1
EXHIBIT 4.50
AMENDED AND RESTATED CREDIT FACILITY AGREEMENT,
dated as of November 12, 1997,
among
HORSESHOE GAMING, L.L.C.,
as the Borrower,
and
CERTAIN COMMERCIAL LENDING INSTITUTIONS,
as the Lenders,
and
CANADIAN IMPERIAL BANK OF COMMERCE,
as the Agent for the Lenders,
and
CIBC XXXXXXXXXXX CORP.,
as the Arranger.
2
TABLE OF CONTENTS
PAGE
----
I DEFINITIONS AND ACCOUNTING TERMS
1.1. Defined Terms...........................................................2
1.2. Use of Defined Terms...................................................28
1.3. Cross-References.......................................................28
1.4. Accounting and Financial Determinations................................28
II COMMITMENTS, BORROWING PROCEDURES AND NOTES
2.1. Commitments............................................................28
2.1.1. Revolving Loan Commitment of Each Lender...............................28
2.1.2. Swing Loan Commitment..................................................29
2.1.3. Lenders Not Permitted or Required To Make Loans........................29
2.2. Reduction of Commitment Amounts........................................29
2.2.1. Optional...............................................................29
2.2.2. Mandatory..............................................................30
2.2.3. Special Letter of Credit Provisions....................................30
2.3. Borrowing Procedure....................................................31
2.3.1. Revolving Loans........................................................31
2.3.2. Swing Loans............................................................31
2.4. Continuation and Conversion Elections..................................32
2.5. Funding................................................................32
2.6. Notes..................................................................33
2.7. Letter of Credit Procedure.............................................33
2.8. Increase in the Revolving Loan Commitment Amount.......................34
III REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
3.1. Repayments and Prepayments.............................................35
3.1.1. Payment Terms..........................................................35
3.1.2. Special Swing Loan Provisions..........................................37
3.1.3. Post Default Application of Payments...................................38
3.2. Interest Provisions....................................................38
3.2.1. Rates..................................................................38
3.2.2. Post-Maturity Rates....................................................39
3.2.3. Payment Dates..........................................................39
3.3. Fees...................................................................40
3.3.1. Commitment Fee.........................................................40
3.3.2. Upfront Fees...........................................................40
3.3.3. Agent's Fee............................................................40
3.3.4. Letter of Credit Fees..................................................40
3.4. Agreement to Repay Letter of Credit Drawings with Revolving
Loans..................................................................40
3.5. Letter of Credit Participations........................................41
3.6. Repurchase of Notes at the Option of the Lender Upon a Change of
Control................................................................43
3
PAGE
----
IV CERTAIN EURODOLLAR RATE AND OTHER PROVISIONS
4.1. Eurodollar Rate Lending Unlawful.......................................45
4.2. Deposits Unavailable...................................................45
4.3. Increased Costs, etc...................................................46
4.4. Funding Losses.........................................................46
4.5. Increased Capital Costs................................................47
4.6. Taxes..................................................................47
4.7. Payments, Computations, etc............................................48
4.8. Sharing of Payments....................................................49
4.9. Setoff.................................................................50
4.10. Use of Proceeds........................................................50
4.11. Discretion of Lenders as to Manner of Funding..........................50
4.12. Substitution...........................................................51
V CONDITIONS TO BORROWING
5.1. Initial Borrowing......................................................51
5.1.1. Resolutions, etc.......................................................51
5.1.2. Delivery of Notes......................................................53
5.1.3. Guarantees.............................................................53
5.1.4. Payment of Outstanding Indebtedness, etc...............................54
5.1.5. Borrower Pledge Agreement..............................................54
5.1.6. JBB Pledge Agreement...................................................54
5.1.7. Security Agreement.....................................................54
5.1.8. Deed of Trust..........................................................55
5.1.9. Surveys................................................................55
5.1.10. Appraisals.............................................................55
5.1.11. Environmental Audit....................................................56
5.1.12. RPG First Preferred Ship Mortgage......................................56
5.1.13. Amended and Restated Note Assignment...................................56
5.1.14. Consents, etc..........................................................57
5.1.15. Insurance Coverages....................................................58
5.1.16. Solvency...............................................................58
5.1.17. Opinions of Counsel....................................................58
5.1.18. Other Debt Documentation...............................................58
5.1.19. Intercreditor Agreement................................................58
5.1.20. Closing Fees, Expenses, etc............................................58
5.2. All Borrowings.........................................................58
5.2.1. Compliance with Warranties, No Default, etc ...........................59
5.2.2. Borrowing Request......................................................59
5.2.3. Satisfactory Legal Form................................................60
VI REPRESENTATIONS AND WARRANTIES
6.1. Organization, etc......................................................60
6.2. Due Authorization, Non-Contravention, etc..............................61
6.3. Government Approval, Regulation, etc...................................61
6.4. Validity, etc..........................................................61
6.5. Financial Information..................................................61
6.6. No Material Adverse Change.............................................62
6.7. Litigation, Labor Controversies, etc...................................62
6.8. Subsidiaries...........................................................62
6.9. Ownership of Properties................................................62
4
PAGE
----
6.10. Compliance.............................................................63
6.11. Taxes..................................................................63
6.12. Pension and Welfare Plans..............................................63
6.13. Environmental Warranties...............................................63
6.14. HE Notes...............................................................65
6.15. Senior Debt............................................................65
6.16. Regulations G, U and X.................................................65
6.17. Accuracy of Information................................................65
VII COVENANTS
7.1. Affirmative Covenants..................................................66
7.1.1. Financial Information, Reports, Notices, etc...........................66
7.1.2. Compliance with Laws, etc..............................................69
7.1.3. Maintenance of Properties..............................................69
7.1.4. Insurance..............................................................70
7.1.5. Books and Records......................................................70
7.1.6. Environmental Covenant.................................................70
7.1.7. Maintenance of Existence...............................................71
7.1.8. Gaming and Liquor Licenses.............................................71
7.1.9. Accuracy of Information................................................71
7.1.10. Additional Guarantees and Collateral Documentation.....................71
7.1.11. Additional HE Pledges..................................................72
7.1.12. Additional HE or RPG Notes.............................................72
7.1.13. Outstandings Under This Agreement......................................72
7.2. Negative Covenants.....................................................72
7.2.1. Business Activities....................................................72
7.2.2. Indebtedness...........................................................72
7.2.3. Liens..................................................................74
7.2.4. Financial Condition....................................................76
7.2.5. Investments ...........................................................76
7.2.6. Restricted Payments, etc...............................................77
7.2.7. Capital Expenditures...................................................79
7.2.8. Rental Obligations.....................................................80
7.2.9. Consolidation, Merger, etc.............................................80
7.2.10. Asset Dispositions, etc................................................80
7.2.11. Modification of Certain Agreements.....................................81
7.2.12. Transactions with Affiliates...........................................81
7.2.13. Negative Pledges, Restrictive Agreements, etc..........................81
VIII EVENTS OF DEFAULT
8.1. Listing of Events of Default...........................................82
8.1.1. Non-Payment of Obligations.............................................82
8.1.2. Breach of Warranty.....................................................82
8.1.3. Non-Performance of Certain Covenants and Obligations ..................82
8.1.4. Non-Performance of Other Covenants and Obligations.....................82
8.1.5. Default on Other Indebtedness..........................................82
8.1.6. Judgments..............................................................83
8.1.7. Pension Plans..........................................................83
5
PAGE
----
8.1.8. Bankruptcy, Insolvency, etc............................................83
8.1.9. Impairment of Security, etc............................................84
8.1.10. Gaming License. ......................................................84
8.1.11. Government Approvals. ................................................84
8.1.12. Liens on Shares of Significant Subsidiaries. .........................85
8.2. Action if Bankruptcy...................................................85
8.3. Action if Other Event of Default.......................................85
IX THE AGENT
9.1. Actions................................................................86
9.2. Funding Reliance, etc..................................................86
9.3. Exculpation............................................................87
9.4. Successor..............................................................87
9.5. Credit Decisions.......................................................88
9.6. Copies, etc............................................................88
9.7. Co-Agents..............................................................88
X MISCELLANEOUS PROVISIONS
10.1. Waivers, Amendments, etc...............................................89
10.2. Notices................................................................90
10.3. Payment of Costs and Expenses..........................................90
10.4. Indemnification........................................................91
10.5. Survival...............................................................93
10.6. Severability...........................................................93
10.7. Headings ..............................................................93
10.8. Execution in Counterparts, Effectiveness, etc. .......................93
10.9. Governing Law; Entire Agreement........................................93
10.10. Successors and Assigns.................................................94
10.11. Sale and Transfer of Loans and Notes; Participations in Loans and
Notes..................................................................94
10.11.1. Assignments............................................................94
10.11.2. Participations.........................................................96
10.12. Other Transactions.....................................................97
10.13. Removal of a Lender....................................................97
10.14. Nonrecourse............................................................98
10.15. Waiver of Jury Trial...................................................98
10.16. Amendment and Restatement..............................................99
SCHEDULE I - Revolving Percentages
SCHEDULE II - Disclosure Schedule
SCHEDULE III - Insurance Coverage
EXHIBIT A - Form of Note
EXHIBIT B - Form of Swingline Note
EXHIBIT C - Form of Borrowing Request
EXHIBIT D - Form of Continuation/Conversion Notice
EXHIBIT E - Form of Lender Assignment Agreement
EXHIBIT F - Form of Opinions of Counsel to the Borrower
EXHIBIT G - Form of Guarantee and Security Agreement
EXHIBIT H - Form of Intercreditor Agreement
6
EXHIBIT I - Form of Compliance Certificate
EXHIBIT J - Form of Borrower Pledge Agreement
EXHIBIT K - Form of Certificate of Solvency
7
AMENDED AND RESTATED CREDIT FACILITY AGREEMENT
This AMENDED AND RESTATED CREDIT FACILITY AGREEMENT (this "Agreement")
is dated as of November 12, 1997, among HORSESHOE GAMING, L.L.C., a Delaware
limited liability company (the "Borrower"), the various financial institutions
as are or may become parties hereto (collectively, the "Lenders"), CIBC INC.
("CIBC Inc."), as Swingline Lender, CANADIAN IMPERIAL BANK OF COMMERCE ("CIBC"),
as agent for the Lenders (herein, in such capacity, called the "Agent") and CIBC
XXXXXXXXXXX CORP., as arranger (herein, in such capacity called the "Arranger").
W I T N E S S E T H:
WHEREAS, pursuant to a Senior Secured Credit Facility Note Purchase
Agreement dated as of October 10, 1995, as amended prior to the date hereof (as
so amended, the "Note Purchase Agreement") among, inter alia, the Borrower,
Xxxxxxxx Property Group Limited Partnership, a Mississippi limited partnership
("RPG") and debis Financial Services, Inc. and other financial institutions
(collectively, the "Note Purchasers" and each, individually, a "Note
Purchaser"), each of the Note Purchasers has purchased one or more of the Senior
Secured Credit Facility Notes due September 30, 1999 (each an "Existing Note")
issued by the Borrower;
WHEREAS, pursuant to a Guaranty and Security Agreement dated as of
October 10, 1995 (the "RPG Guaranty and Security Agreement"), RPG has
unconditionally guaranteed the obligations of the Borrower in respect of the
Existing Notes;
WHEREAS, the obligations of the Borrower and RPG under the Note Purchase
Agreement and the RPG Guaranty and Security Agreement were secured by various
mortgages, deeds of trust, first preferred ship mortgages and other collateral
more particularly described therein (collectively, the "Security Documents");
WHEREAS, pursuant to that certain letter agreement dated as of the date
hereof among the Note Purchasers and CIBC, the Note Purchasers assigned to CIBC
all of the rights, duties and obligations of the remaining Note Purchasers in
connection with the Note Purchase Agreement, the Security Documents and the
documents executed in connection therewith;
WHEREAS, the parties hereto wish to amend and restate their respective
obligations under the Note Purchase Agreement on the
8
terms, and subject to the conditions set forth herein, and the parties expressly
disclaim any intent to effect a novation or extinguishment or discharge of the
Note Purchase Agreement or discharge of any obligations under the Existing Notes
and the Security Documents as a result of entering into this Agreement and the
other documents contemplated herein;
WHEREAS, the Borrower desires to obtain Commitments from the Lenders
pursuant to which Loans and Letters of Credit, in a maximum aggregate principal
amount at any one time outstanding not to exceed $130,000,000 (subject to
increase pursuant to Section 2.8), will be made to, or issued for the account
of, the Borrower from time to time prior to the Commitment Termination Date; and
WHEREAS, the Lenders are willing, on the terms and subject to the
conditions hereinafter set forth (including Article V), to extend such
Commitments and make such Loans to the Borrower and to issue Letters of Credit
for the account of the Borrower or for the account of the Borrower and one or
more of its subsidiaries;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION I.1. Defined Terms. The following terms (whether or not
underscored) when used in this Agreement, including its preamble and recitals,
shall, except where the context otherwise requires, have the following meanings
(such meanings to be equally applicable to the singular and plural forms
thereof):
"Affiliate" of any Person means any other Person which, directly or
indirectly, controls, is controlled by or is under common control with such
Person (excluding any trustee under, or any committee with responsibility for
administering, any Plan). A Person shall be deemed to be "controlled by" any
other Person if such other Person possesses, directly or indirectly, power
(a) to vote 10% or more of the securities (on a fully diluted
basis) having ordinary voting power for the election of directors or
managing general partners; or
(b) to direct or cause the direction of the management
-2-
9
and policies of such Person whether by contract or otherwise.
"Agent" is defined in the preamble and includes each other Person as
shall have subsequently been appointed as the successor Agent pursuant to
Section 9.4.
"Agreement" means, on any date, this Credit Agreement as originally in
effect on the Effective Date and as thereafter from time to time amended,
supplemented, amended and restated, or otherwise modified and in effect on such
date.
"Alternate Base Rate" means, on any date and with respect to all Base
Rate Loans, a fluctuating rate of interest per annum equal to the higher of
(a) the rate of interest most recently announced by the Agent at
its Domestic Office as its reference rate; and
(b) the Federal Funds Rate most recently determined by the Agent
(calculated on a 365-day basis) plus 50 basis points.
The Alternate Base Rate is not necessarily intended to be the lowest rate of
interest determined by the Agent or any other Lender in connection with
extensions of credit. Changes in the rate of interest on that portion of any
Loans maintained as Base Rate Loans will take effect simultaneously with each
change in the Alternate Base Rate. The Agent will give notice promptly to the
Borrower and the Lenders of changes in the Alternate Base Rate.
"Amended and Restated Note Assignment" means that certain Amended and
Restated Note Agreement of even date herewith executed by the Borrower in favor
of Agent, as the same may be amended, supplemented, restated or otherwise
modified from time to time, pursuant to which the HE Notes and the RPG Notes
have been pledged to the Agent.
"Applicable Base Rate Margin" is the rate per annum determined by
reference to the definition of the term "Applicable Margin."
"Applicable Eurodollar Rate Margin" is the rate per annum determined by
reference to the definition of the term "Applicable
-3-
10
Margin."
"Applicable Margin" means, in the case of any Base Rate Loan or
Eurodollar Rate Loan, a rate per annum determined by reference to the Borrower's
Leverage Ratio as follows (expressed in basis points):
Applicable Base Applicable Eurodollar Commitment
Leverage Ratio Rate Margin Rate Margin Fee
-------------- --------------- --------------------- ----------
Less than 1.75 0.00 100.00 37.50
Greater than or 25.00 125.00 37.50
equal to 1.75,
but less than 2.25
Greater than or 50.00 150.00 37.50
equal to 2.25,
but less than 2.75
Greater than or 75.00 175.00 43.75
equal to 2.75,
but less than 3.25
3.25 or greater 100.00 200.00 50.00
The "Applicable Base Rate Margin" and the "Applicable Eurodollar Rate Margin"
shall be adjusted on the first day of each March, June, September and December
(or, if such day is not a Business Day, on the next succeeding Business Day),
based on the Leverage Ratio as of the last day of the preceding Fiscal Quarter.
If the Borrower should fail to deliver in a timely manner a certificate required
under Section 7.1.1(e) hereof, then, until the Borrower shall have provided such
certificate, it shall be presumed that the Leverage Ratio as of the end of the
preceding Fiscal Quarter was greater than 3.25 (and, from the date of the
delivery of such certificate, the Applicable Margin for all Base Rate Loans and
Eurodollar Rate Loans shall be determined by reference to such certificate).
"Arranger" is defined in the preamble.
"Assignee Lender" is defined in Section 10.11.1.
"Assignment of Deed of Trust" means that certain
-4-
11
Assignment of Deed of Trust, Security Agreement and Assignment of Leases and
Rents dated as of the date hereof from remaining Note Purchaser to the Agent.
"Assignment of HE Security Agreement" means that certain Assignment, of
even date herewith, from the remaining Note Purchaser in favor of the Agent and
covering all right, title and interest of the Note Purchasers under the HE
Security Agreement.
"Assignments of HE Mortgages" means those certain Assignments of
Mortgage, Security Agreement and Assignment of Leases and Rents dated as of the
date hereof from the remaining Note Purchaser to the Agent.
"Assignment of Tunica County Security Agreement" means that certain
assignment, of even date herewith, from the remaining Note Purchaser in favor of
the Agent and covering all
right, title and interest of the Note Purchasers under the Tunica County
Security Agreement.
"Authorized Officer" means, relative to the Borrower, until the Borrower
notifies the Agent to the contrary, those of its officers whose signatures and
incumbency shall have been certified to the Agent and the Lenders pursuant to
Section 5.1.1.
"Base Rate Loan" means a Loan bearing interest at a fluctuating rate
determined by reference to the Alternate Base Rate.
"Board of Managers" means, with respect to any Person that is a limited
liability company, either the sole Manager of such Person or, if there is more
than one Manager, the Managers of such Person, acting as a group, or any
committee of the Managers of such Person authorized, with respect to any
particular matter, to exercise the power of the Managers.
"Borrower" is defined in the preamble.
"Borrower Pledge Agreement" means that certain Pledge Agreement executed
and delivered by the Borrower pursuant to Section 5.1.5, in substantially the
form of Exhibit J hereto and otherwise in form and substance satisfactory to the
Agent, as amended, supplemented, restated or otherwise modified from time to
time.
"Borrowing" means the Loans of the same Type made by all
-5-
12
Lenders on the same Business Day and pursuant to the same Borrowing Request in
accordance with Section 2.3.
"Borrowing Request" means a loan request and certificate duly executed
by an Authorized Officer of the Borrower, substantially in the form of Exhibit C
hereto.
"Bossier Casino" means the Horseshoe casino, hotel and dockside
facilities owned by HE and located in Bossier City, Louisiana.
"Business Day" means
(a) any day which is neither a Saturday or Sunday nor a legal
holiday on which banks are authorized or required to be closed in New
York, New York; and
(b) relative to the making, continuing, prepaying or repaying of
any Eurodollar Rate Loans, any day on which dealings in Dollars are
arranged in the London Eurodollar interbank market.
"Capital" means, (i) with respect to any corporation, any and all shares
of stock issued by that corporation and (ii) with respect to any other Person,
any partnership interest, joint venture interest, limited liability company
member interest or other form of equity sharing or participation interest, as
applicable and (iii) warrants, options, participations or other equivalents of
or interests (however designated) in any of the items described in clause (i) or
(ii) above.
"Capital Expenditures" means, for any period, without duplication, the
sum of
(a) the aggregate amount of all expenditures of the Borrower and
its Subsidiaries for fixed or capital assets (including, without
limitation, capital stock) made during such period which, in accordance
with GAAP, would be classified as capital expenditures; and
(b) the aggregate amount of all Capitalized Lease Liabilities
incurred during such period.
"Capitalized Lease Liabilities" means all monetary obligations of the
Borrower or any of its Subsidiaries under any leasing or similar arrangement
which, in accordance with GAAP,
-6-
13
would be classified as capitalized leases, and, for purposes of this Agreement
and each other Loan Document, the amount of such obligations shall be the
capitalized amount thereof, determined in accordance with GAAP, and the stated
maturity thereof shall be the date of the last payment of rent or any other
amount due under such lease prior to the first date upon which such lease may be
terminated by the lessee without payment of a penalty.
"Cash Equivalent Investment" means (i) securities issued or directly and
fully guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States of America is pledged in support thereof), (ii) time deposits and
certificates of deposit having a maturity not greater than one year of any
domestic commercial bank, or U.S. branch of a foreign bank, of recognized
standing having capital and surplus in excess of five hundred million dollars
($500,000,000), and time deposits and certificates of deposit having a maturity
not greater than one year of other banks located in jurisdictions where the
Borrower and its Subsidiaries do business; provided, however, the aggregate
amount of all time deposits and certificates of deposit of such other banks may
not exceed five million dollars ($5,000,000), (iii) commercial paper rated at
the time of purchase at least A-2 or the equivalent thereof by Standard & Poor's
Corporation or at least P-2 or the equivalent thereof by Xxxxx'x Investors
Service, Inc. and maturing within one year after the date of acquisition, (iv)
repurchase obligations with a term of not more than ten (10) days for underlying
securities of the types described in clause (i) above entered into with any bank
meeting the qualifications specified in clause (ii) above, (v) marketable
obligations issued by any state of the United States of America or any political
subdivision of any such state or any public instrumentality thereof maturing, or
payable at the demand of the holder thereof, within one year from the date of
acquisition thereof and, at the time of acquisition, having one of the three
highest ratings obtainable from either Standard & Poor's Corporation or Xxxxx'x
Investors Service, Inc., and (vi) investments in money market funds
substantially all of whose assets comprise securities of the types described in
clauses (i) through (v) above.
"Casino" means any gaming establishment and other property or assets
directly ancillary thereto or used in connection therewith including any
building, restaurant, hotel, theater, parking facilities, retail shops, land,
golf courses and other recreation and entertainment facilities, marina vessel,
barge,
-7-
14
ship and equipment.
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended.
"CERCLIS" means the Comprehensive Environmental Response Compensation
Liability Information System List.
"Change of Control" means
(a) the failure of Xxxx X. Xxxxxx, Xxxxxxx Xxxx and their family
members and Affiliates to own, free and clear of all Liens or other
encumbrances, 60% of the outstanding shares of HGI on a fully diluted
basis or the failure of such Persons to control HGI; or
(b) the failure of Xxxx X. Xxxxxx, Xxxxxxx Xxxx and their family
members and Affiliates to own directly or through HGI, free and clear of
all Liens or other encumbrances, at least 51% of the outstanding shares
of voting stock of the Borrower on a fully diluted basis; or
(c) HGI shall cease to serve as the manager of the Borrower.
"Change of Control Offer" is defined in Section 3.6.
"Change of Control Offer Period" is defined in Section 3.6.
"Change of Control Offer Price" is defined in Section 3.6.
"Change of Control Payment Date" is defined in Section 3.6.
"Change of Control Put Date" is defined in Section 3.6.
"CIBC" is defined in the preamble.
"CIBC Inc." is defined in the preamble.
"Code" means the Internal Revenue Code of 1986, as amended, reformed or
otherwise modified from time to time.
"Collateral" means, collectively, the Pledged Casinos, the vessel
subject to the RPG First Preferred Ship Mortgage, the
-8-
15
collateral described in the HE Collateral Documents, the Security Agreement, the
Guarantees, the JBB Pledge Agreement, the Amended and Restated Note Assignment
and the Borrower Pledge Agreement, all property pledged pursuant to Section
7.1.10 and all other property and interests pledged from time to time as
collateral security for the Obligations.
"Commitment" means, as the context may require, a Lender's Revolving
Loan Commitment or the Swingline Lender's Swingline Commitment.
"Commitment Amount" means, as the context may require, the Revolving
Loan Commitment Amount or the Swing Loan Commitment Amount.
"Commitment Fee" is defined in Section 3.3.1.
"Commitment Termination Date" means the earliest of
(a) the Stated Maturity Date;
(b) the date on which the Commitment Amount is terminated in full
or reduced to zero pursuant to Section 2.2; and
(c) the date on which any Commitment Termination Event occurs.
Upon the occurrence of any event described in clause (b) or (c), the Commitments
shall terminate automatically and without further action.
"Commitment Termination Event" means
(a) the occurrence of any Default described in clauses (a)
through (d) of Section 8.1.8 with respect to the Borrower or any
Significant Subsidiary; or
(b) the occurrence and continuance of any other Event of Default
and either
(i) the declaration of the Loans to be due and payable
pursuant to Section 8.3, or
(ii) in the absence of such declaration, the giving of
notice by the Agent, acting at the direction
-9-
16
of the Required Lenders, to the Borrower that the Commitments have
been terminated.
"Consolidated Earnings After Permitted Tax Distributions" means the
Borrower's net income for any Fiscal Quarter minus, so long as the Borrower
shall be a limited liability company, the Permitted Tax Distributions for such
Fiscal Quarter.
"Consolidated Net Worth" means the consolidated net worth of the
Borrower and its Subsidiaries.
"Contingent Liability" means any agreement, undertaking or arrangement
by which any Person guarantees, endorses or otherwise becomes or is contingently
liable upon (by direct or indirect agreement, contingent or otherwise, to
provide funds for payment, to supply funds to, or otherwise to invest in, a
debtor, or otherwise to assure a creditor against loss) the indebtedness,
obligation or any other liability of any other Person (other than by
endorsements of instruments in the course of collection), or guarantees the
payment of dividends or other distributions upon the shares of any other Person,
including, without limitation, any "keep well" obligation or completion guaranty
other than the Borrower's completion guaranty given in connection with the
Vicksburg Joint Venture. The amount of any Person's obligation under any
Contingent Liability shall (subject to any limitation set forth therein) be
deemed to be the outstanding principal amount (or maximum principal amount, if
larger) of the debt, obligation or other liability guaranteed thereby; provided,
however, that to the extent that such Person's obligation consists only of a
Lien to which the property or assets (including, without limitation, leasehold
interests and any other tangible or intangible property rights) of such Person
are subject, the amount of such obligation shall be deemed to be the lesser of
the fair market value of the assets or property to which such Lien attaches and
the amount of the obligation so secured.
"Continuation/Conversion Notice" means a notice of continuation or
conversion and certificate duly executed by an Authorized Officer of the
Borrower, substantially in the form of Exhibit D hereto.
"Controlled Group" means all members of a controlled group of
corporations and all members of a controlled group of trades or businesses
(whether or not incorporated) under common control which, together with the
Borrower, are treated as a single
-10-
17
employer under Section 414(b) or 414(c) of the Code or Section 4001 of ERISA.
"Deed of Trust" means the Deed of Trust, Security Agreement and
Assignment of Leases and Rents dated as of October 2, 1995 covering the fee
simple real properties comprising the Tunica Casino, as assigned to the Agent
pursuant to the Assignment of Deed of Trust to be executed and delivered
pursuant to Section 5.1.8 and as amended, supplemented, restated or otherwise
modified from time to time.
"Default" means any Event of Default or any condition, occurrence or
event which, after notice or lapse of time or both, would constitute an Event of
Default.
"Disclosure Schedule" means the Disclosure Schedule attached hereto as
Schedule II, as it may be amended, supplemented or otherwise modified from time
to time by the Borrower with the written consent of the Agent and the Required
Lenders.
"Dollar" and the sign "$" mean lawful money of the United States.
