Exhibit 10.77
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TERM LOAN AGREEMENT
This Term Loan Agreement (this "Agreement") is made as of this 30th
day of March, 2001, by and between XXXXX INDIANA, INC., a Delaware corporation
(the "Borrower") and FIRSTAR BANK, N.A., a national banking association (the
"Bank").
RECITALS
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WHEREAS, the Borrower has been granted a Riverboat Owner's License
(the "Riverboat Gaming License") by the Gaming Commission (defined below) to own
and manage a riverboat gambling operation in Gary, Indiana from June 3, 1996 to
June 2, 2001; and
WHEREAS, pursuant to the Riverboat Gaming License, the Borrower owns
and operates the Xxxxx Casino gaming vessel and owns fixtures and equipment
located thereon (collectively, the "Riverboat") which is docked at Xxxxxxxxxx
Harbor, Gary, Indiana; and
WHEREAS, the Borrower and Majestic Star Casino, L.L.C. ("Majestic")
have formed the Ground Lessor (defined below), which owns certain land in and
around Xxxxxxxxxx Harbor in Gary, Indiana upon which common facilities and
amenities have been built adjacent to the Riverboat and the riverboat facilities
of Majestic; and
WHEREAS, on March 29, 1996, the Borrower executed a promissory note in
favor of debis Financial Services, Inc. d/b/a DDC-MTU Financial Services (the
"Original Ship Lender") in the original principal amount of $17,500,000 (the
"Ship Loan"), which proceeds the Borrower used to construct the Riverboat; and
WHEREAS, the Ship Loan is secured by, among other things, a first
preferred ship mortgage on the Riverboat; and
WHEREAS, on December 23, 1997, the Borrower entered into a loan
agreement with Centier Bank ("Centier"), pursuant to which Centier loaned the
Borrower $17,000,000 (the "Centier Loan") to construct a hotel complex (the
"Hotel") on a portion of the Land; and
WHEREAS, the Centier Loan is secured by, among other things, a
mortgage on the Hotel; and
WHEREAS, the Borrower completed construction of the Hotel in the first
quarter of 1999; and
WHEREAS, on August 28, 2000, the Borrower entered into a loan
agreement with Mercantile National Bank of Indiana ("Mercantile"), pursuant to
which Mercantile loaned the Borrower $5,000,000 (the "Bridge Loan"); and
WHEREAS, the Bridge Loan is secured by, among other things, a mortgage
on the Hotel and a first lien on approximately 1,000 slot machines located on
the Riverboat; and
WHEREAS, the Borrower's repayment of the indebtedness arising under
the Centier Loan and the Bridge Loan is guaranteed by the Guarantor (as
defined below), and such guaranties are secured by, as applicable, the Centier
Guarantor Mortgage and the Mercantile Guarantor Mortgage (as such terms are
defined below); and
WHEREAS, the Borrower has incurred certain capital costs related to
improvements on and additions to the Riverboat; and
WHEREAS, the Bank has agreed to originate loans in the aggregate
amount of $27,500,000 to the Borrower pursuant to the terms and conditions of
this Loan Agreement to (a) satisfy all indebtedness arising under the Ship Loan,
the Centier Loan and the Bridge Loan, (b) reimburse the Borrower for amounts
expended for certain capital improvements made to the Riverboat and (c) pay for
certain transaction costs.
NOW, THEREFORE, the Borrower and the Bank, in consideration of the
premises and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, hereby agree as follows:
ARTICLE I
Definitions
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Section 1.1 Defined Terms. For purposes of this Agreement, the
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following terms shall have the meanings given below:
"Affiliate" means any Person directly or indirectly controlling or
controlled by, or under direct or indirect common control with, another
Person.
"Agreement" means this Term Loan Agreement by and between the Borrower
and the Bank, as the same may hereafter be amended or restated from time to
time.
"Assignment of Rents" means the Assignment of Rents and Leases of even
date herewith, as the same may hereafter be amended or supplemented from
time to time, from the Borrower in favor of the Bank.
"Base Rate" means for any day a fluctuating rate per annum equal to
the higher of (a) the Federal Funds Rate plus 1/2 of 1% or (b) the rate of
interest in effect for such day as publicly announced from time to time by
the Bank as its "prime rate." Such rate is a rate set by the Bank based
upon various factors including the Bank's costs and desired return, general
economic conditions and other factors, and is used as a reference point for
pricing some loans, which may be priced at, above, or below such announced
rate. Any changes in such rate announced by the Bank shall take effect at
the opening of business on the day specified in the public announcement of
such change.
"Base Rate Loan Segment" means a portion of the Term Loan that bears
interest at the Base Rate plus 1%.
"Borrower Environmental Indemnity" means the Environmental Indemnity
of the Borrower of even date herewith in favor of the Bank, as the same may
hereafter be amended or supplemented from time to time.
"Bridge Loan" has the meaning given it in the Recitals.
"Business Day" means any day other than a Saturday, a Sunday or a
legal holiday on which banks in the State of Illinois are not required by
law to be open for business.
"Centier" has the meaning given it in the Recitals.
"Centier Guarantor Mortgage" means that certain Leasehold Real Estate
Mortgage and Security Agreement dated as of December 23, 1997 issued by the
Guarantor in favor of Centier.
"Centier Loan" has the meaning given it in the Recitals.
"Centier Mortgage" means that certain Leasehold Real Estate Mortgage
and Security Agreement dated as of December 23, 1997 issued by the Borrower
for the benefit of Centier.
"Compliance Certificate" means a certificate substantially in the form
of Exhibit C.
"Debt" means (i) all indebtedness, whether or not represented by
bonds, debentures, notes or other securities, for the repayment of money
borrowed, (ii) all deferred indebtedness for the payment of the purchase
price of property or assets purchased, (iii) all guaranties, endorsements,
assumptions and other contingent obligations in respect of, or to purchase
or otherwise to acquire, indebtedness of others, (iv) all indebtedness
secured by any mortgage, pledge or lien existing on property owned, subject
to such mortgage, pledge or lien, whether or not the indebtedness secured
thereby shall have been assumed and (v) all installment purchase contracts,
loans secured by purchase money security interests and lease-purchase
agreements or capital leases, in each case computed in accordance with
generally accepted accounting principles.
"Debtor Relief Laws" means the Bankruptcy Code of the United States of
America, and all other liquidation, conservatorship, bankruptcy, assignment
for the benefit of creditors, moratorium, rearrangement, receivership,
insolvency, reorganization, or similar debtor relief laws of the United
States of America or other applicable jurisdictions from time to time in
effect and affecting the rights of creditors generally.
"Default Rate" means the interest rate applicable to Base Rate Loan
Segments plus 2% per annum; provided, however, that with respect to a
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Eurodollar Rate Loan Segment, the Default Rate shall be an interest rate
equal to the interest rate otherwise applicable to such Loan Segment plus
2% per annum, in each case to the fullest extent permitted by applicable
laws.
"Development Agreement" means the Development Agreement between the
City of Gary, Indiana and the Borrower dated as of May 1, 1996, as the same
may be hereafter amended or restated from time to time.
"EBITDAM" means, for any period, the Borrower's earnings, before
deduction of any interest, taxes, depreciation or amortization expense,
marketing fees or payments to the City of Xxxx for economic development
that are expensed.
"Eurodollar Rate" means for any Interest Period with respect to any
Eurodollar Rate Loan Segment:
(a) the rate per annum equal to the rate determined by the Bank
to be the offered rate that appears on the page of the Telerate screen
(or any successor thereto) that displays an average British Bankers
Association Interest Settlement Rate for deposits in Dollars (for
delivery on the first day of such Interest Period) with a term
equivalent to such Interest Period, determined as of approximately
11:00 a.m. (London time) two Business Days prior to the first day of
such Interest Period, or
(b) if the rate referenced in the preceding subsection (a) does
not appear on such page or service or such page or service shall cease
to be available, the rate per annum equal to the rate determined by
the Bank to be the offered rate on such other page or other service
that displays an average British Bankers Association Interest
Settlement Rate for deposits in Dollars (for delivery on the first day
of such Interest Period) with a term equivalent to such Interest
Period, determined as of approximately 11:00 a.m. (London time) two
Business Days prior to the first day of such Interest Period.
"Eurodollar Rate Loan Segment" means a portion of the Term Loan that
bears interest at the Eurodollar Rate plus 3.25%. Each Eurodollar Rate Loan
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Segment shall be in the principal amount of $2,000,000, or an integral
multiple of $1,000,000 that is in excess of $2,000,000.
"Event of Default" means any of the events of default specified in
Section 6.1 hereof.
"F,F&E Financing" means an agreement which creates a lien upon any
after-acquired furniture, fixtures and equipment and/or other items
constituting tangible personal property or operating assets, which are
financed, purchased or leased in connection with the operation of the
Riverboat or the Hotel.
"GAAP" means generally accepted accounting principles.
"Gaming Commission" means the Indiana Gaming Commission.
"Grid Note" means the Amended and Restated Grid Note of even date
herewith payable to Xxxxx Hotels & Casino Resorts Holdings, L.P. in the
maximum face amount of $90,000,000.
"Grid Note and Marketing Debt" means indebtedness or other obligations
of the Borrower under the Grid Note and the Marketing Agreement.
"Ground Lease" means the ground lease agreement dated as of August 29,
1997, whereby the Ground Lessor, as lessor, has leased the Land to the
Guarantor, as lessee.
"Ground Lessor" means Xxxxxxxxxx Harbor Riverboats, L.L.C., a Delaware
limited liability company.
"Ground Lessor Pledge Agreement" means that certain security agreement
executed by the Borrower in favor of the Bank, pursuant to which the
Borrower grants the Bank a security interest in its membership interest in
the Ground Lessor.
"Ground Sublease" means the ground sublease agreement between the
Guarantor, as sublessor, and the Borrower, as sublessee, dated as of August
29,
1997, as amended by an amendment dated as of August 28, 2000, and as the
same may be further amended, modified or restated.
"Guarantor" means Xxxxx Indiana Realty, LLC, a Delaware limited
liability company.
"Guarantor Documents" means the Guaranty, the Guarantor Assignment of
Rents, the Guarantor Environmental Indemnity and the Guarantor Mortgage.
"Guarantor Assignment of Rents" means the Assignment of Rents of the
Guarantor of even date herewith in favor of the Bank, as the same may be
hereafter be amended or supplemented from time to time.
"Guarantor Environmental Indemnity" means the Environmental Indemnity
of the Guarantor of even date herewith in favor of the Bank, as the same
may hereafter be amended or supplemented from time to time.
"Guarantor Mortgage" means the Mortgage of even date herewith whereby
the Guarantor has mortgaged its leasehold interest under the Ground Lease
to the Bank.
"Guaranty" means the Guaranty of the Guarantor of even date herewith
in favor of the Bank whereby the Guarantor guarantees payment of Tranche
II, as the same may hereafter be amended or supplemented from time to time.
"Hotel" has the meaning given it in the Recitals.
"Interest Period" means, as to each Eurodollar Rate Loan Segment, the
period commencing on the date such Eurodollar Rate Loan Segment is
converted to or continued as a Eurodollar Rate Loan Segment and ending on
the date one, two, three, six or twelve months thereafter, as selected by
the Borrower in its Loan Notice; provided that:
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(i) any Interest Period that would otherwise end on a day
that is not a Business Day shall be extended to the next succeeding
Business Day unless such Business Day falls in another calendar month,
in which case such Interest Period shall end on the next preceding
Business Day;
(ii) any Interest Period pertaining to a Eurodollar Rate
Loan Segment that begins on the last Business Day of a calendar month
(or on a day for which there is no numerically corresponding day in
the calendar month at the end of such Interest Period) shall end on
the last Business Day of the calendar month at the end of such
Interest Period; and
(iii) the Borrower may not select an Interest Period with
respect to a Eurodollar Rate Loan Segment if, giving effect to such
choice, regularly scheduled payments on the Term Loan (including the
payment due May 1, 2006), applied in the manner specified in this
Agreement, would necessarily be applied to payment of the principal of
any Eurodollar Rate Loan Segment prior to the last day of the Interest
Period applicable thereto.
"Land" means the land in Lake County, Indiana which is more
particularly described in the Mortgage.
"Loan Documents" means this Agreement, the Notes, the Security
Documents, the Guarantor Documents and all amendments, supplements and
replacements therefor and thereto.
"Loan Notice" means a notice of a conversion of Loan Segments from one
Type to the other, or a continuation of Loan Segments as the same Type,
pursuant to Section 2.3(a), which, if in writing, shall be substantially in
the form of Exhibit D.
