Exhibit 10.1
EXECUTION
AMENDED AND RESTATED 364-DAY LOAN AGREEMENT
Dated as of April 26, 2001
among
XXXXXX'X ENTERTAINMENT, INC.
as Guarantor
XXXXXX'X OPERATING COMPANY, INC.
MARINA ASSOCIATES
as Borrowers
The Lenders, Syndication Agent, Documentation Agents
And Co-Documentation Agents Herein Named
and
BANK OF AMERICA, N.A.,
as Administrative Agent
BANC OF AMERICA SECURITIES LLC
Lead Arranger and Sole Book Manager
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TABLE OF CONTENTS
PAGE
Article 1
DEFINITIONS AND ACCOUNTING TERMS 2
1.1 Defined Terms 2
1.2 Use of Defined Terms 24
1.3 Accounting Terms 24
1.4 Rounding 25
1.5 Exhibits and Schedules 25
1.6 Miscellaneous Terms 25
Article 2
LOANS AND LETTERS OF CREDIT 26
2.1 Loans-General 26
2.2 Base Rate Loans 27
2.3 Eurodollar Rate Loans 27
2.4 Voluntary Reduction of Commitment 28
2.5 Optional Termination of Commitment 28
2.6 Additional Borrowers 28
2.7 Administrative Agent's Right to Assume Funds Available for Advances 29
2.8 Extension of the Maturity Date 29
2.9 Voluntary Increase to the Commitment 30
Article 3
PAYMENTS AND FEES 32
3.1 Principal and Interest 32
3.2 Arrangement Fee 33
3.3 Upfront Fees 33
3.4 Facility Fees 33
3.5 Agency Fees 33
3.6 Increased Commitment Costs 34
3.7 Eurodollar Costs and Related Matters 34
3.8 Default Rate 37
3.9 Computation of Interest and Fees 38
3.10 Non-Business Days 38
3.11 Manner and Treatment of Payments 38
3.12 Funding Sources 39
3.13 Failure to Charge Not Subsequent Waiver 39
3.14 Administrative Agent's Right to Assume Payments Will be
Made by Borrowers 39
3.15 Fee Determination Detail 40
3.16 Survivability 40
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Article 4
REPRESENTATIONS AND WARRANTIES 41
4.1 Existence and Qualification; Power; Compliance With Laws 41
4.2 Authority; Compliance With Other Agreements and Instruments and
Government Regulations 41
4.3 No Governmental Approvals Required 42
4.4 Significant Subsidiaries 42
4.5 Financial Statements 43
4.6 No Other Liabilities; No Material Adverse Effect 43
4.7 Title to Property 43
4.8 Litigation 43
4.9 Binding Obligations 43
4.10 No Default 44
4.11 ERISA 44
4.12 Regulations T, U and X; Investment Company Act 44
4.13 Disclosure 44
4.14 Tax Liability 44
4.15 Projections 45
4.16 Hazardous Materials. 45
4.17 Gaming Laws 45
4.18 Solvency 45
Article 5
AFFIRMATIVE COVENANTS 46
5.1 Preservation of Existence 46
5.2 Maintenance of Properties 46
5.3 Maintenance of Insurance 46
5.4 Compliance With Laws 46
5.5 Inspection Rights 46
5.6 Keeping of Records and Books of Account 47
5.7 Use of Proceeds 47
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
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Article 7
INFORMATION AND REPORTING REQUIREMENTS 52
7.1 Financial and Business Information 52
7.2 Compliance Certificates 54
Article 8
CONDITIONS 55
8.1 Initial Advances, Etc 55
8.2 Any Increasing Advance, Etc. 56
Article 9
EVENTS OF DEFAULT AND REMEDIES UPON EVENT OF DEFAULT 58
9.1 Events of Default 58
9.2 Remedies Upon Event of Default 60
Article 10
THE ADMINISTRATIVE AGENT 63
10.1 Appointment and Authorization 63
10.2 Administrative Agent and Affiliates 63
10.3 Proportionate Interest in any Collateral 63
10.4 Lenders' Credit Decisions 63
10.5 Action by Administrative Agent 64
10.6 Liability of Administrative Agent 65
10.7 Indemnification 66
10.8 Successor Administrative Agent 66
10.9 No Obligations of Parent or Borrowers 67
Article 11
MISCELLANEOUS 68
11.1 Cumulative Remedies; No Waiver 68
11.2 Amendments; Consents 68
11.3 Costs, Expenses and Taxes 69
11.4 Nature of Lenders' Obligations 70
11.5 Survival of Representations and Warranties 70
11.6 Notices 70
11.7 Execution of Loan Documents 71
11.8 Binding Effect; Assignment 71
11.9 Sharing of Setoffs 74
11.10 Indemnity by Parent and Borrowers 74
11.11 Nonliability of the Lenders 75
11.12 No Third Parties Benefited 76
11.13 Confidentiality 76
11.14 Removal of a Lender 77
11.15 Further Assurances 78
11.16 Integration 78
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11.17 Governing Law 78
11.18 Severability of Provisions 78
11.19 Headings 78
11.20 Time of the Essence 78
11.21 Foreign Lenders and Participants 79
11.22 Gaming Boards 79
11.23 Nature of the Borrowers' Obligations 79
11.26 Waiver of Right to Trial by Jury 80
11.27 Purported Oral Amendments 80
EXHIBITS
A - Assignment Agreement
B - Compliance Certificate
C - Note
D - Opinions of Counsel
E - Parent Guaranty
F - Request for Loan
G - Election to Become a Borrower
H - Joint Borrower Provisions
SCHEDULES
4.3 Governmental Approvals
4.4 Significant Subsidiaries
4.7 Existing Liens, Negative Pledges and Rights of Others
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AMENDED AND RESTATED 364-DAY LOAN AGREEMENT
Dated as of April 26, 2001
This AMENDED AND RESTATED 364-DAY LOAN AGREEMENT ("Agreement") is
entered into among Xxxxxx'x Operating Company, Inc., a Delaware corporation
("Company"), Marina Associates, a New Jersey general partnership ("Marina" and
together with the Company and such other Subsiries that become Borrowers
pursuant to Section 2.6 hereof, 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"),
Bankers Trust Company, as Syndication Agent, CIBC World Markets Corp. and
Societe Generale, as Documentation Agents, Commerzbank AG 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 has
served as Lead Arranger and Sole Book Manager.
RECITALS
A. Parent and Borrowers have heretofore entered into a 364-Day Loan
Agreement dated as of April 30, 1999, pursuant to which a $300,000,000
credit facility was extended to the Borrowers. The credit facilities under
such 364-Day Loan Agreement have heretofore been increased to $375,000,000
and the maturity thereof extended to April 26, 2001 (the "Existing Loan
Agreement").
B. Parent and Borrowers have requested that the Lenders amend and restate
the Existing Loan Agreement in its entirety in the manner set forth herein
and to extend the maturity of the Existing Loan Agreement for an
additional 364 day period.
C. 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.
D. The principal Obligations of Marina for Loans hereunder shall be
limited to the amount of Loans borrowed by Marina under its Aggregate
Sublimit.
E. Red River Entertainment of Shreveport Partnership in Commendam, a
Louisiana limited partnership which has heretofore been added to the
Existing Loan Agreement as an additional Borrower, shall concurrently
herewith cease to be a Borrower under this Agreement.
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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, N.A., 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 to a Borrower by any Lender in
accordance with its Pro Rata Share pursuant to Section 2.1.
"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 SUBLIMIT" means (a) with respect to Marina $500,000,000,
and (b) with respect to each other Subsidiary of Parent which hereafter
becomes a Borrower, such aggregate amount as shall be established in
accordance with Section 2.6.
"AGREEMENT" means this Amended and Restated 364-Day Loan Agreement,
either as originally executed or as it may from time to time be
supplemented, modified, amended, restated or extended.
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"ASSIGNMENT AGREEMENT" means an Assignment Agreement substantially
in the form of Exhibit A.
"BANK OF AMERICA" means Bank of America, N.A., its successors and
assigns.
"BASE RATE" means, as of any date of determination, the rate per
annum (rounded upwards, if necessary, to the next 1/100 of 1%) equal to
the HIGHER OF (a) the Reference Rate in effect on such date (calculated on
the basis of a year of 365 or 366 days and the actual number of days
elapsed) and (b) the Federal Funds Rate in effect on such date (calculated
on the basis of a year of 360 days and the actual number of days elapsed)
PLUS 1/2 of 1% (50 basis points).
"BASE RATE ADVANCE" and "BASE RATE LOAN" mean, respectively, an
Advance or a 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, Marina and each other
Wholly-Owned Subsidiary which is hereafter designated as a Borrower in
accordance with Section 2.6, 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 either of the Debt
Ratings have then declined to below Investment Grade, the occurrence of
any of the following events without the requirement of 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
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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
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 Borrowers and the Lenders of the date
that is the Closing Date.
"CO-DOCUMENTATION AGENTS" means those Lenders listed in the preamble
of this Agreement as such. No Co-Documentation Agent shall have any
additional rights, duties or obligations under this Agreement or the other
Loan Documents by reason of its being a Co-Documentation Agent.
"CODE" means the Internal Revenue Code of 1986, as amended or
replaced and as in effect from time to time.
"COMMITMENT" means, subject to Sections 2.7, 2.8, 2.9 and 11.14,
$328,000,000. As of the Closing Date, each Lender has a Pro Rata Share
equal to the amount of the Note issued to that Lender, which amount is as
set forth in a written advice from the Lead Arranger to such Lender.
"COMPANY" means Xxxxxx'x Operating Company, Inc., its successors and
permitted assigns.
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"COMPLIANCE CERTIFICATE" means a certificate substantially in the
form of Exhibit B, 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, 2001, 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.
"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
Lender, Syndication Agent, Documentation Agents, Co-Documentation Agents,
the Lead Arranger, the Co-Lead Arranger 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.
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"DEFAULT RATE" means the interest rate prescribed in Section 3.8.
"DEFEASED DEBT" means (a) the $58,300,000 aggregate principal amount
of Showboat's First Mortgage Bonds due 2008, (b) the $2,400,000 aggregate
outstanding principal amount of Showboat's Senior Subordinated Notes due
2009, and (c) any other 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.
"DOCUMENTATION AGENTS" means those Lenders listed in the preamble of
this Agreement as such. No Documentation Agent shall have any additional
rights, duties
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or obligations under this Agreement or the other Loan Documents by reason
of its being a Documentation Agent.
"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,
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 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 G to this Agreement,
properly completed and duly executed by each required party thereto.
"ELIGIBLE ASSIGNEE" means (a) another Lender, (b) with respect to
any Lender, any Affiliate of that Lender, (c) any commercial bank having a
combined capital and surplus of $100,000,000 or more which is (i)
organized under the laws of the United States or any state thereof, or
(ii) the domestic branch or agency of any such commercial bank organized
under the laws of a country which is a member of the Organization for
Economic Cooperation and Development, (d) any (i) savings bank, savings
and loan association or similar financial institution or (ii) insurance
company engaged in the business of writing insurance which, in either case
(A) has a net worth of $200,000,000 or more, (B) is engaged in the
business of lending money and extending credit under credit facilities
substantially similar to those extended under this Agreement and (C) is
operationally and procedurally able to meet the obligations of a Lender
hereunder to the same degree as a commercial bank and (e) any other
financial institution (INCLUDING a mutual fund or other fund) having total
assets of $250,000,000 or more which meets the requirements set forth in
subclauses (B) and (C) of clause (d) above; PROVIDED that each Eligible
Assignee must either (a) be organized under the Laws of the United States
of America, any State thereof or the District of Columbia or (b) be
organized under the Laws of the Cayman Islands or any country which is a
member of the Organization for Economic Cooperation and Development, or a
political subdivision of such a country, and (i) act hereunder through a
branch, agency or funding office located in the United States of America
and (ii) otherwise be exempt from withholding of tax on interest and
delivers
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Form 1001 or Form 4224 pursuant to Section 11.21 at the time of any
assignment pursuant to Section 11.8.
"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
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I 52.00
II 65.00
III 75.00
IV 85.00
V 105.00
VI 137.50
"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(b) and ending 1, 2, 3 or 6 months thereafter (or, with the
written consent of all of the Lenders, any other period), as specified by
that Borrower in the applicable Request for Loan; PROVIDED that:
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(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; and
(c) No Eurodollar Period shall extend beyond the Maturity
Date.
"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 1/16 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 1/16 of one percent)
determined pursuant to the following formula:
Eurodollar Eurodollar Quoted Rate
----------------------
Rate = 1.00 - Eurodollar Reserve
Percentage
"EURODOLLAR RATE ADVANCE" and "EURODOLLAR RATE LOAN" mean,
respectively, a 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 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
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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 SENIOR NOTES" means 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.
"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
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I 8.00
II 10.00
III 12.50
IV 15.00
V 20.00
VI 25.00
"FEDERAL FUNDS RATE" means, as of any date of determination, the
rate set forth in the weekly statistical release designated as H.15(519),
or any successor publication, published by the Federal Reserve Board
(including any such successor, "H.15(519)") for such date opposite the
caption "Federal Funds (Effective)". If for any relevant date such rate is
not yet published in H.15(519), the rate for such date will be the rate
set forth in the daily statistical release designated as the Composite
3:30 p.m. Quotations for U.S. government securities, or any successor
publication, published by the Federal Reserve Bank of New York (including
any such successor, the "Composite 3:30 p.m. Quotation") for such date
under the caption "Federal Funds Effective Rate". If on any relevant date
the appropriate rate for such date is not yet published in either
H.15(519) or the Composite 3:30 p.m. Quotations, the rate for such date
will be the arithmetic mean of the rates for the last transaction in
overnight Federal funds arranged prior to 9:00 a.m. (New York City time)
on that date by each of three leading brokers of Federal funds
transactions in New York City selected by the Administrative Agent. For
purposes of this Agreement, any change in the Base Rate due to a change in
the
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Federal Funds Rate shall be effective as of the opening of business on
the effective date of such change.
"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.
"FIVE YEAR COMMITMENTS" means the lending commitment of the lenders
under the Five Year Loan Agreement.
"FIVE YEAR LOAN AGREEMENT" means the Five Year Loan Agreement dated
as of April 20, 1999, among the Lenders party to this Agreement on the
Effective Date and Bank of America, as Administrative Agent, as amended as
of April 3, 2000 by an Amendment No. 1 thereto, and concurrently herewith
by an Amendment No. 2, or hereafter amended.
"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.
"HAZARDOUS MATERIALS" means substances defined as hazardous
substances pursuant to the Comprehensive Environmental Response,
Compensation and Liability
-11-
Act of 1980, 42 X.X.X.xx. 9601 et seq., or as hazardous, toxic or
pollutant pursuant to the Hazardous Materials Transportation Act, 49
X.X.X.xx. 1801, et seq., the Resource Conservation and Recovery Act, 42
X.X.X.xx. 6901, et seq., the Hazardous Waste Control Law,
California
Health & Safety Codess. 25100, et seq., or in any other applicable
Hazardous Materials Law, in each case as such Laws are amended from time
to time.
"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
Parent 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.
-12-
"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 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.
"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.
"LEAD ARRANGER" means Banc of America Securities, LLC. The Lead
Arranger shall have no duties or obligations under this Agreement or the
other Loan Documents.
"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
-13-
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
Parent Guaranty, any Request for Loan, 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 25, 2002, or such later anniversary
thereof as may be established pursuant to Section 2.8.
"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.
"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
-14-
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 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.
"Note" means the promissory note made by each Borrower to a Lender
evidencing the Advances under that Lender's Pro Rata Share 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.
"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 general counsel, and (b) the favorable written legal opinion
of Xxxxxxx X. Xxxx, XX, Assistant General Counsel of Parent and the
Borrowers, substantially in the form of
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Exhibit D, together with copies of all factual certificates and legal
opinions upon which such counsel have relied.
"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 E, either as originally executed or as it may from time to time be
supplemented, modified, amended, restated or extended.
"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;
-16-
(d) easements, exceptions, reservations, or other agreements
for the purpose of pipelines, conduits, cables, wire communication
lines, power lines and substations, streets, trails, 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;
-17-
(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;
(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
-18-
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.
"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 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 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 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:
Xxxxx'x/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 Pricing Level VI
PROVIDED that if Xxxxx'x 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.
-19-
"PRICING PERIOD" means (a) the period commencing on the Closing Date
and ending on May 31, 2001, (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 Commitment is
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, the percentage
of the Commitment held by that Lender.
"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 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 Xxxxx'x 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.
"REFERENCE RATE" means the rate of interest publicly announced from
time to time by Bank of America as its "reference rate" or the similar
prime rate or reference rate announced by any successor Administrative
Agent. Bank of America's reference 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 the Reference Rate announced by
Bank of America or any successor Administrative Agent shall take effect at
the opening of business on the day specified in the public announcement of
such change.
