CREDIT AGREEMENT
THIS CREDIT AGREEMENT ("Credit Agreement") is made
and entered into as of the 8th day of July, 1997, by and
among AMERISTAR CASINOS, INC., a Nevada corporation ("ACI"),
CACTUS PETE'S, INC., a Nevada corporation ("CPI"), AMERISTAR
CASINO VICKSBURG, INC., a Mississippi corporation ("ACVI"),
AMERISTAR CASINO COUNCIL BLUFFS, INC., an Iowa corporation
("ACCBI") and AMERISTAR CASINO LAS VEGAS, INC., a Nevada
corporation ("ACLVI" and together with ACI, CPI, ACVI and
ACCBI, collectively referred to as the "Borrowers"), each of
the Lenders, as hereinafter defined, XXXXX FARGO BANK,
National Association, as the swingline lender (herein in
such capacity, together with its successors and assigns, the
"Swingline Lender") and XXXXX FARGO BANK, National
Association, as administrative and collateral agent for the
Lenders and Swingline Lender (herein, in such capacity,
called the "Agent Bank" and, together with the Lenders and
Swingline Lender, collectively referred to as the "Banks").
R E C I T A L S:
WHEREAS:
A. In this Credit Agreement all capitalized
words and terms shall have the respective meanings and be
construed herein as hereinafter provided in Section 1.01 of
this Credit Agreement and shall be deemed to incorporate
such words and terms as a part hereof in the same manner and
with the same effect as if the same were fully set forth.
B. CPI, ACVI, ACCBI and ACLVI are wholly owned
subsidiaries of ACI. On or about June 1, 1995, ACI, as
borrower, and CPI, ACVI and ACCBI, as guarantors, entered
into a Credit Agreement, dated June 1, 1995 (the "Existing
Credit Agreement") with certain banks, as lenders, described
in the Existing Credit Agreement (each individually an
"Existing Lender" and collectively the "Existing Lenders")
under the terms of which Existing Lenders established a
reducing revolving line of credit in favor of ACI, as
borrower, and CPI, ACVI and ACCBI, as guarantors, in the
amount of One Hundred Five Million Dollars ($105,000,000.00)
(the "Existing Bank Loan") as evidenced by a Promissory Note
due December 31, 2001 (the "Existing Note") executed by ACI
and payable to the order of the Existing Lenders.
C. Pursuant to the terms of the Merger Agreement
dated May 30, 1996 (as amended, the "GEM Merger Agreement")
executed by and among Gem Gaming, Inc., ACI, ACLVI, Xxxxxx
X. Xxxxxx ("Xxxxxx") and Xxxxxxx X. Xxxxxxxxxxx
("Magliarditi"), Gem Gaming, Inc. was merged with and into
ACLVI (the "Gem Merger"). As a consequence of the Gem
Merger ACLVI is the owner of the ACLVI Real Property and the
ACLVI Project.
D. ACI desires to issue up to One Hundred Twenty-
Five Million Dollars ($125,000,000.00) in Senior
Subordinated Notes due 2004 (the "Initial Senior
Subordinated Notes") in a limited offering to Qualified
Institutional Buyers (as defined in Rule 144A of the
Securities and Exchange Commission (the "SEC")), accredited
institutional investors (as defined in Rule 501(a)(1), (2),
(3) or (7) of Regulation D of the SEC) and outside the
United States to certain persons in reliance on Regulation S
of the SEC, which Initial Senior Subordinated Notes are
intended to be issued under and pursuant to an indenture
(the "Indenture") a draft of which has been provided to and
reviewed by the Lenders. ACI intends to use all net
proceeds from the issuance of the Initial Senior
Subordinated Notes to reduce Indebtedness of the Borrower
Consolidation, including Funded Obligations under the Credit
Facility.
E. Following the issuance of the Initial Senior
Subordinated Notes and in order to facilitate trading in
such debt securities, ACI intends to file a registration
statement with the SEC seeking to register an exchange offer
for the exchange of the Initial Senior Subordinated Notes
for an issue of up to One Hundred Twenty-Five Million
Dollars ($125,000,000.00) in Senior Subordinated Notes due
2004 (the "Exchange Senior Subordinated Notes") under and
pursuant to the Indenture. The Exchange Senior Subordinated
Notes will be identical in all material respects to the
Initial Senior Subordinated Notes.
F. The Borrower Consolidation desires to
refinance the Existing Bank Loan, Existing Credit Agreement
and Existing Note for the purpose of adding CPI, ACVI, ACCBI
and ACLVI as Borrowers and increasing the maximum amount
available for Borrowing to One Hundred Twenty-Five Million
Dollars ($125,000,000.00), including a swingline subfacility
for fundings in smaller minimum amounts and on shorter
notice in the maximum amount of Five Million Dollars
($5,000,000.00) at any time outstanding.
G. Lenders are willing to refinance the Existing
Credit Agreement and Existing Note for the purpose of
establishing the Credit Facility in the initial
principal amount of One Hundred Twenty-Five Million Dollars
($125,000,000.00), including the Swingline Facility to be
funded by the Swingline Lender, as a subfacility in the
maximum aggregate amount of Five Million Dollars
($5,000,000.00) at any time outstanding, all on the terms
and subject to the conditions, covenants and understandings
hereinafter set forth and contained in each of the Loan
Documents.
NOW, THEREFORE, in consideration of the foregoing,
and other valuable considerations as hereinafter described,
the parties hereto do promise, covenant and agree as
follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. For the purposes of
this Credit Agreement, each of the following terms shall
have the meaning specified with respect thereto, unless a
different meaning clearly appears from the context:
"ACCBI Assignment of Permits, Licenses and
Contracts" shall mean the assignment to be executed by ACCBI
on or before the Closing Date, pursuant to which ACCBI
assigns to Agent Bank on behalf of the Lenders, as
additional security for the Bank Facilities, all of its
right, title and interest in and to all permits, licenses
and contracts relating to the ACCBI Riverboat/Hotel
Facilities, except those gaming permits and licenses which
are unassignable and except those permits, licenses and
contracts which may not be assigned without obtaining the
consent of ACCBI's counterparty, as such assignment may be
amended, modified, extended, renewed or restated from time
to time.
"ACCBI Assignment of Spaceleases, Contracts, Rents
and Revenues" shall mean the assignment to be executed by
ACCBI on or before the Closing Date, pursuant to which ACCBI
assigns to Agent Bank on behalf of the Lenders, as
additional security for the Bank Facilities: (a) all of its
right, title and interest under all ACCBI Equipment Leases
and Contracts and ACCBI Space Leases relating to the ACCBI
Riverboat/Hotel Facilities, and (b) all rents, issues,
profits, revenues and income from the ACCBI Premises and the
ACCBI Riverboat/Hotel Facilities and any other business
activity conducted on the ACCBI Premises, together with any
future expansions thereof, related thereto or used in
connection therewith, as such
assignment may be amended, modified, extended, renewed
or restated from time to time.
"ACCBI Collateral" shall mean collective reference
to: (i) all of the ACCBI Riverboat, ACCBI Premises, ACCBI
FF&E and the contract rights, leases, intangibles and other
interests of ACCBI, which are subject to the liens and
security interests of the ACCBI Security Documents; (ii) all
rights of ACCBI assigned as additional security pursuant to
the terms of the ACCBI Security Documents; and (iii) any and
all other property and/or intangible rights, interest or
benefits inuring to or in favor of ACCBI, which are in any
manner assigned, pledged, encumbered or otherwise
hypothecated in favor of Agent Bank on behalf of Lenders to
secure payment of the Bank Facilities.
"ACCBI Deed of Trust" shall mean the Deed of
Trust, Fixture Filing and Security Agreement with Assignment
of Rents to be executed by ACCBI on or before the Closing
Date in favor of Agent Bank, on behalf of Lenders,
encumbering the ACCBI Premises, the ACCBI FF&E and other
ACCBI Collateral therein described for the purpose of
securing the Bank Facilities and Borrowers' payment and
performance under each of the Loan Documents (other than the
Environmental Certificate) as such deed of trust may be
amended, modified, extended, renewed or restated from time
to time.
"ACCBI Equipment Leases and Contracts" shall mean
the executed leases and purchase contracts pertaining to the
ACCBI FF&E wherein ACCBI is the lessee or vendee, as the
case may be, as set forth on that certain scheduled marked
"Schedule 4.16(A)", affixed hereto and by this reference
incorporated herein and made a part hereof.
"ACCBI Equipment Lender" shall mean WFB, as the
successor by merger to First Interstate Bank of Nevada,
N.A., in its capacity as the lender under the ACCBI
Equipment Loan.
"ACCBI Equipment Loan" shall mean the loan by the
ACCBI Equipment Lender to ACCBI as evidenced by the ACCBI
Equipment Loan Documents.
"ACCBI Equipment Loan Documents" shall mean
collective reference to (i) that certain Promissory Note
dated December 12, 1995, in the original principal amount of
Seven Million One Hundred Thirty-Seven Thousand Four Hundred
Dollars ($7,137,400.00) executed by ACCBI, payable to the
order of the ACCBI Equipment Lender, (ii) that certain Loan
Agreement dated
December 12, 1995, executed by and among ACCBI, as
borrower, ACI, as guarantor and ACCBI Equipment Lender,
(iii) that certain Security Agreement dated December 12,
1995, executed by ACCBI, as grantor, and the ACCBI Equipment
Lender, as secured party, (iv) the ACCBI Equipment Loan
Financing Statements, and (v) the ACCBI Equipment Ship
Mortgage.
"ACCBI Equipment Loan Financing Statements" shall
mean collective reference to the UCC Financing Statements
executed by ACCBI in favor of the ACCBI Equipment Lender
filed (i) in the Office of the County Recorder of
Pottawattamie County, Iowa, on December 14, 1995, under File
No. G76353, and (ii) in the Office of the Secretary of State
of the State of Iowa on December 14, 1995, under file number
K695761.
"ACCBI Equipment Ship Mortgage" shall mean the
Preferred Ship Mortgage dated December 12, 1995, executed by
ACCBI, as grantor, in favor of the ACCBI Equipment Lender,
received by the USCG, New Orleans Office, on December 13,
1995, and recorded in the NVDC in Book 95-5, as Instrument
No. 789.
"ACCBI FF&E" shall mean the furniture, fixtures
and equipment and all gaming equipment and devices which
have been installed or are to be installed and used or owned
by ACCBI in connection with the operation of the ACCBI
Riverboat/Hotel Facilities.
"ACCBI Fee Property" shall mean the real property
owned by ACCBI which is more particularly described on that
certain schedule marked "Schedule A-1", affixed hereto and
by this reference incorporated herein and made a part
hereof.
"ACCBI Financing Statements" shall mean the
Uniform Commercial Code Financing Statements to be filed in
the office of the Secretary of State of the State of Iowa,
and in the office of the County Recorder of Pottawattamie
County, Iowa, in order to perfect the security interest
granted to Agent Bank on behalf of the Lenders under the
ACCBI Deed of Trust and other ACCBI Security Documents in
accordance with the requirements of the Iowa Uniform
Commercial Code, as they may be amended, modified, extended,
renewed or restated from time to time.
"ACCBI Hotel Attornment Agreement" shall mean that
certain Second Recognition, Nondisturbance and Attornment
Agreement to be executed on or before the Closing Date by
and among Council Bluffs Hotel Associates, ACCBI, Agent Bank
and
Xxxxxx & Xxxxxxxxx Investments Corporation, a
Minnesota corporation (as the holder of a mortgage lien on
the interest of Council Bluffs Hotel Associates under the
ACCBI Hotel Lease and the ACCBI Hotel Easement) pursuant to
which, among other things: (i) the interest of Council
Bluffs Hotel Associates under the ACCBI Hotel Lease and the
ACCBI Hotel Easement is subordinated to the lien of the
ACCBI Deed of Trust; (ii) Agent Bank agrees that, upon
acquisition of ACCBI Fee Property by Foreclosure under the
ACCBI, or conveyance in lieu thereof, Agent Bank (or any
purchaser at a foreclosure sale) will recognize and attorn
to the interest of Council Bluffs Hotel Associates under the
ACCBI Hotel Lease and the ACCBI Hotel Easement; and
(iii) Xxxxxx and Xxxxxxxxx Investments Corporation consents
to the terms and conditions set forth therein.
"ACCBI Hotel Easement" shall mean that certain
Easement from ACCBI, as grantor, to Xxxxxxx Hotel
Corporation, an Iowa corporation which is recorded in the
office of the County Recorder of Pottawattamie County, Iowa
On April 3, 1996, in Book 96, at Page 28334, as amended by
that certain Amendment to Easement by and between ACCBI and
Council Bluffs Hotel Associates as the successor to Xxxxxxx
Hotel Corporation, which Amendment to Easement was recorded
in the office of the County Recorder of Pottawattamie
County, Iowa on June 25, 1996, in Book 96 at Page 39287, all
pursuant to which Council Bluffs Hotel Associates is
granted: (i) a nonexclusive right of way easement over and
across that portion of the ACCBI Fee Property which is
described by Exhibit "A" to said Amendment to Easement; and
(ii) a nonexclusive easement for vehicular and pedestrian
ingress and egress over roads, driveways and sidewalks which
are situate from time to time upon Ameristar Property that
is adjacent to the ACCBI Hotel Lease Parcel; both of which
easements are granted to Council Bluffs Hotel Associates to
be utilized in connection with Council Bluffs Hotel
Associates occupation and use of the ACCBI Hotel Parcel
under the ACCBI Hotel Lease; and as said Easement may be
further amended, modified, extended, renewed or restated
from time to time.
"ACCBI Hotel Lease" shall mean that certain
Amended and Restated Ground Lease Agreement under date of
September 7, 1995, by and between ACCBI, as lessor, and
Xxxxxxx Hotel Corporation, an Iowa corporation, as lessee,
record notice of which is granted pursuant to a Memorandum
of Ground Lease that is recorded in the office of the County
Recorder of Pottawattamie County, Iowa on April 3, 1996 in
Book 96 at Page 28330, with the lessee's interest thereunder
having been
assigned to Council Bluffs Hotel Associates by an
Assignment of Ground Lease recorded in the office of the
County Recorder of Pottawattamie County, Iowa on May 13,
1996 in Book 96 at Page 33420, as such lease is amended by
that certain Amendment No. 1 to Amended and Restated Ground
Lease under date of May 1, 1996, record notice of which is
granted pursuant to an Amendment to Memorandum of Ground
Lease recorded in the office of the County Recorder of
Pottawattamie County, Iowa on June 25, 1996 in Book 96 at
Page 39290; all pursuant to which: (i) the ACCBI Hotel
Parcel is leased to Council Bluffs Hotel Associates for the
purpose of building and maintaining a hotel thereon;
(ii) Council Bluffs Hotel Associates is granted a right of
first refusal with respect to any sale by ACCBI of any
portion of the ACCBI Fee Property to be used for
construction of a hotel; (iii) ACCBI is granted a right of
first refusal with respect to, and an option to purchase,
the ACCBI Hotel Parcel; and (iv) Council Bluffs Hotel
Associates is granted certain licenses and easements with
respect to the ACCBI Fee Property; all as more particularly
set forth therein; as such Amended and Restated Ground Lease
Agreement may be further amended, modified, extended,
renewed or restated from time to time.
"ACCBI Hotel Parcel" shall mean that parcel of
real property which is situate within the ACCBI Fee Property
and is particularly described by Exhibit "A" to the
Amendment to Memorandum of Ground Lease under date of May 1,
1996, that is recorded in the office of the County Recorder
of Pottawattamie County, Iowa on June 25, 1996, in Book 96
at Page 39290.
"ACCBI IDNR Attornment Agreement" shall mean the
Second Attornment Agreement for the benefit of Mortgagee to
be executed on or before the Closing Date by and among ACCBI
and IDNR pursuant to which, among other things, certain
representations and assurances are made for the benefit of
the Banks with regard to the terms and conditions of the
ACCBI Land Use Agreement, and with regard to Agent Bank's
entitlement to the benefit of those provisions set forth by
the ACCBI Land Use Agreement which are defined therein as
the "Mortgagee Protection Provisions".
"ACCBI Land Use Agreement" shall mean the
Settlement Use and Management Agreement and IDNR Permit
dated May 15, 1995, executed between IDNR and Xxxx providing
for the occupancy and use of the IDNR Parcel, with the
interest of Xxxx therein having been assigned to ACCBI
pursuant to that certain Assignment and Assumption Agreement
executed by Xxxx and by ACCBI under date of July 26, 1995,
as such Settlement,
Use and Management Agreement and IDNR Permit may be
amended, modified, extended, renewed or restated from time
to time.
"ACCBI Permitted Encumbrances" shall mean, at any
particular time, (i) liens for taxes, assessments or
governmental charges not then due and payable or not then
delinquent, (ii) statutory liens for labor and/or materials
and liens for taxes, assessments or governmental charges the
validity of which, in either instance, are being contested
in good faith by Borrowers by appropriate proceedings, and
as provided in Sections 5.03 and 5.10 hereof, respectively,
provided that, Borrowers shall have maintained adequate
reserves in accordance with GAAP for payment of same,
(iii) liens incurred or deposits made in the ordinary course
of business in connection with workers' compensation,
unemployment insurance and other types of social security,
or to secure the performance of tenders, statutory
obligations, surety and appeal bonds, bids, leases,
government contracts, trade contracts, performance and
return-of-money bonds and other similar obligations
(exclusive of obligations for the payment of borrowed
money); (iv) leases or subleases granted to others
(including, without limitation, any Subsidiary) not
interfering in any material respect with the ordinary
conduct of the business of the ACCBI Riverboat/Hotel
Facilities; (v) liens created or contemplated by the ACCBI
Security Documents, (vi) the liens, encumbrances and
restrictions on the ACCBI Real Property, ACCBI FF&E and
existing improvements which are shown as exceptions on
Schedule B of the ACCBI Title Insurance Policy to be issued
by the Title Insurance Company as of the Closing Date, (vii)
liens consented to in writing by Agent Bank upon the
approval of Requisite Lenders, (viii) liens of legally valid
capital leases and purchase money security interests for
ACCBI FF&E to the extent permitted by Section 6.08, (ix) the
GECC Ship Mortgage and any Liens created thereby, (x) the
Liens securing the ACCBI Equipment Loan, including the ACCBI
Equipment Ship Mortgage and ACCBI Equipment Loan Financing
Statements, (xi) each and every easement, license,
restriction or right-of-way that (A) is hereafter granted to
any Governmental Authority or public utility providing
services to the ACCBI Premises or (B) does not interfere in
any material respect with the ACCBI Riverboat/Hotel
Facilities; and (xii) judgment liens, writs, warrants,
levies, distraints, attachments and other similar process
which do not constitute an Event of Default.
"ACCBI Premises" shall mean collective reference
to the ACCBI Fee Property and the IDNR Parcel.
"ACCBI Riverboat" shall mean the whole of the
vessel named below and described as follows:
Vessel Name Official Number
AMERISTAR II 1035267
together with any and all present and future engines,
boilers, machinery, components, masts, boats, anchors,
cables, chains, rigging, tackle, apparel, furniture,
capstans, outfit, tools, pumps, gear, furnishings,
appliances, fittings, spare and replacement parts, and any
and all other appurtenances thereto, appertaining or
belonging to the ACCBI Riverboat, whether now or hereafter
acquired, and whether on board or not on board, together
with any and all present and future additions, improvements,
and replacements therefor, made in or to the ACCBI
Riverboat, or any part or parts thereof; and all accounts,
earned hire, charter payments, freight, earnings, revenues,
income and profit therefrom and additionally, all log books,
manuals, trip records, maintenance records, inspection
reports, seaworthiness certificates, and other historical
records or information relating to the ACCBI Riverboat; all
of which shall be deemed to be included in any reference
herein to the term "ACCBI Riverboat".
"ACCBI Riverboat/Hotel Facilities" shall mean the
riverboat casino hotel business and related activities
conducted by ACCBI in and on the ACCBI Premises and ACCBI
Riverboat and all improvements now or hereafter situate
thereon.
"ACCBI Security Documents" shall mean collective
reference to the ACCBI Deed of Trust, ACCBI Ship Mortgage,
ACCBI Financing Statements, ACCBI Assignment of Permits,
Licenses and Contracts, ACCBI Assignment of Spaceleases,
Contracts, Rents and Revenues, ACCBI IDNR Attornment
Agreement, ACCBI Hotel Attornment Agreement and all other
documents, instruments or agreements which are executed or
delivered by or on behalf of ACCBI, and accepted by Agent
Bank, on behalf of Lenders, as security for payment of the
Bank Facilities.
"ACCBI Ship Mortgage" shall mean the Preferred
Ship Mortgage to be executed by ACCBI on or before the
Closing Date wherein ACCBI, as owner and mortgagor, grants a
first mortgage lien in favor of Agent Bank on behalf of
Lenders in and to the ACCBI Riverboat and other ACCBI
Collateral more particularly therein described, as such
ACCBI Ship Mortgage may be amended, supplemented or
otherwise modified from time to time.
"ACCBI Spaceleases" shall mean the executed leases
and concession agreements pertaining to the ACCBI
Riverboat/Hotel Facilities, or any portion thereof, wherein
ACCBI is the lessor as set forth on the certain schedule
marked "Schedule 4.15(A)", affixed hereto and by this
reference incorporated herein and made a part hereof.
"ACCBI Title Insurance Policy" shall mean the ALTA
Extended Coverage Lenders Policy of Title Insurance, and the
endorsements thereto, which are to be issued by the Title
Insurance Company, as of the Closing Date, in the amount of
Eighteen Million Four Hundred Thousand Dollars
($18,400,000.00), in favor of Agent Bank, insuring the ACCBI
Deed of Trust as first priority mortgage or leasehold liens,
as applicable, encumbering the ACCBI Premises subject only
to the exceptions shown therein in Schedule B, Part One,
together with such endorsements thereto as are required by
Agent Bank (including, without limitation, a Tie-In
endorsement with regard to the remaining Title Insurance
Policies) all in accordance with the Closing Instructions.
"ACLVI Assignment of Permits, Licenses and
Contracts" shall mean the assignment to be executed by ACLVI
on or before the Closing Date, pursuant to which ACLVI
assigns to Agent Bank on behalf of Lenders, as additional
security for the Bank Facilities, all of its right, title
and interest in and to all permits, licenses and contracts
relating to the ACLVI Hotel/Casino Facility, except those
gaming permits and licenses which are unassignable and
except those permits, licenses and contracts which may not
be assigned without obtaining the consent of ACLVI's
counterparty, as such assignment may be amended, modified,
extended, renewed or restated from time to time.
