Exhibit 10.2
PUT AGREEMENT
This PUT AGREEMENT (this "AGREEMENT") is made and entered into
as of July 11, 2001 by and among Xxxxxx'x Entertainment, Inc., a Delaware
corporation ("HET"), Xxxxxx'x Operating Company, Inc., a Delaware corporation
("HOC") and HCAL Corporation, a Nevada corporation ("HCAL"; together with HET
and HOC, the "Purchasers") and Xxxxx Fargo Bank, National Association, as
Administrative Agent for the Lenders party to the Loan Agreement referred to
below (in such capacity, together with its successors in such capacity, the
"ADMINISTRATIVE AGENT"). All capitalized terms not otherwise specifically
defined in the body of this Agreement shall have the meanings given them in
Section 1.1 of the Loan Agreement referred to below and, to the extent not
inconsistent therewith, in the Five Year Loan Agreement, dated as of April 30,
1999, among Xxxxxx'x Operating, Marina Associates, a New Jersey general
partnership, Xxxxxx'x, the Lenders, Syndication Agent, Documentation Agents and
Co-Documentation Agents named therein, and Bank of America, N.A., formerly known
as Bank of America National Trust and Savings Association, as Administrative
Agent, as amended by that certain Amendment No. 1 to Five Year Loan Agreement,
dated as of April 3, 2000 and that certain Amendment No. 2 to Five Year Loan
Agreement, dated as of April 26, 2001, all attached hereto as Exhibit A and
incorporated herein by reference (as so amended, the "XXXXXX'X CREDIT
AGREEMENT"), and the rules of interpretation set forth in Section 1.6 of the
Loan Agreement shall be applicable to this Agreement. Notwithstanding any
contrary rule of interpretation set forth in Section 1.6 of the Loan Agreement,
(i) each reference in this Agreement to the "Xxxxxx'x Credit Agreement" shall
mean the Xxxxxx'x Credit Agreement without giving effect to (x) any amendment,
supplement or other modification of the Xxxxxx'x Credit Agreement entered into
by the parties thereto (regardless of the effective date thereof) other than the
amendments specifically described above, unless Exhibit A to this Agreement is
amended to include such amendment, supplement or other modification by an
instrument in writing signed by the Purchasers and the Administrative Agent
(with the consent of the Lenders as specified in Section 11.2 of the Loan
Agreement) or (y) any termination of the Xxxxxx'x Credit Agreement and (ii) the
determination of whether any "Default" or "Event of Default" under the Xxxxxx'x
Credit Agreement has occurred (including, without limitation, for purposes of
Section 1.06(a)) shall be made without giving effect to any waivers or consents
granted by the lenders party to the Xxxxxx'x Credit Agreement.
R E C I T A L S:
- - - - - - - -
WHEREAS:
A. Reference is made to that certain Loan Agreement, dated as
of July 11, 2001, by and among Xxxxxx San Luiseno Band of Mission Indians, a
federally recognized Indian Tribe and Native American sovereign nation doing
business as the Xxxxxx Casino (the "BORROWER"), the lenders named therein
(collectively, the "LENDERS" and individually, a "LENDER"), Commerzbank AG, New
York and Grand Cayman Branches, as Syndication Agent, Credit Lyonnais Los
Angeles Branch, as Documentation Agent and Xxxxx Fargo Bank, National
Association, as Administrative Agent and L/C Issuer (as amended, restated,
supplemented, modified, refinanced, replaced or substituted from time to time,
the "LOAN AGREEMENT").
B. Pursuant to the Loan Agreement and on the terms and subject
to the conditions specified therein, including the condition that this Agreement
be executed and delivered, the Lenders have agreed to establish a senior
unsecured construction loan and reducing revolving credit facility in favor of
the Borrower in the maximum principal amount of $125,000,000.
C. As a condition to the obligations of the Lenders under the
Loan Agreement, the Lenders have required that the Purchasers grant the
Administrative Agent, on behalf of the Lenders, a put option to sell, transfer
and assign all of the Administrative Agent's and the Lenders' right, title and
interest in and to the Obligations and the Loan Documents (collectively, the
"TRANSFERRED INTERESTS") to any one or more of the Purchasers and to cause each
of the Purchasers to accept, purchase and pay for the Transferred Interests to
be sold, transferred and assigned to it, and the Purchasers are willing to grant
such put option on the terms and subject to the conditions set forth below.
NOW, THEREFORE, to induce the Administrative Agent and the
Lenders to enter into, and to extend credit under, the Loan Agreement and the
other Loan Documents, and for other valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
PUT OPTION
Section 1.01 GRANT OF PUT OPTION. Each Purchaser does hereby irrevocably
grant to the Administrative Agent, on behalf of the Lenders, the option and
right (the "PUT OPTION") to sell, transfer, and assign the Transferred Interests
to any one or more of the Purchasers and to cause such of the Purchasers to
accept, purchase and pay for the Transferred Interests on the terms and subject
to the conditions set forth herein.
Section 1.02 PUT OPTION TERM. The term of the Put Option shall commence on
the date of this Agreement and remain in effect until all commitments to lend
under the Loan Agreement have been terminated, the Obligations have been
indefeasibly paid in full in cash and all Letters of Credit have expired.
Section 1.03 TERMS AND CONDITIONS. Upon the occurrence and at any time
during the continuance of any one or more of the events described in Section
1.06 below (each, a "PUT OPTION EVENT"), the Purchaser or Purchasers designated
by the Administrative Agent shall, upon the written request of the
Administrative Agent (a "PUT OPTION NOTICE"), (a) purchase pro rata from the
Administrative Agent and the Lenders, without recourse and without
representation or warranty, express or implied, on a date specified in such
Purchase Option Notice which shall be not less than 3 nor more than 10 Business
Days following the date of delivery of such Put Option Notice, the Transferred
Interests at a price equal to the Purchase Price (as defined in Section 1.04
below) and (b) cause a financial institution reasonably acceptable to the L/C
Issuer to issue letters of credit to replace or support any outstanding Letters
of Credit issued by the L/C Issuer not later than the Purchase Date (as defined
below). If the Administrative Agent designates more than one Purchaser to
purchase the Transferred Interests, the obligation of the designated Purchasers
to accept and pay for such Transferred Interests shall be joint and several. To
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evidence the sale, transfer and assignment of the Transferred Interests to the
designated Purchaser or Purchasers, but not as a condition thereof, as
expeditiously as reasonably practical, the designated Purchaser or Purchasers
and the Administrative Agent and the Lenders shall execute and deliver an
Assignment and Assumption Agreement (the "ASSIGNMENT") in the form of Exhibit B
hereto. In addition, but not as a condition to the obligation of each designated
Purchaser to pay the Purchase Price, each Lender shall execute and deliver to
the Purchasers, as expeditiously as reasonably practical, an endorsement to its
Note (each, an "ENDORSEMENT"), without recourse and without representation or
warranty, express or implied, in the form of Exhibit C hereto, and such
additional assignments of the Loan Documents (together with the Assignment and
Endorsements, the "ASSIGNMENT DOCUMENTATION") as are reasonably necessary to
assign or otherwise transfer the Transferred Interests to the Purchasers. The
inability, by reason of injunction or tribal, judicial or other governmental
action, law or regulation, of the Administrative Agent or any Lender to sell,
transfer or assign the Transferred Interests or to execute and deliver the
Assignment or an Endorsement shall not in any way affect, reduce or defer the
obligation of each designated Purchaser to pay the Purchase Price on the
Purchase Date. The inability of any Lender to physically present its Note shall
not in any way affect, reduce or defer the obligation of each designated
Purchaser to pay the Purchase Price on the Purchase Date.
Section 1.04 PURCHASE PRICE AND PURCHASE DATE. The purchase price (the
"PURCHASE PRICE") shall be equal to the sum of: (i) the outstanding principal
balance of the Loans on the Purchase Date (as defined below), (ii) all
Unreimbursed Amounts outstanding on the Purchase Date, (iii) all accrued and
unpaid interest thereon as of the Purchase Date and (iv) all fees, advances,
late charges, attorneys' fees and expenses and other amounts owing pursuant to
the Loan Documents as of the Purchase Date. The Purchasers shall pay the
Purchase Price by wire transfer or other immediately available funds available
to the Administrative Agent at the Administrative Agent's Office. Upon receipt
by the Administrative Agent, for the benefit of the Lenders, of the Purchase
Price as aforesaid and a duplicate original of the Assignment duly executed by
the Purchasers, each Lender shall promptly deliver the Assignment Documentation
and the original Loan Documents to the Purchasers (the date upon which the
Administrative Agent receives such funds is herein referred to as the "PURCHASE
DATE").