"Domestic Office" means, relative to any Lender, the office of such
Lender designated as such below its signature hereto or designated in the Lender
Assignment Agreement or such other office of a Lender (or any successor or
assign of such Lender) within the United States as may be designated from time
to time by notice from such Lender, as the case may be, to each other Person
party hereto.
"EBITDA" means, for any period, the net income of the Borrower and its
consolidated Subsidiaries plus the Borrower and its consolidated Subsidiaries'
interest expense (such expense not to be net of interest income), income taxes
(if incurred), depreciation, amortization and other non-cash (including any SEC
Valuation Adjustment) or non-recurring expenses and, without duplication, cash
dividends received from any Unrestricted Subsidiary, minus any non-cash or
non-recurring gains of the Borrower and its consolidated Subsidiaries,
calculated on a rolling four-quarter basis at the end of each Fiscal Quarter.
"Effective Date" means the date this Agreement becomes effective
pursuant to Section 10.8.
"Eligible Assignee" means (I) (a) a financial institution organized
under the laws of the United States, or any state
-11-
18
thereof, and having a combined capital and surplus of at least $100,000,000; (b)
a commercial bank organized under the laws of any other country which is a
member of the Organization for Economic Cooperation and Development (the
"OECD"), or a political subdivision of any such country, and having a combined
capital and surplus of at least $100,000,000, provided that such bank is acting
through a branch or agency located in the United States of America; or (c) a
Person that is engaged in the business of commercial finance and that is (i) a
Subsidiary of a Lender, (ii) a Subsidiary of a Person of which a Lender is a
Subsidiary, or (iii) a Person of which a Lender is a Subsidiary; and (II) a
Person that is, to the extent required under applicable Gaming Laws, registered
with, approved by, or not disapproved by (whichever may be required under
applicable Gaming Laws), all applicable Gaming Boards.
"Environmental Laws" means all applicable federal, state or local
statutes, laws, ordinances, codes, rules, regulations and published guidelines
(including consent decrees and administrative orders) relating to public health
and safety and protection of the environment.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and any successor statute of similar import, together with the
regulations thereunder, in each case as in effect from time to time. References
to sections of ERISA also refer to any successor sections.
"Eurodollar Office" means, relative to any Lender, the office of such
Lender designated as such below its signature hereto or designated in the Lender
Assignment Agreement or such other office of a Lender as designated from time to
time by notice from such Lender to the Borrower and the Agent, whether or not
outside the United States, which shall be making or maintaining Eurodollar Rate
Loans of such Lender hereunder.
"Eurodollar Rate" means, relative to the Interest Period for each
Eurodollar Rate Loan comprising all or any part of the same Borrowing, the rate
of interest equal to (a) the interest rate per annum for deposits in U.S.
dollars for a period approximately equal to such Interest Period which appears
on page 3750 of the Dow Xxxxx Telerate Screen as of 11:00 a.m. London time two
Business Days prior to the beginning of such Interest Period for delivery on the
first day of such Interest Period, or (b) if such a rate does not appear on page
3750 of the Dow Xxxxx Telerate Screen, the average (rounded upwards, if
necessary, to the
-12-
19
nearest 1/100 of 1%) of the rates per annum at which Dollar deposits in
immediately available funds are offered to the Agent in the interbank market as
at or about 11:00 a.m. New York time two Business Days prior to the beginning of
such Interest Period for delivery on the first day of such Interest Period, and
in an amount approximately equal to the total amount of such Eurodollar Rate
Loan comprising part of such Borrowing and for a period equal to such Interest
Period.
"Eurodollar Rate Loan" means a Loan bearing interest, at all times
during an Interest Period applicable to such Loan, at a fixed rate of interest
determined by reference to the Eurodollar Rate (Reserve Adjusted).
"Eurodollar Rate (Reserve Adjusted)" means, relative to any Loan to be
made, continued or maintained as, or converted into, a Eurodollar Rate Loan for
any Interest Period, a rate per annum (rounded upwards, if necessary, to the
nearest 1/100 of 1%) determined pursuant to the following formula:
Eurodollar Rate = Eurodollar Rate
------------------ ------------------------------------
(Reserve Adjusted) 1.00 - Eurodollar Reserve Percentage
The Eurodollar Rate (Reserve Adjusted) for the Interest Period for each
Eurodollar Rate Loan comprising part of the same Borrowing will be determined by
the Agent two Business Days before the first day of such Interest Period.
"Eurodollar Reserve Percentage" means, relative to each Interest Period,
a percentage (expressed as a decimal) equal to the daily average during such
Interest Period of the percentages in effect on each day of such Interest
Period, as prescribed by the F.R.S. Board, for determining the maximum aggregate
reserve requirements (including any emergency, supplemental or other marginal
reserve requirement) applicable to "Eurocurrency Liabilities" pursuant to
Regulation D or any other applicable regulation issued from time to time by the
F.R.S. Board which prescribes reserve requirements applicable to "Eurocurrency
Liabilities" as currently defined in Regulation D having a term approximately
equal or comparable to such Interest Period.
"Event of Default" is defined in Section 8.1.
"Existing Notes" is defined in the first recital.
"Existing Senior Notes" means the $137,000,000 of 12.75%
-13-
20
Senior Notes due 2000 of the Borrower outstanding under the Senior Note
Indenture.
"Existing Subordinated Debt" means the $160,000,000 of 9.375% Senior
Subordinated Notes due 2007 of the Borrower outstanding under the Subordinated
Debt Indenture.
"Expansion Capital Expenditures" means any Capital Expenditure of the
Borrower or any of its Subsidiaries made with respect to any Related Business
that is, or after giving effect to such expenditures will be, (a) owned by the
Borrower, HE or a Guarantor or (b) which further expands or enhances the Pledgor
Casinos and which is not properly characterized as a Maintenance Capital
Expenditure.
"Federal Funds Rate" means, for any period, a fluctuating interest rate
per annum equal for each day during such period to
(a) the weighted average of the rates on overnight federal funds
transactions with members of the Federal Reserve System arranged by
federal funds brokers, as published for such day (or, if such day is not
a Business Day, for the next preceding Business Day) by the Federal
Reserve Bank of New York; or
(b) if such rate is not so published for any day which is a
Business Day, the average of the quotations for such day on such
transactions received by the Agent from three federal funds brokers of
recognized standing selected by it.
"First Preferred Ship Mortgages" means the HE First Preferred Ship
Mortgage and the RPG First Preferred Ship Mortgage.
"Fiscal Quarter" means any quarter of a Fiscal Year.
"Fiscal Year" means any period of twelve consecutive calendar months
ending on December 31; references to a Fiscal Year with a number corresponding
to any calendar year (e.g. the "1996 Fiscal Year") refer to the Fiscal Year
ending on December 31, 1996.
"Fixed Charge Coverage Ratio" means the ratio of (a) twelve-month
trailing EBITDA minus Maintenance Capital Expenditures during such period to (b)
the sum of (i) the Borrower's and its Subsidiaries' consolidated interest
expense and capitalized
-14-
21
interest expense (exclusive of interest income) (each as defined under GAAP) for
such twelve-month period, plus (ii) all mandatory principal payments required to
be made by the Borrower or any of its Subsidiaries (whether or not such payments
are actually made) for such twelve-month period plus (iii) provision for taxes
and, without duplication, so long as the Borrower shall be a limited liability
company, Permitted Tax Distributions for such twelve-month period plus (iv) all
dividends and distributions paid on any membership interest (or, if the Borrower
shall cease to be a limited liability company, shares of capital stock) of the
Borrower and all redemptions and repurchases of any membership interest (or, if
the Borrower shall cease to be a limited liability company, shares of capital
stock) of the Borrower during such twelve month period (exclusive of (A) the
amount of dividends and distributions by the Borrower pursuant to clause (a) of
the definition of Permitted Distribution Amount and (B) up to $10,000,000 to
redeem or repurchase the minority limited partnership interests in HE) plus (v)
all Investments during such twelve month period (exclusive of any Investments
pursuant to clause (a) of the definition of "Permitted Distribution Amount").
"Fronting Fee" is defined in Section 3.3.4.
"F.R.S. Board" means the Board of Governors of the Federal Reserve
System or any successor thereto.
"Funded Debt" means the consolidated Indebtedness of the Borrower and
its Subsidiaries of the nature referred to in clauses (a), (b), (c), (f) and (g)
of the definition of "Indebtedness".
"GAAP" is defined in Section 1.4.
"Gaming Board" means any governmental agency that holds regulatory,
licensing or permit authority over gambling, gaming or Casino activities
conducted by the Borrower or any of its Subsidiaries within its jurisdiction.
"Gaming Laws" means all Laws pursuant to which any Gaming Board
possesses regulatory, licensing or permit authority over gambling, gaming or
Casino activities conducted by the Borrower or any of its Subsidiaries within
its jurisdiction.
"Guarantees" means the guarantee and security agreements dated the date
hereof executed and delivered by the Guarantors
-15-
22
pursuant to Section 5.1.3, and any guarantee and security agreement executed and
delivered by a Significant Subsidiary pursuant to Section 7.1.10 hereof, each of
which shall be substantially in the form of Exhibit G hereto, as amended,
supplemented, restated or otherwise modified from time to time.
"Guarantors" means, collectively, HGI, HGP, RPG, NGCP and Horseshoe
Ventures, any other Significant Subsidiary of the Borrower (except HE) and any
other Person that executes a Guarantee pursuant to the provisions of Section
7.1.10.
"Hazardous Material" means
(a) any "hazardous substance", as defined by CERCLA;
(b) any "hazardous waste", as defined by the Resource
Conservation and Recovery Act, as amended;
(c) any petroleum product; or
(d) any pollutant or contaminant or hazardous, dangerous or toxic
chemical, material or substance within the meaning of any other
applicable federal, state or local law, regulation, ordinance or
published guideline (including consent decrees and administrative
orders) relating to or imposing liability or standards of conduct
concerning any hazardous, toxic or dangerous waste, substance or
material, all as amended or hereafter amended.
"HE" means Horseshoe Entertainment, L.P., a Louisiana limited
partnership.
"HE Collateral Documents" means the HE Mortgages, the HE First Preferred
Ship Mortgage, the HE Security Agreement and any other document or instrument
executed by HE as collateral security for HE's obligations under the HE Notes,
as the same may be amended, supplemented, restated or otherwise modified from
time to time.
"HE First Preferred Ship Mortgage" means that certain First Preferred
Ship Mortgage dated as of September 29, 1995 on the whole of the Queen of the
Red, which was assigned to the Agent pursuant to the terms of the HE First
Preferred Ship Mortgage Assignment, as the same may be further amended,
supplemented, restated or otherwise modified from time to time, and any first
preferred ship mortgage taken in substitution or
-16-
23
replacement of the foregoing (including, without limitation, any first preferred
ship mortgage on the King of the Red at such time as the Queen of the Red is
contributed to the Vicksburg Joint Venture or another similar transaction).
"HE First Preferred Ship Mortgage Assignment" means that certain
Assignment of First Preferred Ship Mortgage executed by the remaining Note
Purchaser in favor of the Agent.
"HE Mortgages" means those certain Mortgages, Security Agreements and
Assignments of Leases and Rents dated as of October 2, 1995, May 10, 1996 and
December 20, 1996 from HE in favor of the Borrower, as the same may be amended,
supplemented, restated or otherwise modified from time to time, which mortgages
(i) secure the obligations of HE under the HE Notes, (ii) have been assigned to
the Noteholders and (iii) will be assigned to the Agent pursuant to the
Assignment of the HE Mortgages.
"HE Notes" means those certain HE Intercompany Senior Notes dated
October 10, 1995, and due September 30, 2000 and dated June 15, 1997 and due
June 15, 2007, in the aggregate commitment amount of $300,000,000 from HE
payable to the Borrower and all other promissory notes, whether now existing or
hereinafter arising, from HE payable to the Borrower, as the same may be
amended, supplemented, restated or otherwise modified from time to time.
"HE Security Agreement" means that certain Security Agreement and
Exhibit A to UCC- 1 financing statement executed by HE in favor of the Borrower
and the Noteholders and filed with the Louisiana Secretary of State and in the
office of the Clerk and Record of the Parish of Bossier, Louisiana, as assigned
to the Note Purchasers, and as assigned to the Agent pursuant to the Assignment
of HE Security Agreement.
"Hedging Obligations" means, with respect to any Person, all obligations
of such Person pursuant to any interest rate swap agreement, interest rate cap
agreement, interest rate collar agreement, interest rate exchange agreement,
currency exchange agreement or any other agreement or arrangement designed to
protect against fluctuations in interest rates or currency values, including,
without limitation, any arrangement whereby, directly or indirectly, such Person
is entitled to receive from time to time periodic payments calculated by
applying either a fixed or floating rate of interest on a stated notional amount
in exchange for periodic payments made by such Person calculated by
-17-
24
applying a fixed or floating rate of interest on the same notional amount.
"herein", "hereof", "hereto", "hereunder" and similar terms contained in
this Agreement or any other Loan Document refer to this Agreement or such other
Loan Document, as the case may be, as a whole and not to any particular Section,
paragraph or provision of this Agreement or such other Loan Document.
"HGI" means Horseshoe Gaming, Inc., a Delaware corporation.
"HGP" means Horseshoe GP, Inc., a Nevada corporation.
"Horseshoe Ventures" means Horseshoe Ventures, L.L.C., a Delaware
limited liability company.
"Impermissible Qualification" means, relative to the opinion or
certification of any independent public accountant as to any financial statement
of any Obligor, any qualification or exception to such opinion or certification
(a) which is of a "going concern" or similar nature;
(b) which relates to the limited scope of examination of matters
relevant to such financial statement; or
(c) which relates to the treatment or classification of any item
in such financial statement and which, as a condition to its removal,
would require an adjustment to such item the effect of which would be to
cause the Borrower to be in default of any of its obligations under
Section 7.2.4.
"including" means including without limiting the generality of any
description preceding such term.
"Increasing Lenders" is defined in Section 2.8.
"Indebtedness" of any Person means, without duplication:
(a) all obligations of such Person for borrowed money and all
obligations of such Person evidenced by bonds, debentures, notes or
other similar instruments;
(b) all obligations, contingent or otherwise, relative
-18-
25
to the face amount of all letters of credit, whether or not drawn, and
banker's acceptances issued for the account of such Person;
(c) all obligations of such Person as lessee under leases which
have been or should be, in accordance with GAAP, recorded as Capitalized
Lease Liabilities;
(d) all other items which, in accordance with GAAP, would be
included as liabilities on the liability side of the balance sheet of
such Person as of the date at which Indebtedness is to be determined;
(e) net liabilities of such Person under all Hedging Obligations;
(f) whether or not so included as liabilities in accordance with
GAAP, all obligations of such Person to pay the deferred purchase price
of property or services, and
indebtedness (excluding prepaid interest thereon) secured by a Lien on
property owned or being purchased by such Person (including indebtedness
arising under conditional sales or other title retention agreements),
whether or not such indebtedness shall have been assumed by such Person
or is limited in recourse; and
(g) all Contingent Liabilities of such Person in respect of any
of the foregoing.
For all purposes of this Agreement, the Indebtedness of any Person shall include
the Indebtedness of any partnership or joint venture in which such Person is a
general partner or a joint venturer to the extent such Person is liable
therefor.
"Indemnified Liabilities" is defined in Section 10.4.
"Indemnified Parties" is defined in Section 10.4.
"Interest Period" means, relative to any Eurodollar Rate Loans, the
period beginning on (and including) the date on which such Eurodollar Rate Loan
is made or continued as, or converted into, a Eurodollar Rate Loan pursuant to
Section 2.3 or 2.5 and shall end on (but exclude) the day which numerically
corresponds to such date one, two, three or six months thereafter (or, if such
month has no numerically corresponding day, on the last Business Day of such
month) or for such other time period for
-19-
26
which the Agent shall determine that Dollar deposits are generally available in
the interbank market, in either case as the Borrower may select in its relevant
notice pursuant to Section 2.3 or 2.5; provided, however, that
(a) the Borrower shall not be permitted to select Interest
Periods to be in effect at any one time which have expiration dates
occurring on more than five different dates;
(b) Interest Periods commencing on the same date for Loans
comprising part of the same Borrowing shall be of the same duration;
(c) if such Interest Period would otherwise end on a day which is
not a Business Day, such Interest Period shall end on the next following
Business Day (unless such next following Business Day is the first
Business Day of a calendar month, in which case such Interest Period
shall end on the Business Day immediately preceding such numerically
corresponding day); and
(d) no Interest Period may end later than the date set forth in
clause (a) of the definition of "Commitment Termination Date".
"Investment" means any investment in any Person, whether by means of
share purchase, capital, equity, asset or similar contribution, loan, advance,
time deposit, Contingent Liability or otherwise (excluding (a) commission,
travel and similar advances to officers and employees made in the ordinary
course of business and consistent with past practice, (b) in the case of the
Borrower, loans and advances to officers and employees in an aggregate amount
not to exceed $7,500,000 and (c), in the case of HE, loans and advances to the
limited partners of HE in an aggregate amount not to exceed $7,500,000; provided
that the aggregate amount of loans and advances excluded pursuant to clauses (b)
and (c) shall in no event exceed $12,500,000). The amount of any Investment
shall be the original principal or capital amount thereof less all returns of
principal or equity thereon (and without adjustment by reason of the financial
condition of such other Person) and shall, if made by the transfer or exchange
of property other than cash, be deemed to have been made in an original
principal or capital amount equal to the fair market value of such property.
-20-
27
"JBB Gaming Investments, L.L.C." means JBB Gaming Investments, L.L.C., a
Delaware limited liability company.
"JBB Pledge Agreement" means that certain Pledge Agreement, executed and
delivered by JBB pursuant to Section 5.1.6, in form and substance satisfactory
to the Agent, as amended, supplemented, restated or otherwise modified from time
to time.
"L/C Fees" is defined in Section 3.3.4.
"L/C Issuer" shall mean CIBC, and its successors and assigns.
"Lender Assignment Agreement" means a Lender Assignment Agreement
substantially in the form of Exhibit E hereto.
"Lender Disqualification" means, with respect to any Lender:
(a) the failure of that Lender timely to file pursuant to
applicable Gaming Laws (i) any application requested of that Lender by
any Gaming Board in connection with any licensing required of that
Lender as a lender to the Borrower or (ii) any required application or
other papers in connection with the determination of the suitability of
that Lender as a lender to the Borrower;
(b) the withdrawal by that Lender (except where requested or
permitted by the Gaming Board) of any such application or other required
papers; or
(c) any final determination by a Gaming Board pursuant to
applicable Gaming Laws (i) that such Lender is "unsuitable" as a lender
to the Borrower, (ii) that such Lender shall be "disqualified" as a
lender to the Borrower or (iii) denying the issuance to such Lender of
any license required under applicable Gaming Laws to be held by all
lenders to the Borrower.
"Lenders" is defined in the preamble.
"Letter of Credit" means a standby letter of credit issued at the
request and for the account of the Borrower or for the account of the Borrower
and one or more of its Subsidiaries pursuant to Section 2.7.
-21-
28
"Leverage Ratio" means the ratio of (a) Funded Debt as of the last day
of any Fiscal Quarter to (b) twelve-month trailing EBITDA as of the last day of
such Fiscal Quarter.
"Lien" means any security interest, mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or otherwise),
charge against or interest in property to secure payment of a debt or
performance of an obligation or other priority or preferential arrangement of
any kind or nature whatsoever.
"Loan" means, as the context may require, a Revolving Loan or a Swing
Loan of any Type made hereunder.
"Loan Document" means this Agreement, the Notes, the Guarantees, the
Deed of Trust, the Assignment of Deed of Trust, the JBB Pledge Agreement, the
Assignments of HE Mortgages, the RPG First Preferred Ship Mortgage, the RPG
First Preferred Ship Mortgage Assignment, the Borrower Pledge Agreement, the
Amended and Restated Note Assignment, the HE Collateral Documents, the HE Notes,
the Security Agreement and each other relevant agreement, document or instrument
delivered in connection with this Agreement and the Notes.
"Maintenance Capital Expenditures" means any Capital Expenditures by the
Borrower or its Subsidiaries which are made to maintain, restore or refurbish
the condition or usefulness of property of the Borrower or its Subsidiaries, or
otherwise to support the continuation of such Person's day-to-day operations as
then conducted, but which are not properly chargeable to repairs and maintenance
in accordance with GAAP; provided, however, that such term shall not include any
Capital Expenditures to restore the condition or usefulness of property to the
extent funded from insurance proceeds delivered to the Borrower or its
Subsidiaries in accordance with the terms of the Loan Documents.
"Majority Lenders" means, at any time, Lenders holding at least 51% of
the then aggregate outstanding principal amount of the Notes then held by the
Lenders, or, if no such principal amount is then outstanding, Lenders having at
least 51% of the Commitments.
"Material Adverse Effect" means any circumstances or event which could
reasonably likely (i) have any material adverse effect upon the validity or
enforceability of this Agreement, the
-22-
29
Notes or any other Loan Document, (ii) be material and adverse to the condition
(financial or otherwise), business, operations or property of the Borrower and
the Guarantors taken as a whole, or (iii) materially impair the ability of the
Borrower to fulfill its obligations under this Agreement, the Notes or any other
Loan Document.
"Maturity Date" means, for any Commitment hereunder, the earliest of
(a) the date on which such Commitment is terminated in full
pursuant to the terms of this Agreement or is reduced to zero pursuant
to Section 2.2;
(b) the date on which any Commitment Termination Event occurs;
and
(c) the Stated Maturity Date.
"Monthly Payment Date" means the last day of each calendar month or, if
any such day is not a Business Day, the next succeeding Business Day.
"NGCP" means New Gaming Capital Limited Partnership, a Nevada limited
partnership.
"New Lender" is defined in Section 2.8.
"Nonrecourse Parties" is defined in Section 10.14.
"Non-Tax Distribution Event" shall mean the occurrence of any one of the
following events: (i) a Default described in Sections 8.1.1, 8.1.5, 8.1.6 or
8.1.10 shall have occurred or (ii) the Notes shall have become or been declared
immediately due and payable or (iii) a Change of Control shall have occurred and
the Borrower shall not have repurchased all Notes tendered in accordance with
Section 3.6.
"Note" means, as the context may require, either a Revolving Note or the
Swingline Note.
"Note Purchase Agreement" is defined in the first recital.
"Note Purchasers" is defined in the first recital.
"Notes" means the Revolving Notes and the Swingline Note.
-23-
30
"Obligations" means all obligations (monetary or otherwise) of the
Borrower and each other Obligor arising under or in connection with this
Agreement, the Notes and each other Loan Document (including any interest or
other amount accruing after the filing of a petition with respect to, or the
commencement of, any bankruptcy, reorganization, debt arrangement or other case
or proceeding under any bankruptcy or insolvency law, whether or not a claim for
post-petition interest or such other amount is allowed in such case or
proceeding).
"Obligor" means the Borrower or any other Person (other than the Agent
or any Lender) obligated under any Loan Document.
"Organic Document" means, relative to any Person, its certificate of
incorporation, its limited liability company agreement, its partnership
agreement, its by-laws and all shareholder agreements, voting trusts and similar
arrangements applicable to any of its authorized shares of capital stock.
"Participant" is defined in Section 10.11.2.
"PBGC" means the Pension Benefit Guaranty Corporation and any entity
succeeding to any or all of its functions under ERISA.
"Pension Plan" means a "pension plan", as such term is defined in
section 3(2) of ERISA, which is subject to Title IV of ERISA (other than a
multiemployer plan as defined in section 4001(a)(3) of ERISA), and to which the
Borrower or any corporation, trade or business that is, along with the Borrower,
a member of a Controlled Group, may have liability, including any liability by
reason of having been a substantial employer within the meaning of section 4063
of ERISA at any time during the preceding five years, or by reason of being
deemed to be a contributing sponsor under section 4069 of ERISA.
"Permitted Dispositions" means (a) the contribution of cash sufficient
to pay for the riverboat known as Queen of the Red to the Vicksburg Joint
Venture (or another similar transaction), provided, however, that on or before
such contribution the Agent shall have received a first preferred ship mortgage
on the riverboat known as the King of the Red, (b) the sale by HE of the Le
Bossier Hotel, (c) sales or dispositions by the Borrower or any Subsidiary of
damaged, worn out or other obsolete property so long as such property is no
longer necessary for the proper conduct of such Person's business, (d) the grant
-24-
31
by the Borrower or any Subsidiary of easements or rights of way provided that
they do not in the aggregate materially detract from the value of said property
or materially interfere with its use in the ordinary conduct of such Person's
business or (e) sales or dispositions by the Borrower or any Guarantor of any
Collateral so long as (i) such assets are not material to the business,
operations or property of the Casino in which such assets are used and (ii) the
aggregate book value of all such assets sold or disposed does not exceed
$5,000,000 in the aggregate over the term of this Agreement.
"Permitted Distribution Amount" means the sum of (a) $30,000,000 plus
(b) commencing with the Fiscal Year beginning January 1, 1997, 50% of
Consolidated Earnings After Permitted Tax Distributions, provided that no more
than $20,000,000 of the amount described in clause (a) (and none of the amount
described in clause (b)) may be used for dividends and distributions before June
30, 1998, and on such date the unused portion of the amount described in clause
(a) shall permanently reduce to not more than $20,000,000 and such reduced
amount shall be available for Investments only, plus (c) up to $11,000,000 of
the noncash expenses for the 1997 Fiscal Year only recorded by the Borrower for
such year for the expenses described in clause (i) of the definition of the term
"SEC Valuation Adjustment."
"Permitted Liens" means the Liens permitted under Section 7.2.3.
"Permitted Tax Distributions" means, so long as the Borrower shall be a
limited liability company, for any Fiscal Quarter or Fiscal Year, an amount
equal to 40% of the Borrower's net income for such period.
"Person" means any natural person, limited liability company,
corporation, partnership, firm, association, trust, government, governmental
agency or any other entity, whether acting in an individual, fiduciary or other
capacity.
"Personal Property Collateral" is defined in Section 5.1.3.
"Plan" means any Pension Plan or Welfare Plan.
"Pledged Casinos" shall mean all real property interests underlying the
Bossier Casino, the Tunica Casino and any real property interests pledged
pursuant to Section 7.1.10, all
-25-
32
property subject to the Liens of the First Preferred Ship Mortgages and all
fixtures, personal property and other improvements now existing or to be
constructed on any of such properties.
"Quarterly Payment Date" means the last day of each March, June,
September, and December or, if any such day is not a Business Day, the next
succeeding Business Day.
"Related Business" means the gaming (including pari-mutuel betting)
business and any and all reasonably related businesses necessary for, in support
or anticipation of and ancillary to or in preparation for, the gaming business
including, without limitation, the development, expansion or operation of any
Casino (including any land-based, dockside, riverboat or other type of Casino)
owned, or to be owned, by the Borrower or one of its Subsidiaries.
"Release" means a "release", as such term is defined in CERCLA.
"Required Lenders" means, at any time, Lenders holding at least 66 2/3%
of the then aggregate outstanding principal amount of the Notes then held by the
Lenders, or, if no such principal amount is then outstanding, Lenders having at
least 66 2/3% of the Commitments.
"Resource Conservation and Recovery Act" means the Resource Conservation
and Recovery Act, 42 U.S.C. Section 6901, et seq., as in effect from time to
time.
"Revolving Loan" means each Loan made by the Lenders pursuant to the
Revolving Loan Commitment.
"Revolving Loan Commitment" is defined in Section 2.1.1.