"REGULATIONS D, T, U AND X" means Regulations D, T, U and X, as at
any time amended, of the Board of Governors of the Federal Reserve System,
or any other regulations in substance substituted therefor.
"REQUEST FOR LOAN" means a written request for a Loan substantially
in the form of Exhibit F, signed by a Responsible Official of a Borrower,
on behalf of that
-20-
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 if the
Commitment is then in effect, Lenders having in the aggregate 51% or more
of the Commitment then in effect and (b) as of any date of determination
if the Commitment has then been terminated, Lenders holding 51% of the
aggregate principal amount of the outstanding Loans.
"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 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.
"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 Group, 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
-21-
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.
"SHOWBOAT" means Showboat, Inc., a Nevada corporation.
"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.
"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.
-22-
"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" means, as of any date of determination and with respect
to any Person, any corporation or partnership (whether or not, in either
case, characterized as such or as a "joint venture"), whether now existing
or hereafter organized or acquired: (a) in the case of a corporation, of
which a majority of the securities having ordinary voting power for the
election of directors or other governing body (other than securities
having such power only by reason of the happening of a contingency) are at
the time beneficially owned by such Person and/or one or more Subsidiaries
of such Person, or (b) in the case of a partnership, of which a majority
of the partnership or other ownership interests having ordinary management
power are at the time beneficially owned by such Person and/or one or more
of its Subsidiaries.
"SYNDICATION AGENT" means Bankers Trust Company. Bankers Trust
Company 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.
"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, (2) in the case
of any other Contingent Obligations, demand for payment is made with
respect thereto, or (3) Parent's independent auditors have quantified the
amount of Parent's and its Subsidiaries with respect to letters of credit
and Contingent Obligations as liabilities on Parent's consolidated balance
sheet in accordance with Generally Accepted Accounting Principles (as
opposed to merely noted in the footnotes to any such balance sheet) and
the amount of any such individual liability is in excess of $50,000,000,
in which case the amount thereof shall be deemed to be the amount so
quantified from time to time.
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"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.
"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.
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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 LOANS-GENERAL.
(a) Subject to the terms and conditions set forth in this Agreement,
at any time and from time to time from the Closing Date through and including
the Maturity Date, each Lender shall, pro rata according to that Lender's Pro
Rata Share of the then applicable Commitment, make Advances in Dollars to
Borrowers in such amounts as any Borrower may request PROVIDED that (a) giving
effect to such Advances, the aggregate principal amount of the outstanding Loans
shall not exceed the Commitment at any time, (b) without the consent of all of
the Lenders, the aggregate principal amount of the outstanding Loans to Marina
plus the outstanding principal amount of the loans outstanding to Marina under
the Five Year Commitment shall not exceed Marina's Aggregate Sublimit at any
time, and (c) without the consent of all of the Lenders, the aggregate principal
amount of the outstanding Loans to each Borrower hereafter designated as such
pursuant to Section 2.6 plus the outstanding principal amount of the loans
outstanding to such Borrower under the Five Year Commitment 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
Commitment without premium or penalty.
(b) Subject to the next sentence, each 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,
and (iv) 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.
(c) Promptly following receipt of a Request for Loan, the
Administrative Agent shall notify each Lender by 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 Loan. Not later than 11:00 a.m.,
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 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 Advances
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shall be credited on that date in immediately available funds to the Designated
Deposit Account.
(d) Unless the Requisite Lenders otherwise consent, each Loan shall
be an integral multiple of $1,000,000 and shall be not less than $10,000,000.
(e) The Advances made by each Lender to each Borrower shall be
evidenced by a Note issued by that Borrower and made payable to that Lender.
(f) A Request for Loan shall be irrevocable upon the Administrative
Agent's first notification thereof.
(g) If no Request for Loan (or telephonic request for loan referred
to in the second sentence of Section 2.1(b), 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 its Notes
to remain the same and the Lenders shall make the Advances necessary to make
such Loan notwithstanding Sections 2.1(b), 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(b), 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 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(b), 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.
(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 Lenders by telephone or telecopier (and
if by telephone, promptly confirmed by telecopier).
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(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 VOLUNTARY REDUCTION OF 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 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
Commitment being reduced or terminated. The Administrative Agent shall promptly
notify the Lenders of any reduction of the Commitment under this Section.
2.5 OPTIONAL TERMINATION OF COMMITMENT. 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
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 Commitment. In any such case the Commitment 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 to the extent
that there are then any Obligations outstanding, the same shall be immediately
due and payable.
2.6 ADDITIONAL BORROWERS. From time to time following the Closing
Date and when no Default or Event of Default exists, Parent, Company and Marina
(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 this Agreement 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) Notes;
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Promptly following the submission of the foregoing documents, the Administrative
Agent shall inform the Lenders of the proposed designation and the proposed
Aggregate Sublimit. Unless the Requisite 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.
2.7 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 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 Commitment 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.
2.8 EXTENSION OF THE MATURITY DATE. The Maturity Date may be
extended for 364 day periods at the request of the Parent and with the written
consent of all of the Lenders (which may be withheld in the sole and absolute
discretion of each Lender) pursuant to this Section. Not earlier than sixty days
prior to the then effective Maturity Date, but not later than forty days prior
to such Maturity Date, the Parent and the Borrowers may deliver to the
Administrative Agent and the Lenders a written request for a 364 day extension
of the Maturity Date together with a Certificate of a Responsible Official
signed by a Senior Officer on behalf of Parent and each Borrower stating that
the representations and warranties contained in Article 4 (OTHER THAN (i)
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 this Agreement, (ii) as otherwise disclosed by the Parent and the Borrowers
and approved in writing by the Requisite Lenders and (iii) Sections 4.4(a), 4.6
(first sentence), and 4.15) shall be true and correct on and as of the date of
such Certificate. Each Lender shall
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notify the Administrative Agent within thirty days (but not sooner than 45 days
prior to the Maturity Date) following its receipt of such a Certificate whether
(in its sole and absolute discretion) it consents to such request and the
Administrative Agent shall, after receiving the notifications from all of the
Lenders or the expiration of such period, whichever is earlier, notify Parent
and the Borrowers and the Lenders of the results thereof. If all of the Lenders
have consented, then the Maturity Date shall, effective on the then-current
Maturity Date be extended for 364 days from the then current Maturity Date.
If Lenders holding at least 66 2/3% of the Commitment consent to the
request for extension, but one or more Lenders (each a "Non-Consenting Lender")
notify the Administrative Agent that it will not consent to the request for
extension (or fail to notify the Managing Agent in writing of its consent within
the required period), Parent and the Borrowers may (i) cause such Non-Consenting
Lender to be removed as a Lender under this Agreement pursuant to Section
11.14(a), (ii) voluntarily terminate the Pro Rata Share of Non-Consenting Lender
in accordance with Section 11.14(b), or (iii) utilize a combination of the
procedures described in clauses (i) and (ii) of this Section. If such removal is
accomplished by assignment to an Eligible Assignee which has consented to the
requested extension, then the request for extension shall be granted with the
effect as set forth above. If such removal is accomplished by a voluntary
reduction of the Commitment, then the Administrative Agent shall notify all of
the Lenders in writing thereof.
2.9 VOLUNTARY INCREASE TO THE COMMITMENT.
(a) Provided that no Default or Event of Default then exists, at any
time and from time to time following the Closing Date, Parent and the
Borrowers may, upon at least 5 days notice to the Administrative Agent
(which shall promptly provide a copy of such notice to the Lenders),
propose to increase the aggregate amount of the Commitment to an amount
not to exceed $375,000,000 (the amount of any such increase of the
Commitment being referred to as the "Increased Commitment").
(b) Parent and the Borrowers may designate any Person which is
reasonably acceptable to the Administrative Agent and 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 assume a portion of the
Increased Commitment and (i) in the case of any such Person that is an
existing Lender, increase its Commitment and (ii) in the case of any other
such Person (an "Additional Lender"), become a party to this Agreement.
(c) An increase in the aggregate amount of the 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 Commitment is to be
increased, setting forth the new 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
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with such evidence of appropriate corporate authorization on the part of
Parent and the Borrowers and the Additional Lenders with respect to the
Increased Commitments as the Administrative Agent may reasonably request.
(d) No Lender shall have any obligation to increase its Pro Rata
Share of the Commitment, and any decision to increase its Pro Rata Share
shall be in its sole discretion.
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Article 3
PAYMENTS AND FEES
3.1 PRINCIPAL AND INTEREST.
(a) Interest shall be payable on the outstanding daily unpaid
principal amount of each Advance from the date thereof until payment in full is
made and shall accrue and be payable at the rates set forth or provided for
herein before and after 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 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. 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 3.8, 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.
(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;
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(ii) the amount, if any, by which the aggregate principal
amount of the outstanding Loans at any time exceed the Commitment shall be
payable immediately, and shall be applied to the Notes; and
(iii) the principal Indebtedness evidenced by the Notes shall
in any event be payable on the Maturity Date.
(f) The Notes may, at any time and from time to time, voluntarily be
paid or prepaid in whole or in part without premium or penalty, EXCEPT that 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 3.7(d).
3.2 ARRANGEMENT FEE. On the Closing Date, Parent and the Borrowers
shall pay to the Administrative Agent, for the sole account of the Arranger, an
arrangement fee in the amount heretofore agreed upon by letter agreement among
Parent, the Borrowers and the Arranger. Such arrangement fee is for the services
of the Arranger in arranging the credit facilities under this Agreement and is
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 Borrowers
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 Arranger 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 Pro Rata Share, a facility fee equal to (a)
the Facility Fee Rate per annum for that Pricing Period TIMES (b) the average
daily amount by of the Commitment (whether drawn or undrawn) during that Pricing
Period.
3.5 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
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on the date paid. The agency fee paid to the Administrative Agent is solely for
its own account and is nonrefundable.
3.6 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 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.
3.7 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, its Notes 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, its Notes 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
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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, its Notes, its
obligation to make Eurodollar Rate Advances or this Agreement, or
shall otherwise materially affect any of the same;
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, its Notes 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, its Notes 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
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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
3.7(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
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 3.7(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 3.7(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 3.7(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
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(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
3.7(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 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 3.7(d) shall be conclusive in the absence of manifest error.
3.8 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 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
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compounded monthly, on the last day of each calendar month, to the fullest
extent permitted by applicable Laws.
3.9 COMPUTATION OF INTEREST AND FEES. Computation of interest on
Base Rate Loans calculated with reference to the Reference 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.
3.10 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.
3.11 MANNER AND TREATMENT OF PAYMENTS.
(a) Each payment hereunder (EXCEPT payments pursuant to Sections
3.6, 3.7, 11.3, and 11.10) 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). 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 Loan shall be
applied pro rata according to the outstanding Advances made by each Lender
comprising such Loan.
(c) Each Lender shall use its best efforts to keep a record 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
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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 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 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.
3.12 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.
3.13 FAILURE TO CHARGE NOT SUBSEQUENT WAIVER. Any decision by the
Creditors not to require payment of any interest (INCLUDING interest arising
under Section 3.8), 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 3.8), fee,
cost or other amount payable under any Loan Document on any other or subsequent
occasion.
3.14 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
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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.
3.15 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.
3.16 SURVIVABILITY. All of the Parent's and the Borrowers'
obligations under Sections 3.6 and 3.7 shall survive for ninety days following
the date on which the Commitment is terminated and all Loans hereunder are fully
paid.
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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 that:
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;
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(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 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, 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 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 Subsidiary has accomplished all
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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, 2000. The financial
statements described above fairly present in all material 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, 2000.
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.
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4.11 ERISA.
(a) With respect to each Pension Plan:
(i) such Pension Plan complies in all material respects with
ERISA and any other applicable Laws to the extent that noncompliance could
reasonably be expected to have a Material Adverse Effect;
(ii) such Pension Plan has not incurred any "accumulated
funding deficiency" (as defined in Section 302 of ERISA) that could
reasonably be expected to have a Material Adverse Effect;
(iii) no "reportable event" (as defined in Section 4043 of
ERISA) has occurred that could reasonably be expected to have a Material
Adverse Effect; and
(iv) neither 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 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.
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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.
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.
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Article 5
AFFIRMATIVE COVENANTS
So long as any Advance remains unpaid, or any other Obligation
remains unpaid or unperformed, or any portion of the Commitment remains in
force, Parent and each Borrower shall, and shall cause 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.
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
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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 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.
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Article 6
NEGATIVE COVENANTS
So long as any Advance remains unpaid, or any other Obligation
remains unpaid or unperformed, or any portion of the Commitment remains in
force, Parent and each Borrower 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:
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(a) Permitted Encumbrances and Permitted Rights of Others;
(b) Liens and Negative Pledges under the Loan Documents and
under the Five Year Loan Agreement;
(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;
(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
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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;
(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; and
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; and
(e) Intercompany Debt, PROVIDED such Indebtedness is not subject to
any Lien (other than Liens in favor of the Administrative Agent and the
Lenders);
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(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 Subsidiaries issuing guarantees permitted by this
Section 6.7(f) shall not exceed 5% of Net Tangible Assets at any time; and
(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.
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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 Commitment 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
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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 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;
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(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; and
(j) 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
Commitment 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.
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Article 8
CONDITIONS
8.1 INITIAL ADVANCES, ETC. The obligation of each Lender to make
the initial Advance to be made by it is subject to the following conditions
precedent, each of which shall be satisfied prior to the making of the initial
Advances (unless all of the Lenders, in their sole and absolute discretion,
shall agree otherwise):
(a) The Administrative Agent shall have received all of the
following, each of which shall be originals unless otherwise specified,
each properly executed by a Responsible Official of each party thereto,
each dated as of the Closing Date 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 each Borrower;
(2) Notes executed by each Borrower in favor of each
Lender, each in a principal amount equal to that Lender's Pro Rata
Share;
(3) the Parent Guaranty executed by Parent;
(4) with respect to the Parent and each other Borrower,
such documentation as the Administrative Agent may require to
establish the due organization, valid existence and good standing of
Parent and each Borrower, 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 thereto, bylaws and
amendments thereto, certificates of good standing, certificates of
corporate resolutions, incumbency certificates and Certificates of
Responsible Officials;
(5) the Opinions of Counsel;
(6) 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;
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(7) a Certificate of a Responsible Official signed on
Parent's and the Borrowers' behalf by a Senior Officer setting forth
the Total Debt Ratio as of March 31, 2001 and the Debt Rating as of
the Closing Date;
(8) a Certificate of a Responsible Official signed on
Parent's and the Borrowers' behalf by a Senior Officer certifying
that the conditions specified in Sections 8.1(e) and 8.1(f) have
been satisfied;
(9) a copy of the Parent's and its Subsidiaries' audited
consolidated annual financial statements for the Fiscal Year ended
December 31, 2000; and
(10) such other assurances, certificates, documents,
consents or opinions as the Administrative Agent reasonably may
require.
(b) The initial Loans shall have been used or shall
concurrently be used to refinance the obligations of the Borrowers under
the Existing Loan Agreement.
(c) The arrangement fee, upfront fees and agency fees payable
pursuant to Sections 3.2, 3.3 and 3.5 shall have been paid.
(d) The reasonable costs and expenses of the Administrative
Agent and the Lead Arranger 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
Borrowers contained in Article 4 shall be true and correct.
(f) Parent, Borrowers 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 Advance which would increase the aggregate principal amount of the
outstanding 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, 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;
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(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 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(b), if
applicable) in compliance with Article 2; and
(d) the Administrative Agent shall have received, in form and
substance satisfactory to the Administrative Agent, such other assurances,
certificates, documents or consents related to the foregoing as the
Administrative Agent or Requisite Lenders reasonably may require.
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Article 9
EVENTS OF DEFAULT AND REMEDIES UPON EVENT OF DEFAULT
9.1 EVENTS OF DEFAULT. The existence or occurrence of any one or
more of the following events, whatever the reason therefor and under any
circumstances whatsoever, shall constitute an Event of Default:
(a) Any Borrower fails to pay any principal on any Note, or
any portion thereof, on the date when due; or
(b) Parent or any Borrower fails to pay any interest on any of
the Notes, or any fees under Sections 3.4 or 3.5, or any portion thereof,
within five Business Days after the date when due; or fails to pay any
other fee or amount payable to the Lenders under any Loan Document, or any
portion thereof, within five Business Days after demand therefor; or
(c) Parent or any Borrower fails, immediately upon notice from
the Administrative Agent, to comply with any of the covenants contained in
Article 6 (OTHER THAN the covenant contained in Section 6.3); 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 including without
limitation the Five Year Loan Agreement, 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
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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
(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
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(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 or Nevada 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):
(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
Commitment 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 Commitment 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):
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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 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 Commitment 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.
(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 remedies as are provided by Law or
equity.
(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
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Documents, or prevent the exercise, or continued exercise, of rights or
remedies of the Lenders hereunder or thereunder or at Law or in equity.
