EXHIBIT 10.1
CREDIT AGREEMENT
Dated as of April 23, 2003
among
XXXXXX'X ENTERTAINMENT, INC.
as Guarantor
XXXXXX'X OPERATING COMPANY, INC.
as Borrower
The Lenders, Syndication Agent
And Co-Documentation Agents Herein Named
and
BANK OF AMERICA, N.A.,
as Administrative Agent
BANC OF AMERICA SECURITIES LLC
and
XXXXX FARGO BANK, N.A.,
Joint Lead Arrangers and Joint Book Managers
CREDIT AGREEMENT
Dated as of April 23, 2003
This CREDIT AGREEMENT ("AGREEMENT") is entered into among Xxxxxx'x
Operating Company, Inc., a Delaware corporation ("COMPANY"), each of the
Subsidiaries that becomes a borrower pursuant to Section 2.9 hereof (the Company
and each such borrower are individually a "BORROWER" and collectively the
"BORROWERS"), as Borrowers, Xxxxxx'x Entertainment, Inc., a Delaware corporation
(the "PARENT"), as Guarantor, Bank of America, N.A. and each lender whose name
is set forth on the signature pages of this Agreement and each other lender
which may hereafter become a party to this Agreement pursuant to Section 11.8
(collectively, the "LENDERS" and individually, a "LENDER"), Deutsche Bank Trust
Company Americas, as Syndication Agent, Citicorp USA, Inc., JPMorgan Chase Bank
and Xxxxx Fargo Bank, N.A., as Co-Documentation Agents, and Bank of America,
N.A., as Administrative Agent. While not party to this Agreement, Banc of
America Securities, LLC and Xxxxx Fargo Bank, N.A. have served as Joint Lead
Arrangers and Joint Book Managers.
RECITALS
A. Parent and Borrowers have requested that the Lenders provide the
credit facilities described herein to provide for their common working capital
needs and for the refinancing of certain existing Indebtedness of Borrower,
including without limitation the Existing Xxxxxx'x Credit Agreements, all as
further set forth in Section 5.7.
B. It is intended that the Company shall be jointly and severally liable
for all of the Obligations hereunder, as more particularly set forth in Section
11.23, notwithstanding any allocation of the Obligations to the nominal account
of any other Borrower.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties hereto covenant and agree as follows:
ARTICLE 1
DEFINITIONS AND ACCOUNTING TERMS
1.1 DEFINED TERMS. As used in this Agreement, the following terms shall
have the meanings set forth below:
"ADMINISTRATIVE AGENT" means Bank of America, when acting in its capacity
as the Administrative Agent under any of the Loan Documents, or any successor
Administrative Agent.
"ADMINISTRATIVE AGENT'S OFFICE" means the Administrative Agent's address as
set forth on the signature pages of this Agreement, or such other address as the
Administrative Agent hereafter may designate by written notice to Borrowers and
the Lenders.
"ADVANCE" means any advance made or to be made by any Lender to a Borrower
as provided in Article 2, and includes each Base Rate Advance, Eurodollar Rate
Advance, Committed Advance and Swing Line Advance.
"AFFILIATE" means, as to any Person, any other Person which directly or
indirectly controls, or is under common control with, or is controlled by, such
Person. As used in this definition, "control" (and the correlative terms,
"controlled by" and "under common control with") shall mean possession, directly
or indirectly, of power to direct or cause the direction of management or
policies (whether through ownership of securities or partnership or other
ownership interests, by contract or otherwise); provided that, in any event, any
Person that owns, directly or indirectly, 5% or more of the securities having
ordinary voting power for the election of directors or other governing body of a
corporation that has more than 100 record holders of such securities, or 5% or
more of the partnership or other ownership interests of any other Person that
has more than 100 record holders of such interests, will be deemed to control
such corporation or other Person.
"AGGREGATE COMMITMENTS" means the Commitments of all of the Lenders. As of
the Closing Date, the Aggregate Commitments are $1,962,500,000.
"AGGREGATE EFFECTIVE AMOUNT" means, as of any date of determination and
with respect to all Letters of Credit then outstanding, the sum of (a) the
aggregate undrawn face amounts of all such Letters of Credit, PLUS (b) the
aggregate amounts paid by Issuing Lenders under any Letters of Credit for which
the relevant Issuing Lender has not been reimbursed and which are not the
subject of Advances made pursuant to Section 2.4(f).
"AGGREGATE PRO RATA SHARE" means, with respect to each Lender, the
percentage of the Aggregate Commitments held by that Lender. The Aggregate Pro
Rata Share of each Lender is set forth in the records of the Administrative
Agent.
"AGGREGATE SUBLIMIT" means with respect to each Subsidiary of Parent which
hereafter becomes a Borrower, such aggregate amount as shall be established in
accordance with Section 2.9.
"AGREEMENT" means this Credit Agreement, either as originally executed or
as it may from time to time be supplemented, modified, amended, restated or
extended.
"APPROVED FUND" has the meaning specified in Section 11.8(g).
"ASSIGNMENT AGREEMENT" means an Assignment and Assumption Agreement
substantially in the form of Exhibit A.
"ATLANTIC CITY SHOWBOAT LAND DEBT" means, the $100,000,000 aggregate face
amount of Showboat Land, LLC's 7.09% Promissory Note due February 1, 2028.
"BANK OF AMERICA" means Bank of America, N.A. and its successors.
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"BASE RATE" means for any day a fluctuating rate per annum equal to the
higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest
in effect for such day as publicly announced from time to time by Bank of
America as its "prime rate." The "prime rate" is a rate set by Bank of America
based upon various factors including Bank of America's costs and desired return,
general economic conditions and other factors, and is used as a reference point
for pricing some loans, which may be priced at, above, or below such announced
rate. Any change in such rate announced by Bank of America shall take effect at
the opening of business on the day specified in the public announcement of such
change.
"BASE RATE ADVANCE" and "BASE RATE LOAN" mean, respectively, a Committed
Advance or a Committed Loan made hereunder and specified to be a Base Rate
Advance or Loan in accordance with Article 2.
"BASE RATE MARGIN" means, for each Pricing Period, the Eurodollar Margin
(after any Pricing Adjustment) for that Pricing Period minus 125 basis points,
provided that in no event shall the Base Rate Margin be less than 0.00 basis
points.
"BORROWERS" means, collectively, Company and each Wholly-Owned Subsidiary
which is hereafter designated as a Borrower in accordance with Section 2.9, and
their respective successors and permitted assigns.
"BUSINESS DAY" means any Monday, Tuesday, Wednesday, Thursday or Friday,
other than a day on which commercial banks are authorized or required to be
closed in California or New York.
"CAPITAL LEASE OBLIGATIONS" means all monetary obligations of a Person
under any leasing or similar arrangement which, in accordance with Generally
Accepted Accounting Principles, is classified as a capital lease.
"CASH" means, when used in connection with any Person, all monetary and
non-monetary items owned by that Person that are treated as cash in accordance
with Generally Accepted Accounting Principles, consistently applied.
"CERTIFICATE OF A RESPONSIBLE OFFICIAL" means a certificate signed by a
Responsible Official of the Person providing the certificate.
"CHANGE IN CONTROL" means the occurrence of a Rating Decline in connection
with any of the following events (or, if the Debt Ratings are not then
Investment Grade, any further decline in the Debt Ratings): (i) upon any merger
or consolidation of Parent with or into any person or any sale, transfer or
other conveyance, whether direct or indirect, of all or substantially all of the
assets of Parent, on a consolidated basis, in one transaction or a series of
related transactions, if, immediately after giving effect to such transaction,
any person or group of persons (within the meaning of Section 13 or 14 of the
Securities Exchange Act of 1934, as amended) is or becomes the beneficial owner
(within the meaning of Rule 13d-3 promulgated by the Securities and Exchange
Commission under said Act) of securities representing a majority of the total
voting power of the aggregate outstanding securities of the transferee or
surviving entity normally
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entitled to vote in the election of directors, managers, or trustees, as
applicable, of the transferee or surviving entity, (ii) when any person or group
of persons (within the meaning of Section 13 or 14 of the Securities Exchange
Act of 1934, as amended) is or becomes the beneficial owner (within the meaning
of Rule 13d-3 promulgated by The Securities and-Exchange Commission under said
Act) of securities representing a majority of total voting power of the
aggregate outstanding securities of Parent normally entitled to vote in the
election of directors of Parent, (iii) when, during any period of 12 consecutive
calendar months, individuals who were directors of Parent on the first day of
such period (together with any new directors whose election by the board of
directors of Parent or whose nomination for election by the stockholders of
Parent was approved by a vote of a majority of the directors then still in
office who were either directors at the beginning of such period or whose
election or nomination for election was previously so approved) cease for any
reason to constitute a majority of the board of directors of Parent, or (iv) the
sale or disposition, whether directly or indirectly, by Parent of all or
substantially all of its assets.
"CLOSING DATE" means the time and Business Day on which the conditions set
forth in Section 8.1 are satisfied or waived. The Administrative Agent shall
notify the Company and the Lenders of the date that is the Closing Date.
"CODE" means the Internal Revenue Code of 1986, as amended or replaced and
as in effect from time to time.
"COMMITMENT" means for each Lender, such Lender's Revolving Loan Commitment
and/or Term Loan Commitment.
"COMMITTED ADVANCE" means any Advance made to the Company by any Term Loan
Lender in accordance with its Term Pro Rata Share pursuant to Section 2.1(a) and
any Advance made to a Borrower by any Revolving Lender in accordance with its
Revolving Pro Rata Share pursuant to Section 2.1(b).
"COMMITTED ADVANCE NOTE" or "NOTE" means either a Committed Advance
Revolving Note or a Committed Advance Term Note.
"COMMITTED ADVANCE REVOLVING NOTE" means the promissory note made by each
Borrower to a Revolving Lender evidencing the Committed Advances under that
Lender's Revolving Pro Rata Share of the Revolving Loan Commitment to that
Borrower, substantially in the form of Exhibit B, either as originally executed
or as the same may from time to time be supplemented, modified, amended,
renewed, extended or supplanted.
"COMMITTED ADVANCE TERM NOTE" means the promissory note made by the Company
to a Term Loan Lender evidencing the Committed Advances under that Lender's Term
Pro Rata Share of the Term Loan Commitment, substantially in the form of Exhibit
C, either as originally executed or as the same may from time to time be
supplemented, modified, amended, renewed, extended or supplanted.
"COMMITTED LOANS" means Loans that are comprised of Committed Advances.
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"COMPANY" means Xxxxxx'x Operating Company, Inc., its successors and
permitted assigns.
"COMPLIANCE CERTIFICATE" means a certificate substantially in the form of
Exhibit F, properly completed and signed on behalf of Borrowers by a Senior
Officer of each Borrower.
"CONFIDENTIAL INFORMATION MEMORANDUM" means the Confidential Information
Memorandum dated March, 2003, distributed to the Lenders in connection with the
credit facilities provided herein.
"CONTINGENT OBLIGATION" means, as to any Person, any (a) guarantee by that
Person of Indebtedness of, or other obligation performable by, any other Person
or (b) assurance given by that Person to an obligee of any other Person with
respect to the performance of an obligation by, or the financial condition of,
such other Person, whether direct, indirect or contingent, INCLUDING any
purchase or repurchase agreement covering such obligation or any collateral
security therefor, any agreement to provide funds (by means of loans, capital
contributions or otherwise) to such other Person, any agreement to support the
solvency or level of any balance sheet item of such other Person or any
"keep-well", "make-well" or other arrangement of whatever nature given for the
purpose of assuring or holding harmless such obligee against loss with respect
to any obligation of such other Person; PROVIDED, HOWEVER, that the term
Contingent Obligation shall not include endorsements of instruments for deposit
or collection in the ordinary course of business.
"CONTINUING LETTERS OF CREDIT" means those of the letters of credit issued
under the Existing Xxxxxx'x Credit Agreements which are described on Schedule
1.2.
"CONTRACTUAL OBLIGATION" means, as to any Person, any provision of any
outstanding security issued by that Person or of any material agreement,
instrument or undertaking to which that Person is a party or by which it or any
of its Property is bound.
"CREDITORS" means, collectively, the Administrative Agent, each Issuing
Lender, the Swing Line Lender, each Lender, the Syndication Agent, the
Co-Documentation Agents, the Lead Arrangers and, where the context requires, any
one or more of them.
"DEBT RATING" means, as of each date of determination, the most
creditworthy credit rating, actual or implicit, assigned to senior unsecured
Indebtedness of Company by S&P or Xxxxx'x, whichever is higher.
"DEBTOR RELIEF LAWS" means the Bankruptcy Code of the United States of
America, as amended from time to time, and all other applicable liquidation,
conservatorship, bankruptcy, moratorium, rearrangement, receivership,
insolvency, reorganization, or similar debtor relief Laws from time to time in
effect affecting the rights of creditors generally.
"DEFAULT" means any event that, with the giving of any applicable notice or
passage of time specified in Section 9.1, or both, would be an Event of Default.
"DEFAULT RATE" means the interest rate prescribed in Section 3.9.
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"DEFEASED DEBT" means any Indebtedness of Parent and its Subsidiaries
which, at any relevant time, is subject to legal or covenant defeasance in a
manner which is reasonably acceptable to the Administrative Agent.
"DESIGNATED DEPOSIT ACCOUNT" means a deposit account to be maintained by
Borrowers with Bank of America, as from time to time designated by Borrowers by
written notification to the Administrative Agent.
"DESIGNATED EURODOLLAR MARKET" means, with respect to any Eurodollar Rate
Loan, (a) the London Eurodollar Market, or (b) if prime banks in the London
Eurodollar Market are at the relevant time not accepting deposits of Dollars or
if the Administrative Agent determines that the London Eurodollar Market does
not represent at the relevant time the effective pricing to the Lenders for
deposits of Dollars in the London Eurodollar Market, the Cayman Islands
Eurodollar Market or (c) if prime banks in the Cayman Islands Eurodollar Market
are at the relevant time not accepting deposits of Dollars or if the
Administrative Agent determines that the Cayman Islands Eurodollar Market does
not represent at the relevant time the effective pricing to the Lenders for
deposits of Dollars in the Cayman Islands Eurodollar Market, such other
Eurodollar Market as may from time to time be selected by the Administrative
Agent with the approval of Borrowers and the Requisite Lenders.
"DISQUALIFICATION" means, with respect to any Lender: (a) the failure of
that Person timely to file pursuant to applicable Gaming Laws (i) any
application requested of that Person by any Gaming Board in connection with any
licensing required of that Person as a lender to Borrowers or (ii) any required
application or other papers in connection with determination of the suitability
of that Person as a lender to Borrowers; (b) the withdrawal by that Person
(EXCEPT where requested or permitted by the Gaming Board) of any such
application or other required papers; or (c) any final determination by a Gaming
Board pursuant to applicable Gaming Laws (i) that such Person is "unsuitable" as
a lender to Borrowers, (ii) that such Person shall be "disqualified" as a lender
to Borrowers or (iii) denying the issuance to that Person of any license
required under applicable Gaming Laws to be held by all lenders to Borrowers.
"DOLLARS" or "$" means United States dollars.
"EBITDA" means, for any period, Net Income for such period BEFORE (i)
income taxes, (ii) interest expense, (iii) depreciation and amortization, (iv)
minority interest, (v) extraordinary losses or gains, (vi) Pre-Opening Expenses,
and (vii) nonrecurring non-cash charges, and AFTER deduction of any nonrecurring
non-cash gains PROVIDED that, in calculating "EBITDA":
(a) the operating results of each New Project which commences
operations and records not less than one full fiscal quarter's operations during
the relevant period shall be annualized; and
(b) EBITDA shall be adjusted, on a pro forma basis, to include the
operating results of each resort or casino property acquired by Parent and its
Consolidated Subsidiaries during the relevant period and to exclude the
operating results of each resort or casino property
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sold or otherwise disposed of by Parent and its Subsidiaries, or whose
operations are discontinued during the relevant period.
"ELECTION TO BECOME A BORROWER" means an Election to Become a Borrower,
substantially in the form of Exhibit D to this Agreement, properly completed and
duly executed by each required party thereto.
"ELIGIBLE ASSIGNEE" means (a) a Lender; (b) an Affiliate of a Lender; (c)
an Approved Fund; and (d) any other Person (other than a natural person)
approved by (i) the Administrative Agent, each Issuing Lender and the Swing Line
Lender, and (ii) unless an Event of Default has occurred and is continuing, the
Parent and the Borrowers (each such approval not to be unreasonably withheld or
delayed); PROVIDED that notwithstanding the foregoing, "Eligible Assignee" shall
not include the Parent and the Borrowers or any of their respective Affiliates
or Subsidiaries.
"ERISA" means the Employee Retirement Income Security Act of 1974, and any
regulations issued pursuant thereto, as amended or replaced and as in effect
from time to time.
"EURODOLLAR BUSINESS DAY" means any Business Day on which dealings in
Dollar deposits are conducted by and among banks in the Designated Eurodollar
Market.
"EURODOLLAR LENDING OFFICE" means, as to each Lender, its office or branch
so designated by written notice to Borrowers and the Administrative Agent as its
Eurodollar Lending Office. If no Eurodollar Lending Office is designated by a
Lender, its Eurodollar Lending Office shall be its office at its address for
purposes of notices hereunder.
"EURODOLLAR MARGIN" means, for each Pricing Period, the interest rate
margin set forth below (expressed in basis points) opposite the Pricing Level
for that Pricing Period plus or minus any then Pricing Adjustment applicable
during that Pricing Period:
Pricing Level Eurodollar Margin
------------- -----------------
I 55.0
II 72.5
III 95.0
IV 105.0
V 120.0
VI 162.5
"EURODOLLAR MARKET" means a regular established market located outside the
United States of America by and among banks for the solicitation, offer and
acceptance of Dollar deposits in such banks.
"EURODOLLAR OBLIGATIONS" means eurocurrency liabilities, as defined in
Regulation D.
"EURODOLLAR PERIOD" means, as to each Eurodollar Rate Loan, the period
commencing on the date specified by any Borrower pursuant to Section 2.1(c) and
ending 1 week or 1, 2, 3 or 6
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months thereafter (or, with respect to the Loans under any Commitment, with the
written consent of all of the Lenders under such Commitment, any other period),
as specified by that Borrower in the applicable Request for Loan; PROVIDED that:
(a) The first day of any Eurodollar Period shall be a Eurodollar
Business Day;
(b) Any Eurodollar Period that would otherwise end on a day that is
not a Eurodollar Business Day shall be extended to the next succeeding
Eurodollar Business Day unless such Eurodollar Business Day falls in another
calendar month, in which case such Eurodollar Period shall end on the next
preceding Eurodollar Business Day;
(c) Any Eurodollar Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically corresponding day
in the calendar month at the end of such Eurodollar Period) shall end on the
last Business Day of the calendar month at the end of such Eurodollar Period;
(d) No Eurodollar Period shall extend beyond the Maturity Date; and
(e) The Borrowers may not request more than 12 Eurodollar Periods of
1 week duration in any period of twelve consecutive calendar months.
"EURODOLLAR QUOTED RATE" means, with respect to any Eurodollar Rate Loan,
the average of the interest rates per annum (rounded upward, if necessary, to
the next 1/100 of 1%) at which deposits in Dollars are offered by Bank of
America to prime banks in the Designated Eurodollar Market at or about 11:00
a.m. local time in the Designated Eurodollar Market, two Eurodollar Business
Days before the first day of the applicable Eurodollar Period in an aggregate
amount approximately equal to the amount of the Advances made by Bank of America
with respect to such Eurodollar Rate Loan and for a period of time comparable to
the number of days in the applicable Eurodollar Period. The determination of the
Eurodollar Quoted Rate by the Administrative Agent shall be conclusive in the
absence of manifest error.
"EURODOLLAR RATE" means, with respect to any Eurodollar Rate Loan based on
a margin over the Eurodollar Rate, an interest rate per annum (rounded upward,
if necessary, to the nearest 1/100 of one percent) determined pursuant to the
following formula:
Eurodollar Quoted Rate
Eurodollar Rate = ----------------------------------------------
1.00 - Eurodollar Reserve Percentage
"EURODOLLAR RATE ADVANCE" and "EURODOLLAR RATE LOAN" mean, respectively, a
Committed Advance made hereunder and specified to be a Eurodollar Rate Advance
or Loan in accordance with Article 2.
"EURODOLLAR RESERVE PERCENTAGE" means, with respect to any Eurodollar Rate
Loan, the maximum reserve percentage (expressed as a decimal, rounded upward to
the nearest 1/100th of 1%) in effect on the date the Eurodollar Quoted Rate for
that Eurodollar Rate Loan is determined (whether or not applicable to any
Lender) under regulations issued from time to time by the Federal Reserve Board
for determining the maximum reserve requirement (including any
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emergency, supplemental or other marginal reserve requirement) with respect to
eurocurrency funding (currently referred to as "eurocurrency liabilities")
having a term comparable to the Eurodollar Period for such Eurodollar Rate Loan.
The determination by the Administrative Agent of any applicable Eurodollar
Reserve Percentage shall be conclusive in the absence of manifest error.
"EVENT OF DEFAULT" shall have the meaning provided in Section 9.1.
"EXISTING XXXXXX'X
CREDIT AGREEMENTS" means the Five Year Loan Agreement
dated as of April 30, 1999 and the Second Amended and Restated 364-Day
Credit
Agreement dated as of April 25, 2002, and among Parent, the borrowers therein
named, the lenders therein named, and Bank of America, as Administrative Agent,
in each case as amended.
"EXISTING SENIOR NOTES" means (i) the Company's $500,000,000 in 7.5% Senior
Unsecured Notes due 2009 issued pursuant to the Indenture dated December 18,
1998 between the Company and IBJ Xxxxxxxxx Bank and Trust Company, as Trustee
and the First Supplemental Indenture with respect thereto dated as of January
20, 1999 among the Company, the Parent and IBJ Whitehall Bank & Trust Company,
as Trustee; (ii) the Company's $500,000,000 in 8.0% Senior Unsecured Notes due
2011 issued pursuant to the Indenture dated January 29, 2001 between the Company
and Bank One Company as Trustee; and (iii) the Company's $500,000,000 in 7.125%
Senior Unsecured Notes due 2007 issued pursuant to the Indenture dated June 14,
2001 between the Company and Firstar Bank N.A. (now U.S. Bank, N.A.), as
Trustee.
"EXISTING SUBORDINATED DEBT" means the Company's $750,000,000 7.875% Senior
Subordinated Notes due 2005 issued pursuant to the Indenture dated December 9,
1998 among the Company and IBJ Xxxxxxxxx Bank and Trust Company, as Trustee and
the First Supplemental Indenture with respect thereto dated as of December 9,
1998 among the Company, the Parent and the Trustee.
"FACILITY FEE RATE" means, for each Pricing Period, the rate set forth
below (expressed in basis points) opposite the Pricing Level for that Pricing
Period:
Pricing Level Facility Fee Rate
------------- -----------------
I 15.0
II 17.5
III 20.0
IV 25.0
V 30.0
VI 37.5
"FEDERAL FUNDS RATE" means, for any day, the rate per annum equal to the
weighted average of the rate on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank on the Business Day next
succeeding such day; PROVIDED that (a) if such day is not a Business Day, the
Federal Funds Rate for such day shall be such rate on such transactions on the
next
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preceding Business Day as so published on the next succeeding Business Day, and
(b) if no such rate is so published on such next succeeding Business Day, the
Federal Funds Rate for such day shall be the average rate (rounded upward, if
necessary, to a whole multiple of 1/100 of 1%) charged to Bank of America on
such day on such transactions as determined by the Administrative Agent.
"FISCAL QUARTER" means the fiscal quarter of Parent consisting of a three
month fiscal period ending on each March 31, June 30, September 30, December 31.
"FISCAL YEAR" means the fiscal year of Parent consisting of a twelve month
fiscal period ending on each December 31.
"FUND" has the meaning specified in Section 11.8(g).
"GAMING BOARD" means any Governmental Agency that holds regulatory,
licensing or permit authority over gambling, gaming or casino activities
conducted by Parent and its Subsidiaries within its jurisdiction, or before
which an application for licensing to conduct such activities is pending.
"GAMING LAWS" means all Laws pursuant to which any Gaming Board possesses
regulatory, licensing or permit authority over gambling, gaming or casino
activities conducted by Parent and its Subsidiaries within its jurisdiction.
"GENERALLY ACCEPTED ACCOUNTING PRINCIPLES" means, as of any date of
determination, accounting principles (a) set forth as generally accepted in then
currently effective Opinions of the Accounting Principles Board of the American
Institute of Certified Public Accountants, (b) set forth as generally accepted
in then currently effective Statements of the Financial Accounting Standards
Board or (c) that are then approved by such other entity as may be approved by a
significant segment of the accounting profession in the United States of
America. The term "consistently applied," as used in connection therewith, means
that the accounting principles applied are consistent in all material respects
to those applied at prior dates or for prior periods.
"GOVERNMENTAL AGENCY" means (a) any international, foreign, federal, state,
county or municipal government, or political subdivision thereof, (b) any
governmental or quasi-governmental agency, authority, board, bureau, commission,
department, instrumentality or public body, or (c) any court or administrative
tribunal.
"GRANTING LENDER" has the meaning specified in Section 11.8(h).
"HAZARDOUS MATERIALS" means substances defined as hazardous substances
pursuant to the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, 42 U.S.C. Section 9601 et seq., or as hazardous, toxic or pollutant
pursuant to the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801,
et seq., the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901, et
seq., the Hazardous Waste Control Law,
California Health & Safety Code Section
25100, et seq., or in any other applicable Hazardous Materials Law, in each case
as such Laws are amended from time to time.
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"HAZARDOUS MATERIALS LAWS" means all federal, state or local laws,
ordinances, rules or regulations governing the disposal of Hazardous Materials
applicable to any of the Real Property.
"INDEBTEDNESS" means, as to any Person and as of each date of
determination, 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 indebtedness or other
obligations secured by a contractual Lien on any asset of such Person, whether
or not such indebtedness or other obligations are otherwise an obligation of
such Person, and (vi) all Contingent Obligations made by such Person (including
by way of provision of letters of credit or other contingent obligations) with
respect to indebtedness or other obligations of any other Person which
constitute "Indebtedness" of a type or class described in clauses (i) through
(v) of this definition.
"INTANGIBLE ASSETS" means assets that are considered intangible assets
under Generally Accepted Accounting Principles, INCLUDING customer lists,
goodwill, computer software, copyrights, trade names, trademarks and patents.
"INTERCOMPANY DEBT" means any Indebtedness owed by a Subsidiary of any
Borrower to a Borrower.
"INTEREST COVERAGE RATIO" means, as of the last day of any Fiscal Quarter,
the ratio of (a) EBITDA for the four Fiscal Quarter period ending on that date
to (b) Interest Expense for the same period.
"INTEREST DIFFERENTIAL" means, with respect to any prepayment of a
Eurodollar Rate Loan on a day prior to the last day of the applicable Eurodollar
Period and with respect to any failure to borrow a Eurodollar Rate Loan on the
date or in the amount specified in any Request for Loan, (a) the per annum
interest rate payable pursuant to Section 3.1(c) with respect to the Eurodollar
Rate Loan MINUS (b) the Eurodollar Rate on, or as near as practicable to the
date of the prepayment or failure to borrow for, a Eurodollar Rate Loan
commencing on such date and ending on the last day of the Eurodollar Period of
the Eurodollar Rate Loan so prepaid or which would have been borrowed on such
date.
"INTEREST EXPENSE" means, as of the last day of any fiscal period, the sum
of (a) all interest, fees, charges and related expenses paid or payable (without
duplication) for that fiscal period to a lender in connection with borrowed
money or the deferred purchase price of assets that are considered "interest
expense" under Generally Accepted Accounting Principles, plus (b) the portion of
rent paid or payable (without duplication) for that fiscal period under Capital
Lease Obligations that should be treated as interest in accordance with
Financial Accounting Standards Board Statement No. 13.
"INVESTMENT" means, when used in connection with any Person, any investment
by or of that Person, whether by means of purchase or other acquisition of stock
or other securities of any
11
other Person or by means of a loan, advance creating a debt, capital
contribution, guaranty or other debt or equity participation or interest in any
other Person, INCLUDING any partnership and joint venture interests of such
Person. The amount of any Investment shall be the amount actually invested,
without adjustment for subsequent increases or decreases in the value of such
Investment.
