent public accountants and other outside
experts retained by the Administrative Agent, the Lead Arranger or any Lender,
whether or not such costs and expenses are incurred or suffered by the
Administrative Agent, the Lead Arranger or any Lender in connection with or
during the course of any bankruptcy or insolvency proceedings of the Domestic
Borrower, the German Borrowers, or any Subsidiary thereof. Such costs and
expenses shall also include, in the case of any amendment or waiver of any Loan
Document, the administrative costs of the Administrative Agent reasonably
attributable thereto. The Borrowers shall pay any and all documentary and other
taxes, excluding (i) taxes imposed on or measured in whole or in part by overall
net income, gross income or gross receipts and franchise taxes imposed on any
Lender by (A) any jurisdiction (or political
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subdivision thereof) in which it is organized or maintains its principal office
or Eurocurrency Lending Office or (B) any jurisdiction (or political subdivision
thereof) in which it is "doing business", (ii) any withholding taxes or other
taxes based on gross income imposed by the United States of America that are not
attributable to any change in any Law or the interpretation or administration of
any Law by any Governmental Agency and (iii) any withholding tax or other taxes
based on gross income imposed by the United States of America for any period
with respect to which it has failed to provide the Domestic Borrower with the
appropriate form or forms required by Section 11.21, to the extent such forms
are then required by applicable Laws, and all costs, expenses, fees and charges
payable or determined to be payable in connection with the filing or recording
of this Agreement, any other Loan Document or any other instrument or writing to
be delivered hereunder or thereunder, or in connection with any transaction
pursuant hereto or thereto, and shall reimburse, hold harmless and indemnify on
the terms set forth in 11.11 the Creditors from and against any and all loss,
liability or legal or other expense with respect to or resulting from any delay
in paying or failure to pay any such tax, cost, expense, fee or charge or that
any of them may suffer or incur by reason of the failure of any Party to perform
any of its Obligations. Any amount payable to the Administrative Agent or any
Lender under this Section shall bear interest from the second Business Day
following the date of demand for payment at the Default Rate.
11.4 Nature of Lenders' Obligations. The obligations of the
Lenders hereunder are several and not joint or joint and several. Nothing
contained in this Agreement or any other Loan Document and no action taken by
the Creditors or any of them pursuant hereto or thereto may, or may be deemed
to, make the Lenders a partnership, an association, a joint venture or other
entity, either among themselves or with the Borrowers or any Affiliate of the
Borrowers. Each Lender's obligation to make any Advance pursuant hereto is
several and not joint or joint and several, and in the case of the initial
Advance only is conditioned upon the performance by all other Lenders of their
obligations to make initial Advances. A default by any Lender will not increase
the Pro Rata Share of the Commitments of any other Lender. Any Lender not in
default may, if it desires, assume in such proportion as the nondefaulting
Lenders agree the obligations of any Lender in default, but is not obligated to
do so.
11.5 Survival of Representations and Warranties. All
representations and warranties contained herein or in any other Loan Document,
or in any certificate or other writing delivered by or on behalf of any one or
more of the Parties to any Loan Document, will survive the making of the Loans
hereunder and the execution and delivery of the Notes, and have been or will be
relied upon by the Administrative Agent and each Lender, notwithstanding any
investigation made by the Administrative Agent or any Lender or on their behalf.
11.6 Notices. Except as otherwise expressly provided in the Loan
Documents, all notices, requests, demands, directions and other communications
provided for hereunder or under any other Loan Document must be in writing and
must be mailed, telecopied, dispatched by commercial courier or delivered to the
appropriate party at the address set forth on the signature pages of this
Agreement or other applicable Loan Document or, as to any party to any Loan
Document, at any other address as may be designated by it in a written notice
sent to all other parties to such Loan Document in accordance with this Section.
Except as otherwise expressly provided in any Loan Document, if any notice,
request, demand, direction or other communication required or permitted by any
Loan Document is given by mail it will be effective on the earlier of receipt or
the fourth Business Day after deposit in the United States mail with first class
or airmail postage prepaid; if given by telecopier, when sent; if dispatched by
commercial courier, on the scheduled delivery date; or if given by personal
delivery, when delivered.
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11.7 Execution of Loan Documents. Unless the Administrative
Agent otherwise specifies with respect to any Loan Document, (a) this Agreement
and any other Loan Document may be executed in any number of counterparts and
any party hereto or thereto may execute any counterpart, each of which when
executed and delivered will be deemed to be an original and all of which
counterparts of this Agreement or any other Loan Document, as the case may be,
when taken together will be deemed to be but one and the same instrument and (b)
execution of any such counterpart may be evidenced by a telecopier transmission
of the signature of such party followed by prompt transmission of an original
signature. The execution of this Agreement or any other Loan Document by any
party hereto or thereto will not become effective until counterparts hereof or
thereof, as the case may be, have been executed by all the parties hereto or
thereto.
11.8 Binding Effect; Assignment.
(a) This Agreement and the other Loan Documents will be
binding upon and inure to the benefit of the Borrowers, the Creditors,
and their respective successors and assigns, except that the Borrowers
may not assign their rights hereunder or thereunder or any interest
herein or therein without the prior written consent of all the Lenders.
Each Lender represents that it is not acquiring its Note with a view to
the distribution thereof within the meaning of the Securities Act of
1933, as amended (subject to any requirement that disposition of such
Note must be within the control of such Lender). Any Lender may at any
time pledge or grant a security interest in its Notes or any other
instrument evidencing its rights as a Lender under this Agreement to a
Federal Reserve Bank or a trustee of such Lender for the benefit of such
Lender's creditors, but no such pledge or grant of a security interest
shall release that Lender from its obligations hereunder or grant to
such Federal Reserve Bank or trustee the rights of a Lender hereunder
absent foreclosure of such pledge or security interest.
