Exhibit 4.8
CREDIT AGREEMENT
among
XXXXXX'X ENTERTAINMENT, INC.,
XXXXXX'X OPERATING COMPANY, INC.,
CERTAIN SUBSIDIARIES OF XXXXXX'X OPERATING COMPANY, INC.,
VARIOUS BANKS,
CANADIAN IMPERIAL BANK OF COMMERCE
and
SOCIETE GENERALE,
as CO-SYNDICATION AGENTS,
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION,
as DOCUMENTATION AGENT,
and
BANKERS TRUST COMPANY,
as ADMINISTRATIVE AGENT
-------------------------------------------------------
Dated as of July 22, 1993
and
Amended and Restated
as of June 9, 1995
and further
Amended and Restated
as of April 1, 1998
------------------------------------------------------
TABLE OF CONTENTS
Page
SECTION 1. Amount and Terms of Credit........................................ 1
1.01 The Commitments................................................... 1
1.02 Minimum Amount of Each Borrowing.................................. 5
1.03 Notice of Borrowing............................................... 5
1.04 Disbursement of Funds............................................. 6
1.05 Notes............................................................. 6
1.06 Conversions....................................................... 7
1.07 Pro Rata Borrowings............................................... 7
1.08 Interest.......................................................... 8
1.09 Interest Periods.................................................. 8
1.10 Increased Costs, Illegality, etc.................................. 9
1.11 Compensation......................................................11
1.12 Change of Lending Office..........................................12
1.13 Replacement of Banks..............................................12
SECTION 2. Letters of Credit.................................................13
2.01 Letters of Credit.................................................13
2.02 Minimum Stated Amount.............................................14
2.03 Letter of Credit Requests.........................................14
2.04 Letter of Credit Participations...................................15
2.05 Agreement to Repay Letter of Credit Drawings......................17
2.06 Increased Costs...................................................18
2.07 Responsibility of Letter of Credit Issuers; Reimbursement of
Expenses and Disclaimer of Liability..............................19
SECTION 3. Commitment Commission; Fees; Reductions of Revolving Loan
Commitment..............................................................20
3.01 Fees..............................................................20
3.02 Voluntary Termination of Unutilized Revolving Loan
Commitments.......................................................21
3.03 Mandatory Reduction of Revolving Loan Commitments.................22
SECTION 4. Prepayments; Payments; Taxes......................................24
4.01 Voluntary Prepayments.............................................24
4.02 Mandatory Repayments..............................................25
4.03 Method and Place of Payment.......................................26
4.04 Net Payments......................................................26
SECTION 5A. Conditions Precedent to the Second Restatement Effective
Date....................................................................28
5A.01 Execution of Agreement; Notes.....................................28
(i)
Page
5A.02 Officer's Certificate............................................28
5A.03 Opinions of Counsel..............................................28
5A.04 Corporate Documents; Proceedings.................................29
5A.05 Company/Sub Guaranty.............................................29
5A.06 8-3/4% Senior Subordinated Notes Redemption......................29
5A.07 Adverse Change...................................................30
5A.08 Litigation.......................................................30
5A.09 Approvals, etc...................................................30
5A.10 364-Day Credit Agreement.........................................31
5A.11 Solvency Certificate.............................................31
5A.12 Historical Financial Statements; Pro Forma Financial
Statements and Projections.......................................31
5A.13 Payment of Fees, etc.............................................31
SECTION 5B. Conditions Precedent to the Showboat Merger Effective Date
and the incurrence of Loans on such date................................32
5B.01 Second Restatement Effective Date................................32
5B.02 Officer's Certificate............................................32
5B.03 Opinions of Counsel..............................................32
5B.04 Corporate Documents; Proceedings.................................32
5B.05 The Showboat Merger..............................................32
5B.06 Existing Showboat Notes Tender Offers/Consent Solicitations......33
5B.07 Existing Showboat Working Capital Facility.......................33
5B.08 Adverse Change...................................................33
5B.09 Litigation.......................................................33
5B.10 Approvals, etc...................................................34
5B.11 Solvency Certificate.............................................34
5B.12 Schedules........................................................35
SECTION 6. Conditions Precedent to All Credit Events.........................35
6.01 No Default; Representations and Warranties........................35
6.02 Notice of Borrowing; Letter of Credit Request.....................35
6.03 Election to Become a Subsidiary Borrower..........................35
SECTION 7. Representations, Warranties and Agreements........................36
7.01 Status............................................................36
7.02 Power and Authority...............................................37
7.03 No Violation......................................................37
7.04 Governmental Approvals............................................37
7.05 Financial Statements; Financial Condition; Undisclosed
Liabilities; Projections; etc.....................................37
7.06 Litigation........................................................39
7.07 True and Complete Disclosure......................................39
7.08 Use of Proceeds; Margin Regulations...............................39
7.09 Tax Returns and Payments..........................................40
(ii)
Page
7.10 Compliance with ERISA.............................................40
7.11 Properties........................................................41
7.12 Capitalization....................................................41
7.13 Subsidiaries......................................................41
7.14 Compliance with Statutes, etc.....................................41
7.15 Investment Company Act............................................41
7.16 Public Utility Holding Company Act................................42
7.17 Environmental Matters.............................................42
7.18 Labor Relations...................................................42
7.19 Patents, Licenses, Franchises and Formula.........................43
7.20 Existing Indebtedness.............................................43
7.21 Transaction.......................................................43
7.22 No Other Ventures.................................................44
SECTION 8. Affirmative Covenants.............................................44
8.01 Information Covenants.............................................44
8.02 Books, Records and Inspections....................................46
8.03 Maintenance of Property; Insurance................................46
8.04 Corporate Franchises..............................................47
8.05 Compliance with Statutes, etc.....................................47
8.06 Compliance with Environmental Laws................................48
8.07 ERISA.............................................................48
8.08 End of Fiscal Years; Fiscal Quarters..............................49
8.09 Performance of Obligations........................................49
8.10 Payment of Taxes..................................................49
8.11 Additional Guarantors; etc........................................49
8.12 Showboat Change of Control Offers to Purchase and Showboat
Change of Control Purchases; Existing Showboat Notes Tender
Offers/Consent Solicitations......................................50
8.13 Existing Showboat Notes Defeasances...............................51
8.14 8-3/4% Senior Subordinated Notes Redemption.......................51
SECTION 9. Negative Covenants................................................51
9.01 Liens.............................................................51
9.02 Consolidation, Merger, Purchase or Sale of Assets, etc............54
9.03 Dividends.........................................................56
9.04 Indebtedness......................................................57
9.05 Advances, Investments and Loans...................................60
9.06 Transactions with Affiliates......................................62
9.07 Maximum Leverage Ratio............................................62
9.08 Consolidated Interest Coverage Ratio..............................63
9.09 Minimum Consolidated Net Worth....................................64
9.10 Limitation on Payments and Modifications of Certain Other
Debt; Modifications of Certificate of Incorporation,
Partnership Agreements, Limited Liability Company Agreements
and By-Laws; etc..................................................64
(iii)
Page
9.11 Limitation on Certain Restrictions on Subsidiaries...............65
9.12 Limitation on Issuance of Capital Stock..........................66
9.13 Business.........................................................66
9.14 Ownership of Subsidiaries........................................66
9.15 Special Purpose Corporation......................................66
SECTION 10. Events of Default................................................67
10.01 Payments.........................................................67
10.02 Representations, etc.............................................67
10.03 Covenants........................................................67
10.04 Default Under Other Agreements...................................67
10.05 Bankruptcy, etc..................................................67
10.06 ERISA............................................................68
10.07 Guarantees.......................................................68
10.08 Judgments........................................................68
10.09 Gaming Authority.................................................68
10.10 Change of Control................................................69
10.11 Xxxxxxxx/Las Vegas Stock Restrictions............................69
SECTION 11. Definitions and Accounting Terms.................................69
11.01 Defined Terms....................................................69
SECTION 12. The Administrative Agent.........................................94
12.01 Appointment......................................................94
12.02 Nature of Duties.................................................95
12.03 Lack of Reliance on the Administrative Agent.....................95
12.04 Certain Rights of the Administrative Agent.......................95
12.05 Reliance.........................................................96
12.06 Indemnification..................................................96
12.07 The Administrative Agent in its Individual Capacity..............96
12.08 Holders..........................................................96
12.09 Resignation by the Administrative Agent..........................96
12.10 The Documentation Agent and the Co-Syndication Agents............97
SECTION 13. Miscellaneous....................................................97
13.01 Payment of Expenses, etc.........................................97
13.02 Right of Setoff..................................................99
13.03 Notices..........................................................99
13.04 Benefit of Agreement.............................................99
13.05 No Waiver; Remedies Cumulative..................................102
13.06 Payments Pro Rata...............................................103
13.07 Calculations; Computations......................................103
13.08 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF
JURY TRIAL......................................................104
(iv)
Page
13.09 Counterparts....................................................105
13.10 Effectiveness...................................................105
13.11 Headings Descriptive............................................105
13.12 Amendment or Waiver.............................................106
13.13 Survival........................................................107
13.14 Domicile of Loans...............................................107
13.15 Application of Gaming Regulations...............................108
13.16 Confidentiality.................................................108
13.17 Miscellaneous; Register.........................................109
13.18 Requisite Gaming Approvals......................................109
SECTION 14. Parent Guaranty.................................................110
14.01 The Guaranty....................................................110
14.02 Bankruptcy......................................................110
14.03 Nature of Liability.............................................110
14.04 Independent Obligation..........................................111
14.05 Authorization...................................................111
14.06 Reliance........................................................112
14.07 Subordination...................................................112
14.08 Waiver..........................................................112
SCHEDULE I Revolving Loan Commitments
SCHEDULE II Existing Letters of Credit
SCHEDULE III Tax Matters
SCHEDULE IV Subsidiaries
SCHEDULE V Existing Indebtedness
SCHEDULE VI Joint Ventures
SCHEDULE VII Insurance
SCHEDULE VIII Existing Liens
SCHEDULE IX Litigation
EXHIBIT A Notice of Borrowing
EXHIBIT B-1 Revolving Note
EXHIBIT B-2 Swingline Note
EXHIBIT C Letter of Credit Request
EXHIBIT D Section 4.04(b)(iii) Certificate
EXHIBIT E Officers' Certificate
EXHIBIT F Amended and Restated Company/Sub Guaranty
EXHIBIT G Solvency Certificate
EXHIBIT H Election to Become a Subsidiary Borrower
EXHIBIT I Assignment and Assumption Agreement
(v)
CREDIT AGREEMENT, dated as of July 22, 1993 and amended and restated
as of June 9, 1995 and further amended and restated as of April 1, 1998, among
XXXXXX'X ENTERTAINMENT, INC., a Delaware corporation ("Parent"), XXXXXX'X
OPERATING COMPANY, INC., a Delaware corporation (the "Company"), each Subsidiary
Borrower (together with the Company, each a "Borrower" and, collectively, the
"Borrowers"), the Banks party hereto from time to time, CANADIAN IMPERIAL BANK
OF COMMERCE and SOCIETE GENERALE, as Co-Syndication Agents, BANK OF AMERICA
NATIONAL TRUST AND SAVINGS ASSOCIATION, as Documentation Agent, and BANKERS
TRUST COMPANY, as Administrative Agent (all capitalized terms used herein and
defined in Section 11 are used herein as therein defined).
W I T N E S S E T H :
WHEREAS, Parent, the Borrowers, the Existing Banks and the
Administrative Agent are party to a Credit Agreement, dated as of July 22, 1993
and amended and restated as of June 9, 1995 (as the same has been further
amended, modified or supplemented to, but not including, the Second Restatement
Effective Date, the "Existing Credit Agreement"); and
WHEREAS, the parties hereto wish to amend and restate the Existing
Credit Agreement in its entirety as herein provided;
NOW, THEREFORE, the parties hereto agree that the Existing Credit
Agreement shall be and hereby is amended and restated in its entirety as
follows:
SECTION 1. Amount and Terms of Credit.
1.01 The Commitments. (a) Subject to and upon the terms and
conditions set forth herein, each Bank severally agrees, (A) to convert, on the
Second Restatement Effective Date, Existing Revolving Loans made by such Bank to
the respective Borrowers pursuant to the Existing Credit Agreement and
outstanding on the Second Restatement Effective Date into a Borrowing of
Revolving Loans hereunder to such Borrowers (as so converted, together with all
revolving loans made pursuant to following clause (B), the "Revolving Loans" and
each, a "Revolving Loan") and (B) at any time and from time to time on and after
the Second Restatement Effective Date and prior to the Final Maturity Date, to
make one or more additional Revolving Loans to one or more Borrowers, all of
which Revolving Loans made pursuant to preceding clauses (A) and (B):
(i) shall, at the option of the respective Borrower, be Base Rate
Loans or Eurodollar Loans, provided that, except as otherwise specifically
provided in Section 1.10(b), all Revolving Loans comprising the same
Borrowing shall at all times be of the same Type;
(ii) may be repaid and reborrowed in accordance with the provisions
hereof;
(iii) shall not exceed for any Bank at any time outstanding that
aggregate principal amount which, when added to the product of (x) such
Bank's Adjusted Percentage and (y) the sum of (I) the aggregate amount of
all Letter of Credit Outstandings (exclusive of Unpaid Drawings which are
repaid with the proceeds of, and simultaneously with the incurrence of,
the respective incurrence of Revolving Loans) at such time and (II) the
aggregate principal amount of all Swingline Loans (exclusive of Swingline
Loans which are repaid with the proceeds of, and simultaneously with the
incurrence of, the respective incurrence of Revolving Loans) then
outstanding, equals (1) if such Bank is a Non-Defaulting Bank, the
Adjusted Revolving Loan Commitment of such Bank at such time and (2) if
such Bank is a Defaulting Bank, the Revolving Loan Commitment of such Bank
at such time;
(iv) shall not exceed for all Non-Defaulting Banks at any time
outstanding that aggregate principal amount which, when added to (x) the
amount of all Letter of Credit Outstandings (exclusive of Unpaid Drawings
which are repaid with the proceeds of, and simultaneously with the
incurrence of, the respective incurrence of Revolving Loans) at such time
and (y) the aggregate principal amount of all Swingline Loans (exclusive
of Swingline Loans which are repaid with the proceeds of, and
simultaneously with the incurrence of, the respective incurrence of
Revolving Loans) then outstanding, equals the Adjusted Total Revolving
Loan Commitment at such time (after giving effect to any reductions to the
Adjusted Total Revolving Loan Commitment on such date);
(v) shall not exceed for all Banks at any time outstanding that
aggregate principal amount which, when added to (x) the amount of all
Letter of Credit Outstandings (exclusive of Unpaid Drawings which are
repaid with the proceeds of, and simultaneously with the incurrence of,
the respective incurrence of Revolving Loans) at such time and (y) the
aggregate principal amount of all Swingline Loans (exclusive of Swingline
Loans which are repaid with the proceeds of, and simultaneously with the
incurrence of, the
(2)
respective incurrence of Revolving Loans) then outstanding, equals the
Total Revolving Loan Commitment at such time; and
(vi) shall not exceed for any Subsidiary Borrower at any time
outstanding that aggregate principal amount which, when added to (x) the
amount of all Letter of Credit Outstandings (exclusive of Unpaid Drawings
which are repaid with the proceeds of, and simultaneously with the
incurrence of, the respective incurrence of Revolving Loans) of such
Subsidiary Borrower at such time and (y) the aggregate principal amount of
all Swingline Loans (exclusive of Swingline Loans which are repaid with
the proceeds of, and simultaneously with the incurrence of, the respective
incurrence of Revolving Loans) of such Subsidiary Borrower then
outstanding, equals such Subsidiary Borrower's Sub-Limit.
(b) Subject to and upon the terms and conditions set forth herein,
BTCo in its individual capacity agrees (A) to convert, on the Second Restatement
Effective Date, Existing Swingline Loans made by BTCo to the respective
Borrowers pursuant to the Existing Credit Agreement and outstanding on the
Second Restatement Effective Date into a Borrowing of Swingline Loans hereunder
to such Borrowers (as so converted, together with all Swingline Loans made
pursuant to following clause (B), the "Swingline Loans" and each, a "Swingline
Loan") and (B) to make at any time and from time to time on and after the Second
Restatement Effective Date and prior to the Swingline Expiry Date, one or more
additional Swingline Loans to one or more Borrowers, which Swingline Loans:
(i) shall be made and maintained as Base Rate Loans;
(ii) may be repaid and reborrowed in accordance with the provisions
hereof;
(iii) shall not exceed in aggregate principal amount at any time
outstanding, when combined with the aggregate principal amount of all
Revolving Loans made by Non-Defaulting Banks then outstanding and all
Letter of Credit Outstandings (exclusive of Unpaid Drawings which are
repaid with the proceeds of, and simultaneously with the incurrence
(3)
of, the respective incurrence of Revolving Loans) at such time, an amount
equal to the Adjusted Total Revolving Loan Commitment at such time (after
giving effect to any reductions to the Adjusted Total Revolving Loan
Commitment on such date);
(iv) shall not exceed for any Subsidiary Borrower at any time
outstanding that aggregate principal amount which, when combined with the
aggregate principal amount of all Revolving Loans of such Subsidiary
Borrower then outstanding and the Letter of Credit Outstandings (exclusive
of Unpaid Drawings which are repaid with the proceeds of, and
simultaneously with the incurrence of, the respective incurrence of
Revolving Loans) of such Subsidiary Borrower at such time, equals such
Subsidiary Borrower's Sub-Limit; and
(v) shall not exceed in aggregate principal amount at any time
outstanding the Maximum Swingline Amount.
Notwithstanding anything to the contrary in this Section 1.01(b),
BTCo will not make a Swingline Loan after it has received written notice from
Parent, any Borrower or the Required Banks stating that a Default or an Event of
Default is then in existence until such time as BTCo shall have received written
notice (I) of rescission of all such notices from the party or parties
originally delivering such notice or (II) of the waiver of such Default or Event
of Default by the Required Banks.
(c) On any Business Day, BTCo may, in its sole discretion, give
notice to the Banks that its outstanding Swingline Loans shall be funded with
one or more Borrowings of Revolving Loans (with the Borrowers thereof being the
respective Borrowers of the Swingline Loans) (provided that such notice shall be
deemed to have been automatically given upon the occurrence of an Event of
Default under Section 10.05 or upon the exercise of any of the remedies provided
in the last paragraph of Section 10), in which case one or more Borrowings of
Revolving Loans constituting Base Rate Loans (each such Borrowing, a "Mandatory
Borrowing") shall be funded on the immediately succeeding Business Day by all
Banks (without giving effect to any reductions thereto pursuant to the last
paragraph of Section 10) pro rata based on each Bank's Adjusted Percentage
(determined before giving effect to any termination of the Revolving Loan
Commitments pursuant to the last paragraph of Section 10) and the proceeds
thereof shall be applied directly to BTCo to repay BTCo
(4)
for such outstanding Swingline Loans. Each Bank hereby irrevocably agrees to
make Revolving Loans upon one Business Day's notice pursuant to each Mandatory
Borrowing in the amount and in the manner specified in the preceding sentence
and on the date specified in writing by BTCo notwithstanding (i) the amount of
the Mandatory Borrowing may not comply with the minimum amount for Borrowings
otherwise required hereunder, (ii) whether any conditions specified in Section 6
are then satisfied, (iii) whether a Default or an Event of Default then exists,
(iv) the date of such Mandatory Borrowing and (v) the amount of the Total
Revolving Loan Commitment or the Adjusted Total Revolving Loan Commitment at
such time. In the event that any Mandatory Borrowing cannot for any reason be
made on the date otherwise required above (including, without limitation, as a
result of the commencement of a proceeding under the Bankruptcy Code with
respect to any Borrower), then each Bank hereby agrees that it shall forthwith
purchase (as of the date the Mandatory Borrowing would otherwise have occurred,
but adjusted for any payments received from the respective Borrower on or after
such date and prior to such purchase) from BTCo such participations in the
outstanding Swingline Loans as shall be necessary to cause the Banks to share in
such Swingline Loans ratably based upon their respective Adjusted Percentages
(determined before giving effect to any termination of the Revolving Loan
Commitments pursuant to the last paragraph of Section 10), provided that (x) all
interest payable on the Swingline Loans shall be for the account of BTCo until
the date as of which the respective participation is required to be purchased
and, to the extent attributable to the purchased participation, shall be payable
to the participant from and after such date and (y) at the time any purchase of
participations pursuant to this sentence is actually made, the purchasing Bank
shall be required to pay BTCo interest on the principal amount of participation
purchased for each day from and including the day upon which the Mandatory
Borrowing would otherwise have occurred to but excluding the date of payment for
such participation, at the overnight Federal Funds Rate for the first three days
and at the rate otherwise applicable to Revolving Loans maintained as Base Rate
Loans hereunder for each day thereafter.
(d) Notwithstanding anything to the contrary contained in this
Agreement, until the 90th day after the Showboat Merger Effective Date, the
Borrowers shall ensure that the Total Unutilized Revolving Loan Commitment is at
least $1,000,000,000, although the Total Unutilized Revolving Loan Commitment
may be reduced (x) below $1,000,000,000 by $200,000,000 in connection
(5)
with the incurrence by the Company of Loans the proceeds of which are used to
consummate the 8-3/4% Senior Subordinated Notes Redemption and (y) below
$1,000,000,000 by an additional $800,000,000 from time to time from and after
the consummation of the Showboat Merger in connection with the incurrence by the
Company of Loans the proceeds of which are used to (i) fund the merger
consideration for the Showboat Merger and to pay the related fees and expenses,
(ii) fund any Showboat Change of Control Purchases, (iii) consummate the
Existing Showboat Notes Tender Offers/Consent Solicitations and/or (iv)
consummate the Existing Showboat Notes Defeasances.
(e) Notwithstanding anything to the contrary contained in this
Agreement, on the Second Restatement Effective Date the Borrowers shall, in
coordination with the Administrative Agent and the Banks, repay outstanding
Revolving Loans (after giving effect to the conversion of Existing Revolving
Loans on such date) of certain Banks and, if necessary, incur additional
Revolving Loans from other Banks in each case so that the Banks continue to
participate in each Borrowing of Revolving Loans pro rata on the basis of their
Revolving Loan Commitments.
1.02 Minimum Amount of Each Borrowing. The aggregate principal
amount of each Borrowing of Revolving Loans shall not be less than $5,000,000
and, if greater, shall be in an integral multiple of $1,000,000; provided that
Mandatory Borrowings shall be made in the amounts required by Section 1.01(c).
The aggregate principal amount of each Borrowing of Swingline Loans shall not be
less than $1,000,000 and, if greater, shall be in an integral multiple of
$500,000. More than one Borrowing may occur on the same date, but at no time
shall there be outstanding more than twenty Borrowings of Eurodollar Loans.
1.03 Notice of Borrowing. (a) Whenever a Borrower desires to incur
Revolving Loans hereunder (excluding Revolving Loans incurred pursuant to a
Mandatory Borrowing), such Borrower shall give the Administrative Agent at the
Notice Office at least one Business Day's prior notice of each Base Rate Loan
and at least three Business Days' prior notice of each Eurodollar Loan to be
made hereunder, provided that any such notice shall be deemed to have been given
on a certain day only if given before 12:00 Noon (New York time) on such day.
Each such notice (each a "Notice of Borrowing"), except as otherwise expressly
provided in Section 1.10, shall be irrevocable and shall be given by such
Borrower in the form of Exhibit A, appropriately completed to specify the
aggregate principal amount of the Revolving Loans to
(6)
be made pursuant to such Borrowing, the date of such Borrowing (which shall be a
Business Day), whether the Revolving Loans being made pursuant to such Borrowing
are to be initially maintained as Base Rate Loans or Eurodollar Loans and, if
Eurodollar Loans, the initial Interest Period to be applicable thereto. The
Administrative Agent shall promptly give each Bank written notice of such
proposed Borrowing, of such Bank's proportionate share thereof and of the other
matters required by the immediately preceding sentence to be specified in the
Notice of Borrowing.
(b)(i) Whenever a Borrower desires to incur Swingline Loans
hereunder, such Borrower shall give BTCo not later than 12:00 Noon (New York
time) on the date that a Swingline Loan is to be made, written notice or
telephonic notice confirmed in writing of each Swingline Loan to be made
hereunder. Each such notice shall be irrevocable and specify in each case (A)
the date of Borrowing (which shall be a Business Day) and (B) the aggregate
principal amount of the Swingline Loans to be made pursuant to such Borrowing.
(ii) Without in any way limiting the obligation of such Borrower to
confirm in writing any telephonic notice of such Borrowing of Swingline Loans,
BTCo may act without liability upon the basis of telephonic notice of such
Borrowing, believed by BTCo in good faith to be from a President, a Senior Vice
President, a Vice President, a Treasurer or an Assistant Treasurer of such
Borrower, or any other person designated in writing by any two of the foregoing
officers who has appropriate signature cards on file with BTCo, prior to BTCo's
receipt of such written confirmation. In each such case, such Borrower hereby
waives the right to dispute BTCo's record of the terms of such telephonic notice
of such Borrowing of Swingline Loans.
(iii) Mandatory Borrowings shall be made upon the notice specified
in Section 1.01(c), with the respective Borrower irrevocably agreeing, by its
incurrence of any Swingline Loan, to the making of the Mandatory Borrowings as
set forth in Section 1.01(c).
1.04 Disbursement of Funds. Not later than 10:00 A.M. (New York
time) on the date specified in each Notice of Borrowing (or (x) in the case of
Swingline Loans, not later than 2:00 P.M. (New York time) on the date specified
pursuant to Section 1.03(b)(i) or (y) in the case of Mandatory Borrowings, not
later than 12:00 Noon (New York time) on the date specified in Section
(7)
1.01(c)), each Bank will make available its pro rata portion of each such
Borrowing requested to be made on such date (or in the case of Swingline Loans,
BTCo shall make available the full amount thereof). All such amounts shall be
made available in Dollars and in immediately available funds at the Payment
Office, and, except for Revolving Loans made pursuant to a Mandatory Borrowing,
the Administrative Agent will make available to the respective Borrower at the
Payment Office the aggregate of the amounts so made available by the Banks.
Unless the Administrative Agent shall have been notified by any Bank prior to
the date of Borrowing that such Bank does not intend to make available to the
Administrative Agent such Bank's portion of any Borrowing to be made on such
date, the Administrative Agent may assume that such Bank has made such amount
available to the Administrative Agent on such date of Borrowing and the
Administrative Agent may, in reliance upon such assumption, make available to
the respective Borrower a corresponding amount. If such corresponding amount is
not in fact made available to the Administrative Agent by such Bank, the
Administrative Agent shall be entitled to recover such corresponding amount on
demand from such Bank. If such Bank does not pay such corresponding amount
forthwith upon the Administrative Agent's demand therefor, the Administrative
Agent shall promptly notify the respective Borrower and such Borrower shall
immediately pay such corresponding amount to the Administrative Agent. The
Administrative Agent shall also be entitled to recover on demand from such Bank
or such Borrower, as the case may be, interest on such corresponding amount in
respect of each day from the date such corresponding amount was made available
by the Administrative Agent to such Borrower until the date such corresponding
amount is recovered by the Administrative Agent, at a rate per annum equal to
(i) if recovered from such Bank, the overnight Federal Funds Rate and (ii) if
recovered from such Borrower, the rate of interest applicable to the respective
Borrowing, as determined pursuant to Section 1.08. Nothing in this Section 1.04
shall be deemed to relieve any Bank from its obligation to make Loans hereunder
or to prejudice any rights which the respective Borrower may have against any
Bank as a result of any failure by such Bank to make Loans hereunder.
1.05 Notes. (a) Each Borrower's obligation to pay the principal of,
and interest on, the Loans made by each Bank to such Borrower shall be set forth
in the Register maintained by the Administrative Agent pursuant to Section
13.17(b) and shall, if requested by any Bank, be evidenced (i) if Revolving
Loans, by a promissory note duly executed and delivered by such Borrower
(8)
substantially in the form of Exhibit B-1, with blanks appropriately completed in
conformity herewith (each a "Revolving Note" and, collectively, the "Revolving
Notes") and (ii) if Swingline Loans, by a promissory note duly executed and
delivered by such Borrower substantially in the form of Exhibit B-2, with blanks
appropriately completed in conformity herewith (each a "Swingline Note" and,
collectively, the "Swingline Notes").
(b) The Revolving Note issued by each Borrower to each Bank shall
(i) be payable to the order of such Bank and be dated the Second Restatement
Effective Date, (ii) be in a stated principal amount equal to the Revolving Loan
Commitment of such Bank and be payable in the principal amount of the
outstanding Revolving Loans evidenced thereby, (iii) mature on the Final
Maturity Date, (iv) bear interest as provided in the appropriate clause of
Section 1.08 in respect of the Base Rate Loans and Eurodollar Loans, as the case
may be, evidenced thereby, (v) be subject to voluntary prepayment as provided in
Section 4.01, and mandatory repayment as provided in Section 4.02, and (vi) be
entitled to the benefits of this Agreement and the other Credit Documents.
(c) The Swingline Note issued by each Borrower to BTCo shall (i) be
payable to the order of BTCo and be dated the Second Restatement Effective Date,
(ii) be in a stated principal amount equal to the Maximum Swingline Amount and
be payable in the principal amount of the outstanding Swingline Loans evidenced
thereby from time to time, (iii) mature on the Swingline Expiry Date, (iv) bear
interest as provided in the appropriate clause of Section 1.08 in respect of the
Base Rate Loans evidenced thereby, (v) be subject to voluntary prepayment as
provided in Section 4.01, and mandatory repayment as provided in Section 4.02,
and (vi) be entitled to the benefits of this Agreement and the other Credit
Documents.
(d) Each Bank will note on its internal records the amount of each
Loan made by it and each payment in respect thereof and will prior to any
transfer of any of its Notes endorse on the reverse side thereof the outstanding
principal amount of Loans evidenced thereby. Failure to make any such notation
(or any error in such notation) shall not affect any Borrower's obligations in
respect of such Loans.
1.06 Conversions. Each Borrower shall have the option to convert, on
any Business Day, at least $5,000,000 of the outstanding principal amount of the
Revolving Loans made pursuant
(9)
to one or more Borrowings of one or more Types of Revolving Loans into a
Borrowing of another Type of Revolving Loan, provided that (i) except as
otherwise provided in Section 1.10(b), Eurodollar Loans may be converted into
Base Rate Loans only on the last day of an Interest Period applicable to the
Revolving Loans being converted and no such conversion of Eurodollar Loans shall
reduce the outstanding principal amount of such Eurodollar Loans made pursuant
to a single Borrowing to less than $5,000,000, (ii) unless the Required Banks
otherwise agree, Base Rate Loans may only be converted into Eurodollar Loans if
no Event of Default is in existence on the date of the conversion and (iii) no
conversion pursuant to this Section 1.06 shall result in a greater number of
Borrowings of Eurodollar Loans than is permitted under Section 1.02. Each such
conversion shall be effected by the respective Borrower by giving the
Administrative Agent at the Notice Office prior to 12:00 Noon (New York time) at
least three Business Days' prior notice (each a "Notice of Conversion")
specifying the Revolving Loans to be so converted, the Borrowing(s) pursuant to
which such Revolving Loans were made and, if to be converted into Eurodollar
Loans, the Interest Period to be initially applicable thereto. The
Administrative Agent shall give each Bank prompt written notice of any such
proposed conversion affecting any of its Revolving Loans. Upon any such
conversion the proceeds thereof will be deemed to be applied directly on the day
of such conversion to prepay the outstanding principal amount of the Revolving
Loans being converted.
1.07 Pro Rata Borrowings. All Borrowings of Revolving Loans under
this Agreement shall be incurred from the Banks pro rata on the basis of their
Revolving Loan Commitments; provided that all Borrowings of Revolving Loans made
pursuant to a Mandatory Borrowing shall be incurred from the Banks pro rata on
the basis of their Adjusted Percentages. It is understood that no Bank shall be
responsible for any default by any other Bank of its obligation to make
Revolving Loans hereunder and that each Bank shall be obligated to make the
Revolving Loans provided to be made by it hereunder, regardless of the failure
of any other Bank to make its Revolving Loans hereunder.
1.08 Interest. (a) Each Borrower agrees to pay interest in respect
of the unpaid principal amount of each Base Rate Loan from the date of Borrowing
thereof until the earlier of (i) the maturity thereof (whether by acceleration
or otherwise) and (ii) the conversion of such Base Rate Loan to a Eurodollar
Loan pursuant to Section 1.06 or 1.09, as applicable, at a rate
(10)
per annum which shall be equal to the Base Rate in effect from time to time.
(b) Each Borrower agrees to pay interest in respect of the unpaid
principal amount of each Eurodollar Loan from the date of Borrowing thereof
until the earlier of (i) the maturity thereof (whether by acceleration or
otherwise) and (ii) the conversion of such Eurodollar Loan to a Base Rate Loan
pursuant to 1.06, 1.09 or 1.10, as applicable, at a rate per annum which shall,
during each Interest Period applicable thereto, be equal to the sum of the
Applicable Margin plus the Eurodollar Rate for such Interest Period.
(c) Overdue principal and, to the extent permitted by law, overdue
interest in respect of each Loan and any other overdue amount payable hereunder
shall, in each case, bear interest at a rate per annum equal to the greater of
(x) 2% per annum in excess of the Base Rate in effect from time to time and (y)
the rate which is 2% in excess of the rate then borne by such Loans, in each
case with such interest to be payable on demand.
(d) Accrued (and theretofore unpaid) interest shall be payable (i)
in respect of each Base Rate Loan, quarterly in arrears on the last Business Day
of each March, June, September and December, (ii) in respect of each Eurodollar
Loan, on the last day of each Interest Period applicable thereto and, in the
case of an Interest Period in excess of three months, on each date occurring at
three month intervals after the first day of such Interest Period and (iii) in
respect of each Loan, on any repayment (on the amount repaid), at maturity
(whether by acceleration or otherwise) and, after such maturity, on demand.
(e) Upon each Interest Determination Date, the Administrative Agent
shall determine the Eurodollar Rate for each Interest Period applicable to
Eurodollar Loans and shall promptly notify the respective Borrower and the Banks
thereof. Each such determination shall, absent manifest error, be final and
conclusive and binding on all parties hereto.
1.09 Interest Periods. At the time a Borrower gives any Notice of
Borrowing or Notice of Conversion in respect of the making of, or conversion
into, any Eurodollar Loan (in the case of the initial Interest Period applicable
thereto) or on the third Business Day prior to the expiration of an Interest
Period applicable to such Eurodollar Loan (in the case of any subsequent
Interest Period), such Borrower shall have the right to elect, by
(11)
giving the Administrative Agent notice thereof, the interest period (each an
"Interest Period") applicable to such Eurodollar Loan, which Interest Period
shall, at the option of such Borrower, be a one, two, three or six month period,
provided that:
(i) all Eurodollar Loans comprising a Borrowing shall at all times
have the same Interest Period;
(ii) the initial Interest Period for any Eurodollar Loan shall
commence on the date of Borrowing of such Eurodollar Loan (including the
date of any conversion thereto from a Base Rate Loan) and each Interest
Period occurring thereafter in respect of such Eurodollar Loan shall
commence on the day on which the next preceding Interest Period applicable
thereto expires;
(iii) if any Interest Period relating to a Eurodollar Loan begins on
a day for which there is no numerically corresponding day in the calendar
month at the end of such Interest Period, such Interest Period shall end
on the last Business Day of such calendar month;
(iv) if any Interest Period would otherwise expire on a day which is
not a Business Day, such Interest Period shall expire on the next
succeeding Business Day; provided, however, that if any Interest Period
for a Eurodollar Loan would otherwise expire on a day which is not a
Business Day but is a day of the month after which no further Business Day
occurs in such month, such Interest Period shall expire on the next
preceding Business Day;
(v) unless the Required Banks otherwise agree, no Interest Period
may be selected at any time when an Event of Default is then in existence;
(vi) no Interest Period shall be selected which extends beyond the
Final Maturity Date; and
(vii) no Interest Period in respect of any Borrowing of Revolving
Loans shall be selected which extends beyond any date upon which a
mandatory repayment of Revolving Loans will be required to be made under
Section 4.02(a), as a result of reductions to the Total Revolving Loan
Commitment pursuant to Section 3.03(b), unless the aggregate principal
amount of Revolving Loans which are Base Rate Loans or which
(12)
have Interest Periods which will expire on or before such date will be
sufficient to make such required prepayment.
If upon the expiration of any Interest Period applicable to a
Borrowing of Eurodollar Loans, the respective Borrower has failed to elect, or
is not permitted to elect, a new Interest Period to be applicable to such
Eurodollar Loans as provided above, such Borrower shall be deemed to have
elected to convert such Eurodollar Loans into Base Rate Loans effective as of
the expiration date of such current Interest Period.
1.10 Increased Costs, Illegality, etc. (a) In the event that any
Bank shall have determined (which determination shall, absent manifest error, be
final and conclusive and binding upon all parties hereto but, with respect to
clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any
changes arising after the Second Restatement Effective Date affecting the
interbank Eurodollar market, adequate and fair means do not exist for
ascertaining the applicable interest rate on the basis provided for in the
definition of Eurodollar Rate; or
(ii) at any time, that such Bank shall incur increased costs or
reductions in the amounts received or receivable hereunder with respect to
any Eurodollar Loan because of (x) any change since the Second Restatement
Effective Date in any applicable law or governmental rule, regulation,
order, guideline or request (whether or not having the force of law) or in
the interpretation or administration thereof and including the
introduction of any new law or governmental rule, regulation, order,
guideline or request, such as, for example, but not limited to: (A) a
change in the basis of taxation of payment to any Bank of the principal of
or interest on any Loans, Notes or any other amounts payable hereunder
(except for changes in the rate of tax on, or determined by reference to,
the net income or profits of such Bank pursuant to the laws of the
jurisdiction in which it is organized or in which its principal office or
applicable lending office is located or any subdivision thereof or
therein) or (B) a change in official reserve requirements, but, in all
events, excluding reserves required under Regulation D to the extent
included in the computation of the Eurodollar Rate and/or (y) other
circumstances since the Second Restatement Effective Date
(13)
affecting such Bank or the interbank Eurodollar market or the position of
such Bank in such market; or
(iii) at any time, that the making or continuance of any Eurodollar
Loan has been made (x) unlawful by any law or governmental rule,
regulation or order, (y) impossible by compliance by any Bank in good
faith with any governmental request (whether or not having force of law)
or (z) impracticable as a result of a contingency occurring after the
Second Restatement Effective Date which materially and adversely affects
the interbank Eurodollar market;
then, and in any such event, such Bank (or the Administrative Agent, in the case
of clause (i) above) shall promptly give telephonic notice (confirmed in
writing) to the respective Borrower and, except in the case of clause (i) above,
to the Administrative Agent of such determination (which notice the
Administrative Agent shall promptly transmit to each of the other Banks).
Thereafter (x) in the case of clause (i) above, Eurodollar Loans shall no longer
be available until such time as the Administrative Agent notifies the respective
Borrower and the Banks that the circumstances giving rise to such notice by the
Administrative Agent no longer exist, and any Notice of Borrowing or Notice of
Conversion given by such Borrower with respect to Eurodollar Loans which have
not yet been incurred (including by way of conversion) shall be deemed rescinded
by such Borrower, (y) in the case of clause (ii) above, the respective Borrower
shall pay to such Bank, upon written demand therefor, such additional amounts
(in the form of an increased rate of, or a different method of calculating,
interest or otherwise as such Bank in its sole discretion shall determine) as
shall be required to compensate such Bank for such increased costs or reductions
in amounts received or receivable hereunder (a written notice as to the
additional amounts owed to such Bank, showing the basis for the calculation
thereof, submitted to such Borrower by such Bank shall, absent manifest error,
be final and conclusive and binding on all the parties hereto) and (z) in the
case of clause (iii) above, the respective Borrower shall take one of the
actions specified in Section 1.10(b) as promptly as possible and, in any event,
within the time period required by law.
(b) At any time that any Eurodollar Loan is affected by the
circumstances described in Section 1.10(a)(ii) or (iii), the respective Borrower
may (and in the case of any Eurodollar Loan affected by the circumstances
described in Section 1.10(a)(iii) shall) either (x) if the affected Eurodollar
Loan is
(14)
then being made initially or pursuant to a conversion, cancel the respective
Borrowing by giving the Administrative Agent telephonic notice (confirmed in
writing) on the same date that such Borrower was notified by the affected Bank
or the Administrative Agent pursuant to Section 1.10(a)(ii) or (iii) or (y) if
the affected Eurodollar Loan is then outstanding, upon at least three Business
Days' written notice to the Administrative Agent, require the affected Bank to
convert such Eurodollar Loan into a Base Rate Loan; provided that, if more than
one Bank is affected at any time, then all affected Banks must be treated the
same pursuant to this Section 1.10(b).
(c) If at any time any Bank determines that the introduction of or
any change in any applicable law or governmental rule, regulation, order,
guideline, directive or request (whether or not having the force of law and
including, without limitation, those announced or published prior to the Second
Restatement Effective Date) concerning capital adequacy, or any change in
interpretation or administration thereof by any governmental authority, central
bank or comparable agency, will have the effect of increasing the amount of
capital required or expected to be maintained by such Bank or any corporation
controlling such Bank based on the existence of such Bank's Revolving Loan
Commitment hereunder or its obligations hereunder, then the Borrowers shall pay
(and shall be jointly and severally obligated to pay) to such Bank, upon its
written demand therefor, such additional amounts as shall be required to
compensate such Bank or such other corporation for the increased cost to such
Bank or such other corporation or the reduction in the rate of return to such
Bank or such other corporation as a result of such increase of capital. In
determining such additional amounts, each Bank will act reasonably and in good
faith and will use averaging and attribution methods which are reasonable,
provided that such Bank's determination of compensation owing under this Section
1.10(c) shall, absent manifest error, be final and conclusive and binding on all
the parties hereto. Each Bank, upon determining that any additional amounts will
be payable pursuant to this Section 1.10(c), will give prompt written notice
thereof to the Borrowers, which notice shall show the basis for calculation of
such additional amounts.
1.11 Compensation. The respective Borrower shall compensate each
Bank, upon its written request (which request shall (x) set forth the basis for
requesting such compensation and (y) absent manifest error, be final and
conclusive and binding upon all the parties hereto), for all reasonable losses,
(15)
expenses and liabilities (including, without limitation, any loss, expense or
liability incurred by reason of the liquidation or reemployment of deposits or
other funds required by such Bank to fund its Eurodollar Loans) which such Bank
may sustain: (i) if for any reason (other than a default by such Bank or the
Administrative Agent) a Borrowing of Eurodollar Loans, or conversion from or
into Eurodollar Loans, does not occur on a date specified therefor in a Notice
of Borrowing or Notice of Conversion (whether or not withdrawn by such Borrower
or deemed withdrawn pursuant to Section 1.10(a)); (ii) if any repayment
(including any repayment made pursuant to Section 4.01 or 4.02 or a result of an
acceleration of the Loans pursuant to Section 10) or conversion of any of its
Eurodollar Loans occurs on a date which is not the last day of an Interest
Period with respect thereto; (iii) if any prepayment of any of its Eurodollar
Loans is not made on any date specified in a notice of prepayment given by such
Borrower; or (iv) as a consequence of (x) any other default by such Borrower to
repay its Loans when required by the terms of this Agreement or any Note held by
such Bank or (y) any election made pursuant to Section 1.10(b).
