FOURTH AMENDED AND RESTATED CREDIT AGREEMENT among MONARCH CASINO & RESORT, INC., GOLDEN ROAD MOTOR INN, INC., MONARCH GROWTH INC., and MONARCH BLACK HAWK, INC. as Borrowers, THE LENDERS NAMED HEREIN, and WELLS FARGO BANK, NATIONAL ASSOCIATION, as...
EXECUTION VERSION
Published CUSIP Number: 00000XXX0
Revolving Loan CUSIP Number: 00000XXX0
Term Loan CUSIP Number: 00000XXX0
FOURTH AMENDED AND RESTATED CREDIT AGREEMENT
among
MONARCH CASINO & RESORT, INC.,
GOLDEN ROAD MOTOR INN, INC.,
MONARCH GROWTH INC.,
and
MONARCH BLACK HAWK, INC.
as Borrowers,
THE LENDERS NAMED HEREIN,
and
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Administrative Agent, L/C Issuer and Swing Line Lender
XXXXX FARGO SECURITIES, LLC,
BOFA SECURITIES, INC.
and
U.S. BANK NATIONAL ASSOCIATION,
as Joint Lead Arrangers and Joint Bookrunners
BANK OF AMERICA, N.A.,
as Syndication Agent
U.S. BANK NATIONAL ASSOCIATION,
as Documentation Agent
Dated as of September 3, 2020
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SCHEDULES
SCHEDULE I-THE LENDERS
SCHEDULE II-EXISTING LETTERS OF CREDIT
SCHEDULE A-ATLANTIS REAL PROPERTY
SCHEDULE B-V/P PROPERTY
SCHEDULE 3.01-CONDITIONS PRECEDENT TO CLOSING
SCHEDULE 4.01(G)-LITIGATION
SCHEDULE 4.01(H)-REAL PROPERTY
SCHEDULE 4.01(J)(II)-EQUITY SECURITIES
SCHEDULE 4.01(K)-MULTIEMPLOYER PLANS
SCHEDULE 4.01(O)-SUBSIDIARIES
SCHEDULE 4.01(U)-INSURANCE
SCHEDULE 4.01(V)-AGREEMENTS WITH AFFILIATES, ETC.
SCHEDULE 5.01(Q)POST-CLOSING
SCHEDULE 5.02(B)-EXISTING LIENS
SCHEDULE 5.02(E)-EXISTING INVESTMENTS
EXHIBITS
EXHIBIT A-NOTICE OF LOAN BORROWING
EXHIBIT B-NOTICE OF CONVERSION
EXHIBIT C-NOTICE OF INTEREST PERIOD SELECTION
EXHIBIT D-NOTICE OF SWING LOAN BORROWING
EXHIBIT E-REVOLVING LOAN NOTE
EXHIBIT F-SWING LOAN NOTE
EXHIBIT G-ASSIGNMENT AGREEMENT
EXHIBIT H-COMPLIANCE CERTIFICATE
EXHIBIT I-TERM LOAN NOTE
EXHIBIT J-U.S. TAX COMPLIANCE CERTIFICATE
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FOURTH AMENDED AND RESTATED CREDIT AGREEMENT
THIS FOURTH AMENDED AND RESTATED CREDIT AGREEMENT, dated as of September 3, 2020, is entered into by and among: (1) MONARCH CASINO & RESORT, INC., a Nevada corporation (“Parent”), GOLDEN ROAD MOTOR INN, INC., a Nevada corporation (“Golden Road”), MONARCH GROWTH INC., a Nevada corporation (“MGI”) and MONARCH BLACK HAWK, INC., a Colorado corporation (“Black Hawk” and together with Parent, Golden Road and MGI, each a “Borrower” and collectively, the “Borrowers”); (2) each of the financial institutions party to this Agreement from time to time (each a “Lender” and, collectively, the “Lenders”); and (3) XXXXX FARGO BANK, NATIONAL ASSOCIATION (“Xxxxx Fargo”), as Administrative Agent, L/C Issuer and Swing Line Lender. XXXXX FARGO SECURITIES, LLC (“WFS”), BOFA SECURITIES, INC. and U.S. BANK NATIONAL ASSOCIATION have each been given the title of joint lead arranger and joint bookrunner in connection with this Agreement, it being understood that WFS shall have the title of left lead arranger. BANK OF AMERICA, N.A. has been given the title of syndication agent in connection with this Agreement. U.S. BANK NATIONAL ASSOCIATION has been given the title of documentation agent in connection with this Agreement.
RECITALS
A.The Borrowers, the Administrative Agent and certain of the Lenders previously entered into that certain Third Amended and Restated Credit Agreement dated as of July 20, 2016 (as amended, restated, supplemented and otherwise modified and in effect immediately prior to the Fourth Restatement Effective Date (as defined herein), the “Existing Credit Agreement”).
B.The Borrowers have requested (i) an extension of the Maturity Date, (ii) an increase in the aggregate principal amount of the credit facilities (consisting of a term loan facility and a revolving loan facility as described herein) and (iii) certain other amendments set forth herein.
X.Xx a result of such request, the parties wish to amend and restate the Existing Credit Agreement in its entirety by entering into this Agreement. For convenience, certain matters relating to the period prior to this Agreement have been deleted.
AGREEMENT
NOW, THEREFORE, in consideration of the above Recitals and the mutual covenants herein contained, effective as of the Fourth Restatement Effective Date, the parties hereby amend and restate the Existing Credit Agreement in its entirety as follows:
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“Acquired Portion” shall have the meaning given to that term in Section 2.01(b)(v).
“Adjacent Driveway Property” shall mean the leasehold interest of Golden Road in that portion of the Atlantis Hotel/Casino Property which is designated as Parcel 2 on Schedule A attached hereto, which leasehold interest is evidenced by the Adjacent Driveway Lease.
“Adjacent Driveway Lease” shall mean that certain Lease Agreement and Option to Purchase dated January 29, 2004, by and between BLILP, as lessor, and Golden Road, as lessee, pursuant to which, among other things, Golden Road is granted a leasehold interest in, and an option to purchase, the Adjacent Driveway Property.
“Adjacent Driveway Estoppel” shall mean the Estoppel Certificate executed as of February 20, 2004, by Biggest Little City Investments L.P., a Delaware limited partnership, and recorded on February 20, 2004 in the Official Records of Washoe County, Nevada, as Document No. 2996371, pursuant to which: (a) it certified and represented to Administrative Agent that the Adjacent Driveway Lease represents the entire agreement between the parties thereto with respect to the Adjacent Driveway Property and supersedes all other previous documents and agreements between them, that the Adjacent Driveway Lease had not been modified, supplemented or amended except as set forth therein and that there are no defaults existing or continuing under any of the provisions of the Adjacent Driveway Lease; and (b) other agreements are made regarding notice to Administrative Agent in the event of a default under this Adjacent Driveway Lease, Administrative Agent’s right to cure and the rights of the Lenders and their successors to continue in possession of the Adjacent Driveway Property.
“Administrative Agent” shall mean Xxxxx Fargo, when acting in its capacity as the administrative agent under any of the Loan Documents, and any successor Administrative Agent appointed pursuant to Section 7.06. In such capacity, Xxxxx Fargo is also acting as collateral agent for the Lender Rate Contract Counterparties and Lender Bank Product Providers.
“Affected Financial Institution” shall mean (a) any EEA Financial Institution or (b) any UK Financial Institution.
“Affiliate” shall mean, with respect to any Person, (a) each Person that, directly or indirectly, owns or controls, whether beneficially or as a trustee, guardian or other fiduciary, ten percent (10%) or more of any class of Equity Securities of such Person, (b) each Person that controls, is controlled by or is under common control with such Person or any Affiliate of such Person or (c) each of such Person’s officers, directors, managers, joint venturers and partners; provided, however, that in no case shall any Lender Party be deemed to be an Affiliate of any Loan Party for purposes of this Agreement. For the purpose of this definition, “control” of a Person shall mean the possession, directly or indirectly, of the power to direct or cause the direction of its management or policies, whether through the ownership of voting securities, by contract or otherwise.
“Agreement” shall mean this Credit Agreement.
“Anti-Corruption Laws” shall mean all laws, rules, and regulations of any jurisdiction applicable to the Borrowers from time to time concerning or relating to bribery or corruption,
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including, without limitation, the United States Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder.
“Anti-Money Laundering Laws” shall mean any and all laws, statutes, regulations or obligatory government orders, decrees, ordinances or rules applicable to the Borrowers related to terrorism financing or money laundering, including any applicable provision of the Patriot Act and The Currency and Foreign Transactions Reporting Act (also known as the “Bank Secrecy Act,” 31 U.S.C. §§ 5311-5330 and 12U.S.C. §§ 1818(s), 1820(b) and 1951-1959).
“Applicable Lending Office” shall mean, with respect to any Lender, (a) in the case of its Base Rate Loans, its Domestic Lending Office, and (b) in the case of its LIBOR Loans, its Foreign Lending Office.
“Applicable Margin” shall mean, with respect to each Loan (and with respect to the calculation of Letter of Credit fees pursuant to Section 2.02(i)), the per annum margin which is determined pursuant to the Pricing Grid. The Applicable Margin shall be determined as provided in the Pricing Grid and may change as set forth in the definition of Pricing Grid.
“Approved Fund” shall mean any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.
“Architect” shall mean the licensed architect that Black Hawk engages to design the Expansion Project, including the preparation of the Plans and Specifications therefor.
“Assignee Lender” shall have the meaning given to that term in Section 8.05(c).
“Assignment” shall have the meaning given to that term in Section 8.05(c).
“Assignment Agreement” shall have the meaning given to that term in Section 8.05(c).
“Assignment Effective Date” shall have, with respect to each Assignment Agreement, the meaning set forth therein.
“Assignment of Architect’s Agreement” shall mean that certain Assignment of Plans and Specifications and Architect’s Agreement executed by Black Hawk in favor of the Administrative Agent (and consented to and acknowledged by the Architect) in form and substance satisfactory to the Administrative Agent.
“Assignment of Construction Contract” shall mean that certain Assignment of Construction Contract executed by Black Hawk in favor of the Administrative Agent (and consented to and acknowledged by the General Contractor) in form and substance satisfactory to the Administrative Agent.
“Assignment of Entitlements” shall mean, collectively, (a) that certain Assignment of Entitlements, Contracts, Rents and Revenues, dated as of February 20, 2004, executed by Golden Road in favor of the Administrative Agent, (b) that certain Assignment of Entitlements, Contracts, Rents and Revenues, dated as of April 26, 2012, executed by MGI in favor of the
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Administrative Agent, (c) that certain Assignment of Entitlements, Contracts, Rents and Revenues, dated as of April 26, 2012, executed by Black Hawk in favor of the Administrative Agent and (d) that certain Assignment of Entitlements, Contracts, Rents and Revenues, dated as of September 3, 2020, executed by Inter-Mountain Construction, LLC in favor of the Administrative Agent.
“Assignor Lender” shall have the meaning given to that term in Section 8.05(c).
“Atlantis - BLILP Estoppel” shall mean a Landlord Consent and Estoppel Agreement executed by BLILP: (i) consenting to encumbrance of Golden Road’s interest in the Atlantis – BLILP Lease, with the lien and security agreement of the Atlantis Leasehold Deed of Trust; (ii) acknowledging that the Atlantis – BLILP Lease is in full force and effect and that Golden Road is not in default of any of its material obligations thereunder; and (iii) providing such other assurances as may be required by Administrative Agent.
“Atlantis - BLILP Lease” shall mean that certain Lease Agreement, dated August 28, 2015, between Golden Road and BLILP, as amended from time to time.
“Atlantis BLILP Property” shall mean the leasehold interest of Golden Road in that portion of the Atlantis Hotel/Casino Property which is described on Schedule A attached hereto, which leasehold interest is evidenced by the Atlantis – BLILP Lease.
“Atlantis Casino Resort Spa” shall mean a collective reference to the Atlantis Real Property, the improvements located thereon and the hotel and casino business and related activities conducted on the Atlantis Real Property.
“Atlantis Deed of Trust” shall mean the Amended and Restated Deed of Trust, Fixture Filing and Security Agreement with Assignment of Leases and Rents, dated as of the Second Restatement Effective Date, by Golden Road in favor of Western Title Company, Inc., for the benefit of the Administrative Agent.
“Atlantis Hotel/Casino Property” shall mean that certain real property more particularly described on that certain schedule marked Schedule A, affixed hereto and by this reference incorporated herein and made a part hereof, and the CC Skybridge Xxxxxxx Xxxx Entitlements.
“Atlantis Leasehold Deed of Trust” shall mean a Leasehold Deed of Trust, Assignment of Leases and Rents, Security Agreement and Fixture Filing, by Golden Road in favor of Western Title Company, Inc., for the benefit of the Administrative Agent in connection with Atlantis - BLILP Lease.
“Atlantis Real Property” shall mean a collective reference to the Atlantis Hotel/Casino Property, the Pedestrian Crossing Airspace, the V/P Property, the CC Skybridge Easements and the Atlantis BLILP Property.
“Bail-In Action” shall mean the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.
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“Bail-In Legislation” shall mean, (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).
“Base Rate” shall mean, on any day, the greatest of (a) the Federal Funds Rate in effect on the Business Day prior to such day, as published by the Federal Reserve Bank of New York, plus 1.50%, (b) the Prime Rate in effect on such day and (c) the One Month LIBOR Rate for such day (determined on a daily basis as set forth below) plus 1.50%. As used in this definition, “One Month LIBOR Rate” shall mean, subject to the implementation of a Benchmark Replacement in accordance with Section 2.17, with respect to any interest rate calculation for a Loan or other Obligation bearing interest at the Base Rate, a rate per annum equal to the quotient (rounded upward if necessary to the nearest 1/100 of one percent) of (i) the rate per annum reported on Reuters Screen LIBOR01 Page (or any successor or substitute page thereof), or if not reported by Reuters, as reported by any service selected by the Administrative Agent, on the applicable day (provided that if such day is not a Business Day for which such rate is quoted, the next preceding Business Day for which such rate is quoted) at or about 11:00 a.m., London time (or as soon thereafter as practicable), for Dollar deposits being delivered in the London interbank eurodollar currency market for a term of one month commencing on such date of determination, divided by (ii) one minus the Reserve Requirement in effect on such day. If for any reason rates are not available as provided in clause (i) of the preceding sentence, the rate to be used in clause (i) shall be, at the Administrative Agent’s discretion (in each case, rounded upward if necessary to the nearest 1/100 of one percent), (A) the rate per annum at which Dollar deposits are offered to the Administrative Agent in the London interbank eurodollar currency market or (B) the rate at which Dollar deposits are offered to the Administrative Agent in, or by the Administrative Agent to major banks in, any offshore interbank eurodollar market selected by the Administrative Agent, in each case on the applicable day (provided that if such day is not a Business Day for which Dollar deposits are offered to the Administrative Agent in the London or such offshore interbank eurodollar currency market, the next preceding Business Day for which Dollar deposits are offered to the Administrative Agent in the London or such offshore interbank eurodollar currency market) at or about 11:00 a.m., London time (or as soon thereafter as practicable) (for delivery on such date of determination) for a one month term. Notwithstanding the foregoing, if the One Month LIBOR Rate shall be less than 0.50%, such rate shall be deemed to be 0.50% for purposes of this Agreement.
“Base Rate Loan” shall mean, at any time, a Loan (or in the case of the Term Loans, a portion thereof, as the context may require) which then bears interest as provided in Section 2.01(d)(i).
“Benchmark Replacement” shall mean the sum of: (a) the alternate benchmark rate (which may include Term SOFR) that has been selected by the Administrative Agent and the Borrowers giving due consideration to (i) any selection or recommendation of a replacement rate or the mechanism for determining such a rate by the Relevant Governmental Body or (ii) any
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evolving or then-prevailing market convention for determining a rate of interest as a replacement to the LIBOR Rate for U.S. dollar-denominated syndicated credit facilities and (b) the Benchmark Replacement Adjustment; provided that, if the Benchmark Replacement as so determined would be less than 0.50%, the Benchmark Replacement will be deemed to be 0.50% for the purposes of this Agreement.
“Benchmark Replacement Adjustment” shall mean, with respect to any replacement of the LIBOR Rate with an Unadjusted Benchmark Replacement for each applicable Interest Period, the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by the Administrative Agent and the Borrowers giving due consideration to (a) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of the LIBOR Rate with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body or (b) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of the LIBOR Rate with the applicable Unadjusted Benchmark Replacement for U.S. dollar-denominated syndicated credit facilities at such time.
“Benchmark Replacement Conforming Changes” shall mean, with respect to any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Base Rate,” the definition of “Interest Period,” timing and frequency of determining rates and making payments of interest and other administrative matters) that the Administrative Agent decides may be appropriate to reflect the adoption and implementation of such Benchmark Replacement and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent determines that no market practice for the administration of the Benchmark Replacement exists, in such other manner of administration as the Administrative Agent decides is reasonably necessary in connection with the administration of this Agreement).
“Benchmark Replacement Date” shall mean the earlier to occur of the following events with respect to the LIBOR Rate:
“Benchmark Transition Event” shall mean the occurrence of one or more of the following events with respect to the LIBOR Rate:
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“Benchmark Transition Start Date” shall mean (a) in the case of a Benchmark Transition Event, the earlier of (i) the applicable Benchmark Replacement Date and (ii) if such Benchmark Transition Event is a public statement or publication of information of a prospective event, the 90th day prior to the expected date of such event as of such public statement or publication of information (or if the expected date of such prospective event is fewer than 90 days after such statement or publication, the date of such statement or publication) and (b) in the case of an Early Opt-in Election, the date specified by the Administrative Agent or the Required Lenders, as applicable, by notice to the Borrower Representative, the Administrative Agent (in the case of such notice by the Required Lenders) and the Lenders.