"INVESTMENT GRADE" means (i) with respect to S&P, a rating of BBB- or
higher, and (ii) with respect to Xxxxx'x, a rating of Baa3 or higher.
"ISSUING LENDER" means, as to each Letter of Credit, the Revolving Lender
which issues the same in accordance with Section 2.4, but only when acting in
its capacity as Issuing Lender for that Letter of Credit. Subject to the
procedures set forth in Section 2.4, any Revolving Lender may, at its option, be
an Issuing Lender for Letters of Credit issued under this Agreement.
"JOINT VENTURE HOLDING COMPANY" means any Subsidiary of Parent which has no
substantial assets other than equity securities, securities convertible into
equity securities and warrants, options or similar rights to purchase such
equity securities or convertible securities (and any dividends, cash,
instruments or other property received in respect of or in exchange for any of
the foregoing), in each case issued by Persons which are not Subsidiaries of
Parent.
"LAWS" means, collectively, all international, foreign, federal, state and
local statutes, treaties, rules, regulations, ordinances, codes and
administrative or judicial precedents.
"LC OBLIGATIONS" means, as at any date of determination, the aggregate
undrawn amount of all outstanding Letters of Credit PLUS the aggregate of all
amounts that have been drawn under Letters of Credit and not reimbursed by the
Borrowers.
"LEAD ARRANGERS" means Banc of America Securities, LLC and Xxxxx Fargo
Bank, N.A. The Lead Arrangers shall have no duties or obligations under this
Agreement or the other Loan Documents.
"LETTER OF CREDIT" means any letter of credit issued pursuant to Section
2.4, either as originally issued or as the same may from time to time be
supplemented, modified, amended, renewed or extended in accordance with the
terms hereof.
"LETTER OF CREDIT FEE" means, for each Pricing Period, the rate per annum
set forth below (expressed in basis points) opposite the Pricing Level for that
Pricing Period PLUS or MINUS any then Pricing Adjustment applicable during that
Pricing Period:
Pricing Level Letter of Credit Fee
------------- --------------------
I 55.00
II 72.50
III 95.00
IV 105.00
V 120.00
VI 162.50
12
"LICENSE REVOCATION" means the revocation, failure to renew or suspension
of, or the appointment of a receiver, supervisor or similar official with
respect to, any casino, gambling or gaming license issued by any Gaming Board
covering any casino or gaming facility of Parent or any of its Subsidiaries.
"LIEN" means any mortgage, deed of trust, pledge, hypothecation, assignment
for security, security interest, encumbrance, lien or charge of any kind,
whether voluntarily incurred or arising by operation of Law or otherwise,
affecting any Property, INCLUDING any agreement to grant any of the foregoing,
any conditional sale or other title retention agreement, any lease in the nature
of a security interest, and/or the filing of or agreement to give any financing
statement (OTHER THAN a precautionary financing statement with respect to a
lease or other agreement that is not in the nature of a security interest) under
the Uniform Commercial Code or comparable Law of any jurisdiction with respect
to any Property.
"LOAN" means the aggregate of the Advances made at any one time by the
Lenders pursuant to Article 2.
"LOAN DOCUMENTS" means, collectively, this Agreement, the Notes, the
Letters of Credit, the Swing Line Documents, the Parent Guaranty, any Request
for Loan, any Request for Letter of Credit, any Compliance Certificate and any
other instruments, documents or agreements of any type or nature hereafter
executed and delivered by Parent or any of its Subsidiaries or Affiliates to the
Administrative Agent or any other Creditor in any way relating to or in
furtherance of this Agreement, in each case either as originally executed or as
the same may from time to time be supplemented, modified, amended, restated,
extended or supplanted.
"MANAGEMENT COMPANY" means any Subsidiary of Parent which has no
substantial assets other than contractual rights to receive fees under
management agreements, development agreements or similar instruments.
"MARGIN STOCK" means "margin stock" as such term is defined in Regulation
U.
"MATERIAL ADVERSE EFFECT" means any set of circumstances or events which
(a) has or could reasonably be expected to have any material adverse effect
whatsoever upon the validity or enforceability of any Loan Document, (b) is or
could reasonably be expected to be material and adverse to the condition
(financial or otherwise), assets, business or operations of Parent and its
Subsidiaries, taken as a whole, or (c) materially impairs or could reasonably be
expected to materially impair the ability of Parent and its Subsidiaries, taken
as a whole, to perform the Obligations.
"MATURITY DATE" means April 23, 2008.
"MOODY'S" means Xxxxx'x Investor Service, Inc., its successors and assigns.
"MULTIEMPLOYER PLAN" means any employee benefit plan of the type described
in Section 4001(a)(3) of ERISA.
13
"NEGATIVE PLEDGE" means a Contractual Obligation that contains a covenant
binding on Parent or any of its Subsidiaries that prohibits Liens on any of its
or their Property, OTHER THAN (a) any such covenant contained in a Contractual
Obligation granting a Lien permitted under Section 6.4 which affects only the
Property that is the subject of such permitted Lien and (b) any such covenant
that does not apply to Liens securing the Obligations.
"NET INCOME" means, with respect to any fiscal period, the consolidated net
income of Parent and its Subsidiaries for that period, determined in accordance
with Generally Accepted Accounting Principles, consistently applied.
"NET TANGIBLE ASSETS" means, as of each date of determination, the total
amount of assets of Parent and its Subsidiaries as of the last day of the most
recent Fiscal Quarter for which financial statements have been delivered in
accordance with Section 7.1, after deducting therefrom (a) all current
liabilities of Parent and its Subsidiaries (excluding (i) the current portion of
long term Indebtedness, (ii) inter-company liabilities, and (iii) any
liabilities which are by their terms renewable or extendable at the option of
the obligor thereon to a time more than twelve months from the time as of which
the amount thereof is being computed), and (b) all goodwill, trade names,
trademarks, patents, unamortized debt discount and expense and other like
intangibles, all as set forth on the latest consolidated balance sheet of Parent
prepared in accordance with Generally Accepted Accounting Principles.
"NEW PROJECT" means each new hotel-casino, casino or resort project (as
opposed to any project which consists of an extension or redevelopment of an
operating hotel, casino or resort) owned by Parent or its Subsidiaries having a
development and construction budget in excess of $25,000,000 which hereafter
receives a certificate of completion or occupancy and all relevant gaming and
other licenses, and in fact commences operations.
"OBLIGATIONS" means all present and future obligations of every kind or
nature of Parent, Borrowers or any Party at any time and from time to time owed
to the Creditors or any one or more of them, under any one or more of the Loan
Documents, whether due or to become due, matured or unmatured, liquidated or
unliquidated, or contingent or noncontingent, INCLUDING obligations of
performance as well as obligations of payment, and INCLUDING interest that
accrues after the commencement of any proceeding under any Debtor Relief Law by
or against Parent, any Borrower or any Subsidiary of Parent.
"OPINIONS OF COUNSEL" means (a) the favorable written legal opinion of
Parent's Vice President and Associate General Counsel, and (b) the favorable
written legal opinion of Xxxxxx & Xxxxxxx, special counsel to Parent and the
Company, substantially in the form of Exhibit G, together with copies of all
factual certificates and legal opinions upon which such counsel have relied.
"OUTSTANDING OBLIGATIONS" means, as of each date of determination, and
giving effect to the making of any such credit accommodations requested on that
date, the sum of (i) the aggregate principal amount of the Outstanding Revolving
Obligations, PLUS (ii) the aggregate principal amount of the outstanding Term
Loans.
14
"OUTSTANDING REVOLVING OBLIGATIONS" means, as of each date of
determination, and giving effect to the making of any such credit accommodations
requested on that date, the sum of (i) the aggregate principal amount of the
outstanding Revolving Loans, PLUS (ii) the Swing Line Outstandings, PLUS (iii)
the Aggregate Effective Amount of all Letters of Credit.
"PARENT" means Xxxxxx'x Entertainment, Inc., a Delaware corporation, and
its permitted successors and assigns.
"PARENT GUARANTY" means the Guaranty executed by Parent on the Closing Date
with respect to the Obligations, substantially in the form of Exhibit H, either
as originally executed or as it may from time to time be supplemented, modified,
amended, restated or extended.
"PARTICIPANT" has the meaning specified in Section 11.8(d).
"PARTY" means any Person other than Creditors which now or hereafter is a
party to any of the Loan Documents.
"PBGC" means the Pension Benefit Guaranty Corporation or any successor
thereof established under ERISA.
"PENSION PLAN" means any "employee pension benefit plan" (as such term is
defined in Section 3(2) of ERISA), OTHER THAN a Multiemployer Plan, which is
subject to Title IV of ERISA and is maintained by Parent or any of its
Subsidiaries or to which Parent or any of its Subsidiaries contributes or has an
obligation to contribute.
"PERMITTED ENCUMBRANCES" means:
(a) inchoate Liens incident to construction or maintenance of Real
Property; or Liens incident to construction or maintenance of Real Property now
or hereafter filed of record for which adequate reserves have been set aside (or
deposits made pursuant to applicable Law) and which are being contested in good
faith by appropriate proceedings and have not proceeded to judgment, PROVIDED
that, by reason of nonpayment of the obligations secured by such Liens, no such
Real Property is subject to a material risk of loss or forfeiture;
(b) Liens for taxes and assessments on and similar charges with
respect to Real Property which are not yet past due; or Liens for taxes and
assessments on Real Property for which adequate reserves have been set aside and
are being contested in good faith by appropriate proceedings and have not
proceeded to judgment, PROVIDED that, by reason of nonpayment of the obligations
secured by such Liens, no material Real Property is subject to a material risk
of loss or forfeiture;
(c) defects and irregularities in title to any Real Property which
in the aggregate do not materially impair the fair market value or use of the
Real Property for the purposes for which it is or may reasonably be expected to
be held;
(d) easements, exceptions, reservations, or other agreements for the
purpose of pipelines, conduits, cables, wire communication lines, power lines
and substations, streets, trails,
15
walkways, driveways, drainage, irrigation, water, and sewerage purposes, dikes,
canals, ditches, the removal of oil, gas, coal, or other minerals, and other
like purposes affecting Real Property, facilities, or equipment which in the
aggregate do not materially burden or impair the fair market value or use of
such Real Property for the purposes for which it is or may reasonably be
expected to be held;
(e) easements, exceptions, reservations, or other agreements for the
purpose of facilitating the joint or common use of property which in the
aggregate do not materially burden or impair the fair market value or use of
such property for the purposes for which it is or may reasonably be expected to
be held;
(f) rights reserved to or vested in any Governmental Agency to
control or regulate, or obligations or duties to any Governmental Agency with
respect to, the use of any Real Property;
(g) rights reserved to or vested in any Governmental Agency to
control or regulate, or obligations or duties to any Governmental Agency with
respect to, any right, power, franchise, grant, license, or permit;
(h) present or future zoning laws, building codes and ordinances,
zoning restrictions, or other laws and ordinances restricting the occupancy,
use, or enjoyment of Real Property;
(i) statutory Liens, other than those described in clauses (a) or
(b) above, arising in the ordinary course of business with respect to
obligations which are not delinquent or are being contested in good faith,
PROVIDED that, if delinquent, adequate reserves have been set aside with respect
thereto and, by reason of nonpayment, no property is subject to a material risk
of loss or forfeiture;
(j) covenants, conditions, and restrictions affecting the use of
Real Property which in the aggregate do not materially impair the fair market
value or use of the Real Property for the purposes for which it is or may
reasonably be expected to be held;
(k) rights of tenants under leases and rental agreements covering
Real Property entered into in the ordinary course of business of the Person
owning such Real Property;
(l) Liens consisting of pledges or deposits to secure obligations
under workers' compensation laws or similar legislation, including Liens of
judgments thereunder which are not currently dischargeable;
(m) Liens consisting of pledges or deposits of property to secure
performance in connection with operating leases made in the ordinary course of
business to which Parent or any of its Subsidiaries is a party as lessee,
PROVIDED the aggregate value of all such pledges and deposits in connection with
any such lease does not at any time exceed 20% of the annual fixed rentals
payable under such lease;
16
(n) Liens consisting of deposits of property to secure bids made
with respect to, or performance of, contracts (OTHER THAN contracts creating or
evidencing an extension of credit to the depositor) in the ordinary course of
business;
(o) Liens consisting of any right of offset, or statutory bankers'
lien, on bank deposit accounts maintained in the ordinary course of business so
long as such bank deposit accounts are not established or maintained for the
purpose of providing such right of offset or bankers' lien;
(p) Liens consisting of deposits of property to secure statutory
obligations of Parent or any of its Subsidiaries in the ordinary course of its
business;
(q) Liens consisting of deposits of property to secure (or in lieu
of) surety, appeal or customs bonds in proceedings to which Parent or any of its
Subsidiaries is a party in the ordinary course of business;
(r) Liens created by or resulting from any litigation or legal
proceeding involving Parent or any of its Subsidiaries in the ordinary course of
its business which is currently being contested in good faith by appropriate
proceedings, PROVIDED that adequate reserves have been set aside and no material
property is subject to a material risk of loss or forfeiture;
(s) precautionary UCC financing statement filings made in connection
with operating leases and not constituting Liens; and
(t) other non-consensual Liens incurred in the ordinary course of
business but not in connection with an extension of credit, which do not in the
aggregate, when taken together with all other Liens, materially impair the value
or use of the Property of Parent and its Subsidiaries, taken as a whole.
"PERMITTED RIGHT OF OTHERS" means a Right of Others consisting of (i) an
interest (other than a legal or equitable co-ownership interest, an option or
right to acquire a legal or equitable co-ownership interest and any interest of
a ground lessor under a ground lease), that does not materially impair the value
or use of Property for the purposes for which it is or may reasonably be
expected to be held, (ii) an option or right to acquire a Lien that would be a
Permitted Encumbrance, (iii) the subordination of a lease or sublease in favor
of a financing entity and (iv) a license, or similar right, of or to Intangible
Assets granted in the ordinary course of business.
"PERSON" means any entity, whether an individual, trustee, corporation,
general partnership, limited partnership, joint stock company, trust, estate,
unincorporated organization, business association, firm, joint venture,
Governmental Agency, or otherwise.
"PRE-OPENING EXPENSES" means, with respect to any fiscal period, the amount
of expenses (OTHER THAN Interest Expense) incurred with respect to capital
projects which are classified as "pre-opening expenses" on the applicable
financial statements of Parent and its Subsidiaries for such period, prepared in
accordance with Generally Accepted Accounting Principles.
17
"PRICING ADJUSTMENT" means, during any Pricing Period, (a) if the Total
Debt Ratio as of the last day of the Fiscal Quarter ending immediately prior to
the commencement of such Pricing Period was greater than 3.75 to 1.00 but less
than or equal to 4.25:1.00, an increase to the Eurodollar Margin and Letter of
Credit Fee of 7.5 basis points, (b) if the Total Debt Ratio as of the last day
of the Fiscal Quarter ending immediately prior to the commencement of such
Pricing Period was greater than 4.25:1.00, an increase to the Eurodollar Margin
and Letter of Credit Fee of 15.0 basis points, and (c) if the Total Debt Ratio
as of the last day of the Fiscal Quarter ending immediately prior to the
commencement of such Pricing Period was less than 2.00:1.00, a decrease to the
Eurodollar Margin and Letter of Credit Fee of 7.5 basis points.
"PRICING LEVEL" means, for each Pricing Period, the pricing level set forth
below opposite the Debt Ratings as of the first day of that Pricing Period:
Moody's/S&P Rating Applicable Pricing Level
------------------ ------------------------
A-/A3 or higher Pricing Level I
BBB+/Baa1 Pricing Level II
BBB/Baa2 Pricing Level III
BBB-/Baa3 Pricing Level IV
BB+/Ba1 Pricing Level V
BB/Ba2 or lower or unrated Pricing Level VI
PROVIDED that if Moody's and S&P each assign Debt Ratings which are
associated with different Pricing Levels in the matrix set forth above, then the
applicable Pricing Level shall be the Pricing Level which is one Pricing Level
higher than that associated with the lower of the two Debt Ratings.
"PRICING PERIOD" means (a) the period commencing on the Closing Date and
ending on May 31, 2003, (b) each subsequent three month period commencing on
each June 1, September 1, December 1 and March 1, and (c) any shorter period
ending on the date upon which the Commitments are terminated.
"PROJECTIONS" means the financial projections contained in the Confidential
Information Memorandum.
"PROPERTY" means any interest in any kind of property or asset, whether
real, personal or mixed, or tangible or intangible.
"PRO RATA SHARE" means, with respect to each Lender, such Lender's
Revolving Pro Rata Share, Term Loan Pro Rata Share or Aggregate Pro Rata Share,
as applicable.
"QUARTERLY PAYMENT DATE" means each March 31, June 30, September 30 and
December 31.
"RATING DECLINE" means the occurrence of a decrease in the Debt Rating by
either Xxxxx'x or S&P to below Investment Grade on any date on or within 90 days
after the date of the first public notice of (a) the occurrence of an event
described in clauses (i)-(iv) of the
18
definition of "Change in Control" or (b) the intention by any of the Parent or
Borrowers to effect such an event (which 90-day period shall be extended so long
as the Debt Rating is under publicly announced consideration for possible
downgrade by Moody's or S&P).
"REAL PROPERTY" means, as of any date of determination, all real property
then or theretofore owned, leased or occupied by Parent or any of its
Subsidiaries.
"REGISTER" has the meaning specified in Section 11.8(c).
"REGULATIONS T, U AND X" means Regulations T, U and X, as at any time
amended, of the Board of Governors of the Federal Reserve System, or any other
regulations in substance substituted therefor.
"REQUEST FOR LETTER OF CREDIT" means a written request for a Letter of
Credit substantially in the form of Exhibit I, together with any forms of
application for letter of credit required by the relevant Issuing Lender
therefor, in each case signed by a Responsible Official of a Borrower on behalf
of that Borrower and properly completed to provide all information required to
be included therein (provided that it is understood that the terms of the Loan
Documents shall govern and control in the event of any conflict between the
terms of any such application and the Loan Documents).
"REQUEST FOR LOAN" means a written request for a Loan substantially in the
form of Exhibit J, signed by a Responsible Official of a Borrower, on behalf of
that Borrower, and properly completed to provide all information required to be
included therein.
"REQUIREMENT OF LAW" means, as to any Person, the articles or certificate
of incorporation and by-laws or other organizational or governing documents of
such Person, and any Law, or judgment, award, decree, writ or determination of a
Governmental Agency, in each case applicable to or binding upon such Person or
any of its Property or to which such Person or any of its Property is subject.
"REQUISITE LENDERS" means (a) as of any date of determination prior to the
termination of the Commitments, Lenders having in the aggregate 51% or more of
the Aggregate Commitments and (b) as of any date of determination if the
Commitments have then been terminated, Lenders holding 51% of the Outstanding
Obligations.
"REQUISITE REVOLVING LENDERS" means (a) as of any date of determination if
the Revolving Loan Commitment is then in effect, Revolving Lenders having in the
aggregate 51% or more of the Revolving Loan Commitment then in effect and (b) as
of any date of determination if the Revolving Loan Commitment has then been
terminated, Revolving Lenders holding 51% of the Outstanding Revolving
Obligations.
"RESPONSIBLE OFFICIAL" means when used with reference to a Person other
than an individual, any corporate officer of such Person, general partner of
such Person, corporate officer of a corporate general partner of such Person, or
corporate officer of a corporate general partner of a partnership that is a
general partner of such Person, or any other responsible official thereof duly
acting on behalf thereof. Any document or certificate hereunder that is signed
or executed
19
by a Responsible Official of another Person shall be conclusively presumed to
have been authorized by all necessary corporate, partnership and/or other action
on the part of such other Person.
"REVOLVING LENDER" means each Lender that holds a Revolving Loan
Commitment.
"REVOLVING LOAN" means each Loan made by a Revolving Lender under the
Revolving Loan Commitment.
"REVOLVING LOAN COMMITMENT" means, subject to Sections 2.6, 2.7, 2.8 and
11.14, $1,062,500,000. As of the Closing Date, the respective Revolving Pro Rata
Shares of the Revolving Lenders with respect to the Revolving Loan Commitment
are set forth in the records of the Administrative Agent.
"REVOLVING PRO RATA SHARE" means, with respect to each Revolving Lender,
the percentage of the Revolving Loan Commitment held by that Lender. The
Revolving Pro Rata Share of each Revolving Lender is set forth in the records of
the Administrative Agent.
"RIGHT OF OTHERS" means, as to any Property in which a Person has an
interest, any legal or equitable ownership right, title or other interest (other
than a Lien) held by any other Person in that Property, and any option or right
held by any other Person to acquire any such right, title or other interest in
that Property, INCLUDING any option or right to acquire a Lien; PROVIDED,
however, that (a) any covenant restricting the use or disposition of Property of
such Person contained in any Contractual Obligation of such Person, (b) any
provision contained in a contract creating a right of payment or performance in
favor of a Person that conditions, limits, restricts, diminishes, transfers or
terminates such right, and (c) any residual rights held by a lessor or vendor of
Property, shall not be deemed to constitute a Right of Others.
"S&P" means Standard & Poor's Ratings Services, a division of McGraw Hill,
Inc., its successors and assigns.
"SALE AND LEASEBACK" means, with respect to any Person, the sale of
Property owned by that Person (the "Seller") to another Person (the "Buyer"),
together with the substantially concurrent leasing of such Property (or any
portion thereof) by the Buyer to the Seller.
"SALE AND LEASEBACK OBLIGATION" means, with respect to any Sale and
Leaseback and as of any date of determination, the present value of the
aggregate monetary obligations of the lessee under the lease of the Property
which is the subject of such Sale and Leaseback (discounted at the interest rate
implicit in such lease, compounded annually) for the then remaining term of such
lease (treating all extension options exercisable by the lessor as having been
exercised, but deeming the lease terminated as of the earliest date upon which
the lessee has the option to do so); provided that such monetary obligations
shall exclude amounts payable in respect of maintenance, repairs, insurance,
taxes, assessments, utilities and similar charges.
"SENIOR OFFICER" means Parent's and each Borrower's (a) chief executive
officer, (b) president, (c) chief financial officer, (d) treasurer, (e) vice
presidents or (f) secretaries.
20
"SHOWBOAT" means Showboat, Inc., a Nevada corporation and its Subsidiaries.
"SIGNIFICANT SUBSIDIARY" means, as of any date of determination, each
Subsidiary of Parent that had on the last day of the Fiscal Quarter then most
recently ended total assets (determined in accordance with Generally Accepted
Accounting Principles) of $50,000,000 or more.
"SPC" has the meaning specified in Section 11.8(h).
"SPECIAL EURODOLLAR CIRCUMSTANCE" means the application or adoption after
the date hereof of any Law or interpretation, or any change therein or thereof,
or any change in the interpretation or administration thereof by any
Governmental Agency, central bank or comparable authority charged with the
interpretation or administration thereof, or compliance by any Lender or its
Eurodollar Lending Office with any request or directive (whether or not having
the force of Law) of any such Governmental Agency, central bank or comparable
authority, or the existence or occurrence of circumstances affecting the
Designated Eurodollar Market generally that are beyond the reasonable control of
the Lenders.
"SOLVENT" as to any Person shall mean that (a) the sum of the assets of
such Person, both at a fair valuation and at present fair saleable value,
exceeds its liabilities, including its probable liability in respect of
contingent liabilities, (b) such Person will have sufficient capital with which
to conduct its business as presently conducted and as proposed to be conducted
and (c) such Person has not incurred debts, and does not intend to incur debts,
beyond its ability to pay such debts as they mature. For purposes of this
definition, "debt" means any liability on a claim, and "claim" means (x) a right
to payment, whether or not such right is reduced to judgment, liquidated,
unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed,
legal, equitable, secured, or unsecured, or (y) a 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. With respect to
any such contingent liabilities, such liabilities shall be computed at the
amount which, in light of all the facts and circumstances existing at the time,
represents the amount which can reasonably be expected to become an actual or
matured liability.
"SUBORDINATED DEBT" means (a) the Existing Subordinated Debt, and (b) any
other Indebtedness of Parent or the Company which is subordinated in right of
payment to the Obligations pursuant to subordination provisions which are either
(i) substantively no less favorable to the Lenders than the subordination
provisions of the Existing Subordinated Debt, or (ii) otherwise are acceptable
to the Requisite Lenders in the exercise of their sole discretion.
"SUBSIDIARY" of a Person means a corporation, partnership, joint venture,
limited liability company or other business entity of which a majority of the
shares of securities or other interests having ordinary voting power for the
election of directors or other governing body (other than securities or
interests having such power only by reason of the happening of a contingency)
are at the time beneficially owned, or the management of which is otherwise
controlled, directly, or indirectly through one or more intermediaries, or both,
by such Person.
21
"SWING LINE" means the revolving line of credit established by the Swing
Line Lender in favor of Borrowers pursuant to Section 2.5.
"SWING LINE ADVANCES" means Advances made by the Swing Line Lender to any
of the Borrowers pursuant to Section 2.5.
"SWING LINE DOCUMENTS" means the promissory notes and any other documents
executed by Borrowers in favor of the Swing Line Lender in connection with the
Swing Line.
"SWING LINE LENDER" means, when acting in such capacity, Bank of America
(through its Nevada Commercial Banking Division), its successors and assigns.
"SWING LINE OUTSTANDINGS" means, as of any date of determination, the
aggregate principal Indebtedness of Borrowers on all Swing Line Advances then
outstanding.
"SYNDICATION AGENT" means Deutsche Bank Trust Company Americas. Deutsche
Bank Trust Company Americas shall not have any additional rights, duties or
obligations under this Agreement or the other Loan Documents by reason of its
being a Syndication Agent.
"TERM LOAN" has the meaning specified in Section 2.1(a).
"TERM LOAN COMMITMENT" means, subject to Sections 2.7, 2.8 and 11.14,
$900,000,000. As of the Closing Date, the respective Term Pro Rata Shares of the
Lenders with respect to the Term Loan Commitment are set forth in the records of
the Administrative Agent.
"TERM LOAN LENDER" means each Lender that holds a Term Loan Commitment.
"TERM PRO RATA SHARE" means, with respect to each Term Loan Lender, the
percentage of the Term Loan Commitment held by that Lender. The Term Pro Rata
Share of each Term Loan Lender is set forth in the records of the Administrative
Agent.
"TOTAL DEBT" means, as of any date of determination, the sum (without
duplication) of (a) the outstanding principal Indebtedness of Parent and its
Subsidiaries for borrowed money (including debt securities issued by Parent or
any of its Subsidiaries) on that date, PLUS (b) the aggregate amount of all
Capital Lease Obligations of Parent and its Subsidiaries on that date, PLUS (c)
all obligations in respect of letters of credit or other similar instruments for
which Parent or any of its Subsidiaries are account parties or are otherwise
obligated, PLUS (d) the aggregate amount of all Contingent Obligations and other
similar contingent obligations of Parent and its Subsidiaries with respect to
any of the foregoing, and PLUS (e) any obligations of Parent or any of its
Subsidiaries to the extent that the same are secured by a Lien on any of the
assets of Parent or its Subsidiaries. In computing "Total Debt," the amount of
any Contingent Obligation or letter of credit shall be deemed to be zero unless
and until (1) in the case of obligations in respect of letters of credit, a
drawing is made with respect thereto and (2) in the case of any other Contingent
Obligations, demand for payment is made with respect thereto.
"TOTAL DEBT RATIO" means, as of the last day of any Fiscal Quarter, the
ratio of (a) Total Debt on that date, to (b) EBITDA for the four Fiscal Quarter
period ending on that date.
22
"TYPE", when used with respect to any Loan or Advance, means the
designation of whether such Loan or Advance is a Base Rate Loan or Advance, or a
Eurodollar Rate Loan or Advance.
"WHOLLY-OWNED SUBSIDIARY" means, as to any Person any other Person, 100% of
whose capital stock, partnership interests, membership interests or other forms
of equity ownership interest (other than directors qualifying shares and similar
interests) is at the time owned, directly or indirectly, by such Person.
1.2 USE OF DEFINED TERMS. Any defined term used in the plural shall refer
to all members of the relevant class, and any defined term used in the singular
shall refer to any one or more of the members of the relevant class.