(b) From time to time, each Lender may assign to one or
more Eligible Assignees all or any portion of its Pro Rata Share,
provided that (i) such Eligible Assignee, if not then a Lender or an
Affiliate of the assigning Lender, shall be approved by each of the
Administrative Agent and (if no Default has occurred and no Event of
Default then exists) the Domestic Borrower (none of which approvals
shall be unreasonably withheld or delayed), (ii) such assignment shall
be evidenced by an Assignment Agreement, a copy of which shall be
furnished to the Administrative Agent as hereinbelow provided, (iii)
except in the case of an assignment to an Affiliate of the assigning
Lender, to another Lender or of the entire remaining Commitments of the
assigning Lender, the assignment shall not assign a Pro Rata Share of
the Commitments that is less than $500,000, (iv) the effective date of
any such assignment shall be as specified in the Assignment Agreement,
but not earlier than the date which is five Business Days after the date
the Administrative Agent has received the Assignment Agreement, (v)
shall be of a constant and non-varying percentage of the Pro Rata Share
of the assigning Lender, and (vi) each Person which accepts an
assignment of a Pro Rata Share of the Revolving Commitment shall be
deemed to have purchased, in accordance with Section 2.12, the
equivalent Pro Rata Share of the German Commitment. Upon the effective
date of such Assignment Agreement, the Eligible Assignee named therein
shall be a Lender for all purposes of this Agreement, with the Pro Rata
Share set forth therein and, to the extent of such Pro Rata Share, the
assigning Lender shall be released from its further obligations under
this Agreement. The Borrowers agree that they shall execute and deliver
(against delivery by the assigning Lender of its Note) to such assignee
Lender, a Note evidencing that assignee Lender's Pro Rata
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Share, and to the assigning Lender, a Note evidencing the remaining
balance Pro Rata Share retained by the assigning Lender.
(c) By executing and delivering a Assignment Agreement,
the Eligible Assignee thereunder acknowledges and agrees that: (i) other
than the representation and warranty that it is the legal and beneficial
owner of the Pro Rata Share being assigned thereby free and clear of any
adverse claim, the assigning Lender has made no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this
Agreement or the execution, legality, validity, enforceability,
genuineness or sufficiency of this Agreement or any other Loan Document;
(ii) the assigning Lender has made no representation or warranty and
assumes no responsibility with respect to the financial condition of the
Domestic Borrower or its Subsidiaries or the performance by the
Borrowers and their Subsidiaries of the Obligations; (iii) it has
received a copy of this Agreement, together with copies of the most
recent financial statements delivered pursuant to Section 7.1 and such
other documents and information as it has deemed appropriate to make its
own credit analysis and decision to enter into such Assignment
Agreement; (iv) it will, independently and without reliance upon the
Administrative Agent or any Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make
its own credit decisions in taking or not taking action under this
Agreement; (v) it appoints and authorizes the Administrative Agent to
take such action and to exercise such powers under this Agreement as are
delegated to the Administrative Agent by this Agreement; and (vi) it
will perform in accordance with their terms all of the obligations which
by the terms of this Agreement are required to be performed by it as a
Lender.
(d) The Administrative Agent shall maintain at the
Administrative Agent's Office a copy of each Assignment Agreement
delivered to it and a register (the "Register") of the names and address
of each of the Lenders and the Pro Rata Share held by each Lender,
giving effect to each Assignment Agreement. The Register shall be
available during normal business hours for inspection upon reasonable
prior notice to the Administrative Agent. After receipt of a completed
Assignment Agreement executed by any Lender and an Eligible Assignee,
and receipt of an assignment fee of $3,500 from such Lender or Eligible
Assignee, the Administrative Agent shall make a record thereof in the
Register and the same shall become effective; provided, however, that no
assignment fee shall be payable with respect to an assignment to another
Lender or an Affiliate of such assigning Lender or if the Administrative
Agent waives payment of such assignment fee. The Borrowers and the
Creditors shall deem and treat the Persons listed as Lenders in the
Register as the holders and owners of the Pro Rata Share listed therein
for all purposes hereof, and no assignment or transfer of any such Pro
Rata Share shall be effective, in each case unless and until a
Assignment Agreement effecting the assignment or transfer thereof shall
have been accepted by the Administrative Agent and recorded in the
Register as provided above. Prior to such recordation, all amounts owed
with respect to the applicable Pro Rata Share shall be owed to the
Lender listed in the Register as the owner thereof, and any request,
authority or consent of any Person who, at the time of making such
request or giving such authority or consent, is listed in the Register
as a Lender shall be conclusive and binding on any subsequent holder,
assignee or transferee of the corresponding Pro Rata Share.
(e) Each Lender may from time to time grant
participations to one or more banks or other financial institutions
(including another Lender) in a portion of its Pro Rata Share of any one
or more of the Commitments; provided, however, that (i) such Lender's
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obligations under this Agreement shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for
the performance of such obligations, (iii) the participating banks or
other financial institutions shall not be a Lender hereunder for any
purpose except, if the participation agreement so provides, for the
purposes of Sections 3.7, 3.8, 11.11 and 11.22 but only to the extent
that the cost of such benefits to the Borrowers does not exceed the cost
which the Borrowers would have incurred in respect of such Lender absent
the participation, (iv) the Borrowers and the other Creditors shall
continue to deal solely and directly with such Lender in connection with
such Lender's rights and obligations under this Agreement, (v) the
participation interest shall be expressed as a percentage of the
granting Lender's Pro Rata Share as it then exists and shall not
restrict an increase in the Commitments, or in the granting Lender's Pro
Rata Share thereof, so long as the amount of the participation interest
is not affected thereby, and (vi) the consent of the holder of such
participation interest shall not be required for amendments or waivers
of provisions of the Loan Documents other than those described in
Section 11.2(b), (c) and (d).