"ACLVI Assignment of Spaceleases, Contracts, Rents
and Revenues" shall mean the assignment to be executed by
ACLVI on or before the Closing Date, whereby ACLVI assigns
to Agent Bank on behalf of Lenders, as additional security
for the Bank Facilities: (a) all of its right, title and
interest under all ACLVI Spaceleases and ACLVI Equipment
Leases and Contracts relating to the ACLVI Hotel/Casino
Facility and (b) all rents, issues, profits, revenues and
income from the ACLVI Real Property and the ACLVI
Hotel/Casino Facility and any other business activity
conducted on the ACLVI Real Property, together with any and
all future expansions thereof, related thereto or used in
connection therewith, as such assignment may be amended,
modified, extended, renewed or restated from time to time.
"ACLVI Collateral" shall mean collective reference
to: (i) all of the ACLVI Real Property, ACLVI FF&E, and the
contract rights, leases, intangibles and other interests of
ACLVI, which are subject to the liens and security interests
of the ACLVI Security Documents; (ii) all rights of ACLVI
assigned as additional security pursuant to the terms of the
ACLVI Security Documents; and (iii) any and all other
property and/or intangible rights, interest or benefits
inuring to or in favor of ACLVI, which are in any manner
assigned, pledged, encumbered or otherwise hypothecated in
favor of Agent Bank on behalf of Lenders to secure payment
of the Bank Facilities.
"ACLVI Deed of Trust" shall mean the Deed of
Trust, Fixture Filing and Security Agreement with Assignment
of Rents to be executed by ACLVI on or before the Closing
Date in favor of Agent Bank on behalf of the Lenders,
encumbering the ACLVI Real Property, ACLVI FF&E and other
ACLVI Collateral therein described, together with ACLVI's
rights under the Option Agreement and all right, title and
interest of ACLVI acquired on and after the Closing Date in
and to the Option Property or any portion or portions
thereof, for the purpose of securing the Bank Facilities and
Borrowers' payment and performance under each of the Loan
Documents (other than the Environmental Certificate), as
such deed of trust may be amended, modified, extended,
renewed or restated from time to time.
"ACLVI Equipment Leases and Contracts" shall mean
the executed leases and purchase contracts pertaining to the
ACLVI FF&E wherein ACLVI is the lessee or vendee, as the
case may be, as set forth on that certain schedule marked
"Schedule 4.16(D)", affixed hereto and by this reference
incorporated herein and made a part hereof.
"ACLVI FF&E" shall mean the furniture, fixtures
and equipment and all gaming equipment and devices which
have been installed or are to be installed and used or owned
by ACLVI in connection with the operation of the ACLVI
Hotel/Casino Facility.
"ACLVI Financing Statements" shall mean the
Uniform Commercial Code financing statements to be filed in
the Office of the Secretary of State of the State of Nevada
and in the Office of the County Recorder of Xxxxx County,
Nevada, in order to perfect the security interest granted to
Agent Bank on behalf of Lenders under the ACLVI Deed of
Trust and other ACLVI Security Documents in accordance with
requirements of the Nevada Uniform Commercial Code, as such
financing
statements may be amended, modified, extended, renewed
or restated from time to time.
"ACLVI Hotel/Casino Facility" shall mean the
improvements and the hotel and casino business and related
activities to be conducted on the ACLVI Real Property
following completion of the ACLVI Project.
"ACLVI Permitted Encumbrances" shall mean, at any
particular time, (i) liens for taxes, assessments or
governmental charges not then due and payable or not then
delinquent, (ii) statutory liens for labor and/or materials
and liens for taxes, assessments or governmental charges the
validity of which, in either instance, are being contested
in good faith by Borrowers by appropriate proceedings, and
as provided in Sections 5.03 and 5.10 hereof, respectively,
provided that, Borrowers shall have maintained adequate
reserves in accordance with GAAP for payment of same,
(iii) liens incurred or deposits made in the ordinary course
of business in connection with workers' compensation,
unemployment insurance and other types of social security,
or to secure the performance of tenders, statutory
obligations, surety and appeal bonds, bids, leases,
government contracts, trade contracts, performance and
return-of-money bonds and other similar obligations
(exclusive of obligations for the payment of borrowed
money); (iv) leases or subleases granted to others
(including, without limitation, any Subsidiary) not
interfering in any material respect with the ordinary
conduct of the business of the ACLVI Hotel/Casino Facility;
(v) liens created or contemplated by the ACLVI Security
Documents, (vi) the liens, encumbrances and restrictions on
the ACLVI Real Property, ACLVI FF&E and existing
improvements which are shown as exceptions on Schedule B of
the ACLVI Title Insurance Policy to be issued by Title
Insurance Company as of the Closing Date, (vii) liens
consented to in writing by Agent Bank upon the approval of
Requisite Lenders, (viii) liens of legally valid capital
leases and purchase money security interests for ACLVI FF&E
to the extent permitted by Section 6.08, and (ix) each and
every easement, license, restriction or right-of-way that
(A) is hereafter granted to any Governmental Authority or
public utility providing services to the ACLVI Real Property
or (B) does not interfere in any material respect with the
ACLVI Hotel/Casino Facility; and (x) judgment liens, writs,
warrants, levies, distraints, attachments and other similar
process which do not constitute an Event of Default.
"ACLVI Project" shall mean the Phase I of the
hotel and casino facility to be developed, constructed and
completed on the ACLVI Real Property, consisting of
approximately thirty-five thousand (35,000) square feet of
casino space, at least two hundred (200) hotel rooms, four
(4) restaurants, six (6) lounges, a race and sports book,
facilities and a pool.
"ACLVI Real Property" shall mean the real property
owned by ACLVI which is more particularly described on that
certain schedule marked "Schedule D-1", affixed hereto and
by this reference incorporated herein and made a part
hereof, together with all portions of the Option Property to
which ACLVI acquires title on and after the Closing Date.
"ACLVI Security Documents" shall mean collective
reference to the ACLVI Deed of Trust, ACLVI Assignment of
Spaceleases, Contracts, Rents and Revenues, ACLVI Assignment
of Permits, Licenses and Contracts, the ACLVI Financing
Statements, Assignment of Architect's Contract, Assignment
of Existing General Contractor's Agreement, Assignment of
New General Contractor's Agreement, Assignment of Interior
Designer's Contract, Major Subcontractor Assignments and all
other documents, instruments or agreements which are
executed or delivered by or on behalf of ACLVI, and accepted
by Agent Bank, on behalf of the Lenders, as security for
payment of the Bank Facilities.
"ACLVI Spaceleases" shall mean the executed leases
and concession agreements pertaining to the ACLVI
Hotel/Casino Operation, or any portion thereof, wherein
ACLVI is the lessor, as set forth on that certain schedule
marked "Schedule 4.15(D)", affixed hereto and by this
reference incorporated herein and made a part hereof.
"ACLVI Title Insurance Policy" shall mean the ALTA
Extended Coverage Lenders Policy of Title Insurance, and the
endorsements thereto, which are to be issued by the Title
Insurance Company, as of the Closing Date, in the amount of
Forty-Nine Million Seven Hundred Thousand Dollars
($49,700,000.00), in favor of Agent Bank, insuring the ACLVI
Deed of Trust as a first priority mortgage lien encumbering
the ACLVI Real Property therein described subject only to
the exceptions shown therein in Schedule B, Part One,
together with all such endorsements thereto as are required
by Agent Bank (including, without limitation, a Tie-In
endorsement with regard to the remaining Title Insurance
Policies); all in accordance with the Closing Instructions.
"ACVI Assignment of Permits, Licenses and
Contracts" shall mean the assignment to be executed by ACVI
on or before the Closing Date, pursuant to which ACVI
assigns to Agent Bank on behalf of the Lenders, as
additional security for the Bank Facilities, all of its
right, title and interest in and to all assignable permits,
licenses and contracts relating to the ACVI Casino Facility,
except those gaming permits and licenses which are
unassignable and except those permits, licenses and
contracts which may not be assigned without obtaining the
consent of ACVI's counterparty, as such assignment may be
amended, modified, extended, renewed or restated from time
to time.
"ACVI Assignment of Spaceleases, Contracts, Rents
and Revenues" shall mean the Assignment to be executed by
ACVI on or before the Closing Date, pursuant to which ACVI
assigns to Agent Bank on behalf of the Lenders, as
additional security for the Bank Facilities: (a) all of its
right, title and interest under all ACVI Equipment Leases
and Contracts and ACVI Spaceleases relating to the ACVI
Casino Facility, and (b) all rents, issues, profits,
revenues and income from the ACVI Casino Facility and any
other business activity conducted at the ACVI Casino
Facility, together with any future expansions thereof,
related thereto or used in connection therewith, as such
assignment may be amended, modified, extended, renewed or
restated from time to time.
"ACVI Casino Deed of Trust" shall mean that
certain Deed of Trust, Fixture Filing and Security Agreement
with Assignment of Rents to be executed by ACVI as of the
Closing Date in favor of Agent Bank, on behalf of Lenders,
encumbering the ACVI Fee Property and ACVI's interest in the
ACVI Leased Parcels for the purpose of securing the Bank
Facilities and all other sums which may be owing by
Borrowers to the Banks from time to time under the terms of
the Credit Agreement, as it may be amended, modified,
extended, renewed or restated from time to time.
"ACVI Casino Facility" shall mean the riverboat
casino business and related activities conducted by ACVI in
and on the ACVI Fee Property and ACVI Leased Parcels and
ACVI Riverboat and all improvements now or hereafter situate
thereon.
"ACVI Casino Financing Statements" shall mean the
Uniform Commercial Code Financing Statements to be filed in
the office of the Secretary of State of the State of
Mississippi, and in the office of the Chancery Clerk of
Xxxxxx
County, Mississippi, in order to perfect the security
interest granted to Agent Bank on behalf of the Lenders
under the ACVI Casino Deed of Trust in accordance with the
requirements of the Mississippi Uniform Commercial Code, as
such financing statements may be amended, modified,
extended, renewed or restated from time to time.
"ACVI Collateral" shall mean collective reference
to: (i) all of the ACVI Riverboat, ACVI Premises, ACVI FF&E
and the contract rights, leases, intangibles and other
interests of ACVI, which are subject to the liens and
security interests of the ACVI Security Documents; (ii) all
rights of ACVI assigned as additional security pursuant to
the terms of the ACVI Security Documents; and (iii) any and
all other property and/or intangible rights, interest or
benefits inuring to or in favor of ACVI, which are in any
manner assigned, pledged, encumbered or otherwise
hypothecated in favor of Agent Bank on behalf of Lenders to
secure payment of the Bank Facilities.
"ACVI Estoppel Certificates" shall mean collective
reference to the Xxxxx/Xxx Estoppel Certificate and Magnolia
Estoppel Certificate, Xxxxxxxx Estoppel Certificate and the
Trustmark Nondisturbance Agreement.
"ACVI Equipment Leases and Contracts" shall mean
the executed leases and purchase contracts pertaining to the
ACVI FF&E wherein ACVI is the lessee or vendee, as the case
may be, as set forth on that certain schedule marked
"Schedule 4.16(B)", affixed hereto and by this reference
incorporated herein and made a part hereof.
"ACVI FF&E" shall mean the furniture, fixtures and
equipment and all gaming equipment and devices which have
been installed or are to be installed and used or owned by
ACVI in connection with the operation of the ACVI Casino
Facility.
"ACVI Fee Property" shall mean the real property
owned by ACVI which is described on that certain schedule
marked "Schedule B-1", affixed hereto and by this reference
incorporated herein and made a part hereof.
"ACVI Hotel" shall mean the hotel to be
constructed by the ACVI Hotel Subsidiary on the ACVI Hotel
Property with the proceeds of the ACVI Hotel Construction
Loan as permitted under Section 6.08(d).
"ACVI Hotel Construction Deed of Trust" shall mean
the Deed of Trust, Fixture Filing and Security Agreement
with Assignment of Rents to be executed by the ACVI Hotel
Subsidiary in favor of any ACVI Hotel Construction Lender
for the purpose of securing the payment of any ACVI Hotel
Construction Loan and any ACVI Hotel Construction Note.
"ACVI Hotel Construction Financing Statements"
shall mean the Uniform Commercial Code Financing Statements
to be filed in the Office of the Secretary of State of the
State of Mississippi and in the Office of the Chancery Clerk
of Xxxxxx County, Mississippi in order to perfect the
security interest granted to any ACVI Hotel Construction
Lender under any ACVI Hotel Construction Deed of Trust in
accordance with the requirements of the Mississippi Uniform
Commercial Code, as such financing statements may be
amended, modified, extended, renewed or restated from time
to time.
"ACVI Hotel Construction Lender" shall mean the
Person which funds any ACVI Hotel Construction Loan and is
the holder of the ACVI Hotel Construction Note and the
beneficiary and secured party under the ACVI Hotel
Construction Security Documents.
"ACVI Hotel Construction Loan" shall mean a loan
or loans to be made by the ACVI Hotel Construction Lender to
the ACVI Hotel Subsidiary for construction of a hotel on the
ACVI Hotel Property together with any refinancings thereof,
which ACVI Hotel Construction Loan shall not exceed a
maximum aggregate principal amount of Seven Million Dollars
($7,000,000.00) and shall contain terms consistent with the
provisions set forth in Section 6.08(d) of this Credit
Agreement.
"ACVI Hotel Construction Note" shall mean the
promissory note to be executed by the ACVI Hotel Subsidiary,
payable to the order of any ACVI Hotel Construction Lender,
evidencing any ACVI Hotel Construction Loan.
"ACVI Hotel Construction Security Documents" shall
mean collective reference to the ACVI Hotel Construction
Deed of Trust and the ACVI Hotel Construction Financing
Statements.
"ACVI Hotel Deed of Trust" shall mean that certain
Deed of Trust, Fixture Filing and Security Agreement with
Assignment of Rents to be executed by ACVI as of the Closing
Date in favor of Agent Bank, on behalf of Lenders,
encumbering the ACVI Hotel Property, all improvements
constructed thereon
and all ACVI FF&E located thereon for the purpose of
securing the Bank Facilities and all other sums which may be
owing by Borrowers to the Banks from time to time under the
terms of the Credit Agreement, as it may be amended,
modified, extended, renewed or restated from time to time.
"ACVI Hotel Financing Statements" shall mean the
Uniform Commercial Code Financing Statements to be filed in
the office of the Secretary of State of the State of
Mississippi, and in the office of the Chancery Clerk of
Xxxxxx County, Mississippi, in order to perfect the security
interest granted to Agent Bank on behalf of the Lenders
under the ACVI Hotel Deed of Trust in accordance with the
requirements of the Mississippi Uniform Commercial Code, as
such financing statements may be amended, modified,
extended, renewed or restated from time to time.
"ACVI Hotel Property" shall mean the real property
owned by ACVI which is described on that certain schedule
marked "Schedule B-5," affixed hereto and by this reference
incorporated herein and made a part hereof.
"ACVI Hotel Subsidiary" shall mean AC Hotel Corp.,
a Mississippi Corporation, which is the corporation formed
as a wholly owned subsidiary of ACVI for the purpose of
holding title to the ACVI Hotel Property and constructing
and owning the hotel to be constructed on the ACVI Hotel
Property.
"ACVI Land Leases" shall mean collective reference
to the Xxxxx/Xxx Lease, Magnolia Lease and Xxxxxxxx Lease.
"ACVI Leased Parcels" shall mean collective
reference to the Xxxxx/Xxx Parcel, Magnolia Parcel and
Xxxxxxxx Parcel.
"ACVI Permitted Encumbrances" shall mean, at any
particular time, (i) Liens for taxes, assessments or
governmental charges not then due and payable or not then
delinquent, (ii) statutory liens for labor and/or materials
and liens for taxes, assessments or governmental charges the
validity of which, in either instance, are being contested
in good faith by Borrowers by appropriate proceedings, and
as provided in Sections 5.03 and 5.10 hereof, respectively,
provided that, Borrowers shall have maintained adequate
reserves in accordance with GAAP for payment of same,
(iii) Liens incurred or deposits made in the ordinary course
of business in connection with workers' compensation,
unemployment insurance and other types of social security,
or
to secure the performance of tenders, statutory
obligations, surety and appeal bonds, bids, leases,
government contracts, trade contracts, performance and
return-of-money bonds and other similar obligations
(exclusive of obligations for the payment of borrowed
money); (iv) leases or subleases granted to others
(including, without limitation, any Subsidiary) not
interfering in any material respect with the ordinary
conduct of the business of the ACVI Casino Facility;
(v) Liens created or contemplated by the ACVI Security
Documents, (vi) the liens, encumbrances and restrictions on
the ACVI Premises, ACVI FF&E and existing improvements which
are shown as exceptions on Schedule B of the ACVI Title
Insurance Policy to be issued by Title Insurance Company as
of the Closing Date, (vii) Liens consented to in writing by
Agent Bank upon the approval of Requisite Lenders, (viii)
Liens of legally valid capital leases and purchase money
security interests for ACVI FF&E and ACVI Hotel Construction
Security Documents to the extent permitted by Section 6.08,
(ix) each and every easement, license, restriction or right-
of-way that (A) is hereafter granted to any Governmental
Authority or public utility providing services to the ACVI
Premises or (B) does not interfere in any material respect
with the ACVI Casino Facility; and (x) judgment liens,
writs, warrants, levies, distraints, attachments and other
similar process which do not constitute an Event of Default.
"ACVI Premises" shall mean collective reference to
the ACVI Fee Property, the ACVI Leased Parcels and the ACVI
Hotel Property.
"ACVI Riverboat" shall mean the whole of the
vessel named below and described as follows:
Vessel Name Official Number
AMERISTAR 515275
together with any and all present and future engines,
boilers, machinery, components, masts, boats, anchors,
cables, chains, rigging, tackle, apparel, furniture,
capstans, outfit, tools, pumps, gear, furnishings,
appliances, fittings, spare and replacement parts, and any
and all other appurtenances thereto, appertaining or
belonging to the ACVI Riverboat, whether now or hereafter
acquired, and whether on board or not on board, together
with any and all present and future additions, improvements,
and replacements therefor, made in or to the ACVI Riverboat,
or any part or parts thereof; and all accounts, earned hire,
charter payments, freight, earnings, revenues, income and
profit therefrom and additionally, all
log books, manuals, trip records, maintenance records,
inspection reports, seaworthiness certificates, and other
historical records or information relating to the ACVI
Riverboat; all of which shall be deemed to be included in
any reference herein to the term "ACVI Riverboat".
"ACVI Security Documents" shall mean collective
reference to the ACVI Casino Deed of Trust, ACVI Hotel Deed
of Trust, ACVI Ship Mortgage, ACVI Casino Financing
Statements, ACVI Hotel Financing Statements, ACVI Assignment
of Permits, Licenses and Contracts, ACVI Assignment of
Spaceleases, Contracts, Rents and Revenues, ACVI Estoppel
Certificates and all other documents, instruments or
agreements which are executed or delivered by or on behalf
of ACVI, and accepted by Agent Bank, on behalf of Lenders,
as security for payment of the Bank Facilities.
"ACVI Ship Mortgage" shall mean the First
Preferred Ship Mortgage to be executed by ACVI on or before
the Closing Date wherein ACVI, as owner and mortgagor,
grants a first mortgage lien in favor of Agent Bank on
behalf of Lenders in and to the ACVI Riverboat and other
ACVI Collateral more particularly therein described, as such
ACVI Ship Mortgage may be amended, supplemented or otherwise
modified from time to time.
"ACVI Spaceleases" shall mean the executed leases
and concession agreements pertaining to the ACVI Casino
Facility, or any portion thereof, wherein ACVI is the lessor
as set forth on the certain schedule marked
"Schedule 4.15(B)", affixed hereto and by this reference
incorporated herein and made a part hereof.
"ACVI Title Insurance Policy" shall mean the ALTA
Extended Coverage Lenders Policy of Title Insurance, and the
endorsements thereto, which are to be issued by Title
Insurance Company, as of the Closing Date, in the amount of
Thirty Million One Hundred Thousand Dollars ($30,100,000.00)
in favor of Agent Bank, insuring: (i) the ACVI Casino Deed
of Trust as first priority mortgage or leasehold liens, as
applicable, encumbering the ACVI Fee Property and the ACVI
Leased Parcels therein described; and (ii) the ACVI Hotel
Deed of Trust as a first priority mortgage lien encumbering
the ACVI Hotel Property therein described; both subject only
to the exceptions shown therein in Schedule B, Part One
together with such endorsements thereto as are required by
Agent Bank (including, without limitation, a Tie-In
endorsement with
regard to the remaining Title Insurance Policies); all
in accordance with the Closing Instructions.
"Adjusted Fixed Charge Coverage Ratio" as of the
end of any Fiscal Quarter shall mean with reference to the
Borrower Consolidation:
For the Fiscal Quarter under review, together with
the most recently ended three (3) preceding Fiscal
Quarters, the sum of: (i) EBITDA, less (ii) the
aggregate amount of actually paid federal and
state taxes on or measured by income, less
(iii) Distributions actually paid, less
(iv) treasury stock purchases
Divided by ()
The sum of: (i) the aggregate amount of actually
paid Interest Expense, plus (ii) the aggregate of
Scheduled Reductions, plus (iii) the aggregate of
actual principal payments made on the Gem
Settlement Notes, plus (iv) principal payments or
reductions (without duplication) required to be
made on all other Indebtedness, plus (v) the
current portion of Capitalized Lease Liabilities,
in each case of (i) through (v) determined for the
Fiscal Quarter under review together with the most
recently ended three (3) preceding Fiscal
Quarters.
"Affiliate", as applied to any Person, means any
other Person directly or indirectly controlling, controlled
by, or under common control with, that Person (provided,
however, that Xxxxxx and Xxxxxxxxxxx shall not be deemed to
be Affiliates of any Borrower by reason of the issuance of
the Gem Settlement Notes or other payments to be made under
the Gem Merger Agreement or Gem Settlement Agreement or by
reason of the Gem Merger Agreement or Gem Settlement
Agreement). For the purposes of this definition, "control"
(including, with correlative meanings, the terms
"controlling", "controlled by" and "under common control
with"), as applied to any Person, means the possession,
directly or indirectly, of the power to direct or cause the
direction of the management and policies of that Person,
whether through the ownership of voting securities or by
contract or otherwise.
"Agent Bank" shall mean WFB in its capacity as
administrative and collateral agent for Lenders and
Swingline Lender.