"Revolving Loan Commitment Amount" means, on any date, $130,000,000, as
such amount may be reduced from time to time pursuant to Section 2.2 or
increased pursuant to Section 2.8, minus the aggregate principal amount of
indebtedness of the Borrower to the Swingline Lender resulting from outstanding
Swing Loans, minus the aggregate undrawn face amount of outstanding Letters of
Credit.
"Revolving Note" means a promissory note of the Borrower payable to any
Lender in the form of Exhibit A hereto (as such
-26-
33
promissory note may be amended, endorsed or otherwise modified from time to
time), evidencing the aggregate Indebtedness of the Borrower to such Lender
resulting from outstanding Revolving Loans, and also means all other promissory
notes accepted from time to time in substitution therefor or renewal thereof.
"Revolving Percentage" means, relative to any Lender for all Revolving
Loans made or Letters of Credit issued, the percentage set forth opposite its
name on Schedule I or as set forth in its Lender Assignment Agreement, as such
percentage may be adjusted from time to time pursuant to Section 2.8 or pursuant
to Lender Assignment Agreements executed by such Lender and its Assignee Lenders
and delivered pursuant to Section 10.11.
"RPG" is defined in the first recital.
"RPG First Preferred Ship Mortgage" means that certain First Preferred
Ship Mortgage dated as of October 29, 1995, which was assigned to the Agent
pursuant to the terms of the RPG First Preferred Ship Mortgage Assignment, as
the same may be amended, supplemented, restated or otherwise modified from time
to time, and any first preferred ship mortgage taken in substitution or
replacement of the foregoing.
"RPG First Preferred Ship Mortgage Assignment" means that certain
Assignment of First Preferred Ship Mortgage executed by the remaining Note
Purchaser in favor of the Agent.
"RPG Notes" means those certain RPG Intercompany Senior Notes dated
October 10, 1995 and June 15, 1997 in the aggregate principal amount of
$71,400,000 from RPG payable to the Borrower, and all other promissory notes,
whether now existing or hereafter arising from RPG payable to the Borrower, as
the same may be amended, supplemented, restated or otherwise modified from time
to time.
"RPG Guaranty and Security Agreement" is defined in the second recital.
"SEC Valuation Adjustment" means, for any Fiscal Year of the Borrower
and so long as such adjustments shall be required by the rules of the Securities
and Exchange Commission, (i) the noncash income or expense recorded by the
Borrower for such year as a result of the decrease or increase in the fair
market value of the ownership interests of the Borrower issued pursuant to
certain employment agreements between the Borrower and its officers and
employees plus (ii) the noncash income or expense
-27-
34
recorded by the Borrower in respect of the undistributed earnings attributable
to such ownership interests.
"Secured Hedging Obligations" means Hedging Obligations of the Borrower
with any Lender, which pursuant to Section 7.2.2(k), may be ratably secured by
the Collateral.
"Security Agreement" means the Security Agreement executed and delivered
by the Borrower pursuant to Section 5.1.7, as amended, supplemented, restated or
otherwise modified from time to time.
"Security Documents" is defined in the third recital.
"Senior Note Indenture" means that certain Indenture dated as of October
10, 1995 between the Borrower, as issuer, and U.S. Trust Company of California,
N.A.
"Significant Subsidiary" means each Subsidiary of the Borrower that
(a) is designated with an asterisk in Item 2 ("Subsidiaries") of
the Disclosure Schedule;
(b) accounted for at least 5% of consolidated revenues of the
Borrower and its Subsidiaries or 5% of consolidated earnings of the
Borrower and its Subsidiaries before interest and taxes, in each case
for the four Fiscal Quarters of the Borrower for which financial
statements are available ending on the last day of the last Fiscal
Quarter of the Borrower immediately preceding the date as of which any
such determination is made; or
(c) has assets which represent at least 5% of the consolidated
assets of the Borrower and its Subsidiaries as of the last day of the
last Fiscal Quarter of the Borrower immediately preceding the date as of
which any such determination is made,
all of which, with respect to clauses (b) and (c), shall be as reflected on the
financial statements of the Borrower for the period, or as of the date, in
question.
"Specified Default" means any Event of Default or any condition,
occurrence or event which, after notice or lapse of time or both, would
constitute an Event of Default under any
-28-
35
subsection of Section 8.1 other than (i) Section 8.1.4 and (ii) Section 8.1.2 to
the extent the Default under Section 8.1.2 has resulted solely from a Default
under Section 8.1.4.
"Stated Maturity Date" means June 15, 2000.
"Subordinated Debt" means the Existing Subordinated Debt and all other
unsecured Indebtedness of the Borrower for money borrowed which is subordinated,
upon terms satisfactory to the Agent, in right of payment to the payment in full
in cash of all Obligations.
"Subordinated Debt Indenture" means that certain Indenture dated as of
June 15, 1997 between the Borrower, as issuer, and U.S. Trust Company of Texas,
N.A.
"Subsidiary," with respect to any Person, means (i) any corporation,
association or other business entity of which more than 50% of the total voting
power of Capital entitled (without regard to the occurrence of any contingency)
to vote in the election of directors, managers or trustees thereof as at the
time owned or controlled, directly or indirectly, by such Person, by one or more
Subsidiaries of such Person or by such Person and one or more Subsidiaries of
such Person and (ii) any partnership (a) the sole general partner or the
managing general partners of which are such Person or one or more Subsidiaries
of such Person (or any combination thereof); provided, however, that the term
"Subsidiary" shall not include any Unrestricted Subsidiary.
"Swingline Commitment" is defined in Section 2.1.2.
"Swingline Lender" means CIBC, in its capacity as lender pursuant to
Section 2.1.2. "Swingline Note" means a promissory note of the Borrower payable
to the Swingline Lender in the form of Exhibit B hereto (as such promissory note
may be amended, endorsed or otherwise modified from time to time), evidencing
the aggregate Indebtedness of the Borrower to the Swingline Lender resulting
from outstanding Swing Loans, and also means all other promissory notes accepted
from time to time in substitution therefor or renewal thereof.
"Swing Loan" means each Loan made by the Swingline Lender pursuant to
the Swingline Commitment.
"Swing Loan Commitment Amount" means, on any date,
-29-
36
$5,000,000, as such amount may be reduced from time to time pursuant to Section
2.2.
"Taxes" is defined in Section 4.6.
"Title Company" means Chicago Title Insurance Company or such other
title insurance company as may be reasonably acceptable to the Agent.
"Tunica Casino" means the Horseshoe casino and hotel, owned by RPG and
located in Tunica, Mississippi.
"Tunica County Security Agreement" means that certain Security Agreement
and Exhibit A to UCC-1 financing statement executed by RPG in favor of the
Borrower and the Noteholders and filed with the Mississippi Secretary of State
and in the office of the Chancery Clerk of Tunica County, Mississippi on October
3, 1995, as assigned on the same date to the Note Purchasers, and as assigned to
the Agent pursuant to the Assignment of Tunica County Security Agreement.
"Type" means, relative to any Loan, the portion thereof, if any, being
maintained as a Base Rate Loan or a Eurodollar Rate Loan.
"Unrestricted Subsidiary" means the Vicksburg Joint Venture and any
Person created after the date hereof in which the Borrower or any of its
Subsidiaries owns all or a portion of the outstanding capital stock or other
ownership interests and which the Borrower has designated in a written notice to
the Agent as an "Unrestricted Subsidiary" (unless otherwise designated by the
Borrower pursuant to Section 7.1.10).
"United States" or "U.S." means the United States of America, its fifty
States and the District of Columbia.
"Vicksburg Joint Venture" means that certain limited liability company
created in accordance with that certain Contribution Agreement between the
Borrower or its Subsidiary and Lady Luck Vicksburg, Inc. to develop a riverboat
casino and related land-based facilities in Vicksburg, Mississippi.
"Welfare Plan" means a "welfare plan", as such term is defined in
section 3(1) of ERISA.
SECTION I.2. Use of Defined Terms. Unless otherwise
-30-
37
defined or the context otherwise requires, terms for which meanings are provided
in this Agreement shall have such meanings when used in the Disclosure Schedule
and in each Note, Borrowing Request, Continuation/Conversion Notice, Loan
Document, notice and other communication delivered from time to time in
connection with this Agreement or any other Loan Document.
SECTION I.3. Cross-References. Unless otherwise specified, references in
this Agreement and in each other Loan Document to any Article or Section are
references to such Article or Section of this Agreement or such other Loan
Document, as the case may be, and, unless otherwise specified, references in any
Article, Section or definition to any clause are references to such clause of
such Article, Section or definition.
SECTION I.4. Accounting and Financial Determinations. Unless otherwise
specified, all accounting terms used herein or in any other Loan Document shall
be interpreted, all accounting determinations and computations hereunder or
thereunder (including under Section 7.2.4) shall be made, and all financial
statements required to be delivered hereunder or thereunder shall be prepared in
accordance with, those generally accepted accounting principles ("GAAP") applied
in the preparation of the financial statements referred to in Section 6.5.
ARTICLE II
COMMITMENTS, BORROWING PROCEDURES AND NOTES
SECTION II.1. Commitments. On the terms and subject to the conditions of
this Agreement (including Article V), each Lender severally agrees to make Loans
pursuant to the Commitments described in this Section 2.1.
SECTION II.1.1. Revolving Loan Commitment of Each Lender. From time to
time on any Business Day occurring prior to the Commitment Termination Date,
each Lender will make loans (relative to such Lender, and of any Type, its
"Revolving Loans") to the Borrower equal to such Lender's Revolving Percentage
of the aggregate amount of the Borrowing of Revolving Loans requested by the
Borrower to be made on such day. The commitment of each Lender described in this
Section 2.1.1 is herein referred to as its "Revolving Loan Commitment". On the
terms and subject to the conditions hereof, the Borrower may from time to time
borrow, repay and reborrow under the Revolving Loan Commitment
-31-
38
without premium or penalty.
SECTION II.1.2. Swing Loan Commitment. From time to time on any Business
Day occurring before the Commitment Termination Date, the Swingline Lender will
make Swing Loans to the Borrower equal to the amount of Swing Loans requested by
the Borrower to be made on such day. The commitment of the Swingline Lender
described in this Section 2.1.2 is herein referred to as its "Swingline
Commitment". On the terms and subject to the conditions hereof, the Borrower may
from time to time borrow, repay and reborrow under the Swingline Commitment
without premium or penalty.
SECTION II.1.3. Lenders Not Permitted or Required To Make Loans.
(a) No Lender shall be permitted or required to make any Revolving Loan
if, after giving effect thereto and the repayment of any Swing Loan with the
proceeds therefrom, the aggregate outstanding principal amount of all Revolving
Loans
(i) of all Lenders would exceed the Revolving Loan Commitment
Amount, or
(ii) of such Lender would exceed such Lender's Revolving
Percentage of the Revolving Loan Commitment Amount.
(b) The Swingline Lender shall not be permitted or required to make any
Swing Loan if, after giving effect thereto,
(i) the aggregate outstanding principal amount of all Swing
Loans would exceed the Swingline Loan Commitment Amount; or
(ii) the amount of such Swing Loan would exceed the Revolving
Loan Commitment Amount minus the aggregate principal amount of
outstanding Revolving Loans.
SECTION II.2. Reduction of Commitment Amounts. The Commitment Amounts
are subject to reduction from time to time pursuant to this Section 2.2.
SECTION II.2.1. Optional. The Borrower may, from time to time on any
Business Day, voluntarily reduce the amount of any Commitment Amount; provided,
however, that all such reductions
-32-
39
shall require at least three Business Days' prior notice to the Agent and be
permanent, and any partial reduction of any Commitment Amount shall be in a
minimum amount of $1,000,000 or an integral multiple thereof. Prior to the
occurrence and continuance of an Event of Default, all voluntary reductions of
the Commitments by the Borrower shall be made to reduce the Revolving Loan
Commitment and, in the case of the last $5,000,000 of the Revolving Loan
Commitment, the Swingline Commitment. After the occurrence and during the
continuance of an Event of Default, all optional reductions of Commitment
Amounts shall be applied to reduce the Revolving Loan Commitment and Swingline
Commitment pro rata.
SECTION II.2.2. Mandatory. There shall be a mandatory reduction of the
Commitment Amount in an amount equal to all payments or prepayments received by
the Borrower in respect of the HE Notes to the extent that such prepayment
reduces the outstanding principal balance thereof below (i) 115% of the
aggregate Revolving Loan Commitments from the Closing Date through October 31,
1998, (ii) 110% of the aggregate Revolving Loan Commitments from November 1,
1998 through October 31, 1999 or (iii) 105% of the aggregate Revolving Loan
Commitments thereafter. Such reduction shall be effective immediately upon the
Borrower's receipt of such proceeds and shall be applied in the following
manner:
first, to any unused portion of the Revolving Loan
Commitment and, in the case of the last $5,000,000 of the
Revolving Loan Commitment, the Swingline Commitment, in
which event such unused portion of the Revolving Loan
Commitment (or the Revolving Loan Commitment and the
Swingline Commitment) shall, to the extent of such
proceeds, be canceled and the Borrower may retain proceeds
in an amount equal to the amount of the Revolving Loan
Commitment so cancelled; and
second, to the prepayment of the outstanding Revolving
Loans in excess of such unused portion of the Revolving
Loan Commitment and the corresponding cancellation of the
Revolving Loan Commitment by the amount of such
prepayment; provided that at such time, if any, as the
Revolving Loan Commitment is equal to or less than
$5,000,000, the proceeds shall be applied pro rata to the
outstanding Revolving Loans and Swing
-33-
40
Loans, with a cancellation of the Revolving Loan
Commitment and Swing Loan Commitment Amount by the
amount of the respective prepayment.
SECTION II.2.3. Special Letter of Credit Provisions. Notwithstanding
anything to the contrary herein, the Borrower may not reduce the Revolving Loan
Commitment Amount to an amount less than the aggregate undrawn face amount of
outstanding Letters of Credit then in effect unless the Borrower shall have
deposited with the Agent all amounts required pursuant to the second paragraph
of Section 2.7 hereof.
SECTION II.3. Borrowing Procedure.
SECTION II.3.1. Revolving Loans. The Borrower may from time to
time irrevocably request that a Borrowing of Revolving Loans be made by
delivering a Borrowing Request to the Agent (i) for a Eurodollar Rate Loan, on
or before 11:30 a.m., New York time, on a Business Day, at least three Business
Days prior to the date of such proposed Borrowing, in a minimum amount of
$1,000,000 or an integral multiple of $1,000,000 in excess thereof, or in the
unused amount of the Revolving Loan Commitment Amount and (ii) for a Base Rate
Loan, on or before 11:30 a.m., New York time, on a Business Day, at least one
Business Day prior to the date of such proposed Borrowing, in a minimum amount
of $1,000,000 or an integral multiple of $1,000,000 in excess thereof, or in the
unused amount of the Revolving Loan Commitment Amount. The Agent shall promptly
notify each other Lender in writing of the terms of such Borrowing Request. On
the terms and subject to the conditions of this Agreement, each Borrowing shall
be comprised of the Type of Revolving Loans, and shall be made on the Business
Day, specified in such Borrowing Request. On or before 1:00 p.m., New York time,
on the Business Day such Revolving Loans are to be made, each Lender shall
deposit with the Agent same day funds in an amount equal to such Lender's
Revolving Percentage of the requested Borrowing. Such deposit will be made to an
account which the Agent shall specify from time to time by notice to the
Lenders. No Lender's obligation to make any Loan shall be affected by any other
Lender's failure to make any Revolving Loan, and no Lender shall have any
obligation to assume all or any portion of a non-performing Lender's obligation
to make a Revolving Loan. To the extent funds are received from the Lenders, on
the proposed date for such Borrowing the Agent shall make such funds available
to the Borrower at the office of the Agent.
-34-
41
SECTION II.3.2. Swing Loans. The Borrower may from time to time
irrevocably request, by delivering a telephonic notice to the Swingline Lender
(which notice shall promptly be confirmed by telecopy to the Swingline Lender
and to the Agent) that a Borrowing of Swing Loans be made, by 1:00 p.m., New
York time, on or before the date such Borrowing is requested, in a minimum
amount of $100,000 or an integral multiple thereof, or in the unused amount of
the Swingline Loan Commitment Amount. On the terms and subject to the conditions
of this Agreement, each such Borrowing shall be comprised of Base Rate Loans,
and shall be made on the Business Day specified in such Borrowing Request. The
Swingline Lender shall make funds in an amount equal to the requested Borrowing
available to the Borrower to the accounts the Borrower shall have specified in
such Borrowing Request. Each request by the Borrower for a Borrowing of Swing
Loans shall be deemed to reaffirm the representations set forth in subsections
(a), (b) and (c) of Section 5.2.1. The Swingline Lender shall not fund a
Borrowing of Swing Loans if prior to the date of such Borrowing the Swingline
Lender shall have received written notice from the Agent or any Lender of the
existence and continuance of an Event of Default.
SECTION II.4. Continuation and Conversion Elections. By delivering a
Continuation/Conversion Notice to the Agent on or before 11:30 a.m., New York
time, on a Business Day, the Borrower may from time to time irrevocably elect,
on not less than three or more than five Business Days' notice that all, or any
portion in an aggregate minimum amount of $1,000,000 and an integral multiple of
$1,000,000 in excess thereof, of any Loan be, in the case of Base Rate Loans,
converted into Eurodollar Rate Loans or, in the case of Eurodollar Rate Loans,
continued as a Eurodollar Rate Loan or that all, or any portion in an aggregate
minimum amount of $1,000,000 and an integral multiple of $1,000,000 in excess
thereof of any Loan be, in the case of Eurodollar Rate Loans, converted into
Base Rate Loans (in the absence of delivery of a Continuation/Conversion Notice
with respect to any Eurodollar Rate Loan at least three Business Days before the
last day of the then current Interest Period with respect thereto, such
Eurodollar Rate Loan shall, on such last day, automatically convert to a Base
Rate Loan); provided, however, that no portion of the outstanding principal
amount of any Loans may be continued after the end of the applicable Interest
Period therefor as, or be converted into, Eurodollar Rate Loans when any
Specified Default has occurred and is continuing. The Agent shall promptly
notify each other Lender in writing of the terms of such Continuation/Conversion
Notice.
-35-
42
SECTION II.5. Funding. Each Lender may, if it so elects, fulfill its
obligation to make, continue or convert Eurodollar Rate Loans hereunder by
causing one of its foreign branches or Affiliates (or an international banking
facility created by such Lender) to make or maintain such Eurodollar Rate Loan;
provided, however, that such Eurodollar Rate Loan shall nonetheless be deemed to
have been made and to be held by such Lender, and the obligation of the Borrower
to repay such Eurodollar Rate Loan shall nevertheless be to such Lender for the
account of such foreign branch, Affiliate or international banking facility. In
addition, the Borrower hereby consents and agrees that, for purposes of any
determination to be made for purposes of Sections 4.1, 4.2, 4.3 or 4.4, it shall
be conclusively assumed that each Lender elected to fund all Eurodollar Rate
Loans by purchasing Dollar deposits in its Eurodollar Office's interbank
eurodollar market.
SECTION II.6. Notes. Each Lender's Revolving Loans under its Revolving
Loan Commitment shall be evidenced by a Note payable to the order of such Lender
in a maximum principal amount equal to such Lender's Revolving Percentage of the
original Revolving Loan Commitment Amount. The Swingline Lender's Swing Loans
shall be evidenced by a Swingline Note payable to the order of the Swingline
Lender in a maximum principal amount equal to the Swing Loan Commitment Amount.
The Borrower hereby irrevocably authorizes each Lender to make (or cause to be
made) appropriate notations on the grid attached to such Lender's Note (or on
any continuation of such grid), which notations, if made, shall evidence, inter
alia, the date of, the outstanding principal of, and the interest rate and
Interest Period applicable to the Loans evidenced thereby. Such notations shall
be conclusive and binding on the Borrower absent manifest error; provided,
however, that the failure of any Lender to make any such notations shall not
limit or otherwise affect any Obligations of the Borrower or any other Obligor.
SECTION II.7. Letter of Credit Procedure. The Borrower may from time to
time request that a Letter of Credit be issued by delivering to the L/C Issuer
(with a telecopy to the Agent) on a Business Day, at least five Business Days
prior to the date of such proposed issuance, a Letter of Credit application in
the L/C Issuer's then standard form, completed to the satisfaction of the L/C
Issuer, and such other certificates as the L/C Issuer may reasonably request;
provided, however, that no Letter of Credit shall be issued if after giving
effect to the issuance thereof, the aggregate undrawn face amount of outstanding
Letters of
-36-
43
Credit would exceed the lesser of (a) the Revolving Loan Commitment Amount minus
the aggregate unpaid principal amount of Revolving Loans and Swing Loans then
outstanding or (b) $10,000,000. On the terms and subject to the conditions of
this Agreement, each Letter of Credit shall be issued by the L/C Issuer on the
Business Day specified in the Borrower' application therefor. The Agent shall
promptly notify each Lender in writing of the material terms of each Letter of
Credit issued by the L/C Issuer. Each request for a Letter of Credit and each
Letter of Credit shall be subject to the Uniform Customs and Practice for
Documentary Credits (1993 Revision), International Chamber of Commerce
Publication Number 500. Each Letter of Credit will be issued for a term of not
more than one year, and in no event shall any Letter of Credit have an
expiration date later than the Stated Maturity Date.
Upon any termination of the Revolving Loan Commitment prior to the
Stated Maturity Date, the Borrower shall deposit with the Agent an amount equal
to 105% of the aggregate amount available to be drawn under outstanding Letters
of Credit, such amount to be placed in a segregated, interest-bearing cash
collateral account pledged to the Lenders as Collateral hereunder over which
Borrower shall have no control but which shall be applied solely to repay the
Borrower's obligations in connection with such Letters of Credit unless an Event
of Default has occurred and is continuing. In the event the expiration date (or
earlier termination) of any Letter of Credit should occur with no draw having
been made thereunder for which the Borrower has not made reimbursement and so
long as no Event of Default has occurred and is continuing, the amount of the
cash collateral account shall be reduced by 105% of the undrawn amount of such
expired Letter of Credit, together with the interest accrued on such amount to
such date, and the amount of such reduction shall be paid to the Borrower (and,
in the case of the final Letter of Credit to expire or otherwise be terminated,
the remaining balance of the cash collateral account shall be paid to the
Borrower).
SECTION II.8. Increase in the Revolving Loan Commitment Amount.
(a) Provided that no Default or Event of Default then exists, the
Borrower may at any time request in writing that the then effective
Revolving Loan Commitment Amount be increased to an amount which is not
greater than $180,000,000 in accordance with the provisions of this
Section. Any request under this Section shall be submitted
-37-
44
by the Borrower to the Agent (which shall forward copies to the
Lenders), specify the proposed effective date and amount of such
increase and be accompanied by a certificate from an Authorized Officer
of the Borrower, stating that no Default or Event of Default exists as
of the date of the request or will result from the requested increase.
The Borrower may also specify any fees offered to those Lenders (the
"Increasing Lenders") which agree to increase their Revolving Loan
Commitments (which fees may be variable based upon the amount by which
any such Lender is willing to increase its Revolving Loan Commitment).
No Lender shall have any obligation, express or implied, to offer to
increase its Revolving Loan Commitment. Only the consent of each
Increasing Lender shall be required for an increase in the Revolving
Loan Commitment Amount pursuant to this Section. No Lender which elects
not to increase its Revolving Loan Commitment may be replaced in respect
of its existing Revolving Loan Commitment as a result thereof without
such Lender's consent.
(b) Each Increasing Lender shall as soon as practicable specify
the amount of the proposed increase which it is willing to assume. The
Borrower may accept some or all of the offered amounts or designate new
lenders who qualify as Eligible Assignees and which are reasonably
acceptable to the Agent as additional Lenders hereunder in accordance
with clause (c) of this Section (each, a "New Lender"), which New Lender
may assume all or a portion of the increase in the Revolving Loan
Commitment Amount. The Borrower and the Agent shall have discretion
jointly to adjust the allocation of the increased Revolving Loan
Commitment Amount among Increasing Lenders and New Lenders.
(c) Each New Lender designated by the Borrower and reasonably
acceptable to the Agent shall become an additional party hereto as a New
Lender concurrently with the effectiveness of the proposed increase in
the Revolving Loan Commitment Amount upon its execution of an instrument
of joinder to this Agreement which is in form and substance reasonably
acceptable to the Agent and which, in any event, contains the
representations, warranties, indemnities and other protections afforded
to the Agent and the other Lenders.
(d) Subject to the foregoing, any increase requested by the
Borrower shall be effective as of the date proposed
-38-
45
by the Borrower and shall be in the principal amount equal to (i) the
amount which Increasing Lenders are willing to assume as increases to
the amount of their Revolving Loan Commitments plus (ii) the amount
offered by any New Lender, in either case as adjusted by the Borrower
and the Agent pursuant to Section 2.8(b). Upon the effectiveness of any
such increase, the Borrower shall issue replacement Notes to each
affected Lender and new Notes to each New Lender, and the Revolving
Percentages of each Lender will be adjusted to give effect to the
increase in the Revolving Loan Commitment Amount as set forth in a new
Schedule I issued by the Agent. To the extent that the adjustment of
Revolving Loan Percentages results in loss or expenses to any Lender as
a result of the prepayment of any Eurodollar Rate Loan on a date other
than the scheduled last day of the Interest Period applicable thereto,
the Borrower shall be responsible for such loss or expenses pursuant to
Section 4.4.
ARTICLE III
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
SECTION III.1. Repayments and Prepayments. The Borrower shall repay in
full the unpaid principal amount of each Loan upon the Stated Maturity Date.
SECTION III.1.1. Payment Terms. Prior to the Stated Maturity
Date, the Borrower
(a) may, from time to time on any Business Day, make a voluntary
prepayment, in whole or in part, of the outstanding principal amount of
any Loans, such prepayment to be applied to Loans in the manner
designated by the Borrower; provided, however, that
(i) any such prepayment shall be made pro rata among all Lenders
having Loans of the designated Type and, if applicable, having the
designated Interest Period;
(ii) no such prepayment of any Eurodollar Rate Loan may be made
on any day other than the last day of the Interest Period for such
Loan;
(iii) all such voluntary prepayments of any Eurodollar Rate Loan
shall require at least three
-39-
46
Business Days' prior written notice to the Agent and all such
voluntary partial prepayments shall be in an aggregate minimum
amount of $1,000,000 and integral multiples of $1,000,000 in excess
thereof or such lesser amount as will prepay such Loan in full;
(iv) all such voluntary prepayments of any Base Rate Loan
outstanding under the Revolving Loan Commitment shall require at
least one Business Day's notice, and all such voluntary partial
prepayments shall be in an aggregate minimum amount of $1,000,000
and integral multiples of $1,000,000 in excess thereof or such
lesser amount as will prepay such Loan in full; and
(v) all such voluntary prepayments of any Swing Loan shall
require at least one Business Day's notice to the Swingline Lender
(unless notice shall have been given by 12:00 noon, New York time
and payment shall be received by 1:00 p.m. New York time, in which
event one Business Day's notice shall not be required), and all such
voluntary partial prepayments shall be in an aggregate minimum
amount of $100,000 or integral multiples of $100,000 or such lesser
amount as will prepay such Loan in full.
(b) shall, immediately upon any acceleration of the Stated
Maturity Date of any Loans pursuant to Section 8.2 or Section 8.3, repay
all Loans, unless, pursuant to Section 8.3, only a portion of all Loans
is so accelerated.