Section 1.05 NO WARRANTIES OR RECOURSE. It is expressly understood and
agreed to by the Purchasers that in the event the Administrative Agent, on
behalf of the Lenders, exercises the Put Option, the Administrative Agent and
the Lenders will assign the Transferred Interests, without recourse and without
representation or warranty, express or implied, except that the Administrative
Agent and the Lenders are the legal and beneficial owners of the interests being
assigned by them under the Assignment Documentation and that such interests are
free and clear of any Lien or other adverse claim created by the Administrative
Agent or the Lenders.
Section 1.06 PUT OPTION EVENTS. The occurrence of any of the following
shall constitute a "Put Option Event":
(a) The occurrence of any Default or Event of Default under, and as
defined in, the Xxxxxx'x Credit Agreement, other than a Default which is cured
within any applicable grace period set forth in the Xxxxxx'x Credit Agreement;
or
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(b) The occurrence of any Event of Default under the Loan Agreement;
or
(c) Any Purchaser fails to perform or observe any other covenant or
agreement contained in this Agreement on its part to be performed or observed
within thirty days after such failure to perform or observe such covenant or
agreement; or
(d) Any representation or warranty made by any Purchaser in this
Agreement, or in any certificate delivered pursuant to this Agreement, proves to
have been incorrect when made or reaffirmed in any material respect; or
(e) (i) HET or any of its subsidiaries shall xxxxx x Xxxx to the
Xxxxxx'x Administrative Agent (as defined in Section 4.04(a) below) and/or the
Xxxxxx'x Lenders (as defined in Section 4.04(a) below) on the Proposed Xxxxxx'x
Group Collateral (as defined in Section 4.04(a) below) and (ii) the consent
described in Section 4.04(a) below shall have not been obtained, either because
it was requested and not timely given or because it was not requested; or
(f) Section 4.04(b) of this Agreement shall be operative and HET or
HOC shall fail to comply in any respect with said Section 4.04(b).
ARTICLE II
ACKNOWLEDGMENTS, WAIVERS AND CONSENTS
Section 2.01 RIGHTS OF THE ADMINISTRATIVE AGENT AND THE LENDERS. Each
Purchaser acknowledges that the obligations undertaken by it under this
Agreement are absolute, irrevocable and unconditional under any and all
circumstances. In full recognition and in furtherance of the foregoing, each
Purchaser agrees that, without affecting the enforceability or effectiveness of
this Agreement in accordance with its terms and without affecting, limiting,
reducing, discharging or terminating the liability of such Purchaser, or the
rights, remedies, powers and privileges of the Administrative Agent and the
Lenders under this Agreement, the Administrative Agent and the Lenders may, at
any time and from time to time and without notice or demand of any kind or
nature whatsoever:
(a) amend, supplement, modify, extend, renew, waive, accelerate or
otherwise change the time for payment or performance of, or the terms of, all or
any part of the Obligations (other than increasing the principal amount
thereof);
(b) amend, supplement, modify, extend, renew, waive or otherwise
change, or enter into or give, any Loan Document or any agreement, security
document, guarantee, approval, consent or other instrument with respect to all
or any part of the Obligations, any Loan Document or any such other instrument
or any term or provision of the foregoing;
(c) accept or enter into new or additional agreements, security
documents, guarantees (including letters of credit) or other instruments in
addition to, in exchange for or relative to any Loan Document, all or any part
of the Obligations or any collateral now or in the future serving as security
for the Obligations;
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(d) accept or receive (including from any other Purchaser or
guarantor) partial payments or performance on the Obligations (whether as a
result of the exercise of any right, remedy, power or privilege or otherwise);
(e) accept, receive and hold any additional collateral for all or any
part of the Obligations (including from any other Purchaser or guarantor);
(f) release, reconvey, terminate, waive, abandon, allow to lapse or
expire, fail to perfect, subordinate, exchange, substitute, transfer, foreclose
upon or enforce any collateral, security documents or guarantees (including any
letter of credit or the obligations of any other Purchaser or guarantor) for or
relative to all or any part of the Obligations;
(g) apply any collateral or the proceeds of any collateral or
guarantee (including any letter of credit or the obligations of any other
Purchaser or guarantor) to all or any part of the Obligations in such manner and
extent as the Administrative Agent and the Lenders may in their discretion
determine;
(h) release any Person (including any other Purchaser or guarantor)
from any personal liability with respect to all or any part of the Obligations;
(i) settle, compromise, release, liquidate or enforce upon such terms
and in such manner as the Administrative Agent and the Lenders may in their
discretion determine or as applicable law may dictate all or any part of the
Obligations or any collateral on or guarantee of (including any letter of credit
issued with respect to) all or any part of the Obligations (including with any
other Purchaser or guarantor);
(j) consent to the merger or consolidation of, the sale of substantial
assets by, or other restructuring or termination of the existence of the
Borrower or any other Person (including any other Purchaser or guarantor); (k)
proceed against the Borrower, the Purchasers or any guarantor of (including any
issuer of any letter of credit issued with respect to) all or any part of the
Obligations or any collateral provided by any Person and exercise the rights,
remedies, powers and privileges of the Administrative Agent and the Lenders
under the Loan Documents or otherwise in such order and such manner as the
Administrative Agent and the Lenders may in their discretion determine, without
any necessity to proceed upon or against or exhaust any collateral, right,
remedy, power or privilege before proceeding to call upon or otherwise enforce
this Agreement;
(l) foreclose upon any deed of trust, mortgage or other instrument
creating or granting liens on any interest in real property by judicial or
nonjudicial sale or by deed in lieu of foreclosure, bid any amount or make no
bid in any foreclosure sale or make any other election of remedies with respect
to such liens or exercise any right of set-off;
(m) obtain the appointment of a receiver with respect to any
collateral for all or any part of the Obligations and apply the proceeds of such
receivership as the Administrative Agent and the Lenders may in their discretion
determine (it being agreed that nothing in this
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clause shall be deemed to make the Administrative Agent or any Lender a party in
possession in contemplation of law, except at its option);
(n) enter into such other transactions or business dealings with the
Borrower, any Subsidiary or Affiliate of the Borrower or any other Purchaser or
guarantor of all or any part of the Obligations as the Administrative Agent and
the Lenders may desire; and
(o) do all or any combination of the actions set forth in this
Section.