1.12 Change of Lending Office. Each Bank agrees that on the
occurrence of any event giving rise to the operation of Section 1.10(a)(ii) or
(iii), Section 1.10(c), Section 2.06 or Section 4.04 with respect to such Bank,
it will, if requested by the Company, use reasonable efforts (subject to overall
policy considerations of such Bank) to designate another lending office for any
Loans or Letters of Credit affected by such event, provided that such
designation is made on such terms that such Bank and its lending office suffer
no economic, legal or regulatory disadvantage, with the object of avoiding the
consequence of the event giving rise to the operation of such Section. Nothing
in this Section 1.12 shall affect or postpone any of the obligations of any
Borrower or the right of any Bank provided in Sections 1.10, 2.06 and 4.04.
1.13 Replacement of Banks. If any Bank (1) becomes a Defaulting Bank
or otherwise defaults in its obligations to make Loans or fund Unpaid Drawings,
(2) is incurring or is reasonably expected to incur costs which are or would be
material in amount and are associated with a Gaming Authority's investigation of
whether or not such Bank is a Qualified Person or (3) refuses to consent to
certain proposed changes, waivers, discharges or terminations with respect to
this Agreement which have been approved by the Required Banks as provided in
Section 13.12(b), the Company shall have the right, if no Default or Event of
(16)
Default will exist immediately after giving effect to such replacement, to
replace such Bank (the "Replaced Bank") with one or more other Qualified Person
or Persons, none of whom shall constitute a Defaulting Bank at the time of such
replacement (collectively, the "Replacement Bank"), and each of whom shall be
reasonably acceptable to the Administrative Agent and each Letter of Credit
Issuer, provided that:
(i) at the time of any replacement pursuant to this Section 1.13,
the Replacement Bank shall enter into one or more Assignment and
Assumption Agreements pursuant to, and in accordance with the terms of,
Section 13.04(b) (and with all fees payable pursuant to said Section
13.04(b) to be paid by the Replacement Bank) pursuant to which the
Replacement Bank shall acquire the Revolving Loan Commitment and all
outstanding Revolving Loans of, and in each case participations in Letters
of Credit by, the Replaced Bank and, in connection therewith, shall pay to
(x) the Replaced Bank in respect thereof an amount equal to the sum of (A)
an amount equal to the principal of, and all accrued interest on, all
outstanding Revolving Loans of the Replaced Bank, (B) an amount equal to
all Unpaid Drawings that have been funded by (and not reimbursed to) such
Replaced Bank, together with all then unpaid interest with respect thereto
at such time and (C) an amount equal to all accrued, but theretofore
unpaid, Fees owing to the Replaced Bank pursuant to Section 3.01, (y) the
respective Letter of Credit Issuer an amount equal to such Replaced Bank's
Adjusted Percentage (for this purpose, determined as if the adjustment
described in clause (y) of the immediately succeeding sentence had been
made with respect to such Replaced Bank) of any applicable Unpaid Drawing
(which at such time remains an Unpaid Drawing) with respect to Letters of
Credit issued by such Letter of Credit Issuer to the extent such amount
was not theretofore funded by such Replaced Bank and (z) BTCo an amount
equal to such Replaced Bank's Adjusted Percentage of any Mandatory
Borrowing to the extent such amount was not theretofore funded by such
Replaced Bank; and
(ii) all obligations of the Borrowers owing to the Replaced Bank
(including all obligations, if any, owing pursuant to Section 1.11, but
excluding those obligations specifically described in clause (i) above in
respect of which the assignment purchase price has been, or is
concurrently being, paid) shall be paid in full to such Replaced Bank
concurrently with such replacement.
(17)
Upon the execution of the respective Assignment and Assumption Agreements, the
payment of amounts referred to in clauses (i) and (ii) above and, if so
requested by the Replacement Bank, delivery to the Replacement Bank of the
appropriate Revolving Notes executed by the Borrowers, (x) the Replacement Bank
shall become a Bank hereunder and the Replaced Bank shall cease to constitute a
Bank hereunder, except with respect to indemnification provisions under this
Agreement (including, without limitation, Sections 1.10, 1.11, 2.06, 4.04, 13.01
and 13.06), which shall survive as to such Replaced Bank and (y) if such
Replaced Bank is a Defaulting Bank, the Adjusted Percentages of the Banks shall
be automatically adjusted at such time to give effect to such replacement (and
to give effect to the replacement of a Defaulting Bank with one or more
Non-Defaulting Banks).
SECTION 2. Letters of Credit.
2.01 Letters of Credit. (a) Subject to and upon the terms and
conditions set forth herein, any Borrower may request that a Letter of Credit
Issuer issue, at any time and from time to time on and after the Second
Restatement Effective Date and prior to the Final Maturity Date, for the account
of such Borrower and for the benefit of any holder (or any trustee, agent or
other similar representative for any such holder) of L/C Supportable
Indebtedness of such Borrower or any of its Subsidiaries, an irrevocable standby
letter of credit, in a form customarily used by such Letter of Credit Issuer or
in such other form as has been approved by such Letter of Credit Issuer (each
such standby letter of credit, a "Letter of Credit") in support of such L/C
Supportable Indebtedness. It is hereby acknowledged and agreed that each of the
letters of credit which were issued under the Existing Credit Agreement prior to
the Second Restatement Effective Date and which remain outstanding on the Second
Restatement Effective Date (the "Existing Letters of Credit") shall, from and
after the Second Restatement Effective Date, constitute a "Letter of Credit" for
purposes of this Agreement. Each Existing Letter of Credit and the Stated Amount
thereof, together with the account party and beneficiary thereunder, is set
forth on Schedule II.
(b) Each Letter of Credit Issuer hereby agrees that it will, at any
time and from time to time on or after the Second Restatement Effective Date and
prior to the Final Maturity Date, following its receipt of the respective Letter
of Credit Request, issue for the account of the respective Borrower one or more
Letters of Credit in support of such L/C Supportable Indebtedness
(18)
of such Borrower or any of its Subsidiaries as is permitted to remain
outstanding without giving rise to a Default or an Event of Default, provided
that no Letter of Credit Issuer shall be under any obligation to issue any
Letter of Credit if at the time of such issuance:
(i) any order, judgment or decree of any governmental authority or
arbitrator shall purport by its terms to enjoin or restrain such Letter of
Credit Issuer from issuing such Letter of Credit or any requirement of law
applicable to such Letter of Credit Issuer or any request or directive
(whether or not having the force of law) from any governmental authority
with jurisdiction over such Letter of Credit Issuer shall prohibit, or
request that such Letter of Credit Issuer refrain from, the issuance of
letters of credit generally or such Letter of Credit in particular or
shall impose upon such Letter of Credit Issuer with respect to such Letter
of Credit any restriction or reserve or capital requirement (for which
such Letter of Credit Issuer is not otherwise compensated) not in effect
on the date hereof, or any unreimbursed loss, cost or expense which was
not applicable, in effect or known to such Letter of Credit Issuer as of
the date hereof and which such Letter of Credit Issuer in good xxxxx xxxxx
material to it; or
(ii) such Letter of Credit Issuer shall have received notice from
the Required Banks prior to the issuance of such Letter of Credit of the
type described in the penultimate sentence of Section 2.03(b).
(c) Notwithstanding the foregoing, (i) no Letter of Credit shall
hereafter be issued the Stated Amount of which, when added to the Letter of
Credit Outstandings (exclusive of Unpaid Drawings which are repaid on the date
of, and prior to the issuance of, the respective Letter of Credit) at such time,
would exceed, when added to the aggregate principal amount of all Revolving
Loans made by Non-Defaulting Banks and all Swingline Loans then outstanding, an
amount equal to the Adjusted Total Revolving Loan Commitment at such time, (ii)
no Letter of Credit shall hereafter be issued the Stated Amount of which, when
added to the Letter of Credit Outstandings (exclusive of Unpaid Drawings which
are repaid on the date of, and prior to the issuance of, the respective Letter
of Credit) at such time, would exceed $50,000,000, (iii) no Letter of Credit
shall hereafter be issued for the account of any Subsidiary Borrower the Stated
Amount of which, when added to the sum of (A) the Letter of
(19)
Credit Outstandings for such Subsidiary Borrower (exclusive of Unpaid Drawings
which are repaid on the date of, and prior to the issuance of, the respective
Letter of Credit) at such time and (B) the aggregate principal amount of all
Revolving Loans and Swingline Loans then outstanding for such Subsidiary
Borrower, would exceed such Subsidiary Borrower's Sub-Limit and (iv) each Letter
of Credit hereafter issued shall by its terms terminate on or before the earlier
of (x) the date which occurs 12 months after the date of the issuance thereof
(although any such Letter of Credit may be extendable for successive periods of
up to 12 months, but not beyond the Final Maturity Date, on terms acceptable to
the respective Letter of Credit Issuer) and (y) the Final Maturity Date.
2.02 Minimum Stated Amount. The Stated Amount of each Letter of
Credit shall be not less than $500,000 or such lesser amount as is acceptable to
the respective Letter of Credit Issuer.
2.03 Letter of Credit Requests. (a) Whenever a Borrower desires that
a Letter of Credit be issued for its account, such Borrower shall give the
Administrative Agent and the respective Letter of Credit Issuer at least five
Business Days' (or such shorter period as is acceptable to such Letter of Credit
Issuer in any given case) written notice thereof. Each notice shall be in the
form of Exhibit C (each a "Letter of Credit Request"). The Administrative Agent
shall promptly transmit copies of each Letter of Credit Request to each Bank.
(b) The making of each Letter of Credit Request shall be deemed to
be a representation and warranty by the respective Borrower that such Letter of
Credit may be issued in accordance with, and will not violate the requirements
of, Section 2.01(c). Unless the respective Letter of Credit Issuer has received
written notice from the Required Banks before it issues a Letter of Credit that
one or more of the conditions specified in Section 5 or Section 6 are not then
satisfied, or that the issuance of such Letter of Credit would violate Section
2.01(c), then such Letter of Credit Issuer may issue the requested Letter of
Credit for the account of the respective Borrower in accordance with such Letter
of Credit Issuer's usual and customary practices. Upon its issuance of any
Letter of Credit, the respective Letter of Credit Issuer shall promptly notify
each Bank of such issuance, which notice shall be accompanied by a copy of the
Letter of Credit actually issued.
(20)
2.04 Letter of Credit Participations. (a) Immediately upon the
issuance by a Letter of Credit Issuer of any Letter of Credit (or upon the
Second Restatement Effective Date with respect to the Existing Letters of
Credit), such Letter of Credit Issuer shall be deemed to have sold and
transferred to each Bank, other than such Letter of Credit Issuer (each such
Bank, in its capacity under this Section 2.04, a "Participant"), and each such
Participant shall be deemed irrevocably and unconditionally to have purchased
and received from such Letter of Credit Issuer, without recourse or warranty, an
undivided interest and participation, to the extent of such Participant's
Adjusted Percentage, in such Letter of Credit, each drawing made thereunder and
the obligations of the respective Borrower under this Agreement with respect
thereto, and any security therefor or guaranty pertaining thereto. This
Agreement is intended by the parties to effect an immediate purchase by each
Participant and sale by the respective Letter of Credit Issuer of such
Participant's Adjusted Percentage of such rights and obligations in each Letter
of Credit issued hereunder, and it is not to be construed as a loan or a
commitment to make a loan by such Participant to such Letter of Credit Issuer,
and the relationship between such Participant and such Letter of Credit Issuer
shall not be a debtor-creditor relationship. Each Participant hereby absolutely
and unconditionally assumes and agrees to pay and discharge when due, ratably in
accordance with its Adjusted Percentage, the obligations of each Letter of
Credit Issuer under the Letters of Credit issued by it, by paying to such Letter
of Credit Issuer in accordance with and to the extent provided by clause (c) of
this Section 2.04, its ratable share of all amounts advanced by such Letter of
Credit Issuer in connection with any Letter of Credit issued by it. Upon any
change in the Revolving Loan Commitments or Adjusted Percentages of the Banks
pursuant to Section 1.13 or 13.04 or as a result of a Bank Default, it is hereby
agreed that, with respect to all outstanding Letters of Credit and Unpaid
Drawings, there shall be an automatic adjustment to the participations pursuant
to this Section 2.04 to reflect the new Adjusted Percentages of the assignor and
assignee Bank or of all Banks, as the case may be.
(b) In determining whether to pay under any Letter of Credit, the
respective Letter of Credit Issuer shall have no obligation relative to the
Participants other than to confirm that any documents required to be delivered
under such Letter of Credit appear to have been delivered and that they appear
to comply on their face with the requirements of such Letter of Credit. Any
action taken or omitted to be taken by the
(21)
respective Letter of Credit Issuer under or in connection with any Letter of
Credit if taken or omitted in the absence of gross negligence or willful
misconduct, shall not create for such Letter of Credit Issuer any resulting
liability to any Borrower or any Participant.
(c) In the event that any Letter of Credit Issuer makes any payment
under any Letter of Credit (including any Existing Letter of Credit) and the
respective Borrower shall not have reimbursed such amount in full to such Letter
of Credit Issuer pursuant to Section 2.05(a), such Letter of Credit Issuer shall
promptly notify the Administrative Agent, which shall promptly notify each
Participant of such failure, and each Participant shall absolutely and
unconditionally pay to the Administrative Agent for the account of such Letter
of Credit Issuer the amount of such Participant's Adjusted Percentage of such
unreimbursed payment. Each Participant required to fund a payment pursuant to
the preceding sentence shall do so in Dollars and in same day funds, without
reduction for any setoff or counterclaim of any nature whatsoever, on the
Business Day on which the Administrative Agent so notified such Participant, if
such notice was given before 11:00 A.M. (New York time), or if such notice was
not given by such time, on the Business Day next following such notice. If and
to the extent such Participant shall not have so made its Adjusted Percentage of
the amount of such payment available, as aforesaid, such Participant agrees to
pay to the Administrative Agent for the account of such Letter of Credit Issuer,
forthwith on demand such amount, together with interest thereon, for each day
from such date until the date such amount is paid to such Letter of Credit
Issuer at the overnight Federal Funds Rate. The failure of any Participant to
make available to the respective Letter of Credit Issuer its Adjusted Percentage
of any payment under any Letter of Credit shall not relieve any other
Participant of its obligation hereunder to make available, as aforesaid, its
Adjusted Percentage of any Letter of Credit on the date required, as specified
above, nor shall any Participant be relieved of its obligations to make such
payments by reason of noncompliance by any other party to and with the terms of
the other Credit Documents or for any other reason, but no Participant shall be
responsible for the failure of any other Participant to make available to such
Letter of Credit Issuer such other Participant's Adjusted Percentage of any such
payment.
(d) Whenever any Letter of Credit Issuer receives a payment of a
reimbursement obligation as to which it has received any payments from any
Participant pursuant to clause (c) of this
(22)
Section 2.04 such Letter of Credit Issuer shall promptly pay such amount in
Dollars and in same day funds, less the proportion of such amount due to such
Letter of Credit Issuer, to the Administrative Agent for the account of each
Participant which has paid its Adjusted Percentage thereof, whereupon the
Administrative Agent shall promptly distribute the amount so paid to each such
Participant ratably in accordance with its proportion of the aggregate amount
theretofore funded by all Participants.
(e) Upon the request of any Participant, the respective Letter of
Credit Issuer shall furnish to such Participant copies of any Letter of Credit
issued by it and such other documentation as may reasonably be requested by such
Participant.
(f) The obligations of the Participants to make payments as provided
in clause (c) of this Section 2.04 with respect to Letters of Credit issued by
it shall be irrevocable and not subject to any counterclaim, set-off, other
defense or any qualification or exception whatsoever and shall be made in
accordance with the terms and conditions of this Agreement under all
circumstances, including, without limitation, any of the following
circumstances:
(i) any lack of validity or enforceability of this Agreement or any
of the other Credit Documents;
(ii) the existence of any claim, setoff, defense or other right
which the respective Borrower, any Subsidiary thereof or Participant may
have at any time against a beneficiary named in a Letter of Credit, any
transferee of any Letter of Credit (or any Person for whom any such
transferee may be acting), the Administrative Agent, any Participant, or
any other Person, whether in connection with this Agreement, any Letter of
Credit, the transactions contemplated herein or therein or any unrelated
transactions (including any underlying transaction between the respective
Borrower or any Subsidiary thereof and the beneficiary named in any such
Letter of Credit);
(iii) any draft, certificate or any other document presented under
any Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect;
(23)
(iv) the surrender or impairment of any security for the performance
or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
(g) If any Participant shall fail to make any payment required
pursuant to this Agreement in respect of any Letter of Credit at the time, in
the funds and at the place provided, the respective Letter of Credit Issuer may,
but shall not be obligated to, advance funds on behalf of such Participant (the
"Defaulting Participant"). Each such advance shall be secured by the Defaulting
Participant's interest in all payments and remedies under this Agreement and the
other Credit Documents, the respective Letter of Credit Issuer shall be
subrogated to the rights of the Defaulting Participant in this Agreement and the
other Credit Documents and, at the request of the respective Letter of Credit
Issuer, the Administrative Agent shall cause such advance to be repaid by
application of payments which the Defaulting Participant would otherwise be
entitled to receive under this Agreement and the other Credit Documents.
Notwithstanding clause (c) of this Section 2.04, any amount not paid by the
Defaulting Participant to the respective Letter of Credit Issuer as provided
herein and each advance made by such Letter of Credit Issuer hereunder shall
bear interest for each day from the date each such payment was due or such
advance was made until such payment shall be made in full or advance repaid in
full at the overnight Federal Funds Rate for the first three days during which
the Defaulting Participant is in default, and thereafter at the Prime Lending
Rate.
2.05 Agreement to Repay Letter of Credit Drawings. (a) Each Borrower
hereby agrees to reimburse the respective Letter of Credit Issuer, by making
payment to the Administrative Agent for the account of such Letter of Credit
Issuer in immediately available funds at the Payment Office, for any payment or
disbursement made by such Letter of Credit Issuer under any Letter of Credit
issued for such Borrower's account (each such amount, so paid until reimbursed,
an "Unpaid Drawing"), immediately after, and in any event on the date of, such
payment or disbursement, with interest on the amount so paid or disbursed by
such Letter of Credit Issuer, to the extent not reimbursed prior to 12:00 Noon
(New York time) on the date of such payment or disbursement, from and including
the date paid or disbursed to but excluding the date such Letter of Credit
Issuer was reimbursed by such Borrower therefor at a rate per annum
(24)
which shall be the Base Rate in effect from time to time, provided, however, to
the extent such amounts are not reimbursed prior to 12:00 Noon (New York time)
on the third Business Day following notice to the Company by the Administrative
Agent or the respective Letter of Credit Issuer of such payment or disbursement,
interest shall thereafter accrue on the amounts so paid or disbursed by such
Letter of Credit Issuer (and until reimbursed by such Borrower) at a rate per
annum which shall be the Base Rate in effect from time to time plus 2%, in each
such case, with interest to be payable on demand, it being understood and
agreed, however, that the notice referred to in the immediately preceding
proviso shall not be required to be given if a Bankruptcy Event shall have
occurred and be continuing and, in such case, interest shall accrue on and after
such third Business Day at the rate provided in such proviso. The respective
Letter of Credit Issuer shall give the respective Borrower prompt notice of each
Drawing under any Letter of Credit, provided that the failure to give any such
notice shall in no way affect, impair or diminish such Borrower's obligations
hereunder.
(b) The obligations of each Borrower under this Section 2.05 to
reimburse the respective Letter of Credit Issuer with respect to Unpaid Drawings
(including, in each case, interest thereon) shall be absolute and unconditional
under any and all circumstances and irrespective of any setoff, counterclaim or
defense to payment which such Borrower may have or have had against any Bank
(including in its capacity as issuer of the Letter of Credit or as Participant),
including, without limitation, any defense based upon the failure of any drawing
under a Letter of Credit (each a "Drawing") to conform to the terms of the
Letter of Credit or any nonapplication or misapplication by the beneficiary of
the proceeds of such Drawing; provided, however, that such Borrower shall not be
obligated to reimburse such Letter of Credit Issuer for any wrongful payment
made by such Letter of Credit Issuer under a Letter of Credit as a result of
acts or omissions constituting willful misconduct or gross negligence on the
part of such Letter of Credit Issuer.
2.06 Increased Costs. If at any time the introduction of or any
change in any applicable law, rule, regulation, order, guideline or request or
in the interpretation or administration thereof by any governmental authority
charged with the interpretation or administration thereof, or compliance by any
Letter of Credit Issuer or any Participant with any request or directive by any
such authority (whether or not having the force
(25)
of law), or any change in generally accepted accounting principles, shall either
(i) impose, modify or make applicable any reserve, deposit, capital adequacy or
similar requirement against letters of credit issued by such Letter of Credit
Issuer or participated in by any Participant, or (ii) impose on such Letter of
Credit Issuer or any Participant any other conditions relating, directly or
indirectly, to this Agreement or any Letter of Credit; and the result of any of
the foregoing is to increase the cost to such Letter of Credit Issuer or any
Participant of issuing, maintaining or participating in any Letter of Credit, or
reduce the amount of any sum received or receivable by such Letter of Credit
Issuer or any Participant hereunder or reduce the rate of return on its capital
with respect to Letters of Credit, then, upon demand to the respective Borrower
by such Letter of Credit Issuer or any Participant (a copy of which demand shall
be sent by such Letter of Credit Issuer or such Participant to the
Administrative Agent), such Borrower shall pay (and the Borrowers shall be
jointly and severally obligated to pay) to such Letter of Credit Issuer or such
Participant such additional amount or amounts as will compensate such Letter of
Credit Issuer or such Participant for such increased cost or reduction in the
amount receivable or reduction on the rate of return on its capital. Any Letter
of Credit Issuer or any Participant, upon determining that any additional
amounts will be payable pursuant to this Section 2.06, will give prompt written
notice thereof to the respective Borrower, which notice shall include a
certificate submitted to such Borrower by such Letter of Credit Issuer or such
Participant (a copy of which certificate shall be sent by such Letter of Credit
Issuer or such Participant to the Administrative Agent), setting forth in
reasonable detail the basis for the calculation of such additional amount or
amounts necessary to compensate such Letter of Credit Issuer or such
Participant. The certificate required to be delivered pursuant to this Section
2.06 shall, absent manifest error, be final and conclusive and binding on the
respective Borrower.
2.07 Responsibility of Letter of Credit Issuers; Reimbursement of
Expenses and Disclaimer of Liability. (a) Each Letter of Credit Issuer, in
dealing with the participation share granted to any Participant under this
Agreement, shall have no duties or responsibilities except for those that are
expressly set forth in this Agreement. The duties of each Letter of Credit
Issuer shall be ministerial and administrative in nature and no Letter of Credit
Issuer shall have by reason of this Agreement or any other agreement a fiduciary
relationship with any Participant.
(26)
(b) Each Letter of Credit Issuer will handle all matters concerning
this Agreement in accordance with its usual practice in managing its own affairs
in the ordinary course of business, and will not be liable to any Participant,
except for its gross negligence or willful misconduct. Without limiting the
generality of the foregoing limitation of liability, and subject to the
obligation to handle matters in accordance with the respective Letter of Credit
Issuer's usual practice in managing its own affairs in the ordinary course of
business, such Letter of Credit Issuer (i) shall not be responsible to any
Participant for any statement, representation or warranty made in this
Agreement, (ii) shall not be responsible for the due execution, effectiveness,
legality, validity, binding effect, enforceability or sufficiency of this
Agreement, (iii) shall not be bound to ascertain or inquire as to the
performance of any of the terms, provisions or conditions of this Agreement on
the part of any Person, (iv) shall be entitled to rely upon any writing,
statement or notice or any telegraph, telex or teletyped message reasonably
believed by it to be genuine and correct and believed by it to be signed and
sent by the proper person, (v) may consult with legal counsel, independent
public accountants, architects and any other experts such Letter of Credit
Issuer may select with reasonable care and shall be fully protected in any
action taken or omitted to be taken by it in accordance with the advice or
opinion of such counsel, accountants, architects or experts, (vi) may employ
agents or attorneys-in-fact and shall not be liable for the default or
misconduct of any such person selected by such Letter of Credit Issuer with
reasonable care and (vii) shall not be responsible for the performance of the
repayment obligations under this Agreement, provided that clauses (i), (ii) and
(iii) of this clause (b) shall not be interpreted to relieve any Letter of
Credit Issuer of its own responsibility in such matters under this Agreement.
(c) No Letter of Credit Issuer has made nor does it make any express
or implied representations or warranties with respect to the past, present or
future financial condition of any Credit Party or with respect to the legality,
enforceability, validity, genuineness, subsistence, priority or value of the
repayment obligations of any Credit Party under (i) this Agreement or any other
Credit Document or (ii) any security therefor.
(d) Each Participant will reimburse the respective Letter of Credit
Issuer on demand, ratably in accordance with such Participant's Adjusted
Percentage, against any and all
(27)
reasonable costs, losses, liabilities, expenses and disbursements that may be
incurred or made by such Letter of Credit Issuer in connection with any action
that may be necessary or advisable to be taken by such Letter of Credit Issuer
to recover amounts owed with respect to any Letter of Credit issued by such
Letter of Credit Issuer or the other Credit Documents for which such Letter of
Credit Issuer has not been reimbursed. Each Participant will reimburse the
respective Letter of Credit Issuer on demand, ratably in accordance with such
Participant's Adjusted Percentage, against any and all reasonable costs, losses,
liabilities, expenses and disbursements that may be incurred by such Letter of
Credit Issuer in connection with the performance of its duties under this
Agreement, provided that no Participant will be liable for any such costs,
losses, liabilities, expenses and disbursements to the extent that same arise
out of the gross negligence or willful misconduct of such Letter of Credit
Issuer.
(e) Nothing contained in this Agreement shall confer upon any Letter
of Credit Issuer or any Participant any interest in, or subject any Letter of
Credit Issuer or any Participant to any liability for, the assets or liabilities
of the other parties to the Credit Documents, except as to the transactions
referred to in this Agreement. No Letter of Credit Issuer assumes any liability
to any Participant for the repayment of its participation except to the extent
that such Participant shall be entitled to receive payments in accordance with
Section 2.04 of this Agreement.
SECTION 3. Commitment Commission; Fees; Reductions of Revolving Loan
Commitment.
3.01 Fees. (a) The Company agrees to pay to the Administrative Agent
for distribution to each Non-Defaulting Bank a commitment commission (the
"Commitment Commission") for the period from the Second Restatement Effective
Date to but excluding the Final Maturity Date (or such earlier date as the Total
Revolving Loan Commitment shall have been terminated), computed at a rate for
each day equal to the Applicable Commitment Commission Percentage on the daily
average Unutilized Revolving Loan Commitment of such Non-Defaulting Bank.
Accrued Commitment Commission shall be due and payable quarterly in arrears on
the last Business Day of each March, June, September and December and on the
Final Maturity Date or such earlier date upon which the Total Revolving Loan
Commitment is terminated.
(28)
(b) The Company agrees to pay to the Administrative Agent for
distribution to each Bank (based on its respective Adjusted Percentage) a fee in
respect of each Letter of Credit issued hereunder, including each Existing
Letter of Credit (the "Letter of Credit Fee"), for the period from and including
the date of issuance of such Letter of Credit (or, in the case of the Existing
Letters of Credit, from the Second Restatement Effective Date) to and including
the termination of such Letter of Credit, computed at a rate per annum equal to
the Applicable Margin for Eurodollar Loans, as in effect from time to time, on
the daily Stated Amount of such Letter of Credit. Accrued Letter of Credit Fees
shall be due and payable quarterly in arrears on the last Business Day of each
March, June, September and December and upon the first day on or after the
termination of the Total Revolving Loan Commitment upon which no Letters of
Credit remain outstanding.
(c) The Company agrees to pay to each Letter of Credit Issuer, for
its own account, a facing fee in respect of each Letter of Credit issued by it
hereunder, including each Existing Letter of Credit (the "Facing Fee"), for the
period from and including the date of issuance of such Letter of Credit (or, in
the case of the Existing Letters of Credit, from the Second Restatement
Effective Date) to and including the termination of such Letter of Credit,
computed at a rate equal to 1/8 of 1% per annum of the daily Stated Amount of
such Letter of Credit. Accrued Facing Fees shall be due and payable quarterly in
arrears on the last Business Day of each March, June, September and December and
upon the first day on or after the termination of the Total Revolving Loan
Commitment upon which no Letters of Credit remain outstanding.
(d) The Company agrees to pay to each Letter of Credit Issuer, upon
each drawing under, issuance of, or amendment to, any Letter of Credit issued by
such Letter of Credit Issuer, such amount as shall at the time of such event be
the administrative charge which such Letter of Credit Issuer is generally
imposing in connection with such occurrence with respect to letters of credit.
(e) Each Borrower agrees to pay to the Administrative Agent, for its
own account, such other fees as have been agreed to in writing by such Borrower
and the Administrative Agent.
3.02 Voluntary Termination of Unutilized Revolving Loan Commitments.
(a) Upon at least two Business Days' prior
(29)
written notice to the Administrative Agent at the Notice Office (which notice
the Administrative Agent shall promptly transmit to each of the Banks), the
Company shall have the right, at any time or from time to time, without premium
or penalty, to terminate the Total Unutilized Revolving Loan Commitment, in
whole or in part, in integral multiples of $5,000,000 in the case of partial
reductions to the Total Unutilized Revolving Loan Commitment, provided that (i)
each such reduction shall apply to reduce the remaining Scheduled Commitment
Reductions in direct order of maturity (based upon the amount of each such
remaining Scheduled Commitment Reduction), (ii) each such reduction shall apply
proportionately to permanently reduce the Revolving Loan Commitment of each Bank
and (iii) the reduction to the Total Unutilized Revolving Loan Commitment shall
in no case be in an amount which would cause the Revolving Loan Commitment of
any Bank to be reduced (as required by preceding clause (ii)) by an amount which
exceeds the remainder of (x) the Unutilized Revolving Loan Commitment of such
Bank as in effect immediately before giving effect to such reduction minus (y)
such Bank's Adjusted Percentage of the aggregate principal amount of Swingline
Loans then outstanding.
(b) In the event of certain refusals by a Bank to consent to certain
proposed changes, waivers, discharges or terminations with respect to this
Agreement which have been approved by the Required Banks as provided in Section
13.12(b), the Company shall have the right, upon five Business Days' prior
written notice to the Administrative Agent at the Notice Office (which notice
the Administrative Agent shall promptly transmit to each of the Banks), to
terminate the entire Revolving Loan Commitment of such Bank, so long as all
Revolving Loans, together with accrued and unpaid interest, Fees and all other
amounts owing to such Bank are repaid concurrently with the effectiveness of
such termination pursuant to Section 4.01(iv) (at which time Schedule I shall be
deemed modified to reflect such changed amounts), and at such time, such Bank
shall no longer constitute a "Bank" for purposes of this Agreement, except with
respect to indemnifications under this Agreement (including, without limitation,
Sections 1.10, 1.11, 2.06, 4.04, 13.01 and 13.06), which shall survive as to
such repaid Bank.
3.03 Mandatory Reduction of Revolving Loan Commitments. (a) In
addition to any other mandatory commitment reductions pursuant to this Section
3.03, the Total Revolving Loan Commitment (and the Revolving Loan Commitment of
each Bank) shall terminate in its entirety on the Final Maturity Date.
(30)
(b) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, but subject to reduction as provided in clause
(i) of the proviso set forth in Section 3.02(a), on each date set forth below,
the Total Revolving Loan Commitment shall be reduced by the amount set forth
opposite such date (each reduction required by this Section 3.03(b), a
"Scheduled Commitment Reduction"):
Date Amount
July 31, 1998 $50,000,000
January 31, 1999 $75,000,000
July 31, 1999 $75,000,000
January 31, 2000 $100,000,000
(c) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, on the 15th day after the date on which any
Change of Control occurs, the Total Revolving Loan Commitment shall be reduced
to zero unless the Required Banks otherwise agree in writing in their sole
discretion.
(d)(i) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, on July 31, 1998 the Total Revolving Loan
Commitment shall be reduced by $800,000,000 in the event that the Showboat
Merger has not been consummated on or before such date.
(ii) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, on the 90th day after the consummation of the
Showboat Merger, the Total Revolving Loan Commitment shall be reduced by an
amount equal to the aggregate principal amount of Existing Showboat Notes which
remain outstanding on such date and that have not otherwise been defeased
pursuant to the Existing Showboat Notes Defeasances (after giving effect to any
repayment of the Existing Showboat Notes on such date).
(e) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, on each date after the Second Restatement
Effective Date upon which Parent or any of its Subsidiaries receives any
proceeds from any incurrence by Parent or any of its Subsidiaries of Permitted
Designated Indebtedness,
(31)
the Total Revolving Loan Commitment shall be reduced by an amount equal to its
Share of the cash proceeds of the respective incurrence of Permitted Designated
Indebtedness (net of underwriting or placement discounts and commissions and
other reasonable costs associated therewith), provided that, to the extent that
the 364-Day Banks do not require that their full Share be applied to reduce the
Total 364-Day Revolving Loan Commitment, the amount of their Share not so
applied shall instead be applied to reduce the Total Revolving Loan Commitment
as required by clause (g) of this Section 3.03.
(f) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, on each date after the Second Restatement
Effective Date upon which Parent or any of its Subsidiaries receives proceeds
from any Designated Asset Sale, the Total Revolving Loan Commitment shall be
reduced by an amount equal to its Share of the Net Sale Proceeds from the
respective Designated Asset Sale, provided that, to the extent that the 364-Day
Banks do not require that their full Share be applied to reduce the Total
364-Day Revolving Loan Commitment, the amount of their Share not so applied
shall instead be applied to reduce the Total Revolving Loan Commitment as
required by clause (g) of this Section 3.03.
(g) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, following any mandatory commitment reduction
required by Section 3.03(e) or (f) with respect to which the Shares of the
various Issues of Senior Debt have been calculated in accordance with clause (A)
of the definition of "Share," on the first date thereafter upon which it is
subsequently determined that the amount which will actually be required to
mandatorily reduce the Total 364-Day Revolving Loan Commitment is less than the
Share applicable thereto (whether because the 364-Day Banks elected not to
require such reduction or otherwise), then the amount which will not be so
required to mandatorily reduce the Total 364-Day Revolving Loan Commitment shall
instead be required to reduce the Total Revolving Loan Commitment as required by
Section 3.03(e) or (f), as the case may be.
(h) The Total Revolving Loan Commitment shall be reduced, and the
Revolving Loan Commitment of the respective Former Bank shall be terminated, in
the amount and at the times provided in Section 13.04(d).
(32)
(i) Except as otherwise provided in clause (h) of this Section 3.03,
each reduction to the Total Revolving Loan Commitment pursuant to this Section
3.03 shall be applied proportionately to reduce the Revolving Loan Commitment of
each Bank.
SECTION 4. Prepayments; Payments; Taxes.
4.01 Voluntary Prepayments. Each Borrower shall have the right to
prepay the Loans made to it, without premium or penalty, in whole or in part at
any time and from time to time on the following terms and conditions:
(i) except as otherwise provided in clause (iv) of this Section
4.01, such Borrower shall give the Administrative Agent prior to 12:00
Noon (New York time) at the Notice Office (x) at least one Business Day's
prior written notice (or telephonic notice promptly confirmed in writing)
of its intent to prepay Base Rate Loans (or same day notice in the case of
Swingline Loans provided such notice is given prior to 12:00 Noon (New
York time) on such Business Day) and (y) at least three Business Days'
prior written notice (or telephonic notice promptly confirmed in writing)
of its intent to prepay Eurodollar Loans, whether Revolving Loans or
Swingline Loans shall be prepaid, the amount of such prepayment and the
Types of Loans to be prepaid and, in the case of Eurodollar Loans, the
specific Borrowing or Borrowings pursuant to which made, which notice the
Administrative Agent shall promptly transmit to each of the Banks;
(ii) except as otherwise provided in clause (iv) of this Section
4.01, each prepayment shall be in an aggregate principal amount of at
least $5,000,000 (or $1,000,000 in the case of Swingline Loans), provided
that, if any partial prepayment of Eurodollar Loans made pursuant to any
Borrowing shall reduce the outstanding Eurodollar Loans made pursuant to
such Borrowing to an amount less than $5,000,000, then such Borrowing may
not be continued as a Borrowing of Eurodollar Loans and any election of an
Interest Period with respect thereto given by the Borrower shall have no
force or effect (and such Borrowing shall be converted at such time into a
Borrowing of Base Rate Loans);
(iii) except as otherwise provided in clause (iv) of this Section
4.01, each prepayment in respect of any
(33)
Revolving Loans made pursuant to a Borrowing shall be applied pro rata
among such Revolving Loans, provided that, at the respective Borrower's
election in connection with any prepayment of Revolving Loans pursuant to
this Section 4.01, such prepayment shall not be applied to any Revolving
Loan of a Defaulting Bank; and
(iv) in the event of certain refusals by a Bank to consent to
certain proposed changes, waivers, discharges or terminations with respect
to this Agreement which have been approved by the Required Banks as
provided in Section 13.12(b), the Borrowers shall have the right, upon
five Business Days' prior written notice to the Administrative Agent at
the Notice Office (which notice the Administrative Agent shall promptly
transmit to each of the Banks) to repay all Revolving Loans, together with
accrued and unpaid interest, Fees, and other amounts owing to such Bank in
accordance with said Section 13.12(b) so long as (A) the Revolving Loan
Commitment of such Bank is terminated concurrently with such repayment
pursuant to Section 3.02(b) (at which time Schedule I shall be deemed
modified to reflect the changed Revolving Loan Commitments) and (B) the
consents required by Section 13.12(b) in connection with the repayment
pursuant to this clause (iv) have been obtained.
4.02 Mandatory Repayments. (a)(i) On any day on which the sum of the
aggregate outstanding principal amount of Revolving Loans made by Non-Defaulting
Banks plus the aggregate outstanding principal amount of Swingline Loans plus
the amount of the Letter of Credit Outstandings exceeds the Adjusted Total
Revolving Loan Commitment as then in effect, there shall be required to be
repaid on such date that principal amount of Swingline Loans and, after all
Swingline Loans have been repaid in full (or if no Swingline Loans are then
outstanding), Revolving Loans of Non-Defaulting Banks in an amount equal to such
excess. If, after giving effect to the repayment of all outstanding Swingline
Loans and Revolving Loans of Non-Defaulting Banks, the aggregate amount of the
Letter of Credit Outstandings exceeds the Adjusted Total Revolving Loan
Commitment as then in effect, the Company shall pay to the Administrative Agent
at the Payment Office on such date an amount of cash or cash equivalents equal
to the amount of such excess (up to a maximum amount equal to the Letter of
Credit Outstandings at such time), such cash or cash equivalents to be held as
security for all obligations of the Borrowers to Non-Defaulting Banks hereunder
in a cash collateral account to be established by the Administrative Agent.
(34)
(ii) On any day on which the sum of the aggregate outstanding
principal amount of Revolving Loans and Swingline Loans made to any Subsidiary
Borrower and the amount of the Letter of Credit Outstandings in respect of
Letters of Credit issued for the account of such Subsidiary Borrower exceeds
such Subsidiary Borrower's Sub-Limit, such Subsidiary Borrower shall repay
principal of its Swingline Loans and, after such Swingline Loans have been
repaid in full (or if no Swingline Loans are then outstanding), its Revolving
Loans in an amount equal to such excess. If, after giving effect to the
repayment of all of its outstanding Swingline Loans and Revolving Loans, the
aggregate amount of its Letter of Credit Outstandings exceeds such Subsidiary
Borrower's Sub-Limit, such Subsidiary Borrower shall pay to the Administrative
Agent at the Payment Office on such date an amount of cash or cash equivalents
equal to the amount of such excess (up to a maximum amount equal to its Letter
of Credit Outstandings at such time), such cash or cash equivalents to be held
as security for all obligations of such Subsidiary Borrower hereunder in a cash
collateral account to be established by the Administrative Agent.
(iii) On any day on which the aggregate outstanding principal amount
of Revolving Loans made by any Defaulting Bank exceeds the Revolving Loan
Commitment of such Defaulting Bank, the Borrowers shall repay principal of
Revolving Loans of such Defaulting Bank in an amount equal to such excess.
(b) With respect to each repayment of Revolving Loans required by
this Section 4.02, the respective Borrower may designate the Types of Revolving
Loans which are to be repaid and, in the case of Eurodollar Loans, the specific
Borrowing or Borrowings pursuant to which made, provided that: (i) repayments of
Eurodollar Loans pursuant to this Section 4.02 may only be made on the last day
of an Interest Period applicable thereto unless all Eurodollar Loans with
Interest Periods ending on such date of required repayment and all Base Rate
Loans have been paid in full; (ii) if any repayment of Eurodollar Loans made
pursuant to a single Borrowing shall reduce the outstanding Eurodollar Loans
made pursuant to such Borrowing to an amount less than $5,000,000, such
Borrowing shall be converted on such day into a Borrowing of Base Rate Loans;
(iii) each repayment of any Revolving Loans made by Non-Defaulting Banks
pursuant to a Borrowing shall be applied pro rata among such Revolving Loans;
and (iv) each repayment of any Revolving Loans made by Defaulting Banks pursuant
to a Borrowing shall be applied pro rata among such Revolving Loans. In the
absence of a designation by any
(35)
Borrower as described in the preceding sentence, the Administrative Agent shall,
upon telephonic notice to the Company and subject to the above, make such
designation in its sole discretion.
(c) Notwithstanding anything to the contrary contained elsewhere in
this Agreement, (i) all then outstanding Swingline Loans shall be repaid in full
on the Swingline Expiry Date and (ii) all then outstanding Revolving Loans shall
be repaid in full on the Final Maturity Date.
4.03 Method and Place of Payment. Except as otherwise specifically
provided herein, all payments under this Agreement or under any Note shall be
made to the Administrative Agent for the account of the Bank or Banks entitled
thereto not later than 12:00 Noon (New York time) on the date when due and shall
be made in Dollars in immediately available funds at the Payment Office.
Whenever any payment to be made hereunder or under any Note shall be stated to
be due on a day which is not a Business Day, the due date thereof shall be
extended to the next succeeding Business Day and, with respect to payments of
principal, interest shall be payable at the applicable rate during such
extension.
4.04 Net Payments. (a) All payments made by any Borrower hereunder
or under any Note will be made without setoff, counterclaim or other defense.
Except as provided in Section 4.04(b), all such payments will be made free and
clear of, and without deduction or withholding for, any present or future taxes,
levies, imposts, duties, fees, assessments or other charges of whatever nature
now or hereafter imposed by any jurisdiction or by any political subdivision or
taxing authority thereof or therein with respect to such payments (but
excluding, except as provided in the immediately succeeding sentence, any tax
imposed on or measured by the net income or profits of a Bank pursuant to the
laws of the United States and the jurisdiction in which such Bank is organized
or in which the principal office or applicable lending office of such Bank is
located or any subdivision or taxing authority thereof or therein) and all
interest, penalties or similar liabilities with respect thereto (collectively,
"Taxes"). If any amounts are payable in respect of Taxes pursuant to the
preceding sentence, then the Borrowers agree to reimburse each Bank, upon the
written request of such Bank, for taxes imposed on or measured by the net income
of such Bank pursuant to the laws of the jurisdiction in which the principal
office or applicable lending office of such Bank is located or under the laws of
any political subdivision or taxing
(36)
authority of any such jurisdiction in which the principal office or applicable
lending office of such Bank is located and for any withholding of income or
similar taxes imposed by the United States of America as such Bank shall
determine are payable by, or withheld from, such Bank in respect of such amounts
so paid to or on behalf of such Bank pursuant to the preceding sentence and in
respect of any amounts paid to or on behalf of such Bank pursuant to this
sentence. If any Taxes are so levied or imposed, the Borrowers agree to pay the
full amount of such Taxes, and such additional amounts as may be necessary so
that every payment of all amounts due under this Agreement or under any Note,
after withholding or deduction for or on account of any Taxes, will not be less
than the amount provided for herein or in such Note. The Borrowers will furnish
to the Administrative Agent within 45 days after the date the payment of any
Taxes is due pursuant to applicable law copies of official tax receipts received
from the relevant taxing authority evidencing such payment by the Borrowers. The
Borrowers agree to indemnify and hold harmless each Bank, and reimburse such
Bank upon its written request, for the amount of any Taxes so levied or imposed
and paid by such Bank.