(f) Notwithstanding anything to the contrary contained
herein, any Lender (a "Granting Lender") may grant to a special purpose
funding vehicle (an "SPC") of such Granting Lender, identified as such
in writing from time to time by the Granting Lender to the
Administrative Agent and the Domestic Borrower, the option to provide
all or any part of any Loan or Advance that such Granting Lender would
otherwise be obligated to make pursuant to Sections 2.1, 2.2, 2.3 or
2.5, provided that (i) nothing herein shall constitute a commitment to
make any Loan by any SPC, (ii) if an SPC elects not to exercise such
option or otherwise fails to provide all or any part of such Loan, the
Granting Lender shall be obligated to make such Loan pursuant to the
terms hereof, (iii) the rights of any such SPC shall be derivative of
the rights of the Granting Lender, and each SPC shall be subject to all
of the restrictions upon the Granting Lender herein contained, and (iv)
no assignment shall be made to any Person if such assignment would
result in a violation of any Gaming Laws or otherwise require the
consent or approval of or notice to any Gaming Board. Each SPC shall be
conclusively presumed to have made arrangements with its Granting Lender
for the exercise of voting and other rights hereunder in a manner which
is acceptable to the SPC, and the other Creditors, the Borrowers and
each other Party shall be entitled to rely upon and deal solely with the
Granting Lender with respect to Loans and Advances made by or through
its SPC. The making of a Loan by an SPC hereunder shall utilize the
relevant Commitment of the Granting Lender to the same extent, and as
if, such Loan were made by the Granting Lender. Each party hereto hereby
agrees that no SPC shall be liable for any indemnity or similar payment
obligation under this Agreement (all liability for which shall remain
with the related Granting Lender). In furtherance of the foregoing, each
party hereto hereby agrees (which agreement shall survive the
termination of this Agreement) that, prior to the date that is one year
and one day after the payment in full of all outstanding senior
indebtedness of any SPC, it will not institute against, or join any
other person in instituting against, such SPC any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings or
similar proceedings under the laws of the United States or any State
thereof, provided that the Granting Lender for each SPC hereby agrees to
indemnify, save, and hold harmless each other party hereto for any loss,
cost, damage and expense arising out of their inability to institute any
such proceeding against its SPC. In addition, notwithstanding anything
to the contrary contained in this Section 11.8, any SPC may (i) with
notice to, but without the prior written consent of, the Borrowers or
the Administrative Agent and without paying any processing fee therefor,
assign all or a portion of its interests in any Loans to its Granting
Lender or to any financial institutions providing liquidity and/or
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credit facilities to or for the account of such SPC to fund the Loans
made by such SPC or to support the securities (if any) issued by such
SPC to fund such Loans (but nothing contained herein shall be construed
in derogation of the obligation of the Granting Lender to make Loans
hereunder), provided that neither the consent of the SPC or of any such
assignee shall be required for amendments or waivers of provisions of
the Loan Documents except for those amendments or waivers for which the
consent of participants is required under Section 11.8(e)(vi), and (ii)
disclose on a confidential basis (in the same manner described in
Section 11.14) any non-public information relating to its Loans to any
rating agency, commercial paper dealer or provider of a surety,
guarantee or credit or liquidity enhancement to such SPC.
(g) Each Lender which hereafter acquires any Pro Rata
Share (or any additional Pro Rata Share) of the Revolving Commitment by
means of the execution of an Assignment Agreement shall be deemed to
have a risk participation in the German Commitment Loans in accordance
with its Pro Rata Share of the Revolving Commitment pursuant to Section
2.12.
11.9 Right of Setoff. If an Event of Default has occurred and is
continuing, the Administrative Agent or any Lender (but in each case only with
the consent of the Requisite Lenders) may exercise its rights under Article 9 of
the Uniform Commercial Code and other applicable Laws and, to the extent
permitted by applicable Laws, apply any funds in any deposit account maintained
with it by any Borrower and any of its Property in its possession against the
Obligations.
11.10 Sharing of Setoffs. Each Lender severally agrees that if
it, through the exercise of any right of setoff, banker's lien or counterclaim
against the Borrowers or otherwise, receives payment of the Obligations held by
it that is ratably more than any other Lender, through any means, receives in
payment of the Obligations held by that Lender, then, subject to applicable
Laws: (a) the Lender exercising the right of setoff, banker's lien or
counterclaim or otherwise receiving such payment shall purchase, and shall be
deemed to have simultaneously purchased, from the other Lender a participation
in the Obligations held by the other Lender and shall pay to the other Lender a
purchase price in an amount so that the share of the Obligations held by each
Lender after the exercise of the right of setoff, banker's lien or counterclaim
or receipt of payment shall be in the same proportion that existed prior to the
exercise of the right of setoff, banker's lien or counterclaim or receipt of
payment; and (b) such other adjustments and purchases of participations shall be
made from time to time as shall be equitable to ensure that all of the Lenders
share any payment obtained in respect of the Obligations ratably in accordance
with each Lender's share of the Obligations immediately prior to, and without
taking into account, the payment; provided that, if all or any portion of a
disproportionate payment obtained as a result of the exercise of the right of
setoff, banker's lien, counterclaim or otherwise is thereafter recovered from
the purchasing Lender by the relevant Borrower or any Person claiming through or
succeeding to the rights of that Borrower, the purchase of a participation shall
be rescinded and the purchase price thereof shall be restored to the extent of
the recovery, but without interest. Each Lender that purchases a participation
in the Obligations pursuant to this Section shall from and after the purchase
have the right to give all notices, requests, demands, directions and other
communications under this Agreement with respect to the portion of the
Obligations purchased to the same extent as though the purchasing Lender were
the original owner of the Obligations purchased. Each Borrower expressly
consents to the foregoing arrangements and agrees that any Lender holding a
participation in an Obligation so purchased may exercise any and all rights of
setoff, banker's lien or counterclaim with respect to the participation as fully
as if the Lender were the original owner of the Obligation purchased.
