ASSUMPTION AND CONSENT AGREEMENT
THIS ASSUMPTION AND CONSENT AGREEMENT ("Assumption Agreement") is made as of
the 3rd day of June, 1998, by and among XXXXX FARGO BANK, National Association
("WFB"), U.S. BANK NATIONAL ASSOCIATION ("USBNA"), FIRST HAWAIIAN BANK ("FHB"),
ABN AMRO BANK ("ABN"), BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION
("BofA"), THE BANK OF NOVA SCOTIA ("BONS") and KEYBANK NATIONAL ASSOCIATION
("Key" and together with WFB, USBNA, FHB, ABN, BofA and BONS collectively
referred to as the "Assuming Lenders" and each individually as an "Assuming
Lender"), PRIMADONNA RESORTS, INC., a Nevada corporation and THE PRIMADONNA
CORPORATION, a Nevada corporation (collectively the "Borrowers") and XXXXX
FARGO BANK, National Association, in its capacity as Agent Bank as described
hereinbelow.
RECITALS:
A. Reference is made to that certain Credit Agreement, dated as of June 5,
1997 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"), by and among Borrowers, the Lenders therein named (herein
together with their respective successors and assigns collectively the
"Lenders"), the Co-Agents and Lead Managers therein named, Xxxxx Fargo Bank,
National Association, as the swingline lender (herein in such capacity,
together with its successors and assigns, the "Swingline Lender"), Xxxxx Fargo
Bank, National Association, as the issuer of letters of credit hereunder
(herein in such capacity, together with its successors and assigns, the "L/C
Issuer"), and Xxxxx Fargo Bank, National Association, as administrative and
collateral agent for the Lenders, Swingline Lender and L/C Issuer (herein, in
such capacity, called the "Agent Bank" and, together with the Lenders,
Swingline Lender and L/C Issuer, collectively referred to as the "Banks").
B. In this Assumption Agreement, all capitalized words and terms not
otherwise defined herein shall have the respective meanings to be construed
herein as provided in Section 1.01 of the Credit Agreement and any reference to
a provision of the Credit Agreement shall be deemed to incorporate such
provision as a part hereof in the same manner and with the same effect as if
the same were fully set forth herein.
C. Pursuant to Section 2.01(d) of the Credit Agreement, the Aggregate
Commitment was increased from Two Hundred Fifty Million Dollars
($250,000,000.00) to Three Hundred Million Dollars ($300,000,000.00) by
Assumption and Consent Agreement dated December 19, 1997, executed by and
among Borrowers, Agent Bank and the Lenders party thereto that committed to
fund the increase to the Aggregate Commitment.
D. Pursuant to the Assignment, Assumption and Consent Agreement dated as
of February 9, 1998, The Long Term Credit Bank of Japan, Ltd. assigned an
additional undivided one percent (1%) Syndication Interest to each of Societe
Generale, ABN and USBNA. Pursuant to the Assignment, Assumption and Consent
Agreement dated as of April 9, 1998, The Sumitomo Bank, Limited assigned an
additional 2.66666% Syndication Interest to Bank of Scotland.
E. Assuming Lenders, together with the other Lenders set forth thereon,
presently hold the respective Syndication Interests in the Credit Facility set
forth on the Schedule of Lenders' Proportions in Credit Facility as of
February 9, 1998, marked "Exhibit A", affixed hereto and by this reference
incorporated herein and made a part hereof.
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F. Pursuant to Section 2.01(d) of the Credit Agreement, Borrowers desire
to further increase the Aggregate Commitment from Three Hundred Million Dollars
($300,000,000.00) to Three Fifty Hundred Million Dollars ($350,000,000.00), an
increase of Fifty Million Dollars ($50,000,000.00) (the "Commitment Increase").