“Benchmark Unavailability Period” shall mean, if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred with respect to the LIBOR Rate and solely to the extent that the LIBOR Rate has not been replaced with a Benchmark Replacement, the period (a) beginning at the time that such Benchmark Replacement Date has occurred if, at such time, no Benchmark Replacement has replaced the LIBOR Rate for all purposes hereunder in accordance with Section 2.17 and (b) ending at the time that a Benchmark Replacement has replaced the LIBOR Rate for all purposes hereunder pursuant to Section 2.17.
“Beneficial Ownership Certification” shall mean a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation.
“Beneficial Ownership Regulation” shall mean 31 CFR § 1010.230.
“Benefit Plan” shall mean any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in and subject to Section 4975 of the Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.
“Black Hawk” shall have the meaning given to that term in clause (1) of the introductory paragraph hereof.
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“Black Hawk Deed of Trust” shall mean the Deed of Trust, Assignment of Leases and Rents, Security Agreement and Fixture Filing, dated as of the April 26, 2012, by Black Hawk in favor of Public Trustee of Xxxxxx County, Colorado, for the benefit of the Administrative Agent.
“BLILP” shall mean Biggest Little Investments L.P.
“Borrower” and “Borrowers” shall have the meaning given to such terms in clause (1) of the introductory paragraph hereof.
“Borrower Representative” shall have the meaning given to such term in Section 8.01(c).
“Borrower Materials” shall have the meaning given to that term in Section 5.01(a).
“Borrowing” shall mean a Revolving Loan Borrowing, a Swing Loan Borrowing or the Term Loan Borrowing, as the context may require.
“Business Day” shall mean any day on which (a) commercial banks are not authorized or required to close in San Francisco, California or New York, New York and (b) if such Business Day is related to a LIBOR Loan, dealings in Dollar deposits are carried out in the London interbank market.
“Calculation FQ #1” shall mean the fiscal quarter ending on the Financial Covenant Start Date.
“Calculation FQ #2” shall mean the fiscal quarter immediately following Calculation FQ #1.
“Calculation FQ #3” shall mean the fiscal quarter immediately following Calculation FQ #2.
“Capital Asset” shall mean, with respect to any Person, any tangible fixed or capital asset owned or leased (in the case of a Capital Lease) by such Person, or any expense incurred by such Person that is required by GAAP, as in effect on the Fourth Restatement Effective Date, to be reported as a non-current asset on such Person’s balance sheet.
“Capital Expenditures” shall mean, with respect to any Person and any period, all amounts expended by such Person during such period to acquire or to construct Capital Assets (including renewals, improvements and replacements, but excluding repairs in the ordinary course) computed in accordance with GAAP as in effect on the Fourth Restatement Effective Date (including all amounts paid or accrued on Capital Leases and other Indebtedness incurred or assumed to acquire Capital Assets).
“Capital Leases” shall mean any and all lease obligations that, in accordance with GAAP as in effect on the Fourth Restatement Effective Date, are required to be capitalized on the books of a lessee.
“CARES Act” shall mean (i) the Coronavirus Aid, Relief, and Economic Security Act, as in effect from time to time and (ii) all regulations, requests, rules, guidelines or directives
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thereunder or issued by any Governmental Authority in connection therewith, in each case in effect from time to time.
“Cash Collateralize” shall mean to pledge and deposit with or deliver to the Administrative Agent, for its own benefit and for the benefit of the L/C Issuer, the Swing Line Lender and/or the Lenders, as applicable, as collateral subject to a first priority, perfected security interest securing the Obligations or the obligations of a Defaulting Lender, as applicable, cash or deposit account balances in an amount equal to the L/C Obligations, Obligations in respect of Swing Line Loans or obligations of a Defaulting Lender, as applicable, pursuant to documentation in form and substance satisfactory to the Administrative Agent and the L/C Issuer or the Swing Line Lender, as applicable (which documents are hereby consented to by the Lenders). Derivatives of such term shall have a corresponding meaning.
“Cash Equivalents” shall mean:
(a)Direct obligations of, or obligations the principal and interest on which are unconditionally guaranteed by, the United States or obligations of any agency of the United States to the extent such obligations are backed by the full faith and credit of the United States, in each case maturing within one year from the date of acquisition thereof;
(b)Certificates of deposit maturing within six months from the date of acquisition thereof issued by a commercial bank or trust company organized under the laws of the United States or a state thereof or that is a Lender; provided that (i) such deposits are denominated in Dollars, (ii) such bank or trust company has capital, surplus and undivided profits of not less than $500,000,000 and (iii) such bank or trust company has certificates of deposit or other debt obligations rated at least A-1 (or its equivalent) by Standard & Poor’s Financial Services LLC or P-1 (or its equivalent) by Xxxxx’x Investors Service, Inc.;
(c)Open market commercial paper maturing within 270 days from the date of acquisition thereof issued by a corporation organized under the laws of the United States or a state thereof; provided such commercial paper is rated at least A-1 (or its equivalent) by Standard & Poor’s Financial Services LLC or P-1 (or its equivalent) by Xxxxx’x Investors Service, Inc.; and
(d)Any repurchase agreement entered into with a commercial bank or trust company organized under the laws of the United States or a state thereof or that is a Lender; provided that (i) such bank or trust company has capital, surplus and undivided profits of not less than $500,000,000, (ii) such bank or trust company has certificates of deposit or other debt obligations rated at least A-1 (or its equivalent) by Standard & Poor’s Financial Services LLC or P-1 (or its equivalent) by Xxxxx’x Investors Service, Inc., (iii) the repurchase obligations of such bank or trust company under such repurchase agreement are fully secured by a perfected security interest in a security or instrument of the type described in clause (a), (b) or (c) above and (iv) such security or instrument so securing the repurchase obligations has a fair market value at the time such repurchase agreement is entered into of not less than 100% of such repurchase obligations.
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Notwithstanding the foregoing, in no event shall “Cash Equivalents” include auction rate securities.
“CC Skybridge” shall mean a collective reference to: (i) the elevated pedestrian walkway which extends, from Parcel 1 of the Atlantis Hotel/Casino Property to the CC Skybridge Tower, over and across Xxxxxxx Xxxx and the north parking lot of the Convention Center Property to the Xxxx Xxxxxx Convention Center; (ii) the CC Skybridge Tower; and (iii) all elevators, escalators, support columns, landscaping, paving and other facilities and fixtures which are related to the foregoing, all as particularly set forth by the CC Skybridge Agreement.
“CC Skybridge Agreement” shall mean that certain Atlantis Convention Center Skybridge Agreement and Easement, dated May 9, 2007, between RSCVA and Golden Road, which was recorded in the Official Records of Washoe County, Nevada on May 10, 2007, as Document No. 3530942, pursuant to which, among other things: (i) RSCVA granted the CC Skybridge Easements to Golden Road; (ii) Golden Road granted, to RSCVA, certain access easements over Parcels 3 through 5 of the Atlantis Hotel/Casino Property; (iii) Golden Road agreed to construct and operate the CC Skybridge within the applicable CC Skybridge Easements; and (iv) Golden Road agreed that RSCVA would be entitled to reserve blocks of rooms at the Atlantis Casino Resort Spa for certain types of events being conducted by RSCVA; all in accordance with the terms and conditions set forth therein.
“CC Skybridge Documentation” shall mean a collective reference to: (i) the CC Skybridge Agreement; and (ii) the CC Skybridge Xxxxxxx Xxxx Entitlements.
“CC Skybridge Easements” shall mean certain permanent and temporary easements over the Convention Center Property which are granted to Golden Road by RSCVA, pursuant to the CC Skybridge Agreement, in order to facilitate Golden Road’s construction and operation of the CC Skybridge, all as more particularly set forth therein.
“CC Skybridge Estoppel” shall mean the Estoppel Statement dated as of January 13, 2009 executed by RSCVA: (i) consenting to encumbrance of Golden Road’s interest in the CC Skybridge, and in the CC Skybridge Agreement, with the lien and security agreement of the Deed of Trust; (ii) acknowledging that the CC Skybridge Agreement is in full force and effect and that Golden Road is not in default of any of its material obligations thereunder; and (iii) providing such other assurances as may be required by Administrative Agent.
“CC Skybridge Xxxxxxx Xxxx Entitlements” shall mean the documentation which sets forth the agreement, by all appropriate Governmental Authorities, authorizing and entitling Golden Road to construct and maintain the CC Skybridge over Xxxxxxx Xxxx in accordance with the CC Skybridge Agreement.
“CC Skybridge Tower” shall mean the pedestrian dispersal site for the CC Skybridge, which is situate on the Convention Center Property, including the dispersal tower, lobby, escalators, elevators and stairs.
“Change of Control” shall mean the occurrence of any one or more of the following:
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(a)Parent shall cease to beneficially own and control, directly or indirectly, one hundred percent (100%) of the Equity Securities of each of Golden Road, MGI and Black Hawk; or
(b)Any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or its Subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) (other than the Farahi Family Group) becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except that a “person” or “group” shall be deemed to have “beneficial ownership” of all Equity Securities that such “person” or “group” has the right to acquire, whether such right is exercisable immediately or only after the passage of time (such right, an “option right”)), directly or indirectly, of more than thirty-five percent (35%) of the Equity Securities of Parent entitled to vote in the election of members of the board of directors (or equivalent governing body) of Parent; or
(c)During any period of twelve (12) consecutive months, a majority of the members of the board of directors or other equivalent governing body of Parent cease to be comprised of individuals (x) who were members of that board or equivalent governing body on the first day of such period, (y) whose election or nomination to that board or equivalent governing body was approved by individuals referred to in clause (x) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body or (z) whose election or nomination to that board or other equivalent governing body was approved by individuals referred to in clauses (x) and (y) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body, or
(d) A “change of control” or “change in control” or any similar term as defined in any document governing Indebtedness exceeding $10,000,000 of any Loan Party which gives the holders of such Indebtedness the right to accelerate or otherwise require payment of such Indebtedness prior to the maturity date thereof or the right to require such Loan Party to redeem, purchase or otherwise defease, or offer to redeem, purchase or otherwise defease, all or any portion of such Indebtedness.
For the purpose of this definition, “control” of a Person shall mean the possession, directly or indirectly, of the power to direct or cause the direction of its management or policies, whether through the ownership of voting securities, by contract or otherwise.
“Change of Law” shall mean the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States
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or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change of Law”, regardless of the date enacted, adopted or issued.
“Code” shall mean the U.S. Internal Revenue Code of 1986.
“Collateral” shall mean all property in which the Administrative Agent or any Lender has a Lien to secure the Obligations or the Guaranty.
“Colorado COVID-19 Directives” shall mean a collective reference to all Public Health Orders issued by the Colorado department of Public Health and Environment and Executive Orders issued by the Governor of the State of Colorado in each case issued prior to, on or after the Fourth Restatement Effective Date pertaining to the ongoing COVID-19 pandemic and the operation and conduct of business at the Monarch Casino Black Hawk, including, without limitation, Public Health Order 20-2 dated March 19, 2020.
“Commercial Letter of Credit” shall mean any documentary letter of credit issued by the L/C Issuer under this Agreement; either as originally issued or as the same may be supplemented, modified, amended, extended, restated or supplanted.
“Commitment” shall mean a Revolving Loan Commitment or a Term Loan Commitment.
“Commitment Fee” shall have the meaning given to that term in Section 2.05(b).
“Commitment Fee Percentage” shall mean, with respect to the Revolving Loan Commitments at any time, the per annum percentage which is used to calculate Commitment Fees for such Revolving Loan Commitments determined pursuant to the Pricing Grid.
“Communications” shall have the meaning given to that term in Section 8.01(b).
“Completion Date” shall mean the first date on which all floors of the Expansion Project and all material amenities associated with the Expansion Project are substantially completed and open for business to the public.
“Compliance Certificate” shall have the meaning given to that term in Section 5.01(a)(iv).
“Confidential Information” shall mean information delivered to any Lender or the Administrative Agent by or on behalf of any Loan Party pursuant to the Loan Documents that is proprietary in nature and that is clearly marked or labeled as being confidential information of such Loan Party; provided; however, that such term does not include information that (a) was publicly known or otherwise known to the receiving party prior to the time of such disclosure, (b) subsequently becomes publicly known through no act or omission by the receiving party or any person acting on its behalf, (c) otherwise becomes known to the receiving party other than through disclosure by any Loan Party or (d) constitutes financial statements delivered to the Lenders and the Administrative Agent under Section 5.01(a) that are otherwise publicly available.
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“Connection Income Taxes” shall mean Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.
“Construction Budget” shall mean the projections and budgets, prepared by Black Hawk, setting forth the total fees, costs and expenses anticipated to be incurred in connection with the completion of the Expansion Project (together with all material supporting contracts to the extent such contracts have been executed as of any applicable date) (as such projections and budgets may be revised from time to time in accordance with the provisions of this Agreement). The Construction Budget shall, among other things, break out furniture fixture and equipment and related costs from the other costs of the Expansion Project.
“Construction Contract” shall mean any construction contract or similar agreement entered into with the General Contractor for work related to the construction of the Expansion Project, which must be in form and substance satisfactory to the Administrative Agent, as amended, supplemented or otherwise modified from time to time in accordance with the terms thereof and hereof.
“Contingent Obligation” shall mean, with respect to any Person, (a) any Guaranty Obligation of that Person; and (b) any direct or indirect obligation or liability, contingent or otherwise, of that Person (i) in respect of any Surety Instrument issued for the account of that Person or as to which that Person is otherwise liable for reimbursement of drawings or payments, (ii) as a partner or joint venturer in any partnership or joint venture, (iii) to purchase any materials, supplies or other property from, or to obtain the services of, another Person if the relevant contract or other related document or obligation requires that payment for such materials, supplies or other property, or for such services, shall be made regardless of whether delivery of such materials, supplies or other property is ever made or tendered, or such services are ever performed or tendered, or (iv) in respect to any Rate Contract that is not entered into in connection with a bona fide hedging operation that provides offsetting benefits to such Person. The amount of any Contingent Obligation shall (subject, in the case of Guaranty Obligations, to the last sentence of the definition of “Guaranty Obligation”) be deemed equal to the maximum reasonably anticipated liability in respect thereof, and shall, with respect to item (b)(iv) of this definition be marked to market on a current basis.
“Contractual Obligation” of any Person shall mean, any indenture, note, lease, loan agreement, security, deed of trust, mortgage, security agreement, guaranty, instrument, contract, agreement or other form of contractual obligation or undertaking to which such Person is a party or by which such Person or any of its property is bound.
“Control Agreement” shall mean a control agreement among a Borrower or a Guarantor, a depository bank, a securities intermediary or a commodity intermediary, as the case may be, and the Administrative Agent, in form and substance reasonably acceptable to the Administrative Agent.
“Convention Center Property” shall mean that certain real property owned by RSCVA, which is designated by Washoe County Assessor’s Parcel No. 000-000-00 and upon which Xxxx Xxxxxx Convention Center is situate.
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“COVID-19 Directives” shall mean a collective reference to the Colorado COVID-19 Directives and to the Nevada COVID-19 Directives.
“Credit Event” shall mean the making of any Loan (including a Swing Line Loan) or the making of an L/C Credit Extension. “Credit Event” shall not include the conversion of any Loan or the selection of a new Interest Period for any LIBOR Loan.
“Debtor Relief Laws” shall mean the Bankruptcy Code of the United States, and all other applicable liquidation, conservatorship, bankruptcy, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Governmental Rules from time to time in effect affecting the rights of creditors generally.
“Decreasing Lender” shall have the meaning given to that term in Section 2.01(b)(v).
“Default” shall mean an Event of Default or any event or circumstance not yet constituting an Event of Default which, with the giving of any notice or the lapse of any period of time or both, would become an Event of Default.
“Default Rate” shall have the meaning given to that term in Section 2.07(c).
“Defaulting Lender” shall mean, subject to Section 2.16(b), any Lender that (a) has failed to (i) fund all or any portion of its Loans within two Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies the Administrative Agent and the Borrowers in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to the Administrative Agent or any other Lender any other amount required to be paid by it hereunder within two Business Days of the date when due, (b) has notified the Borrowers, the Administrative Agent in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three Business Days after written request by the Administrative Agent or the Borrowers, to confirm in writing to the Administrative Agent and the Borrowers that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Borrower Representative), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity or (iii) becomes the subject of a Bail-In Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from
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the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by the Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.16(b)) upon delivery of written notice of such determination to the Borrowers and each Lender.
“Defaulting Lender Amendment Paragraph” shall have the meaning given to that term in Section 8.04.
“Disqualified Securities” shall mean any Equity Security which, by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable), or upon the happening of any event, (a) matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof, in whole or in part, on or prior to the date that is one year following the date of payment and satisfaction in full of the Obligations, (b) is convertible into or exchangeable for (i) debt securities or (ii) any Equity Security referred to in (a) above, in each case at any time on or prior to the date that is one year following the date of payment and satisfaction in full of the Obligations, or (c) is entitled to receive a cash Distribution (other than for taxes attributable to the operations of the business) or a Distribution of Disqualified Securities on or prior to the date that is one year following the date of payment and satisfaction in full of the Obligations.
“Distributions” shall mean the payment of any distributions or dividends (in cash, property or obligations) on, or other payments on account of, or the setting apart of money for a sinking or other analogous fund for, or the purchase, repurchase, redemption, retirement or other acquisition of, any Equity Securities of any Person or of any warrants, options or other rights to acquire the same (or to make any payments to any Person, such as “phantom membership” or “phantom stock” payments or similar payments, where the amount is calculated with reference to the fair market or equity value of any Person), but excluding distributions or dividends payable by a Person solely in membership interests or shares of common stock of such Person.
“Documentation Agent” shall mean U.S. Bank National Association, in its capacity as documentation agent in connection with this Agreement.