Each prepayment of any Loans made pursuant to this Section shall be without
premium or penalty, except as may be required by Section 4.4. No voluntary
prepayment of principal of any Loans shall cause a reduction in the Revolving
Loan Commitment Amount.
SECTION III.1.2. Special Swing Loan Provisions. All Swing Loans
shall be payable with accrued interest thereon solely to the Swingline Lender
for its own account, and shall otherwise be subject to all the terms and
conditions applicable to the Revolving Loans (unless otherwise specifically set
forth herein). Upon the earlier to occur of (x) thirty days after the making of
any Swing Loan or (y) one Business Day after the occurrence of an Event of
Default, the Borrower shall repay all of such Swing Loans in cash by 1:00 p.m.,
New York time, on the date due or make a Borrowing of Revolving Loans in an
amount at least equal
-40-
47
to the aggregate outstanding principal amount of all Swing Loans together with
all accrued interest thereon, and shall apply the proceeds of such Borrowing to
repay in its entirety the aggregate outstanding principal amount of all Swing
Loans together with accrued interest thereof to the date of such repayment.
In the event that any portion of any Swing Loan is not repaid when due,
the Swingline Lender shall promptly notify the Agent and the Agent shall
promptly, and in no event later than 5:00 p.m., New York time, two Business Days
after its receipt of such notice, notify each Lender in writing of the
unreimbursed amount of such Swing Loan and of such Lender's Revolving Percentage
of such unreimbursed amount. Each of the Lenders shall make a Revolving Loan in
an amount equal to such Lender's Revolving Percentage of the unreimbursed amount
of such Swing Loan, together with accrued unpaid interest thereon (to the extent
that there is availability under the Revolving Loan Commitment), and pay the
proceeds thereof, in immediately available funds, directly to the Agent for the
account of the Swingline Lender, not later than 1:00 p.m., New York time, on the
next Business Day after the date such Lender is notified by the Agent. Revolving
Loans made by the Lenders to repay unreimbursed Swing Loans pursuant to this
Section shall constitute Revolving Loans hereunder, initially shall be Base Rate
Loans and shall be subject to all of the provisions of this Agreement concerning
Revolving Loans, except that such Revolving Loans shall be made upon demand by
the Agent as set forth above rather than upon notice by the Borrower, and shall
be made, notwithstanding anything in this Agreement to the contrary, without
regard to satisfaction of conditions precedent to the making of Revolving Loans
set forth in Article V of this Agreement; provided, however that no Lender shall
be obligated to make such Revolving Loans if, prior to the date of the Borrowing
of the Swing Loan to be refunded, the Swingline Lender had received written
notice from the Agent or any Lender of the existence and continuance of an Event
of Default.
Each Lender's obligation to make Revolving Loans in the amount of its
Revolving Percentage of any unreimbursed Swing Loan pursuant hereto is several,
and not joint or joint and several. The failure of any Lender to perform its
obligation to make a Revolving Loan in the amount of such Lender's Revolving
Percentage of any unreimbursed Swing Loan will not relieve any other Lender of
its obligation hereunder to make a Revolving Loan in the amount of such other
Lender's Revolving Percentage of such unreimbursed Swing Loan. Any Lender may,
but shall have no
-41-
48
obligation to any Person to, assume all or any portion of any non-performing
Lender's obligation to make a Revolving Loan in the amount of such Lender's
Revolving Percentage of such unreimbursed Swing Loan. The Borrower agree to
accept the Revolving Loans hereinabove provided, whether or not such Loans could
have been made pursuant to the terms of Section 5.2 hereof or any other Section
of this Agreement.
In the event, for whatever reason, the Agent determines that the Lenders
are not able to, or that it could be disadvantageous for the Lenders to, advance
their respective Revolving Percentage of Revolving Loans for the purpose of
refunding Swing Loans as required hereunder, then each of the Lenders absolutely
and unconditionally agrees to purchase and take from the Swingline Lender on
demand an undivided participation interest in Swing Loans outstanding in an
amount equal to their respective Revolving Percentage of such Swing Loans.
SECTION III.1.3. Post Default Application of Payments.
Notwithstanding any provision of Section 3.1.1 to the contrary, after the
occurrence and during the continuance of an Event of Default, all optional and
mandatory payments under Section 3.1.1 shall be applied first to pay any fees
and expenses then due and owing, second to the pro rata payment of accrued and
unpaid interest on all Loans and third to the pro rata reduction of amounts
outstanding under the Revolving Loan Commitment and the Swingline Commitment.
SECTION III.2. Interest Provisions. Interest on the outstanding
principal amount of Loans shall accrue and be payable in accordance with this
Section 3.2.
SECTION III.2.1. Rates. Pursuant to an appropriately delivered
Borrowing Request or Continuation/Conversion Notice, the Borrower may elect that
Loans comprising a Borrowing accrue interest at a rate per annum:
(a) on that portion maintained from time to time as a Base Rate
Loan, equal to the sum of the Alternate Base Rate from time to time in
effect plus the Applicable Base Rate Margin in effect from time to time;
(b) on that portion maintained as a Eurodollar Rate Loan, during
each Interest Period applicable thereto, equal to the sum of the
Eurodollar Rate (Reserve Adjusted) for such Interest Period plus the
Applicable Eurodollar Rate
-42-
49
Margin in effect from time to time.
All Eurodollar Rate Loans shall bear interest from and including the
first day of the applicable Interest Period to (but not including) the last day
of such Interest Period at the interest rate determined as applicable to such
Eurodollar Rate Loan.
SECTION III.2.2. Post-Maturity Rates. After the date any
principal amount of any Loan is due and payable (whether on the Stated Maturity
Date, upon acceleration or otherwise), or after any other monetary Obligation of
the Borrower shall have become due and payable, the Borrower shall pay, but only
to the extent permitted by law, interest (after as well as before judgment) on
such amounts at a rate per annum equal to the Alternate Base Rate plus the Base
Rate Margin in effect from time to time plus 1% until such amount is paid in
full.
SECTION III.2.3. Payment Dates. Interest accrued on each Loan
shall be payable, without duplication:
(a) on the Stated Maturity Date therefor;
(b) on the date of any payment or prepayment, in whole or in
part, of principal outstanding on such Loan;
(c) with respect to Base Rate Loans, on each Monthly Payment Date
occurring after the Effective Date;
(d) with respect to Eurodollar Rate Loans, the last day of each
applicable Interest Period (and, if such Interest Period shall be six
months, on the 90th day of such Interest Period);
(e) with respect to any Base Rate Loans converted into Eurodollar
Rate Loans on a day when interest would not otherwise have been payable
pursuant to clause (c), on the date of such conversion; and
(f) on that portion of any Loans the Stated Maturity Date of
which is accelerated pursuant to Section 8.2 or Section 8.3, immediately
upon such acceleration.
Interest accrued on Loans or other monetary Obligations arising under this
Agreement or any other Loan Document after the date such amount is due and
payable (whether on the Stated Maturity
-43-
50
Date, upon acceleration or otherwise) shall be payable upon demand.
SECTION III.3. Fees. The Borrower agrees to pay the fees set forth in
this Section 3.3. All such fees shall be non-refundable.
SECTION III.3.1. Commitment Fee. The Borrower agrees to pay to the Agent
for the account of each Lender, for the period (including any portion thereof
when its Revolving Loan Commitment is suspended by reason of the Borrower's
inability to satisfy any condition of Article V) commencing on the Effective
Date and continuing through the final Commitment Termination Date, a per annum
fee (the "Commitment Fee") on the average daily unused portion of the Revolving
Loan Commitment Amount (without giving effect to any reduction thereof as a
result of any outstanding Swing Loans), calculated on a 360-day basis using the
basis points per annum rate as set forth under the column labeled "Commitment
Fee" in the definition of "Applicable Margin" opposite the Borrower's Leverage
Ratio. The Commitment Fee shall be payable by the Borrower quarterly in arrears
on each Quarterly Payment Date (or, if such day is not a Business Day, on the
next succeeding Business Day), commencing with the first such date to occur
after the Effective Date, and on any expiration or termination of the Revolving
Loan Commitment.
SECTION III.3.2. Upfront Fees. The Agent agrees to pay to each Lender
upfront fees in such amounts as have been agreed upon previously by the Agent
and each such Lender.
SECTION III.3.3. Agent's Fee. The Borrower hereby agrees to pay to the
Agent for its own account additional fees in such amounts and at such times as
more particularly set forth in the commitment letter and term sheet dated
September 26, 1997.
SECTION III.3.4. Letter of Credit Fees. The Borrower agrees to pay to
the Agent, for the account of the Lenders, letter of credit fees (the "L/C
Fees") on the average daily face amount of outstanding Letters of Credit during
each Fiscal Quarter, calculated at a per annum rate equal to the Applicable
Eurodollar Rate Margin in effect on the last day of such Fiscal Quarter. The
Borrower further agree to pay to the L/C Issuer, for its own account, a fronting
fee (the "Fronting Fee") equal to 0.125% per annum of the average daily face
amount of outstanding Letters of Credit during each Fiscal Quarter, calculated
on the last day of such Fiscal Quarter. The L/C Fees and the Fronting
-44-
51
Fee shall be computed on the basis of a year comprised of 360 days and shall be
payable quarterly in arrears, on each Quarterly Payment Date.
SECTION III.4. Agreement to Repay Letter of Credit Drawings with
Revolving Loans. The Borrower agrees to reimburse the L/C Issuer for each draft
that is paid under any Letter of Credit for the amount of (a) such draft and (b)
any reasonable taxes, fees, charges or other costs and expenses incurred by the
L/C Issuer in connection with such payment, whether such draft is paid before,
on or after termination of the Revolving Loan Commitment. Upon notice by the L/C
Issuer to the Borrower and the Agent (and notice by the Agent to the Lenders
pursuant to Section 3.5) on any day that payment has been made under any Letter
of Credit, the Borrower shall reimburse the L/C Issuer with the proceeds of a
Revolving Loan made pursuant to Section 3.5 not later than the following
Business Day. Interest shall be payable on any and all unreimbursed amounts
advanced by the L/C Issuer under this Section from the date such amounts have
been advanced by the L/C Issuer until reimbursed at the rate of interest payable
on Base Rate Loans.
The payment obligations of the Borrower under this Section shall be
unconditional and irrevocable and shall be paid strictly in accordance with the
terms of this Agreement under all circumstances, including without limitation,
the following circumstances:
(a) the existence of any claim, set-off, defense or other right
which the Borrower may have at any time against any beneficiary, or any
transferee, of any Letter of Credit (or any Persons for whom any such
beneficiary or any such transferee may be acting), the L/C Issuer or any
other Person, whether in connection with this Agreement, the
transactions contemplated herein, or any unrelated transaction;
(b) any statement or any other document presented under any
Letter of Credit proving to be forged, fraudulent, invalid or
unenforceable in any respect or any statement therein being untrue or
inaccurate in any respect; provided that any such statement or other
document appears, on examination, to be regular on its face; or
(c) payment by the L/C Issuer under any Letter of Credit against
presentation of drafts, certificates, claims,
-45-
52
documents or required statements that do not strictly comply with the
terms of the Letter of Credit; provided that, upon examination, any such
drafts, certificates, claims, documents or statements appear on their
face to be in accordance with the Letter of Credit.
SECTION III.5. Letter of Credit Participations. The L/C Issuer
irrevocably agrees to grant and hereby grants to each Lender, and, to induce the
L/C Issuer to issue Letters of Credit hereunder, each Lender irrevocably agrees
to accept and purchase and hereby accepts and purchases from the L/C Issuer for
such Lender's own account and risk an undivided interest equal to such Lender's
Revolving Percentage in the L/C Issuer's obligations and rights under each
Letter of Credit issued hereunder and each draft paid by the L/C Issuer
hereunder.
Upon presentation of a draft drawn under any Letter of Credit, the L/C
Issuer shall promptly notify the Agent and the Agent shall promptly notify each
Lender of the amount under such draft and of such Lender's Revolving Percentage
of such amount. Except to the extent that (i) the Borrower shall have previously
reimbursed the L/C Issuer for such draft or (ii) there is a sufficient amount in
any cash collateral account established to cover payments to be made under such
Letter of Credit, each of the Lenders shall thereafter make a Revolving Loan in
an amount equal to such Lender's Revolving Percentage of the amount of such
payment made by the L/C Issuer, together with any accrued and unpaid interest
thereon. Each Lender shall pay the proceeds of its Loan, in immediately
available funds, directly to the Agent for the account of the L/C Issuer, (i)
not later than 1:00 p.m. New York time, on the following Business Day if the
Agent shall have provided notice prior to 11:30 a.m. New York time, and (ii) if
the Agent shall have provided notice after 11:30 a.m. New York time, not later
than 1:00 p.m. New York time, on the second following Business Day. Revolving
Loans made by the Lenders to repay amounts under Letters of Credit pursuant to
this Section shall constitute Revolving Loans hereunder, initially shall be Base
Rate Loans and shall be subject to all of the provisions of this Agreement
concerning Revolving Loans, except that such Revolving Loans shall be made upon
demand by the Agent as set forth above rather than upon notice by the Borrower,
and shall be made, notwithstanding anything in this Agreement to the contrary,
without regard to satisfaction of conditions precedent to the making of
Revolving Loans set forth in Article V of this Agreement and, notwithstanding
any termination of the Revolving Loan Commitment prior to the Stated Maturity
Date, Revolving
-46-
53
Loans shall be made to reimburse the L/C Issuer for any drafts paid under any
Letter of Credit outstanding on the date of such termination.
Each Lender's obligation to make Revolving Loans in the amount of its
Revolving Percentage of any unreimbursed amounts outstanding under a Letter of
Credit pursuant hereto is several, and not joint or joint and several. The
failure of any Lender to perform its obligation to make a Revolving Loan in the
amount of such Lender's Revolving Percentage of any unreimbursed amounts
outstanding under a Letter of Credit will not relieve any other Lender of its
obligation hereunder to make a Revolving Loan in the amount of such other
Lender's Revolving Percentage of such amounts. Any Lender may, but shall have no
obligation to any Person to, assume all or any portion of any non-performing
Lender's obligation to make a Revolving Loan in the amount of such Lender's
Revolving Percentage of such amount outstanding under a Letter of Credit. The
Borrower agrees to accept the Revolving Loans hereinabove provided, whether or
not such loans could have been made pursuant to the terms of Section 5.2 hereof,
or any other Section of this Agreement.
SECTION III.6. Repurchase of Notes at the Option of the Lender Upon a
Change of Control.
(a) In the event that a Change of Control has occurred, each
Lender will have the right, at such Lender's option, pursuant to an
irrevocable and unconditional offer by the Borrower (the "Change of
Control Offer") to require the Borrower to repurchase all or any part of
such Lender's Notes on the date that is no later than thirty (30)
Business Days after the occurrence of such Change of Control (the
"Change of Control Payment Date"), at a cash price equal to one hundred
one percent (101%) of the principal amount thereof (the "Change of
Control Offer Price"), plus accrued and unpaid interest, fees and
expenses, if any, to but excluding the Change of Control Payment Date.
Upon expiration of the Change of Control Offer Period (as defined
below), the Borrower shall purchase all Notes tendered in response to
the Change of Control Offer.
(b) In the event that, pursuant to this Section 3.6, the Borrower
shall be required to commence a Change of Control Offer, the Borrower
shall follow the procedures set forth in this Section 3.6 as follows:
-47-
54
(1) the Change of Control Offer shall commence within ten
(10) Business Days following the Change of Control;
(2) the Change of Control Offer shall remain open for
twenty (20) Business Days following its commencement and no
longer, except to the extent that a longer period is required by
applicable law (the "Change of Control Offer Period");
(3) within five (5) Business Days following the expiration
of a Change of Control Offer, the Borrower shall purchase all of
the tendered Notes at the Change of Control Offer Price, plus
accrued and unpaid interest; and
(4) on or before the commencement of any Change of Control
Offer, the Borrower shall send, by first-class mail, a notice to
each of the Lenders, which shall govern the terms of any Change
of Control Offer and shall state:
(i) that the Change of Control Offer is being made
pursuant to this Section 3.6 and that all Notes or
portions thereof tendered will be accepted for payment;
(ii) the Change of Control Offer Price (including
the amount of accrued and unpaid interest), the Change of
Control Payment Date and the Change of Control Put Date
(as defined below);
(iii) that any Note, or portion thereof, not
tendered or accepted for payment will continue to accrue
interest;
(iv) that, unless the Borrower defaults in making
payment therefor in accordance with the last paragraph of
this clause (b), or such payment is prevented for any
reason, any Note, or portion thereof, accepted for payment
pursuant to the Change of Control Offer shall cease to
accrue interest after the Change of Control Payment Date;
(v) that Lenders electing to have a Note, or
portion thereof, purchased pursuant to a Change
-48-
55
of Control Offer will be required to surrender the Note
to the Borrower at the address specified in the notice,
prior to the close of business on the earlier of (a) the
fifth (5th) Business Day prior to the Change of Control
Payment Date and (b) the fifth (5th) Business Day
following the expiration of the Change of Control Offer
(such earlier date being the "Change of Control Put
Date");
(vi) that Lenders will be entitled to withdraw
their election, in whole or in part, if the Borrower
receives, prior to the close of business on the Change of
Control Put Date, a facsimile transmission or letter
setting forth the name of the Lender, the principal amount
of the Notes the Lender is withdrawing and a statement
containing a facsimile signature and stating that such
Lender is withdrawing its election to have such principal
amount of Notes purchased; and
(vii) a brief description of the events resulting
in such Change of Control.
Any such Change of Control Offer shall comply with all applicable
provisions of Federal and state laws and any provisions of this Agreement that
conflict with such laws shall be deemed to be superseded by the provisions of
such laws.
On or before the Change of Control Payment Date, the Borrower shall (i)
accept for payment Notes or portions thereof properly tendered pursuant to the
Change of Control Offer prior to the close of business on the Change of Control
Put Date and (ii) pay to each Lender that has tendered a Note the Change of
Control Offer Price (together with accrued and unpaid interest, fees and
expenses) of such Note whereupon, such Lender's Revolving Loan Commitment shall
be reduced by the principal amount received by such Lender. The Borrower shall
promptly execute and mail or deliver to such Lender a new Note equal in
principal amount to any unpurchased portion of the Note surrendered. Any Notes
not so accepted shall be promptly mailed or delivered by the Borrower to the
applicable Lender.
ARTICLE IV
-49-
56
CERTAIN EURODOLLAR RATE AND OTHER PROVISIONS
SECTION IV.1. Eurodollar Rate Lending Unlawful. If any Lender shall
determine (which determination shall, upon notice thereof to the Borrower and
the Lenders, be conclusive and binding on the Borrower) that the introduction of
or any change in or in the interpretation of any law makes it unlawful, or any
central bank or other governmental authority asserts that it is unlawful, for
such Lender to make, continue or maintain any Loan as, or to convert any Loan
into, a Eurodollar Rate Loan, the obligations of all Lenders to make, continue,
maintain or convert any such Loans shall, upon such determination, forthwith be
suspended until such Lender shall notify the Agent that the circumstances
causing such suspension no longer exist, and all Eurodollar Rate Loans shall
automatically convert into Base Rate Loans at the end of the then current
Interest Periods with respect thereto or sooner, if required by such law or
assertion.
SECTION IV.2. Deposits Unavailable. If the Agent shall have determined
that
(a) Dollar deposits in the relevant amount and for the relevant
Interest Period are not available to CIBC; or
(b) by reason of circumstances affecting the interbank market,
adequate means do not exist for ascertaining the interest rate
applicable hereunder to Eurodollar Rate Loans,
then, upon notice from the Agent to the Borrower and the Lenders, the
obligations of all Lenders under Section 2.3 and Section 2.4 to make or continue
any Loans as, or to convert any Loans into, Eurodollar Rate Loans shall
forthwith be suspended until the Agent shall notify the Borrower and the Lenders
that the circumstances causing such suspension no longer exist.
SECTION IV.3. Increased Costs, etc. The Borrower agrees to reimburse
each Lender for any increase in the cost to such Lender of, or any reduction in
the amount of any sum receivable by such Lender in respect of, (i) making,
continuing or maintaining (or of its obligation to make, continue or maintain)
any Loans as, or of converting (or of its obligation to convert) any Loans into,
Eurodollar Rate Loans or (ii) any Letter of Credit (or any Lender's
participation therein) issued hereunder as a result of any change in, or the
introduction, adoption, effectiveness, interpretation, reinterpretation or
phase-in adopted after the Effective Date of, any law or regulation, directive,
guideline,
-50-
57
decision or request (whether or not having force of law) of any court, central
bank, regulator or other governmental authority (whether or not having the force
of law and whether or not the failure to comply with such guideline or
requirement would be unlawful). Such Lender shall promptly notify the Agent and
the Borrower in writing of the occurrence of any such event, such notice to
state, in reasonable detail, the reasons therefor and the additional amount
required fully to compensate such Lender for such increased cost or reduced
amount. Such additional amounts shall be payable by the Borrower directly to
such Lender within five days of its receipt of such notice.
SECTION IV.4. Funding Losses. In the event any Lender shall incur any
loss or expense (including any loss or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by such Lender
to make, continue or maintain any portion of the principal amount of any Loan
as, or to convert any portion of the principal amount of any Loan into, a
Eurodollar Rate Loan) as a result of
(a) any conversion or repayment or prepayment of the principal
amount of any Eurodollar Rate Loans on a date other than the scheduled
last day of the Interest Period applicable thereto, whether pursuant to
Section 3.1 or otherwise;
(b) any Loans not being made as Eurodollar Rate Loans in
accordance with the Borrowing Request therefor; or
(c) any Loans not being continued as, or converted into,
Eurodollar Rate Loans in accordance with the Continuation/ Conversion
Notice therefor,
(except where such loss or expense results from a breach by such Lender of its
obligations under this Agreement) then, upon the written notice of such Lender
to the Borrower (with a copy to the Agent), the Borrower shall, within five days
of its receipt thereof, pay directly to such Lender such amount as will (in the
reasonable determination of such Lender) reimburse such Lender for such loss or
expense. Such written notice shall include calculations in reasonable detail of
such loss or expense.
SECTION IV.5. Increased Capital Costs. If any change in, or the
introduction, adoption, effectiveness, interpretation, reinterpretation or
phase-in of, any law or regulation, directive, guideline, decision or request
(whether or not having
-51-
58
the force of law) of any court, central bank, regulator or other governmental
authority affects or would affect the amount of capital required or expected to
be maintained by any Lender or any Person controlling such Lender, and such
Lender determines (in its reasonable discretion) that the rate of return on its
or such controlling Person's capital as a consequence of its Revolving Loan
Commitment or the Loans made by such Lender or any Letter of Credit issued by
such Lender or in which such Lender is a risk participant is reduced to a level
below that which such Lender or such controlling Person could have achieved but
for the occurrence of any such circumstance, then, in any such case upon notice
from time to time by such Lender to the Borrower, the Borrower shall immediately
pay directly to such Lender additional amounts sufficient to compensate such
Lender or such controlling Person for such reduction in rate of return. The
Borrower shall be liable for all such additional amounts only if such Lender
shall have notified the Borrower within 90 days after such Lender shall have
received notice of the change in circumstances giving rise to the request for
compensation hereunder; otherwise, the Borrower shall be liable only for such
additional amounts arising after delivery to the Borrower of notice of such
change in circumstances. A statement of such Lender as to any such additional
amount or amounts (including calculations thereof in reasonable detail) shall be
delivered to the Borrower. In determining such amount, such Lender shall use any
reasonable method of averaging and attribution.
SECTION IV.6. Taxes. All payments by the Borrower of principal of, and
interest on, the Loans and all other amounts payable hereunder shall be made
free and clear of and without deduction for any present or future income,
excise, stamp or franchise taxes and other taxes, fees, duties, withholdings or
other charges of any nature whatsoever imposed by any taxing authority, but
excluding franchise taxes and taxes imposed on or measured by any Lender's net
income or receipts (such non-excluded items being called "Taxes"). In the event
that any withholding or deduction from any payment to be made by the Borrower
hereunder is required in respect of any Taxes pursuant to any applicable law,
rule or regulation, then the Borrower will
(a) pay directly to the relevant authority the full amount
required to be so withheld or deducted;
(b) promptly forward to the Agent an official receipt or other
documentation satisfactory to the Agent evidencing such payment to such
authority; and
-52-
59
(c) pay to the Agent for the account of the Lenders such
additional amount or amounts as is necessary to ensure that the net
amount actually received by each Lender will equal the full amount such
Lender would have received had no such withholding or deduction been
required.
Moreover, if any Taxes are directly asserted against the Agent or any Lender
with respect to any payment received by the Agent or such Lender hereunder, the
Agent or such Lender may pay such Taxes and the Borrower will promptly pay such
additional amounts (including any penalties (other than penalties attributable
to the misconduct or negligence of the Agent or such Lender), interest or
expenses) as is necessary in order that the net amount received by such person
after the payment of such Taxes (including any Taxes on such additional amount)
shall equal the amount such person would have received had not such Taxes been
asserted.
If the Borrower fails to pay any Taxes when due to the appropriate
taxing authority or fails to remit to the Agent, for the account of the
respective Lenders, the required receipts or other required documentary
evidence, the Borrower shall indemnify the Lenders for any incremental Taxes,
interest or penalties that may become payable by any Lender as a result of any
such failure. For purposes of this Section 4.6, a distribution hereunder by the
Agent or any Lender to or for the account of any Lender shall be deemed a
payment by the Borrower.
Upon the request of the Borrower or the Agent, each Lender that is
organized under the laws of a jurisdiction other than the United States shall,
prior to the due date of any payments under the Notes, execute and deliver to
the Borrower and the Agent, on or about the first scheduled payment date in each
Fiscal Year, one or more (as the Borrower or the Agent may reasonably request)
United States Internal Revenue Service Forms 4224 or Forms 1001 or such other
forms or documents (or successor forms or documents), appropriately completed,
as may be applicable to establish the extent, if any, to which a payment to such
Lender is exempt from withholding or deduction of Taxes.
SECTION IV.7. Payments, Computations, etc. Unless otherwise expressly
provided, all payments by the Borrower pursuant to this Agreement, the Notes
(other than the Swingline Note) or any other Loan Document shall be made by the
Borrower to the Agent for the pro rata account of the Lenders entitled to
-53-
60
receive such payment. All such payments required to be made to the Agent shall
be made, without setoff, deduction, recoupment or counterclaim, not later than
1:00 p.m., New York time, on the date due, in same day or immediately available
funds, to such account as the Agent shall specify from time to time by notice to
the Borrower. Funds received after that time shall be deemed to have been
received by the Agent on the next succeeding Business Day. The Agent shall
promptly remit in same day funds to each Lender its share, if any, of such
payments received by the Agent for the account of such Lender. All interest,
Commitment Fees, L/C Fees, Fronting Fees shall be computed on the basis of the
actual number of days (including the first day but excluding the last day)
occurring during the period for which such interest or fee is payable over a
year comprised of 360 days (or, in the case of interest on a Base Rate Loan, 365
days or, if appropriate, 366 days). Whenever any payment to be made shall
otherwise be due on a day which is not a Business Day, such payment shall
(except as otherwise required by clause (c) of the definition of the term
"Interest Period" with respect to Eurodollar Rate Loans) be made on the next
succeeding Business Day and such extension of time shall be included in
computing interest and fees, if any, in connection with such payment.