1.3 ACCOUNTING TERMS. All accounting terms not specifically defined in
this Agreement shall be construed in conformity with, and all financial data
required to be submitted by this Agreement shall be prepared in conformity with,
Generally Accepted Accounting Principles applied on a consistent basis, EXCEPT
as otherwise specifically prescribed herein. In the event that Generally
Accepted Accounting Principles change during the term of this Agreement such
that the covenants contained in Sections 6.5 and 6.6 would then be calculated in
a different manner or with different components, (a) Parent, Borrowers and the
Lenders agree to amend this Agreement in such respects as are necessary to
conform those covenants as criteria for evaluating Parent's consolidated
financial condition to substantially the same criteria as were effective prior
to such change in Generally Accepted Accounting Principles and (b) Parent and
Borrowers shall be deemed to be in compliance with the covenants contained in
the aforesaid Sections during the 90 day period following any such change in
Generally Accepted Accounting Principles if and to the extent that Parent and
Borrowers would have been in compliance therewith under Generally Accepted
Accounting Principles as in effect immediately prior to such change.
1.4 ROUNDING. Any financial ratios required to be maintained by Parent
and Borrowers pursuant to this Agreement shall be calculated by dividing the
appropriate component by the other component, carrying the result to one place
more than the number of places by which such ratio is expressed in this
Agreement and rounding the result up or down to the nearest number (with a
round-up if there is no nearest number) to the number of places by which such
ratio is expressed in this Agreement.
1.5 EXHIBITS AND SCHEDULES. All Exhibits and Schedules to this Agreement,
either as originally existing or as the same may from time to time be
supplemented, modified or amended, are incorporated herein by this reference. A
matter disclosed on any Schedule shall be deemed disclosed on all Schedules.
1.6 MISCELLANEOUS TERMS. The term "or" is disjunctive; the term "and" is
conjunctive. The term "shall" is mandatory; the term "may" is permissive.
Masculine terms also apply to females; feminine terms also apply to males. The
term "including" is by way of example and not limitation.
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ARTICLE 2
LOANS AND LETTERS OF CREDIT
2.1 COMMITTED LOANS-GENERAL.
(a) Subject to the terms and conditions set forth in this Agreement,
each of the Term Loan Lenders agrees to make Committed Advances, in Dollars, to
the Company in such amount (not to exceed the Term Loan Commitment) as the
Company may request (each individually, a "TERM LOAN" and, collectively, the
"TERM LOANS"). The Term Loans shall be made by the Term Loan Lenders on the
Closing Date, and any portion of the Term Loan Commitment not borrowed on the
Closing Date shall expire on such date. All Term Loans shall be made by the Term
Loan Lenders simultaneously and proportionately to their respective Term Loan
Pro Rata Shares, it being understood that no Lender shall be responsible for any
failure by any other Lender to perform its obligation to make any Term Loan
hereunder nor shall the Term Loan Commitment of any Lender be increased or
decreased as a result of any such failure. Once repaid, Term Loans may not be
reborrowed.
(b) Subject to the terms and conditions set forth in this Agreement,
at any time and from time to time from the Closing Date through and including
the Maturity Date, each Revolving Lender shall, pro rata according to that
Lender's Revolving Pro Rata Share of the then applicable Revolving Loan
Commitment, make Committed Advances in Dollars to Borrowers in such amounts as
any Borrower may request PROVIDED that (a) giving effect to such Advances, the
Outstanding Revolving Obligations shall not exceed the Revolving Loan Commitment
at any time, and (b) without the consent of all of the Revolving Lenders, the
aggregate principal amount of the Outstanding Revolving Obligations of each
Borrower hereafter designated as such pursuant to Section 2.9 shall not exceed
that Borrower's Aggregate Sublimit at any time. Subject to the limitations set
forth herein, each of the Borrowers may borrow, repay and reborrow under the
Revolving Loan Commitment without premium or penalty.
(c) Subject to the next sentence, each Committed Loan shall be made
pursuant to a Request for Loan executed by the relevant Borrower which shall
specify the requested (i) date of such Loan, (ii) type of Loan, (iii) amount of
such Loan, (iv) term or revolving nature of such Loan, and (v) in the case of a
Eurodollar Rate Loan, the Eurodollar Period for such Loan. Unless the
Administrative Agent has notified, in its sole and absolute discretion,
Borrowers to the contrary, a Loan may be requested by telephone by a Responsible
Official of any Borrower, in which case that Borrower shall confirm such request
by promptly delivering a Request for Loan in person or by telecopier conforming
to the preceding sentence to the Administrative Agent. The Administrative Agent
shall incur no liability whatsoever hereunder in acting upon any telephonic
request for loan purportedly made by a Responsible Official of a Borrower, and
each Borrower hereby jointly and severally (but as between Borrowers, ratably)
agrees to indemnify the Administrative Agent from any loss, cost, expense or
liability as a result of so acting.
(d) Promptly following receipt of a Request for Loan, the
Administrative Agent shall notify each Lender that holds a Commitment for the
type of Loan requested by
24
telephone or telecopier (and if by telephone, promptly confirmed by telecopier)
of the identity of the relevant Borrower, the date and type of the Loan, the
applicable Eurodollar Period, and that Lender's Pro Rata Share of the requested
Loan. Not later than 12:00 noon,
California local time, on the date specified
for any Loan (which must be a Business Day), each Lender shall make its Pro Rata
Share of the Committed Loan in immediately available funds available to the
Administrative Agent at the Administrative Agent's Office. Upon satisfaction or
waiver of the applicable conditions set forth in Article 8, all Committed
Advances shall be credited on that date in immediately available funds to the
Designated Deposit Account.
(e) Unless the Requisite Lenders otherwise consent, each Committed
Loan shall be an integral multiple of $1,000,000 and shall be not less than
$10,000,000.
(f) The Committed Advances made by each Revolving Lender to each
Borrower shall be evidenced by a Committed Advance Revolving Note issued by that
Borrower and made payable to that Revolving Lender. The Committed Advances made
by each Term Loan Lender to the Company shall be evidenced by a Committed
Advance Term Note issued by the Company and made payable to that Term Loan
Lender.
(g) A Request for Loan shall be irrevocable upon the Administrative
Agent's first notification thereof.
(h) If no Request for Loan (or telephonic request for loan referred
to in the second sentence of Section 2.1(c), if applicable) has been made within
the requisite notice periods set forth in Sections 2.2 or 2.3 in connection with
a Loan which, if made and giving effect to the application of the proceeds
thereof, would not increase the outstanding principal Indebtedness evidenced by
the Notes of the relevant Borrower, then that Borrower shall be deemed to have
requested, as of the date upon which the related then outstanding Loan is due
pursuant to Section 3.1(e)(i), a Base Rate Loan in an amount equal to the amount
necessary to cause the outstanding principal Indebtedness evidenced by such
Notes to remain the same and the Lenders shall make the Advances necessary to
make such Loan notwithstanding Sections 2.1(c), 2.2 and 2.3.
2.2 BASE RATE LOANS. Each request by a Borrower for a Base Rate Loan
shall be made pursuant to a Request for Loan (or telephonic or other request for
loan referred to in the second sentence of Section 2.1(c), if applicable)
received by the Administrative Agent, at the Administrative Agent's Office, not
later than 9:00 a.m.
California local time, on the date (which must be a
Business Day) of the requested Base Rate Loan. All Committed Loans shall
constitute Base Rate Loans unless properly designated as a Eurodollar Rate Loan
pursuant to Section 2.3.
2.3 EURODOLLAR RATE LOANS.
(a) Each request by a Borrower for a Eurodollar Rate Loan shall be
made pursuant to a Request for Loan (or telephonic or other request for loan
referred to in the second sentence of Section 2.1(c), if applicable) received by
the Administrative Agent, at the Administrative Agent's Office, not later than
9:00 a.m.,
California local time, at least three Eurodollar Business Days before
the first day of the applicable Eurodollar Period.
25
(b) On the date which is two Eurodollar Business Days before the
first day of the applicable Eurodollar Period, the Administrative Agent shall
confirm its determination of the applicable Eurodollar Rate (which determination
shall be conclusive in the absence of manifest error) and promptly shall give
notice of the same to Borrowers and the applicable Lenders by telephone or
telecopier (and if by telephone, promptly confirmed by telecopier).
(c) Unless the Administrative Agent and the Requisite Lenders
otherwise consent, no more than twenty Eurodollar Rate Loans shall be
outstanding at any one time.
(d) No Eurodollar Rate Loan may be requested during the existence of
a Default or Event of Default.
(e) No Lender shall be required to obtain the funds necessary to
fund its Eurodollar Rate Advances in the Designated Eurodollar Market or from
any other particular source of funds, rather each Lender shall be free to obtain
such funds from any legal source.
2.4 LETTERS OF CREDIT.
(a) On the Closing Date, each of the Continuing Letters of Credit
shall be deemed to have been issued and to be outstanding under this Agreement,
and each issuer of a Continuing Letter of Credit hereby consents to the
termination, concurrently with the Closing Date, of the participation therein of
the lenders under the Existing Xxxxxx'x
Credit Agreements.
(b) Subject to the terms and conditions hereof, at any time and from
time to time from the Closing Date through the day prior to the Maturity Date,
any one or more of the Borrowers may request that any one or more of the
Revolving Lenders issue, as Issuing Lender, additional Letters of Credit under
the Revolving Loan Commitment (each of which shall be denominated in Dollars) by
submission of a Request for Letter of Credit to such Revolving Lender (with a
copy to the Administrative Agent); PROVIDED that giving effect to all such
Letters of Credit, (i) the Outstanding Revolving Obligations shall not exceed
the Revolving Loan Commitment at any time, (ii) without the consent of all of
the Revolving Lenders, the aggregate principal amount of the Outstanding
Revolving Obligations of each Borrower hereafter designated as such pursuant to
Section 2.9 shall not exceed that Borrower's Aggregate Sublimit at any time, and
(iii) the Aggregate Effective Amount under all outstanding Letters of Credit
shall not exceed $200,000,000. Each Letter of Credit shall be in a form
reasonably acceptable to the relevant Issuing Lender. Unless all the Revolving
Lenders otherwise consent in a writing delivered to the Administrative Agent, no
Letter of Credit shall have a term which extends beyond the Maturity Date.
(c) Each Request for Letter of Credit shall be submitted to the
relevant Issuing Lender, with a copy to the Administrative Agent, at least five
Business Days prior to the date upon which the related Letter of Credit is
proposed to be issued (or such shorter period as may be acceptable to both the
relevant Issuing Lender and the Administrative Agent). The Administrative Agent
shall promptly notify the relevant Issuing Lender whether such Request for
Letter of Credit, and the issuance of a Letter of Credit pursuant thereto,
conforms to the requirements of this Agreement. Upon issuance, amendment to or
extension of a Letter of
26
Credit, the relevant Issuing Lender shall promptly notify the Administrative
Agent, and the Administrative Agent shall promptly notify the Revolving Lenders,
of the amount and terms thereof.
(d) On the Closing Date, each Revolving Lender shall be deemed to
have purchased a pro rata participation in each Continuing Letter of Credit
from the relevant Issuing Lender in an amount equal to that Lender's Revolving
Pro Rata share. Upon the issuance of each other Letter of Credit, each Revolving
Lender shall be deemed to have purchased a pro rata participation in such Letter
of Credit from the relevant Issuing Lender in an amount equal to that Lender's
Revolving Pro Rata Share. Without limiting the scope and nature of each
Revolving Lender's participation in any Letter of Credit, to the extent that the
relevant Issuing Lender has not been reimbursed by the Borrower which is the
account party for any Letter of Credit for any payment required to be made by
the relevant Issuing Lender thereunder, each Revolving Lender shall, pro rata
according to its Revolving Pro Rata Share, reimburse the relevant Issuing Lender
promptly upon demand for the amount of such payment. The obligation of each
Revolving Lender to so reimburse the relevant Issuing Lender shall be absolute
and unconditional and shall not be affected by the occurrence of an Event of
Default or any other occurrence or event. Any such reimbursement shall not
relieve or otherwise impair the obligation of Borrowers to reimburse the
relevant Issuing Lender for the amount of any payment made by the relevant
Issuing Lender under any Letter of Credit together with interest as hereinafter
provided.
(e) Promptly and in any event within one Business Day following any
drawing upon a Letter of Credit, the amendment or extension thereof, the Issuing
Bank for that Letter of Credit shall provide notice thereof to the
Administrative Agent. Each Borrower agrees to pay to the relevant Issuing Lender
an amount equal to any payment made by the relevant Issuing Lender with respect
to each Letter of Credit within one Business Day after demand made by the
relevant Issuing Lender therefor (which demand the relevant Issuing Lender shall
make promptly and in any event shall make upon the request of the Requisite
Revolving Lenders), together with interest on such amount from the date of any
payment made by the relevant Issuing Lender at the rate applicable to Base Rate
Loans for three Business Days and thereafter at the Default Rate. The principal
amount of any such payment shall be used to reimburse the relevant Issuing
Lender for the payment made by it under the Letter of Credit and, to the extent
that the Revolving Lenders have not reimbursed the relevant Issuing Lender
pursuant to Section 2.4(d), the interest amount of any such payment shall be for
the account of the relevant Issuing Lender. Each Revolving Lender that has
reimbursed the relevant Issuing Lender pursuant to Section 2.4(d) for its
Revolving Pro Rata Share of any payment made by the relevant Issuing Lender
under a Letter of Credit shall thereupon acquire a pro rata participation, to
the extent of such reimbursement, in the claim of the relevant Issuing Lender
against Borrowers for reimbursement of principal and interest under this Section
2.4(e) and shall share, in accordance with that pro rata participation, in any
principal payment made by Borrowers with respect to such claim and in any
interest payment made by Borrowers (but only with respect to periods subsequent
to the date such Revolving Lender reimbursed the relevant Issuing Lender) with
respect to such claim. The relevant Issuing Lender shall promptly make available
to the Administrative Agent, which will thereupon remit to the appropriate
Revolving Lenders, in immediately available funds, any amounts due to the
Revolving Lenders under this Section.
27
(f) Each Borrower may, pursuant to a Request for Loan, request that
Advances be made pursuant to Section 2.1(b) to provide funds for the payment
required by Section 2.4(e) and, for this purpose, the conditions precedent set
forth in Article 8 shall not apply. The proceeds of such Advances shall be paid
directly by the Administrative Agent to the relevant Issuing Lender to reimburse
it for the payment made by it under the Letter of Credit.
(g) If Borrowers fail to make the payment required by Section 2.4(e)
within the time period therein set forth, in lieu of the reimbursement to the
relevant Issuing Lender under Section 2.4(d) the relevant Issuing Lender may
(but is not required to), without notice to or the consent of Borrowers, require
that the Administrative Agent request that the Revolving Lenders make Advances
under the Revolving Loan Commitment in an aggregate amount equal to the amount
paid by that Issuing Lender with respect to that Letter of Credit and, for this
purpose, the conditions precedent set forth in Article 8 shall not apply. The
proceeds of such Advances shall be paid by the Administrative Agent directly to
the relevant Issuing Lender to reimburse it for the payment made by it under the
Letter of Credit.
(h) The issuance of any supplement, modification, amendment,
renewal, or extension to or of any Letter of Credit shall be treated in all
respects the same as the issuance of a new Letter of Credit.
(i) The obligation of Borrowers to pay to each Issuing Lender the
amount of any payment made by that Issuing Lender under any Letter of Credit
shall be absolute, unconditional, and irrevocable. Without limiting the
foregoing, Borrowers' obligations shall not be affected by any of the following
circumstances:
(i) any lack of validity or enforceability of the Letter
of Credit, this Agreement, or any other agreement or instrument relating
thereto;
(ii) any amendment or waiver of or any consent to departure
from the Letter of Credit, this Agreement, or any other agreement or
instrument relating thereto;
(iii) the existence of any claim, setoff, defense, or other
rights which any Borrower may have at any time against any Issuing Lender
or any other Creditor, any beneficiary of the Letter of Credit (or any
persons or entities for whom any such beneficiary may be acting) or any
other Person, whether in connection with the Letter of Credit, this
Agreement, or any other agreement or instrument relating thereto, or any
unrelated transactions;
(iv) any demand, statement, or any other document presented
under the Letter of Credit proving to be forged, fraudulent, invalid, or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect whatsoever;
(v) payment by the relevant Issuing Lender under the
Letter of Credit against presentation of a draft or any accompanying
document which does not strictly comply with the terms of the Letter of
Credit;
28
(vi) the existence, character, quality, quantity,
condition, packing, value or delivery of any Property purported to be
represented by documents presented in connection with any Letter of Credit
or any difference between any such Property and the character, quality,
quantity, condition, or value of such Property as described in such
documents;
(vii) the time, place, manner, order or contents of
shipments or deliveries of Property as described in documents presented in
connection with any Letter of Credit or the existence, nature and extent of
any insurance relative thereto;
(viii) the solvency or financial responsibility of any party
issuing any documents in connection with a Letter of Credit;
(ix) any failure or delay in notice of shipments or arrival
of any Property;
(x) any error in the transmission of any message relating
to a Letter of Credit not caused by the relevant Issuing Lender, or any
delay or interruption in any such message;
(xi) any consequence arising from acts of God, war,
insurrection, civil unrest, disturbances, labor disputes, emergency
conditions or other causes beyond the control of the relevant Issuing
Lender;
(xii) so long as the relevant Issuing Lender in good faith
determines that the contract or document appears to comply with the terms
of the Letter of Credit, the form, accuracy, genuineness or legal effect of
any contract or document referred to in any document submitted to the
relevant Issuing Lender in connection with a Letter of Credit; and
(xiii) where the relevant Issuing Lender has acted in good
faith and observed general banking usage, any other circumstances
whatsoever.
(j) Each Issuing Lender shall be entitled to the protection accorded
to the Administrative Agent pursuant to Section 10.3, MUTATIS MUTANDIS.
(k) Unless otherwise expressly agreed by an Issuing Lender and a
Borrower when a Letter of Credit is issued (including any such agreement
applicable to a Continuing Letter of Credit), such Letter of Credit shall
provide that (i) the rules of the "International Standby Practices 1998"
published by the Institute of International Banking Law & Practice (or such
later version thereof as may be in effect at the time of issuance) shall apply
to it if it is a standby Letter of Credit, and (ii) the rules of the Uniform
Customs and Practice for Documentary Credits, as most recently published by the
International Chamber of Commerce (the "ICC") at the time of issuance (including
the ICC decision published by the Commission on Banking Technique and Practice
on April 6, 1998 regarding the European single currency (euro)) shall apply to
it if it is a commercial Letter of Credit.
29
2.5 SWING LINE.
(a) The Swing Line Lender shall from time to time from the Closing
Date through the Business Day prior to the Maturity Date make Swing Line
Advances in Dollars to any Borrower in such amounts as that Borrower may
request, PROVIDED that (i) after giving effect to such Swing Line Advance, the
Swing Line Outstandings shall not exceed $50,000,000, (ii) after giving effect
to such Swing Line Advance, the Outstanding Revolving Obligations shall not
exceed the Revolving Loan Commitment at any time, (iii) without the consent of
all of the Revolving Lenders, no Swing Line Advance may be made during the
continuation of any Default or Event of Default, (iv) without the consent of all
of the Revolving Lenders, the aggregate principal amount of the Outstanding
Revolving Obligations of each Borrower designated as such in accordance with
Section 2.9 shall not exceed the Aggregate Sublimit for that Borrower at any
time, and (v) the Swing Line Lender has not given at least twenty-four hours
prior notice to the Parent that availability under the Swing Line is suspended
or terminated. Borrowers may borrow, repay and reborrow under this Section.
Unless notified to the contrary by the Swing Line Lender, borrowings under the
Swing Line may be made in amounts which are integral multiples of $100,000 upon
telephonic request by a Responsible Official of any Borrower made to the
Administrative Agent not later than 1:00 p.m.,
California time, on the Business
Day of the requested Swing Line Advance (which telephonic request shall be
promptly confirmed in writing by telecopier). Promptly after receipt of such a
request for a Swing Line Advance, the Administrative Agent shall provide
telephonic verification to the Swing Line Lender that, after giving effect to
such request, the Outstanding Revolving Obligations shall not exceed the
Revolving Loan Commitment (and such verification shall be promptly confirmed in
writing by telecopier). Unless the Swing Line Lender otherwise agrees, each
repayment of a Swing Line Advance shall be in an amount which is an integral
multiple of $100,000. If a Borrower instructs the Swing Line Lender to debit its
demand deposit account at the Swing Line Lender in the amount of any payment
with respect to a Swing Line Advance, or the Swing Line Lender otherwise
receives repayment, after 3:00 p.m.,
California time, on a Business Day, such
payment shall be deemed received on the next Business Day. The Swing Line Lender
shall promptly notify the Administrative Agent of the Swing Loan Outstandings
each time there is a change therein.
(b) Swing Line Advances shall bear interest at a fluctuating rate
per annum equal to that applicable from time to time for Base Rate Loans.
Interest shall be payable on such dates, not more frequent than monthly, as may
be specified by the Swing Line Lender and in any event on the Maturity Date. The
Swing Line Lender shall be responsible for submitting invoices to the Borrowers
for such interest. The interest payable on Swing Line Advances shall be solely
for the account of the Swing Line Lender unless and until the Lenders fund their
participations therein pursuant to clause (d) of this Section.
(c) The Swing Line Advances shall be payable on demand made by the
Swing Line Lender and in any event on the Maturity Date.
(d) Upon the making of a Swing Line Advance, each Revolving Lender
shall be deemed to have purchased from the Swing Line Lender a participation
therein in an amount equal to that Lender's Revolving Pro Rata Share times the
amount of the Swing Line Advance.
30
Upon demand made by the Swing Line Lender, each Revolving Lender shall,
according to its Revolving Pro Rata Share, promptly provide to the Swing Line
Lender its purchase price therefor in an amount equal to its participation
therein. The obligation of each Revolving Lender to so provide its purchase
price to the Swing Line Lender shall be absolute and unconditional (except only
demand made by the Swing Line Lender) and shall not be affected by the
occurrence of a Default or Event of Default; PROVIDED that no Revolving Lender
shall be obligated to purchase its Revolving Pro Rata Share of (i) Swing Line
Advances to the extent that Swing Line Outstandings are in excess of $10,000,000
and (ii) any Swing Line Advance made (absent the consent of all of the Revolving
Lenders) when the Swing Line Lender has written notice that a Default or Event
of Default has occurred and such Default or Event of Default remains continuing.
Each Revolving Lender that has provided to the Swing Line Lender the purchase
price due for its participation in Swing Line Advances shall thereupon acquire a
pro rata participation, to the extent of such payment, in the claim of the Swing
Line Lender against Borrowers for principal and interest and shall share, in
accordance with that pro rata participation, in any principal payment made by
Borrowers with respect to such claim and in any interest payment made by
Borrowers (but only with respect to periods subsequent to the date such
Revolving Lender paid the Swing Line Lender its purchase price) with respect to
such claim.
(e) In the event that the Swing Line Outstandings are in excess of
$10,000,000 on ten consecutive Business Days then, on the next Business Day
(unless the relevant Borrower has made other arrangements acceptable to the
Swing Line Lender to reduce the Swing Line Outstandings below $10,000,000) that
Borrower shall request a Revolving Loan in an amount sufficient to reduce the
Swing Line Outstandings below $10,000,000. In addition, upon any demand for
payment of the Swing Line Outstandings by the Swing Line Lender (unless
Borrowers have made other arrangements acceptable to the Swing Line Lender to
reduce the Swing Line Outstandings to $0), the relevant Borrower shall request a
Revolving Loan in an amount sufficient to repay all Swing Line Outstandings
(and, for this purpose, Section 2.1(e) shall not apply). In each case, the
Administrative Agent shall automatically provide the responsive Advances made by
each Revolving Lender to the Swing Line Lender (which the Swing Line Lender
shall then apply to the Swing Line Outstandings). In the event that any Borrower
fails to request a Revolving Loan within the time specified by Section 2.2 on
any such date, the Administrative Agent may, but shall not be required to,
without notice to or the consent of Borrowers, cause Advances to be made by the
Revolving Lenders to that Borrower under the Revolving Loan Commitment in
amounts which are sufficient to reduce the Swing Line Outstandings as required
above. The conditions precedent set forth in Article 8 shall not apply to
Advances to be made by the Revolving Lenders pursuant to the three preceding
sentences. The proceeds of such Advances shall be paid by the Administrative
Agent directly to the Swing Line Lender for application to the Swing Line
Outstandings.
2.6 VOLUNTARY INCREASE TO THE REVOLVING LOAN COMMITMENT.
(a) Provided that no Default or Event of Default then exists, Parent
and the Borrowers may, upon at least 30 days notice to the Administrative Agent
(which shall promptly provide a copy of such notice to the Lenders), propose to
ratably increase the aggregate amount of the Revolving Loan Commitment by an
aggregate amount not to exceed $37,500,000 (the
31
amount of any such ratable increase of the Revolving Loan Commitment being
referred to as the "INCREASED COMMITMENT"). Each Revolving Lender party to this
Agreement at such time shall have the right (but no obligation), for a period of
15 days following receipt of such notice, to elect by notice to Parent and the
Borrowers and the Administrative Agent to increase its Revolving Loan Commitment
by a principal amount which bears the same ratio to the Increased Commitment as
its then Revolving Loan Commitment bears to the aggregate Revolving Loan
Commitment then existing. Each Revolving Lender which fails to respond to any
such request shall be conclusively deemed to have refused to consent to an
increase in its Revolving Loan Commitment.
(b) If any Revolving Lender party to this Agreement shall not elect
to increase its Revolving Loan Commitment pursuant to clause (a) of this
Section, Parent and the Borrowers may designate another Person which qualifies
as an Eligible Assignee (which may be, but need not be, one or more of the
existing Lenders) which at the time agrees to (i) in the case of any such Person
that is an existing Lender, increase its Revolving Loan Commitment and (ii) in
the case of any other such Person (an "ADDITIONAL LENDER"), become a party to
this Agreement. The sum of the increases in the Revolving Loan Commitment of the
existing Revolving Lenders pursuant to this clause (b) plus the Commitments of
the Additional Lenders shall not in the aggregate exceed the unsubscribed amount
of the Increased Commitment.
(c) An increase in the aggregate amount of the Revolving Loan
Commitment pursuant to this Section shall become effective upon the receipt by
the Administrative Agent of an agreement in form and substance satisfactory to
the Administrative Agent signed by the Parent and the Borrowers, by each
Additional Lender and by each other Lender whose Revolving Loan Commitment is to
be increased, setting forth the new Revolving Loan Commitments of such Lenders
and setting forth the agreement of each Additional Lender to become a party to
this Agreement and to be bound by all the terms and provisions hereof, together
with such evidence of appropriate corporate authorization on the part of Parent
and the Borrowers and the Additional Lenders with respect to the Increased
Commitment as the Administrative Agent may reasonably request.
2.7 VOLUNTARY REDUCTION OF THE REVOLVING LOAN COMMITMENT. Borrowers shall
have the right, at any time and from time to time, without penalty or charge,
upon at least three Business Days prior written notice to the Administrative
Agent, voluntarily to reduce or to terminate, permanently and irrevocably, in
aggregate principal amounts in an integral multiple of $1,000,000 but not less
than $10,000,000, all or a portion of the then undisbursed portion of the
Revolving Loan Commitment, PROVIDED that any such reduction or termination shall
be accompanied by payment of all accrued and unpaid commitment fees with respect
to the portion of the Revolving Loan Commitment being reduced or terminated. The
Administrative Agent shall promptly notify the Revolving Lenders of any
reduction of the Revolving Loan Commitment under this Section.
2.8 OPTIONAL TERMINATION OF COMMITMENTS. Following the occurrence of a
Change in Control, the Requisite Lenders may in their sole and absolute
discretion elect, during the sixty day period immediately subsequent to the
LATER of (a) such occurrence and (b) the EARLIER of (i) receipt of Borrowers'
written notice to the Administrative Agent of such occurrence and (ii) if no
32
such notice has been received by the Administrative Agent, the date upon which
the Administrative Agent and the Lenders have actual knowledge thereof, to
terminate the Commitments. In any such case the Commitments shall be terminated
effective on the date which is sixty days subsequent to the date of written
notice from the Administrative Agent to Borrowers thereof, and (i) to the extent
that there are then any Obligations outstanding, the same shall be immediately
due and payable, and (ii) to the extent that any Letters of Credit are then
outstanding, Borrowers shall provide cash collateral for the same.