G. Each Assuming Lender is willing to commit to advance the portion of the
Commitment Increase set forth below, so that as of the Effective Date, as
hereinafter defined, Assuming Lenders shall hold the respective Pro Rata Shares
of the Aggregate Commitment as increased by the Commitment Increase and the
respective Syndication Interests in the Credit Facility set forth below (each
individually an "Assumed Interest" and collectively the "Assumed Interests"):
NAME OF ASSUMING LENDER
PORTION OF COMMITMENT INCREASE PRO RATA SHARE OF AGGREGATE COMMITMENT AFTER
COMMITMENT INCREASEPROPORTIONATE SYNDICATION INTERESTS AFTER COMMITMENT
INCREASE
WFB $ 4,000,000.00 $44,000,000.00
12.57144%
USBNA 10,000,000.00 28,000,000.00
8.00000%
FHB 5,000,000.00 15,000,000.00
4.28571%
ABN 4,000,000.00 20,000,000.00
5.71429%
BofA 3,000,000.00 25,000,000.00
7.14286%
BONS 3,000,000.00 15,000,000.00
4.28571%
KEY 21,000,000.00 21,000,000.00
6.00000%
H. This Assumption Agreement is made, executed and delivered pursuant to
Section 2.01(d) of the Credit Agreement and shall also constitute the
assumption by and delegation to Assuming Lenders of the Syndication Interests
particularly described hereinbelow.
NOW, THEREFORE, in consideration of the foregoing and other good and valuable
considerations, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto do agree as follows:
1. From and after the Effective Date, each Assuming Lender shall and does
hereby assume and agree to perform all of the promises and covenants of a
Lender as to its respective Assumed Interest arising or performable from and
after the Effective Date and does further agree to assume and be bound by each
and every term, condition, provision and covenant contained in the Credit
Agreement and each of the Loan Documents, effective as of the Effective Date,
to the same extent and manner as if such Assuming Lender had originally been
named in the Credit Agreement as a Lender holding the Assumed Interest therein
and Assuming Lender shall be deemed to be a Lender party to the Credit
Agreement for all purposes thereof.
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2. The "Effective Date" as used herein shall mean June 4, 1998, provided
that each of the following conditions precedent have been satisfied on or
before the Effective Date: (a) Assuming Lenders, Borrowers and Agent Bank have
executed twelve (12) duplicate originals of this Assumption Agreement and each
of such originals has been delivered to Agent Bank, (b) Borrowers have executed
and delivered to Agent Bank, on behalf of the Lenders, a restatement of the
Revolving Credit Note payable to the order of Agent Bank on behalf of the
Lenders, in the principal amount of Three Hundred Fifty Million Dollars
($350,000,000.00), (c) The Primadonna Corporation has executed and delivered to
Agent Bank a Third Amendment to Leasehold, Fee and Water Rights Deed of Trust,
Fixture Filing and Security Agreement with Assignment of Rents (H/C) in a form
and content acceptable to Agent Bank, for the purpose of securing repayment of
the Commitment Increase and the restated Revolving Credit Note, (d) Title
Company has committed to issue, at Borrowers' expense, its modified 110.10
endorsement to the Title Insurance Policy increasing coverage thereunder by an
additional Fifty Million Dollars ($50,000,000.00), (e) each Lender realizing a
decrease in its respective Syndication Interest has received from Agent Bank
such amount as is necessary to adjust such Lender's Pro Rata Share of the
Funded Outstandings as of the Effective Date equal to such Lender's Syndication
Interest as set forth on the Schedule of Lenders' Proportions in Credit
Facility as of June 4, 1998 attached hereto, and (f) each Assuming Lender
realizing an increase in its respective Syndication Interest has delivered to
Agent Bank an amount representing its Pro Rata Share of the Funded Outstandings
as of the Effective Date, less Assuming Lenders' Pro Rata Share of the Funded
Outstandings immediately prior to the Effective Date, for distribution to the
Lenders in such amounts as are necessary to adjust each such Lenders' Pro Rata
Share of the Funded Outstandings as of the Effective Date to a percentage equal
to the Syndication Interests set forth on the Schedule of Lenders' Proportions
in Credit Facility as of June 4, 1998 attached hereto. Interest accrued but
remaining unpaid on the portion of the outstanding principal balance under the
Credit Facility shall be prorated to the Effective Date and disbursed by Agent
Bank to Lenders from the next payment of accrued interest under the Note.