(b) Each Bank which is not a United States person (as such term is
defined in Section 7701(a)(30) of the Code) for U.S. Federal income tax purposes
agrees (i) in the case of any such Bank that is a "bank" within the meaning of
Section 881(c)(3)(A) of the Code and which constitutes a Bank hereunder on the
Second Restatement Effective Date, to provide to the Company and the
Administrative Agent within five days after the Second Restatement Effective
Date two original signed copies of Internal Revenue Service Form 4224 or Form
1001 (or successor forms) certifying to such Bank's entitlement (as of such
date) to an exemption from United States withholding tax with respect to
payments to be made under this Agreement and under any Note, (ii) in the case of
any such Bank that is a "bank" within the meaning of Section 881(c)(3)(A) of the
Code, that, to the extent legally entitled to do so, (x) with respect to a Bank
that is an assignee or transferee of an interest under this Agreement pursuant
to Section 1.13 or 13.04 (unless the respective Bank was already a Bank
hereunder immediately prior to such assignment or transfer), within five days
after such assignment or transfer to such Bank, and (y) with respect to any such
Bank, from time to time upon the reasonable written request of the Company or
the Administrative Agent after the Second Restatement Effective Date, such Bank
will provide to the Company and the Administrative Agent two original signed
copies of Internal Revenue Service Form 4224 or Form 1001
(37)
(or any successor forms) certifying to such Bank's entitlement to an exemption
from, or reduction in, United States withholding tax with respect to payments to
be made under this Agreement and under any Note, (iii) in the case of any such
Bank (other than a Bank described in clause (i) or (ii) above) which constitutes
a Bank hereunder on the Second Restatement Effective Date, to provide to the
Company and the Administrative Agent, within five days after the Second
Restatement Effective Date (x) a certificate substantially in the form of
Exhibit D (any such certificate, a "Section 4.04(b)(iii) Certificate") and (y)
two accurate and complete original signed copies of Internal Revenue Service
Form W-8, certifying to such Bank's entitlement at the date of such certificate
to an exemption from United States withholding tax under the provisions of
Section 881(c) of the Code with respect to payments to be made under this
Agreement and under any Note and (iv) in the case of any such Bank (other than a
Bank described in clause (i) or (ii) above), to the extent legally entitled to
do so, (x) with respect to a Bank that is an assignee or transferee of an
interest under this Agreement pursuant to Section 1.13 or 13.04 (unless the
respective Bank was already a Bank hereunder immediately prior to such
assignment or transfer), within five days after such assignment or transfer to
such Bank, and (y) with respect to any such Bank, from time to time upon the
reasonable written request of the Company or the Administrative Agent after the
Second Restatement Effective Date, to provide to the Company and the
Administrative Agent such other forms as may be required in order to establish
the entitlement of such Bank to an exemption from withholding with respect to
payments under this Agreement and under any Note, or it shall immediately notify
the Borrowers and the Administrative Agent of its inability to deliver such
other forms, in which case such Bank shall not be required to deliver any such
other forms pursuant to this Section 4.04 (b). Notwithstanding anything to the
contrary
(38)
contained in Section 4.04(a), but subject to the immediately succeeding
sentence, each Borrower shall be entitled, to the extent it is required to do so
by law, to deduct or withhold income or similar taxes imposed by the United
States (or any political subdivision or taxing authority thereof or therein)
from interest, fees or other amounts payable hereunder (without any obligation
to pay the respective Bank additional amounts with respect thereto) for the
account of any Bank which is not a United States person (as such term is defined
in Section 7701(a)(30) of the Code) for U.S. Federal income tax purposes and
which has not provided to the Company such forms required to be provided to the
Company pursuant to the first sentence of this Section 4.04(b). Notwithstanding
anything to the contrary contained in the preceding sentence and except as set
forth in Section 13.04(b), each Borrower agrees to indemnify each Bank in the
manner set forth in Section 4.04(a) in respect of any amounts deducted or
withheld by it as described in the immediately preceding sentence as a result of
any changes after the Second Restatement Effective Date in any applicable law,
treaty, governmental rule, regulation, guideline or order, or in the
interpretation thereof, relating to the deducting or withholding of income or
similar Taxes.
(c) If any Borrower pays any additional amount under this Section
4.04 to a Bank and such Bank determines that it has received or realized in
connection therewith any refund or any reduction of, or credit against, its Tax
liabilities in or with respect to the taxable year in which the additional
amount is paid, such Bank shall pay to the respective Borrower an amount that
the Bank shall, in its sole discretion, determine is equal to the net benefit,
after tax, which was obtained by the Bank in such taxable year as a consequence
of such refund, reduction or credit.
SECTION 5A. Conditions Precedent to the Second Restatement Effective
Date. The occurrence of the Second Restatement Effective Date pursuant to
Section 13.10, and the obligation of each Bank to make Loans, and the obligation
of any Letter of Credit Issuer to issue Letters of Credit, on the Second
Restatement Effective Date is subject to the satisfaction of the following
conditions:
5A.01 Execution of Agreement; Notes. On or prior to the Second
Restatement Effective Date, (i) this Agreement shall have been executed and
delivered as provided in Section 13.10 and (ii) there shall have been delivered
to the Administrative Agent for the account of each Bank that has requested the
same the appropriate Revolving Notes executed by the respective Borrowers, and
to BTCo, to the extent requested by BTCo, the appropriate Swingline Notes
executed by such Borrowers, in each case in the amount, maturity and as
otherwise provided herein.
5A.02 Officer's Certificate. On the Second Restatement Effective
Date, the Administrative Agent shall have received a certificate dated the
Second Restatement Effective Date signed on behalf of the Company by the
President, any Senior Vice President or any Vice President of the Company
stating that all of the conditions in Sections 5A.06, 5A.07, 5A.08, 5A.09 and
6.01 have been satisfied on such date.
(39)
5A.03 Opinions of Counsel. On the Second Restatement Effective Date,
the Administrative Agent shall have received (i) from Xxxxxx & Xxxxxxx, counsel
to Parent, the Company and the Subsidiary Borrowers, an opinion addressed to the
Administrative Agent and each of the Banks and dated the Second Restatement
Effective Date in form and substance reasonably satisfactory to the
Administrative Agent and the Required Banks, (ii) from X.X. Xxxxxxxx, Xx.,
General Counsel to Parent and the Company, an opinion addressed to the
Administrative Agent and each of the Banks and dated the Second Restatement
Effective Date in form and substance reasonably satisfactory to the
Administrative Agent and the Required Banks and (iii) from local gaming counsel
reasonably satisfactory to the Administrative Agent, opinions each of which
shall be in form and substance reasonably satisfactory to the Administrative
Agent and the Required Banks and shall cover New Jersey, Nevada and Illinois
Gaming Regulations and such other matters incident to the transactions
contemplated herein as the Administrative Agent may reasonably request.
5A.04 Corporate Documents; Proceedings. (a) On the Second
Restatement Effective Date, the Administrative Agent shall have received a
certificate from each Credit Party, dated the Second Restatement Effective Date,
signed by the President, any Senior Vice President or any Vice President of such
Credit Party, and attested to by the Secretary or any Assistant Secretary of
such Credit Party, in the form of Exhibit E with appropriate insertions,
together with copies of the certificate of incorporation, partnership agreement
and by-laws of such Credit Party (or equivalent organizational documents), as
the case may be, and the resolutions of such Credit Party referred to in such
certificate, and the foregoing shall be reasonably acceptable to the
Administrative Agent in its reasonable discretion.
(b) All corporate, partnership, limited liability company and legal
proceedings and all instruments and agreements in connection with the
transactions contemplated by this Agreement and the other Documents shall be
reasonably satisfactory in form and substance to the Administrative Agent and
the Required Banks, and the Administrative Agent shall have received true and
correct copies of all Documents, together with all information and copies of all
other documents and papers, including records of corporate proceedings,
partnership proceedings, limited liability company proceedings, governmental
approvals, good standing certificates and bring-down telegrams, if any, which
the Administrative Agent reasonably may have requested in connection therewith,
such documents and papers
(40)
where appropriate to be certified by proper corporate or governmental
authorities.
5A.05 Company/Sub Guaranty. On the Second Restatement Effective
Date, the Company and each other Guarantor (other than Parent) shall have duly
authorized, executed and delivered an amended and restated Company/Sub Guaranty
in the form of Exhibit F (as amended, modified or supplemented from time to time
in accordance with the terms hereof and thereof, the "Company/Sub Guaranty").
5A.06 8-3/4% Senior Subordinated Notes Redemption. On or prior to
the Second Restatement Effective Date, (i) the Company shall have mailed, or
caused to be mailed, to the trustee for, and to the holders of, the 8-3/4%
Senior Subordinated Notes a notice of redemption satisfying the applicable
provisions of the 8-3/4% Senior Subordinated Notes Indenture, which notice of
redemption shall call for redemption all of the outstanding 8-3/4% Senior
Subordinated Notes on a date on or before the 33rd day after the Second
Restatement Effective Date and (ii) the Administrative Agent shall have received
evidence, in form and substance reasonably satisfactory to it, that all
outstanding 8-3/4% Senior Subordinated Notes have been called for redemption in
accordance with the provisions of this Section 5A.06.
5A.07 Adverse Change. Since December 31, 1997, nothing shall have
occurred (and neither the Administrative Agent nor the Banks shall have become
aware of any facts or conditions not previously known) which the Administrative
Agent or the Required Banks shall determine has had, or could reasonably be
expected to have, (i) a material adverse effect on the rights or remedies of the
Administrative Agent or the Banks, or on the ability of Parent, any Borrower or
any other Credit Party to perform its obligations to the Administrative Agent
and the Banks or (ii) a materially adverse effect on the business, operations,
property, assets, liabilities, condition (financial or otherwise) or prospects
of Parent and its Subsidiaries taken as a whole.
5A.08 Litigation. On the Second Restatement Effective Date, no
litigation by any entity (private or governmental) shall be pending or
threatened (i) with respect to the Transaction, this Agreement, the other
Documents or any documentation executed in connection herewith or therewith or
the transactions contemplated hereby or thereby, (ii) with respect to any
material Indebtedness of Parent or any of its Subsidiaries or (iii) which the
Administrative Agent or the Required Banks shall determine
(41)
could reasonably be expected to have a materially adverse effect on the
business, operations, property, assets, liabilities, condition (financial or
otherwise) or prospects of Parent and its Subsidiaries taken as a whole.
5A.09 Approvals, etc. (a) On or prior to the Second Restatement
Effective Date, (i) all necessary governmental (domestic and foreign) and third
party approvals and consents (including, in any event, (x) all required Gaming
Authority approvals and consents, (y) all shareholder and board of director
approvals and consents and (z) all approvals and consents (if any) required
under Parent's and the Company's guaranty of the Cherokee Casino financing and
the proposed Jazz Casino financing) required in connection with the transactions
contemplated by this Agreement and the other Credit Documents which are to occur
by the Second Restatement Effective Date and otherwise referred to herein or
therein shall have been obtained and remain in full force and effect and all
applicable waiting periods shall have expired without any action being taken by
any competent authority which restrains, prevents or imposes materially adverse
conditions upon the consummation of such transactions or otherwise referred to
herein or therein and (ii) the Administrative Agent shall have received copies
or other evidence reasonably satisfactory to it of all such approvals and
consents. Additionally, there shall not exist any judgment, order, injunction or
other restraint issued or filed or a hearing seeking injunctive relief or other
restraint pending or notified prohibiting or imposing materially adverse
conditions upon the consummation of the transactions contemplated by this
Agreement or the other Credit Documents which are to occur by the Second
Restatement Effective Date or otherwise referred to herein or therein.
(b) On or prior to the Second Restatement Effective Date, the
Administrative Agent shall have received evidence that the Banks are qualified
under the New Jersey Gaming Regulations as financial sources or qualifiers, or
are exempt or waived therefrom, and shall be satisfied that no other New Jersey,
Nevada or other gaming license, authorization, qualification, waiver or
exemption of the Banks is required on or prior to the Second Restatement
Effective Date by reason of this Agreement. The Administrative Agent also shall
be satisfied in its discretion with any conditions or requirements imposed by
the New Jersey, Nevada or other relevant Gaming Authorities upon the Banks, this
Agreement, the other Documents or the Transaction.
(42)
(c) On or prior to the Second Restatement Effective Date, Parent,
its shareholders and Subsidiaries shall have received any qualifications
required under applicable Gaming Regulations in connection with this Agreement
and the other Credit Documents, and the Borrowers and the Guarantors shall have
received all other approvals, authorizations or consents of, or notices to or
registrations with any governmental body and required releases and consents from
other appropriate Persons (including, without limitation, the shareholders of
Parent) in connection with this Agreement and the other Credit Documents and
shall have provided copies or other satisfactory evidence of all approvals,
authorizations or consents referred to above to the Administrative Agent.
5A.10 364-Day Credit Agreement. On the Second Restatement Effective
Date, Parent, the Company, the Subsidiary Borrowers, the 364-Day Banks and the
Administrative Agent shall have entered into the 364-Day Credit Agreement, and
the 364-Day Credit Agreement shall be in full force and effect. On the Second
Restatement Effective Date, the Company shall have delivered to the
Administrative Agent a true and correct copy of the 364-Day Credit Agreement,
which shall be required to be in form and substance satisfactory to the
Administrative Agent and the Required Banks.
5A.11 Solvency Certificate. On the Second Restatement Effective
Date, there shall have been delivered to the Administrative Agent a certificate
in the form of Exhibit G (appropriately completed), addressed to the
Administrative Agent and each of the Banks and dated the Second Restatement
Effective Date, from the treasurer of Parent, providing the opinion of such
treasurer as to the solvency of Parent, the Company, each Subsidiary Borrower
and Parent and its Subsidiaries taken as a whole.
5A.12 Historical Financial Statements; Pro Forma Financial
Statements and Projections. On or prior to the Second Restatement Effective
Date, the Administrative Agent shall have received true and correct copies of
the historical financial statements, the pro forma financial statements and the
Projections referred to in Sections 7.05(a) and (d), which historical financial
statements, pro forma financial statements and Projections shall be in form and
substance reasonably satisfactory to the Administrative Agent and the Required
Banks.
(43)
5A.13 Payment of Fees, etc. (a) On the Second Restatement Effective
Date, all interest and Fees accrued (and not theretofore paid) under the
Existing Credit Agreement shall be paid in full, and all other costs, fees and
expenses owing to any of the Banks or the Administrative Agent under the
Existing Credit Agreement shall be paid to the extent due. Furthermore, on the
Second Restatement Effective Date, all costs, fees and expenses (including,
without limitation, legal fees and expenses) and other compensation contemplated
hereby or otherwise agreed and payable to the Banks or the Administrative Agent
shall have been paid to the extent due.
(b) On the Second Restatement Effective Date, all Interest Periods
with respect to any outstanding Existing Revolving Loans shall have expired in
accordance with the terms thereof or shall have been terminated by the
Borrowers.
SECTION 5B. Conditions Precedent to the Showboat Merger Effective
Date and the incurrence of Loans on such date. The occurrence of the Showboat
Merger Effective Date and the obligation of each Bank to make Loans on such date
to consummate the Showboat Merger is subject to the satisfaction of the
following conditions:
5B.01 Second Restatement Effective Date. The Second Restatement
Effective Date shall have occurred.
5B.02 Officer's Certificate. On the Showboat Merger Effective Date,
the Administrative Agent shall have received a certificate dated the Showboat
Merger Effective Date signed on behalf of the Company by the President, any
Senior Vice President or any Vice President of the Company stating that all of
the conditions in Section 5B.05, 5B.06, 5B.07, 5B.08, 5B.09, 5B.10 and 6.01 have
been satisfied on such date.
5B.03 Opinions of Counsel. On the Showboat Merger Effective Date,
the Administrative Agent shall have received (i) from Xxxxxx & Xxxxxxx, counsel
to Parent, the Company and the Subsidiary Borrowers, an opinion addressed to the
Administrative Agent and each of the Banks and dated the Showboat Merger
Effective Date in form and substance reasonably satisfactory to the
Administrative Agent, (ii) from X.X. Xxxxxxxx, Xx., General Counsel to Parent
and the Company, an opinion addressed to the Administrative Agent and each of
the Banks and dated the Showboat Merger Effective Date in form and substance
reasonably satisfactory to the Administrative Agent and the Required Banks
(44)
and (iii) from local and foreign gaming counsel reasonably satisfactory to the
Administrative Agent, opinions each of which shall be in form and substance
reasonably satisfactory to the Administrative Agent and the Required Banks and
shall cover New Jersey, Nevada, Illinois, Indiana and Australian Gaming
Regulations and such other matters incident to the transactions contemplated
herein as the Administrative Agent may reasonably request.
5B.04 Corporate Documents; Proceedings. All corporate, partnership,
limited liability company and legal proceedings and all instruments and
agreements in connection with the transactions contemplated by this Agreement
and the other Documents shall be reasonably satisfactory in form an substance to
the Administrative Agent and the Required Banks, and the Administrative Agent
shall have received true and correct copies of all the Merger Documents,
together with all information and copies of all other documents and papers,
including records of corporate proceedings, partnership proceedings, limited
liability company proceedings, governmental approvals, good standing
certificates and bring-down telegrams, if any, which the Administrative Agent
reasonably may have requested in connection therewith, such documents and papers
where appropriate to be certified by proper corporate or governmental
authorities.
5B.05 The Showboat Merger. On the Showboat Merger Effective Date,
(i) the Showboat Merger shall have been consummated in accordance with the
Showboat Merger Documents and all applicable laws, (ii) each of the conditions
precedent to the consummation of the Showboat Merger as set forth in the
Showboat Merger Agreement (other than any immaterial conditions precedent) shall
have been satisfied and not waived except with the consent of the Administrative
Agent and the Required Banks to the satisfaction of the Administrative Agent and
the Required Banks and (iii) the Administrative Agent shall have received true
and correct copies of the Showboat Merger Agreement and the articles of merger
to be filed with the Secretary of State of Nevada, and the Administrative Agent
shall have received verbal confirmation that such articles of merger have been
filed therewith, and all of the terms and conditions of the Showboat Merger
Documents shall be in form and substance reasonably satisfactory to the
Administrative Agent and the Required Banks.
5B.06 Existing Showboat Notes Tender Offers/Consent Solicitations.
On or prior to the Showboat Merger Effective Date, Parent, the Company or
Showboat shall have commenced the
(45)
Existing Showboat Notes Tender Offers/Consent Solicitations and the
Administrative Agent shall have received true and correct copies of all Existing
Showboat Notes Tender Offers/Consent Solicitations Documents and all of the
terms and conditions of such Documents shall be in form and substance reasonably
satisfactory to the Administrative Agent; it being understood and agreed that,
in any event, the terms of the Existing Showboat Notes Tender Offers/Consent
Solicitations Documents will provide for each issue of Existing Showboat Notes
to be purchased at the same time and for the Existing Showboat Notes Tender
Offers/Consent Solicitations to remain open for the period required by law and
to expire before the 90th day after the Showboat Merger Effective Date.
5B.07 Existing Showboat Working Capital Facility. On or prior to the
Showboat Merger Effective Date, (x) the total commitments in respect of the
Existing Showboat Working Capital Facility shall have been terminated, all loans
with respect thereto shall have been repaid in full, together with interest
thereon, all letters of credit issued thereunder shall have been terminated and
all other amounts owing with respect thereto shall have been repaid in full and
(y) the creditors in respect of the Existing Showboat Working Capital Facility
shall have terminated and released all guarantees granted by, and all security
interests in and Liens on the capital stock of and assets owned by, Showboat or
any of its Subsidiaries, or release arrangements satisfactory to the
Administrative Agent with respect thereto shall have been made.
5B.08 Adverse Change. Since December 31, 1997, nothing shall have
occurred (and neither the Administrative Agent nor the Banks shall have become
aware of any facts or conditions not previously known) which the Administrative
Agent or the Required Banks shall determine has had, or could reasonably be
expected to have, (i) a material adverse effect on the rights or remedies of the
Administrative Agent or the Banks, or on the ability of Parent, any Borrower or
any other Credit Party to perform its obligations to the Administrative Agent
and the Banks or (ii) a materially adverse effect on the business, operations,
property, assets, liabilities, condition (financial or otherwise) or prospects
of Parent and its Subsidiaries taken as a whole or Showboat and its Subsidiaries
taken as a whole.
5B.09 Litigation. On the Showboat Merger Effective Date, no
litigation by any entity (private or governmental) shall be pending or
threatened (i) with respect to the Transaction,
(46)
this Agreement, the other Documents or any documentation executed in connection
herewith or therewith or the transactions contemplated hereby or thereby, (ii)
with respect to any material Indebtedness of Parent, Showboat or any of their
respective Subsidiaries or (iii) which the Administrative Agent or the Required
Banks shall determine could reasonably be expected to have a materially adverse
effect on the business, operations, property, assets, liabilities, condition
(financial or otherwise) or prospects of Parent and its Subsidiaries taken as a
whole or Showboat and its Subsidiaries taken as a whole.
5B.10 Approvals, etc. (a) On or prior to the Showboat Merger
Effective Date, (i) all necessary governmental (domestic and foreign) and third
party approvals and consents (including, in any event, (x) all required Gaming
Authority approvals and consents and (y) all shareholder and board of director
approvals and consents) required in connection with the Showboat Merger and the
other components of the Transaction that are to occur on or after such date and
otherwise referred to herein or therein shall have been obtained and remain in
full force and effect (other than any approvals not then required to be obtained
with respect to the Existing Showboat Notes Tender Offers/Consent
Solicitations), and all applicable waiting periods shall have expired without
any action being taken by any competent authority which restrains, prevents or
imposes materially adverse conditions upon the consummation of the Showboat
Merger or such other components of the Transaction that are to occur on or after
such date or otherwise referred to herein or therein and (ii) the Administrative
Agent shall have received copies or other evidence reasonably satisfactory to it
of all such approvals and consents. Additionally, there shall not exist any
judgment, order, injunction or other restraint issued or filed or a hearing
seeking injunctive relief or other restraint pending or notified prohibiting or
imposing materially adverse conditions upon the consummation of the Showboat
Merger or such other components of the Transaction that are to occur on or after
such date or otherwise referred to herein or therein.
(b) On or prior to the Showboat Merger Effective Date, the
Administrative Agent shall be satisfied that, except as obtained pursuant to
Section 5A.09, no other New Jersey, Nevada, Illinois, Indiana or other gaming
license, authorization, qualification, waiver or exemption of the Banks is
required on or prior to the Showboat Merger Effective Date by reason of this
Agreement or the other Documents. The Administrative Agent also shall be
satisfied in its discretion with any conditions or
(47)
requirements imposed by the New Jersey, Nevada, Illinois or Indiana or other
relevant Gaming Authorities upon the Banks, this Agreement, the other Documents
or the Transaction.
(c) On or prior to the Showboat Merger Effective Date, Parent, its
shareholders and Subsidiaries and Showboat and its Subsidiaries shall have
received any qualifications required under applicable Gaming Regulations in
connection with the Showboat Merger and the other components of the Transaction
that are to occur on or after such date, and the Borrowers, the Guarantors and
Showboat and its Subsidiaries shall have received all other approvals,
authorizations or consents of, or notices to or registrations with any
governmental body and required releases and consents from other appropriate
Persons (including, without limitations, the shareholders of Parent) in
connection therewith and shall have provided copies or other satisfactory
evidence of all approvals, authorizations or consents referred to above to the
Administrative Agent.
5B.11 Solvency Certificate. On the Showboat Merger Effective Date,
there shall have been delivered to the Administrative Agent a certificate in the
form of Exhibit G (appropriately completed), addressed to the Administrative
Agent and each of the Banks and dated the Showboat Merger Effective Date, from
the treasurer of Parent, providing the opinion of such treasurer as to the
solvency of Parent, the Company, each Subsidiary Borrower and Parent and its
Subsidiaries taken as a whole.
5B.12 Schedules. On the Showboat Merger Effective Date, the Company
shall have delivered to the Administrative Agent true and complete copies of
supplements to Schedules III through VIII, which Schedules (i) shall be
supplemented to set forth the relevant information with respect to Showboat and
its Subsidiaries and (ii) shall be in form and substance satisfactory to the
Administrative Agent.
SECTION 6. Conditions Precedent to All Credit Events. The obligation
of each Bank to make Loans (including Loans made on the Second Restatement
Effective Date and on the Showboat Merger Effective Date, but excluding
Mandatory Borrowings made thereafter, which shall be made as provided in Section
1.01(c)), and the obligation of each Letter of Credit Issuer to issue any Letter
of Credit, is subject, at the time of each such Credit Event (except as
hereinafter indicated), to the satisfaction of the following conditions:
(48)
6.01 No Default; Representations and Warranties. At the time of each
such Credit Event and also after giving effect thereto (i) there shall exist no
Default or Event of Default (it being understood and agreed, however, that an
Unpaid Drawing will not prevent a Borrowing of Revolving Loans so long as the
proceeds thereof are applied to repay in full all then outstanding Unpaid
Drawings and no other Default or Event of Default then exists) and (ii) all
representations and warranties contained herein and in the other Credit
Documents shall be true and correct in all material respects with the same
effect as though such representations and warranties had been made on the date
of the making of such Credit Event (it being understood and agreed that any
representation or warranty which by its terms is made as of a specified date
shall be required to be true and correct in all material respects only as of
such specified date).
6.02 Notice of Borrowing; Letter of Credit Request. (a) Prior to the
making of each Revolving Loan (excluding Revolving Loans made pursuant to a
Mandatory Borrowing), the Administrative Agent shall have received a Notice of
Borrowing meeting the requirements of Section 1.03(a). Prior to the making of
any Swingline Loan, BTCo shall have received the notice required by Section
1.03(b)(i).
(b) Prior to the issuance of any Letter of Credit, the
Administrative Agent and the respective Letter of Credit Issuer shall have
received a Letter of Credit Request meeting the requirements of Section 2.03.
6.03 Election to Become a Subsidiary Borrower. Prior to the
incurrence of any Loans by, or the issuance of any Letter of Credit for the
account of, a Subsidiary Borrower which is not a Subsidiary Borrower on the
Second Restatement Effective Date, the following additional conditions shall be
satisfied:
(i) such new Subsidiary Borrower shall have duly authorized,
executed and delivered to the Administrative Agent an Election to Become a
Subsidiary Borrower in the form of Exhibit H, which shall be in full force
and effect; and
(ii) to the extent not previously accomplished, such Subsidiary
Borrower shall have duly authorized, executed and delivered to the
Administrative Agent counterparts of the Company/Sub Guaranty, together
with such other documents, certificates, resolutions, opinions and
writings that would
(49)
have been required to be delivered pursuant to Sections 5.03 and 5.04 if
such Subsidiary Borrower had been subject to such Sections on the Second
Restatement Effective Date, all of which shall be in form and substance
reasonably satisfactory to the Administrative Agent.
The occurrence of the Second Restatement Effective Date and the
acceptance of the proceeds of each Credit Event shall constitute a
representation and warranty by Parent and the respective Borrower to the
Administrative Agent and each of the Banks that all the conditions specified in
Section 5 and in this Section 6 and applicable to such Credit Event have been
satisfied as of that time. All of the Notes, certificates, legal opinions and
other documents and papers referred to in Section 5 and in this Section 6,
unless otherwise specified, shall be delivered to the Administrative Agent at
the Notice Office for the account of each of the Banks and, except for the
Notes, in sufficient counterparts for each of the Banks and shall be in form and
substance satisfactory to the Required Banks.
Notwithstanding anything to the contrary contained above or in
Section 13.10, if the Second Restatement Effective Date does not occur on or
prior to July 1, 1998, then it shall not thereafter occur (unless the Required
Banks agree in writing to an extension of such date), and this Agreement shall
cease to be of any force or effect and the Existing Credit Agreement shall
continue to be effective, as the same may have been, or may thereafter be,
amended, modified or supplemented from time to time.
SECTION 7. Representations, Warranties and Agreements. In order to
induce the Banks to enter into this Agreement and to make the Loans, and issue
(or participate in) the Letters of Credit as provided herein, each of Parent,
the Company and each Subsidiary Borrower makes the following representations,
warranties and agreements, in each case after giving effect to the Second
Restatement Effective Date, all of which shall survive the execution and
delivery of this Agreement and any Notes issued hereunder and the making of the
Loans and issuance of the Letters of Credit, with the occurrence of the Second
Restatement Effective Date and the occurrence of each Credit Event on or after
the Second Restatement Effective Date being deemed to constitute a
representation and warranty that the matters specified in this Section 7 are
true and correct on and as of the Second Restatement Effective Date and on the
date of each such Credit Event (it being understood and agreed that (x) any
(50)
representation or warranty which by its terms is made as of a specified date
shall be required to be true and correct in all material respects only as of
such specified date and (y) any representation or warranty as to Showboat or any
of its Subsidiaries shall not be made until the consummation of the Showboat
Merger).
7.01 Status. Each of Parent and each of its Subsidiaries (i) is a
duly organized and validly existing corporation, partnership or limited
liability company, in good standing under the laws of the jurisdiction of its
organization, (ii) has the corporate, partnership or limited liability company
power and authority to own its property and assets and to transact the business
in which it is engaged and presently proposes to engage and (iii) is duly
qualified and is authorized to do business and is in good standing in each
jurisdiction where the ownership, leasing or operation of its property or the
conduct of its business requires such qualifications except for failures to be
so qualified which, individually or in the aggregate, could not reasonably be
expected to have a material adverse effect on the business, operations,
property, assets, liabilities, condition (financial or otherwise) or prospects
of Parent and its Subsidiaries taken as a whole.
7.02 Power and Authority. Each Credit Party has the corporate,
partnership or limited liability company power and authority to execute, deliver
and perform the terms and provisions of each of the Documents to which it is
party and has taken all necessary corporate, partnership or limited liability
company action to authorize the execution, delivery and performance by it of
each of such Documents. Each Credit Party has duly executed and delivered each
of the Documents to which it is party, and each of such Documents constitutes
its legal, valid and binding obligation enforceable in accordance with its
terms, except to the extent that the enforceability thereof may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws generally affecting creditors' rights and by equitable principles
(regardless of whether enforcement is sought in equity or at law).
7.03 No Violation. Neither the execution, delivery or performance by
any Credit Party of the Documents to which it is a party, nor compliance by it
with the terms and provisions thereof, (i) will contravene any provision of any
law, statute, rule or regulation or any order, writ, injunction or decree of any
court or governmental instrumentality, (ii) will conflict
(51)
with or result in any breach of any of the terms, covenants, conditions or
provisions of, or constitute a default under, or result in the creation or
imposition of (or the obligation to create or impose) any Lien upon any of the
property or assets of Parent or any of its Subsidiaries pursuant to the terms of
any indenture (including the indentures governing the terms of the Existing
Showboat Notes or any other Indebtedness of Showboat or any of its Subsidiaries
which is to remain outstanding after the Showboat Merger Effective Date),
mortgage, deed of trust, credit agreement or loan agreement, or any other
material agreement, contract or instrument, to which Parent or any of its
Subsidiaries is a party or by which it or any of its property or assets is bound
or to which it may be subject or (iii) will violate any provision of the
certificate of incorporation, partnership agreement, limited liability company
agreement or by-laws (or equivalent organizational documents) of Parent or any
of its Subsidiaries.
7.04 Governmental Approvals. No order, consent, approval, license,
authorization or validation of, or filing, recording or registration with
(except as have been obtained or made on or prior to the Second Restatement
Effective Date or on or prior to the Showboat Merger Effective Date in the case
of the Showboat Merger), or exemption by, any governmental or public body or
authority, or any subdivision thereof, is required to authorize, or is required
in connection with, (i) the Transaction, (ii) the execution, delivery and
performance of any Document or (iii) the legality, validity, binding effect or
enforceability of any such Document.
7.05 Financial Statements; Financial Condition; Undisclosed
Liabilities; Projections; etc. (a) The statements of financial condition of
Parent and its Consolidated Subsidiaries at December 31, 1997, and the related
statements of income and cash flow and changes in shareholders' equity of Parent
and its Consolidated Subsidiaries for the fiscal year ended on such date, copies
of which were furnished to the Banks prior to the Second Restatement Effective
Date, present fairly the financial condition of Parent and its Consolidated
Subsidiaries at the date of such statements of financial condition and the
results of the operations of Parent and its Consolidated Subsidiaries for the
fiscal year covered thereby. The statements of financial condition of Showboat
and its Consolidated Subsidiaries at December 31, 1997, and the related
statements of income and cash flow and changes in shareholders' equity of
Showboat and its Consolidated Subsidiaries for the
(52)
fiscal year ended on such date, copies of which were furnished to the Banks
prior to the Second Restatement Effective Date, present fairly the financial
condition of Showboat and its Consolidated Subsidiaries at the date of such
statements of financial condition and the results of the operations of Showboat
and its Consolidated Subsidiaries for the fiscal year covered thereby. All of
the foregoing historical financial statements have been prepared in accordance
with generally accepted accounting principles and practices consistently
applied. The pro forma consolidated financial statements of Parent and its
Consolidated Subsidiaries as of December 31, 1997, after giving effect to the
Transaction and the financing therefor, copies of which have been furnished to
the Banks prior to the Second Restatement Effective Date, present fairly the pro
forma consolidated financial position of Parent and its Consolidated
Subsidiaries as of December 31, 1997 and the pro forma consolidated results of
operations of Parent and its Consolidated Subsidiaries for the fiscal year
covered thereby. All such pro forma financial statements have been prepared in
accordance with generally accepted accounting principles and practices
consistently applied. Since December 31, 1997, there has been no material
adverse change in the business, operations, property, assets, liabilities,
condition (financial or otherwise) or prospects of Parent and its Subsidiaries
taken as a whole.
(b) On and as of the Second Restatement Effective Date and the
Showboat Merger Effective Date, both before and after giving effect to all
Indebtedness (including the Loans) being incurred or assumed and Liens created
by Parent and its Subsidiaries in connection therewith, (a) the sum of the
assets, at a fair valuation, of each of Parent, the Company, each Subsidiary
Borrower, Parent and its Subsidiaries taken as a whole and the Company and its
Subsidiaries taken as a whole will exceed their respective debts; (b) none of
Parent, the Company, any Subsidiary Borrower, Parent and its Subsidiaries taken
as a whole or the Company and its Subsidiaries taken as a whole has incurred,
nor do they intend to incur or believe that they will incur, debts beyond their
ability to pay such debts as such debts mature; and (c) each of Parent, the
Company, each Subsidiary Borrower, Parent and its Subsidiaries taken as a whole
and the Company and its Subsidiaries taken as a whole will have sufficient
capital with which to conduct its respective business. For purposes of this
Section 7.05(b), "debt" means any liability on a claim, and "claim" means (i)
right to payment, whether or not such a right is reduced to judgment,
liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed,
(53)
undisputed, legal, equitable, secured or unsecured or (ii) right to an equitable
remedy for breach of performance if such breach gives rise to a payment, whether
or not such right to an equitable remedy is reduced to judgment, fixed,
contingent, matured, unmatured, disputed, undisputed, secured or unsecured.
(c) Except as fully disclosed in the financial statements delivered
pursuant to Section 7.05(a), there were as of the Second Restatement Effective
Date no liabilities or obligations with respect to Parent or any of its
Subsidiaries of any nature whatsoever (whether absolute, accrued, contingent or
otherwise and whether or not due) which, either individually or in aggregate,
would be material to Parent and its Subsidiaries taken as a whole. As of the
Second Restatement Effective Date, neither Parent nor any Borrower knows of any
basis for the assertion against Parent or any of its Subsidiaries of any
liability or obligation of any nature whatsoever that is not fully disclosed in
the financial statements delivered pursuant to Section 7.05(a) which, either
individually or in the aggregate, is material to Parent and its Subsidiaries
taken as a whole.
(d) On and as of the Second Restatement Effective Date and assuming
the consummation of the Showboat Merger as contemplated herein and on and as of
the Showboat Merger Effective Date, (i) the financial projections (the
"Projections") set forth in the Confidential Information Memorandum and prepared
by Parent were prepared based upon the assumptions concerning various industry
trends described therein for the periods presented, (ii) the Projections were
based on good faith assumptions and estimates, and (iii) although a range of
possible different assumptions and estimates might also be reasonable, neither
Parent nor the Company is aware of any facts that would lead either of them to
believe that the assumptions and estimates on which the Projections were based
are not reasonable; provided that no assurance can be given that the projected
results will be realized or with respect to the ability of Parent and its
Subsidiaries to achieve the projected results, and while the Projections are
necessarily presented with numerical specificity, the actual results achieved
during the periods presented in all likelihood will differ from the projected
results and such differences may be material.
7.06 Litigation. There are no actions, suits or proceedings pending
or, to the best knowledge of Parent or any Borrower, threatened (i) with respect
to any Document or the Transaction, (ii) with respect to any material
Indebtedness of
(54)
Parent or any of its Subsidiaries or (iii) except as set forth on Schedule IX so
long as there are no adverse judgments regarding such scheduled litigation, that
could reasonably be expected to materially and adversely affect the business,
operations, property, assets, liabilities, condition (financial or otherwise) or
prospects of Parent and its Subsidiaries taken as a whole.
7.07 True and Complete Disclosure. All factual information (taken as
a whole) furnished by or on behalf of Parent or its Subsidiaries in writing to
the Administrative Agent or any Bank (including, without limitation, all
information contained in the Confidential Information Memorandum and the
Documents) for purposes of or in connection with this Agreement, the other
Documents or any transaction contemplated herein or therein is, and all other
such factual information (taken as a whole) hereafter furnished by or on behalf
of Parent or its Subsidiaries in writing to the Administrative Agent or any Bank
will be, true and accurate in all material respects on the date as of which such
information is dated or certified and not incomplete by omitting to state any
fact necessary to make such information (taken as a whole) not misleading in any
material respect at such time in light of the circumstances under which such
information was provided.
7.08 Use of Proceeds; Margin Regulations. (a) All proceeds of the
Loans shall be used by the Borrowers (i) to effect the Transaction, (ii) to pay
fees and expenses related to the Transaction and (iii) for the Borrowers' and
their Subsidiaries' general corporate purposes.
(b) Except to finance the Showboat Merger and as otherwise permitted
by Section 9.05, but in each case subject to the last sentence of this Section
7.08(b), no part of the proceeds of any Loan will be used to purchase or carry
any Margin Stock or to extend credit for the purpose of purchasing or carrying
any Margin Stock. Neither the making of any Loan nor the use of the proceeds
thereof nor the occurrence of any other Credit Event will violate or be
inconsistent with the provisions of Regulation G, T, U or X of the Board of
Governors of the Federal Reserve System. At the time of each Credit Event and
after giving effect thereto (including after giving effect to the application of
the proceeds therefrom), no more than 25% of the value of the assets of Parent
and its Subsidiaries on a consolidated basis shall constitute Margin Stock.
(55)
7.09 Tax Returns and Payments. Each of Parent and each of its
Subsidiaries and each Person for whose tax Parent or any of its Subsidiaries
could be liable has filed or caused to be filed with the appropriate taxing
authority, all Federal and all other material returns, statements, forms and
reports for all taxes (the "Returns") required to be filed by it and has paid or
caused to be paid (i) all material taxes due for the periods covered thereby and
(ii) all taxes pursuant to any assessment received by Parent, any of its
Subsidiaries or any such Person, excluding, in each case, any such taxes that
have been contested in good faith and for which adequate reserves have been
established in accordance with generally accepted accounting principles. Except
as disclosed on Schedule III, as of the Second Restatement Effective Date, there
is no action, suit, proceeding, investigation, audit, or claim now pending or,
to the knowledge of Parent or any of its Subsidiaries, threatened by any
governmental or taxing authority regarding any material taxes relating to Parent
or any of its Subsidiaries. Except as disclosed on Schedule III, as of the
Second Restatement Effective Date, neither Parent nor any of its Subsidiaries
has entered into an agreement or waiver extending any statute of limitations
relating to the payment or collection of any material taxes of Parent or any of
its Subsidiaries.
7.10 Compliance with ERISA. Each Plan is in substantial compliance
with ERISA and the Code; no Reportable Event has occurred with respect to a
Plan; no Plan is insolvent or in reorganization; no Plan has an Unfunded Current
Liability; no Plan has an accumulated or waived funding deficiency, has
permitted decreases in its funding standard account or has applied for an
extension of any amortization period within the meaning of Section 412 of the
Code; neither Parent nor any Subsidiary of Parent nor any ERISA Affiliate has
incurred any material liability to or on account of a Plan pursuant to Section
409, 502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or
Section 401(a)(29), 4971 or 4975 of the Code or expects to incur any liability
under any of the foregoing Sections with respect to any Plan; no proceedings
have been instituted by the PBGC to terminate or appoint a trustee to administer
any Plan; no condition exists which presents a material risk to Parent or any
Subsidiary of Parent or any ERISA Affiliate of incurring a liability to or on
account of a Plan pursuant to the foregoing provisions of ERISA and the Code; no
lien imposed under the Code or ERISA on the assets of Parent or any Subsidiary
of Parent or any ERISA Affiliate exists or is likely to arise on account of any
Plan; and Parent and its
(56)
Subsidiaries may cease contributions to or terminate any employee benefit plan
maintained by any of them without incurring any material liability to any person
interested therein other than accrued benefits; it being understood that any
representation or warranty made in this Section 7.10 with respect to any
multiemployer plan (labor union) is to the best knowledge of Parent, the Company
and each Subsidiary Borrower.
7.11 Properties. Parent and each of its Subsidiaries have good title
to all material properties owned by them, free and clear of all Liens, other
than Liens permitted by Section 9.01.
7.12 Capitalization. (a) On the Second Restatement Effective Date,
the authorized capital stock of Parent shall consist of (i) 360,000,000 shares
of common stock, $.10 par value per share, of which, as of December 31, 1997,
101,035,898 shares were issued and outstanding, (ii) 150,000 shares of preferred
stock, $100 par value per share, of which no shares are issued and outstanding
and (iii) 5,000,000 shares of special stock, $1.125 par value per share, of
which no shares are issued and outstanding. All such outstanding shares have
been duly and validly issued, are fully paid and nonassessable and are free of
preemptive rights. As of the Second Restatement Effective Date and except as
disclosed in the most recent report on Form 10-K filed by Parent with the SEC,
Parent does not have outstanding any securities convertible into or exchangeable
for its capital stock or outstanding any rights to subscribe for or to purchase,
or any options for the purchase of, or any agreement providing for the issuance
(contingent or otherwise) of, or any calls, commitments or claims of any
character relating to, its capital stock.
(b) On the Second Restatement Effective Date, the authorized capital
stock of the Company shall consist of 1,000 shares of common stock, $1.00 par
value per share, all of which shares were issued and outstanding and owned by
Parent. All such outstanding shares have been duly and validly issued, are fully
paid and nonassessable and are free of preemptive rights. The Company does not
have outstanding any securities convertible into or exchangeable for its capital
stock or outstanding any rights to subscribe for or to purchase, or any options
for the purchase of, or any agreements providing for the issuance (contingent or
otherwise) of, or any calls, commitments or claims of any character relating to,
its capital stock.