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11.11 Indemnity by the Borrowers. Each Borrower jointly and
severally agrees to indemnify, save and hold harmless the Administrative Agent,
the Lead Arranger and each Lender and their Affiliates, directors, officers,
agents, attorneys and employees (collectively the "Indemnitees") from and
against: (a) any and all claims, demands, actions or causes of action (except a
claim, demand, action, or cause of action for any amount excluded from the
definition of "Taxes" in Section 3.11(d)) if the claim, demand, action or cause
of action arises out of or relates to any act or omission (or alleged act or
omission) of the German Borrowers, Domestic Borrower, their Subsidiaries or any
of their officers, directors or stockholders relating to the Commitments, the
use or contemplated use of proceeds of any Loan, or the relationship of the
Domestic Borrower, the German Borrowers and the Indemnitees under this
Agreement; (b) any administrative or investigative proceeding by any
Governmental Agency arising out of or related to a claim, demand, action or
cause of action described in clause (a) above; and (c) any and all liabilities,
losses, costs or expenses including reasonable attorneys' fees and the
reasonably allocated costs of attorneys employed by any Indemnitee and
disbursements of such attorneys and other professional services) that any
Indemnitee suffers or incurs as a result of the assertion of any foregoing
claim, demand, action or cause of action; provided that no Indemnitee shall be
entitled to indemnification under this Section for any loss caused by its own
gross negligence or willful misconduct or for any loss asserted against it by
another Indemnitee. If any claim, demand, action or cause of action is asserted
against any Indemnitee, such Indemnitee shall promptly notify the Borrowers, but
the failure to so promptly notify the Borrowers shall not affect their
obligations under this Section unless such failure materially prejudices the
Borrowers' right to participate in the contest of such claim, demand, action or
cause of action, as hereinafter provided. Such Indemnitee may (and shall, if
requested by the Borrowers in writing) contest the validity, applicability and
amount of such claim, demand, action or cause of action and shall permit the
Borrowers to participate in such contest. Any Indemnitee that proposes to settle
or compromise any claim or proceeding for which the any Borrower may be liable
for payment of indemnity hereunder shall give the Borrowers written notice of
the terms of such proposed settlement or compromise reasonably in advance of
settling or compromising such claim or proceeding and shall obtain the
Borrowers' prior consent (which shall not be unreasonably withheld or delayed).
In connection with any claim, demand, action or cause of action covered by this
Section against more than one Indemnitee, all such Indemnitees shall be
represented by the same legal counsel (which may be a law firm engaged by the
Indemnitees or attorneys employed by an Indemnitee or a combination of the
foregoing) selected by the Indemnitees and reasonably acceptable to the
Borrowers; provided, that if such legal counsel determines in good faith that
representing all such Indemnitees would or could result in a conflict of
interest under Laws or ethical principles applicable to such legal counsel or
that a defense or counterclaim is available to an Indemnitee that is not
available to all such Indemnitees, then to the extent reasonably necessary to
avoid such a conflict of interest or to permit unqualified assertion of such a
defense or counterclaim, each Indemnitee shall be entitled to separate
representation by legal counsel selected by that Indemnitee and reasonably
acceptable to the Borrowers, with all such legal counsel using reasonable
efforts to avoid unnecessary duplication of effort by counsel for all
Indemnitees; and further provided that the Administrative Agent (as an
Indemnitee) shall at all times be entitled to representation by separate legal
counsel (which may be a law firm or attorneys employed by the Administrative
Agent or a combination of the foregoing). The obligations of the Borrowers to
the Indemnitees under this Section shall survive the expiration or termination
of this Agreement, the repayment of all Loans, the expiration or termination of
all Letters of Credit and the payment and performance of all other Obligations
owed to the Lenders.