3. On the Effective Date, the respective aggregate Syndication Interests
of the Lenders in the Credit Facility shall be as set forth on the Schedule of
Lenders' Proportions in Credit Facility as of June 4, 1998, a copy of which is
marked "Schedule 2.01(a)" affixed hereto and by this reference incorporated
herein and made a part hereof, which shall restate the Schedule of Lenders'
Proportions in Credit Facility attached as Schedule 2.01(a) to the Credit
Agreement, and all previous amendments and restatements thereof, for the
purpose of showing the Commitment Increase, the adjustment of the respective
Syndication Interests held by each of the Lenders and evidencing each Assuming
Lender's applicable Syndication Interest in the Credit Facility on and after
the Effective Date.
4. Agent Bank, on behalf of itself and each of the Lenders, makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made by Borrowers in or in connection
with the Credit Agreement or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Agreement, the Loan Documents
or any other instrument or document furnished pursuant thereto. Agent Bank, on
behalf of itself and each of the Lenders, makes no representation or warranty
in connection with, and assumes no responsibility with respect to, the
solvency, financial condition or statements of the Borrowers or the performance
or observance by the Borrowers of any of their respective obligations under
the Credit Agreement, the Loan Documents or any other instrument or document
furnished in connection therewith.
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5. Each Assuming Lender represents and warrants on behalf of itself that:
a. (i) it is duly organized and existing and it has full power and authority
to take, and has taken, all action necessary to execute and deliver this
Assumption Agreement and any other documents required to be executed or
delivered by it in connection with this Assumption Agreement, and to fulfill
its obligations hereunder; (ii) no notices to, or consents, authorizations or
approvals of, any person are required (other than any already given or
obtained) for its due execution, delivery and performance of this Assumption
Agreement; and apart from any agreements or undertakings or filings required by
the Credit Agreement, no further action by, or notice to, or filing with, any
person is required of it for such execution, delivery or performance; (iii)
this Assumption Agreement has been fully executed and delivered by it and
constitutes its legal, valid and binding obligations, enforceable against it in
accordance with the terms hereof, subject, as to enforcement, to bankruptcy,
insolvency, moratorium, reorganization and other laws of general application
relating to or affecting creditors' rights and to general equitable principles;
and (iv) it is eligible under the Credit Agreement to be a Lender in accordance
with the terms hereof.
b. (i) under applicable law and treaties no tax will be required to be
withheld by Borrowers or any Bank with respect to any payments to be made to
such Assuming Lender under the Credit Agreement, (ii) it agrees to furnish (if
it is organized under the laws of any jurisdiction other than the United States
or any State thereof) to the Agent Bank and the Borrowers prior to the time
that the Agent Bank or Borrowers are required to make any payment of principal,
interest or fees hereunder, duplicate executed original of either U.S. Internal
Revenue Service Form 4224 or U.S. Internal Revenue Service Form 1001 (wherein
the Assuming Lender claims entitlement to the benefits of a tax treaty that
provides for a complete exemption from U.S. federal income withholding tax on
all payments hereunder) and agrees to provide new Forms 4224 or 1001 upon the
expiration of any previously delivered form or comparable statements in
accordance with applicable U.S. law and regulations and amendments thereto,
duly executed and completed by the Assuming Lender, and (iii) it agrees to
comply with all applicable U.S. laws and regulations with regard to such
withholding tax exemption.
6. Borrowers represent and warrant as of the Effective Date that:
a. the representations and warranties contained in Article IV of the Credit
Agreement and contained in each of the other Loan Documents (other than
representations and warranties which expressly speak only as of a different
date, which shall be true and correct in all material respects as of such date)
are true and correct on and as of the Effective Date in all material respects
as though such representations and warranties had been made on and as of the
Effective Date, except to the extent that such representations and warranties
are not true and correct as a result of a change which is permitted by the
Credit Agreement or by any other Loan Document or which has been otherwise
consented to by Agent Bank;
b. Since the date of the most recent financial statements referred to in
Section 5.08(a)(iii) of the Credit Agreement, no Material Adverse Change has
occurred and no event or circumstance which could reasonably be expected to
result in a Material Adverse Change or Material Adverse Effect has occurred;
and
c. no event has occurred and is continuing which constitutes a Default or
Event of Default under the terms of the Credit Agreement.