2.9 ADDITIONAL BORROWERS. From time to time following the Closing Date
and when no Default or Event of Default exists, Parent and Company (and each
other Borrower then a party to this Agreement) may jointly designate one or more
additional Wholly-Owned Subsidiaries as additional co-borrowers under the
Revolving Loan Commitment in accordance with the provisions of this Section.
Prior to the effectiveness of any such designation each such additional Borrower
shall have duly authorized, executed and delivered to the Administrative Agent
each of the following:
(a) an Election to Become a Borrower, setting forth the proposed
Aggregate Sublimit for that Borrower, together with such other documents,
certificates, resolutions, opinions and other assurances as the Administrative
Agent may reasonably require in connection therewith; and
(b) Committed Advance Notes and Swing Line Documents;
Promptly following the submission of the foregoing documents, the
Administrative Agent shall inform the Revolving Lenders of the proposed
designation and the proposed Aggregate Sublimit. Unless the Requisite Revolving
Lenders have objected in writing to the proposed designee or Aggregate Sublimit
within ten Business Days following such notice from the Administrative Agent
(which objection may be in the sole discretion of each Lender), the
Administrative Agent shall notify the Borrowers that the appointment is
accepted, whereupon the proposed new Borrower shall be a Borrower for all
purposes of this Agreement, with the Aggregate Sublimit set forth in its
Election to Become a Borrower.
2.10 ADMINISTRATIVE AGENT'S RIGHT TO ASSUME FUNDS AVAILABLE FOR ADVANCES.
Unless the Administrative Agent shall have been notified by any Lender no later
than the Business Day prior to the funding by the Administrative Agent of any
Loan that such Lender does not intend to make available to the Administrative
Agent such Lender's portion of the total amount of such Loan, the Administrative
Agent may assume that such Lender has made such amount available to the
Administrative Agent on the date of the Loan and the Administrative Agent may,
in reliance upon such assumption, make available to the relevant Borrower a
corresponding amount. If the Administrative Agent has made funds available to a
Borrower based on such assumption and such corresponding amount is not in fact
made available to the Administrative Agent by such Lender, the Administrative
Agent shall be entitled to recover such corresponding amount on demand from such
Lender. If such Lender does not pay such corresponding amount forthwith upon the
Administrative Agent's demand therefor, the Administrative Agent promptly shall
notify Borrowers and the relevant Borrower shall pay such corresponding amount
to the Administrative Agent. The Administrative Agent also shall be entitled to
recover from such
33
Lender interest on such corresponding amount in respect of each day from the
date such corresponding amount was made available by the Administrative Agent to
that Borrower to the date such corresponding amount is recovered by the
Administrative Agent, at a rate per annum equal to the daily Federal Funds Rate.
Nothing herein shall be deemed to relieve any Lender from its obligation to
fulfill its share of the Commitments or to prejudice any rights which the
Administrative Agent or Borrowers may have against any Lender as a result of any
default by such Lender hereunder.
ARTICLE 3
PAYMENTS AND FEES
3.1 PRINCIPAL AND INTEREST.
(a) Interest shall be payable on the outstanding daily unpaid
principal amount of each Advance from the date thereof until payment in full is
made and shall accrue and be payable at the rates set forth or provided for
herein before and after default, before and after maturity, before and after
judgment, and before and after the commencement of any proceeding under any
Debtor Relief Law, with interest on overdue interest to bear interest at the
Default Rate to the fullest extent permitted by applicable Laws.
(b) Interest accrued on each Base Rate Loan on each Quarterly
Payment Date, and on the date of any prepayment of the Committed Advance Notes
pursuant to Section 3.1(f), shall be due and payable on that day. EXCEPT as
otherwise provided in Section 3.9, the unpaid principal amount of any Base Rate
Loan shall bear interest at a fluctuating rate per annum equal to the Base Rate
PLUS the Base Rate Margin. Each change in the interest rate under this Section
3.1(b) due to a change in the Base Rate shall take effect simultaneously with
the corresponding change in the Base Rate.
(c) Interest accrued on each Eurodollar Rate Loan having a
Eurodollar Period of three months or less shall be due and payable on the last
day of the related Eurodollar Period. Interest accrued on each other Eurodollar
Rate Loan shall be due and payable on the date which is three months after the
date such Eurodollar Rate Loan was made (and, in the event that all of the
Lenders have approved a Eurodollar Period of longer than 6 months, every three
months thereafter through the last day of the Eurodollar Period) and on the last
day of the related Eurodollar Period. EXCEPT as otherwise provided in Sections
3.1(d) and 3.9, the unpaid principal amount of any Eurodollar Rate Loan shall
bear interest at a rate per annum equal to the Eurodollar Rate for that
Eurodollar Rate Loan PLUS the Eurodollar Margin.
(d) During the existence of a Default or Event of Default, the
Requisite Lenders may determine that any or all then outstanding Eurodollar Rate
Loans shall be converted to Base Rate Loans. Such conversion shall be effective
upon notice to Borrowers from the Requisite Lenders (or from the Administrative
Agent on behalf of the Requisite Lenders) and shall continue so long as such
Default or Event of Default continues to exist.
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(e) If not sooner paid, the principal Indebtedness evidenced by the
Notes shall be payable as follows:
(i) the principal amount of each Eurodollar Rate Loan
shall be payable on the last day of the Eurodollar Period for such Loan
(ii) the amount, if any, by which the Outstanding Revolving
Obligations at any time exceed the Revolving Loan Commitment shall be
payable immediately, and shall be applied to the ratable payment of the
Committed Advance Revolving Notes;
(iii) the amount, if any, by which the aggregate principal
amount of the outstanding Term Loans at any time exceeds the Term Loan
Commitment shall be payable immediately, and shall be applied to the
ratable payment of the Term Loans;
(iv) the principal Indebtedness evidenced by the Committed
Advance Revolving Notes shall in any event be payable on the Maturity Date;
and
(v) the principal Indebtedness evidenced by the Committed
Advance Term Notes shall be payable on the dates and in the amounts
hereinafter set forth:
Amount of Each
Payment Date Quarterly Payment
------------ -------------------
Four Quarterly Payment Dates commencing June 30, 2005 $7,500,000
Four Quarterly Payment Dates commencing June 30, 2006 $15,000,000
Four Quarterly Payment Dates commencing June 30, 2007 $30,000,000
Maturity Date remaining balance
(f) The Committed Advance Notes may, at any time and from time to
time, voluntarily be paid or prepaid in whole or in part without premium or
penalty, EXCEPT that with respect to any voluntary prepayment under this Section
3.1(f), (i) any partial prepayment shall be in an integral multiple of
$1,000,000 but not less than $10,000,000, (ii) the Administrative Agent shall
have received written notice of any prepayment by 9:00 a.m.,
California local
time on a Business Day on the date of prepayment in the case of a Base Rate
Loan, and three Business Days, in the case of a Eurodollar Rate Loan, before the
date of prepayment, which notice shall identify the date and amount of the
prepayment and the Loan(s) being prepaid, (iii) each prepayment of principal
shall be accompanied by payment of interest accrued to the date of payment on
the amount of principal paid and (iv) any payment or prepayment of all or any
part of any Eurodollar Rate Loan on a day other than the last day of the
applicable Eurodollar Period shall be subject to Section 3.8(d). Each voluntary
prepayment of the principal amount of Term Loans shall be applied to the
remaining installments of the outstanding principal balance of Term Loans in the
direct order of maturity.
3.2 ARRANGEMENT FEE. On the Closing Date, Parent and the Company shall
pay to each Lead Arranger, an arrangement fee in the amount heretofore agreed
upon by letter agreement among Parent, the Company and each such Lead Arranger.
Such arrangement fees are
35
for the services of the Lead Arrangers in arranging the credit facilities under
this Agreement and are fully earned when paid. The arrangement fee is earned as
of the date hereof and is nonrefundable.
3.3 UPFRONT FEES. On the Closing Date, Parent and the Company shall pay
to the Administrative Agent, for the respective accounts of the Lenders, upfront
fees in the respective amounts set forth in a writing addressed to that Lender
by the Lead Arrangers. Such fees are for the credit facility committed by each
Lender under this Agreement and are fully earned when paid. The upfront fees
paid to each Lender are solely for its own account and are nonrefundable.
3.4 FACILITY FEES. On the last day of each Pricing Period, Borrowers
shall pay to the Administrative Agent, for the respective accounts of the
Lenders, pro rata according to their Aggregate Pro Rata Share, a facility fee
equal to (a) the Facility Fee Rate per annum for that Pricing Period TIMES (b)
the actual daily amount by of the Aggregate Commitments (whether drawn or
undrawn) during that Pricing Period.
3.5 LETTER OF CREDIT FEES. Concurrently with the issuance of each Letter
of Credit, Borrowers shall pay a letter of credit issuance fee to the relevant
Issuing Lender, for the sole account of that Issuing Lender, in an amount set
forth in a letter agreement between the Parent and each Issuing Lender. Each
letter of credit issuance fee is nonrefundable. On each Quarterly Payment Date
and on the Maturity Date, Borrowers shall also pay to the Administrative Agent
in arrears, for the ratable account of the Lenders in accordance with their Pro
Rata Share, letter of credit fees in an amount equal to the Letter of Credit Fee
per annum TIMES the actual daily Aggregate Effective Amount of all Letters of
Credit for the period from the Closing Date or the most recent Quarterly Payment
Date.
3.6 AGENCY FEES. Borrowers shall pay to the Administrative Agent an
agency fee in such amounts and at such times as heretofore agreed upon by letter
agreement among Parent, the Borrowers and the Administrative Agent. The agency
fee is for the services to be performed by the Administrative Agent in acting as
Administrative Agent and is fully earned on the date paid. The agency fee paid
to the Administrative Agent is solely for its own account and is nonrefundable.
3.7 INCREASED COMMITMENT COSTS. If any Lender shall determine that the
introduction after the Closing Date of any applicable law, rule, regulation or
guideline regarding capital adequacy, or any change therein or any change in the
interpretation or administration thereof by any central bank or other
Governmental Agency charged with the interpretation or administration thereof,
or compliance by such Lender (or its Eurodollar Lending Office) or any
corporation controlling the Lender, with any request, guidelines or directive
regarding capital adequacy (whether or not having the force of law) of any such
central bank or other authority, affects or would affect the amount of capital
required or expected to be maintained by such Lender or any corporation
controlling such Lender and (taking into consideration such Lender's or such
corporation's policies with respect to capital adequacy and such Lender's
desired return on capital) determines that the amount of such capital is
increased, or the rate of return on capital is reduced, as a consequence of its
obligations under this Agreement, then such Lender shall promptly give notice to
the Borrowers and the Agent of such determination. Thereafter, the
36
Borrowers shall pay to such Lender, within five Business Days following written
demand therefor (setting forth the additional amounts owed to such Lender and
the basis of the calculation thereof in reasonable detail), additional amounts
sufficient to compensate such Lender in light of such circumstances, to the
extent reasonably allocable to such obligations under this Agreement. Each
Lender shall afford treatment to Borrowers under this Section which is
substantially similar to that which such Lender affords to its other similarly
situated customers.
3.8 EURODOLLAR COSTS AND RELATED MATTERS.
(a) If, after the date hereof, the existence or occurrence of any
Special Eurodollar Circumstance shall:
(1) subject any Lender or its Eurodollar Lending Office to any
tax, duty or other charge or cost with respect to any Eurodollar Rate
Advance, any of its Notes evidencing Eurodollar Rate Loans or its
obligation to make Eurodollar Rate Advances, or shall change the
basis of taxation of payments to any Lender of the principal of or
interest on any Eurodollar Rate Advance or any other amounts due
under this Agreement in respect of any Eurodollar Rate Advance, any
of its Notes evidencing Eurodollar Rate Loans or its obligation to
make Eurodollar Rate Advances, EXCLUDING, with respect to each
Creditor, and any Affiliate or Eurodollar Lending Office thereof, (i)
taxes imposed on or measured in whole or in part by its net income or
capital and franchise taxes imposed on it, (ii) any withholding taxes
or other taxes based on net income (other than withholding taxes and
taxes based on net income resulting from or attributable to any
change in any law, rule or regulation or any change in the
interpretation or administration of any law, rule or regulation by
any Governmental Agency) or (iii) any withholding taxes or other
taxes based on net income for any period with respect to which it has
failed to provide Borrowers with the appropriate form or forms
required by Section 11.21, to the extent such forms are then required
by applicable Laws;
(2) impose, modify or deem applicable any reserve not
applicable or deemed applicable on the date hereof (INCLUDING,
without limitation, any reserve imposed by the Board of Governors of
the Federal Reserve System, but excluding the Eurodollar Reserve
Percentage taken into account in calculating the Eurodollar Rate),
special deposit, capital or similar requirements against assets of,
deposits with or for the account of, or credit extended by, any
Lender or its Eurodollar Lending Office; or
(3) impose on any Lender or its Eurodollar Lending Office or
the Designated Eurodollar Market any other condition materially
affecting any Eurodollar Rate Advance, any of its Notes evidencing
Eurodollar Rate Loans, its obligation to make Eurodollar Rate
Advances or this Agreement, or shall otherwise materially affect any
of the same;
37
and the result of any of the foregoing, as determined by such Lender,
increases the cost to such Lender or its Eurodollar Lending Office of making or
maintaining any Eurodollar Rate Advance or in respect of any Eurodollar Rate
Advance, any of its Notes evidencing Eurodollar Rate Loans or its obligation to
make Eurodollar Rate Advances or reduces the amount of any sum received or
receivable by such Lender or its Eurodollar Lending Office with respect to any
Eurodollar Rate Advance, any of its Notes evidencing Eurodollar Rate Loans or
its obligation to make Eurodollar Rate Advances (assuming such Lender's
Eurodollar Lending Office had funded 100% of its Eurodollar Rate Advance in the
Designated Eurodollar Market), then, PROVIDED THAT such Lender makes demand upon
Borrowers (with a copy to the Administrative Agent) within 90 days following the
date upon which it becomes aware of any such event or circumstance, Borrowers
shall within five Business Days pay to such Lender such additional amount or
amounts as will compensate such Lender for such increased cost or reduction
(determined as though such Lender's Eurodollar Lending Office had funded 100% of
its Eurodollar Rate Advance in the Designated Eurodollar Market). Each of the
Borrowers hereby jointly and severally (but as between Borrowers, ratably)
indemnifies each Lender against, and agrees to hold each Lender harmless from
and reimburse such Lender within five Business Days after demand for (without
duplication) all costs, expenses, claims, penalties, liabilities, losses, legal
fees and damages incurred or sustained by each Lender in connection with this
Agreement, or any of the rights, obligations or transactions provided for or
contemplated herein, as a result of the existence or occurrence of any Special
Eurodollar Circumstance. A statement of any Lender claiming compensation under
this clause and setting forth the additional amount or amounts to be paid to it
hereunder shall be conclusive in the absence of manifest error. Each Lender
agrees to endeavor promptly to notify Borrowers of any event of which it has
actual knowledge, occurring after the Closing Date, which will entitle such
Lender to compensation pursuant to this Section and agrees to designate a
different Eurodollar Lending Office if such designation will avoid the need for
or reduce the amount of such compensation and will not, in the judgment of such
Lender, otherwise be materially disadvantageous to such Lender. If any Lender
claims compensation under this Section, Borrowers may at any time, upon at least
four Eurodollar Business Days' prior notice to the Administrative Agent and such
Lender and upon payment in full of the amounts provided for in this Section
through the date of such payment plus any prepayment fee required by Section
3.8(d), pay in full the affected Eurodollar Rate Advances of such Lender or
request that such Eurodollar Rate Advances be converted to Base Rate Advances.
To the extent that any Lender which receives any payment from Borrowers under
this Section later receives any funds which are identifiable as a reimbursement
or rebate of such amount from any other Person, such Lender shall promptly
refund such amount to Borrowers.
(b) If the existence or occurrence of any Special Eurodollar
Circumstance shall, in the opinion of any Lender, make it unlawful, impossible
or impracticable for such Lender or its Eurodollar Lending Office to make,
maintain or fund its portion of any Eurodollar Rate Loan, or materially restrict
the authority of such Lender to purchase or sell, or to take deposits of,
Dollars in the Designated Eurodollar Market, or to determine or charge interest
rates based upon the Eurodollar Rate, and such Lender shall so notify the
Administrative Agent, then such Lender's obligation to make Eurodollar Rate
Advances shall be suspended for the duration of such illegality, impossibility
or impracticability and the Administrative Agent forthwith shall give notice
thereof to the other Lenders and Borrowers. Upon receipt of such notice, the
38
outstanding principal amount of such Lender's Eurodollar Rate Advances, together
with accrued interest thereon, automatically shall be converted to Base Rate
Advances on either (1) the last day of the Eurodollar Period(s) applicable to
such Eurodollar Rate Advances if such Lender may lawfully continue to maintain
and fund such Eurodollar Rate Advances to such day(s) or (2) immediately if such
Lender may not lawfully continue to fund and maintain such Eurodollar Rate
Advances to such day(s), PROVIDED that in such event the conversion shall not be
subject to payment of a prepayment fee under Section 3.8(d). Each Lender agrees
to endeavor promptly to notify Borrowers of any event of which it has actual
knowledge, occurring after the Closing Date, which will cause that Lender to
notify the Administrative Agent under this Section 3.8(b), and agrees to
designate a different Eurodollar Lending Office if such designation will avoid
the need for such notice and will not, in the judgment of such Lender, otherwise
be disadvantageous to such Lender. In the event that any Lender is unable, for
the reasons set forth above, to make, maintain or fund its portion of any
Eurodollar Rate Loan, such Lender shall fund such amount as a Base Rate Advance
for the same period of time, and such amount shall be treated in all respects as
a Base Rate Advance. Any Lender whose obligation to make Eurodollar Rate
Advances has been suspended under this Section 3.8(b) shall promptly notify the
Administrative Agent and Borrowers of the cessation of the Special Eurodollar
Circumstance which gave rise to such suspension.
(c) If, with respect to any proposed Eurodollar Rate Loan:
(1) the Administrative Agent reasonably determines that, by
reason of circumstances affecting the Designated Eurodollar Market
generally that are beyond the reasonable control of the Lenders,
deposits in Dollars (in the applicable amounts) are not being offered
to any Lender in the Designated Eurodollar Market for the applicable
Eurodollar Period; or
(2) the Requisite Lenders advise the Administrative Agent that
the Eurodollar Rate as determined by the Administrative Agent (i)
does not represent the effective pricing to such Lenders for deposits
in Dollars in the Designated Eurodollar Market in the relevant amount
for the applicable Eurodollar Period, or (ii) will not adequately and
fairly reflect the cost to such Lenders of making the applicable
Eurodollar Rate Advances;
then the Administrative Agent forthwith shall give notice thereof to
Borrowers and the Lenders, whereupon until the Administrative Agent notifies
Borrowers that the circumstances giving rise to such suspension no longer exist,
the obligation of the Lenders to make any future Eurodollar Rate Advances shall
be suspended. If at the time of such notice there is then pending a Request for
Loan that specifies a Eurodollar Rate Loan, such Request for Loan shall be
deemed to specify a Base Rate Loan.
(d) Upon payment or prepayment of any Eurodollar Rate Advance,
(OTHER THAN as the result of a conversion required under Section 3.1(d) or
3.8(b)), on a day other than the last day in the applicable Eurodollar Period
(whether voluntarily, involuntarily, by reason of acceleration, or otherwise),
or upon the failure of any Borrower (for a reason other than the failure of a
Lender to make an Advance) to borrow on the date or in the amount specified for
a
39
Eurodollar Rate Loan in any Request for Loan, Borrowers shall pay to the
appropriate Lender within five Business Days after demand a prepayment fee or
failure to borrow fee, as the case may be, (determined as though 100% of the
Eurodollar Rate Advance had been funded in the Designated Eurodollar Market)
equal to the SUM of:
(1) principal amount of the Eurodollar Rate Advance prepaid or
not borrowed, as the case may be, TIMES the quotient of (A) the
number of days between the date of prepayment or failure to borrow,
as applicable, and the last day in the applicable Eurodollar Period,
DIVIDED BY (B) 360, TIMES the applicable Interest Differential
(provided that the product of the foregoing formula must be a
positive number); PLUS
(2) all out-of-pocket expenses incurred by the Lender
reasonably attributable to such payment, prepayment or failure to
borrow.
Each Lender's determination of the amount of any prepayment fee
payable under this Section 3.8(d) shall be conclusive in the absence of manifest
error.
3.9 DEFAULT RATE. If (a) any installment of principal or interest or any
fee or cost or other amount payable under any Loan Document to any Creditor is
not paid when due, then such overdue Obligations shall, or (b) if any Event of
Default has occurred and remains continuing, then at the option of the Requisite
Lenders, all of the Obligations shall, thereafter bear interest at a fluctuating
interest rate per annum at all times equal to the sum of the Base Rate PLUS the
Base Rate Margin PLUS 2%, to the fullest extent permitted by applicable Laws.
Accrued and unpaid interest on past due amounts (INCLUDING, without limitation,
interest on past due interest) shall be compounded monthly, on the last day of
each calendar month, to the fullest extent permitted by applicable Laws.
3.10 COMPUTATION OF INTEREST AND FEES. Computation of interest on Base
Rate Loans calculated with reference to the prime rate shall be calculated on
the basis of a year of 365 or 366 days, as the case may be, and the actual
number of days elapsed; computation of interest on Base Rate Loans calculated by
reference to the Federal Funds Rate, and on Eurodollar Rate Loans and all fees
under this Agreement shall be calculated on the basis of a year of 360 days and
the actual number of days elapsed. Each Borrower acknowledges that such latter
calculation method will result in a higher yield to the Lenders than a method
based on a year of 365 or 366 days. Interest shall accrue on each Loan for the
day on which the Loan is made; interest shall not accrue on a Loan, or any
portion thereof, for the day on which the Loan or such portion is paid. Any Loan
that is repaid on the same day on which it is made shall bear interest for one
day.
3.11 NON-BUSINESS DAYS. Subject to clause (b) of the definition of
"Eurodollar Period," if any payment to be made by Borrowers or any other Party
under any Loan Document shall come due on a day other than a Business Day,
payment shall instead be considered due on the next succeeding Business Day and
the extension of time shall be reflected in computing interest and fees.
40
3.12 MANNER AND TREATMENT OF PAYMENTS.
(a) Each payment hereunder (EXCEPT payments with respect to Swing
Line Obligations and payments pursuant to Sections 3.7, 3.8, 11.3, and 11.11) or
on the Notes or under any other Loan Document shall be made without setoff,
counterclaim, recoupment or other deduction of any kind to the Administrative
Agent, at the Administrative Agent's Office, for the account of each of the
Lenders or the Administrative Agent, as the case may be, in immediately
available funds not later than 11:00 a.m.,
California local time, on the day of
payment (which must be a Business Day), OTHER THAN payments with respect to
Swing Line Advances, which must be received by 3:00 p.m.,
California time, on
the day of payment (which must be a Business Day). All payments received after
these deadlines shall be deemed received on the next succeeding Business Day.
The amount of all payments received by the Administrative Agent for the account
of each Lender shall be immediately paid by the Administrative Agent to the
applicable Lender in immediately available funds and, if such payment was
received by the Administrative Agent by 11:00 a.m., California local time, on a
Business Day and not so made available to the account of a Lender on that
Business Day, the Administrative Agent shall reimburse that Lender for the cost
to such Lender of funding the amount of such payment at the Federal Funds Rate.
All payments shall be made in lawful money of the United States of America.
(b) Each payment or prepayment on account of any Committed Loan
shall be applied pro rata according to the outstanding Committed Advances made
by each Lender comprising such Committed Loan.
(c) Each Lender shall use its best efforts to keep a record of
Advances made by it and payments received by it with respect to each of its
Notes and, subject to Section 10.6(g), such record shall, as against Borrowers,
be presumptive evidence absent manifest error of the amounts owing.
Notwithstanding the foregoing sentence, no Lender shall be liable to any Party
for any failure to keep such a record.
(d) Each payment of any amount payable by Borrowers or any other
Party under this Agreement or any other Loan Document shall be made free and
clear of, and without reduction by reason of, any taxes, assessments or other
charges imposed by any Governmental Agency, central bank or comparable
authority, EXCLUDING, in the case of each Creditor, and any Affiliate or
Eurodollar Lending Office thereof, (i) taxes imposed on or measured in whole or
in part by its net income or capital and franchise taxes imposed on it, (ii) any
withholding taxes or other taxes based on net income (other than withholding
taxes and taxes based on net income resulting from or attributable to any change
in any law, rule or regulation or any change in the interpretation or
administration of any law, rule or regulation by any Governmental Agency) or
(iii) any withholding taxes or other taxes based on net income for any period
with respect to which it has failed to provide Borrowers with the appropriate
form or forms required by Section 11.21, to the extent such forms are then
required by applicable Laws, (all such non-excluded taxes, assessments or other
charges being hereinafter referred to as "Taxes"). To the extent that Parent or
any Borrower is obligated by applicable Laws to make any deduction or
withholding on account of Taxes from any amount payable to any Lender under this
Agreement, Parent or that Borrower shall (i) make such deduction or withholding
and pay the same to the relevant
41
Governmental Agency and (ii) pay such additional amount to that Lender as is
necessary to result in that Lender's receiving a net after-Tax amount equal to
the amount to which that Lender would have been entitled under this Agreement
absent such deduction or withholding. If and when receipt of such payment
results in an excess payment or credit to that Lender on account of such Taxes,
that Lender shall promptly refund such excess to Parent or the appropriate
Borrower.
3.13 FUNDING SOURCES. Nothing in this Agreement shall be deemed to
obligate any Lender to obtain the funds for any Loan or Advance in any
particular place or manner or to constitute a representation by any Lender that
it has obtained or will obtain the funds for any Loan or Advance in any
particular place or manner.
3.14 FAILURE TO CHARGE NOT SUBSEQUENT WAIVER. Any decision by the
Creditors not to require payment of any interest (INCLUDING interest arising
under Section 3.9), fee, cost or other amount payable under any Loan Document,
or to calculate any amount payable by a particular method, on any occasion shall
in no way limit or be deemed a waiver of the Creditor's right to require full
payment of any interest (INCLUDING interest arising under Section 3.9), fee,
cost or other amount payable under any Loan Document on any other or subsequent
occasion.
3.15 ADMINISTRATIVE AGENT'S RIGHT TO ASSUME PAYMENTS WILL BE MADE BY
BORROWERS. Unless the Administrative Agent shall have been notified by Borrowers
prior to the date on which any payment to be made by Borrowers hereunder is due
that Borrowers do not intend to remit such payment, the Administrative Agent
may, in its discretion, assume that the appropriate Borrower has remitted such
payment when so due and the Administrative Agent may, in its discretion and in
reliance upon such assumption, make available to each Lender on such payment
date an amount equal to such Lender's share of such assumed payment. If that
Borrower has not in fact remitted such payment to the Administrative Agent, each
Lender shall forthwith on demand repay to the Administrative Agent the amount of
such assumed payment made available to such Lender, together with interest
thereon in respect of each day from and including the date such amount was made
available by the Administrative Agent to such Lender to the date such amount is
repaid to the Administrative Agent at the Federal Funds Rate.
3.16 FEE DETERMINATION DETAIL. Each Creditor shall provide reasonable
detail to Parent and the Borrowers regarding the manner in which the amount of
any payment to that Creditor under Article 3 has been determined, concurrently
with demand for such payment.