“Dollars” and “$” shall mean the lawful currency of the United States and, in relation to any payment under this Agreement, same day or immediately available funds.
“Domestic Lending Office” shall mean, with respect to any Lender, (a) initially, its office designated as such in Schedule I (or, in the case of any Lender which becomes a Lender pursuant to Section 2.01(b) or by an assignment pursuant to Section 8.05(c), its office designated as such in the applicable documentation executed pursuant to those Sections, as applicable) and (b) subsequently, such other office or offices as such Lender may designate to the Administrative Agent as the office at which such Lender’s Base Rate Loans will thereafter be maintained and for the account of which all payments of principal of, and interest on, such Lender’s Base Rate Loans will thereafter be made.
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“Early Opt-in Election” shall mean the occurrence of:
(a)(i) a determination by the Administrative Agent or (ii) a notification by the Required Lenders to the Administrative Agent (with a copy to the Borrower Representative) that the Required Lenders have determined that U.S. dollar-denominated syndicated credit facilities being executed at such time, or that include language similar to that contained in Section 2.17(a) are being executed or amended, as applicable, to incorporate or adopt a new benchmark interest rate to replace LIBOR, and
(b)(i) the election by the Administrative Agent or (ii) the election by the Required Lenders to declare that an Early Opt-in Election has occurred and the provision, as applicable, by the Administrative Agent of written notice of such election to the Borrowers and the Lenders or by the Required Lenders of written notice of such election to the Administrative Agent.
“EBITDA” shall mean, for any period to be measured, (a) Net Income (determined on a consolidated basis without duplication in accordance with GAAP) for such period, plus, without duplication (b) to the extent deducted in determining Net Income for such period, the sum of the following for such period: (i) Interest Expense (including expensed and capitalized), (ii) income tax expense, (iii) depreciation and amortization expense and other non-cash expenses, including non-cash expenses related to stock based compensation, (iv) pre-opening expenses, (v) capitalized fees and costs relating to the closing of this Agreement and (vi) extraordinary losses on sales of assets and other extraordinary losses and non-cash charges (other than any such non-cash charge to the extent it represents an accrual of or reserve for cash expenditures in any future period, other than such accruals that result from a change in accounting method), minus, without duplication (c) to the extent included as income in determining such Net Income for such period, the sum of the following for such period: (i) extraordinary gains and non-recurring gains, (ii) interest income and minus (d) cash expenditures made during such period to the extent an accrual resulting from a change in accounting method with respect to such cash expenditures was added to Net Income in determining EBITDA for any prior period. Pro forma credit shall be given for an Acquired Person’s EBITDA as if owned on the first day of the applicable period; companies (or identifiable business units or divisions) sold, transferred or otherwise disposed of during any period will be treated as if not owned during the entire applicable period. Solely for purposes of the calculation of the Total Leverage Ratio and the Fixed Charge Coverage Ratio under Section 5.03: (A) EBITDA for the period of four consecutive fiscal quarters ending on Calculation FQ #1 shall be deemed equal to EBITDA for Calculation FQ #1 multiplied by four (4), (B) EBITDA for the period of four consecutive fiscal quarters ending on the last day of Calculation FQ #2 shall be deemed equal to the product of (i) the sum of EBITDA for Calculation FQ #1 (computed ignoring the preceding clause (A)) and for Calculation FQ #2, multiplied by (ii) two (2), and (C) EBITDA for the period of four consecutive fiscal quarters ending on the last day of Calculation FQ # 3 shall be deemed equal to the product of (i) the sum of EBITDA for Calculation FQ #1 (computed ignoring the preceding clause (A)), for Calculation FQ #2 (computed ignoring the preceding clause (B)) and for Calculation FQ #3, multiplied by (ii) four-thirds (4/3).
For the avoidance of doubt, any PPP Loan, if forgiven (or that portion of a PPP Loan that is forgiven if less than the entire amount of such PPP Loan), shall not constitute income and shall be disregarded for purposes of the calculation of EBITDA for all purposes in this Agreement.
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“EEA Financial Institution” shall mean (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“EEA Member Country” shall mean any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority” shall mean any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“Effective Amount” shall mean (a) with respect to Revolving Loans, Swing Line Loans and Term Loans on any date, the aggregate outstanding principal amount thereof after giving effect to (i) any borrowings and prepayments or repayments of Revolving Loans, Swing Line Loans and Term Loans and (ii) with respect to Swing Line Loans, any risk participation amongst the Lenders, as the case may be, occurring on such date; and (b) with respect to any L/C Obligations on any date, the amount of such L/C Obligations on such date after giving effect to any L/C Credit Extension occurring on such date and any other changes in the aggregate amount of the L/C Obligations as of such date, including as a result of any reimbursements of outstanding unpaid drawings under any Letters of Credit or any reductions in the maximum amount available for drawing under Letters of Credit taking effect on such date.
“Eligible Assignee” shall mean (a) any Lender, any Affiliate of any Lender and any Approved Fund of any Lender; and (b) a Person that is (i) a commercial bank, savings and loan association or savings bank organized under the laws of the United States, or any state thereof, and having a combined capital and surplus of at least $100,000,000, (ii) a commercial bank organized under the laws of any other country which is a member of the Organization for Economic Cooperation and Development (the “OECD”), or a political subdivision of any such country, and having a combined capital and surplus of at least $100,000,000; provided that such bank is acting through a branch or agency located in the country in which it is organized or another country which is also a member of the OECD, (iii) a finance company, insurance company or other financial institution that is engaged in making, purchasing or otherwise investing in commercial loans in the ordinary course of its business and having total assets in excess of $100,000,000, or (iv) a Person that is primarily engaged in the business of commercial lending and that is (x) a Subsidiary of a Lender, (y) a Subsidiary of a Person of which a Lender is a Subsidiary, or (z) a Person of which a Lender is a Subsidiary; provided that notwithstanding the foregoing, “Eligible Assignee” shall not include (i) without the prior consent of all of the Lenders, any Loan Party or any Affiliate of a Loan Party or any natural person, (ii) a Defaulting Lender or (iii) any Person that has been found unsuitable by any Gaming Board or as to whom such assignment would violate any Gaming Law.
“Environmental Damages” shall mean all claims, judgments, damages, losses, penalties, liabilities (including strict liability), costs and expenses (including costs of investigation, remediation, defense, settlement and attorneys’ fees and consultants’ fees and any diminution in
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the value of the security afforded to the Lenders with respect to any real property owned or used by any Loan Party), that are incurred at any time (a) as a result of the existence of any Hazardous Materials upon, about or beneath any real property owned by or leased by any Loan Party or migrating or threatening to migrate to or from any such real property regardless of whether or not caused by or within the control of any Loan Party, (b) arising from any investigation, proceeding or remediation of any location at which any Loan Party or any predecessors are alleged to have directly or indirectly disposed of Hazardous Materials or (c) arising in any manner whatsoever out of any violation of Environmental Laws by any Loan Party or with respect to any real property owned or used by any Loan Party.
“Environmental Indemnity Agreement” shall mean, collectively, (a) that certain Certificate and Indemnification Regarding Hazardous Substances, dated as of the First Restatement Effective Date, executed by Golden Road and Parent in favor of the Administrative Agent, (b) that certain Certificate and Indemnification Regarding Hazardous Substances, dated as of April 26, 2012, executed by MGI in favor of the Administrative Agent, (c) that certain Certificate and Indemnification Regarding Hazardous Substances, dated as of April 26, 2012, executed by Black Hawk in favor of the Administrative Agent and (d) that certain Certificate and Indemnification Regarding Hazardous Substances, dated as of September 3, 2020, executed by Inter-Mountain Construction, LLC in favor of the Administrative Agent.
“Environmental Laws” shall mean the Clean Air Act, 42 U.S.C. Section 7401 et seq.; the Federal Water Pollution Control Act, 33 U.S.C. Section 1251 et seq.; the Resource Conservation and Recovery Act of 1976, 42 U.S.C. Section 6901 et seq.; the Comprehensive Environment Response, Compensation and Liability Act of 1980 (including the Superfund Amendments and Reauthorization Act of 1986, “CERCLA”), 42 U.S.C. Section 9601 et seq.; the Toxic Substances Control Act, 15 U.S.C. Section 2601 et seq.; the Occupational Safety and Health Act, 29 U.S.C. Section 651; the Emergency Planning and Community Right-to-Know Act of 1986, 42 U.S.C. Section 11001 et seq.; the Mine Safety and Health Act of 1977, 30 U.S.C. Section 801 et seq.; the Safe Drinking Water Act, 42 U.S.C. Section 300f et seq.; and all other Governmental Rules relating to the protection of human health and safety and the environment, including all Governmental Rules pertaining to the reporting, licensing, permitting, transportation, storage, disposal, investigation or remediation of emissions, discharges, releases, or threatened releases of Hazardous Materials into the air, surface water, groundwater, or land, or relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transportation or handling of Hazardous Materials.
“Equity Securities” of any Person shall mean (a) all common stock, preferred stock, participations, shares, partnership interests, limited liability company interests or other equity interests in and of such Person (regardless of how designated and whether or not voting or non-voting) and (b) all warrants, options and other rights to acquire any of the foregoing.
“ERISA” shall mean the Employee Retirement Income Security Act of 1974.
“ERISA Affiliate” shall mean any Person which is treated as a single employer with any Loan Party under Sections 414(b) and (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of the provisions relating to Section 412 of the Code).
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“ERISA Event” shall mean (a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal by any Loan Party or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a “substantial employer” (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA which could reasonably be expected to give rise to any liability with respect to such withdrawal; (c) a complete or partial withdrawal by a Loan Party or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (d) the filing of a notice of intent to terminate, the treatment of a Pension Plan or Multiemployer Plan amendment as a termination under Sections 4041 or 4041A of ERISA, or the commencement of proceedings to terminate a Pension Plan or Multiemployer Plan; (e) the institution by the PBGC of proceedings to terminate a Pension Plan; (f) an event or condition which could reasonably be expected to constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; (g) the determination that a Pension Plan is considered an at-risk plan or a plan is in endangered or critical status within the meaning of Sections 430, 431 and 432 of the Code or Sections 303, 304 and 305 of ERISA; (h) the imposition of any liability under Title IV of ERISA, other than PBGC premiums due but not delinquent under Section 4007 of ERISA, upon a Loan Party or any ERISA Affiliate; (i) any failure by any Pension Plan to satisfy the minimum funding standards (within the meaning of Sections 412 or 430 of the Code or Section 302 of ERISA) applicable to such Pension Plan, whether or not waived; or (j) the filing pursuant to Section 412 of the Code or Section 302 of ERISA of an application for a waiver of the minimum funding standard with respect to any Pension Plan, the failure to make by its due date a required installment under Section 430(j) of the Code with respect to any Pension Plan or the failure by any Loan Party or any of its ERISA Affiliates to make any required contribution to a Multiemployer Plan.
“EU Bail-In Legislation Schedule” shall mean the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.
“Event of Default” shall have the meaning given to that term in Section 6.01.
“Evergreen Letter of Credit” shall have the meaning given to that term in Section 2.02(b)(iii).
“Excess Cash Flow” shall mean, for any fiscal year,
(a) EBITDA for such fiscal year
minus
(b)the sum, without duplication, of each of the following: (i) the aggregate amount of scheduled principal repayments of any Indebtedness (including the portion of payments under Capital Leases attributable to principal) made by the Loan Parties during such fiscal quarter to the extent permitted to be paid by this Agreement and the other Loan Documents, (ii) optional prepayments of the Term Loans made by the Borrowers during such fiscal year pursuant to Section 2.06(b), (iii) Interest Expense with respect to such fiscal year (excluding (x) interest paid
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in kind which is not currently payable in cash and (y) amortization of upfront fees) to the extent paid in cash by the Loan Parties during such fiscal year, (iv) income tax expense for such period to the extent paid in cash by the Loan Parties during such fiscal year and (v) non-financed Capital Expenditures made during such fiscal year.
“Excluded Accounts” shall mean, collectively, (i) the Pari-mutuel Accounts, (ii) zero balance accounts and (iii) gaming reserve accounts required to be maintained by the Borrowers in accordance with Requirements of Law.
“Excluded Projects” shall mean (i) the nine (9) story, approximately one thousand three hundred fifty (1,350) space parking garage to be completed prior to the commencement of construction of the Expansion Project, (ii) the demolition of the existing five hundred (500) space parking garage to be completed prior to the commencement of construction of the Expansion Project, (iii) Capital Expenditures to be made by the Borrowers from time to time to the existing casino facilities in Black Hawk, Colorado or in Reno, Nevada that are not included in the Construction Contract or in the Construction Budget for the Expansion Project and (iv) miscellaneous remodel work of the existing casino areas at the Monarch Casino Black Hawk, predominantly comprised of approximately 9,512 square feet of the lobby level and approximately 3,668 square feet of the third floor (including the addition of a Poker Room and a conversion of the third floor buffet to a specialty restaurant).
“Excluded Subsidiary” shall mean (i) a Subsidiary which does not own, operate or hold any assets or property or (ii) a single purpose Subsidiary which is formed to own, operate and hold, and at all time only owns, operates and holds assets and property not related to the gaming operations of the Loan Parties and which do not directly or indirectly affect such gaming operations and with respect to which none of the Loan Parties has any obligations, direct or contingent. As of the Fourth Restatement Effective Date, Golden North, Inc., a Nevada corporation, High Desert Sunshine, Inc., a Nevada corporation, Golden Town, a Nevada corporation, Golden East, Inc., a Nevada corporation and Monarch Interactive, Inc., a Nevada corporation are Excluded Subsidiaries.
“Excluded Swap Obligation” shall mean, with respect to any Guarantor, any Swap Obligation if, and to the extent that, all or a portion of the guaranty of such Guarantor of, or the grant by such Guarantor of a security interest to secure, such Swap Obligation (or any guaranty thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder at the time the guaranty of such Guarantor or the grant of such security interest becomes effective with respect to such Swap Obligation. If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such guaranty or security interest is or becomes illegal.
“Excluded Taxes” shall mean any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch
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profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the Borrowers under Section 2.15(b)) or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 2.12, amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office, (c) Taxes attributable to such Recipient’s failure to comply with Section 2.12(g) and (d) any U.S. federal withholding Taxes imposed under FATCA.
“Existing Credit Agreement” shall have the meaning set forth in the recitals to this Agreement.
“Existing Letters of Credit” shall mean the letters of credit described on Schedule II and issued by Xxxxx Fargo prior to the Fourth Restatement Effective Date.
“Expansion Project” shall mean the design, construction, equipping, financing and development of a new hotel tower, spa and pool facility and restaurants at the Monarch Casino Black Hawk, and all related appurtenances and facilities contemplated in the Plans and Specifications. The Expansion Project shall not include all or any portion of the Excluded Projects.
“Extended Revolving Loan Commitment” shall mean any Revolving Loan Commitments the maturity of which have been extended pursuant to Section 2.18.
“Extended Revolving Loans” shall mean any Revolving Loans made pursuant to the Extended Revolving Loan Commitments.
“Extended Term Loans” shall mean any Term Loans the maturity of which have been extended pursuant to Section 2.18.
“Extension” shall have the meaning set forth in Section 2.18.
“Extension Amendment” shall mean an amendment to this Agreement (which may, at the option of the Administrative Agent and the Borrowers, be in the form of an amendment and restatement of this Agreement) among the Borrowers, the applicable extending Lenders, the Administrative Agent and, to the extent required by Section 2.18, the L/C Issuer and/or the Swing Line Lender implementing an Extension in accordance with Section 2.18.
“Extension Offer” shall have the meaning set forth in Section 2.18.
“Farahi Family Group” shall mean a collectively reference to Xxxx Xxxxxx, Xxxxxx (Xxx) Xxxxxx, Xxxxxxx (Xxx) Xxxxxx, Xxxx Xxxxxx Trust created by agreement dated May 20, 2002, and
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their respective children, grandchildren, executors, administrators, testamentary trustees, heirs, legatees and beneficiaries.
“FASB ASC” shall mean the Accounting Standards Codification of the Financial Accounting Standards Board.
“FATCA” shall mean Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof and any agreement entered into pursuant to Section 1471(b)(1) of the Code.
“Federal Funds Rate” shall mean, for any day, the rate per annum (rounded upwards to the nearest 1/100 of 1%) equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System, as published by the Federal Reserve Bank on the Business Day next succeeding such day; provided, that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate charged to Xxxxx Fargo on such day on such transactions as determined by the Administrative Agent.
“Federal Reserve Bank of New York’s Website” shall mean the website of the Federal Reserve Bank of New York at xxxx://xxx.xxxxxxxxxx.xxx, or any successor source.
“Federal Reserve Board” shall mean the Board of Governors of the Federal Reserve System.
“Fee Letter” shall mean, collectively, (a) the letter agreement dated as of June 30, 2020 regarding certain fees payable to the Administrative Agent and WFS as expressly indicated therein and (b) any other fee letter or engagement letter executed after the Fourth Restatement Effective Date by one or more Loan Parties and the Administrative Agent and/or WFS in connection with this Agreement.
“Financial Covenant Start Date” shall mean the earlier of (i) the last day of the fiscal quarter for which the Borrowers have, prior to the end of such fiscal quarter, delivered written notice to the Administrative Agent designating such last day as the “Financial Covenant Start Date” and (ii) June 30, 2021.
“Financial Statements” shall mean, with respect to any accounting period for any Person, statements of income and cash flows (and, in the case of financial statements in respect of a fiscal year, statements of retained earnings, or stockholders’ equity or members’ equity or partners’ capital) of such Person for such period, and a balance sheet of such Person as of the end of such period, setting forth in each case in comparative form figures for the corresponding period in the preceding fiscal year if such period is less than a full fiscal year or, if such period is a full fiscal year, corresponding figures from the preceding annual audited financial statements and, in each case, corresponding figures from the comparable budgeted and projected figures for such period, all prepared in reasonable detail and in accordance with GAAP.