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7. Each Assuming Lender (a) acknowledges that it has received a copy of
the Credit Agreement and the Loan Documents, together with copies of the most
recent financial statements referred to in Section 5.08 of the Credit
Agreement, and such other documents and information as it has deemed
appropriate to make its own credit and legal analysis and decision to enter
into this Assumption Agreement; (b) agrees that it will, independently and
without reliance upon the Agent Bank or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit and legal decisions in taking or not taking action under
the Credit Agreement; and (c) appoints and authorizes the Agent Bank to take
such action as agent on its behalf and to exercise such powers under the Credit
Agreement as are delegated to the Agent Bank by the terms thereof, together
with such powers as are reasonably incidental thereto.
8. KeyBank hereby advises Borrower and Agent Bank of the following
administrative details:
a. Credit/Business Matters:
Xxxx Xxxxx, Commercial Banking
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
b. Operations/Administration:
Specialty Services Team
000 Xxxxxxxxxx Xxxx.
Xxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
c. Payment Instructions:
KeyBank National Association
Seattle, WA
ABA No. 000000000
Cr: 01500163
Attn: Specialty Services
Ref: Primadonna
9. This Assumption Agreement may be signed in any number of counterparts,
and signatures to all counterparts thereto, when assembled together, shall
constitute signatures to this entire agreement with the same effect as if all
signatures were on the same document.
10. This Assumption Agreement shall be governed by and construed in
accordance with the internal laws of the State of Nevada without regard to
principles of conflicts of law. Borrowers further agree that the full and
exclusive forum for the determination of any action relating to this
Assumption Agreement, the Loan Documents, or any other document or instrument
delivered in favor of Banks pursuant to the terms hereof shall be either an
appropriate Court of the State of Nevada or the United States District Court or
United States Bankruptcy Court for the District of Nevada, except that an
action to foreclose the Water Rights Deed of Trust (California) may be
brought in any state or federal court in San Bernardino County, California,
and the Borrowers hereby irrevocably submit to the jurisdiction thereof.
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11. Any amendment or waiver of any provision of this Assumption Agreement
shall be in writing and signed by the parties hereto. No failure or delay by
either party hereto in exercising any right, power or privilege hereunder shall
operate as a waiver thereof and any waiver of any breach of the provisions of
this Assumption Agreement shall be without prejudice to any rights with respect
to any other or further breach thereof.
IN WITNESS WHEREOF, the parties hereto have executed the foregoing
Assumption Agreement as of the day and year first above written.
BORROWERS:
PRIMADONNA RESORTS, INC.,
a Nevada corporation
By__________________________
Name________________________
Title_______________________
THE PRIMADONNA CORPORATION, a Nevada corporation
By__________________________
Name________________________
Title_______________________
AGENT BANK:
XXXXX FARGO BANK,
National Association
By__________________________
Name________________________
Title_______________________
ASSUMING LENDERS:
XXXXX FARGO BANK,
National Association
By__________________________
Name________________________
Title_______________________
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U.S. BANK NATIONAL
ASSOCIATION
By__________________________
Name________________________
Title_______________________
FIRST HAWAIIAN BANK
By__________________________
Name________________________
Title_______________________
ABN AMRO BANK
By__________________________
Name________________________
Title_______________________
By__________________________
Name________________________
Title_______________________
BANK OF AMERICA NATIONAL
TRUST AND SAVINGS
ASSOCIATION
By__________________________
Name________________________
Title_______________________
00
XXX XXXX XX XXXX XXXXXX
By__________________________
Name________________________
Title_______________________
KEYBANK NATIONAL ASSOCIATION
By__________________________
Name________________________
Title_______________________
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0xxxxxx.xx/xxxx00000000xxx0xxxxxx.xx/xxxx00000000xxx