Section 2.02 WAIVERS. The enforceability and effectiveness of this
Agreement and the liability of any Purchaser, and the rights, remedies, powers
and privileges of the Administrative Agent and the Lenders under this Agreement
shall not be affected, limited, reduced, discharged or terminated, and each
Purchaser hereby expressly waives to the fullest extent permitted by law any
defense now or in the future arising, by reason of:
(a) the illegality, invalidity or unenforceability of all or any part
of the Obligations, any Loan Document or any agreement, security document,
guarantee or other instrument relative to all or any part of the Obligations;
(b) any disability or other defense with respect to all or any part of
the Obligations of the Borrower, the Purchasers or any guarantor of all or any
part of the Obligations (including any issuer of any letter of credit),
including the effect of any statute of limitations that may bar the enforcement
of all or any part of the Obligations or the obligations of any such other
purchaser or guarantor;
(c) any failure of the Borrower to properly authorize, execute or
deliver any Loan Document;
(d) the illegality, invalidity or unenforceability of any Loan
Document, security or guaranty (including any letter of credit) for all or any
part of the Obligations or the lack of perfection or continuing perfection or
failure of the priority of any lien on any collateral for all or any part of the
Obligations;
(e) the cessation, for any cause whatsoever, of the liability of the
Borrower, the Purchasers or any guarantor of all or any part of the Obligations;
(f) any failure of the Administrative Agent or any Lender to marshal
assets in favor of the Borrower or any other Person (including the Purchasers or
any guarantor), to exhaust any collateral for all or any part of the
Obligations, to pursue or exhaust any right, remedy, power or privilege it may
have against the Borrower, any guarantor of all or any part of the Obligations
(including any issuer of any letter of credit) or any other Person or to take
any action whatsoever to mitigate or reduce such or any other Purchasers'
liability under this Agreement, the Administrative Agent and the Lenders being
under no obligation to take any such action notwithstanding the fact that all or
any part of the Obligations may be due and payable and that the Borrower may be
in default of its obligations under any Loan Document;
(g) any failure of the Administrative Agent or any Lender to give
notice of sale or other disposition of any collateral (including any notice of
any judicial or nonjudicial
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foreclosure or sale of any interest in real property serving as collateral for
all or any part of the Obligations) for all or any part of the Obligations to
the Borrower, the Purchasers or any other Person or any defect in, or any
failure by the Borrower, the Purchasers or any other Person to receive, any
notice that may be given in connection with any sale or disposition of any
collateral;
(h) any failure of the Administrative Agent or any Lender to comply
with applicable laws in connection with the sale or other disposition of any
collateral for all or any part of the Obligations;
(i) any judicial or nonjudicial foreclosure or sale of, or other
election of remedies with respect to, any interest in real property or other
collateral serving as security for all or any part of the Obligations, even
though such foreclosure, sale or election of remedies may impair the subrogation
rights of the Purchasers or may preclude the Purchasers from obtaining
reimbursement, contribution, indemnification or other recovery from the
Borrower, any other Purchaser, any guarantor or any other Person and even though
the Borrower may not, as a result of such foreclosure, sale or election of
remedies, be liable for any deficiency;
(j) any benefits the Borrower, the Purchasers or any guarantor may
otherwise derive from Section 580a, 580b, 580d or 726 of the California Code of
Civil Procedure or any comparable provisions of the laws of any other
jurisdiction;
(k) any act or omission of the Administrative Agent or any Lender or
any other Person that directly or indirectly results in or aids the discharge or
release of the Borrower, the Purchasers or any guarantor of all or any part of
the Obligations or any security or guarantee (including any letter of credit)
for all or any part of the Obligations by operation of law or otherwise;
(l) any law which provides that the obligation of a surety or
guarantor must neither be larger in amount nor in other respects more burdensome
than that of the principal or which reduces a surety's or guarantor's obligation
in proportion to the principal obligation;
(m) any setoff, counterclaim or other claim which the Borrower, any
Purchaser or any guarantor has or alleges to have with respect to all or any
part of the Obligations;
(n) any failure of the Administrative Agent or any Lender to file or
enforce a claim in any bankruptcy or other proceeding with respect to any
Person;
(o) the election by the Administrative Agent or any Lender in any
bankruptcy proceeding of any Person of the application or nonapplication of
Section 1111(b)(2) of Title 11 of the United States Code (the "BANKRUPTCY
CODE");
(p) any extension of credit or the grant of any Lien under Section 364
of the Bankruptcy Code;
(q) any use of cash collateral under Section 363 of the Bankruptcy
Code;
(r) any agreement or stipulation with respect to the provision of
adequate protection in any bankruptcy proceeding of any Person;
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(s) the avoidance of any Lien in favor of the Administrative Agent or
any Lender for any reason;
(t) any bankruptcy, insolvency, reorganization, arrangement,
readjustment of debt, liquidation or dissolution proceeding commenced by or
against any Person, including any discharge of, or bar or stay against
collecting, all or any part of the Obligations (or any interest on all or any
part of the Obligations) in or as a result of any such proceeding;
(u) any action taken by the Administrative Agent or any Lender,
whether similar or dissimilar to any of the foregoing, that is authorized by
this Section or otherwise in this Agreement or by any other provision of any
Loan Document or any omission to take any such action;
(v) any failure of the Administrative Agent, any Lender or any
Purchaser to become or remain licensed by the Tribal Gaming Commission pursuant
to Section 6.4 of the Compact or otherwise, or by any other Governmental Agency
that holds or exercises licensing or permit authority over gambling, gaming or
casino activities conducted by the Borrower;
(w) any limitation, cancellation, revocation, termination,
conditioning, modification, suspension or restriction of or on any license or
permit issued by the Tribal Gaming Commission or other Governmental Agency to
the Administrative Agent, any Lender or any Purchaser;
(x) the illegality, invalidity or unenforceability of any agreement on
the part of the Borrower to arbitrate disputes arising out of the Loan Documents
or of any waiver by the Borrower of its sovereign immunity;
(y) the failure of any court, whether Federal, state or tribal, to
have jurisdiction over a dispute arising out of the Loan Documents;
(z) the failure of the Administrative Agent, any Lender or any
Purchaser to have an effective remedy against the Borrower with respect to any
default by the Borrower in the performance of its obligations under the Loan
Documents;
(aa) the fair market value of the Loans and other Obligations under
the Loan Agreement being less than the Purchase Price on the Purchase Date;
(bb) any assignment by the Borrower of the Loan Documents and the
assets of the Permanent Casino to an instrumentality of the Borrower or to a
corporation wholly-owned by the Borrower pursuant to Section 11.8(a) of the Loan
Agreement; and
(cc) any other circumstance whatsoever, whether similar or dissimilar
to any of the foregoing, that might otherwise constitute a legal or equitable
discharge or defense of a surety or guarantor, including by reason of California
Civil Code Sections 2787 to 2855, inclusive, and California Code of Civil
Procedure Sections 580a, 580b, 580d or 726, and all successor sections and any
future judicial decisions or legislation or of any comparable provisions of the
laws of any other jurisdiction.
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Section 2.03 SETOFFS, ETC.
(a) Each payment made by any Purchaser hereunder or under any other
Loan Document shall be made, without setoff, counterclaim or deduction of any
kind, to the Administrative Agent, at the Administrative Agent's Office, in
immediately available funds not later than 11:00 a.m., San Francisco, California
local time, on the day of payment.
(b) Each payment of any amount payable by any Purchaser under this
Agreement or any other Loan Document shall be made free and clear of, and
without reduction by reason of, any taxes, assessments, duties, levies, imposts,
deductions, charges or withholdings of any nature imposed by any Governmental
Agency, central bank or comparable authority, excluding taxes imposed on or
measured by the overall net income of any Lender or of its LIBOR Lending Office
(all such non-excluded taxes, assessments, duties, levies, imposts, deductions,
charges or withholdings being hereinafter referred to as "TAXES"). To the extent
that any Purchaser is obligated by applicable Laws to make any deduction or
withholding on account of Taxes from any amount payable to the Administrative
Agent or any Lender under this Agreement or any other Loan Document, such
Purchaser shall (i) make such deduction or withholding and pay the same to the
relevant Governmental Agency, central bank or comparable authority and (ii) pay
such additional amount to the Administrative Agent or such Lender, as the case
may be, as is necessary to result in the Administrative Agent's or such Lender's
receiving a net after-tax amount equal to the amount to which the Administrative
Agent or such Lender would have been entitled under this Agreement absent such
deduction or withholding. Within 30 days after paying any amount to the
Administrative Agent or any Lender from which it is required by law to make any
deduction or withholding, and within 30 days after it is required by law to
remit such deduction or withholding to any relevant Governmental Agency, central
bank or comparable authority, such Purchaser shall deliver to the Administrative
Agent or such Lender, as the case may be, evidence satisfactory to the
Administrative Agent or such Lender of such deduction, withholding or payment.
(c) Each Purchaser expressly waives, for the benefit of the
Administrative Agent and the Lenders, all presentments, demands for payment or
performance, notices of nonpayment or nonperformance, protests, notices of
protest, notices of dishonor and all other notices or demands of any kind or
nature whatsoever with respect to the Obligations, and all notices of acceptance
of this Agreement or of the existence, creation, incurring or assumption of new
or additional Indebtedness. Each Purchaser further expressly waives, for the
benefit of the Administrative Agent and the Lenders, the benefit of any and all
statutes of limitation and any and all laws providing for the exemption of
property from execution or for valuation and appraisal upon foreclosure, to the
maximum extent permitted by applicable law.