"Loan Segment" means a Eurodollar Rate Loan Segment or a Base Rate
Loan Segment.
"Majestic" has the meaning given it in the Recitals.
"Marketing Agreement" means the Marketing Agreement between the
Borrower and Xxxxx Marketing Services, LLC, dated as of January 1, 1997, as
amended by an amendment dated as of August 28, 2000, and as the same may be
further amended, modified or restated from time to time.
"Mercantile" has the meaning given it in the Recitals.
"Mercantile Guarantor Mortgage" means that certain Guaranty Mortgage
and Security Agreement with Assignment of Rents dated as of August 28, 2000
issued by the Guarantor for the benefit of Mercantile.
"Mercantile Mortgage" means that certain Leasehold Mortgage with
Assignment of Rents dated as of August 28, 2000, issued by the Borrower for
the benefit of Mercantile.
"Mortgage" means the Leasehold Real Estate Mortgage and Security
Agreement (Fixture Filing) of even date herewith, as the same may hereafter
be amended or supplemented from time to time, from the Borrower in favor of
the Bank.
"Note" means each of the Tranche I Note or Tranche II Note; and
"Notes" means, collectively, the Tranche I Note and the Tranche II Note.
"Obligations" means all advances to, and debts, liabilities,
obligations, covenants and duties of, the Borrower arising under any Loan
Document, whether direct or indirect, absolute or contingent, due or to
become due, now existing or hereafter arising and including interest that
accrues after the commencement by or against the Borrower of any proceeding
under any Debtor Relief Laws.
"Operating Agreement" means the First Amended and Restated Operating
Agreement of Xxxxxxxxxx Harbor Riverboats, L.L.C., dated as of October 31,
1995, as amended by Amendment No. 1 to First Amended and Restated Operating
Agreement of Xxxxxxxxxx Harbor Riverboats, L.L.C., dated as of April 23,
1996, as the same may be further amended from time to time.
"Original Ship Lender" has the meaning given it in the Recitals.
"Organizational Documents" means, in the case of a limited liability
company, its certificate of formation and operating agreement, if any,
together with any other agreements governing the organization or management
thereof, or, in the case of a corporation, its articles of incorporation
and bylaws.
"Parking Garage Agreements" means that certain lease to be entered
into by and between the Borrower, as Lessee, and Xxxxxxxxxx Harbor Parking
Associates, L.L.C. ("BHPA"), as Lessor, and such other agreements as the
Borrower may have made or may hereafter make in connection with BHPA's
financing of its parking garage project.
"Person" means any natural person, corporation, partnership, limited
liability company, joint venture, firm, association, trust, unincorporated
organization, government or governmental agency or political subdivision or
any other entity, whether acting in an individual, fiduciary or other
capacity.
"Permitted Encumbrances" means:
(1) liens existing on the date hereof securing
indebtedness listed on Schedule 5.10 hereof;
liens in favor of the Bank as provided for in the Security
Documents and Guarantor Documents;
liens permitted under the terms of Section 2.10 of the
Security Documents and Guarantor Documents;
any lien arising by reason of (i) any judgment, decree or
order of any court, so long as such lien is adequately
bonded and any appropriate legal proceedings which may
have been duly initiated for the review of such
judgment, decree or order shall not have been finally
terminated or the period within such proceedings may
be initiated shall not have expired; (ii) security for
payment of workmen's compensation or other insurance;
(iii) good faith deposits in connection with tenders,
leases and contracts (other than contracts for the
payment of money); and (iv) deposits to secure public
or statutory obligations, or in lieu of surety or
appeal bonds;
liens for taxes, assessments or other governmental charges
or levies permitted pursuant to Section 5.9;
statutory liens of carriers, warehousemen, mechanics,
landlords, laborers, materialmen, repairmen or other
like liens arising by operation of law in the ordinary
course of business and consistent with industry
practices and liens on deposits made to obtain the
release of such liens if (i) the underlying
obligations are not overdue for a period of more than
60 days or (ii) such liens are being contested in good
faith and by appropriate proceedings by the Borrowers
and adequate reserves with respect thereto are
maintained on the books of the Borrower in accordance
with generally accepted accounting principles;
easements, rights-of-way, zoning and similar restrictions
and other similar encumbrances or title defects,
which, if they are incurred by the Borrower after it
acquires the
property subject thereto, are incurred in the ordinary
course of business and consistent with industry
practices which, individually or in the aggregate, do
not materially detract from the value of the property
subject thereto (as such property is used or proposed
to be used by the Borrower) or interfere with the
ordinary conduct of the business of the Borrower,
provided, that any such liens are not incurred in
connection with any borrowing of money or any
commitment to loan any money or to extend any credit;
liens arising from precautionary Uniform Commercial Code
financing statement filings regarding operating leases
entered into by the Borrower in the ordinary course of
business; and
liens securing indebtedness permitted under Section 5.10
hereof.
"Riverboat" has the meaning given it in the Recitals.
"Riverboat Gaming License" has the meaning given it in the Recitals.
"Security Agreement" means that Security Agreement executed by the
Borrower for the Bank and dated as of the date hereof.
"Security Documents" means the Mortgage, the Security Agreement, the
Assignment of Rents, the Ship Mortgage and all other agreements or
documents securing payment of any of the Obligations.
"Senior Funded Debt" means Debt of the Borrower, the payment of which
has not been subordinated to payment of the Obligations, including without
limitation Debt in connection with the Swap Contract. Senior Funded Debt
does not include Centier Loan, Ship Loan, Bridge Loan or Grid Note and
Marketing Debt or Debt owed under the Parking Garage Agreements.
"Ship Loan" has the meaning given it in the Recitals.
"Ship Mortgage" means that first preferred ship mortgage issued by the
Borrower in favor of the Bank and of even date herewith, covering the
Riverboat, as the same may be amended, supplemented or restated from time
to time.
"Swap Contract" means the ISDA Master Agreement and related Schedule
and any related confirmation whereby the Borrower and the Bank will enter
into an interest rate swap or collar transaction in connection with
$10,000,000 principal amount of the Term Loan.
"Tangible Net Worth" means the Borrower's shareholders' equity minus
intangible assets, both determined in accordance with GAAP.
"Term Loan" has the meaning given it in Section 2.1(a).
"Title Company" means Chicago Title Insurance Company or any other
title insurance company reasonably acceptable to the Bank.
"Tranche I" has the meaning given it in Section 2.1.
"Tranche I Note" has the meaning given it in Section 2.1.
"Tranche II" has the meaning given it in Section 2.1.
"Tranche II Note" has the meaning given it in Section 2.1.
"Type" means, with respect to a Loan Segment, its character as
a Base Rate Loan Segment or a Eurodollar Rate Loan Segment.
"UCC" means the Uniform Commercial Code as in effect in the
State of Indiana.
ARTICLE II
The Term Loan
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Section 2.1 Term Loan; The Notes.
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(a) The Bank agrees, on the terms and subject to the conditions
hereinafter set forth, to make a loan to the Borrower, in the amount of
$27,500,000 (the "Term Loan"), which Term Loan shall be divided in two
tranches as set forth herein.
(i) Tranche I. "Tranche I" shall be in the amount of
$15,175,000 and shall be used to satisfy the Ship Loan, to reimburse
the Borrower for capital improvements made by the Borrower to the
Riverboat, and to satisfy certain related transaction costs. The
obligation of the Borrower to repay Tranche I shall be evidenced by
and repayable in accordance with the terms of the Borrower's
promissory to the Bank, the form of which is attached hereto as
Exhibit A (the "Tranche I Note").
(ii) Tranche II. "Tranche II" shall be in the amount of
$12,325,000 and shall be used to satisfy the Centier Loan and the
Bridge Loan, and to satisfy certain related transaction costs. The
obligation of the Borrower to repay Tranche II shall be evidenced by
and repayable in accordance with the terms of the Borrower's
promissory note to the Bank, the form of which is attached hereto as
Exhibit B (the "Tranche II Note").
Section 2.2 Payments.
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(a) Scheduled Payments of Principal and Interest. The Borrower shall
pay the principal of the Term Loan to the Bank in 59 consecutive monthly
installments of $327,400 on the first day of each month from June 1, 2001
through April 1, 2006. Interest accruing from time to time shall be payable
on the same dates as installments of principal. On May 1, 2006, if not
sooner paid, all outstanding principal and interest shall be due and owing
hereunder.
(b) Method of Payment. All payments and prepayments by the Borrower
of principal of and interest on the Notes, and all fees, costs, expenses
and other obligations payable by the Borrower under this Agreement or any
Security Document, shall be paid no later than 2:00 p.m. central standard
time on the date due to the Bank in immediately available funds in
accordance with the wire instructions provided by the Bank to the Borrower.
If any payment or prepayment of principal of, or interest on, the Notes or
any fee payable hereunder becomes due on a day which is not a Business Day,
such payment shall be made on the next succeeding Business Day, and such
extension of
time shall in such case be included in the computation of interest. All
payments of principal and interest and all other amounts payable hereunder
and under the Notes shall be made without set-off or counterclaim and
without reduction for, and free from, any and all present or future taxes,
levies, imposts, duties, fees, charges, deductions, withholdings,
restrictions or conditions of any nature imposed by any government or
taxing authority thereof. The Borrower may not reborrow hereunder any
amount previously paid or prepaid by it.
(c) Application of Payments. Notwithstanding Section 2.2(a), the Bank
shall apply all payments made hereunder and any prepayments pursuant to
Section 2.4 (i) first, to any late payment charge then due pursuant to the
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Notes, (ii) second, to costs and expenses then due hereunder and under the
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Loan Documents, (iii) third, to interest then due under the Tranche I Note,
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(iv) fourth, to interest then due under the Tranche II Note, (v) fifth, to
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principal under the Tranche I Note, until the Tranche I Note is paid in
full and (vi) sixth, to principal under the Tranche II Note, until all such
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principal amounts under the Tranche II Note are fully satisfied. Any
payment or prepayment received while any part of the Term Loan is bearing
interest based upon the Eurodollar Rate shall be applied first to the part
of the Term Loan, if any, then bearing interest based upon the Base Rate.
Section 2.3 Interest.
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(a) Until and unless the Borrower converts any part of the Term Loan
to a Eurodollar Rate Loan Segment, the Term Loan shall be a Base Rate Loan
Segment. The Borrower may, at its option at any time, so long as no Event
of Default has occurred and is continuing, convert $2,000,000 of the Term
Loan, or a whole multiple of $1,000,000 in excess thereof, to a Eurodollar
Rate Loan Segment. Thereupon and thereafter, the procedures set forth in
this subsection (a) shall apply. Each conversion of Loan Segments from one
Type to the other, and each continuation of Loan Segments as the same Type
shall be made upon the Borrower's irrevocable notice to the Bank, which may
be given by telephone. Each such notice must be received by the Bank not
later than 11:00 a.m. central standard time, three Business Days prior to
the requested date of any conversion to or continuation of Eurodollar Rate
Loan Segments or of any conversion of Eurodollar Rate Loan Segments to Base
Rate Loan Segments. Each such telephonic notice must be confirmed promptly
by delivery to the Bank of a written Loan Notice, appropriately completed
and signed by an Officer of the Borrower. Each conversion to or
continuation of a Loan Segment shall be in a principal amount of $2,000,000
or a whole multiple of $1,000,000 in excess thereof. Each Loan Notice
(whether telephonic or written) shall specify (i) whether the Borrower is
requesting a conversion of Loan Segments from one Type to the other, or a
continuation of Loan Segments as the same Type, (ii) the requested date of
the conversion or continuation, as the case may be (which shall be a
Business Day), (iii) the principal amount of the Loan Segments to be
converted or continued, (iv) the Type of Loan Segments
are to be converted, and (v) if applicable, the duration of the Interest
Period with respect thereto. If the Borrower fails to specify a Type of
Loan Segment in a Loan Notice or if the Borrower fails to give a timely
notice requesting a conversion or continuation, then the applicable Loan
Segment shall be continued as, or converted to, a Base Rate Loan Segment.
Any such automatic conversion to Base Rate Loan Segments shall be effective
as of the last day of the Interest Period then in effect with respect to
the applicable Eurodollar Rate Loan Segments. If the Borrower requests a
conversion to or continuation of Eurodollar Rate Loan Segments in any such
Loan Notice, but fails to specify an Interest Period, it will be deemed to
have specified an Interest Period of one month.
(b) Except as otherwise provided herein, a Eurodollar Rate Loan
Segment may be continued or converted only on the last day of the Interest
Period for such Eurodollar Rate Loan Segment. During the existence of an
Event of Default, no Loan Segments may be converted to or continued as
Eurodollar Rate Loan Segments, and the Bank may demand that any or all of
the then outstanding Eurodollar Rate Loan Segments be converted immediately
to Base Rate Loan Segments.