3.17 SURVIVABILITY. All of the Parent's and the Borrowers' obligations
under Sections 3.7 and 3.8 shall survive for ninety days following the date on
which the Commitments are terminated and all Loans hereunder are fully paid.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
Parent and each Borrower represents and warrants to the Creditors, as of
the date hereof, as of the Closing Date, and as of the date of the making of
each Advance and the Issuance of each Letter of Credit that:
42
4.1 EXISTENCE AND QUALIFICATION; POWER; COMPLIANCE WITH LAWS. Parent and
each of the Borrowers are duly formed, validly existing and in good standing
under the Laws of its jurisdiction of formation. Parent and each of the
Borrowers are duly qualified or registered to transact business and is in good
standing in each other jurisdiction in which the conduct of its business or the
ownership or leasing of its Properties makes such qualification or registration
necessary, EXCEPT where the failure so to qualify or register and to be in good
standing would not constitute a Material Adverse Effect. Parent and each of the
Borrowers have all requisite corporate or partnership power (as applicable) and
authority to conduct their respective business, to own and lease their
respective Properties and to execute and deliver each Loan Document to which it
is a Party and to perform its Obligations. All outstanding shares of capital
stock of Parent and each of the Borrowers are duly authorized, validly issued,
fully paid, and non-assessable and no holder thereof has any enforceable right
of rescission under any applicable state or federal securities Laws. Parent and
each of the Borrowers are in compliance with all Laws and other legal
requirements applicable to their respective business, have obtained all
authorizations, consents, approvals, orders, licenses and permits from, and have
accomplished all filings, registrations and qualifications with, or obtained
exemptions from any of the foregoing from, any Governmental Agency that are
necessary for the transaction of their business, EXCEPT where the failure so to
comply, file, register, qualify or obtain exemptions does not constitute a
Material Adverse Effect.
4.2 AUTHORITY; COMPLIANCE WITH OTHER AGREEMENTS AND INSTRUMENTS AND
GOVERNMENT REGULATIONS. The execution, delivery and performance by Parent and
each Borrower of the Loan Documents to which it is a Party have been duly
authorized by all necessary corporate or partnership action, as applicable, and
do not and will not:
(a) Require any consent or approval not heretofore obtained of any
partner, director, stockholder, security holder or creditor of such Party;
(b) Violate or conflict with any provision of such Party's charter,
articles of incorporation or bylaws, as applicable;
(c) Result in or require the creation or imposition of any Lien or
Right of Others upon or with respect to any Property now owned or leased or
hereafter acquired by such Party;
(d) Violate any Requirement of Law applicable to such Party, subject
to obtaining the authorizations from, or filings with, the Governmental Agencies
described in Schedule 4.3;
(e) Result in a breach by such Party of or constitute a default by
such Party under, or cause or permit the acceleration of any obligation owed
under, any indenture or loan or
credit agreement or any other Contractual
Obligation to which such Party is a party or by which such Party or any of its
Property is bound or affected;
and neither Parent, Borrowers nor any of their Significant
Subsidiaries is in violation of, or default under, any Requirement of Law or
Contractual Obligation, or any
43
indenture, loan or credit agreement described in Section 4.2(e), in any respect
that constitutes a Material Adverse Effect.
4.3 NO GOVERNMENTAL APPROVALS REQUIRED. Except as set forth in Schedule
4.3 or previously obtained or made, no authorization, consent, approval, order,
license or permit from, or filing, registration or qualification with, any
Governmental Agency is or will be required to authorize or permit under
applicable Laws the execution, delivery and performance by Parent or the
Borrowers of the Loan Documents to which any of them is a Party. All
authorizations from, or filings with, any Governmental Agency described in
Schedule 4.3 will be accomplished as of the Closing Date or such other date as
is specified in Schedule 4.3.
4.4 SIGNIFICANT SUBSIDIARIES.
(a) Schedule 4.4 hereto correctly sets forth the names, form of
legal entity, percentage of shares of each class of capital stock issued and
outstanding, percentage of shares owned by Parent or a Significant Subsidiary
(specifying such owner) and jurisdictions of organization of each of the
Significant Subsidiaries of Parent. Unless otherwise indicated in Schedule 4.4,
as of the Closing Date all of the outstanding shares of capital stock, or all of
the units of equity interest, as the case may be, of each such Significant
Subsidiary are owned of record and beneficially by the Persons described
therein, there are no outstanding options, warrants or other rights to purchase
capital stock of any such Significant Subsidiary, and all such shares or equity
interests so owned are duly authorized, validly issued, fully paid,
non-assessable, and were issued in compliance with all applicable state and
federal securities and other Laws, and are free and clear of all Liens and
Rights of Others, EXCEPT for Permitted Encumbrances and Permitted Rights of
Others.
(b) Each Significant Subsidiary of Parent is duly formed, validly
existing and in good standing under the Laws of its jurisdiction of
organization, is duly qualified to do business as a foreign organization and is
in good standing as such in each jurisdiction in which the conduct of its
business or the ownership or leasing of its properties makes such qualification
necessary (EXCEPT where the failure to be so duly qualified and in good standing
does not constitute a Material Adverse Effect), and has all requisite power and
authority to conduct its business and to own and lease its Properties.
(c) Each Significant Subsidiary of Parent is in compliance with all
Laws and other requirements applicable to its business and has obtained all
authorizations, consents, approvals, orders, licenses, and permits from, and
each such Significant Subsidiary has accomplished all filings, registrations,
and qualifications with, or obtained exemptions from any of the foregoing from,
any Governmental Agency that are necessary for the transaction of its business,
EXCEPT where the failure to be in such compliance, obtain such authorizations,
consents, approvals, orders, licenses, and permits, accomplish such filings,
registrations, and qualifications, or obtain such exemptions, does not
constitute a Material Adverse Effect.
4.5 FINANCIAL STATEMENTS. Parent and Borrowers have furnished to the
Lenders the audited consolidated financial statements of Parent and its
Subsidiaries for the Fiscal Year ended December 31, 2002. The financial
statements described above fairly present in all material
44
respects the financial condition, results of operations and changes in financial
position of Parent and its Subsidiaries as of such dates and for such periods,
in conformity with Generally Accepted Accounting Principles, consistently
applied.
4.6 NO OTHER LIABILITIES; NO MATERIAL ADVERSE EFFECT. As of the Closing
Date, Parent and its Subsidiaries do not have any material liability or material
contingent liability not reflected or disclosed in the financial statements
described in Section 4.5, other than liabilities and contingent liabilities
arising in the ordinary course of business since the date of such financial
statements. As of the Closing Date, no circumstance or event has occurred that
constitutes a Material Adverse Effect since December 31, 2002.
4.7 TITLE TO PROPERTY. Parent and its Subsidiaries have valid title to
the Property reflected in the financial statements described in Section 4.5,
other than immaterial items of Property and Property subsequently sold or
disposed of in the ordinary course of business, free and clear of all Liens and
Rights of Others, other than Liens or Rights of Others described in Schedule
4.7, as permitted by Section 6.4, and any other matters which do not have a
Material Adverse Effect.
4.8 LITIGATION. There are no actions, suits, proceedings or
investigations pending as to which Parent or any of its Subsidiaries have been
served or have received notice or, to the knowledge of Parent and the Borrowers,
threatened against or affecting Parent or any of its Subsidiaries or any
Property of any of them before any Governmental Agency in which there is any
reasonable possibility of an adverse decision which could materially adversely
affect the business, consolidated financial position or results of operations of
Parent and its Subsidiaries, taken as a whole, or which in any manner draws into
question the validity or enforceability of the Loan Documents.
4.9 BINDING OBLIGATIONS. Each of the Loan Documents will, when executed
and delivered by Parent and the Borrowers party thereto, constitute the legal,
valid and binding obligation of such Party, enforceable against such Party in
accordance with its terms, except as enforcement may be limited by Debtor Relief
Laws or equitable principles relating to the granting of specific performance
and other equitable remedies as a matter of judicial discretion.
4.10 NO DEFAULT. No event has occurred and is continuing that is a Default
or Event of Default.
4.11 ERISA.
(a) With respect to each Pension Plan:
(1) such Pension Plan complies in all material respects with
ERISA and any other applicable Laws to the extent that noncompliance
could reasonably be expected to have a Material Adverse Effect;
(2) such Pension Plan has not incurred any "accumulated funding
deficiency" (as defined in Section 302 of ERISA) that could
reasonably be expected to have a Material Adverse Effect;
45
(3) no "reportable event" (as defined in Section 4043 of ERISA)
has occurred that could reasonably be expected to have a Material
Adverse Effect; and
(4) neither Parent nor any of its Subsidiaries has engaged in
any non-exempt "prohibited transaction" (as defined in Section 4975
of the Code) that could reasonably be expected to have a Material
Adverse Effect.
(b) Neither Parent nor any of its Subsidiaries has incurred or
expects to incur any withdrawal liability to any Multiemployer Plan that could
reasonably be expected to have a Material Adverse Effect.
4.12 REGULATIONS T, U AND X; INVESTMENT COMPANY ACT. No part of the
proceeds of any Loan hereunder will be used to purchase or carry, or to extend
credit to others for the purpose of purchasing or carrying, any Margin Stock in
violation of Regulations T, U or X.
Neither Parent nor any of its Subsidiaries is or is required to be
registered as an "investment company" under the Investment Company Act of 1940.
4.13 DISCLOSURE. No written statement made by a Senior Officer of Parent
or any Borrower to any Creditor in connection with this Agreement, including
without limitation the statements made in the Confidential Offering Memorandum,
or in connection with any Loan, Advance or Letter of Credit as of the date
thereof contained any untrue statement of a material fact or omitted a material
fact necessary to make the statement made not misleading in light of all the
circumstances existing at the date the statement was made.
4.14 TAX LIABILITY. Parent and its Subsidiaries have filed all tax returns
which are required to be filed, and have paid, or made provision for the payment
of, all taxes with respect to the periods, Property or transactions covered by
said returns, or pursuant to any assessment received by Parent or any of its
Subsidiaries, EXCEPT (a) such taxes, if any, as are being contested in good
faith by appropriate proceedings and as to which adequate reserves have been
established and maintained and (b) immaterial taxes and tax returns so long as
no material item or portion of Property of Parent or any of its Subsidiaries is
in jeopardy of being seized, levied upon or forfeited.
4.15 PROJECTIONS. As of the Closing Date, to the best knowledge of Parent
and the Borrowers, the assumptions set forth in the Projections are reasonable
and consistent with each other and with all facts known to Parent and the
Borrowers, and the Projections are (a) reasonably based on such assumptions and
(b) although a range of possible different assumptions and estimates might also
be reasonable, neither Parent nor the Borrowers are aware of any facts which
would lead them to believe that the assumptions and estimates on which the
Projections were based are not reasonable; provided that no representation or
warranty 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 may differ
from the projected results, and such differences may be material.
46
4.16 HAZARDOUS MATERIALS. Parent and the Borrowers have reasonably
concluded that Hazardous Materials Laws are unlikely to have a material adverse
effect on the business, financial position, results of operations or prospects
of the Parent and its Subsidiaries, considered as a whole.
4.17 GAMING LAWS. Parent and each of its Subsidiaries are in compliance in
all material respects with all Gaming Laws that are applicable to them and their
businesses.
4.18 SOLVENCY. As of the Closing Date, and giving effect to the
transactions contemplated to occur on the Closing Date, Parent and each of its
Subsidiaries are Solvent.
4.19 TAX SHELTER REGULATIONS. The Borrowers do not intend to treat the
Loans and/or Letters of Credit as being a "reportable transaction" (within the
meaning of Treasury Regulation Section 1.6011-4). In the event the Borrowers
determine to take any action inconsistent with such intention, they will
promptly notify the Administrative Agent thereof. If the Borrowers notify the
Administrative Agent, the Borrowers acknowledge that one or more of the Lenders
may treat its Committed Loans and/or its interest in Swing Line Loans and/or
Letters of Credit as part of a transaction that is subject to Treasury
Regulation Section 301.6112-1, and such Lender or Lenders, as applicable, will
maintain the lists and other records required by such Treasury Regulation.
ARTICLE 5
AFFIRMATIVE COVENANTS
So long as any Advance remains unpaid, or any other Obligation remains
unpaid or unperformed, or any portion of the Commitments remains in force,
Parent and each Borrower shall, and shall cause each of their respective
Subsidiaries to, unless the Administrative Agent (with the written approval of
the Requisite Lenders) otherwise consents:
5.1 PRESERVATION OF EXISTENCE. Preserve and maintain their respective
existences in the jurisdiction of their formation and all material
authorizations, rights, franchises, privileges, consents, approvals, orders,
licenses, permits, or registrations from any Governmental Agency that are
necessary for the transaction of their respective business, EXCEPT where the
failure to so preserve and maintain the existence of any Subsidiary and such
authorizations would not constitute a Material Adverse Effect and EXCEPT that a
merger permitted by Section 6.1 shall not constitute a violation of this
covenant; and qualify and remain qualified to transact business in each
jurisdiction in which such qualification is necessary in view of their
respective business or the ownership or leasing of their respective Properties
EXCEPT where the failure to so qualify or remain qualified would not constitute
a Material Adverse Effect.
5.2 MAINTENANCE OF PROPERTIES. Maintain, preserve and protect all of
their respective depreciable Properties in good order and condition, subject to
wear and tear in the ordinary course of business, and not permit any waste of
their respective Properties, EXCEPT where the failure to maintain, preserve and
protect a particular item of depreciable Property would not have a Material
Adverse Effect.
47
5.3 MAINTENANCE OF INSURANCE. Maintain liability, casualty and other
insurance (subject to customary deductibles and retentions) with financially
sound and responsible insurance companies in such amounts and against such risks
as is carried by responsible companies engaged in similar businesses and owning
similar assets in the general areas in which Parent and its Subsidiaries
operate, and will furnish to the Administrative Agent upon request information
in reasonable detail as to the insurance so carried. Notwithstanding the
foregoing, Parent and its Subsidiaries may self-insure with respect to such
risks with respect to which companies of established reputation engaged in the
same general line of business in the same general area usually self-insure.
5.4 COMPLIANCE WITH LAWS. Comply in all material respects and within the
time period, if any, given for such compliance by the relevant Governmental
Agency or Agencies with enforcement authority, with all Laws and Requirements of
Law, including without limitation Hazardous Materials Laws, ERISA and all Gaming
Laws, EXCEPT that Parent and its Subsidiaries need not comply with a Requirement
of Law then being contested by any of them in good faith by appropriate
proceedings.
5.5 INSPECTION RIGHTS. Upon reasonable notice, at any time during regular
business hours and as often as requested (but not so as to materially interfere
with the business of the Parent or any of its Subsidiaries), permit the
Administrative Agent or any Lender, or any authorized employee, agent or
representative thereof, to examine, audit and make copies and abstracts from the
records and books of account of, and to visit and inspect the Properties of, the
Parent and its Subsidiaries and to discuss the affairs, finances and accounts of
the Parent and its Subsidiaries with any of their officers, key employees or
accountants and, upon request, furnish promptly to the Administrative Agent or
any Lender true copies of all financial information made available to the senior
management of the Parent.
5.6 KEEPING OF RECORDS AND BOOKS OF ACCOUNT. Keep adequate records and
books of account reflecting all financial transactions in conformity with
Generally Accepted Accounting Principles, consistently applied, and in material
conformity with all applicable requirements of any Governmental Agency having
regulatory jurisdiction over Parent or any of its Subsidiaries.
5.7 USE OF PROCEEDS. Use the proceeds of Loans (a) on the Closing Date,
for retirement of all outstanding obligations under the Existing Xxxxxx'x Credit
Agreements and related transactional expenses, and (b) thereafter for working
capital and general corporate purposes of Parent and its Subsidiaries INCLUDING
without limitation capital expenditures, share repurchases, commercial paper
backup and acquisitions of equity securities or assets of other Persons, in each
case to the extent not prohibited by the Loan Documents.
ARTICLE 6
NEGATIVE COVENANTS
So long as any Advance remains unpaid, or any other Obligation remains
unpaid or unperformed, or any portion of the Commitments remains in force,
Parent and each Borrower
48
shall not, and shall not permit any of their respective Subsidiaries to, unless
the Administrative Agent (with the written approval of the Requisite Lenders)
otherwise consents:
6.1 CONSOLIDATIONS, MERGERS AND SALES OF ASSETS. Merge or consolidate
with or into any Person, or sell lease or otherwise transfer all or any
substantial part of the assets of Parent and its Subsidiaries, taken as a whole,
to any Person, EXCEPT:
(a) mergers and consolidations of a Subsidiary of a Borrower into
that Borrower or a Subsidiary thereof (with that Borrower or the Subsidiary as
the surviving entity) or of Subsidiaries of the Borrowers with each other;
(b) a merger or consolidation of a Borrower or any Subsidiary
thereof with any other Person, PROVIDED that (i) either (A) the Borrower or the
Subsidiary is the surviving entity, or (B) the surviving entity is a corporation
organized under the Laws of a State of the United States of America and, as of
the date of such merger or consolidation, expressly assumes, by an instrument
satisfactory in form and substance to the Requisite Lenders, the Obligations of
the relevant Borrower or the Subsidiary, as the case may be, (ii) giving effect
thereto, no Default or Event of Default exists or would result therefrom, and
(iii) giving pro forma effect thereto, Borrowers are in compliance with the
covenants set forth in Sections 6.5 and 6.6.
6.2 HOSTILE TENDER OFFERS. Make any offer to purchase or acquire, or
consummate a purchase or acquisition of, 5% or more of the capital stock of any
corporation or other equity securities of any business entity if the board of
directors or management of such corporation or business entity has notified
Parent or any of its Subsidiaries in writing that it opposes such offer or
purchase and such notice has not been withdrawn or superseded.
6.3 CHANGE IN NATURE OF BUSINESS. Make any material change in the nature
of the business of Parent and its Subsidiaries, taken as a whole, or acquire
more than 49% of the capital stock or other equity securities of any Person
which is engaged in a line of business other than the lines of business
reasonably related to or incidental to the business engaged in by Parent and its
Subsidiaries.
6.4 LIENS, NEGATIVE PLEDGES, SALE LEASEBACKS AND RIGHTS OF OTHERS.Create,
incur, assume or suffer to exist any Lien, Negative Pledge or Right of Others of
any nature upon or with respect to any of their respective Properties, whether
now owned or hereafter acquired, or enter into any Sale and Leaseback with
respect to any such Properties EXCEPT:
(a) Permitted Encumbrances and Permitted Rights of Others;
(b) Liens and Negative Pledges under the Loan Documents;
(c) other existing Liens, Negative Pledges and Rights of Others
existing on the Closing Date and disclosed in Schedule 4.7 (or not required to
be disclosed therein under Section 4.7) and any renewals or extensions thereof;
PROVIDED that the obligations secured or benefitted thereby are not increased;
49
(d) Until the date which is ninety days following the Closing
Date, any Lien, Negative Pledge or Right of Others on shares of any equity
security or any warrant or option to purchase an equity security or any security
which is convertible into an equity security issued by any Subsidiary of Parent
that holds, directly or indirectly through a holding company or otherwise, a
license to conduct gaming under any Gaming Law, and in the proceeds thereof;
PROVIDED that this clause shall apply only so long as the Gaming Laws of the
relevant jurisdiction provide that the creation of any restriction on the
disposition of any of such securities shall not be effective and, if such Gaming
Laws at any time cease to so provide, then this clause shall be of no further
effect; and PROVIDED FURTHER that if at any time Parent or any of its
Subsidiaries creates or suffers to exist a Lien or Negative Pledge covering such
securities in favor of the holder of any other Indebtedness, it will (subject to
any approval required under such Gaming Laws) concurrently grant a pari-passu
Lien or Negative Pledge likewise covering such securities in favor of the
Administrative Agent for the benefit of the Lenders;
(e) Liens on Property acquired or constructed by Parent or any
of its Subsidiaries, and in the proceeds thereof, that (i) were in existence at
the time of the acquisition or construction of such Property or were created at
or within 90 days after such acquisition or construction, and (ii) secure (in
the case of Liens not in existence at the time of acquisition of the Property)
only the unpaid portion of the acquisition or construction price for such
Property, or monies borrowed that were used to pay such acquisition or
construction price;
(f) Liens securing Indebtedness (INCLUDING Capital Lease
Obligations) that replaces or refinances Indebtedness secured by Liens permitted
under clause (e); PROVIDED that such Liens cover only the same Property as the
Liens securing the Indebtedness replaced or refinanced;
(g) Liens, Negative Pledges and Rights of Others held by joint
venture partners and any assignees thereof, and lenders thereto and any
assignees thereof, with respect to the interests of Parent and its Subsidiaries
in (i) that joint venture and the proceeds thereof or (ii) the capital stock or
other equity ownership interests held by any Joint Venture Holding Company in
that joint venture and the proceeds thereof, PROVIDED, in each case, that such
Liens, Negative Pledges and Rights of Others shall secure and relate only the
obligations of such joint venture or Contingent Obligations permitted by Section
6.7(g);
(h) Liens, Negative Pledges and Rights of Others in favor of
counterparties to agreements, and assignees thereof, entered into by Parent and
its Subsidiaries in the ordinary course of business on the interests of Parent
and its Subsidiaries under such agreements and the proceeds thereof, provided
that such Liens, Negative Pledges and Rights of Others shall secure and relate
only to restrictions on transfer of the rights of Parent and its Subsidiaries to
the holders thereof under the relevant agreement;
(i) Liens on Cash securing only Defeased Debt; and
(j) Liens not otherwise permitted by the foregoing clauses of
this Section encumbering assets of the Parent and its Subsidiaries having an
aggregate fair market value which is not in excess of 10% of Net Tangible Assets
at any time.
50
6.5 TOTAL DEBT RATIO. Permit the Total Debt Ratio to exceed 4.50:1.00 as
of the last day of any Fiscal Quarter.
6.6 INTEREST COVERAGE RATIO. Permit the Interest Coverage Ratio to be
less than 3.00:1.00 as of the last day of any Fiscal Quarter.
6.7 SUBSIDIARY INDEBTEDNESS. Permit any Subsidiary of Parent which is not
a Borrower hereunder to create, assume, incur or suffer to exist any
Indebtedness or Contingent Obligations with respect to Indebtedness OTHER THAN:
(a) Defeased Debt;
(b) secured Indebtedness (including Capital Lease Obligations) and
Contingent Obligations which are permitted by Sections 6.4(e) or 6.4(f);
(c) unsecured Indebtedness and Contingent Obligations which were
created, assumed or incurred by such Subsidiary prior to its acquisition by
Parent and its Subsidiaries (and not in anticipation of such acquisition) but
not any refinancings, renewals or extensions thereof;
(d) letters of credit, surety bonds and other similar forms of
credit enhancement for such Subsidiaries incurred in the ordinary course of
their business;
(e) Intercompany Debt, PROVIDED such Indebtedness is not subject to
any Lien (other than Liens in favor of the Administrative Agent and the
Lenders);
(f) Contingent Obligations of Management Companies consisting of
guarantees of Indebtedness of Persons which are the counterparties to any
management agreement, development agreement or other similar instruments to
which such Management Companies are also party, PROVIDED that (i) the assets of
each Management Company issuing any such guarantees shall not exceed 1.0% of Net
Tangible Assets at any time, and (ii) the aggregate amount of assets of all
Management Companies issuing guarantees permitted by this Section 6.7(f) shall
not exceed 5% of Net Tangible Assets at any time;
(g) Contingent Obligations of Joint Venture Holding Companies
consisting of guarantees of Indebtedness of Persons in which such Joint Venture
Holding Companies own equity securities; PROVIDED that the other Persons owning
such equity securities have also ratably guaranteed such Indebtedness; and
(h) other Indebtedness in an aggregate amount not to exceed
$20,000,000 at any time outstanding.
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ARTICLE 7
INFORMATION AND REPORTING REQUIREMENTS
7.1 FINANCIAL AND BUSINESS INFORMATION. So long as any Advance remains
unpaid, or any other Obligation remains unpaid or unperformed, or any portion of
the Commitments remains in force, Parent and the Borrowers shall, unless the
Administrative Agent (with the written approval of the Requisite Lenders)
otherwise consents, deliver to the Administrative Agent and the Lenders, at
Parent's and Borrowers' sole expense:
(a) As soon as practicable, and in any event within 45 days after
the end of each Fiscal Quarter (other than the fourth Fiscal Quarter in any
Fiscal Year), the consolidated balance sheet of Parent and its Subsidiaries as
at the end of such Fiscal Quarter and the consolidated statement of operations
for each Fiscal Quarter, and its statement of cash flows for the portion of the
Fiscal Year ended with such Fiscal Quarter and as at and for the portion of the
Fiscal Year ended with such Fiscal Quarter, all in reasonable detail. Such
financial statements shall be certified by a Senior Officer of Parent as fairly
presenting the financial condition, results of operations and cash flows of
Parent and its Subsidiaries in accordance with Generally Accepted Accounting
Principles (other than footnote disclosures), consistently applied, as at such
date and for such periods, subject only to normal year-end accruals and audit
adjustments;
(b) As soon as practicable, and in any event prior to the
penultimate Business Day of February in each Fiscal Year, a Certificate of a
Responsible Official setting forth the Total Debt Ratio as of the last day of
the fourth Fiscal Quarter of the preceding year, and providing reasonable detail
as to the calculation thereof, which calculations shall be based on the
preliminary unaudited financial statements of Parent and its Subsidiaries for
such Fiscal Quarter;
(c) As soon as practicable, and in any event within 120 days after
the end of each Fiscal Year, the consolidated balance sheet of Parent and its
Subsidiaries as at the end of such Fiscal Year and the consolidated statements
of operations, shareholders' equity and cash flows, in each case of Parent and
its Subsidiaries for such Fiscal Year as at and for the Fiscal Year, all in
reasonable detail. Such financial statements shall be prepared in accordance
with Generally Accepted Accounting Principles, consistently applied, and such
consolidated balance sheet and consolidated statements shall be accompanied by a
report and opinion of independent public accountants of recognized standing
selected by Parent and reasonably satisfactory to the Requisite Lenders, which
report and opinion shall be prepared in accordance with generally accepted
auditing standards as at such date, and shall not be subject to any
qualifications or exceptions. Such accountants' report and opinion shall be
accompanied by a certificate stating that, in making the examination pursuant to
generally accepted auditing standards necessary for the certification of such
financial statements and such report, such accountants have obtained no
knowledge of any Default or, if, in the opinion of such accountants, any such
Default shall exist, stating the nature and status of such Default, and stating
that such accountants have reviewed Parent's and Borrowers' financial
calculations as at the end of such Fiscal Year (which shall accompany such
certificate) under Section 6.5 and 6.6, have read such Sections (including the
definitions of all defined terms used therein) and that nothing has come to the
attention of such
52
accountants in the course of such examination that would cause them to believe
that the same were not calculated by Parent and the Borrowers in the manner
prescribed by this Agreement;
(d) As soon as practicable, and in any event within 90 days after
the commencement of each Fiscal Year, a budget and projection by Fiscal Quarter
for that Fiscal Year and by Fiscal Year for the next four succeeding Fiscal
Years, INCLUDING for the first such Fiscal Year, projected quarterly
consolidated balance sheets, statement of operations and statements of cash flow
and, for the remaining four Fiscal Years, projected annual consolidated
condensed balance sheets and statements of operations and cash flow, of Parent
and its Subsidiaries, all in reasonable detail;
(e) Promptly after the same are available, copies of each annual
report, proxy or financial statement or other report or communication sent to
the shareholders of Parent, and copies of all annual, regular, periodic and
special reports and registration statements which Parent may file or be required
to file with the Securities and Exchange Commission under Sections 13 or 15(d)
of the Securities Exchange Act of 1934 and not otherwise required to be
delivered to the Lenders pursuant to other provisions of this Section;
(f) Promptly after the same are available, copies of the Nevada
"Regulation 6.090 Report" and "6-A Report" and copies of any written
communication to Parent or any of its Subsidiaries from any Gaming Board
advising it of a violation of or non-compliance with, any Gaming Law by Parent
or any of its Subsidiaries;
(g) Promptly after request by any Creditor, copies of any other
report or other document that was filed by Parent or any of its Subsidiaries
with any Governmental Agency;
(h) As soon as practicable, and in any event within three Business
Days after a Senior Officer becomes aware of the existence of any condition or
event which constitutes a Default, telephonic notice specifying the nature and
period of existence thereof, and, no more than three Business Days after such
telephonic notice, written notice again specifying the nature and period of
existence thereof and specifying what action Parent or any of its Subsidiaries
are taking or propose to take with respect thereto;
(i) Promptly upon a Senior Officer becoming aware of any litigation,
governmental investigation or any proceeding (including any litigation or
proceeding by or subject to decision by any Gaming Board) pending (i) against
Parent or any of its Subsidiaries which could reasonably be expected to have a
Material Adverse Effect, (ii) with respect to any material Indebtedness of
Parent or any of its Subsidiaries, or (iii) with respect to the Loan Documents,
notice of the existence of the same;
(j) Promptly after the Borrowers have notified the Administrative
Agent of any intention by the Borrowers to treat the Loans and/or Letters of
Credit as being a "reportable transaction" (within the meaning of Treasury
Regulation Section 1.6011-4) a duly completed copy of IRS Form 8886 or any
successor form; and
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(k) Such other data and information as from time to time may be
reasonably requested by any Creditor through the Administrative Agent.