"Aggregate Commitment" shall mean reference to the
aggregate amount committed by Lenders for advance to or on
behalf of the Borrower Consolidation as Borrowings and
Construction Disbursements under the Credit Facility in the
initial principal amount of One Hundred Twenty-Five Million
Dollars ($125,000,000.00), subject to the limitations for
advance as set forth in the definition of Maximum Permitted
Balance.
"Aggregate Commitment Reduction Schedule" shall
mean the Aggregate Commitment Reduction Schedule marked
"Schedule 2.01(c)", affixed hereto and by this reference
incorporated herein and made a part hereof, setting forth
the Scheduled Reductions and Maximum Scheduled Balance as of
each Reduction Date under the Credit Facility.
"Aggregate Outstandings" shall mean collective
reference to the sum of the Funded Outstandings and
Swingline Outstandings as of any given date of
determination.
"Applicable Margin" means for any Base Rate Loan
or LIBOR Loan the applicable per annum percentage amount to
be added to the Base Rate or the LIBO Rate, as the case may
be, as follows: (i) commencing on the Closing Date and
continuing until the Rate Adjustment Date, one and one-
quarter percent (1.25%) to be added to the Base Rate and two
and one-half percent (2.5%) to be added to the applicable
LIBO Rate; (ii) commencing on the Rate Adjustment Date and
continuing until the Maturity Date, the margin rates set
forth in the table below based on the Leverage Ratio of the
Borrower Consolidation as of each Fiscal Quarter end,
commencing with the end of the Fiscal Quarter ending
September 30, 1997, together with the immediately preceding
three (3) Fiscal Quarters on a four (4) Fiscal Quarter
basis, any change in the applicable percentage amount by
reason thereof to be effective as of the 1st day of the
third month immediately following each such Fiscal Quarter
end:
LIBO
LEVERAGE RATIO BASE RATE RATE
MARGIN MARGIN
Greater than 4.00 2.25% 3.5%
to 1.00
Greater than 3.00 1.75% 3.00%
to 1.00 but less
than or equal to
4.00 to 1.00
LIBO
LEVERAGE RATIO BASE RATE RATE
MARGIN MARGIN
Greater than 2.0 1.25% 2.50%
to 1.0 but less
than or equal to
3.0 to 1.00
Greater than 1.00 0.75% 2.00%
to 1.0 but less
than or equal to
2.0 to 1.00
Less than or equal 0.25% 1.50%
to 1.00 to 1.00
"Architect" shall mean Xxxxxx & Xxxxx Architects,
Ltd., 0000 Xxxxxx Xxxx Xxxx, Xx. 000, Xxxx, Xxxxxx 00000,
who has been engaged by ACLVI for the purpose of preparing
the Structural Plans and Specifications for the design of
the structural and exterior components of the ACLVI Project.
"Architect's Consent" shall mean that certain
Architect's Consent and Agreement which is to be executed by
the Architect and delivered to Agent Bank, on behalf of the
Lenders, prior to the Initial Construction Disbursement, for
the purpose, among other things, of evidencing the
Architect's: (i) consent to Assignment of Architect's
Contract; (ii) agreement not to modify the Architect's
Contract without Agent Bank's consent; and (iii) agreement
to continue performance under the Architect's Contract on
behalf of Agent Bank subject to the terms and conditions set
forth therein.
"Architect's Contract" shall mean the Standard
Form of Agreement Between Owner and Architect for Designated
Services, AIA Document B161, 1977 Edition, dated as of
December 12, 1996, by and between Architect and ACLVI under
the terms of which Architect agrees to provide architectural
services in connection with the design of the structural and
exterior components of the ACLVI Project including, but not
limited to, preparation of the Structural Plans and
Specifications.
"Assigned Major Subcontract(s)" shall have the
meaning set forth in Section 5.27(b).
"Assignment and Assumption Agreement" shall mean
the document evidencing an assignment of a Syndication
Interest by any Lender to an Eligible Assignee in the
form of the Assignment, Assumption and Consent Agreement
marked "Exhibit L", affixed hereto and by this reference
incorporated herein and made a part hereof.
"Assignment of Architect's Contract" shall mean
the Assignment of Architect's Contract with Plans and
Specifications under which ACLVI's rights under the
Architect's Contract are assigned to Agent Bank on behalf of
Lenders as additional security for the Bank Facilities.
"Assignment of Existing General Contractor's
Agreement" shall mean the Assignment of Existing General
Contractor's Agreement under which ACLVI's rights under the
Existing General Contractor's Agreement are assigned to
Agent Bank on behalf of Lenders as additional security for
the Bank Facilities.
"Assignment of Interior Designer's Contract" shall
mean the Assignment of Interior Designer's Contract with
Plans and Specifications under which ACLVI's rights under
the Interior Designer's Contract are assigned to Agent Bank
on behalf of Lenders as additional security for the Bank
Facilities.
"Assignment of New General Contractor's Agreement"
shall mean the Assignment of New General Contractor's
Agreement under which ACLVI's rights under the New General
Contractor's Agreement are assigned to Agent Bank on behalf
of Lenders as additional security for the Bank Facilities,
the terms of which shall be substantially the same as set
forth in the Assignment of Existing General Contractor's
Agreement.
"Assignments" shall mean collective reference to
the Assignments of Spaceleases, Contracts, Rents and
Revenues, Assignments of Permits, Licenses and Contracts,
Assignment of Architect's Contract, Assignment of Interior
Designer's Contract, Assignment of Existing General
Contractor's Agreement, Assignment of New General
Contractor's Agreement and Major Subcontractor Assignments.
"Assignments of Permits, Licenses and Contracts"
shall mean collective reference to the CPI Assignment of
Permits, Licenses and Contracts, ACLVI Assignment of
Permits, Licenses and Contracts, ACCBI Assignment of
Permits, Licenses and Contracts and ACVI Assignment of
Permits, Licenses and Contracts.
"Assignments of Spaceleases, Contracts, Rents and
Revenues" shall mean collective reference to the CPI
Assignment of Spaceleases, Contracts, Rents and Revenues,
ACLVI Assignment of Spaceleases, Contracts, Rents and
Revenues, ACCBI Assignment of Spaceleases, Contracts, Rents
and Revenues and ACVI Assignment of Spaceleases, Contracts,
Rents and Revenues.
"Authorized Officer(s)" shall mean, relative to
the Borrower Consolidation, those of the respective officers
whose signatures and incumbency shall have been certified to
Agent Bank and the Banks as required in Section 3.05(iv) of
the Credit Agreement with the authority and responsibility
to deliver Notices of Borrowing, Construction Disbursement
Requests, Continuation/ Conversion Notices, Pricing
Certificates, Availability Limit Certificates, Compliance
Certificates, Notices of Swingline Advances and all other
requests, notices, reports, consents, certifications and
authorizations on behalf of Borrowers.
"Availability Determination Date" shall mean the
date upon which Agent Bank receives an Availability Limit
Certificate in accordance with Section 5.08(f) setting forth
the calculation of EBITDA as of the most recently ended
Fiscal Quarter.
"Availability Limit" shall mean three and one-
quarter (3.25) times (x) EBITDA of the Borrower
Consolidation determined as of the end of each Fiscal
Quarter together with the immediately preceding three (3)
Fiscal Quarters on a four (4) Fiscal Quarter basis as set
forth on an Availability Limit Certificate and received by
Agent Bank on each Availability Determination Date.
"Availability Limit Certificate" shall have the
meaning set forth in Section 5.08(f).
"Available Borrowings" shall mean, at any time,
and from time to time, the aggregate amount available to
Borrowers for a Borrowing, Construction Disbursement or a
Swingline Advance not exceeding the amount of the Maximum
Availability, as of each date of determination.
"Bank Facilities" shall mean collective reference
to the Credit Facility, Swingline Facility and Construction
Loan Subfacility.
"Bank Facility Termination" shall mean
indefeasible payment in full of all sums owing under the
Bank Facilities and each of the Loan Documents and the
irrevocable termination of the obligation of Lenders to
advance Borrowings and Construction Disbursements under the
Credit Facility and of Swingline Lender to advance Swingline
Advances under the Swingline Facility.
"Banking Business Day" means (a) with respect to
any Borrowing, payment or rate determination of LIBOR Loans,
a day, other than a Saturday or Sunday, on which Agent Bank
is open for business in San Francisco and on which dealings
in Dollars are carried on in the London interbank market,
and (b) for all other purposes any day excluding Saturday,
Sunday and any day which is a legal holiday under the laws
of the States of California and/or Nevada, or is a day on
which banking institutions located in California and/or
Nevada are required or authorized by law or other
governmental action to close.
"Bankruptcy Code" shall mean the United States
Bankruptcy Code, as amended, 11 U.S.C. Section 101, et seq.
"Banks" shall have the meaning set forth in the
Preamble to this Credit Agreement.
"Base Rate" shall mean, as of any date of
determination, the rate per annum equal to the higher of
(a) the Prime Rate in effect on such date and (b) the
Federal Funds Rate in effect on such date plus one-half of
one percent (1/2 of 1%) (fifty basis points).
"Base Rate Loan" shall mean reference to that
portion of the unpaid principal balance of the Credit
Facility bearing interest with reference to the Base Rate
plus the Applicable Margin.
"Borrower Consolidation" shall mean collective
reference to Borrowers on a consolidated basis, without
regard to any other Subsidiaries or Affiliates.
"Borrower Construction Budget" shall mean the line
item breakdown for those Construction Completion Costs of
the ACLVI Project which are not a part of the General
Contractor's Agreement or General Contractor Budget.
"Borrower Construction Expenditures" shall mean
collective reference to the aggregate amount of funds which
may be required to be advanced by Borrowers at any
time and from time to time for payment of the costs and
expenses for construction and development of the ACLVI
Project in accordance with the Project Development Budget,
other than from the Bank Facilities or from third party
purchase money financing.
"Borrowers" shall mean collective reference to
ACI, CPI, ACLVI, ACCBI and ACVI.
"Borrowing(s)" shall mean such amounts as
Borrowers may request from Agent Bank from time to time to
be advanced under the Credit Facility by Notice of Borrowing
in the manner provided in Section 2.03 and/or Construction
Disbursement Request in the manner provided in Section 2.09
or at the request of Agent Bank pursuant to Section 2.08.
"Xxxxx/Xxx Estoppel Certificate" shall mean that
certain Acknowledgment and Estoppel Certificate duly
executed by the Xxxxx/Xxx Trustee, as lessor, and ACVI, as
lessee, under the Xxxxx/Xxx Lease, wherein each certifies
and represents to Agent Bank on behalf of Lenders that
(a) the Xxxxx/Xxx Lease represents the entire agreement
between the parties thereto with respect to the Xxxxx/Xxx
parcel, (b) the Xxxxx/Xxx Lease has not been modified,
supplemented or amended except as described herein, (c) to
the best knowledge of the Xxxxx/Xxx Trustee and to the best
knowledge of ACVI there are no defaults presently existing
or continuing under any of the provisions of the Xxxxx/Xxx
Lease, and (d) other provisions regarding notice to Agent
Bank on behalf of the Lenders in the event of default
thereunder and Agent Bank's entitlement to the benefit of
certain mortgagee protection provisions which are set forth
by the Xxxxx/Xxx Lease.
"Xxxxx/Xxx Lease" shall mean that certain
agreement dated December 11, 1992, between the Xxxxx/Xxx
Parties, as lessors, and Xxxxxxx, as lessee, a Memorandum of
which was recorded on July 16, 1993, in Deed Book 980, at
Page 830, of the records of the Chancery Clerk of Xxxxxx
County, Mississippi, Xxxxxxx'x interest thereunder, among
other things, having been assigned to ACVI pursuant to that
certain Assignment of Leasehold and Option to Purchase
recorded in Book 990, at Page 417, of the records of the
Chancery Clerk of Xxxxxx County, Mississippi, the interest
of the Xxxxx/Xxx Parties under the Xxxxx/Xxx Lease having
been conveyed to the Xxxxx/Xxx Trustee pursuant to that
certain Deed dated May 15, 1993, recorded in the records of
the Chancery Clerk of Xxxxxx County, Mississippi, in Deed
Book 980, at Page 839, and the
Xxxxx/Xxx Lease having been amended pursuant to that
First Amendment to Lease Agreement dated as of June 1, 1995,
executed between the Xxxxx/Xxx Trustee, as owner, and ACVI,
as tenant, a memorandum of which was recorded on July 5,
1995 in Deed Book 1048, at Page 203, of the records of the
Chancery Clerk of Xxxxxx County, Mississippi.
"Xxxxx/Xxx Lease Parcel" shall mean the real
property and appurtenances which is the subject of the
Xxxxx/Xxx Lease, a description of which is more particularly
described on that certain schedule marked "Schedule B-3",
affixed hereto and by this reference incorporated herein and
made a part hereof.
"Xxxxx/Xxx Parties" shall mean collective
reference to Xxxxxx Xxx Xxxxx Xxx, Xxxxxxx X. Xxxxx, Xxxxx
X. Xxxxx, Xx., Xxxxx Xxxxx Xxxxx, Xxxx Xxxxx Xxxxxx and Xxxx
X. Xxxxx.
"Xxxxx/Xxx Trustee" shall mean Xxxxxxxx X.
Xxxxxxx, Xx., as trustee of the Xxxxx/Xxx Family Trust dated
May 15, 1993.
"Breakage Charges" shall have the meaning set
forth in Section 2.07(c) of the Credit Agreement.
"CPI Assignment of Permits, Licenses and
Contracts" shall mean the assignment to be executed by CPI
as of the Closing Date, pursuant to which CPI assigns to
Agent Bank on behalf of Lenders, as additional security for
the Bank Facilities, all of its right, title and interest in
and to all permits, licenses and contracts relating to the
CPI Hotel/Casino Facilities, except those gaming permits and
licenses which are unassignable and except those permits,
licenses and contracts which may not be assigned without the
consent of CPI's counterparty.
"CPI Assignment of Spaceleases, Contracts, Rents
and Revenues" shall mean the assignment to be executed by
CPI on or before the Closing Date, whereby CPI assigns to
Agent Bank on behalf of Lenders, as additional security for
the Bank Facilities: (a) all of its right, title and
interest under all CPI Spaceleases and CPI Equipment Leases
and Contracts relating to the CPI Hotel/Casino Facilities
and (b) all rents, issues, profits, revenues and income from
the CPI Real Property and the operation of the CPI
Hotel/Casino Facilities and any other business activity
conducted on the CPI Real Property, together with any and
all future expansions thereof, related thereto or used in
connection therewith, as such
assignment may be amended, modified, extended, renewed
or restated from time to time.
"CPI Collateral" shall mean collective reference
to: (i) all of the CPI Real Property, CPI FF&E and the
contract rights, leases, intangibles and other interests of
CPI which are subject to the liens and security interests of
the CPI Security Documents; (ii) all rights of CPI assigned
as additional security pursuant to the terms of the CPI
Security Documents; and (iii) any and all other property
and/or intangible rights, interest or benefits inuring to or
in favor of Borrowers, which are in any manner assigned,
pledged, encumbered or otherwise hypothecated in favor of
Agent Bank on behalf of Lenders to secure payment of the
Bank Facilities.
"CPI Deed of Trust" shall mean the Deed of Trust,
Fixture Filing and Security Agreement with Assignment of
Rents to be executed by CPI on or before the Closing Date in
favor of Agent Bank, on behalf of Lenders, for the purpose
of securing the Bank Facilities and Borrowers payment and
performance under each of the Loan Documents (other than the
Environmental Certificate) as such deed of trust may be
amended, modified, extended, renewed or restated from time
to time.
"CPI Equipment Leases and Contracts" shall mean
the executed leases and purchase contracts pertaining to the
CPI FF&E wherein CPI is the lessee or vendee, as the case
may be, as set forth on that certain schedule marked
"Schedule 4.16(c)", affixed hereto and by this reference
incorporated herein and made a part hereof.
"CPI FF&E" shall mean the furniture, fixtures and
equipment and all gaming equipment and devices which have
been installed or are to be installed and used or owned by
CPI in connection with the operation of the CPI Hotel/Casino
Facilities.
"CPI Financing Statements" shall mean the Uniform
Commercial Code financing statements to be filed in the
Office of the Secretary of State of the State of Nevada and
in the Office of the County Recorder of Elko County, Nevada,
in order to perfect the security interest granted to Agent
Bank on behalf of Lenders under the CPI Deed of Trust and
other CPI Security Documents in accordance with requirements
of the Nevada Uniform Commercial Code, as such financing
statements may be amended, modified, extended, renewed or
restated from time to time.
"CPI Hotel/Casino Facilities" shall mean the hotel
and casino business and related activities conducted on the
CPI Real Property under the trade names of the Horseshu
Casino and Cactus Pete's Hotel & Casino.
"CPI Permitted Encumbrances" shall mean, at any
particular time, (i) liens for taxes, assessments or
governmental charges not then due and payable or not then
delinquent, (ii) statutory liens for labor and/or materials
and liens for taxes, assessments or governmental charges the
validity of which, in either instance, are being contested
in good faith by Borrowers by appropriate proceedings, and
as provided in Sections 5.03 and 5.10 hereof, respectively,
provided that, Borrowers shall have maintained adequate
reserves in accordance with GAAP for payment of same,
(iii) liens incurred or deposits made in the ordinary course
of business in connection with workers' compensation,
unemployment insurance and other types of social security,
or to secure the performance of tenders, statutory
obligations, surety and appeal bonds, bids, leases,
government contracts, trade contracts, performance and
return-of-money bonds and other similar obligations
(exclusive of obligations for the payment of borrowed
money); (iv) leases or subleases granted to others
(including, without limitation, any Subsidiary) not
interfering in any material respect with the ordinary
conduct of the business of the CPI Hotel/Casino Facilities,
(v) liens created or contemplated by the CPI Security
Documents, (vi) the liens, encumbrances and restrictions on
the CPI Real Property, CPI FF&E and existing improvements
which are shown as exceptions on Schedule B of the CPI Title
Insurance Policy to be issued by Title Insurance Company as
of the Closing Date, (vii) liens consented to in writing by
Agent Bank upon the approval of Requisite Lenders, (viii)
liens of legally valid capital leases and purchase money
security interests for CPI FF&E to the extent permitted by
Section 6.08, (ix) each and every easement, restriction,
license or right-of-way that (A) is hereafter granted to any
Governmental Authority or public utility providing services
to the CPI Real Property or (B) does not interfere in any
material respect with the CPI Hotel/Casino facilities; and
(x) judgment liens, writs, warrants, levies, distraints,
attachments and other similar process which do not
constitute an Event of Default.
"CPI Real Property" shall mean the real property
owned by CPI which is more particularly described on that
certain schedule marked "Schedule C-1", affixed hereto and
by this reference incorporated herein and made a part
hereof.
"CPI Security Documents" shall mean collective
reference to the CPI Deed of Trust, CPI Assignment of
Spaceleases, Contracts, Rents and Revenues, CPI Assignment
of Permits, Licenses and Contracts, the CPI Financing
Statements and all other documents, instruments or
agreements which are executed or delivered by or on behalf
of CPI and accepted by Agent Bank, on behalf of Lenders, as
security for payment of the Bank Facilities.
"CPI Spaceleases" shall mean the executed leases
and concession agreements pertaining to the CPI Hotel/Casino
Facilities, or any portion thereof, wherein CPI is the
lessor, as set forth on that certain schedule marked
"Schedule 4.15(C)", affixed hereto and by this reference
incorporated herein and made a part hereof.
"CPI Title Insurance Policy" shall mean the ALTA
Extended Coverage Lenders Policy of Title Insurance, and the
endorsements thereto, which are to be issued by the Title
Insurance Company, as of the Closing Date, in the amount of
Twenty-Six Million Eight Hundred Thousand Dollars
($26,800,000.00), in favor of Agent Bank, insuring the CPI
Deed of Trust as a first priority mortgage lien encumbering
the CPI Real Property therein described, subject only to the
exceptions shown therein in Schedule B, Part One, together
with such endorsements thereto as are required by Agent Bank
(including, without limitation, a Tie-In endorsement with
regard to the remaining Title Insurance Policies); all in
accordance with the CPI Closing Instructions.
"Capital Expenditures" shall mean, for any period,
without duplication, the aggregate of all expenditures
(whether paid in cash or accrued as liabilities during that
period and including Capitalized Lease Liabilities) by a
Borrower or the Borrower Consolidation, as the context may
require, during such period that, in conformity with GAAP,
are required to be included in or reflected by the property,
plant or equipment or similar fixed or capital asset
accounts reflected in the balance sheet of a Borrower or the
Borrower Consolidation, as the context may require
(including equipment which is purchased simultaneously with
the trade-in of existing equipment owned by Borrower or the
Borrower Consolidation, as the context may require, to the
extent of (a) the gross amount of such purchase price less
(b) the cash proceeds of trade-in credit of the equipment
being traded in at such time), but excluding capital
expenditures made in connection with the replacement or
restoration of assets, to the extent reimbursed or
refinanced from insurance proceeds
paid on account of the loss of or damage to the assets
being replaced or restored, or from awards of compensation
arising from the taking by condemnation of or the exercise
of the power of eminent domain with respect to such assets
being replaced or restored.
"Capital Proceeds" shall mean the net proceeds
(after deducting all reasonable expenses incurred in
connection therewith) available to the Borrower
Consolidation in excess of One Million Dollars
($1,000,000.00) in the aggregate during any Fiscal Year from
(i) partial or total condemnation or destruction of any part
of the Collateral, (ii) insurance proceeds (other than rent
insurance and business interruption insurance) received in
connection with damage to or destruction of the Collateral,
and (iii) the sale or other disposition of any portion of
the Collateral in accordance with the provisions of this
Credit Agreement (not including, however, any proceeds
received by Borrowers, or any of them, from a sale,
condemnation, damage or destruction of FF&E or other
personal property if such FF&E or other personal property is
replaced by items of equivalent value and utility, in each
case such exclusion to apply only during any period in which
no Default or Event of Default has occurred and is
continuing).
"Capitalized Lease Liabilities" means all monetary
obligations of the Borrower Consolidation under any leasing
or similar arrangement which, in accordance with GAAP, would
be classified as capitalized leases, and, for purposes of
this Credit Agreement, the amount of such obligations shall
be the capitalized amount thereof, determined in accordance
with GAAP, and the stated maturity thereof shall be the date
of the last payment of rent or any other amount due under
such lease prior to the first date upon which such lease may
be terminated by the lessee without payment of a penalty.