Section 2.04 UNDERSTANDING WITH RESPECT TO WAIVERS AND CONSENTS.
(a) Each Purchaser intends that its rights and obligations shall be
those expressly set forth in this Agreement and that its obligations shall not
be affected, limited, reduced, discharged or terminated by reason of any
principles or provisions of law which conflict with the terms of this Agreement.
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(b) Each Purchaser acknowledges that it benefits from the extensions
of credit made and to be made by the Lenders to the Borrower under the Loan
Agreement and the other Loan Documents.
(c) Each Purchaser warrants and agrees that each of the waivers and
consents set forth in this Agreement is made voluntarily and unconditionally
after consultation with outside legal counsel and with full knowledge of its
significance and consequences, with the understanding that events giving rise to
any defense or right waived may diminish, destroy or otherwise adversely affect
rights which such or any guarantor otherwise may have against the Borrower, the
Administrative Agent, any Lender or any other Person or against any collateral.
If, notwithstanding the intent of the parties that the terms of this Agreement
shall control in any and all circumstances, any such waivers or consents are
determined to be unenforceable under applicable law, such waivers and consents
shall be effective to the maximum extent permitted by law.
Section 2.05 FINANCIAL CONDITION OF THE BORROWER. Each Purchaser is fully
aware of the financial condition of the Borrower and is executing and delivering
this Agreement based solely upon such Purchaser's own independent investigation
of all matters pertinent hereto and is not relying in any manner upon any
representation or statement of the Lender. Each Purchaser represents and
warrants to the Administrative Agent and the Lenders that such Purchaser is in a
position to obtain, and each Purchaser hereby assumes full responsibility for
obtaining, any additional information concerning the Borrower's financial
condition and any other matter pertinent hereto as such Purchaser may desire,
and such Purchaser is not relying upon or expecting the Administrative Agent or
any Lender to furnish to such Purchaser any information now or hereafter in the
Administrative Agent's or any Lender's possession concerning the same or any
other matter. By executing this Agreement, each Purchaser knowingly accepts the
full range of risks encompassed within a contract of this type, which risks such
Purchaser acknowledges. None of the Purchasers shall have any right to require
the Administrative Agent or any Lender to obtain or disclose any information
with respect to the Obligations, the financial condition or character of the
Borrower or the Borrower's ability to pay the Obligations, the existence of any
collateral or security for any or all of the Obligations, the existence or
non-existence of any other guaranties of all or any part of the Obligations, any
action or non-action on the part of the Administrative Agent, any Lender, the
Borrower, or any other Person, or any other matter, fact or occurrence
whatsoever.
Section 2.06 REINSTATEMENT. The obligations of each Purchaser under this
Agreement shall be automatically reinstated if and to the extent that for any
reason any payment by or on behalf of the Borrower, any Purchaser, any guarantor
or any other Person or any other application of funds (including the proceeds of
any collateral for all or any part of the Obligations) in respect of all or any
part of the Obligations or the Purchase Price is rescinded or must be otherwise
restored by any holder of such Obligations or recipient of all or a portion of
the Purchase Price, whether as a result of any proceedings in bankruptcy,
reorganization or otherwise and each Purchaser agrees that it will indemnify the
Administrative Agent and each Lender on demand for all costs and expenses
(including fees and expenses of counsel) incurred by the Administrative Agent or
such Lender in connection with such rescission or restoration.
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Section 2.07 ABILITY TO EXERCISE REMEDIES. Each Purchaser acknowledges and
agrees that the giving of a Put Option Notice shall not in any way preclude the
enforcement of any other available remedies by the Administrative Agent or any
Lender under the Loan Documents.
Section 2.08 SEPARATE ACTION, ETC. The Administrative Agent may bring and
prosecute a separate action or actions against any designated Purchaser whether
or not the Borrower, any other Purchaser, any guarantor or any other Person is
joined in any such action or a separate action or actions are brought against
the Borrower, any other Purchaser, any guarantor or any other Person, or any
collateral for all or any part of the Obligations. The obligations of each
Purchaser under, and the effectiveness of, this Agreement are not conditioned
upon the existence or continuation of any guarantee (including any letter of
credit), or put arrangement with respect to, of all or any part of the
Obligations. By its acceptance hereof, each Lender agrees that this Agreement
may be enforced only by action of the Administrative Agent upon the instructions
of the Requisite Lenders and that no Lender shall have any right individually to
seek to enforce or to enforce this Agreement.
Section 2.09 REVOCATION. Each Purchaser hereby waives any right it may have
to revoke its obligations hereunder.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
In order to induce the Administrative Agent and the Lenders to
enter into the Loan Agreement, each Purchaser represents and warrants to the
Administrative Agent and the Lenders, as of the date hereof, as of the Closing
Date, and as of the date of the making of each Loan and each L/C Credit
Extension that:
Section 3.01 STATUS. Such Purchaser (i) is a duly organized and validly
existing corporation in good standing under the laws of the jurisdiction of its
organization, (ii) has the corporate power and authority to own its property and
assets and to transact the business in which it is engaged and presently
proposes to engage and (iii) is duly qualified and is authorized to do business
and is in good standing in each jurisdiction where the ownership, leasing or
operation of its property or the conduct of its business requires such
qualifications except for failures to be so qualified which, individually or in
the aggregate, could not reasonably be expected to have a material adverse
effect on the business, operations, property, assets, liabilities, condition
(financial or otherwise) or prospects of such Purchaser and its Subsidiaries
taken as a whole.
Section 3.02 POWER AND AUTHORITY; ENFORCEABILITY. Such Purchaser has the
corporate power and authority to execute, deliver and perform the terms and
provisions of each of the Loan Documents to which it is party and has taken all
necessary corporate action to authorize the execution, delivery and performance
by it of each of such Loan Documents. Such Purchaser has duly executed and
delivered each of the Loan Documents to which it is party, and each of such Loan
Documents constitutes its legal, valid and binding obligation enforceable in
accordance with its terms, except to the extent that the enforceability thereof
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or other similar laws generally affecting
11
creditors' rights and by equitable principles (regardless of whether enforcement
is sought in equity or at law).
Section 3.03 NO VIOLATION. Neither the execution, delivery or performance
by such Purchaser of the Loan Documents to which it is a party, nor compliance
by it with the terms and provisions thereof, (i) will contravene any provision
of any law, statute, rule or regulation or any order, writ, injunction or decree
of any court or governmental instrumentality, (ii) will conflict with or result
in any breach of any of the terms, covenants, conditions or provisions of, or
constitute a default under, or result in the creation or imposition of (or the
obligation to create or impose) any Lien upon any of the property or assets of
such Purchaser or any of its Subsidiaries pursuant to the terms of any
indenture, mortgage, deed of trust, credit agreement or loan agreement, or any
other material agreement, contract or instrument, to which such Purchaser or any
of its Subsidiaries is a party or by which it or any of its property or assets
is bound or to which it may be subject or (iii) will violate any provision of
the certificate of incorporation or by-laws (or equivalent organizational
documents) of such Purchaser.
Section 3.04 GOVERNMENTAL APPROVALS. No order, consent, approval, license,
authorization or validation of, or filing, recording or registration with
(except as have been obtained or made on or prior to the Closing Date), or
exemption by, any Governmental Agency, is required to authorize, or is required
in connection with, the execution, delivery and performance by the Purchasers of
any Loan Document.
Section 3.05 FINANCIAL STATEMENTS. The Purchasers have furnished to the
Administrative Agent and the Lenders the audited consolidated financial
statements of HET and its Subsidiaries (as defined in the Xxxxxx'x Credit
Agreement) for the fiscal year ended December 31, 2000. The financial statements
described above fairly present in all material respects the financial condition,
results of operations and changes in financial position of HET and its
Subsidiaries as of such dates and for such periods, in conformity with Generally
Accepted Accounting Principles, consistently applied.
Section 3.06 NO OTHER LIABILITIES; NO MATERIAL ADVERSE EFFECT. As of the
Closing Date, HET and its Subsidiaries (as defined in the Xxxxxx'x Credit
Agreement) do not have any material liability or material contingent liability
not reflected or disclosed in the financial statements described in Section
3.05, other than liabilities and contingent liabilities arising in the ordinary
course of business since the date of such financial statements. As of the
Closing Date, no circumstance or event has occurred that could reasonably be
expected to have a material adverse effect on the business, operations,
property, assets, liabilities, condition (financial or otherwise) or prospects
of such Purchaser and its Subsidiaries taken as a whole since December 31, 2000.