7.2 COMPLIANCE CERTIFICATES. So long as any Advance remains unpaid, or
any other Obligation remains unpaid or unperformed, or any portion of the
Commitments remains outstanding, Parent and Borrowers shall deliver to the
Administrative Agent and the Lenders, at Parent's and Borrowers' sole expense,
concurrently with the financial statements required pursuant to Sections 7.1(a)
and 7.1(c), a Compliance Certificate signed on Parent's and Borrowers' behalf by
a Senior Officer.
ARTICLE 8
CONDITIONS
8.1 INITIAL ADVANCES, ETC. The obligation of each Lender to make the
initial Advance to be made by it, the obligation of the Swing Line Lender to
make Swing Line Advances and the obligation of the relevant Issuing Lenders to
issue the initial Letters of Credit, are each subject to the following
conditions precedent, each of which shall be satisfied prior to the making of
the initial Advances (unless all of the Lenders, in their sole and absolute
discretion, shall agree otherwise):
(a) The Administrative Agent shall have received all of the
following, each of which shall be originals unless otherwise specified, each
properly executed by a Responsible Official of each party thereto, each dated as
of the Closing Date and each in form and substance satisfactory to the
Administrative Agent and its legal counsel (unless otherwise specified or, in
the case of the date of any of the following, unless the Administrative Agent
otherwise agrees or directs):
(1) at least one executed counterpart of this Agreement,
together with arrangements satisfactory to the Administrative Agent
for additional executed counterparts, sufficient in number for
distribution to the Lenders, Parent and the Company;
(2) Committed Advance Notes executed by the Company in favor of
each Term Loan Lender and Revolving Lender, each in a principal
amount equal to that Lender's applicable Pro Rata Share;
(3) the Swing Line Documents;
(4) the Parent Guaranty executed by Parent;
(5) with respect to the Parent and the Company, such
documentation as the Administrative Agent may require to establish
the due organization, valid existence and good standing of Parent and
the Company, its authority to execute, deliver and perform any Loan
Documents to which it is a Party, the identity, authority and
capacity of each Responsible Official thereof authorized to act on
its behalf, INCLUDING certified copies of articles of incorporation
and amendments
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thereto, bylaws and amendments thereto, certificates of good
standing, certificates of corporate resolutions, incumbency
certificates and Certificates of Responsible Officials;
(6) the Opinions of Counsel;
(7) a Certificate of a Responsible Official certifying that the
attached copies of the governing indentures and agreements for the
Existing Subordinated Debt, the Existing Senior Notes and the
Atlantic City Showboat Land Debt are true copies;
(8) such assurances as the Administrative Agent deems
appropriate that the relevant Gaming Boards have approved the
transactions contemplated by the Loan Documents to the extent that
such approval is required by applicable Gaming Laws or as otherwise
permitted under Schedule 4.3;
(9) a Certificate of a Responsible Official signed on Parent's
and the Company's behalf by a Senior Officer setting forth the Total
Debt Ratio as of December 31, 2002 and the Debt Rating as of the
Closing Date;
(10) a Certificate of a Responsible Official signed on Parent's
and the Company's behalf by a Senior Officer certifying that the
conditions specified in Sections 8.1(e) and 8.1(f) have been
satisfied;
(11) a copy of the Parent's audited consolidated annual
financial statements for the Fiscal Year ended December 31, 2002; and
(12) such other assurances, certificates, documents, consents or
opinions as the Administrative Agent reasonably may require.
(b) The Company shall have on the Closing Date terminated the
Existing Xxxxxx'x Credit Agreements and repaid each of the loans and terminated
each of the outstanding letters of credit and other credit accommodations made
thereunder (other than the Continuing Letters of Credit) pursuant to
arrangements acceptable to the Administrative Agent, and the proceeds of the
initial Loans shall have been used or shall concurrently be used to refinance
the obligations of the Company thereunder.
(c) The arrangement fee, upfront fees and agency fees payable
pursuant to Sections 3.2, 3.3 and 3.6 shall have been paid.
(d) The reasonable costs and expenses of the Administrative Agent in
connection with the preparation of the Loan Documents payable pursuant to
Section 11.3, and invoiced to the Parent prior to the Closing Date, shall have
been paid.
(e) The representations and warranties of Parent and the Company
contained in Article 4 shall be true and correct.
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(f) Parent, the Company and any other Parties shall be in compliance
with all the terms and provisions of the Loan Documents, and after giving effect
to the initial Advance no Default or Event of Default shall have occurred and be
continuing.
8.2 ANY INCREASING ADVANCE, ETC. The obligation of each Lender to make
any Committed Advance which would increase the aggregate principal amount of the
outstanding Committed Advances, the obligation of the relevant Issuing Lender to
issue each Letter of Credit and the obligation of the Swing Line Lender to make
Swing Line Advances, is subject to the following conditions precedent:
(a) EXCEPT (i) for representations and warranties which expressly
speak as of a particular date or are no longer true and correct as a result of a
change which is not a violation of the Loan Documents and (ii) as disclosed by
Parent and Borrowers and approved in writing by the Requisite Lenders (or, in
the case of any Advance or the issuance of any Letter of Credit after the Term
Loan has been funded, the Requisite Revolving Lenders), the representations and
warranties contained in Article 4 (other than Sections 4.4(a), 4.6 (first
sentence), and 4.15) shall be true and correct on and as of the date of the
Advance as though made on that date;
(b) there shall not be then pending or threatened any action, suit,
proceeding or investigation against or affecting Parent or any of its
Subsidiaries or any Property of any of them before any Governmental Agency that
constitutes a Material Adverse Effect;
(c) the Administrative Agent shall, in the case of a Committed
Advance, have timely received a Request for Loan in compliance with Article 2
(or telephonic or other request for loan referred to in the second sentence of
Section 2.1(c), if applicable) in compliance with Article 2 (or, in the proper
case, a Request for Letter of Credit); and
(d) the Administrative Agent shall have received, in form and
substance satisfactory to the Administrative Agent, such other assurances,
certificates, documents or consents related to the foregoing as the
Administrative Agent or Requisite Lenders (or, in the case of any Advance or the
issuance of any Letter of Credit after the Term Loan has been funded, the
Requisite Revolving Lenders) reasonably may require.
ARTICLE 9
EVENTS OF DEFAULT AND REMEDIES UPON EVENT OF DEFAULT
9.1 EVENTS OF DEFAULT. The existence or occurrence of any one or more of
the following events, whatever the reason therefor and under any circumstances
whatsoever, shall constitute an Event of Default:
(a) Any Borrower (i) fails to pay any principal on any Committed
Advance Note or any Swing Line Advance, or any portion thereof, on the date when
due or (ii) fails to make any payment with respect to any Letter of Credit when
required by Section 2.4(e); or
(b) Parent or any Borrower fails to pay any interest on any of the
Notes, or any fees under Sections 3.4, 3.5 or 3.6, or any portion thereof,
within five Business Days after the
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date when due; or fails to pay any other fee or amount payable to the Lenders
under any Loan Document, or any portion thereof, within five Business Days after
demand therefor; or
(c) Parent or any Borrower fails, immediately upon notice from the
Administrative Agent, to comply with any of the covenants contained in Article
6; or
(d) Parent or any Borrower fails to comply with Section 7.1(h) in
any respect that is materially adverse to the interests of the Lenders; or
(e) Parent, any Borrower or any other Party fails to perform or
observe any other covenant or agreement (not specified in clauses (a), (b), (c)
or (d) above) contained in any Loan Document on its part to be performed or
observed within thirty Business Days after the giving of notice by the
Administrative Agent on behalf of the Requisite Lenders of such Default; or
(f) Any representation or warranty of Parent or any Borrower made in
any Loan Document, or in any certificate or other writing delivered by Parent or
any Borrower pursuant to any Loan Document, proves to have been incorrect when
made or reaffirmed; or
(g) Parent or any of its Significant Subsidiaries (i) fails to pay
the principal, or any principal installment, of any present or future
indebtedness for borrowed money of $100,000,000 or more, or any guaranty of
present or future indebtedness for borrowed money of $100,000,000 or more, on
its part to be paid, when due (or within any stated grace period), whether at
the stated maturity, upon acceleration, by reason of required prepayment or
otherwise or (ii) fails to perform or observe any other term, covenant or
agreement on its part to be performed or observed, or suffers any event to
occur, in connection with any present or future indebtedness for borrowed money
of $100,000,000 or more, or of any guaranty of present or future indebtedness
for borrowed money of $100,000,000 or more, if as a result of such failure or
sufferance any holder or holders thereof (or an agent or trustee on its or their
behalf) has the right to declare such indebtedness due before the date on which
it otherwise would become due; or
(h) Any event occurs which gives the holder or holders of any
Subordinated Debt (or an agent or trustee on its or their behalf) the right to
declare such indebtedness due before the date on which it otherwise would become
due, or the right to require the issuer thereof to redeem or purchase, or offer
to redeem or purchase, all or any portion of any Subordinated Debt; or
(i) Any Loan Document, at any time after its execution and delivery
and for any reason other than the agreement of the Lenders or satisfaction in
full of all the Obligations ceases to be in full force and effect or is declared
by a court of competent jurisdiction to be null and void, invalid or
unenforceable in any respect which, in any such event in the reasonable opinion
of the Requisite Lenders, is materially adverse to the interests of the Lenders;
or any Party thereto denies in writing that it has any or further liability or
obligation under any Loan Document, or purports in writing to revoke, terminate
or rescind same; or
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(j) A final judgment against the Parent or any of its Significant
Subsidiaries is entered for the payment of money in excess of $25,000,000 and,
absent procurement of a stay of execution, such judgment remains unsatisfied for
thirty calendar days after the date of entry of judgment, or in any event later
than five days prior to the date of any proposed sale thereunder; or any writ or
warrant of attachment or execution or similar process is issued or levied
against all or any material part of the Property of any such Person and is not
released, vacated or fully bonded within thirty calendar days after its issue or
levy; or
(k) The Parent or any of its Significant Subsidiaries institutes or
consents to the institution of any proceeding under a Debtor Relief Law relating
to it or to all or any part of its Property, or is unable or admits in writing
its inability to pay its debts as they mature, or makes an assignment for the
benefit of creditors; or applies for or consents to the appointment of any
receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar
officer for it or for all or any part of its Property; or any receiver, trustee,
custodian, conservator, liquidator, rehabilitator or similar officer is
appointed without the application or consent of that Person and the appointment
continues undischarged or unstayed for 60 calendar days; or any proceeding under
a Debtor Relief Law relating to any such Person or to all or any part of its
Property is instituted without the consent of that Person and continues
undismissed or unstayed for 60 calendar days; or
(l) The occurrence of an Event of Default (as such term is or may
hereafter be specifically defined in any other Loan Document) under any other
Loan Document; or
(m) Any determination is made by a court of competent jurisdiction
that any Subordinated Debt is not subordinated in accordance with its terms to
the Obligations, PROVIDED that for so long as such determination is effectively
stayed during any pending appeal the same shall not constitute an Event of
Default; or
(n) Any Pension Plan maintained by the Parent or any of its
Subsidiaries is determined to have a material "accumulated funding deficiency"
as that term is defined in Section 302 of ERISA and the result is a Material
Adverse Effect; or
(o) The occurrence of a License Revocation with respect to a license
issued to Parent or any of its Subsidiaries by any Gaming Board of the States of
New Jersey, Nevada or Louisiana with respect to gaming operations at any gaming
facility accounting for 5% or more of the consolidated gross revenues of Parent
and its Subsidiaries that continues for thirty calendar days.
9.2 REMEDIES UPON EVENT OF DEFAULT. Without limiting any other rights or
remedies of the Creditors provided for elsewhere in this Agreement, or the Loan
Documents, or by applicable Law, or in equity, or otherwise:
(a) Upon the occurrence, and during the continuance, of any Event of
Default OTHER THAN an Event of Default described in Section 9.1(k):
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(1) the commitment to make Advances and all other obligations
of the Creditors and all rights of Parent, Borrowers and any other
Parties under the Loan Documents shall be suspended without notice to
or demand upon Parent or the Borrowers , which are expressly waived
by Parent and the Borrowers, EXCEPT that all of the Lenders or the
Requisite Lenders (as the case may be, in accordance with Section
11.2) may waive an Event of Default or, without waiving, determine,
upon terms and conditions satisfactory to the Lenders or Requisite
Lenders, as the case may be, to reinstate the Commitments and make
further Advances, which waiver or determination shall apply equally
to, and shall be binding upon, all the Lenders; and
(2) the Requisite Lenders may request the Administrative Agent
to, and the Administrative Agent thereupon shall, terminate the
Commitments, demand that Borrowers deposit cash collateral for all
Letters of Credit in the amount thereof with the Administrative Agent
and/or declare all or any part of the unpaid principal of all Notes,
all interest accrued and unpaid thereon and all other amounts payable
under the Loan Documents to be forthwith due and payable, whereupon
the same shall become and be forthwith due and payable, without
protest, presentment, notice of dishonor, demand or further notice of
any kind, all of which are expressly waived by Parent and the
Borrowers.
(b) Upon the occurrence of any Event of Default described in Section
9.1(k):
(1) the commitment to make Advances and all other obligations
of the Creditors and all rights of Parent, Borrowers and any other
Parties under the Loan Documents shall terminate without notice to or
demand upon Parent or Borrowers, which are expressly waived by Parent
and Borrowers, EXCEPT that all the Lenders may waive the Event of
Default or, without waiving, determine, upon terms and conditions
satisfactory to all the Lenders, to reinstate the Commitments and
make further Advances, which determination shall apply equally to,
and shall be binding upon, all the Lenders; and
(2) the unpaid principal of all Notes, all interest accrued and
unpaid thereon and all other amounts payable under the Loan Documents
shall be forthwith due and payable, without protest, presentment,
notice of dishonor, demand or further notice of any kind, all of
which are expressly waived by Parent and Borrowers, and Borrowers
shall be obligated to immediately deposit cash collateral for all
Letters of Credit with the Administrative Agent in the amount
thereof.
(c) Upon the occurrence of any Event of Default, the Creditors, or
any of them, without notice to (EXCEPT as expressly provided for in any Loan
Document) or demand upon Parent or Borrowers, which are expressly waived by
Borrowers (EXCEPT as to notices expressly provided for in any Loan Document),
may proceed (but only with the consent of the Requisite Lenders) to protect,
exercise and enforce their rights and remedies under the Loan Documents against
Parent and the Borrowers and any other Parties and such other rights and
59
remedies as are provided by Law or equity; PROVIDED that, it is agreed as among
the Creditors that, following any Event of Default consisting of a failure of a
Borrower to make any payment hereunder when due (whether at stated maturity, by
acceleration or otherwise), each Creditor may independently pursue its legal
remedies under this Agreement, its Notes and the other Loan Documents against
Parent and such Borrower in respect of any such defaulted payments without the
consent of the other Lenders, the Issuing Lender or the Administrative Agent
(except to the extent that such payment default has been cured), upon the
earliest of (i) the acceleration of the Obligations, (ii) any bankruptcy or
insolvency event of the types described in Section 9.1(k) in respect of Parent
or such Borrower and (iii) 45 days following the date of such payment default,
provided that no individual Creditor may, without the consent of the Requisite
Lenders, purport to accelerate the Obligations.
(d) The order and manner in which the Lenders' rights and
remedies are to be exercised shall be determined by the Requisite Lenders in
their sole discretion, and all payments received by the Creditors, shall be
applied first to the costs and expenses (including attorneys' fees and
disbursements and the allocated costs of attorneys employed by the
Administrative Agent) of the Creditors, and thereafter paid pro rata to the
Lenders in the same proportions that the aggregate Obligations owed to each
Lender under the Loan Documents bear to the aggregate Obligations owed under the
Loan Documents to all the Lenders, without priority or preference among the
Lenders. Regardless of how each Lender may treat payments for the purpose of its
own accounting, for the purpose of computing the Obligations hereunder and under
the Notes, payments shall be applied FIRST, to the costs and expenses of the
Creditors, as set forth above, SECOND, to the payment of accrued and unpaid
interest due under any Loan Documents to and including the date of such
application (ratably, and without duplication, according to the accrued and
unpaid interest due under each of the Loan Documents), and THIRD, to the payment
of all other amounts (including principal and fees) then owing to the Creditors
under the Loan Documents. No application of payments will cure any Event of
Default, or prevent acceleration, or continued acceleration, of amounts payable
under the Loan Documents, or prevent the exercise, or continued exercise, of
rights or remedies of the Lenders hereunder or thereunder or at Law or in
equity.
ARTICLE 10
ADMINISTRATIVE AGENT
10.1 APPOINTMENT AND AUTHORIZATION. Each Creditor hereby irrevocably
appoints and authorizes the Administrative Agent to take such action as agent on
its behalf and to exercise such powers under the Loan Documents as are delegated
to the Administrative Agent by the terms thereof or are reasonably incidental,
as determined by the Administrative Agent, thereto. This appointment and
authorization is intended solely for the purpose of facilitating the servicing
of the Obligations and does not constitute appointment of the Administrative
Agent as trustee for any Lender or as representative of any Lender for any other
purpose and, EXCEPT as specifically set forth in the Loan Documents to the
contrary, the Administrative Agent shall take such action and exercise such
powers only in an administrative and ministerial capacity.
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10.2 ADMINISTRATIVE AGENT AND AFFILIATES. Bank of America (and each
successor Administrative Agent) has the same rights and powers under the Loan
Documents as any other Lender and may exercise the same as though it was not the
Administrative Agent, and the term "Lender" or "Lenders" includes Bank of
America in its individual capacity. Bank of America (and each successor
Administrative Agent) and its Affiliates may accept deposits from, lend money to
and generally engage in any kind of banking, trust or other business with
Parent, any Subsidiary thereof, or any Affiliate of Parent, as if it was not the
Administrative Agent and without any duty to account therefor to the Lenders.
Bank of America (and each successor Administrative Agent) need not account to
any other Bank for any monies received by it for reimbursement of its costs and
expenses as Administrative Agent hereunder, or for any monies received by it in
its capacity as a Lender hereunder. The Administrative Agent shall not be deemed
to hold a fiduciary relationship with any Lender and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be read
into this Agreement or otherwise exist against the Administrative Agent.
10.3 PROPORTIONATE INTEREST IN ANY COLLATERAL. The Administrative Agent,
on behalf of all the Lenders, shall hold in accordance with the Loan Documents
all items of any collateral or interests therein hereafter received or held by
the Administrative Agent. Subject to the Administrative Agent's and the Lenders'
rights to reimbursement for their costs and expenses hereunder (INCLUDING
attorneys' fees and disbursements and other professional services and the
allocated costs of attorneys employed by the Administrative Agent or a Lender),
each Lender shall have an interest in the Lenders' interest in any collateral or
interests therein in the same proportions that the aggregate Obligations owed
such Lender under the Loan Documents bear to the aggregate Obligations owed
under the Loan Documents to all the Lenders, without priority or preference
among the Lenders.
10.4 LENDERS' CREDIT DECISIONS. Each Creditor agrees that it has,
independently and without reliance upon the Administrative Agent, any other
Creditor or the directors, officers, agents, employees or attorneys of any other
Creditor, and instead in reliance upon information supplied to it by or on
behalf of Parent and Borrowers and upon such other information as it has deemed
appropriate, made its own independent credit analysis and decision to enter into
this Agreement. Each Creditor also agrees that it shall, independently and
without reliance upon any other Creditor or the directors, officers, agents,
employees or attorneys of any other Creditor, continue to make its own
independent credit analyses and decisions in acting or not acting under the Loan
Documents.
10.5 ACTION BY ADMINISTRATIVE AGENT.
(a) The Administrative Agent, the relevant Issuing Lender and the
Swing Line Lender may assume that no Default or Event of Default has occurred
and is continuing, unless they have received notice from a Parent or any
Borrower stating the nature of the Default or Event of Default or have received
notice from a Lender stating the nature of the Default or Event of Default and
that such Lender considers the Default or Event of Default to have occurred and
to be continuing.
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(b) The Administrative Agent has only those obligations under the
Loan Documents as are expressly set forth therein.
(c) EXCEPT for any obligation expressly set forth in the Loan
Documents and as long as the Administrative Agent may assume that no Event of
Default has occurred and is continuing, the Administrative Agent may, but shall
not be required to, exercise its discretion to act or not act, EXCEPT that the
Administrative Agent shall be required to act or not act upon the instructions
of the Requisite Lenders (or of all the Lenders, to the extent required by
Section 11.2) and those instructions shall be binding upon the Administrative
Agent and all the Lenders, PROVIDED that the Administrative Agent shall not be
required to act or not act if to do so would be contrary to any Loan Document or
to applicable Law or would result, in the reasonable judgment of the
Administrative Agent, in substantial risk of liability to the Administrative
Agent.
(d) If the Administrative Agent has received a notice specified in
clause (a), the Administrative Agent shall immediately give notice thereof to
the Lenders and shall act or not act upon the instructions of the Requisite
Lenders (or of all the Lenders, to the extent required by Section 11.2),
PROVIDED that the Administrative Agent shall not be required to act or not act
if to do so would be contrary to any Loan Document or to applicable Law or would
result, in the reasonable judgment of the Administrative Agent, in substantial
risk of liability to the Administrative Agent, and EXCEPT that if the Requisite
Lenders (or all the Lenders, if required under Section 11.2) fail, for five
Business Days after the receipt of notice from the Administrative Agent, to
instruct the Administrative Agent, then the Administrative Agent, in its sole
discretion, may act or not act as it deems advisable for the protection of the
interests of the Creditors.
(e) The Administrative Agent shall have no liability to any Creditor
for acting, or not acting, as instructed by the Requisite Lenders (or all the
Lenders, if required under Section 11.2), notwithstanding any other provision
hereof.
10.6 LIABILITY OF ADMINISTRATIVE AGENT. Neither the Administrative Agent
nor any of its directors, officers, agents, employees or attorneys shall be
liable for any action taken or not taken by them under or in connection with the
Loan Documents, EXCEPT for their own gross negligence or willful misconduct.
Without limitation on the foregoing, the Administrative Agent and its directors,
officers, agents, employees and attorneys:
(a) May treat the payee of any Note as the holder thereof until the
Administrative Agent receives notice of the assignment or transfer thereof, in
form satisfactory to the Administrative Agent, signed by the payee, and may
treat each Lender as the owner of that Lender's interest in the Obligations for
all purposes of this Agreement until the Administrative Agent receives notice of
the assignment or transfer thereof, in form satisfactory to the Administrative
Agent, signed by that Lender.
(b) May consult with legal counsel (INCLUDING in-house legal
counsel), accountants (INCLUDING in-house accountants) and other professionals
or experts selected by it, or with legal counsel, accountants or other
professionals or experts for Parent and/or its Subsidiaries
62
or the Lenders, and shall not be liable for any action taken or not taken by it
in good faith in accordance with any advice of such legal counsel, accountants
or other professionals or experts.
(c) Shall not be responsible to any Lender for any statement,
warranty or representation made in any of the Loan Documents or in any notice,
certificate, report, request or other statement (written or oral) given or made
in connection with any of the Loan Documents.
(d) EXCEPT to the extent expressly set forth in the Loan Documents,
shall have no duty to ask or inquire as to the performance or observance by
Parent or its Subsidiaries of any of the terms, conditions or covenants of any
of the Loan Documents or to inspect any collateral or the Property, books or
records of Parent or its Subsidiaries.
(e) Will not be responsible to any Lender for the due execution,
legality, validity, enforceability, genuineness, effectiveness, sufficiency or
value of any Loan Document, any other instrument or writing furnished pursuant
thereto or in connection therewith, or any collateral.
(f) Will not incur any liability by acting or not acting in reliance
upon any Loan Document, notice, consent, certificate, statement, request or
other instrument or writing believed by it to be genuine and signed or sent by
the proper party or parties.
(g) Will not incur any liability for any arithmetical error in
computing any amount paid or payable by Parent, Borrowers or any Subsidiary
thereof or paid or payable to or received or receivable from any Lender under
any Loan Document, including, without limitation, principal, interest,
commitment fees, Advances and other amounts; PROVIDED that, promptly upon
discovery of such an error in computation, the Creditors (and, to the extent
applicable, Parent and Borrowers) shall make such adjustments as are necessary
to correct such error and to restore the parties to the position that they would
have occupied had the error not occurred.
10.7 INDEMNIFICATION. Each Lender shall, ratably in accordance with its
Pro Rata Share, indemnify and hold the Administrative Agent, the Lead Arranger
and their respective directors, officers, agents, employees and attorneys
harmless against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever (INCLUDING, without limitation, attorneys' fees and
disbursements and allocated costs of attorneys employed by the Administrative
Agent or the Lead Arranger) that may be imposed on, incurred by or asserted
against it or them in any way relating to or arising out of the Loan Documents
(other than losses incurred by reason of the failure of Parent or Borrowers to
pay and perform the Obligations) or any action taken or not taken by it as
Administrative Agent and the Lead Arranger thereunder, EXCEPT such as result
from their own gross negligence or willful misconduct. Without limitation on the
foregoing, each Lender shall reimburse the Administrative Agent and the Lead
Arranger upon demand for that Lender's Pro Rata Share of any out-of-pocket cost
or expense incurred by the Administrative Agent or the Lead Arranger in
connection with the negotiation, preparation, execution, delivery, amendment,
waiver, restructuring, reorganization (INCLUDING a bankruptcy reorganization),
enforcement or attempted enforcement of the Loan Documents, to the extent that
Parent, Borrowers or any other Party fails to do so upon demand.
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10.8 SUCCESSOR ADMINISTRATIVE AGENT. The Administrative Agent may, and at
the request of the Requisite Lenders shall, resign as Administrative Agent upon
thirty days notice to the Lenders, Parent and the Borrowers. If the
Administrative Agent resigns as Administrative Agent under this Agreement, the
Requisite Lenders shall appoint from among the Lenders a successor
administrative agent for the Lenders, which successor administrative agent shall
be approved by Parent and Borrowers (and such approval shall not be unreasonably
withheld). If no successor administrative agent is appointed prior to the
effective date of the resignation of the Administrative Agent, the
Administrative Agent may appoint, after consulting with the Lenders, Parent and
Borrowers, a successor administrative agent from among the Lenders. Upon the
acceptance of its appointment as successor administrative agent hereunder, such
successor administrative agent shall succeed to all the rights, powers and
duties of the retiring Administrative Agent and the term "Administrative Agent"
shall mean such successor administrative agent and the retiring Administrative
Agent's appointment, powers and duties as Administrative Agent shall be
terminated (except for any liabilities incurred prior to such termination).
After any retiring Administrative Agent's resignation hereunder as
Administrative Agent, the provisions of this Article 10, and Sections 11.3,
11.11 and 11.23, shall inure to its benefit as to any actions taken or omitted
to be taken by it while it was Administrative Agent under this Agreement. If no
successor administrative agent has accepted appointment as Administrative Agent
by the date which is thirty days following a retiring Administrative Agent's
notice of resignation, the retiring Administrative Agent's resignation shall
nevertheless thereupon become effective and the Lenders shall perform all of the
duties of the Administrative Agent hereunder until such time, if any, as the
Requisite Lenders appoint a successor administrative agent as provided for
above.
10.9 NO OBLIGATIONS OF PARENT OR BORROWERS. Nothing contained in this
Article 10 shall be deemed to impose upon Parent or Borrowers any obligation in
respect of the due and punctual performance by the Administrative Agent of its
obligations to the Lenders under any provision of this Agreement, and Parent and
Borrowers shall have no liability to any Creditor in respect of any failure by
any Creditor to perform any of its obligations to any other Creditor under this
Agreement.
ARTICLE 11
MISCELLANEOUS
11.1 CUMULATIVE REMEDIES; NO WAIVER. The rights, powers, privileges and
remedies of the Creditors provided herein or in any Note or other Loan Document
are cumulative and not exclusive of any right, power, privilege or remedy
provided by Law or equity. No failure or delay on the part of any Creditor in
exercising any right, power, privilege or remedy may be, or may be deemed to be,
a waiver thereof; nor may any single or partial exercise of any right, power,
privilege or remedy preclude any other or further exercise of the same or any
other right, power, privilege or remedy. The terms and conditions of Article 8
hereof are inserted for the sole benefit of the Creditors; the same may be
waived in whole or in part, with or without terms or conditions, in respect of
any Loan or Letter of Credit without prejudicing the Creditors rights to assert
them in whole or in part in respect of any other Loan or Letter of Credit.