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“First Restatement Effective Date” shall mean January 20, 2009.
“Fixed Charge Coverage Ratio” shall mean, as at any date of determination, with respect to the Loan Parties for the period of four consecutive fiscal quarters ending on or most recently ended prior to such date (a) the sum of (i) EBITDA minus (ii) income taxes paid in cash during such period minus (iii) Distributions made during such period (other than Distributions made pursuant to Section 5.02(f)(i)) minus (iv) Investments in Excluded Subsidiaries made during such period minus (v) Maintenance Capital Expenditures made during such period divided by (b) Fixed Charges for such period; provided that (A) each of the components in clauses (a)(ii) through (a)(v), for the period of four consecutive fiscal quarters ending on the last day of Calculation FQ #1, shall be respectively deemed equal to such component for Calculation FQ #1 multiplied by four (4), (B) such component for the period of four consecutive fiscal quarters ending on the last day of Calculation FQ # 2 shall be deemed equal to the product of (i) the sum of such component for Calculation FQ #1 (computed ignoring preceding clause (A)) and for Calculation FQ #2, multiplied by (ii) two (2), and (C) such component for the period of four consecutive fiscal quarters ending on the last day of Calculation FQ #3 shall be deemed equal to the product of (i) the sum of such component for Calculation FQ #1 (computed ignoring preceding clause (A)), for Calculation FQ #2 (computed ignoring preceding clause (B)) and for Calculation FQ #3, multiplied by (ii) four-thirds (4/3).
“Fixed Charges” shall mean, for any four consecutive fiscal quarter period, the sum, for the Loan Parties (determined on a consolidated basis without duplication), of the following items: (a) Interest Expense required to be paid in cash during such period, (b) principal payments on Indebtedness required to be paid during such period and (c) the portion of payments under Capital Leases that should be treated as payment of principal in accordance with GAAP scheduled to be paid during such period; provided that (A) each of the components in clauses (a)-(c) above, for the period of four consecutive fiscal quarters ending on the last day of Calculation FQ #1, shall be respectively deemed equal to such component for Calculation FQ #1 multiplied by four (4), (B) such component for the period of four consecutive fiscal quarters ending on the last day of Calculation FQ # 2 shall be deemed equal to the product of (i) the sum of such component for Calculation FQ #1 (computed ignoring preceding clause (A)) and for Calculation FQ #2, multiplied by (ii) two (2), and (C) such component for the period of four consecutive fiscal quarters ending on the last day of Calculation FQ #3 shall be deemed equal to the product of (i) the sum of such component for Calculation FQ #1 (computed ignoring preceding clause (A)), for Calculation FQ #2 (computed ignoring preceding clause (B)) and for Calculation FQ #3, multiplied by (ii) four-thirds (4/3).
“Foreign Lending Office” shall mean, with respect to any Lender, (a) initially, its office designated as such in Schedule I (or, in the case of any Lender which becomes a Lender pursuant to Section 2.01(b) or by an assignment pursuant to Section 8.05(c), its office designated as such in the applicable documentation executed pursuant to those Sections, as applicable) and (b) subsequently, such other office or offices as such Lender may designate for a particular currency to the Administrative Agent as the office at which such Lender’s LIBOR Loans will thereafter be maintained and for the account of which all payments of principal of, and interest on, such Lender’s LIBOR Loans will thereafter be made.
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“Foreign Plan” shall mean any employee benefit plan maintained or contributed to by any Loan Party or any ERISA Affiliate which is mandated or governed by any Governmental Rule of any Governmental Authority other than the United States.
“Fourth Restatement Effective Date” shall mean the time and Business Day on which the satisfaction of all the conditions precedent and the consummation of all of the transactions contemplated in Section 3.01 occurs.
“Fronting Exposure” shall mean, at any time there is a Defaulting Lender, (a) with respect to the L/C Issuer, such Defaulting Lender’s Revolving Proportionate Share of the Effective Amount of all L/C Obligations, other than L/C Obligations as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof and (b) with respect to the Swing Line Lender, such Defaulting Lender’s Revolving Proportionate Share of the Effective Amount of all Swing Line Loans, other than Swing Line Loans as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders in accordance with the terms hereof.
“Fund” shall mean any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its business.
“GAAP” shall mean generally accepted accounting principles and practices as in effect in the United States from time to time, consistently applied.
“Gaming Board” shall mean any Governmental Authority that holds licensing or permit authority over gambling, gaming or casino activities conducted by any Loan Party within its jurisdiction.
“Gaming Laws” shall mean all Laws pursuant to which any Gaming Board possesses licensing or permit authority over gambling, gaming, or casino activities conducted by any Loan Party within its jurisdiction.
“General Contractor” shall mean the licensed general contractor that Black Hawk engages under the Construction Contract to construct the Expansion Project.
“Governmental Authority” shall mean any international, domestic or foreign national, state or local government, any political subdivision thereof, any department, agency, authority or bureau of any of the foregoing, or any other entity exercising executive, legislative, judicial, regulatory, tax or administrative functions of or pertaining to government, including, without limitation, the Federal Trade Commission, the Federal Deposit Insurance Corporation, the Federal Reserve Board, the Comptroller of the Currency, any central bank or any comparable authority and any supra-national bodies such as the European Union.
“Governmental Authorization” shall mean any permit, license, registration, approval, finding of suitability or licensing, authorization, plan, directive, order, consent, exemption, waiver, consent order or consent decree of or from, or notice to, action by or filing with, any Governmental Authority (including any Gaming Board).
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“Governmental Charges” shall mean, with respect to any Person, all levies, assessments, fees, claims or other charges imposed by any Governmental Authority upon such Person or any of its property or otherwise payable by such Person.
“Governmental Rule” shall mean any law, rule, regulation, ordinance, order, code interpretation, judgment, decree, directive, Governmental Authorization, guidelines, policy or similar form of decision of any Governmental Authority (including all Gaming Laws).
“Guarantor” shall mean each now existing or hereafter acquired or created direct or indirect Subsidiary of Parent (other than any Borrower and Excluded Subsidiary) which becomes a party to the Guaranty.
“Guaranty” shall mean the Guaranty Agreement, dated as of June 18, 2020, by each Guarantor from time to time party thereto in favor of the Administrative Agent and the Lender Parties.
“Guaranty Obligation” shall mean, with respect to any Person, any direct or indirect liability of that Person with respect to any Indebtedness, lease, dividend, letter of credit or other obligation (the “primary obligations”) of another Person (the “primary obligor”), including any obligation of that Person, whether or not contingent, (a) to purchase, repurchase or otherwise acquire such primary obligations or any property constituting direct or indirect security therefor, or (b) to advance or provide funds (i) for the payment or discharge of any such primary obligation, or (ii) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency or any balance sheet item, level of income or financial condition of the primary obligor, or (c) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation, or (d) otherwise to assure or hold harmless the holder of any such primary obligation against loss in respect thereof, provided that the term “Guaranty Obligation” shall not include endorsements for collection or deposit in the ordinary course of business. The amount of any Guaranty Obligation shall be deemed equal to the stated or determinable amount of the primary obligation in respect of which such Guaranty Obligation is made or, if not stated or if indeterminable, the maximum liability in respect thereof.
“Hazardous Materials” shall mean all pollutants, contaminants and other materials, substances and wastes which are hazardous, toxic, caustic, harmful or dangerous to human health or the environment, including petroleum and petroleum products and byproducts, radioactive materials, asbestos, polychlorinated biphenyls and all materials, substances and wastes which are classified or regulated as “hazardous,” “toxic” or similar descriptions under any Environmental Law.
“Honor Date” shall have the meaning given to that term in Section 2.02(c)(i).
“Increase Effective Date” shall have the meaning given to that term in Section 2.01(b)(iv).
“Increasing Lenders” shall have the meaning given to that term in Section 2.01(b)(i).
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“Incremental Debt Limit” shall mean (a) $75,000,000 less (b) the total aggregate initial principal amount (as of the date of incurrence thereof) of (x) all previously incurred increases in the Total Revolving Loan Commitment pursuant to Section 2.01(b)(i) and (y) any MSLP Indebtedness.
“Indebtedness” of any Person shall mean, without duplication:
(a)All obligations of such Person evidenced by notes, bonds, debentures or other similar instruments and all other obligations of such Person for borrowed money (including obligations to repurchase receivables and other assets sold with recourse);
(b)All obligations of such Person for the deferred purchase price of property or services (including obligations under letters of credit and other credit facilities which secure or finance such purchase price), except for trade accounts payable, provided that (i) such trade accounts payable arise in the ordinary course of business and (ii) no material part of any such account is more than one hundred twenty (120) days past due, unless contested in good faith by appropriate proceeding and the contesting Loan Party has maintained adequate reserves for the payment thereof;
(c)All obligations of such Person under conditional sale or other title retention agreements with respect to property acquired by such Person (to the extent of the value of such property if the rights and remedies of the seller or the lender under such agreement in the event of default are limited solely to repossession or sale of such property);
(d)All obligations of such Person as lessee under or with respect to Capital Leases;
(e)All obligations of such Person, contingent or otherwise, under or with respect to Surety Instruments;
(f)All Unfunded Pension Liabilities of such Person;
(g)All Disqualified Securities of such Person;
(h) With respect to any Rate Contracts that have been terminated, the Termination Value thereof;
(i) All obligations of such Person arising under acceptance facilities or under facilities for the discount of accounts receivable of such Person;
(j)All Contingent Obligations of such Person;
(k)All obligations of such Person with respect to letters of credit, whether drawn or undrawn, contingent or otherwise;
(l) All Guaranty Obligations of such Person with respect to the obligations of other Persons of the types described in clauses (a) - (k) above; and
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(m) All obligations of other Persons (“Primary Obligors”) of the types described in clauses (a) - (l) above to the extent secured by (or for which any holder of such obligations has an existing right, contingent or otherwise, to be secured by) any Lien on any property (including accounts and contract rights) of such Person, even though such Person has not assumed or become liable for the payment of such obligations (and, for purposes of this clause (m), the amount of the Indebtedness of such Person shall be deemed to be the lesser of (x) the amount of all obligations of such Primary Obligors so secured by (or for which any holder of such obligations has an existing right, contingent or otherwise, to be secured by) the property of such Person and (y) the value of such property).
To the extent not included above, “Indebtedness” shall include all Obligations, but shall not include all or any portion of a PPP Loan, unless and until such PPP Loan or portion thereof is not forgiven and is required to be repaid in accordance with its terms.
“Indemnified Taxes” shall mean (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Loan Party under any Loan Document and (b) to the extent not otherwise described in (a), Other Taxes.
“Indemnitees” shall have the meaning given to that term in Section 8.03.
“Initial Covenant Compliance Date” shall mean the date on which the Financial Statements and Compliance Certificate for the fiscal quarter ending on the Financial Covenant Start Date are delivered to the Administrative Agent pursuant to Section 5.01(a)(i) and Section 5.01(a)(iv).
“Interest Expense” shall mean, for any period, the sum, for the Loan Parties (determined on a consolidated basis without duplication in accordance with GAAP), of the following: (a) all interest, fees, charges and related expenses payable during such period to any Person in connection with Indebtedness or the deferred purchase price of assets that are treated as interest in accordance with GAAP, (b) the portion of rent actually paid during such period under Capital Leases that should be treated as interest in accordance with GAAP and (c) the net amounts payable (or minus the net amounts receivable) under Rate Contracts accrued during such period (whether or not actually paid or received during such period).
“Interest Period” shall mean, with respect to any LIBOR Loan, the time periods selected by the Borrowers pursuant to Section 2.01(c) or Section 2.01(e) which commences on the first day of such Loan or the effective date of any conversion and ends on the last day of such time period, and thereafter, each subsequent time period selected by the Borrowers pursuant to Section 2.01(f) which commences on the last day of the immediately preceding time period and ends on the last day of that time period.
“Inter-Mountain Deed of Trust” shall mean the Deed of Trust, Assignment of Leases and Rents, Security Agreement and Fixture Filing, dated as of the Fourth Restatement Effective Date, by Inter-Mountain Construction, LLC in favor of the Public Trustee of Clear Creek County, Colorado, for the benefit of the Administrative Agent.
“Investment” of any Person shall mean any loan or advance of funds by such Person to any other Person (other than advances to employees of such Person for moving and travel
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expenses, drawing accounts and similar expenditures in the ordinary course of business consistent with past practice), any purchase or other acquisition of any Equity Securities or Indebtedness of any other Person, any capital contribution by such Person to or any other investment by such Person in any other Person (including (x) any Guaranty Obligations of such Person with respect to any obligations of any other Person and (y) any payments made by such Person on account of obligations of any other Person); provided, however, that Investments shall not include (a) accounts receivable or other indebtedness owed by customers of such Person (other than any Loan Party) which are current assets and arose from sales of inventory in the ordinary course of such Person’s business consistent with past practice or (b) prepaid expenses of such Person incurred and prepaid in the ordinary course of business consistent with past practice.
“ISP” shall have the meaning given to that term in Section 2.02(h).
“Joint Bookrunners” shall mean, collectively, WFS, BofA Securities, Inc. and U.S. Bank National Association in their capacity as joint bookrunners with respect to this Agreement.
“Joint Lead Arrangers” shall mean, collectively, WFS, BofA Securities, Inc. and U.S. Bank National Association in their capacity as joint lead arrangers with respect to this Agreement.
“Joint Venture” shall mean a joint venture, limited liability company, corporation, partnership, other entity or other legal arrangement (whether created pursuant to a contract or conducted through a separate legal entity) formed by a Loan Party and one or more other Persons who are not Loan Parties.
“L/C Advance” shall mean, with respect to each Revolving Lender, such Revolving Lender’s payment or participation in any L/C Borrowing in accordance with its L/C Risk Participation therein.
“L/C Borrowing” shall mean an extension of credit resulting from a drawing under any Letter of Credit which has not been reimbursed on the date when made or refinanced as a Revolving Loan Borrowing.
“L/C Credit Extension” shall mean, with respect to any Letter of Credit, the issuance thereof, the amendment thereof, the extension of the expiry date thereof, or the renewal or increase of the amount thereof.
“L/C Issuer” shall mean Xxxxx Fargo in its capacity as issuer of Letters of Credit hereunder, or any successor issuer of Letters of Credit hereunder.
“L/C Obligations” shall mean, as at any date of determination, the aggregate undrawn face amount of all outstanding Letters of Credit plus the aggregate of all Unreimbursed Amounts, including all L/C Borrowings.
“L/C Risk Participation” shall mean, with respect to any Revolving Lender and any Letter of Credit as of any date of determination, the sum of (a) such Lender’s Revolving Proportionate Share of the Effective Amount of the L/C Obligation attributable to such Letter of Credit outstanding at such time plus (b) the aggregate amount of all Defaulting Lenders’
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Revolving Proportionate Shares of the Effective Amount of the L/C Obligation attributable to such Letter of Credit outstanding at such time that have been reallocated to such Lender pursuant to Section 2.16(a)(iv).
“Lender” and “Lenders” shall have the meaning given to such terms in clause (2) of the introductory paragraph hereof and includes the L/C Issuer and the Swing Line Lender.
“Lender Bank Product Provider” shall mean any Lender or Affiliate of a Lender which provides one or more Lender Bank Products.
“Lender Bank Products” shall mean each and any of the following types of services or facilities extended to any Borrower by any Lender Bank Product Provider: (a) commercial credit cards; (b) cash management services (including daylight overdrafts, multicurrency accounts, foreign cash letters, merchant card services, controlled disbursement services, ACH transactions, and interstate depository network services), and (c) returned items. The obligations with respect to Lender Bank Products shall be secured by the Liens created by the Security Documents to the extent set forth in Section 2.14(a).
“Lender Parties” shall mean, collectively, the Lenders, WFS, the Lender Rate Contract Counterparties, the Lender Bank Product Providers and the Administrative Agent.
“Lender Rate Contract(s)” shall mean one or more Rate Contracts between a Borrower or the Borrowers and one or more Lender Rate Contract Counterparties with respect to the Indebtedness evidenced by this Agreement, on terms acceptable to such Borrower or the Borrowers and such Lender Rate Contract Counterparty that is a party to such Rate Contract. Each Lender Rate Contract shall be secured by the Liens created by the Security Documents to the extent set forth in Section 2.14(a).
“Lender Rate Contract Counterparty” shall mean any Lender or Affiliate of a Lender which enters into a Lender Rate Contract.
“Lenders” shall have the meaning given to that term in clause (2) of the introductory paragraph hereof and includes the L/C Issuer and the Swing Line Lender (unless the context otherwise requires).
“Letter of Credit” shall mean any letter of credit issued hereunder. A Letter of Credit may be a Commercial Letter of Credit or a Standby Letter of Credit.
“Letter of Credit Application” shall mean an application and agreement (including any master letter of credit agreement) for the issuance or amendment of a letter of credit in the form from time to time in use by the L/C Issuer.
“Letter of Credit Expiration Date” shall mean the day that is thirty days prior to the Maturity Date (or, if such day is not a Business Day, the next preceding Business Day).
“Letter of Credit Sublimit” shall mean an amount equal to the lesser of (a) $5,000,000 and (b) the Total Revolving Loan Commitment. The Letter of Credit Sublimit is part of, and not in addition to, the Total Revolving Loan Commitment.
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“LIBOR Loan” shall mean, at any time, a Loan (or in the case of the Term Loans, a portion thereof, as the context may require) which then bears interest as provided in clause (ii) of Section 2.01(d).