SECTION IV.8. Sharing of Payments. If any Lender shall obtain any
payment or other recovery (whether voluntary, involuntary, by application of
setoff or otherwise) on account of any Loan (other than pursuant to the terms of
Sections 4.3, 4.4 and 4.5) in excess of its pro rata share of payments then or
therewith obtained by all Lenders, such Lender shall purchase from the other
Lenders such participations in Loans made by them as shall be necessary to cause
such purchasing Lender to share the excess payment or other recovery ratably
with each of them; provided, however, that if all or any portion of the excess
payment or other recovery is thereafter recovered from such purchasing Lender,
the purchase shall be rescinded and each Lender which has sold a participation
to the purchasing Lender shall repay to the purchasing Lender the purchase price
to the ratable extent of such recovery together with an amount equal to such
selling Lender's ratable share (according to the proportion of (a) the amount of
such selling Lender's required repayment to the purchasing Lender to (b) the
total amount so recovered from the purchasing Lender) of any interest or other
amount paid or payable by the purchasing Lender in respect of the total amount
so recovered. The Borrower agrees that any Lender so purchasing a participation
from another Lender pursuant to this Section may, to the fullest extent
permitted by law, exercise all its rights
-54-
61
of payment (including pursuant to Section 4.9) with respect to such
participation as fully as if such Lender were the direct creditor of the
Borrower in the amount of such participation. If under any applicable
bankruptcy, insolvency or other similar law, any Lender receives a secured claim
in lieu of a setoff to which this Section applies, such Lender shall, to the
extent practicable, exercise its rights in respect of such secured claim in a
manner consistent with the rights of the Lenders entitled under this Section to
share in the benefits of any recovery on such secured claim. For the purposes of
determining a Lender's applicable pro rata share, all issued and outstanding
Letters of Credit shall be considered Revolving Loans, and any payments in
respect thereof shall be deposited in the cash collateral account established
pursuant to Section 2.7 hereof. If any Letter of Credit shall thereafter expire
or terminate without being drawn, the amount previously deposited into the cash
collateral account in respect thereof shall be released from the cash collateral
account and distributed to the Lenders on a pro rata basis or, if no Specified
Default shall be continuing, delivered to the Borrower.
SECTION IV.9. Setoff. Each Lender shall, with the consent of the
Required Lenders, upon the occurrence of any Event of Default, have the right to
appropriate and apply to the payment of the Obligations owing to it (whether or
not then due), and (as security for such Obligations) the Borrower hereby grants
to each Lender a continuing security interest in, any and all balances, credits,
deposits, accounts or moneys of the Borrower then or thereafter maintained with
such Lender; provided, however, that any such appropriation and application
shall be subject to the provisions of Section 4.8. Each Lender agrees promptly
to notify the Borrower and the Agent after any such setoff and application made
by such Lender; provided, however, that the failure to give such notice shall
not affect the validity of such setoff and application. The rights of each
Lender under this Section are in addition to other rights and remedies
(including other rights of setoff under applicable law or otherwise) which such
Lender may have.
SECTION IV.10. Use of Proceeds. The Borrower shall apply the proceeds of
each Borrowing for general business purposes of the Borrower and its
Subsidiaries, including working capital, Capital Expenditures, refinancing
existing Indebtedness, acquisitions and Investments. Without limiting the
foregoing, no proceeds of any Loan will be used to acquire any equity security
of a class which is registered pursuant to Section 12 of the
-55-
62
Securities Exchange Act of 1934 or any "margin stock", as defined in F.R.S.
Board Regulation U.
SECTION IV.11. Discretion of Lenders as to Manner of Funding.
Notwithstanding any provision of this Agreement to the contrary, each Lender
shall be entitled to fund and maintain its funding of all or any part of its
Loans in any manner it sees fit, it being understood, however, that for the
purposes of this Agreement all determinations hereunder shall be made as if such
Lender had actually funded and maintained each Eurodollar Loan during the
Interest Period for such Loan through the purchase of deposits having a maturity
corresponding to the last day of such Interest Period and bearing an interest
rate equal to the Eurodollar Rate for such Interest Period. Each Lender shall
use reasonable efforts (consistent with its internal policies and legal and
regulatory restrictions) to take appropriate action, including the selection of
a jurisdiction of its Domestic Office or Eurodollar Office or the changing of
the jurisdiction of its Domestic Office or Eurodollar Office, as the case may
be, so as to avoid any suspension of such Lender's obligations under Section 4.1
or the imposition of any increased costs or taxes or to reduce the amount of any
such increased costs or taxes which may thereafter accrue; provided that no such
selection or change of the jurisdiction for its Domestic Office or Eurodollar
Office shall be made if, in the reasonable judgment of such Lender, such
selection or change would be disadvantageous to such Lender.
SECTION IV.12. Substitution. In the event that (w) any Lender shall have
defaulted in its obligation to fund a Revolving Loan in accordance with the
terms of this Agreement, (x) any Lender's circumstances shall have caused the
Lenders' obligations to make, or to continue or convert outstanding Loans as or
to, Eurodollar Rate Loans to be suspended pursuant to Section 4.1 or (y) any
Lender has demanded compensation under Section 4.3 or 4.5, or becomes entitled
to receive additional amounts under Section 4.6 and so long as there does not
exist a Specified Default, the Borrower shall have the right, with the consent
of the Agent (which consent shall not be unreasonably withheld), to designate an
Eligible Assignee (which may be one or more of the Lenders) as a substitute for
such Lender to purchase the Revolving Note (for a price equal to all principal,
interest, fees and costs owed to such Lender) and assume the Commitments of such
Lender.
ARTICLE V
-56-
63
CONDITIONS TO BORROWING
SECTION V.1. Initial Borrowing. The obligations of the Lenders to fund
the initial Borrowing or the L/C Issuer to issue the initial Letter of Credit
shall be subject to the prior or concurrent satisfaction of each of the
conditions precedent set forth in this Section 5.1.
SECTION V.1.1. Resolutions, etc. The Agent shall have received:
(a) Copies of the resolutions of the Board of Managers of the
Borrower (on its own behalf and as manager of Horseshoe Ventures) and
copies of resolutions of the Board of Directors of HGP (on its own
behalf and as general partner of NGCP, which is the general Partner of
HE, and as general partner of RPG) approving this Agreement, the Notes,
each other Loan Document to which it (or HE or RPG) is or is to be a
party, and of all documents evidencing other necessary action and
governmental approvals, if any, with respect to this Agreement, the
Notes and each other Loan Document to which the Borrower, HE and RPG is
a party, in each case certified (on the date of the initial Borrowing)
by the Secretary of the Borrower or HGP;
(b) A copy of the certificate of incorporation, certificate of
limited partnership or certificate of formation, as applicable, of each
of the Borrower, HE, RPG, NGCP, HGP, JBB and Horseshoe Ventures and each
amendment thereto, certified (as of a date reasonably near the initial
Borrowing Date) by the Secretary of State of its state of organization
as being a true and correct copy thereof;
(c) A certificate of the Secretary of the Borrower or HGP, dated
the initial Borrowing Date, certifying the names and true signatures of
the officers authorized to sign this Agreement, the Notes, each other
Loan Document and any document(s) relating to this Agreement to which
the Borrower, HE, NGCP, RPG, HGP, JBB and Horseshoe Ventures is a party
and the other documents to be delivered hereunder and thereunder;
(d) A certificate of the Secretary of State of Delaware (as of a
date reasonably near the initial Borrowing Date) that the Borrower is
duly organized as a limited
-57-
64
liability company, validly existing and in good standing under the laws
of the State of Delaware;
(e) A copy of a certificate of the Secretary of State of the
State of (i) Nevada, as to NGCP and HGP, (ii) Louisiana, as to HE, (iii)
Mississippi, as to RPG, and (iv) Delaware, as to Horseshoe Ventures and
JBB certifying (as of a date reasonably near the initial Borrowing Date)
the certificate of incorporation, certificate of limited partnership,
articles of organization or certificate of formation, as applicable, of
each of such entities and that each such entity is duly organized,
validly existing and in good standing under the laws of its state of
organization; and
(f) A certificate of the Secretary of the Borrower or HGP, dated
the initial Borrowing Date, certifying as to (i) the absence of any
amendments to the organization documents of the Borrower, HE, RPG, NGCP,
HGP, JBB and Horseshoe Ventures since the date of the Secretary of
State's certificate referred to in clause (e) above, (ii) a true and
correct copy of the operating agreement, limited partnership agreement
or by-laws, as applicable of the Borrower, HE, RPG, NGCP, HGP, JBB and
Horseshoe Ventures as in effect on the initial Borrowing Date and (iv)
the absence of any proceeding for the dissolution or liquidation of the
Borrower, HE, RPG, NGCP, HGP, JBB and Horseshoe Ventures.
SECTION V.1.2. Delivery of Notes. The Agent shall have received, for the
account of each Lender, the Notes duly executed and delivered by the Borrower.
SECTION V.1.3. Guarantees. The Agent shall have received the Guarantees,
dated the date hereof, duly executed by each of the Guarantors, covering all of
each such Person's equipment, gaming devices and associated equipment, fixtures,
furnishings, inventory, accounts, intangibles and other personal property of
every kind and description, including, to the extent permitted by the terms of
the financing or leasing agreements applicable thereto, all furniture, fixtures
and equipment that are financed or leased (all of the foregoing is collectively
referred to as the "Personal Property Collateral"), together with
(a) acknowledgment copies of properly filed Uniform Commercial
Code financing statements, assignments or amendments, or such other
evidence of filing as may
-58-
65
be acceptable to the Agent, naming each of the Guarantors as the debtor
and the Agent as the secured party, or other similar instruments or
documents, filed under the Uniform Commercial Code of all jurisdictions
as may be necessary or, in the opinion of the Agent, desirable to
perfect the security interest of the Agent pursuant to the Guarantees;
(b) executed copies of proper Uniform Commercial Code Form UCC-3
termination statements, if any, necessary to release all Liens (other
than Permitted Liens) in any collateral described in the Guarantees
together with such other Uniform Commercial Code Form UCC-3 termination
statements as the Agent may reasonably request); and
(c) certified copies of Uniform Commercial Code Requests for
Information or Copies (Form UCC-11), or a similar search report
certified by a party acceptable to the Agent, dated a date reasonably
near to the date of the initial Borrowing, listing all effective
financing statements which name the Guarantors (under their present
names and any previous names) as the debtor and which are filed in the
jurisdictions in which filings were made pursuant to clause (a) above,
together with copies of such financing statements (none of which, other
than Permitted Liens, shall cover any collateral described in the
Guarantees).
SECTION V.1.4. Payment of Outstanding Indebtedness, etc. All
Indebtedness identified in Item 7.2.2(b) ("Indebtedness to be Paid") of the
Disclosure Schedule, together with all interest, all prepayment premiums and
other amounts due and payable with respect thereto, shall have been paid in full
(including, to the extent necessary, from proceeds of the initial Borrowing).
SECTION V.1.5. Borrower Pledge Agreement. The Agent shall have received
executed counterparts of the Borrower Pledge Agreement, dated as of the date
hereof, duly executed by the Borrower, together with the certificates or other
documentation evidencing all of the ownership interests pledged pursuant to the
Borrower Pledge Agreement, which certificates or other documentation shall in
each case be accompanied by undated stock powers duly executed in blank.
SECTION V.1.6. JBB Pledge Agreement. The Agent shall have received
executed counterparts of the JBB Pledge Agreement, dated as of the date hereof,
duly executed by JBB, together with the
-59-
66
certificates or other documentation, evidencing all of the ownership interests
pledged pursuant to the JBB Pledge Agreement, which certificates or other
documentation shall in each case be accompanied by undated stock powers duly
executed in blank.
SECTION V.1.7. Security Agreement. The Agent shall have received
executed counterparts of the Security Agreement, dated as of the date hereof,
duly executed by the Borrower, covering all of the Borrower's Personal Property
Collateral, together with
(a) acknowledgment copies of properly filed Uniform Commercial
Code financing statements, assignments or amendments, or such other
evidence of filing as may be acceptable to the Agent, naming the
Borrower as the debtor and the Agent as the secured party, or other
similar instruments or documents, filed under the Uniform Commercial
Code of all jurisdictions as may be necessary or, in the opinion of the
Agent, desirable to perfect the security interest of the Agent pursuant
to the Security Agreement;
(b) executed copies of proper Uniform Commercial Code Form UCC-3
termination statements, if any, necessary to release all Liens (other
than Permitted Liens) in any collateral described in the Security
Agreement together with such other Uniform Commercial Code Form UCC-3
termination statements as the Agent may reasonably request); and
(c) certified copies of Uniform Commercial Code Requests for
Information or Copies (Form UCC-11), or a similar search report
certified by a party acceptable to the Agent, dated a date reasonably
near to the date of the initial Borrowing, listing all effective
financing statements which name the Borrower (under its present name and
any previous names) as the debtor and which are filed in the
jurisdictions in which filings were made pursuant to clause (a) above,
together with copies of such financing statements (none of which, other
than Permitted Liens, shall cover any collateral described in the
Security Agreement).
SECTION V.1.8. Deed of Trust. The Agent shall have received executed
counterparts of the Assignment of Deed of Trust with respect to the Tunica
Casino, dated as of the date hereof, duly executed by the remaining Noteholder,
together with
(i) evidence of the completion (or satisfactory arrangements for
the completion) of all recordings and
-60-
67
filings of the Assignment of Deed of Trust as may be necessary or, in
the reasonable opinion of the Agent, desirable effectively to assign the
Deed of Trust to the Agent as a valid, perfected Lien against the Tunica
Casino, which Lien is subject to no outstanding Liens securing monetary
obligations recorded against RPG's interest in the Tunica Casino other
than junior Liens securing the notes outstanding under the Senior Note
Indenture;
(ii) title policies (collectively, the "Title Policies") in favor
of the Agent on behalf of the Lenders in amounts and in form and
substance reasonably satisfactory to the Agent and issued by the Title
Company, with respect to the Deed of Trust; and
(iii) such other approvals, opinions, or documents in connection
with the foregoing as the Agent may reasonably request.
SECTION V.1.9. Surveys. The Agent shall have received, in
triplicate, a surveyor's current plat of survey (dated not earlier than October
1, 1997) of each of the Pledged Casinos prepared (and so certified) in
compliance with the provisions of any applicable state survey standards by a
registered land surveyor of the state in which such Pledged Casino is located,
and certified to the Agent and the Title Company.
SECTION V.1.10. Appraisals. The Agent shall have received copies
of MAI appraisals prepared in accordance with the Financial Institutions Reform,
Recovery and Enforcement Act of 1989, addressed to the Agent, with respect to
each Pledged Casino, prepared by Hospitality Valuation Services, Inc. and in
form, scope and substance reasonably satisfactory to the Agent in all material
respects, which appraisals shall not have been withdrawn or modified.
SECTION V.1.11. Environmental Audit. The Agent shall have
received copies of a so-called "phase one" environmental audit covering each
Pledged Casino in each case prepared by an environmental consulting firm
selected by the Borrower and reasonably acceptable to the Agent, and in form,
substance and results, reasonably satisfactory to the Agent.
SECTION V.1.12. RPG First Preferred Ship Mortgage.
-61-
68
(a) evidence of the completion (or satisfactory arrangements for
the completion) of all recordings and filings of the RPG First Preferred
Ship Mortgage Assignment as may be necessary or, in the reasonable
opinion of the Agent, desirable effectively to assign the RPG First
Preferred Ship Mortgage to the Agent as a valid, perfected Lien against
the vessel described therein, which Lien is subject to no outstanding
Liens securing monetary obligations recorded against such vessel other
than junior Liens securing the notes outstanding under the Senior Note
Indenture; and
(b) such other approvals, opinions or documents in connection
with the foregoing as the Agent may reasonably request.
SECTION V.1.13. Amended and Restated Note Assignment. The Agent
shall have received an executed original of the Amended and Restated Note
Assignment, dated as of the date hereof, together with the original HE Notes and
the RPG Notes, endorsed in blank and executed originals of each of the HE
Collateral Documents, and the following:
(a) acknowledgment copies of properly filed Uniform Commercial
Code financing statements (Form UCC-1), or such other evidence of filing
as may be acceptable to the Agent, naming HE as the debtor and the
Borrower as the secured party, together with properly filed assignments
to the Agent of the Borrower's interests thereunder, or other similar
instruments or documents, filed under the Uniform Commercial Code of all
jurisdictions as may be necessary or, in the opinion of the Agent,
desirable to perfect the security interest of the Agent (as assignee)
pursuant to the HE Collateral Documents;
(b) executed copies of proper Uniform Commercial Code Form UCC-3
termination statements, if any, necessary to release all Liens other
than Permitted Liens in any collateral described in the HE Collateral
Documents, together with such other Uniform Commercial Code Form UCC-3
termination statements as the Agent may reasonably request;
(c) certified copies of Uniform Commercial Code Requests for
Information or Copies (Form UCC-11), or a similar search report
certified by a party acceptable to the Agent, dated a date reasonably
near to the date of the
-62-
69
initial Borrowing, listing all effective financing statements which name
HE (under its present name and any previous names) as the debtor and
which are filed in the jurisdictions in which filings were made pursuant
to clause (a) above, together with copies of such financing statements;
(d) evidence of the completion (or satisfactory arrangements for
the completion) of all recordings and filings of the Assignment of HE
Mortgages as may be necessary or, in the reasonable opinion of the
Agent, desirable effectively to assign the HE Mortgages as valid,
perfected Liens against the Bossier Casino, which Liens are subject to
no outstanding Liens securing monetary obligations other than junior
Liens securing the notes outstanding under the Senior Note Indenture;
(e) title policies (collectively, the "Title Policies") in favor
of the Agent on behalf of the Lenders in amounts and in form and
substance reasonably satisfactory to the Agent and issued by the Title
Company, with respect to the Bossier Casino;
(f) evidence of the completion (or satisfactory arrangements for
the completion) of all recordings and filings of the HE First Preferred
Ship Mortgage Assignment as may be necessary or, in the reasonable
opinion of the Agent, desirable effectively to assign the HE First
Preferred Ship Mortgage to the Agent as a valid, perfected Lien against
the vessel described therein, which Lien is subject to no outstanding
Liens securing monetary obligations other than junior Liens securing the
notes outstanding under the Senior Note Indenture; and
(g) such other approvals, opinions or documents in connection
with the foregoing as the Agent may reasonably request.
SECTION V.1.14. Consents, etc. The Agent shall have received
certified copies of all documents evidencing any necessary action of the
Borrower and each Guarantor, material consents, shareholder, creditor, material
lessor, governmental and material regulatory approvals or exemptions in
connection with this Agreement and the other Loan Documents, all in form and
substance reasonably satisfactory to the Agent and, as to legal matters, its
counsel.
-63-
70
SECTION V.1.15. Insurance Coverages. The Borrower shall have
delivered to the Agent the insurance certificates and policies identified on
Schedule III, together with loss payable endorsements in favor of the Agent
under all such insurance policies.
SECTION V.1.16. Solvency. The Agent shall have received a
certificate substantially in the form of Exhibit K hereto from the president,
the chief executive or chief financial Authorized Officer of the Borrower as to
solvency of the Borrower and each of the Guarantors, both before and after
giving effect to the transactions contemplated by this Agreement.
SECTION V.1.17. Opinions of Counsel. The Agent shall have
received opinions, dated the date of the initial Borrowing and addressed to the
Agent and all Lenders, from Xxxxxxx & XxXxxxxx, counsel to the Borrower, Xxxxx &
Xxxxxxxx, special Mississippi counsel to the Borrower, Xxxxx & Xxxxx, special
Louisiana and maritime counsel to the Borrower, Xxxxxxxx & O'Neil, LLP, special
New York counsel to the Borrower, Xxxxxxxx, Xxxxxx & Finger, special Delaware
counsel to the Borrower and Xxxxxxx Xxxxxx, special Nevada counsel to the
Borrower substantially in the form of Exhibit F hereto.
SECTION V.1.18. Other Debt Documentation. The Agent shall have
received a certificate signed by an Authorized Officer of the Borrower stating
that attached thereto are true and complete copies of (i) the definitive Senior
Note Indenture and all collateral documents as in effect on the date of the
initial Borrowing securing the Existing Senior Notes and (ii) the definitive
Subordinated Debt Indenture as in effect on such date.
SECTION V.1.19. Intercreditor Agreement. An amended and restated
intercreditor agreement, substantially in the form of Exhibit H hereto, between
the Agent and the trustee for the holders of the Senior Notes.
SECTION V.1.20. Closing Fees, Expenses, etc. The Agent shall have
received for its own account, or for the account of each Lender, as the case may
be, all fees, costs and expenses due and payable pursuant to Sections 3.3 and
10.3, if then invoiced.
SECTION V.2. All Borrowings. Subject to the provisions of Section 3.1.2,
the obligation of the L/C Issuer to issue any
-64-
71
Letter of Credit or of each Lender to fund any Loan on the occasion of any
Borrowing (including the initial Borrowing) shall be subject to the satisfaction
of each of the conditions precedent set forth in this Section 5.2.
SECTION V.2.1. Compliance with Warranties, No Default, etc. Both
before and after giving effect to the issuance of a Letter of Credit or any
Borrowing (but, if any Default of the nature referred to in Section 8.1.5 shall
have occurred with respect to any other Indebtedness, without giving effect to
the application, directly or indirectly, of the proceeds thereof) the following
statements shall be true and correct
(a) the representations and warranties set forth in Article VI
(excluding, however, those contained in Section 6.7) shall be true and
correct in all material respects with the same effect as if then made
(unless stated to relate solely to an earlier date, in which case such
representations and warranties shall be true and correct as of such
earlier date);
(b) except as disclosed by the Borrower to the Agent and the
Lenders pursuant to Section 6.7
(i) no labor controversy, litigation, action, arbitration
or governmental investigation or proceeding shall be pending or,
to the knowledge of the Borrower, threatened against the Borrower
or any of its Subsidiaries which is reasonably likely to have a
Material Adverse Effect; and
(ii) no development shall have occurred in any labor
controversy, litigation, arbitration or governmental
investigation or proceeding disclosed pursuant to Section 6.7
which is reasonably likely to have a Material Adverse Effect;
(c) to the extent that, after giving effect to such Borrowing or
the issuance of such Letter of Credit, the aggregate principal amount of
all outstanding Loans and the face amount of all outstanding Letters of
Credit would exceed $150,000,000, the incurrence thereof shall be
permissible under Section 4.11(g) of the Senior Note Indenture; and
(d) no Default shall have then occurred and be
-65-
72
continuing, and neither the Borrower, any other Obligor, nor any of its
Subsidiaries are in violation of any law or governmental regulation or
court order or decree which is reasonably likely to have a Material
Adverse Effect.
SECTION V.2.2. Borrowing Request. The Agent shall have received a
Borrowing Request for such Borrowing. Each of the delivery of a Borrowing
Request and the acceptance by the Borrower of the proceeds of such Borrowing
shall constitute a representation and warranty by the Borrower that on the date
of such Borrowing (both immediately before and after giving effect to such
Borrowing and the application of the proceeds thereof) the statements made in
Subsection 5.2.1 are true and correct. Each request by the Borrower for the
issuance of a Letter of Credit shall be made pursuant to a Letter of Credit
application in the L/C Issuer's then current form. Delivery of such application
and the delivery by the L/C Issuer of the Letter of Credit shall constitute a
representation and warranty by the Borrower that on the date of issuance of such
Letter of Credit (both immediately before and after giving effect thereto) the
statements made in Subsection 5.2.1 are true and correct. Each request by the
Borrower for Borrowings of Swing Loans and the acceptance by the Borrower of the
proceeds of such Swing Loans shall constitute a representation and warranty by
the Borrower that on the date of such Borrowing (both immediately before and
after giving effect to such Borrowing) the statements made in Subsection 5.2.1
are true and correct.
SECTION V.2.3. Satisfactory Legal Form. All documents executed or
submitted pursuant hereto by or on behalf of the Borrower or any of its
Subsidiaries or any other Obligors shall be satisfactory in form and substance
to the Agent and its counsel; the Agent and its counsel shall have received all
information, approvals, opinions, documents or instruments as the Agent or its
counsel may reasonably request.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders and the Agent to enter into this
Agreement and to make Loans and issue Letters of Credit hereunder, the Borrower
represents and warrants unto the Agent and each Lender as set forth in this
Article VI.
-66-
73
SECTION VI.1. Organization, etc. The Borrower and each of its
Subsidiaries is a company, corporation or partnership validly organized and
existing and in good standing under the laws of the State of its formation, is
duly qualified to do business and is in good standing as a foreign company,
corporation or partnership in each jurisdiction where the nature of its business
requires such qualification, and has full power and authority and holds all
requisite governmental licenses, permits and other approvals to enter into and
perform its Obligations under this Agreement, the Notes and each other Loan
Document to which it is a party and to own and hold under lease its property and
to conduct its business substantially as currently conducted by it, except where
the failure to so qualify or hold such license, permit or approval could have a
Material Adverse Effect.
SECTION VI.2. Due Authorization, Non-Contravention, etc. The execution,
delivery and performance by the Borrower of this Agreement, the Notes and each
other Loan Document executed or to be executed by it, and the execution,
delivery and performance by each Guarantor of each Loan Document executed or to
be executed by it, are within each such Person's company, corporate or
partnership powers, have been duly authorized by all necessary company,
corporate or partnership action, and do not
(a) contravene the Person's Organic Documents;
(b) contravene any contractual restriction, law or governmental
regulation or court decree or order binding on or affecting the Borrower
or any Guarantor; or
(c) result in, or require the creation or imposition of, any Lien
on any of any Obligor's properties.
SECTION VI.3. Government Approval, Regulation, etc. Except for such
authorizations, approvals or notices (a) obtained or delivered as of the
Effective Date, (b) subsequently required in connection with the addition of any
Guarantor pursuant to Section 7.1.10, or (c) set forth in Item 6.3 of the
Disclosure Schedule, no authorization or approval or other action by, and no
notice to or filing with, any governmental authority or regulatory body or other
Person is required for the due execution, delivery or performance by the
Borrower or any other Obligor of this Agreement, the Notes or any other Loan
Document. Neither the Borrower nor any of its Subsidiaries is an "investment
company" within the meaning of the Investment Company Act of 1940, as amended,
or a "holding company", or a "subsidiary company" of a
-67-
74
"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.
SECTION VI.4. Validity, etc. This Agreement constitutes, and the Notes
and each other Loan Document executed by the Borrower will, on the due execution
and delivery thereof, constitute, the legal, valid and binding obligations of
the Borrower enforceable in accordance with their respective terms; and each
Loan Document executed pursuant hereto by each other Obligor will, on the due
execution and delivery thereof by such Obligor, be the legal, valid and binding
obligation of such Obligor enforceable in accordance with its terms.
SECTION VI.5. Financial Information. The audited balance sheets of the
Borrower and each of its Subsidiaries as at December 31, 1996, and the unaudited
balance sheet of the Borrower and each of its Subsidiaries as at June 30, 1997
and the related statements of earnings and cash flow of the Borrower and each of
its Subsidiaries, copies of which have been furnished to the Agent and each
Lender, have been prepared in accordance with GAAP consistently applied, subject
only to normal year-end accruals and audit adjustments, and present fairly the
consolidated financial condition of the corporations covered thereby as at the
dates thereof and the results of their operations for the periods then ended.