11.12 Nonliability of the Lenders. Each Borrower acknowledges
and agrees that:
(a) Any inspections of any Property of the Borrowers and
their Subsidiaries made by or through the Creditors are for purposes of
administration of the Loans
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and Letters of Credit only and the Borrowers and their Affiliates are
not entitled to rely upon the same (whether or not such inspections are
at the expense of the Borrowers or their Subsidiaries);
(b) By accepting or approving anything required to be
observed, performed, fulfilled or given to the Creditors pursuant to the
Loan Documents, neither the Administrative Agent nor the Lenders shall
be deemed to have warranted or represented the sufficiency, legality,
effectiveness or legal effect of the same, or of any term, provision or
condition thereof, and such acceptance or approval thereof shall not
constitute a warranty or representation to anyone with respect thereto
by the Creditors;
(c) The relationship between the Borrowers and the
Creditors is, and shall at all times remain, solely that of borrowers
and lenders; neither the Administrative Agent nor the Lenders shall
under any circumstance be construed to be partners or joint venturers of
the Borrowers or their Affiliates; neither the Administrative Agent nor
the Lenders shall under any circumstance be deemed to be in a
relationship of confidence or trust or a fiduciary or other "special"
relationship with the Borrowers or their Affiliates, or to owe any
fiduciary duty to the Domestic Borrower or its Affiliates; neither the
Administrative Agent nor the Lenders undertake or assume any
responsibility or duty to the Borrowers or their Affiliates to select,
review, inspect, supervise, pass judgment upon or inform the Domestic
Borrower or its Affiliates of any matter in connection with their
Property or the operations of the Domestic Borrower or its Affiliates;
the Domestic Borrower and its Affiliates shall rely entirely upon their
own judgment with respect to such matters; and any review, inspection,
supervision, exercise of judgment or supply of information undertaken or
assumed by the Creditors in connection with such matters is solely for
the protection of the Creditors and neither the Domestic Borrower nor
any other Person is entitled to rely thereon; and
(d) The Creditors shall not be responsible or liable to
any Person for any loss, damage, liability or claim of any kind relating
to injury or death to Persons or damage to Property caused by the
actions, inaction or negligence of the Borrowers and/or their Affiliates
and the Borrowers hereby indemnify and hold the Creditors harmless on
the terms set forth in Section 11.11 from any such loss, damage,
liability or claim.
11.13 No Third Parties Benefitted. This Agreement is made for
the purpose of defining and setting forth certain obligations, rights and duties
of the Borrowers and the Creditors in connection with the Loans, and is made for
the sole benefit of the Borrowers, the Creditors, and the Creditors' successors
and assigns. Except as provided in Sections 11.8 and 11.11, no other Person
shall have any rights of any nature hereunder or by reason hereof.
11.14 Confidentiality. Each Lender agrees to hold any
confidential information that it may receive from the Borrowers pursuant to this
Agreement in confidence, except for disclosure: (a) to other Lenders and
Affiliates of such Lender, provided that each such Affiliate receiving such
information shall be bound by the provisions of this Section 11.14 as if it were
a Lender hereunder, and shall execute in favor of the Borrowers such
documentation with respect thereto as the Domestic Borrower shall request in
writing; (b) to legal counsel and accountants for the Domestic Borrower or any
Lender; (c) to other professional advisors to the Domestic Borrower or any
Lender, provided that the recipient has accepted such information subject to a
confidentiality agreement substantially similar to this Section; (d) to
regulatory officials having jurisdiction over that Lender; (e) to any Gaming
Board having regulatory jurisdiction over the Borrowers or their Subsidiaries,
provided that each Lender
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agrees to use its best efforts to notify the Domestic Borrower of any such
disclosure unless prohibited by applicable Laws; (f) as required by Law or legal
process or in connection with any legal proceeding to which that Lender and the
Domestic Borrower or any of its Subsidiaries are adverse parties; (g) to another
financial institution in connection with a disposition or proposed disposition
to that financial institution of all or part of that Lender's interests
hereunder or a participation interest in its Note, provided that the recipient
has accepted such information subject to a confidentiality agreement
substantially similar to this Section; and (h) to any direct or indirect
contractual counterparty in swap agreements or such contractual counterparty's
professional advisor (so long as such contractual counterparty or professional
advisor to such contractual counterparty agrees to be bound by the provisions of
this Section). For purposes of the foregoing, "confidential information" shall
mean any information respecting the Borrowers or their Subsidiaries reasonably
considered by the Domestic Borrower to be confidential, other than (i)
information previously filed with any Governmental Agency and available to the
public, (ii) information previously published in any public medium from a source
other than, directly or indirectly, that Lender, and (iii) information
previously disclosed by the Borrowers or their Subsidiaries to any Person not
associated with the Domestic Borrower without a confidentiality agreement or
obligation substantially similar to this Section. Nothing in this Section shall
be construed to create or give rise to any fiduciary duty on the part of the
Creditors to the Domestic Borrower or any other Party.
11.15 Further Assurances. The Borrowers and their Subsidiaries
shall, at their expense and without expense to the Lenders or the Administrative
Agent, do, execute and deliver such further acts and documents as the Requisite
Lenders or the Administrative Agent from time to time reasonably require for the
assuring and confirming unto the Lenders or the Administrative Agent of the
rights hereby created or intended now or hereafter so to be, or for carrying out
the intention or facilitating the performance of the terms of any Loan Document.
11.16 Integration. This Agreement, together with the other Loan
Documents and the letter agreements referred to in Sections 3.2, 3.4 and 3.5,
comprises the complete and integrated agreement of the parties on the subject
matter hereof and supersedes all prior agreements, written or oral, on the
subject matter hereof. In the event of any conflict between the provisions of
this Agreement and those of any other Loan Document, the provisions of this
Agreement shall control and govern; provided that the inclusion of supplemental
rights or remedies in favor of the Creditors in any other Loan Document shall
not be deemed a conflict with this Agreement. Each Loan Document was drafted
with the joint participation of the respective parties thereto and shall be
construed neither against nor in favor of any party, but rather in accordance
with the fair meaning thereof.
11.17 Governing Law. Except to the extent otherwise provided
therein, each Loan Document shall be governed by, and construed and enforced in
accordance with, the local Laws of California.
11.18 Severability of Provisions. Any provision in any Loan
Document that is held to be inoperative, unenforceable or invalid as to any
party or in any jurisdiction shall, as to that party or jurisdiction, be
inoperative, unenforceable or invalid without affecting the remaining provisions
or the operation, enforceability or validity of that provision as to any other
party or in any other jurisdiction, and to this end the provisions of all Loan
Documents are declared to be severable.