"Cash" shall mean, when used in connection with
any Person, all monetary and non-monetary items owned by
that Person that are treated as cash in accordance with
GAAP.
"Cash Equivalents" shall mean, when used in
connection with any Person, that Person's Investments in:
(a) Government Securities due within one (1)
year after the date of the making of the
Investment;
(b) readily marketable direct obligations of
any State of the United States of America given on
the date of such Investment a credit rating of at
least Aa by Xxxxx'x Investors Service, Inc. or AA
by Standard & Poor's Corporation, in each case due
within one (1) year from the making of the
Investment;
(c) certificates of deposit issued by, bank
deposits in, eurodollar deposits through, bankers'
acceptance of, and repurchase agreements covering
Government Securities executed by, any bank
incorporated under the laws of the United States
of America or any State thereof and having on the
date of such Investment combined capital, surplus
and undivided profits of at least Two Hundred
Fifty Million Dollars ($250,000,000.00), or total
assets of at least Five Billion Dollars
($5,000,000,000.00), in each case due within one
(1) year after the date of the making of the
Investment;
(d) certificates of deposit issued by, bank
deposits in, eurodollar deposits through, bankers'
acceptances of, and repurchase agreements covering
Government Securities executed by, any branch or
office located in the United States of America of
a bank incorporated under the laws of any
jurisdiction outside the United States of America
having on the date of such Investment combined
capital, surplus and undivided profits of at least
Five Hundred Million Dollars ($500,000,000.00), or
total assets of at least Fifteen Billion Dollars
($15,000,000,000.00) in each case due within one
year after the date of the making of the
Investment;
(e) repurchase agreements covering
Government Securities executed by a broker or
dealer registered under Section 15(b) of the
Securities Exchange Act of 1934 having on the date
of the Investment capital of at least One Hundred
Million Dollars ($100,000,000.00), due within
thirty (30) days after the date of the making of
the Investment; provided that the maker of the
Investment receives written confirmation of the
transfer to it of record ownership of the
Government Securities on the books of a "primary
dealer" in such Government Securities on the
books of such registered broker or dealer, as soon
as practicable after the making of the Investment;
(f) readily marketable commercial paper of
corporations doing business in and incorporated
under the laws of the United States of America or
any State thereof or of any corporation that is
the holding company for a bank described in
clauses (c) or (d) above given on the date of such
Investment a credit rating of at least P-1 by
Xxxxx'x Investors Service, Inc. or A-1 by Standard
& Poor's Corporation, in each case due within
three hundred sixty-five (365) days after the date
of the making of the Investment;
(g) "money market preferred stock" issued by
a corporation incorporated under the laws of the
United States of America or any State thereof
given on the date of such Investment a credit
rating of at least Aa by Xxxxx'x Investors
Service, Inc. or AA by Standard & Poor's
Corporation, in each case having an investment
period not to exceed fifty (50) days; provided
that (i) the amount of all such Investments issued
by the same issuer does not exceed Five Million
Dollars ($5,000,000.00) and (ii) the aggregate
amount of all such Investments does not exceed
Fifteen Million Dollars ($15,000,000.00); and
(h) a readily redeemable "money market
mutual fund" sponsored by a bank described in
clauses (c) or (d) hereof, or a registered broker
or dealer described in clause (e) hereof, that has
and maintains an investment policy limiting its
investments primarily to instruments of the types
described in clauses (a) through (g) hereof and
having on the date of such Investment total assets
of at least One Billion Dollars
($1,000,000,000.00).
"Casino Facility" shall mean individual reference
and "Casino Facilities" shall mean collective reference to
the CPI Hotel/Casino Facilities, ACLVI Hotel/Casino
Facility, the ACCBI Riverboat/Hotel Facilities and the ACVI
Casino Facility.
"Certificate of Occupancy" shall mean a final or
temporary certificate of occupancy issued by the appropriate
Governmental Authorities for the occupancy and use of
the ACLVI Project.
"Change in Control" shall mean the occurrence of
any of the following:
(a) any Person, other than members of the
Xxxxxxx Family Group, owns or controls, more than
fifty percent (50%) of the common voting stock of
ACI; or
(b) ACI fails to own, directly or
indirectly, one hundred percent (100%) of the
capital stock interests of CPI, ACLVI, ACCBI or
ACVI.
"Closing Certificate" shall have the meaning
ascribed to such term in Section 3.05(v).
"Closing Date" shall mean the date upon which: (i)
each condition precedent required under Article IIIA of this
Credit Agreement has been satisfied or waived and (ii) the
Security Documentation has been filed and/or recorded in
accordance with and in the manner required by the Closing
Instructions, or such other date as to which Agent Bank and
Borrower agree in writing.
"Closing Disbursements" shall have the meaning set
forth in Section 2.02(a).
"Closing Instructions" shall mean the Closing
Instructions to be given by Agent Bank to the Title
Insurance Company on or before the Closing Date setting
forth the requirement of Lenders for issuance of the Title
Insurance Policies and other conditions for the occurrence
of the Closing Date.
"Collateral" shall mean: (a) a collective
reference to the CPI Collateral, the ACLVI Collateral, the
ACCBI Collateral, and the ACVI Collateral; and (b) any and
all other property and/or intangible rights, interests or
benefits inuring to or in favor of Borrowers which are in
any manner assigned, pledged, encumbered or otherwise
hypothecated in favor of Lenders or Agent Bank on behalf of
the Lenders to secure repayment of the Bank Facilities.
"Collateral Properties" shall mean collective
reference to the real properties, improvements and
associated FF&E which are pledged and encumbered as
Collateral securing
repayment of the Credit Facility from time to time,
which shall consist of the CPI Real Property, ACLVI Real
Property, ACCBI Premises, and ACVI Premises, together with
any other real property or interests therein which may be
held by Agent Bank from time to time to secure repayment of
the Bank Facilities.
"Completion Date" shall mean the date upon which:
(a) the ACLVI Project has been completed in substantial
accordance and compliance with the Plans and Specifications
and in accordance and compliance with the terms and
conditions of all Governmental Authorities, (b) the
Occupancy Date has occurred, (c) a Notice of Completion has
been posted with respect to the ACLVI Project and recorded
in the office of the County Recorder of Xxxxx County,
Nevada, the lien period has expired or the liens have been
removed and Title Insurance Company has issued its final
101.6 indorsement to the Title Insurance Policy showing no
liens, claims or encumbrances except those approved by Agent
Bank upon the consent of Requisite Lenders, (d) Borrowers
have obtained all licenses, permits and other authorizations
from all necessary Governmental Authorities for the use and
operation of the ACLVI Project as a part of the ACLVI
Hotel/Casino Facility, and (e) each other condition
applicable to the final release of retainage, as set forth
in Section 9.15, shall have been met, other than with
respect to the completion of "Punch List" items.
"Compliance Certificate" shall mean a compliance
certificate as described in Section 5.08(e) which is more
particularly described on "Exhibit F", affixed hereto and by
this reference incorporated herein and made a part hereof.
"Construction Budgets" shall mean collective
reference to the Project Development Budget, General
Contractors Budget and Borrower Construction Budget.
"Construction Completion Costs" means, as of any
date of determination, an amount equal to the remaining
unpaid costs, including, without limitation all Hard Costs
and Soft Costs, and including retainage, of causing the
ACLVI Project to be completed and opened to the public,
together with all other requirements for the occurrence of
the Completion Date, as determined by Lenders' Consultant
and Agent Bank from time to time.
"Construction Cost Analysis" shall mean the review
and analysis of the Plans and Specifications, General
Contractor Budget, Borrower Construction Budget,
Project Development Budget and all other related
documentation, including, without limitations, the General
Contractor's Agreement, Architect's Contract, subcontracts,
bids and other agreements relating to and necessary for the
construction of the ACLVI Project and occurrence of the
Completion Date, to be made from time to time by Lenders'
Consultant and Agent Bank for the purpose of determining the
Construction Completion Costs as of any date of
determination.
"Construction Disbursement Request" shall mean the
form to be executed and appropriately completed by an
Authorized Officer and submitted to Agent Bank concurrently
with each request for the advance by Lenders of a
Construction Disbursement during the Construction Period, a
copy of which form is marked "Exhibit K", affixed hereto and
by this reference incorporated herein and made a part
hereof.
"Construction Disbursements" shall mean reference
to the proceeds of the Construction Loan Subfacility which
are disbursed for financing the development, furnishing,
equipping and construction of the ACLVI Project in
accordance with the Project Development Budget and as
provided in Article IX.
"Construction Loan Subfacility" shall mean the
agreement of Lenders to make Construction Disbursements
during the Construction Period to Borrowers for construction
and completion of the ACLVI Project in accordance with the
Project Development Budget subject to terms and conditions
set forth in the Credit Agreement.
"Construction Overage" shall have the meaning set
forth in Section 9.07(f) of the Credit Agreement.
"Construction Period" shall mean the period
commencing on the Closing Date and terminating on the
Completion Date.
"Construction Schedule" shall mean the anticipated
time schedule for completion of the ACLVI Project as shown
on a schedule to be delivered to Agent Bank on or before the
Initial Construction Disbursement Date.
"Contingency Reserve" shall have the meaning set
forth in Section 9.06.
"Contingency Transaction Ledger" shall have the
meaning set forth in Section 9.06.
"Contingent Liability(ies)" shall mean, as to any
Person any obligation of such Person guaranteeing or having
the economic effect of guaranteeing any Indebtedness, leases
or dividends ("primary obligations") of any other Person
that is not a Borrower hereunder (the "primary obligor") in
any manner, whether directly or indirectly, including,
without limitation, any obligation of such Person, whether
or not contingent, (a) to purchase any such primary
obligation or any property constituting direct or indirect
security therefor, (b) to advance or supply funds (i) for
the purchase or payment of any such primary obligation or
(ii) to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or
solvency of the primary obligor, (c) to purchase property,
securities or services primarily for the purpose of assuring
the owner of any such primary obligation of the ability of
the primary obligor to make payment of such primary
obligation, (d) to make payment in respect of any net
liability arising in connection with any Interest Rate
Xxxxxx, foreign currency exchange agreement, commodity
hedging agreement or any similar agreement or arrangement in
any such case if the purpose or intent of such agreement is
to provide assurance that such primary obligation will be
paid or discharged, or that any agreements relating thereto
will be complied with, or that the holders of such primary
obligation will be protected (in whole or in part) against
loss in respect thereof or (e) otherwise to assure or hold
harmless the holder of such primary obligation against loss
in respect thereof; provided, however, that the term
Contingent Liability shall not include endorsements of
instruments for deposit or collection in the ordinary course
of business. The amount of any Contingent Liability shall
be deemed to be an amount equal to the stated or
determinable amount of the primary obligation in respect of
which such Contingent Liability is made or, if not stated or
determinable, the reasonably anticipated liability in
respect thereof (assuming such Person is required to perform
thereunder) as determined by such Person in good faith.
"Continuation/Conversion Notice" shall mean a
notice of continuation of or conversion to a LIBOR Loan and
certificate duly executed by an Authorized Officer,
substantially in the form of that certain exhibit marked
"Exhibit D", affixed hereto and by this reference
incorporated herein and made a part hereof.
"Convert, Conversion and Converted" shall refer to
a Borrowing at or continuation of a particular interest rate
basis or conversion of one interest rate basis to
another pursuant to Section 2.05(c).
"Council Bluffs Hotel Associates" shall mean
Council Bluffs Hotel Associates, Inc., an Iowa limited
liability company.
"Credit Agreement" shall mean this Credit
Agreement together with all Schedules and Exhibits attached
thereto, executed by and among Borrowers and Banks setting
forth the terms and conditions of the Credit Facility and
Swingline Facility, as may be amended, modified, extended,
renewed or restated from time to time.
"Credit Facility" shall mean the agreement of
Lenders to fund a reducing revolving line of credit
(including the Construction Loan Subfacility), subject to
the terms and conditions set forth in this Credit Agreement
and the Revolving Credit Note, up to the Maximum Permitted
Balance as reduced from time to time in accordance with the
terms of this Credit Agreement and the Revolving Credit
Note.
"Deeds of Trust" shall mean collective reference
to the CPI Deed of Trust, ACLVI Deed of Trust, ACCBI Deed of
Trust and ACVI Deed of Trust.
"Default" shall mean the occurrence or
non-occurrence, as the case may be, of any event that with
the giving of notice or passage of time, or both, would
become an Event of Default.
"Default Notice Recording" shall mean either:
(i) the recordation of a notice of default
and election to sell by Agent Bank, on behalf of
Lenders, in the office of the County Recorder of
Elko County or Xxxxx County, Nevada, under which a
non-judicial foreclosure proceeding under NRS
Chapter 107 is initiated by Agent Bank as
beneficiary under either or both of the CPI Deed
of Trust and/or the ACLVI Deed of Trust;
(ii) the commencement of a judicial
foreclosure action in a court of competent
jurisdiction, pursuant to which Lenders or Agent
Bank, on behalf of Lenders, seek judicial
foreclosure under NRS Chapter 106 of either or
both
of the CPI Deed of Trust and/or the ACLVI
Deed of Trust;
(iii) the commencement of a non-judicial or
judicial foreclosure proceeding or action, as
applicable, under either or both of the ACVI Deed
of Trust and/or the ACCBI Mortgage pursuant to
which Lenders or Agent Bank on behalf of Lenders
seek non-judicial foreclosure or a judicial action
in a court of competent jurisdiction for
foreclosure under applicable law of either or both
of the ACVI Deed of Trust and/or ACCBI Mortgage;
or
(iv) commencement of a foreclosure action
pursuant to which Lenders or Agent Bank on behalf
of Lenders seek foreclosure of either or both of
the ACCBI Ship Mortgage and/or the ACVI Ship
Mortgage.
"Default Rate" shall have the meaning set forth in
Section 2.12(b) with respect to defaults occurring under the
Notes and shall mean the Prime Rate plus the then Applicable
Margin plus two percent (2%) per annum for all other
purposes.
"Defaulting Lender" means any Lender which fails
or refuses to perform its obligations under this Credit
Agreement within the time period specified for performance
of such obligation or, if no time frame is specified, if
such failure or refusal continues for a period of five (5)
Banking Business Days after notice from Agent Bank.
"Designated Deposit Account" shall mean a deposit
account to be maintained by Borrowers with Agent Bank, as
from time to time designated in writing by an Authorized
Officer.
"Dispute" shall have the meaning set forth in
Section 11.14(a).
"Distributions" shall mean and collectively refer
to any and all cash dividends, loans, management fees,
payments, advances or other distributions, fees or
compensation of any kind or character whatsoever, other than
within the Borrower Consolidation, but shall not include
consideration paid for tangible and intangible assets in an
arms length exchange for fair market value, trade payments
made and other payments for liabilities incurred in the
ordinary course of business or compensation to officers,
directors and employees of Borrowers in the ordinary course
of business.
"Documents" shall have the meaning set forth in
Section 11.14(a).
"Dollars" and "$" means the lawful money of the
United States of America.
"EBITDA" shall mean with reference to any Person,
for any fiscal period under review, the sum of (i) Net
Income for that period, less (ii) any one-time non-Cash gain
reflected in such Net Income, plus (iii) any losses on sales
of assets and other extraordinary losses and one-time non-
Cash charges, plus (iv) Interest Expense for that period,
plus (v) the aggregate amount of federal and state taxes on
or measured by income for that period (whether or not
payable during that period), plus (vi) depreciation,
amortization and all other non-cash expenses for that
period, plus (vii) preopening expenses for that period, in
each case determined in accordance with GAAP and, in the
case of items (iii), (iv), (v), (vi) and (vii), only to the
extent deducted in the determination of Net Income for that
period.
"ERISA" shall mean the Employee Retirement Income
Security Act of 1974, as amended from time to time.
"Eligible Assignee" means (a) another Lender,
(b) with respect to any Lender, any Affiliate of that Lender
and (c) any commercial bank having a combined capital and
surplus of Fifty Million Dollars ($50,000,000.00) or more
that is (i) organized under the Laws of the United States of
America, any State thereof or the District of Columbia or
(ii) organized under the Laws of any other country which is
a member of the Organization for Economic Cooperation and
Development, or a political subdivision of such a country,
provided that (A) such bank is acting through a branch or
agency located in the United States of America and (B) is
otherwise exempt from withholding of tax on interest and
delivers Form 1001 or Form 4224 at the time of any
assignment.
"Environmental Certificate" shall mean the
Certificate and Indemnification Regarding Hazardous
Substances to be executed by Borrowers on or before the
Closing Date as a further inducement to the Banks to
establish the Bank Facilities, as it may be amended,
modified, extended, renewed or restated from time to time.
"Equipment Leases and Contracts" shall mean
collective reference to the CPI Equipment Leases and
Contracts, ACLVI Equipment Leases and Contracts, ACCBI
Equipment Leases and Contracts, ACVI Equipment Leases
and Contracts.
"Equity Offering" shall mean the issuance and sale
of additional shares of common voting stock by ACI to the
public in exchange for Cash or Cash Equivalents and/or the
issuance and sale of shares of common voting stock of any
Subsidiary of ACI to the public in exchange for Cash or Cash
Equivalents.
"Event of Default" shall mean any event of default
as defined in Section 7.01 hereof.
"Exchange Senior Subordinated Notes" shall have
the meaning set forth in Recital E.
"Existing Bank Loan" shall have the meaning
ascribed to such term in Recital Paragraph B.
"Existing Bank Loan Security Documents" shall mean
collective reference to all pledges, security agreements,
mortgages, deeds of trust, financing statements, ship
mortgages and other documents and instruments securing
repayment of the Existing Bank Loans, including, without
limitation, those documents and instruments set forth on the
Schedule of Existing Bank Loan Security Documents marked
"Schedule 3.11(a), affixed hereto and by this reference
incorporated herein and made a part hereof.
"Existing Credit Agreement" shall have the meaning
ascribed to such term in Recital Paragraph B.
"Existing Equipment Intercreditor Agreement" shall
mean that certain letter agreement dated December 12, 1995,
executed by and among ACI, the ACCBI Equipment Lender and
First Interstate Bank of Nevada, N.A., as agent for the
Existing Lenders, providing for the relative priority in
right to payment as between the parties thereto upon
liquidation of the equipment and other collateral securing
repayment of the ACCBI Equipment Loan and the ACCBI
Riverboat in the event of foreclosure of the ACCBI Equipment
Ship Mortgage and/or the ship mortgages securing repayment
of the Existing Bank Loan and ACCBI's guarantee thereof.
"Existing GECC Intercreditor Agreement" shall mean
the Subordination and Intercreditor Agreement dated
December 28, 1995, executed by and among GECC, First
Interstate Bank of Nevada, N.A., as agent for Existing
Lenders, ACCBI Equipment Lender, ACCBI and ACI, for
the purposes of: (i) affirming the subordination of the
ACCBI Equipment Ship Mortgage and the ship mortgages
securing repayment of the Existing Bank Loan and ACCBI's
guarantee thereof to the GECC Ship Mortgage; and
(ii) providing for the relative priority in right to payment
as between GECC, on the one hand, and the ACCBI Equipment
Lender and the holders of the ship mortgages securing
repayment of the Existing Bank Loan and ACCBI's guarantee
thereof, on the other hand, in the event of foreclosure of
the GECC Ship Mortgage, ACCBI Equipment Ship Mortgage and/or
the ship mortgages securing repayment of the Existing Bank
Loan and ACCBI's guarantee thereof.
"Existing General Contractor's Agreement" shall
mean collective reference to the Standard Form of Agreement
Between Owner and Contractor for the Hotel, dated
October 25, 1995, and the Standard Form of Agreement Between
Owner and Contractor for the Casino, dated October 25, 1995,
each of which is entered into by and between ACLVI (as the
successor by merger to Gem pursuant to the Gem Merger) and
General Contractor for the construction of the structural
and exterior components of the ACLVI Project, subject to
additions and deductions as provided in the Contract
Documents, as therein defined, and consistent with the
Project Development Budget.
"Existing General Contractor's Consent" shall mean
that certain Contractor's Consent and Agreement which is to
be executed by the General Contractor and delivered to Agent
Bank, on behalf of the Lenders, prior to the Initial
Construction Disbursement, for the purpose, among other
things, of evidencing the General Contractor's: (i) consent
to the Assignment of Existing General Contractor's
Agreement; (ii) agreement not to modify the Existing General
Contractor's Agreement without Agent Bank's consent; and
(iii) agreement to continue performance under the Existing
General Contractor's Agreement on behalf of Agent Bank
subject to the terms and conditions set forth therein.
"Existing Intercompany Security Documents" shall
mean collective reference to all pledges, security
agreements, mortgages, deeds of trust, financing statements,
ship mortgages and other documents and instruments securing
repayment of any and all loans, advances and extensions of
credit as between or amongst members of the Borrower
Consolidation, including, without limitation, those
documents and instruments set forth on the Schedule of
Existing Intercompany Security Documents marked
"Schedule 3.11(b)",
affixed hereto and by this reference incorporated
herein and made a part hereof.
"Existing Lender(s)" shall have the meaning
ascribed to such term in Recital Paragraph B.
"Existing Note" shall have the meaning ascribed to
such term in Recital Paragraph B.
"FF&E" shall mean reference to the CPI FF&E, the
ACLVI FF&E, ACCBI FF&E and the ACVI FF&E and any other
furniture, fixtures and equipment, including, without
limitation, all gaming devices and associated equipment,
inventories and supplies used in connection with the Casino
Facilities.
"FIRREA" shall mean the Financial Institutions
Reform, Recovery and Enforcement Act of 1989.
"Federal Funds Rate" means, as of any date of
determination, the rate set forth in the weekly statistical
release designated as H.15(519), or any successor
publication, published by the Federal Reserve Board
(including any such successor, "H.15(519)") for such date
opposite the caption "Federal Funds (Effective)". If for
any relevant date such rate is not yet published in
H.15(519), the rate for such date will be the rate set forth
in the daily statistical release designated as the Composite
3:30 p.m. Quotations for U.S. Government Securities, or any
successor publication, published by the Federal Reserve Bank
of New York (including any successor, the "Composite
3:30 p.m. Quotation") for such date under the caption
"Federal Funds Effective Rate". If on any relevant date the
appropriate rate for such date is not yet published in
either H.15(519) or the Composite 3:30 p.m. Quotations, the
rate for such date will be the arithmetic mean of the rates
for the last transaction in overnight Federal funds arranged
prior to 9:00 a.m. (New York City time) on that date by each
of three leading brokers of Federal funds transactions in
New York City selected by the Agent Bank. For purposes of
the Credit Agreement, any change in the Base Rate due to a
change in the Federal Funds Rate shall be effective as of
the opening of business on the effective date of such
change.