Section 3.07 LITIGATION. There are no actions, suits, proceedings or
investigations pending as to which HET or any of its Subsidiaries (as defined in
the Xxxxxx'x Credit Agreement) have been served or have received notice or, to
the knowledge of HET and the other Purchasers, threatened against or affecting
HET or any of its Subsidiaries or any Property of any of them before any
Governmental Agency in which there is any reasonable possibility of an adverse
decision which could materially adversely affect the business, consolidated
financial position or results of operations of HET and its Subsidiaries, taken
as a whole, or which in any
12
manner draws into question the validity or enforceability of the Loan Documents
to which it is a party.
Section 3.08 NO PUT OPTION EVENT. No event has occurred and is continuing
that is a Put Option Event.
Section 3.09 ERISA.
(a) With respect to each Pension Plan (as defined in the Xxxxxx'x
Credit Agreement):
(i) such Pension Plan complies in all material respects with
ERISA and any other applicable Laws to the extent that noncompliance could
reasonably be expected to have a Material Adverse Effect (as defined in the
Xxxxxx'x Credit Agreement);
(ii) such Pension Plan has not incurred any "accumulated
finding deficiency" (as defined in Section 302 of ERISA) that could reasonably
be expected to have a Material Adverse Effect;
(iii) no "reportable event" (as defined in Section 4043 of
ERISA)has occurred that could seasonably be expected to have a Material Adverse
Effect; and
(iv) neither HET nor any of its Subsidiaries (as defined in
the Xxxxxx'x Credit Agreement) has engaged in any non-exempt "prohibited
transaction" (as defined in Section 4975 of the Code (as defined in the Xxxxxx'x
Credit Agreement)) that could reasonably be expected to have a Material Adverse
Effect.
(b) Neither HET nor any of its Subsidiaries has incurred or expects to
incur any withdrawal liability to any Multiemployer Plan (as defined in the
Xxxxxx'x Credit Agreement) that could reasonably be expected to have a Material
Adverse Effect.
Section 3.10 TAX LIABILITY. HET and its Subsidiaries (as defined in the
Xxxxxx'x Credit Agreement) have filed all tax returns which are required to be
filed, and have paid, or made provision for the payment of, all taxes with
respect to the periods, Property or transactions covered by said returns, or
pursuant to any assessment received by HET or any of its Subsidiaries, except
(a) such taxes, if any, as are being contested in good faith by appropriate
proceedings and as to which adequate reserves have been established and
maintained and (b) immaterial taxes and tax returns so long as no material item
or portion of Property of HET or any of its Subsidiaries is in jeopardy of being
seized, levied upon or forfeited.
Section 3.11 DISCLOSURE. No written statement made by a Senior Officer (as
defined in the Xxxxxx'x Credit Agreement) of HET or any other Purchaser to the
Administrative Agent or any Lender in connection with this Agreement or the Loan
Agreement, or in connection with any Loan or Letter of Credit as of the date
thereof contained any untrue statement of a material fact or omitted a material
fact necessary to make the statement made not misleading in light of all the
circumstances existing at the date the statement was made.
13
Section 3.12 HAZARDOUS MATERIALS. HET and the other Purchasers have
reasonably concluded that Environmental Laws (as defined in the Xxxxxx'x Credit
Agreement) are unlikely to have a material adverse effect on the business,
financial position, results of operations or prospects of HET and its
Subsidiaries (as defined in the Xxxxxx'x Credit Agreement), considered as a
whole.
ARTICLE IV
COVENANTS
So long as this Agreement is in effect and until all of the
Obligations have been indefeasibly paid in full in cash and all commitments to
lend under the Loan Agreement have been terminated, HET and HOC agree as
follows:
Section 4.01 REPORTING REQUIREMENTS. HET and HOC shall deliver to the
Administrative Agent and the Lenders, at HET and HOC's sole expense:
(a) any and all reports and other information required by Article 7 of
the Xxxxxx'x Credit Agreement to be delivered to the lenders thereunder in the
time and manner as provided in the Xxxxxx'x Credit Agreement;
(b) as soon as practicable, and in any event within three Business
Days after a Senior Officer of any Purchaser becomes aware of the existence of
any condition or event which constitutes a Put Option Event, telephonic notice
specifying the nature and period of existence thereof, and, no more than three
Business Days after such telephonic notice, written notice again specifying the
nature and period of existence thereof and specifying what action HET or any of
its Subsidiaries are taking or propose to take with respect thereto;
(c) promptly upon a Senior Officer becoming aware of any litigation,
governmental investigation or any proceeding, including any litigation or
proceeding by or subject to decision by any Gaming Board pending (i) against HET
or any of its Subsidiaries which could reasonably be expected to have a Material
Adverse Effect, (ii) with respect to any material Indebtedness of HET or any of
its Subsidiaries, or (iii) with respect to the Loan Documents, notice of the
existence of the same;
(d) at the time each compliance certificate provided for in Section
7.2 of the Xxxxxx'x Credit Agreement is to be delivered to the lenders
thereunder, a certificate of the chief financial officer, controller or
treasurer of HET to the effect that, to the best of such officer's knowledge, no
Put Option Event has occurred and is continuing or, if any Put Option Event has
occurred and is continuing, specifying the nature and extent thereof, which
certificate shall set forth (x) the calculations required to establish whether
HET and HOC were in compliance with the provisions of Sections 6.5 and 6.6 of
the Xxxxxx'x Credit Agreement at the end of such fiscal quarter or year, as the
case may be, and (y) the ratings, if any, assigned by Xxxxx'x and S&P to the
Indebtedness of HOC at the end of such fiscal quarter or year, as the case may
be;
(e) promptly, notice of any increase or decrease in any interest rate
margins or fees payable under the Xxxxxx'x Credit Agreement, as such agreement
may be amended, restated, supplemented, modified, refinanced, replaced or
substituted from time to time; and
14
(f) such other data and information as from time to time may be
reasonably requested by the Administrative Agent or any Lender (through the
Administrative Agent).
Section 4.02 FINANCIAL COVENANTS. HET and HOC will comply with Sections 6.5
and 6.6 of the Xxxxxx'x Credit Agreement.
Section 4.03 RESTRICTIONS ON ABILITY TO PERFORM OBLIGATIONS. No Purchaser
will, directly or indirectly, create or otherwise cause or suffer to exist or
become effective any restriction on the ability of such Purchaser to perform its
obligations under this Agreement.
Section 4.04 SECURITY FOR OBLIGATIONS UNDER XXXXXX'X CREDIT AGREEMENT.
(a) In the event that HET or any of its subsidiaries is required to
grant, or elects to grant, a Lien on any of its assets or property (the
"PROPOSED XXXXXX'X GROUP COLLATERAL") to secure all or a substantial portion of
the obligations of the borrowers under the Amended Xxxxxx'x Credit Agreement (as
defined in subsection (c) below) or any related document, then HET and HOC agree
to either (i) use commercially reasonable efforts to obtain the consent of the
Administrative Agent (with the written approval of Requisite Lenders) under the
Amended Xxxxxx'x Credit Agreement (the "XXXXXX'X ADMINISTRATIVE AGENT" and the
"XXXXXX'X REQUISITE LENDERS", respectively) to the grant to the Administrative
Agent (for the benefit of itself and the Lenders) of a first priority Lien on
assets or property of HET or any of its Subsidiaries (other than the Proposed
Xxxxxx'x Group Collateral) with a fair market value greater than or equal to the
Purchase Price (the "PROPOSED XXXXXX GROUP COLLATERAL") to secure the
obligations of the Purchasers under this Agreement or (ii) decline to seek such
consent.