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11.2 AMENDMENTS; CONSENTS. No amendment, modification, supplement,
extension, termination or waiver of any provision of this Agreement or any other
Loan Document, no approval or consent thereunder, and no consent to any
departure by Parent, Borrowers or any other Party therefrom, may in any event be
effective unless in writing signed by the Requisite Lenders (and, in the case of
any amendment, modification or supplement of or to any Loan Document to which
Parent or any Borrower is a party, signed by Parent and that Borrower and, in
the case of any amendment, modification or supplement to Article 10, signed by
the Administrative Agent), and then only in the specific instance and for the
specific purpose given; and, without the approval in writing of all the Lenders,
no amendment, modification, supplement, termination, waiver or consent may be
effective:
(a) To forgive any principal Obligation, defer any required payment
of any Obligation, reduce the amount or rate of interest payable on any Loan or
Advance without the consent of the affected Lender, increase the amount of the
Commitment (except as set forth in Section 2.6) or the Pro Rata Share of any
Lender or decrease the amount of any Letter of Credit Fee or facility fee
payable to any Lender, or reduce any other fee or amount payable to the
Creditors under the Loan Documents or to waive an Event of Default consisting of
the failure of any Borrower to pay when due principal, interest or any facility
fee or letter of credit fee;
(b) To postpone any date fixed for any payment of principal of,
prepayment of principal of or any installment of interest on, any Note or any
installment of any facility fee or letter of credit fee, or to extend the term
of the Commitment;
(c) To amend the provisions of the definition of "Requisite Lenders"
or this Section 11.2 or to amend or waive Section 6.2;
(d) To release or subordinate the Parent Guaranty; or
(e) To amend any provision of this Agreement that expressly requires
the consent or approval of all the Lenders;
PROVIDED, however, that notwithstanding the foregoing after the
funding of the Term Loan, amendments, modifications or waivers of Section 8.2
may be made only with the consent of the Requisite Revolving Lenders.
Any amendment, modification, supplement, termination, waiver or
consent pursuant to this Section 11.2 shall apply equally to, and shall be
binding upon, all of the Creditors.
If, in connection with any proposed amendment, modification, supplement,
termination, waiver or consent to any of the provisions hereof as contemplated
by clauses (a) through (d), inclusive, of this Section 11.2, the consent of the
Required Lenders is obtained, but the consent of one or more of the other
Lenders is required and is not obtained, then the Borrowers shall have the right
to replace such non-consenting Lender with one or more Eligible Assignees in
accordance with Section 11.14(b) if such Eligible Assignee consents to the
proposed amendment, modification, supplement, termination, waiver or consent.
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11.3 COSTS, EXPENSES AND TAXES. Each Borrower shall pay within two
Business Days after demand, accompanied by an invoice therefor, the reasonable
costs and expenses of the Administrative Agent and the Lead Arranger in
connection with the negotiation, preparation, syndication, execution and
delivery of the Loan Documents and any amendment thereto or waiver thereof which
is requested by Borrowers or is entered into when any Default or Event of
Default exists. Following any Event of Default, each Borrower shall pay on
demand, accompanied by an invoice therefor, the reasonable costs and expenses of
the Administrative Agent and each of the other Creditors in connection with the
restructuring, reorganization (including a bankruptcy reorganization) and
enforcement or attempted enforcement of the Loan Documents, and any matter
related thereto. The foregoing costs and expenses shall include filing fees,
recording fees, title insurance fees, appraisal fees, search fees, and other
out-of-pocket expenses and the reasonable fees and out-of-pocket expenses of any
legal counsel (including allocated costs of legal counsel employed by any
Creditor), independent public accountants and other outside experts retained by
any of the Creditors, whether or not such costs and expenses are incurred or
suffered by the Creditors in connection with or during the course of any
bankruptcy or insolvency proceedings of the Parent or any Subsidiary thereof.
Such costs and expenses shall also include, in the case of any amendment or
waiver of any Loan Document requested by the Parent or the Borrowers, the
administrative costs of the Administrative Agent reasonably attributable
thereto. Each Borrower shall pay any and all documentary and other taxes,
excluding, in the case of each Creditor and its Eurodollar Lending Office
thereof, (i) taxes imposed on or measured in whole or in part by its net income
or capital and franchise taxes imposed on it, (ii) any withholding taxes or
other taxes based on net income (other than withholding taxes and taxes based on
net income resulting from or attributable to any change following the Closing
Date in any law, rule or regulation or any change following the Closing Date in
the interpretation or administration of any law, rule or regulation by any
governmental authority) or (iii) any withholding taxes or other taxes based on
net income for any period with respect to which it has failed to provide the
Parent with the appropriate form or forms required by Section 11.21, to the
extent such forms are then required by applicable Laws, and all costs, expenses,
fees and charges payable or determined to be payable in connection with the
filing or recording of this Agreement, any other Loan Document or any other
instrument or writing to be delivered hereunder or thereunder, or in connection
with any transaction pursuant hereto or thereto, and shall reimburse, hold
harmless and indemnify the Creditors from and against any and all loss,
liability or legal or other expense with respect to or resulting from any delay
in paying or failure to pay any such tax, cost, expense, fee or charge or that
any of them may suffer or incur by reason of the failure of any Party to perform
any of its Obligations. Any amount payable to the Creditors under this Section
11.3 shall bear interest from the second Business Day following the date of
demand for payment at the Default Rate.
11.4 NATURE OF LENDERS' OBLIGATIONS. The obligations of the Lenders
hereunder are several and not joint or joint and several. Nothing contained in
this Agreement or any other Loan Document and no action taken by the Creditors
or any of them pursuant hereto or thereto may, or may be deemed to, make the
Creditors a partnership, an association, a joint venture or other entity, either
among themselves or with Parent, any Borrower or any Affiliate thereof. Each
Lender's obligation to make any Advance pursuant hereto is several and not joint
or joint and several, and in the case of the initial Advance only is conditioned
upon the performance by all
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other Lenders of their obligations to make initial Advances. A default by any
Lender will not increase any Pro Rata Share attributable to any other Lender.
Any Lender not in default may, if it desires, assume in such proportion as a
majority in interest of the nondefaulting Lenders agree the obligations of any
Lender in default, but is not obligated to do so.
11.5 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations and
warranties contained herein or in any other Loan Document, or in any certificate
or other writing delivered by or on behalf of any one or more of the Parties to
any Loan Document, will survive the making of the Loans hereunder and the
execution and delivery of the Notes, and have been or will be relied upon by the
Creditors, notwithstanding any investigation made by the Creditors or on their
behalf.
11.6 NOTICES. Except as otherwise expressly provided in the Loan
Documents, all notices, requests, demands, directions and other communications
provided for hereunder or under any other Loan Document must be in writing and
must be mailed, telecopied or delivered by overnight courier or otherwise to the
appropriate party at the address set forth on the signature pages of this
Agreement or other applicable Loan Document or, as to any party to any Loan
Document, at any other address as may be designated by it in a written notice
sent to all other parties to such Loan Document in accordance with this Section.
EXCEPT as otherwise expressly provided in any Loan Document, if any notice,
request, demand, direction or other communication required or permitted by any
Loan Document is given by mail it will be effective on the earlier of receipt or
the third calendar day after deposit in the United States mail with first class
or airmail postage prepaid; if given by telecopier, when sent; or if given by
personal delivery, when delivered.
11.7 EXECUTION OF LOAN DOCUMENTS. Unless the Administrative Agent
otherwise specifies with respect to any Loan Document, (a) this Agreement and
any other Loan Document may be executed in any number of counterparts and any
party hereto or thereto may execute any counterpart, each of which when executed
and delivered will be deemed to be an original and all of which counterparts of
this Agreement or any other Loan Document, as the case may be, when taken
together will be deemed to be but one and the same instrument and (b) execution
of any such counterpart may be evidenced by a telecopier transmission of the
signature of such party. The execution of this Agreement or any other Loan
Document by any party hereto or thereto will not become effective until
counterparts hereof or thereof, as the case may be, have been executed by all
the parties hereto or thereto.
11.8 SUCCESSORS AND ASSIGNS.
(a) The provisions of this Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and assigns
permitted hereby, except that Parent and the Borrowers may not assign or
otherwise transfer any of their rights or obligations hereunder without the
prior written consent of each Lender and no Lender may assign or otherwise
transfer any of its rights or obligations hereunder except (i) to an Eligible
Assignee in accordance with the provisions of subsection (b) of this Section,
(ii) by way of participation in accordance with the provisions of subsection (d)
of this Section, (iii) by way of pledge or assignment of a security interest
subject to the restrictions of subsection (f) or (i) of this Section,
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or (iv) to an SPC in accordance with the provisions of subsection (h) of this
Section (and any other attempted assignment or transfer by any party hereto
shall be null and void). Nothing in this Agreement, expressed or implied, shall
be construed to confer upon any Person (other than the parties hereto, their
respective successors and assigns permitted hereby, Participants to the extent
provided in subsection (d) of this Section and, to the extent expressly
contemplated hereby, the Indemnitees) any legal or equitable right, remedy or
claim under or by reason of this Agreement.
(b) Any Lender may at any time assign to one or more Eligible
Assignees all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Commitments and its Loans (including for
purposes of this subsection (b), participations in LC Obligations and in Swing
Line Loans held by any Revolving Lender) at the time owing to it); PROVIDED that
(i) except in the case of an assignment of the entire remaining amount of the
assigning Lender's Commitment and Loans at the time owing to it or in the case
of an assignment to a Lender or an Affiliate of a Lender or an Approved Fund (as
defined in subsection (g) of this Section) with respect to a Lender, the
aggregate amount of the Commitment (which for this purpose includes Loans
outstanding thereunder) subject to each such assignment, determined as of the
date the Assignment Agreement with respect to such assignment is delivered to
the Administrative Agent or, if "Trade Date" is specified in the Assignment
Agreement, as of the Trade Date, shall not be less than $1,000,000 unless each
of the Administrative Agent and, so long as no Default has occurred and is
continuing, Parent and the Borrowers otherwise consent (each such consent not to
be unreasonably withheld or delayed); (ii) each partial assignment shall be made
as an assignment of a proportionate part of all the assigning Lender's rights
and obligations under this Agreement with respect to the Loans or the Commitment
assigned, except that this clause (ii) shall not apply to rights in respect of
Swing Line Loans; (iii) any assignment of a Revolving Loan Commitment must be
approved by the Administrative Agent, the Issuing Lender and the Swing Line
Lender (each such consent not to be unreasonably withheld or delayed) unless the
Person that is the proposed assignee is itself a Lender (whether or not the
proposed assignee would otherwise qualify as an Eligible Assignee); (iv) any
assignment of a Term Loan Commitment must be approved by the Administrative
Agent (such consent not to be unreasonably withheld or delayed) unless the
Person that is the proposed assignee is itself a Lender (whether or not the
proposed assignee would otherwise qualify as an Eligible Assignee); and (v) the
parties to each assignment shall execute and deliver to the Administrative Agent
an Assignment Agreement, together with a processing and recordation fee of
$3,500. Subject to acceptance and recording thereof by the Administrative Agent
pursuant to subsection (c) of this Section, from and after the effective date
specified in each Assignment Agreement, the Eligible Assignee thereunder shall
be a party to this Agreement and, to the extent of the interest assigned by such
Assignment Agreement, have the rights and obligations of a Lender under this
Agreement, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment Agreement, be released from its obligations
under this Agreement (and, in the case of an Assignment Agreement covering all
of the assigning Lender's rights and obligations under this Agreement, such
Lender shall cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 3.7, 3.8, 3.12, 11.3 and 11.10 with respect to facts and
circumstances occurring prior to the effective date of such assignment). Upon
request, the Borrowers (at their expense) shall execute and deliver a Note to
the assignee Lender. Any
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assignment or transfer by a Lender of rights or obligations under this Agreement
that does not comply with this subsection shall be treated for purposes of this
Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with subsection (d) of this Section.
(c) The Administrative Agent, acting solely for this purpose as an
agent of the Borrowers, shall maintain at the Administrative Agent's Office a
copy of each Assignment Agreement delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitments of,
and principal amounts of the Loans and L/C Obligations owing to, each Lender
pursuant to the terms hereof from time to time (the "REGISTER"). The entries in
the Register shall be conclusive, and the Borrowers, the Administrative Agent
and the Lenders may treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this
Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by the Borrowers and any Lender, at any reasonable time
and from time to time upon reasonable prior notice.
(d) Any Lender may at any time, without the consent of, or notice
to, Parent and the Borrowers or the Administrative Agent, sell participations to
any Person (other than a natural person, Parent, a Borrower or any of Parent's
or any Borrower's Affiliates or Subsidiaries) (each, a "PARTICIPANT") in all or
a portion of such Lender's rights and/or obligations under this Agreement
(including all or a portion of its Commitment and/or the Loans (including a
Revolving Lender's participations in L/C Obligations and/or Swing Line Loans)
owing to it); PROVIDED that (i) such Lender's obligations under this Agreement
shall remain unchanged, (ii) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations and (iii) Parent,
the Borrowers, the Administrative Agent and the other Lenders shall continue to
deal solely and directly with such Lender in connection with such Lender's
rights and obligations under this Agreement. Any agreement or instrument
pursuant to which a Lender sells such a participation shall provide that such
Lender shall retain the sole right to enforce this Agreement and to approve any
amendment, modification or waiver of any provision of this Agreement; PROVIDED
that such agreement or instrument may provide that such Lender will not, without
the consent of the Participant, agree to any amendment, waiver or other
modification described in subsections (b), (c) and (d) of Section 11.2 that
directly affects such Participant. Subject to subsection (e) of this Section,
Parent and the Borrowers agree that each Participant shall be entitled to the
benefits of Sections 3.7, 3.8 and 3.12(d) to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to subsection (b) of
this Section. To the extent permitted by law, each Participant also shall be
entitled to the benefits of Section 11.9 as though it were a Lender, PROVIDED
such Participant agrees to be subject to Section 11.9 as though it were a
Lender.
(e) A Participant shall not be entitled to receive any greater
payment under Section 3.7, 3.8 or 3.12(d) than the applicable Lender would have
been entitled to receive with respect to the participation sold to such
Participant, unless the sale of the participation to such Participant is made
with Parent's and the Borrowers' prior written consent. A Participant that is
incorporated under the laws of a jurisdiction other than the United States of
America or any state thereof shall not be entitled to the benefits of Section
3.12(d) unless Parent and the Borrowers are
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notified of the participation sold to such Participant and such Participant
agrees, for the benefit of Parent and the Borrowers, to comply with Section
11.21 as though it were a Lender.
(f) Any Lender may at any time pledge or assign a security interest
in all or any portion of its rights under this Agreement (including under its
Notes, if any) to secure obligations of such Lender, including any pledge or
assignment to secure obligations to a Federal Reserve Bank; PROVIDED that no
such pledge or assignment shall release such Lender from any of its obligations
hereunder or substitute any such pledgee or assignee for such Lender as a party
hereto.
(g) As used herein, the following terms have the following meanings:
"FUND" means any Person (other than a natural person) that is (or
will be) engaged in making, purchasing, holding or otherwise investing in
commercial loans and similar extensions of credit in the ordinary course of
its business.
"APPROVED FUND" means any Fund that is administered or managed by (a)
a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of
an entity that administers or manages a Lender.
(h) Notwithstanding anything to the contrary contained herein, any
Lender (a "GRANTING LENDER") may grant to a special purpose funding vehicle
identified as such in writing from time to time by the Granting Lender to the
Administrative Agent, Parent and the Borrowers (an "SPC") the option to provide
all or any part of any Committed Loan that such Granting Lender would otherwise
be obligated to make pursuant to this Agreement; PROVIDED that (i) nothing
herein shall constitute a commitment by any SPC to fund any Committed Loan, and
(ii) if an SPC elects not to exercise such option or otherwise fails to make all
or any part of such Committed Loan, the Granting Lender shall be obligated to
make such Committed Loan pursuant to the terms hereof. Each party hereto hereby
agrees that (i) neither the grant to any SPC nor the exercise by any SPC of such
option shall increase the costs or expenses or otherwise increase or change the
obligations of Parent or the Borrowers under this Agreement (including their
obligations under Sections 3.7 or 3.8), (ii) no SPC shall be liable for any
indemnity or similar payment obligation under this Agreement for which a Lender
would be liable, and (iii) the Granting Lender shall for all purposes, including
the approval of any amendment, waiver or other modification of any provision of
any Loan Document, remain the lender of record hereunder. The making of a
Committed Loan by an SPC hereunder shall utilize the Commitment of the Granting
Lender to the same extent, and as if, such Committed Loan were made by such
Granting Lender. In furtherance of the foregoing, each party hereto hereby
agrees (which agreement shall survive the termination of this Agreement) that,
prior to the date that is one year and one day after the payment in full of all
outstanding commercial paper or other senior debt of any SPC, it will not
institute against, or join any other Person in instituting against, such SPC any
bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding
under the laws of the United States or any State thereof with respect to matters
directly related to this Agreement. Notwithstanding anything to the contrary
contained herein, any SPC may (i) with notice to, but without prior consent of
Parent, the Borrowers and the Administrative Agent, assign all or any portion of
its right to receive payment with respect to any Committed Loan to the Granting
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Lender and (ii) disclose on a confidential basis any non-public information
relating to its funding of Committed Loans to any rating agency, commercial
paper dealer or provider of any surety or guarantee or credit or liquidity
enhancement to such SPC.
(i) Notwithstanding anything to the contrary contained herein, any
Lender that is a Fund may create a security interest in all or any portion of
the Loans owing to it and the Note(s), if any, held by it to the trustee for
holders of obligations owed, or securities issued, by such Fund as security for
such obligations or securities, PROVIDED that unless and until such trustee
actually becomes a Lender in compliance with the other provisions of this
Section 11.8, (i) no such pledge shall release the pledging Lender from any of
its obligations under the Loan Documents and (ii) such trustee shall not be
entitled to exercise any of the rights of a Lender under the Loan Documents even
though such trustee may have acquired ownership rights with respect to the
pledged interest through foreclosure or otherwise.
(j) Notwithstanding anything to the contrary contained herein, if at
any time Bank of America assigns all of its Revolving Loan Commitment and
Revolving Loans pursuant to subsection (b) above, Bank of America may, (i) upon
30 days' notice to Parent, the Borrowers and the Lenders, resign as an Issuing
Bank and/or (ii) upon 30 days' notice to Parent and the Borrowers, resign as the
Swing Line Lender. In the event of any such resignation as an Issuing Bank or
Swing Line Lender, Parent and the Borrowers shall be entitled to appoint from
among the Revolving Lenders a successor Issuing Bank or Swing Line Lender
hereunder; PROVIDED, HOWEVER, that no failure by Parent and the Borrowers to
appoint any such successor shall affect the resignation of Bank of America as an
Issuing Bank or the Swing Line Lender, as the case may be. If Bank of America
resigns as an Issuing Bank, it shall retain all the rights and obligations of an
Issuing Bank hereunder with respect to all Letters of Credit outstanding as of
the effective date of its resignation as an Issuing Bank and all L/C Obligations
with respect thereto (including the right to require the Revolving Lenders to
make Revolving Loans or fund risk participations in unreimbursed amounts
pursuant to Section 2.4(g). If Bank of America resigns as Swing Line Lender, it
shall retain all the rights of the Swing Line Lender provided for hereunder with
respect to Swing Line Loans made by it and outstanding as of the effective date
of such resignation, including the right to require the Revolving Lenders to
make Revolving Loans or fund risk participations in outstanding Swing Line Loans
pursuant to Section 2.5.
(k) Notwithstanding anything to the contrary herein, the rights of
the Lenders to make assignment of, and grant participations in, their Pro Rata
Share of the Commitments shall be subject to the approval of any Gaming Board,
to the extent required by applicable Gaming Laws.
11.9 SHARING OF SETOFFS. Each Lender severally agrees that if it, through
the exercise of any right of setoff, banker's lien or counterclaim against
Parent, any Borrower, or otherwise, receives payment of the Obligations held by
it that is ratably more than any other Lender, through any means, receives in
payment of the Obligations held by that Lender, then, subject to applicable
Laws: (a) The Lender exercising the right of setoff, banker's lien or
counterclaim or otherwise receiving such payment shall purchase, and shall be
deemed to have simultaneously purchased, from the other Lender a participation
in the Obligations held by the other Lender and shall pay to the other Lender a
purchase price in an amount so that the share of the Obligations
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held by each Lender after the exercise of the right of setoff, banker's lien or
counterclaim or receipt of payment shall be in the same proportion that existed
prior to the exercise of the right of setoff, banker's lien or counterclaim or
receipt of payment; and (b) Such other adjustments and purchases of
participations shall be made from time to time as shall be equitable to ensure
that all of the Lenders share any payment obtained in respect of the Obligations
ratably in accordance with each Lender's share of the Obligations immediately
prior to, and without taking into account, the payment; PROVIDED that, if all or
any portion of a disproportionate payment obtained as a result of the exercise
of the right of setoff, banker's lien, counterclaim or otherwise is thereafter
recovered from the purchasing Lender by Parent, Borrowers or any Person claiming
through or succeeding to the rights of Parent or Borrowers, the purchase of a
participation shall be rescinded and the purchase price thereof shall be
restored to the extent of the recovery, but without interest. Each Lender that
purchases a participation in the Obligations pursuant to this Section shall from
and after the purchase have the right to give all notices, requests, demands,
directions and other communications under this Agreement with respect to the
portion of the Obligations purchased to the same extent as though the purchasing
Lender were the original owner of the Obligations purchased. Parent and each
Borrower expressly consents to the foregoing arrangements and agrees that any
Lender holding a participation in an Obligation so purchased may exercise any
and all rights of setoff, banker's lien or counterclaim with respect to the
participation as fully as if the Lender were the original owner of the
Obligation purchased.
11.10 INDEMNITY BY PARENT AND BORROWERS. Parent and each Borrower jointly
and severally (but as between Parent and Borrowers, ratably) agrees to
indemnify, save and hold harmless each of the Creditors and the Arranger and
their Affiliates, directors, officers, agents, attorneys and employees
(collectively the "INDEMNITEES") from and against: (a) Any and all claims,
demands, actions or causes of action (EXCEPT a claim, demand, action, or cause
of action for any amount excluded from the definition of "Taxes" in
Section 3.12(d)) if the claim, demand, action or cause of action arises out of
or relates to any act or omission (or alleged act or omission) of Parent, any
Borrower, its Affiliates or any of its officers, directors or shareholders
relating to the Commitment, the use or contemplated use of proceeds of any Loan
or Letter of Credit, or the relationship of Parent, Borrowers and the Creditors
under this Agreement; (b) Any administrative or investigative proceeding by any
Governmental Agency arising out of or related to a claim, demand, action or
cause of action described in clause (a) above; and (c) Any and all liabilities,
losses, costs or expenses (INCLUDING attorneys' fees and the allocated costs of
attorneys employed by any Indemnitee and disbursements of such attorneys and
other professional services) that any Indemnitee suffers or incurs as a result
of the assertion of any foregoing claim, demand, action or cause of action;
PROVIDED that no Indemnitee shall be entitled to indemnification for any loss
caused by its own gross negligence or willful misconduct or for any loss
asserted against it by another Indemnitee. If any claim, demand, action or cause
of action is asserted against any Indemnitee, such Indemnitee shall promptly
notify Parent and Borrowers, but the failure to so promptly notify Parent or
Borrowers shall not affect Parent's and Borrowers' obligations under this
Section unless such failure materially prejudices Parent's or Borrowers' right
to participate in the contest of such claim, demand, action or cause of action,
as hereinafter provided. Such Indemnitee may (and shall, if requested by Parent
and the Borrowers in writing) contest the validity, applicability and amount of
such claim, demand, action or cause of action and shall permit Parent and the
Borrowers to participate in such contest. Any Indemnitee that
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proposes to settle or compromise any claim or proceeding for which Parent or the
Borrowers may be liable for payment of indemnity hereunder shall give Parent and
the Borrowers written notice of the terms of such proposed settlement or
compromise reasonably in advance of settling or compromising such claim or
proceeding and shall obtain Parent's and the Borrowers' prior consent (which
shall not be unreasonably withheld). In connection with any claim, demand,
action or cause of action covered by this Section against more than one
Indemnitee, all such Indemnitees shall be represented by the same legal counsel
(which may be a law firm engaged by the Indemnitees or attorneys employed by an
Indemnitee or a combination of the foregoing) selected by the Indemnitees;
PROVIDED, that if such legal counsel determines in good faith that representing
all such Indemnitees would or could result in a conflict of interest under Laws
or ethical principles applicable to such legal counsel or that a defense or
counterclaim is available to an Indemnitee that is not available to all such
Indemnitees, then to the extent reasonably necessary to avoid such a conflict of
interest or to permit unqualified assertion of such a defense or counterclaim,
each Indemnitee shall be entitled to separate representation, with all such
legal counsel using reasonable efforts to avoid unnecessary duplication of
effort by counsel for all Indemnitees; and FURTHER PROVIDED that the
Administrative Agent (as an Indemnitee) shall at all times be entitled to
representation by separate legal counsel (which may be a law firm or attorneys
employed by the Administrative Agent or a combination of the foregoing). Any
obligation or liability of the Parent and the Borrowers to any Indemnitee under
this Section shall survive the expiration or termination of this Agreement and
the repayment of all Loans and the payment and performance of all other
Obligations owed to the Lenders.
11.11 NONLIABILITY OF THE LENDERS. Parent and each Borrower acknowledges
and agrees that:
(a) Any inspections of any Property of Parent or its Subsidiaries
made by or through the Creditors are solely for purposes of administration of
this Agreement and Parent and the Borrowers are not entitled to rely upon the
same (whether or not such inspections are at the expense of Parent and the
Borrowers);
(b) By accepting, furnishing or approving anything required to be
observed, performed, fulfilled or given to the Creditors pursuant to the Loan
Documents, none of the Creditors shall be deemed to have warranted or
represented the sufficiency, legality, effectiveness or legal effect of the
same, or of any term, provision or condition thereof, and such acceptance,
furnishing or approval thereof shall not constitute a warranty or representation
to anyone with respect thereto by the Creditors;
(c) The relationship among Parent, the Borrowers and the Creditors
is, and shall at all times remain, solely that of borrowers, guarantors and
lenders; none of the Creditors shall under any circumstance be construed to be
partners or joint venturers of Parent, Borrowers or their Affiliates; none of
the Creditors shall under any circumstance be deemed to be in a relationship of
confidence or trust or a fiduciary relationship with Parent or its Affiliates,
or to owe any fiduciary duty to Parent or its Affiliates; none of the Creditors
undertakes or assumes any responsibility or duty to Parent or its Affiliates to
select, review, inspect, supervise, pass judgment upon or inform Parent or its
Affiliates of any matter in connection with their Property or the operations of
Parent or its Affiliates; Parent and its Affiliates shall rely entirely upon
their
73
own judgment with respect to such matters; and any review, inspection,
supervision, exercise of judgment or supply of information undertaken or assumed
by the Creditors in connection with such matters is solely for the protection of
the Creditors and neither Parent, the Borrowers nor any other Person is entitled
to rely thereon; and
(d) The Creditors shall not be responsible or liable to any Person
for any loss, damage, liability or claim of any kind relating to injury or death
to Persons or damage to Property caused by the actions, inaction or negligence
of Parent and/or its Affiliates and Parent and each Borrower hereby indemnifies
and holds the Creditors harmless from any such loss, damage, liability or claim.
11.12 NO THIRD PARTIES BENEFITTED. This Agreement is made for the purpose
of defining and setting forth certain obligations, rights and duties of Parent,
the Borrowers and the Creditors in connection with the Loans, Letters of Credit
and Swing Line Advances, and is made for the sole benefit of Parent, the
Borrowers, the Creditors, and the Creditors' successors and assigns, and,
subject to Section 6.1 successors to Borrowers by permitted merger. Except as
provided in Sections 11.8 and 11.11, no other Person shall have any rights of
any nature hereunder or by reason hereof.