“LIBOR Rate” shall mean, subject to the implementation of a Benchmark Replacement in accordance with Section 2.17, with respect to any Interest Period for any LIBOR Loans, a rate per annum equal to the quotient (rounded upward if necessary to the nearest 1/100 of one percent) of (a) the rate per annum reported on Reuters Screen LIBOR 01 Page (or any successor or substitute page thereof), or if not reported by Reuters, as reported by any service selected by the Administrative Agent, at or about 11:00 a.m., London time (or as soon thereafter as practicable), two Business Days prior to the first day of such Interest Period, for Dollar deposits being delivered in the London interbank eurodollar currency market for a term comparable to such Interest Period, divided by (b) one minus the Reserve Requirement for such Loans in effect from time to time. If for any reason rates are not available as provided in clause (a) of the preceding sentence, the rate to be used in clause (a) shall be, at the Administrative Agent’s discretion (in each case, rounded upward if necessary to the nearest 1/100 of one percent), (i) the rate per annum at which Dollar deposits are offered to the Administrative Agent in the London interbank eurodollar currency market or (ii) the rate per annum at which Dollar deposits are offered to the Administrative Agent in, or by the Administrative Agent to major banks in, any offshore interbank eurodollar market selected by the Administrative Agent, in each case on the second Business Day prior to the commencement of such Interest Period at or about 11:00 a.m. London time (or as soon thereafter as practicable) (for delivery on the first day of such Interest Period) for a term comparable to such Interest Period and in an amount approximately equal to the amount of the Loans to be made or funded by the Lenders. Notwithstanding the foregoing, if the LIBOR Rate (including any Benchmark Replacement with respect thereto) for any Loan shall be less than 0.50%, such rate shall be deemed to be 0.50% for purposes of this Agreement. The LIBOR Rate shall be adjusted automatically as to all LIBOR Loans then outstanding as of the effective date of any change in the Reserve Requirement. In the event that a Benchmark Replacement with respect to the LIBOR Rate is implemented then all references herein to LIBOR Rate shall be deemed references to such Benchmark Replacement.
“Licenses” shall mean, collectively, any and all licenses (including provisional licenses), certificates of need, accreditations, permits, franchises, rights to conduct business, approvals (by a Governmental Authority or otherwise), consents, qualifications, operating authority and any other authorizations.
“Lien” shall mean, with respect to any property, any security interest, mortgage, pledge, lien, charge or other encumbrance in, of, or on such property or the income therefrom, including, without limitation, the interest of a vendor or lessor under a conditional sale agreement, Capital Lease or other title retention agreement, or any agreement to provide any of the foregoing, and the filing of any financing statement or similar instrument under the Uniform Commercial Code or comparable law of any jurisdiction.
“Loan” shall mean a Revolving Loan, a Swing Line Loan or a Term Loan (or, as the context may require, a portion thereof).
“Loan Account” shall have the meaning given to that term in Section 2.08(a).
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“Loan Documents” shall mean and include this Agreement, the Notes, the Guaranty, the Security Documents, the Environmental Indemnity Agreement, each Letter of Credit Application, each Notice of Borrowing, each Notice of Interest Period Selection, each Notice of Conversion, the Fee Letter and all other documents, instruments and agreements delivered to the Administrative Agent or any Lender pursuant to Section 3.01 or Section 3.02 and all other documents, instruments and agreements delivered by any Loan Party to the Administrative Agent, WFS or any Lender in connection with this Agreement or any other Loan Document on or after the date of this Agreement, including, without limitation, any amendments, consents or waivers, as the same may be amended, restated, supplemented or modified from time to time, but excluding all Lender Rate Contracts and all documents related to Lender Bank Products.
“Loan Parties” shall mean, collectively, the Borrowers and the Guarantors.
“Maintenance Capital Expenditure” shall mean, with respect to any Person and any period, all amounts expended by such Person during such period for the maintenance, repair, restoration or refurbishment of the Capital Assets of such Person computed in accordance with GAAP.
“Margin Stock” shall have the meaning given to that term in Regulation U issued by the Federal Reserve Board.
“Material Adverse Effect” shall mean any event or circumstance that has or could reasonably be expected to have a material adverse effect on (a) the business, operations, condition (financial or otherwise), assets or liabilities (whether actual or contingent) of the Loan Parties taken as a whole, (b) the ability of any Borrower to pay or perform the Obligations in accordance with the terms of this Agreement and the other Loan Documents or the ability of the Guarantors, collectively, to pay or perform any portion of their obligations in accordance with the terms of the Guaranty and the other Loan Documents; (c) the rights and remedies of the Administrative Agent or any Lender under this Agreement, the other Loan Documents or any related document, instrument or agreement; (d) the value of the Collateral, the Administrative Agent’s or any Lender’s security interest in the Collateral or the perfection or priority of such security interests; or (e) the validity or enforceability of any of the Loan Documents.
“Material Contract” shall mean (a) the Construction Contract, the Plans and Specifications and the Construction Budget, (b) the Adjacent Driveway Estoppel, (c) the CC Skybridge Estoppel, (d) the Atlantis - BLILB Estoppel and (e) any other agreement or arrangement to which any Loan Party is a party (other than the Loan Documents) with respect to which breach, termination, nonperformance or failure to renew could reasonably be expected to have a Material Adverse Effect.
“Material Documents” shall mean (i) the Organizational Documents of the Loan Parties and (ii) the Material Contracts.
“Maturity” or maturity” shall mean, with respect to any Loan, interest, fee or other amount payable by the Borrowers under this Agreement or the other Loan Documents, the date such Loan, interest, fee or other amount becomes due, whether upon the stated maturity or due date, upon acceleration or otherwise.
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“Maturity Date” shall mean September 3, 2023.
“MGI” shall have the meaning given to that term in clause (1) of the introductory paragraph hereof.
“MGI Deed of Trust” shall mean the Deed of Trust, Assignment of Leases and Rents, Security Agreement and Fixture Filing, dated as of the April 26, 2012, by MGI in favor of Public Trustee of Xxxxxx County, Colorado, for the benefit of the Administrative Agent.
“Minimum Collateral Amount” shall mean, at any time, (i) with respect to Cash Collateral consisting of cash or deposit account balances, an amount equal to 105% of the Fronting Exposure of the L/C Issuer with respect to Letters of Credit issued and outstanding at such time and (ii) otherwise, if Event of Default has occurred and is continuing an amount equal to 105% of the L/C Obligations.
“MSLP Indebtedness” shall mean any Indebtedness incurred by the Borrowers in connection with any loan obtained under the Main Street Lending Program authorized and established by the CARES Act and Section 13(3) of the Federal Reserve Act.
“Monarch Casino Black Hawk” shall mean collectively the real property encumbered by the Black Hawk Deed of Trust and the MGI Deed of Trust, the improvements located thereon and the hotel and casino business and related activities conducted thereon.
“Multiemployer Plan” shall mean any multiemployer plan within the meaning of Section 3(37) of ERISA maintained or contributed to by any Loan Party or any ERISA Affiliate.
“Negative Pledge” shall mean a Contractual Obligation which contains a covenant binding on any Loan Party that prohibits Liens on any of its Property, other than (a) any such covenant contained in a Contractual Obligation granting or relating to a particular Permitted Lien which affects only the Property that is the subject of such Permitted Lien and (b) any such covenant that does not apply to Liens securing the Obligations.
“Net Condemnation Proceeds” shall mean an amount equal to: (a) any cash payments or proceeds received by a Loan Party or the Administrative Agent as a result of any condemnation or other taking or temporary or permanent requisition of any Property of a Loan Party, any interest therein or right appurtenant thereto, or any change of grade affecting such Property, as the result of the exercise of any right of condemnation or eminent domain by a Governmental Authority (including a transfer to a Governmental Authority in lieu or anticipation of a condemnation), minus (b) (i) any actual and reasonable costs incurred by a Loan Party in connection with any such condemnation or taking (including reasonable fees and expenses of counsel), and (ii) provisions for all taxes payable as a result of such condemnation, without regard to the consolidated results of operations of the Loan Parties, taken as a whole.
“Net Income” shall mean with respect to any fiscal period, the net income of the Loan Parties for such period determined on a consolidated basis in accordance with GAAP, consistently applied; provided, that Net Income shall not include any income (or loss) attributable to any net income or (net loss) of any Excluded Subsidiary; provided, further that Net Income shall not include any dividends or distributions received by any Loan Party from any
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Excluded Subsidiary during such fiscal period other than cash dividends or distributions in an aggregate amount not to exceed the lesser of (x) the net income of such Excluded Subsidiary for such fiscal period and (y) the aggregate amount of cash distributions or dividends made by such Excluded Subsidiary to any Loan Party at a time when the Net Investment for such Excluded Subsidiary was equal to or less than zero.
“Net Insurance Proceeds” shall mean an amount equal to: (a) any cash payments or proceeds received by a Loan Party or the Administrative Agent under any key man life insurance policy or any casualty policy in respect of a covered loss thereunder with respect to any property, minus (b) (i) any actual and reasonable costs incurred by a Loan Party in connection with the adjustment or settlement of any claims of a Loan Party in respect thereof (including reasonable fees and expenses of counsel) and (ii) provisions for all taxes payable as a result of such event without regard to the consolidated results of operations of Loan Parties, taken as a whole.
“Net Investment” shall mean, at any time with respect to any Excluded Subsidiary, an amount equal to (a) the aggregate amount of Investments made by the Loan Parties in such Excluded Subsidiary since the First Restatement Effective Date minus (b) the aggregate amount of cash dividends or distributions received by the Loan Parties from such Excluded Subsidiary since the First Restatement Effective Date.
“Net Proceeds” shall mean:
(a)With respect to any sale of any asset or property by any Person, the aggregate consideration received by such Person from such sale less the sum of (i) the actual amount of the reasonable fees and commissions payable by such Person other than to any of its Affiliates, (ii) the reasonable legal expenses and other costs and expenses directly related to such sale that are to be paid by such Person other than to any of its Affiliates (including, without limitation, transfer, sale, use and other similar taxes payable in connection with such sale), (iii) income taxes reasonably estimated to be payable by such Person as a result of such sale, and (iv) the amount of any Indebtedness (other than the Obligations) which is secured by such asset and is required to be repaid or prepaid by such Person as a result of such sale; and
(b)With respect to any issuance or incurrence of any Indebtedness by any Person, the aggregate consideration received by such Person from such issuance or incurrence less the sum of (i) the actual amount of the reasonable fees and commissions payable by such Person other than to any of its Affiliates and (ii) the reasonable legal expenses and the other reasonable costs and expenses directly related to such issuance or incurrence that are to be paid by such Person other than to any of its Affiliates; and
(c)With respect to any issuance of Equity Securities by any Person, the aggregate consideration received by such Person from such issuance less the sum of (i) the actual amount of the reasonable fees and commissions payable by such Person other than to any of its Affiliates and (ii) the reasonable legal expenses and the other reasonable costs and expenses directly related to such issuance that are to be paid by such Person other than to any of its Affiliates.
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“Nevada COVID-19 Directives” shall mean a collective reference to all Directives and Declarations issued by the Governor of the State of Nevada or other Nevada Governmental Authority prior to, on or after the Fourth Restatement Effective Date pertaining to the ongoing COVID-19 pandemic and the operation and conduct of business at the Atlantis Casino Resort & Spa, including, without limitation, the Declaration of Emergency Directive 002 issued by the Governor of the State of Nevada on March 18, 2020
“New Lender” shall have the meaning given to that term in Section 2.01(b)(ii).
“Non-Consenting Lender” shall mean any Lender that does not approve any consent, waiver or amendment that (i) requires the approval of all affected Lenders in accordance with the terms of Section 8.04 and (ii) has been approved by the Required Lenders.
“Non-Defaulting Lender” shall mean, at any time, a Lender that is not a Defaulting Lender at such time.
“Nonrenewal Notice Date” shall have the meaning given to that term in Section 2.02(b)(iii).
“Non-Wholly-Owned Subsidiary” shall mean a direct or indirect Subsidiary of Parent that is not a Wholly-Owned Subsidiary.
“Note” shall mean a Revolving Loan Note, a Term Loan Note or a Swing Loan Note.
“Notice of Borrowing” shall mean a Notice of Loan Borrowing or a Notice of Swing Loan Borrowing.
“Notice of Conversion” shall have the meaning given to that term in Section 2.01(e).
“Notice of Interest Period Selection” shall have the meaning given to that term in Section 2.01(f)(ii).
“Notice of Loan Borrowing” shall have the meaning given to that term in Section 2.01(c).
“Notice of Swing Loan Borrowing” shall mean a notice of a Swing Loan Borrowing pursuant to Section 2.03(b), which, if in writing, shall be substantially in the form of Exhibit D.
“Obligations” shall mean and include (a) all loans, advances, debts, liabilities and obligations, howsoever arising, owed or owing by one or more of the Borrowers of every kind and description (whether or not evidenced by any note or instrument and whether or not for the payment of money), direct or indirect, absolute or contingent, due or to become due, now existing or hereafter arising pursuant to the terms of this Agreement or any of the other Loan Documents, including without limitation all interest (including interest that accrues after the commencement of any bankruptcy or other insolvency proceeding by or against one or more of the Borrowers, whether or not allowed or allowable), fees, charges, expenses, attorneys’ fees and accountants’ fees chargeable to and payable by the Borrowers hereunder and thereunder and (b) any and all obligations, howsoever arising, owed or owing by a Borrower to any Lender Party under or in connection with any Lender Rate Contract or Lender Bank Product (provided that if
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any such Lender Party ceases to be a Lender or an Affiliate of a Lender hereunder, such obligations under this clause (b) shall be limited to those that relate to any Lender Rate Contract entered into or any Lender Bank Product extended or provided, as applicable, prior to the date such party ceased to be a Lender or an Affiliate of a Lender); provided, further that “Obligations” shall exclude all Excluded Swap Obligations.
“Operational Liquidity” shall mean, as of any date of determination, the amount by which (a) (i) the Unused Revolving Commitment as of such date, minus (ii) the Effective Amount of all Swing Line Loans as of such date, plus (iii) cash of the Loan Parties (including cage cash) as of such date exceeds (b) (i) $24,000,000 minus (ii) any retainage costs with respect to the Expansion Project and any settlement or judgment under the PCL Litigation paid in cash by the Borrowers; provided that from and after the date the conditions for the occurrence of a Credit Event described in Section 3.02(b)(v)(B) have been satisfied, the amount in this clause (b) shall be deemed to be zero.
“Organizational Documents” shall mean, with respect to any Person, collectively, (a) such Person’s articles or certificate of incorporation, articles or certificate of organization, certificate of limited partnership, certificate of formation, or comparable documents filed or recorded with the applicable Governmental Authority of such Person’s jurisdiction of formation and (b) such Person’s, bylaws, limited liability company agreement, partnership agreement or other comparable organizational or governing documents.
“Other Connection Taxes” shall mean, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).
“Other Taxes” shall mean all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 2.15(b)).
“Out-Of-Balance” shall mean, with respect to the Expansion Project as of any date of determination, that the aggregate amount of costs of the Expansion Project (inclusive of any contingency amount) remaining to be paid as of such date plus the aggregate unpaid amount of construction costs with respect to the Expansion Project claimed by the General Contractor under the PCL Litigation (excluding, for the avoidance of doubt, any consequential, punitive or liquidated damages) less the amount of offset claims made in good faith by MGI, Parent and Black Hawk, exceeds the following: (a) the Unused Revolving Commitment as of such date plus (b) unrestricted cash of the Loan Parties (excluding any cage cash and cash reserved as a result of any Requirement of Law or for any other purpose) subject to a Control Agreement as of such date and available to pay costs of the Expansion Project minus (c) the Effective Amount of all
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Swing Line Loans as of such date minus (d) any amounts owing that remain unpaid under any of the Excluded Projects.
“Parent” shall have the meaning given to such term in clause (1) of the introductory paragraph hereof.
“Pari mutuel Accounts” shall mean, collectively, any deposit account of any Loan Party used exclusively for pari-mutuel activities conducted by a third party pari-mutuel operator so long as the aggregate amount of available funds on deposit does not at any time exceed $100,000 for all such accounts.
“Participant” shall have the meaning given to that term in Section 8.05(b).
“Participant Register” shall mean a register maintained by the Administrative Agent at its address referred to in Section 8.01 on which the participations and the related commitments and Loans (and each repayment with respect to the principal amount thereof) of all Participants that exercise the right of setoff and offset described in Section 8.05(b) are recorded.
“Participation Seller” shall have the meaning given to that term in Section 8.05(h).
“Patriot Act” shall mean the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56 (commonly known as the USA Patriot Act).
“PBGC” shall mean the Pension Benefit Guaranty Corporation.
“PCL Litigation” shall mean litigation between MGI, Parent and Black Hawk, on the one side, and PCL Construction Services, Inc., on the other side, as described in the complaint filed by PCL Construction Services, Inc. on August 30, 2019 in state district court in Denver, CO (Case Number 2019CV33368).
“PCL Litigation Liens” shall mean any mechanic’s Lien filed in connection with the PCL Litigation.
“Pedestrian Crossing” shall mean the elevated pedestrian crossing which is constructed between the Atlantis Hotel/Casino Property and the V/P Property which includes, among other things, a restaurant, bar, gaming space and other public areas.
“Pedestrian Crossing Air Space” shall mean that portion of the airspace between the Atlantis Hotel/Casino Property and the V/P Property within which the Pedestrian Crossing is constructed.
“Pedestrian Crossing Air Space License” shall mean that certain Application and Permit for Occupancy of Nevada Department of Transportation Right of Way, which was issued to Golden Road by the State of Nevada Department of Transportation, under Permit Number 2-28-97, for the purpose of authorizing Golden Road’s construction and use of the Pedestrian Crossing within the Pedestrian Crossing Air Space.
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“Pension Plan” shall mean any “employee pension benefit plan” (as such term is defined in Section 3(2) of ERISA), other than a Multiemployer Plan and a Foreign Plan, that is subject to Title IV of ERISA and is sponsored or maintained by a Loan Party or any ERISA Affiliate or to which a Loan Party or any ERISA Affiliate contributes or has an obligation to contribute.