(c) The Bank shall promptly notify the Borrower of the interest rate
applicable to any Eurodollar Rate Loan Segment upon determination of such
interest rate. The determination of the Eurodollar Rate by the Bank shall
be conclusive in the absence of manifest error. The Bank shall notify the
Borrower of any change in the Bank's prime rate used in determining the
Base Rate promptly following the public announcement of such change.
(d) After giving effect to all conversions of Loan Segments from one
Type to the other, and all continuations of Loan Segments as the same Type,
there shall not be more than 5 Interest Periods in effect.
(e) While any Event of Default exists or after acceleration, the
Borrower shall pay interest on the principal amount of all outstanding
Obligations at a fluctuating interest rate per annum at all times equal to
the Default Rate to the fullest extent permitted by applicable law.
(f) All interest on the Notes shall be calculated on the basis of a
360-day year for the actual number of days elapsed.
(g) Notwithstanding anything to the contrary contained in any of the
Loan Documents, if any specified interest rate shall exceed the maximum
rate permitted by applicable law as in effect from time to time, the
Borrower shall pay interest at the highest permissible rate. If the
Borrower makes an interest payment under any of the Loan Documents that
exceeds the maximum amount of interest permitted by applicable law, the
excess of such payment above the maximum amount that lawfully may be paid
shall be refunded to the Borrower or, at the Borrower's option, credited
toward the payment of principal due under the Notes.
Section 2.4 Prepayments.
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Upon thirty (30) days' written notice to the Bank, the Borrower may
voluntarily prepay the outstanding principal balance of the Notes
in whole or in part without premium or penalty at any time.
If the Borrower makes a payment to an affiliate during any fiscal
quarter which it is permitted to make under Section 5.20(a) due
to the existence of Excess Cash Flow (as defined in such
Section), it will simultaneously prepay the outstanding principal
balance of the Notes in an amount equal to the amount of such
affiliate payment.
If an affiliate of the Borrower fails to repay a loan made by the
Borrower pursuant to Section 5.20(b) within 90 days, the Borrower
will promptly, but in no event later than 10 days following the
default, prepay the outstanding principal balance of the Notes in
an amount equal to the unpaid amount of such loan.
Any prepayment permitted by clause (a) of this Section shall be made
on the first day of a calendar month and any prepayment of the
entire remaining principal balance of the Notes shall include
payment of all interest accrued thereon. Any partial prepayment
shall (i) be in the amount of at least $10,000; (ii) be applied
first to the prepayment of Tranche I, until Tranche I has been
paid in full, with any balance applied to Tranche II; and (iii)
not postpone the due date of any payment due hereunder unless the
Bank otherwise agrees in writing.
Section 2.5 Fees. On the date of the Term Loan, the Borrower shall
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pay a closing fee of $275,000 to the Bank, for the account of the Bank and
any participants. The closing fee (net of the $100,000 retainer fee
heretofore paid by the Borrower to the Bank) and any other reasonable costs
and expenses incurred by the Bank which are payable on the date of the Term
Loan pursuant to Section 7.2 shall be withheld by the Bank from the
proceeds of the Term Loan and applied by the Bank to the payment of such
fee, costs and expenses.
Section 2.6 Yield Protection and Illegality.
-------------------------------
(a) Illegality. If the Bank determines that it is unlawful, or that
any governmental authority has asserted that it is unlawful, for the Bank
to make, maintain or fund Eurodollar Rate Loan Segments, or materially
restricts the authority of the Bank to purchase or sell, or to take
deposits of, U.S. Dollars in the applicable offshore market, or to
determine or charge interest rates based upon the Eurodollar Rate, then, on
notice thereof by the Bank to the Borrower, any obligation of the Bank to
make or continue Eurodollar Rate Loan Segments or to convert Base Rate Loan
Segments to Eurodollar Rate Loan Segments shall be suspended until the Bank
notifies the Borrower that the circumstances giving rise to such
determination no longer exist. Upon receipt of such notice, the Borrower
shall, upon demand from the Bank, convert all Eurodollar Rate Loan Segments
to Base Rate Loan Segments, either on the last
day of the Interest Period thereof, if the Bank may lawfully continue to
maintain such Eurodollar Rate Loan Segments to such day, or immediately, if
the Bank may not lawfully continue to maintain such Eurodollar Rate Loan
Segments. Upon any such prepayment or conversion, the Borrower shall also
pay interest on the amount so prepaid or converted. The Bank agrees to
designate a different lending office if such designation will avoid the
need for such notice and will not, in the good faith judgment of the Bank,
otherwise be materially disadvantageous to the Bank.
(b) Inability to Determine Rates. If the Bank determines in
connection with any request for a Eurodollar Rate Loan Segment or a
conversion to a continuation thereof that (a) dollar deposits are not being
offered to banks in the applicable offshore market for the applicable
amount and Interest Period of such Eurodollar Rate Loan Segment, (b)
adequate and reasonable means do not exist for determining the Eurodollar
Rate for such Eurodollar Rate Loan Segment, or (c) the Eurodollar Rate for
such Eurodollar Rate Loan Segment does not adequately and fairly reflect
the cost to the Bank of funding such Eurodollar Rate Loan Segment, the Bank
will promptly notify the Borrower. Thereafter, the obligation of the Bank
to make or maintain Eurodollar Rate Loan Segments shall be suspended until
the Bank revokes such notice. Upon receipt of such notice, the Borrower
may revoke any pending request for a conversion or continuation of
Eurodollar Rate Loan Segments.
(c) Increased Cost and Reduced Return; Capital Adequacy.
(1) If the Bank determines that as a result of the introduction
of or any change in or in the interpretation of any law, or the Bank's
compliance therewith, there shall be any increase in the cost to the Bank
of agreeing to make or making, funding or maintaining Eurodollar Rate Loan
Segments under this Agreement, or a reduction in the amount received or
receivable by the Bank under the Notes, then from time to time upon demand
of the Bank, the Borrower shall pay to the Bank such additional amounts as
will compensate the Bank for such increased cost or reduction.
(2) If the Bank determines that the introduction of any law
regarding capital adequacy or any change therein or in the interpretation
thereof, or compliance by the Bank therewith, has the effect of reducing
the rate of return on the capital of the Bank or any corporation
controlling the Bank as a consequence of the Bank's obligations hereunder
(taking into consideration its policies with respect to capital adequacy
and the Bank's desired return on capital), then from time to time upon
demand of the Bank, the Borrower shall pay to the Bank such additional
amounts as shall be certified by the Bank to be the amounts allocable to
the Bank's obligations to the Borrower hereunder.
(3) The Borrower shall pay to the Bank, as long as the Bank shall
be required under regulations of the Federal Reserve Board to maintain
reserves with respect to liabilities or assets consisting of or including
Eurocurrency funds or deposits (currently known as "Eurocurrency
liabilities"), additional costs on the unpaid principal amount of each
Eurodollar Rate Loan Segment hereunder equal to the actual costs of such
reserves allocated to such Loan Segment (as determined by the Bank in good
faith), which shall be due and payable on each date on which interest is
payable on such Loan Segment, provided the Borrower shall have received at
--------
least 15 days' prior notice of such additional interest from the Bank. If
the Bank fails to give notice 15 days prior to the relevant Interest
Payment Date, such additional interest shall be due and payable 15 days
from the receipt of such notice.
(d) Funding Losses. Upon demand of the Bank from time to time, the
Borrower shall promptly compensate the Bank for any loss, cost or expense
incurred by it as a result of:
(1) any continuation, conversion, payment or prepayment of any
Eurodollar Rate Loan Segment on a day other than the last day of the
Interest Period for such Eurodollar Rate Loan Segment (whether voluntary,
mandatory, automatic, by reason of acceleration, or otherwise); or
(2) any failure by the Borrower to prepay, borrow, continue or
convert any Eurodollar Rate Loan Segment on the date or in the amount
notified by the Borrower;
including any loss or expense arising from the liquidation or reemployment
of funds obtained by it to maintain such Eurodollar Rate Loan Segment or
from fees payable to terminate the deposits from which such funds were
obtained. The Borrower shall also pay any customary administrative fees
charged by the Bank in connection with the foregoing.
For purposes of calculating amounts payable by the Borrower to the
Bank under this Section 2.6, the Bank shall be deemed to have funded each
Eurodollar Rate Loan Segment at the Eurodollar Rate for such Loan Segment
by a matching deposit or other borrowing in the applicable offshore
interbank market for a comparable amount and for a comparable period,
whether or not such Eurodollar Rate Loan Segment was in fact so funded.
(e) Matters Applicable to all Requests for Compensation. A
certificate of the Bank claiming compensation under this Section 2.6 and
setting forth the additional amount or amounts to be paid to it hereunder
shall be conclusive in the absence of manifest error. In determining such
amount, the Bank may use any reasonable averaging and attribution methods.
(f) Survival. All of the Borrower's obligations under this Section
2.6 shall survive payment in full of all the Obligations.
ARTICLE III
Conditions of Term Loan
-----------------------
Section 3.1 Condition Precedent to Term Loan. The obligation of the
--------------------------------
Bank to make the Term Loan shall be subject to the condition precedent that the
Bank shall have received on or before the date of the Term Loan and no later
than April 30, 2001, the following, each in form and substance acceptable to the
Bank:
(a) Borrower closing documents.
--------------------------
(i) This Agreement, duly executed by the Borrower and the Bank.
(ii) The Notes, each duly executed by the Borrower.
(iii) The Security Agreement, duly executed by the Borrower.
(A) Current searches of appropriate filing offices showing
that (a) no judgment or state or federal tax liens have been filed and
remain in effect against the Borrower, and (b) no financing statements
have been filed and remain in effect against any of the Bank's
collateral covered by the Security Documents, except those financing
statements filed, or expressly permitted, by the Bank.
(B) UCC-1 Financing Statements executed by the Borrower, which
Financing Statements shall be filed in the following
jurisdictions:
(1) Secretary of State of Delaware.
(2) Secretary of State of Indiana.
(3) Lake County, Indiana.
In the case of the filings for Lake County, Indiana, the UCC-1
Financing Statement shall reflect the location of fixtures at
both of the Borrower's addresses.
(iv) The Ground Lessor Pledge Agreement.
(v) A copy of the Operating Agreement.
(vi) A payoff and undertaking letter from Centier, agreeing to
release its security interest in the personal property of the Borrower and
to release the Centier Mortgage and the Centier Guarantor Mortgage upon
payment of the amount stated therein.
(vii) A payoff and undertaking letter from Mercantile, agreeing to
release its security interest in the personal property of the Borrower and
to release the Mercantile Mortgage and the Mercantile Guarantor Mortgage
upon payment of the amount stated therein.
(viii) A payoff and undertaking letter from the Original Ship
Lender, agreeing to release its first preferred ship mortgage on the
Riverboat and any security interest in the equipment used thereon upon
payment of the amount stated therein.
(ix) The Mortgage, duly executed by the Borrower.
(x) The Borrower Environmental Indemnity, duly executed by the
Borrower.
(xi) Phase I environmental audit of the Land and all improvements
thereon, acceptable in scope and methodology to the Bank, together with
reliance letters in the Bank's favor from the environmental consultants
preparing such audits.
(xii) The Assignment of Rents, duly executed by the Borrower.
(xiii) A copy of the Ground Sublease, duly executed by the Borrower
and the Guarantor, and all amendments thereto.
(xiv) An appraisal of the Land and the improvements thereon prepared
by Valuation Research Corp., addressed to the Bank, establishing the market
value of the Land and the improvements thereon in an amount which, when
added to the value established for the Riverboat by the marine survey
referred to in Section 3.1(a)(xix), equals at least $40,000,000.
(xv) A survey, prepared at the Borrower's expense, signed and dated
within thirty (30) days of the date of this Agreement and certified by a
licensed, registered surveyor and incorporating the legal description of
the Land as set forth in the title insurance commitment, showing all
perimeter property lines and points referred to in the legal description,
the number of square feet and acres contained in the Land, all streets
adjacent to the Land and all right-of-way lines (including the distance
from the nearest intersecting streets), all curb cuts, driveways, permanent
fences and access to and egress from the Land from and to public streets,
all easements of record or visible or otherwise known to the surveyor
(identifying each by book and page or document number of the instrument
creating such easement and indicating the dimensions of such easement), the
actual or proposed location of any improvements and other structures
presently or to be installed on the Land, (including sidewalks, xxxxxx and
parking areas), the square footage of all existing structures, the number
of stories of all existing structures, the number of vehicles that may be
parked in the designated parking areas, all utility lines (including storm
sewer, sanitary sewer, water, gas, electric and telephone lines), all
applicable setback lines or state that no setback lines are applicable to
the property, show all encroachments onto or from the Land or make a
statement that no such encroachments exist, and contain the following
certification: "The undersigned hereby certifies to Firstar Bank, N.A. and
Xxxxx Indiana, Inc. that this survey correctly shows the premises described
herein, the location of all buildings, structures and other improvements
located or to be built thereon, all applicable setback lines and easements,
rights-of-way and other encroachments onto or from the premises that are
known to the undersigned, that are visible on the premises or that are of
record."