11.19 Headings. Article and Section headings in this Agreement
and the other Loan Documents are included for convenience of reference only and
are not part of this Agreement or the other Loan Documents for any other
purpose.
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11.20 Time of the Essence. Time is of the essence of the Loan
Documents.
11.21 Foreign Lenders and Participants. Each Lender that is
incorporated or otherwise organized under the Laws of a jurisdiction other than
the United States of America or any State thereof or the District of Columbia
shall deliver to the Domestic Borrower (with a copy to the Administrative
Agent), within 20 days after the Closing Date (or after accepting an assignment
or receiving a participation interest herein pursuant to Section 11.8, if
applicable) two duly completed copies, signed by a Responsible Official, of
either Form W-8 or X-0 XXX xx xxx Xxxxxx Xxxxxx Internal Revenue Service or such
other evidence including, if reasonably necessary, Form W-9) satisfactory to the
Domestic Borrower and the Administrative Agent that no withholding under the
federal income tax laws is required with respect to such Lender. Thereafter and
from time to time, each such Lender shall upon request by the Domestic Borrower
(a) promptly submit to the Domestic Borrower (with a copy to the Administrative
Agent), such additional duly completed and signed copies of one of such forms
(or such successor forms as shall be adopted from time to time by the relevant
United States taxing authorities) as may then be available under then current
United States laws and regulations to avoid, or such evidence as is satisfactory
to the Domestic Borrower and the Administrative Agent of any available exemption
from, United States withholding taxes in respect of all payments to be made to
such Lender by the Domestic Borrower pursuant to this Agreement and (b) take
such steps as shall not be materially disadvantageous to it, in the reasonable
judgment of such Lender, and as may be reasonably necessary (including the
re-designation of its Eurocurrency Lending Office, if any) to avoid any
requirement of applicable Laws that the Domestic Borrower make any deduction or
withholding for taxes from amounts payable to such Lender. In the event that the
Domestic Borrower or the Administrative Agent become aware that a participation
has been granted pursuant to Section 11.8(e) to a financial institution that is
incorporated or otherwise organized under the Laws of a jurisdiction other than
the United States of America, any State thereof or the District of Columbia,
then, upon request made by the Domestic Borrower or the Administrative Agent to
the Lender which granted such participation, such Lender shall cause such
participant financial institution to deliver the same documents and information
to the Domestic Borrower and the Administrative Agent as would be required under
this Section if such financial institution were a Lender.
11.22 Hazardous Material Indemnity. Each Borrower hereby agrees
to indemnify, hold harmless and defend (by counsel reasonably satisfactory to
the Administrative Agent) the Administrative Agent and each of the Lenders (and
any successor to a Lender) and their respective directors, officers, employees
and agents from and against any and all claims, losses, damages, liabilities,
fines, penalties, charges, administrative and judicial proceedings and orders,
judgments, remedial action requirements, enforcement actions of any kind, and
all costs and expenses incurred in connection therewith including reasonable
attorneys' fees and the reasonably allocated costs of attorneys employed by the
Administrative Agent or any Lender, and expenses to the extent that the defense
of any such action has not been assumed by the Borrowers), arising directly or
indirectly out of (i) the presence on, in, under or about any Real Property of
any Hazardous Materials, or any releases or discharges of any Hazardous
Materials on, under or from any Real Property and (ii) any activity carried on
or undertaken on or off any Real Property by the Domestic Borrower its
Subsidiaries or any of their predecessors in title, whether prior to or during
the term of this Agreement, and whether by the Borrowers, their Subsidiaries or
any predecessor in title or any employees, agents, contractors or subcontractors
of the Domestic Borrower, its Subsidiaries or any predecessor in title, or any
third persons at any time occupying or present on any Real Property other than a
Lender or a representative of a Lender), in connection with the handling,
treatment, removal, storage, decontamination, clean-up, transport or disposal of
any Hazardous Materials at any time located or present on, in, under or about
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any Real Property. The foregoing indemnity shall further apply to any residual
contamination on, in, under or about any Real Property, or affecting any natural
resources, and to any contamination of any Property or natural resources arising
in connection with the generation, use, handling, storage, transport or disposal
of any such Hazardous Materials, and irrespective of whether any of such
activities were or will be undertaken in accordance with applicable Laws, but
the foregoing indemnity shall not apply to Hazardous Materials on any Real
Property, the presence of which is caused by the Creditors. Each Borrower hereby
acknowledges and agrees that, notwithstanding any other provision of this
Agreement or any of the other Loan Documents to the contrary, the obligations of
the Domestic Borrower under this Section (and under Sections 4.19 and 5.11)
shall be unlimited corporate obligations of the Borrowers and shall not be
secured by any deed of trust or mortgage on any Real Property. Any obligation or
liability of the Borrowers to any Indemnitee under this Section shall survive
the expiration or termination of this Agreement, the repayment of all Loans, the
expiration or termination of all Letters of Credit and the payment and
performance of all other Obligations owed to the Lenders.
11.23 Gaming Boards. The Administrative Agent and each of the
Lenders agree to cooperate with all Gaming Boards in connection with the
administration of their regulatory jurisdiction over the Borrowers and their
Subsidiaries, including the provision of such documents or other information as
may be requested by any such Gaming Board relating the Administrative Agent or
the Lenders to the Borrowers and their Subsidiaries or to the Loan Documents.
11.24 Nevada Gaming Collateral. Subject to the release of any
Collateral as contemplated by any of the Loan Documents, the Administrative
Agent shall (or through one or more of its agents, sub-agents or sub-collateral
agents shall), to the extent required by Nevada Gaming Regulations, retain
possession of all pledged securities delivered to it consisting of capital stock
of any Nevada gaming licensee or registered intermediary company within the
State of Nevada at a location designated and approved by the applicable Gaming
Board.