(57)
7.13 Subsidiaries. Except as otherwise agreed by the Required Banks,
Parent has no Subsidiaries other than (i) the Company and its Subsidiaries and
(ii) Aster Insurance Ltd. All Subsidiaries of the Company as of the Second
Restatement Effective Date, and the direct owner of the capital stock thereof,
are listed on Schedule IV. Schedule IV also accurately shows, as of the Second
Restatement Effective Date, with respect to each Subsidiary (i) whether such
Subsidiary is a Material Subsidiary and (ii) whether such Subsidiary is a
Guarantor.
7.14 Compliance with Statutes, etc. Each of Parent and each of its
Subsidiaries is in compliance with all applicable statutes, regulations and
orders of, and all applicable restrictions imposed by, all governmental bodies,
domestic or foreign, in respect of the conduct of its business and the ownership
of its property (including applicable statutes, regulations, orders and
restrictions relating to environmental standards and controls), except such
noncompliances as could not, individually or in the aggregate, reasonably be
expected to have a material adverse effect on the business, operations,
property, assets, liabilities, condition (financial or otherwise) or prospects
of Parent and its Subsidiaries taken as a whole.
7.15 Investment Company Act. Neither Parent nor any of its
Subsidiaries is an "investment company" or a company "controlled" by an
"investment company," within the meaning of the Investment Company Act of 1940,
as amended.
7.16 Public Utility Holding Company Act. Neither Parent nor any of
its Subsidiaries is a "holding company," or a "subsidiary company" of a "holding
company," or an "affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company" within the meaning of the Public Utility Holding Company
Act of 1935, as amended.
7.17 Environmental Matters. (a) Parent and each of its Subsidiaries
have complied with, and on the date of such Credit Event are in compliance with,
all applicable Environmental Laws and the requirements of any permits issued
under such Environmental Laws. There are no pending or, to the best knowledge of
Parent or any Borrower after due inquiry, past or threatened Environmental
Claims against Parent or any of its Subsidiaries or any Real Property owned or
operated by Parent or any of its Subsidiaries that individually or in the
aggregate could reasonably be expected to materially and adversely affect the
business, operations, property, assets, liabilities,
(58)
condition (financial or otherwise) or prospects of Parent and its Subsidiaries
taken as a whole. There are no facts, circumstances, conditions or occurrences
on any Real Property owned or operated by Parent or any of its Subsidiaries or,
to the best knowledge of Parent or any Borrower after due inquiry, on any
property adjoining or in the vicinity of any such Real Property that, to the
best knowledge of Parent or any Borrower after due inquiry, could reasonably be
expected (i) to form the basis of an Environmental Claim against Parent or any
of its Subsidiaries or any such Real Property that individually or in the
aggregate could reasonably be expected to materially and adversely affect the
business, operations, property, assets, liabilities, condition (financial or
otherwise) or prospects of Parent and its Subsidiaries taken as a whole, or (ii)
to cause any such Real Property to be subject to any restrictions on the
ownership, occupancy, use or transferability of such Real Property by Parent or
any of its Subsidiaries under any applicable Environmental Law.
(b) Hazardous Materials have not at any time been generated, used,
treated or stored on, or transported to or from, any Real Property owned or
operated by Parent or any of its Subsidiaries where such generation, use,
treatment or storage has violated or could reasonably be expected to violate any
Environmental Law. Hazardous Materials have not at any time been Released on or
from any Real Property owned or operated by Parent or any of its Subsidiaries
where such Release has violated or could reasonably be expected to violate any
applicable Environmental Law. There are not now any underground storage tanks
located on any Real Property owned or operated by Parent or any of its
Subsidiaries which are not in compliance with all Environmental Laws.
(c) Notwithstanding anything to the contrary in this Section 7.17,
the representations made in this Section 7.17 shall only be untrue if the effect
of any or all failures and noncompliances of the types described above, either
individually or in the aggregate, could reasonably be expected to have a
material adverse effect on the business, operations, property, assets,
liabilities, condition (financial or otherwise) or prospects of Parent and its
Subsidiaries taken as a whole.
7.18 Labor Relations. Neither Parent nor any of its Subsidiaries is
engaged in any unfair labor practice that could reasonably be expected to have a
material adverse effect on Parent and its Subsidiaries taken as a whole. There
is (i) no
(59)
unfair labor practice complaint pending against Parent or any of its
Subsidiaries or, to the best knowledge of the Parent or any Borrower, threatened
against Parent or any of its Subsidiaries, before the National Labor Relations
Board, and no grievance or arbitration proceeding arising out of or under any
collective bargaining agreement is so pending against Parent or any of its
Subsidiaries or, to the best knowledge of Parent or any Borrower, threatened
against any of them, (ii) no strike, labor dispute, slowdown or stoppage pending
against Parent or any of its Subsidiaries or, to the best knowledge of Parent or
any Borrower, threatened against Parent or any of its Subsidiaries and (iii) to
the best knowledge of Parent or any Borrower, no union representation question
existing with respect to the employees of Parent or any of its Subsidiaries,
except (with respect to any matter specified in clause (i), (ii) or (iii) above,
either individually or in the aggregate) such as could not reasonably be
expected to have a material adverse effect on the business, operations,
property, assets, liabilities, condition (financial or otherwise) or prospects
of Parent and its Subsidiaries taken as a whole.
7.19 Patents, Licenses, Franchises and Formulas. Each of Parent and
its Subsidiaries own all the patents, trademarks, permits, service marks, trade
names, copyrights, licenses, franchises and formulas, or rights with respect to
the foregoing, and has obtained assignments of all leases and other rights of
whatever nature, necessary for the present conduct of its business, without any
known conflict with the rights of others which, or the failure to obtain which,
as the case may be, either individually or in the aggregate, could reasonably be
expected to result in a material adverse effect on the business, operations,
property, assets, liabilities, condition (financial or otherwise) or prospects
of Parent and its Subsidiaries taken as a whole.
7.20 Existing Indebtedness. Schedule V sets forth a true and
complete list of all Indebtedness of Parent and its Subsidiaries as of the
Second Restatement Effective Date and which is to remain outstanding after
giving effect thereto, in each case showing the respective borrower thereof
(excluding Indebtedness under this Agreement and the 364-Day Credit Agreement),
with Part A of such Schedule V to indicate that Indebtedness which constitutes
"Existing Indebtedness" under Section 9.04(ii) of the Existing Credit Agreement
and Part B of such Schedule V to indicate all such other Indebtedness of Parent
and its Subsidiaries.
(60)
7.21 Transaction. At the time of consummation thereof, each
component of the Transaction shall have been consummated in accordance with the
terms of the respective Documents and all applicable laws. At the time of
consummation thereof, all consents and approvals of, and filings and
registrations with, and all other actions in respect of, all governmental
agencies, authorities or instrumentalities required in order to make or
consummate each component of the Transaction have been obtained, given, filed or
taken and are or will be in full force and effect (or effective judicial relief
with respect thereto has been obtained). All applicable waiting periods with
respect thereto have or, prior to the time when required, will have, expired
without, in all such cases, any action being taken by any competent authority
which restrains, prevents, or imposes material adverse conditions upon any
component of the Transaction. Additionally, there does not exist any judgment,
order or injunction prohibiting or imposing material adverse conditions upon any
component of the Transaction, or the occurrence of any Credit Event or the
performance by a Credit Party of its obligations under the Documents to which it
is party. All actions taken by each Credit Party pursuant to or in furtherance
of each component of the Transaction have been taken in compliance with the
respective Documents and all applicable laws.
7.22 No Other Ventures. Except as set forth on Schedule VI, as of
the Second Restatement Effective Date, neither Parent nor any of its
Subsidiaries is engaged in any Joint Venture or partnership with any other
Person.
SECTION 8. Affirmative Covenants. Each of Parent, the Company and
each Subsidiary Borrower covenants and agrees that on and after the Second
Restatement Effective Date and until the Total Revolving Loan Commitment and all
Letters of Credit have terminated and the Loans, Notes and Unpaid Drawings,
together with interest, Fees and all other obligations incurred hereunder and
thereunder, are paid in full:
8.01 Information Covenants. Parent will furnish to each Bank:
(a) Quarterly Financial Statements. Within 45 days after the close
of the first three quarterly accounting periods in each fiscal year of
Parent, the consolidated balance sheet of Parent and its Consolidated
Subsidiaries as at the end of such quarterly accounting period and the
(61)
related consolidated statements of income and retained earnings and
statement of cash flows, in each case for such quarterly accounting period
and for the elapsed portion of the fiscal year ended with the last day of
such quarterly accounting period, in each case setting forth comparative
figures for the related periods in the prior fiscal year, all of which
shall be certified by the chief financial officer, controller or treasurer
of Parent, subject to normal year-end audit adjustments.
(b) Annual Financial Statements. Within 120 days after the close of
each fiscal year of Parent, the consolidated balance sheet of Parent and
its Consolidated Subsidiaries as at the end of such fiscal year and the
related consolidated statements of income and retained earnings and
statement of cash flows for such fiscal year setting forth comparative
figures for the preceding fiscal year and certified by Xxxxxx Xxxxxxxx LLP
or another firm of independent certified public accountants of recognized
national standing, together with a statement of the firm of such
independent accountants as to whether, in conducting their audit, anything
came to their attention to cause them to believe that Parent and the
Company were not in compliance with Sections 9.07, 9.08 and 9.09, insofar
as such Sections relate to accounting and auditing matters, on the date of
such statements.
(c) Budgets. No later than 90 days after the commencement of each
fiscal year of Parent, a budget which shall include an annual balance
sheet for such fiscal year, quarterly statements of income and sources and
uses of cash for each of the four fiscal quarters of such fiscal year,
together with a business plan for such fiscal year, in each case
consolidated for Parent and its Subsidiaries, and accompanied by a
statement of the chief financial officer, controller or treasurer of
Parent that the budget has been approved by the Board of Directors of
Parent or the Company.
(d) Officer's Certificates. At the time of the delivery of the
financial statements provided for in Sections 8.01(a) and (b), a
certificate of the chief financial officer, controller or treasurer of
Parent to the effect that, to the best of such officer's knowledge, no
Default or Event of Default has occurred and is continuing or, if any
Default or Event of Default has occurred and is continuing, specifying the
nature and extent thereof, which
(62)
certificate shall set forth (i) the calculations required to establish
whether Parent and the Borrowers were in compliance with the provisions of
Sections 3.03(e) and (f), 9.03(v), 9.04(vi), 9.04(vii), 9.04(x) through
and including 9.04(xii) and 9.04(xv), 9.05 and 9.07 through 9.09,
inclusive, at the end of such fiscal quarter or year, as the case may be,
(ii) the Senior Implied Indebtedness ratings, if any, assigned by Xxxxx'x
and S&P to the Company's Indebtedness at the end of such fiscal quarter or
year, as the case may be, and (iii) the Reduction Discount, if any, for
the Margin Reduction Period commencing with the delivery of such financial
statements.
(e) Notice of Default or Litigation. Promptly upon, and in any event
within three Business Days after, an officer of Parent or any Borrower
obtains knowledge thereof, notice of (i) the occurrence of any event which
constitutes a Default or an Event of Default and (ii) any litigation or
governmental investigation or proceeding (including any investigation by
any Gaming Authority) pending (x) against Parent or any of its
Subsidiaries which could reasonably be expected to materially and
adversely affect the business, operations, property, assets, liabilities,
condition (financial or otherwise) or prospects of Parent and its
Subsidiaries taken as a whole, (y) with respect to any material
Indebtedness of Parent or any of its Subsidiaries or (z) with respect to
the Transaction or any Document.
(f) Other Reports and Filings. Promptly, (i) copies of all financial
statements, reports and proxy materials which Parent has mailed to its
shareholders generally, (ii) copies of all registration statements (other
than the exhibits thereto and any registration statements on Form S-8 or
its equivalent) and reports on Forms 10-K, 10-Q and 8-K (or their
equivalent) which Parent or any of its Subsidiaries shall file with the
Securities and Exchange Commission or any successor thereof (the "SEC")
and (iii) to the extent not otherwise provided to the Banks, copies of all
notices, reports and financial statements which Parent or any of its
Subsidiaries shall deliver to holders of any issue of Indebtedness if the
aggregate principal amount thereof exceeds (or upon the utilization of any
unused commitments may exceed) $25,000,000 pursuant to the terms of the
documentation governing any such issue of Indebtedness (or any trustee,
agent or other representative therefor).
(63)
(g) Environmental Matters. Promptly upon, and in any event within
ten Business Days after, an officer of Parent or any Borrower obtains
knowledge thereof, notice of one or more of the following environmental
matters, unless such environmental matters could not, individually or when
aggregated with all other such environmental matters, be reasonably
expected to materially and adversely affect the business, operations,
property, assets, liabilities, condition (financial or otherwise) or
prospects of Parent and its Subsidiaries taken as a whole: (i) any pending
or threatened Environmental Claim against Parent or any of its
Subsidiaries or any Real Property owned or operated by Parent or any of
its Subsidiaries; (ii) any condition or occurrence on or arising from any
Real Property owned or operated by Parent or any of its Subsidiaries that
(a) results in noncompliance by Parent or any of its Subsidiaries with any
applicable Environmental Law or (b) could reasonably be expected to form
the basis of an Environmental Claim against Parent or any of its
Subsidiaries or any such Real Property; (iii) any condition or occurrence
on any Real Property owned or operated by Parent or any of its
Subsidiaries that could reasonably be expected to cause such Real Property
to be subject to any restrictions on the ownership, occupancy, use or
transferability by Parent or any of its Subsidiaries of such Real Property
under any Environmental Law; and (iv) the taking of any removal or
remedial action in response to the actual or alleged presence of any
Hazardous Material on any Real Property owned or operated by Parent or any
of its Subsidiaries as required by any Environmental Law or any
governmental or other administrative agency; provided that in any event
Parent shall deliver to each Bank all notices received by Parent or any of
its Subsidiaries from any government or governmental agency under, or
pursuant to, CERCLA. All such notices shall describe in reasonable detail
the nature of the claim, investigation, condition, occurrence or removal
or remedial action and Parent's or such Subsidiary's response thereto. In
addition, Parent will provide the Banks with copies of all material
written communications by Parent or any of its Subsidiaries with any
government or governmental agency relating to Environmental Laws, all
material written communications with any person relating to Environmental
Claims, and such detailed reports of any Environmental Claim as may
reasonably be requested by the Banks.
(64)
(h) Other Information. From time to time, such other information or
documents (financial or otherwise) with respect to Parent or its
Subsidiaries as the Administrative Agent or any Bank may reasonably
request.
8.02 Books, Records and Inspections. Parent will, and will cause
each of its Subsidiaries to, keep proper books of record and account in which
full, true and correct entries in conformity with generally accepted accounting
principles and all requirements of law shall be made of all dealings and
transactions in relation to its business and activities. Parent will, and will
cause each of its Subsidiaries to, permit officers and designated
representatives of the Administrative Agent or any Bank to visit and inspect, at
the Administrative Agent's or such Bank's expense and under guidance of officers
of Parent or such Subsidiary, any of the properties of Parent or such
Subsidiary, and to examine the books of account of Parent or such Subsidiary and
discuss the affairs, finances and accounts of Parent or such Subsidiary with,
and be advised as to the same by, its and their officers and independent public
accountants, provided that a representative of Parent or such Subsidiary is
present, all at such reasonable times and intervals and to such reasonable
extent as the Administrative Agent or such Bank may request, provided that the
Administrative Agent and the Banks shall have no right pursuant to this Section
8.02 to obtain any information relating to (i) the identity of gaming patrons
obligated under Markers or (ii) any filings made pursuant to Regulation 6A or
6.090 of the Regulations of the Nevada Gaming Commission (except that the
Administrative Agent and the Banks may review the reports of an independent
auditor with respect to such filings).
8.03 Maintenance of Property; Insurance. (a) Parent will, and will
cause each of its Material Subsidiaries to, keep all property necessary in the
reasonable conduct of its business in good working order and condition.
(b) Schedule VII sets forth a true and complete listing of all
insurance maintained by Parent and its Subsidiaries as of the Second Restatement
Effective Date. Parent will maintain, and will cause each of its Material
Subsidiaries to maintain, (i) physical damage insurance on all real and personal
property on an all risk basis (including the perils of flood and quake),
covering the repair and replacement cost of all such property and consequential
loss coverage for business interruption and extra expense, and (ii) such other
insurance coverage in such amounts and with respect to such risks as is
(65)
consistent and in accordance with industry practice for companies similarly
situated owning similar properties in the same general areas in which Parent or
any of its Subsidiaries operates; provided, however, that flood, earthquake and
business interruption insurance will be required only to the extent available on
a commercially reasonable basis and so long as it is consistent with reasonable
and prudent insurance underwriting practices. All such insurance shall be
provided by insurers having an A.M. Best general policyholders service rating of
not less than "B+VI" or such other insurers as the Administrative Agent may
approve in writing. Parent will deliver to the Banks (i) upon request of any
Bank through the Administrative Agent from time to time full information as to
the insurance carried, (ii) for all material insurance, within five days of
receipt of notice from any insurer, a copy of any notice of cancellation or
material change in coverage from that existing on the date of this Agreement and
(iii) forthwith, notice of any cancellation or nonrenewal of any insurance
coverage of Parent or any of its Material Subsidiaries with respect to any
material insurance coverage of Parent or any of its Subsidiaries. Nothing in
this Section 8.03(b) shall be construed to restrict the right of Parent or any
Material Subsidiaries from obtaining blanket insurance, or self insurance of
certain risks to the extent such insurance is consistent with the past practices
of Parent or such Material Subsidiary and consistent with reasonable and prudent
insurance underwriting practices. If Parent or any of its Material Subsidiaries
shall fail to insure its property in accordance with this Section 8.03(b), the
Administrative Agent shall have the right (but shall be under no obligation)
upon notice to Parent or the respective Material Subsidiary to procure such
insurance and Parent and each Borrower agrees to reimburse the Administrative
Agent for all costs and expenses of procuring such insurance.
8.04 Corporate Franchises. Parent will, and will cause each of its
Material Subsidiaries to, do or cause to be done, all things necessary to
preserve and keep in full force and effect its existence and its material
rights, franchises, licenses and patents; provided, however, that nothing in
this Section 8.04 shall prevent (i) sales of stock or assets by Parent or any of
its Subsidiaries in accordance with Section 9.02, (ii) the withdrawal by Parent
or any of its Subsidiaries of its qualification as a foreign corporation in any
jurisdiction where such withdrawal could not, individually or in the aggregate,
reasonably be expected to have a material adverse effect on the business,
operations, property, assets, liabilities, condition
(66)
(financial or otherwise) or prospects of Parent and its Subsidiaries taken as a
whole or (iii) the taking of any action respecting any right, franchise, license
or patent determined by the management of Parent or such Subsidiary to be in the
best interest of Parent or such Subsidiary.
8.05 Compliance with Statutes, etc. Parent will, and will cause each
of its Subsidiaries to, comply with all applicable statutes, regulations
(including Gaming Regulations) and orders of, and all applicable restrictions
imposed by, all governmental bodies, domestic or foreign, in respect of the
conduct of its business and the ownership of its property, except such
noncompliances as could not, individually or in the aggregate, reasonably be
expected to have a material adverse effect on the business, operations,
property, assets, liabilities, condition (financial or otherwise) or prospects
of Parent and its Subsidiaries taken as a whole.
8.06 Compliance with Environmental Laws. Except where the failure to
do so could not, individually or in the aggregate, reasonably be expected to
have a material adverse effect on the business, operations, property, assets,
liabilities, condition (financial or otherwise) or prospects of Parent and its
Subsidiaries taken as a whole, (i) Parent will comply, and will cause each of
its Subsidiaries to comply, with all Environmental Laws applicable to the
ownership or use of its Real Property now or hereafter owned, leased or operated
by Parent or any of its Subsidiaries; (ii) Parent will, and will cause each of
its Subsidiaries to, promptly pay or cause to be paid all costs and expenses
incurred in such compliance; (iii) and Parent will, and will cause each of its
Subsidiaries to, keep or cause to be kept all such Real Property free and clear
of any Liens imposed pursuant to such Environmental Laws; and (iv) neither
Parent nor any of its Subsidiaries will generate, use, treat, store, release or
dispose of, or permit (to the extent within Parent's or such Subsidiary's
reasonable control) the generation, use, treatment, storage, release or disposal
of Hazardous Materials on any Real Property now or hereafter owned, leased or
managed by Parent or any of its Subsidiaries, or transport or permit (to the
extent within Parent's or such Subsidiary's reasonable control) the
transportation of Hazardous Materials to or from any such Real Property except
in compliance with all applicable Environmental Laws and as reasonably required
in connection with the operation, use and maintenance of any such Real Property
in the conduct of Parent's or such Subsidiary's business.
(67)
8.07 ERISA. As soon as possible and, in any event, within 10 days
after Parent or any Borrower or any ERISA Affiliate knows or has reason to know
of the occurrence of any of the following, Parent will deliver to each of the
Banks a certificate of the chief financial officer, controller or treasurer of
Parent setting forth details as to such occurrence and the action, if any, which
Parent, such Subsidiary or such ERISA Affiliate is required or proposes to take,
together with any notices required or proposed to be given to or filed with or
by Parent, such Subsidiary, such ERISA Affiliate, the PBGC, a Plan participant
or the Plan administrator with respect thereto: that a Reportable Event has
occurred (except to the extent that Parent has previously delivered to the Banks
a certificate and notices (if any) concerning such event pursuant to the next
clause hereof); that a contributing sponsor (as defined in Section 4001 (a) (13)
of ERISA) of a Plan subject to Title IV of ERISA is subject to the advance
reporting requirement of PBGC Regulation Section 4043.61 (without regard to
subparagraph (b) (1) thereof), and an event described in subsection .62, .63,
.64, .65, .66,. 67 or .68 of PBGC Regulation Section 4043 is reasonably expected
to occur with respect to such Plan within the following 30 days; that an
accumulated funding deficiency has been incurred or an application may be or has
been made to the Secretary of the Treasury for a waiver or modification of the
minimum funding standard (including any required installment payments) or an
extension of any amortization period under Section 412 of the Code with respect
to a Plan; that a Plan has been or may be terminated, reorganized, partitioned
or declared insolvent under Title IV of ERISA; that a Plan has an Unfunded
Current Liability giving rise to a lien under ERISA or the Code; that
proceedings may be or have been instituted by the PBGC to terminate or appoint a
trustee to administer a Plan; that a proceeding has been instituted pursuant to
Section 515 of ERISA to collect a delinquent contribution to a Plan; that
Parent, any Subsidiary of Parent or any ERISA Affiliate will or may incur any
material liability (including any contingent, or secondary liability) to or on
account of the termination of or withdrawal from a Plan under Section 4062,
4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or with respect to a Plan under
Section 401(a)(29), 4971 or 4975 of the Code or Section 409 or 502(i) or 502(l)
of ERISA. At the request of any Bank, Parent will deliver to such Bank (i) a
complete copy of the annual report (Form 5500) of each Plan (including, to the
extent required to be filed with Form 5500, the related financial and actuarial
statements and opinions and other supporting statements, certifications,
schedules and information) required to be filed with the Internal Revenue
(68)
Service and (ii) in addition to any certificates or notices delivered to the
Banks pursuant to the first sentence hereof, copies of any records, documents or
other information required to be furnished to the PBGC, and any material notices
received by Parent or any Subsidiary of Parent or any ERISA Affiliate with
respect to any Plan.
8.08 End of Fiscal Years; Fiscal Quarters. Parent and the Company
will cause (i) each of its fiscal years to end on December 31, and (ii) each of
its fiscal quarters to end on March 31, June 30, September 30 and December 31.
8.09 Performance of Obligations. Parent will, and will cause each of
its Subsidiaries to, perform all of its obligations under the terms of each
mortgage, indenture, security agreement and other debt instrument by which it is
bound, except such non-performances as could not, individually or in the
aggregate, reasonably be expected to have a material adverse effect on the
business, operations, property, assets, liabilities, condition (financial or
otherwise) or prospects of Parent and its Subsidiaries taken as a whole.
8.10 Payment of Taxes. Parent will pay and discharge, and will cause
each of its Subsidiaries to pay and discharge, all taxes, assessments and
governmental charges or levies imposed upon it or upon its income or profits, or
upon any properties belonging to it, in each case on a timely basis, and all
lawful claims which, if unpaid, might become a lien or charge upon any
properties of Parent or any of its Subsidiaries; provided that neither Parent
nor any of its Subsidiaries shall be required to pay any such tax, assessment,
charge, levy or claim which is being contested in good faith and by proper
proceedings if it has maintained adequate reserves with respect thereto in
accordance with generally accepted accounting principles.
8.11 Additional Guarantors; etc. (a) In the event that at any time
after the Second Restatement Effective Date (A) Des Plaines Development L.P.
becomes a Wholly-Owned Subsidiary of the Company, (B) any Person becomes (x) a
First-Tier Material Subsidiary, (y) a Material Subsidiary pursuant to clause
(ii) of the definition thereof or (z) a guarantor under the 364-Day Credit
Agreement or (C) any Person is required to comply with the provisions of this
Section 8.11(a) as a result of a merger or consolidation permitted by Section
9.02(vi) or a transfer permitted by Section 9.02(vii) (it being understood and
agreed that any such Person under this clause (C) shall be
(69)
required to take the action required below contemporaneously with such merger,
consolidation or transfer), then Parent and the Company will, except as
otherwise provided in the last sentence of this clause (a), cause Des Plaines
Development L.P. and each such other Person (Des Plaines Development L.P. and
each such other Person, together with any Person required to execute a
counterpart of the Company/Sub Guaranty pursuant to clause (b) of this Section
8.11, a "Required Additional Guarantor"), within 30 days after it becomes (or at
the time it becomes, as the case may be) a Required Additional Guarantor, to
duly authorize, execute and deliver to the Administrative Agent a counterpart of
the Company/Sub Guaranty, together with such other documents, certificates,
resolutions, opinions and writings that would have been required to be delivered
pursuant to Sections 5A.03 and 5A.04 if such Subsidiary had been a Guarantor on
the Second Restatement Effective Date and subject to such Sections on such date,
all of which shall be in form and substance reasonably satisfactory to the
Administrative Agent. Notwithstanding the foregoing, (x) any Subsidiary of the
Company which is not a Wholly-Owned Subsidiary or which has outstanding
Non-Recourse Indebtedness pursuant to Section 9.04(x) shall not be required to
become a Guarantor pursuant to the Company/Sub Guaranty and (y) neither Showboat
nor any of its Subsidiaries shall be required to become a Guarantor under the
Company/Sub Guaranty pursuant to this clause (a) until the consummation of the
Existing Showboat Notes Tender Offers/Consent Solicitations, the Existing
Showboat Notes Defeasances or such earlier time as the terms of the Existing
Showboat Notes would permit.
(b) In addition to the requirements of clause (a) of this Section
8.11, within 30 days following the consummation of the Existing Showboat Notes
Tender Offers/Consent Solicitations, the Existing Showboat Notes Defeasances or
such earlier time as the terms of the Existing Showboat Notes would permit,
Showboat, Ocean Showboat, Inc., Atlantic City Showboat, Inc., Showboat Operating
Company, Showboat Indiana Investment Limited Partnership and, if and when it
becomes a Wholly-Owned Subsidiary of the Company and to the extent permitted by
the terms of its then existing Indebtedness agreements, Showboat Marina Casino
Partnership, each shall execute and deliver to the Administrative Agent a
counterpart of the Company/Sub Guaranty, together with the other documents,
certificates, resolutions, opinions and writings required to be delivered by a
Required Additional Guarantor pursuant to clause (a) of this Section 8.11.
(70)
8.12 Showboat Change of Control Offers to Purchase and Showboat
Change of Control Purchases; Existing Showboat Notes Tender Offers/Consent
Solicitations. (a) Parent, the Company or Showboat will commence the Showboat
Change of Control Offers to Purchase in accordance with (and to the extent
required by) the terms of the respective Existing Showboat Notes Indentures and
all applicable laws. In addition, Parent, the Company or Showboat will purchase
all Existing Showboat Notes required to be purchased by it pursuant to the terms
of the Showboat Change of Control Offers to Purchase, it being understood that
the terms of the Showboat Change of Control Offers to Purchase shall provide for
all of the Showboat Change of Control Purchases to occur before the 90th day
after the Showboat Merger Effective Date.
(b) At the expiration of the Existing Showboat Notes Tender
Offers/Consents Solicitations, and provided that the Minimum Condition and the
other conditions precedent described in the Existing Showboat Notes Tender
Offers/Consent Solicitations Documents have been satisfied, (i) Parent, the
Company or Showboat will purchase all Existing Showboat Notes tendered, and not
theretofore withdrawn, pursuant to the Existing Showboat Notes Tender
Offers/Consents Solicitations and (ii) in the event that less than 100% of the
Existing Showboat Notes have been so purchased, Showboat and each of the
trustees for the Existing Showboat Notes shall have duly executed and delivered
the respective Existing Showboat Notes Indenture Supplements. It is understood
and agreed that, notwithstanding anything to the contrary contained above in
this clause (b) or elsewhere in this Agreement, in the event that the Minimum
Condition has not been satisfied on or prior to the 90th day following the
Showboat Merger Effective Date, then no Existing Showboat Notes will be accepted
for purchase pursuant to the Existing Showboat Notes Tender Offers/Consent
Solicitations or otherwise (other than pursuant to the Showboat Change of
Control Offers to Purchase or pursuant to the Existing Showboat Notes
Defeasances).
(c) Parent and the Company will promptly deliver to the
Administrative Agent evidence reasonably satisfactory to it that the applicable
provisions of this Section 8.12 have been complied with in accordance with the
terms hereof.
8.13 Existing Showboat Notes Defeasances. In the event that Parent,
the Company or Showboat elects to consummate the Existing Showboat Notes
Defeasances as (and to the extent) permitted by Section 9.10, Parent, the
Company or Showboat shall take all actions as are required pursuant to the
applicable
(71)
provisions of the Existing Showboat Note Indentures to ensure that Showboat's
and its Subsidiaries' respective obligations under the Existing Showboat Note
Indentures and the Existing Showboat Notes are terminated (other than those
limited obligations which expressly survive such defeasances as set forth in the
respective Existing Showboat Note Indentures) and that all collateral securing
such obligations are released (other than those Liens permitted by Section
9.01(xx)). Within 95 days following the deposit of cash and/or U.S. government
obligations by Parent, the Company or Showboat to consummate the Existing
Showboat Notes Defeasances, Parent, the Company or Showboat shall deliver to the
Administrative Agent evidence, in form and substance reasonably satisfactory to
the Administrative Agent, that the Existing Showboat Notes Defeasances have
become effective in accordance with the terms of the Existing Showboat Note
Indentures and that the Existing Showboat Notes are no longer deemed
"outstanding".
8.14 8-3/4% Senior Subordinated Notes Redemption. On or prior to the
33rd day after the Second Restatement Effective Date, (i) the Company shall have
consummated the 8-3/4% Senior Subordinated Notes Redemption in accordance with
the 8-3/4% Senior Subordinated Note Redemption Documents, the 8-3/4% Senior
Subordinated Notes Indenture and all applicable laws and (ii) the Administrative
Agent shall have received evidence, in form and substance reasonably
satisfactory to it, that all outstanding 8-3/4% Senior Subordinated Notes have
been redeemed in full and that the 8-3/4% Senior Subordinated Notes Indenture
has been discharged.
SECTION 9. Negative Covenants. Each of Parent, the Company and each
Subsidiary Borrower covenants and agrees that on and after the Second
Restatement Effective Date and until the Total Revolving Loan Commitment and all
Letters of Credit have terminated and the Loans, Notes and Unpaid Drawings,
together with interest, Fees and all other Obligations incurred hereunder and
thereunder, are paid in full:
9.01 Liens. Parent will not, and will not permit any of its
Subsidiaries to, create, incur, assume or suffer to exist any Lien upon or with
respect to any property or assets (real or personal, tangible or intangible) of
Parent or any of its Subsidiaries, whether now owned or hereafter acquired, or
sell any such property or assets subject to an understanding or agreement,
contingent or otherwise, to repurchase such property or assets (including sales
of accounts receivable with recourse
(72)
to Parent or any of its Subsidiaries), or assign any right to receive income or
permit the filing of any financing statement under the UCC or any other similar
notice of Lien under any similar recording or notice statute; provided that the
provisions of this Section 9.01 shall not prevent the creation, incurrence,
assumption or existence of the following (Liens described below are herein
referred to as "Permitted Liens"):
(i) inchoate Liens for taxes, assessments or governmental charges or
levies not yet due or Liens for taxes, assessments or governmental charges
or levies being contested in good faith and by appropriate proceedings for
which adequate reserves have been established in accordance with generally
accepted accounting principles;
(ii) Liens in respect of property or assets of Parent or any of its
Subsidiaries imposed by law, which were incurred in the ordinary course of
business and do not secure Indebtedness for borrowed money, such as
carriers', warehousemen's, materialmen's and mechanics' liens and other
similar Liens arising in the ordinary course of business, and (x) which do
not in the aggregate materially detract from the value of Parent's or such
Subsidiary's property or assets or materially impair the use thereof in
the operation of the business of Parent or such Subsidiary or (y) which
are being contested in good faith by appropriate proceedings, which
proceedings have the effect of preventing the forfeiture or sale of the
property or assets subject to any such Lien;
(iii) Liens permitted pursuant to Section 9.01(iii) of the Existing
Credit Agreement which remain in existence on the Second Restatement
Effective Date and which are listed, and the property subject thereto
described, in Schedule VIII, but only to the respective date, if any, set
forth in such Schedule VIII for the removal and termination of any such
Liens, without any renewals or extensions thereof and Liens on the assets
of Showboat and its Subsidiaries which remain in existence on the Showboat
Merger Effective Date and which are listed, and the property thereto
described, in the supplement to Schedule VIII delivered pursuant to
Section 5B.12, but only to the respective date, if any, set forth in such
supplement to Schedule VIII for the removal and termination of any such
Liens, without any renewals or extensions thereof;
(73)
(iv) Liens on cash and/or U.S. government obligations that are
deposited by the Company with the trustee under the 8-3/4% Senior
Subordinated Notes Indenture pending the consummation of the 8-3/4% Senior
Subordinated Notes Redemption;
(v) leases or subleases granted to other Persons not materially
interfering with the conduct of the business of Parent or any of its
Subsidiaries or materially detracting from the value of the respective
assets of Parent or such Subsidiary;
(vi) Liens incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment insurance
and other types of social security in the ordinary course of business;
(vii) Liens placed upon equipment or machinery used in the ordinary
course of business of the Company or any of its Subsidiaries at the time
of acquisition thereof by the Company or any such Subsidiary or within 90
days thereafter to secure Indebtedness incurred to pay all or a portion of
the purchase price thereof provided that (x) the aggregate principal
amount of all Indebtedness secured by Liens permitted by this clause (vii)
incurred in any fiscal year of Parent does not exceed $1,000,000 and (y)
in all events, the Lien encumbering the equipment or machinery so acquired
does not encumber any other asset of Parent or such Subsidiary;
(viii) easements, rights-of-way, restrictions, encroachments and
other similar charges or encumbrances, and minor title deficiencies, in
each case not securing Indebtedness and not materially interfering with
the conduct of the business of Parent or any of its Subsidiaries;
(ix) Liens arising from precautionary UCC financing statement
filings regarding operating leases;
(x) Liens arising out of judgments or awards in respect of which
Parent or any of its Subsidiaries shall in good faith be prosecuting an
appeal or proceedings for review in respect of which there shall have been
secured a subsisting stay of execution pending such appeal or proceedings,
provided that the aggregate amount of all such judgments or awards (and
any cash and the fair market value
(74)
of any property subject to such Liens) does not exceed $15,000,000 at any
time outstanding;
(xi) statutory and common law landlords' liens under leases to which
Parent or any of its Subsidiaries is a party;
(xii) Liens incurred or deposits made to secure the performance of
tenders, bids, statutory obligations, government contracts, performance
and return-of-money bonds and other obligations of a like nature incurred
in the ordinary course of business (exclusive of obligations for the
payment of borrowed money);
(xiii) Liens securing reimbursement obligations with respect to
commercial and standby letters of credit incurred by the Company or any of
its Subsidiaries in the ordinary course of business provided that (x) each
such letter of credit is in a face amount of less than $1,000,000 and (y)
the aggregate face amount of all such letters of credit does not exceed
$5,000,000;
(xiv) restrictions pursuant to legends on stock required by (x)
Gaming Regulations and (y) the partnership agreement for Xxxxxx'x Jazz (as
such partnership agreement is in effect on the Second Restatement
Effective Date), in each case to the extent such restrictions constitute a
Lien;
(xv) any Lien existing on any asset of any corporation at the time
such corporation becomes a Subsidiary of Parent so long as any such Lien
was not created in contemplation of such event;
(xvi) any Lien existing on any asset prior to the acquisition
thereof by the Company or any of its Subsidiaries so long as any such Lien
was not created in contemplation of such acquisition;
(xvii) Liens on equipment or machinery subject to Capitalized Lease
Obligations to the extent permitted by Section 9.04(v);
(xviii) Liens securing Non-Recourse Indebtedness of Specified
Subsidiaries permitted under Section 9.04(x) so long as such Liens only
encumber the Gaming Properties owned by Specified Subsidiaries being
developed or financed with
(75)
such Non-Recourse Indebtedness, including any Real Property and furniture,
fixtures and equipment related thereto, it being understood and agreed
that such assets of Specified Subsidiaries also may secure Non-Recourse
Indebtedness incurred by other Specified Subsidiaries pursuant to Section
9.04(x);
(xix) Liens on the Company's or any of its Subsidiaries' respective
equity interest in any Joint Venture so long as such Liens only secure
Indebtedness of such Joint Venture; and
(xx) Liens on cash and/or U.S. government obligations that are
deposited by the Company or Showboat with the respective trustees under
the Existing Showboat Note Indentures in order to effect the Existing
Showboat Notes Defeasances.
9.02 Consolidation, Merger, Purchase or Sale of Assets, etc. (a)
Parent will not, and will not permit any of its Subsidiaries to, wind up,
liquidate or dissolve its affairs or enter into any transaction of merger or
consolidation, or convey, sell, lease or otherwise dispose of (or agree to do
any of the foregoing at any future time) all or any part of its assets, whether
in a single transaction or a series of related transactions, except that:
(i) the Company and its Subsidiaries may sell assets, whether in a
single sale or series of related sales, having a fair market value (as
determined in good faith by Parent or the Company) of less then
$50,000,000 so long as (i) no Default or Event of Default then exists or
would result therefrom, (ii) each such sale is in an arm's length
transaction and the Company or the respective Subsidiary receives at least
fair market value (as determined in good faith by Parent or the Company),
(iii) the total consideration received by the Company or such Subsidiary
is at least 50% cash and is received at the time of the closing of such
sale and (iv) any Net Sale Proceeds in excess of $75,000,000 that are
received in any fiscal year of the Company in connection with all asset
sales made pursuant to this clause (i) are applied to reduce the Total
Revolving Loan Commitment pursuant to Section 3.03(f);
(ii) the Company and its Subsidiaries may sell assets, whether a
single sale or series of related sales, having a
(76)
fair market value (as determined in good faith by Parent or the Company)
of more than or equal to $50,000,000 but less then $100,000,000 so long as
(i) no Default or Event of Default then exists or would result therefrom,
(ii) each such sale is in an arm's length transaction and the Company or
the respective Subsidiary receives at least fair market value (as
determined in good faith by Parent or the Company), (iii) the total
consideration received by the Company or such Subsidiary is at least 90%
cash and is received at the time of the closing of such sale and (iv) the
Net Sale Proceeds therefrom are applied to reduce the Total Revolving Loan
Commitment pursuant to Section 3.03(f);
(iii) Showboat and its Subsidiaries may sell the Showboat Las Vegas
Hotel Casino so long as (i) no Default or Event of Default then exists or
would result therefrom, (ii) such sale is in an arm's length transaction
and Showboat or the respective Subsidiary receives at least fair market
value (as determined in good faith by Parent or the Company) and (iii) the
total consideration received by Showboat or such Subsidiary is at least
75% cash and is received at the time of the closing of such sale;
(iv) Showboat and its Subsidiaries may sell their equity interest in
Sydney Harbour Casino Holdings Limited as well as the management contract
for the Sydney Harbour Casino so long as (i) no Default or Event of
Default then exists or would result therefrom, (ii) each such sale is in
an arm's length transaction and Showboat or the respective Subsidiary
receives at least fair market value (as determined in good faith by Parent
or the Company), (iii) the total consideration received by Showboat or
such Subsidiary is at least 90% cash and is received at the time of the
closing of each such sale and (iv) the Net Sale Proceeds therefrom are
applied to reduce the Total Revolving Loan Commitment pursuant to Section
3.03(f);
(v) any Subsidiary of the Company may be merged or consolidated with
or into the Company so long as the Company is the surviving corporation of
such merger or consolidation;
(vi) any Subsidiary of the Company may be merged or consolidated
with or into any other Subsidiary of the Company so long as (i) in the
case of any such merger or consolidation involving a Subsidiary that is a
Guarantor,
(77)
the Guarantor is the surviving corporation of such merger or consolidation
or such surviving corporation becomes a Required Additional Guarantor
contemporaneously with such merger or consolidation pursuant to Section
8.11(a) and (ii) in addition to the requirements of preceding clause (i),
in the case of any such merger or consolidation involving a Wholly-Owned
Subsidiary of the Company, the Wholly-Owned Subsidiary is the surviving
corporation of such merger or consolidation;
(vii) any Subsidiary of the Company may transfer assets to the
Company, any Subsidiary Guarantor or any other Wholly-Owned Subsidiary of
the Company, provided, to the extent that any Guarantor transfers any
Gaming Property (or any gaming license with respect thereto) to a
Wholly-Owned Subsidiary that is not a Guarantor at such time,
contemporaneously with such transfer such Wholly-Owned Subsidiary shall
become a Required Additional Guarantor contemporaneously with such
transfer pursuant to Section 8.11(a); and
(viii) the Showboat Merger shall be permitted.
(b) Notwithstanding anything to the contrary contained in this
Agreement, (i) sales of inventory, materials and equipment may be made in the
ordinary course of business (which sales shall not be included as sales made
pursuant to clause (a) of this Section 9.02 unless made in connection with the
sale of a Gaming Property), (ii) sales of obsolete, uneconomic or worn out
equipment or materials shall be permitted (which sales also shall not be
included as sales made pursuant to clause (a) of this Section 9.02 unless made
in conjunction with the sale of a Gaming Property), (iii) the "Xxxxxx'x" or
"Showboat" name may not be sold pursuant to this Agreement (although either such
name may be used or licensed on a non-exclusive basis in connection with the
extension of the Gaming Business of the Company and its Subsidiaries and Joint
Ventures or in connection with the sale of the Showboat Las Vegas Hotel and
Casino) and (iv) in the event that any Subsidiary Borrower is sold in connection
with a sale permitted by this Agreement, such Subsidiary Borrower shall cease to
be a Subsidiary Borrower and all Loans incurred by it shall be repaid in full on
or before the date of such sale and the Company shall become the account party
with respect to all Letters of Credit issued for the account of such Subsidiary
Borrower pursuant to documentation satisfactory to the Administrative Agent and
the respective Letter of Credit Issuer.