SECTION VI.6. No Material Adverse Change. Since December 31, 1996, no
event or condition has occurred which could have a Material Adverse Effect.
SECTION VI.7. Litigation, Labor Controversies, etc. There is no pending
or, to the knowledge of the Borrower, threatened litigation, action, proceeding,
or labor controversy affecting the Borrower or any of its Subsidiaries, or any
of their respective properties, businesses, assets or revenues, which may
materially adversely affect the consolidated financial condition, operations,
assets, business, properties or prospects of the Borrower and its Subsidiaries
or which purports to affect the legality, validity or enforceability of this
Agreement, the Notes or any other Loan Document, except as disclosed in Item 6.7
("Litigation") of the Disclosure Schedule.
SECTION VI.8. Subsidiaries. The Borrower has no Subsidiaries, except
those Subsidiaries
-68-
75
(a) which are identified in Item 6.8 ("Existing Subsidiaries") of
the Disclosure Schedule; or
(b) which are permitted to have been acquired in accordance with
Section 7.2.5 or 7.2.9.
SECTION VI.9. Ownership of Properties. The Borrower and each of its
Subsidiaries owns good and marketable title to, or possess the right to use to
the extent necessary, all of its properties and assets, real and personal,
tangible and intangible, of any nature whatsoever (including patents,
trademarks, trade names, service marks and copyrights), free and clear of all
Liens, charges or claims (including infringement claims with respect to patents,
trademarks, copyrights and the like) except as permitted pursuant to Section
7.2.3. The provisions of the HE Collateral Documents, the Deed of Trust, the RPG
First Preferred Ship Mortgage, the Security Agreement, the Guarantees, the
Borrower Pledge Agreement, the JBB Pledge Agreement and the Amended and Restated
Note Assignment are effective to create, in favor of the Agent (for the benefit
of the Lenders), valid and perfected first priority Liens on the property
described therein, subject only to the Permitted Liens. All governmental
approvals necessary or, in the reasonable opinion of the Agent, desirable to
perfect and protect, and establish and maintain the priority of, such Liens have
been duly effected or taken.
SECTION VI.10. Compliance. The Borrower and the Guarantors are in
compliance with all presently existing applicable statutes, laws, regulations,
rules, ordinances and orders of any kind whatsoever (including, but not limited
to, any zoning and building laws or ordinances, subdivision laws or ordinances,
any Environmental Laws, or any presently existing rules, regulations or orders
of any governmental entity, authority or agency) (all of which are sometimes
hereinafter collectively referred to as "Laws"), and with all presently existing
covenants and restrictions of record relating to the use and occupancy of any of
their respective properties, except where the failure to so qualify or hold such
license, permit or approval could have a Material Adverse Effect.
SECTION VI.11. Taxes. The Borrower and each of its Subsidiaries have
filed all income tax returns and all other material tax returns and reports
required by law to have been filed by it and has paid all taxes and governmental
charges thereby shown to be owing, except any such taxes or charges which
-69-
76
are being diligently contested in good faith by appropriate proceedings and for
which adequate reserves in accordance with GAAP shall have been set aside on its
books.
SECTION VI.12. Pension and Welfare Plans. During the
twelve-consecutive-month period prior to the date of the execution and delivery
of this Agreement and prior to the date of any Borrowing hereunder, no steps
have been taken to terminate any Pension Plan, and no contribution failure has
occurred with respect to any Pension Plan sufficient to give rise to a Lien
under section 302(f) of ERISA. No condition exists or event or transaction has
occurred with respect to any Pension Plan which might result in the incurrence
by the Borrower or any member of the Controlled Group of any material liability,
fine or penalty. Except as disclosed in Item 6.12 ("Employee Benefit Plans") of
the Disclosure Schedule, neither the Borrower nor any member of the Controlled
Group has any contingent liability with respect to any post-retirement benefit
under a Welfare Plan, other than liability for continuation coverage described
in Part 6 of Title I of ERISA.
SECTION VI.13. Environmental Warranties. Except as set forth in Item
6.13 ("Environmental Matters") of the Disclosure Schedule:
(a) all facilities and property (including underlying
groundwater) owned or leased by the Borrower or any of its Subsidiaries
have been, and continue to be, owned or leased by the Borrower and its
Subsidiaries in material compliance with all Environmental Laws , except
where any such failure to comply could not reasonably be expected to
have a Material Adverse Effect;
(b) except where any of the following could not reasonably be
expected to have a Material Adverse Effect, there have been no past, and
there are no pending or, to the Borrower's knowledge, threatened
(i) claims, complaints, notices or requests for information
received by the Borrower or any of its Subsidiaries with respect to
any alleged violation of any Environmental Law, or
(ii) complaints, notices or inquiries to the Borrower or any of
its Subsidiaries regarding potential liability under any
Environmental Law;
-70-
77
(c) there have been no Releases of Hazardous Materials at, on or
under any property now, or to the Borrower's knowledge previously, owned
or leased by the Borrower or any of its Subsidiaries that, singly or in
the aggregate, have, or may reasonably be expected to have a Material
Adverse Effect;
(d) the Borrower and its Subsidiaries have been issued and are in
material compliance with all permits, certificates, approvals, licenses
and other authorizations relating to environmental matters and necessary
or desirable for their businesses, except where the failure to obtain or
comply with any such permits could not reasonably be expected to have a
Material Adverse Effect;
(e) no property now, or to the Borrower's knowledge previously,
owned or leased by the Borrower or any of its Subsidiaries is listed or
proposed for listing (with respect to owned property only) on the
National Priorities List pursuant to CERCLA, on the CERCLIS or on any
similar state list of sites requiring investigation or clean-up;
(f) there are no underground storage tanks, active or abandoned,
including petroleum storage tanks, on or under any property now, or to
the Borrower's knowledge previously, owned or leased by the Borrower or
any of its Subsidiaries that, singly or in the aggregate, have, or may
reasonably be expected to have, a Material Adverse Effect;
(g) neither the Borrower nor any Subsidiary of the Borrower has
directly transported or directly arranged for the transportation of any
Hazardous Material to any location which is listed or proposed for
listing on the National Priorities List pursuant to CERCLA, on the
CERCLIS or on any similar state list or which is the subject of federal,
state or local enforcement actions or other investigations which may
lead to material claims against the Borrower or such Subsidiary thereof
for any remedial work, damage to natural resources or personal injury,
including claims under CERCLA;
(h) there are no polychlorinated biphenyls or friable asbestos
present at any property now, or to the Borrower's knowledge previously,
owned or leased by the Borrower or any Subsidiary of the Borrower that,
singly or in the aggregate, have, or may reasonably be expected to have,
a Material
-71-
78
Adverse Effect; and
(i) no conditions exist at, on or under any property now, or to
the Borrower's knowledge previously, owned or leased by the Borrower
which, with the passage of time, or the giving of notice or both, could
reasonably be expected to have a Material Adverse Effect.
SECTION VI.14. HE Notes. As of the date of the initial Borrowing, the
outstanding principal amount of the HE Notes is not less than $182,000,000.
SECTION VI.15. Senior Debt. All Indebtedness of the Borrower under this
Agreement shall be "Senior Debt" for purposes of the Subordinated Debt
Indenture.
SECTION VI.16. Regulations G, U and X. The Borrower is not engaged in
the business of extending credit for the purpose of purchasing or carrying
margin stock, and no proceeds of any Loans will be used for a purpose which
violates, or would be inconsistent with, F.R.S. Board Regulation G, U or X.
Terms for which meanings are provided in F.R.S. Board Regulation G, U or X or
any regulations substituted therefor, as from time to time in effect, are used
in this Section with such meanings.
SECTION VI.17. Accuracy of Information. All factual information
heretofore or contemporaneously furnished by or on behalf of the Borrower in
writing to the Agent or any Lender for purposes of or in connection with this
Agreement or any transaction contemplated hereby is, and all other such factual
information hereafter furnished by or on behalf of the Borrower to the Agent or
any Lender will be, true and accurate in every material respect on the date as
of which such information is dated or certified and as of the date of execution
and delivery of this Agreement by the Agent and such Lender, and such
information is not, or shall not be, as the case may be, incomplete by omitting
to state any material fact necessary to make such information not misleading.
ARTICLE VII
COVENANTS
SECTION VII.1. Affirmative Covenants. The Borrower agrees with the Agent
and each Lender that, until all Commitments have
-72-
79
terminated, all Letters of Credit have expired or been cash-collateralized and
all Obligations have been paid and performed in full, the Borrower will perform
the obligations set forth in this Section 7.1.
SECTION VII.1.1. Financial Information, Reports, Notices, etc.
The Borrower will furnish, or will cause to be furnished, to each Lender and the
Agent copies of the following financial statements, reports, notices and
information:
(a) as soon as available and in any event within 45 days after
the end of each of the first three Fiscal Quarters of each Fiscal Year
of the Borrower, consolidated balance sheets of the Borrower and its
Subsidiaries as of the end of such Fiscal Quarter, consolidating balance
sheets of the Borrower, its Subsidiaries and its Unrestricted
Subsidiaries as of the end of such Fiscal Quarter, consolidated
statements of earnings of the Borrower and its Subsidiaries for such
Fiscal Quarter and for the period commencing at the end of the previous
Fiscal Year and ending with the end of such Fiscal Quarter and
consolidating statements of earnings of the Borrower, its Subsidiaries
and its Unrestricted Subsidiaries for such Fiscal Quarter and for the
period commencing at the end of the previous Fiscal Year and ending with
the end of such Fiscal Quarter, certified by the chief financial
Authorized Officer of the Borrower;
(b) as soon as available and in any event within 90 days after
the end of each Fiscal Year of the Borrower, a copy of the annual audit
report for such Fiscal Year for the Borrower, its Subsidiaries and its
Unrestricted Subsidiaries, including therein consolidated balance sheets
of the Borrower, its Subsidiaries and its Unrestricted Subsidiaries as
of the end of such Fiscal Year and consolidated statements of earnings
and cash flow of the Borrower, its Subsidiaries and its Unrestricted
Subsidiaries for such Fiscal Year, in each case certified (without any
Impermissible Qualification) in a manner acceptable to the Agent and the
Required Lenders by Xxxxxx Xxxxxxxx LLP or other independent public
accountants reasonably acceptable to the Agent and the Required Lenders,
together with a certificate from such accountants to the effect that, in
making the examination necessary for the signing of such annual report
by such accountants, they have not become aware of any Default or Event
of Default that has occurred
-73-
80
and is continuing, or, if they have become aware of such Default or
Event of Default, describing such Default or Event of Default and the
steps, if any, being taken to cure it;
(c) as soon as available and in any event within 90 days after
the end of each Fiscal Year of the Borrower, consolidating balance
sheets of the Borrower, its Subsidiaries and its Unrestricted
Subsidiaries as of the end of such Fiscal Year and consolidating
statements of earnings of the Borrower, its Subsidiaries and its
Unrestricted Subsidiaries for such Fiscal Year and for the final Fiscal
Quarter of such Fiscal Year, consolidated balance sheets of the Borrower
and its Subsidiaries as of the end of such Fiscal Year and for the final
Fiscal Quarter of such Fiscal Year, and consolidated statements of
earnings of the Borrower and its Subsidiaries for such Fiscal Year,
certified by the chief financial Authorized Officer of the Borrower;
(d) as soon as available and in any event within 45 days after
the end of each of the first three Fiscal Quarters of each Fiscal Year
and within 90 days after the end of the final Fiscal Quarter of each
Fiscal Year, a certificate in substantially the form of Exhibit I,
executed by the chief financial Authorized Officer of the Borrower,
showing (in reasonable detail and with appropriate calculations and
computations in all respects reasonably satisfactory to the Agent)
compliance with the financial covenants set forth in Section 7.2;
(e) as soon as possible and in any event within 45 days after the
end of each Fiscal Quarter, a computation of the Leverage Ratio as of
the end of such Fiscal Quarter and a written report, in form and detail
reasonably acceptable to the Agent, with respect to the status of each
Pledged Casino, including the amounts of Expansion Capital Expenditures
and Investments made, and reasonably anticipated to be made, with
respect thereto, each certified by the chief Financial Authorized
Officer of the Borrower;
(f) as soon as possible and in any event within 30 days after the
end of each month, monthly and year-to-date (i) consolidated operating
statements for the Borrower and its Subsidiaries, which statements shall
compare the financial performance of the Borrower and its Subsidiaries
-74-
81
to the Borrower's projections and to the performance of such Persons for
the comparable period of the previous Fiscal Year, (ii) consolidating
operating statements for the Borrower, its Subsidiaries and its
Unrestricted Subsidiaries, and (iii) operating statements for each
Pledged Casino, which statements shall compare the financial performance
of such Pledged Casino to the Borrower's projections and to the
performance of such Pledged Casino for the comparable period of the
previous Fiscal Year; and each of which shall be certified by the chief
financial Authorized Officer of the Borrower and accompanied by a
narrative report describing the results of operations of the Borrower,
each Pledged Casino and each Unrestricted Subsidiary during such month;
(g) as soon as possible and in any event within three Business
Days after the occurrence of each Default, a statement of the chief
financial Authorized Officer of the Borrower setting forth details of
such Default and the action which the Borrower has
taken and proposes to take with respect thereto;
(h) as soon as possible and in any event within three Business
Days after the Borrower has knowledge of (x) the occurrence of any
material adverse development with respect to any litigation, action,
proceeding, or labor controversy described in Section 6.7 or (y) the
commencement of any material labor controversy, litigation, action,
proceeding of the type described in Section 6.7, notice thereof and
copies of all available documentation relating thereto;
(i) promptly after the sending or filing thereof, copies of all
reports which the Borrower sends to any of its security holders, and all
reports and registration statements which the Borrower or any of its
Subsidiaries files with the Securities and Exchange Commission or any
national securities exchange;
(j) within 30 days after the beginning of each Fiscal Year of the
Borrower, financial projections for the Borrower and its Subsidiaries
and each Pledged Casino for such Fiscal Year, in reasonable detail and
in all respects satisfactory to the Agent;
(k) immediately upon becoming aware of the institution of any
steps by the Borrower or any other Person to
-75-
82
terminate any Pension Plan, or the failure to make a required
contribution to any Pension Plan if such failure is sufficient to give
rise to a Lien under section 302(f) of ERISA, or the taking of any
action with respect to a Pension Plan which could result in the
requirement that the Borrower furnish a bond or other security to the
PBGC or such Pension Plan, or the occurrence of any event with respect
to any Pension Plan which could result in the incurrence by the Borrower
of any material liability, fine or penalty, or any material increase in
the contingent liability of the Borrower with respect to any
post-retirement Welfare Plan benefit, notice thereof and copies of all
documentation relating thereto; and
(l) such other information respecting the condition or
operations, financial or otherwise, of the Borrower or any of its
Subsidiaries as any Lender through the Agent may from time to time
reasonably request.
SECTION VII.1.2. Compliance with Laws, etc. The Borrower will,
and will cause each of its Subsidiaries to, comply in all material respects with
all applicable laws, rules, regulations and orders, such compliance to include
(without limitation):
(a) the maintenance and preservation of its existence and
qualification as a foreign company, partnership or corporation except
(i) as permitted by Section 7.2.9 and (ii) where the failure to so
qualify or remain qualified could not reasonably be expected to have a
Material Adverse Effect; and
(b) the payment, before the same become delinquent, of all taxes,
assessments and governmental charges imposed upon it or upon its
property except (i) to the extent being diligently contested in good
faith by appropriate proceedings and for which adequate reserves in
accordance with GAAP shall have been set aside on its books, and (ii)
any immaterial tax so long as no Collateral or other material property
of the Borrower or its Subsidiaries is at impending risk of being
seized, levied upon or forfeited.
SECTION VII.1.3. Maintenance of Properties. The Borrower will,
and will cause each of its Subsidiaries to, maintain, preserve, protect and keep
its properties in good repair, working order and condition, subject to wear and
tear in
-76-
83
the ordinary course of business, and make necessary and proper repairs, renewals
and replacements so that its business carried on in connection therewith may be
properly conducted at all times unless the Borrower determines in good faith
that the continued maintenance of any of its properties is no longer
economically desirable. The Borrower shall not permit all or any portion of any
of the Pledged Casinos to be removed, demolished or materially altered, except
in connection with the improvement, renovation or expansion thereof and to the
extent that the value thereof is not materially impaired, and shall restore,
replace or rebuild any Pledged Casino, or any part thereof now or hereafter
damaged or destroyed by any casualty (whether or not insured against or
insurable), unless the insurance proceeds attributable to such casualty shall,
pursuant to the terms of the applicable Collateral Document, not be released to
the Borrower for such purpose by the Agent and the Lenders.
SECTION VII.1.4. Insurance. The Borrower will, and will cause
each of its Subsidiaries to, maintain or cause to be maintained with responsible
insurance companies insurance (subject to customary deductibles and retentions)
with respect to its properties and business (including business interruption
insurance) against such casualties and contingencies and of such types and in
such amounts as is customary in the case of similar businesses and will, upon
request of the Agent, furnish to each Lender at reasonable intervals (not to
exceed more than one request per Fiscal Quarter) a certificate of an Authorized
Officer of the Borrower setting forth the nature and extent of all insurance
maintained by the Borrower and its Subsidiaries in accordance with this Section.
SECTION VII.1.5. Books and Records. The Borrower will, and will
cause each of its Subsidiaries to, keep books and records which accurately
reflect all of its business affairs and transactions and permit the Agent and
each Lender or any of their respective representatives, at reasonable times and
intervals (but not so as to materially interfere with the business of the
Borrower or any of its Subsidiaries), to visit all of its offices, to discuss
its financial matters with its officers and independent public accountant (and
the Borrower hereby authorizes such independent public accountant to discuss the
Borrower's financial matters with each Lender or its representatives whether or
not any representative of the Borrower is present) and to examine (and, at the
expense of the Borrower, photocopy extracts from) any of its books or other
corporate records. The Borrower shall pay any reasonable fees of such
independent public
-77-
84
accountant incurred in connection with the Agent's or any Lender's exercise of
its rights pursuant to this Section. The Agent and the Lenders shall keep all
information obtained pursuant to the Section 7.1.5 in confidence unless and
until it is publicly disclosed by the Borrower, provided that such information
may be transmitted to the Agent or another Lender in connection with the
exercise or enforcement of the rights of the Agent or the Lenders herein.
SECTION VII.1.6. Environmental Covenant. The Borrower will, and
will cause each of its Subsidiaries to,
(a) use and operate all of its facilities and properties in
material compliance with all Environmental Laws, keep all necessary
permits, approvals, certificates, licenses and other authorizations
relating to environmental matters in effect and remain in material
compliance therewith, and handle all Hazardous Materials in material
compliance with all applicable Environmental Laws, except where the
failure to comply with any of the foregoing could not reasonably be
expected to have a Material Adverse Effect;
(b) immediately notify the Agent and provide copies upon receipt
of all written claims, complaints, notices or inquiries relating to the
environmental condition of its facilities and properties or compliance
with Environmental Laws, and shall promptly commence and diligently
proceed to cure, to the reasonable satisfaction of the Agent any actions
and proceedings relating to violations of compliance with applicable
Environmental Laws; and
(c) provide such information and certifications which the Agent
may reasonably request from time to time to evidence compliance with
this Section 7.1.6.
SECTION VII.1.7. Maintenance of Existence. The Borrower will take
all action necessary to maintain its corporate existence and the corporate
existence of each Guarantor.
SECTION VII.1.8. Gaming and Liquor Licenses. The Borrower will
maintain, and will cause each Guarantor to maintain, (i) such valid gaming
licenses, registrations and findings of suitability in all jurisdictions as may
be necessary to conduct its casino businesses and (ii) all liquor licenses and
registrations as may be necessary to sell alcoholic beverages
-78-
85
from and in its Casinos.
SECTION VII.1.9. Accuracy of Information. All factual information
furnished after the date of execution and delivery of this Agreement by or on
behalf of the Borrower or any Guarantor in writing to the Agent or any Lender
for purposes of or in connection with this Agreement or any transaction
contemplated hereby will present fairly in every material respect on the date as
of which such information is dated or certified, and such information shall not
be incomplete by omitting to state any material fact necessary to make such
information not misleading.
SECTION VII.1.10. Additional Guarantees and Collateral
Documentation. Promptly upon the determination that any Subsidiary has become a
Significant Subsidiary or upon written notice from the Borrower to the Agent
that it wishes to redesignate an Unrestricted Subsidiary as a Subsidiary, the
Borrower will cause such Subsidiary to execute and deliver a Guarantee and such
collateral documentation as the Agent may reasonably request to effect the
pledge to the Agent of all of such Person's tangible and intangible assets. In
addition, the Borrower may, from time to time, cause any Subsidiary to execute
and deliver a Guarantee substantially in the form of Exhibit G hereto, and such
Subsidiary shall thereafter be a Guarantor for purposes hereof.
SECTION VII.1.11. Additional HE Pledges. Promptly upon the
elimination of all minority interests in HE, the Borrower will cause HE to
execute a Guarantee and such collateral documentation as the Agent may
reasonably request to effect the direct pledge of all of such Person's tangible
and intangible assets. Upon completion of such documentation, the Borrower's
obligations under Section 7.1.12 shall terminate.
SECTION VII.1.12. Additional HE or RPG Notes. Promptly upon its
receipt of any new HE Notes or RPG Notes, the Borrower will deliver such notes
to the Agent as additional Collateral pursuant to the Amended and Restated Note
Assignment.
SECTION VII.1.13. Outstandings Under This Agreement. After the
initial Borrowing hereunder, the Borrower will at all times have outstanding
Loans or Letters of Credit in an aggregate principal or face amount of not less
than $100,000.
SECTION VII.2. Negative Covenants. The Borrower agrees with the Agent
and each Lender that from and after the Effective
-79-
86
Date, until all Commitments have terminated, all Letters of Credit have expired
or been cash-collateralized and all Obligations have been paid and performed in
full, the Borrower will perform the obligations set forth in this Section 7.2.
SECTION VII.2.1. Business Activities. The Borrower will not, and
will not permit any of its Subsidiaries to, directly or indirectly engage in any
line of business activity other than a Related Business.
SECTION VII.2.2. Indebtedness. The Borrower will not, and will
not permit any of its Subsidiaries to, create, incur, assume or suffer to exist
or otherwise become or be liable in respect of any Indebtedness, other than,
without duplication, the following:
(a) Indebtedness in respect of the Loans and other Obligations;
(b) until the date of the initial Borrowing, Indebtedness
identified in Item 7.2.2(b) ("Indebtedness to be Paid") of the
Disclosure Schedule;
(c) Indebtedness existing as of the Effective Date which is
identified in Item 7.2.2(c) ("Ongoing Indebtedness") of the Disclosure
Schedule;
(d) a completion guaranty by the Borrower for the Vicksburg Joint
Venture; provided, however, in no event shall the Borrower's liability
thereunder exceed $20,000,000;
(e) unsecured Indebtedness incurred in the ordinary course of
business (including open accounts extended by suppliers on normal trade
terms in connection with purchases of goods and services, but excluding
Indebtedness incurred through the borrowing of money or Contingent
Liabilities) and in connection with any Expansion Capital Expenditures
otherwise permitted by Section 7.2.7;
(f) Indebtedness in respect of Capitalized Lease Liabilities to
the extent permitted in Section 7.2.7;
(g) the Existing Senior Notes and any refunding, replacement or
refinancing on terms (including without limitation interest rate and
maturity) no less favorable to
-80-
87
the Borrower and the Lenders than such Existing Senior Notes;
(h) the Existing Subordinated Debt and any refunding, replacement
or refinancing on terms (including without limitation interest rate,
maturity and terms of subordination) no less favorable to the Borrower
and the Lenders;
(i) Subordinated Debt of the Borrower (other than the Existing
Subordinated Debt) on terms acceptable to the Agent in an aggregate
principal amount not to exceed $150,000,000 and any refunding,
replacement or refinancing on terms (including without limitation
interest rate, maturity and terms of subordination) no less favorable to
the Borrower and the Lenders;
(j) senior Indebtedness of the Borrower and its Subsidiaries in
an aggregate amount not to exceed $20,000,000, of which not more than
$10,000,000 may be secured Indebtedness to a vendor of any assets
permitted to be acquired pursuant to Section 7.2.7 to finance the
acquisition of such assets;
(k) Hedging Obligations entered into by the Borrower to hedge the
Borrower's exposure with respect to interest rate fluctuations, which
Hedging Obligations may, to the extent entered into with a Lender, at
such Lender's discretion, be ratably secured by the Collateral;
provided, in no event shall the notional principal amount of such
secured Hedging Obligations exceed $50,000,000 in the aggregate; and
(l) guaranty obligations in support of the obligations of a
wholly-owned Subsidiary, provided that such obligations are permitted by
this Agreement.
provided, however, that no incurrence of Indebtedness otherwise permitted by
clauses (f), (i), (j) or (k) shall be permitted if, after giving effect to the
incurrence thereof, any Default shall have occurred and be continuing.
SECTION VII.2.3. Liens. The Borrower will not, and will not
permit any of its Subsidiaries to, create, incur, assume or suffer to exist any
Lien upon any of its property, revenues or assets, whether now owned or
hereafter acquired, except:
-81-
88
(a) Liens securing payment of the Obligations, granted pursuant
to any Loan Document;
(b) Liens securing payment of Indebtedness of the type permitted
and described in clause (c) of Section 7.2.2;
(c) Liens securing payment of Indebtedness of the type permitted
and described in clause (f) of Section 7.2.2.
(d) Junior Liens granted prior to the Effective Date to secure
payment of Indebtedness of the type permitted and described in clause
(g) of Section 7.2.2;
(e) Liens granted to secure payment of Indebtedness of the type
permitted and described in clause (j) of Section 7.2.2 and covering only
those assets acquired with the proceeds of such Indebtedness;
(f) Liens for taxes, assessments or other governmental charges or
levies not at the time delinquent or thereafter payable without penalty
or being diligently contested in good faith by appropriate proceedings
and for which adequate reserves in accordance with GAAP shall have been
set aside on its books;
(g) Liens described in, and securing indebtedness permitted by,
Section 7.2.2(k), which Liens shall be secured ratably with the
Obligations;
(h) inchoate Liens incident to construction on or maintenance of
property; or Liens incident to construction on or maintenance of
property now or hereafter filed of record for which adequate reserves
have been set aside (or deposits made pursuant to applicable law) and
which are being contested in good faith by appropriate proceedings and
have not proceeded to judgment; provided, however, to the extent such
Liens relate to a Pledged Casino, (a) the Title Company shall have
insured the Agent and Lenders against any loss therefrom or (b) such
Liens shall be junior to the Liens securing the Obligations;
(i) statutory Liens 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 with respect thereto and, by reason of nonpayment,
no
-82-
89
property is subject to a material impending risk of loss or forfeiture;
(j) Liens consisting of pledges or deposits to secure obligations
under workers' compensation laws or similar legislation, including Liens
of judgments thereunder which are not currently dischargeable;
(k) Liens consisting of pledges or deposits of property to secure
performance in connection with operating leases made in the ordinary
course of business, 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;
(l) Liens consisting of any right of offset or statutory bankers'
lien, on bank deposit accounts maintained in the ordinary course of
business so long as such bank deposit accounts are not established or
maintained for the purpose of providing such right of offset or bankers'
lien;
(m) Liens consisting of deposits of property to secure statutory
obligations of Borrower;
(n) Liens consisting of deposits of property to secure (or in
lieu of) surety, appeal or customs bonds;
(o) Liens created by or resulting from any litigation or legal
proceeding in the ordinary course of business which is currently being
contested in good faith by appropriate proceedings, provided that,
adequate reserves have been set aside and no material property is
subject to a material impending risk of loss or forfeiture and provided
further that if such Liens relate to a Pledged Casino, (a) the Title
Company shall have insured the Agent and Lenders against any loss
therefrom or (b) such Liens shall be junior to the Liens securing the
Obligations; and
(p) other non-consensual Liens incurred in the ordinary course of
business but not in connection with the incurrence of any Indebtedness,
which do not in the aggregate, when taken together with all other Liens,
materially impair the fair market value or use of the property for the
purposes for which it is or may reasonably be expected to be held
provided that if such Liens relate to a Pledged Casino, (a) the Title
Company shall have insured
-83-
90
the Agent and Lenders against any loss therefrom or (b) such Liens shall
be junior to the Liens securing the Obligations.