11.25 Construction of the Pledge Agreements. To the extent that
Liens on any Collateral thereunder are granted to the Administrative Agent under
both the Domestic Facilities Pledge Agreement and the German Facility Pledge
Agreement, the Liens created by the Domestic Facilities Pledge Agreement and the
German Facility Pledge Agreement are hereby agreed to be equal, ratable and pari
passu Liens to the extent of the Liens granted under such Agreements.
Notwithstanding the pledge to the Administrative Agent of 100% of the capital
stock of any Person which is a Foreign Significant Subsidiary to secure the
Obligations under the German Commitment, the Creditors disclaim any security
interest with respect to more than 65% of the capital stock of any Foreign
Significant Subsidiary to the extent that the same secures the Obligations under
the Revolving Commitment or the Term Commitment. Without limiting the generality
of the preceding sentence, notwithstanding any other provision of the Loan
Documents to the contrary, the Domestic Pledge Agreement shall not be construed
to have granted a Lien in more than 65% of the equity securities of any
Subsidiary of the Domestic Borrower which is organized under the Laws of any
jurisdiction other than the United States and its political subdivisions.
11.26 Specific Provisions Regarding German Borrowers. It is
agreed and acknowledged by the parties hereto that the German Borrowers
regularly and customarily use the management services (including, inter alia,
financial management and cash management services) of German Holdings and shall
have the authority to give any notice of borrowing or any other notice or
communication hereunder on behalf of, and with legally binding effect on, each
of the German Borrowers.
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11.27 CONSENT TO JURISDICTION; CHOICE OF FORUM.
(a) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF (X)
IN THE CASE OF ANY OBLIGATIONS ARISING OUT OF THE REVOLVING COMMITMENT
OR THE TERM COMMITMENT, IN THE STATE OF CALIFORNIA OR OF THE UNITED
STATES FOR THE CENTRAL DISTRICT OF CALIFORNIA, OR (Y) IN THE CASE OF THE
GERMAN COMMITMENT, IN SUCH COURTS OR IN COURTS IN AND FOR FRANKFURT, AM
MAIN GERMANY, IN THE FEDERAL REPUBLIC OF GERMANY AND, BY EXECUTION AND
DELIVERY OF THIS AGREEMENT, EACH BORROWER HEREBY IRREVOCABLY ACCEPTS FOR
ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY,
THE JURISDICTION OF THE AFORESAID COURTS. EACH BORROWER HEREBY FURTHER
IRREVOCABLY WAIVES ANY CLAIM THAT ANY SUCH COURTS LACK PERSONAL
JURISDICTION OVER SUCH BORROWER, AND AGREES NOT TO PLEAD OR CLAIM, IN
ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENTS BROUGHT IN ANY OF THE AFOREMENTIONED COURTS, THAT
SUCH COURTS LACK PERSONAL JURISDICTION OVER SUCH BORROWER. TO THE EXTENT
PERMITTED BY LAW, EACH BORROWER FURTHER IRREVOCABLY CONSENTS TO THE
SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH
ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR
CERTIFIED MAIL, POSTAGE PREPAID, TO SUCH BORROWER AT ITS ADDRESS SET
FORTH OPPOSITE ITS SIGNATURE BELOW, SUCH SERVICE TO BECOME EFFECTIVE 30
DAYS AFTER SUCH MAILING. EACH BORROWER HEREBY IRREVOCABLY WAIVES ANY
OBJECTION TO SUCH SERVICE OF PROCESS AND FURTHER IRREVOCABLY WAIVES AND
AGREES NOT TO PLEAD OR CLAIM IN ANY ACTION OR PROCEEDING COMMENCED
HEREUNDER OR UNDER ANY OTHER LOAN DOCUMENT THAT SERVICE OF PROCESS WAS
IN ANY WAY INVALID OR INEFFECTIVE. NOTHING HEREIN SHALL AFFECT THE RIGHT
OF THE ADMINISTRATIVE AGENT, ANY LENDER OR THE HOLDER OF ANY NOTE TO
SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL
PROCEEDINGS OR OTHERWISE PROCEED AGAINST ANY BORROWER IN ANY OTHER
JURISDICTION.
(b) EACH BORROWER HEREBY IRREVOCABLY WAIVES ANY
OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF
ANY OF THE AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT BROUGHT IN THE
COURTS REFERRED TO IN CLAUSE (a) ABOVE AND HEREBY FURTHER IRREVOCABLY,
TO THE EXTENT PERMITTED BY APPLICABLE LAW, WAIVES AND AGREES NOT TO
PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION OR PROCEEDING
BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
11.28 Waiver of Right to Trial by Jury. EACH PARTY TO THIS
AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY
CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF
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THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR THE
TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER
ARISING, AND WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY
HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF
ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO
THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH
ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE
WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
11.29 Purported Oral Amendments. EACH BORROWER EXPRESSLY
ACKNOWLEDGES THAT THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS MAY ONLY BE
AMENDED OR MODIFIED, OR THE PROVISIONS HEREOF OR THEREOF WAIVED OR SUPPLEMENTED,
BY AN INSTRUMENT IN WRITING THAT COMPLIES WITH SECTION 11.2. EACH BORROWER
AGREES THAT IT WILL NOT RELY ON ANY COURSE OF DEALING, COURSE OF PERFORMANCE, OR
ORAL OR WRITTEN STATEMENTS BY ANY REPRESENTATIVE OF THE ADMINISTRATIVE AGENT OR
ANY BANK THAT DOES NOT COMPLY WITH SECTION 11.2 TO EFFECT AN AMENDMENT,
MODIFICATION, WAIVER OR SUPPLEMENT TO THIS AGREEMENT OR THE OTHER LOAN
DOCUMENTS.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the date first above written.