(78)
9.03 Dividends. Parent will not, and will not permit any of its
Subsidiaries to, authorize, declare or pay any Dividends with respect to Parent
or any of its Subsidiaries, except that:
(i) any Subsidiary of the Company may pay Dividends to the Company
or to any Wholly-Owned Subsidiary of the Company;
(ii) any non-Wholly-Owned Subsidiary of the Company may pay cash
Dividends to its shareholders generally on a pro rata basis;
(iii) so long as no Default or Event of Default shall exist (both
before and after giving effect to the payment thereof), the Company may
pay cash Dividends to Parent which are used by Parent to pay cash
Dividends to its shareholders to the extent necessary, as determined in
the good faith judgment of the Board of Directors of Parent or the
Company, to prevent the filing of any disciplinary action by any Gaming
Authority or to prevent the loss or secure the reinstatement of any
license or franchise from any governmental agency, including Gaming
Authorities, held by Parent or any of its Subsidiaries which license or
franchise is conditioned upon some or all of the holders of Parent's
capital stock possessing prescribed qualifications, in each case only if
such loss or failure to reinstate would have a material adverse effect on
the business, operations, property, assets, liabilities, condition
(financial or otherwise) or prospects of Parent and its Subsidiaries taken
as a whole, provided that the aggregate amount of cash Dividends permitted
to be paid pursuant to this clause (iii) shall not exceed $5,000,000;
(iv) so long as no Default or Event of Default shall exist (both
before and after giving effect to the payment thereof), the Company may
pay cash Dividends to Parent in the amounts permitted pursuant to clauses
(v) and (vi) of this Section 9.03, provided that Parent uses the proceeds
thereof to pay Dividends within three days after receipt thereof for the
purposes set forth in such clauses (v) and (vi);
(v) so long as no Default or Event of Default shall exist (both
before and after giving effect to the payment thereof), Parent may pay
cash Dividends in an aggregate
(79)
amount for any fiscal year of Parent not to exceed the lesser of (x) 10%
of Consolidated Net Income for the prior fiscal year and (y) $20,000,000;
(vi) so long as no Default or Event of Default shall exist (both
before and after giving effect to the payment thereof), Parent may redeem
the Rights outstanding pursuant to the terms of the Rights Agreement,
provided that (i) Parent shall not pay more than $.05 per Right in
connection therewith and (ii) the aggregate amount of Dividends paid
pursuant to this clause (vi) shall not exceed $2,500,000;
(vii) so long as no Default or Event of Default shall exist (both
before and after giving effect to the payment thereof), the Company may
pay cash Dividends to Parent so long as the proceeds thereof are promptly
used by Parent to pay (i) operating expenses in the ordinary course of
business and other similar corporate overhead costs and expenses and (ii)
amounts necessary to fund Aster Insurance Ltd. in the ordinary course of
its business;
(viii) the Company may pay cash Dividends to Parent in the amounts
and at the times of any payment by Parent in respect of federal, state,
franchise or other taxes (provided that any refund shall be promptly
returned by Parent to the Company);
(ix) the Showboat Merger consideration may be paid pursuant to the
terms of the Showboat Merger Agreement; and
(x) in the event that the Existing Showboat Notes Tender
Offers/Consent Solicitations, the Showboat Change of Control Purchases
and/or the Existing Showboat Notes Defeasances are to be consummated by
Parent, then the Company may pay cash Dividends to Parent at the times,
and in the amounts, necessary to consummate same.
Nothing in this Section 9.03 shall prohibit the making of any Dividend within 45
days after the declaration thereof if such declaration was not prohibited by
this Section 9.03 at the time of such declaration.
9.04 Indebtedness. Parent will not, and will not permit any of its
Subsidiaries to, contract, create, incur, assume or suffer to exist any
Indebtedness, except:
(80)
(i) Indebtedness incurred pursuant to this Agreement and the other
Credit Documents;
(ii) (x) Indebtedness of Parent and its Subsidiaries permitted under
Section 9.04(ii) of the Existing Credit Agreement which remains
outstanding on the Second Restatement Effective Date and which is listed
on Part A of Schedule V, provided that no refinancings or renewals thereof
shall be permitted except as expressly set forth on Part A of Schedule V
and then, in any event, such refinancings and renewals shall not be in
excess of the respective amounts set forth on Part A of Schedule V and (y)
from and after the consummation of the Showboat Merger, Indebtedness of
Showboat and its Subsidiaries which remains outstanding on the Showboat
Merger Effective Date and which is listed on the supplement to Schedule V
delivered pursuant to Section 5B.12, provided that no refinancings or
renewals thereof shall be permitted except as expressly set forth on the
supplement to Schedule V and then, in any event, such refinancings and
renewals shall not be in excess of the respective amounts set forth on the
supplement to Schedule V;
(iii) accrued expenses and current trade accounts payable incurred
in the ordinary course;
(iv) unsecured Indebtedness of Parent or the Company under
performance bonds and guarantees in respect of the completion of the
construction of any property in accordance with the plans or standards as
agreed with the obligee of such guarantee so long as such bonds or
guarantees are incurred by Parent or the Company in the ordinary course of
the Gaming Property development business of the Company and its
Subsidiaries;
(v) Indebtedness of the Company or any of its Subsidiaries subject
to Liens permitted under Section 9.01(vii) or evidenced by Capitalized
Lease Obligations provided that such Capitalized Lease Obligations only
relate to equipment or machinery of the Company or any of its Subsidiaries
acquired after the First Restatement Effective Date;
(vi) Indebtedness of the Company or any of its Subsidiaries
consisting of (x) reimbursement obligations on letters of credit (other
than Letters of Credit), bankers
(81)
acceptances or similar instruments, provided that (i) the aggregate amount
thereof at any one time outstanding shall not exceed $5,000,000 and (ii)
any such Indebtedness in excess of $1,000,000 in the aggregate at any one
time outstanding shall be unsecured other than by documents of title and
(y) surety, performance or appeal bonds to the extent permitted by Section
9.01(x);
(vii) Indebtedness of Parent and the other Guarantors under the
364-Day Credit Agreement (but only to the extent that Parent or such other
Guarantors are Guarantors under, or in respect of, this Agreement) in an
aggregate principal amount not to exceed $150,000,000 (as reduced by any
mandatory reductions thereto as contemplated by Section 3.03(e) and (f))
at any one time outstanding;
(viii) Indebtedness of Parent, the Company or any Wholly-Owned
Subsidiary of the Company to Parent, the Company or any Subsidiary of the
Company (other than a Subsidiary that has incurred Non-Recourse
Indebtedness) or Indebtedness of any Subsidiary of Parent to the Parent,
the Company or any Wholly-Owned Subsidiary of the Company (other than a
Subsidiary that has incurred Non-Recourse Indebtedness), provided that in
the case of any Indebtedness of a Credit Party to a non-Credit Party, such
Indebtedness shall be subordinated to the Obligations on a basis
satisfactory to the Administrative Agent;
(ix) [intentionally omitted];
(x) Non-Recourse Indebtedness of Specified Subsidiaries to finance
the development of Gaming Properties (other than Specified Casino
Properties) so long as the aggregate principal amount of all such
Non-Recourse Indebtedness at any time outstanding does not exceed
$25,000,000, it being understood and agreed, however, that (i) a Specified
Subsidiary which has incurred outstanding Non-Recourse Indebtedness
pursuant to this Section 9.04(x) may guaranty the Non-Recourse
Indebtedness incurred pursuant to this Section 9.04(x) by other Specified
Subsidiaries, and (ii) such Non-Recourse Indebtedness may be guaranteed by
the Company and its other Subsidiaries to the extent provided in Section
9.04(xii);
(xi) Additional Unsecured Senior Debt of the Company and
Subordinated Debt of the Company (which, in each case,
(82)
may be guaranteed on a like basis by Parent) not otherwise outstanding on
October 15, 1996 so long as (i) (x) the covenants and events of default of
any such Subordinated Debt (including, but not limited to, subordination
provisions) are no more favorable to the holders of such Subordinated Debt
than those set forth in the 8-3/4% Senior Subordinated Notes Indenture
(provided that the indebtedness covenant contained in any such issue of
Subordinated Debt shall have sufficient availability (without relying on
any incurrence ratios) to justify the full amount of the Total Revolving
Loan Commitment and the Total 364-Day Revolving Loan Commitment, in each
case as such commitments are in effect at the time of the issuance of such
Subordinated Debt) and (y) the terms and conditions of any such
Subordinated Debt do not have any mandatory repayment, prepayment,
redemption, sinking fund, amortization or maturity prior to the date that
is one year after the Final Maturity Date (other than an option of the
holders to require the Company to repurchase such Subordinated Debt upon a
change of control thereunder), (ii) any such Additional Unsecured Senior
Debt (x) does not contain any financial maintenance or capital expenditure
covenants or defaults, (y) does not have any mandatory repayment,
prepayment, redemption, sinking fund, amortization or maturity prior to
the date that is one year after the Final Maturity Date (other than an
option of the holders thereof to require the Company to repurchase such
Additional Unsecured Senior Debt upon a change of control thereunder) and
(z) does not contain any covenants or events of default that are more
favorable to the holders of such Additional Unsecured Senior Debt than
those set forth in this Agreement (provided that the indebtedness covenant
contained in any such issue of Additional Unsecured Senior Debt shall have
sufficient availability (without relying on any incurrence ratios) to
justify the full amount of the Total Revolving Loan Commitment and the
Total 364-Day Revolving Loan Commitment, in each case as such commitments
are in effect at the time of the issuance of such Additional Unsecured
Senior Debt), and (iii) the Total Revolving Loan Commitment shall be
reduced as (and to the extent) required by Section 3.03(e);
(xii) Parent and its Subsidiaries may guarantee on an unsecured
basis obligations of Specified Subsidiaries, Joint Ventures and parties to
management agreements with the Company or its Subsidiaries or with such
Joint Ventures, in
(83)
each case with respect to the development of Gaming Property in an amount
not to exceed $150,000,000 at any one time outstanding for any individual
Gaming Property and $425,000,000 at any one time outstanding for all such
Gaming Properties, provided that (i) the aggregate limitation set forth
above shall be (A) increased (or decreased if Consolidated Net Income is
negative) on the first day of each fiscal year of the Company commencing
on January 1, 1996 by an amount equal to 50% (or 100% for each fiscal year
for which Consolidated Net Income is negative) of the Consolidated Net
Income for the fiscal year last ended, and (B) decreased from time to time
by the amount of Dividends paid by the Company to Parent pursuant to
Section 9.03(iv) on and after January 1, 1998 and prior to the date of
determination and (ii) the aggregate amount of guarantees permitted to be
outstanding by Parent and its Subsidiaries pursuant to this Section
9.04(xii) shall be reduced by the amount of Investments outstanding
pursuant to clause (i) of the proviso to Section 9.05;
(xiii) Parent and the Company may guarantee on an unsecured basis
any obligations of their respective Subsidiaries (except that neither
Parent nor the Company may provide any guaranties, direct or indirect, of
Non-Recourse Indebtedness, any Existing Showboat Notes or any Designated
Showboat Indebtedness, in each case pursuant to this clause (xiii));
(xiv) on and after the Jazz Casino Trigger Date, Parent and/or the
Company may enter into the Jazz Casino Completion Guaranties, the Jazz
Casino Minimum Payment Guaranty, the Jazz Casino Bank Guaranties, the Jazz
Casino Loan Guaranty, and the Jazz Casino Indemnity Arrangements and
perform their respective obligations thereunder; and
(xv) Indebtedness of Parent or any of its Subsidiaries not otherwise
permitted under this Section 9.04 in an aggregate principal amount not to
exceed $25,000,000 at any one time outstanding.
9.05 Advances, Investments and Loans. Parent will not, and will not
permit any of its Subsidiaries to, directly or indirectly, lend money or credit
or make advances to any Person, or purchase or acquire any stock, obligations or
securities of, or any other interest in, or make any capital contribution to,
any other Person (collectively, "Investments") other than
(84)
Investments in the ordinary course of business, Subsidiary Investments, other
Investments existing on the First Restatement Effective Date and Investments by
Showboat and its Subsidiaries existing on the Showboat Merger Effective Date,
provided that:
(i) Investments other than Subsidiary Investments shall not be made
with respect to the development or operation of Gaming Properties or in
connection with Gaming Businesses (and reasonable extensions thereof),
except that Investments in any Joint Venture relating to the Gaming
Business or Investments in parties to management agreements with the
Company or its Subsidiaries or such Joint Ventures for gaming projects may
be made so long as the aggregate amount thereof does not exceed
$150,000,000 at any one time outstanding (determined without regard to any
write-downs or write-offs of such Investments) for any individual Gaming
Business or gaming project or $425,000,000 at any one time outstanding
(determined without regard to any write-downs or write-offs of such
Investments) for all such Gaming Businesses and gaming projects, provided
that (x) the aggregate limitation set forth above shall be (A) increased
(or decreased if Consolidated Net Income is negative) on the first day of
each fiscal year of the Company commencing on January 1, 1996 by an amount
equal to 50% (or 100% for each fiscal year for which Consolidated Net
Income is negative) of the Consolidated Net Income for the fiscal year
last ended and (B) decreased from time to time by the amount of Dividends
paid by the Company to Parent pursuant to Section 9.03(iv) on and after
January 1, 1998, (y) the aggregate amount of such Investments permitted to
be made pursuant to this Section 9.05(i) shall be reduced by the aggregate
amount of guarantees outstanding pursuant to Section 9.04(xii) and (z)
Investments in, to or for the benefit of Xxxxxx'x Jazz and its
Subsidiaries and JCC Holding and its Subsidiaries shall not be permitted
to be made pursuant to this Section 9.05(i), provided that, after the Jazz
Casino Trigger Date, up to $25,000,000 of Investments in, to or for the
benefit of JCC Holding and its Subsidiaries may be made pursuant to this
Section 9.05(i) as well as any Investments made in JCC Holding as a result
of the exercise by the Company or a Subsidiary thereof of any warrants to
purchase shares of common stock of JCC Holding issued to the Company or a
Subsidiary thereof as part of the Xxxxxx'x Jazz Reorganization Plan;
(85)
(ii) Investments constituting Xxxxxx'x Jazz Investments shall be
permitted, provided that the aggregate amount of all such Investments
(other than in respect of the Xxxxxx'x Jazz Completion Obligation Loans,
the Xxxxxx'x Jazz Title Indemnity Arrangements and the Xxxxxx'x Jazz
Completion Guaranties), whether made prior to, on or after the Second
Restatement Effective Date, shall not exceed $180,000,000, provided
further, that (x) no part of the Investments permitted by this clause (ii)
may be used to make Investments in, to or for the benefit of, JCC Holding
and its Subsidiaries except to the extent that any then existing Xxxxxx'x
Jazz Investments are converted into equity of JCC Holding as part of the
Xxxxxx'x Jazz Reorganization Plan and (y) on and after the Jazz Casino
Trigger Date, Parent and its Subsidiaries may not make any additional
Xxxxxx'x Jazz Investments;
(iii) on and after the Jazz Casino Trigger Date, Parent and/or the
Company may enter into (x) the Jazz Casino Completion Guaranties, the Jazz
Casino Bank Guaranties, the Jazz Casino Loan Guaranty and the Jazz Casino
Indemnity Arrangements and perform their respective obligations
thereunder, and make (or be deemed to make) Jazz Casino Completion
Obligation Loans to Jazz Casino as a result of such performance and (y)
the Jazz Casino Minimum Payment Guaranty and perform their respective
obligations thereunder so long as their aggregate exposure under the Jazz
Casino Minimum Payment Guaranty (including the amount of any unreimbursed
guarantee drawings thereunder) does not exceed $100,000,000 (plus any
applicable interest and attorney's fees) at any time outstanding; and
(iv) on and after the Jazz Casino Trigger Date, Parent and its
Subsidiaries may make the Jazz Casino Loans to Jazz Casino and may make
additional Investments in, to or for the benefit of, JCC Holding and its
Subsidiaries in an aggregate amount not to exceed the remainder of (x)
$75,000,000 less (y) the aggregate amount of Xxxxxx'x Jazz Investments
made by Parent and/or its Subsidiaries in excess of $130,500,000.
Notwithstanding (x) the foregoing provisions of this Section 9.05, (A)
Investments in the ordinary course of business shall not include the purchases
of (i) Margin Stock and (ii) non-investment grade debt securities of any Person,
it being understood and agreed, however that in connection with any Investment
in a Joint Venture as permitted by Section 9.05(i) or
(86)
in connection with any Subsidiary Investment made in a Subsidiary acquired or
created after March 31, 1996, the Company may, subject to Section 7.08(b), make
an Investment consisting of Margin Stock or non-investment grade debt securities
of such Joint Venture or such Subsidiary, as the case may be, and (B) prior to
the consummation of the Existing Showboat Notes Tender Offers/Consent
Solicitations or in the event that same is not consummated unless the Existing
Showboat Notes Defeasances have become effective in accordance with the terms of
the Existing Showboat Note Indentures, Parent and its Subsidiaries (other than
Showboat and its Subsidiaries) may only make Investments in Showboat and its
Subsidiaries in an aggregate amount not to exceed $100,000,000 at any time
outstanding (determined without regard to any write-downs or write-offs thereof
plus that amount necessary to fund any Showboat Change of Control Purchases),
and with such Investments only to be made pursuant to, and to the extent
permitted by, Section 9.05(i), it being understood and agreed, however, to the
extent that the conditions set forth above in this clause (B) are satisfied
after any such Investments in Showboat and its Subsidiaries have been made, such
Investments shall be reclassified as Subsidiary Investments and shall not reduce
the amount of the Investments permitted to be made under Section 9.05(i), and
(y) the foregoing provisions of this Section 9.05 or Section 9.04, (A) in no
event shall the aggregate amount of Jazz Casino Loans made by Parent and its
Subsidiaries plus the amount of the Jazz Casino Loan Guaranty and the Jazz
Casino Bank Guarantees exceed $180,000,000 (with such amount to be reduced by
any permanent reductions in any Jazz Casino Loans theretofore made (whether or
not made by Parent or any of its Subsidiaries) and/or by any permanent
reductions in the Jazz Casino Loan Guaranty and/or Jazz Casino Bank Guarantees)
and (B) the terms and conditions of the Jazz Casino Surety Bond shall be in form
and substance satisfactory to the Administrative Agent.
9.06 Transactions with Affiliates. Parent will not, and will not
permit any of its Subsidiaries to, enter into any transaction or series of
related transactions, whether or not in the ordinary course of business, with
any Affiliate of Parent or any of its Subsidiaries, other than in the ordinary
course of business and on terms and conditions substantially as favorable to
Parent or such Subsidiary as would reasonably be obtained by Parent or such
Subsidiary at that time in a comparable arm's-length transaction with a Person
other than an Affiliate, except that (i) Dividends may be paid to the extent
provided in Section 9.03, (ii) loans may be made and other transactions may be
entered into by Parent and its Subsidiaries to the extent
(87)
permitted by Sections 9.04 and 9.05 and (iii) transactions among Parent, the
Company and any Subsidiary of the Company shall be permitted so long as any such
transactions are otherwise permitted by this Agreement and such transactions,
individually or in the aggregate, would not have a material adverse effect on
the business, operations, property, assets, liabilities, condition (financial or
otherwise) or prospects of Parent and its Subsidiaries taken as a whole.
9.07 Maximum Leverage Ratio. (a) Prior to the consummation of the
Showboat Merger, Parent will not permit the ratio of Consolidated Debt to
Consolidated Net Worth at any time during a period set forth below to be greater
than the ratio set forth opposite such period below:
Period Ratio
January 1, 1998 to and including
December 31, 1998 2.80:1.00
January 1, 1999 to and including
December 31, 1999 2.30:1.00
January 1, 2000 and thereafter 2.00:1.00
(b) On or after the consummation of the Showboat Merger, Parent will
not permit the ratio of Consolidated Debt at any time to Consolidated EBITDA for
the Test Period then most recently ended at any time during a period set forth
below to be greater than the ratio set forth opposite such period below:
Period Ratio
Showboat Merger Effective Date to
and including June 30, 1998 5.50:1.00
July 1, 1998 to and including
September 30, 1998 5.00:1.00
October 1, 1998 to and including
December 31, 1998 4.50:1.00
January 1, 1999 to and including
December 31, 1999 4.00:1.00
Thereafter 3.50:1.00
(88)
9.08 Consolidated Interest Coverage Ratio. (a) Prior to the
consummation of the Showboat Merger, Parent will not permit the Consolidated
Interest Coverage Ratio for any Test Period ended on the last day of a fiscal
quarter of Parent set forth below to be less than the ratio set forth opposite
such fiscal quarter below:
Fiscal Quarter Ratio
Fiscal quarters ending March 31,
1998, June 30, 1998, and
September 30, 1998 2.50:1.00
Fiscal quarters ending December 31,
1998 and thereafter 3.00:1.00
(b) On or after the consummation of the Showboat Merger, Parent will
not permit the Consolidated Interest Coverage Ratio for any Test Period ended on
the last day of a fiscal quarter of Parent set forth below to be less than the
ratio set forth opposite such fiscal quarter below:
Fiscal Quarter Ratio
Fiscal quarters ending June 30,
1998, September 30, 1998, and
December 31, 1998 2.00:1.00
Fiscal quarters ending March 31,
1999, June 30, 1999, September 30,
1999 and December 31, 1999 2.25:1.00
Fiscal quarters ending March 31,
2000 and thereafter 3.00:1.00
9.09 Minimum Consolidated Net Worth. Parent will not permit
Consolidated Net Worth at any time during a period set forth below to be less
than the amount set forth opposite such period below:
(89)
Period Amount
Year ending December 31, 1998 $650,000,000
Year ending December 31, 1999 $800,000,000
Year ending December 31, 2000 $1,000,000,000
9.10 Limitation on Payments and Modifications of Certain Other Debt;
Modifications of Certificate of Incorporation, Partnership Agreements, Limited
Liability Company Agreements and By-Laws; etc. Parent will not, and will not
permit any of its Subsidiaries to, (i) make (or give any notice in respect of)
any voluntary or optional payment or prepayment on or redemption or acquisition
for value of (including, without limitation, by way of depositing with the
trustee with respect thereto money or securities before due for the purpose of
paying when due) any Subordinated Debt, any Additional Unsecured Senior Debt,
any Designated Showboat Indebtedness or any Existing Showboat Notes, provided
that, from and after the consummation of the Showboat Merger, the Company or any
of its Subsidiaries and, in the case of the following clause (A), Parent, may
(A) repurchase Existing Showboat Notes (x) pursuant to the Existing Showboat
Notes Tender Offers/Consent Solicitations so long as such repurchases are
permitted by Section 8.12 and pursuant to the Showboat Change of Control Offers
to Purchase and (y) pursuant to the Existing Showboat Notes Defeasances so long
as all then outstanding Existing Showboat Notes are defeased and the cash and/or
the U.S. government obligations necessary to consummate the Existing Showboat
Notes Defeasances are deposited with the trustees for the Existing Showboat
Notes on or prior to the 90th day after the Showboat Merger Effective Date and
(B) repurchase the East Chicago Showboat Notes so long as (i) the Company or a
Wholly-Owned Subsidiary thereof owns at least 79% of the total equity interest
(as determined on a fully diluted basis) in the Showboat East Chicago Riverboat
Casino and (ii) such repurchases are made with the proceeds of Subordinated Debt
issued under Section 9.04(xi) or with proceeds of Loans, provided that, to the
extent proceeds of Loans are used, the sum of the Total Unutilized Revolving
Loan Commitment plus the total unutilized revolving loan commitment under the
364-Day Credit Agreement immediately after giving effect to such repurchase is
at least $100,000,000, (ii) make (or give any notice in respect of) any
mandatory payment or prepayment on or redemption or acquisition for value of
(including, without limitation, by way
(90)
of depositing with the trustee with respect thereto money or securities before
due for the purpose of when due) any Subordinated Debt, any Additional Unsecured
Senior Debt, any Existing Showboat Notes or any Designated Showboat Indebtedness
as a result of any sale of assets by Parent or any of its Subsidiaries or any
"change of control" provision other than pursuant to the Showboat Change of
Control Offers to Purchase, (iii) amend or modify, or permit the amendment or
modification of, any provision of (x) any Subordinated Debt or any Additional
Unsecured Senior Debt or of any agreement (including, without limitation, any
purchase agreement, indenture or loan agreement) relating thereto or (y) any
Existing Showboat Notes or any Designated Showboat Indebtedness other than
pursuant to the Existing Showboat Notes Tender Offers/Consent Solicitations and
such amendments or modifications that would make the terms of such Indebtedness
less restrictive on Showboat and its Subsidiaries and would not otherwise be
adverse to the interests of the Banks in any material respects, (iv) amend or
modify, or permit the amendment or modification of, any financial or business
covenants and/or defaults of the 364-Day Credit Agreement which would have the
effect of making the same more stringent or restrictive as applied to Parent or
any of its Subsidiaries in each case unless parallel changes are made to both
this Agreement and the 364-Day Credit Agreement, (v) amend, modify or change its
certificate of incorporation (including, without limitation, by the filing or
modification of any certificate of designation), partnership agreement, limited
liability company agreement or by-laws except such modifications which would not
have a material adverse effect on Parent and its Subsidiaries taken as a whole
or an adverse effect on the rights and remedies of the Administrative Agent or
the Banks under any of the Credit Documents or (vi) after the commencement of
the Existing Showboat Notes Tender Offers/Consent Solicitations amend or modify,
or permit the amendment or modification of, any of the terms of the Existing
Showboat Notes Tender Offers/Consent Solicitations in a way that would be
material to Parent and its Subsidiaries taken as a whole. Notwithstanding
anything to the contrary contained in clause (i) of this Section 9.10, the
Company or, in the case of Indebtedness of Showboat and its Subsidiaries,
Showboat, may prepay, repurchase, redeem, defease or otherwise retire
Subordinated Debt, Additional Unsecured Senior Debt or such Indebtedness of
Showboat and its Subsidiaries if no Default or Event of Default then exists or
would result therefrom to the extent necessary in the good faith judgment of the
Board of Directors of Parent or the Company to prevent the filing of a
disciplinary action by any Gaming Authority or to
(91)
prevent the loss or secure the reinstatement of any license or franchise from
any governmental agency (including the Gaming Authorities) held by Parent, the
Company or any Subsidiary of Parent or the Company which license or franchise is
conditioned upon some or all of the holders of such Subordinated Debt, such
Additional Unsecured Senior Debt or such Indebtedness of Showboat and its
Subsidiaries possessing prescribed qualifications, if such loss or failure to
reinstate would have a material adverse effect on the business, operations,
property, assets, liabilities, conditions (financial or otherwise) or prospects
of Parent and its Subsidiaries taken as a whole.
9.11 Limitation on Certain Restrictions on Subsidiaries. Parent will
not, and will not permit any of its Subsidiaries to, directly or indirectly,
create or otherwise cause or suffer to exist or become effective any encumbrance
or restriction on the ability of any Subsidiary of Parent to (a) pay dividends
or make any other distributions on its capital stock or any other interest or
participation in its profits owned by Parent or any Subsidiary of Parent, or pay
any Indebtedness owed to Parent or a Subsidiary of Parent, (b) make loans or
advances to Parent or any Subsidiary of Parent or (c) transfer any of its
properties or assets to Parent or any Subsidiary of Parent, except for such
encumbrances or restrictions existing under or by reason of (i) regulatory
actions or applicable law, (ii) this Agreement, the other Credit Documents and
the 364-Day Credit Agreement, (iii) customary provisions restricting subletting
or assignment of any lease governing a leasehold interest of Parent or a
Subsidiary of Parent, (iv) customary provisions restricting the assignment or
transfer of any licensing agreement, franchise agreement, management contract,
joint venture agreement or any similar types of agreement entered into by Parent
or a Subsidiary of Parent in the ordinary course of business, (v) customary
restrictions imposed in connection with any asset sale permitted by this
Agreement for the benefit of the purchaser or owner of such asset, (vi)
restrictions existing in any document executed in connection with Non-Recourse
Indebtedness permitted under Section 9.04(x) so long as such restrictions only
apply to the property serving as security for such Non-Recourse Indebtedness,
(vii) customary restrictions on the transfer of assets used to secure
Indebtedness permitted to be incurred (and so long as the Liens are permitted to
exist) by this Agreement, (viii) restrictions set forth in any Indebtedness of
Showboat and its Subsidiaries as such restrictions are in effect on the Showboat
Merger Effective Date and (ix) restrictions imposed in connection
(92)
with any new gaming Subsidiaries of the Company which are not Material
Subsidiaries.
9.12 Limitation on Issuance of Capital Stock. Parent will not permit
any of its Material Subsidiaries to issue any capital stock (including by way of
sales of treasury stock) or any options or warrants to purchase, or securities
convertible into, capital stock, except (i) for transfers and replacements of
then outstanding shares of capital stock, (ii) for stock splits, stock dividends
and similar issuances which do not decrease the percentage ownership of Parent
or any of its Subsidiaries in any class of the capital stock of such Subsidiary
and (iii) to qualify directors to the extent required by applicable law.
9.13 Business. Parent will not, and will not permit any of its
Subsidiaries to, engage (directly or indirectly) in any business other than the
business in which Parent or such Subsidiary is engaged on the Second Restatement
Effective Date and any other reasonably related businesses.
9.14 Ownership of Subsidiaries. Parent will maintain its direct 100%
ownership interest in the Company, and, except in the case of the sale of all of
the capital stock or other equity interests of a Subsidiary pursuant to Section
9.02(a), the Company will maintain the same direct or indirect 100% ownership
interest in each of the Material Subsidiaries, provided that if the Company owns
(directly or indirectly) less than 100% of the capital stock or other equity
interest of any Material Subsidiary at the time such Material Subsidiary becomes
a Material Subsidiary, then the Company shall maintain at least such direct or
indirect ownership interest in such Material Subsidiary so long as it remains a
Material Subsidiary.
9.15 Special Purpose Corporation. Parent will engage in no material
business activities other than the ownership of the capital stock of the
Company.
SECTION 10. Events of Default. Upon the occurrence of any of the
following specified events (each an "Event of Default"):
10.01 Payments. Any Borrower shall (i) default in the payment when
due of any principal of any Loan or any Note or (ii) default, and such default
shall continue unremedied for three or more days, in the payment when due of any
Unpaid Drawings or interest on any Loan or Note or any regularly accruing Fees
or
(93)
(iii) default, and such default shall continue unremedied for five or more days
after written notice to the Company by the Administrative Agent or any Bank, in
the payment when due of any other Fees or amounts owing hereunder or under any
other Credit Document, provided, however, that such notice shall not be required
to be given if a Bankruptcy Event shall have occurred and be continuing; or
10.02 Representations, etc. Any representation, warranty or
statement made or deemed made by any Credit Party herein or in any other Credit
Document or in any certificate delivered pursuant hereto or thereto shall prove
to be untrue in any material respect on the date as of which made or deemed
made; or
10.03 Covenants. Parent or any Borrower shall (i) default in the due
performance or observance by it of any term, covenant or agreement contained in
Section 8.01(e)(i), 8.08 or 9 or (ii) default in the due performance or
observance by it of any other term, covenant or agreement contained in this
Agreement and such default shall continue unremedied for a period of 30 days
after written notice to the Company by the Administrative Agent or any Bank; or
10.04 Default Under Other Agreements. (i) Parent or any Subsidiary
of Parent shall (x) default in any payment of any Indebtedness (other than the
Loans and the Notes) beyond the period of cure or grace, if any, provided in the
instrument or agreement under which such Indebtedness was created or (y) default
in the observance or performance of any agreement or condition relating to any
Indebtedness (other than the Loans and the Notes) or contained in any instrument
or agreement evidencing, securing or relating thereto, or any other event shall
occur or condition exist, the effect of which default or other event or
condition is to cause, or to permit the holder or holders of such Indebtedness
(or a trustee or agent on behalf of such holder or holders) to cause (determined
without regard to whether any notice is required), any such Indebtedness to
become due prior to its stated maturity, or (ii) any Indebtedness (other than
the Loans and the Notes) of Parent or any Subsidiary of Parent shall be declared
to be due and payable, or required to be prepaid other than by a regularly
scheduled required prepayment, prior to the stated maturity thereof, provided
that it shall not be a Default or an Event of Default under this Section 10.04
unless the aggregate principal amount of all Indebtedness as
(94)
described in preceding clauses (i) and (ii) is at least $25,000,000; or
10.05 Bankruptcy, etc. Parent or any Subsidiary of Parent shall
commence a voluntary case concerning itself under Title 11 of the United States
Code entitled "Bankruptcy," as now or hereafter in effect, or any successor
thereto (the "Bankruptcy Code"); or an involuntary case is commenced against
Parent or any Subsidiary of Parent, and the petition is not controverted within
10 days, or is not dismissed within 60 days, after commencement of the case; or
a custodian (as defined in the Bankruptcy Code) is appointed for, or takes
charge of, all or substantially all of the property of Parent or any Subsidiary
of Parent, or Parent or any Subsidiary of Parent commences any other proceeding
under any reorganization, arrangement, adjustment of debt, relief of debtors,
dissolution, insolvency or liquidation or similar law of any jurisdiction
whether now or hereafter in effect relating to Parent or any Subsidiary of
Parent, or there is commenced against Parent or any Subsidiary of Parent any
such proceeding which remains undismissed for a period of 60 days, or Parent or
any Subsidiary of Parent is adjudicated insolvent or bankrupt; or any order of
relief or other order approving any such case or proceeding is entered; or
Parent or any Subsidiary of Parent suffers any appointment of any custodian or
the like for it or any substantial part of its property to continue undischarged
or unstayed for a period of 60 days; or Parent or any Subsidiary of Parent makes
a general assignment for the benefit of creditors; or any corporate action is
taken by Parent or any Subsidiary of Parent for the purpose of effecting any of
the foregoing; or
10.06 ERISA. (a) Any Plan shall fail to satisfy the minimum funding
standard required for any plan year or part thereof or a waiver of such standard
or extension of any amortization period is sought or granted under Section 412
of the Code, any Plan shall have had a trustee appointed by the PBGC to
administer such Plan, any Plan is, shall have been or is likely to be terminated
or to be the subject of termination proceedings under ERISA, any Plan shall have
an Unfunded Current Liability, Parent or any Subsidiary of Parent or any ERISA
Affiliate has incurred or is likely to incur a liability to or on account of a
Plan under Section 409, 502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201, 4204
or 4212 of ERISA or Section 401(a)(29), 4971 or 4975 of the Code, or Parent or
any Subsidiary of Parent has incurred or is likely to incur liabilities pursuant
to one or more employee welfare benefit plans (as defined in Section 3(1) of
ERISA) which provide benefits to retired employees (other than
(95)
as required by Section 601 of ERISA) or employee pension benefit plans (as
defined in Section 3(2) of ERISA); (b) there shall result from any such event or
events the imposition of a lien, the granting of a security interest, or a
liability or a material risk of incurring a liability; and (c) which lien,
security interest or liability, in the opinion of the Required Banks, could
reasonably be expected to have a material adverse effect upon the business,
operations, property, assets, liabilities, condition (financial or otherwise) or
prospects of Parent and its Subsidiaries taken as a whole; or
10.07 Guarantees. Any Guaranty or any provision thereof shall cease
to be a legal, valid and binding obligation enforceable against the obligor
thereof, or any Guarantor or any Person acting by or on behalf of any Guarantor
shall deny or disaffirm such Guarantor's obligations under its Guaranty, or any
Guarantor shall default in its due performance of any term, covenant or
agreement on its part to be performed or observed pursuant to its Guaranty; or
10.08 Judgments. One or more judgments or decrees shall be entered
against Parent or any Subsidiary of Parent involving in the aggregate for Parent
and its Subsidiaries a liability (not paid or fully covered by a reputable
insurance company) and such judgments and decrees either shall be final and
non-appealable or shall not be vacated, discharged or stayed or bonded pending
appeal for any period of 30 consecutive days, and the aggregate amount of all
such judgments exceeds $10,000,000; or
10.09 Gaming Authority. Any Gaming Authority having jurisdiction
over any Specified Casino Property shall determine that Parent or any of its
Subsidiaries that is required to be qualified under the Gaming Regulations does
not qualify, or that the qualification or license of any of them with respect to
any Specified Casino Property should be revoked, not renewed or suspended for
more than 30 days, or any such Gaming Authority shall have appointed a
conservator, supervisor or trustee to oversee any of the operations of any of
them; or
10.10 Change of Control. A Change of Control shall occur; or
10.11 Xxxxxxxx/Las Vegas Stock Restrictions. (x) At any time on or
prior to the Xxxxxxxx/Las Vegas Stock Restrictions Approval Date, any Lien shall
be created with respect to, or any
(96)
disposition shall occur with respect to, any capital stock of Xxxxxx'x Xxxxxxxx
or Xxxxxx'x Las Vegas, Inc., if such Lien or disposition, as the case may be,
would not have been permitted if the Xxxxxxxx/Las Vegas Stock Restrictions
contained in this Agreement were then fully effective in accordance with the
terms hereof or (y) the Xxxxxxxx/Las Vegas Stock Restrictions Requisite Gaming
Approvals shall not have been obtained on or before July 31, 1998;
then, and in any such event, and at any time thereafter, if any Event of Default
shall then be continuing, the Administrative Agent, upon the written request of
the Required Banks, shall by written notice to the Borrowers, take any or all of
the following actions, without prejudice to the rights of the Administrative
Agent, any Bank or the holder of any Note to enforce its claims against any
Credit Party (provided that, if an Event of Default specified in Section 10.05
shall occur with respect to Parent or any Borrower, the result which would occur
upon the giving of written notice by the Administrative Agent to the Borrowers
as specified in clauses (i) and (ii) below shall occur automatically without the
giving of any such notice): (i) declare the Total Revolving Loan Commitment
terminated, whereupon the Revolving Loan Commitment of each Bank shall forthwith
terminate immediately and any Commitment Commission shall forthwith become due
and payable without any other notice of any kind; (ii) declare the principal of
and any accrued interest in respect of all Loans and the Notes and all
Obligations owing hereunder and thereunder to be, whereupon the same shall
become, forthwith due and payable without presentment, demand, protest or other
notice of any kind, all of which are hereby waived by each Credit Party; (iii)
terminate any Letter of Credit, which may be terminated, in accordance with its
terms; and (iv) direct the Borrowers to pay (and the Borrowers jointly and
severally agree that upon receipt of such notice, or upon the occurrence of an
Event of Default specified in Section 10.05 with respect to any Borrower, they
will pay) to the Administrative Agent at the Payment Office such additional
amount of cash, to be held as security by the Administrative Agent, as is equal
to the aggregate Stated Amount of all Letters of Credit issued for the account
of the Borrowers and then outstanding.
SECTION 11. Definitions and Accounting Terms.
11.01 Defined Terms. As used in this Agreement, the following terms
shall have the following meanings (such meanings
(97)
to be equally applicable to both the singular and plural forms of the terms
defined):
"Additional Unsecured Senior Debt" shall mean each issue of
unsecured senior Indebtedness issued by the Company pursuant to Section 9.04(xi)
so long as any such issue of unsecured senior Indebtedness is issued pursuant to
an effective registration statement under the Securities Act or pursuant to Rule
144A thereunder.
"Adjusted Certificate of Deposit Rate" shall mean, on any day, the
sum (rounded to the nearest 1/100 of 1%) of (1) the rate obtained by dividing
(x) the most recent weekly average dealer offering rate for negotiable
certificates of deposit with a three-month maturity in the secondary market as
published in the most recent Federal Reserve System publication entitled "Select
Interest Rates," published weekly on Form H.15 as of the date hereof, or if such
publication or a substitute containing the foregoing rate information shall not
be published by the Federal Reserve System for any week, the weekly average
offering rate determined by the Administrative Agent on the basis of quotations
for such certificates received by it from three certificate of deposit dealers
in New York of recognized standing or, if such quotations are unavailable, then
on the basis of other sources reasonably selected by the Administrative Agent,
by (y) a percentage equal to 100% minus the stated maximum rate of all reserve
requirements as specified in Regulation D applicable on such day to a
three-month certificate of deposit of a member bank of the Federal Reserve
System in excess of $100,000 (including, without limitation, any marginal,
emergency, supplemental, special or other reserves), plus (2) the then daily net
annual assessment rate as estimated by the Administrative Agent for determining
the current annual assessment payable by the Administrative Agent to the Federal
Deposit Insurance Corporation for insuring three-month certificates of deposit.
"Adjusted Percentage" shall mean (x) at a time when no Bank Default
exists, for each Bank such Bank's Percentage and (y) at a time when a Bank
Default exists (i) for each Bank that is a Defaulting Bank, zero and (ii) for
each Bank that is a Non-Defaulting Bank, the percentage determined by dividing
such Bank's Revolving Loan Commitment at such time by the Adjusted Total
Revolving Loan Commitment at such time, it being understood that all references
herein to Revolving Loan Commitments and the Adjusted Total Revolving Loan
Commitment at a time when the Total Revolving Loan Commitment or Adjusted Total
Revolving Loan
(98)
Commitment, as the case may be, has been terminated shall be references to the
Revolving Loan Commitments or Adjusted Total Revolving Loan Commitment, as the
case may be, in effect immediately prior to such termination, provided that (A)
no Bank's Adjusted Percentage shall change upon the occurrence of a Bank Default
from that in effect immediately prior to such Bank Default if after giving
effect to such Bank Default, and any repayment of Revolving Loans and Swingline
Loans at such time pursuant to Section 4.02(a) or otherwise, the sum of (i) the
aggregate outstanding principal amount of Revolving Loans of all Non-Defaulting
Banks plus (ii) the aggregate outstanding principal amount of Swingline Loans
plus (iii) the Letter of Credit Outstandings, exceed the Adjusted Total
Revolving Loan Commitment; (B) the changes to the Adjusted Percentage that would
have become effective upon the occurrence of a Bank Default but that did not
become effective as a result of the preceding clause (A) shall become effective
on the first date after the occurrence of the relevant Bank Default on which the
sum of (i) the aggregate outstanding principal amount of the Revolving Loans of
all Non-Defaulting Banks plus (ii) the aggregate outstanding principal amount of
the Swingline Loans plus (iii) the Letter of Credit Outstandings is equal to or
less than the Adjusted Total Revolving Loan Commitment; and (C) if (i) a
Non-Defaulting Bank's Adjusted Percentage is changed pursuant to the preceding
clause (B) and (ii) any repayment of such Bank's Revolving Loans, or of Unpaid
Drawings with respect to Letters of Credit or of Swingline Loans, that were made
during the period commencing after the date of the relevant Bank Default and
ending on the date of such change to its Adjusted Percentage must be returned to
any Borrower as a preferential or similar payment in any bankruptcy or similar
proceeding of such Borrower, then the change to such Non-Defaulting Bank's
Adjusted Percentage effected pursuant to said clause (B) shall be reduced to
that positive change, if any, as would have been made to its Adjusted Percentage
if (x) such repayments had not been made and (y) the maximum change to its
Adjusted Percentage would have resulted in the sum of the outstanding principal
of Revolving Loans made by such Bank plus such Bank's new Adjusted Percentage of
the outstanding principal amount of Swingline Loans and of Letter of Credit
Outstandings equaling such Bank's Revolving Loan Commitment at such time.
"Adjusted Revolving Loan Commitment" for each Non-Defaulting Bank
shall mean at any time the product of such Bank's Adjusted Percentage and the
Adjusted Total Revolving Loan Commitment.
(99)
"Adjusted Total Revolving Loan Commitment" shall mean at any time
the Total Revolving Loan Commitment less the aggregate Revolving Loan
Commitments of all Defaulting Banks.