(xvi) A title insurance commitment, in form and substance
satisfactory to the Bank, prepared by the Title Company, at the Borrower's
expense, constituting a commitment by such Title Company to issue a
leasehold mortgagee's title policy in favor of the Bank as mortgagee under
the Mortgage, that will be free from all standard exceptions, including
mechanics' liens and all other exceptions not previously approved by the
Bank and that will insure the Mortgage to be a valid first lien on the
mortgagor's leasehold interest in the Land, subject only to the Ground
Lessor's interest in the Land pursuant to the Ground Lease and the
Guarantor's interest in the Land pursuant
to the Ground Sublease and such prior liens and encumbrances as are
approved by the Bank, in an amount not less than the principal amount of
the Tranche II Note with such endorsements as the Bank deems necessary.
(xvii) A certification that the Land is not located on a flood zone.
(xviii) The Ship Mortgage, duly executed by the Borrower.
(xix) A marine survey of the Riverboat, prepared at the Borrower's
expense by Valuation Research Corp., establishing the fair market value of
the Riverboat in an amount not less than the greater of $22,000,000 or the
amount which, when added to the value established for the Land and
improvements by the appraisal referred to in Section 3.1(a)(xiv), equals at
least $40,000,000.
(xx) Copies of lien searches demonstrating that, except for the
first preferred ship mortgage securing the Ship Loan, no other mortgages or
statements or notices of liens have been filed with any federal, state or
municipal office for the purpose of validating or perfecting any lien on
the Riverboat except those filed or expressly permitted by the Bank.
(xxi) A copy of the Development Agreement, and any and all
amendments, modifications or restatements thereto.
(xxii) Copies of the Riverboat Gaming License and certificate of
suitability for, and all such other licenses as may be required to operate,
the Riverboat.
(xxiii) Documents evidencing the Gaming Commission's approval of the
Term Loan.
(xxiv) A certificate, as of such date, duly executed by an officer of
the Borrower, certifying as to the following:
(A) the Borrower's present and past compliance with (i) all
laws, regulations and ordinances of the State of Indiana, the Gaming
Commission and the City of Gary, Indiana, as to the conduct of gaming
operations and the operation of the Riverboat, and (ii) all other
governmental requirements for the maintenance of the Riverboat Gaming
License, and (iii) the terms of the Operating Agreement.
(B) the resolutions of the Borrower's board of directors,
authorizing the transactions contemplated by this Agreement, the
Notes, and the Security Documents.
(C) the true and correct specimen signatures of the
authorized signatories for the Borrower and the offices held by each
such signatory.
(D) the Borrower's Organizational Documents and copies
thereof.
(xxv) Certificates of Good Standing of the Borrower issued by the
States of Indiana and Delaware.
(xxvi) Opinion of counsel to the Borrower.
(xxvii) Certificates of insurance and copies of insurance policies,
as required by Section 5.2.
(b) Guarantor closing documents.
---------------------------
(i) The Guaranty, duly executed by the Guarantor.
(ii) Current searches of appropriate filing offices showing that
(1) no judgments or state or federal tax liens have been filed and remain
in effect against the Guarantor, and (2) no financing statements have been
filed and remain in effect against any of the Bank's collateral covered by
the Guarantor Mortgage or the Guarantor Assignment of Rents.
(iii) The Guarantor Mortgage, duly executed by the Guarantor.
(iv) The Guarantor Assignment of Rents, duly executed by the
Guarantor.
(v) A copy of the Ground Lease.
(vi) The Guarantor Environmental Indemnity, duly executed by the
Guarantor.
(vii) A certificate, as of such date, duly executed by an
officer of the Guarantor, certifying as to the following:
(A) the Guarantor's Consent of Sole Member, authorizing the
transactions contemplated by the Guarantor Documents.
(B) the true and correct specimen signatures of the
authorized signatories for the Borrower and the offices held by each
such signatory.
(C) the Guarantor's Organizational Documents, and copies
thereof.
(viii) Certificates of Good Standing of the Guarantor issued by the
States of Indiana and Delaware.
(ix) Opinion of counsel to the Guarantor.
(c) Miscellaneous closing documents.
-------------------------------
(i) Copies of the Grid Note and the Marketing Agreement, and any
and all amendments thereto or restatements thereof.
(ii) A letter of acknowledgment duly executed by Xxxxx Hotels &
Casino Resorts Holdings, L.P. and Xxxxx Marketing Services, L.L.C.,
relating to the Grid Note and the Marketing Agreement.
(iii) Such financial projections and such financial statements of
the Borrower, including statements of cash flow, as the Bank may request.
(iv) An agreement of guaranty in form and substance satisfactory to
the Bank whereby Xxxxx Hotels & Casino Resorts Holdings, L.P. shall have
guaranteed payment of $10,000,000 of the obligations, such guaranty to be
effective when permitted under the terms of Xxxxx Hotels & Casino Resorts
Holdings, L.P. debt instruments.
(v) The most current available drafts of the Parking Garage
Agreements, which shall be in form and substance satisfactory to the Bank
in its sole discretion.
(vi) Evidence that the amount disbursed to Jefferies & Company,
Inc. out of the proceeds of the Term Loan satisfies in full all of the
Borrower's obligations to Jefferies & Company, Inc. in connection with the
arranging of the Term Loan, including both fees payable to Jefferies &
Company, Inc. and reimbursement for its out-of-pocket expenses.
(d) Other closing conditions. Evidence satisfactory to the Bank that
------------------------
there exists no Event of Default or other event which, with the passage of
time or the giving of notice, or both, would be an Event of Default, and
that no material adverse change shall have occurred in the Borrower's
business or financial condition since the date of the most recent financial
statements delivered pursuant to Section 3.1(c)(iii).
(i) Such other items as the Bank may reasonably request.
ARTICLE IV
Representations and Warranties
------------------------------
The Borrower represents and warrants to the Bank that:
Section 4.1 Corporate Existence and Authority. The Borrower (a) is a
---------------------------------
corporation, validly existing and in good standing under the laws of the State
of Delaware, (b) has the corporate power and authority to own its properties and
to carry on its business as now conducted, and (c) has the power and authority
to execute, deliver and perform the Loan Documents. The execution and delivery
thereof and the carrying out of the transactions contemplated thereby will not
violate, conflict with or constitute a default under the terms of the Borrower's
Organizational Documents or under any note, bond, debenture or other evidence of
indebtedness or any contract, loan agreement or lease to which the Borrower is a
party or to which any of the Borrower's property (including, but not limited to,
the Riverboat Gaming License) is bound, or, violate any law, regulation or order
of the United States or the State of Indiana or agency or political subdivision
thereof, including without limitation the Gaming Commission, or any requirement
of the Riverboat Gaming License, or any court order or judgment in any
proceeding to which the Borrower is or was a party or by which any property of
the Borrower is bound. The Loan Documents to which the Borrower is a party
constitute the legal, valid and binding obligations of the Borrower, enforceable
in accordance with their respective terms (subject to limitations as to
enforceability which might result from bankruptcy, insolvency or other similar
laws affecting creditors' rights generally).
Section 4.2 Name; Chief Executive Office; Location of Equipment; Tax
--------------------------------------------------------
Identification Number. The Borrower has done business solely under the names
---------------------
set forth on Schedule 4.2 hereto. The Borrower's chief executive office and
principal place of business is located at the address set forth on Schedule 4.2
hereto. All of the Borrower's equipment which is subject to any Security
Document is located at the addresses set forth on Schedule 4.2 hereto. The
Borrower's tax identification number is 00-0000000.
Section 4.3 Financial Statements. Any and all financial statements
--------------------
delivered to the Bank by the Borrower prior to the date hereof have been
prepared in accordance with generally accepted accounting principles, and fairly
present the financial condition of the Borrower as of the respective dates and
for the respective periods thereof. No materially adverse change has occurred
in the financial conditions reflected therein since the date of the most recent
such financial statements and no additional borrowings have been made by the
Borrower since the date thereof other than the borrowing contemplated hereby.
None of the aforesaid financial statements or any certificate or statement
furnished to the Bank by or on behalf of the Borrower in connection with the
transactions contemplated hereby, and none of the representations and warranties
in this Agreement, contains any untrue statement of a material fact or omits to
state a material fact necessary in order to make the statements contained
therein or herein not misleading. To the best of the knowledge of the Borrower,
there is no fact which materially adversely affects or in the future (so far as
the Borrower can now foresee) may materially adversely affect the business or
prospects or condition (financial or other) of the Borrower or its properties,
or the Riverboat Gaming License, which has not been set forth herein or in a
certificate or statement furnished to the Bank by the Borrower. To the best of
the Borrower's knowledge, there exists no fact that would preclude renewal of
the Riverboat Gaming License, and the Borrower's application for renewal will be
acted upon favorably by the Gaming Commission.
Section 4.4 No Other Consent. Except as such as have been obtained
----------------
prior to the date hereof, no other consent, approval, order or authorization of
or registration, declaration or filing with any governmental authority,
including without limitation the State of Indiana, the Gaming Commission and the
City of Gary, Indiana, is required in connection with (i) the valid execution
and delivery of the Loan Documents or of any and all other agreements and
instruments related thereto or (ii) the carrying out or performance of any of
the transactions required or contemplated thereby.
Section 4.5 Litigation. Except as previously disclosed to the Bank,
----------
there is no action, suit or proceeding at law or in equity or by or before any
governmental instrumentality or other agency now pending or, to the knowledge of
the Borrower, threatened against or affecting the Borrower which, if adversely
determined, would prohibit the making of the Term Loan or the consummation of
the transactions contemplated by this Agreement or would have a material adverse
effect on the Borrower or its business or financial condition or its ability to
carry out its obligations hereunder or under any Loan Document. To the
knowledge of the Borrower, the Borrower is not in violation of or subject to any
contingent liability on account of any statute, law, rule, ordinance, order,
writ, injunction or decree.
Section 4.6 Agreements. The Borrower is not a party to any material
----------
agreement or instrument which materially adversely affects its business,
properties or assets, operations or condition (financial or otherwise). The
Borrower is not in material default in the performance, observance or
fulfillment of any of the obligations, covenants or conditions contained in any
agreement or instrument to which it is a party.
Section 4.7 Taxes. The Borrower has paid or caused to be paid to the
-----
proper authorities when due all federal, state and local taxes required to be
withheld by the Borrower. The Borrower has filed all federal, state and local
tax returns which to the knowledge of the Borrower's officers are required to be
filed and the Borrower has paid or caused to be paid to the respective taxing
authorities all taxes as shown on said returns or on any assessment to the
extent such taxes have become due, other than with respect to certain proposed
assessments from the Indiana Department of Revenue for certain Indiana state
taxes, which proposed assessments are being contested by the Borrower.
Section 4.8 Usury. The transaction evidenced by this Agreement does
-----
not violate any law pertaining to usury or the payment of interest on loans.
Section 4.9 Participation in Business. To the best knowledge of the
-------------------------
Borrower, based upon reasonable inquiry, no director, shareholder, officer,
employee or agent of, or consultant to the Borrower is prohibited by law, by
regulation, by contract or by the terms of any license, franchise, permit,
certificate, approval or consent issued or to be issued or necessary to the
Borrower in connection with its business from participating in the business of
the Borrower as director, shareholder, officer, employee or agent of, or is the
subject of any pending or, to the Borrower's best knowledge, threatened
proceeding which, if determined adversely, would or could result in such a
prohibition.