"Fee Side Letter" shall mean the Side Letter of
Understanding Regarding Fees to be executed by and between
Borrowers and Agent Bank on or before the Closing Date
concerning payment of the fees more particularly
therein described.
"Financial Covenants" shall mean collective
reference to the financial covenants set forth in Article VI
of this Credit Agreement.
"Financing Statements" shall mean collective
reference to the CPI Financing Statements, ACLVI Financing
Statements, ACCBI Financing Statements and ACVI Financing
Statements.
"Fiscal Quarter" shall mean the consecutive three
(3) month periods during each Fiscal Year beginning on
January 1, April 1, July 1 and October 1 and ending on
March 31, June 30, September 30 and December 31,
respectively.
"Fiscal Year" shall mean the fiscal year period
beginning January 1 of each calendar year and ending on the
following December 31.
"Fiscal Year End" shall mean December 31 of each
calendar year.
"Funded Debt" shall mean with reference to the
Borrower Consolidation for any period the daily average of
the Aggregate Outstandings for such period, plus the total
as of the last day of such period of both the long-term and
current portions (without duplication) of all other
Indebtedness and Capitalized Lease Liabilities, but
excluding the Indebtedness evidenced by the Gem Settlement
Notes.
"Funded Outstandings" shall mean the unpaid
principal amount outstanding on the Credit Facility as of
any given date of determination for Borrowings and
Construction Disbursements made thereunder, but not
including Swingline Outstandings.
"Funding Date" shall mean each date upon which
Lenders fund Borrowings or Construction Disbursements
requested by Borrowers in accordance with the provisions of
Section 2.03 or at the request of Agent Bank pursuant to
Section 2.08.
"GAAP" means generally accepted accounting
principles set forth in the opinions and pronouncements of
the Accounting Principles Board and the American Institute
of Certified Public Accountants and statements and
pronouncements
of the Financial Accounting Standards Board, or in
such other statements by such other entity as may be in
general use by significant segments of the accounting
profession, which are applicable to the circumstances as of
the date of determination.
"GECC" shall mean General Electric Capital
Corporation.
"GECC Ship Mortgage" shall mean the Preferred Ship
Mortgage executed by ACCBI in favor of GECC, received by the
USCG, New Orleans office, on December 29, 1995, and recorded
in the NVDC in Book 95-7, as Instrument No. 793.
"GECC Ship Note" shall mean that certain
Promissory Note dated December 28, 1995, in the original
principal amount of Eleven Million Five Hundred Eleven
Thousand Dollars ($11,511,000.00), executed by ACCBI,
payable to the order of GECC, which is secured by the GECC
Ship Mortgage.
"Gaming Authority(ies)" shall mean any agency,
authority, board, bureau, commission, department, office or
instrumentality of any nature whatsoever of the United
States federal or foreign government, any state, province or
any city or other political subdivision or otherwise and
whether now or hereafter in existence or any officer or
official thereof, including, without limitation, Nevada
Gaming Authorities, Mississippi Gaming Authorities and Iowa
Gaming Authorities, with authority to regulate any gaming
operation (or proposed gaming operation) owned, managed or
operated by the Borrower Consolidation.
"Gaming Devices" shall mean slot machines and
other devices which constitute gaming devices and related
equipment.
"Gaming Laws" means all statutes, rules,
regulations, ordinances, codes and administrative or
judicial precedents pursuant to which any Gaming Authority
possesses regulatory, licensing or permit authority over
gambling, gaming or casino activities conducted by Borrowers
within its jurisdiction, including the Mississippi Gaming
Control Act, the Iowa Gaming Control Act and the Nevada
Gaming Control Act.
"Gaming Permits" shall mean collective reference
to every license, permit or other authorization required to
own, operate and otherwise conduct unrestricted gaming
operations at the Casino Facilities.
"Gem" shall mean Gem Gaming, Inc., a Nevada
corporation, which was merged into ACLVI pursuant to the Gem
Merger.
"Gem Merger" shall have the meaning ascribed to
such term in Recital Paragraph C.
"Gem Merger Agreement" shall have the meaning
ascribed to such term in Recital Paragraph C.
"Gem Settlement Agreement" shall mean that certain
Settlement Agreement made as of May 3, 1997, as amended by a
First Amendment to Settlement Agreement dated June 2, 1997,
each executed by and among ACI, ACLVI, Xxxxxx, Xxxxxxxxxxx
and other parties more particularly therein named for the
purpose of resolving various issues and claims and
considerations to be paid to Xxxxxx and Magliarditi by ACI
to conclude the Gem Merger, all subject to approval by the
Nevada Gaming Authorities.
"Gem Settlement Effective Date" shall have the
meaning ascribed to the term "Effective Date" in the Gem
Settlement Agreement.
"Gem Settlement Notes" shall mean collective
reference to the Xxxxxx Notes and the Magliarditi Notes.
"General Contractor" shall mean Camco Pacific
Construction Company, Inc. with respect to the Existing
General Contractor's Agreement and either Camco Pacific
Construction Company, Inc. or such other general contractor
which is licensed in the State of Nevada and approved by
Agent Bank with respect to the New General Contractor's
Agreement, in each case engaged by ACLVI for construction of
the structural and exterior components of the ACLVI Project.
"General Contractor Budget" shall mean the line
item breakdown for construction costs, materials, labor and
other payments to be made under the General Contractor's
Agreement, together with all amendments, revisions and
modifications thereto.
"General Contractor's Agreement" shall mean
collective reference to the Existing General Contractor's
Agreement and the New General Contractor's Agreement.
"Government Securities" means readily marketable
(a) direct full faith and credit obligations of the United
States of America or obligations guaranteed by the
full faith and credit of the United States of America and
(b) obligations of an agency or instrumentality of, or
corporation owned, controlled or sponsored by, the United
States of America that are generally considered in the
securities industry to be implicit obligations of the United
States of America.
"Governmental Authority" or "Governmental
Authorities" shall mean any federal, state, regional, county
or municipal governmental agency, board, commission, officer
or official whose consent or approval is required or whose
regulations must be followed as a prerequisite to (i) the
continued operation and occupancy of the Collateral
Properties and the Casino Facilities or (ii) the performance
of any act or obligation or the observance of any agreement,
provision or condition of whatever nature herein contained.
"Gross Fixed Charge Coverage Ratio" as of the end
of any Fiscal Quarter shall mean with reference to the
Borrower Consolidation:
The sum of EBITDA during the Fiscal
Quarter under review, plus EBITDA during
each of the most recently ended three
(3) preceding Fiscal Quarters,
Divided by ()
The sum of: (i) the aggregate amount of actually
paid Interest Expense, plus (ii) the aggregate of
Scheduled Reductions, plus (iii) the aggregate of
actual principal payments made on the Gem
Settlement Notes, plus (iv) principal payments or
reductions (without duplication) required to be
made on all other Indebtedness, plus (v) the
current portion of Capitalized Lease Liabilities
to the extent not included in (i) above; in each
case of (i) through (v) determined for the Fiscal
Quarter under review together with the most
recently ended three (3) preceding Fiscal
Quarters.
"Gross Gaming Revenues" shall mean all income and
revenues of a Borrower, or a Casino Facility, as the context
may require, which are subject to taxation by a Gaming
Authority.
"Hard Costs" shall mean those costs which are
shown in the Construction Budgets as a "construction cost"
and any
adjustments to such costs pursuant to properly
approved change orders.
"Hazardous Materials Laws" shall have the meaning
set forth in Section 5.21.
"IDNR" shall mean the Iowa Department of Natural
Resources.
"IDNR Parcel" shall mean the real property which
is the subject of the ACCBI Land Use Agreement, more
particularly described on that certain schedule marked
"Schedule A-2", affixed hereto and by this reference
incorporated herein and made a part hereof.
"Indebtedness" of any Person includes all obliga
tions, contingent or otherwise, which in accordance with
GAAP should be classified upon such Person's balance sheet
as liabilities, but in any event including liabilities for
borrowed money or other liabilities secured by any lien
existing on property owned or acquired by such Person,
Affiliate or a Subsidiary thereof (whether or not the
liability secured thereby shall have been assumed),
obligations which have been or under GAAP should be
capitalized for financial reporting purposes, and all
guaranties, endorsements, and other contingent obligations
with respect to Indebtedness of others, including, but not
limited to, any obligations to acquire any of such
Indebtedness, to purchase, sell, or furnish property or
services primarily for the purpose of enabling such other
Person to make payment of any of such Indebtedness, or
otherwise to assure the owner of any of such Indebtedness
against loss with respect thereto.
"Indenture" shall have the meaning set forth in
Recital D.
"Initial Construction Disbursement" shall mean the
first Construction Disbursement to be made by Lenders to
Borrowers pursuant to the Construction Loan Subfacility.
"Initial Construction Disbursement Date" shall
mean the date upon which Borrowers request Lenders to fund
the Initial Construction Disbursement.
"Initial Senior Subordinated Notes" shall have the
meaning set forth in Recital D.
"Intangibles" shall mean the aggregate goodwill,
trademarks, patents, organizational expense and other
similar intangible items of the Borrower Consolidation
determined on a consolidated basis in accordance with GAAP.
"Interest Expense" shall mean with respect to any
Person, as of the last day of any fiscal period under
review, the sum of (i) all interest, fees, charges and
related expenses paid or payable (without duplication but
including capitalized interest) for that fiscal period by
such Person to a lender in connection with borrowed money
(including any obligations for fees, charges and related
expenses payable to the issuer of any letter of credit) or
the deferred purchase price of assets that are considered
"interest expense" under GAAP, plus (ii) the portion of the
up front costs and expenses for Interest Rate Xxxxxx (to the
extent not included in (i)) fairly allocated to such
interest rate xxxxxx as expenses for such period, plus
(iii) the portions of Capital Lease Liabilities paid or
payable with respect to such period that should be treated
as interest in accordance with GAAP.
"Interest Period(s)" shall have the meaning set
forth in Section 2.05(d) of the Credit Agreement.
"Interest Rate Xxxxxx" shall mean, with respect to
any Person, all liabilities of such Person under interest
rate swap agreements, interest rate cap agreements, basis
swap, forward rate agreement and interest collar or floor
agreements and all other agreements or arrangements designed
to protect such Person against fluctuations in interest
rates or currency exchange rates.
"Interest Rate Option" shall have the meaning
ascribed to such term in Section 2.05(b) of the Credit
Agreement.
"Interior Designer" shall mean H.C. Designs, Inc.,
who has been engaged by ACLVI for the purpose of preparing
the Interior Plans and Specifications for the construction
of the interior components, equipment and furnishings of the
ACLVI Project.
"Interior Designer's Consent" shall mean that
certain Interior Designer's Consent and Agreement which is
to be executed by the Interior Designer and delivered to
Agent Bank, on behalf of the Lenders, prior to the initial
Construction Disbursement, for the purpose, among other
things, of evidencing the Interior Designer's: (i) consent
to
Assignment of Interior Designer's Contract;
(ii) agreement not to modify the Interior Designer's
Contract without Agent Bank's consent; and (iii) agreement
to continue performance under the Interior Designer's
Contract on behalf of Agent Bank subject to the terms and
conditions set forth therein.
"Interior Designer's Contract" shall mean the
Letter of Agreement executed or to be executed by and
between Interior Designer and ACLVI under the terms of which
Interior Designer agrees to provide design and consulting
services in connection with the interior components,
equipment and furnishings of the ACLVI Project, including,
but not limited to, preparation of the Interior Plans and
Specifications.
"Interior Plans and Specifications" shall mean the
plans and specifications for the development and
construction of the interior components of the ACLVI Project
and for equipping and furnishing the ACLVI Project prepared
by the Interior Designer and the Interior Designer's
consultants, as such plans and specifications may be amended
from time to time. Said plans and specifications shall
include, but not be limited to, all plans, layouts sketches,
diagrams, elevations, drawings, specifications, lists, and
all other reports, data and plans prepared by the Interior
Designer and the Interior Designer's consultants in
connection with the interior components, equipment and
furnishing of the ACLVI Project.
"Investment" shall mean, when used in connection
with any Person, any investment by or of that Person,
whether by means of purchase or other acquisition of stock
or other securities of any other Person or by means of a
loan, advance creating a debt, capital contribution,
guaranty or other debt or equity participation or interest
in any other Person, including any partnership and joint
venture interests of such Person. The amount of any
Investment shall be the amount actually invested without
adjustment for subsequent increases or decreases in the
value of such Investment.
"Iowa Gaming Authorities" shall mean, without
limitation, the Iowa Racing and Gaming Commission and any
other applicable governmental or administrative state or
local agency involved in the regulation of gaming and gaming
activities conducted by any member of the Borrower
Consolidation in the State of Iowa.
"Xxxx" shall mean Xxxx Fuels, Inc., a Delaware
corporation.
"LIBO Rate" means, relative to any LIBOR Loan
Interest Period for any LIBOR Loan included in any
Borrowing, the per annum rate (reserve adjusted as
hereinbelow provided) of interest quoted by Agent Bank,
rounded upwards, if necessary, to the nearest one-sixteenth
of one percent (0.0625%) at which Dollar deposits in
immediately available funds are offered by Agent Bank to
leading banks in the London interbank market at
approximately 9:00 A.M. San Francisco time two (2) Banking
Business Days prior to the beginning of such Interest
Period, for delivery on the first day of such Interest
Period for a period approximately equal to such Interest
Period and in an amount equal or comparable to the LIBOR
Loan to which such Interest Period relates. The foregoing
rate of interest shall be reserve adjusted by dividing the
applicable LIBO Rate by a one (1.00) minus the LIBOR Reserve
Percentage, with such quotient to be rounded upward to the
nearest whole multiple of one-hundredth of one percent
(0.01%). All references in this Credit Agreement or other
Loan Documents to a LIBO Rate include the aforesaid reserve
adjustment.
"LIBOR Loan" shall mean each portion of the total
unpaid principal under the Credit Facility which bears
interest at a rate determined by reference to the LIBO Rate
plus the Applicable Margin.
"LIBOR Loan Interest Period" shall mean each
portion of the Credit Facility bearing interest with
reference to a LIBO Rate which shall in each instance be
fixed for either a one (1), two (2), three (3) or six (6)
month period.
"LIBOR Reserve Percentage" means, relative to any
Interest Period for LIBOR Loans made by any Lender, the
reserve percentage (expressed as a decimal) equal to the
actual aggregate reserve requirements (including all basic,
emergency, supplemental, marginal and other reserves and
taking into account any transactional adjustments or other
scheduled changes in reserve requirements) announced within
Agent Bank as the reserve percentage applicable to Agent
Bank as specified under regulations issued from time to time
by the Federal Reserve Board. The LIBOR Reserve Percentage
shall be based on Regulation D of the Federal Reserve Board
or other regulations from time to time in effect concerning
reserves for "Eurocurrency Liabilities" from related
institutions as though Agent Bank were in a net borrowing
position.
"Laws" means, collectively, all international,
foreign, federal, state and local statutes, maritime laws,
treaties, rules, regulations, ordinances, codes and
administrative or judicial precedents.
"Lender Reply Period" shall have the meaning set
forth in Section 10.10(d).
"Lenders" means WFB and any other bank, finance
company, insurance or other financial institution which is
or becomes a party to this Credit Agreement by execution of
a counterpart signature page hereto or an Assignment and
Assumption Agreement, as assignee. At all times that there
are no Lenders other than WFB, the terms "Lender" and
"Lenders" means WFB in its individual capacity. With
respect to matters requiring the consent to or approval of
all Lenders at any given time, all then existing Defaulting
Lenders will be disregarded and excluded, and, for voting
purposes only, "all Lenders" shall be deemed to mean "all
Lenders other than Defaulting Lenders".
"Lenders' Consultant" shall mean the architectural
or engineering firm of Agent Bank's choice and/or affiliate
of Agent Bank to be engaged by Agent Bank in connection with
the construction and development of the ACLVI Project
pursuant to the Lenders' Consultant Contract at the expense
of Borrowers after having been first reasonably approved by
Borrowers.
"Lenders' Consultant Contract" shall mean the
agreement or agreements to be executed by and between Agent
Bank and Lenders' Consultant for the purpose set forth
herein, including, without limitation:
(a) An examination of the Plans and
Specifications, structural engineering
calculations, and geotechnical report to ascertain
completeness and acceptability of documentation
relating to the ACLVI Project and to determine
that the individual elements of documentation are
not contradictory.
(b) Periodic site inspections of the ACLVI
Project to ascertain that:
(i) Percentage of construction
completed and/or percentage of acceptably-stored
materials are in accordance with percentages
specified on the payment request document (AIA
form G-702 or a form substantially similar thereto
which has been first approved by Agent Bank);
(ii) the ACLVI Project is in compliance
with governing construction documentation, ie.,
plans, specifications, engineering calculations,
geotechnical recommendations, approved change
orders, etc.
(c) A review of change orders which will
physically affect the ACLVI Project. This review
will be inclusive of budgetary aspects, including
Construction Cost Analysis from time to time, as
well as physical/structural acceptability.
"Leverage Ratio" as of the end of any Fiscal
Quarter shall mean the ratio resulting by dividing (a)
Funded Debt for the Fiscal Quarter under review by (b) the
sum of EBITDA for the Fiscal Quarter under review plus
EBITDA for each of the most recently ended three (3)
preceding Fiscal Quarters.
"Liabilities and Costs" means all claims,
judgments, liabilities, obligations, responsibilities,
losses, damages (including lost profits), punitive or treble
damages, costs, disbursements and expenses (including,
without limitation, reasonable attorneys', experts' and
consulting fees and costs of investigation and feasibility
studies), fines, penalties and monetary sanctions, interest,
direct or indirect, known or unknown, absolute or
contingent, past, present or future.
"Lien" means any lien, mortgage, pledge,
assignment, security interest, charge or encumbrance of any
kind (including any conditional sale or other title
retention agreement, any lease in the nature thereof, and
any agreement to give any security interest) and any option,
trust or other preferential arrangement having the practical
effect of any of the foregoing.
"Loan Documents" shall mean collective reference
to the Credit Agreement, the Revolving Credit Note, the
Swingline Note, the Security Documentation, the
Environmental Certificate and all other documents and
instruments which may hereafter be executed and delivered by
or on behalf of Borrowers or any other Person in connection
with the Bank Facilities for the benefit of Banks or Agent
Bank on behalf of the Lenders.
"Magliarditi" shall have the meaning set forth in
Recital Paragraph C.
"Magliarditi Notes" shall mean collective
reference to the Magliarditi Negotiable Note and the
Magliarditi Non-Negotiable Note, as defined in and in the
form attached to the Gem Settlement Agreement.
"Magnolia" shall mean Magnolia Hotel Company, a
Mississippi corporation.
"Magnolia Estoppel Certificate" shall mean the
Acknowledgement and Estoppel Certificate duly executed by
Magnolia, as lessor, and ACVI, as lessee, under the Magnolia
Lease, wherein each certifies and represents to Agent Bank
on behalf of Lenders that: (a) the Magnolia Lease represents
the entire agreement between the parties thereto with
respect to the Magnolia Parcel, (b) the Magnolia Lease has
not been modified, supplemented or amended except as
described herein, (c) to the best knowledge of Magnolia and
to the best knowledge of ACVI, there are no defaults
presently existing or continuing under any of the provisions
of the Magnolia Lease, and (d) other provisions regarding
Notice to Agent Bank on behalf of Lenders in the event of
default thereunder, and Agent Bank's entitlement to the
benefit of certain mortgagee protection provisions which are
set forth by the Magnolia Lease.
"Magnolia Lease" shall mean that certain agreement
dated September 8, 1992, executed between Magnolia, as
lessor, and Xxxxxxx, as lessee, a Memorandum of which was
recorded in Deed Book 956, at Page 699, of the records of
the Chancery Clerk of Xxxxxx County, Mississippi, and a
restatement of which dated April 29, 1993, was recorded in
Deed Book 976, at Page 221 of the Records of the Chancery
Clerk of Xxxxxx County, Mississippi. Xxxxxxx'x interest
under the Magnolia Lease, among other things, was assigned
to ACVI pursuant to Assignment of Leasehold and Option to
Purchase recorded in Deed Book 990, at Page 410 of the
Records of the Chancery Clerk of Xxxxxx County, Mississippi,
and was further amended by First Amendment to Lease
Agreement dated as of July 14, 1993, executed between
Magnolia, as owner, and Xxxxxxx, as tenant, a Memorandum of
which was recorded in Deed Book 980, at Page 770, of the
records of the Chancery Clerk of Xxxxxx County, Mississippi,
and was further amended by Second Amendment to Lease
Agreement dated as of June 1, 1995, between Magnolia, as
owner, and ACVI, as tenant, a Memorandum of which was
recorded in Deed Book 1048, at Page 181, of the records of
the Chancery Clerk of Xxxxxx County, Mississippi.
"Magnolia Parcel" shall mean the real property
which is the subject of the Magnolia Lease, a description of
which is more particularly described on that certain
schedule marked "Schedule B-2", affixed hereto and by this
reference incorporated herein and made a part hereof.
"Major Subcontractor Assignments" shall mean
collective reference to the assignments of the Assigned
Major Subcontracts which are required to be executed by
ACLVI and delivered to Agent Bank under Section 5.27(b).
"Major Subcontractor Consents" shall mean
collective reference to the consents to be executed by each
Major Subcontractor that is a party to an Assigned Major
Subcontract as required under Section 5.27(b).
"Major Subcontracts" shall mean all contracts or
subcontracts executed by a Subcontractor and either ACLVI
General Contractor or another Subcontractor in connection
with the ACLVI Project if the aggregate amount of such
contracts or subcontracts executed by such Subcontractor is
equal to or greater than One Hundred Thousand Dollars
($100,000.00).
"Margin Stock" shall have the meaning provided in
Regulation U of the Board of Governors of the Federal
Reserve System.
"Material Adverse Change" shall mean any change
which is material and adverse to the Collateral or the
condition (financial or otherwise), business operations or
prospects of: (a) any of the Borrowers, or (b) the Borrower
Consolidation, or (c) the ability of Borrowers to perform
their respective obligations under the Loan Documents or the
ability of any of the Lenders to enforce any of their rights
or remedies under any of the Loan Documents..