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Article 10
THE ADMINISTRATIVE AGENT
10.1 APPOINTMENT AND AUTHORIZATION. 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.
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
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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 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.
(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.
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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 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
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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.
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, and
11.10, 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
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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.
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Article 11
MISCELLANEOUS
11.1 CUMULATIVE REMEDIES; NO WAIVER. The rights, powers, privileges
and remedies of the Creditors provided herein or in any Note or other Loan
Document are cumulative and not exclusive of any right, power, privilege or
remedy provided by Law or equity. No failure or delay on the part of 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 without prejudicing the Creditors rights to assert them in
whole or in part in respect of any other Loan.
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 or the Pro Rata Share of any Lender
or decrease the amount of any 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;
(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 to extend the term of the
Commitment (except as set forth in Section 2.8);
(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
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(e) To amend any provision of this Agreement that expressly
requires the consent or approval of all the 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 (i) replace such non-consenting Lender with one or more Eligible Assignees in
accordance with Section 11.14(a) if such Eligible Assignee consents to the
proposed amendment, modification, supplement, termination, waiver or consent, or
(ii) reduce the Commitment in accordance with Section 11.14(b) or any
combination of the foregoing, provided that each such non-consenting Lender
shall be either replaced as set forth in clause (i) or eliminated as set forth
in clause (ii).
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
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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 other Lenders of their obligations to make initial
Advances. A default by any Lender will not increase the 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
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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 BINDING EFFECT; ASSIGNMENT.
(a) This Agreement and the other Loan Documents will be binding upon
and inure to the benefit of Parent, Borrowers, the Creditors, and their
respective successors and assigns, EXCEPT that Parent and Borrowers may not
assign their rights hereunder or thereunder or any interest herein or therein
without the prior written consent of all the Lenders (any purported assignment
by Parent or any Borrower in violation of this Section being VOID AB INITIO).
Each Lender represents that it is not acquiring its Notes with a view to the
distribution thereof within the meaning of the Securities Act of 1933, as
amended (subject to any requirement that disposition of such Notes must be
within the control of such Lender). Any Lender may at any time pledge its Notes
or any other instrument evidencing its rights as a Lender under this Agreement
to a Federal Reserve Bank, but no such pledge shall release that Lender from its
obligations hereunder or grant to such Federal Reserve Bank the rights of a
Lender hereunder absent foreclosure of such pledge.
(b) From time to time following the Closing Date, each Lender may
assign to one or more Eligible Assignees all or any portion of its Pro Rata
Share and its Notes; PROVIDED that (i) such Eligible Assignee, if not then a
Lender or an Affiliate of the assigning Lender having a combined capital and
surplus in excess of $100,000,000, shall be approved by each of the
Administrative Agent (which approval shall not be unreasonably withheld) and the
Parent and the Borrowers (which approval shall not be unreasonably withheld and
will not be required if an Event of Default has occurred and remains
continuing), (ii) such assignment shall be evidenced by an Assignment Agreement,
a copy of which shall be furnished to the Administrative Agent, (iii) EXCEPT in
the case of an assignment to an Affiliate of the assigning Lender, to another
Lender or of the entire remaining Commitment of the assigning Lender, the
assignment shall not assign a Pro Rata Share which is less than $5,000,000, and
(iv) the effective date of any such assignment shall be as specified in the
Assignment Agreement, but not earlier than the date which is five Business Days
after the date the Administrative Agent has received the Assignment Agreement.
Upon the effective date of such Assignment Agreement, the Eligible Assignee
named therein shall be a Lender for all purposes of this Agreement, with the Pro
Rata Share therein set forth and, to the extent of such Pro Rata Share, the
assigning Lender shall be released from its further obligations under this
Agreement and the other Loan Documents. Each Borrower agrees that it shall
execute and deliver (against delivery by the assigning Lender to the Borrowers
of its Notes) to such assignee Lender, Notes evidencing that assignee Lender's
Pro Rata Share, and to the
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assigning Lender, Notes evidencing the remaining balance Pro Rata Share retained
by the assigning Lender.
(c) By executing and delivering an Assignment Agreement, the
Eligible Assignee thereunder acknowledges and agrees that: (i) other than the
representation and warranty that it is the legal and beneficial owner of the Pro
Rata Share being assigned thereby free and clear of any adverse claim, the
assigning Lender has made no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with this Agreement or the execution, legality,
validity, enforceability, genuineness or sufficiency of this Agreement or any
other Loan Document; (ii) the assigning Lender has made no representation or
warranty and assumes no responsibility with respect to the financial condition
of the Parent or its Subsidiaries or the performance by the Parent or its
Subsidiaries of the Obligations; (iii) it has received a copy of this Agreement
and the other Loan Documents, together with copies of the most recent financial
statements delivered pursuant to Section 7.1 and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into such Assignment Agreement; (iv) it will, independently
and without reliance upon any other Creditor and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement; (v) it
appoints and authorizes the Administrative Agent to take such action and to
exercise such powers under this Agreement and the Loan Documents as are
delegated to the Administrative Agent by this Agreement; and (vi) it will
perform in accordance with their terms all of the obligations which by the terms
of this Agreement are required to be performed by it as a Lender.
(d) The Administrative Agent shall maintain a copy of each
Assignment Agreement delivered to it. After receipt of a completed Assignment
Agreement executed by any Lender and an Eligible Assignee, and receipt (except
in the case of the assignment to an Affiliate of the Assignor) of an assignment
fee of $3,500 from such Eligible Assignee, the Administrative Agent shall
confirm the effectiveness of the assignment to the parties thereto, Parent and
Borrowers.
(e) Each Lender may from time to time grant participations in a
portion of its Pro Rata Share, in each case to one or more banks or other
financial institutions (INCLUDING another Lender); PROVIDED, HOWEVER, that (i)
such Lender's obligations under the Loan Documents shall remain unchanged, (ii)
such Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations, (iii) the participating banks or other
financial institutions shall not be a Lender hereunder for any purpose EXCEPT,
if the participation agreement so provides, for the purposes of Sections 3.6,
3.7 and 11.10, but only to the extent that the cost of such benefits to Parent
and Borrowers does not exceed the cost which Parent and the Borrowers would have
incurred in respect of such Lender absent the participation, (iv) Parent, the
Borrowers and the other Creditors shall continue to deal solely and directly
with such Lender in connection with such Lender's rights and obligations under
this Agreement, (v) the participation interest shall not restrict an increase in
the Commitment, or in the granting Lender's Pro Rata Share, so long as the
amount of the participation interest
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is not affected thereby, and (vi) the consent of the holder of such
participation interest shall not be required for amendments or waivers of
provisions of the Loan Documents OTHER THAN those which (A) extend the Maturity
Date or any other date upon which any payment of money is due to the Lender
granting the participation, (B) reduce the rate of interest on the Notes of such
Lender, any fee or any other monetary amount payable to that Lender, or (C)
reduce the amount of any installment of principal due under the Notes of that
Lender.
(f) Notwithstanding anything in this Section to the contrary, the
rights of the Lenders to make assignment of, and grant participations in, their
Pro Rata Share of the Commitment shall be subject to the approval of any Gaming
Board, to the extent required by applicable Gaming Laws.
(g) Notwithstanding anything to the contrary contained herein, any
Lender (a "Granting Lender") may grant to a special purpose funding vehicle (an
"SPC") of such Granting Lender, identified as such in writing from time to time
by the Granting Lender to the Administrative Agent, Parent and the Borrowers,
the option to provide to the Borrowers all or any part of any Loan that such
Granting Lender would otherwise be obligated to make to the Borrowers pursuant
to Sections 2.1, 2.2 or 2.3, provided that (i) nothing herein shall constitute a
commitment to make any Loan by any SPC and (ii) if an SPC elects not to exercise
such option or otherwise fails to provide all or any part of such Loan, the
Granting Lender shall be obligated to make such Loan pursuant to the terms
hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of
the Granting Lender to the same extent, and as if, such Loan were made by the
Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for
any indemnity or similar payment obligation under this Agreement (all liability
for which shall remain with the related Granting Lender). In furtherance of the
foregoing, each party hereto hereby agrees (which agreement shall survive the
termination of this Agreement) that, prior to the date that is one year and one
day after the payment in full of all outstanding senior indebtedness of any SPC,
it will not institute against, or join any other person in instituting against,
such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings or similar proceedings under the laws of the United States or any
State thereof, PROVIDED THAT the Granting Lender for each SPC hereby agrees to
indemnify, save, and hold harmless each other party hereto for any loss, cost,
damage and expense arising out of their inability to institute any such
proceeding against its SPC. In addition, notwithstanding anything to the
contrary contained in this Section 11.8, any SPC may (i) with notice to, but
without the prior written consent of, Parent, the Borrowers or the
Administrative Agent and without paying any processing fee therefor, assign all
or a portion of its interests in any Loans to its Granting Lender or to any
financial institutions providing liquidity and/or credit facilities to or for
the account of such SPC to fund the Loans made by such SPC or to support the
securities (if any) issued by such SPC to fund such Loans (but nothing contained
herein shall be construed in derogation of the obligation of the Granting Lender
to make Loans hereunder), PROVIDED THAT neither the consent of the SPC or of any
such assignee shall be required for amendments or waivers of provisions of the
Loan Documents except for those amendments or waivers for which the consent of
participants is required under Section 11.8(e)(vi), and (ii) disclose on a
confidential basis (in the same manner described in Section 11.13) any
non-public information relating to its Loans to any rating
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agency, commercial paper dealer or provider of a surety, guarantee or credit or
liquidity enhancement to such SPC.
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 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
3.11(d)) arising out of or in connection with this Agreement, the transactions
contemplated hereby or, the use or contemplated use of proceeds of any Loan, 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
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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 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
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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 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 BENEFITED. 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, 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 11.10, 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
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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. 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) refuses to consent to an extension of the
Maturity Date requested by Parent and the Borrowers in accordance with Section
2.8 which has been consented to by Lenders holding Pro Rata Share equal to or
greater than 66 2/3% of the Commitment, or (b) requests compensation under
Section 3.6 or Section 3.7 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 (c) 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 Required Lenders as provided in Section 11.2, PROVIDED that no Default or
Event of Default then exists, or (d) 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 Share 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 Commitment
pursuant to Section 2.4 (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
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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), in
which case the 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.
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. 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.
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, and each holder
of a participation interest herein, that is incorporated under the Laws of a
jurisdiction other than the United States of America or any state thereof shall
deliver to Parent (with a copy to the Administrative Agent), within twenty days
after the Closing Date (or after accepting an Assignment Agreement or receiving
a participation interest herein pursuant to Section 11.8, if applicable) two
duly completed copies, signed by a Responsible Official, of either Form 1001
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(relating to such Person and entitling it to a complete exemption from
withholding on all payments to be made to such Person by Parent and the
Borrowers pursuant to this Agreement) or Form 4224 (relating to all payments to
be made to such Person by Parent and the Borrowers pursuant to this Agreement)
of the United States Internal Revenue Service or such other evidence (INCLUDING,
if reasonably necessary, Form W-9) satisfactory to Parent and the Borrowers and
the Administrative Agent that no withholding under the federal income tax laws
is required with respect to such Person. 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. Notwithstanding anything to the
contrary set forth herein, the principal liability of Marina and each Borrower
hereafter designated under Section 2.6 for Loans shall be limited to Loans made
to 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 H, 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.
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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 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).
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.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the date first above written.
XXXXXX'X ENTERTAINMENT, INC.
By:
-----------------------------------------------------
Xxxxxxx X. Xxxxxx, Vice President and Treasurer
XXXXXX'X OPERATING COMPANY, INC.
By:
-----------------------------------------------------
Xxxxxxx X. Xxxxxx, Vice President and Treasurer
MARINA ASSOCIATES
By: Xxxxxx'x New Jersey, Inc., general partner
By:_______________________________________
Xxxxxxx X. Xxxxxx, authorized signatory
By: Xxxxxx'x Atlantic City, Inc., general partner
By:_______________________________________
Xxxxxxx X. Xxxxxx, authorized signatory
Address for notices for Parent and each Borrower:
0 Xxxxxx'x Xxxxx
Xxx Xxxxx XX 00000-0000
Attn: Xxxxxxx X. Xxxxxx, Vice President and Treasurer
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
[XXXXXX'X 364-
DAY LOAN AGREEMENT]
- S-1 - [SIGNATURE PAGE]
BANK OF AMERICA, N.A., as Administrative Agent
By: ________________________________________
Xxxxxx Xxxxxxx, Vice President
Address:
Bank of America, N.A.
000 Xxxxx Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx Xxxxxxx
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.
000 Xxxxx Xxxxxx Xxxxxx, #0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx Xxxxx, Managing Director
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
With a copy to:
Bank of America, N.A.
000 Xxxxx Xxxxxx Xxxxxx (LA-5777)
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx Xxxxx, Managing Director
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
[XXXXXX'X 364-
DAY LOAN AGREEMENT]
- S-2 - [SIGNATURE PAGE]
THE BANK OF NEW YORK
By: _____________________________________________
Title: ____________________________________________
Address for notices:
The Bank of New York
Xxx Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn.: ____________________________
Facsimile: (212) ____________________
Telephone: (212) ____________________
[XXXXXX'X 364-
DAY LOAN AGREEMENT]
- S-3 - [SIGNATURE PAGE]
THE BANK OF NOVA SCOTIA
By: _____________________________________________
Title: ____________________________________________
Address for notices:
The Bank of Nova Scotia
Atlanta Agency
Suite 2700
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attn.: Xxxxxxx Xxxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
[XXXXXX'X 364-
DAY LOAN AGREEMENT]
- S-4 - [SIGNATURE PAGE]
BANKERS TRUST COMPANY
By: _____________________________________________
Title: ____________________________________________
By: _____________________________________________
Title: ____________________________________________
Address for notices:
Bankers Trust Company
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn.: _____________________________
Facsimile: (___) _____________________
Telephone: (___) _____________________
[XXXXXX'X 364-DAY LOAN AGREEMENT]
- S-5 - [SIGNATURE PAGE]
CIBC INC.
By: _____________________________________________
Title: ____________________________________________
Address for notices:
CIBC World Markets Corp.
Two Paces West
0000 Xxxxx Xxxxx Xxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attn.: Xxxxxx Xxxxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
With a copy to:
CIBC World Markets Corp.
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxxx Xxxxxxxxx
Facsimile: (000) 000-0000
Telephone: (000)000-0000
[XXXXXX'X 364-DAY LOAN AGREEMENT]
- S-6 - [SIGNATURE PAGE]
CITICORP USA, INC.
By: _____________________________________________
Title: ____________________________________________
Address for domestic notices:
Citicorp USA, Inc.
_____________________________________________
_____________________________________________
Attn.: _____________________________________
Facsimile: (____) _________________________
Telephone: (____) _________________________
Address for eurodollar notices:
Citicorp USA, INC.
_____________________________________________
_____________________________________________
Attn.: _____________________________________
Facsimile: (____) _________________________
Telephone: (____) _________________________
[XXXXXX'X 364-DAY LOAN AGREEMENT]
- S-7 - [SIGNATURE PAGE]
COMERICA WEST INCORPORATED
By: _____________________________________________
Xxxx X. Xxxxxxx
Account Officer
Address for notices:
Comerica West Incorporated
0000 Xxxxxx Xxxxxx Xxxxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxx 00000
Attn.: Xxxxxx X. XxXxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
[XXXXXX'X 364-DAY LOAN AGREEMENT]
- S-9 - [SIGNATURE PAGE]
COMMERZBANK AG, NEW YORK AND GRAND CAYMAN BRANCHES
By: _____________________________________________
Title: ___________________________________________
By: _____________________________________________
Title: ___________________________________________
Address for notices:
Commerzbank AG - Los Angeles Branch
000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn.: Xxxxxx Xxxxxxxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
[XXXXXX'X 364-DAY LOAN AGREEMENT]
- S-10 - [SIGNATURE PAGE]
CREDIT SUISSE FIRST BOSTON
By: _____________________________________________
Title: ____________________________________________
By: _____________________________________________
Title: ____________________________________________
Address for domestic notices:
Credit Suisse First Boston
_____________________________________________
_____________________________________________
Attn.: _____________________________________
Facsimile: (____) _________________________
Telephone: (____) _________________________
Address for eurodollar notices:
Credit Suisse First Boston
_____________________________________________
_____________________________________________
Attn.: _____________________________________
Facsimile: (____) _________________________
Telephone: (____) _________________________
[XXXXXX'X 364-DAY LOAN AGREEMENT]
- S-11 - [SIGNATURE PAGE]
THE DAI-ICHI KANGYO BANK, LTD.
By: _____________________________________________
Title: ____________________________________________
Address for notices:
The Dai-Ichi Kangyo Bank, Ltd.