SECTION VII.2.4. Financial Condition. The Borrower will not
permit:
(a) Consolidated Net Worth to be less than the sum of (i) 90% of
Consolidated Net Worth as of September 30, 1997, plus (ii) 50% of the
Borrower's Consolidated Earnings After Permitted Tax Distributions
(without giving effect to any losses) for each Fiscal Quarter ending on
or after September 30, 1997, plus (iii) an amount equal to 75% of the
net proceeds from any sales and issuances of the Borrower's capital
stock, minus (iv) in the event an IPO is consummated, the amount of a
one-time dividend declared and paid within five days after consummation
of an IPO, in an amount not to exceed the net proceeds received by the
Borrower from such IPO and minus (v) without duplication, the amount of
dividends and distributions paid by the Borrower on or before June 30,
1998 pursuant to clause (a) of the definition of "Permitted Distribution
Amount".
(b) the Leverage Ratio for any period of four consecutive Fiscal
Quarters ending on a date set forth below, to be greater than the ratio
set forth below opposite such
date:
Date Ratio
---- -----
December 31, 1997 and
March 31, 1998 4.00 to 1.0
June 30, 1998 3.75 to 1.0
September 30, 1998 3.50 to 1.0
December 31, 1998 and each Quarterly Payment 3.25 to 1.0; or
Date thereafter
(c) the Fixed Charge Coverage Ratio at the end of any Fiscal
Quarter, for the period of four consecutive Fiscal Quarters ending on
such date, to be less than 1.5 to 1.0.
SECTION VII.2.5. Investments. Except with the approval of the
Majority Lenders, the Borrower will not, and will not permit any of its
Subsidiaries to, make, incur, assume or suffer to exist any Investment in any
other Person, except:
-84-
91
(a) Investments existing on the Effective Date and identified in
Item 7.2.5(a) ("Ongoing Investments") of the Disclosure Schedule;
(b) Cash Equivalent Investments;
(c) Investments permitted as Indebtedness pursuant to Section
7.2.2;
(d) Investments permitted as Capital Expenditures pursuant to
Section 7.2.7;
(e) in the ordinary course of business, Investments by the
Borrower in any Guarantor or HE or by any Guarantor or HE in the
Borrower or another Guarantor or HE;
(f) the contribution by HE of the purchase price of the riverboat
known as the Queen of the Red, together with all furniture, fixtures and
equipment associated therewith, to the Vicksburg Joint Venture (or
another similar transaction); provided, however, that on or before such
contribution the Agent shall have received a first preferred ship
mortgage on the riverboat known as the King of the Red; and
(g) Investments in Persons other than Guarantors in an aggregate
amount at any one time which, when added to the aggregate amount of
dividends and distributions paid pursuant to Section 7.2.6(b)(b), does
not exceed the Permitted Distribution Amount;
provided, however, that no Investment otherwise permitted by clauses (d),(f) or
(g) shall be permitted to be made if, immediately before or after giving effect
thereto, any Specified Default shall have occurred and be continuing.
SECTION VII.2.6. Restricted Payments, etc. On and at all times
after the Effective Date:
(a) Prior to the occurrence of a Non-Tax Distribution Event (and
after such Non-Tax Distribution Event shall have been cured and no
longer be continuing), and without limiting the payments that may be
made to the Borrower or to any of its Subsidiaries by any of its
Subsidiaries, each of the Borrower and its Subsidiaries may make
Permitted Tax
-85-
92
Distributions. From and after the occurrence of a Non-Tax Distribution
Event (and during the entire time such Non-Tax Distribution Event shall
be continuing and shall not have been cured), no Permitted Tax
Distributions shall be made until such Non-Tax Distribution Event shall
have been cured. In addition, if the Borrower or any of its Subsidiaries
was prohibited, as a result of the occurrence of a Non- Tax Distribution
Event, from making any distributions which would otherwise have been
Permitted Tax Distributions (referred to herein as "Delayed Permitted
Tax Distributions"), the Borrower shall be permitted to make such
Delayed Permitted Tax Distributions after such Non-Tax Distribution
Event shall have been cured;
(b) Except as permitted by clause (a) above, the Borrower will
not declare, pay or make any dividend or distribution (in cash, property
or obligations) on any Capital of the Borrower other than, so long as no
Specified Default shall have occurred and be continuing, (a)
distributions permitted by the provisos to the following sentence and
(b) dividends and distributions the aggregate amount of which, when
added to the amount of Investments outstanding at any one time pursuant
to Section 7.2.5(g), do not exceed the Permitted Distribution Amount.
The Borrower will not apply, or permit any of its Subsidiaries to apply,
any of its funds, property or assets to the purchase, redemption,
sinking fund or other retirement of, or agree or permit any of its
Subsidiaries to purchase or redeem, any Capital of the Borrower or
redeem any minority interests of any Subsidiary, provided, however that
so long as no Specified Default shall have occurred and be continuing or
would result therefrom, the Borrower or NGCP may redeem or repurchase
the minority limited partnership interests in HE so long as the
aggregate purchase price thereof does not exceed $10,000,000 and, in
addition to the foregoing, as long as no Specified Default has occurred
and is continuing or would result therefrom, the Borrower may redeem the
membership interests of officers or employees of the Borrower at the
time of their termination of employment in accordance with the
employment agreements with such Persons;
(c) the Borrower will not, and will not permit any of its
Subsidiaries to
(i) make any payment or prepayment of principal of, or
make any payment of interest on, any
-86-
93
Subordinated Debt on any day other than the stated, scheduled
date for such payment or prepayment set forth in the documents
and instruments memorializing such Subordinated Debt, or which
would violate the subordination provisions of such Subordinated
Debt; or
(ii) redeem, purchase or defease, any Subordinated Debt;
(d) the Borrower's Subsidiaries will not declare, pay or make any
dividend or distribution (in cash, property or obligations) on any
shares of any class of capital stock (now or hereafter outstanding)
unless such dividends are paid to all shareholders of such Subsidiary on
a ratable basis;
(e) the Borrower will not redeem, repurchase or defease any of
its Existing Senior Notes if immediately before or after giving effect
thereto, any Default shall have occurred and be continuing and in no
event shall the Borrower redeem, repurchase or defease Existing Senior
Notes having an aggregate principal balance in excess of the sum of (i)
$50,000,000 plus (ii) the amount of any increase in the Commitment
pursuant to Section 2.8; provided, however, that the Borrower may at any
time refinance, on terms acceptable to the Agent, any portion of the
Existing Senior Notes with proceeds from an issuance of Subordinated
Debt; and
(f) the Borrower will not, and will not permit any Subsidiary to,
make any deposit for any of the foregoing purposes.
SECTION VII.2.7. Capital Expenditures. Except as otherwise
approved by the Majority Lenders, the Borrower will not, and will not permit and
of its Subsidiaries to, make or commit to make any Capital Expenditure other
than:
(a) Expansion Capital Expenditures in respect of the current
expansion of the Bossier Casino in an aggregate amount not to exceed
$210,000,000;
(b) Expansion Capital Expenditure in respect of the current
expansion of the Tunica Casino in an aggregate amount not to exceed
$110,000,000;
(c) After the Borrower shall have received an
-87-
94
additional gaming license for the Bossier Casino, Expansion Capital
Expenditures in an aggregate amount not to exceed $65,000,000 in
respect of such property;
(d) other Expansion Capital Expenditures and/or acquisitions
described in Section 7.2.9 so long as the aggregate amount thereof does
not exceed $80,000,000 during the term of this Agreement and no single
acquisition or development project exceeds $50,000,000; and
(e) Maintenance Capital Expenditures in any Fiscal Year
(including the 1997 Fiscal Year) in an amount not to exceed $15,000,000.
SECTION VII.2.8. Rental Obligations. The Borrower will not, and
will not permit any of its Subsidiaries to, enter into at any time any
arrangement which does not create a Capitalized Lease Liability and which
involves the leasing by the Borrower or any of its Subsidiaries from any lessor
of any real or personal property (or any interest therein), except arrangements
which, together with all other such arrangements which shall then be in effect,
will not require the payment of an aggregate amount of rentals by the Borrower
and its Subsidiaries in excess of (excluding escalations resulting from a rise
in the consumer price or similar index) $2,500,000 for any Fiscal Year;
provided, however, that any calculation made for purposes of this Section shall
exclude any amounts required to be expended for maintenance and repairs,
insurance, taxes, assessments, and other similar charges.
SECTION VII.2.9. Consolidation, Merger, etc. The Borrower will
not, and will not permit any of its Subsidiaries to, liquidate or dissolve,
consolidate with, or merge into or with, any other corporation, or purchase or
otherwise acquire all or substantially all of the assets of any Person (or of
any division thereof) except
(a) any such Subsidiary may liquidate or dissolve voluntarily
into, and may merge with and into, the Borrower or any other Subsidiary,
and the assets or stock of any Subsidiary may be purchased or otherwise
acquired by the Borrower or any other Subsidiary; and
(b) so long as no Specified Default has occurred and is
continuing or would occur after giving effect thereto, the Borrower or
any of its Subsidiaries may purchase all or substantially all of the
assets of any Person, or acquire
-88-
95
such Person by merger, if permitted (without duplication) by Section
7.2.7 to be made as a Capital Expenditure.
SECTION VII.2.10. Asset Dispositions, etc. Except for the
Permitted Dispositions, the Borrower will not, and will not permit any of its
Subsidiaries to, sell or dispose of any of the Collateral without the prior
written consent of all Lenders unless such sale or disposition is in the
ordinary course of business. The Borrower will not, and will not permit any of
its Subsidiaries to, sell, transfer, lease, contribute or otherwise convey, or
grant options, warrants or other rights with respect to, all or any substantial
part of its assets (including accounts receivable and capital stock of
Subsidiaries) to any Person, unless such sale, transfer, lease, contribution or
conveyance is in the ordinary course of its business or is permitted by Section
7.2.9.
SECTION VII.2.11. Modification of Certain Agreements. The
Borrower will not consent to any amendment, supplement or other modification of
any of the terms or provisions contained in, or applicable to, the Senior Note
Indenture, the Existing Senior Notes and the collateral documents securing such
notes, the Subordinated Note Indenture, or any document or instrument evidencing
or applicable to any other Subordinated Debt, other than (a) any amendment,
supplement or other modification to any of the foregoing agreements which
extends the date or reduces the amount of any required repayment or redemption,
(b) amendments to the Senior Note Indenture executed by the trustee thereunder
pursuant to Section 9.1 thereof and (c) amendments to the Subordinated Note
Indenture executed by the trustee thereunder pursuant to Section 9.1 thereof.
SECTION VII.2.12. Transactions with Affiliates. The Borrower will
not, and will not permit any of its Subsidiaries to, enter into, or cause,
suffer or permit to exist any arrangement or contract with any of its other
Affiliates unless such arrangement or contract is fair and equitable to the
Borrower or such Subsidiary and is an arrangement or contract of the kind which
would be entered into by a prudent Person in the position of the Borrower or
such Subsidiary with a Person which is not one of its Affiliates.
SECTION VII.2.13. Negative Pledges, Restrictive Agreements, etc.
The Borrower will not, and will not permit any of its Subsidiaries to, enter
into any agreement (excluding this Agreement, any other Loan Document and the
Senior Note Indenture)
-89-
96
prohibiting
(a) the creation or assumption of any Lien upon its properties,
revenues or assets, whether now owned or hereafter acquired, or the
ability of the Borrower or any other Obligor to amend or otherwise
modify this Agreement or any other Loan Document; or
(b) except in the case of HE so long as its minority ownership
interests shall be outstanding, the ability of any Subsidiary to make
any payments, directly or indirectly, to the Borrower by way of
dividends, advances, repayments of loans or advances, reimbursements of
management and other intercompany charges, expenses and accruals or
other returns on investments, or any other agreement or arrangement
which restricts the ability of any such Subsidiary to make any payment,
directly or indirectly, to the Borrower.
ARTICLE VIII
EVENTS OF DEFAULT
SECTION VIII.1. Listing of Events of Default. Each of the
following events or occurrences described in this Section 8.1 shall constitute
an "Event of Default".
SECTION VIII.1.1. Non-Payment of Obligations. The Borrower shall
default in the payment or prepayment when due of any principal of any Loan, or
the Borrower shall default (and such default shall continue unremedied for a
period of three Business Days) in the payment when due of any interest on any
Loan, any Commitment Fee or of any other payment Obligation owing hereunder.
SECTION VIII.1.2. Breach of Warranty. Any representation or
warranty of the Borrower or any other Obligor made or deemed to be made
hereunder or in any other Loan Document or any other writing or certificate
furnished by or on behalf of the Borrower or any other Obligor to the Agent or
any Lender for the purposes of or in connection with this Agreement or any such
other Loan Document (including any certificates delivered pursuant to Article V)
is or shall be incorrect when made in any material respect unless such default
shall have resulted solely from a representation or warranty being incorrect as
a result of the existence of a Default under Section 8.1.4.
-90-
97
SECTION VIII.1.3. Non-Performance of Certain Covenants and
Obligations. The Borrower shall default in the due performance and observance of
any of its obligations under Section 7.2 and such default shall continue
unremedied for a period of five Business Days after the earlier of (a) notice
thereof shall have been given to the Borrower by the Agent or any Lender or (b)
the Borrower shall have knowledge of such default.
SECTION VIII.1.4. Non-Performance of Other Covenants and
Obligations. The Borrower shall default in the due performance and observance of
any other agreement contained herein or in any other Loan Document, and such
default shall continue unremedied for a period of 30 days after notice thereof
shall have been given to the Borrower by the Agent or any Lender.
SECTION VIII.1.5. Default on Other Indebtedness. A default shall
occur in the payment when due (subject to any applicable grace period), whether
by acceleration or otherwise, of any Indebtedness (other than Indebtedness
described in Section 8.1.1) of the Borrower or any of its Subsidiaries having a
principal amount, individually or in the aggregate, in excess of $10,000,000, or
a default shall occur in the performance or observance of any obligation or
condition with respect to such Indebtedness if the effect of such default is to
accelerate the maturity of any such Indebtedness or such default shall continue
unremedied for any applicable period of time sufficient to permit the holder or
holders of such Indebtedness, or any trustee or agent for such holders, to cause
such Indebtedness to become due and payable prior to its expressed maturity.
SECTION VIII.1.6. Judgments. Any judgment or order for the
payment of money in excess of $10,000,000 shall be rendered against the Borrower
or any of its Subsidiaries and either
(a) enforcement proceedings shall have been commenced by any
creditor upon such judgment or order; or
(b) there shall be any period of 20 consecutive days during which
a stay of enforcement of such judgment or order, by reason of a pending
appeal or otherwise, shall not be in effect.
SECTION VIII.1.7. Pension Plans. Any of the following events
shall occur with respect to any Pension Plan
-91-
98
(a) the institution of any steps by the Borrower, any member of
its Controlled Group or any other Person to terminate a Pension Plan if,
as a result of such termination, the Borrower or any such member could
be required to make a contribution to such Pension Plan, or could
reasonably expect to incur a liability or obligation to such Pension
Plan, in excess of $10,000,000; or
(b) a contribution failure occurs with respect to any Pension
Plan sufficient to give rise to a Lien under Section 302(f) of ERISA.
SECTION VIII.1.8. Bankruptcy, Insolvency, etc. The Borrower or
any of its Subsidiaries shall
(a) become insolvent or generally fail to pay, or admit in
writing its inability or unwillingness to pay, debts as they become due;
(b) apply for, consent to, or acquiesce in, the appointment of a
trustee, receiver, sequestrator or other custodian for the Borrower or
any of its Subsidiaries or any other Obligor or any property of any
thereof, or make a general assignment for the benefit of creditors;
(c) in the absence of such application, consent or acquiescence,
permit or suffer to exist the appointment of a trustee, receiver,
sequestrator or other custodian for the Borrower or any of its
Subsidiaries or for a substantial part of the property of any thereof,
and such trustee, receiver, sequestrator or other custodian shall not be
discharged within 60 days, provided that the Borrower, each Subsidiary
and each other Obligor hereby expressly authorizes the Agent and each
Lender to appear in any court conducting any relevant proceeding during
such 60-day period to preserve, protect and defend their rights under
the Loan Documents;
(d) permit or suffer to exist the commencement of any bankruptcy,
reorganization, debt arrangement or other case or proceeding under any
bankruptcy or insolvency law, or any dissolution, winding up or
liquidation proceeding, in respect of the Borrower or any of its
Subsidiaries, and, if any such case or proceeding is not commenced by
the Borrower or such Subsidiary, such case or proceeding shall be
-92-
99
consented to or acquiesced in by the Borrower or such Subsidiary or
shall result in the entry of an order for relief or shall remain for 60
days undismissed, provided that the Borrower and each Subsidiary hereby
expressly authorizes the Agent and each Lender to appear in any court
conducting any such case or proceeding during such 60-day period to
preserve, protect and defend their rights under the Loan Documents; or
(e) take any corporate action authorizing, or in furtherance of,
any of the foregoing.
SECTION VIII.1.9. Impairment of Security, etc. Any Loan Document,
or any Lien granted thereunder, shall (except in accordance with its terms), in
whole or in part, in any material respect, terminate, cease to be effective or
cease to be the legally valid, binding and enforceable obligation of any Obligor
party thereto; the Borrower, any other Obligor or any other party shall,
directly or indirectly, contest in any manner such effectiveness, validity,
binding nature or enforceability; or any Lien securing any Obligation shall, in
whole or in part, cease to be a perfected first priority Lien, subject only to
those exceptions permitted by the Loan Documents.
SECTION VIII.1.10. Gaming License. Once licensed by a Gaming
Board, the Borrower or a Guarantor shall fail to possess a valid gaming license
for each Casino owned by it or such license shall be suspended for a period of
fifteen days or longer.
SECTION VIII.1.11. Government Approvals. Any Obligor under any of
the Loan Documents shall fail to obtain, renew, maintain or comply with any such
governmental approvals as shall be necessary (1) for the execution, delivery or
performance by such Obligors of their respective obligations, or the exercise of
their respective rights, under the Loan Documents, or (2) for the grant of the
Liens created under the Collateral Documents or for the validity and
enforceability or the perfection of or exercise by the Agent of its rights and
remedies under the Collateral Documents; or any such governmental approval shall
be revoked, terminated, withdrawn, suspended, modified or withheld or shall
cease to be effective; or any proceeding shall be commenced by or before any
governmental person for the purpose of revoking, terminating, withdrawing,
suspending, modifying or withholding any such governmental approval and such
proceeding is not dismissed within 60 days; and in each case such failure,
revocation, termination, withdrawal, suspension, modification,
-93-
100
cessation or commencement is reasonably likely to materially adversely affect
(i) the rights or the interests of the Lenders under the Loan Documents or (ii)
the ability of any Obligor to perform its obligations under the Loan Documents.
SECTION VIII.1.12. Liens on Shares of Significant Subsidiaries.
Any Lien, other than (a) a Lien in favor of the Agent on behalf of the Lenders
or (b) a subordinate Lien in favor of the trustee for the Existing Senior Notes,
shall be placed on any capital stock of any Subsidiary of the Borrower.
SECTION VIII.2. Action if Bankruptcy. If any Event of Default
described in clauses (a) through (d) of Section 8.1.8 shall occur with respect
to the Borrower or any Significant Subsidiary or any other Obligor, the
Commitments (if not theretofore terminated) shall automatically terminate and
the outstanding principal amount of all outstanding Loans and all other
Obligations shall automatically be and become immediately due and payable,
without notice or demand.
SECTION VIII.3. Action if Other Event of Default. If any Event of
Default (other than any Event of Default described in clauses (a) through (d) of
Section 8.1.8 with respect to the Borrower or any Significant Subsidiary or any
other Obligor) shall occur for any reason, whether voluntary or involuntary, and
be continuing, the Agent, upon the direction of the Required Lenders, shall by
notice to the Borrower declare all or any portion of the outstanding principal
amount of the Loans and other Obligations to be due and payable and/or the
Commitments (if not theretofore terminated) to be terminated, whereupon the full
unpaid amount of such Loans and other Obligations which shall be so declared due
and payable shall be and become immediately due and payable and/or (ii) except
as otherwise provided in the immediately following sentence, the Commitments
(including, without limitation, the commitment of the Lenders to issue any
additional Letters of Credit) to be terminated, without further notice, demand
or presentment. Notwithstanding any termination of the Revolving Loan Commitment
prior to the Stated Maturity Date, Revolving Loans may thereafter be made to
reimburse the L/C Issuer for any drafts paid on or before the Stated Maturity
Date under any Letter of Credit outstanding on the date of such termination.
ARTICLE IX
-94-
101
THE AGENT
SECTION IX.1. Actions. Each Lender hereby appoints the Agent as its
agent under and for purposes of this Agreement, the Notes and each other Loan
Document. Each Lender authorizes the Agent to act on behalf of such Lender under
this Agreement, the Notes and each other Loan Document and, in the absence of
other written instructions from the Required Lenders received from time to time
by the Agent (with respect to which the Agent agrees that it will comply, except
as otherwise provided in this Section or as otherwise advised by counsel), to
exercise such powers hereunder and thereunder as are specifically delegated to
or required of the Agent by the terms hereof and thereof, together with such
powers as may be reasonably incidental thereto. Each Lender hereby indemnifies
(which indemnity shall survive any termination of this Agreement) the Agent and
the Arranger, pro rata according to such Lender's Revolving Percentage, from and
against any and all liabilities, obligations, losses, damages, claims, costs or
expenses of any kind or nature whatsoever which may at any time be imposed on,
incurred by, or asserted against, the Agent or the Arranger in any way relating
to or arising out of this Agreement, the Notes and any other Loan Document,
including reasonable attorneys' fees, and as to which the Agent or the Arranger
is not reimbursed by the Borrower; provided, however, that no Lender shall be
liable for the payment of any portion of such liabilities, obligations, losses,
damages, claims, costs or expenses which are determined by a court of competent
jurisdiction in a final proceeding to have resulted from the Agent's or the
Arranger's gross negligence or wilful misconduct. The Agent shall not be
required to take any action hereunder, under the Notes or under any other Loan
Document, or to prosecute or defend any suit in respect of this Agreement, the
Notes or any other Loan Document, unless it is indemnified hereunder to its
satisfaction. If any indemnity in favor of the Agent shall be or become, in the
Agent's determination, inadequate, the Agent may call for additional
indemnification from the Lenders and cease to do the acts indemnified against
hereunder until such additional indemnity is given.
SECTION IX.2. Funding Reliance, etc. Unless the Agent shall have been
notified by telephone, confirmed in writing, by any Lender by 5:00 p.m., New
York time, on the day prior to a Borrowing that such Lender will not make
available the amount which would constitute its Revolving Percentage of such
Borrowing on the date specified therefor, the Agent may assume that such Lender
has made such amount available to the Agent and, in
-95-
102
reliance upon such assumption, make available to the Borrower a corresponding
amount. If and to the extent that such Lender shall not have made such amount
available to the Agent, such Lender and the Borrower severally agree to repay
the Agent forthwith on demand such corresponding amount together with interest
thereon, for each day from the date the Agent made such amount available to the
Borrower to the date such amount is repaid to the Agent, at the interest rate
applicable at the time to Loans comprising such Borrowing.
SECTION IX.3. Exculpation. Neither the Agent nor any of its directors,
officers, employees or agents shall be liable to any Lender for any action taken
or omitted to be taken by it under this Agreement or any other Loan Document, or
in connection herewith or therewith, except for its own wilful misconduct or
gross negligence, nor responsible for any recitals or warranties herein or
therein, nor for the effectiveness, enforceability, validity or due execution of
this Agreement or any other Loan Document, nor for the creation, perfection or
priority of any Liens purported to be created by any of the Loan Documents, or
the validity, genuineness, enforceability, existence, value or sufficiency of
any collateral security, nor to make any inquiry respecting the performance by
the Borrower of its obligations hereunder or under any other Loan Document. Any
such inquiry which may be made by the Agent shall not obligate it to make any
further inquiry or to take any action. The Agent shall be entitled to rely upon
advice of counsel concerning legal matters and upon any notice, consent,
certificate, statement or writing which the Agent believes to be genuine and to
have been presented by a proper Person.
SECTION IX.4. Successor. The Agent may resign as such at any time upon
at least 30 days' prior notice to the Borrower and all Lenders. If the Agent at
any time shall resign, the Required Lenders may appoint another Lender as a
successor Agent which shall thereupon become the Agent hereunder. If no
successor Agent shall have been so appointed by the Required Lenders, and shall
have accepted such appointment, within 30 days after the retiring Agent's giving
notice of resignation, then the retiring Agent may, on behalf of the Lenders,
appoint a successor Agent, which shall be one of the Lenders or a commercial
banking institution organized under the laws of the U.S. (or any State thereof)
or a U.S. branch or agency of a commercial banking institution, and having a
combined capital and surplus of at least $500,000,000. Upon the acceptance of
any appointment as Agent hereunder by a successor Agent, such successor Agent
shall
-96-
103
be entitled to receive from the retiring Agent such documents of transfer and
assignment as such successor Agent may reasonably request, and shall thereupon
succeed to and become vested with all rights, powers, privileges and duties of
the retiring Agent, and the retiring Agent shall be discharged from its duties
and obligations under this Agreement. After any retiring Agent's resignation
hereunder as the Agent, the provisions of
(a) this Article IX shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was the Agent under this
Agreement; and
(b) Section 10.3 and Section 10.4 shall continue to inure to its
benefit as to any actions taken or omitted to be taken by it while it
was the Agent under this Agreement.
SECTION IX.5. Credit Decisions. Each Lender acknowledges that it has,
independently of the Agent and each other Lender, and based on such Lender's
review of the financial information of the Borrower, this Agreement, the other
Loan Documents (the terms and provisions of which being satisfactory to such
Lender) and such other documents, information and investigations as such Lender
has deemed appropriate, made its own credit decision to extend its Revolving
Loan Commitment. Each Lender also acknowledges that it will, independently of
the Agent and each other Lender, and based on such other documents, information
and investigations as it shall deem appropriate at any time, continue to make
its own credit decisions as to exercising or not exercising from time to time
any rights and privileges available to it under this Agreement or any other Loan
Document.