(b) In the event that HET and HOC in fact obtain the consent of the
Xxxxxx'x Administrative Agent and the Xxxxxx'x Requisite Lenders as contemplated
by Section 4.04(a) above, then and only then, HET shall grant or cause the
applicable subsidiary of HET to grant, on or prior to the date (the "GRANT
DATE") that HET or such subsidiary grants a Lien to the Xxxxxx'x Administrative
Agent or the lenders party to the Amended Xxxxxx'x Credit Agreement (the
"XXXXXX'X LENDERS"), a first priority Lien to the Administrative Agent (for the
benefit of itself and the Lenders) on the Proposed Xxxxxx Group Collateral
pursuant to documentation in form and substance reasonably satisfactory to the
Administrative Agent. In addition, if such Lien is granted to the Administrative
Agent and if requested by the Administrative Agent, HET shall take or cause the
applicable subsidiary of HET to take such other action from time to time as may
be necessary or desirable to create or perfect the Lien of the Administrative
Agent (for the benefit of itself and the Lenders) in and to the Proposed Xxxxxx
Group Collateral on or prior to the Grant Date. The parties hereto acknowledge
and agree that there is no obligation on the part of HET or any of its
subsidiaries to xxxxx x Xxxx on any of its assets or property to the
Administrative Agent unless and until consent thereto is obtained from the
Xxxxxx'x Administrative Agent (with the written approval of the Xxxxxx'x
Requisite Lenders).
(c) For purposes of this Section 4.04, "AMENDED XXXXXX'X CREDIT
AGREEMENT" means that certain Five Year Loan Agreement, dated as of April 30,
1999, as amended and in effect on the Closing Date, among HOC, Marina
Associates, a New Jersey general partnership, HET, the Lenders, Syndication
Agent, Documentation Agents and Co-Documentation Agents named therein, and Bank
of America, N.A., formerly known as Bank of America National Trust
15
and Savings Association, as Administrative Agent, as such agreement may be
further amended, restated, supplemented, modified, refinanced, replaced or
substituted from time to time.
ARTICLE V
MISCELLANEOUS PROVISIONS
Section 5.01 FAILURE TO EXERCISE RIGHTS. No failure or delay of the
Borrower, the Administrative Agent or any Lender in exercising any power or
right hereunder or under any other Loan Document shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right or power, or
any abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. No notice or demand on the Borrower or any Purchaser in any case
shall entitle the Borrower or any Purchaser to any other or further notice or
demand in similar or other circumstances.
Section 5.02 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and inure to the benefit of the Purchasers, the Administrative Agent and their
respective successors and assigns. No Purchaser may assign or transfer its
rights or obligations under this Agreement without the prior written consent of
the Administrative Agent (with the further consent of the Lenders as specified
in Section 11.2 of the Loan Agreement). Any attempted assignment or transfer in
violation of this Section 5.02 shall be null and void.
Section 5.03 AMENDMENTS, ETC. Any provision of this Agreement may be
waived, altered or amended only by an instrument in writing signed by the
Purchasers and the Administrative Agent (with the consent of the Lenders as
specified in Section 11.2 of the Loan Agreement). Any waiver, alteration or
amendment shall be for such period and subject to such conditions as shall be
specified in the written instrument effecting the same and shall be binding upon
the Administrative Agent, the Lenders and the Purchasers, and any such waiver
shall be effective only in the specific instance and for the purpose for which
given.
Section 5.04 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument and any of the parties to this Agreement may execute this Agreement
by signing any such counterpart. Transmission by telecopier of an executed
counterpart of this Agreement shall be deemed to constitute due and sufficient
delivery of such counterpart.
Section 5.05 RIGHTS, POWERS AND REMEDIES. No failure or delay by the
Administrative Agent or any Lender in exercising any remedy, right, power or
privilege under this Agreement or any other Loan Document shall operate as a
waiver of such remedy, right, power or privilege, nor shall any single or
partial exercise of such remedy, right, power or privilege preclude any other or
further exercise of such remedy, right, power or privilege or the exercise of
any other remedy, right, power or privilege. The remedies, rights, powers and
privileges provided by this Agreement are, to the extent permitted by law,
cumulative and not exclusive of any remedies, rights, powers or privileges
provided by the other Loan Documents or by law.
Section 5.06 TIME OF ESSENCE. Time shall be of the essence of this
Agreement.
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Section 5.07 GOVERNING LAW; SUBMISSION TO JURISDICTION. THIS AGREEMENT
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
CALIFORNIA. EACH PURCHASER HEREBY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF
THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA AND OF
ANY CALIFORNIA STATE COURT SITTING IN SAN DIEGO COUNTY, CALIFORNIA FOR THE
PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT
OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PURCHASER IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION WHICH
IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH PROCEEDING
BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A
COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
Section 5.08 ARBITRATION.
(a) ARBITRATION. Upon the demand of any party, any Dispute (as defined
in the next sentence) shall be resolved by binding arbitration in accordance
with the terms of this Agreement. A "Dispute" shall mean any action, dispute,
claim or controversy of any kind, whether in contract or tort, statutory or
common law, legal or equitable, now existing or hereafter arising under or in
connection with, or in any way pertaining to, any of the Loan Documents, or any
past, present or future extensions of credit and other activities, transactions
or obligations of any kind related directly or indirectly to any of the Loan
Documents, including without limitation, any of the foregoing arising in
connection with the exercise of any self-help, ancillary or other remedies
pursuant to any of the Loan Documents. Any party may by summary proceedings
bring an action in court to compel arbitration of a Dispute. Any party who fails
or refuses to submit to arbitration following a lawful demand by any other party
shall bear all costs and expenses incurred by such other party in compelling
arbitration of any Dispute.
(b) GOVERNING RULES. Arbitration proceedings shall be administered by
the American Arbitration Association ("AAA") or such other administrator as the
parties shall mutually agree upon in accordance with the AAA Commercial
Arbitration Rules. All Disputes submitted to arbitration shall be resolved in
accordance with the Federal Arbitration Act (Title 9 of the United States Code),
notwithstanding any conflicting choice of law provision in any of the Loan
Documents. The arbitration shall be conducted at a location in California
selected by the AAA or other administrator. If there is any inconsistency
between the terms hereof and any such rules, the terms and procedures set forth
herein shall control. All statutes of limitation applicable to any Dispute shall
apply to any arbitration proceeding. All discovery activities shall be expressly
limited to matters directly relevant to the Dispute being arbitrated. Judgment
upon any award rendered in an arbitration may be entered in any court having
jurisdiction; provided however, that nothing contained herein shall be deemed to
be a waiver by any party that is a bank of the protections afforded to it under
12 U.S.C. Section 91 or any similar applicable state law.
(c) NO WAIVER; PROVISIONAL REMEDIES, SELF-HELP AND FORECLOSURE. No
provision hereof shall limit the right of any party to exercise self-help
remedies such as setoff, foreclosure against or sale of any real or personal
property collateral or security, or to obtain
17
provisional or ancillary remedies, including without limitation injunctive
relief, sequestration, attachment, garnishment or the appointment of a receiver,
from a court of competent jurisdiction before, after or during the pendency of
any arbitration or other proceeding. The exercise of any such remedy shall not
waive the right of any party to compel arbitration or reference hereunder.
(d) ARBITRATOR QUALIFICATIONS AND POWERS; AWARDS. Arbitrators must be
active members of the California State Bar or retired judges of the state or
federal judiciary of California, with expertise in the substantive laws
applicable to the subject matter of the Dispute. Arbitrators are empowered to
resolve Disputes by summary rulings in response to motions filed prior to the
final arbitration hearing. Arbitrators (i) shall resolve all Disputes in
accordance with the substantive law of the State of California, (ii) may grant
any remedy or relief that a court of the State of California could order or
grant within the scope hereof and such ancillary relief as is necessary to make
effective any award, and (iii) shall have the power to award recovery of all
costs and fees, to impose sanctions and to take such other actions as they deem
necessary to the same extent a judge could pursuant to the Federal Rules of
Civil Procedure, the California Rules of Civil Procedure or other applicable
law. Any Dispute in which the amount in controversy is $5,000,000 or less shall
be decided by a single arbitrator who shall not render an award of greater than
$5,000,000 (including damages, costs, fees and expenses). By submission to a
single arbitrator, each party expressly waives any right or claim to recover
more than $5,000,000. Any Dispute in which the amount in controversy exceeds
$5,000,000 shall be decided by majority vote of a panel of three arbitrators;
provided however, that all three arbitrators must actively participate in all
hearings and deliberations.