Xxx Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attn.: Chimie T. Pemba, Account Officer
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
[XXXXXX'X 364-DAY LOAN AGREEMENT]
- S-11 - [SIGNATURE PAGE]
E. SUN COMMERCIAL BANK, LTD., LOS ANGELES BRANCH
By: _____________________________________________
Title: ____________________________________________
Address for notices:
E. Sun Commercial Bank, Ltd., Los Angeles Branch
00000 Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxxx xx Xxxxxxxx, Xxxxxxxxxx 00000
Attn.: Teddy Mou, Sr. AVP
Facsimile: (000) 000-0000
Telephone: (626) 810-2400 ext. 226
[XXXXXX'X 364-DAY LOAN AGREEMENT]
- S-12 - [SIGNATURE PAGE]
FIRST TENNESSEE BANK NATIONAL ASSOCIATION
By: _____________________________________________
Title: ____________________________________________
Address for notices:
First Tennessee Bank National Association
000 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxxxxxx 00000-0000
Attn.: Xxxxx X. Xxxxx, Xx., Vice President
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
[XXXXXX'X 364-DAY LOAN AGREEMENT]
- S-13 - [SIGNATURE PAGE]
FLEET NATIONAL BANK
By: _____________________________________________
Title: ____________________________________________
Address for notices:
Fleet National Bank
0000 Xxxxx 0 Xxxxx
Xxxxxxxx, Xxx Xxxxxx 00000
Attn.: Xxxx X. Xxxxxxxx, Senior Vice President
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
[XXXXXX'X 364-DAY LOAN AGREEMENT]
- S-14 - [SIGNATURE PAGE]
THE FUJI BANK, LIMITED
By: _____________________________________________
Title: ____________________________________________
Address for domestic notices:
The Fuji Bank, Limited
_____________________________________________
_____________________________________________
Attn.: _____________________________________
Facsimile: (____) _________________________
Telephone: (____) _________________________
Address for eurodollar notices:
The Fuji Bank, Limited
_____________________________________________
_____________________________________________
Attn.: _____________________________________
Facsimile: (____) _________________________
Telephone: (____) _________________________
[XXXXXX'X 364-DAY LOAN AGREEMENT]
- S-15 - [SIGNATURE PAGE]
HIBERNIA NATIONAL BANK
By: _____________________________________________
Title: ____________________________________________
Address for domestic notices:
Hibernia National Bank
_____________________________________________
_____________________________________________
Attn.: _____________________________________
Facsimile: (____) _________________________
Telephone: (____) _________________________
Address for eurodollar notices:
Hibernia National Bank
_____________________________________________
_____________________________________________
Attn.: _____________________________________
Facsimile: (____) _________________________
Telephone: (____) _________________________
[XXXXXX'X 364-DAY LOAN AGREEMENT]
- S-16 - [SIGNATURE PAGE]
THE INDUSTRIAL BANK OF JAPAN, LIMITED
By: _____________________________________________
Title: ____________________________________________
Address for notices:
The Industrial Bank of Japan, Limited, Atlanta Agency
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn.: Xxxxxx Xxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
[XXXXXX'X 364-DAY LOAN AGREEMENT]
- S-17 - [SIGNATURE PAGE]
KEYBANK NATIONAL ASSOCIATION
By: _____________________________________________
Title: ____________________________________________
Address for domestic notices:
KeyBank National Association
_____________________________________________
_____________________________________________
Attn.: _____________________________________
Facsimile: (____) _________________________
Telephone: (____) _________________________
Address for eurodollar notices:
KeyBank National Association
_____________________________________________
_____________________________________________
Attn.: _____________________________________
Facsimile: (____) _________________________
Telephone: (____) _________________________
[XXXXXX'X 364-DAY LOAN AGREEMENT]
- S-18 - [SIGNATURE PAGE]
SOCIETE GENERALE
By: _____________________________________________
Xxxxxx X. Day, Managing Director
Address for notices:
Societe Generale
Four Embarcadero Center, Suite 1200
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attn.: Xxxx X. Xxxxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
[XXXXXX'X 364-DAY LOAN AGREEMENT]
- S-19 - [SIGNATURE PAGE]
XXXXX FARGO BANK, N.A.
By: _____________________________________________
Title: ____________________________________________
By: _____________________________________________
Title: ____________________________________________
Address for notices:
Xxxxx Fargo Bank, N.A.
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxx, Xxxxxx 00000
Attn.: Xxx Xxxxxx, Vice President
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
[XXXXXX'X 364-DAY LOAN AGREEMENT]
- S-20 - [SIGNATURE PAGE]
BNP PARIBAS
By: _____________________________________________
Title: ____________________________________________
By: _____________________________________________
Title: ____________________________________________
Address for notices:
BNP PARIBAS
000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000-0000
Attn.: Xxxxxx X. X. Xx, Director
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
[XXXXXX'X 364-DAY LOAN AGREEMENT]
- S-21 - [SIGNATURE PAGE]
U.S. BANK NATIONAL ASSOCIATION
By: _____________________________________________
Title: ____________________________________________
Address for notices:
U.S. Bank National Association
_____________________________________________
_____________________________________________
Attn.: _____________________________________
Facsimile: (____) _________________________
Telephone: (____) _________________________
[XXXXXX'X 364-DAY LOAN AGREEMENT]
- S-22 - [SIGNATURE PAGE]
FIRST HAWAIIAN BANK
By: _____________________________________________
Title: ____________________________________________
Address for notices:
First Hawaiian Bank
000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxx, Xxxxxx 00000
Attn.: Xxxxxx X. X. Xxxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
[XXXXXX'X 364-DAY LOAN AGREEMENT]
- S-23 - [SIGNATURE PAGE]
EXHIBIT A
ASSIGNMENT AGREEMENT
THIS ASSIGNMENT AGREEMENT ("Agreement") dated as of ____________,
_____ is made with reference to that certain Amended and Restated 364-Day Loan
Agreement dated as of April 26, 2001 (as amended from time to time, the "Loan
Agreement") by and among Xxxxxx'x Entertainment, Inc., a Delaware corporation,
as Guarantor, Xxxxxx'x Operating Company, Inc., a Delaware corporation, Marina
Associates, a New Jersey general partnership (each a "Borrower" and
collectively, the "Borrowers"), the Lenders therein named, (collectively, the
"Lenders" and individually, a "Lender") and Bank of America, N.A., as
Administrative Agent and is entered into between the "Assignor" described below,
in its capacity as a Lender under the Loan Agreement, and the "Assignee"
described below.
Assignor and Assignee hereby represent, warrant and agree as
follows:
1. DEFINITIONS. Capitalized terms defined in the Loan Agreement are
used herein with the meanings set forth for such terms in the Loan Agreement. As
used in this Agreement, the following capitalized terms shall have the meanings
set forth below:
"ASSIGNEE" means ___________________________________.
"ASSIGNED PRO RATA SHARE" means _________________% of the Commitment of
the Lenders under the Loan Agreement which equals $__________.
"ASSIGNOR" means _______________________
"EFFECTIVE DATE" means ___________, _____, the effective date of this
Agreement determined in accordance with Section 11.8 of the Loan Agreement.
2. REPRESENTATIONS AND WARRANTIES OF THE ASSIGNOR. The Assignor
represents and warrants to the Assignee as follows:
a. As of the date hereof, the Pro Rata Share of the Assignor
is ___________% of the Commitment (without giving effect to assignments thereof
which have not yet become effective). The Assignor is the legal and beneficial
owner of the Assigned Pro Rata Share and the Assigned Pro Rata Share is free and
clear of any adverse claim.
-1-
b. As of the date hereof, the outstanding principal balance of
Advances made by the Assignor under the Assignor's Note is
$____________________, and Assignor's ratable participation in outstanding
Letters of Credit is $_____________________.
c. The Assignor has full power and authority, and has taken
all action necessary, to execute and deliver this Agreement and any and all
other documents required or permitted to be executed or delivered by it in
connection with this Agreement and to fulfill its obligations under, and to
consummate the transactions contemplated by, this Agreement, and no governmental
authorizations or other authorizations are required in connection therewith; and
d. This Agreement constitutes the legal, valid and binding
obligation of the Assignor.
The Assignor makes no representation or warranty and assumes no responsibility
with respect to the financial condition of each Borrower or the performance by
each Borrower of the Obligations, and assumes no responsibility with respect to
any statements, warranties or representations made in or in connection with the
Loan Agreement or the execution, legality, validity, enforceability,
genuineness, or sufficiency of the Loan Agreement or any Loan Document other
than as expressly set forth above.
3. REPRESENTATIONS AND WARRANTIES OF THE ASSIGNEE. The Assignee
hereby represents and warrants to the Assignor as follows:
(a) The Assignee has full power and authority, and has taken all
action necessary, to execute and deliver this Agreement, and any and all other
documents required or permitted to be executed or delivered by it in connection
with this Agreement and to fulfill its obligations under, and to consummate the
transactions contemplated by, this Agreement, and no governmental authorizations
or other authorizations are required in connection therewith;
(b) This Agreement constitutes the legal, valid and binding
obligation of the Assignee;
(c) The Assignee has independently and without reliance upon the
Administrative Agent or Assignor and based on such documents and information as
the Assignee has deemed appropriate, made its own credit analysis and decision
to enter into this Agreement. The Assignee will, independently and without
reliance upon the Administrative Agent or any Lender, and based upon such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under the Loan
Agreement;
-2-
(d) The Assignee has received copies of such of the Loan Documents
delivered pursuant to Section 8.1 of the Loan Agreement as it has requested,
together with copies of the most recent financial statements delivered pursuant
to Section 7.1 of the Loan Agreement;
(e) The Assignee will perform in accordance with their respective
terms all of the obligations which by the terms of the Loan Agreement are
required to be performed by it as a Lender; and
(f) The Assignee is an Eligible Assignee.
4. ASSIGNMENT. On the terms set forth herein, the Assignor, as of
the Effective Date, hereby irrevocably sells, assigns and transfers to the
Assignee all of the rights and obligations of the Assignor under the Loan
Agreement, the other Loan Documents and the Assignor's Note to the extent of the
Assigned Pro Rata Share, and the Assignee irrevocably accepts such assignment of
rights and assumes such obligations from the Assignor on such terms and
effective as of the Effective Date. As of the Effective Date, the Assignee shall
have the rights and obligations of a "Lender" under the Loan Documents, except
to the extent of any arrangements with respect to payments referred to in
Section 5 hereof. Assignee hereby appoints and authorizes the Administrative
Agent to take such action and to exercise such powers under the Loan Agreement
as are delegated to the Administrative Agent by the Loan Agreement.
5. PAYMENT. On the Effective Date, the Assignee shall pay to the
Assignor, in immediately available funds, an amount equal to the purchase price
of the Assigned Pro Rata Share, as agreed between the Assignor and the Assignee
pursuant to a letter agreement of even date herewith. Such letter agreement also
sets forth the agreement between the Assignor and the Assignee with respect to
the amount of interest, fees, and other payments with respect to the Assigned
Pro Rata Share which are to be retained by the Assignor. Assignee shall also pay
to the Administrative Agent an assignment fee of $3,500 in accordance with
Section 11.8 of the Loan Agreement.
The Assignor and the Assignee hereby agree that if either receives
any payment of interest, principal, fees or any other amount under the Loan
Agreement, their respective Notes or any other Loan Documents which is for the
account of the other, it shall hold the same in trust for such party to the
extent of such party's interest therein and shall promptly pay the same to such
party.
6. PRINCIPAL, INTEREST, FEES, ETC. Any principal that would be
payable and any interest, fees and other amounts that would accrue from and
after the Effective Date to or
-3-
for the account of the Assignor pursuant to the Loan Agreement and the Note
shall be payable to or for the account of the Assignor and the Assignee, in
accordance with their respective interests as adjusted pursuant to this
Agreement.
7. NOTES. The Assignor and the Assignee shall make appropriate
arrangements with each Borrower concurrently with the execution and delivery
hereof so that replacement Notes are issued to the Assignor and new Notes are
issued to the Assignee, in each case in principal amounts reflecting their Pro
Rata Shares of the Commitment or their outstanding Advances (as adjusted
pursuant to this Agreement).
8. FURTHER ASSURANCES. Concurrently with the execution of this
Agreement, the Assignor shall execute two counterpart original Requests for
Registration, in the form of Exhibit A to this Agreement, to be forwarded to the
Administrative Agent. The Assignor and the Assignee further agree to execute and
deliver such other instruments, and take such other action, as either party may
reasonably request in connection with the transactions contemplated by this
Agreement, and the Assignor specifically agrees to cause the delivery of (i) two
original counterparts of this Agreement and (ii) the Request for Registration,
to the Administrative Agent for the purpose of registration of the Assignee as a
"Lender" pursuant to Section 11.8 of the Loan Agreement.
9. GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED TO BE A CONTRACTUAL
OBLIGATION UNDER, AND SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LOCAL LAWS OF THE STATE OF
CALIFORNIA. FOR ANY DISPUTE
ARISING IN CONNECTION WITH THIS AGREEMENT, THE ASSIGNEE HEREBY IRREVOCABLY
SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE OF CALIFORNIA.
10. NOTICES. All communications among the parties or notices in
connection herewith shall be in writing, hand delivered or sent by registered
airmail, postage prepaid, or by telex, telegram or cable, addressed to the
appropriate party at its address set forth on the signature pages hereof. All
such communications and notices shall be effective upon receipt.
11. BINDING EFFECT. This Agreement shall be binding upon and inure
to the benefit of the parties and their respective successors and assigns;
provided, however, that the Assignee shall not assign its rights or obligations
under this Agreement without the prior written consent of the Assignor and any
purported assignment, absent such consent, shall be void. Nothing contained in
this Section shall restrict the assignment by Assignee of its rights under the
Loan Documents following the Effective Date.
-4-
12. INTERPRETATION. The headings of the various sections hereof are
for convenience of reference only and shall not affect the meaning or
construction of any provision hereof.
-5-
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their respective officials, officers or agents
thereunto duly authorized as of the date first above written.
"Assignor"
---------------------------------------
By:____________________________________
Its:__________________________________
Address:_______________________________
_______________________________
_______________________________
Telephone: ____________________________
Telecopier:____________________________
"Assignee"
---------------------------------------
By:____________________________________
Its:__________________________________
Address:_______________________________
_______________________________
_______________________________
Telephone: ____________________________
Telecopier:____________________________
-6-
EXHIBIT A TO ASSIGNMENT AGREEMENT
REQUEST FOR REGISTRATION
To: Bank of America, N.A., as Administrative Agent, and Xxxxxx'x Entertainment,
Inc., Xxxxxx'x Operating Company, Inc. and Marina Associates
THIS REQUEST FOR REGISTRATION OF ASSIGNEE ("Request") is made as of
the date of the enclosed Assignment Agreement with reference to that certain
364-Day Loan Agreement, dated as of April 26, 2001 by and among Xxxxxx'x
Entertainment, Inc., a Delaware corporation, as Guarantor, Xxxxxx'x Operating
Company, Inc., a Delaware corporation, Marina Associates, a New Jersey general
partnership (each a "Borrower" and collectively, the "Borrowers"), the Lenders
therein named, (collectively, the "Lenders" and individually, a "Lender") and
Bank of America N.A., as Administrative Agent (as amended as of the date hereof,
the "Loan Agreement").
The Assignor and Assignee described below hereby request that
Administrative Agent register the Assignee as a Lender pursuant to Section 11.8
of the Loan Agreement effective as of the Effective Date described in the
Assignment Agreement.
Enclosed with this Request are two counterpart originals of the
Assignment Agreement as well as the original Notes of each Borrower in favor of
the Assignor in the principal amount of $______________. The Assignor and
Assignee hereby jointly request that Administrative Agent cause each Borrower to
issue replacement Notes, dated as of the Effective Date, pursuant to Section
11.8 of the Loan Agreement in favor of Assignor in the principal amount of the
remainder of its Pro Rata Share of the Commitment and new Notes in favor of the
Assignee in the amount of the Assigned Pro Rata Share.
IN WITNESS WHEREOF, the Assignor and Assignee have executed this
Request for Registration by their duly authorized officers as of ________,
_________.
-7-
"Assignor" "Assignee"
------------------------- -------------------------
By:______________________ By:______________________
Its: ___________________ Its: ___________________
CONSENT OF ADMINISTRATIVE AGENT AND BORROWERS
[WHEN REQUIRED PURSUANT TO LOAN AGREEMENT]
TO: The Assignor and Assignee referred to in the above Request for Registration
When countersigned by each Borrower and Administrative Agent below, this
document shall certify that:
[ ] [WHEN REQUIRED PURSUANT TO SECTION 11.8(b)(i) OF THE Loan Agreement:]
[1.] Borrowers have consented, pursuant to the terms of the Loan
Documents, to the assignment by the Assignor to the Assignee of the Assigned Pro
Rata Share.