ARTICLE V
Covenants of the Borrower
-------------------------
Section 5.1 Reporting Requirements. The Borrower shall deliver to
----------------------
the Bank:
(a) as soon as practicable after the end of each calendar month and
in no event later than thirty days thereafter, internally prepared
financial statements of the Borrower for such month consisting of the
balance sheets of the Borrower as of the end of such quarter and the
related statements of income and cash flows for the month and 12-month
period then ended, setting forth in comparative form the figures for the
previous month and 12-month period, accompanied by the certificate of the
Borrower's chief financial officer (or its equivalent), certifying that
such financial statements fairly present the financial position, results of
operations and cash flows of the Borrower and were prepared in accordance
with generally accepted accounting principles and that no Default or Event
of Default has occurred and is continuing hereunder; and
(b) as soon as practicable after the end of each fiscal quarter of the
Borrower, and in no event later than thirty days thereafter, a Compliance
Certificate duly executed by the Chief Financial Officer (or its
equivalent) of the Borrower; and
(c) as soon as practicable after the end of each fiscal year, and in
no event later than one-hundred twenty days thereafter, audited financial
statements of the Borrower for such fiscal year consisting of the balance
sheets of the Borrower as of the end of such fiscal year and the related
statements of income and cash flows for the fiscal year then ended, setting
forth in comparative form the figures for the previous fiscal year, all in
reasonable detail and prepared by a certified public accountant reasonably
acceptable to the Bank, accompanied by such accountant's unqualified
opinion as to such financial statements and a copy of the management letter
issued in connection with such accountant's audit thereof, and by a
Compliance Certificate executed by the chief financial officer of the
Borrower (or the equivalent); and
(d) as soon as possible and in any event within seven days after the
Borrower has obtained knowledge of the occurrence of any Event of Default
which is continuing on the date of such statement, the statement of the
chief financial officer (or the equivalent) of the Borrower setting forth
details of such Event of Default and the action which the Borrower proposes
to take with respect thereto; and
(e) as soon as practicable after the end of each week, and in no
event later than Thursday of the next week, a weekly cash position report
of the Borrower in such form as the Bank may reasonably require; and
(f) such other information as the Bank may from time to time
reasonably request.
Section 5.2 Insurance. At all times, the Borrower will keep and
---------
maintain the Hotel and personal property, the Riverboat and its business insured
against such risks and in such amounts, with such deductible provisions, as are
customary in connection with the operation of facilities of comparable type and
size. In accordance with the foregoing, the Borrower shall carry and maintain
or cause to be carried and maintained at least the following insurance:
(a) The Hotel and Personal Property.
-------------------------------
(i) All-risk hazard insurance with blanket coverage for
buildings and contents, including steam boiler coverage, at all times
in an amount not less than $35,000,000, and including a stipulated
value/agreed amount endorsement, sprinkler leakage endorsement,
special cause of loss endorsement, crime coverage (with a sub-limit of
$15,000,000) and no co-insurance clause.
(ii) General liability insurance with a combined single limit
of not less than $1,000,000, and including inn-keeper's legal
liability insurance, "dram shop" or liquor liability coverage.
(iii) Comprehensive automobile liability insurance with a
combined single limit not less than $1,000,000, including coverage for
hired and non-owned vehicles.
(b) The Riverboat.
-------------
(i) Hull and machinery insurance on a named perils basis,
covering the Vessel and contents against all such usual marine risks
as are provided in the American Institute Hull Clauses (most recent
amendment), including collision liability, in an amount not less than
the full replacement cost of the Vessel, and including a stipulated
value/agreed amount endorsement.
(ii) Protection and indemnity insurance as per Form SP23,
covering liability to customers, crew, and third parties, including
fixed or floating object coverage, coverage for clearance of wreck,
and "dram shop" or liquor liability coverage, with a combined single
limit of not less than $1,000,000.
(iii) War risk hull and machinery insurance, in a an amount not
less than the full replacement cost of the Vessel.
(iv) If not covered by the protection and indemnity insurance
described in this subsection, general liability insurance with a
combined single limit of not less than $1,000,000, and including
covering perils associated with the use of the dock and other common
facilities and amenities located ashore
(v) Employment practice liability insurance with a combined
single limit of not less than $1,000,000.
(c) Business Insurance.
------------------
(i) Worker's compensation insurance with a longshoreman's and
harbor worker's endorsement.
(ii) Business interruption insurance covering actual losses in
gross operating earnings of the Borrower resulting directly from
necessary interruption of business caused by risks of direct physical
loss of real or personal property including the Riverboat or the
Hotel, subject to policy exclusions, less charges and expenses which
do not necessarily continue during the interruption of business, for
such length of time as may be required with the exercise of due
diligence and dispatch to rebuild, repair or replace such properties
as have been damaged or destroyed, but not less than one year, with
aggregate limits equal to at least $1,000,000 with respect to the
Hotel and $20,000,000 with respect to the Riverboat.
Each of the foregoing insurance policies shall (i) be issued or written by
a financially responsible insurer (or insurers) reasonably satisfactory to
the Bank, (ii) be in such form and with such provisions as are generally
considered standard provisions for the type of insurance involved, (iii)
prohibit cancellation or modification by the insurer without at least
thirty (30) days' prior written notice to the Bank and the Borrower (10
day's prior written notice in the event of cancellation for non-payment)
and (iv) other than with respect to worker's compensation insurance,
contain an endorsement or agreement by the insurer that any loss shall be
payable in accordance with the terms of the loss payable endorsement
attached hereto as Schedule 5.2.
Without limiting the generality of the foregoing, all of the insurance
policies carried pursuant to subsections (a)(ii), (a)(iii), (b)(ii) and
(b)(iv) above shall name the Bank and the Borrower as additional insured
parties insured thereunder and all insurance policies carried pursuant to
subsections (a)(i), (a)(iii), (b)(i) and (b)(iii) shall name the Bank as
loss payee under a lender's loss payable and a mortgagee's endorsement.
(d) Insurance Proceeds From Property Damage to the Hotel or the
-----------------------------------------------------------
Riverboat. After the happening of any casualty to the Riverboat or to the
---------
Hotel or any part thereof, the Borrower shall give prompt written notice
thereof to the Bank.
(i) Except as otherwise provided in this Section 5.2(e), in the
event of any loss or damage covered by the insurance policies listed
in this Section 5.2, all proceeds of such insurance shall be payable
to the Bank, and the Borrower hereby authorizes and directs any
affected insurance company to make payment of such proceeds directly
to the Bank. Upon the occurrence and during the continuance of an
Event of Default under this Agreement, the Bank is hereby authorized
and empowered by the Borrower, after consultation with the Borrower,
to settle, adjust or compromise any claims for loss, damage or
destruction under any policy or policies of insurance.
(ii) In the event of any damage or destruction to the Hotel, the
Bank shall apply all or part of the insurance proceeds to the
restoration of the Hotel, and the balance thereof, if any is
remaining, shall be paid to the Borrower to the extent that it is
entitled to the same; provided, however, if: (A) an Event of Default
-------- -------
exists under this Agreement or event which, with the giving of notice
or passage of time, would be such an Event of Default under this
Agreement, or (B) the proceeds of such insurance are inadequate to
complete the restoration of the Hotel and the Borrower fails to
deposit with the Bank sufficient additional funds, in cash or cash
equivalents, to complete such restoration of the Hotel, then such
proceeds may be applied by the Bank within thirty (30) days of its
receipt thereof to reduce the outstanding indebtedness evidenced by
the Notes, with such application in accordance with the terms of
Section 2.2 hereof, and otherwise such proceeds shall be applied by
the Bank to the restoration of the Hotel.
(iii) In the event of any damage or destruction to the
Riverboat, the Bank shall apply all or part of the insurance proceeds
to the restoration of the Riverboat, and the balance thereof, if any
is remaining, shall be paid to the Borrower to the extent that it is
entitled to the same; provided, however, if: (A) an Event of Default
-------- -------
exists under this Agreement or event which, with the giving of notice
or passage of time, would be such an Event of Default under this
Agreement, or (B) the proceeds of such insurance are inadequate to
complete the restoration of the Riverboat and the Borrower fails to
deposit with the Bank sufficient additional funds, in cash or cash
equivalents, to complete such restoration of the Riverboat, then such
proceeds may be applied by the Bank within 30 days of its receipt
thereof to reduce the outstanding indebtedness evidenced by the Notes,
with such application in accordance with the terms of Section 2.2
hereof, and otherwise such proceeds shall be applied by the Bank to
the restoration of the Riverboat.
(iv) Except to the extent that insurance proceeds are received
by the Bank and applied to payment in full of the indebtedness arising
hereunder, nothing herein contained shall be deemed to excuse the
Borrower from repairing or maintaining the Hotel or the Riverboat in
accordance with Section 5.7 hereof or restoring all damage or
destruction to, as applicable, the Hotel or the Riverboat, regardless
of whether or not there are insurance proceeds available or whether
any such proceeds are sufficient in amount and the application or
release by the Bank of any insurance proceeds shall not cure or waive
any default or Event of Default under any Loan Document.
(v) Notwithstanding anything to the contrary contained in this
Agreement, any proceeds under any insurance on the Hotel and or
Riverboat (A) with respect to protection and indemnity risks and
public liability may be paid directly to the Borrower to reimburse it
for any loss, damage or expense incurred by it or direct to the person
to whom any liability covered by such insurance has been incurred, and
(B) in the case of any loss (other than a loss covered by clause (A)
of this Section 5.2(d)(iv) or a loss in excess of $500,000 per
occurrence) involving any damage to the Hotel or Riverboat, may be
paid directly for the repair or restoration of the Hotel or Riverboat
or may be paid directly to the Borrower so long as the Borrower shall
use such funds to repair or restore the Hotel or Riverboat, as the
case may be.
(e) Renewal or Replacement. Any certificates evidencing the renewal
----------------------
or replacement of any insurance policy required herein shall be delivered
by the Borrower to the Bank within 30 days prior to the expiration of such
policy.
Section 5.3 Books and Records. The Borrower shall maintain accurate
-----------------
and complete books, accounts and records pertaining to its subleasehold interest
in the Land and its interest in the Riverboat and the Hotel. The Borrower will
permit the Bank, upon reasonable notice and during usual business hours, acting
by and through its officers, employees and agents, to examine all books,
records, contracts and to make extracts therefrom and copies thereof. The Bank
agrees to maintain the confidentiality of the information obtained by the Bank
or its agents, except that the Bank may share such information with its
participants or assigns and as required for regulatory purposes.
Section 5.4 Compliance with Law; Notification to Bank. The Borrower
-----------------------------------------
will comply with all applicable laws, rules and regulations, including such as
apply to its gaming business, and will maintain the necessary license to conduct
its gaming business in Indiana on substantially the same terms as now apply to
such business. The Borrower will notify the Bank promptly of the occurrence of
any event that materially adversely affects the Borrower or the Guarantor, their
properties, financial positions or abilities to conduct their business
operations, including gaming operations on the Riverboat at its present
location, in substantially the manner and level conducted or contemplated to be
conducted as of the date of this Agreement. In addition to the foregoing, such
notification shall be required upon the occurrence of any of the following
specific events:
(a) any modification of any law, regulation or ordinance of the State
of Indiana, or any agency or political subdivision thereof, that has a
material adverse effect on the Borrower's ability to maintain its Riverboat
Gaming License or to conduct its gaming business on the Riverboat at its
present location; or
(b) the commencement of any action, suit or proceeding before any
court or arbitrator or any governmental department, board, agency or other
instrumentality affecting the Borrower or the Guarantor or any property of
the Borrower or the Guarantor in which an adverse determination or result
would have a material adverse effect on the business, operations, property
or condition (financial or otherwise) of the Borrower or the Guarantor, or
on the ability of the Borrower or the Guarantor to perform its obligations
under any of the Loan Documents, stating the nature and status of such
event, amendment, action, suit or proceeding and providing such additional
information as the Bank may reasonably request.
Section 5.5 Compliance With Other Agreements; Alteration of Other
-----------------------------------------------------
Agreements. The Borrower will comply in all material respects with all of the
----------
conditions of the Grid Note, the Marketing Agreement and the Ground Sublease and
any other note, loan agreement, indenture, lease mortgage, contract for deed,
security agreement or other contractual obligation binding upon the Borrower.
The Borrower will not suffer or permit to exist any conditions which would
constitute grounds for a breach or a default under the foregoing. Any provision
of this Agreement or the Mortgage authorizing the Borrower to take any action or
permitting any such action to be taken whether with or without the prior
approval of the Bank shall be subject to the condition precedent that the taking
of such action will not violate the terms of the Grid Note, the Marketing
Agreement or the Ground Sublease and the Borrower, by taking any such action or
requesting approval from the Bank prior to taking any such action, shall be
deemed to have warranted that such action will not violate the terms of the Grid
Note, the Marketing Agreement or the Ground Sublease. Without the prior written
consent of the Bank, the Borrower shall not (a) consent to the material
amendment or modification of the payment provisions of the Grid Note, the
Marketing Agreement or the Ground Sublease or waive compliance with any of the
terms and conditions thereof or (b) make any payment of principal or interest
required
by the Grid Note or of the "Marketing Fee" as defined in the Marketing Agreement
in excess of the amount required by the Grid Note or Marketing Agreement.