SECTION IX.6. Copies, etc. The Agent shall give prompt notice to each
Lender of each notice or request required or permitted to be given to the Agent
by the Borrower pursuant to the terms of this Agreement (unless concurrently
delivered to the Lenders by the Borrower). The Agent will distribute to each
Lender each document or instrument received for its account and copies of all
other communications received by the Agent from the Borrower for distribution to
the Lenders by the Agent in accordance with the terms of this Agreement.
SECTION IX.7. Co-Agents. Neither Hibernia National Bank nor Xxxxx Fargo,
Bank National Association, in their capacity as "co-agents" shall have any
right, power, obligation, liability, responsibility or duty under this Agreement
other than those applicable to all Lenders as such. Without limiting the
-97-
104
foregoing, none of the Lenders so identified as a "co- agent" shall have or be
deemed to have any fiduciary relationship with any Lender. Each Lender
acknowledges that it has not relied, and will not rely, on any of the Lenders so
identified in deciding to enter into this Agreement or in taking or not taking
action hereunder.
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION X.1. Waivers, Amendments, etc. The provisions of this Agreement
and of each other Loan Document may from time to time be amended, modified or
waived, if such amendment, modification or waiver is in writing and consented to
by the Borrower and the Required Lenders (except where the applicable provision
of this Agreement or such other Loan Document specifies that a determination is
to be governed by all Lenders or the Majority Lenders); provided, however, that
no such amendment, modification or waiver which would:
(a) modify any requirement hereunder that any particular action
be taken by all the Lenders or by the Required Lenders shall be
effective unless consented to by each Lender;
(b) modify this Section 10.1, change the definitions of "Majority
Lenders" or "Required Lenders", increase the Revolving Loan Commitment
Amount (except as otherwise provided in Section 2.8) or the Revolving
Percentage of any Lender, reduce any fees described in Article III,
release any collateral security, release or amend the RPG Guarantee and
Security Agreement, except as otherwise specifically provided in any
Loan Document or extend the Commitment Termination Date shall be made
without the consent of each Lender;
(c) extend the due date for, or reduce the amount of, any
scheduled repayment or prepayment of principal of or interest on any
Loan (or reduce the principal amount of or rate of interest on any Loan)
shall be made without the consent of the holder of that Note evidencing
such Loan;
(d) affect adversely the interests, rights or obligations of the
Agent qua the Agent shall be made without
-98-
105
consent of the Agent;
(e) modify Section 3.1.2 shall be made without the consent of the
Swingline Lender; or
(f) modify Sections 2.7, 3.4 or 3.5 shall be made without the
consent of the L/C Issuer.
No failure or delay on the part of the Agent, any Lender or the holder of any
Note in exercising any power or right under this Agreement or any other Loan
Document shall operate as a waiver thereof, nor shall any single or partial
exercise of any such power or right preclude any other or further exercise
thereof or the exercise of any other power or right. No notice to or demand on
the Borrower in any case shall entitle it to any notice or demand in similar or
other circumstances. No waiver or approval by the Agent, any Lender or the
holder of any Note under this Agreement or any other Loan Document shall, except
as may be otherwise stated in such waiver or approval, be applicable to
subsequent transactions. No waiver or approval hereunder shall require any
similar or dissimilar waiver or approval thereafter to be granted hereunder.
SECTION X.2. Notices. All notices and other communications provided to
any party hereto under this Agreement or any other Loan Document shall be in
writing or by facsimile and addressed, delivered or transmitted to such party at
its address or facsimile number set forth below its signature hereto or at such
other address or facsimile number as may be designated by such party in a notice
to the other parties. Any notice, if mailed and properly addressed with postage
prepaid or if properly addressed and sent by pre-paid courier service, shall be
deemed given when received; any notice, if transmitted by facsimile, shall be
deemed given when transmitted.
SECTION X.3. Payment of Costs and Expenses. The Borrower agrees to pay
on demand all expenses of the Agent (including the fees and out-of-pocket
expenses of counsel to the Agent and of local counsel, if any, who may be
retained by counsel to the Agent) in connection with
(a) the negotiation, preparation, execution and delivery of this
Agreement and of each other Loan Document, including schedules and
exhibits, and any amendments, waivers, consents, supplements or other
modifications to this Agreement or any other Loan Document as may from
time
-99-
106
to time hereafter be required, whether or not the transactions
contemplated hereby are consummated,
(b) the filing, recording, refiling or rerecording of the
Collateral Documents and/or any Uniform Commercial Code financing
statements relating thereto and all amendments, supplements and
modifications to any thereof and any and all other documents or
instruments of further assurance required to be filed or recorded or
refiled or rerecorded by the terms hereof or of the Collateral Documents
and
(c) the preparation and review of the form of any document or
instrument relevant to this Agreement or any other Loan Document.
The Borrower further agrees to pay, and to save the Agent and the Lenders
harmless from all liability for, any stamp or other Taxes which may be payable
in connection with the execution or delivery of this Agreement, the borrowings
hereunder, or the issuance of the Notes or any other Loan Documents. The
Borrower also agrees to reimburse the Agent and each Lender upon demand for all
reasonable out-of-pocket expenses (including attorneys' fees and legal expenses)
incurred by the Agent or such Lender in connection with (x) the negotiation of
any restructuring or "work-out", whether or not consummated, of any Obligations
and (y) the enforcement of any Obligations.
SECTION X.4. Indemnification. In consideration of the execution and
delivery of this Agreement by each Lender and the extension of the Commitments,
the Borrower hereby indemnifies, exonerates and holds the Agent, the Arranger
and each Lender and each of their respective officers, directors, employees and
agents (collectively, the "Indemnified Parties") free and harmless from and
against any and all actions, causes of action, suits, losses, costs, liabilities
and damages, and expenses incurred in connection therewith (irrespective of
whether any such Indemnified Party is a party to the action for which
indemnification hereunder is sought), including reasonable attorneys' fees and
disbursements (collectively, the "Indemnified Liabilities"), incurred by the
Indemnified Parties or any of them as a result of, or arising out of, or
relating to
(a) any transaction financed or to be financed in whole or in
part, directly or indirectly, with the proceeds of any Loan or Letter of
Credit;
-100-
107
(b) the entering into and performance of this Agreement and any
other Loan Document by any of the Indemnified Parties (including any
action brought by or on behalf of the Borrower as the result of any
determination by the Required Lenders pursuant to Article V not to fund
any Borrowing);
(c) any investigation, litigation or proceeding related to the
Borrower or any Affiliate of the Borrower by any Gaming Board or other
governmental authority;
(d) any investigation, litigation or proceeding related to any
acquisition or proposed acquisition by the Borrower or any of its
Subsidiaries of all or any portion of the stock or assets of any Person,
whether or not the Agent or such Lender is party thereto;
(e) any investigation, litigation or proceeding related to any
environmental cleanup, audit, compliance or other matter relating to the
protection of the environment or the Release by the Borrower or any of
its Subsidiaries of any Hazardous Material; or
(f) the presence on or under, or the escape, seepage, leakage,
spillage, discharge, emission, discharging or releases from, any real
property owned or operated by the Borrower or any Subsidiary thereof of
any Hazardous Material (including any losses, liabilities, damages,
injuries, costs, expenses or claims asserted or arising under any
Environmental Law), regardless of whether caused by, or within the
control of, the Borrower or such Subsidiary,
except for any such Indemnified Liabilities arising for the account of a
particular Indemnified Party by reason of the relevant Indemnified Party's gross
negligence or wilful misconduct. If and to the extent that the foregoing
undertaking may be unenforceable for any reason, the Borrower hereby agrees to
make the maximum contribution to the payment and satisfaction of each of the
Indemnified Liabilities which is permissible under applicable law. If any claim,
demand, action or cause of action is asserted against any Indemnified Party,
such Indemnified Party shall promptly notify the Borrower, but the failure to so
promptly notify the Borrower shall not affect the Borrower's obligations under
this Section unless such failure materially prejudices the Borrower's right to
participate in the contest of such claim, demand, action or cause of action, as
hereinafter
-101-
108
provided. Such Indemnified Party may (and shall, if requested by the Borrower in
writing), contest the validity, applicability and amount of such claim, demand,
action or cause of action and shall permit the Borrower to participate in such
contest. In connection with any claim, demand, action or cause of action covered
by this Section 10.4 against more than one Indemnified Party, all such
Indemnified Parties shall be represented by the same legal counsel (which may be
a law firm engaged by the Indemnified Parties or attorneys employed by an
Indemnified Party or a combination of the foregoing) selected by the Indemnified
Parties and reasonably acceptable to the Borrower; provided, that if such legal
counsel determines in good faith that representing all such Indemnified Parties
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 Indemnified Party that is not available to all such Indemnified Parties,
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
Indemnified Party shall be entitled to separate representation by legal counsel
selected by that Indemnified Party and reasonably acceptable to the Borrower,
with all such legal counsel using reasonable efforts to avoid unnecessary
duplication of effort by counsel for all Indemnified Parties.
SECTION X.5. Survival. The obligations of the Borrower under Sections
4.3, 4.4, 4.5, 4.6, 10.3 and 10.4, and the obligations of the Lenders under
Section 9.1, shall in each case survive any termination of this Agreement, the
payment in full of all Obligations and the termination of all Commitments. The
representations and warranties made by each Obligor in this Agreement and in
each other Loan Document shall survive the execution and delivery of this
Agreement and each such other Loan Document.
SECTION X.6. Severability. Any provision of this Agreement or any other
Loan Document which is prohibited or unenforceable in any jurisdiction shall, as
to such provision and such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions of
this Agreement or such Loan Document or affecting the validity or enforceability
of such provision in any other jurisdiction.
SECTION X.7. Headings. The various headings of this Agreement and of
each other Loan Document are inserted for convenience only and shall not affect
the meaning or
-102-
109
interpretation of this Agreement or such other Loan Document or any provisions
hereof or thereof.
SECTION X.8. Execution in Counterparts, Effectiveness, etc. This
Agreement may be executed by the parties hereto in several counterparts, each of
which shall be executed by the Borrower and the Agent and be deemed to be an
original and all of which shall constitute together but one and the same
agreement. This Agreement shall become effective when counterparts hereof
executed on behalf of the Borrower and each Lender (or notice thereof
satisfactory to the Agent) shall have been received by the Agent and notice
thereof shall have been given by the Agent to the Borrower and each Lender.
SECTION X.9. Governing Law; Entire Agreement. THIS AGREEMENT, THE NOTES
AND EACH OTHER LOAN DOCUMENT SHALL EACH BE DEEMED TO BE A CONTRACT MADE UNDER
AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK, EXCEPT THAT THE
PROVISIONS FOR THE CREATION, PERFECTION AND ENFORCEMENT OF THE LIENS CREATED
PURSUANT TO THE (A) HE MORTGAGES AND THE DEED OF TRUST SHALL BE GOVERNED BY AND
CONSTRUED ACCORDING TO THE LAW OF THE STATE IN WHICH THE APPLICABLE REAL
PROPERTY IS LOCATED AND (B) FIRST PREFERRED SHIP MORTGAGES SHALL BE GOVERNED BY
AND CONSTRUED ACCORDING TO FEDERAL LAW. This Agreement, the Notes and the other
Loan Documents constitute the entire understanding among the parties hereto with
respect to the subject matter hereof and supersede any prior agreements, written
or oral, with respect thereto.
SECTION X.10. Successors and Assigns. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
successors and assigns; provided, however, that:
(a) the Borrower may not assign or transfer its rights or
obligations hereunder without the prior written consent of the Agent and
all Lenders; and
(b) the rights of sale, assignment and transfer of the Lenders
are subject to Section 10.11.
SECTION X.11. Sale and Transfer of Loans and Notes; Participations in
Loans and Notes. Each Lender may assign, or sell participations in, its Loans
and Revolving Loan Commitments
-103-
110
to one or more other Persons in accordance with this Section 10.11.
SECTION X.11.1. Assignments. Any Lender,
(a) with the written consent of the Agent and, so long as no
Event of Default shall be continuing, the Borrower (which consent shall
not be unreasonably delayed or withheld) may at any time assign and
delegate to an Eligible Assignee, and
(b) with notice to the Borrower and the Agent, and with the
consent of the Agent (which consent shall not be unreasonably delayed or
withheld) but without the consent of the Borrower, may assign and
delegate to any of its Affiliates and with notice to the Borrower and
the Agent, may assign and delegate to any other existing Lender (each
Person described in either of the foregoing clauses as being the Person
to whom such assignment and delegation is to be made, being hereinafter
referred to as an "Assignee Lender"), all or any fraction of such
Lender's Revolving Loans (and such fraction of any outstanding Letters
of Credit) and the corresponding Revolving Loan Commitments therefor
(which assignment and delegation shall be of a constant, and not a
varying, percentage of all the assigning Lender's Revolving Loans (and
such fraction of any outstanding Letters of Credit) and the
corresponding Revolving Loan Commitments therefor) in a minimum
aggregate amount of $5,000,000 or, if less, the entire amount of such
Lender's total Revolving Loan Commitments; provided, if the Borrower
objects to such proposed assignment, the Borrower shall state in
reasonable detail the reasons why the Borrower proposes to withhold such
consent; and provided, further that any such Assignee Lender will
comply, if applicable, with the provisions contained in the final
paragraph of Section 4.6 and further provided, however, that, the
Borrower and the Agent shall be entitled to continue to deal solely and
directly with such Lender in connection with the interests proposed to
be so assigned and delegated to an Assignee Lender until
(i) written notice of such assignment and delegation, together
with payment instructions, addresses and related information with
respect to such Assignee Lender, shall have been given to the Borrower
and the Agent by such Lender and such Assignee Lender,
-104-
111
(ii) such Assignee Lender shall have executed and delivered to
the Borrower and the Agent a Lender Assignment Agreement, accepted by
the Agent and the Borrower, and
(iii) the processing fees described below shall have been paid.
From and after the date that the Agent and the Borrower accept such Lender
Assignment Agreement, (x) the Assignee Lender thereunder shall be deemed
automatically to have become a party hereto and to the extent that rights and
obligations hereunder have been assigned and delegated to such Assignee Lender
in connection with such Lender Assignment Agreement, shall have the rights and
obligations of a Lender hereunder and under the other Loan Documents, and (y)
the assignor Lender, to the extent that rights and obligations hereunder have
been assigned and delegated by it in connection with such Lender Assignment
Agreement, shall be released from its obligations hereunder and under the other
Loan Documents. Within five Business Days after its receipt of an executed,
acknowledged and effective Lender Assignment Agreement, the Borrower shall
execute and deliver to the Agent's counsel (for delivery to the relevant
Assignee Lender as hereinafter provided) new Notes evidencing such Assignee
Lender's assigned Loans and Revolving Loan Commitments and, if the assignor
Lender has retained Loans and Revolving Loan Commitments hereunder, replacement
Notes in the principal amount of the Loans and Revolving Loan Commitments
retained by the assignor Lender hereunder (such Notes to be in exchange for, but
not in payment of, those Notes then held by such assignor Lender). Each such
Note shall be dated the date of the predecessor Notes. The assignor Lender shall
xxxx the predecessor Notes "exchanged" and deliver them to the Agent's counsel,
who shall deliver the new Notes to the Assignee Lender and return the
predecessor Notes to the Borrower. Accrued interest on that part of the
predecessor Notes evidenced by the new Notes, and accrued fees, shall be paid as
provided in the Lender Assignment Agreement. Accrued interest on that part of
the predecessor Notes evidenced by the replacement Notes shall be paid to the
assignor Lender. Accrued interest and accrued fees shall be paid at the same
time or times provided in the predecessor Notes and in this Agreement. Such
assignor Lender or such Assignee Lender must also pay a processing fee to the
Agent (for the sole account of the Agent) upon delivery of any Lender Assignment
Agreement in the amount of $3,000 except in the case of an assignment by a
Lender to one of its Affiliates. Any Lender may at any time pledge its Note or
-105-
112
any other instrument evidencing its rights as a Lender under this Agreement to a
Federal Reserve Bank, but no such pledge shall release that Lender from its
obligations hereunder or grant to such Federal Reserve Bank the rights of a
Lender hereunder absent foreclosure of such pledge. Notwithstanding anything in
this Section 10.11.1 to the contrary, the rights of the Lenders to make
assignments of their Revolving Loans and corresponding Revolving Loan
Commitments therefor shall be subject to the approval of any Gaming Board, to
the extent required by applicable Gaming Laws.
SECTION X.11.2. Participations. Any Lender may at any time sell
to one or more commercial banks or other Persons (each of such commercial banks
and other Persons being herein called a "Participant") participating interests
in any of the Loans, Revolving Loan Commitments, or other interests of such
Lender hereunder; provided, however, that
(a) no participation contemplated in this Section 10.11.2 shall
relieve such Lender from its Revolving Loan Commitments or its other
obligations hereunder or under any other Loan Document,
(b) such Lender shall remain solely responsible for the
performance of its Revolving Loan Commitments and such other
obligations,
(c) the Borrower and the Agent shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement and each of the other Loan Documents,
(d) no Participant, unless such Participant is an Affiliate of
such Lender, or is itself a Lender, shall be entitled to require such
Lender to take or refrain from taking any action hereunder or under any
other Loan Document, except that such Lender may agree with any
Participant that such Lender will not, without such Participant's
consent, take any actions of the type described in clause (b) or (c) of
Section 10.1,
(e) no Participant shall be entitled to payment of any amount
under Article IV that would not have been required to be paid to such
Lender had no participation occurred, and
(f) notwithstanding anything in this Section 10.11.2 to the
contrary, the rights of the Lenders to grant
-106-
113
participations in any of the Loans, Revolving Loan Commitments, or other
interests of any Lender hereunder shall be subject to the approval of
any Gaming Board, to the extent required by applicable Gaming Laws.
The Borrower acknowledge and agree that, subject to the provisions of clause (e)
above, each Participant, for purposes of Sections 4.3, 4.4, 4.5, 4.8, 4.9 and
4.11, shall be considered a Lender.
SECTION X.12. Other Transactions. Nothing contained herein shall
preclude the Agent or any other Lender from engaging in any transaction, in
addition to those contemplated by this Agreement or any other Loan Document,
with the Borrower or any of its Affiliates in which the Borrower or such
Affiliate is not restricted hereby from engaging with any other Person.
SECTION X.13. Removal of a Lender. The Borrower shall have the right to
remove a Lender as a party to this Agreement in accordance with this Section if
such Lender is the subject of a Lender Disqualification. If the Borrower is so
entitled to remove a Lender pursuant to this Section either:
(x) Upon notice from the Borrower, the Lender being removed shall
execute and deliver a Lender Assignment Agreement covering that Lender's
Revolving Loan Commitment in favor of one or more Eligible Assignees
designated by the Borrower (and acceptable to the Agent, which
acceptance shall not be unreasonably delayed or withheld), subject to
(i) payment of a purchase price by such Eligible Assignee equal to all
principal and accrued interest, fees and other amounts payable to such
Lender under this Agreement subject to applicable Gaming Law through the
date of assignment and (ii) the written release of the L/C Issuer and
the Swing Line Lender of such Lender's obligations under Sections 3.1.2
and 3.5 or delivery by such Eligible Assignee of such appropriate
assurances and indemnities (which may include letters of credit) as such
Lender may reasonably require with respect to its participation interest
in any Letters of Credit then outstanding or any Outstanding Swing
Loans; or
(y) The Borrower may reduce the Revolving Loan Commitment Amount
pursuant to Section 2.2 (and, for this purpose, the numerical
requirements of such Section shall not apply) by an amount equal to that
Lender's Revolving Loan Commitment, pay and provide to such Lender the
amounts,
-107-
114
assurances and indemnities described in subclauses (i) and (ii) of
clause (x) above and release such Lender from its Revolving Loan
Commitment, subject in all cases to applicable Gaming Law.
SECTION X.14. Nonrecourse. Notwithstanding anything to the contrary
contained herein or in any of the other Loan Documents, the Lenders agree that
the constituent shareholders, members, directors, officers, managers and
employees of the Borrower or the Guarantors (the "Nonrecourse Parties") shall
not be personally liable for the payment of the Obligations, except as set forth
in this Section 10.14. If an Event of Default should occur hereunder or under
the other Loan Documents, each Lender agrees that its rights, as to the
Nonrecourse Parties, shall be limited to proceeding against the Borrower and the
security for the Obligations, against any Guarantor (including, without
limitation, any Nonrecourse Party that is a Guarantor) or against any party
other than the Nonrecourse Parties and that it shall have no right to proceed
directly against the Nonrecourse Parties for the satisfaction of any Obligations
owed to Lenders hereunder or under the other Loan Documents. It is expressly
understood and agreed that nothing contained in this Section 10.14 shall in any
manner or way constitute or be deemed a release of the Borrower, any Guarantor
or the debt evidenced by the Notes or otherwise affect or impair the
enforceability against the Borrower or any Guarantor of the Liens of the Loan
Documents securing the Obligations or any other instrument or agreement
evidencing, securing or related to the Obligations. Nothing in this Section
10.14 shall: (a) preclude the Agent or any Lender from enforcing any of its
rights or remedies in law or in equity against the Borrower or its assets
(including, without limitation, any or all of the Collateral) except as stated
in this Section 10.14; (b) impair, in any manner, any right, remedy or recourse
the Agent or any Lender may have against the Borrower or against any Guarantor
(including, without limitation, any Nonrecourse Party that is a Guarantor); or
(c) impair, in any manner, any right, remedy or recourse the Agent or any Lender
may have against the Nonrecourse Parties for fraud or for fraudulent
misapplication of insurance proceeds or condemnation awards.
SECTION X.15. Waiver of Jury Trial. EACH OF THE AGENT, THE LENDERS AND
THE BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHTS
ANY OF THEM MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED
HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY
OTHER
-108-
115
LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER
VERBAL OR WRITTEN) OR ACTIONS OF THE AGENT, THE LENDERS OR THE BORROWER. THE
BORROWER ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT
CONSIDERATION FOR THIS PROVISION (AND EACH OTHER PROVISION OF EACH OTHER LOAN
DOCUMENT TO WHICH IT IS A PARTY) AND THAT THIS PROVISION IS A MATERIAL
INDUCEMENT FOR THE AGENT AND THE LENDERS ENTERING INTO THIS AGREEMENT AND EACH
SUCH OTHER LOAN DOCUMENT.
SECTION X.16. Amendment and Restatement. This Agreement amends and
restates the Note Purchase Agreement, and all loans and commitments outstanding
under the Note Purchase Agreement shall be deemed Loans and Commitments
outstanding under this Agreement.
-109-
116
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
HORSESHOE GAMING, L.L.C.
By Horseshoe Gaming, Inc.,
Its Sole Manager
By:
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Chief Financial Officer
Address: 000 Xxxxxxxx Xxxx
Xxxxxxx, Xxxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Chief Financial Officer
-110-
117
CIBC XXXXXXXXXXX CORP.,
as Arranger
By:
-------------------------------------
Title: Managing Director
Address: 000 Xxxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Xx. Xxxx Xxxxxxx
-111-
118
CANADIAN IMPERIAL BANK OF COMMERCE,
AS AGENT AND L/C ISSUER
By:
-------------------------------------
Title:
Address: 000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attention: Agency Services Department
-112-
119
LENDERS
CIBC INC., as Lender
By:
-------------------------------------
Title:
CIBC Xxxxxxxxxxx Corp., AS
AGENT
Notice Address:
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xx. Xxxxxx Xxxx
with a copy to:
000 Xxxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Xx. Xxxx Xxxxxxx
Domestic
Office: Two Paces West
0000 Xxxxx Xxxxx Xxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Facsimile No.: (000) 000-0000
-113-
120
Attention: Ms. Xxxxx Xxxxx
-114-
121
HIBERNIA NATIONAL BANK,
as Co-Agent and Lender
By:
-------------------------------------
Title:
Notice Address:
000 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxxx, Xxxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxx X. Xxxxx
Domestic Office:
000 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxxx, Xxxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxx X. Xxxxx
LIBOR Office:
000 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxxx, Xxxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxx X. Xxxxx
-115-
122
XXXXX FARGO BANK,
NATIONAL ASSOCIATION, as Co-Agent
and Lender
By
---------------------------------------------------------------------------
Xxxxxxxx Xxxxx
Title: Vice President
Notice Address:
0000 Xxxxxx Xxxxxx Xxxxxxx
Xxx Xxxxx, Xxxxxx 00000
Attention: Xxxxxxxx Xxxxx
Gaming Industry Division
Facsimile No.: (000) 000-0000
Domestic Office:
Loan Center Accounting
000 Xxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxx
LIBOR Office:
Loan Center Accounting
000 Xxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxx
-116-
123
BANK OF SCOTLAND, as Lender
By:
-------------------------------------
Title:
Notice Address:
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
Domestic Office:
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
LIBOR Office:
000 0xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
-117-
000
XXXXX XXXXXXXX XXXX XX XXXXXXXX,
as Lender
By:
------------------------------------
Title:
Notice Address:
000 Xx. Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxx Xxxxxxx
Domestic Office:
000 Xx. Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxx Xxxxxxx
LIBOR Office:
000 Xx. Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxx Xxxxxxx
-118-
125
IMPERIAL BANK, as Lender
By:
------------------------------------
Title:
Notice Address:
0000 Xxxxx Xx Xxxxxxx Xxxxxxxxx
00xx Xxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx
Senior Vice President
Domestic Office:
0000 Xxxxx Xx Xxxxxxx Xxxxxxxxx
00xx Xxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx
Senior Vice President
LIBOR Office:
0000 Xxxxx Xx Xxxxxxx Xxxxxxxxx
00xx Xxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx
Senior Vice President
-119-
126
U.S. BANK NATIONAL ASSOCIATION,
as Lender
By:
------------------------------------
Title:
Notice Address:
0000 Xxxx Xxxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxx Xxxxxxxx
Domestic Office:
0000 Xxxx Xxxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxx Xxxxxxxx
LIBOR Office:
0000 Xxxx Xxxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxx Xxxxxxxx
-120-
127
DEPOSIT GUARANTY NATIONAL BANK,
as Lender
By:
------------------------------------
Title:
Notice Address:
000 Xxxx Xxxxxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxx, Xxxxxxxxxxx 00000-0000
Facsimile No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxx
Senior Vice President
Domestic Office:
000 Xxxx Xxxxxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxx, Xxxxxxxxxxx 00000-0000
Facsimile No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxx
Senior Vice President
LIBOR Office:
000 Xxxx Xxxxxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxx, Xxxxxxxxxxx 00000-0000
Facsimile No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxx
Senior Vice President
-121-
128
FIRST SECURITY BANK, N.A., as Lender
By:
-------------------------------
Title:
Notice Address:
Corporate Banking Division
2nd Floor
P.O. Box 30004 (84130)
00 Xxxx 000 Xxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxx
Domestic Office:
Corporate Banking Division
2nd Floor
P.O. Box 30004 (84130)
00 Xxxx 000 Xxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxx
-122-
129
THE MITSUBISHI TRUST AND BANKING
CORPORATION, LOS ANGELES AGENCY,
as Lender
By:
-------------------------------
Title:
Notice Address:
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxx Xxxxx
Vice President
Domestic Office:
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxx Xxxxx
Vice President
-123-
130
SOCIETE GENERALE, as Lender
By:
-------------------------------
Title:
Notice Address:
0000 Xxxxxxx Xxxx Xxxx, #0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxx Xxxxxxxx
Vice President
Domestic Office/LIBOR Office:
0000 Xxxxxxx Xxxx Xxxx, #0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxx Xxx/Xxxxxx Xx
-124-