[2.] Administrative Agent has registered the Assignee as a Lender under
the Loan Agreement, effective as of the Effective Date described above, with a
Pro Rata Share of the Commitment corresponding to the Assigned Pro Rata Share
and has adjusted the registered Pro Rata Share of the Commitment of the Assignor
to reflect the assignment of the Assigned Pro Rata Share.
Approved:
Xxxxxx'x Entertainment, Inc. Marina Associates
-8-
By: Xxxxxx'x New Jersey, Inc.,
By:__________________________ general partner
Its:__________________________ By: ________________________
Its: ________________________
Xxxxxx'x Operating Company, Inc.
By: Xxxxxx'x Atlantic City, Inc.,
By:__________________________ general partner
Its:__________________________ By: ________________________
Its: ________________________
-9-
Bank of America, N.A.,
as Administrative Agent
By:____________________________
Its:___________________________
-10-
EXHIBIT B
COMPLIANCE CERTIFICATE
This Compliance Certificate (this "Certificate") is executed and
delivered by the undersigned to Bank of America, N.A., as Agent (the "Agent"),
pursuant to the Loan Agreements referred to below to induce the Lenders
described in the Loan Agreements to make certain credit facilities available to
Xxxxxx'x Operating Company, Inc., a Delaware corporation (the "Company") and
Marina Associates, a New Jersey general partnership ("Marina"; Marina and the
Company, each a "Borrower" and collectively with the other parties from time to
time a Borrower under the Loan Agreements, the "Borrowers").
This Certificate is delivered with reference to the Five Year Loan
Agreement, dated as of April 30, 1999, amended as of April 3, 2000 by an
Amendment No. 1 thereto, and amended as of April 26, 2001 by an Amendment No. 2
and the Amended and Restated 364-Day Loan Agreement, dated as of April 26, 2001
(as amended, supplemented or otherwise modified from time to time, collectively,
the "Loan Agreements"), among the Borrowers, Xxxxxx'x Entertainment, Inc., a
Delaware corporation (the "Parent") as Guarantor, the Agent and each of the
several financial institutions party to the Loan Agreements. The terms defined
in the Loan Agreements and not otherwise defined in this Certificate shall have
the meanings defined for them in the Loan Agreements. Section references herein
relate to the Loan Agreements unless stated otherwise.
This Certificate is delivered in accordance with Section 7.2 of the
Loan Agreements by a Senior Officer of the Borrowers and Parent. This
Certificate is delivered with respect to the Fiscal Quarter ended
_______________________ (the "Determination Date"). Computations indicating
compliance with Sections 6.5 and 6.6 of the Loan Agreements are set forth below:
1. SECTION 6.5 - TOTAL DEBT RATIO. As of the Determination Date, the Total
Debt Ratio was _______:1.00.
MAXIMUM PERMITTED RATIO: 4.50:1.00
Total Debt Ratio was calculated as follows (in each case determined
in accordance with GAAP):
(a) Total Debt as of the Determination Date
(as calculated on Appendix A hereto), $_____________
DIVIDED BY (b) EBITDA for the four Fiscal Quarter
period ending on the Determination Date (as
calculated on Appendix A hereto) $_____________
EQUALS TOTAL DEBT RATIO [(a)/(b)] ________:1.00
-1-
2. SECTION 6.6 - INTEREST COVERAGE RATIO. As of the Determination Date,
the Interest Coverage Ratio was _______:1.00.
MINIMUM PERMITTED RATIO: 3.00:1.00
INTEREST COVERAGE RATIO was computed as follows (in each case
determined in accordance with GAAP):
(a) EBITDA for the four Fiscal Quarter period
ending on the Determination Date (as calculated on
Appendix A hereto) $_____________
DIVIDED BY (b) Interest Expense for the same period
(as calculated on Appendix A hereto) $_____________
EQUALS INTEREST COVERAGE RATIO [(a)/(b)] $_____________
3. A review of the activities of the Borrowers and each of the other
Parties during the fiscal periods covered by this Certificate has
been made under the supervision of the undersigned, with a view to
determining whether during such fiscal periods the Borrowers and
each of the other Parties performed and observed all of their
respective Obligations. To the best knowledge of the undersigned,
during the fiscal periods covered by this Certificate, all covenants
and conditions set forth in the Loan Documents, INCLUDING, without
limitation, those set forth in Articles 4, 5 and 6 of the Loan
Agreements, have been so performed and observed and no Default or
Event of Default has occurred and is continuing, WITH ONLY THE
EXCEPTIONS set forth below (if none, so state), and in response to
which the Borrowers and the other Parties have taken or propose to
take the following actions (if none, so state):
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
4. The undersigned Senior Officer of the Borrowers and Parent certifies
that the calculations made and the information contained herein and
in each Appendix delivered herewith are derived from the books and
records of the Borrowers and the other Parties, as applicable, and
that each and every matter contained herein and therein correctly
reflects those books and records.
-2-
5. To the best knowledge of the undersigned no event or circumstance
has occurred that constitutes a Material Adverse Effect since the
date the most recent Compliance Certificate was executed and
delivered, with the exceptions set forth below (if none, so state):
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
Dated: _______________, ______
By __________________________________________
Senior Officer of each Borrower and Parent
-3-
APPENDIX A
TO
COMPLIANCE CERTIFICATE
PART 1
EBITDA - COMPONENT CALCULATIONS
The calculations below relate to the period from ____________________ to
____________________ (the "Test Period" for purposes of this Part 1 of Appendix
A).
EBITDA for the Test Period is calculated as follows for the Parent and its
Subsidiaries on a combined basis, in each case as determined in accordance
with GAAP(1):
(a) Consolidated net income of Parent and its
Subsidiaries for the Test Period ("Net Income") $_____________
PLUS (b) all accrued taxes on or measured by
income to the extent included in the determination
of Net Income set forth in (a) above $_____________
PLUS (c) amounts treated as expenses for interest
to the extent included in the determination of
Net Income set forth in (a) above $_____________
PLUS (d) amounts treated as expenses for depreciation
and amortization to the extent included
in the determination of Net Income set forth
in (a) above $_____________
PLUS (e) minority interest $_____________
PLUS (f) any extraordinary loss reflected in
such Net Income $_____________
MINUS (g) any extraordinary gain reflected in
such Net Income $_____________
PLUS (h) Pre-Opening Expenses during the Test Period $_____________
PLUS (i) non-recurring cash charges during the
Test Period $_____________
----------
(1) provided that in computing EBITDA:
(a) for all periods ending on or prior to December 31, 2000,
"EBITDA" shall be computed on the basis of the combined operating results
of Parent and its Subsidiaries and Showboat.
(b) 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
(c) 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 sold or otherwise
disposed of by Parent and its Subsidiaries, or whose operations are
discontinued during the relevant period.
-4-
EQUALS EBITDA [(a)+(b)+(c)+(d)+(e)+(f)-(g)+(h)+(i)] $_____________PART 2
TOTAL DEBT - COMPONENT CALCULATION
Total Debt as of the Determination Date is the SUM of the following
(without duplication)(1):
(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 the Determination Date $_____________
PLUS (b) the aggregate amount of
all Capital Lease Obligations of
Parent and its Subsidiaries
on the Determination 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 $_____________
PLUS (e) any obligations of Parent of 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 $_____________
EQUALS TOTAL DEBT [(a) + (b) + (c) + (d) + (e)] $_____________
----------
(1) provided that 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, (2) in the case of any other Contingent
Obligations, demand for payment is made with respect thereto, or (3)
Parent's independent auditors have quantified the amount of Parent's and
its Subsidiaries with respect to letters of credit and Contingent
Obligations as liabilities on Parent's consolidated balance sheet in
accordance with Generally Accepted Accounting Principles (as opposed to
merely noted in the footnotes to any such balance sheet) and the amount of
any such individual liability is in excess of $50,000,000, in which case
the amount thereof shall be deemed to be the amount so quantified from
time to time.
-5-
PART 3
INTEREST EXPENSE - COMPONENT CALCULATIONS
The calculations below relate to the period from ____________________ to
____________________ (the "Test Period" for purposes of this Part 3 of Appendix
A).
Interest Expense for the Test Period is calculated as follows:
(a) all interest, fees, charges and related
expenses paid or payable (without duplication)
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 the Test Period
under Capital Lease Obligations that should
be treated as interest in accordance with
Financial Accounting Standards Board
Statement No. 13 $_______________
EQUALS INTEREST EXPENSE [(a)+(b)] $_______________
-6-
EXHIBIT C
NOTE
$_____________ April 26, 2001
Los Angeles, California
FOR VALUE RECEIVED, the undersigned promises to pay to the order of
___________________________________________ (the "Lender"), the principal amount
of ____________________________________ Dollars ($___________________) or such
lesser aggregate amount of Advances as may be made by the Lender as part of the
Loan pursuant to the Loan Agreement referred to below, together with interest on
the principal amount of each Advance made hereunder as part of the Loan and
remaining unpaid from time to time from the date of each such Advance until the
date of payment in full, payable as hereinafter set forth.
Reference is made to the Amended and Restated 364-Day Loan Agreement
dated as of April 26, 2001, by and among the undersigned, as a Borrower, the
other Borrowers that are parties thereto, the Lenders therein named and Bank of
America, N.A., as Administrative Agent (as amended from time to time, the "Loan
Agreement"). Terms defined in the Loan Agreement and not otherwise defined
herein are used herein with the meanings defined for those terms in the Loan
Agreement. This is one of the Notes referred to in the Loan Agreement, and any
holder hereof is entitled to all of the rights, remedies, benefits and
privileges provided for in the Loan Agreement as originally executed or as it
may from time to time be supplemented, modified or amended. The Loan Agreement,
among other things, contains provisions for acceleration of the maturity hereof
upon the happening of certain stated events upon the terms and conditions
therein specified.
The principal indebtedness evidenced by this Note shall be payable
as provided in the Loan Agreement and in any event on the Maturity Date.
Interest shall be payable on the outstanding daily unpaid principal
amount of Advances from the date of each such Advance until payment in full and
shall accrue and be payable at the rates and on the dates set forth in the Loan
Agreement both before and after default and before and after maturity and
judgment, with interest on overdue principal and interest to bear interest at
the rate set forth in Section 3.8 of the Loan Agreement, to the fullest extent
permitted by applicable Law.
Each payment hereunder shall be made to the Administrative Agent at
the Administrative Agent's Office for the account of the Lender in immediately
available funds not later than 11:00 a.m., California local time, on the day of
payment (which must be a
-1-
Business Day). All payments received after 11:00 a.m., California local time, on
any particular Business Day shall be deemed received on the next succeeding
Business Day. All payments shall be made in lawful money of the United States of
America.
The Lender shall use its best efforts to keep a record of Advances
made by it as part of Loans and payments received by it with respect to this
Note, and such record shall, subject to Section 10.6(g) of the Loan Agreement,
be presumptive evidence, absent manifest error, of the amounts owing under this
Note.
The undersigned hereby promises to pay all costs and expenses of any
rightful holder hereof incurred in collecting the undersigned's obligations
hereunder or in enforcing or attempting to enforce any of such holder's rights
hereunder, including reasonable attorneys' fees and disbursements, whether or
not an action is filed in connection therewith.
The undersigned hereby waives presentment, demand for payment,
dishonor, notice of dishonor, protest, notice of protest and any other notice or
formality, to the fullest extent permitted by applicable Laws.
This Note shall be delivered to and accepted by the Lender in the
State of California, and shall be governed by, and construed and enforced in
accordance with, the local Laws thereof.
-------------------------------,
a ________________________
By: _____________________________
Title:____________________________
-2-
SCHEDULE OF ADVANCES AND
PAYMENTS OF PRINCIPAL
Date Amount Interest Amount of Unpaid Notation
of Period Principal Principal Made by
Advance Paid Balance
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-3-
EXHIBIT D
April 26, 2001
To the Administrative Agents and
the Lenders party to each of
the Five Year Agreement and the
364-Day Agreement referred to below
Ladies and Gentlemen:
I am the Associate General Counsel of Xxxxxx'x Entertainment, Inc.,
a Delaware corporation ("Parent"), and have represented Parent, Xxxxxx'x
Operating Company, Inc., a Delaware corporation (the "Company"), and Marina
Associates, a New Jersey general partnership ("Marina"), in connection with (a)
the Five Year Loan Agreement dated as of April 30, 1999, (as amended, the "Five
Year Agreement") , and (b) the Amended and Restated 364-Day Loan Agreement (the
"364-Day Agreement") dated as of April 26, 2001, in each case among among
Parent, the Company, Marina, and Bank of America N.A., as Administrative Agent.
Capitalized terms used but not defined herein have the meanings assigned to them
in the Five Year Agreement and the 364-Day Agreement.
You have asked me to issue this opinion in connection with the
execution and delivery of the 364-Day Agreement and an Amendment No. 2 of even
date herewith the Five Year Agreement (the "Amendment").
In connection herewith, I have made such legal and factual
examinations and inquiries, including an examination of originals or copies
certified or otherwise identified to my satisfaction as being true reproductions
of originals of such documents, corporate records and other instruments, and
have obtained from public officials and from officers of the Company, Parent,
Marina and their respective Subsidiaries such certificates and other
representations and assurances, as I have deemed necessary or appropriate for
the purpose of the opinions stated below. I have examined, among other things,
the following:
(a) the Amendment;
(b) the 364-Day Agreement;
(c) the Guaranty dated as of April 26, 2001 by Parent in favor of
the Administrative Agent and the Lenders under the 364-Day Agreement;
Bank of America N.A.
April 26, 2001
Page 2
(d) the Notes executed in favor of the Lenders under the 364-Day
Agreement;
The documents described in subsections (a)-(d) above are referred to
herein collectively as the "Documents."
I have investigated such questions of law as I have deemed necessary
or appropriate for the purposes of the opinions stated herein. I am a member of
the bars of the State of California and Nevada, and I am opining herein as to
the effect on the subject transactions of the internal laws of the State of
California, the General Corporation Law of the State of Delaware and the federal
laws of the United States, and I express no opinion with respect to the
applicability thereto, or the effect thereon, of the laws of any other
jurisdiction (or, in the case of Delaware, any laws other than the General
Corporation Law of the State of Delaware) or as to any matters of municipal law
or the laws of any other local agencies within any state.
On the basis of the foregoing, and in reliance thereon, and subject
to the limitations, qualifications and exceptions set forth below, I am of the
opinion that, as of the date hereof:
1. Each of Parent, the Company, Xxxxxx'x Atlantic City, Inc., a New
Jersey corporation ("Xxxxxx'x XX"), and Xxxxxx'x New Jersey, Inc., a New Jersey
corporation (together with Xxxxxx'x XX, the "Marina Partners"), is a duly
organized and validly existing corporation, in good standing under the laws of
the jurisdiction of its organization, and has all corporate power to execute,
deliver and perform its obligations under the Documents.
2. Marina is a general partnership validly existing under the laws
of the State of New Jersey, and has all partnership power to execute, deliver
and perform its obligations under the Documents.
3. The execution, delivery and performance by each Borrower, Parent,
Xxxxxx'x Atlantic City, Inc., a New Jersey corporation ("Xxxxxx'x XX"), as
general partner of Marina, and Xxxxxx'x New Jersey, Inc., a New Jersey
corporation (together with Xxxxxx'x XX, the "Marina Partners"), as general
partner of Marina, of each of the Documents to which such Borrower, Parent, and
the Marina Partners, as applicable, is a party (i) do not, in the case of the
Company, Parent and the Marina Partners, contravene any provisions of their
respective certificates of incorporation or by-laws, and, in the case of Marina,
contravene any provision of its partnership agreement (ii) do not violate or
constitute a default under, any applicable provision of the laws of the State of
California, the General Corporation Law of the State of Delaware or the federal
laws of the United States or any applicable regulation under such laws, (iii) do
not violate any instrument, document or agreement to which Parent, the Company,
Marina, the Marina Partners or any of their Subsidiaries are party which are
identified in the filings made by Parent with the Securities and Exchange
Commission as material to the affairs of the Parent and its Subsidiaries, taken
as a whole (each such agreement, a "Material Agreement"), other than any such
violations or defaults which would not, separately or in the aggregate, have a
material adverse effect on the validity or enforceability of the Documents or on
the ability of Parent or any Borrower to perform their respective obligations
under the Documents or have
Bank of America N.A.
April 26, 2001
Page 3
a material adverse effect on the business, properties or operations of Parent
and its Subsidiaries taken as a whole and (iv) do not violate any judgment,
order or decree binding upon any of Parent or its Subsidiaires, other than any
such violations which would not, separately or in the aggregate, have an adverse
effect on the validity or enforceability of any of the Documents or on the
ability of Parent, either Borrower or the Marina Partners to perform its
obligations under the Documents or have a material adverse effect on the value
of the business, properties or operations of Parent and its Subsidiaries taken
as a whole.
4. Each of the Documents have been duly authorized, executed and
delivered by each of Parent, the Company and Marina (to the extent that is a
named party thereto).