Section 5.6 Corporate Existence; Continued Operations; Ownership;
-----------------------------------------------------
Organizational Documents. The Borrower will preserve and keep in full force and
------------------------
effect its existence as a corporation under the laws of the state of Delaware.
Without the prior written consent of the Bank, the Borrower will not amend or
modify any material economic or control provision of the Borrower's
Organizational Documents. The Borrower shall not liquidate, dissolve or suspend
its business operations. The Borrower shall not cause or permit to occur any
change in the ownership interests of the Borrower.
Section 5.7 Maintenance of Property. The Borrower will maintain the
-----------------------
Riverboat, the Hotel and all its other property in good working order and
condition, reasonable wear and tear excepted, and make all needful and proper
repairs, replacements, additions and improvements thereto. The Borrower will
maintain its Riverboat Gaming License in full force and effect and timely apply
for and defend all extensions and renewals thereof prior to the expiration
thereof.
Section 5.8 ERISA. The Borrower will comply in all material respects
-----
with the Employee Retirement Income Security Act of 1974 to the extent
applicable.
Section 5.9 Payment of Certain Claims. The Borrower will pay and
-------------------------
discharge or cause to be paid and discharged promptly all lawful taxes,
assessments, and governmental charges or levies imposed upon it or upon its
income and profits, or upon any of its property, before the same shall become in
default, as well as all lawful claims for labor, materials and supplies or
otherwise which, if unpaid, might become a lien or charge upon any of such
properties; provided, however, the Borrower shall not be required to pay and
-------- -------
discharge or to cause to be paid and discharged any such tax, assessment,
charge, levy or claim so long as the validity thereof shall be contested in good
faith by appropriate proceedings and the Borrower shall have set aside on its
books adequate reserves with respect to any such tax, assessment, charge, claim
or levy; and comply in all material respects with all applicable laws, rules,
regulations and orders, including all gaming laws, rules, regulations, orders
and ordinances of the State of Indiana, the Gaming Commission, any city or
municipality or any court or tribunal, necessary to maintain its Riverboat
Gaming License and to operate the Riverboat at its present location.
Section 5.10 Additional Indebtedness. The Borrower shall not incur
-----------------------
or permit the incurrence of any indebtedness except:
(a) any indebtedness in existence on the date hereof and
listed on Schedule 5.10 hereto, including any refinancing thereof, and
(b) indebtedness incurred pursuant to F,F&E Financings or
capital leases incurred to finance new or replacement property;
provided, however, the aggregate principal amount outstanding at any
-------- -------
one time of any such indebtedness or capital leases shall not exceed
$12,000,000; provided, further however, any such indebtedness or
-------- ------- -------
capital leases referenced in this subsection shall be secured only by
the property acquired by the Borrower with the proceeds of such
indebtedness and the amount of any such indebtedness shall not exceed
100% of the fair value of the property so purchased, and
(c) indebtedness owed under the Parking Garage Agreements;
provided, however, that the Borrower's payment obligations under the
-------- -------
final Parking Garage Agreements shall not be significantly in excess
of the payment obligations provided under the drafts of such
Agreements provided to the Bank prior to closing unless the Bank
consents to such increased payment obligations in writing.
Section 5.11 Additional Liens. The Borrower shall not encumber or
----------------
grant a security interest in the Hotel, the Riverboat, its Riverboat Gaming
License, or any part of any thereof or create or permit to be created or allow
to exist any mortgage, encumbrance or other lien upon its subleasehold interest
in the Land, except for Permitted Encumbrances.
Section 5.12 Sale of Assets. The Borrower shall not, whether
--------------
voluntarily or involuntarily, sell, convey or transfer any interest in all or
any part of the Borrower's subleasehold interest in the Land, its interest in
the Hotel or its interest in the Riverboat or all or a substantial part of its
assets (or permit any such sale, conveyance or transfer to occur or to remain),
whether in one transaction or a series of transactions; provided, however, that
notwithstanding the foregoing, the Borrower may:
(a) convey, sell, transfer or otherwise dispose of, assets
acquired and held for resale in the ordinary course of business;
(b) convey, sell, transfer or otherwise dispose of, assets
pursuant to and in accordance with the terms of the Security
Documents; and
(c) convey, sell, transfer or otherwise dispose of, assets
which, in the Borrower's reasonable opinion, have become obsolete or
unfit for use or which are no longer necessary in the conduct of its
business.
Section 5.13 Transactions With Affiliates. Without the prior written
----------------------------
consent of the Bank, the Borrower shall not enter into any contract, agreement
or business arrangement with an Affiliate on terms and conditions which are less
favorable to the Borrower than would be usual and customary in similar
contracts, agreements or business arrangements between persons not affiliated
with each other.
Section 5.14 Merger. The Borrower shall not consolidate with or
------
merge into any Person or permit any other Person to merge into it or acquire (in
a transaction analogous in purpose or effect to a consolidation or merger) all
or substantially all of the assets of any other Person.
Section 5.15 EBITDAM. The Borrower will achieve EBITDAM for its
-------
fiscal year ended December 31, 2000, of no less than $16,500,000.
Section 5.16 Debt to EBITDAM Ratio. The Borrower will not permit the
---------------------
ratio of Senior Funded Debt to EBITDAM to exceed 2.5 to 1.0. For this purpose,
EBITDAM shall be computed (i) based on the Borrower's four most recent fiscal
quarters, or (ii) by multiplying by two the amount determined for the Borrower's
two most recent fiscal quarters, whichever computation yields the smaller
amount.
Section 5.17 Fixed Charge Coverage Ratio. The Borrower will maintain
---------------------------
the ratio of Modified EBITDAM to Fixed Charges at or above 1.25 to 1.0.
"Modified EBITDAM" means EBITDAM plus operating lease payments, reduced by cash
---- ----------
payments of income taxes and by capital expenditures necessary, in the
Borrower's opinion, to maintain its revenue levels and cash flows, all
determined for the most recent period of twelve calendar months. "Fixed
Charges" means the sum of (a) the greater of (i) the most recent twelve calendar
months' principal and interest payments with respect to Senior Funded Debt
(excluding payments under capital leases), net of any payments received by the
Borrower under the Swap Contract, or (ii) the next twelve months' scheduled
payments with respect to Senior Funded Debt (excluding payments under capital
leases but including scheduled payments of principal and/or interest, mandatory
prepayments and all other required payments), assuming, in the case of any such
Debt that bears interest at a floating rate, that the then-current interest rate
applicable to such Debt will apply thereto during the entire period, but giving
effect to any payments the Borrower is entitled to receive or required to make
by the terms of the Swap Contract; plus (b) the most recent twelve calendar
----
months' capital lease payments and Grid Note and Marketing Debt payments.
Section 5.18 Tangible Net Worth. The Borrower will not permit its
------------------
Tangible Net Worth to be less than $20,000,000.
Section 5.19 Capital Expenditures. The Borrower will not make or
--------------------
become legally obligated to make any expenditure in respect of the purchase or
other acquisition of any fixed or capital asset (excluding normal replacements
and maintenance which are properly charged to current operations), except for
capital expenditures in the ordinary course of business not exceeding $6,000,000
in the aggregate during any one fiscal year.
Section 5.20 Limitations on Payments to Affiliates. The Borrower
-------------------------------------
will not make any cash payments to any of its affiliates except as permitted by
this Section 5.20.
(a) The Borrower may make payments to its affiliates during any
fiscal quarter if the Borrower's Excess Cash Flow determined as of the end
of the immediately preceding fiscal quarter was positive; provided,
---------
however, that such payments shall be limited during any fiscal quarter to
-------
$1,400,000 or, if less, an amount such that payments during the fiscal
quarter plus payments during the immediately preceeding three fiscal
quarters do not exceed $5,200,000 in the aggregate, plus 50% of the amount
----
of the Excess Cash Flow determined as of the end of such preceding fiscal
quarter. "Excess Cash Flow" shall be determined based upon the formula in
Exhibit E.
(b) The Borrower may make one loan to an affiliate during any fiscal
year in an amount of up to $1,000,000. Prior to making any such loan, the
Borrower shall have determined, based upon the best information available
to it, that the affiliate will be able to repay the loan on schedule out of
the affiliate's available cash flows. Each such loan shall be payable in
not more than 90 days and shall be evidenced by a promissory note. The
Borrower hereby grants a security interest to the Bank in each and every
such promissory note and agrees promptly to deliver each such promissory
note to the Bank for the purpose of perfecting such security interest.
(c) The amount of the Borrower's obligation owed under the Grid Note
may be converted in whole or in part to equity.
(d) The Borrower may make payments to the Ground Lessor as required
by the Operating Agreement and the berthing agreement between the Borrower
and the Ground Lessor; provided, however, that the Borrower shall not make
-------- -------
any payment or series of related payments in excess of $500,000 to the
Ground Lessor in connection with a capital improvement without the prior
written consent of the Bank. The Borrower may make payments to Xxxxxxxxxx
Harbor Parking Associates, L.L.C. as required by its operating agreement
and the Parking Garage Agreements.
(e) The Borrower may enter into transactions with affiliates so long
as such transactions are on terms no less favorable to the Borrower than
would be available in comparable transactions in arm's length dealings with
unaffiliated third parties.
Section 5.21 Cash Position. The Borrower will at all times maintain
-------------
no less than $5,000,000 of cash available for working capital and for use in its
gaming business.
Section 5.22 Swap Contract. Not later than April 13, 2001, the
-------------
Borrower will enter into the Swap Contract, which shall provide for a swap or
collar transaction for at least $10,000,000 of notional principal amount.
ARTICLE VI
Events of Default and Rights and Remedies
-----------------------------------------
Section 6.1 Events of Default. Each of the following shall
-----------------
constitute an Event of Default:
(a) The Borrower shall fail to pay, when due, any installment of
interest or principal payable under any Note.
(b) The Borrower shall fail to pay any other amounts owing to the Bank
under the Notes, this Agreement or the Security Documents within seven
calendar days following demand of the Bank.
(c) The Borrower shall fail duly to observe or perform any of the
terms, conditions, covenants or agreements required to be observed or
performed by the Borrower under this Agreement, and such failure shall
continue for a period of 30 calendar days after written notice of such
failure
has been given by the Bank to the Borrower or, in the case of a default not
susceptible to cure within 30 days, the Borrower fails to commence to cure
the same and to diligently pursue such cure.
(d) Any representation or warranty made by or on behalf of the
Borrower or Guarantor herein, in any other Loan Document or in any
financial statement, certificate, report furnished pursuant to this
Agreement or any other Loan Document or in order to induce the Bank to make
the Term Loan shall prove to have been untrue in any material respect or
materially misleading as of the time such representation or warranty was
made.
(e) An "Event of Default" (as defined therein) shall occur under any
Security Document, and such default or breach shall not be cured or waived
within the period or periods of grace, if any, applicable thereto.
(f) The Hotel or the Riverboat shall be materially damaged or
destroyed by fire or other casualty and the loss, in the reasonable
judgment of the Bank, is not adequately covered by available insurance and
the Borrower shall not have taken steps to repair or replace the Hotel or
the Riverboat, as the case may be, required by Section 5.2(d)(iv) hereof
within 45 days of such casualty.
(g) Execution shall have been levied against the Land, the Borrower's
subleasehold interest in the Land, the Riverboat, the Hotel or any
substantial part of the other property subject to the Security Documents,
or any lien creditor's suit to enforce a judgment against the Land, the
Riverboat, or the Hotel, or such other property shall have been brought and
(in either case) shall not have been secured to the Bank's reasonable
satisfaction and shall continue unstayed and in effect for a period of more
than ten consecutive calendar days.
(h) Either the Borrower or the Guarantor shall make an assignment for
the benefit of its creditors, or shall admit in writing its inability to
pay its debts as they become due, or shall seek or consent to or acquiesce
in the appointment of any trustee, receiver or liquidator of any material
part of its properties or of the Borrower's subleasehold interest in the
Land, or the Borrower's interest in the Hotel or the Riverboat, or any such
appointment made without its consent or acquiescence shall not have been
vacated within thirty calendar days after such appointment is made.
(i) A petition shall be filed under the United States Bankruptcy Code
naming the Borrower or the Guarantor as a debtor and shall not have been
stayed or vacated within sixty days.
(j) The Borrower or the Guarantor shall liquidate, dissolve,
terminate or suspend its business operations or otherwise shall fail to
operate its business in the ordinary course or shall sell all or
substantially all of its assets.