“Permitted Indebtedness” shall have the meaning given to that term in Section 5.02(a).
“Permitted Liens” shall have the meaning given to that term in Section 5.02(b).
“Person” shall mean and include an individual, a partnership, a corporation (including a business trust), a joint stock company, an unincorporated association, a limited liability company, a joint venture, a trust or other entity or a Governmental Authority.
“Plans and Specifications” shall mean, collectively, the plans, specifications, construction plan and timetable to be prepared with respect to the Expansion Project, as the same may be amended, supplemented or otherwise modified from time to time in accordance with the terms thereof and hereof, all of which plans and specifications shall describe and show the construction of the Expansion Project and the labor and materials necessary for the construction thereof.
“Platform” shall have the meaning set forth in Section 8.01(b).
“Pledged Intercompany Notes” shall mean original demand promissory notes in favor of one or more of the Borrowers and the Guarantors evidencing intercompany advances pledged to the Administrative Agent pursuant to the Security Agreement.
“PPP Loan” shall mean any “covered loan” obtained pursuant to Section 7(a) of the SBA, as amended by the CARES Act. For the avoidance of doubt, any portion of outstanding PPP Loans that is not forgiven and is required to be repaid in accordance with its terms shall be indebtedness for borrowed money and included in Indebtedness for all purposes, including the calculation of Total Debt and the Total Leverage Ratio.
“Pricing Grid” shall mean,
Pricing Grid | ||||
|---|---|---|---|---|
Tier | Total Leverage Ratio | Applicable Margin for LIBOR Loans | Applicable Margin for Base Rate Loans | Commitment Fee Percentage |
I | > 4.25 | 3.25% | 2.25% | 0.575% |
II | > 4.00 but < 4.25 | 3.00% | 2.00% | 0.550% |
III | > 3.25 but < 4.00 | 2.75% | 1.75% | 0.500% |
IV | > 2.50 but < 3.25 | 2.50% | 1.50% | 0.450% |
V | > 1.75 but < 2.50 | 2.25% | 1.25% | 0.400% |
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Pricing Grid | ||||
|---|---|---|---|---|
Tier | Total Leverage Ratio | Applicable Margin for LIBOR Loans | Applicable Margin for Base Rate Loans | Commitment Fee Percentage |
VI | > 1.00 but < 1.75 | 2.00% | 1.00% | 0.375% |
VII | < 1.00 | 1.75% | 0.75% | 0.350% |
Any increase or decrease in the Applicable Margin and Commitment Fee Percentage resulting from a change in the Total Leverage Ratio shall become effective as of the first day of the third calendar month following the end of the fiscal quarter for which the Administrative Agent receives a Compliance Certificate indicating the then current Total Leverage Ratio and applicable Tier level; provided, however, that if no Compliance Certificate is delivered when due in accordance with such Section, then Tier I shall apply as of the date of the failure to deliver such Compliance Certificate until such date as the Borrowers deliver such Compliance Certificate in form and substance acceptable to the Administrative Agent and thereafter the Applicable Margin and Commitment Fee Percentage shall be based on the Total Leverage Ratio indicated on such Compliance Certificate until such time as the Applicable Margin and Commitment Fee Percentage are further adjusted as set forth in this definition. Notwithstanding anything to the contrary herein, the Applicable Margin and Commitment Fee Percentage in effect as of the Fourth Restatement Effective Date until the first adjustment to occur after the Initial Covenant Compliance Date shall be set at Tier I. If the Total Leverage Ratio reported in any Compliance Certificate shall be determined to have been incorrectly reported and if correctly reported would have resulted in a higher Applicable Margin or Commitment Fee Percentage, then the Applicable Margin or Commitment Fee Percentage, as applicable, shall be retroactively adjusted to reflect the higher rate that would have been applicable had the Total Leverage Ratio been correctly reported in such Compliance Certificate and the additional amounts resulting therefrom shall be due and payable upon demand from the Administrative Agent or any Lender or, after the occurrence of an actual or deemed entry of an order for relief with respect to any Borrower under any Debtor Relief Laws, automatically and without further action by the Administrative Agent or any Lender (the Borrowers’ obligations to pay such additional amounts shall survive the payment and performance of all other Obligations and the termination of this Agreement). If the Total Leverage Ratio reported in any Compliance Certificate shall be determined to have been incorrectly reported and if correctly reported would have resulted in a lower Applicable Margin or Commitment Fee Percentage, then the Applicable Margin or Commitment Fee Percentage, as applicable, shall be retroactively adjusted to reflect the lower rate that would have been applicable had the Total Leverage Ratio been correctly reported in such Compliance Certificate and the adjusted amounts resulting therefrom shall be credited against future payments of interest and Commitment Fees owing by the Borrowers to the Lenders. For the avoidance of doubt, the Applicable Margin in effect under the Existing Credit Agreement immediately prior to the Fourth Restatement Effective Date shall be applicable to all interest and commitment fees accruing prior to the Fourth Restatement Effective Date.
“Prime Rate” shall mean the per annum rate of interest most recently announced within Xxxxx Fargo at its principal office in San Francisco, California as its Prime Rate, with the understanding that Xxxxx Fargo’s Prime Rate is one of its base rates and serves as the basis upon
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which effective rates of interest are calculated for those loans making reference thereto, and is evidenced by the recording thereof after its announcement in such internal publication or publications as Xxxxx Fargo may designate. Any change in the Base Rate resulting from a change in the Prime Rate shall become effective on the Business Day on which each such change in the Prime Rate occurs.
“Proportionate Share” shall mean a Revolving Proportionate Share or Term Proportionate Share, as the context may require.
“PTE” shall mean a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.
“Public Lender” shall have the meaning given to that term in Section 5.01(a).
“Rate Contract” shall mean any agreement with respect to any swap, cap, collar, hedge, forward, future or derivative transaction or option or similar agreement involving, or settled by reference to, one or more rates, currencies, commodities, equity or debt instruments or securities, or economic, financial or pricing indices or measures of economic, financial or pricing risk or value or any similar transaction or any combination of these transactions.
“Real Property Security Documents” shall mean (a) the Atlantis Deed of Trust, (b) the Black Hawk Deed of Trust, (c) the MGI Deed of Trust, (d) the Inter-Mountain Deed of Trust, (e) the Assignment of Entitlements and (e) each deed of trust or mortgage delivered from time to time in accordance with Section 5.01(l) or otherwise in connection with the Loan Documents.
“Receipt Date” shall have the meaning given to that term in Section 2.06(c)(vi).
“Reduction Notice” shall have the meaning given to that term in Section 2.04(a).
“Register” shall have the meaning given to that term in Section 8.05(d).
“Relevant Governmental Body” shall mean the Federal Reserve Board and/or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Federal Reserve Board and/or the Federal Reserve Bank of New York or any successor thereto.
“Relevant Sale” shall have the meaning given to that term in Section 2.06(c)(v).
“Reportable Event” shall mean any of the events set forth in Section 4043(c) of ERISA and applicable regulations thereunder (other than events for which the thirty (30) day notice period has been waived).
“Required Lenders” shall mean, at any time, the Lenders whose Proportionate Shares then exceed fifty percent (50%) of the total Proportionate Shares of all Lenders; provided that at any time any Lender is a Defaulting Lender, such Defaulting Lender shall be excluded in determining “Required Lenders”, and “Required Lenders” shall mean at such time Non-Defaulting Lenders having total Proportionate Shares exceeding fifty percent (50%) of the total Proportionate Shares of all Non-Defaulting Lenders; provided that, in no event shall the Required Lenders consist of fewer than two non-Defaulting Lenders at any time at which there
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shall be at least two non-Defaulting Lenders party to this Agreement, and for purposes of the foregoing, Lenders that are Affiliates of one another shall be treated as a single Lender.
“Required Revolving Lenders” shall mean, at any time, the Revolving Lenders whose Revolving Proportionate Shares then exceed fifty percent (50%) of the total Revolving Proportionate Shares of all Revolving Lenders; provided that at any time any Revolving Lender is a Defaulting Lender, such Defaulting Lender shall be excluded in determining “Required Revolving Lenders”, and “Required Revolving Lenders” shall mean at such time Non-Defaulting Lenders having total Revolving Proportionate Shares exceeding fifty percent (50%) of the total Revolving Proportionate Shares of all Non-Defaulting Lenders; provided that, in no event shall the Required Revolving Lenders consist of fewer than two Non-Defaulting Lenders at any time at which there shall be at least two Non-Defaulting Lenders who are Revolving Lenders party to this Agreement, and for purposes of the foregoing, Revolving Lenders that are Affiliates of one another shall be treated as a single Lender.
“Requirement of Law” applicable to any Person shall mean (a) such Person’s Organizational Documents, (b) any Governmental Rule applicable to such Person, (c) any Governmental Authorization granted by or obtained from any Governmental Authority or under any Governmental Rule for the benefit of such Person or (d) any judgment, decision, award, decree, writ or determination of any Governmental Authority or arbitrator, 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.
“Reserve Requirement” shall mean, with respect to any day in an Interest Period for a LIBOR Loan and for any calculation of the One Month LIBOR Rate, the aggregate of the maximum of the reserve requirement rates (expressed as a decimal) in effect on such day for eurocurrency funding (currently referred to as “Eurocurrency liabilities” in Regulation D of the Federal Reserve Board) maintained by a member bank of the Federal Reserve System. As used herein, the term “reserve requirement” shall include, without limitation, any basic, supplemental or emergency reserve requirements imposed on any Lender by any Governmental Authority.
“Resolution Authority” shall mean an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
“Responsible Officer” shall mean, with respect to a Loan Party, the chief executive officer, president, chief operating officer, director, chief financial officer, vice president of finance or treasurer of such Loan Party. Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party and any request or other communication conveyed telephonically or otherwise by a Responsible Officer of a Loan Party (or any Person reasonably believed by the Administrative Agent to be a Responsible Officer of a Loan Party) shall be conclusively presumed to have been authorized by all necessary corporate, company, partnership and/or other action on the part of such Loan Party and such Responsible Officer (or such Person reasonably believed by the Administrative Agent to be a Responsible Officer) shall be conclusively presumed to have acted on behalf of such Loan Party.
“Revolving Lender” shall mean (a) on the Fourth Restatement Effective Date, the Lenders having Revolving Loan Commitments as specified on Part A of Schedule I hereto and
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(b) thereafter, the Lenders from time to time holding Revolving Loans, L/C Obligations and Swing Line Loans and Revolving Loan Commitments after giving effect to any increase in the Total Revolving Loan Commitment under Section 2.01(b) and any assignments permitted by Section 8.05(c).
“Revolving Loan” shall have the meaning given to that term in Section 2.01(a)(i).
“Revolving Loan Borrowing” shall mean a borrowing by the Borrowers consisting of the Revolving Loans made by each of the Revolving Lenders to the Borrowers on the same date and of the same Type pursuant to a single Notice of Loan Borrowing for Revolving Loans.
“Revolving Loan Commitment” shall mean, with respect to each Lender, the Dollar amount set forth under the caption “Revolving Loan Commitment” opposite such Lender’s name on Part A of Schedule I, or, if changed in accordance with this Agreement, such Dollar amount as may be set forth for such Lender in the Register.
“Revolving Loan Note” shall have the meaning given to that term in Section 2.08(b).
“Revolving Proportionate Share” shall mean:
(a)With respect to any Lender so long as the Revolving Loan Commitments are in effect, the ratio (expressed as a percentage rounded to the eighth digit to the right of the decimal point) of (i) such Lender’s Revolving Loan Commitment at such time to (ii) the Total Revolving Loan Commitment at such time; and
(b)With respect to any Lender at any other time, the ratio (expressed as a percentage rounded to the eighth digit to the right of the decimal point) of (i) the sum of (A) the aggregate Effective Amount of such Lender’s Revolving Loans, (B) such Lender’s pro rata share of the Effective Amount of all L/C Obligations, and (C) such Lender’s pro rata share of the aggregate Effective Amount of all Swing Line Loans to (ii) the sum of (A) the aggregate Effective Amount of all Revolving Loans and Swing Line Loans and (B) the Effective Amount of all L/C Obligations.
The initial Revolving Proportionate Share of each Lender is set forth under the caption “Revolving Proportionate Share” opposite such Lender’s name on Schedule I.
“RSCVA” shall mean the Xxxx Xxxxxx Convention and Visitors Authority, a political subdivision of the County of Washoe, State of Nevada.
“Sale and Leaseback” shall mean, with respect to any Person, the sale of Property owned by such Person (the “Seller”) to another Person (the “Buyer”), together with the substantially concurrent leasing of such Property by the Buyer to the Seller.
“Sanctioned Country” shall mean at any time, a country or territory which is itself the subject or target of any Sanctions (including, without limitation, Cuba, Iran, North Korea, Sudan and Syria).
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“Sanctioned Person” shall mean, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by OFAC (including, without limitation, OFAC’s Specially Designated Nationals and Blocked Persons List and OFAC’s Consolidated Non-SDN List), the U.S. Department of State, the United Nations Security Council, the European Union, Her Majesty’s Treasury, or other relevant sanctions authority, (b) any Person operating, organized or resident in a Sanctioned Country or (c) any Person owned or controlled by any such Person or Persons described in clauses (a) and (b), including a Person that is deemed by OFAC to be a Sanctions target based on the ownership of such legal entity by Sanctioned Xxxxx(s).
“Sanctions” shall mean any and all economic or financial sanctions, sectoral sanctions, secondary sanctions, trade embargoes and anti-terrorism laws, including but not limited to those imposed, administered or enforced from time to time by the U.S. government (including those administered by OFAC or the U.S. Department of State), the United Nations Security Council, the European Union, Her Majesty’s Treasury, or other relevant sanctions authority with jurisdiction over the Borrowers or any of their Subsidiaries.
“SBA” shall mean the Small Business Act of 1953, as in effect from time to time.
“Second Restatement Effective Date” shall mean November 15, 2011.
“Security Agreement” shall mean that certain Amended and Restated Security Agreement, dated as of July 20, 2016, among each Loan Party party thereto and the Administrative Agent.
“Security Documents” shall mean and include the Security Agreement, each Control Agreement, each Real Property Security Document, the Assignment of Architect’s Agreement, the Assignment of Construction Contract, each pledge agreement or security agreement delivered in accordance with Section 5.01(j) and all other instruments, agreements, certificates, opinions and documents (including Uniform Commercial Code financing statements and fixture filings) delivered to the Administrative Agent or any Lender in connection with any Collateral or to secure the Obligations or the obligation of a Guarantor under the Loan Documents.
“SOFR” with respect to any day shall mean the secured overnight financing rate published for such day by the Federal Reserve Bank of New York, as the administrator of the benchmark, (or a successor administrator) on the Federal Reserve Bank of New York’s Website.
“Solvent” shall mean, with respect to any Person on any date, that on such date (a) the fair value of the property of such Person is greater than the fair value of the liabilities (including contingent, subordinated, matured and unliquidated liabilities) of such Person, (b) the present fair saleable value of the assets of such Person is greater than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured, (c) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay as such debts and liabilities mature and (d) such Person is not engaged in or about to engage in business or transactions for which such Person’s property would constitute an unreasonably small capital.
“Spaceleases” shall mean the executed leases and concession agreements pertaining to the Atlantis Casino Resort Spa or any portion thereof where Golden Road is the lessor.
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“Standby Letter of Credit” shall mean any of the standby letters of credit issued by the L/C Issuer under this Agreement, either as originally issued or as the same may be supplemented, modified, amended, extended, restated or supplanted.
“Subsidiary” of any Person shall mean (a) any corporation of which more than 50% of the issued and outstanding Equity Securities having ordinary voting power to elect a majority of the board of directors of such corporation (irrespective of whether at the time capital stock of any other class or classes of such corporation shall or might have voting power upon the occurrence of any contingency) is at the time directly or indirectly owned or controlled by such Person, by such Person and one or more of its other Subsidiaries or by one or more of such Person’s other Subsidiaries, (b) any partnership, joint venture, limited liability company or other association of which more than 50% of the Equity Securities having the power to vote, direct or control the management of such partnership, joint venture or other association is at the time owned and controlled by such Person, by such Person and one or more of the other Subsidiaries or by one or more of such Person’s other Subsidiaries or (c) any other Person included in the Financial Statements of such Person on a consolidated basis. Unless otherwise indicated in this Agreement, “Subsidiary” shall mean a Subsidiary of Parent.
“Surety Instruments” shall mean all letters of credit (including standby and commercial), banker’s acceptances, bank guaranties, shipside bonds, surety bonds and similar instruments.
“Swap Obligation” shall mean with respect to any Guarantor, any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of section 1a(47) of the Commodity Exchange Act.
“Swing Line” shall mean the revolving credit facility made available by the Swing Line Lender pursuant to Section 2.03.
“Swing Line Lender” shall mean Xxxxx Fargo in its capacity as provider of Swing Line Loans, or any successor swing line lender hereunder.
“Swing Line Loan” shall mean the meaning specified in Section 2.03(a).
“Swing Line Risk Participation” shall mean, with respect to any Lender and any Swing Line Loan as of any date of determination, the sum of (a) such Lender’s Revolving Proportionate Share of the Effective Amount of such Swing Line Loan outstanding at such time plus (b) the aggregate amount of all Defaulting Lenders’ Revolving Proportionate Shares of the Effective Amount of such Swing Line Loan outstanding at such time that have been reallocated to such Lender pursuant to Section 2.16(a)(iv).
“Swing Line Settlement Date” shall mean the fifteenth day of each month and the last Business Day of each month.
“Swing Line Sublimit” shall mean an amount equal to the lesser of (a) $10,000,000 and (b) the Total Revolving Loan Commitment. The Swing Line Sublimit is part of, and not in addition to, the Total Revolving Loan Commitment.