ALLIANCE GAMING CORPORATION, a Nevada corporation
By:
---------------------------------------------
Xxxxxx X. Xxxxxxxxx
Executive Officer
Address for Notices:
Alliance Gaming Corporation
0000 Xxxxx Xxxxxxx Xxxx
Xxx Xxxxx, Xxxxxx 00000
Attn: Chief Financial Officer
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
BALLY XXXXX AUTOMATEN GMBH
By:
---------------------------------------------
Xxxx Xxxxxx
Managing Director
Address for Notices:
Bally Xxxxx Xxxxxxxxx XxxX
Xxxxxxxxxxx 00-00
00000 Xxxxxx, Xxxxxxx
Attn: Managing Director
Telecopier: 00-00-00000000
Telephone: 00-00-000000
BALLY XXXXX VERTRIEBS GMBH
By:
---------------------------------------------
Xxxx Xxxxxx
Managing Director
Address for Notices:
Bally Xxxxx Vertriebs GmbH
Xxxxxxxxxxxxxxx 00
00000 Xxxxxxxx, Xxxxxxx
Attn: Managing Director
Telecopier: 00-000-0000000
Telephone: 00-000-000000
[ALLIANCE GAMING CORPORATION]
[LOAN AGREEMENT SIGNATURE PAGE]
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104
BANK OF AMERICA, N.A., as Administrative Agent
By:
------------------------------------------------
Xxxxxx Xxxxxxx, Vice President
Address:
Bank of America, N.A.
Agency Management Services
000 Xxxxx Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx Xxxxxxx, Vice President
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
[ALLIANCE GAMING CORPORATION]
[LOAN AGREEMENT SIGNATURE PAGE]
S-2
105
BANK OF AMERICA, N.A., as a Lender
By:
---------------------------------------------
Xxxxx Xxxxx, Managing Director
Address:
Bank of America, N.A.
CA9-706-11-01
000 Xxxxx Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx Xxxxx, Managing Director
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
With a copy to:
Bank of America, N.A.
000 Xxxxx Xxxxxx Xxxxxx (LA-5777)
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxx, Managing Director
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
[ALLIANCE GAMING CORPORATION]
[LOAN AGREEMENT SIGNATURE PAGE]
S-3
106
FRANKLIN FLOATING RATE MASTER SERIES
By:
---------------------------------------
Title:
------------------------------------
Address for notices:
Franklin Floating Rate Master Series
000 Xxxxxxxx Xxxxxx Xxxxxxxxx, 0xx Xxxxx
Xxx Xxxxx, XX 00000
Attn.: Xxxxx Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
[ALLIANCE GAMING CORPORATION]
[LOAN AGREEMENT SIGNATURE PAGE]
S-4
107
FRANKLIN FLOATING RATE DAILY ACCESS FUND
By:
---------------------------------------
Title:
------------------------------------
Address for notices:
Franklin Floating Rate Daily Access Fund
000 Xxxxxxxx Xxxxxx Xxxxxxxxx, 0xx Xxxxx
Xxx Xxxxx, XX 00000
Attn.: Xxxxx Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
[ALLIANCE GAMING CORPORATION]
[LOAN AGREEMENT SIGNATURE PAGE]
S-5
108
[[[Intentionally Omitted]]]
[ALLIANCE GAMING CORPORATION]
[LOAN AGREEMENT SIGNATURE PAGE]
S-6
109
PILGRIM SENIOR INCOME FUND
By: ING PILGRIM INVESTMENTS, LLC
as its Investment Manager
By:
---------------------------------------
Title:
------------------------------------
Address for notices:
Pilgrim Senior Income Fund
0000 Xxxx Xxxxxxxxxx Xxxxx Xxxx
Xxxxxxxxxx, XX 00000-0000
Attn.: Xxxxx Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
[ALLIANCE GAMING CORPORATION]
[LOAN AGREEMENT SIGNATURE PAGE]
S-7
110
PILGRIM PRIME RATE TRUST
By: ING PILGRIM INVESTMENTS, LLC
as its Investment Manager
By:
---------------------------------------
Title:
------------------------------------
Address for notices:
Pilgrim Prime Rate Trust
0000 Xxxx Xxxxxxxxxx Xxxxx Xxxx
Xxxxxxxxxx, XX 00000-0000
Attn.: Xxxxx Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
[ALLIANCE GAMING CORPORATION]
[LOAN AGREEMENT SIGNATURE PAGE]
S-8
111
THE TRAVELERS INSURANCE COMPANY
By:
---------------------------------------
Title:
------------------------------------
Address for notices:
The Travelers Insurance Company
Xxx Xxxxx Xxxxxx
Xxxxxxxx, XX 00000-0000
Attn.: X.X. XxXxxxxx--Citigroup Investments
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
[ALLIANCE GAMING CORPORATION]
[LOAN AGREEMENT SIGNATURE PAGE]
S-9
112
TRAVELERS CORPORATE LOAN FUND INC.
By: Travelers Asset Management International
Company LLC
By:
---------------------------------------
Title:
------------------------------------
Address for notices:
Travelers Corporate Loan Fund Inc.
Xxx Xxxxx Xxxxxx
Xxxxxxxx, XX 00000-0000
Attn.: X.X. XxXxxxxx--Citigroup Investments
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
[ALLIANCE GAMING CORPORATION]
[LOAN AGREEMENT SIGNATURE PAGE]
S-10