5. Each of the Documents constitutes a legally valid and binding
obligation of each of Parent, the Company and Marina (to the extent that each is
a named party thereto), enforceable against them in accordance with its terms
and the execution of the Amendment does not render the Five Year Agreement
unenforceable in accordance with its terms.
6. At the time of consummation thereof, all consents and approvals
of, and filings and registrations with, and all other actions in respect of, all
United States federal, California and Delaware governmental agencies,
authorities or instrumentalities required in order to make or consummate the
loan transactions contemplated by the Documents and enter into the Documents
have been obtained, given, filed or taken and are or will be in full force and
effect (or effective judicial relief with respect thereto has been obtained).
7. There does not exist any judgment, order or injunction
prohibiting or imposing material adverse conditions upon the consummation of the
transactions contemplated by the Documents or the performance by Parent, either
Borrower or the Marina Partners of their respective obligations under the
Documents.
8. There are no actions, suits or proceedings pending, or, to the
best of my knowledge, threatened, against Parent or any of its Subsidiaries with
respect to the Documents or the transactions contemplated thereby or that
restrain, permit or impose adverse conditions upon, or seek to restrain, prevent
or impose adverse conditions upon, the Documents or any such transaction.
My opinions in paragraphs 1,2,3 and 5 above as to compliance with
certain laws, statutes, rules or regulations and with respect to the consents,
approvals, filings and other actions are based upon a review of those laws,
statutes, rules and regulations which, in my experience, are normally applicable
to loan transactions of the type contemplated by the Documents (other than
Federal securities laws and California state securities or "blue sky" laws, as
to which I express no opinion in those paragraphs). I am not opining as to any
federal or state gaming laws, statutes, rules or regulations.
In rendering the opinions expressed in paragraph 3 insofar as they
require interpretation of the Material Agreements, (i) I have assumed with your
permission that all courts of
Bank of America N.A.
April 26, 2001
Page 4
competent jurisdiction would enforce such agreements as written but would apply
the internal laws of the State of California, without giving effect to any
choice of law provisions contained therein or any choice of law principles which
would result in application of the internal laws of any other state, (ii) to the
extent that any questions of legality or legal construction have arisen in
connection with my review, I have applied the laws of the State of California,
in resolving such questions and (iii) I express no opinion with respect to the
effect of any action or inaction by any Party or Creditor under the Documents or
the Material Agreements which may result in a breach or default under any
Material Agreement. I advise you that certain of the Material Agreements may be
governed by other laws, that such laws may vary substantially from the law
assumed to govern for purposes of this opinion, and that this opinion may not be
relied upon as to whether or not a breach or default would occur under the law
actually governing such Material Agreements.
The opinion expressed in paragraph 5 is further subject to the
following limitations, qualifications and exceptions:
(a) such opinion is subject to the effect of bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting the
rights of creditors generally, including, without limitation, the effect of
Section 548 of the federal Bankruptcy Code and comparable provisions of state
law;
(b) enforceability of the Documents is subject to the effect of
general principles of equity, including without limitation concepts of
materiality, reasonableness, good faith and fair dealing and the possible
unavailability of specific performance or injunctive relief regardless of
whether considered in a proceeding in equity or at law;
(c) certain rights, remedies and waivers contained in the Documents
may be limited or rendered ineffective by applicable California laws or judicial
decisions governing such provisions, but such laws or judicial decisions do not
render the Documents invalid or unenforceable as a whole;
(d) I express no opinion as to the validity or enforceability of any
provision of the Documents that permit the Lenders to increase the rate of
interest or collect a late charge or prepayment premium in the event of a
delinquency or default;
(e) the unenforceability under certain circumstances of provisions
to the effect that rights or remedies are not exclusive, that every right or
remedy is cumulative and may be exercised in addition to or with any other right
or remedy, that election of a particular remedy or remedies does not preclude
recourse to one or more other remedies, that any right or remedy may be
exercised without notice, or that failure to exercise or delay in exercising
rights or remedies will not operate as a waiver of any such right or remedy;
Bank of America N.A.
April 26, 2001
Page 5
(f) the unenforceability under certain circumstances of provisions
indemnifying a party against liability for its own wrongful or negligent acts or
where such indemnification is contrary to public policy or prohibited by law;
(g) the effect of Section 1717 of the California Civil Code, which
provides that, where a contract permits one party to the contract to recover
attorneys' fees, the prevailing party in any action to enforce any provision of
the contract shall be entitled to recover its reasonable attorneys' fees;
(h) the effect of California law, which provides that a court may
refuse to enforce, or may limit the application of, a contract or any clause
thereof which the court finds as a matter of law to have been unconscionable at
the time it was made or contrary to public policy;
(i) the effect of Section 63 1(d) of the California Code of Civil
Procedure, which provides that a court may, in its discretion upon just terms,
allow a trial by jury although there may have been a waiver of trial by jury;
(j) the enforceability of liquidated damages provisions of the
Documents may be governed and restricted by Section 1671 of the California Civil
Code;
(k) I express no opinion as to the enforceability of the choice of
law provisions in the Documents;
(l) I express no opinion with respect to the enforceability by a
federal court of any forum selection clause contained in any of the Documents;
and
(m) I also advise you of California statutory provisions and case
law to the effect that, in certain circumstances, a surety may be exonerated if
the creditor materially alters the original obligation of the principal without
the consent of the guarantor, elects remedies for default that impair the
subrogation rights of the guarantor against the principal, or otherwise takes
any action without notifying the guarantor that materially prejudices the
guarantor. However, there is also authority to the effect that a guarantor may
validly waive such rights if the waivers are expressly set forth in the
guaranty. While I believe that a California court should hold that the explicit
language contained in the Documents waiving such rights is enforceable, I
express no opinion with respect to the effect of (i) any modification to or
amendment of the obligations of any Party, Creditor or any other Person that
materially increases such obligations, (ii) any election of remedies by the
Administrative Agents or the Lenders following the occurrence of an event of
default under the Documents, or (iii) any other action by the Agents or the
Lenders that materially prejudices the guarantor.
In connection with my opinions expressed herein, I assume, with your
permission, that each Lender and each SPC is a member of a class of lenders
which is exempt or is otherwise exempt from California usury laws, including
Section 1 of Article XV of the California Constitution.
Bank of America N.A.
April 26, 2001
Page 6
I am not expressing any opinion as to the effect of any such
Person's (other than Parent's and the Borrowers') compliance with any state or
federal laws or regulations applicable to the transactions because of the nature
of such Person's business.
This opinion is rendered only to you and is solely for your benefit
in connection with the transactions covered hereby. This opinion may not be
relied upon by you for any other purpose, or furnished to, quoted to or relied
upon by any other person, firm or corporation for any purpose, without my prior
written consent. At your request, I hereby consent to reliance hereon by any
future assigns of or participants in your interest in the Amendment and the
364-Day Agreement as expressly permitted therein by Section 11.8, provided that
this opinion speaks only as of the date hereof and to its addressees and that I
have no responsibility or obligation to update this opinion, to consider its
applicability or correctness other than to its addressees, or to take into
account changes in law, facts or any other development of which I may later
become aware. I hereby consent to your furnishing this opinion to your auditors
and to regulatory officials having jurisdiction over you.
Very truly yours,
EXHIBIT E
AMENDED AND RESTATED PARENT GUARANTY
This AMENDED AND RESTATED PARENT GUARANTY ("Guaranty"), dated as of
April 26, 2001, is made by Xxxxxx'x Entertainment, Inc., a Delaware corporation
("Guarantor") in favor of Bank of America, N.A., as Administrative Agent for the
benefit of the Lenders that are party to the Loan Agreement referred to below,
with reference to the following facts:
RECITALS
A. Pursuant to the Amended and Restated 364-Day Loan Agreement dated
as of April 26, 2001 by and among Xxxxxx'x Entertainment, Inc., as Guarantor,
Xxxxxx'x Operating Company, Inc., a Delaware corporation, Marina Associates, a
New Jersey general partnership, and such other Subsidiaries that become
Borrowers pursuant thereto (collectively with Xxxxxx'x Operating Company, Inc.
and Marina Associates, the "Borrowers" and each, a "Borrower"), the Lenders
therein named (collectively, the "Lenders" and individually, a "Lender") and
Bank of America, N.A., as Administrative Agent (as such agreement may from time
to time be extended, modified, renewed, restated, supplemented or amended, the
"Loan Agreement"), the Lenders are making certain credit facilities available to
Borrowers.
B. The Loan Agreement amends and restates in its entirety a 364-Day
Loan Agreement dated as of April 30, 1999 (the "Existing Loan Agreement).
Pursuant to a Parent Guaranty of even date therewith (the "Existing Guaranty"),
Guarantor guaranteed the obligations of the Borrowers under the Existing Loan
Agreement.
C. As a condition to the continued availability of the credit
facilities provided by the Loan Agreement, Guarantor is required to enter into
this Guaranty to amend and restate the Existing Guaranty in its entirety and to
guaranty the Guarantied Obligations as hereinafter provided.
D Guarantor expects to realize direct and indirect benefits as the
result of the availability of the aforementioned credit facilities to Borrowers.
AGREEMENT
NOW, THEREFORE, in order to induce Lender to extend the
aforementioned credit facilities, and for other good and valuable consideration,
the receipt and adequacy of
364-Day Loan Agreement
which hereby are acknowledged, Guarantor hereby represents, warrants, covenants,
agrees and guaranties as follows:
1. DEFINITIONS. This Guaranty is the Parent Guaranty referred to in
the Loan Agreement and is one of the Loan Documents. Terms defined in the Loan
Agreement and not otherwise defined in this Guaranty shall have the meanings
given those terms in the Loan Agreement when used herein and such definitions
are incorporated herein as though set forth in full. In addition, as used
herein, the following terms shall have the meanings respectively set forth after
each:
"GUARANTIED OBLIGATIONS" means all Obligations of Borrowers or
any Party at any time and from time to time owed to Lender under
one or more of the Loan Documents (but not including Obligations
owed to Lender under this Guaranty), 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 bankruptcy or insolvency
proceeding by or against Borrowers or any of them, Guarantor or
any other Person.
"GUARANTOR" means Xxxxxx'x Entertainment, Inc., a Delaware
corporation.
"LENDER"means the Administrative Agent (acting as the
Administrative Agent and/or on behalf of the Lenders) and the
Lenders, and each of them, and any one or more of them. Subject
to the terms of the Loan Agreement, any right, remedy, privilege
or power of Lender shall be exercised by the Administrative Agent
on behalf of the Lenders.
"GUARANTY" means this Guaranty, and any extensions,
modifications, renewals, restatements, reaffirmations,
supplements or amendments hereof.
2. GUARANTY OF GUARANTIED OBLIGATIONS. Guarantor hereby irrevocably,
unconditionally guaranties and promises to pay and perform on demand upon the
occurrence of any Event of Default the Guarantied Obligations and each and every
one of them, INCLUDING all amendments, modifications, supplements, renewals or
extensions of any of them, whether such amendments, modifications, supplements,
renewals or extensions are evidenced by new or additional instruments, documents
or agreements or change the rate of interest on any Guarantied Obligation or the
security therefor, or otherwise.
3. NATURE OF GUARANTY. This Guaranty is irrevocable and continuing
in nature and relates to any Guarantied Obligations now existing or hereafter
arising. This
364-Day Loan Agreement
Guaranty is a guaranty of prompt and punctual payment and performance and is not
merely a guaranty of collection.
4. RELATIONSHIP TO OTHER AGREEMENTS. Nothing herein shall in any way
modify or limit the effect of terms or conditions set forth in any other
document, instrument or agreement executed by Guarantor or in connection with
the Guarantied Obligations, but each and every term and condition hereof shall
be in addition thereto. All provisions contained in the Loan Agreement or any
other Loan Document that apply to Loan Documents generally are fully applicable
to this Guaranty and are incorporated herein by this reference.
5. SUBORDINATION OF INDEBTEDNESS OF BORROWERS TO GUARANTOR TO THE
GUARANTIED OBLIGATIONS. Guarantor agrees that:
(a) Any indebtedness of Borrowers now or hereafter owed to
Guarantor hereby is subordinated to the Guarantied Obligations.
(b) If Lender so requests, upon the occurrence and during the
continuance of any Event of Default, any such indebtedness of Borrowers
now or hereafter owed to Guarantor shall be collected, enforced and
received by Guarantor as trustee for Lender and shall be paid over to
Lender in kind on account of the Guarantied Obligations, but without
reducing or affecting in any manner the obligations of Guarantor under
the other provisions of this Guaranty.
(c) Should Guarantor fail to collect or enforce any such
indebtedness of Borrowers now or hereafter owed to Guarantor and pay
the proceeds thereof to Lender in accordance with Section 5(b) hereof,
Lender as Guarantor's attorney-in-fact may do such acts and sign such
documents in Guarantor's name as Lender considers necessary or
desirable to effect such collection, enforcement and/or payment.
6. STATUTES OF LIMITATIONS AND OTHER LAWS. Until the Guarantied
Obligations shall have been paid and performed in full, all the rights,
privileges, powers and remedies granted to Lender hereunder shall continue to
exist and may be exercised by Lender at any time and from time to time
irrespective of the fact that any of the Guarantied Obligations may have become
barred by any statute of limitations. Guarantor expressly waives the benefit of
any and all statutes of limitation, and any and all Laws providing for exemption
of property from execution or for evaluation and appraisal upon foreclosure, to
the maximum extent permitted by applicable Laws.
7. WAIVERS AND CONSENTS. Guarantor acknowledges that the obligations
undertaken herein involve the guaranty of obligations of Persons other than
Guarantor and, in full recognition of that fact, consents and agrees that Lender
may, at any time and from time to time, without notice or demand, and without
affecting the enforceability or continuing effectiveness hereof: (a) supplement,
modify, amend, extend, renew, accelerate or otherwise
364-Day Loan Agreement
change the time for payment or the terms of the Guarantied Obligations or any
part thereof, INCLUDING any increase or decrease of the rate(s) of interest
thereon; (b) supplement, modify, amend or waive, or enter into or give any
agreement, approval or consent with respect to, the Guarantied Obligations or
any part thereof, or any of the Loan Documents to which Guarantor is not a party
or any additional security or guaranties, or any condition, covenant, default,
remedy, right, representation or term thereof or thereunder; (c) accept new or
additional instruments, documents or agreements in exchange for or relative to
any of the Loan Documents or the Guarantied Obligations or any part thereof; (d)
accept partial payments on the Guarantied Obligations; (e) receive and hold
additional security or guaranties for the Guarantied Obligations or any part
thereof; (f) release, reconvey, terminate, waive, abandon, fail to perfect,
subordinate, exchange, substitute, transfer and/or enforce any security or
guaranties, and apply any security and direct the order or manner of sale
thereof as Lender in its sole and absolute discretion may determine; (g) release
any Person from any personal liability with respect to the Guarantied
Obligations or any part thereof; (h) settle, release on terms satisfactory to
Lender or by operation of applicable Laws or otherwise liquidate or enforce any
Guarantied Obligations and any security or guaranty therefor in any manner,
consent to the transfer of any security and bid and purchase at any sale; and/or
(i) consent to the merger, change or any other restructuring or termination of
the corporate existence of Borrowers, or any of them, Guarantor or any other
Person, and correspondingly restructure the Guarantied Obligations, and any such
merger, change, restructuring or termination shall not affect the liability of
Guarantor or the continuing effectiveness hereof, or the enforceability hereof
with respect to all or any part of the Guarantied Obligations; provided that
nothing herein shall waive, alter, diminish or modify any rights of the
Borrowers under the Loan Documents, including, without limitation, the rights of
the Borrowers to agree to any amendments or modifications of the Loan Documents.