"Administrative Agent" shall mean Bankers Trust Company, in its
capacity as Administrative Agent for the Banks hereunder, and shall include any
successor to the Administrative Agent appointed pursuant to Section 12.09.
"Affiliate" shall mean, with respect to any Person, any other Person
(i) directly or indirectly controlling (including, but not limited to, all
directors and officers of such Person), controlled by, or under direct or
indirect common control with, such Person or (ii) that directly or indirectly
owns more than 5% of the voting securities or capital stock of such Person. A
Person shall be deemed to control another Person if such Person possesses,
directly or indirectly, the power to direct or cause the direction of the
management and policies of such other Person, whether through the ownership of
voting securities, by contract or otherwise.
"Agreement" shall mean this Credit Agreement, as modified,
supplemented or amended from time to time.
"Applicable Commitment Commission Percentage" shall mean 1/4 of 1%
less the then applicable Reduction Discount.
"Applicable Margin" shall mean 1-1/4% less the then applicable
Reduction Discount.
"Assignment and Assumption Agreement" shall mean the Assignment and
Assumption Agreement substantially in the form of Exhibit I (appropriately
completed).
"Atlantic City Showboat Land Debt" shall mean the $100,000,000
aggregate face principal amount of Showboat Land, LLC's 7.09% Promissory Note
due February 1, 2028.
"Bank" shall mean each financial institution listed on Schedule I,
as well as any institution which becomes a "Bank" hereunder pursuant to Section
1.13 or 13.04(b) or (c), provided that in any event each such institution shall
be a Qualified Person.
"Bank Default" shall mean (i) the refusal (which has not been
retracted) of a Bank to make available its portion of
(100)
any Borrowing (including any Mandatory Borrowing) or to fund its portion of any
unreimbursed payment under Section 2.04(c) or (ii) a Bank having notified in
writing the Borrowers and/or the Administrative Agent that it does not intend to
comply with its obligations under Section 1.01(a), 1.01(b) or 1.01(c) or Section
2, in the case of either clause (i) or (ii) above as a result of any takeover of
such Bank by any regulatory authority or agency.
"Bankruptcy Code" shall have the meaning provided in Section 10.05.
"Bankruptcy Event" shall mean any Default or Event of Default of the
type described in Section 10.05.
"Base Rate" at any time shall mean the highest of (i) 1/2 of 1% in
excess of the Adjusted Certificate of Deposit Rate, (ii) the Prime Lending Rate
and (iii) 1/2 of 1% in excess of the overnight Federal Funds Rate.
"Base Rate Loan" shall mean (i) each Swingline Loan and (ii) any
Revolving Loan designated or deemed designated as such by a Borrower at the time
of the incurrence thereof or conversion thereto.
"Borrower" shall have the meaning provided in the first paragraph of
this Agreement.
"Borrowing" shall mean and include (i) the borrowing of Swingline
Loans from BTCo on a given date and (ii) the borrowing of one Type of Revolving
Loan from all the Banks on a given date (or resulting from a conversion or
conversions on such date) having in the case of Eurodollar Loans the same
Interest Period, provided that Base Rate Loans incurred pursuant to Section
1.10(b) shall be considered part of the related Borrowing of Eurodollar Loans.
"BTCo" shall mean Bankers Trust Company in its individual capacity.
"Business Day" shall mean (i) for all purposes other than as covered
by clause (ii) below, any day except Saturday, Sunday and any day which shall be
in New York City a legal holiday or a day on which banking institutions are
authorized or required by law or other government action to close and (ii) with
respect to all notices and determinations in connection with, and payments of
principal and interest on, Eurodollar Loans, any day
(101)
which is a Business Day described in clause (i) above and which is also a day
for trading by and between banks in the New York interbank Eurodollar market.
"Capitalized Lease Obligations" of any Person shall mean all rental
obligations which, under generally accepted accounting principles, are or will
be required to be capitalized on the books of such Person, in each case taken at
the amount thereof accounted for as indebtedness in accordance with such
principles.
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as the same may be amended from time to
time, 42 U.S.C. ss. 9601 et seq.
"Change of Control" shall mean (i) Parent shall cease to own 100% of
the capital stock of the Company, (ii) the direct or indirect acquisition by any
Person or group (as such term is defined in Section 13(d)(3) of the Securities
Exchange Act) of beneficial ownership (as such term is defined in Rule 13D-3
promulgated under the Securities Exchange Act) of 25% or more of the outstanding
shares of common stock of Parent, (iii) the Board of Directors of Parent shall
not consist of a majority of Continuing Directors or (iv) any "change of
control" or similar event shall occur under any issue of Indebtedness of Parent
or any of its Subsidiaries in an aggregate principal amount which exceeds (or
upon utilization of any unused commitments may exceed) $25,000,000 (other than
under the Existing Showboat Notes as a result of the Showboat Merger).
"Cherokee Casino" shall mean the casino constructed, developed and
operated by the Eastern Band of Cherokee Indians in Cherokee, North Carolina,
and the manager of which is Parent or a Wholly-Owned Subsidiary of Parent.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time, and the regulations promulgated and the rulings issued thereunder.
Section references to the Code are to the Code, as in effect on the date of this
Agreement, and to any subsequent provision of the Code, amendatory thereof,
supplemental thereto or substituted therefor.
"Collateral" shall have the meaning provided in the Existing Credit
Agreement, it being acknowledged that the Collateral was released pursuant to
the Existing Credit Agreement.
(102)
"Collateral Agent" shall have the meaning provided in the Existing
Credit Agreement.
"Collateral Documents" shall have the meaning provided in the
Existing Credit Agreement.
"Commitment Commission" shall have the meaning provided in Section
3.01(a).
"Company" shall have the meaning provided in the first paragraph of
this Agreement.
"Company/Sub Guaranty" shall have the meaning provided in Section
5A.05.
"Confidential Information Memorandum" shall mean the Confidential
Information Memorandum dated February 1998 delivered by the Administrative Agent
to the Banks in connection with the Transaction.
"Consolidated Debt" shall mean, at any time, the sum of the
aggregate outstanding principal amount of all Indebtedness (including, without
limitation, guarantees, Non-Recourse Indebtedness and the principal component of
Capitalized Lease Obligations) of Parent and its Consolidated Subsidiaries.
"Consolidated EBIT" shall mean, for any period, the Consolidated Net
Income plus Consolidated Interest Expense (to the extent same was deducted in
determining Consolidated Net Income) and provision for taxes, and without giving
effect to any extraordinary gains or losses or gains or losses from sales of
assets other than inventory sold in the ordinary course of business.
"Consolidated EBITDA" shall mean, for any period, Consolidated EBIT
for such period, adjusted by (x) adding thereto (i) the amount of all
amortization of intangibles and depreciation and the amount of all other
non-cash expenses in each case that were deducted in arriving at Consolidated
EBIT for such period and (ii) the amount of all pre-opening expenses that were
recorded during such period with respect to the opening of new Gaming Properties
to the extent that such expenses were deducted in arriving at Consolidated EBIT
for such period and (y) subtracting therefrom any cash expenses, cash charges or
cash payments arising from any non-cash expenses that were deducted in arriving
at Consolidated EBIT in a previous period.
(103)
"Consolidated Interest Coverage Ratio" for any period shall mean the
ratio of Consolidated EBIT to Consolidated Interest Expense.
"Consolidated Interest Expense" shall mean, for any period, the
total consolidated interest expense of Parent and its Consolidated Subsidiaries
(without deduction for minority interests in Subsidiaries) for such period
(calculated without regard to any limitations on the payment thereof) plus,
without duplication, (i) that portion of Capitalized Lease Obligations of Parent
and its Consolidated Subsidiaries representing the interest factor for such
period and (ii) the Company's or such Consolidated Subsidiary's share of
interest expense of any Joint Venture.
"Consolidated Net Income" shall mean, for any period, net income of
Parent and its Consolidated Subsidiaries (without deduction for minority
interests in Subsidiaries) for such period.
"Consolidated Net Worth" shall mean, at any time, the net worth of
Parent and its Consolidated Subsidiaries determined on a consolidated basis.
"Consolidated Subsidiaries" shall mean, as to any Person, all
Subsidiaries of such Person which are consolidated with such Person for
financial reporting purposes in accordance with generally accepted accounting
principles in the United States.
"Contingent Obligation" shall mean, as to any Person, any
obligation, contingent or otherwise, of such Person directly or indirectly
guaranteeing (including, without limitation, as a result of such Person being a
general partner of the other Person, unless the underlying obligation is
expressly made non-recourse as to such general partner) any Indebtedness or
other obligation of any other Person and, without limiting the generality of the
foregoing, any obligation, direct or indirect, contingent or otherwise, of such
Person (i) to purchase or pay (or advance or supply funds for the purchase or
payment of) such Indebtedness or other obligation (whether arising by virtue of
partnership arrangements, by agreement to keepwell, to purchase assets, goods,
securities or services, to take-or-pay or to maintain financial statement
conditions or otherwise) or (ii) entered into for the purpose of assuring in any
other manner the obligee of such Indebtedness or other obligation of the payment
(104)
thereof or to protect the obligee against loss in respect thereof (in whole or
in part), provided that the term Indebtedness shall not include endorsements for
collection or deposit in the ordinary course of business.
"Continuing Directors" shall mean the directors of Parent on the
Second Restatement Effective Date and each other director, if such other
director's nomination for election to the Board of Directors of Parent is
recommended by a majority of the then Continuing Directors.
"Credit Documents" shall mean this Agreement, each Note, each Letter
of Credit and each Guaranty.
"Credit Event" shall mean the making of any Loan, the conversion of
any Existing Revolving Loan or Existing Swingline Loan on the Second Restatement
Effective Date or the issuance of any Letter of Credit.
"Credit Party" shall mean Parent, the Company and each other
Subsidiary of Parent that is a Subsidiary Borrower or a Guarantor.
"Default" shall mean any event, act or condition which with notice
or lapse of time, or both, would constitute an Event of Default.
"Defaulting Bank" shall mean any Bank with respect to which a Bank
Default is in effect.
"Defaulting Participant" shall have the meaning provided in Section
2.04(g).
"Designated Asset Sale" shall mean any asset sale pursuant to
Section 9.02(a) (other than pursuant to clause (iii) thereof), provided that an
asset sale pursuant to Section 9.02(a)(i) shall only be a Designated Asset Sale
to the extent set forth in Section 9.02(a)(i)(iv).
"Designated Bank" shall have the meaning provided in Section 13.14.
"Designated Showboat Indebtedness" shall mean the East Chicago
Showboat Notes and the Atlantic City Showboat Land Debt.
(105)
"Designating Bank" shall have the meaning provided in Section 13.14.
"Disqualified Stock" shall mean any capital stock which, by its
terms (or by the terms of any security into which it is convertible or for which
it is exchangeable), or upon the happening of any event, matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or
redeemable at the option of the holder thereof, in whole or in part on, or prior
to, or is exchangeable for debt securities of Parent or its Subsidiaries prior
to, the first anniversary of the Final Maturity Date.
"Dividend" with respect to any Person shall mean that such Person
has declared or paid a dividend or returned any equity capital to its
stockholders or authorized or made any other distribution, payment or delivery
of property (other than common stock of such Person) or cash to its stockholders
as such, or redeemed, retired, purchased or otherwise acquired, directly or
indirectly, for a consideration any shares of any class of its capital stock
outstanding on or after the Second Restatement Effective Date (or any options or
warrants issued by such Person with respect to its capital stock), or set aside
any funds for any of the foregoing purposes, or shall have permitted any of its
Subsidiaries to purchase or otherwise acquire for a consideration any shares of
any class of the capital stock of such Person outstanding on or after the Second
Restatement Effective Date (or any options or warrants issued by such Person
with respect to its capital stock). Without limiting the foregoing, "Dividends"
with respect to any Person shall also include all payments made or required to
be made by such Person with respect to any stock appreciation rights, plans,
equity incentive or achievement plans or any similar plans or setting aside of
any funds for the foregoing purposes.
"Documents" shall mean (i) the Credit Documents, (ii) the 8-3/4%
Senior Subordinated Note Redemption Documents, (iii) the Showboat Merger
Documents and (iv) the Existing Showboat Notes Tender Offers/Consent
Solicitations Documents.
"Dollars" and the sign "$" shall each mean freely transferable
lawful money of the United States.
"Drawing" shall have the meaning provided in Section 2.05(b).
(106)
"East Chicago Showboat Notes" shall mean the $140,000,000 aggregate
face principal amount of Showboat Marina Casino Partnership's and Showboat
Marina Finance Corporation's Series A and Series B 13-1/2% First Mortgage Notes
due 2003.
"8-3/4% Senior Subordinated Notes" shall mean the Company's 8-3/4%
Senior Subordinated Notes due 2000.
"8-3/4% Senior Subordinated Notes Indenture" shall mean the
indenture relating to the 8-3/4% Senior Subordinated Notes.
"8-3/4% Senior Subordinated Notes Redemption" shall mean the
redemption by the Company of all of its outstanding 8-3/4% Senior Subordinated
Notes pursuant to the 8-3/4% Senior Subordinated Notes Redemption Documents and
the 8-3/4% Senior Subordinated Notes Indenture.
"8-3/4% Senior Subordinated Notes Redemption Documents" shall mean
all of the documents entered into by the Company in connection with the 8-3/4%
Senior Subordinated Notes Redemption.
"Election to Become a Subsidiary Borrower" shall mean an Election to
Become a Subsidiary Borrower substantially in the form of Exhibit H, which shall
be executed by each Subsidiary of the Company which becomes a Subsidiary
Borrower after the date hereof.
"End Date" shall have the meaning provided in the definition of
Reduction Discount.
"Environmental Claims" shall mean any and all administrative,
regulatory or judicial actions, suits, demands, demand letters, directives,
claims, liens, notices of noncompliance or violation, investigations of which
Parent, any Borrower or Showboat has received notice or proceedings relating in
any way to any Environmental Law or any permit issued, or any approval given,
under any such Environmental Law (hereafter, "Claims"), including, without
limitation, (a) any and all Claims by governmental or regulatory authorities for
enforcement, cleanup, removal, response, remedial or other actions or damages
pursuant to any applicable Environmental Law, and (b) any and all Claims by any
third party seeking damages, contribution, indemnification, cost recovery,
compensation or injunctive relief in connection with alleged injury or threat of
injury to health, safety or the environment due to the presence of Hazardous
Materials.
(107)
"Environmental Law" shall mean any Federal, state, foreign or local
statute, law, rule, regulation, ordinance, code, guideline, written policy and
rule of common law now or hereafter in effect and in each case as amended,
including any judicial or administrative order, consent decree or judgment,
relating to the environment, employee health and safety or Hazardous Materials,
including, without limitation, CERCLA; RCRA; the Federal Water Pollution Control
Act, 33 U.S.C. ss. 1251 et seq.; the Toxic Substances Control Act, 15 U.S.C. ss.
2601 et seq.; the Clean Air Act, 42 U.S.C. ss. 7401 et seq.; the Safe Drinking
Water Act, 42 U.S.C. ss. 3803 et seq.; the Oil Pollution Act of 1990, 33 U.S.C.
ss. 2701 et seq.; the Emergency Planning and the Community Right-to-Know Act of
1986, 42 U.S.C. ss. 11001 et seq.; the Hazardous Material Transportation Act, 49
U.S.C. ss. 1801 et seq.; the Occupational Safety and Health Act, 29 U.S.C. ss.
651 et seq.; and any state and local or foreign counterparts or equivalents, in
each case as amended from time to time.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and rulings
issued thereunder. Section references to ERISA are to ERISA, as in effect at the
date of this Agreement, and to any subsequent provisions of ERISA, amendatory
thereof, supplemental thereto or substituted therefor.
"ERISA Affiliate" shall mean each person (as defined in Section 3(9)
of ERISA) which together with Parent or any Subsidiary of Parent would be deemed
to be a "single employer" within the meaning of Section 414(b), (c), (m) or (o)
of the Code.
"Eurodollar Loan" shall mean each Revolving Loan designated as such
by a Borrower at the time of the incurrence thereof or conversion thereto.
"Eurodollar Rate" shall mean (a) the arithmetic average (rounded to
the nearest 1/1000 of 1%) of the offered quotation to first-class banks in the
New York interbank Eurodollar market by each Reference Bank for Dollar deposits
of amounts in immediately available funds comparable to the outstanding
principal amount of the Eurodollar Loan of such Reference Bank with maturities
comparable to the Interest Period applicable to such Eurodollar Loan commencing
two Business Days thereafter as of 10:00 A.M. (New York time) on the date which
is two Business Days prior to the commencement of such Interest Period, divided
by (b) a percentage equal to 100% minus the then stated maximum rate of
(108)
all reserve requirements (including, without limitation, any marginal,
emergency, supplemental, special or other reserves required by applicable law)
applicable to any member bank of the Federal Reserve System in respect of
Eurocurrency funding or liabilities as defined in Regulation D (or any successor
category of liabilities under Regulation D); provided that if one or more of the
Reference Banks fails to provide the Administrative Agent with its aforesaid
rate, then the Eurodollar Rate shall be determined based on the rate or rates
provided to the Administrative Agent by the other Reference Bank or Banks.
"Event of Default" shall have the meaning provided in Section 10.
"Existing Agents" shall mean the "Agents" under, and as defined in,
the Existing Credit Agreement.
"Existing Banks" shall mean those lenders which were party to the
Existing Credit Agreement.
"Existing Credit Agreement" shall have the meaning provided in the
first WHEREAS clause of this Agreement.
"Existing Letters of Credit" shall have the meaning provided in
Section 2.01(a).
"Existing Revolving Loans" shall mean the "Revolving Loans" under,
and as defined in, the Existing Credit Agreement.
"Existing Showboat 9-1/4% First Mortgage Bonds" shall mean the
$275,000,000 aggregate face principal amount of Showboat's 9-1/4% First Mortgage
Bonds due 2008.
"Existing Showboat Note Indenture Supplements" shall mean each of
the supplemental indentures to the Existing Showboat Note Indentures in the
forms delivered to the Administrative Agent pursuant to Section 5B.06 and
entered into by Showboat and the respective trustee for the respective issue of
Existing Showboat Notes in connection with the Existing Showboat Notes Tender
Offers/Consent Solicitations, which supplemental indentures shall eliminate
substantially all of the covenants contained in the Existing Showboat Note
Indentures.
"Existing Showboat Note Indentures" shall mean each of the
respective indentures entered into by Showboat in connection
(109)
with the Existing Showboat 13% Senior Subordinated Notes and the Existing
Showboat 9-1/4% First Mortgage Bonds.
"Existing Showboat Notes" shall mean each of (i) the Existing
Showboat 13% Senior Subordinated Notes and (ii) the Existing Showboat 9-1/4%
First Mortgage Bonds.
"Existing Showboat Notes Defeasances" shall mean the legal or
covenant defeasances of the Existing Showboat Notes pursuant to, and in
accordance with, the respective terms and conditions of the Existing Showboat
Note Indentures.
"Existing Showboat Notes Tender Offers/Consent Solicitations" shall
mean (i) the offer by Parent, the Company or Showboat to purchase for cash any
and all of the Existing Showboat Notes and (ii) the solicitation by Parent, the
Company or Showboat of consents from the holders of each issue of Existing
Showboat Notes to amend each Existing Showboat Note Indenture, each of the
foregoing to be effected pursuant to the Existing Showboat Notes Tender
Offers/Consent Solicitations Documents and the Existing Showboat Note
Indentures.
"Existing Showboat Notes Tender Offers/Consent Solicitations
Documents" shall mean each of the documents distributed and/or executed by
Parent, the Company and/or Showboat to effectuate the Existing Showboat Notes
Tender Offers/Consent Solicitations, including the Existing Showboat Note
Indenture Supplements and the offers to purchase the Existing Showboat Notes.
"Existing Showboat 13% Senior Subordinated Notes" shall mean the
$120,000,000 aggregate face principal amount of Showboat's 13% Senior
Subordinated Notes due 2009.
"Existing Showboat Working Capital Facility" shall mean the existing
$35,000,000 senior secured working capital facility of Showboat.
"Existing Swingline Loans" shall mean the "Swingline Loans" under,
and defined in, the Existing Credit Agreement.
"Facing Fee" shall have the meaning provided in Section 3.01(c).
"Federal Funds Rate" shall mean for any period, a fluctuating
interest rate equal for each day during such period
(110)
to the weighted average of the rates on overnight Federal Funds transactions
with members of the Federal Reserve System arranged by Federal Funds brokers, as
published for such day (or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day which is a Business Day, the average of the
quotations for such day on such transactions received by the Administrative
Agent from three Federal Funds brokers of recognized standing selected by the
Administrative Agent.
"Fees" shall mean all amounts payable pursuant to or referred to in
Section 3.01.
"Final Maturity Date" shall mean July 31, 2000.
"First Restatement Effective Date" shall mean the "Restatement
Effective Date" under, and as defined in, the Existing Credit Agreement.
"First-Tier Material Subsidiary" shall mean each Material Subsidiary
which is a direct Subsidiary of the Company.
"Former Bank" shall have the meaning provided in Section 13.04(c).
"Gaming Authority" shall mean the governmental authorities charged
with the administration and enforcement of the Gaming Regulations.
"Gaming Business" shall mean the businesses and operations of the
Company and its Subsidiaries with respect to, and the properties and assets of
the Company and its Subsidiaries used in connection with, the Specified Casino
Properties and any other casinos, hotel casinos or gaming businesses now or in
the future owned by the Company or any of its Subsidiaries or in which Parent or
any of its Subsidiaries has an interest either through a Joint Venture or as a
party to a management agreement.
"Gaming Property" of any Person shall mean those properties and
assets of such Person which relate to such Person's casino or hotel casino
businesses and operations.
"Gaming Regulations" shall mean the laws, rules, regulations and
orders applicable to the casino and gaming business or activities of Parent, the
Company or any of their Subsidiaries, as in effect from time to time, including
the
(111)
policies, interpretations and administration thereof by the Gaming Authorities.
"Guaranteed Obligations" shall mean the irrevocable and
unconditional guaranty made by Parent under the Parent Guaranty (i) to the
Administrative Agent and each Bank for the full and prompt payment when due
(whether at the stated maturity, by acceleration or otherwise) of the principal
and interest on each Note issued by each Borrower to such Bank, and Loans made,
under this Agreement and all reimbursement obligations in respect of Drawings on
Letters of Credit, together with all the other obligations and liabilities
(including, without limitation, indemnities, fees and interest thereon) of each
of the Borrowers to the Administrative Bank and such Bank now existing or
hereafter incurred under, arising out of or in connection with this Agreement or
any other Credit Document and the due performance and compliance with the terms
of the Credit Documents by the Borrowers and (ii) to each Interest Rate
Protection Creditor which has entered into, or in the future enters into, an
Interest Rate Protection or Other Hedging Agreement with any Borrower, the full
and prompt payment when due (whether by acceleration or otherwise) of all
obligations of each Borrower owing under, or with respect to, any such Interest
Rate Protection or Other Hedging Agreement, whether now in existence or
hereafter arising, and the due performance and compliance with all terms,
conditions and agreements contained therein.
"Guarantor", at any time, shall mean each of the Initial Guarantors
and each Required Additional Guarantor which has executed and delivered a
counterpart of the Company/Sub Guaranty in accordance with Section 8.11,
provided that, from and after the date of the release of any Subsidiary of the
Company from the provisions of the Company/Sub Guaranty in accordance with the
terms thereof or hereof, such Subsidiary shall cease to constitute a Guarantor.
"Guaranty" shall mean and include the Parent Guaranty and the
Company/Sub Guaranty.
"Xxxxxx'x Atlantic City" shall mean Xxxxxx'x Atlantic City, Inc., a
New Jersey corporation.
"Xxxxxx'x Jazz" shall mean Xxxxxx'x Jazz Company, a Louisiana
general partnership.
(112)
"Xxxxxx'x Jazz Completion Guaranties" shall mean one or more
completion guaranties heretofore given by Parent and/or the Company in favor of
certain lenders to Xxxxxx'x Jazz, the City of New Orleans and one or more other
governmental agencies of the State of Louisiana.
"Xxxxxx'x Jazz Completion Obligation Loans" shall mean any payments
made by Parent and/or the Company under the Xxxxxx'x Jazz Completion Guaranties
or the Xxxxxx'x Jazz Title Indemnity Arrangements to the extent that such
payments are characterized as additional loans or advances made by Parent and/or
the Company to Xxxxxx'x Jazz.
"Xxxxxx'x Jazz Investments" shall mean Investments in or to Xxxxxx'x
Jazz and/or for the benefit of Xxxxxx'x Jazz, including the Xxxxxx'x Jazz
Completion Obligation Loans, the Xxxxxx'x Jazz Completion Guaranties and the
Xxxxxx'x Jazz Title Indemnity Arrangements.
"Xxxxxx'x Jazz Plan Effective Date" shall mean the effective date of
the Xxxxxx'x Jazz Reorganization Plan.
"Xxxxxx'x Jazz Reorganization Plan" shall mean Xxxxxx'x Jazz's and
Xxxxxx'x Jazz Finance Corp.'s joint plan of reorganization under Chapter 11 of
the Bankruptcy Code, as amended from time to time.
"Xxxxxx'x Jazz Title Indemnity Arrangements" shall mean those
certain indemnity agreements heretofore given by Parent and the Company to the
title insurance companies providing title insurance for Xxxxxx'x Jazz's casino
in the City of New Orleans.
"Xxxxxx'x Xxxxxxxx" shall mean Xxxxxx'x Laughlin, Inc., a Nevada
corporation.
"Xxxxxx'x New Jersey" shall mean Xxxxxx'x New Jersey, Inc., a New
Jersey corporation.
"Hazardous Materials" shall mean (a) any petroleum or petroleum
products, radioactive materials, asbestos in any form that is or could become
friable, urea formaldehyde foam insulation, transformers or other equipment that
contain dielectric fluid containing levels of polychlorinated biphenyls, and
radon gas; (b) any chemicals, materials or substances defined as or included in
the definition of "hazardous substances," "hazardous waste," "hazardous
materials," "extremely hazardous
(113)
substances," "restricted hazardous waste," "toxic substances," "toxic
pollutants," "contaminants," or "pollutants," or words of similar import, under
any applicable Environmental Law; and (c) any other chemical, material or
substance, exposure to which is prohibited, limited or regulated by any
governmental authority.
"HNOIC" shall mean Xxxxxx'x New Orleans Investment Company, a Nevada
corporation.
"Indebtedness" shall mean, as to any Person, without duplication,
(i) all obligations of such Person for borrowed money, (ii) all obligations of
such Person evidenced by bonds, debentures, notes or other similar instruments,
(iii) all obligations of such Person to pay the deferred purchase price of
property or services, except trade accounts payable arising in the ordinary
course of business, (iv) all obligations of such person as lessee which are
capitalized in accordance with generally accepted accounting principles, (v) all
obligations of such Person to reimburse or repay any bank or other Person in
respect of amounts paid or available to be drawn under a letter of credit,
banker's acceptance, surety, performance or appeal bond or any similar
instrument (each such obligation to be valued at the face amount of such
instrument), (vi) all Indebtedness of others secured by a Lien on any asset of
such Person, (vii) all Contingent Obligations of such Person with respect to any
Indebtedness of any other Person and (viii) the amount of any Disqualified
Stock.
"Initial Guarantors" shall mean each of Parent, the Company, Marina,
Xxxxxx'x Atlantic City, Xxxxxx'x Las Vegas, Inc., Xxxxxx'x Xxxxxxxx, Xxxxxx'x
New Jersey, Xxxxxx'x Xxxx Holding Company, Inc., Xxxxxx'x Illinois Corporation,
Tunica Partners II, L.P., Xxxxxx'x Tunica Corporation, Xxxxxx'x Vicksburg
Corporation and Xxxxxx'x-North Kansas City Corporation.
"Interest Determination Date" shall mean, with respect to any
Eurodollar Loan, the second Business Day prior to the commencement of any
Interest Period relating to such Eurodollar Loan.
"Interest Period" shall have the meaning provided in Section 1.09.
"Interest Rate Protection Creditor" shall have the meaning provided
in the Company/Sub Guaranty.
(114)
"Interest Rate Protection or Other Hedging Agreements" shall mean
one or more (i) interest rate protection agreements (including, without
limitation, interest rate swaps, caps, floors, collars and similar agreements),
(ii) foreign exchange contracts, currency swap agreements or other similar
agreements or arrangements designed to protect against the fluctuations in
currency values and/or (iii) other types of hedging agreements from time to time
entered into by the Company or any of its Subsidiaries.
"Investments" shall have the meaning provided in Section 9.05.
"Issue" shall mean each of the two different types of Senior Debt,
there being two separate Issues for purposes of this Agreement, i.e., the
Indebtedness under this Agreement and the Indebtedness under the 364-Day Credit
Agreement.
"Jazz Casino" shall mean Jazz Casino Company, L.L.C., a Louisiana
limited liability company.
"Jazz Casino Bank Guarantees" shall mean one or more additional
guarantees, put agreements, keep-well agreements and/or other similar credit
support to be provided by Parent and/or the Company in favor of the lenders
under the Jazz Casino Construction Credit Facility.
"Jazz Casino Completion Guaranties" shall mean one or more
completion guaranties to be given by Parent and/or the Company in favor of the
lenders to Jazz Casino under the Jazz Casino Construction Credit Facility, the
City of New Orleans, the Rivergate Development Corporation, the Louisiana Gaming
Control Board, the holders of the New Jazz Casino Senior Subordinated Bonds and
the holders of the New Jazz Casino Contingent Bonds.
"Jazz Casino Completion Obligation Loans" shall mean any payments
made by Parent and/or the Company under the Jazz Casino Completion Guaranties or
the Jazz Casino Indemnity Arrangements to the extent that such payments are
characterized as additional loans or advances made by Parent and/or the Company
to Jazz Casino.
"Jazz Casino Construction Credit Facility" shall mean the
construction and working capital credit facility to be entered into by Jazz
Casino as part of the Xxxxxx'x Jazz Reorganization Plan.
(115)
"Jazz Casino Indemnity Arrangements" shall mean those certain
indemnity agreements to be given by Parent and the Company to the title
insurance companies providing the title insurance for the New Orleans Casino and
to the provider of the Jazz Casino Surety Bonds.
"Jazz Casino Loan Guaranty" shall mean, with respect to any Jazz
Casino Loans made to Jazz Casino by a Person other than Parent or any of its
Subsidiary, any guaranty of Parent and/or the Company in respect thereof.
"Jazz Casino Loans" shall mean loans made to Jazz Casino (other than
as part of the Jazz Casino Construction Credit Facility) by Parent and/or its
Subsidiaries or by a third Person, provided that the aggregate amount of Jazz
Casino Loans made by Parent and its Subsidiaries, when added to the amount of
the Jazz Casino Bank Guarantees and the amount of the Jazz Casino Loan Guaranty,
shall not exceed $180,000,000.
"Jazz Casino Minimum Payment Guaranty" shall mean any guaranty to be
given by Parent and/or the Company in favor of the Louisiana Gaming Control
Board guaranteeing Jazz Casino's minimum payment obligations to the Louisiana
Gaming Control Board of $100,000,000 per year.
"Jazz Casino Surety Bond" shall mean a surety bond to be provided by
Jazz Casino in connection with the completion of the New Orleans Casino.
"Jazz Casino Trigger Date" shall mean the date on which (i) the
Xxxxxx'x Jazz Plan Effective Date shall have occurred in accordance with the
terms of the Xxxxxx'x Jazz Reorganization Plan and (ii) all material
governmental and material third party approvals with respect to the construction
and operation of the New Orleans Casino to the extent required to be obtained by
the Xxxxxx'x Jazz Plan Effective Date shall have been obtained and remain in
full force and effect, including, without limitation, any vote of the
legislature of the State of Louisiana.
"JCC Holding" shall mean JCC Holding Company, a Delaware
corporation.
"Joint Venture" shall mean any entity or arrangement between the
Company or any of its Subsidiaries (so long as the Company and its Subsidiaries
own 50% or less of such entity) and one or more Persons other than Parent or any
of its Subsidiaries
(116)
(whether now existing or created in the future) for (i) the joint ownership,
management, construction or development of any Gaming Property or (ii) the joint
ownership or operation of any Gaming Business.
"L/C Supportable Indebtedness" shall mean (i) obligations of the
Company or any of its Subsidiaries incurred in the ordinary course of business
and (ii) all obligations supported by Existing Letters of Credit.
"Laughlin/Las Vegas Stock Restrictions" shall mean the negative
pledge (i.e., the prohibition of Liens pursuant to Section 9.01), and
restrictions on transfers pursuant to Section 9.02, on the capital stock of
Xxxxxx'x Xxxxxxxx and Xxxxxx'x Las Vegas, Inc., in each case to the extent such
restrictions require the approval of the Nevada Gaming Authorities.
"Laughlin/Las Vegas Stock Restrictions Approval Date" shall mean the
first date occurring after the Second Restatement Effective Date upon which (i)
all requisite approvals of Gaming Authorities have been obtained to permit the
Laughlin/Las Vegas Stock Restrictions, so that same may be fully effective in
accordance with the terms of this Agreement (without giving effect to the
limitations provided in Section 13.18) and (ii) the Administrative Agent shall
have received a satisfactory opinion of Nevada gaming counsel to the Company to
the effect that such approvals have been obtained and that the Laughlin/Las
Vegas Stock Restrictions contained in this Agreement are fully enforceable in
accordance with the terms hereof, which opinion shall be in form and substance
reasonably satisfactory to the Administrative Agent.
"Laughlin/Las Vegas Stock Restrictions Requisite Gaming Approvals"
shall have the meaning provided in Section 13.18.
"Leaseholds" of any Person means all the right, title and interest
of such Person as lessee or licensee in, to and under leases or licenses of
land, improvements and/or fixtures.
"Letter of Credit" shall have the meaning provided in Section
2.01(a).
"Letter of Credit Fee" shall have the meaning provided in Section
3.01(b).
(117)
"Letter of Credit Issuer" shall mean (x) BTCo and (y) with the
consent of the Administrative Agent, any other Bank to the extent such Bank
agrees, in its sole discretion, to become a Letter of Credit Issuer for the
purpose of issuing Letters of Credit pursuant to Section 2.
"Letter of Credit Outstandings" shall mean, at any time, the sum of
(i) the aggregate Stated Amount of all outstanding Letters of Credit and (ii)
the amount of all Unpaid Drawings.
"Letter of Credit Request" shall have the meaning provided in
Section 2.03(a).
"Lien" shall mean any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), preference,
priority or other security agreement of any kind or nature whatsoever
(including, without limitation, any conditional sale or other title retention
agreement, any financing or similar statement or notice filed under the UCC or
any other similar recording or notice statute, and any lease having
substantially the same effect as any of the foregoing).
"Loan" shall mean each Revolving Loan and each Swingline Loan.
"Mandatory Borrowing" shall have the meaning provided in Section
1.01(c).
"Margin Reduction Period" shall mean each period which shall
commence on a date on which the financial statements are delivered pursuant to
Section 8.01(a) or (b) and which shall end on the earlier of (i) the date of
actual delivery of the next financial statements pursuant to Section 8.01(a) or
(b) and (ii) the latest date on which the next financial statements are required
to be delivered pursuant to Section 8.01(a) or (b).
"Margin Stock" shall have the meaning provided in Regulation U.
"Marina" shall mean Marina Associates, a New Jersey general
partnership.
"Material Subsidiary" shall mean each of (a) each Initial Guarantor
other than Parent and the Company, (b) each Subsidiary Borrower, (c) from and
after the consummation of the
(118)
Showboat Merger, Showboat, Ocean Showboat, Inc., Atlantic City Showboat, Inc.,
Showboat Operating Company, Showboat Indiana Investment Limited Partnership and
Showboat Marina Casino Partnership and (d) as at the date of determination, (i)
any direct or indirect Subsidiary of Parent that holds any license or licenses
needed to conduct gaming operations with respect to any Specified Casino
Property, (ii) any direct or indirect Subsidiary of Parent that owns or leases
any Specified Casino Property or that directly or indirectly owns stock of a
Subsidiary which owns or leases any Specified Casino Property, or (iii) any
Subsidiary of Parent that (together with its Subsidiaries) accounts for, or
holds, at least 10% of any of (x) the consolidated assets of Parent and its
Subsidiaries, (y) the consolidated revenues of Parent and its Subsidiaries or
(z) the Consolidated EBIT of Parent and its Subsidiaries, in each case as
determined at the end of each fiscal quarter of Parent and, in the case of
preceding clauses (y) and (z), for the Test Period then last ended, it being
understood and agreed that Xxxxxx'x Jazz, JCC Holding and Des Plaines
Development Limited Partnership and their respective Subsidiaries shall not be
considered Material Subsidiaries under this sub-clause (iii) to the extent that
such Subsidiaries would otherwise constitute such a Material Subsidiary so long
as such Subsidiaries would not otherwise constitute a Material Subsidiary under
any of the other clauses of this definition.
"Maximum Swingline Amount" shall mean $50,000,000.
"Minimum Condition" shall mean that condition which shall be
satisfied only when at least a majority of the outstanding Existing Showboat 13%
Senior Subordinated Notes and at least a majority of the outstanding Existing
Showboat 9-1/4% First Mortgage Bonds shall have been validly tendered, and not
withdrawn, pursuant to the Existing Showboat Notes Tender Offers/Consent
Solicitations.
"Moody's" shall mean Xxxxx'x Investors Service, Inc.
"Net Sale Proceeds" shall mean for any Designated Asset Sale, the
gross cash proceeds (including any cash received by way of deferred payment
pursuant to a promissory note, receivable or otherwise, but only as and when
received) received from any Designated Asset Sale, net of reasonable transaction
costs and payments of unassumed liabilities relating to the assets sold at the
time of, or within 60 days after, the date of such sale and the amount of such
gross cash proceeds required to be used to
(119)
repay any Indebtedness (other than Indebtedness of the Banks pursuant to the
Credit Documents) which is secured by the respective assets which were sold, and
net of the incremental taxes paid or payable as a result of such Designated
Asset Sale.
"New Bank" shall mean each Bank with a Revolving Loan Commitment
hereunder that was not a party to the Existing Credit Agreement.
"New Jazz Casino Contingent Bonds" shall mean the Senior
Subordinated Contingent Notes due 2009 to be issued by Jazz Casino as part of
the Xxxxxx'x Jazz Reorganization Plan.
"New Jazz Casino Senior Subordinated Bonds" shall mean the
$187,500,000 aggregate principal amount of Senior Subordinated Notes due 2009 to
be issued by Jazz Casino as part of the Xxxxxx'x Jazz Reorganization Plan.
"New Orleans Casino" shall mean the land based casino to be
constructed in New Orleans, Louisiana which is currently owned by Xxxxxx'x Jazz
and which will be owned by Jazz Casino as part of the Xxxxxx'x Jazz
Reorganization Plan.
"Non-Defaulting Bank" shall mean and include each Bank other than a
Defaulting Bank.
"Non-Recourse Indebtedness" shall mean with respect to any Specified
Subsidiary, Indebtedness incurred by such Specified Subsidiary which shall be
(i) secured only by Gaming Properties being developed with Non-Recourse
Indebtedness incurred pursuant to Section 9.04(x), including any fixtures,
furniture and equipment related thereto and (ii) non-recourse to Parent and its
Subsidiaries, provided that recourse may be had to the extent permitted by
Section 9.04(x) and to the respective property or properties serving as security
therefor.
"Note" shall mean each Swingline Note and each Revolving Note.
"Notice of Borrowing" shall have the meaning provided in Section
1.03(a).
"Notice of Conversion" shall have the meaning provided in Section
1.06.
(120)
"Notice Office" shall mean the office of the Administrative Agent
located at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxxx
Xxxxxxxxx, or such other office as the Administrative Agent may hereafter
designate in writing as such to the other parties hereto.
"Obligations" shall mean all amounts owing to the Administrative
Agent or any Bank pursuant to the terms of this Agreement or any other Credit
Document.
"Parent" shall have the meaning provided in the first paragraph of
this Agreement.
"Parent Guaranty" shall mean the guaranty provided by Parent
pursuant to Section 14.
"Participant" shall have the meaning provided in Section 2.04(a).
"Payment Office" shall mean the office of the Administrative Agent
located at Xxx Xxxxxxx Xxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, or such other
office as the Administrative Agent may hereafter designate in writing as such to
the other parties hereto.
"PBGC" shall mean the Pension Benefit Guaranty Corporation
established pursuant to Section 4002 of ERISA, or any successor thereto.
"Percentage" of any Bank at any time shall mean a fraction
(expressed as a percentage) the numerator of which is the Revolving Loan
Commitment of such Bank at such time and the denominator of which is the Total
Revolving Loan Commitment at such time, provided that, if the Percentage of any
Bank is to be determined after the Total Revolving Loan Commitment has been
terminated, then the Percentage of such Bank shall be determined immediately
prior (and without giving effect) to such termination.
"Permitted Designated Indebtedness" shall mean (i) all Subordinated
Debt (or portions thereof) incurred pursuant to Section 9.04(xi) to the extent
that the aggregate amount of Subordinated Debt incurred after the Second
Restatement Effective Date pursuant to said Section is in excess of $200,000,000
and (ii) all Additional Unsecured Senior Debt.
(121)
"Permitted Liens" shall have the meaning provided in Section 9.01.
"Person" shall mean any individual, partnership, joint venture,
firm, corporation, limited liability company, association, trust or other
enterprise or any government or political subdivision or any agency, department
or instrumentality thereof.
"Plan" shall mean any multiemployer or single-employer plan, as
defined in Section 4001 of ERISA, which is maintained or contributed to by (or
to which there is an obligation to contribute of), Parent or a Subsidiary of
Parent or an ERISA Affiliate, and each such plan for the five year period
immediately following the latest date on which Parent, or a Subsidiary of Parent
or an ERISA Affiliate maintained, contributed to or had an obligation to
contribute to such plan.
"Prime Lending Rate" shall mean the rate which BTCo announces from
time to time as its prime lending rate, the Prime Lending Rate to change when
and as such prime lending rate changes. The Prime Lending Rate is a reference
rate and does not necessarily represent the lowest or best rate actually charged
to any customer. BTCo may make commercial loans or other loans at rates of
interest at, above or below the Prime Lending Rate.
"Projections" shall have the meaning provided in Section 7.05(d).
"Qualified Person" shall mean, with respect to any Bank party to
this Agreement on the Second Restatement Effective Date or that becomes a Bank
pursuant to Section 1.13, 13.04(b) or 13.04(c), a banking or other licensed
lending institution within the meaning of the New Jersey Gaming Regulations or a
financial source or qualifier approved under the Gaming Regulations of the State
of New Jersey applicable to lenders (or waived or exempted from the applicable
requirements thereof) and which shall not have been found unsuitable under the
Gaming Regulations of the State of Nevada applicable to lenders and which meets
the requirements of all other jurisdictions regulating the gaming business of
Parent and its Subsidiaries to the extent that the Company has so notified the
Banks of such requirements of such other jurisdiction pursuant to Section
13.04(e).
(122)
"RCRA" shall mean the Resource Conservation and Recovery Act, as the
same may be amended from time to time, 42 U.S.C. ss. 6901 et seq.
"Real Property" of any Person shall mean all the right, title and
interest of such Person in and to land, improvements and fixtures, including
Leaseholds.