(k) A default shall occur with respect to any indebtedness owed to
the Bank by the Borrower or by the Guarantor other than the indebtedness
arising hereunder.
(l) A default shall occur with respect to any indebtedness of the
Borrower or the Guarantor with an aggregate outstanding principal amount in
excess of $250,000 (other than hereunder) or under any indenture or other
instrument under which any such debt has been issued or by which it is
governed and the expiration of the applicable period of grace, if any,
specified in such evidence of debt, indenture or other instrument.
(m) The rendering against the Borrower or the Guarantor of a final
judgment, decree or order for the payment of money in excess of $250,000
and failure to secure the same to the Bank's reasonable satisfaction or the
continuance of such judgment, decree or order unsatisfied and in effect for
any period of thirty consecutive days without a stay of execution.
(n) A writ of attachment, garnishment, levy or similar process shall
be issued against or served upon the Bank with respect to (i) any property
of the Borrower or the Guarantor in the possession of the Bank, or (ii) any
indebtedness of the Bank to the Borrower or the Guarantor, and such process
shall not be vacated or secured to the Bank's satisfaction within thirty
days.
(o) The Guarantor shall repudiate or purport to revoke the Guaranty.
(p) An "Event of Default" (as defined thereunder) shall occur under
the Ground Sublease or the Ground Lease.
Section 6.2 Rights and Remedies. Upon the occurrence of an Event of
-------------------
Default the Bank may, at its option, exercise any and all of the following
rights and remedies (and any other rights and remedies available to it):
(a) The Bank may, by written notice to the Borrower, declare
immediately due and payable all unpaid principal of and accrued interest on
the Notes, together with all other sums payable hereunder or under the
Security Documents, and the same shall thereupon be immediately due and
payable without presentment or other demand, protest, notice of dishonor or
any other notice of any kind, all of which are hereby expressly waived;
provided, however, that upon the filing of a petition by the Borrower
-------- -------
seeking protection under the United States Bankruptcy Code, the principal
of and all accrued interest on the Notes shall be automatically due and
payable without any notice to or demand on the Borrower, the Guarantor or
any other party.
(b) The Bank shall have the right, in addition to any other rights
provided by law, to enforce its rights and remedies under the Security
Documents and the Guarantor Documents.
Section 6.3 Gaming Laws.
-----------
(a) The Bank acknowledges, understands and agrees that the rules
and regulations of the Gaming Commission (together with the Indiana Riverboat
Gambling Act, the "Gaming Laws") may impose certain licensing or transaction
approval requirements prior to the exercise of the rights and remedies granted
to it under the Security Documents or Guaranty Documents with respect to the
vessel subject to the Gaming Laws. In particular, the Bank acknowledges,
understands and agrees that it may not take a direct possessory interest in any
gaming equipment, but
may exercise rights only through an agent appropriately licensed or approved by
the Indiana Gaming Commission.
(b) Notwithstanding any other provision of the Loan Documents to
the contrary, nothing in the Loan Documents shall (i) effect any transfer of any
ownership interest (within the meaning of 68 Indiana Administrative Code 5) in
the Borrower or (ii) effect any transfer, sale, purchase, lease or hypothecation
of, or any borrowing or loaning of money against, or any establishment of any
voting trust agreement or other similar agreement with respect to (all within
the meaning of Indiana Code 4-33-4-21), any certificate of suitability or any
Riverboat Gaming License heretofore or hereafter issued to any person, including
Borrower, under any of the Gaming Laws.
ARTICLE VII
Miscellaneous
-------------
Section 7.1 Indemnity. In addition to the payment of fees, costs and
---------
expenses pursuant to Section 7.2 hereof, the Borrower agrees to indemnify,
defend and hold harmless the Bank and any of its participants, parent
corporations, subsidiary corporations, affiliated corporations, successor
corporations, and all present and future officers, directors, employees and
agents of the foregoing (the "Indemnitees"), from and against (a) any and all
transfer taxes, documentary taxes, assessments or charges incurred by delivery
of any Loan Document, and (b) any and all liabilities, losses, damages,
penalties, judgments, suits, claims, costs and expenses of any kind or nature
whatsoever (including, without limitation, the reasonable fees and disbursements
of counsel) in connection with any investigative, administrative or judicial
proceedings, whether or not such Indemnitee shall be designated a party thereto,
which may be imposed on, incurred by or asserted against such Indemnitee, in any
manner relating to or arising out of or in connection with the Loan Documents or
the use or intended use of the proceeds of the Term Loan or the operation of the
Hotel or the Riverboat (the "Indemnified Liabilities"). If any investigative,
judicial or administrative proceeding arising from any of the foregoing, is
brought against any Indemnitee, upon request of such Indemnitee, the Borrower,
or counsel designated by the Borrower and reasonably satisfactory to the
Indemnitee, will resist and defend such action, suit or proceeding to the extent
and in the manner reasonably directed by the Indemnitee, at the Borrower's sole
cost and expense. If the foregoing undertaking to indemnify, defend and hold
harmless may be held to be unenforceable because it violates any law or public
policy, the Borrower shall nevertheless make the maximum contribution to the
payment and satisfaction of each of the Indemnified Liabilities which is
permissible under applicable law. The obligation of the Borrower under this
Section 7.1 shall survive the termination of this Agreement and the discharge of
the Borrower's other obligations under this Agreement.
Section 7.2 Fees. The Borrower shall pay on demand all placement fees,
----
appraisal fees, survey fees, environmental assessment fees, recording fees,
license and permit fees, inspection fees, title insurance and other insurance
premiums
incurred by the Bank in connection with the Loan Documents and the transactions
contemplated hereby and thereby, and all other reasonable costs and expenses
incurred by the Bank in connection with the negotiation, preparation, execution,
review, recording, administration or enforcement of the Loan Documents and the
other instruments and documents to be delivered in connection therewith,
including the reasonable fees and out-of-pocket expenses of counsel for the Bank
with respect thereto. All such costs, expenses and fees shall become additional
indebtedness of the Borrower secured by the Security Documents and guaranteed by
the Guaranty. Unless the Borrower and the Bank agree in writing to other terms
of repayment, such amounts shall be due and payable immediately upon their
disbursement by the Bank, and shall bear interest from the time of such
disbursement at highest annual rate then in effect under the Notes.
Section 7.3 Notice. All notices and other communications provided for
------
under this Agreement, the Notes and the Security Documents shall be in writing
and mailed or telecopied or personally delivered or delivered by overnight
carrier, to the applicable party at its address indicated below:
If to the Borrower:
Xxxxx Indiana, Inc.
Xxx Xxxxxxxxxx Xxxxxx Xxxxx
Xxxx, Xxxxxxx 00000
Attention: General Manager
Telecopier: 219.977.7395
With a copy to:
Xxxxx Xxxxxxx Xxxxxxxx
Xxxxxx, Xxxxxx & Xxxxxxxx
0 Xxxxxxxxxxxx Xxxxx
Post Office Box 1991
Morristown, New Jersey 07962-1991
Telecopier: 973.292.1767
If to the Bank:
Firstar Bank, N.A.
00 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Division Head - Division A
Telecopier: 312.641.0494
With a copy to:
Faegre & Xxxxxx LLP
00 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxx, Xx.
Telecopier: 000.000.0000
or, as to each party, at such other address or telecopy number as shall be
designated in a written notice to the other party. Each such notice or
communication shall be effective (i) if given by mail, two (2) Business Days
after such notice or communication is deposited in the mail with first class
postage prepaid, addressed as aforesaid, (ii) if given by telecopy, when sent to
the aforesaid telecopy number, (iii) if personally delivered, when personally
delivered and (iv) if delivered by overnight carrier, one (1) Business Day after
deposit with the overnight carrier for next Business Day delivery, addressed as
aforesaid; except that notices to the Bank pursuant to the provisions of Article
II hereof shall not be effective until received by the Bank.
Section 7.4 Time of Essence. Time is of the essence in the performance
---------------
of this Agreement.
Section 7.5 Binding Effect and Assignment. This Agreement shall be
-----------------------------
binding upon and inure to the benefit of the Borrower, the Bank and their
respective successors and assigns, except that the Borrower may not transfer or
assign its rights hereunder without the prior written consent of the Bank. No
other Person shall be or become a third-party beneficiary of this Agreement.
Section 7.6 Amendment; Waiver. No amendment or waiver of any provision
-----------------
of any Loan Document, nor consent to any departure by the Borrower therefrom,
shall in any event be effective unless the same shall be in writing and signed
by the Bank and, in the case of an amendment, by the Borrower, and then such
amendment, waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given. No delay on the part of the Bank
in exercising any right or remedy hereunder shall operate as a waiver thereof,
nor shall any single or partial exercise of any right or remedy preclude other
or future exercise thereof or the exercise of any other right or remedy.
Section 7.7 Remedies Cumulative. The rights and remedies of the Bank set
-------------------
forth hereunder are cumulative and not exclusive of any rights or remedies which
the Bank would otherwise have.
Section 7.8 Marshaling; Payments Set Aside. The Bank shall be under no
------------------------------
obligation to marshal any assets in favor of the Borrower or any other Person or
against or in payment of the Notes or other indebtedness of the Borrower to the
Bank. To the extent that the Borrower makes a payment or payments to the Bank or
the Bank exercises its rights of setoff, and such payment or payments or the
proceeds of such setoff or any part thereof are subsequently invalidated,
declared to be fraudulent or preferential, set aside and/or required to be
repaid to a trustee, receiver or any other Person under any bankruptcy law,
state or federal law, common law or equitable cause, then to the extent of such
recovery, the obligation or part thereof originally intended to be satisfied
shall be revived and continued in full force and effect as if such payment had
not been made or such enforcement or setoff had not occurred.
Section 7.9 Article and Section Titles. The Article and Section titles
--------------------------
contained in this Agreement shall be without substantive meaning or content of
any kind whatsoever and shall not govern the interpretation of any of the
provisions of this Agreement.
Section 7.10 Reliance by the Bank. All covenants, agreements,
--------------------
representations and warranties made herein and in any Loan Document by the
Borrower shall, notwithstanding any investigation by the Bank, be deemed to be
material to and to have been relied upon by the Bank and all such
representations and warranties shall survive the execution and delivery of this
Agreement.
Section 7.11 Governing Law and Entire Agreement. This Agreement and the
----------------------------------
Notes issued hereunder shall be governed by the laws of the State of Illinois.
This Agreement and the Loan Documents contain the entire agreement of the
parties on the matters covered herein and therein. No other agreement, statement
or promise made by any party or by any employee, officer, or agent of any party
that is not in writing and signed by all the parties to this Agreement shall be
binding.
Section 7.12 Counterparts. This Agreement may be executed in any number
------------
of counterparts, each of which, when so executed and delivered, shall be an
original, but such counterparts shall together constitute one and the same
instrument.
Section 7.13 Construction. Whenever possible, each provision of this
------------
Agreement, the Notes and the Security Documents and any other statement,
instrument or transaction contemplated hereby or thereby or relating hereto or
thereto shall be interpreted in such manner as to be effective and valid under
such applicable law, but, if any provision of this Agreement, the Notes and the
Security Documents or any other statement, instrument or transaction
contemplated hereby or thereby or relating hereto or thereto shall be held to be
prohibited or invalid under such applicable law, such provision shall be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Agreement, the Notes and the Security Documents or any other statement,
instrument or transaction contemplated hereby or thereby or relating hereto or
thereto. The parties shall endeavor in good-faith negotiations to replace any
invalid, illegal or unenforceable provisions with a valid provision the economic
effect of which comes as close as possible to that of the invalid, illegal or
unenforceable provision.
Section 7.14 Inconsistency. In the event that any of the terms and
-------------
provisions of this Agreement are inconsistent with any of the terms and
provisions of the Notes or the Security Documents, the terms and provisions of
this Agreement shall govern.
Section 7.15 Consent to Jurisdiction. To the extent it may legally do
-----------------------
so, the Borrower irrevocably (a) agrees that any suit, action or other legal
proceeding arising out of or relating to this Agreement, the Notes or the
Security Documents may be brought in a court of record in Xxxx County, Illinois
or in the Courts of the United States located in such county, (b) consents to
the jurisdiction of each such court in any suit, action or proceeding, (c)
waives any objection which it may have to the laying of venue of any such suit,
action or proceeding in any such courts and any claim that any such suit, action
or proceeding has been brought in an inconvenient forum, and (d) agrees that a
final judgment in any such suit, action or proceeding shall be conclusive and
may be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law.