“Swing Loan Borrowing” shall mean a borrowing of a Swing Line Loan.
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“Swing Loan Note” shall have the meaning given to that term in Section 2.08(c).
“Syndication Agent” shall mean Bank of America N.A., in its capacity as syndication agent in connection with this Agreement.
“Taxes” shall mean all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
“Termination Value” shall mean, in respect of any one or more Rate Contracts, after taking into account the effect of any legally enforceable netting agreement relating to such Rate Contracts, (a) for any date on or after the date such Rate Contracts have been closed out and termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior to the date referenced in clause (a) the amount(s) determined as the xxxx-to-market value(s) for such Rate Contracts, as determined by the Administrative Agent based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Rate Contracts which may include any Lender.
“Term Lender” shall mean (a) prior to the Closing Date, the Lenders having Term Loan Commitments as specified on Part A of Schedule I and (b) from and after the Closing Date, the Lenders from time to time holding Term Loans after giving effect to any assignments permitted by Section 8.05(c).
“Term Loan” shall mean each advance made by a Term Lender pursuant to Section 2.01(a)(ii).
“Term Loan Borrowing” shall mean the borrowing by the Borrowers of the Term Loans made by each of the Term Lenders to the Borrowers pursuant to a single Notice of Loan Borrowing for Term Loans on the Fourth Restatement Effective Date.
“Term Loan Commitment” shall mean, with respect to each Lender, the Dollar amount set forth under the caption “Term Loan Commitment” opposite such Lender’s name on Part A of Schedule I, or, if changed in accordance with this Agreement, such Dollar amount as may be set forth for such Lender in the Register
“Term Loan Installment Date” shall mean the last Business Day in March, June, September and December of each year, commencing on December 31, 2020.
“Term Loan Note” shall have the meaning given to that term in Section 2.08(d).
“Term Proportionate Share” shall mean:
(a)With respect to any Lender so long as the Term Loan Commitments are in effect, the ratio (expressed as a percentage rounded to the eighth digit to the right of the decimal point) of (i) such Lender’s Term Loan Commitment at such time to (ii) the Total Term Loan Commitment at such time; and
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(b)With respect to any Lender at any other time, the ratio (expressed as a percentage rounded to the eighth digit to the right of the decimal point) of (i) the aggregate Effective Amount of such Lender’s Term Loans to (ii) the aggregate Effective Amount of all Term Loans.
“Term SOFR” shall mean the forward-looking term rate based on SOFR that has been selected or recommended by the Relevant Governmental Body.
“Third Restatement Effective Date” shall mean July 20, 2016.
“Title Company” shall mean (a) First American Title Insurance Company and (b) each other title company that issues a title policy to the Administrative Agent in connection with real property Collateral.
“Total Funded Debt” shall mean all Indebtedness of the Loan Parties (determined on a consolidated basis without duplication in accordance with GAAP).
“Total Leverage Ratio” shall mean, at any time, the ratio of (a) Total Funded Debt at such time, to (b) EBITDA for the four consecutive fiscal quarter period most recently ended for which Financial Statements are available.
“Total Lender Risk Participation” shall mean, with respect to any Lender as of any date of determination, the sum of (a) such Lender’s L/C Risk Participations in all Letters of Credit outstanding at such time plus (b) such Lender’s Swing Line Risk Participations in all Swing Line Loans outstanding at such time.
“Total Revolving Loan Commitment” shall mean, as of the Fourth Restatement Effective Date, Seventy Million Dollars ($70,000,000) or, when such amount is reduced pursuant to Section 2.04(a) or (b), the amount to which so reduced and in effect at such time or, if such amount is increased pursuant to Section 2.01(b), the amount to which it is increased and in effect at such time.
“Total Term Loan Commitment” shall mean, as of the Fourth Restatement Effective Date, Two Hundred Million Dollars ($200,000,000).
“Type” shall mean, with respect to any Loan or Borrowing at any time, the classification of such Loan or Borrowing by the type of interest rate it then bears, whether an interest rate based upon the Base Rate or the LIBOR Rate.
“UCP” shall have the meaning given to that term in Section 2.02(h).
“UK Financial Institution” shall mean any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended form time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.
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“UK Resolution Authority” shall mean the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.
“Unadjusted Benchmark Replacement” shall mean the Benchmark Replacement excluding the Benchmark Replacement Adjustment.
“Unfunded Pension Liability” shall mean the excess of a Pension Plan’s benefit liabilities under Section 4001(a)(16) of ERISA, over the current value of that Pension Plan’s assets, determined in accordance with the assumptions used for funding the Pension Plan pursuant to Section 412 of the Code for the applicable plan year.
“United States” and “U.S.” shall mean the United States of America.
“Unreimbursed Amount” shall have the meaning set forth in Section 2.02(c)(i).
“Unused Revolving Commitment” shall mean, at any time (a) the Total Revolving Loan Commitment at such time minus (b) the sum of the Effective Amount of all Revolving Loans and the Effective Amount of all L/C Obligations outstanding at such time. For the avoidance of doubt, Swing Line Loans shall not be counted as Revolving Loans for purposes of determining the amount of Unused Revolving Commitment.
“U.S. Person” shall mean any Person that is a “United States Person” as defined in Section 7701(a)(30) of the Code.
“U.S. Tax Compliance Certificate” shall have the meaning specified in Section 2.12(g)(ii).
“Village Shopping Center” shall mean the shopping center known as “The Village” and formerly known as the Sierra Marketplace Shopping Center, located at the southeast corner of Virginia Street and Xxxxx Xxxx, Reno, Nevada, that is owned by BLILP, a portion of which is the subject of the Adjacent Driveway Lease.
“V/P Property” shall mean the real property more particularly described on that certain schedule marked Schedule B, affixed hereto and by this reference incorporated herein and made a part hereof.
“Xxxxx Fargo” shall have the meaning given to that term in clause (3) of the introductory paragraph hereof.
“WFS” shall have the meaning given to that term in the introductory paragraph hereof.
“Wholly-Owned Subsidiary” shall mean any Person in which 100% of the Equity Securities of each class having ordinary voting power, and 100% of the Equity Securities of every other class, in each case, at the time as of which any determination is being made, is owned, beneficially and of record, by Parent, or by one or more Wholly-Owned Subsidiaries of Parent, or both.
“Withholding Agent” shall mean any Loan Party and the Administrative Agent.
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“Write-Down and Conversion Powers” shall mean, (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.
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Any request under this Section 2.01(b) shall be submitted by the Borrowers to the Administrative Agent (which shall promptly forward copies to the Lenders), specify the proposed effective date and amount of such increase (and whether such increase shall be an increase in the Total Revolving Loan Commitment) and be accompanied by a certificate of a Responsible Officer stating that no Default exists or will occur as a result of such increase. If any fees are to be paid or offered in connection with such increase, the Administrative Agent (with the consent of
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Borrowers) may also specify any fees offered to those Lenders (the “Increasing Lenders”) which agree to increase the amount of their respective Revolving Loan Commitment, which fees may be variable based upon the amount by which any such Lender is willing to increase the amount of its Revolving Loan Commitment; no Lender which is not an Increasing Lender shall be entitled to receive any such fees. No Lender shall have any obligation, express or implied, to increase the amount of its Revolving Loan Commitment. Only the consent of each Increasing Lender shall be required for an increase in the amount of the Total Revolving Loan Commitment pursuant to this Section 2.01(b)(i). No Lender which elects not to increase the amount of its Revolving Loan Commitment may be replaced in respect of its existing Revolving Loan Commitment as a result thereof without such Lender’s written consent.
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The Borrowers shall give each Notice of Loan Borrowing for Revolving Loans to the Administrative Agent not later than (1) 11:00 a.m. at least three (3) Business Days before the date of the requested Revolving Loan Borrowing in the case of a Revolving Loan Borrowing consisting of LIBOR Loans and (2) 11:00 a.m. at least one (1) Business Day before the date of the requested Revolving Loan Borrowing in the case of a Revolving Loan Borrowing consisting of Base Rate Loans.
The Borrowers shall give the Notice of Loan Borrowing for Term Loans to the Administrative Agent not later than (1) 11:00 a.m. at least three (3) Business Days before the Fourth Restatement Effective Date in the case of a Term Loan Borrowing consisting of LIBOR Loans and (2) 11:00 a.m. at least (1) Business Day before the Fourth Restatement Effective Date in the case of a Term Loan Borrowing consisting of Base Rate Loans.
Each Notice of Loan Borrowing shall be delivered by first-class mail or facsimile or by e-mail containing a PDF of such signed and completed Notice of Loan Borrowing to the Administrative Agent at the office or facsimile number or e-mail address, as the case may be, and during the hours specified in Section 8.01; provided, however, that, if requested by the Administrative Agent, the Borrowers shall promptly deliver to the Administrative Agent the original of any Notice of Loan Borrowing initially delivered by facsimile or e-mail. The Administrative Agent shall promptly notify each Revolving Lender and/or Term Lender, as
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applicable, of the contents of each Notice of Loan Borrowing for Revolving Loans and/or Term Loans and of the amount and Type of (and, if applicable, the Interest Period for) the Loans to be made by such Lender as part of the requested Borrowing.
The number of Interest Periods for LIBOR Loans shall not exceed eight (8) in the aggregate at any time.
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The Borrowers shall give each Notice of Conversion to the Administrative Agent not later than 11:00 a.m. at least three (3) Business Days before the date of the requested conversion of a Base Rate Loan into a LIBOR Loan or at least one (1) Business Day before the date of the requested conversion of a LIBOR Loan into a Base Rate Loan. Each Notice of Conversion shall be delivered by first-class mail or facsimile or by e-mail containing a PDF of such signed and completed Notice of Conversion to the Administrative Agent at the office or to the facsimile number or e-mail address and during the hours specified in Section 8.01; provided, however, that, if requested by the Administrative Agent, the Borrowers shall promptly deliver to the Administrative Agent the original of any Notice of Conversion initially delivered by facsimile or e-mail. The Administrative Agent shall promptly notify each Revolving Lender of the contents of each Notice of Conversion relating to Revolving Loans and each Term Lender of the contents of each Notice of Conversion relating to Term Loans. For the avoidance of doubt, the provisions of this Section 2.01(e) relate to the conversion of the type of interest rate (LIBOR or Base Rate) applicable to the applicable Loans and do not permit the conversion of a Revolving Loan or Term Loan into any other kind of Loan provided hereunder.
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Period | Quarterly Percentage |
December 31, 2020 to and including September 30, 2021 | 1.25% |
December 31, 2021 and thereafter | 2.50% |
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provided that the Borrowers shall pay all outstanding principal on the Term Loans, together with all accrued and unpaid interest thereon on the Maturity Date.
The Borrowers shall also make the mandatory prepayments required by Section 2.06(c).
Notwithstanding the foregoing, the Borrowers shall repay the aggregate outstanding principal amount of each Extended Term Loan (if any) as determined pursuant to, and in accordance with, Section 2.18.
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The Borrowers shall promptly examine a copy of each Letter of Credit and each amendment thereto that is delivered to it and, in the event of any claim of noncompliance with the Borrowers’ instructions or other irregularity, the Borrowers will immediately notify the L/C Issuer. The Borrowers shall be conclusively deemed to have waived any such claim against the L/C Issuer and its correspondents unless such notice is given as aforesaid.
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Any Reduction Notice shall be irrevocable; provided that any Reduction Notice may state that such notice is conditioned upon the effectiveness of other credit facilities, in which case such notice may be revoked by the Borrowers (by written notice to the Administrative Agent on or prior to the specified effective date previously provided in the applicable Reduction Notice) if such condition is not satisfied.
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For the avoidance of doubt, the provisions of this Section 2.10(b) shall not be construed to apply to (x) any payment made by the Borrowers pursuant to and in accordance with the express terms of this Agreement (including (1) the sharing of principal payments among Non-Defaulting Lenders pursuant to the proviso to Section 2.10(a)(ii) and (2) the application of funds provided for under Section 2.16(a)(ii) arising from the existence of a Defaulting Lender) or (y) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in L/C Obligations or in Swing Line Loans to any assignee or participant.
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and the result of any of the foregoing shall be to increase the cost to the Administrative Agent or any such Lender of making, converting to, continuing or maintaining any Loan or of maintaining its obligation to make any such Loan, or to increase the cost to the Administrative Agent or such Lender of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by the Administrative Agent or such Lender (whether of principal, interest or any other amount) then, upon request of the Administrative Agent or such Lender, the Borrowers will, within five (5) Business Days after written demand therefor, pay to the Administrative Agent or such Lender, as the case may be, such additional amount or amounts as will compensate the Administrative Agent or such Lender, as the case may be, for such additional costs incurred or reduction suffered. The obligations of the Borrowers under this Section 2.11(c) shall survive the payment and performance of the Obligations and the termination of this Agreement.
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Each Lender agrees that if any form or certification it previously delivered becomes inaccurate in any respect, it shall update such form or certification or promptly notify the Borrowers and the Administrative Agent in writing of its legal inability to do so.
Each Lender’s determination of the amount of any prepayment fee payable under this Section 2.13 shall be demonstrated pursuant to calculations in reasonable detail and shall be conclusive in the absence of manifest error. The obligations of the Borrowers under this
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Section 2.13 shall survive the payment and performance of the Obligations and the termination of this Agreement.
The Borrowers shall fully cooperate with the Administrative Agent and the Lenders and perform all additional acts requested by the Administrative Agent or any Lender to effect the purposes of this Section 2.14.
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A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrowers to require such assignment and delegation cease to apply.
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The submission by the Borrowers to the Administrative Agent of each Notice of Borrowing and each Letter of Credit Application shall be deemed to be a representation and warranty by the Borrowers that each of the statements set forth above in Section 3.02(b) is true and correct as of the date of such notice.
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The Borrowers hereby acknowledge that (a) the Administrative Agent will make available to the Lenders and the L/C Issuer materials and/or information provided by or on behalf of the Borrowers hereunder (the “Borrower Materials”) by posting the Borrower Materials on one or more Platforms and (b) certain of the Lenders may be “public-side” Lenders (i.e. Lenders that do not wish to receive non-public information with respect to the Loan Parties or their securities) (each, a “Public Lender”). The Borrowers hereby agrees that (w) all Borrower Material that are to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof, (x) by marking Borrower Materials “PUBLIC” the Borrowers shall be deemed to have authorized the Administrative Agent, the L/C Issuer and the Lenders to treat such Borrower Materials as either publicly available information or not material information (although it may be sensitive and proprietary) with respect to the Loan Parties or their securities for purposes of United States Federal and state security laws; (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor;” and (z) the Administrative Agent shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Investor”.
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provided, however, that if any Loan Party shall fail to maintain insurance in accordance with this Section 5.01(d), or if any Loan Party shall fail to provide the required endorsements with respect thereto, the Administrative Agent shall have the right (but shall be under no obligation) to procure such insurance and the Borrowers agree to reimburse the Administrative Agent for all costs and expenses of procuring such insurance.
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provided, however, that the foregoing exceptions shall not permit any Lien on any Equity Securities issued by any Loan Party except for Liens in favor of the Administrative Agent securing the Obligations (or any guaranty thereof).
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Notwithstanding the foregoing, no Loan Party shall make any Investment under clauses (vi) or (vii) above during the period commencing on the Fourth Restatement Effective Date and ending on the Initial Covenant Compliance Date.
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Notwithstanding the foregoing, no Loan Party shall make any Distributions or set apart any sum for any such purpose (other than under clause (i) above) during the period commencing on the Fourth Restatement Effective Date and ending on the Initial Covenant Compliance Date.
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Period | Maximum Total Leverage Ratio |
|---|---|
Financial Covenant Start Date through and including September 30, 2021 | 4.75:1.00 |
October 1, 2021 through and including March 31, 2022 | 4.50:1.00 |
April 1, 2022 and thereafter | 4.00:1.00 |
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The proceeds of any sale, disposition or other realization upon all or any part of the Collateral (subject to the prior sentence with respect to Cash Collateral) and any payment under the Guaranty shall be distributed by the Administrative Agent in the following order of priorities:
First, to the Administrative Agent in an amount sufficient to pay in full the costs and expenses of the Administrative Agent in connection with such sale, disposition or other realization (including all fees, costs, expenses, liabilities and advances incurred or made by the Administrative Agent in connection therewith, including, without limitation, attorneys’ fees and costs) and any and all other unpaid and unreimbursed liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, fees, expenses or disbursements of the Administrative Agent;
Second, pari passu and ratably, to the Lenders in an amount sufficient to pay fees, expenses and indemnities of the Lenders under the Loan Documents;
Third, to the Lenders and Lender Rate Contract Counterparties in an amount equal to accrued interest then due and payable on the Obligations (including any net scheduled payments in respect of Lender Rate Contracts but excluding any obligations in respect of Lender Bank Products and excluding the Termination Value of any Lender Rate Contracts);
Fourth, pari passu and ratably, to (i) the Lenders in an amount equal to the principal amount of the outstanding Loans and L/C Borrowings and to Cash Collateralize the remaining L/C Obligations on a pro rata basis in accordance with the then outstanding principal amount of the Loans and L/C Obligations (with the portion allocated to the Revolving Loans, Swing Line Loans and L/C Obligations to be applied first to repay the Swing Line Loans in full, second to repay the Revolving Loans in full and then to Cash Collateralize the Obligations in an amount equal to the then Effective Amount of all L/C Obligations) and (ii) to the Lender Rate Contract Counterparties in an amount equal to Obligations owed in connection with any Lender Rate Contract the terms of which comply with the Credit Agreement (which amount, for the avoidance of
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doubt, shall include the Termination Value);
Fifth, to the Lender Parties in an amount equal to any other Obligations which are then unpaid (including any amount owed to Lender Bank Product Providers for Obligations related to Lender Bank Products); and
Finally, upon payment in full of all of the Obligations, to the persons legally entitled thereto.