(e) MISCELLANEOUS. To the maximum extent practicable, the AAA, the
arbitrators and the parties shall take all action required to conclude any
arbitration proceeding within 180 days of the filing of the Dispute with the
AAA. No arbitrator or other party to an arbitration proceeding may disclose the
existence, content or results thereof, except for disclosures of information by
a party required in the ordinary course of its business, by applicable law or
regulation, or to the extent necessary to exercise any judicial review rights
set forth herein. If more than one agreement for arbitration by or between the
parties potentially applies to a Dispute, the arbitration provision most
directly related to the Loan Documents or the subject matter of the Dispute
shall control. This arbitration provision shall survive termination, amendment
or expiration of any of the Loan Documents or any relationship between the
parties.
(f) SPECIFIC ENFORCEMENT REPRESENTATION. Each party to this Agreement
severally represents and warrants to the other parties that this Section 5.08 is
specifically enforceable against such party by the other parties.
Section 5.09 WAIVER OF JURY TRIAL. TO THE MAXIMUM EXTENT PERMITTED BY LAW,
EACH PURCHASER HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY ACTION,
CAUSE OF ACTION, CLAIM, DEMAND, OR PROCEEDING ARISING UNDER OR WITH RESPECT TO
THIS AGREEMENT, THE ASSIGNMENT DOCUMENTATION OR ANY OF THE OTHER LOAN DOCUMENTS,
OR IN ANY WAY CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE DEALINGS OF THE
ADMINISTRATIVE AGENT, THE LENDERS AND THE PURCHASERS WITH RESPECT TO THIS
AGREEMENT, THE ASSIGNMENT DOCUMENTATION OR ANY OF THE OTHER LOAN DOCUMENTS, OR
THE TRANSACTIONS RELATED HERETO, IN EACH
18
CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND IRRESPECTIVE OF WHETHER
SOUNDING IN CONTRACT, TORT, OR OTHERWISE. TO THE MAXIMUM EXTENT PERMITTED BY
LAW, EACH PURCHASER HEREBY AGREES THAT ANY SUCH ACTION, CAUSE OF ACTION, CLAIM,
DEMAND, OR PROCEEDING SHALL BE DECIDED BY A COURT TRIAL WITHOUT A JURY AND THAT
THE ADMINISTRATIVE AGENT OR ANY LENDER MAY FILE AN ORIGINAL COUNTERPART OF THIS
SECTION WITH ANY COURT OR OTHER TRIBUNAL AS WRITTEN EVIDENCE OF THE CONSENT OF
THE PURCHASERS TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
Section 5.10 NOTICES. Unless otherwise specifically provided herein, any
notice or other communication herein required .or permitted to be given shall be
in writing and may be personally served, sent by facsimile, telexed or sent by
courier service or United States mail and shall be deemed to have been given
when delivered in person or by courier service, upon receipt of a facsimile or
telex or five Business Days after deposit in the United States mail (registered
or certified, with postage prepaid and properly addressed). For the purposes
hereof, the addresses of the parties hereto (until notice of a change thereof is
delivered as provided in this Section 5.10) shall be as set forth below, or, as
to each party, at such other address as may be designated by such party in a
written notice to all of the other parties:
19
If to the Purchasers: Xxxxxx'x Entertainment, Inc.
Xxxxxx'x Operating Company, Inc.
HCAL Corporation
Xxx Xxxxxx'x Xxxxx
Xxx Xxxxx, Xxxxxx 00000-0000
Attention: Treasurer
Facsimile No. (000) 000-0000
With a copy to: General Counsel
Xxxxxx'x Entertainment, Inc.
Xxx Xxxxxx'x Xxxxx
Xxx Xxxxx, Xxxxxx 00000-0000
Facsimile No. (000) 000-0000
With a copy to: Xxx Xxxxx
Assistant Treasurer
Xxxxxx'x Entertainment, Inc.
0000 Xxxxxx Xxxx
Xxxxxxx, Xxxxxxxxx 00000
Facsimile No. (000) 000-0000
If to the
Administrative
Agent: Xxxxx Fargo Bank, National Association
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxx, Xxxxxx 00000
Attention: Xxx Xxxxxx
Telecopier: (000) 000-0000
Section 5.11 SEVERABILITY OF PROVISIONS. Any provision of this Agreement
that is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions of this
Agreement, and any such prohibition or unenforceability in any jurisdiction
shall not invalidate or render unenforceable such provision in any other
jurisdiction.
Section 5.12 EXPENSES, ETC. The Purchasers jointly and severally agree to
pay or to reimburse the Administrative Agent and the Lenders for all reasonable
costs and expenses (including reasonable fees and expenses of counsel) that may
be incurred by the Administrative Agent and the Lenders in any effort to enforce
any of the obligations of the Purchasers under this Agreement, whether or not
any lawsuit is filed, including all such costs and expenses (and reasonable
attorneys' fees and expenses) incurred by the Administrative Agent and the
Lenders in any bankruptcy, reorganization, workout or similar proceeding. All
amounts due under this Agreement not paid when due shall bear interest until
paid at a rate per annum equal to the Default Rate and shall be payable upon
demand.
Section 5.13 SURVIVAL. All representations and warranties made in this
Agreement or in any certificate or other document delivered pursuant to or in
connection with this Agreement
20
shall survive the execution and delivery of this Agreement or such certificate
or other document (as the case may be) or any deemed repetition of any such
representation or warranty.
Section 5.14 ENTIRE AGREEMENT. This Agreement representS the final
agreement AMONG THE PURCHASERS, THE administrative agent AND THE LENDERS and may
not be contradicted by evidence of prior, contemporaneous, or subsequent oral
agreements of SUCH parties. There are no unwritten oral agreements BETWEEN OR
AMONG THE PURCHASERS, THE administrative agent AND THE LENDERS.
Section 5.15 RELEASE AND DISCHARGE OF THE ADMINISTRATIVE AGENT AND THE
LENDERS' DUTIES. In the event the Administrative Agent and the Lenders transfer
their respective right, title and interest in the Transferred Interests to one
or more of the Purchasers pursuant to this Agreement, the Administrative Agent
and the Lenders shall be fully released and discharged from all further duty,
responsibility and liability hereunder and under the Loan Documents
automatically and without further consent or authorization from the Purchasers
or the Borrower.
Section 5.16 JOINT AND SEVERAL OBLIGATIONS; SUBROGATION, ETC.
(a) All obligations of the Purchasers hereunder shall be joint and
several.
(b) Each Purchaser hereby agrees that, until all commitments to lend
under the Loan Agreement have been terminated, the Obligations have been
indefeasibly paid in full in cash and all Letters of Credit have expired, (i)
except as permitted under the Intercreditor Agreement, it shall not exercise any
right, remedy, power or privilege, such as any right of subrogation,
contribution or indemnity or related remedy, power or privilege, arising
(whether by contract or operation of law, including under the Bankruptcy Code)
against the Borrower or any other Purchaser of all or any part of the
Obligations or any collateral securing all or any part of the Obligations by
reason of any payment or other performance pursuant to the provisions of this
Agreement and (ii) if any amount shall be paid to such Purchaser on account of
such rights, remedies, powers or privileges (other than amounts which are
permitted to paid by clause (i) above), it shall hold such amount in trust for
the benefit of, and pay the same over to, the Administrative Agent (for the
benefit of itself and the Lenders) on account of the Obligations. Each Purchaser
understands that the exercise by the Administrative Agent or any Lender of any
right, remedy, power or privilege that it may have under the Loan Documents, any
agreement, security document, guarantee or other instrument relative to all or
any part of the Obligations or otherwise may affect or eliminate such or any
other Purchaser's right of subrogation or similar recovery against the Borrower,
any other Purchaser or any collateral and that such Purchaser may therefore
incur partially or totally nonreimbursable liability under this Agreement.
Nevertheless, each Purchaser hereby authorizes and empowers the Administrative
Agent and the Lenders to exercise, in its or their sole discretion, any
combination of such rights, remedies, powers and privileges.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed on the day and year first above written.