"Material Adverse Effect" means (i) a material
adverse effect upon (a) the business, operations,
properties, assets, condition (financial or otherwise) or
prospects of any Borrower or any of such Borrower's
Subsidiaries, (b) the value of the ACCBI Riverboat/Hotel
Facilities, the ACLVI Hotel/Casino Facility, the ACVI Casino
Facility or the CPI Hotel/Casino Facilities, (c) the
validity, priority or enforceability of any of the Loan
Documents, or (d) the construction, use, occupancy or
operation of the ACLVI Project or the use, occupancy or
operation of the ACCBI Riverboat/Hotel Facilities, the ACVI
Casino Facility or the CPI Hotel/Casino Facilities or, in
each case, any part thereof
or (ii) the impairment of the ability of any Borrower
to perform, or of Agent Bank or Lenders to enforce, the
Obligations in any material respect.
"Material Adverse Event" shall mean any event or
change which is material and adverse to the Casino
Facilities, the Collateral or the financial condition or
business operations of the Borrower Consolidation.
"Maturity Date" shall mean June 30, 2003.
"Maximum Availability" shall mean the Maximum
Permitted Balance less the Aggregate Outstandings.
"Maximum Permitted Balance" shall mean the maximum
amount of Aggregate Outstandings which may be outstanding on
the Bank Facilities from time to time which shall be the
lesser of: (a) the Maximum Scheduled Balance, or (b) the
amount to which the Maximum Scheduled Balance is voluntarily
reduced by Borrowers pursuant to Section 2.01(c) or is
otherwise reduced or limited pursuant to Sections 2.01(d),
5.01, 5.12 or 8.02 or by Scheduled Reductions, and, during
the Construction Period, by the amount of undisbursed
Retainage.
"Maximum Scheduled Balance" shall mean the maximum
amount of scheduled principal which may be outstanding on
the Credit Facility from time to time as set forth on the
Aggregate Commitment Reduction Schedule.
"Mississippi Gaming Authorities" means, without
limitation, the Mississippi Gaming Commission and any other
applicable governmental or administrative state or local
agency involved in the regulation of gaming and gaming
activities conducted by any member of the Borrower
Consolidation in the State of Mississippi.
"Xxxxxxxx" shall mean X.X. Xxxxxxxx and Son, Inc.,
a Mississippi corporation.
"Xxxxxxxx Estoppel Certificate" shall mean the
Acknowledgement and Estoppel Certificate duly executed by
Xxxxxxxx, as lessor, and ACVI, as lessee, under the Xxxxxxxx
Lease, wherein each certifies and represents to Agent Bank
on behalf of Lenders that: (a) the Xxxxxxxx Lease represents
the entire agreement between the parties thereto with
respect to the Xxxxxxxx Parcel, (b) the Xxxxxxxx Lease has
not been modified, supplemented or amended except as
described herein, (c) to the best knowledge of Xxxxxxxx and
to the best
knowledge of ACVI, there are no defaults presently
existing or continuing under any of the provisions of the
Xxxxxxxx Lease, and (d) other provisions regarding notice to
Agent Bank on behalf of Lenders in the event of default
thereunder and Agent Bank's entitlement to the benefit of
certain mortgagee protection provisions which are set forth
by the Xxxxxxxx Lease.
"Xxxxxxxx Lease" shall mean that certain Agreement
dated September 18, 1992, between X.X. Xxxxxxxx, Xx., as
lessor, and Xxxxxxx, as lessee, a Memorandum of which was
recorded on May 24, 1993, in Deed Book 976, at Page 217, of
the records of the Chancery Clerk of Xxxxxx County,
Mississippi, as was ratified by Xxxxxxxx, as the successor
to X.X. Xxxxxxxx, Xx., pursuant to Ratification of Lease
dated September 18, 1992, executed between Xxxxxxxx and
ACVI, recorded in the Official Records on October 6, 1993,
in Book 990, Page 434, as Instrument No. 089117, Xxxxxxx'x
interest under the Xxxxxxxx Lease, among other things, was
assigned to ACVI pursuant to that certain Assignment of
Leasehold and Option to Purchase recorded in Deed Book 990,
at Page 427, of the records of the Chancery Clerk of Xxxxxx
County, Mississippi, and such lease was amended pursuant to
that certain First Amendment to Lease Agreement dated as of
June 1, 1995, between Xxxxxxxx, as owner, and ACVI, as
tenant, recorded in Deed Book 1048, at Page 216, of the
records of the Chancery Clerk of Xxxxxx County, Mississippi.
"Xxxxxxxx Lease Parcel" shall mean the real
property and appurtenances which are the subject of the
Xxxxxxxx Lease, a description of which is more particularly
described on that certain schedule marked "Schedule B-4",
affixed hereto and by this reference incorporated herein and
made a part hereof.
"NVDC" shall mean the National Vessel
Documentation Center of the USCG.
"Xxxxxxx" shall mean Xxxxx Xxxxxxx.
"Xxxxxxx Family Group" shall mean collective
reference to: (i) Xxxxxxx and his executors, administrators,
testamentary trustees, heirs, legatees and beneficiaries,
and (ii) Xxxxxxx as the trustee of the Trust created under
the Last Will and Testament of Xxx Xxxxxxx dated October 9,
1963, together with each successor trustee thereof.
"Net Income" shall mean with respect to any Person
for any fiscal period, the net income of such Person during
such fiscal period determined in accordance with GAAP.
"Nevada Gaming Authorities" shall mean, without
limitation, the Nevada Gaming Commission and the State
Gaming Control Board and any other applicable governmental
or administrative state or local agency involved in the
regulation of gaming and gaming activities conducted by ACI
and its subsidiaries in the State of Nevada.
"New General Contractor's Agreement" shall mean
two construction contracts to be entered into by and between
ACLVI and General Contractor for the construction of those
portions of the structural and exterior components of the
ACLVI Project which are not part of the Existing General
Contractor's Agreement, subject to the additions and
deductions as provided therein, and consistent with the
Project Development Budget.
"New General Contractor's Consent" shall mean a
Contractor's Consent and Agreement, the terms of which shall
be substantially the same as set forth in the Existing
General Contractor's Consent, which is to be executed by the
General Contractor and delivered to Agent Bank, on behalf of
the Lenders, prior to the Closing Date, for the purpose,
among other things, of evidencing the General Contractor's:
(i) consent to the Assignment of New General Contractor's
Agreement; (ii) agreement not to modify the New General
Contractor's Agreement without Agent Bank's consent; and
(iii) agreement to continue performance under the New
General Contractor's Agreement on behalf of Agent Bank
subject to the terms and conditions set forth therein.
"Non Pro Rata Borrowing" means a Borrowing with
respect to which fewer than all Lenders have funded their
respective Pro Rata Shares of such Borrowing and the failure
of the non-funding Lender or Lenders to fund its or their
respective Pro Rata Shares of such Borrowing constitutes a
breach of this Credit Agreement.
"Nonusage Fee" shall have the meaning ascribed to
such term in Section 2.10(b) of this Credit Agreement.
"Notes" shall mean collective reference to the
Revolving Credit Note and the Swingline Note.
"Notice of Borrowing" shall have the meaning set
forth in Section 2.03.
"Notice of Swingline Advance" shall have the
meaning set forth in Section 2.08(b).
"Obligations" means, from time to time, all
Indebtedness of Borrowers owing to Agent Bank, any Lender or
any Person entitled to indemnification pursuant to
Section 5.14, or any of their respective successors,
transferees or assigns, of every type and description,
whether or not evidenced by any note, guaranty or other
instrument, arising under or in connection with this Credit
Agreement or any other Loan Document, whether or not for the
payment of money, whether direct or indirect (including
those acquired by assignment), absolute or contingent, due
or to become due, now existing or hereafter arising and
however acquired. The term includes, without limitation,
all interest, charges, expenses, fees, reasonable attorneys'
fees and disbursements, reasonable fees and disbursements of
expert witnesses and other consultants, and any other sum
now or hereinafter chargeable to Borrowers under or in
connection with Credit Agreement or any other Loan Document.
Notwithstanding the foregoing definition of "Obligations",
Borrowers' obligations under any environmental indemnity
agreement constituting a Loan Document, or any environmental
representation, warranty, covenant, indemnity or similar
provision in this Credit Agreement or any other Loan
Document, shall be secured by the Collateral only to the
extent, if any, specifically provided in the Security
Documentation.
"Occupancy Date" shall mean the date upon which
the City of Xxxxxxxxx issues a final or temporary
Certificate of Occupancy for the use and occupancy of all of
the public areas and hotel rooms of the ACLVI Project.
"Option Agreement" shall mean that certain Option
Agreement dated July 11, 1995, between Levy Realty Trust, as
the optionor, and ACLVI (as the successor by merger to Gem),
as optionee, under the terms of which ACLVI acquired the
exclusive option to purchase the Option Property in minimum
five (5) acre increments for the purchase price and subject
to the terms therein contained, which Option Agreement was
recorded in the Official Records of Xxxxx County, Nevada, on
July 11, 1996, in Book 960711, as Instrument No. 00964.
"Option Disbursement" shall mean a Construction
Disbursement during the Construction Period or a Borrowing
during the Revolving Credit Period which is used for the
purpose of funding the acquisition cost of portions of the
Option Property.
"Option Property" shall mean the real property
located in Xxxxx County, Nevada, which is the subject of the
Option Agreement, which real property is more particularly
described on that certain schedule marked "Schedule D-2",
affixed hereto and by this reference incorporated herein and
made a part hereof.
"Pension Plan" means any "employee pension benefit
plan" (other than a "multi-employer plan" as defined in
Title IV of ERISA which is maintained by any Person which is
not a member of the Borrower Consolidation) that is subject
to Title IV of ERISA and which is maintained for employees
of Borrowers or any of its ERISA Affiliates.
"Permitted Encumbrances" shall mean collective
reference to the CPI Permitted Encumbrances, the ACLVI
Permitted Encumbrances, the ACCBI Permitted Encumbrances and
the ACVI Permitted Encumbrances.
"Person" means an individual, firm, corporation,
limited liability company, trust, association, partnership,
joint venture, tribunal or other entity.
"Plans and Specifications" shall mean collective
reference to the Structural Plans and Specifications, the
Interior Plans and Specifications and all other plans and
specifications which are approved by Agent Bank in
connection with the construction and development of the
ACLVI Project, together with all additions, changes and
amendments thereto which are first approved by Agent Bank.
"Policies of Insurance" shall mean the insurance
to be obtained and maintained by Borrowers throughout the
term of this Credit Agreement as provided by Section 5.09
herein.
"Post Foreclosure Plan" shall have the meaning set
forth in Section 10.11(e).
"Pricing Certificate" shall have the meaning set
forth in Section 5.08(b).
"Prime Rate" means at any time, and from time to
time, the rate of interest most recently announced within
WFB at its principal office in San Francisco, California, as
its "Prime Rate", with the understanding that WFB's "Prime
Rate" is one of its base rates and serves as the basis upon
which effective rates of interest are calculated for those
loans and extensions of credit making reference thereto, and
is
evidenced by the recording thereof after its
announcement in such internal publication or publications as
WFB may designate. Each change in the Prime Rate shall be
effective on the day the change is announced within WFB.
"Principal Prepayments" shall have the meaning set
forth in Section 2.07(a) of this Credit Agreement.
"Pro Rata Share" shall mean, with respect to any
Lender, a percentage equal to such Lender's Syndication
Interest in the Credit Facility as set forth on the Schedule
of Lenders' Proportions in Credit Facility.
"Project Development Budget" shall mean the
detailed line item budget, a copy of which is marked
"Exhibit N", affixed hereto and by this reference
incorporated herein and made a part hereof, showing in
detail to the satisfaction of Agent Bank and each of the
Lenders the anticipated costs of the developing,
constructing, furnishing and equipping the ACLVI Project,
including the cost of gaming devices, slot machines and
other ACLVI FF&E to be used in connection therewith and
including all items shown on the General Contractor's Budget
and Borrower Construction Budget.
"Protective Advance" means all sums expended as
determined by Agent Bank to be necessary to: (a) protect the
priority, validity and enforceability of the Security
Documentation on, and security interests in, any Collateral
and the instruments evidencing or securing the Obligations,
or (b) prevent the value of any Collateral from being
materially diminished (assuming the lack of such a payment
within the necessary time frame could potentially cause such
Collateral to lose value), or (c) protect any of the
Collateral from being materially damaged, impaired,
mismanaged or taken, including, without limitation, any
amounts expended in accordance with Section 11.20 or post-
foreclosure ownership, maintenance, operation or marketing
of any Collateral.
"Qualified Appraisal" shall mean reference to an
appraisal or appraisals of the Casino Facilities and
Collateral, or any portion thereof, acceptable to Agent
Bank, prepared at Borrowers' expense in compliance with
FIRREA by an appraiser acceptable to Agent Bank, with
sufficient copies delivered to Agent Bank for distribution
to each of the Lenders.
"Rate Adjustment Date" shall mean December 1,
1997.
"Xxxxxx" shall have the meaning set forth in
Recital Paragraph C.
"Xxxxxx Notes" shall mean collective reference to
the Xxxxxx Negotiable Note and the Xxxxxx Non-Negotiable
Note, as defined in and in the form attached to the Gem
Settlement Agreement.
"Reduction Date(s)" shall mean reference to each
date or the dates, as the context may require upon which the
Maximum Scheduled Balance is reduced by a Scheduled
Reduction as set forth on the Aggregate Commitment Reduction
Schedule.
"Related Entities" shall mean collective reference
to all stockholders, employees, Affiliates and Subsidiaries
of the Borrowers, or any of them, other than another
Borrower.
"Related Receivables" shall mean the aggregate
amount of all accounts receivable, notes receivable,
obligations, debts and other sums owing to Borrowers, or any
of them, from Related Entities.
"Replacement Note(s)" shall have the meaning set
forth in Section 2.06(i) of the Credit Agreement.
"Reportable Event" shall mean any of the events
described in Section 4043(b) of ERISA, other than an event
for which the thirty (30) day notice requirement is waived
by regulations.
"Requisite Lenders" means, as of any date of
determination prior to the occurrence of an Event of
Default, Lenders holding Syndication Interests equal to or
in excess of sixty-six and two-thirds percent (66-2/3%) of
the Credit Facility; and at all times during which an Event
of Default has occurred and remains continuing, Lenders
holding a percentage equal to or in excess of sixty-six and
two-thirds percent (66-2/3%) of the Funded Outstandings;
provided that, (i) in determining such percentage at any
given time, all then existing Defaulting Lenders will be
disregarded and excluded and the Pro Rata Shares of Lenders
shall be redetermined, for voting purposes only, to exclude
the Pro Rata Shares of such Defaulting Lenders, and
(ii) notwithstanding the foregoing, at all times when two or
more Lenders are party to this Credit Agreement, the term
Requisite Lenders shall in no event mean less than two (2)
Lenders.
"Restated Equipment Intercreditor Agreement" shall
mean an agreement or restatement of the Existing Equipment
Intercreditor Agreement to be executed by and between the
ACCBI Equipment Lender and Agent Bank, for the purposes of:
(i) evidencing the ACCBI Equipment Lender's consent to the
encumbrance of the ACCBI Riverboat with the ACCBI Ship
Mortgage, and (ii) providing for the relative priority in
right to payment as between the ACCBI Equipment Lender, on
the one hand, and Agent Bank, on the other hand, in the
event of foreclosure of the ACCBI Equipment Ship Mortgage
and/or ACCBI Ship Mortgage, the terms of which shall be
substantially the same as set forth in the Existing
Equipment Intercreditor Agreement and otherwise as approved
by Lenders.
"Restated GECC Intercreditor Agreement" shall mean
a Subordination and Intercreditor Agreement or an amendment
to or restatement of the Existing GECC Intercreditor
Agreement to be executed by and among GECC, ACCBI Equipment
Lender and Agent Bank on or before the Closing Date, for the
purposes of: (i) evidencing GECC's consent to the
encumbrance of the ACCBI Riverboat with the ACCBI Ship
Mortgage, and (ii) providing for the relative priority in
right to payment as between GECC, on the one hand, and the
ACCBI Equipment Lender and Agent Bank, on the other hand, in
the event of foreclosure of the GECC Ship Mortgage, ACCBI
Equipment Ship Mortgage and/or ACCBI Ship Mortgage, the
terms of which shall be substantially the same as set forth
in the Existing GECC Intercreditor Agreement and otherwise
as approved by Lenders.
"Retainage" shall have the meaning ascribed to
such term in Section 9.15.
"Revolving Credit Note" shall mean the Revolving
Credit Promissory Note, a copy of which is marked
"Exhibit A", affixed hereto and by this reference
incorporated herein and made a part hereof, to be executed
by Borrowers on the Closing Date, payable to the order of
Agent Bank on behalf of the Lenders, evidencing the Credit
Facility.
"Revolving Credit Period" shall mean the period
commencing on the Completion Date and terminating on the
Maturity Date.
"Schedule of Lenders' Proportions in Credit
Facility" shall mean the Schedule of Lenders' Proportions in
Credit Facility, a copy of which is marked
"Schedule 2.01(a)", affixed hereto and by this reference
incorporated herein and made a part hereof, setting forth
the respective Syndication
Interest and maximum amount to be funded under the
Credit Facility by each Lender, as the same may be amended,
modified or restated from time to time in connection with an
Assignment and Assumption Agreement.
"Schedule of Significant Litigation" shall mean
the Schedule of Significant Litigation, a copy of which is
set forth as Schedule 3.18, affixed hereto and by this
reference incorporated herein and made a part hereof,
setting forth the information described in Section 3.18 with
respect to each Significant Litigation.
"Scheduled Reductions" shall mean the amount by
which the Aggregate Commitment is reduced on each Reduction
Date as set forth on the Aggregate Commitment Reduction
Schedule.
"Second Determination Date" shall have the meaning
set forth in Section 2.01(d)(ii) of the Credit Agreement.
"Secured Interest Rate Hedge(s)" shall mean any
Interest Rate Hedge entered into between any Borrower and
any Lender, or Affiliate of any Lender, which is secured by
the Security Documentation.
"Security Documentation" shall mean a collective
reference to the CPI Security Documents, the ACLVI Security
Documents, the ACCBI Security Documents, the ACVI Security
Documents and Stock Pledge, the Trademark Security Agreement
and all other instruments and agreements to be executed by
or on behalf of Borrowers or other applicable Persons, in
favor of Agent Bank on behalf of the Lenders securing
repayment of the Bank Facilities.
"Senior Subordinated Notes" shall mean at any time
the issued and outstanding Initial Senior Subordinated Notes
and/or the Exchange Senior Notes, as the case may be;
provided, however, that at no time may the aggregate
principal amount of outstanding Senior Subordinated Notes
exceed One Hundred Twenty-Five Million Dollars
($125,000,000.00).
"Senior Subordinated Notes Effective Date" shall
mean the date upon which the Initial Senior Subordinated
Notes shall have been issued by ACI and ACI shall have
received the proceeds thereof, net of any discounts and any
other amounts due to the initial purchasers or third parties
in connection with offering and issuance of the Initial
Senior Subordinated Notes.
"Significant Litigation" shall mean each action,
suit, proceeding, litigation and controversy involving
Borrowers, or any of them, involving claims in excess of One
Million Dollars ($1,000,000.00) or which if determined
adverse to the interests of Borrowers, or any of them, could
have a Material Adverse Effect.
"Soft Costs" shall mean all costs which are shown
in the Construction Budgets, other than Hard Costs,
including, without limitation, the purchase of ACLVI FF&E
and other items outside the scope of the General
Contractor's Agreement.
"Spaceleases" shall mean collective reference to
the CPI Spaceleases, ACLVI Spaceleases, ACCBI Spaceleases
and ACVI Spaceleases.
"Stock Pledges" shall mean collective reference to
the Security Agreements and Stock Pledges to be executed and
delivered into escrow on behalf of the Banks as of the
Closing Date, pursuant to which, subject to the prior
approval of all necessary Gaming Authorities, the stock of
CPI, ACLVI, ACCBI and ACVI is pledged by ACI to Agent Bank
on behalf of Lenders as security for the Bank Facilities and
all other sums which may be owing by Borrowers to the Banks
from time to time under the terms of the Credit Agreement.
"Structural Plans and Specifications" shall mean
the plans and specifications for the development and
construction of the structural and exterior components of
the ACLVI Project prepared by the Architect and the
Architect's consultants, as such plans and specifications
may be amended from time to time. Said plans and
specifications shall include, but not be limited to, all
plans, maps, sketches, diagrams, surveys, drawings,
specifications, lists, geotechnical reports, structural
engineering calculations and all other engineering reports,
data and plans prepared by the Architect and the Architect's
consultants in connection with the structural and exterior
components of the ACLVI Project.
"Subcontractor(s)" means any person(s) or firm(s),
other than an employee of the General Contractor, who is
engaged by the General Contractor, ACLVI or by another
Subcontractor to furnish labor, material, analysis or other
services with respect to a portion of the work, labor,
materials and services to be provided: (i) for General
Contractor under the General Contractor's Agreement, or
(ii) for ACLVI or another Subcontractor for work, labor,
materials and services not included in the General
Contractor's Agreement.
"Subsidiary" shall mean, on the date in question,
any Person of which an aggregate of 50% or more of the stock
of any class or classes (or equivalent interests) is owned
of record or beneficially, directly or indirectly, by
another Person and/or any of its Subsidiaries, if the
holders of the stock of such class or classes (or equivalent
interests) (a) are ordinarily, in the absence of contin
gencies, entitled to vote for the election of a majority of
the directors (or individuals performing similar functions)
of such Person, even though the right so to vote has been
suspended by the happening of such a contingency, or (b) are
entitled, as such holders, to vote for the election of a
majority of the directors (or individuals performing similar
functions) of such Person, whether or not the right so to
vote exists by reason of the happening of a contingency.
"Swingline Advance" shall mean each advance made
by Swingline Lender to Borrowers under the Swingline
Facility.
"Swingline Facility" shall mean the agreement of
Swingline Lender to make Swingline Advances to Borrowers
subject to the terms and conditions and up to the maximum
amounts and for the duration as set forth in Section 2.08 of
this Credit Agreement.
"Swingline Lender" shall have the meaning set
forth in the Preamble of this Credit Agreement.
"Swingline Note" shall mean the Swingline Note, a
copy of which is marked "Exhibit B", affixed hereto and by
this reference incorporated herein and made a part hereof,
to be executed by Borrowers on the Closing Date, payable to
the order of Swingline Lender evidencing the Swingline
Facility.
"Swingline Outstandings" shall mean the aggregate
amount of all outstanding and unpaid Swingline Advances as
of each date of determination.