Section 7.16 WAIVER OF JURY TRIAL. THE BORROWER AND THE BANK HEREBY
--------------------
IRREVOCABLY WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE NOTES OR ANY
SECURITY DOCUMENT TO WHICH IT IS A PARTY OR ANY INSTRUMENT OR DOCUMENT DELIVERED
THEREUNDER OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
(Signature Page Follows)
IN WITNESS WHEREOF, this Agreement has been duly executed as of the day
and year first above written.
XXXXX INDIANA, INC.
BY: /s/ Xxxx X. Xxxxx
-----------------
Name: Xxxx X. Xxxxx
Title: Treasurer
FIRSTAR BANK, N.A.
BY: /s/ Xxxxxxx X. Xxxxxxx
----------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
Exhibit A
TRANCHE I PROMISSORY NOTE
$15,175,000 Gary, Indiana
_______________________, 2001
For value received, the undersigned, Xxxxx Indiana, Inc., a Delaware
corporation, hereby promises to pay to the order of Firstar Bank, N.A. (the
"Bank"), at its office at 00 Xxxxx Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, or
at such other place as may be designated in writing by the holder of this Note,
in lawful money of the United States of America, the principal sum of Fifteen
Million One Hundred Seventy-five Thousand Dollars and No Cents ($15,175,000),
together with interest on the unpaid principal hereof calculated on the basis of
a 360 day year for the actual number of days elapsed, from the date hereof until
this Note is fully paid.
This Note is the "Tranche I Note" referred to in the Term Loan Agreement of
even date herewith, by and between the undersigned and the Bank (the "Term Loan
Agreement"). Capitalized terms used in this Note and not otherwise defined
herein have the meanings ascribed to such terms in the Term Loan Agreement.
Interest shall accrue on the unpaid principal balance of this Note at one or
more rates determined pursuant to the Term Loan Agreement. Payments received by
the Bank from the undersigned from time to time shall be applied to Obligations,
including the principal balance of the indebtedness evidenced by this Note and
interest accruing thereon from time to time, in the manner specified in the Term
Loan Agreement. Payment of this Note is secured by the Ship Mortgage.
The Term Loan Agreement specifies Events of Default as well as the Bank's
rights and remedies following the occurrence of an Event of Default. Such rights
and remedies include, without limitation, the right to declare immediately due
and payable all unpaid principal of and accrued interest under this Note. The
Term Loan Agreement also provides that upon the filing of a petition by the
undersigned seeking protection under the United States Bankruptcy Code, the
principal of and all accrued interest on this Note shall be automatically due
and payable without any notice to or demand on the undersigned or any other
party.
The undersigned hereby waives presentment for payment, protest, and notice
of nonpayment. The undersigned will reimburse the Bank for costs of
administering and enforcing payment of this Note, as provided in the Term Loan
Agreement.
In witness whereof, the undersigned has executed this Note as of the date
first written above.
XXXXX INDIANA, INC.
By_________________________________
Its________________________________
Exhibit B
TRANCHE II PROMISSORY NOTE
$12,325,000 Gary, Indiana
_______________________, 2001
For value received, the undersigned, Xxxxx Indiana, Inc., a Delaware
corporation, hereby promises to pay to the order of Firstar Bank, N.A. (the
"Bank"), at its office at 00 Xxxxx Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, or
at such other place as may be designated in writing by the holder of this Note,
in lawful money of
the United States of America, the principal sum of Twelve Million Three Hundred
Twenty-five Thousand Dollars and No Cents ($12,325,000), together with interest
on the unpaid principal hereof calculated on the basis of a 360 day year for the
actual number of days elapsed, from the date hereof until this Note is fully
paid.
This Note is the "Tranche II Note" referred to in the Term Loan Agreement
of even date herewith, by and between the undersigned and the Bank (the "Term
Loan Agreement"). Capitalized terms used in this Note and not otherwise defined
herein have the meanings ascribed to such terms in the Term Loan Agreement.
Interest shall accrue on the unpaid principal balance of this Note at one or
more rates determined pursuant to the Term Loan Agreement. Payments received by
the Bank from the undersigned from time to time shall be applied to Obligations,
including the principal balance of the indebtedness evidenced by this Note and
interest accruing thereon from time to time, in the manner specified in the Term
Loan Agreement. Payment of this Note is secured by the Security Documents.
The Term Loan Agreement specifies Events of Default as well as the Bank's
rights and remedies following the occurrence of an Event of Default. Such rights
and remedies include, without limitation, the right to declare immediately due
and payable all unpaid principal of and accrued interest under this Note. The
Term Loan Agreement also provides that upon the filing of a petition by the
undersigned seeking protection under the United States Bankruptcy Code, the
principal of and all accrued interest on this Note shall be automatically due
and payable without any notice to or demand on the undersigned or any other
party.
The undersigned hereby waives presentment for payment, protest, and notice
of nonpayment. The undersigned will reimburse the Bank for costs of
administering and enforcing payment of this Note, as provided in the Term Loan
Agreement.
In witness whereof, the undersigned has executed this Note as of the date
first written above.
XXXXX INDIANA, INC.
By_________________________________
Its________________________________
Exhibit C
FORM OF COMPLIANCE CERTIFICATE
Financial Statement Date: ________________, 200__
To: Firstar Bank, N.A.
00 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: ____________________________
Reference is made to that certain Term Loan Agreement, dated as of March
30, 2001 (as amended, restated, extended, supplemented or otherwise modified in
writing from time to time, the "Agreement;" the terms defined therein being used
---------
herein as therein defined), between Xxxxx Indiana, Inc., a Delaware corporation
(the "Borrower"), and Firstar Bank, N.A. (the "Bank").
--------
The undersigned hereby certifies as of the date hereof that he/she is the
____________________________ of the Borrower, and that, as such, he/she is
authorized to execute and deliver this Certificate to the Bank on the behalf of
the Borrower, and that:
[Use following for fiscal year-end financial statements]
1. Attached hereto as Schedule 1 are the year-end audited financial
----------
statements required by Section 5.1(c) of the Agreement for the fiscal year of
--------------
the Borrower ended as of the above date, together with the report and opinion of
an independent certified public accountant required by such section.
[Use following for fiscal quarter-end financial statements]
1. Attached hereto as Schedule 1 are the unaudited financial statements
----------
required by Section 5.1(a) of the Agreement for the month and 12-month period
--------------
ended as of the above date. Such financial statements fairly present the
financial condition, results of operations and cash flows of the Borrower in
accordance with GAAP as at such date and for such month and 12-month period,
subject only to normal year-end audit adjustments and the absence of footnotes.
2. The undersigned has reviewed and is familiar with the terms of the
Agreement and has made, or has caused to be made under his/her supervision, a
detailed review of the transactions and condition (financial or otherwise) of
the Borrower during the accounting period covered by the attached financial
statements.
3. A review of the activities of the Borrower during such fiscal period
has been made under the supervision of the undersigned with a view to
determining whether during such fiscal period the Borrower performed and
observed all its Obligations under the Loan Documents, and
[select one:]
[to the best knowledge of the undersigned during such fiscal period, the
Borrower performed and observed each covenant and condition of the Loan
Documents applicable to it.]
--or--
[the following covenants or conditions have not been performed or observed
and the following is a list of each such Default or Event of Default and its
nature and status:]
4. The Financial covenant analyses and information set forth on Schedule
--------
2 attached hereto are true and accurate on and as of the date of this
-
Certificate.
IN WITNESS WHEREOF, the undersigned has executed this Certificate as of
________________________________, 200__.
XXXXX INDIANA, INC
By:__________________________________
Name:________________________________
Title:_______________________________
For the Quarter/Year ended ___________________ ("Statement Date")
--------------
SCHEDULE 2
to the Compliance Certificate
I. Section 5.19 -- Capital Expenditures.
A. Capital expenditures made during fiscal year to date: $___________
B. Maximum annual expenditures: $___________
C. Excess (deficient) for covenant compliance (Line I.B
- I.A): $___________
II. Section 5.18 -Tangible Net Worth.
A. Actual Tangible Net Worth at Statement Date:
1. Shareholders' Equity: $___________
2. Intangible Assets: $___________
3. Tangible Net Worth (Line II.A1 less Line
----
II.A.2): $___________
B. Minimum required Consolidated Tangible Net
Worth: $20,000,000
------------
C. Excess (deficient) for covenant compliance (Line II.A
- II.B): $___________
Section 5.17 - Fixed Charge.
A. Earnings for 12 month period ending on above date
("Subject Period"): $_________
--------------
1. Interest Charges for Subject Period: $_________
2. Provision for income taxes for Subject Period: $_________
3. Depreciation expenses for Subject Period: $_________
4. Amortization expenses for Subject Period: $
6. Marketing and City of Xxxx Fees Expensed: $_________
B. EBITDAM (Lines III.A.1 + 2 + 3 + 4 + 5): $_________
1. Operating Lease Payments for Subject Period $_________
2. Cash payments of income taxes for Subject
Period: $________________________________
3. Maintenance capital expenditures for Subject
Period: $________________________________
C. Modified EBITDAM (Lines III.B + Line III.B.1 - Lines
III.B.2 and 3): $_________
D. Principal and Interest Payments on Senior Funded Debt
excluding capital leases for Subject Period: $_________
E. Next 12 months' scheduled Principal and Interest
Payments for Senior Funded Debt excluding capital
leases, per Section 5.17. $________________________________
F. Capital lease Payments for Subject Period: $_________
G. Fixed Charge Coverage Ratio (Line III.C / sum of greater
of Line III.D or Line III.E plus Line III.F) _________ to 1
----
IV. Section 5.16 - Debt to EBITDAM Ratio.
A. Senior Funded Debt at Statement Date: $
-----------------
B. EBITDAM for Subject Period (Line III.B above): $
-----------------
C. EBITDAM computed for last six months x 2: $
-----------------
D. Ratio of Senior Funded Debt to EBITDAM (Line IV.A /
greater of Line IV.B or Line IV. C):
Maximum permitted:
Fiscal Quarters EndingMaximum Leverage RatioClosing Date through
____________________, ________________________, ______ through
____________________,________________________ ____ and each fiscal quarter
thereafter
Exhibit D
FORM OF LOAN NOTICE
Date: __________________, 200___
To: Firstar Bank, N.A.
00 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: __________________
Reference is made to that certain Term Loan Agreement, dated as of
March 30, 2001 (as amended, restated, extended, supplemented or otherwise
modified in writing from time to time, the "Agreement"; the terms defined
---------
therein being used herein as therein defined), between Xxxxx Indiana, Inc., a
Delaware corporation (the "Borrower"), and Firstar Bank, N.A.
-------
The undersigned hereby requests a conversion or continuation of Loan
Segments.
1. On ________________________, 200__ (a Business Day).
2. In the amount of $__________________.
3. Comprised of _______________________________________.
[Type of Loan Segment requested]
For Eurodollar Rate Loans: with an Interest Period of ______ months.
XXXXX INDIANA, INC.
By: _______________________
Name: _____________________
Title: ____________________
Exhibit E
Excess Cash Flow Calculation
Excess Cash Flow equals the sum of LTM EBITDAM
Plus (+): LTM Non-Operating Cash
Less (-): .* of LTM P+I on Senior Funded Debt (excluding capital leases)
or Pro Forma Debt Service
.LTM capital lease payments
.LTM unfinanced or unreserved capital expenditures paid in
cash
.LTM cash tax and license payments not deducted in EBITDAM
.LTM allowed cash payments in respect of Grid Note and
Marketing Debt
"LTM" means last twelve months';
"NTM" means next twelve months';
"P+I" means principal plus interest, and includes mandatory prepayments on
Senior Term Loan;
"Senior Term Loan" means the loan from the Bank to the Borrower in the original
principal amount of $27,500,000; and all other capitalized terms used herein
have the meanings ascribed to such terms in the Agreement to which this Exhibit
E is attached.
Schedule 4.2
Name
----
Xxxxx Indiana, Inc.
Chief Executive Office and
Principal Place of Business
---------------------------
* more than
Xxx Xxxxxxxxxx Xxxxxx Xxxxx
Xxxx, Xxxxxxx 00000
Equipment Locations
-------------------
Xxx Xxxxxxxxxx Xxxxxx Xxxxx
Xxxx, Xxxxxxx 00000
0000 X. Xxxxxxxxxx Xxxxxxx
Xxxx, Xxxxxxx 00000
Schedule 5.10
Existing Indebtedness
LenderBalance as of 4/1/01Madison Leasing$2,167,425Prime
--------------------------
Leasing8,725Danka135,189Shufflemaster117,366Williams Gaming 645,218
-------
TOTAL$3,971,694