No application of payments will cure any Event of Default, or prevent acceleration, or continued acceleration, of amounts payable under the Loan Documents, or prevent the exercise, or continued exercise, of rights or remedies of the Administrative Agent and the Lenders hereunder or thereunder or at law or in equity.
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and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent under Sections 2.05, 8.02 and 8.03.
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The Administrative Agent,
the L/C Issuer and the
Swing Line Lender:For Notices of Borrowing, Notices of Conversion and Notices of Interest Period Selection:
Xxxxx Fargo Bank, National Association
0000 X. X.X. Xxxxxx Xxxx
MAC D1109-019
Xxxxxxxxx, XX 00000
Attention: Agency Services
Fax No. (000) 000-0000
E-mail. xxxxxxxxxxxxxx.xxxxxxxx@xxxxxxxxxx.xxx
For all other notices:
Xxxxx Fargo Bank, National Association
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxx, Xxxxxx 00000
Attention: Xxxxx XxXxxx
Tel. No. (000) 000-0000
Fax No. (000) 000-0000
E-mail. xxxxx.x.xxxxxx@xxxxxxxxxx.xxx
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The Borrowers: | x/x Xxxxxx Xxxx Motor Inn, Inc. |
0000 Xxxxx Xxxxxxxx Xxxxxx
Xxxx, XX 00000
Attention: Xxxx Xxxxxx
Tel. No. (000) 000-0000
Fax No. (000) 000-0000
E-mail. xxxxxxx@xxxxxxxxxxxxx.xxx
and
Attention: Xxxx Xxxxxxxx
Tel. No. (000) 000-0000
Fax No. (000) 000-0000
E-mail. xxxxxxxxx@xxxxxxxxxxxxx.xxx
Each Notice of Borrowing, Notice of Conversion and Notice of Interest Period Selection shall be given by the Borrowers to the Administrative Agent’s office located at the address referred to above during the Administrative Agent’s normal business hours; provided, however, that any such notice received by the Administrative Agent after 11:00 a.m. on any Business Day shall be deemed received by the Administrative Agent on the next Business Day. In any case where this Agreement authorizes notices, requests, demands or other communications by the Borrowers to the Administrative Agent or any Lender to be made by telephone, facsimile or e-mail, the Administrative Agent or any Lender may conclusively presume that anyone purporting to be a person designated in any incumbency certificate or other similar document received by the Administrative Agent or a Lender is such a person.
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No failure or delay by the Administrative Agent or any Lender in exercising any right under this Agreement or any other Loan Document shall operate as a waiver thereof or of any other right hereunder or thereunder nor shall any single or partial exercise of any such right preclude any other further exercise thereof or of any other right hereunder or thereunder. Unless otherwise specified in such waiver or consent, a waiver or consent given hereunder shall be effective only in the specific instance and for the specific purpose for which given. The Lenders may condition the giving or making of any amendment, waiver or consent of any term, covenant, agreement or condition of this Agreement or any other Loan Document on payment of a fee by the Borrowers (which may be payable only to the Lenders that consent to such matters within specified periods).
In addition, notwithstanding the foregoing, (x) the Fee Letter may only be amended, modified or changed, or rights or privileges thereunder waived, only by the parties thereto in accordance with the respective provisions thereof and (y) each Lender Rate Contract and agreement with respect to Lender Bank Products may only be amended, modified or changed, or rights or privileges thereunder waived, only by the parties thereto in accordance with the respective provisions thereof.
Notwithstanding anything to the contrary herein, any Defaulting Lender shall not have any right to approve or disapprove any amendment, waiver or consent hereunder, except that (i) any Proportionate Share of such Defaulting Lender may not be increased, (ii) the applicable maturity date of any Loans of such Defaulting Lender, as applicable, may not be extended, and (iii) principal and interest owing to such Defaulting Lender may not be reduced, in each case without the consent of such Defaulting Lender. This paragraph is referred to as the “Defaulting Lender Amendment Paragraph.”
Any amendment, modification, supplement, termination, waiver or consent pursuant to this Section 8.04 shall apply equally to, and shall be binding upon, each of the Administrative Agent, and the Lenders.
Notwithstanding anything to the contrary contained herein or in any other Loan Document, the authority to enforce rights and remedies hereunder and under the other Loan Documents against the Borrowers or either of them shall be vested exclusively in, and all actions and proceedings at law in connection with such enforcement shall be instituted and maintained exclusively by, the Administrative Agent in accordance with Section 6.02 for the benefit of all the Lenders; provided, however, that the foregoing shall not prohibit (a) the Administrative Agent from exercising on its own behalf the rights and remedies that inure to its benefit (solely in its capacity as Administrative Agent) hereunder and under the other Loan Documents, (b) the L/C Issuer from exercising the rights and remedies that inure to its benefit (solely in its capacity as L/C Issuer) hereunder and under the other Loan Documents or (c) any Lender from exercising setoff rights in accordance with Section 8.06 (subject to the terms of Section 2.10); and provided,
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further, that if at any time there is no Person acting as Administrative Agent hereunder and under the other Loan Documents, then (i) the Required Lenders shall have the rights otherwise ascribed to the Administrative Agent pursuant to Section 6.02 and (ii) in addition to the matters set forth in clauses (b) and (c) of the preceding proviso and subject to Section 2.10, any Lender may, with the consent of the Required Lenders, enforce any rights and remedies available to it and as authorized by the Required Lenders.
Notwithstanding the foregoing, if the Administrative Agent and the Borrowers shall have jointly identified an obvious error, or any error or omission of a purely technical nature, in the Loan Documents, then the Administrative Agent and the Borrowers shall be permitted to amend such provision without further action or consent of any other party if the same is not objected to in writing by the Required Lenders to the Administrative Agent within five (5) Business Days following receipt of notice thereof.
Notwithstanding anything in this Agreement to the contrary, each Lender hereby irrevocably authorizes the Administrative Agent on its behalf, and without further consent, to enter into amendments or modifications to this Agreement (including amendments to Section 2.10 and this Section 8.04) or any of the other Loan Documents or to enter into additional Loan Documents as the Administrative Agent reasonably deems appropriate in order to effectuate the terms of Section 2.01(b) or Section 2.18 (subject to the consents of any Lenders required in said Section); provided that no amendment or modification shall result in (i) any increase in the amount of any Lender’s Commitment or any increase in any Lender’s Proportionate Share, (ii) any extension in the Maturity Date applicable to any Lender’s Loans or Commitments or (iii) any extension of any date fixed for payment of principal, interest or fees on any Lender’s Loans or Commitments, in each case, without the written consent of such affected Lender.
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The Borrowers agree that each Participant shall be entitled to the benefits of Section 2.11 and Section 2.12 (subject to the requirements and limitations therein, including the requirements under Section 2.12 (it being understood that the documentation required under Section 2.12(g) shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (c) of this Section; provided that such Participant (A) agrees to be subject to the provisions of Section 2.15 as if it were an assignee under paragraph (c) of this Section; and (B) shall not be entitled to receive any greater payment under Section 2.11 or Section 2.12, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation agrees, at the Borrowers’ request and expense, to use reasonable efforts to cooperate with the Borrowers to effectuate the provisions of Section 2.15 with respect to any Participant. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrowers, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the
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contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
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Upon such execution, delivery, acceptance and recording of each Assignment Agreement, from and after the Assignment Effective Date determined pursuant to such Assignment Agreement, (A) each Assignee Lender thereunder shall be a Lender hereunder with a Revolving Loan Commitment and Loans as set forth on Attachment 1 to such Assignment Agreement and shall have the rights, duties and obligations of such a Lender under this Agreement and the other Loan Documents, and (B) the Assignor Lender thereunder shall be a Lender with a Revolving Loan Commitment and Loans as set forth on Attachment 1 to such Assignment Agreement or, if the Revolving Loan Commitment and Loans of the Assignor Lender have been reduced to $0, the Assignor Lender shall cease to be a Lender and to have any obligation to make any Loan; provided, however, that any such Assignor Lender which ceases to be a Lender shall continue to be entitled to the benefits of any provision of this Agreement which by its terms survives the termination of this Agreement; provided further, that except to the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender. Each Assignment Agreement shall be deemed to amend Schedule I to the extent, and only to the extent, necessary to reflect the addition of each Assignee Lender, the deletion of each Assignor Lender which reduces its Revolving Loan Commitment and Loans to $0 and the resulting adjustment of Revolving Loan Commitment and Loans arising from the purchase by each Assignee Lender of all or a portion of the rights and obligations of an Assignor Lender under this Agreement and the other Loan Documents. On or prior to the Assignment Effective Date determined pursuant to each Assignment Agreement, the Borrowers, at their own expense, shall execute and deliver to the Administrative Agent, in exchange for the surrendered Note(s) of the Assignor Lender thereunder, new Note(s) to each Assignee Lender thereunder that requests such a note (with each new Note to be in an amount equal to the Revolving Loan Commitment or Term Loan, as applicable, assumed by such Assignee Lender) and, if the Assignor Lender is continuing as a Lender hereunder, new Note(s) to the Assignor Lender if so requested by such Assignor Lender (with each new Note to be in an amount equal to the Revolving Loan Commitment and Term Loan, as applicable, retained by it). Each such new Note shall be dated the Fourth Restatement Effective Date or other date acceptable to such Lender, and each such new Note shall otherwise be in the form of the Note replaced thereby. The Notes surrendered by the Assignor Lender shall be returned by the Administrative Agent to the Borrowers marked “Replaced”.
Notwithstanding anything to the contrary contained herein, if at any time Xxxxx Fargo assigns all of its Revolving Loan Commitment and Loans pursuant to subsection (c) above, Xxxxx Fargo may, (i) upon 30 days’ notice to the Borrowers and the Lenders, resign as L/C Issuer and/or (ii) upon five Business Days’ notice to the Borrowers, terminate the Swing Line. In the event of any such resignation as L/C Issuer or termination of the Swing Line, the Borrowers shall be entitled to appoint from among the Lenders a successor L/C Issuer or Swing Line Lender hereunder; provided, however, that no failure by the Borrowers to appoint any such successor shall affect the resignation of Xxxxx Fargo as L/C Issuer or the termination of the Swing Line, as the case may be. Xxxxx Fargo shall retain all the rights and obligations of the L/C Issuer hereunder with respect to all Letters of Credit outstanding as of the effective date of its
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resignation as L/C Issuer and all L/C Obligations with respect thereto (including the right to require the Lenders to make Base Rate Loans or fund participations in Unreimbursed Amounts pursuant to Section 2.02(c)). If Xxxxx Fargo terminates the Swing Line, it shall retain all the rights of the Swing Line Lender provided for hereunder with respect to Swing Line Loans made by it and outstanding as of the effective date of such termination, including the right to require the Lenders to make Base Rate Loans or fund participations in outstanding Swing Line Loans pursuant to Section 2.03(c).
In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or subparticipations, or other compensating actions, including funding, with the consent of the Borrowers and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent, WFS, the L/C Issuer, the Swing Line Lender or any Lender hereunder (and interest accrued thereon), and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Line Loans in accordance with its Revolving Proportionate Share. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under Governmental Rules without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
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(i) none of the Administrative Agent, the Joint Lead Arrangers Arranger or any of their respective Affiliates is a fiduciary with respect to the assets of such Lender (including in connection with the reservation or exercise of any rights by the Administrative Agent under this Agreement, any Loan Document or any documents related to hereto or thereto);
(ii) the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitment and this Agreement is independent (within the meaning of 29 CFR § 2510.3-21) and is a bank, an insurance carrier, an investment adviser, a broker-dealer or other person that holds, or has under management or control, total assets of at least $50 million, in each case as described in 29 CFR § 2510.3-21(c)(1)(i)(A)-(E),
(iii) the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitment and this Agreement is capable of evaluating investment risks independently, both in general and with regard to particular transactions and investment strategies (including in respect of the Secured Obligations);
(iv) the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement is a fiduciary under ERISA or the Code, or both, with respect to the Loans, the Letters of Credit, the Commitments and this Agreement and is
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responsible for exercising independent judgment in evaluating the transactions hereunder, and
(v) no fee or other compensation is being paid directly to the Administrative Agent, the Joint Lead Arrangers or their respective Affiliates for investment advice (as opposed to other services) in connection with the Loans, the Letters of Credit, the Commitments or this Agreement.
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“BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.
“Covered Entity” shall mean any of the following: (i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).
[The first signature page follows]
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IN WITNESS WHEREOF, the Borrowers, the Lenders, the Administrative Agent, the L/C Issuer and the Swing Line Lender have caused this Agreement to be executed as of the day and year first above written.
BORROWERS:
MONARCH CASINO & RESORT, INC.,
a Nevada corporation
By:
Name:
Title:
GOLDEN ROAD MOTOR INN, INC.,
a Nevada corporation
By:
Name:
Title:
MONARCH GROWTH INC.,
a Nevada corporation
By:
Name:
Title:
MONARCH BLACK HAWK, INC.,
a Colorado corporation
By:
Name:
Title:
[Signature Page to Fourth Amended and Restated Credit Agreement – Monarch 2020]
SCHEDULE I
THE LENDERS
Part A
LENDER | REVOLVING LOAN COMMITMENT | REVOLVING PROPORTIONATE SHARE | TERM LOAN COMMITMENT | TERM PROPORTIONATE SHARE |
Xxxxx Fargo Bank, | $22,037,037.05 | 31.48% | $62,962,962.95 | 31.48% |
Bank of America N.A. | $19,444,444.44 | 27.78% | $55,555,555.56 | 27.78% |
U.S. Bank National Association | $12,962,962.96 | 18.52% | $37,037,037.04 | 18.52% |
Umpqua Bank | $9,074,074.07 | 12.96% | $25,925,925.93 | 12.96% |
Comerica Bank | $6,481,481.48 | 9.26% | $18,518,518.52 | 9.26% |
TOTAL | $70,000,000 | 100% | $200,000,000 | 100% |
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Part B
XXXXX FARGO BANK, NATIONAL ASSOCIATION
as a Lender
Notices:
Xxxxx Fargo Bank, National Association
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxx, Xxxxxx 00000
Attention: Xxxxx XxXxxx
Tel. No. (000) 000-0000
Fax No. (000) 000-0000
E-mail. xxxxx.x.xxxxxx@xxxxxxxxxx.xxx
Domestic and Foreign Lending Office:
Xxxxx Fargo Bank, National Association
0000 X. X.X. Xxxxxx Xxxx
MAC D1109-019
Xxxxxxxxx, XX 00000
Attention: Agency Services
Fax No. (000) 000-0000
E-mail. xxxxxxxxxxxxxx.xxxxxxxx@xxxxxxxxxx.xxx
BANK OF AMERICA, N.A.
as a Lender
Notices:
Bank of America, N.A.
0000 Xxxxxxx Xxxx, Xxxxx X
Xxxx, Xxxxxx 00000-0000
Attention: Xxxxxx Xxxxxxx
Tel. No. (000) 000-0000
Fax No. (000) 000-0000
E-mail. xxxxxx.x.xxxxxxx@xxxx.xxx
Domestic and Foreign Lending Office:
Bank of America, N.A.
Fax No. (000) 000-0000
E-mail. Xxxx_xx_Xxxxxxx_Xx_Xxxxxx_0@xxxx.xxx
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U.S. BANK NATIONAL ASSOCIATION
as a Lender
Notices:
U.S. Bank National Association
0 Xxxx Xxxxxxx, Xxxxx 000
Xxxx, XX 00000
Attention: Xxxxxxx xx Xxxxxxx
Tel. No. (000) 000-0000
Fax No. (000) 000-0000
E-mail. xxxxxxx.xxxxxxxxx@xxxxxx.xxx
Domestic and Foreign Lending Office:
U.S. Bank National Association
000 XX Xxx, XX-XX-X0XX
Xxxxxxxx, XX 00000
Attention: NSLS Deal Administration
Fax No. (000) 000-0000
E-mail. XXXXxxxxxxxxxxXxxxxxxxXxxx@xxxxxx.xxx
UMPQUA BANK
as a Lender
Notices:
Umpqua Bank
0000 Xxxxx Xxxxxxxx Xx
Xxxx, XX 00000
Attention: Xxxxx Xxxxxx
Tel. No. (000) 000-0000
E-mail. XxxxxXxxxxx@xxxxxxxxxx.xxx
Domestic and Foreign Lending Office:
Umpqua Bank
X.X. Xxx 0000
Xxxxxxxx, XX 00000
Attention: Specialty Loan Servicing
Tel. No. (000) 000-0000
Facsimile: (000) 000-0000
E-mail. XXXXxxx-XXXXXXxx@xxxxxxxxxx.xxx
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COMERICA BANK
as a Lender
Notices:
Comerica Bank
000 Xxxxx Xxxx 0xx Xxxxx
Xxxxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxxxxxx
Tel. No. (000) 000-0000
Facsimile: (000) 000-0000
E-mail. xxxxxxxxxxxxx@xxxxxxxx.xxx
Domestic and Foreign Lending Office:
Comerica Bank
00000 X Xxx Xxxx Xx
Xxxxxxx, XX 00000
Attention: Comerica Participations
Facsimile: (000) 000-0000
E-mail. XxxxxxxxXxxxxxxxxxxxxx@Xxxxxxxx.xxx
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SCHEDULE 3.01
Conditions Precedent to Closing
The Fourth Restatement Effective Date is subject to: (i) in the case of all conditions listed below which can be satisfied by the delivery of documentation or other items by the Borrowers, receipt by the Administrative Agent of such documentation or other items, each in form and substance reasonably satisfactory to the Administrative Agent and each Lender and with sufficient copies for the Administrative Agent (and, where expressly indicated, each Lender) and (ii) in the case of all other conditions listed below, the Administrative Agent’s determination that such conditions have been reasonably satisfied or waived.
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