ADMINISTRATIVE AGENT: PURCHASERS:
XXXXX FARGO BANK, NATIONAL XXXXXX'X ENTERTAINMENT, INC.,
ASSOCIATION, as Administrative Agent a Delaware corporation
By:
Name: By:
------------------------------ ---------------------------------
Title: Name: Xxxxxxx X. Xxxxxx
-----------------------------
Title:. Senior Vice President,
Chief Financial Officer and
Treasurer
XXXXXX'X OPERATING COMPANY,
a Delaware corporation
By:
--------------------------------
Name: Xxxxxxx X. Xxxxxx
Title:. Senior Vice President,
Chief Financial Officer and
Treasurer
HCAL CORPORATION,
a Nevada corporation
By:
--------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
EXHIBIT A
XXXXXX'X CREDIT AGREEMENT
Please see attached.
A-1
EXHIBIT B
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (this "ASSIGNMENT AND
ASSUMPTION AGREEMENT") is made as of , by and among [Names of Lenders]
(collectively, the "LENDERS"), Xxxxx Fargo Bank, National Association, as
Administrative Agent for the Lenders (in such capacity, the "Administrative
Agent"; together with the Lenders, the "ASSIGNORS"), Xxxxxx'x Entertainment,
Inc., a Delaware corporation ("HET"), Xxxxxx'x Operating Company, Inc., a
Delaware corporation ("HOC") and HCAL Corporation, a Nevada corporation ("HCAL";
together with HET and HOC, the "ASSIGNEES"). All capitalized terms not otherwise
specifically defined herein shall have the meanings given them in Section 1.1 of
the Loan Agreement referred to below and the rules of interpretation set forth
in Section 1.6 of the Loan Agreement shall be applicable to this Assignment and
Assumption Agreement.
R E C I T A L S:
---------------
WHEREAS:
Reference is made to that certain Loan Agreement (as amended,
restated, supplemented or otherwise modified to the date hereof, the "LOAN
AGREEMENT") by and among the Xxxxxx San Luiseno Band of Mission Indians, a
federally recognized Indian Tribe and Native American sovereign nation doing
business as the Xxxxxx Casino (the "BORROWER") and the Assignors, pursuant to
which the Lenders established a construction loan and reducing revolving credit
facility in favor of the Borrower up to the aggregate principal amount of
$125,000,000 for the uses and purpose described in the Loan Agreement.
As of the date hereof, the sum of: (i) the outstanding
principal balance of the Loans, (ii) all accrued and unpaid interest thereon and
(iii) all fees, advances, late charges, attorneys' fees and other amounts owing
to the Assignors under the Loan Documents is [$______________].
The Assignees desire to purchase all right, title and interest
of the Assignors in and to the Obligations and the Loan Documents and to assume
all of the obligations and duties of the Assignors under the Loan Documents by
paying to the Administrative Agent, for the benefit of the Lenders, the Purchase
Price (as defined below), at the times and in the manner set forth below.
NOW, THEREFORE, in consideration of the foregoing and other
good and valuable considerations hereinafter described, the parties hereto do
agree as follows:
1. AGREEMENT TO ASSIGN AND ASSUME THE ASSIGNED LOANS. Each
Assignor hereby agrees to sell and assign to the Assignees all of such
Assignor's right, title and interest in and to the Obligations and the Loan
Documents (the "ASSIGNED RIGHTS") and to delegate to the Assignees all of its
obligations, duties and liabilities under the Loan Documents with respect to the
Assigned Rights, and each Assignee hereby agrees to purchase from the Assignors,
without recourse to the Assignors and without representation or warranty,
express or implied, by the
B-1
Assignors, all of the Assignors' right, title and interest in the Assigned
Rights and to assume from the Assignors all of their obligations, duties and
liabilities under the Loan Documents with respect to the Assigned Rights.
2. ASSUMPTION. On and after the Transfer Date (as defined in
paragraph 3 below), the Assignees will completely and timely perform in
accordance with their terms all of the duties and obligations which by the terms
of the Loan Documents are required to be performed or discharged by it with
respect to the Assigned Rights. It is the intent of the parties hereto that, on
and after the Transfer Date, each Assignor shall relinquish all of its right,
title and interest in the Assigned Rights, and be released from all of its
obligations, duties and liabilities under the Loan Documents with respect to the
Assigned Rights. Each Assignee further agrees to indemnify and hold each
Assignor harmless from any and all liabilities, damages, costs or expenses which
such Assignor may incur by reason of the failure of such Assignee perform any
obligation, duty or liability of such Assignor arising or performable from and
after the Transfer Date at the times and in the manner set forth in the Loan
Documents to the same extent and manner as if such Assignee had been originally
named in the Loan Documents as the holder of such Assignor's interest therein.
3. PURCHASE PRICE; TRANSFER DATE. As consideration for the
assignment of the Assigned Rights to the Assignees by the Assignors, the
Assignees shall pay [$__________] (the "PURCHASE PRICE") to the Administrative
Agent, for the account of the Lenders, on the Transfer Date in immediately
available funds. The transfer date (the "TRANSFER DATE") for the assignment of
the Assigned Rights by the Assignors to the Assignees shall be [__________ __,
____]; provided, however, that obligation of the Assignors to assign the
Assigned Rights hereunder is conditioned upon the receipt by the Administrative
Agent, for the account of the Lenders, of the Purchase Price.
4. REPRESENTATIONS AND WARRANTIES. Each Assignor represents
and warrants to the Assignees that as of the Transfer Date such Assignor is the
legal and beneficial owner of the interest being assigned by it hereunder and
that such interest is free and clear of any Lien or other adverse claim created
by such Assignor. Except as expressly set forth in the preceding sentence, no
Assignor makes any representations or warranties, express or implied, with
respect to the assignment of the Assigned Rights hereunder.
5. FURTHER ASSURANCES. Each of the parties hereby agrees to
execute and deliver all such documents and instruments and to take all such
further actions as the other party may reasonably deem necessary from time to
time to carry out the intent and purpose of this Agreement.
6. SUCCESSORS AND ASSIGNS. This Assignment and Assumption
Agreement shall be binding upon and inure to the benefit of the Assignors and
the Assignees and their respective successors and assigns; provided, however,
that no party shall assign its rights hereunder without the prior written
consent of the other party and any purported assignment, absent such consent,
shall be null and void.
7. COUNTERPARTS. This Assignment and Assumption Agreement may
be executed in any number of counterparts and all of such counterparts taken
together shall be
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deemed to constitute one and the same instrument. Transmission by facsimile of
an executed counterpart of this Assignment and Assumption Agreement shall be
deemed to constitute due and sufficient delivery of such counterpart.
8. GOVERNING LAW. This Assignment and Assumption Agreement
shall be governed by and construed in accordance with the internal laws of the
State of California.
B-3
IN WITNESS WHEREOF, the parties hereto have executed the
foregoing instrument as of the day and year first above written.
ASSIGNORS:
[NAME OF LENDER]
By: ___________________________________
Name: _________________________________
Title: ________________________________
[NAME OF LENDER]
By: ___________________________________
Name: _________________________________
Title: ________________________________
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Administrative Agent
By: ___________________________________
Name: _________________________________
Title: ________________________________
ASSIGNEES:
XXXXXX'X ENTERTAINMENT, INC.
By: ___________________________________
Name: _________________________________
Title: ________________________________
XXXXXX'X OPERATING COMPANY, INC.
By: ___________________________________
Name: _________________________________
Title: ________________________________
B-4
HCAL CORPORATION
By: ___________________________________
Name: _________________________________
Title: ________________________________
B-5
EXHIBIT C
Form of endorsement to be attached to each Note:
PAY TO THE ORDER OF [NAME OF DESIGNATED PURCHASER(S)], WITHOUT
RECOURSE AND WITHOUT REPRESENTATION OR WARRANTY, EXPRESS OR
IMPLIED, ALL RIGHT, TITLE AND INTEREST OF THE UNDERSIGNED IN
AND TO THE ATTACHED PROMISSORY NOTE.
Dated this day of , .
--------------- ------------------- ------
[NAME OF HOLDER OF NOTE]
By: ___________________________________
Name: _________________________________
Title: ________________________________
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