"Syndication Interest" shall mean the
proportionate interest of each Lender in the Credit Facility
as set forth on the Schedule of Lenders' Proportions in
Credit Facility, as the same may be amended or restated from
time to time.
"Tangible Net Worth" shall mean ACI stockholder's
equity, minus the aggregate value of ACI treasury stock,
less Intangibles, less Related Receivables.
"Title Insurance Company" shall mean Xxxxxxx Title
Guaranty Company.
"Title Insurance Policies" shall mean collective
reference to the ACCBI Title Insurance Policy, ACLVI Title
Insurance Company, ACVI Title Insurance Company and CPI
Title Insurance Company.
"Trademark Security Agreement" shall mean the
security agreement to be executed by Borrowers as of the
Closing Date for the purpose of granting a security interest
in favor of Agent Bank on behalf of Lenders in all
trademarks, tradenames, copyrights and servicemarks used in
connection with the Hotel/Casino Facilities, including,
without limitation each registration and application set
forth on Schedule 4.27 or otherwise described on Schedule A
to the Trademark Security Agreement.
"Trustmark Nondisturbance Agreement" shall mean
that certain Nondisturbance Agreement to be executed on or
before the Closing Date by and between ACVI and Trustmark
National Bank ("Trustmark") as the holder of a deed of trust
encumbering the fee interest in the Magnolia Parcel pursuant
to which, among other things, Trustmark agrees that, upon
acquisition of the Magnolia Parcel by foreclosure under its
deed of trust, or conveyance in lieu thereof, Trustmark (or
any purchaser at such a foreclosure sale) will recognize and
will not disturb the interest of ACVI under the Magnolia
Lease, or the interest of any party acquiring ACVI's
interest under the Magnolia Lease pursuant to foreclosure
under the ACVI Deed of Trust or conveyance in lieu thereof.
"USCG" shall mean the United States Coast Guard.
"Vessels" shall mean collective reference to the
ACCBI Riverboat and the ACVI Riverboat.
"Voluntary Reduction" shall have the meaning set
forth in Section 2.01(c).
"WFB" shall mean Xxxxx Fargo Bank, National
Association.
"WFB Loan" shall mean that certain unsecured loan
which was advanced to ACI by WFB, in the principal amount of
Twenty Million Dollars ($20,000,000.00), the terms of
repayment of which is evidenced by that certain Unsecured
Promissory Note dated as of March 26, 1997, executed by ACI,
payable to the order of WFB in the principal amount of
Twenty Million Dollars ($20,000,000.00), together with
interest at the rate or rates therein specified.
Section 1.02. Interpretation and Construction.
In this Credit Agreement, unless the context otherwise
requires:
(a) Articles and Sections mentioned by
number only are the respective Articles and Sections of this
Credit Agreement as so numbered;
(b) Words importing a particular gender mean
and include every other gender, and words importing the
singular number mean and include the plural number and vice
versa;
(c) All times specified herein, unless
otherwise specifically referred, shall be the time in San
Francisco, California;
(d) Any headings preceding the texts of the
several Articles and Sections of this Credit Agreement, and
any table of contents or marginal notes appended to copies
hereof, shall be solely for convenience of reference and
shall not constitute a part of this Credit Agreement, nor
shall they affect its meaning, construction or effect;
(e) If any clause, definition, provision or
Section of this Credit Agreement shall be determined to be
apparently contrary to or conflicting with any other clause,
definition, provision or Section of this Credit Agreement
then the clause, definition, provision or Section containing
the more specific provisions shall control and govern with
respect to such apparent conflict. The parties hereto do
agree that each has contributed to the drafting of this
Credit Agreement and all Loan Documents and that the
provisions herein contained shall not be construed against
either Borrowers or Lenders as having been the person or
persons responsible for the preparation thereof;
(f) The terms "herein", "hereunder",
"hereby", "hereto", "hereof" and any similar terms as used
in the Credit Agreement refer to this Credit Agreement; the
term
"heretofore" means before the date of execution of
this Credit Agreement; and the term "hereafter" means after
the date of the execution of this Credit Agreement;
(g) All accounting terms used herein which
are not otherwise specifically defined shall be used in
accordance with GAAP;
(h) If any clause, provision or Section of
this Credit Agreement shall be ruled invalid or
unenforceable by any court of competent jurisdiction, such
holding shall not invalidate or render unenforceable any of
the remaining provisions hereof;
(i) Each reference to this Credit Agreement
or any other Loan Document or any of them, as used in this
Credit Agreement or in any other Loan Document, shall be
deemed a reference to this Credit Agreement or such Loan
Document, as applicable, as the same may be amended,
modified, supplemented, replaced, renewed or restated from
time to time; and
(j) Every affirmative duty, covenant and
obligation of Borrowers hereunder shall be equally
applicable to each of the Borrowers individually and where
the context would result in the best interests or rights of
Banks shall be construed to mean "Borrowers or any of them"
or "Borrowers and each of them", as applicable.
Section 1.03. Use of Defined Terms. Unless
otherwise defined or the context otherwise requires, terms
for which meanings are provided in this Credit Agreement
shall have such meanings when used in the Notes and in each
Loan Document and other communication delivered from time to
time in connection with this Credit Agreement or any other
Loan Document.
Section 1.04. Cross-References. Unless otherwise
specified, references in this Credit Agreement and in each
other Loan Document to any Article or Section are references
to such Article or Section of this Credit Agreement or such
other Loan Document, as the case may be, and, unless
otherwise specified, references in any Article, Section or
definition to any clause are references to such clause of
such Article, Section or definition.
Section 1.05. Exhibits and Schedules. All
Exhibits and Schedules to this Credit Agreement, either as
originally existing or as the same may from time to
time be supplemented, modified or amended, are incorporated
herein by this reference.
ARTICLE II
AMOUNT, TERMS AND SECURITY OF THE BANK FACILITIES
Section 2.01. The Credit Facility.
a. Subject to the conditions and upon the
terms hereinafter set forth and in accordance with the terms
and provisions of the Revolving Credit Note on and after the
Closing Date Lenders severally agree in the proportions set
forth on the Schedule of Lenders' Proportions in Credit
Facility to lend and advance Borrowings to Borrowers, up to
the Maximum Permitted Balance, the Closing Disbursements on
the Closing Date and such amounts as Borrowers may request
by: (i) Notice of Borrowing duly executed by an Authorized
Officer and delivered to Agent Bank from time to time during
the Revolving Credit Period as provided in Section 2.03,
subject to the uses and purposes set forth in Section 2.02,
and (ii) Construction Disbursement Request during the
Construction Period duly executed by an Authorized Officer
and delivered to Agent Bank from time to time, together with
all other requirements as provided in Section 2.09 and
Article IX.
b. Subject to the uses and purposes set
forth in Section 2.02, on and after the Closing Date
Borrowers may borrow, repay and reborrow the Borrowings up
to the Available Borrowings from time to time. Provided,
however, amounts of Funded Outstandings bearing interest
with reference to a LIBO Rate shall be subject to Breakage
Charges incident to prepayment. The Credit Facility shall
be for a term commencing on the Closing Date and terminating
on the Maturity Date. In no event shall any Lender be
liable to fund any amounts under the Credit Facility in
excess of its respective Syndication Interest in any
Borrowing.
c. Notwithstanding the Scheduled Reductions
to the Maximum Permitted Balance as set forth on the
Aggregate Commitment Reduction Schedule, Borrowers may
voluntarily further reduce the Maximum Permitted Balance
from time to time (a "Voluntary Reduction") on the following
conditions:
(i) that each such Voluntary Reduction
be in the minimum amount of Ten Million Dollars
($10,000,000.00) and made in writing by an
Authorized Officer, effective on the fifth
(5th) Banking Business Day following receipt by
Agent Bank;
(ii) that each such Voluntary Reduction
shall be irrevocable and a permanent reduction to
the Maximum Permitted Balance; and
(iii) no Voluntary Reduction of the
Maximum Permitted Balance shall relieve or
otherwise defer the making of each Scheduled
Reduction on each Reduction Date, it being
understood that each Scheduled Reduction shall be
made on each Reduction Date to the Maximum
Permitted Balance as it may be reduced by each
Voluntary Reduction.
d. Notwithstanding anything herein
contained to the contrary, the Maximum Permitted Balance
shall be limited to the Availability Limit, as determined
from time to time. If on any Availability Determination
Date, the Aggregate Outstandings are in excess of the
Availability Limit:
(i) Borrowers shall not be entitled to
any further Borrowings, Construction Disbursements
or Swingline Advances until the Availability Limit
is demonstrated to be in excess of the Aggregate
Outstandings as of a subsequent Availability
Determination Date, and then only to the extent of
such excess;
(ii) so long as no Default or Event of
Default shall have occurred and remains
continuing, Aggregate Outstandings in excess of
the Availability Limit need not be repaid unless
as of the next occurring Availability
Determination Date (the "Second Determination
Date") the Aggregate Outstandings continue to
exceed the Availability Limit in which event the
Borrowers shall reduce the Aggregate Outstandings
to no more than the most recently determined
Availability Limit on or before thirty (30) days
following the Second Determination Date; and
(iii) notwithstanding the provisions set
forth in subparagraph (ii) hereinabove, if a
Default or Event of Default shall have occurred
and
remains continuing, then the Borrowers shall
cause the Aggregate Outstandings to be reduced to
no more than the most recently determined
Availability Limit on or before the Banking
Business Day following such Availability
Determination Date.
e. Other than limitations as a result of
the Availability Limit determined under Section 2.01(d), no
limitation of the Maximum Permitted Balance shall relieve or
otherwise defer the making of each Scheduled Reduction on
each Reduction Date. In the event the Maximum Permitted
Balance is less than the Maximum Scheduled Balance as of any
Reduction Date, to the extent the difference is a result of
the Availability Limit determined under Section 2.01(d), the
Scheduled Reduction shall only reduce the Maximum Scheduled
Balance. In all other instances, the amount of each
Scheduled Reduction shall further reduce the Maximum
Permitted Balance by the amount of such Scheduled Reduction.
In no event shall the Maximum Permitted Balance exceed the
Maximum Scheduled Balance as of Reduction Dates set forth on
the Aggregate Commitment Reduction Schedule.
f. In addition to the requirements set
forth in Section 2.01(d), in the event any Scheduled
Reduction or Voluntary Reduction reduces the Maximum
Permitted Balance to less than the sum of the Aggregate
Outstandings, the Borrowers shall, except as otherwise
provided in Section 2.01(d)(ii) and (iii), on or before the
next ensuing Banking Business Day cause the Aggregate
Outstandings to be reduced by such amount as may be
necessary to cause the Aggregate Outstandings to be equal to
or less than the Maximum Permitted Balance.
Section 2.02. Use of Proceeds of the Credit
Facility. Available Borrowings shall be used for the
purposes of:
a. On the Closing Date (collectively the
"Closing Disbursements"):
(i) paying in full all loans and advances
outstanding under the Existing Bank Loan and the
WFB Loan as of the Closing Date;
(ii) paying to Xxxxxx and Xxxxxxxxxxx or
reimbursing ACI for the payment to Xxxxxx and
Magliarditi of up to a maximum aggregate amount of
Four Million Dollars ($4,000,000.00) pursuant to
the terms of the Gem Settlement Agreement; and
(iii) paying in full the Upfront Fee, the
costs, fees and expenses of Title Insurance
Companies incurred in connection with the issuance
of the Title Insurance Policies, the costs, fees
and expenses of the attorneys for Borrowers and
the costs, fees and expenses of Xxxxxxxxx &
Xxxxxx, attorneys for Agent Bank, and associate
counsel and insurance consultants retained by them
incurred to the Closing Date.
b. During the Construction Period:
(i) funding Construction Disbursements
under the Construction Loan Subfacility, subject
to the terms and conditions set forth in Section
2.09 and Article IX of the Credit Agreement;
(ii) funding the cost of acquiring a portion
or portions of the Option Property, subject to the
terms and conditions set forth in Article III D of
the Credit Agreement.
c. Subsequent to the Completion Date:
(i) funding the repayment of Swingline
Advances as provided in Section 2.08;
(ii) funding working capital needs of the
Borrower Consolidation relating to the Casino
Facilities;
(iii) funding ongoing Capital Expenditure
requirements of the Borrower Consolidation
relating to the Casino Facilities; and
(iv) funding the cost of acquiring a portion
or portions of the Option Property, subject to the
terms and conditions set forth in Article III D of
the Credit Agreement.
Section 2.03. Notice of Borrowings and Interest
Rate Options.
a. An Authorized Officer may give Agent
Bank, no later than 11:00 a.m. on any Banking Business Day
at Agent Bank's office specified in Section 2.07, three (3)
full Banking Business Days prior written notice in the form
of the Notice of Borrowing ("Notice of Borrowing"), a copy
of which
is marked "Exhibit E", affixed hereto and by this
reference incorporated herein and made a part hereof, for
each proposed Borrowing to be made with reference to a LIBO
Rate and at least two (2) full Banking Business Days prior
notice for all other Borrowings, specifying the date and
amount of each proposed Borrowing. Borrowings made pursuant
to a Construction Disbursement Request shall be Base Rate
Loans as of the applicable Funding Date and shall be made in
accordance with the provisions of Section 2.09(a). Agent
Bank shall give prompt notice of all Borrowings to Lenders
of the amount to be funded and specifying the Funding Date.
Not later than 9:00 o'clock a.m. on the Funding Date
specified, each Lender shall disburse to Agent Bank the Pro
Rata Share of the amount to be advanced by Lenders in lawful
money of the United States of America and in immediately
available funds. Agent Bank shall make the proceeds of such
fundings that it receives from the Lenders on or before
11:00 o'clock a.m. available to Borrowers by depositing,
prior to 1:00 o'clock p.m. on the day so received (but not
prior to the Funding Date), the amounts received from the
Lenders in the Designated Deposit Account maintained with
Agent Bank. No Borrowing may exceed the Available
Borrowings. Each Borrowing shall be in a minimum amount of
Five Hundred Thousand Dollars ($500,000.00) and in
increments of One Hundred Thousand Dollars ($100,000.00).
Borrowers shall be entitled to no more than one (1)
Construction Disbursement during each month during the
Construction Period and no more than three (3) Borrowings
during each calendar month following the Completion Date,
exclusive of Borrowings made for the sole purpose of funding
repayment of a Swingline Advance.
b. The failure of any Lender to fund its
Pro Rata Share of any Borrowing on any Funding Date shall
neither relieve any other Lender of any obligation hereunder
to fund its Pro Rata Share of such Borrowing on such Funding
Date nor relieve such Lender which has failed to fund its
Pro Rata Share of its obligations to Borrowers hereunder.
No Lender shall be responsible for the failure of any other
Lender to fund its Pro Rata Share of such Borrowing on any
Funding Date nor shall any Lender be responsible for the
failure of any other Lender to perform its respective
obligations hereunder.
Section 2.04. Conditions of Borrowings. During
the Revolving Credit Period, Borrowings, other than
Borrowings made at the request of Agent Bank for the purpose
of funding repayment of Swingline Outstandings as
hereinafter provided, will only be made so long as Borrowers
are in full compliance with each of the requirements and
conditions precedent set
forth in Article III B of this Credit Agreement.
Provided, however, upon the consent of Requisite Lenders,
Lenders shall advance Borrowings notwithstanding the
existence of less than full compliance with the requirements
of Article III B and Borrowings so made shall be deemed to
have been made pursuant to this Credit Agreement.
Section 2.05. The Revolving Credit Note and
Interest Rate Options.
a. The Credit Facility shall be further
evidenced by the Revolving Credit Note payable to the order
of Agent Bank on behalf of the Lenders. Agent Bank shall
record manually or electronically the date and amount of
each Borrowing advanced by the Lenders together with the
applicable LIBOR Loan Interest Period in the case of
portions of the unpaid principal under the Credit Facility
bearing interest with reference to a LIBO Rate, and the
amount of each repayment of principal made thereunder by
Borrowers and the entry of such records shall be conclusive
absent manifest or demonstrable error; provided, however,
the failure to make such a record or notation with respect
to any Borrowing or repayment thereof, or an error in making
such a record or notation, shall not limit or otherwise
affect the obligations of Borrowers hereunder or under the
Revolving Credit Note.
b. Interest shall accrue on the entire
outstanding principal balance at a rate per annum equal to
the Base Rate plus the Applicable Margin, unless Borrowers
request a LIBOR Loan pursuant to Section 2.03 or elect
pursuant to Section 2.05(c) hereinbelow to have interest
accrue on a portion or portions of the outstanding principal
balance at a LIBO Rate ("Interest Rate Option"), in which
case interest on such portion or portions shall accrue at a
rate per annum equal to such LIBO Rate plus the Applicable
Margin, as long as: (i) each such LIBOR Loan is in a minimum
amount of Five Million Dollars ($5,000,000.00) and in
minimum increments of One Million Dollars ($1,000,000.00),
and (ii) no more than five (5) LIBOR Loans may be
outstanding at any one time. Interest accrued on each Base
Rate Loan shall be due and payable on the first day of the
month following the Closing Date, on the first day of each
successive month thereafter, and on the Maturity Date. For
each LIBOR Loan, accrued interest shall be due and payable
at the end of each Interest Period applicable thereto, but
in any event no less frequently than at the end of each
three (3) month period during the term of such LIBOR Loan.
Except as qualified above, the outstanding principal balance
hereunder may be a Base Rate
Loan or one or more LIBOR Loans, or any combination
thereof, as Borrowers shall specify.
c. Borrowers may Convert from one Interest
Rate Option to another Interest Rate Option by giving
irrevocable notice to Agent Bank of such Conversion by 10:00
A.M., on a day which is at least three (3) Banking Business
Days prior to the proposed date of such Conversion to each
LIBOR Loan or two (2) Banking Business Days prior to the
proposed date of such Conversion to each Base Rate Loan.
Each such notice shall be made by an Authorized Officer by
telephone or telex and thereafter immediately confirmed in
writing by delivery to Agent Bank of a
Continuation/Conversion Notice specifying the date of such
Conversion, the amounts to be so Converted and the initial
Interest Period if the Conversion is to a LIBOR Loan. Upon
receipt of such Continuation/Conversion Notice, Agent Bank
shall promptly set the applicable interest rate (which in
the case of a LIBOR Loan shall be the LIBO Rate plus the
Applicable Margin as of the second Banking Business Day
prior to the first day of the applicable Interest Period)
and the applicable Interest Period if the Conversion is to a
LIBOR Loan and shall confirm the same in writing to
Borrowers and Lenders. Each Conversion shall be on a
Banking Business Day. No LIBOR Loan shall be converted to a
Base Rate Loan or renewed on any day other than the last day
of the current Interest Period relating to such amounts
outstanding unless Borrowers pay any applicable Breakage
Charges. All Borrowings advanced at the request of Agent
Bank under Sections 2.08 or 2.09 of the Credit Agreement
shall bear interest with reference to the Base Rate plus the
Applicable Margin, subject to Borrowers' right to Convert
such Borrowing to a LIBOR Loan or LIBOR Loans as provided
herein. If Borrowers fail to give a Continuation/Conversion
Notice for the continuation of a LIBOR Loan as a LIBOR Loan
for a new Interest Period in accordance with this Section
2.05(c), such LIBOR Loan shall automatically become a Base
Rate Loan at the end of its then current Interest Period.
d. Each interest period (each individually
an "Interest Period" and collectively the "Interest
Periods") for a LIBOR Loan shall commence on the date such
LIBOR Loan is made or the date of Conversion of any amount
or amounts of the outstanding Borrowings hereunder to a
LIBOR Loan, as the case may be, and shall end on the date
which is one (1), two (2), three (3) or six (6) months
thereafter, as elected by Borrowers. However, no Interest
Period may extend beyond the Maturity Date. Each Interest
Period for a LIBOR Loan shall commence and end on a Banking
Business Day. If any Interest
Period commences on a date for which there is no
corresponding date in the month in which it is scheduled to
end, such Interest Period shall end on the last Banking
Business Day of such month. If any Interest Period would
otherwise expire on a day which is not a Banking Business
Day, the Interest Period shall be extended to expire on the
next succeeding Banking Business Day, unless the result of
such extension would be to carry such Interest Period into
another calendar month, in which event such Interest Period
shall end on the immediately preceding Banking Business Day.
e. The applicable LIBO Rate and Base Rate
shall be determined by the Agent Bank, and notice thereof
shall be given promptly to Borrowers and Lenders. Each
determination of the applicable Base Rate and LIBO Rate
shall be conclusive and binding upon the Borrowers, in the
absence of manifest or demonstrable error. The Agent Bank
shall, upon written request of Borrowers or any Lender,
deliver to Borrowers or such Lender, as the case may be, a
statement showing the computations used by the Agent Bank in
determining any rate hereunder.
f. Computation of interest on all Base
Rate Loans and LIBOR Loans shall be calculated on the basis
of a year of three hundred sixty (360) days and the actual
number of days elapsed. The applicable Base Rate shall be
effective the same day as a change in the Base Rate is
announced by WFB as being effective.
g. If with respect to any Interest Period,
(a) the Agent Bank reasonably determines (which
determination shall be binding and conclusive on Borrowers)
that by reason of circumstances affecting the inter-bank
eurodollar market adequate and reasonable means do not exist
for ascertaining the applicable LIBO Rate, or (b) Requisite
Lenders advise Agent Bank that the LIBO Rate as determined
by Agent Bank will not adequately and fairly reflect the
cost to such Lenders of maintaining or funding, for such
Interest Period, a LIBOR Loan, then so long as such
circumstances shall continue: (i) Agent Bank shall promptly
notify Borrowers thereof, (ii) the Agent Bank shall not be
under any obligation to make a LIBOR Loan or Convert a Base
Rate Loan into a LIBOR Loan for which such circumstances
exist, and (iii) on the last day of the then current
Interest Period, the LIBOR Loan for which such circumstances
exist shall, unless then repaid in full, automatically
Convert to a Base Rate Loan.
h. Notwithstanding any other provisions of
the Credit Agreement, if, after the Closing Date, any law,
rule, regulation, treaty, interpretation or directive
(whether having the force of law or not) or any change
therein shall make it unlawful for any Lender to make or
maintain LIBOR Loans, then (i) the commitment and agreement
to maintain LIBOR Loans as to such Lender shall immediately
be suspended, and (ii) unless required to be terminated
earlier, LIBOR Loans as to such Lender, if any, shall be
Converted on the last day of the then current Interest
Period applicable thereto to Base Rate Loans. If it shall
become lawful for such Lender to again maintain LIBOR Loans,
then Borrowers may once again as to such Lender request
Conversions to the LIBO Rate. During any period of such
suspension, such Lender shall make Base Rate Loans.
i. The Borrowers agree that upon written
notice by: (y) Agent Bank or (z) any Lender to the Borrowers
(with a copy of such notice concurrently delivered to Agent
Bank) to the effect that a promissory note or other evidence
of indebtedness is required for such Lender by a
Governmental Authority, banking regulatory agency or
regulatory audit in order for such Lender to evidence
(whether for the purposes of pledge, enforcement or
otherwise) the Borrowings owing to, or to be made by, such
Lender:
(i) The Borrowers shall promptly
execute and deliver to each Lender a promissory
note payable to the order of each such Lender
(each individually a "Replacement Note" and
collectively the "Replacement Notes") in the form
of the Revolving Credit Note in the amount of each
Lender's respective Syndication Interest in the
Credit Facility subject to Scheduled Reductions to
be allocated amongst Lenders in accordance with
their respective Syndication Interests;
(ii) The Replacement Notes shall, in
the aggregate, fully replace the Revolving Credit
Note and each reference to the Revolving Credit
Note in this Credit Agreement and each of the Loan
Documents shall be deemed to be a collective
reference to the Replacement Notes;
(iii) Borrowings, Interest Rate
Options, Fixed Rate Notices and all other
provisions for the disbursement of funds, setting
of interest rates and collection of repayments of
interest and
principal shall continue to be made by Agent
Bank as the administrative and collateral agent
for the Lenders in the same manner and to the same
extent as provided in the Revolving Credit Note
and this Credit Agreement as fully applicable to
each of the Replacement Notes;
(iv) the Agent Bank, upon the consent
of Requisite Lenders, shall cause the Title
Insurance Company to issue, at the expense of
Borrowers, such endorsements to the Title
Insurance Policies as may be reasonably necessary
to assure the aggregate obligation evidenced by
the Replacement Notes is secured by the Deed of
Trust with the same coverage and priority as the
obligation evidenced by the Revolving Credit Note;
and
(v) Concurrently with the delivery of
the Replacement Notes, Agent Bank shall return the
original Revolving Credit Note to Borrower marked
as superseded and replaced by the Replacement
Notes.