"Reduction Discount" shall mean initially zero and from and after
the first day of any Margin Reduction Period (the "Start Date") to and including
the last day of such Margin Reduction Period (the "End Date"), the Reduction
Discount shall be the respective percentage per annum set forth in clause (A),
(B) or (C) below if, but only if, as of the last day of the most recent fiscal
quarter of Parent ended immediately prior to such Start Date (the "Test Date")
the conditions in clause (A), (B) or (C) below are met:
(A) (x) in the case of Eurodollar Loans, 1/2 of 1% and (y) in the
case of Commitment Commission, 5/100 of 1% in each case if, but only if,
as of the Test Date for such Start Date either of the following conditions
are met and none of the conditions set forth in clauses (B) and (C) below
are satisfied:
(i) the Consolidated Interest Coverage Ratio for the Test
Period ended on such Test Date shall be greater than 3.00:1.00; or
(ii) the Indebtedness of the Company on such Test Date shall
be rated at least BBB- Senior Implied by S&P or Baa3 Senior Implied by
Xxxxx'x;
(B) (x) in the case of Eurodollar Loans, 3/4 of 1% and (y) in the
case of Commitment Commission, 10/100 of 1% in each case if, but only if,
as of the Test Date for such Start Date either of the following conditions
are met and none of the conditions set forth in clause (C) below are
satisfied:
(i) the Consolidated Interest Coverage Ratio for the Test
Period ended on such Test Date shall be greater than 3.50:1.00; or
(123)
(ii) the Indebtedness of the Company on such Test Date shall
be rated at least BBB Senior Implied by S&P or Baa2 Senior Implied by
Xxxxx'x; or
(C) (x) in the case of Eurodollar Loans, 7/8 of 1% and (y) in the
case of Commitment Commission, 1/8 of 1% in each case if, but only if, as
of the Test Date for such Start Date either of the following conditions
are met:
(i) the Consolidated Interest Coverage Ratio for the Test
Period ended on such Test Date shall be greater than 4.00:1.00; or
(ii) the Indebtedness of the Company on such Test Date shall
be rated at least BBB+ Senior Implied by S&P or Baa1 Senior Implied by
Xxxxx'x.
Notwithstanding anything to the contrary above in this definition, (i) for the
period from the Second Restatement Effective Date through, but not including,
the first Start Date thereafter, the Reduction Discount shall be (x) in the case
of Eurodollar Loans, 3/4 of 1% and (y) in the case of Commitment Commission,
10/100 of 1%, and (ii) the Reduction Discount shall be reduced to zero at all
times when a Default under Section 8.01(a) or (b) shall exist or an Event of
Default shall exist.
"Reference Banks" shall mean BTCo, Bank of America National Trust
and Savings Association and Canadian Imperial Bank of Commerce.
"Register" shall have the meaning provided in Section 13.17(b).
"Regulation D" shall mean Regulation D of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor to
all or a portion thereof establishing reserve requirements.
"Regulation G" shall mean Regulation G of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor to
all or a portion thereof.
"Regulation T" shall mean Regulation T of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor to
all or a portion thereof.
(124)
"Regulation U" shall mean Regulation U of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor to
all or a portion thereof.
"Regulation X" shall mean Regulation X of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor to
all or a portion thereof.
"Release" means disposing, discharging, injecting, spilling,
pumping, leaking, leaching, dumping, emitting, escaping, emptying, seeping,
placing, pouring and the like, into or upon any land or water or air, or
otherwise entering into the environment.
"Replaced Bank" shall have the meaning provided in Section 1.13.
"Replacement Bank" shall have the meaning provided in Section 1.13.
"Reportable Event" shall mean an event described in Section 4043(c)
of ERISA with respect to a Plan as to which the 30-day notice requirement has
not been waived by the PBGC.
"Required Additional Guarantor" shall have the meaning provided in
Section 8.11(a).
"Required Banks" shall mean Non-Defaulting Banks, the sum of whose
Revolving Loan Commitments (or after the termination thereof, outstanding
Revolving Loans and Adjusted Percentage of outstanding Swingline Loans and
Letter of Credit Outstandings) represent an amount greater than fifty percent of
the sum of the Adjusted Total Revolving Loan Commitment (or after the
termination thereof, the sum of the then total outstanding Revolving Loans of
Non-Defaulting Banks and the aggregate Adjusted Percentages of all
Non-Defaulting Banks of the total outstanding Swingline Loans and Letter of
Credit Outstandings at such time).
"Required Secured Parties" shall have the meaning provided in the
Existing Credit Agreement.
"Restatement Effective Date" shall mean the First Restatement
Effective Date.
(125)
"Returns" shall have the meaning provided in Section 7.09.
"Revolving Loan" shall have the meaning provided in Section 1.01(a).
"Revolving Loan Commitment" shall mean, for each Bank, the amount
set forth opposite such Bank's name in Schedule I directly below the column
entitled "Revolving Loan Commitment," as same may (x) be reduced from time to
time pursuant to Sections 3.02, 3.03 and/or 10 or (y) be adjusted from time to
time as a result of assignments to or from such Bank pursuant to Section 1.13,
13.04(b) or 13.04(c).
"Revolving Note" shall have the meaning provided in Section 1.05(a).
"Rights" shall have the meaning provided in the Rights Agreement.
"Rights Agreement" shall mean the Rights Agreement, dated as of
February 7, 1990, between Parent and The Bank of New York, as Rights Agent, as
in effect on the date hereof.
"S&P" shall mean Standard & Poor's Ratings Services.
"Scheduled Commitment Reduction" shall have the meaning provided in
Section 3.03(b).
"SEC" shall have the meaning provided in Section 8.01(f).
"Second Restatement Effective Date" shall have the meaning provided
in Section 13.10.
"Section 4.04(b)(iii) Certificate" shall have the meaning provided
in Section 4.04(b).
"Securities Act" shall mean the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder.
"Securities Exchange Act" shall mean the Securities Exchange Act of
1934, as amended, and the rules and regulations promulgated thereunder.
(126)
"Senior Debt" shall mean the Indebtedness under this Agreement and
the Indebtedness under the 364-Day Credit Agreement.
"Share" shall mean, for each Issue, (A) if the event requiring a
mandatory commitment reduction to Senior Debt pursuant to Section 3.03(e) or (f)
would, in accordance with the terms of the 364-Day Credit Agreement, give rise
to a mandatory commitment reduction to the Total 364-Day Revolving Loan
Commitment, then the "Share" (x) applicable to the Total 364-Day Revolving Loan
Commitment shall equal the lesser of (1) the amount required to be applied to
reduce the commitments in respect of Senior Debt pursuant to Section 3.03(e) or
(f) multiplied by a fraction the numerator of which is the amount of the Total
364-Day Revolving Loan Commitment then in effect and the denominator of which is
the sum of (i) the Total 364-Day Revolving Loan Commitment then in effect plus
(ii) the Total Revolving Loan Commitment then in effect and (2) the maximum
amount which would be required to be applied to mandatorily reduce the Total
364-Day Revolving Loan Commitment in accordance with the terms of the 364-Day
Credit Agreement as a result of the respective event requiring a reduction to
the commitments in respect of Senior Debt pursuant to Section 3.03(e) or (f) and
(y) applicable to the Total Revolving Loan Commitment shall equal the remainder
of the amount required to be applied to reduce the commitments in respect of
Senior Debt pursuant to Section 3.03(e) or (f), less the "Share" applicable to
the Total 364- Day Revolving Loan Commitment as determined pursuant to preceding
clause (x), and (B) if the event giving rise to a mandatory commitment reduction
in respect of Senior Debt would not require a mandatory reduction to the Total
364-Day Revolving Loan Commitment of the 364-Day Credit Agreement in accordance
with the terms of the 364-Day Credit Agreement, the "Share" of each Issue shall
equal (x) in the case of the 364-Day Credit Agreement, $0 and (y) in the case of
this Agreement, the amount required to be applied to Senior Debt pursuant to
Section 3.03(e) or (f).
"Showboat" shall mean Showboat, Inc., a Nevada corporation.
"Showboat Change of Control Offers to Purchase" shall mean any
required offers by Showboat under the Existing Showboat Note Indentures to
purchase the outstanding Existing Showboat Notes as a result of the Merger.
(127)
"Showboat Change of Control Purchases" shall mean any purchases made
by Parent, the Company or Showboat of the Existing Showboat Notes pursuant to
any Showboat Change of Control Offer to Purchase.
"Showboat Merger" shall mean the merger of HEI Acquisition Corp.
with and into Showboat, pursuant to and in accordance with the terms of the
Showboat Merger Agreement.
"Showboat Merger Agreement" shall mean the Agreement and Plan of
Merger, dated as of December 18, 1997, among Parent, HEI Acquisition Corp. and
Showboat.
"Showboat Merger Documents" shall mean the Showboat Merger Agreement
and all other agreements and documents entered into by Parent, Showboat or any
Subsidiary of Parent or Showboat and relating to the Showboat Merger.
"Showboat Merger Effective Date" shall mean the date on which the
Showboat Merger occurs in accordance with the terms and conditions of the
Showboat Merger Agreement.
"Specified Casino Owner" shall mean any Subsidiary of the Company
that owns a Specified Casino Property or an interest in an entity owning a
Specified Casino Property.
"Specified Casino Property" shall mean and include each of the
Xxxxxx'x Xxxx Hotel Casino, Xxxxxx'x Lake Tahoe Hotel Casino (including Bill's
Casino), Xxxxxx'x Las Vegas Hotel Casino, Xxxxxx'x Atlantic City Hotel Casino,
Xxxxxx'x Xxxxxxxx Hotel Casino, Xxxxxx'x Tunica Riverboat Casino, Xxxxxx'x North
Kansas Riverboat Casino, Xxxxxx'x Joliet Riverboat Casino, Showboat East Chicago
Riverboat Casino and Showboat Atlantic City Hotel Casino.
"Specified Subsidiary" shall mean any Subsidiary of the Company
(other than any Subsidiary Borrower or Specified Casino Owner) created after the
Second Restatement Effective Date so long as such Subsidiary has no material
assets other than the Gaming Properties to be developed and financed with
Non-Recourse Indebtedness incurred pursuant to Section 9.04(x).
"Start Date" shall have the meaning provided in the definition of
Reduction Discount.
(128)
"Stated Amount" of each Letter of Credit shall, at any time, mean
the maximum amount available to be drawn thereunder (in each case determined
without regard to whether any conditions to drawing could then be met).
"Sub-Limit" shall mean (i) with respect to Marina, $400,000,000 and
(ii) with respect to each other Subsidiary of the Company that becomes a
Subsidiary Borrower after the date hereof, such aggregate amount as shall be
established by the Administrative Agent and the Required Banks at the time such
Subsidiary becomes a Subsidiary Borrower hereunder.
"Subordinated Debt" shall mean each issue of subordinated debt of
the Company that is issued under Section 9.04(xi).
"Subsidiary" shall mean, as to any Person, (i) any corporation more
than 50% of whose stock of any class or classes having by the terms thereof
ordinary voting power to elect a majority of the directors of such corporation
(irrespective of whether or not at the time stock of any class or classes of
such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time owned by such Person and/or one or
more Subsidiaries of such Person and (ii) any partnership, association, joint
venture or other entity in which such Person and/or one or more Subsidiaries of
such Person has more than a 50% equity interest at the time.
"Subsidiary Borrower" shall mean Marina and any other Wholly-Owned
Subsidiary of the Company that is found acceptable to, and approved in writing
by, the Administrative Agent and the Required Banks, provided that at the time
any such Subsidiary is sold pursuant to Section 9.02, such Subsidiary shall
cease to be a Subsidiary Borrower.
"Subsidiary Investments" shall mean any Investment by the Company in
one or more of its Subsidiaries, provided that (x) any acquisition of a new
Subsidiary shall be through a transaction not involving the acquisition by the
Company or any of its Subsidiaries of Margin Stock (other than as permitted by
Sections 7.08(b) and 9.05) and (y) any new Subsidiary so acquired shall be
engaged primarily in the Gaming Business.
"Substitute Bank" shall have the meaning in Section 13.04(c).
(129)
"Swingline Expiry Date" shall mean, at any time, the date which is
two Business Days prior to the Final Maturity Date.
"Swingline Loan" shall have the meaning provided in Section 1.01(b).
"Swingline Note" shall have the meaning provided in Section 1.05(a).
"Taxes" shall have the meaning provided in Section 4.04(a).
"Test Date" shall have a meaning provided in the definition of
Reduction Discount.
"Test Period" shall mean the four consecutive fiscal quarters of
Parent then last ended (in each case taken as one accounting period).
"364-Day Banks" shall mean the lenders from time to time party to
the 364-Day Credit Agreement.
"364-Day Credit Agreement" shall mean the 364-Day Credit Agreement,
dated as of June 9, 1995 and amended and restated as of April 1, 1998, among
Parent, the Borrowers, Canadian Imperial Bank of Commerce and Societe Generale,
as Co-Syndication Agents, Bank of America National Trust and Savings
Association, as Documentation Agent, and the Administrative Agent.
"Total Revolving Loan Commitment" shall mean, at any time, the sum
of the Revolving Loan Commitments of each of the Banks.
"Total 364-Day Outstandings" shall mean, at any time, the aggregate
principal amount of loans outstanding pursuant to the 364-Day Credit Agreement.
"Total 364-Day Revolving Loan Commitment" shall mean the "Total
Revolving Loan Commitment" under, and as defined in, the 364-Day Credit
Agreement.
"Total Unutilized Revolving Loan Commitment" shall mean, at any
time, an amount equal to the remainder of (x) the then Total Revolving Loan
Commitment, less (y) the sum of the aggregate principal amount of Revolving
Loans and Swingline Loans
(130)
then outstanding plus the then aggregate amount of Letter of Credit
Outstandings.
"Transaction" shall mean, collectively, (i) the consummation of the
8-3/4% Senior Subordinated Notes Redemption, (ii) the consummation of the
Showboat Merger, (iii) the Existing Showboat Notes Tender Offers/Consent
Solicitations, (iv) the entering into of this Agreement and the 364-Day Credit
Agreement, (v) the Showboat Change of Control Purchases, (vi) the consummation
of the Existing Showboat Notes Defeasances, and (vii) the payment of fees and
expenses in connection with the foregoing.
"Type" shall mean the type of Loan determined with regard to the
interest option applicable thereto, i.e., whether a Base Rate Loan or a
Eurodollar Loan.
"UCC" shall mean the Uniform Commercial Code as from time to time in
effect in the relevant jurisdiction.
"Unfunded Current Liability" of any Plan means the amount, if any,
by which the actuarial present value of the accumulated benefits under the Plan
as of the close of its most recent plan year, determined in accordance with
Statement of Financial Accounting Standards No. 87, based upon the actuarial
assumptions used by the Plan's actuary in the most recent annual valuation of
the Plan, exceeds the fair market value of the assets allocable thereto,
determined in accordance with Section 412 of the Code.
"United States" and "U.S." shall each mean the United States of
America.
"Unpaid Drawing" shall have the meaning provided for in Section
2.05(a).
"Unutilized Revolving Loan Commitment" with respect to any Bank, at
any time, shall mean such Bank's Revolving Loan Commitment at such time less the
sum of (i) the then aggregate outstanding principal amount of Revolving Loans
made by such Bank and (ii) such Bank's Adjusted Percentage of the Letter of
Credit Outstandings at such time.
"Wholly-Owned Subsidiary" shall mean, as to any Person, (i) any
corporation 100% of whose capital stock (other than director's qualifying
shares) is at the time owned by such Person
(131)
and/or one or more Wholly-Owned Subsidiaries of such Person and (ii) any
partnership, association, joint venture or other entity in which such Person
and/or one or more Wholly-Owned Subsidiaries of such Person has a 100% equity
interest at such time.
"Withdrawal Period" shall have the meaning provided in Section
13.04(d).
SECTION 12. The Administrative Agent.
12.01 Appointment. The Banks hereby designate Bankers Trust Company
as Administrative Agent to act as specified herein and in the other Credit
Documents. Each Bank hereby irrevocably authorizes, and each holder of any Note
by the acceptance of such Note shall be deemed irrevocably to authorize, the
Administrative Agent to take such action on its behalf under the provisions of
this Agreement, the other Credit Documents and any other instruments and
agreements referred to herein or therein and to exercise such powers and to
perform such duties hereunder and thereunder as are specifically delegated to or
required of the Administrative Agent by the terms hereof and thereof and such
other powers as are reasonably incidental thereto. The Administrative Agent may
perform any of its duties hereunder by or through its respective officers,
directors, agents or employees.
12.02 Nature of Duties. The Administrative Agent shall not have any
duties or responsibilities except those expressly set forth in this Agreement.
Neither the Administrative Agent nor any of its officers, directors, agents or
employees shall be liable for any action taken or omitted by it or them
hereunder or under any other Credit Document or in connection herewith or
therewith, unless caused by its or their gross negligence or willful misconduct.
The duties of the Administrative Agent shall be mechanical and administrative in
nature; the Administrative Agent shall not have by reason of this Agreement or
any other Credit Document a fiduciary relationship in respect of any Bank or the
holder of any Note; and nothing in this Agreement or any other Credit Document,
expressed or implied, is intended to or shall be so construed as to impose upon
the Administrative Agent any obligations in respect of this Agreement or any
other Credit Document except as expressly set forth herein or therein.
12.03 Lack of Reliance on the Administrative Agent. Independently
and without reliance upon the Administrative Agent,
(132)
each Bank and the holder of each Note, to the extent it deems appropriate, has
made and shall continue to make (i) its own independent investigation of the
financial condition and affairs of Parent and its Subsidiaries in connection
with the making and the continuance of the Loans and the taking or not taking of
any action in connection herewith and (ii) its own appraisal of the
creditworthiness of Parent and its Subsidiaries and, except as expressly
provided in this Agreement, the Administrative Agent shall not have any duty or
responsibility, either initially or on a continuing basis, to provide any Bank
or the holder of any Note with any credit or other information with respect
thereto, whether coming into its possession before the making of the Loans or at
any time or times thereafter. The Administrative Agent shall not be responsible
to any Bank or the holder of any Note for any recitals, statements, information,
representations or warranties herein or in any document, certificate or other
writing delivered in connection herewith or for the execution, effectiveness,
genuineness, validity, enforceability, perfection, collectibility, priority or
sufficiency of this Agreement or any other Credit Document or the financial
condition of Parent or any of its Subsidiaries or be required to make any
inquiry concerning either the performance or observance of any of the terms,
provisions or conditions of this Agreement or any other Credit Document, or the
financial condition of Parent or any of its Subsidiaries or the existence or
possible existence of any Default or Event of Default.
12.04 Certain Rights of the Administrative Agent. If the
Administrative Agent shall request instructions from the Required Banks with
respect to any act or action (including failure to act) in connection with this
Agreement or any other Credit Document, the Administrative Agent shall be
entitled to refrain from such act or taking such action unless and until the
Administrative Agent shall have received instructions from the Required Banks;
and the Administrative Agent shall not incur liability to any Person by reason
of so refraining. Without limiting the foregoing, no Bank or the holder of any
Note shall have any right of action whatsoever against the Administrative Agent
as a result of the Administrative Agent acting or refraining from acting
hereunder or under any other Credit Document in accordance with the instructions
of the Required Banks.
12.05 Reliance. The Administrative Agent shall be entitled to rely,
and shall be fully protected in relying, upon any note, writing, resolution,
notice, statement, certificate,
(133)
telex, teletype or telecopier message, cablegram, radiogram, order or other
document or telephone message signed, sent or made by any Person that the
Administrative Agent believed to be the proper Person, and, with respect to all
legal matters pertaining to this Agreement and any other Credit Document and its
duties hereunder and thereunder, upon advice of counsel selected by the
Administrative Agent.
12.06 Indemnification. To the extent the Administrative Agent is not
reimbursed and indemnified by the Credit Parties, the Banks will reimburse and
indemnify the Administrative Agent, in proportion to their respective
"percentages" as used in determining the Required Banks, for and against any and
all liabilities, obligations, losses, damages, penalties, claims, actions,
judgments, costs, expenses or disbursements of whatsoever kind or nature which
may be imposed on, asserted against or incurred by the Administrative Agent in
performing its duties hereunder or under any other Credit Document, in any way
relating to or arising out of this Agreement or any other Credit Document;
provided that no Bank shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from the Administrative Agent's gross
negligence or willful misconduct.
12.07 The Administrative Agent in its Individual Capacity. With
respect to its obligation to make Loans under this Agreement, the Administrative
Agent shall have the rights and powers specified herein for a "Bank" and may
exercise the same rights and powers as though it were not performing the duties
specified herein; and the term "Banks," "Required Banks," "holders of Notes" or
any similar terms shall, unless the context clearly otherwise indicates, include
the Administrative Agent in its individual capacity. The Administrative Agent
may accept deposits from, lend money to, and generally engage in any kind of
banking, trust or other business with any Credit Party or any Affiliate of any
Credit Party as if it were not performing the duties specified herein, and may
accept fees and other consideration from the Borrowers or any other Credit Party
for services in connection with this Agreement and otherwise without having to
account for the same to the Banks.
12.08 Holders. The Administrative Agent may deem and treat the payee
of any Note as the owner thereof for all purposes hereof unless and until a
written notice of the assignment, transfer or endorsement thereof, as the case
may be, shall have
(134)
been filed with the Administrative Agent. Any request, authority or consent of
any Person who, at the time of making such request or giving such authority or
consent, is the holder of any Note shall be conclusive and binding on any
subsequent holder, transferee, assignee or indorsee, as the case may be, of such
Note or of any Note or Notes issued in exchange therefor.
12.09 Resignation by the Administrative Agent. (a) The
Administrative Agent may resign from the performance of all its functions and
duties hereunder and/or under the other Credit Documents at any time by giving
15 Business Days' prior written notice to the Company and the Banks. Such
resignation shall take effect upon the appointment of a successor Administrative
Agent pursuant to clauses (b) and (c) below or as otherwise provided below.
(b) Upon any such notice of resignation, the Company shall appoint a
successor Administrative Agent hereunder or thereunder who shall be a commercial
bank or trust company reasonably acceptable to the Required Banks (it being
understood and agreed that any Bank is deemed to be acceptable to the Required
Banks), provided that, if a Default or an Event of Default exists at the time of
such resignation, the Required Banks shall appoint such successor Administrative
Agent.
(c) If a successor Administrative Agent shall not have been so
appointed within such 15 Business Day period, the Administrative Agent, with the
consent of the Company, shall then appoint a successor Administrative Agent who
shall serve as Administrative Agent hereunder or thereunder until such time, if
any, as the Company or Required Banks, as the case may be, appoint a successor
Administrative Agent as provided above.
(d) If no successor Administrative Agent has been appointed pursuant
to clause (b) or (c) above by the 30th Business Day after the date such notice
of resignation was given by the Administrative Agent, the Administrative Agent's
resignation shall become effective and the Banks shall thereafter perform all
the duties of the Administrative Agent hereunder and/or under any other Credit
Document until such time, if any, as the Required Banks appoint a successor
Administrative Agent.
12.10 The Documentation Agent and the Co-Syndication Agents.
Notwith-standing anything else to the contrary contained in this Agreement or in
any other Credit Document, none of Canadian Imperial Bank of Commerce, Societe
Generale or Bank of
(135)
America National Trust and Savings Association, in their capacities as
Documentation Agent or Co-Syndication Agents, as the case may be, shall have any
rights, duties or responsibilities under this Agreement or under any other
Credit Document, or any fiduciary relationship with the Company, the Parent, any
Borrower or any other Bank, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Credit Document or otherwise exist against either the
Documentation Agent or the Co-Syndication Agents, in such capacities.
SECTION 13. Miscellaneous.
13.01 Payment of Expenses, etc. (a) The Borrowers jointly and
severally shall: (i) whether or not the transactions herein contemplated are
consummated, pay all reasonable out-of-pocket costs and expenses of the
Administrative Agent (including, without limitation, the reasonable fees and
disbursements of White & Case LLP and local counsel) in connection with the
preparation, execution and delivery of this Agreement and the other Credit
Documents and the documents and instruments referred to herein and therein and
any amendment, waiver or consent relating hereto or thereto, of the
Administrative Agent in connection with its syndication efforts with respect to
this Agreement and of the Administrative Agent and each of the Banks in
connection with the enforcement of this Agreement and the other Credit Documents
and the documents and instruments referred to herein and therein (including,
without limitation, the reasonable fees and disbursements of counsel (including
allocated costs of in-house counsel) for the Administrative Agent and for each
of the Banks); (ii) pay and hold each of the Banks harmless from and against any
and all present and future stamp, excise and other similar taxes with respect to
the foregoing matters and save each of the Banks harmless from and against any
and all liabilities with respect to or resulting from any delay or omission
(other than to the extent attributable to such Bank) to pay such taxes; and
(iii) indemnify the Administrative Agent, each Letter of Credit Issuer and each
Bank, and each of their respective officers, directors, employees,
representatives and agents from and hold each of them harmless against any and
all liabilities, obligations (including removal or remedial actions), losses,
damages, penalties, claims, actions, judgments, suits, costs, expenses and
disbursements (including reasonable attorneys' (including allocated costs of
in-house counsel) and consultants' fees and disbursements) incurred by, imposed
on or assessed against any of them as a result of, or arising out of,
(136)
or in any way related to, or by reason of, (a) any investigation, litigation or
other proceeding (whether or not the Administrative Agent, any Letter of Credit
Issuer or any Bank is a party thereto) related to the entering into and/or
performance of this Agreement or any other Credit Document or the use of any
Letter of Credit or the proceeds of any Loans hereunder or the consummation of
any transactions contemplated herein (including, without limitation, the
Transaction) or in any other Credit Document or the exercise of any of their
rights or remedies provided herein or in the other Credit Documents, or (b) the
actual or alleged presence of Hazardous Materials in the air, surface water or
groundwater or on the surface or subsurface of any Real Property owned or at any
time operated by Parent or any of its Subsidiaries, the generation, storage,
transportation, handling or disposal of Hazardous Materials at any location,
whether or not owned or operated by Parent or any of its Subsidiaries, the
non-compliance of any Real Property with foreign, federal, state and local laws,
regulations, and ordinances (including applicable permits thereunder) applicable
to any Real Property, or any Environmental Claim relating in any way to Parent,
any of its Subsidiaries, their operations or any Real Property owned or at any
time operated by Parent or any of its Subsidiaries, including, in each case,
without limitation, the reasonable fees and disbursements of counsel and other
consultants incurred in connection with any such investigation, litigation or
other proceeding (but excluding any losses, liabilities, claims, damages or
expenses to the extent incurred by reason of the gross negligence or willful
misconduct of the Person to be indemnified). To the extent that the undertaking
to indemnify, pay or hold harmless the Administrative Agent, any Letter of
Credit Issuer or any Bank set forth in the preceding sentence may be
unenforceable because it is violative of any law or public policy, the Borrowers
shall make the maximum contribution to the payment and satisfaction of each of
the indemnified liabilities which is permissible under applicable law.
(b) The Borrowers further jointly and severally agree to pay the
reasonable legal fees of gaming counsel for the Administrative Agent in Nevada
and New Jersey and any other relevant state or other jurisdiction and all
reasonable costs (including costs of investigation) associated with any
qualification (or exemption or waiver therefrom) of any Bank under, or
compliance in connection with the Gaming Regulations in connection with the
syndication under this Agreement, provided that in the event that any assignee
Bank or potential assignee
(137)
Bank is not already a Qualified Person (before giving effect to any actions
taken to become such in connection with this Agreement), then all costs
associated with such Person becoming a Qualified Person shall be borne by the
respective assignee Bank or potential assignee Bank. Notwithstanding the
foregoing, after a Bank has been replaced pursuant to Section 1.13, the
Borrowers shall not be required to reimburse such Bank for any such costs
incurred by it after the date of such replacement.
13.02 Right of Setoff. In addition to any rights now or hereafter
granted under applicable law or otherwise, and not by way of limitation of any
such rights, upon the occurrence of an Event of Default, each Bank is hereby
authorized at any time or from time to time, without presentment, demand,
protest or other notice of any kind to any Credit Party or to any other Person,
any such notice being hereby expressly waived, to set off and to appropriate and
apply any and all deposits (general or special) and any other Indebtedness at
any time held or owing by such Bank (including, without limitation, by branches
and agencies of such Bank wherever located) to or for the credit or the account
of the Credit Parties against and on account of the Obligations and liabilities
of the Credit Parties to such Bank under this Agreement or under any of the
other Credit Documents, including, without limitation, all interests in
Obligations purchased by such Bank pursuant to Section 13.06(b), and all other
claims of any nature or description arising out of or connected with this
Agreement or any other Credit Document, irrespective of whether or not such Bank
shall have made any demand hereunder and although said Obligations, liabilities
or claims, or any of them, shall be contingent or unmatured, provided that such
right of set-off may only be exercised by any such Bank if Nevada Revised
Statutes 40.430(4)(g) (1989) remains in force and effect without modification.
13.03 Notices. Except as otherwise expressly provided herein, all
notices and other communications provided for hereunder shall be in writing
(including telegraphic, telex, telecopier or cable communication) and mailed,
telegraphed, telexed, telecopied, cabled or delivered: if to Parent or any
Borrower, at such Credit Party's address specified opposite its signature below
or in the respective Election to Become a Subsidiary Borrower; if to any Bank,
at its address specified opposite its name below; and if to the Administrative
Agent, at the Notice Office; or, as to any Credit Party or the Administrative
Agent, at such other address as shall be designated by such party in a written
notice to the other parties
(138)
hereto and, as to each Bank, at such other address as shall be designated by
such Bank in a written notice to the Company and the Administrative Agent. All
such notices and communications shall, when mailed, telegraphed, telexed,
telecopied, or cabled or sent by overnight courier, be effective when deposited
in the mails, delivered to the telegraph company, cable company or overnight
courier, as the case may be, or sent by telex or telecopier, except that notices
to the Administrative Agent, the Company and any Letter of Credit Issuer shall
not be effective until received by such Person.
13.04 Benefit of Agreement. (a) This Agreement shall be binding upon
and inure to the benefit of and be enforceable by the respective successors and
assigns of the parties hereto; provided, however, except as provided in Sections
9.02 and 13.17(a), no Borrower may assign or transfer any of its rights,
obligations or interest hereunder or under any other Credit Document without the
prior written consent of the Administrative Agent and the Banks (although any
Subsidiary Borrower may, at its request and with the consent of the Required
Banks, otherwise cease to be a Subsidiary Borrower hereunder so long as no
Default or Event of Default then exists and all Loans incurred by such
Subsidiary are repaid in full and the Company shall become the account party
with respect to any outstanding Letters of Credit issued for the account of such
Subsidiary Borrower pursuant to documentation satisfactory to the Administrative
Agent and the respective Letter of Credit Issuer) and, provided further, that,
although any Bank may transfer, assign or grant participations in its rights
hereunder, such Bank shall remain a "Bank" for all purposes hereunder (and may
not transfer or assign all or any portion of its Revolving Loan Commitments
hereunder except as provided in Section 13.04(b)) and the transferee, assignee
or participant, as the case may be, shall not constitute a "Bank" hereunder and,
provided further, that no Bank shall transfer or grant any participation under
which the participant shall have rights to approve any amendment to or waiver of
this Agreement or any other Credit Document except to the extent such amendment
or waiver would extend the final scheduled maturity of any Loan, Note or Letter
of Credit (unless such Letter of Credit is not extended beyond the Final
Maturity Date) in which such participant is participating, or reduce the rate or
extend the time of payment of interest or Fees thereon (except in connection
with a waiver of applicability of any post-default increase in interest rates)
or reduce the principal amount thereof, or increase the amount of the
participant's participation over the amount thereof then in effect (it being
understood that a waiver
(139)
of any Default or Event of Default or of a mandatory reduction in the Total
Revolving Loan Commitment shall not constitute a change in the terms of such
participation, and that an increase in any Revolving Loan Commitment or Loan
shall be permitted without the consent of any participant if the participant's
participation is not increased as a result thereof). In the case of any such
participation, the participant shall not have any rights under this Agreement or
any of the other Credit Documents (the participant's rights against such Bank in
respect of such participation to be those set forth in the agreement executed by
such Bank in favor of the participant relating thereto) and the Borrowers shall
continue to deal solely and directly with such Bank in connection with such
Bank's rights and obligations under this Agreement and the other Credit
Documents and all amounts payable by the Borrowers hereunder shall be determined
as if such Bank had not sold such participation. Any agreement pursuant to which
any Bank may grant such a participation shall be in a form approved by the
Administrative Agent and Parent and shall be satisfactory under the Gaming
Regulations of the State of New Jersey so as not to require participants to be
approved financial sources or qualified under such Gaming Regulations applicable
to lenders.
(b) Notwithstanding the foregoing, any Bank (or any Bank together
with one or more other Banks) may (x) assign all or a portion of its Revolving
Loan Commitments and related outstanding Obligations hereunder to its parent
company and/or any affiliate of such Bank which is at least 50% owned by such
Bank or its parent company or to one or more Banks or (y) assign all, or if less
than all, a portion equal to at least $5,000,000 in the aggregate for the
assigning Bank or assigning Banks, of such Revolving Loan Commitments and
related outstanding Obligations hereunder, in either case to one or more
Qualified Persons, each of which assignees shall become a party to this
Agreement as a Bank by execution of an Assignment and Assumption Agreement,
provided that, (i) at such time Schedule I shall be deemed modified to reflect
the Revolving Loan Commitments of such new Bank and of the existing Banks, (ii)
new Notes will be issued to such new Bank and to the assigning Bank upon the
request of such new Bank or assigning Bank, such new Notes to be in conformity
with the requirements of Section 1.05 to the extent needed to reflect the
revised Revolving Loan Commitments, (iii) the consent of BTCo and each Letter of
Credit Issuer shall be required in connection with any assignment (which consent
shall not be unreasonably withheld), (iv) the Administrative Agent shall receive
at the time of each such assignment, from either
(140)
the assigning or assignee Bank or Banks, the payment of a non-refundable
assignment fee of $3,500 in the case of any assignment to a Qualified Person
which is not a Bank immediately prior to such assignment or $1,000 in the case
of any assignment to a then existing Bank and (v) no such transfer will be
effective until recorded by the Administrative Agent on the Register pursuant to
Section 13.17(b). To the extent of any assignment pursuant to this Section
13.04(b), the assigning Bank shall be relieved of its obligations hereunder with
respect to its assigned Revolving Loan Commitments. At the time of each
assignment pursuant to this Section 13.04(b) to a Person which is not already a
Bank hereunder and which is not a United States person (as such term is defined
in Section 7701(a)(30) of the Code) for Federal income tax purposes, the
respective assignee Bank shall, to the extent legally entitled to do so, provide
to the Borrowers in the case of a Bank described in clause (ii) or (iv) of
Section 4.04(b), the forms described in such clause (ii) or (iv), as the case
may be. To the extent that an assignment of all or any portion of a Bank's
Revolving Loan Commitments and related outstanding Obligations pursuant to
Section 1.13 or this Section 13.04(b) would, at the time of such assignment,
result in increased costs under Section 1.10, 1.11 or 4.04 from those being
charged by the respective assigning Bank prior to such assignment, then the
Borrowers shall not be obligated to pay such increased costs (although the
Borrowers shall be obligated to pay any other increased costs of the type
described above resulting from changes after the date of the respective
assignment).
(c) If the New Jersey Gaming Authorities shall determine that any
Bank is not qualified as an approved financial source or otherwise does not meet
the standards pursuant to the Gaming Regulations in New Jersey, or the Nevada
Gaming Authorities shall determine that any Bank does not meet the Suitability
Standards under the Nevada Gaming Regulations or any other Gaming Authority with
jurisdiction over the gaming business of Parent and its Subsidiaries shall
determine that any Bank does not meet its suitability standards (in any such
case, a "Former Bank"), the Administrative Agent and each Letter of Credit
Issuer or the Company shall have the right (but not the duty) to designate a
bank or banks (in each case, a "Substitute Bank," which may be any Bank or Banks
that agree to become a Substitute Bank) that has agreed to assume the rights and
obligations of the Former Bank, subject to receipt by the Administrative Agent
of evidence that such Substitute Bank is a Qualified Person. The Substitute Bank
shall assume the rights and obligations of the Former Bank under this Agreement
pursuant to an Assignment and
(141)
Assumption Agreement, which assumption shall be required to comply with, and
shall become effective in accordance with, the provisions of Section 13.04(b),
provided that the purchase price to be paid by the Substitute Bank to the
Administrative Agent for the account of the Former Bank for such assumption
shall equal the sum of (i) the unpaid principal amount of any Notes held or
Loans made by the Former Bank plus accrued interest thereon plus (ii) the Former
Bank's pro rata share of the aggregate amount of Drawings under all Letters of
Credit that have not been reimbursed by the Borrowers, plus accrued interest
thereon, plus (iii) such Former Bank's pro rata share of accrued Fees to the
date of the assumption, and, provided further, the Borrowers shall pay all
obligations owing to the Former Bank under the Credit Documents (including all
obligations, if any, owing pursuant to Section 1.11, but excluding those amounts
in respect of which the purchase price is being paid as provided above). Each
Bank agrees that if it becomes a Former Bank, upon payment to it by the
Borrowers of all such amounts, if any, owing to it under the Credit Documents,
it will execute and deliver an Assignment and Assumption Agreement, upon payment
of such purchase price.
(d) Notwithstanding the provisions of subsection (c) of this Section
13.04, if any Bank becomes a Former Bank, and if the Administrative Agent or the
Company fails to find a Substitute Bank pursuant to subsection (c) of this
Section within any time period specified by the appropriate Gaming Authority for
the withdrawal of a Former Bank (the "Withdrawal Period"), the Borrowers shall,
immediately (i) prepay in full the outstanding principal amount of each Note
held or Loan made by such Former Bank, together with accrued interest thereon to
the earlier of (x) the date of payment or (y) the last day of any Withdrawal
Period, and (ii) at the option of the Company either (A) place an amount equal
to such Former Bank's Adjusted Percentage in each Letter of Credit in a separate
cash collateral account with the Administrative Agent for each outstanding
Letter of Credit which amount will be applied by the Administrative Agent to
satisfy the Borrower's reimbursement obligations to the respective Letter of
Credit Issuer in respect of Drawings under the applicable Letter of Credit or
(B) if no Default or Event of Default then exists, terminate the Revolving Loan
Commitment of such Former Bank at which time the other Banks' Percentages and
Adjusted Percentages will be automatically adjusted as a result thereof,
provided that the option specified in this clause (B) may only be exercised if,
immediately after giving effect thereto, no Bank's outstanding Revolving Loans,
when added to the product of (a) such Bank's
(142)
Adjusted Percentage and (b) the sum of (I) the aggregate amount of all Letter of
Credit Outstandings at such time and (II) the aggregate amount of all Swingline
Loans then outstanding, would exceed such Bank's Revolving Loan Commitment at
such time.
(e) Subject to the last sentence of this Section 13.04(e), each Bank
agrees that all participations and assignments made hereunder shall be subject
to, and made in compliance with, all Gaming Regulations applicable to lenders.
Each Bank agrees further that it will not grant participations or assignments
prior to receiving notice from the Administrative Agent that it has completed
the primary syndication of this facility. The Administrative Agent shall provide
such notice to the Banks promptly after completing such primary syndication.
Each Borrower hereby acknowledges that unless the Company has provided the Banks
with a written opinion of counsel as to the suitability standards applicable to
lenders of any relevant Gaming Authority (excluding New Jersey and Nevada except
to the extent that the suitability standards set forth in the Gaming Regulations
of such States change from those in effect on the First Restatement Effective
Date) with jurisdiction over the Gaming Business of Parent and its Subsidiaries,
no Bank shall have the responsibility of determining whether or not a potential
assignee of such Bank would be a Qualified Person under the Gaming Regulations
of any such jurisdiction.
(f) Nothing in this Agreement shall prevent or prohibit any Bank
from pledging its Loans and Notes hereunder to a Federal Reserve Bank in support
of borrowings made by such Bank from such Federal Reserve Bank.
13.05 No Waiver; Remedies Cumulative. No failure or delay on the
part of the Administrative Agent or any Bank or any holder of any Note in
exercising any right, power or privilege hereunder or under any other Credit
Document and no course of dealing between the Borrowers or any other Credit
Party and the Administrative Agent or any Bank or the holder of any Note shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, power or privilege hereunder or under any other Credit Document preclude
any other or further exercise thereof or the exercise of any other right, power
or privilege hereunder or thereunder. The rights, powers and remedies herein or
in any other Credit Document expressly provided are cumulative and not exclusive
of any rights, powers or remedies which the Administrative Agent or any Bank or
the holder of any Note would otherwise have. No notice to or demand on any
Credit Party in
(143)
any case shall entitle any Credit Party to any other or further notice or demand
in similar or other circumstances or constitute a waiver of the rights of the
Administrative Agent or any Bank or the holder of any Note to any other or
further action in any circumstances without notice or demand.
13.06 Payments Pro Rata. (a) Except as otherwise provided in this
Agreement, the Administrative Agent agrees that promptly after its receipt of
each payment from or on behalf of a Borrower in respect of any Obligations
hereunder, it shall distribute such payment to the Banks (other than any Bank
that has consented in writing to waive its pro rata share of any such payment)
pro rata based upon their respective shares, if any, of the Obligations with
respect to which such payment was received.
(b) Each of the Banks agrees that, if it should receive any amount
hereunder (whether by voluntary payment, by realization upon security, by the
exercise of the right of setoff or banker's lien, by counterclaim or cross
action, by the enforcement of any right under the Credit Documents, or
otherwise), which is applicable to the payment of the principal of, or interest
on, the Loans, Unpaid Drawings, Commitment Commission or Letter of Credit Fees,
of a sum which with respect to the related sum or sums received by other Banks
is in a greater proportion than the total of such Obligation then owed and due
to such Bank bears to the total of such Obligation then owed and due to all of
the Banks immediately prior to such receipt, then such Bank receiving such
excess payment shall purchase for cash without recourse or warranty from the
other Banks an interest in the Obligations of the respective Party to such Banks
in such amount as shall result in a proportional participation by all the Banks
in such amount; provided that if all or any portion of such excess amount is
thereafter recovered from such Bank, such purchase shall be rescinded and the
purchase price restored to the extent of such recovery, but without interest.
(c) Notwithstanding anything to the contrary contained herein, the
provisions of the preceding Sections 13.06(a) and (b) shall be subject to the
express provisions of this Agreement which require, or permit, differing
payments to be made to Non-Defaulting Banks as opposed to Defaulting Banks.
13.07 Calculations; Computations. (a) The financial statements to be
furnished to the Banks pursuant hereto shall be made and prepared in accordance
with generally accepted
(144)
accounting principles in the United States consistently applied throughout the
periods involved (except as set forth in the notes thereto or as otherwise
disclosed in writing by Parent to the Banks); provided that, (i) except as
otherwise specifically provided herein, all computations determining compliance
with Sections 9.03 through 9.05, inclusive, and Sections 9.07 through 9.09,
inclusive, shall utilize accounting principles and policies in conformity with
those used to prepare the historical financial statements delivered to the Banks
pursuant to Section 7.05(a), (ii) at such time as the Company and/or Showboat
deposits cash and U.S. government obligations with the respective trustees to
effect the Existing Showboat Notes Defeasances and/or the 8-3/4% Senior
Subordinated Notes Redemption, the Existing Showboat Notes and/or the 8-3/4%
Senior Subordinated Notes, as the case may be, shall no longer be considered
outstanding for purposes of Sections 9.07, 9.08 and 9.09 and (iii) at no time
shall (I) HNOIC (so long as HNOIC's only significant business activities, assets
or liabilities are associated with its general partner's interest in Xxxxxx'x
Jazz), (II) Xxxxxx'x Jazz and its Subsidiaries or (III) JCC Holding and its
Subsidiaries be treated as Subsidiaries of Parent for purposes of this Agreement
even though (x) HNOIC, Xxxxxx'x Jazz and its Subsidiaries and JCC Holding and
its Subsidiaries may at any time fall within the definition of "Subsidiary" or
(y) generally accepted accounting principles would require otherwise, but shall,
in each case instead be treated as an equity investment by Parent.