Upon the occurrence and during the continuance of any Event of
Default, Lender may enforce this Guaranty independently as to Guarantor and
independently of any other remedy or security Lender at any time may have or
hold in connection with the Guarantied Obligations. Guarantor expressly waives
any right to require Lender to marshal assets in favor of Guarantor, and agrees
that Lender may proceed against Borrowers or any of them, or upon or against any
security or remedy, before proceeding to enforce this Guaranty, in such order as
it shall determine in its sole and absolute discretion. Lender may file a
separate action or actions against Borrowers, or any of them, and/or Guarantor
without respect to whether action is brought or prosecuted with respect to any
security or against any other Person, or whether any other Person is joined in
any such action or actions. Guarantor agrees that Lender, Borrowers, or any of
them, and any Affiliates of any Borrower may deal with each other in connection
with the Guarantied Obligations or otherwise, or alter any contracts or
agreements now or hereafter existing between any of them, in any manner
whatsoever, all without in any way altering or affecting the security of this
Guaranty. Lender's rights hereunder shall be reinstated and revived, and the
enforceability of this Guaranty shall continue, with respect to any amount at
any time paid on account of the Guarantied Obligations which thereafter shall be
required to be restored or returned by Lender upon the bankruptcy, insolvency or
reorganization of Borrowers, or any of them, or any other Person,
364-Day Loan Agreement
or otherwise, all as though such amount had not been paid. The rights of Lender
created or granted herein and the enforceability of this Guaranty with respect
to Guarantor at all times shall remain effective to guaranty the full amount of
all the Guarantied Obligations even though the Guarantied Obligations, or any
part thereof, or any security or guaranty therefor, may be or hereafter may
become invalid or otherwise unenforceable as against Borrowers or any other
guarantor or surety and whether or not Borrowers shall have any personal
liability with respect thereto. Guarantor expressly waives any and all defenses
now or hereafter arising or asserted by reason of (a) any disability or other
defense of Borrowers, or any of them, with respect to the Guarantied
Obligations, (b) the unenforceability or invalidity of any security or guaranty
for the Guarantied Obligations or the lack of perfection or continuing
perfection or failure of priority of any security for the Guarantied
Obligations, (c) the cessation for any cause whatsoever of the liability of
Borrowers, or any of them (other than by reason of the full payment and
performance of all Guarantied Obligations), (d) any failure of Lender to marshal
assets in favor of Borrowers or any other Person, (e) except as otherwise
provided in this Guaranty, any failure of Lender to give notice of sale or other
disposition of collateral to Guarantor or any other Person or any defect in any
notice that may be given in connection with any sale or disposition of
collateral, (f) any failure of Lender to comply with applicable Laws in
connection with the sale or other disposition of any collateral or other
security for any Guarantied Obligation, including without limitation, any
failure of Lender to conduct a commercially reasonable sale or other disposition
of any collateral or other security for any Guarantied Obligation, (g) any act
or omission of Lender or others that directly or indirectly results in or aids
the discharge or release of Borrowers, or any of them, or the Guarantied
Obligations or any security or guaranty therefor by operation of law or
otherwise, (h) any Law which provides that the obligation of a surety or
guarantor must neither be larger in amount nor in other respects more burdensome
than that of the principal or which reduces a surety's or guarantor's obligation
in proportion to the principal obligation, (i) any failure of Lender to file or
enforce a claim in any bankruptcy or other proceeding with respect to any
Person, (j) the election by Lender, in any bankruptcy proceeding of any Person,
of the application or non-application of Section 1111(b)(2) of the United States
Bankruptcy Code, (k) any extension of credit or the grant of any Lien under
Section 364 of the United States Bankruptcy Code, (l) any use of cash collateral
under Section 363 of the United States Bankruptcy Code, (m) any agreement or
stipulation with respect to the provision of adequate protection in any
bankruptcy proceeding of any Person, (n) the avoidance of any Lien in favor of
Lender for any reason, (o) any bankruptcy, insolvency, reorganization,
arrangement, readjustment of debt, liquidation or dissolution proceeding
commenced by or against any Person, INCLUDING any discharge of, or bar or stay
against collecting, all or any of the Guarantied Obligations (or any interest
thereon) in or as a result of any such proceeding, (p) to the extent permitted,
the benefits of any form of one-action rule, or (q) any action taken by Lender
that is authorized by this Section or any other provision of any Loan Document.
Guarantor expressly waives all setoffs and counterclaims and all presentments,
demands for payment or performance, notices of nonpayment or nonperformance,
protests, notices of protest, notices of dishonor and all other notices or
demands of any kind or nature whatsoever with respect to the Guarantied
Obligations, and all notices of acceptance of this Guaranty or of the existence,
creation or incurrence of new or additional Guarantied Obligations.
364-Day Loan Agreement
8. CONDITION OF BORROWERS AND BORROWERS' SUBSIDIARIES. Guarantor
represents and warrants to Lender that Guarantor has established adequate means
of obtaining from Borrowers' Subsidiaries, on a continuing basis, financial and
other information pertaining to the businesses, operations and condition
(financial and otherwise) of Borrowers and Borrowers' Subsidiaries and their
Properties, and Guarantor now is and hereafter will be completely familiar with
the businesses, operations and condition (financial and otherwise) of Borrowers
and Borrowers' Subsidiaries and their Properties. Guarantor hereby expressly
waives and relinquishes any duty on the part of Lender (should any such duty
exist) to disclose to Guarantor any matter, fact or thing related to the
businesses, operations or condition (financial or otherwise) of Borrowers or
Borrowers' Subsidiaries or their Properties, whether now known or hereafter
known by Lender during the life of this Guaranty. With respect to any of the
Guarantied Obligations, Lender need not inquire into the powers of Borrowers or
any their Subsidiaries or the officers or employees acting or purporting to act
on their behalf, and all Guarantied Obligations made or created in good faith
reliance upon the professed exercise of such powers shall be secured hereby.
9. LIENS ON REAL PROPERTY. In the event that all or any part of the
Guarantied Obligations at any time are secured by any one or more deeds of trust
or mortgages or other instruments creating or granting Liens on any interests in
real Property, Guarantor authorizes Lender, upon the occurrence of and during
the continuance of any Event of Default, at its sole option, without notice or
demand and without affecting any Guarantied Obligations of Guarantor, the
enforceability of this Guaranty, or the validity or enforceability of any Liens
of Lender on any collateral, to foreclose any or all of such deeds of trust or
mortgages or other instruments by judicial or nonjudicial sale. Guarantor
expressly waives all rights and defenses to the enforcement of this Guaranty or
any rights of Lender created or granted hereby or to the recovery by Lender
against Borrowers, or any of them, Guarantor or any other Person liable therefor
of any deficiency after a judicial or nonjudicial foreclosure or sale because
all or any part of the Guarantied Obligations is secured by real Property. This
means, among other things: (1) Lender may collect from any Guarantor without
first foreclosing on any real or personal Property collateral pledged by
Borrowers and (2) if the Lender forecloses on any real Property collateral
pledged by Borrowers: (A) The amount of the Guarantied Obligations may be
reduced only by the price for which that collateral is sold at the foreclosure
sale, even if the collateral is worth more than the sale price and (B) the
Lender may collect from any Guarantor even if the Lender, by foreclosing on the
real Property collateral, has destroyed any right any Guarantor may have to
collect from Borrowers. This is an unconditional and irrevocable waiver of any
rights and defenses any Guarantor may have because all or any part of the
Guarantied Obligations is secured by real Property. Guarantor expressly waives
any defenses or benefits that may be derived from California Code of Civil
Procedure xx.xx. 580a, 580b, 580d or 726, or comparable provisions of the Laws
of any other jurisdiction, including, without limitation, NRS Section 40.430 and
judicial decisions relating thereto, and NRS Sections 40.451, 40.455, 40.457 and
40.459, and all other suretyship defenses it otherwise might or would have under
California Law or other applicable Law. Guarantor expressly waives any right to
receive notice of any judicial or
364-Day Loan Agreement
nonjudicial foreclosure or sale of any real Property or interest therein subject
to any such deeds of trust or mortgages or other instruments and any Guarantor's
or any other Person's failure to receive any such notice shall not impair or
affect Guarantor's Obligations or the enforceability of this Guaranty or any
rights of Lender created or granted.
10. WAIVER OF RIGHTS OF SUBROGATION. Notwithstanding anything to the
contrary elsewhere contained herein or in any other Loan Document to which
Guarantor is a Party, Guarantor hereby expressly waives with respect to any
Borrower and its successors and assigns (INCLUDING any surety) and any other
Person which is directly or indirectly a creditor of any Borrower or any surety
for any Borrower, any and all rights at Law or in equity to subrogation, to
reimbursement, to exoneration, to contribution, to setoff or to any other rights
that could accrue to a surety against a principal, to a guarantor against a
maker or obligor, to an accommodation party against the party accommodated, or
to a holder or transferee against a maker, and which Guarantor may have or
hereafter acquire against any Borrower or any other such Person in connection
with or as a result of Guarantor's execution, delivery and/or performance of
this Guaranty or any other Loan Document to which Guarantor is a party.
Guarantor agrees that it shall not have or assert any such rights against any
Borrower or its successors and assigns or any other Person (INCLUDING any
surety) which is directly or indirectly a creditor of any surety for any
Borrower, either directly or as an attempted setoff to any action commenced
against Guarantor by any Borrower (as borrower or in any other capacity), Lender
or any other such Person. Guarantor hereby acknowledges and agrees that this
waiver is intended to benefit Borrowers and Lender and shall not limit or
otherwise affect Guarantor's liability hereunder, under any other Loan Document
to which Guarantor is a party, or the enforceability hereof or thereof.
11. UNDERSTANDINGS WITH RESPECT TO WAIVERS AND CONSENTS. Guarantor
warrants and agrees that each of the waivers and consents set forth herein are
made with full knowledge of their significance and consequences, with the
understanding that events giving rise to any defense or right waived may
diminish, destroy or otherwise adversely affect rights which Guarantor otherwise
may have against Borrowers, Lender or others, or against any collateral, and
that, under the circumstances, the waivers and consents herein given are
reasonable and not contrary to public policy or Law. Guarantor acknowledges that
it has either consulted with legal counsel regarding the effect of this Guaranty
and the waivers and consents set forth herein, or has made an informed decision
not to do so. If this Guaranty or any of the waivers or consents herein are
determined to be unenforceable under or in violation of applicable Law, this
Guaranty and such waivers and consents shall be effective to the maximum extent
permitted by Law.
12. REPRESENTATIONS AND WARRANTIES. Guarantor hereby makes each and
every representation and warranty applicable to Guarantor set forth in Article 4
of the Loan Agreement as if set forth in full herein.
13. COSTS AND EXPENSES. After an Event of Default, Guarantor agrees
to pay to Lender all costs and expenses (INCLUDING, without limitation,
reasonable attorneys' fees
364-Day Loan Agreement
and disbursements) incurred by Lender in the enforcement or attempted
enforcement of this Guaranty, whether or not an action is filed in connection
therewith, and in connection with any waiver or amendment of any term or
provision hereof. All advances, charges, costs and expenses, INCLUDING
reasonable attorneys' fees and disbursements (including the reasonably allocated
cost of legal counsel employed by Lender), incurred or paid by Lender in
exercising any right, privilege, power or remedy conferred by this Guaranty, or
in the enforcement or attempted enforcement thereof, shall be subject hereto and
shall become a part of the Guarantied Obligations and shall be paid to Lender by
Guarantor, after an Event of Default and immediately upon demand, together with
interest thereon at the rate(s) provided for under the Loan Agreement.
14. CONSTRUCTION OF THIS GUARANTY. This Guaranty is intended to give
rise to ABSOLUTE AND UNCONDITIONAL obligations on the part of Guarantor; hence,
in any construction hereof, NOTWITHSTANDING ANY PROVISION OF ANY LOAN DOCUMENT
TO THE CONTRARY, this Guaranty shall be construed strictly in favor of Lender in
order to accomplish its stated purpose.
15. LIABILITY. Notwithstanding anything to the contrary elsewhere
contained herein or in any Loan Document to which Guarantor is a Party, the
aggregate liability of Guarantor hereunder for payment and performance of the
Guarantied Obligations shall not exceed an amount which, in the aggregate, is
$1.00 less than that amount which if so paid or performed would constitute or
result in a "fraudulent transfer", "fraudulent conveyance", or terms of similar
import, under applicable state or federal Law, including without limitation,
Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code. The liability of Guarantor
hereunder is independent of any other guaranties at any time in effect with
respect to all or any part of the Guarantied Obligations, and Guarantor's
liability hereunder may be enforced regardless of the existence of any such
guaranties. Any termination by or release of any guarantor in whole or in part
shall not affect the continuing liability of Guarantor hereunder, and no notice
of any such termination or release shall be required. The execution hereof by
Guarantor is not founded upon an expectation or understanding that there will be
any other guarantor of the Guarantied Obligations.
16. WAIVER OF JURY TRIAL. GUARANTOR AND LENDER EXPRESSLY WAIVE THEIR
RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF
ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS GUARANTY, THE LOAN
AGREEMENT, THE OTHER LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY
OF THE PARTIES AGAINST ANY OTHER PARTY OR PARTIES, WHETHER NOW EXISTING OR
HEREAFTER ARISING AND WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR
OTHERWISE. GUARANTOR AND LENDER AGREE THAT ANY SUCH CLAIM, DEMAND, ACTION OR
CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING
THE FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL
BY JURY IS WAIVED BY OPERATION OF
364-Day Loan Agreement
THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN
WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS GUARANTY,
THE LOAN AGREEMENT OR THE OTHER LOAN DOCUMENTS OR ANY PROVISION HEREOF OR
THEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS,
SUPPLEMENTS OR MODIFICATIONS TO THIS GUARANTY, THE LOAN AGREEMENT AND THE OTHER
LOAN DOCUMENTS. ANY PARTY HERETO 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.
17. THIS GUARANTY SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE LOCAL LAWS OF THE STATE OF CALIFORNIA WITHOUT
REFERENCE TO THE CONFLICT OF LOCAL LAWS OR CHOICE OF LAW PRINCIPLES THEREOF.
IN WITNESS WHEREOF, Guarantor has executed this Guaranty by its duly
authorized officer as of the date first written above.
"Guarantor"
XXXXXX'X ENTERTAINMENT, INC.,
a Delaware corporation
By:____________________________________
Xxxxxxx X. Xxxxxx, Vice President and
Treasurer
Address:
Xxxxxx'x Entertainment, Inc.
0 Xxxxxx'x Xxxxx
Xxx Xxxxx, Xxxxxx 00000-0000
Attn: Xxxxxxx X. Xxxxxx, Vice President
and Treasurer
Telecopier: 702/407-6405
Telephone: 702/000-0000
364-Day Loan Agreement
EXHIBIT F
REQUEST FOR LOAN
AMENDED AND RESTATED 364-DAY LOAN AGREEMENT
1. This Request for Loan is executed and delivered by
_______________ ("Requesting Borrower"), to Bank of America, N.A., as the
Administrative Agent ("Administrative Agent") pursuant to the Five Year Loan
Agreement dated as of April 30, 1999, as amended as of April 3, 2000 by an
Amendment No. 1 and as amended as of April 26, 2001 by an Amendment No. 2 (as
amended, modified or extended, the "Loan Agreement"), among Requesting Borrower,
as a Borrower, the other Borrowers that are parties thereto (each a "Borrower"
and collectively, the "Borrowers"), Xxxxxx'x Entertainment, Inc., a Delaware
corporation, as Guarantor, the Lenders therein named, and Administrative Agent.
Any terms used herein and not defined herein shall have the meanings defined in
the Loan Agreement.
2. Borrower hereby requests that the Lenders make a Loan
pursuant to the Loan Agreement as follows:
(a) AMOUNT OF REQUESTED LOAN:
$_________________________
(b) FUNDING DATE OF LOAN:
--------------------------
(c) TYPE OF LOAN (Check one box only):
--
/__/ BASE RATE
--
/__/ EURODOLLAR RATE FOR A EURODOLLAR PERIOD OF ________
MONTHS
3. In connection with the request, Borrower certifies that:
(a) If this Request for Loan is for a Loan which will increase
the principal amount outstanding under the Notes, now and as of the
date of the requested Loan,
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except (i) for representations and warranties which speak as of a
particular date or are no longer true and correct as a result of a
change which is permitted by the Loan Agreement and (ii) as disclosed
by Borrowers and approved in writing by the Requisite Lenders, each
representation and warranty made by each Borrower in Article 4 of the
Loan Agreement (other than Sections 4.4(a), 4.6 (first sentence), 4.8,
4.15) will be true and correct, both immediately before and after
giving effect to such Loan, as though such representations and
warranties were made on and as of that date; and
(b) There is not any action, suit, proceeding or
investigation pending as to which Parent or any of its Subsidiaries
have been served or received notice or, to the best knowledge of
Borrowers, threatened 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.
4. This Request is executed on _________________ on behalf of
Requesting Borrower.
-----------------------------,
a _________________ _____________
By:___________________________
Title:__________________________
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EXHIBIT G
ELECTION TO BECOME A BORROWER
Bank of America, N.A.,
as Administrative Agent under each of the Loan Agreements described below
000 Xxxxx Xxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Ladies and Gentlemen:
The undersigned, ___________________________, a ______________
____________ ("Subsidiary") refers to the Five Year Loan Agreement, dated as of
April 30, 1999, as amended as of April 3, 2000 by an Amendment No. 1 thereto and
as amended as of April 26, 2001 by an Amendment No 2 and the Amended and
Restated 364-Day Loan Agreement, dated as of April 26, 2001 (as amended,
modified or extended, the "Loan Agreements"), among Xxxxxx'x Entertainment,
Inc., a Delaware corporation ("Parent"), as Guarantor, Xxxxxx'x Operating
Company, Inc., a Delaware corporation ("Company"), Marina Associates, a New
Jersey general partnership ("Marina") (each a "Borrower" and collectively, the
"Borrowers"), the Lenders therein named, and Administrative Agent. Any terms
used herein and not defined herein shall have the meanings defined in the Loan
Agreements.