11.13 CONFIDENTIALITY. Each Creditor agrees to hold any confidential
information that it may receive from Parent and its Subsidiaries pursuant to
this Agreement in confidence, except for disclosure: (a) To Affiliates of that
Creditor and to other Creditors; (b) To legal counsel and accountants for Parent
and its Subsidiaries or any Creditor; (c) To other professional advisors to
Parent and its Subsidiaries or any Creditor, PROVIDED THAT the recipient has
accepted such information subject to a confidentiality agreement substantially
similar to this Section 11.13 or has notified such professional advisors of the
confidentiality of such information; (d) To regulatory officials having
jurisdiction over that Creditor; (e) To any Gaming Board having regulatory
jurisdiction over Parent or its Subsidiaries, provided that each Lender agrees
to use its best efforts to notify Parent and the Borrowers of any such
disclosure unless prohibited by applicable Laws; (f) As required by Law or legal
process (provided that the relevant Creditor shall endeavor, to the extent it
may do so under applicable Law, to give Parent and the Borrowers reasonable
prior notice thereof to allow Parent and the Borrowers to seek a protective
order) or in connection with any legal proceeding to which that Creditor, Parent
and any Borrower are adverse parties; and (g) To another financial institution
in connection with a disposition or proposed disposition to that financial
institution of all or part of that Creditor's interests hereunder or a
participation interest in its Notes, provided that the recipient has accepted
such information subject to a confidentiality agreement substantially similar to
this Section. For purposes of the foregoing, "confidential information" shall
mean any information respecting Parent or its Subsidiaries reasonably considered
by Parent and the Borrowers to be confidential, other THAN (i) information
previously filed with any Governmental Agency and available to the public, (ii)
information previously published in any public medium from a source other than,
directly or indirectly, that Lender, and (iii) information previously disclosed
to any Person not associated with Parent or its Affiliates without a
confidentiality agreement substantially similar to this Section. Notwithstanding
anything herein to the contrary, "confidential information" shall not include,
and the Borrower, Parent, Administrative Agent and each Lender (and each
authorized employee, representative, or other authorized person thereof) may
disclose to any and
74
all Persons, without limitation of any kind, the "tax treatment" and "tax
structure" (in each case, within the meaning of Treasury Regulation
Section 1.6011-4) of the transactions contemplated hereby and all materials of
any kind (including opinions or other tax analyses) that are provided to the
Borrower, Parent, Administrative Agent or such Lender relating to such tax
treatment and tax structure; PROVIDED that with respect to any document or
similar item that in either case contains information concerning the tax
treatment or tax structure of the transaction as well as other information, this
sentence shall only apply to such portions of the document or similar item that
relate to the tax treatment or tax structure of the Loans, Letters of Credit and
transactions contemplated hereby. Nothing in this Section shall be construed to
create or give rise to any fiduciary duty on the part of any Creditor to Parent
or the Borrowers.
11.14 REMOVAL OF A LENDER. Parent and the Borrowers shall have the right to
remove a Lender as a party to this Agreement pursuant to this Section in the
event that such Lender (a) requests compensation under Section 3.7 or
Section 3.8 which has not been requested by all other Lenders, in each case by
written notice to the Administrative Agent and such Lender within 60 days
following any such refusal or request, or (b) refuses to consent to certain
proposed changes, waivers, modifications, supplements, terminations, waivers or
consents with respect to this Agreement which have been approved by the
Requisite Lenders as provided in Section 11.2, PROVIDED that no Default or Event
of Default then exists, or (c) is the subject of a Disqualification. If Parent
and the Borrowers are entitled to remove a Lender pursuant to this Section
either:
(a) The Lender being removed shall within five Business Days after
such notice execute and deliver an Assignment Agreement covering that Lender's
Pro Rata Shares in favor of one or more Eligible Assignees designated by Parent
and the Borrowers and reasonably acceptable to the Administrative Agent, subject
to payment of a purchase price by such Eligible Assignee equal to all principal
and accrued interest, fees and other amounts payable to such Lender under this
Agreement through the date of the Assignment Agreement; or
(b) Parent and the Borrowers may reduce the applicable Commitment(s)
pursuant to Section 2.7 (and, for this purpose, the numerical requirements of
such Section shall not apply) by an amount equal to that Lender's Pro Rata
Share, pay and provide to such Lender the amount required by clause (a) above
and release such Lender from its Pro Rata Share (subject, however, to the
requirement that all conditions set forth in Section 8.2 are met as of the date
of such reduction and the payment to the other Lenders of appropriate fees for
the assumption of any such Revolving Lender's participation in all Letters of
Credit and Swing Line Advances then outstanding), in which case the applicable
percentage Pro Rata Shares of the remaining Lenders shall be ratably increased
(but without any increase in the Dollar amount of the Pro Rata Shares of such
Lenders).
11.15 FURTHER ASSURANCES. Parent and its Subsidiaries shall, at their
expense and without expense to the Creditors, do, execute and deliver such
further acts and documents as any Creditor from time to time reasonably requires
for the assuring and confirming unto the Creditors of the rights hereby created
or intended now or hereafter so to be, or for carrying out the intention or
facilitating the performance of the terms of any Loan Document.
75
11.16 INTEGRATION. This Agreement, together with the other Loan Documents,
comprises the complete and integrated agreement of the parties on the subject
matter hereof and supersedes all prior agreements, written or oral, on the
subject matter hereof. In the event of any conflict between the provisions of
this Agreement and those of any other Loan Document, the provisions of this
Agreement shall control and govern; PROVIDED that the inclusion of supplemental
rights or remedies in favor of the Creditors in any other Loan Document shall
not be deemed a conflict with this Agreement. Each Loan Document was drafted
with the joint participation of the respective parties thereto and shall be
construed neither against nor in favor of any party, but rather in accordance
with the fair meaning thereof.
11.17 GOVERNING LAW. (a) Except to the extent otherwise provided therein,
each Loan Document shall be governed by, and construed and enforced in
accordance with, the local Laws of California, without regard to the choice of
laws or conflicts of laws principles thereof.
(b) Any legal action or proceeding with respect to this Agreement or
any other Loan Document may be brought in the courts of the State of California
sitting in Los Angeles or of the United States for the central district of such
state, and by execution and delivery of this Agreement, the Borrowers, the
Administrative Agent and each Lender consents, for itself and in respect of its
property, to the non-exclusive jurisdiction of those courts. The Borrowers, the
Administrative Agent and each Lender irrevocably waives any objection, including
any objection to the laying of venue or based on the grounds of forum non
conveniens, which it may now or hereafter have to the bringing of any action or
proceeding in such jurisdiction in respect of any Loan Document or other
document related thereto. The Borrowers, the Administrative Agent and each
Lender waives personal service of any summons, complaint or other process, which
may be made by any other means permitted by the law of such state.
11.18 SEVERABILITY OF PROVISIONS. Any provision in any Loan Document that
is held to be inoperative, unenforceable or invalid as to any party or in any
jurisdiction shall, as to that party or jurisdiction, be inoperative,
unenforceable or invalid without affecting the remaining provisions or the
operation, enforceability or validity of that provision as to any other party or
in any other jurisdiction, and to this end the provisions of all Loan Documents
are declared to be severable.
11.19 HEADINGS. Article and Section headings in this Agreement and the
other Loan Documents are included for convenience of reference only and are not
part of this Agreement or the other Loan Documents for any other purpose.
11.20 TIME OF THE ESSENCE. Time is of the essence of the Loan Documents.
11.21 FOREIGN LENDERS AND PARTICIPANTS. Each Lender that is not a "United
States person" within the meaning of Section 7701(a)(30) of the Code shall
deliver to Parent and the Administrative Agent, prior to receipt of any payment
subject to withholding under the Code (or upon accepting an assignment of an
interest herein), two duly signed completed copies of either IRS Form W-8BEN or
any successor thereto (relating to such Lender and entitling it to an exemption
from, or reduction of, withholding tax on all payments to be made to such Lender
by Parent and the Borrowers pursuant to this Agreement) or IRS Form W-8ECI or
any successor
76
thereto (relating to all payments to be made to such Lender by Parent and the
Borrowers pursuant to this Agreement) or such other evidence satisfactory to
Parent, the Borrowers and the Administrative Agent that such Lender is entitled
to an exemption from, or reduction of, U.S. withholding tax, including any
exemption pursuant to Section 881(c) of the Code. Thereafter and from time to
time, each such Person shall (a) promptly submit to Parent (with a copy to the
Administrative Agent), such additional duly completed and signed copies of one
of such forms (or such successor forms as shall be adopted from time to time by
the relevant United States taxing authorities) as may then be available under
then current United States laws and regulations to avoid, or such evidence as is
satisfactory to Parent and the Borrowers and the Administrative Agent of any
available exemption from, United States withholding taxes in respect of all
payments to be made to such Person by Parent and the Borrowers pursuant to this
Agreement and (b) take such steps as shall not be materially disadvantageous to
it, in the reasonable judgment of such Lender, and as may be reasonably
necessary (including the re-designation of its Eurodollar Lending Office, if
any) to avoid any requirement of applicable laws that Parent or the Borrowers
make any deduction or withholding for taxes from amounts payable to such Person.
11.22 GAMING BOARDS. The Creditors agree to cooperate with all Gaming
Boards in connection with the administration of their regulatory jurisdiction
over Parent and its Subsidiaries, INCLUDING the provision of such documents or
other information as may be requested by any such Gaming Board relating to
Parent or any of its Subsidiaries or to the Loan Documents.
11.23 NATURE OF THE BORROWERS' OBLIGATIONS. The Company hereby agrees that
it shall be liable for all of the Obligations on a joint and several basis,
notwithstanding which of the Borrowers may have directly received the proceeds
of any particular Loan or Advance or the benefit of a particular Letter of
Credit. Notwithstanding anything to the contrary set forth herein, the principal
liability of each Borrower hereafter designated under Section 2.9 for Loans,
Swing Line Advances and Letters of Credit shall be limited to Loans and Letters
of Credit made to that Borrower and Letters of Credit issued for the account of
that Borrower under the Aggregate Sublimit of that Borrower. Each of the
Borrowers acknowledges and agrees that, for purposes of the Loan Documents,
Parent and its Subsidiaries constitute a single integrated financial enterprise
and that each receives a benefit from the availability of credit under this
Agreement. Borrowers each waive all defenses arising under the Laws of
suretyship, to the extent such Laws are applicable, in connection with their
obligations under this Agreement. Without limiting the foregoing, each Borrower
agrees to the Joint Borrower Provisions set forth in Exhibit E, incorporated by
this reference.
11.24 DESIGNATED SENIOR DEBT. Parent and each Borrower hereby irrevocably
designate the Obligations and this Agreement as "Designated Senior Indebtedness"
and "Senior Indebtedness" within the meanings given to those terms in
Section 1.1 of the Supplemental Indenture dated December 9, 1998 entered into
with respect to the Existing Subordinated Debt among the Company, Parent and IBJ
Xxxxxxxxx Bank & Trust Company and any replacement, amendment or modification of
such Existing Subordinated Debt.
11.25 GAMING REGULATIONS. Each party to this Agreement hereby acknowledges
that the consummation of the transactions contemplated by the Loan Documents is
subject to applicable
77
Gaming Laws (and Parent and Borrower represent and warrant that all requisite
approvals necessary thereunder to enter into the transactions contemplated
hereby have been duly obtained except as set forth in Schedule 4.3).
11.26 WAIVER OF RIGHT TO TRIAL BY JURY. EACH SIGNATORY TO THIS AGREEMENT
HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION
OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH
OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE SIGNATORIES HERETO OR ANY OF
THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN
EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN
CONTRACT OR TORT OR OTHERWISE; AND EACH SIGNATORY HEREBY AGREES AND CONSENTS
THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT
TRIAL WITHOUT A JURY, AND THAT ANY SIGNATORY TO THIS AGREEMENT MAY FILE AN
ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN
EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT
TO TRIAL BY JURY.
11.27 PURPORTED ORAL AMENDMENTS. PARENT AND EACH BORROWER EXPRESSLY
ACKNOWLEDGE THAT THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS MAY ONLY BE AMENDED
OR MODIFIED, OR THE PROVISIONS HEREOF OR THEREOF WAIVED OR SUPPLEMENTED, BY AN
INSTRUMENT IN WRITING THAT COMPLIES WITH SECTION 11.2. PARENT AND EACH BORROWER
AGREES THAT IT WILL NOT RELY ON ANY COURSE OF DEALING, COURSE OF PERFORMANCE, OR
ORAL OR WRITTEN STATEMENTS BY ANY REPRESENTATIVE OF ANY OF THE CREDITORS THAT
DOES NOT COMPLY WITH SECTION 11.2 TO EFFECT AN AMENDMENT, MODIFICATION, WAIVER
OR SUPPLEMENT TO THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS.
78
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
XXXXXX'X ENTERTAINMENT, INC.
By:
---------------------------------------------
Xxxxxxx X. Xxxxxx, Senior Vice President,
Chief Financial Officer and Treasurer
XXXXXX'X OPERATING COMPANY, INC.
By:
---------------------------------------------
Xxxxxxx X. Xxxxxx, Senior Vice President,
Chief Financial Officer and
Treasurer
ADDRESS FOR NOTICES FOR PARENT AND EACH BORROWER:
Xxxxxx'x Entertainment, Inc.
Xxx Xxxxxx'x Xxxxx
Xxx Xxxxx, Xxxxxx 00000
Attn: Xxxxxxx X. Xxxxxx, Senior Vice President,
Chief Financial Officer and Treasurer
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
WITH A COPY TO:
Xxxxxx'x Entertainment, Inc.
Xxx Xxxxxx'x Xxxxx
Xxx Xxxxx, Xxxxxx 00000
Attn: General Counsel
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
BANK OF AMERICA, N.A., as Administrative
Agent
By:
---------------------------------------------
Xxxx Xxxxxx, Vice President
ADDRESS:
Bank of America, N.A.
CA9-706-17-54
000 Xxxxx Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxx Xxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
BANK OF AMERICA, N.A., as a Lender
By:
---------------------------------------------
Xxxxx Xxxxx, Managing Director
ADDRESS:
Bank of America, N.A.
CA9-706-17-54
000 Xxxxx Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx Xxxxx, Managing Director
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
WITH A COPY TO:
Bank of America, N.A.
CA9-706-17-54
000 Xxxxx Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx Xxxxx, Managing Director
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
BANK OF HAWAII
By:
---------------------------------------------
Name:
--------------------------------------------
Title:
-------------------------------------------
ADDRESS:
Bank of Hawaii
000 Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxx, Xxxxxx 00000
Attn: Xxxxxxx Xxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
THE GOVERNOR AND COMPANY OF THE
BANK OF IRELAND
By:
---------------------------------------------
Name:
--------------------------------------------
Title:
-------------------------------------------
ADDRESS:
Bank of Ireland International Finance
La Xxxxxx Xxxxx
Xxxxxxxxxxxxx Xxxxxxxxx Xxxxxxxx Xxxxxx
Xxxxxx 0
Xxxxxxx
Attn: Xxx Xxxxx, Director
Telecopier: 011-3531-829-0129
Telephone: 000-0000-000-0000
WITH A COPY TO:
Bank of Ireland International Finance
00 Xxxxx Xxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Attn: Xxxx Xxxxxx, Vice President
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
THE BANK OF NEW YORK
By:
---------------------------------------------
Name:
--------------------------------------------
Title:
-------------------------------------------
ADDRESS:
The Bank of New York
00000 Xxxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxxx, Vice President
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
THE BANK OF NOVA SCOTIA
By:
---------------------------------------------
Name:
--------------------------------------------
Title:
-------------------------------------------
ADDRESS:
The Bank of Nova Scotia
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxx Xxxxxxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
WITH A COPY TO:
The Bank of Nova Scotia
000 Xxxxxxxxx Xxxxxx X.X.
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxx Xxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
BANK OF TAIWAN, NEW YORK AGENCY
By:
---------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
ADDRESS:
Bank of Taiwan, New York Agency
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Shiou-Jsu Yeh, Vice President and General
Manager
Telecopier: (000) 000-0000
Telephone: (000) 000-0000 Ext. 11
BNP PARIBAS
By:
---------------------------------------------
Name:
--------------------------------------------
Title:
-------------------------------------------
ADDRESS:
BNP Paribas, Loan Servicing
000 0xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
WITH A COPY TO:
BNP Paribas
000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx X. X. Xx, Director
Telecopier: (000) 000-0000
Telephone: (000) 000-0000/000-0000
CIBC INC.
By:
---------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Managing Director,
CIBC World Markets Corp., as Agent
ADDRESS:
CIBC Inc.
00000 Xxxxxxxx Xxxxxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxx X. Xxxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
CITICORP USA, INC.
By:
---------------------------------------------
Name:
--------------------------------------------
Title:
-------------------------------------------
ADDRESS:
CITICORP USA, INC.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx Boom
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
WITH A COPY TO:
CITICORP USA, INC.
0 Xxxxx Xxx, Xxxxx 000
Xxx Xxxxxx, Xxxxxxxx 00000
Attn: Xxxxx Xxxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
COMMERZBANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES
By:
---------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
By:
---------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
ADDRESS:
Commerzbank AG, Los Angeles Branch
000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000
XxxXxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx Xxxxxxxxxxx, Senior Vice President
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
DEUTSCHE BANK TRUST COMPANY AMERICAS
By:
---------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
ADDRESS:
Deutsche Bank Securities Inc.
00 Xxxx 00xx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxxxx, Vice President
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
E. SUN COMMERCIAL BANK, LTD., LOS ANGELES
BRANCH
By:
---------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
ADDRESS:
E. Sun Commercial Bank, Ltd., Los Angeles Branch
00000 Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxxx of Industry, California 91748
Attn: Xxxxx Xxx, Assistant Vice President
Telecopier: (000) 000-0000
Telephone: (000) 000-0000, Ext. 225
ERSTE BANK NEW YORK
By:
---------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
By:
---------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
ADDRESS:
Erste Bank New York
000 Xxxx Xxxxxx
Xxxx Xxxxxxxx 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxx Xxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
FIRST TENNESSEE BANK NATIONAL ASSOCIATION
By:
---------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
ADDRESS:
First Tennessee Bank, National Association
000 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxxxxxx 00000-0000
Attn: Xxxxx X. Xxxxx, Xx., Senior Vice President
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
FLEET NATIONAL BANK
By:
---------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
ADDRESS:
Fleet National Bank
0000 Xxxxx 0 Xxxxx
Xxxxxxxx, Xxx Xxxxxx 00000
Attn: Xxxxxx X. Xxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
HIBERNIA NATIONAL BANK
By:
---------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
ADDRESS:
Hibernia National Bank
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
Attn: Xxxx X. Wales, Vice President
Telecopier: (000) 000-0000
Telephone: 000-000-0000
JPMORGAN CHASE BANK
By:
---------------------------------------------
Name:
--------------------------------------------
Title:
-------------------------------------------
ADDRESS:
JPMorgan Chase Bank
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxxxx, Managing Director
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
KEYBANK NATIONAL ASSOCIATION
By:
---------------------------------------------
Name:
--------------------------------------------
Title:
-------------------------------------------
ADDRESS:
KeyBank National Association
WA-31-18-0512
000 000xx XX, 0xx Xxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxx, Portfolio Manager
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
OAK BROOK BANK
By:
---------------------------------------------
Name:
--------------------------------------------
Title:
-------------------------------------------
ADDRESS:
Oak Brook Bank
0000 00xx Xxxxxx
Xxx Xxxxx, Xxxxxxxx 00000
Attn: Xxxxx Xxxxxx, Vice President
Telecopier: (000) 000-0000
Telephone: (000) 000-0000, Ext. 224
THE ROYAL BANK OF SCOTLAND PLC
By:
---------------------------------------------
Name:
-------------------------------------------
Title:
------------------------------------------
ADDRESS:
The Royal Bank of Scotland plc
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxx, Associate
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
SUMITOMO MITSUI BANKING CORPORATION, LOS ANGELES
OFFICE
By:
---------------------------------------------
Name:
--------------------------------------------
Title:
-------------------------------------------
ADDRESS:
Sumitomo Mitsui Banking Corporation
000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Attn: Xx Xxxxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
U.S. BANK NATIONAL ASSOCIATION
By:
---------------------------------------------
Name:
--------------------------------------------
Title:
-------------------------------------------
ADDRESS:
U. S. Bank National Association
0000 Xxxx Xxxxxx
Xxx Xxxxx, XX 00000
Attn: Xxxx Xxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
WACHOVIA BANK, NATIONAL ASSOCIATION
By:
---------------------------------------------
Name:
--------------------------------------------
Title:
-------------------------------------------
ADDRESS:
Wachovia Bank, National Association
000 Xxxxxxxxx Xxxxxx, XX
28th Floor, GA 8050
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx Xxxxx, Managing Director
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
XXXXX FARGO BANK, N.A.
By:
---------------------------------------------
Name:
--------------------------------------------
Title:
-------------------------------------------
ADDRESS:
Xxxxx Fargo Bank, N.A.
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxx, XX 00000
Attn: Xxx Xxxxxx, Vice President/Senior
Relationship Manager
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
WHITNEY NATIONAL BANK
By:
---------------------------------------------
Name:
--------------------------------------------
Title:
-------------------------------------------
ADDRESS:
Whitney National Bank
000 Xx. Xxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxx, Senior Vice President
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
ARTICLE 1 DEFINITIONS AND ACCOUNTING TERMS...........................................................1
1.1 Defined Terms..................................................................................1
1.2 Use of Defined Terms..........................................................................23
1.3 Accounting Terms..............................................................................23
1.4 Rounding......................................................................................23
1.5 Exhibits and Schedules........................................................................23
1.6 Miscellaneous Terms...........................................................................23
ARTICLE 2 LOANS AND LETTERS OF CREDIT...............................................................23
2.1 Committed Loans-General.......................................................................23
2.2 Base Rate Loans...............................................................................25
2.3 Eurodollar Rate Loans.........................................................................25
2.4 Letters of Credit.............................................................................26
2.5 Swing Line....................................................................................29
2.6 Voluntary Increase to the Revolving Loan Commitment...........................................31
2.7 Voluntary Reduction of the Revolving Loan Commitment..........................................32
2.8 Optional Termination of Commitments...........................................................32
2.9 Additional Borrowers..........................................................................32
2.10 Administrative Agent's Right to Assume Funds Available for Advances...........................33
ARTICLE 3 PAYMENTS AND FEES.........................................................................33
3.1 Principal and Interest........................................................................33
3.2 Arrangement Fee...............................................................................35
3.3 Upfront Fees..................................................................................35
3.4 Facility Fees.................................................................................35
3.5 Letter of Credit Fees.........................................................................35
3.6 Agency Fees...................................................................................36
3.7 Increased Commitment Costs....................................................................36
3.8 Eurodollar Costs and Related Matters..........................................................36
3.9 Default Rate..................................................................................39
3.10 Computation of Interest and Fees..............................................................40
3.11 Non-Business Days.............................................................................40
3.12 Manner and Treatment of Payments..............................................................40
3.13 Funding Sources...............................................................................41
3.14 Failure to Charge Not Subsequent Waiver.......................................................41
3.15 Administrative Agent's Right to Assume Payments Will be Made by Borrowers.....................41
3.16 Fee Determination Detail......................................................................42
3.17 Survivability.................................................................................42
ARTICLE 4 REPRESENTATIONS AND WARRANTIES............................................................42
4.1 Existence and Qualification; Power; Compliance With Laws......................................42
4.2 Authority; Compliance With Other Agreements and Instruments and Government Regulations........42
4.3 No Governmental Approvals Required............................................................43
4.4 Significant Subsidiaries......................................................................43
4.5 Financial Statements..........................................................................44
4.6 No Other Liabilities; No Material Adverse Effect..............................................44
4.7 Title to Property.............................................................................44
4.8 Litigation....................................................................................44
4.9 Binding Obligations...........................................................................44
4.10 No Default....................................................................................45
4.11 ERISA.........................................................................................45
4.12 Regulations T, U and X; Investment Company Act................................................45
4.13 Disclosure....................................................................................45
4.14 Tax Liability.................................................................................45
4.15 Projections...................................................................................46
4.16 Hazardous Materials...........................................................................46
4.17 Gaming Laws...................................................................................46
4.18 Solvency......................................................................................46
4.19 Tax Shelter Regulations.......................................................................46
ARTICLE 5 AFFIRMATIVE COVENANTS.....................................................................46
5.1 Preservation of Existence.....................................................................46
5.2 Maintenance of Properties.....................................................................47
5.3 Maintenance of Insurance......................................................................47
5.4 Compliance With Laws..........................................................................47
5.5 Inspection Rights.............................................................................47
5.6 Keeping of Records and Books of Account.......................................................47
5.7 Use of Proceeds...............................................................................48
ARTICLE 6 NEGATIVE COVENANTS........................................................................48
6.1 Consolidations, Mergers and Sales of Assets...................................................48
6.2 Hostile Tender Offers.........................................................................48
6.3 Change in Nature of Business..................................................................48
6.4 Liens, Negative Pledges, Sale Leasebacks and Rights of Others.................................48
6.5 Total Debt Ratio..............................................................................50
6.6 Interest Coverage Ratio.......................................................................50
6.7 Subsidiary Indebtedness.......................................................................50
ARTICLE 7 INFORMATION AND REPORTING REQUIREMENTS....................................................51
7.1 Financial and Business Information............................................................51
7.2 Compliance Certificates.......................................................................53
ARTICLE 8 CONDITIONS................................................................................53
8.1 Initial Advances, Etc.........................................................................53
8.2 Any Increasing Advance, Etc...................................................................55
ARTICLE 9 EVENTS OF DEFAULT AND REMEDIES UPON EVENT OF DEFAULT......................................55
9.1 Events of Default.............................................................................55
9.2 Remedies Upon Event of Default................................................................57
ARTICLE 10 ADMINISTRATIVE AGENT......................................................................59
10.1 Appointment and Authorization.................................................................59
10.2 Administrative Agent and Affiliates...........................................................59
10.3 Proportionate Interest in any Collateral......................................................60
10.4 Lenders' Credit Decisions.....................................................................60
10.5 Action by Administrative Agent................................................................60
10.6 Liability of Administrative Agent.............................................................61
10.7 Indemnification...............................................................................62
10.8 Successor Administrative Agent................................................................62
10.9 No Obligations of Parent or Borrowers.........................................................63
ARTICLE 11 MISCELLANEOUS.............................................................................63
11.1 Cumulative Remedies; No Waiver................................................................63
11.2 Amendments; Consents..........................................................................63
11.3 Costs, Expenses and Taxes.....................................................................64
11.4 Nature of Lenders' Obligations................................................................65
11.5 Survival of Representations and Warranties....................................................65
11.6 Notices.......................................................................................65
11.7 Execution of Loan Documents...................................................................66
11.8 Successors and Assigns........................................................................66
11.9 Sharing of Setoffs............................................................................70
11.10 Indemnity by Parent and Borrowers.............................................................70
11.11 Nonliability of the Lenders...................................................................71
11.12 No Third Parties Benefitted...................................................................72
11.13 Confidentiality...............................................................................72
11.14 Removal of a Lender...........................................................................73
11.15 Further Assurances............................................................................74
11.16 Integration...................................................................................74
11.17 Governing Law.................................................................................74
11.18 Severability of Provisions....................................................................74
11.19 Headings......................................................................................75
11.20 Time of the Essence...........................................................................75
11.21 Foreign Lenders and Participants..............................................................75
11.22 Gaming Boards.................................................................................75
11.23 Nature of the Borrowers' Obligations..........................................................75
11.24 Designated Senior Debt........................................................................76
11.25 Gaming Regulations............................................................................76
11.26 Waiver of Right to Trial by Jury..............................................................76
11.27 Purported Oral Amendments.....................................................................76
Exhibits
A - Assignment Agreement
B - Committed Advance Revolving Note
C - Committed Advance Term Note
D - Election to Become a Borrower
E - Joint Borrower Provisions
F - Compliance Certificate
G - Opinions of Counsel
H - Parent Guaranty
I - Request for Letter of Credit
J - Request for Loan
Schedules
1.2 Continuing Letters of Credit
4.3 Governmental Approvals
4.4 Significant Subsidiaries
4.7 Existing Liens, Negative Pledges and Rights of Others