(b) All computations of interest, Commitment Commission and other
Fees hereunder shall be made on the basis of a year of 360 days for the actual
number of days (including the first day but excluding the last day) occurring in
the period for which such interest, Commitment Commission or other Fees are
payable.
13.08 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF
JURY TRIAL. (a) THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE CONSTRUED IN
ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK. ANY LEGAL
ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT
MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES
FOR THE SOUTHERN DISTRICT OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS
AGREEMENT, EACH OF PARENT AND EACH BORROWER HEREBY IRREVOCABLY ACCEPTS FOR
ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE
JURISDICTION OF THE AFORESAID COURTS. EACH OF PARENT AND
(145)
EACH BORROWER HEREBY FURTHER IRREVOCABLY WAIVES ANY CLAIM THAT ANY SUCH COURTS
LACK PERSONAL JURISDICTION OVER IT, AND AGREES NOT TO PLEAD OR CLAIM, IN ANY
LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER CREDIT
DOCUMENTS BROUGHT IN ANY OF THE AFOREMENTIONED COURTS, THAT SUCH COURTS LACK
PERSONAL JURISDICTION OVER IT. EACH OF PARENT AND EACH BORROWER FURTHER
IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED
COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY
REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO SUCH CREDIT PARTY AT ITS
ADDRESS SET FORTH OPPOSITE ITS SIGNATURE BELOW, SUCH SERVICE TO BECOME EFFECTIVE
30 DAYS AFTER SUCH MAILING. EACH OF PARENT AND EACH BORROWER HEREBY IRREVOCABLY
WAIVES ANY OBJECTION TO SUCH SERVICE OF PROCESS AND FURTHER IRREVOCABLY WAIVES
AND AGREES NOT TO PLEAD OR CLAIM IN ANY ACTION OR PROCEEDING COMMENCED HEREUNDER
OR UNDER ANY OTHER CREDIT DOCUMENT THAT SERVICE OF PROCESS WAS IN ANY WAY
INVALID OR INEFFECTIVE. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE
ADMINISTRATIVE AGENT, ANY BANK OR THE HOLDER OF ANY NOTE TO SERVE PROCESS IN ANY
OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE
PROCEED AGAINST ANY SUCH CREDIT PARTY IN ANY OTHER JURISDICTION.
(b) EACH OF PARENT AND EACH BORROWER HEREBY IRREVOCABLY WAIVES ANY
OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF
THE AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT OR ANY OTHER CREDIT DOCUMENT BROUGHT IN THE COURTS REFERRED TO IN
CLAUSE (a) ABOVE AND HEREBY FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD
OR CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY
SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
(c) EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES
ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING
OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER CREDIT DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
13.09 Counterparts. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A set of counterparts
executed by all the parties hereto shall be lodged with the Borrowers and the
Administrative Agent. Delivery of an executed signature page of this Agreement
or any other Credit Document by
(146)
facsimile transmission shall be as effective as delivery of a manually executed
counterpart thereof.
13.10 Effectiveness. This Agreement shall become effective on the
date (the "Second Restatement Effective Date") and at the time on which (i)
Parent, the Company, each existing Subsidiary Borrower, the Required Banks
(under, and as defined in, the Existing Credit Agreement), each Bank whose
Revolving Loan Commitment is being increased on the Second Restatement Effective
Date and each New Bank shall have signed a counterpart hereof (whether the same
or different counterparts) and shall have delivered the same to the
Administrative Agent at the Notice Office or, in the case of the Banks, shall
have given to the Administrative Agent telephonic (confirmed in writing),
written or telex notice (actually received) at such office that the same has
been signed and mailed to it and (ii) the conditions contained in Sections 5A
and 6 are met to the satisfaction of the Administrative Agent and the Required
Banks. Unless the Administrative Agent has received actual notice from any Bank
that the conditions contained in Sections 5A and 6 have not been met to its
satisfaction, upon the satisfaction of the condition described in clause (i) of
the immediately preceding sentence and upon the Administrative Agent's good
faith determination that the conditions described in clause (ii) of the
immediately preceding sentence have been met, then the Second Restatement
Effective Date shall have been deemed to have occurred, regardless of any
subsequent determination that one or more of the conditions thereto had not been
met (although the occurrence of the Second Restatement Effective Date shall not
release Parent or any Borrower from any liability for failure to satisfy one or
more of the applicable conditions contained in Section 5A or 6). The
Administrative Agent will give Parent, the Company, each existing Subsidiary
Borrower and each Bank prompt written notice of the occurrence of the Second
Restatement Effective Date.
13.11 Headings Descriptive. The headings of the several sections and
subsections of this Agreement are inserted for convenience only and shall not in
any way affect the meaning or construction of any provision of this Agreement.
13.12 Amendment or Waiver. (a) Neither this Agreement nor any other
Credit Document nor any terms hereof or thereof may be changed, waived,
discharged or terminated unless such change, waiver, discharge or termination is
in writing signed by the respective Credit Parties party thereto (except as
otherwise provided in Section 13.02) and the Required Banks (or
(147)
the Required Secured Parties in the case of a change, waiver, discharge or
termination with respect to a Collateral Document to the extent provided
therein), provided that no such change, waiver, discharge or termination shall,
without the consent of each Bank (other than a Defaulting Bank) (with
Obligations being directly affected thereby), (i) extend the final scheduled
maturity of any Loan or Note or extend the stated maturity of any Letter of
Credit beyond the Final Maturity Date, or reduce the rate or extend the time of
payment of interest or Fees thereon, or reduce the principal amount thereof,
(ii) release all or substantially all of the Collateral (except as expressly
provided in the Collateral Documents) under all the Collateral Documents,
provided that such release of Collateral may be effected by only the Required
Banks if at the time of such release the Company's Indebtedness shall be rated
at least BBB- Senior Implied by S&P or Baa3 Senior Implied by Xxxxx'x, (iii)
amend, modify or waive any provision of this Section 13.12, (iv) reduce the
percentage specified in the definition of Required Banks (it being understood
that, with the consent of the Required Banks, additional extensions of credit
pursuant to this Agreement may be included in the determination of the Required
Banks on substantially the same basis as the extensions of Revolving Loan
Commitments are included on the Restatement Effective Date) or (v) except as set
forth in Section 9.02, 9.04(ix) or 13.17(a), consent to the assignment or
transfer by any Borrower of any of its rights and obligations under this
Agreement (although any Subsidiary Borrower may, at its request and with the
consent of the Required Banks, otherwise cease to be a Subsidiary Borrower
hereunder so long as no Default or Event of Default exists and all Loans
incurred by such Subsidiary Borrower are repaid in full and the Company shall
become the account party with respect to any outstanding Letters of Credit
issued for the account of such Subsidiary Borrower pursuant to documentation
satisfactory to the Administrative Agent and the respective Letter of Credit
Issuer); provided further, that no such change, waiver, discharge or termination
shall (v) increase the Revolving Loan Commitment of any Bank over the amount
thereof then in effect without the consent of such Bank (it being understood
that waivers or modifications of conditions precedent, covenants, Defaults or
Events of Default or of a mandatory reduction in the Total Revolving Loan
Commitment shall not constitute an increase of the Revolving Loan Commitment of
any Bank, and that an increase in the available portion of any Revolving Loan
Commitment of any Bank shall not constitute an increase in the Revolving Loan
Commitment of such Bank), (w) without the consent of each Letter of Credit
Issuer, amend, modify or waive any provision of Section
(148)
2 or 3.01(c) or alter its rights or obligations with respect to Letters of
Credit, (x) without the consent of BTCo, alter its rights and obligations with
respect to Swingline Loans, (y) without the consent of the Administrative Agent,
amend, modify or waive any provision of Section 12 or any other provision as
same relates to the rights or obligations of the Administrative Agent and (z)
without the consent of the Collateral Agent, amend, modify or waive any
provision relating to the rights or obligations of the Collateral Agent.
Notwithstanding anything to the contrary contained above, any Letter of Credit
may be modified by the respective Letter of Credit Issuer so long as the terms
thereof would be permitted in a newly issued Letter of Credit in accordance with
Section 2.
(b) If, in connection with any proposed change, waiver, discharge or
termination to any of the provisions of this Agreement as contemplated by
clauses (i) through (v), inclusive, of the first proviso to Section 13.12(a),
the consent of the Required Banks is obtained but the consent of one or more of
such other Banks whose consent is required is not obtained, then the Company
shall have the right, so long as all non-consenting Banks whose individual
consent is required are treated as described in either clauses (A) or (B) below,
to either (A) replace each such non-consenting Bank or Banks with one or more
Replacement Banks pursuant to Section 1.13 so long as at the time of such
replacement, each such Replacement Bank consents to the proposed change, waiver,
discharge or termination or (B) terminate such non-consenting Bank's Revolving
Loan Commitment and repay all outstanding Revolving Loans of such Bank in
accordance with Sections 3.02(b) and/or 4.01(iv), provided that, unless the
Revolving Loan Commitments are terminated, and Revolving Loans repaid, pursuant
to preceding clause (B) are immediately replaced in full at such time through
the addition of new Banks or the increase of the Revolving Loan Commitments
and/or outstanding Revolving Loans of existing Banks (who in each case must
specifically consent thereto), then in the case of any action pursuant to
preceding clause (B) the Required Banks (determined before giving effect to the
proposed action) shall specifically consent thereto, provided further, that in
any event the Company shall not have the right to replace a Bank, terminate its
Revolving Loan Commitment or repay its Revolving Loans solely as a result of the
exercise of such Bank's rights (and the withholding of any required consent by
such Bank) pursuant to the second proviso to Section 13.12(a).
(149)
13.13 Survival. All indemnities set forth herein (including, without
limitation, in Sections 1.10, 1.11, 2.06, 4.04, 12.06 and 13.01) shall survive
the execution, delivery and termination of this Agreement and the Notes and the
making and repayment of the Loans. Notwithstanding the occurrence of the Second
Restatement Effective Date, all indemnities set forth in the Existing Credit
Agreement for the Existing Banks and the Existing Agents shall survive in
accordance with the terms thereof.
13.14 Domicile of Loans. (a) Each Bank may transfer and carry its
Loans at, to or for the account of any office, Subsidiary or Affiliate of such
Bank. In addition, each Bank (each, a "Designating Bank") may, with the prior
written consent of the Administrative Agent and the Company (each of which
consents shall not be unreasonably withheld) and on terms and conditions
reasonably satisfactory to the Administrative Agent and the Company, designate a
special purpose corporation (each, a "Designated Bank") to make Revolving Loans
in respect of such Designating Bank's Revolving Loan Commitment, provided that
(i) such Designating Bank shall remain the "Bank" for all purposes of this
Agreement and the other Credit Documents, shall not otherwise be relieved of any
of its obligations under this Agreement or any such other Credit Document
(including, without limitation, its obligations under Sections 1.01(a), 1.01(c),
2.04 and 12.06) and shall be liable for any losses, claims, damages or expenses
incurred by any Credit Party, the Administrative Agent or any Bank as a result
of such Designating Bank's designation of any such special purpose corporation
as a Designated Bank, (ii) all payments entitled to be received by such
Designated Bank with respect to the Revolving Loans made by it in respect of
such Designating Bank's Revolving Loan Commitment shall be made directly to such
Designating Bank for the distribution to such Designated Bank, (iii) the Credit
Parties and the Administrative Agent shall continue to deal solely with the
respective Designating Bank and such Designated Bank shall not have any right to
approve any amendment, modification or waiver to this Agreement or any other
Credit Document, and all amendments, waivers, consents and/or modifications to
this Agreement and the other Credit Documents which are binding on such
Designating Bank also shall be binding on such Designated Bank regardless of
whether or not such Designated Bank actually had notice of any such amendment,
waiver, consent and/or other modification and (iv) each Designating Bank may
only designate one Designated Bank at any time to make Revolving Loans in
respect of such Designating Bank's Revolving Loan Commitment. In addition, each
(150)
party hereto hereby agrees that prior to the date that is one year and one day
after the payment in full of all outstanding senior indebtedness of any
Designated Bank, no party will institute against, or join any other Person in
instituting against, such Designated Bank any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under any federal or state
bankruptcy or similar law arising from any actions of such Designated Bank under
this Agreement.
(b) Notwithstanding anything to the contrary contained herein, to
the extent that a transfer of Loans pursuant to this Section 13.14 would, at the
time of such transfer, result in increased costs under Section 1.10, 1.11 or
4.04 from those being charged by the respective Bank prior to such transfer,
then the Borrowers shall not be obligated to pay such increased costs (although
the Borrowers shall be obligated to pay any other increased costs of the type
described above resulting from changes after the date of the respective
transfer).
13.15 Application of Gaming Regulations. Parent, the Company, each
Subsidiary Borrower and the Banks acknowledge that the consummation of the
transactions contemplated by the Credit Documents is subject to the Gaming
Regulations (and Parent, the Company and each Subsidiary Borrower represent and
warrant that all requisite approvals thereunder have been duly obtained).
13.16 Confidentiality. (a) Subject to the provisions of clause (b)
of this Section 13.16, each Bank agrees that it will use its best effort not to
disclose without the prior consent of the Company (other than to its employees,
auditors or counsel or to another Bank if the Bank or such Bank's holding or
parent company in its sole discretion determines that any such party should have
access to such information) any information with respect to Parent or any of its
Subsidiaries which is now or in the future furnished pursuant to this Agreement
or any other Credit Document and which is designated by the Company to the Banks
in writing as confidential, provided that any Bank may disclose any such
information (a) as has become generally available to the public, (b) as may be
required or appropriate in any report, statement or testimony submitted to any
municipal, state or Federal regulatory body having or claiming to have
jurisdiction over such Bank or to the Federal Reserve Board or the Federal
Deposit Insurance Corporation or similar organizations (whether in the United
States or elsewhere) or their successors, (c) as may be required or appropriate
in respect to any summons or subpoena or in connection with any
(151)
litigation, (d) in order to comply with any law, order, regulation or ruling
applicable to such Bank, and (e) to any prospective or actual transferee or
participant in connection with any contemplated transfer or participation of any
of the Notes or Revolving Loan Commitments or any interest therein by such Bank,
provided, that such prospective transferee or participant executes an agreement
with such Bank containing provisions substantially identical to those contained
in this Section.
(b) Each Borrower hereby acknowledges and agrees that each Bank may
share with any of its affiliates any information related to Parent or any of its
Subsidiaries (including, without limitation, any nonpublic customer information
regarding the creditworthiness of Parent and its Subsidiaries).
13.17 Miscellaneous; Register. (a) Notwithstanding anything to the
contrary contained in this Agreement, the Required Banks may consent to a
corporate reorganization of Parent and its Subsidiaries, which corporate
reorganization may include the transfer of one or more Subsidiaries of the
Company as direct Subsidiaries of Parent. In connection with any such corporate
reorganization, the Required Banks may, at their option, require that Parent or
one or more of its Subsidiaries become direct borrowers with respect to the
Obligations. In addition, any necessary amendments or supplements to this
Agreement or the other Credit Documents to effect such corporate reorganization,
including to retain the benefits of the Guarantees, may be made with consent of
the Required Banks.
(b) The Borrowers hereby designate the Administrative Agent to serve
as the Borrowers' agent, solely for purposes of this Section 13.17(b), to
maintain a register (the "Register") on which it will record the Revolving Loan
Commitment from time to time of each of the Banks, the Loans made by each of the
Banks and each Designated Bank, if any, and each repayment in respect of the
principal amount of the Loans of each Bank and each Designated Bank, if any (it
being understood and agreed that any repayment of Revolving Loans of a
Designated Bank is subject to clause (ii) of Section 13.14(a)). Failure to make
any such recordation, or any error in such recordation shall not affect the
Borrowers' obligations in respect of such Loans. With respect to any Bank, the
transfer of the Revolving Loan Commitment of such Bank and the rights to the
principal of, and interest on, any Loan made pursuant to such Revolving Loan
Commitment shall not be effective until such transfer is recorded
(152)
on the Register maintained by the Administrative Agent with respect to ownership
of such Revolving Loan Commitment and Loans and prior to such recordation all
amounts owing to the transferor with respect to such Revolving Loan Commitment
and Loans shall remain owing to the transferor. The registration of assignment
or transfer of all or part of any Revolving Loan Commitment and Loans shall be
recorded by the Administrative Agent on the Register only upon the acceptance by
the Administrative Agent of a properly executed and delivered Assignment and
Assumption Agreement pursuant to Section 13.04(b). Coincident with the delivery
of such an Assignment and Assumption Agreement to the Administrative Agent for
acceptance and registration of assignment or transfer of all or part of a Loan,
or as soon thereafter as practicable, the assigning or transferor Bank shall
surrender the Note, if any, evidencing such Loan, and thereupon one or more new
Notes in the same aggregate principal amount shall be issued to the assigning or
transferor Bank and/or the new Bank, if requested by any such Bank. Each
Borrower agrees to indemnify the Administrative Agent from and against any and
all losses, claims, damages and liabilities of whatsoever nature which may be
imposed on, asserted against or incurred by the Administrative Agent in
performing its duties under this Section 13.17(b) (other than any losses,
claims, damages and liabilities to the extent incurred by reason of the gross
negligence or willful misconduct of the Administrative Agent).
13.18 Requisite Gaming Approvals. Notwithstanding anything to the
contrary contained elsewhere in this Agreement or in the other Credit Documents,
it is understood and agreed that to become effective, the Xxxxxxxx/Las Vegas
Stock Restrictions require the approvals described in the definition thereof
(the "Xxxxxxxx/Las Vegas Stock Restrictions Requisite Gaming Approvals"). On the
Second Restatement Effective Date, the Company in good faith believes that it
shall be able to obtain the Xxxxxxxx/Las Vegas Stock Restrictions Requisite
Gaming Approvals on or prior to July 31, 1998. Notwithstanding anything to the
contrary contained in this Agreement or in any other Credit Document, unless and
until the Xxxxxxxx/Las Vegas Stock Restrictions Requisite Gaming Approvals have
been obtained, the Xxxxxxxx/Las Vegas Stock Restrictions contained in Sections
9.01 and 9.02 shall not apply (although the provisions of Section 10.11 shall be
fully effective in accordance with the terms thereof, with the Borrowers hereby
representing and warranting that no approvals or consents from any Gaming
Authority are required for the effectiveness of said Section in accordance with
the express terms thereof). Furthermore, the Company agrees to
(153)
use its best efforts to obtain as promptly as practicable the Xxxxxxxx/Las Vegas
Stock Restrictions Requisite Gaming Approvals.
SECTION 14. Parent Guaranty.
14.01 The Guaranty. In order to induce the Administrative Agent and
Banks to enter into this Agreement and to extend credit hereunder and in
recognition of the direct benefits to be received by Parent from the proceeds of
the Loans and the issuance of the Letters of Credit, Parent hereby agrees with
the Administrative Agent, the Banks and the Interest Rate Protection Creditors
as follows: Parent hereby unconditionally and irrevocably guarantees as primary
obligor and not merely as surety the full and prompt payment and performance
when due, whether upon maturity, by acceleration or otherwise, of any and all of
the Guaranteed Obligations of the Borrowers to the Administrative Agent, the
Banks and the Interest Rate Protection Creditors. If any or all of the
Guaranteed Obligations of the Borrowers to the Administrative Agent, the Banks
or the Interest Rate Protection Creditors becomes due and payable, Parent
unconditionally promises to pay such indebtedness to the Administrative Agent,
the Banks and the Interest Rate Protection Creditors, or order, on demand,
together with any and all reasonable expenses which may be incurred by the
Administrative Agent, the Banks or the Interest Rate Protection Creditors in
collecting any of the Guaranteed Obligations. This Guaranty is a guaranty of
payment and not collection.
14.02 Bankruptcy. Additionally, Parent unconditionally and
irrevocably guarantees the payment of any and all of the Guaranteed Obligations
of the Borrowers to the Administrative Agent, the Banks and the Interest Rate
Protection Creditors whether or not due or payable by the Borrowers upon the
occurrence in respect of any Borrowers of any of the events specified in Section
10.05, and unconditionally and irrevocably promises to pay such Guaranteed
Obligations to the Administrative Agent, the Banks or the Interest Rate
Protection Creditors, as the case may be, or order, on demand, in Dollars.
14.03 Nature of Liability. The liability of Parent hereunder is
exclusive and independent of any security for or other guaranty of the
Guaranteed Obligations of the Borrowers whether executed by Parent, any other
Guarantor, any other guarantor or by any other
(154)
party, and the liability of Parent hereunder shall not be affected or impaired
by (a) any direction as to application of payment by any Borrower or by any
other party (other than for misappropriation of funds by the respective Bank),
or (b) any other continuing or other guaranty, undertaking or maximum liability
of a guarantor or of any other party as to the Guaranteed Obligations of any
Borrower, or (c) any payment on or in reduction of any such other guaranty or
undertaking, or (d) any dissolution, termination or increase, decrease or change
in personnel by any Borrower, or (e) any payment made to the Administrative
Agent, the Banks or the Interest Rate Protection Creditors on the indebtedness
which the Administrative Agent, such Banks or such Interest Rate Protection
Creditors repay to such Borrower pursuant to court order in any bankruptcy,
reorganization, arrangement, moratorium or other debtor relief proceeding, and
Parent waives any right to the deferral or modification of its obligations
hereunder by reason of any such proceeding.
14.04 Independent Obligation. The obligations of Parent hereunder
are independent of the obligations of any other Guarantor, any other guarantor
or any Borrower, and a separate action or actions may be brought and prosecuted
against Parent whether or not action is brought against any other Guarantor, any
other guarantor or any Borrower and whether or not any other Guarantor, any
other guarantor or any Borrower be joined in any such action or actions. Parent
waives, to the fullest extent permitted by law, the benefit of any statute of
limitations affecting its liability hereunder or the enforcement thereof. Any
payment by any Borrower or other circumstance which operates to toll any statute
of limitations as to such Borrower shall operate to toll the statute of
limitations as to Parent.
14.05 Authorization. Parent authorizes the Administrative Agent, the
Banks and the Interest Rate Protection Creditors without notice or demand
(except (i) as shall be required by applicable statute and cannot be waived and
(ii) for any consents of the respective Credit Parties required by the terms of
the respective Credit Documents), and without affecting or impairing its
liability hereunder, from time to time to:
(a) change the manner, place or terms of payment of, and/or change
or extend the time of payment of, renew, increase, accelerate or alter,
any of the Guaranteed Obligations (including any increase or decrease in
the rate of interest thereon), any security therefor, or any liability
incurred directly or indirectly in respect thereof, and the Parent
Guaranty herein made shall apply to
(155)
the Guaranteed Obligations as so changed, extended, renewed or altered;
(b) take and hold security for the payment of the Guaranteed
Obligations and sell, exchange, release, surrender, realize upon or
otherwise deal with in any manner and in any order any property by
whomsoever at any time pledged or mortgaged to secure, or howsoever
securing, the Guaranteed Obligations or any liabilities (including any of
those hereunder) incurred directly or indirectly in respect thereof or
hereof, and/or any offset there against;
(c) exercise or refrain from exercising any rights against any
Borrower or others or otherwise act or refrain from acting;
(d) release or substitute any one or more endorsers, guarantors, any
Borrower or other obligors;
(e) settle or compromise any of the Guaranteed Obligations, any
security therefor or any liability (including any of those hereunder)
incurred directly or indirectly in respect thereof or hereof, and may
subordinate the payment of all or any part thereof to the payment of any
liability (whether due or not) of any Borrower to its creditors other than
the Administrative Agent, the Banks and the Interest Rate Protection
Creditors;
(f) apply any sums by whomsoever paid or howsoever realized to any
liability or liabilities of the Borrowers to the Administrative Agent, the
Banks and the Interest Rate Protection Creditors regardless of what
liability or liabilities of Parent or the Borrowers remain unpaid; and/or
(g) consent to or waive any breach of, or any act, omission or
default under, this Agreement or any of the instruments or agreements
referred to herein, or otherwise amend, modify or supplement this
Agreement or any of such other instruments or agreements.
14.06 Reliance. It is not necessary for the Administrative Agent,
the Banks or the Interest Rate Protection Creditors to inquire into the capacity
or powers of Parent or its Subsidiaries or the officers, directors, partners or
agents acting or purporting to act on its behalf, and any Guaranteed
(156)
Obligations made or created in reliance upon the professed exercise of such
powers shall be guaranteed hereunder.
14.07 Subordination. Any of the indebtedness of the Borrowers
relating to the Guaranteed Obligations now or hereafter owing to Parent is
hereby subordinated to the Guaranteed Obligations of the Borrowers owing to the
Administrative Agent, the Banks and the Interest Rate Protection Creditors,
provided that payment may be made by any Borrower on any such indebtedness
relating to the Guaranteed Obligations owing to Parent so long as the same is
not prohibited by this Agreement and provided further, that if the
Administrative Agent so requests at a time when an Event of Default exists, all
such indebtedness relating to the Guaranteed Obligations of the Borrowers to
Parent shall be collected, enforced and received by Parent for the benefit of
the Banks and the Interest Rate Protection Creditors and be paid over to the
Administrative Agent on behalf of the Administrative Agent, the Banks and the
Interest Rate Protection Creditors on account of the Guaranteed Obligations of
the Borrowers to the Administrative Agent, the Banks, but without affecting or
impairing in any manner the liability of Parent under the other provisions of
this Parent Guaranty. Prior to the transfer by Parent of any note or negotiable
instrument evidencing any of the indebtedness relating to the Guaranteed
Obligations of the Borrowers to Parent, Parent shall xxxx such note or
negotiable instrument with a legend that the same is subject to this
subordination.
14.08 Waiver. (a) Parent waives any right (except as shall be
required by applicable statute and cannot be waived) to require the
Administrative Agent, the Banks or the Interest Rate Protection Creditors to (i)
proceed against any Borrower, any other Guarantor, any other guarantor or any
other party, (ii) proceed against or exhaust any security held from any
Borrower, any other Guarantor, any other guarantor or any other party or (iii)
pursue any other remedy in the Administrative Agent's, the Banks' or the
Interest Rate Protection Creditors' power whatsoever. Parent waives any defense
based on or arising out of any defense of any Borrower, any other Guarantor, any
other guarantor or any other party other than payment in full of the Guaranteed
Obligations, including, without limitation, any defense based on or arising out
of the disability of any Borrower, any other Guarantor, any other guarantor or
any other party, or the unenforceability of the Guaranteed Obligations or any
part thereof from any cause, or the cessation from any cause of the liability of
any Borrower other than payment in full of
(157)
the Guaranteed Obligations. The Administrative Agent, the Banks and the Interest
Rate Protection Creditors may, at their election, foreclose on any security held
by the Administrative Agent, the Collateral Agent, the Banks or the Interest
Rate Protection Creditors by one or more judicial or nonjudicial sales, whether
or not every aspect of any such sale is commercially reasonable (to the extent
such sale is permitted by applicable law), or exercise any other right or remedy
the Administrative Agent, the Banks and the Interest Rate Protection Creditors
may have against any Borrower or any other party, or any security, without
affecting or impairing in any way the liability of Parent hereunder except to
the extent the Guaranteed Obligations have been paid. Parent waives any defense
arising out of any such election by the Administrative Agent, the Banks and the
Interest Rate Protection Creditors, even though such election operates to impair
or extinguish any right of reimbursement or subrogation or other right or remedy
of Parent against any Borrower or any other party or any security.
(b) Parent waives all presentments, demands for performance,
protests and notices, including without limitation notices of nonperformance,
notices of protest, notices of dishonor, notices of acceptance of this Parent
Guaranty, and notices of the existence, creation or incurring of new or
additional Guaranteed Obligations. Parent assumes all responsibility for being
and keeping itself informed of the Borrowers' financial condition and assets,
and of all other circumstances bearing upon the risk of nonpayment of the
Guaranteed Obligations and the nature, scope and extent of the risks which
Parent assumes and incurs hereunder, and agrees that the Administrative Agent,
the Banks and the Interest Rate Protection Creditors shall have no duty to
advise Parent of information known to them regarding such circumstances or
risks.
* * *
(158)
IN WITNESS WHEREOF, the parties hereto have caused their duly authorized
officers to execute and deliver this Agreement as of the date first above
written.
Address:
0000 Xxxxxx Xxxx XXXXXX'X ENTERTAINMENT, INC.
Xxxxxxx, Xxxxxxxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000 By /s/ Xxxxxxx X. Xxxxxx
Attention: Treasurer -------------------------------------
Title: Vice President & Treasurer
with a copy to the same
address to the attention
of the Corporate Secretary
0000 Xxxxxx Xxxx XXXXXX'X OPERATING COMPANY, INC.
Xxxxxxx, Xxxxxxxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000 By /s/ Xxxx Xxxxxxxx
Attention: Treasurer -------------------------------------
Title: Authorized Signatory
with a copy to the same
address to the attention
of the Corporate Secretary
0000 Xxxxxx Xxxx MARINA ASSOCIATES
Xxxxxxx, Xxxxxxxxx 00000
Tel: (000) 000-0000 By: XXXXXX'X ATLANTIC CITY, INC.,
Fax: (000) 000-0000 a general partner
Attention: Treasurer
with a copy to the same By /s/ Xxxxxxx X. Xxxxxxxx
address to the attention -------------------------------------
of the Corporate Secretary Title: Authorized Signatory
By: XXXXXX'X NEW JERSEY, INC.,
a general partner
By /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------------
Title: Authorized Signatory
000 Xxxxxxx Xxxxxx BANKERS TRUST COMPANY,
New York, New York 10006 Individually and as
Tel: (000) 000-0000 Administrative Agent
Fax: (000) 000-0000
Attention: May Xxx Xxxxx
By /s/ Xxxx X. Xxxxxxxx
-------------------------------------
Title: Vice President
with a copy to the same
address to the attention
of Xxxxxx Xxxxxx
000 Xxxxx Xxxxxx Xxxxxx XXXX XX XXXXXXX NATIONAL
Xxx Xxxxxxx, XX 00000 TRUST AND SAVINGS ASSOCIATION,
Tel: (000) 000-0000 Individually and as Documentation
Fax: (000) 000-0000 Agent
Attention: Xxxxx Xxxxx
By /s/ Xxxxx Xxxxx
-------------------------------------
Title: Vice President
2029 Century Park East SOCIETE GENERALE, Individually
Suite 2900 and as a Co-Syndication Agent
Xxx Xxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000 By /s/ Xxxxxx X. Xxxxxxxx
Attention: Xxx Xxxxxxxx -------------------------------------
Title: First Vice President
000 Xxxxx Xxxxx Xxxxxx XXXXXXXX IMPERIAL BANK OF
Suite 2600 COMMERCE, Individually
Xxx Xxxxxxx, XX 00000 and as a Co-Syndication Agent
Tel: (000) 000-0000
Fax: (000) 000-0000 By /s/ Xxxx X. Xxxxxxx
Attention: Xxxxx Xxxxxxx -------------------------------------
Title: Managing Director
CIBC Xxxxxxxxxxx Corp., AS AGENT
0000 Xxxxx 0 Xxxxx XXXXX BANK, N.A.
Xxxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000 By /s/ Xxxx Xxxxxxxx
Attention: Xxxx Xxxxxxxx -------------------------------------
Title: Vice President
One East First Street XXXXX FARGO BANK, NATIONAL
Suite 300 ASSOCIATION
Xxxx, XX 00000
Tel: (000) 000-0000 By /s/ Xxx Xxxxxx
Fax: (000) 000-0000 -------------------------------------
Attention: Xxx Xxxxxx Title: Vice President
000 Xxxxx Xxxxx Xxxxxx NATIONSBANK, N.A. (SOUTH)
Xxxxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000 By /s/ Xxxx Xxxxxxxxx
Attention: Xxxx Xxxxxxxx -------------------------------------
Title: Vice President
1211 Avenue of the Americas WESTDEUTSCHE LANDESBANK
New York, NY GIROZENTRALE, NEW YORK BRANCH
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxx Xxxxxxxx By /s/ Xxxx X. Xxxxxxxx
-------------------------------------
Title: Vice President
By /s/ Xxxxx Xxxxxx
-------------------------------------
Title: Associate
000 Xxxxxxxx THE LONG-TERM CREDIT BANK OF
Xxx Xxxx, XX 00000 JAPAN, LIMITED, NEW YORK BRANCH
Tel: (000) 000-0000
Fax: (000) 000-0000
By /s/ Xxxxxx Xxxxxxx
-------------------------------------
Title: Senior Vice President
Two Tower Center Boulevard PNC BANK, NATIONAL ASSOCIATION
Xxxx Xxxxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000 By /s/ Xxxxxx X. Xxxxxx
Attention: Xxxxxx X. Xxxxxx -------------------------------------
Title: Vice President
Xxx Xxxx Xxxxxx XXX XXXX XX XXX XXXX
Xxx Xxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000 By /s/ Xxxx X. Xxxxxx, Xx.
Attention: Xxxx Xxxxx Xxxxxx -------------------------------------
Title: Vice President
One Peachtree Center CREDIT LYONNAIS ATLANTA AGENCY
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 0000
Xxxxxxx, XX 00000 By /s/ Xxxxx X. Xxxxxx
Tel: (000) 000-0000 -------------------------------------
Fax: (000) 000-0000 Title: First Vice President &
Attention: Xxxxxxxxx Xxxxxxxx Manager
00 Xxxx 00xx Xxxxxx DEUTSCHE BANK AG, acting through its
Xxx Xxxx, XX 00000 Xxx Xxxx Branch
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxxx Xxxxx By /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------------------
Title: Director
By /s/ Xxxxxx Xxxxx
-------------------------------------
Title: Vice President
Georgia-Pacific Center THE SUMITOMO BANK, LIMITED,
Suite 3210 ATLANTA AGENCY
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, XX 00000
Tel: (000) 000-0000 By /s/ Xxxx Xxxxxx
Fax: (000) 000-0000 -------------------------------------
Attention: Xxxx Xxxxxx Title: Vice President
000 Xxxxxxx Xxxxxx THE MITSUBISHI TRUST & BANKING
26th Floor CORP.
Xxx Xxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000 By /s/ Xxxxxxxxx Xxxxxxx
Attention: Xxx Xxxxxxx -------------------------------------
Title: Senior Vice President
000 X.X. Xxx Xxxxxx, XX-0 XXXXXX XXXXXX NATIONAL BANK OF
Xxxxxxxx, XX 00000 OREGON
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxx Xxxxxxxx By /s/ Xxxx Xxxxxxxx
-------------------------------------
Title: Vice President
Georgia-Pacific Center THE SANWA BANK, LIMITED,
Suite 4950 ATLANTA AGENCY
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, XX 00000
Tel: (000) 000-0000 By /s/ Xxxxxx X. Xxxxx
Fax: (000) 000-0000 -------------------------------------
Attention: Xxxxxx Xxxxx Title: Vice President
000 Xxxxxxxxxx Xxxxxx ABN AMRO BANK N.V., SAN FRANCISCO
Suite 4550 BRANCH
Xxx Xxxxxxxxx, XX 00000
Tel: (000) 000-0000 By: ABN AMRO NORTH AMERICA,
Fax: (000) 000-0000 INC., as its Agent
Attention: Xxxxxxx Xxxxxxxxx
By /s/ Xxxxxx Xxxxxxxx-Xxxxxxx
-------------------------------------
Title: Vice President & Director
By /s/ Xxxxxxx Xxxxxxxxx
-------------------------------------
Title: Asst. Vice Pres. &
Credit Analyst
000 Xxxxxxxxx Xxxxxx, X.X. THE BANK OF NOVA SCOTIA
Xxxxx 0000
Xxxxxxx, XX 00000
Tel: (000) 000-0000 By /s/ F.C.H. Xxxxx
Fax: (000) 000-0000 -------------------------------------
Attention: F.C.H. Xxxxx Title: Sr. Manager Loan
Operations
000 Xxxx Xxxxx Xxxxxx XXXXXXXXXXX XX, XXX XXXXXXX XXXXXX
Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Tel: (000) 000-0000 By /s/ Christian Jagenberg
Fax: (000) 000-0000 -------------------------------------
Attention: Xxxxxx Xxxxxxxxxxx Title: Sr. Vice President &
Manager
By /s/ Xxxxxx Xxxxxxxxxxx
-------------------------------------
Title: Vice President
00 Xxxx 000 Xxxxx FIRST SECURITY BANK, X.X.
0xx Xxxxx
Xxxx Xxxx Xxxx, XX 00000
Tel: (000) 000-0000 By /s/ Xxxxx X. Xxxxxxxx
Fax: (000) 000-0000 -------------------------------------
Attention: Xxxxx Xxxxxxxx Title: Vice President
191 Peachtree Tower THE INDUSTRIAL BANK OF JAPAN,
000 Xxxxxxxxx Xxxxxx, X.X. XXXXXXX, XXXXXXX AGENCY
Xxxxx 0000
Xxxxxxx, XX 00000-0000
Tel: (000) 000-0000 By /s/ Xxxxx Xxxx
Fax: (000) 000-0000 -------------------------------------
Attention: Xxxxx Xxxxxxx Title: General Manager
Park Avenue Plaza THE TOKAI BANK, LIMITED,
00 Xxxx 00xx Xxxxxx XXX XXXX XXXXXX
Xxx Xxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000 By /s/ Xxxxxxxx Xxxxxxxx
Attention: Xxxxxxxx Xxxxxxxx -------------------------------------
Title: Asst. General Manager
000 X. Xxxxxxx Xxxxxx BANQUE NATIONALE DE PARIS,
Suite 2630 HOUSTON AGENCY
Xxxxxx, XX 00000
Tel: (000) 000-0000 By /s/ Xxxxx X. Xxxx
Fax: (000) 000-0000 -------------------------------------
Attention: Xxxxx Xxxx Title: Assistant Vice President
00000 Xxxxxxx Xxxx XXXXXXXX NATIONAL BANK
Xxxxxxxxxx Xxxxx, XX 00000-0000
Tel: (000) 000-0000
Fax: (000) 000-0000 By /s/ Xxxxxx X. Xxxxxxxx
Attention: Xxxxxx Xxxxxxxx -------------------------------------
Title: Relationship Manager
000 Xxxxxxx Xxxxxx FIRST NATIONAL BANK OF COMMERCE
Xxx Xxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000 By /s/ Xxxxx Xxxxxxx
Attention: Xxxxx Xxxxxxx -------------------------------------
Title: Senior Vice President
000 Xxxxxxxxx Xxxxxx, X.X. WACHOVIA BANK, N.A.
Xxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000 By /s/ X. Xxx O'Dell, II
Attention: Xxxxx Xxxxx -------------------------------------
Title: Senior Vice President
000 Xxxxxx Xxxxxx FIRST AMERICAN XXXXXXXX XXXX
Xxxxx 000
Xxxxxxx, XX 00000
Tel: (000) 000-0000 By /s/ Xxxxxxxxx X. Xxxxxx
Fax: (000) 000-0000 -------------------------------------
Attention: Xxxxxxxxx Xxxxxx Title: Senior Vice President
000 Xxxxxxx Xxxxxx XXXXX XXXXXXXXX BANK NATIONAL
0xx Xxxxx XXXXXXXXXXX
Xxxxxxx, XX 00000-0000
Tel: (000) 000-0000
Fax: (000) 000-0000 By /s/ Xxxxx X. Xxxxx, Xx.
Attention: Xxxxx Xxxxx, Jr. -------------------------------------
Title: Vice President
Marquis Two Tower THE DAI-ICHI KANGYO BANK, LTD.
Suite 2400
000 Xxxxxxxxx Xxxxxx Xxxxxx, X.X.
Xxxxxxx, XX 00000 By /s/ Xxxxxxx Xxxxxxx
Tel: (000) 000-0000 -------------------------------------
Fax: (000) 000-0000 Title: Joint General Manager
Attention: Xxxxxxx Xxxxxxx
000 Xxxxxxxxxx Xxxxxx XXXXXXXX XXXXXXXX XXXX
Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Tel: (000) 000-0000 By /s/ Xxxx Wales
Fax: (000) 000-0000 -------------------------------------
Attention: Xxxx Wales Title: Assistant Vice President
000 Xxxx Xxxxxxx Xxxxxx DEPOSIT GUARANTY NATIONAL BANK
Xxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000 By /s/ Xxxxx X. Xxxxxxxx
Attention: Xxxxx Xxxxxxxx -------------------------------------
Title: Senior Vice President
000 Xxxx Xxxxxx, Xxxx Building ERSTE BANK DER OESTERREICHISCHEN
Xxx Xxxx, XX 00000 SPARKASSEN AG
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxx Xxxxxxx By /s/ Xxxx Xxxxxxx
-------------------------------------
Title: First Vice President
By /s/ Xxxxx Xxxxxxx
-------------------------------------
Title: Assistant Vice President
0000 Xxxxxx Xxxxxx SUNTRUST BANK, NASHVILLE, N.A.
Xxxxx 000
Xxxxxxx, XX 00000
Tel: (000) 000-0000 By /s/ Xxxxx Xxxxx
Fax: (000) 000-0000 -------------------------------------
Attention: Xxxxx Xxxxx Title: Vice President
c/o Credit Lyonnais Atlanta Agency CREDIT LYONNAIS CAYMAN ISLAND
One Peachtree Center BRANCH
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 0000 By /s/
Xxxxxxx, XX 00000 -------------------------------------
Tel: (000) 000-0000 Title:
Fax: (000) 000-0000
Attention: Xxxxxxxxx Xxxxxxxx
SCHEDULE I
REVOLVING LOAN COMMITMENTS
Name Amount
Bankers Trust Company $310,500,000
Bank of America National Trust and Savings Association $143,500,000
Societe Generale $141,500,000
Canadian Imperial Bank of Commerce $139,000,000
Fleet Bank, N.A. $146,000,000
Xxxxx Fargo Bank, National Association $145,500,000
NationsBank, N.A. (South) $138,500,000
Westdeutsche Landesbank Girozentrale, New York Branch $71,500,000
The Long-Term Credit Bank of Japan, Limited, New York Branch $59,000,000
PNC Bank, National Association $56,000,000
The Bank of New York $54,000,000
Credit Lyonnais Atlanta Agency $54,000,000
Deutsche Bank AG $50,000,000
The Sumitomo Bank, Limited, Atlanta Agency $43,000,000
The Mitsubishi Trust & Banking Corp. $38,000,000
United States National Bank of Oregon $37,000,000
The Sanwa Bank, Limited, Atlanta Agency $30,000,000
ABN AMRO Bank N.V., San Xxxxxxxxx Xxxxxx $27,000,000
The Bank of Nova Scotia $26,000,000
Commerzbank AG, Los Angeles Branch $25,000,000
First Security Bank, N.A. $25,000,000
The Industrial Bank of Japan, Limited, Atlanta Agency $24,000,000
The Tokai Bank, Limited, New York Branch $24,000,000
Banque Nationale De Paris, Houston Agency $20,000,000
Michigan National Bank $20,000,000
First National Bank of Commerce $19,000,000
Wachovia Bank, N.A. $15,000,000
First American National Bank $12,000,000
First Tennessee Bank National Association $12,000,000
The Dai-Ichi Kangyo Bank, Ltd. $10,000,000
Hibernia National Bank $10,000,000
Deposit Guaranty National Bank $8,000,000
Erste Bank der Oesterreichischen Sparkassen AG $8,000,000
SunTrust Bank, Nashville, N.A. $8,000,000
TOTAL $1,950,000,000