Subsidiary, desiring to incur Loans under the Loan Agreements, hereby
elects, pursuant to the provisions of Section 2.6 of each of the Loan
Agreements, to become a Borrower for the purposes of the Loan Agreements,
effective from the date hereof. Subsidiary confirms that it is a Wholly-Owned
Subsidiary under the Loan Agreements and confirms that the representations and
warranties set forth in Article 4 of the Loan Agreements are true and correct as
to Subsidiary, and Subsidiary hereby agrees to comply with all the obligations
of a Borrower under, and to be bound in all respects by the terms of, the Loan
Agreements as if Subsidiary an original signatory thereto. Subsidiary proposes
the following Aggregate Sublimit:
PROPOSED AGGREGATE SUBLIMIT FOR SUBSIDIARY:
$________________________
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Subsidiary, concurrently with its execution hereof, is delivering the
appropriate executed documents, certificates, resolutions, opinions, Competitive
Advance Note, Committed Advanced Notes and Swing Line Documents required by
Sections 2.6(a) and (b) of the Loan Agreements.
Subsidiary shall, at its own expense, execute and deliver such further
documents, certificates, resolution, opinions and other assurances as the
Administrative Agent may reasonably request in connection herewith. All notices
and other communications provided for under the Loan Agreement may be sent to
the address set forth below.
Very truly yours,
Address:
__________________________ By: __________________________
__________________________
__________________________ Title: _________________________
Acknowledged and Agreed: [additional Borrowers:]
Xxxxxx'x Entertainment, Inc. _____________________________
By:__________________________ By:__________________________
Its:__________________________ Its:__________________________
Xxxxxx'x Operating Company, Inc. _____________________________
By:__________________________ By:__________________________
Its:__________________________ Its:__________________________
Marina Associates
By: Xxxxxx'x New Jersey, Inc.,
general partner
By: ________________________
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Its: ________________________
By: Xxxxxx'x Atlantic City, Inc.,
general partner
By: ________________________
Its: ________________________
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EXHIBIT H
JOINT BORROWER PROVISIONS
Reference is made to the Amended and Restated 364-Day Loan Agreement
(the "Loan Agreement") among Xxxxxx'x Operating Company, Inc., a Delaware
corporation ("Company"), Marina Associates, a New Jersey general partnership
("Marina" and together with the Company and such other Subsidiaries that become
Borrowers pursuant thereto, "Borrowers"), Xxxxxx'x Entertainment, Inc., a
Delaware corporation ("Parent"), as Guarantor, the Lenders therein named, and
Bank of America N.A., as Administrative Agent. These Joint Borrower Provisions
are attached to and made a part of the Loan Agreement as Exhibit H thereto.
Capitalized terms used herein are used with the meanings set forth for those
terms in the Loan Agreement. Borrowers each agree that:
1. REQUESTS FOR LOANS. Requests for Loans may be made by any Borrower, and
the Administrative Agent and the Lenders are authorized to honor and rely upon
any such request or any instructions received from any responsible official of
any Borrower. It is expressly agreed and understood by each Borrower that the
Administrative Agent and the Lenders shall have no responsibility to inquire
into the apportionment, allocation or disposition of any Loans made to any
Borrower.
2. ACKNOWLEDGMENT AND INDEMNITY RE JOINT HANDLING. It is understood and
agreed that the handling of this credit facility on a joint borrowing basis as
set forth in this Agreement is as an accommodation to Borrowers and at the
request of Borrowers, and that the Administrative Agent and the Lenders shall
incur no liability to any Borrower or any other Person as a result thereof. To
induce the Administrative Agent and the Lenders to do so, and in consideration
thereof, each of the Borrowers hereby agrees to indemnify the Administrative
Agent and each Lender and hold them harmless from and against any and all
liabilities, expenses, losses, damages and/or claims of damage or injury
asserted against them by any Borrower or by any other Person arising from or
incurred by reason of the joint handling of the financing arrangements provided
in the Loan Agreement, reliance by the Administrative Agent and the Lenders on
any requests or instructions from any Borrower, or any other similar action
taken by the Administrative Agent or any Lender under the Loan Documents.
3. REPRESENTATION AND WARRANTY. Each Borrower represents and warrants to
the Administrative Agent and each Lender that (i) it has established adequate
means of obtaining, on a continuing basis, financial and other information
pertaining to the business, operations and condition (financial and otherwise)
of Parent and its Subsidiaries and their Property, and (ii) it now is and
hereafter will be completely familiar with the business, operations and
condition (financial and otherwise) of such Persons and their Property. Each
Borrower hereby waives and relinquishes any duty on the part of the
Administrative Agent or any Lender to disclose to it any matter, fact or thing
relating to the business, operations or condition (financial or otherwise) of
Borrowers, Parent, its Subsidiaries or their Property, whether
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now or hereafter known by the Administrative Agent or any Lender during the term
of the Loan Agreement.
______4. WAIVERS AND CONSENTS. Each of the Borrowers consents and agrees that
the Administrative Agent and the Lenders may, at any time and from time to time,
without notice or demand to any of them, and without affecting the
enforceability or continuing effectiveness hereof:
a. supplement, modify, amend, extend, renew, accelerate, or
otherwise change the time for payment or the terms of the Obligations or
any part thereof, including any increase or decrease of the rate(s) of
interest thereon;
b. supplement, modify, amend or waive, or enter into or give any
agreement, approval or consent with respect to, the Obligations or any
part thereof or any of the Loan Documents or any additional security or
guaranties, or any condition, covenant, default, remedy, right,
representation or term thereof or thereunder;
c. accept new or additional instruments, documents or agreements in
exchange for or relative to any of the Loan Documents or the Obligations
or any part thereof;
d. accept partial payments on the Obligations;
e. receive and hold additional security or guaranties for the
Obligations or any part thereof;
f. release, reconvey, terminate, waive, abandon, fail to perfect,
subordinate, exchange, substitute, transfer and/or enforce any security or
guaranties, and apply any security and direct the order or manner of sale
thereof as the Administrative Agent and the Lenders in their sole and
absolute discretion may determine;
g. release any Person from any personal liability with respect to
the Obligations or any part thereof;
x. xxxxxx, release on terms satisfactory to the Administrative Agent
and the Lenders or by operation of applicable Laws or otherwise liquidate
or enforce any Obligations and any security or guaranty therefor in any
manner, consent to the transfer of any security and bid and purchase at
any sale; and/or
i. consent to the merger, change or any other restructuring or
termination of the corporate existence of Borrowers, or any of them, any
guarantor or any other Person, and correspondingly restructure the
Obligations, and any such merger, change, restructuring or termination
shall not affect the liability of any Person or the
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continuing effectiveness hereof or the enforceability hereof with respect
to all or any part of the Obligations;
provided that nothing herein shall waive, alter, diminish or modify any rights
of the Borrowers under the Loan Documents, including without limitation, the
rights of the Borrowers to agree to any amendments or modifications of the Loan
Documents.
Upon the occurrence and during the continuance of any Event of Default,
the Administrative Agent and the Lenders may enforce the Loan Agreement and the
other Loan Documents independently as to each Borrower and independently of any
other remedy or security the Administrative Agent or any Lender at any time may
have or hold in connection with the Obligations. Each Borrower expressly waives
any right to require the Administrative Agent or any Lender to marshal assets in
favor of Borrowers, and agrees that the Administrative Agent and Lenders may
proceed against Borrowers, or any of them, or upon any security or remedy before
proceeding to enforce this Loan Agreement, in such order as they shall determine
in their sole and absolute discretion. The Administrative Agent (with the
consent of the Requisite Lenders) may file a separate action or actions against
Borrowers, or any of them, and/or any guarantor without respect to any Borrower,
whether action is brought or prosecuted with respect to any other security or
against any other Person, or whether any other Person is joined in any such
action or actions. Each Borrower agrees that the Administrative Agent and the
Lenders may deal with each Borrower or themselves other in connection with the
Obligations or otherwise, or alter any contracts or agreements now or hereafter
existing between any of them, in any manner whatsoever, all without in any way
altering or affecting the security of the Loan Documents. Borrowers expressly
waive the benefit of any statute(s) of limitations affecting their liability
under the Loan Documents or the enforcement of the Obligations or any Liens
created or granted therein. The Administrative Agent and the Lenders' rights
hereunder shall be reinstated and revived, and the enforceability of this Loan
Agreement shall continue, with respect to any amount at any time paid on account
of the Obligations which thereafter shall be required to be restored or returned
by them upon the bankruptcy, insolvency or reorganization of Borrowers, or any
of them, or any other Person, or otherwise, all as though such amount had not
been paid. The rights of Lender created or granted under the Loan Documents and
their enforceability at all times shall remain effective to secure the full
amount of all the Obligations, even though the Obligations, including any part
thereof or any other security or guaranty therefor, may be or hereafter may
become invalid or otherwise unenforceable as against Borrowers or any guarantor
or surety and whether or not such other Persons shall have any personal
liability with respect thereto. Each Borrower expressly waives any and all
defenses now or hereafter arising or asserted by reason of (a) any disability or
other defense of any of the other such Persons with respect to the Obligations,
(b) the unenforceability or invalidity of any security or guaranty for the
Obligations or the lack of perfection or continuing perfection or failure of
priority of any security for the Obligations, (c) the cessation for any cause
whatsoever of the liability of Borrowers, or any of them (other than by reason
of the full payment and performance of all Obligations), (d) any failure of the
Administrative Agent or any Lender to marshal assets in favor of Borrowers or
any other Person, (e) except as otherwise provided in
-3-
the Loan Documents, any failure of the Administrative Agent or any Lender to
give notice of sale or other disposition of collateral to any Borrower or any
other Person or any defect in any notice that may be given in connection with
any sale or disposition of collateral, (f) any failure of the Administrative
Agent or any Lender to comply with applicable Laws in connection with the sale
or other disposition of any collateral or other security for any Obligation,
including without limitation any failure of the Administrative Agent or any
Lender to conduct a commercially reasonable sale or other disposition of any
collateral or other security for any Obligation, (g) any act or omission of the
Administrative Agent or any Lender or others that directly or indirectly results
in or aids the discharge or release of Borrowers or any of them, or any other
Person or the obligations or any other security or guaranty therefor by
operation of Law or otherwise, (h) any Law which provides that the obligation of
a surety or guarantor must neither be larger in amount nor in other respects
more burdensome than that of the principal or which reduces a surety's or
guarantor's obligation in proportion to the principal obligation, (i) any
failure of the Administrative Agent or any Lender to file or enforce a claim in
any bankruptcy or other proceeding with respect to any Person, (j) the election
by the Administrative Agent or any Lender, in any bankruptcy proceeding of any
Person, of the application or non-application of Section 1111(b)(2) of the
United States Bankruptcy Code, (k) any extension of credit or the grant of any
Lien under Section 364 of the United States Bankruptcy Code, (l) any use of cash
collateral under Section 363 of the United States Bankruptcy Code, (m) any
agreement or stipulation with respect to the provision of adequate protection in
any bankruptcy proceeding of any Person, (n) the avoidance of any Lien in favor
of the Administrative Agent or any Lender for any reason, (o) any bankruptcy,
insolvency, reorganization, arrangement, readjustment of debt, liquidation or
dissolution proceeding commenced by or against any Person, including any
discharge of, or bar or stay against collecting, all or any of the Obligations
(or any interest thereon) in or as a result of any such proceeding, (p) to the
extent permitted, the benefits of any form of one-action rule, or (q) any action
taken by Lender that is authorized by these Joint Borrower Provisions or any
other provision of any Loan Documents. Each Borrower expressly waives all
setoffs and counterclaims and all presentments, demands for payment or
performance, notices of nonpayment or nonperformance, protests, notices of
protest, notices of dishonor and all other notices or demands of any kind or
nature whatsoever with respect to the Obligations, and all notices of acceptance
of the Loan Agreement or of the existence, creation or incurrence of new or
additional Obligations.
______5. LIENS ON REAL PROPERTY. In the event that all or any part of the
Obligations at any time are secured by any one or more deeds of trust or
mortgages or other instruments creating or granting Liens or any interests in
real Property, each of the Borrowers authorizes the Administrative Agent and
each Lender, upon the occurrence of and during the continuance of any Event of
Default, at their sole option, without notice or demand and without affecting
any Obligations of any such Person, the enforceability of the Loan Documents, or
the validity or enforceability of any Liens of the Administrative Agent or any
Lender on any collateral, to foreclose any or all of such deeds of trust or
mortgages or other instruments by judicial or nonjudicial sale. Each Borrower
expressly waives all rights and
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any defenses to the enforcement of the Loan Documents or any rights of the
Administrative Agent or any Lender created or granted thereby or to the recovery
by the Administrative Agent and the Lenders against Borrowers, or any of them,
any guarantor or any other Person liable therefor of any deficiency after a
judicial or nonjudicial foreclosure or sale, even though such a foreclosure or
sale because all or any part of the Obligations is secured by real Property.
This means, among other things: (1) Administrative Agent and each Lender may
collect from any Borrower, any guarantor or any other Person without first
foreclosing on any real or personal Property collateral pledged by any Borrower,
any other Party, any guarantor or any other Person. (2) If Administrative Agent
or any Lender forecloses on any real Property collateral pledged by Borrowers,
any guarantor or any other Person: (A) The amount of the Obligations may be
reduced only by the price for which that collateral is sold at the foreclosure
sale, even if the collateral is worth more than the sale price. (B)
Administrative Agent and each Lenders may collect from Borrowers, any guarantor
or any other Person even if the Administrative Agent or any Lender, by
foreclosing on the real Property collateral, has destroyed any right any
guarantor, any other Party or any other Person may have to collect from any
Borrower. This is an unconditional and irrevocable waiver of any rights and
defenses any Borrower may have because all or any part of the Obligations is
secured by real Property. Each of the Borrowers expressly waives any defenses or
benefits that may be derived from California Code of Civil Procedure xx.xx.
580a, 580b, 580d or 726, or comparable provisions of the Laws of any other
jurisdiction, including, without limitation, NRS Section 40.430 and judicial
decisions relating thereto, and NRS Sections 40.451, 40.455, 40.457 and 40.459,
and all other suretyship defenses it otherwise might or would have under
California Law or other applicable Law. Each Borrower expressly waives any right
to receive notice of any judicial or nonjudicial foreclosure or sale of any real
Property or interest therein subject to any such deeds of trust or mortgages or
other instruments and any guarantor's or any other Person's failure to receive
any such notice shall not impair or affect each Borrower's Obligations or the
enforceability of the Joint Borrower Provisions or any rights of Administrative
Agent or Lenders created or granted.
______6. WAIVER OF RIGHTS OF SUBROGATION. Notwithstanding anything to the
contrary elsewhere contained herein or in any other Loan Document to which any
Borrower is a party, Borrowers hereby waive with respect each other and their
respective successors and assigns (including any surety) and any other Person
which is directly or indirectly a creditor of any Borrower or any surety for any
Borrower, any and all rights at Law or in equity, to subrogation, to
reimbursement, to exoneration, to contribution, to setoff or to any other rights
that could accrue to a surety against a principal, to a guarantor against a
maker or obligor, to an accommodation party against the party accommodated, or
to a holder or transferee against a maker and which any Borrower may have or
hereafter acquire against each other or any other party in connection with or as
a result of their execution, delivery and/or performance of this Loan Agreement
or any other Loan Document to which any of them is a party. Borrowers agree that
they shall not have or assert any such rights against one another or their
respective successors and assigns or any other Person (including any surety)
which is directly or indirectly a creditor of any surety for any Borrower,
either directly or as an attempted setoff
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to any action commenced against any other Person comprising any Borrower (as a
Borrower or in any other capacity) or any other party. Each Borrower hereby
acknowledges and agrees that this waiver is intended to benefit of Borrowers and
Lenders and shall not limit or otherwise affect any of their liabilities
hereunder, under any other Loan Document to which any of them is a party, or the
enforceability hereof or thereof.
7. UNDERSTANDINGS WITH RESPECT TO WAIVERS AND CONSENTS. Borrowers, and
each of them, warrant and agree that each of the waivers and consents set forth
herein are made with full knowledge of their significance and consequences, with
the understanding that events giving rise to any defense or right waived may
diminish, destroy or otherwise adversely affect rights which they otherwise may
have against each other, the Administrative Agent, the Lenders or others, or
against any collateral, and that, under the circumstances, the waivers and
consents herein given are reasonable and not contrary to public policy or Law.
Each Borrower acknowledges that it has either consulted with legal counsel
regarding the effect of the Loan Documents and the waivers and consents set
forth therein, or has made an informed decision not to do so. If the Loan
Documents or any of the waivers or consents herein are determined to be
unenforceable under or in violation of applicable Law, such waivers and consents
shall be effective to the maximum extent permitted by Law.
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