Section 2.06. Security for the Credit Facility.
As security for the due and punctual payment and performance
of the terms and provisions of this Credit Agreement, the
Notes and all of the other Loan Documents, the Security
Documentation shall be executed and delivered, as of the
Closing Date, by the respective parties to each of the
Security Documentation.
Section 2.07. Place and Manner of Payment.
a. All amounts payable by Borrowers to the
Lenders or Agent Bank on behalf of Lenders pursuant to the
Credit Facility shall be made on a Banking Business Day in
lawful money of the United States of America and in
immediately available funds. Other than in connection with:
(i) the Scheduled Reductions of principal, or (ii) principal
payments which may be required to decrease the Aggregate
Outstandings to an amount equal to or less than the Maximum
Permitted Balance, or (iii) principal payments to increase
the Available Borrowings to an amount equal to or in excess
of Construction Completion Costs as of any date of
determination, Borrowers shall not make repayments
("Principal Prepayments") of the outstanding balance of
principal owing under the Revolving Credit Note more
frequently than three such Principal Prepayments during each
calendar month. Each such
Principal Prepayment shall be in a minimum amount of
Ten Million Dollars ($10,000,000.00) and in increments of
One Million Dollars ($1,000,000.00) during the Construction
Period and thereafter in a minimum amount of Five Million
Dollars ($5,000,000.00) and in increments of One Million
Dollars ($1,000,000.00).
b. All such amounts payable by Borrowers
shall be made to Agent Bank at its office located at Xxxxx
Fargo Bank, Syndications Division, 000 Xxxxx Xxxxxx, Xxxxxx
Xxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, or at such other
address as may be directed in writing by Agent Bank from
time to time. If such payment is received by Agent Bank
prior to 11:00 o'clock a.m., Agent Bank shall credit
Borrowers with such payment on the day so received and shall
promptly disburse to the appropriate Lenders on the same day
the Pro Rata Share of payments relating to the Credit
Facility, in immediately available funds. If such payment
is received by Agent Bank after 11:00 o'clock a.m., Agent
Bank shall credit Borrowers with such payment as of the next
Banking Business Day and disburse to the appropriate Lenders
on the next Banking Business Day such Pro Rata Share of such
payment relating to the Credit Facility in immediately
available funds. Any payment on the Credit Facility made by
Borrowers to Agent Bank pursuant to the terms of this Credit
Agreement or the Revolving Credit Note for the account of
Lenders shall constitute payment to the appropriate Lenders.
If the Revolving Credit Note or any payment required to be
made thereon or hereunder, is or becomes due and payable on
a day other than a Banking Business Day, the due date
thereof shall be extended to the next succeeding Banking
Business Day and interest thereon shall be payable at the
then applicable rate during such extension.
c. The outstanding principal owing under
the Credit Facility and the Revolving Credit Note may,
subject to Section 2.07(a), be prepaid at any time in whole
or in part without penalty, provided, however, that any
portion or portions of the unpaid principal balance which is
accruing interest at a LIBO Rate may only be prepaid or
repaid on the last day of the applicable Interest Period
unless Borrowers give three (3) days prior written notice to
Agent Bank and additionally pay concurrently with such
prepayment or repayment such additional amount or amounts as
will compensate Lenders for any losses, costs or expenses
which they may incur as a result of such payment, including,
without limitation, any loss (including loss of anticipated
profits), cost or expense incurred by the liquidation or
reemployment of
deposits or other funds acquired by such Lender to
fund or maintain such LIBOR Loan ("Breakage Charges"). A
certificate of a Lender as to amounts payable hereunder
shall be conclusive and binding on Borrowers for all
purposes, absent manifest or demonstrable error. Any
calculation hereunder shall be made on the assumption that
each Lender has funded or will fund each LIBOR Loan in the
London interbank market; provided that no Lender shall have
any obligation to actually fund any LIBOR Loan in such
manner.
d. Unless the Agent Bank receives notice
from an Authorized Officer prior to the date on which any
payment is due to the Lenders that the Borrowers will not
make such payment in full as and when required, the Agent
Bank may assume that the Borrowers have made such payment in
full to the Agent Bank on such date in immediately available
funds and the Agent Bank may (but shall not be so required),
in reliance upon such assumption, distribute to each Lender
on such due date an amount equal to the amount then due such
Lender. If and to the extent the Borrowers have not made
such payment in full to the Agent Bank, each Lender shall
repay to the Agent Bank on demand such amount distributed to
such Lender, together with interest thereon at the Federal
Funds Rate for each day from the date such amount is
distributed to such Lender until the date repaid.
e. If, other than as expressly provided
elsewhere herein, any Lender shall obtain any payment
(whether voluntary, involuntary, through the exercise of any
right of set-off, or otherwise) in excess of its Syndication
Interest, such Lender shall immediately (a) notify the Agent
Bank of such fact, and (b) purchase from the other Lenders
such participations in the Credit Facility as shall be
necessary to cause such purchasing Lender to share the
excess payment with each of them in proportion to their
respective Syndication Interests; provided, however, that if
all or any portion of such excess payment is thereafter
recovered from the purchasing Lender, such purchase shall to
that extent be rescinded and each other Lender shall repay
to the purchasing Lender the purchase price paid therefor,
together with an amount equal to such paying Lender's
ratable share (according to the proportion of (i) the amount
of such paying Lender's required repayment to (ii) the total
amount so recovered from the purchasing Lender) of any
interest or other amount paid or payable by the purchasing
Lender in respect of the total amount so recovered. The
Borrowers agree that any Lender so purchasing a
participation from another Lender may, to the fullest extent
permitted by law, exercise all its rights of
payment with respect to such participation as fully as
if such Lender were the direct creditor of the Borrowers in
the amount of such participation. The Agent Bank will keep
records (which shall be conclusive and binding in the
absence of manifest or demonstrable error) of each
participation purchased under this section and will in each
case notify the Lenders following any such purchases or
repayments.
Section 2.08. The Swingline Facility.
a. Subject to the conditions and upon the
terms hereinafter set forth and in accordance with the terms
and provisions of the Swingline Note subsequent to the
Completion Date, Swingline Lender agrees to lend and advance
Swingline Advances to Borrowers in the amounts and at the
times provided below.
b. With respect to each proposed Swingline
Advance, an Authorized Officer shall no later than 11:00
a.m. of the date for such proposed Swingline Advance give
Swingline Lender written notice in the form of the Notice of
Swingline Advance ("Notice of Swingline Advance"), a copy of
which is marked "Exhibit E", affixed hereto and by this
reference incorporated herein and made a part hereof,
specifying the requested amount to be funded. Swingline
Lender shall deposit such amounts as Borrowers may request
into the Designated Deposit Account in lawful money of the
United States of America in immediately available funds,
provided, that: (i) after giving effect to such Swingline
Advance, the Swingline Outstandings do not exceed Five
Million Dollars ($5,000,000.00), (ii) the amount requested
does not exceed the Available Borrowings, (iii) the
Completion Date shall have occurred, and (iv) no Default or
Event of Default has occurred and remains continuing.
Within the foregoing limitations, Borrowers may borrow,
repay and reborrow under the Swingline Facility. Each
Swingline Advance shall be in an integral multiple of One
Hundred Thousand Dollars ($100,000.00). Promptly after
receipt of each request for a Swingline Advance, Swingline
Lender shall obtain telephonic verification from Agent Bank
that, giving effect to such request, the amount of such
request does not exceed the Available Borrowings (such
verification to be promptly confirmed in writing). Unless
Borrowers are notified to the contrary by the Swingline
Lender, each repayment of a Swingline Advance shall be in an
amount which is an integral multiple of One Hundred Thousand
Dollars ($100,000.00), together with the accrued interest
thereon. The Swingline Lender shall promptly
notify the Agent Bank of the Swingline Outstandings
each time there is a change therein.
c. Each Swingline Advance shall bear
interest at the Base Rate plus the Applicable Margin and
shall be payable at the times and in the manner set forth
below and, in any event, on or before ten (10) days prior to
the Maturity Date. In the event any Swingline Advance is
outstanding for thirty (30) consecutive calendar days, then
on the next Banking Business Day (unless Borrowers have made
other arrangements acceptable to the Swingline Lender to pay
the Swingline Outstanding in full or to continue such
Swingline Outstanding), Borrowers shall request a Borrowing
under the Credit Facility in an amount sufficient to pay the
applicable Swingline Advance in full, together with all
interest accrued thereon. Upon receipt of the amount of the
Borrowing from the Lenders, the Agent Bank shall provide
such amount to the Swingline Lender for repayment of the
applicable Swingline Advance and the balance of the
Borrowing, if any, shall be deposited in immediately
available funds to the Designated Deposit Account. In the
event Borrowers fail to request a Borrowing within the
period specified above, Agent Bank shall, without notice to
the Borrowers and without regard to any other conditions
precedent for the making of Borrowings under the Credit
Facility, including, without limitation the remedies set
forth in Section 7.02, promptly (but subject to the notice
periods for Borrowings set forth in Section 2.03) cause a
Borrowing to be made and funded by the Lenders under the
Credit Facility in the amount necessary to pay the
applicable Swingline Advance in full, together with all
interest accrued thereon, to the extent of Available
Borrowings, and the Borrowers shall be deemed to have
requested such Borrowing and consented to its being made as
provided for herein.
d. Each Lender's obligation to advance
Borrowings in the proportionate amount of its Syndication
Interest in the Credit Facility of any unreimbursed
Swingline Outstandings pursuant hereto is several, and not
joint or joint and several. The failure of any Lender to
perform its obligation to advance a Borrowing in a
proportionate amount of such Lender's Syndication Interest
of any unreimbursed Swingline Outstandings shall neither
relieve any other Lender of its obligation hereunder to
advance such Borrowing in the amount of such other Lender's
proportionate Syndication Interest of such amount, nor
relieve the Lender which has failed to fund of its
obligations to Borrowers hereunder. The Borrowers agree to
accept the Borrowings for payment of
Swingline Outstandings as provided hereinabove,
whether or not such Borrowings could have been made pursuant
to the terms of Article III B, or any other section of this
Credit Agreement.
Section 2.09. Construction Loan Subfacility.
a. Subject to the conditions and upon the
terms hereinafter set forth and in accordance with the terms
and provisions of the Revolving Credit Note, Lenders
severally agree to advance Construction Disbursements to
Borrowers up to the Maximum Availability in proportion to
their respective Syndication Interests in such amounts as
Borrowers may request from time to time by Construction
Disbursement Request, pursuant to Article IX of this Credit
Agreement. Borrowers shall use the proceeds of the
Construction Loan Subfacility to finance, construct, furnish
and equip the ACLVI Project on the ACLVI Real Property to
pay other costs and expenses permitted herein related to the
financing, furnishing, equipping and construction of the
ACLVI Project and otherwise as contemplated or permitted
herein for the ACLVI Project, all as more particularly
described in the Construction Budgets. Borrowers may use
proceeds of the Construction Loan Subfacility to finance the
acquisition cost of portions of the Option Property subject
to the terms and conditions set forth in Article III D of
this Credit Agreement.
b. Each Lender's obligation to advance
Construction Disbursements in the proportionate amount of
its Pro Rata Share is several, and not joint or joint and
several. The failure of any Lender to perform its
obligation to advance a Construction Disbursement in a
proportionate amount of such Lender's Pro Rata Share will
not relieve any other Lender of its obligation hereunder to
advance such Construction Disbursement Borrowing in the
amount of such other Lender's Pro Rata Share, nor relieve
the Lender which has failed to fund of its obligations to
Borrowers hereunder.
Section 2.10. Fees.
a. On the Closing Date and on each other
applicable date, Borrowers shall pay the fees as required in
the Fee Side Letter, each of such fees to be retained by
Agent Bank or distributed to Lenders as agreed between Agent
Bank and each Lender.
b. Commencing on the first annual
anniversary of the Closing Date, Borrowers shall be
obligated to pay a quarterly nonusage fee (the "Nonusage
Fee") to the
Agent Bank for the account of Lenders in the
proportions of their respective Syndication Interests based
on the Leverage Ratio, determined as of the end of the
immediately prior Fiscal Quarter with reference to the
Borrower Consolidation, in accordance with the following
schedule:
Leverage Nonusage
Ratio Percentage
Less than 2.0 to 1.0 .375%
Equal to or
greater than 2.0 to 1.0 .500%
The Nonusage Fee shall begin to accrue on the first
anniversary of the Closing Date and shall be calculated as
of the last day of each Fiscal Quarter thereafter occurring
as the product of (i) the applicable Nonusage Percentage
determined as set forth above, multiplied by (ii) as of the
end of such Fiscal Quarter, the daily average during such
Fiscal Quarter (except with respect to the Fiscal Quarter in
which the first annual anniversary of the Closing Date
occurs, which shall be calculated with reference to the
daily average during such Fiscal Quarter only for those
number of days following the first annual anniversary of the
Closing Date) of the Maximum Permitted Balance without
regard to any Availability Limit as provided in
Section 2.01(d), less the daily average during such Fiscal
Quarter of the Funded Outstandings, all on the basis of a
three hundred sixty (360) day year. Each Nonusage Fee shall
be payable in arrears on a quarterly basis on or before ten
(10) Banking Business Days following the end of each Fiscal
Quarter commencing with the Fiscal Quarter in which the
first annual anniversary of the Closing Date occurs, and
upon termination of this Credit Agreement, whether at
maturity, by acceleration or otherwise. Each Nonusage Fee
shall be promptly distributed by Agent Bank to Lenders in
proportion to their respective Syndication Interests in the
Credit Facility.
Section 2.11. Late Charges and Default Rate.
a. If any payment due under the Revolving
Credit Note is not paid within one (1) Banking Business Day
after receipt by Borrowers of written notice of such
nonpayment from Agent Bank, Borrowers promise to pay a late
charge in the amount of three percent (3%) of the amount of
such delinquent payment and Agent Bank need not accept any
late payment made unless it is accompanied by such three
percent (3%) late payment charge. Any late charge
shall be paid to Lenders in proportion to their respective
Syndication Interests.
b. In the event of the existence of an
Event of Default, commencing on the first (1st) Banking
Business Day following the receipt by Borrowers of written
notice of the occurrence of such Event of Default from Agent
Bank, the total of the unpaid balance of the principal and
the then accrued and unpaid interest owing under each of the
Notes shall commence accruing interest at a rate equal to
two percent (2.0%) over the interest rate otherwise
applicable to such Note (the "Default Rate") until all
Events of Default which may exist have been cured, at which
time the interest rate shall revert to the rate of interest
otherwise accruing pursuant to the terms of such Note.
c. In the event of the occurrence of an
Event of Default, Borrowers agree to pay all reasonable
costs of collection, including the reasonable attorneys'
fees incurred by Agent Bank, in addition to and at the time
of the payment of such sum of money and/or the performance
of such acts as may be required to cure such Event of
Default. In the event legal action is commenced for the
collection of any sums owing hereunder or under the terms of
the Revolving Credit Note, the Borrowers agree that any
judgment issued as a consequence of such action against
Borrowers shall bear interest at a rate equal to the Default
Rate until fully paid.
Section 2.12. Net Payments. All payments under
this Credit Agreement, the Revolving Credit Note and/or the
Swingline Note shall be made without set-off, counterclaim,
recoupment or defense of any kind and in such amounts as may
be necessary in order that all such payments, after
deduction or withholding for or on account of any future
taxes, levies, imposts, duties or other charges of
whatsoever nature imposed by the United States or any
Governmental Authority, other than franchise taxes or any
tax on or measured by the gross receipts or overall net
income of any Lender pursuant to the income tax laws of the
United States or any State, or the jurisdiction where each
Lender's principal office is located (collectively "Taxes"),
shall not be less than the amounts otherwise specified to be
paid under this Credit Agreement and the Notes. A
certificate as to any additional amounts payable to the
Lenders under this Section 2.12 submitted to the Borrowers
by the Lenders shall show in reasonable detail an accounting
of the amount payable and the calculations used to determine
in good faith such amount and shall be conclusive
absent manifest or demonstrable error. Any amounts
payable by the Borrowers under this Section 2.12 with
respect to past payments shall be due within ten (10) days
following receipt by the Borrowers of such certificate from
the Lenders; any such amounts payable with respect to future
payments shall be due within ten (10) days after demand with
such future payments. With respect to each deduction or
withholding for or on account of any Taxes, the Borrowers
shall promptly furnish to the Lenders such certificates,
receipts and other documents as may be required (in the
reasonable judgment of the Lenders) to establish any tax
credit to which the Lenders may be entitled.
Section 2.13. Increased Costs. If after the date
hereof the adoption of, or any change in, any applicable
law, rule or regulation (including without limitation
Regulation D of the Board of Governors of the Federal
Reserve System and any successor thereto), or any change in
the interpretation or administration thereof by any
Governmental Authority, central bank or comparable agency
charged with the interpretation or administration thereof,
or compliance by any Lender with any future request or
future directive (whether or not having the force of law) of
any such Governmental Authority, central bank or comparable
agency:
a. Shall subject any Lender to any tax,
duty or other charge with respect to the Credit Facility,
the Revolving Credit Note, the Swingline Note or such
Lender's obligation to make any funding of the Credit
Facility, or shall change the basis of taxation of payments
to such Lender of the principal of, or interest on, the
Credit Facility or any other amounts due under the Revolving
Credit Note and/or the Swingline Note in respect of the
Credit Facility or such Lender's obligation to fund the
Credit Facility (except for changes in the rate of tax on
the overall net income of such Lender imposed by the United
States or any Governmental Authority pursuant to the income
tax laws of the United States or any State, or the
jurisdiction where each Lender's principal office is
located); or
b. With respect to the Credit Facility or
the obligation of the Lenders to advance Borrowings under
the Credit Facility, shall impose, modify or deem applicable
any reserve imposed by the Board of Governors of the Federal
Reserve System, special deposit, capitalization, capital
adequacy or similar requirement against assets of, deposits
with or for the account of, or credit extended by, any
Lender; or
c. Shall impose on any Lender any other
condition affecting the Credit Facility, the Revolving
Credit Note or such Lender's obligation to advance
Borrowings under the Credit Facility;
and the result of any of the foregoing, as set forth in
subsections (a), (b) or (c) is to increase the cost to (or
in the case of Regulation D or reserve requirements referred
to above or a successor thereto, to impose a cost on) such
Lender of making or maintaining the Credit Facility, or to
reduce the amount of any sum or rate of return received or
receivable by such Lender under the Revolving Credit Note,
then within ten (10) days after demand by such Lender (which
demand shall be accompanied by a certificate setting forth
the basis of such demand), the Borrowers shall pay directly
to such Lender such additional amount or amounts as will
compensate such Lender for such increased cost (or in the
case of Regulation D or reserve requirements referred to
above or a successor thereto, such costs which may be
imposed upon such Lender) or such reduction of any sum or
rate of return received or receivable under the Revolving
Credit Note. A certificate as to any additional amounts
payable to any Lender under this Section 2.13 submitted to
the Borrowers by such Lender shall show in reasonable detail
an accounting of the amount payable and the calculations
used to determine in good faith such amount and shall be
conclusive absent manifest or demonstrable error. Each
Lender agrees to use its reasonable efforts not materially
disadvantageous to it (in its reasonable determination) to
minimize such increased or imposed costs or such reduction.
Section 2.14. Mitigation; Exculpation.
a. Each Lender agrees that it will promptly
notify the Borrowers in writing upon its becoming aware that
any payments are to become due to it under this Credit
Agreement pursuant to Section 2.12 or 2.13. Each Lender
further agrees that it will use reasonable efforts not
materially disadvantageous to it (in its reasonable
determination) in order to avoid or minimize, as the case
may be, the payment by the Borrowers of any additional
amounts pursuant to Section 2.12 or 2.13. Each Lender
represents, to the best of its knowledge, that as of the
Closing Date no such amounts are payable to it.
b. Borrowers shall not be liable to any
Lender for any payments under Section 2.12 or 2.13 arising
to the extent of such Lender's gross negligence or wilful
misconduct or breach of any laws (other than as a
result of Borrowers' breach), or for amounts which were
incurred more than ninety (90) days prior to the date
Borrowers are notified of the incurrence of such amount.
ARTICLE III
CONDITIONS PRECEDENT TO THE CLOSING DATE
A. Closing Conditions. The obligation of each of
the Banks to fund any Closing Disbursement under the Bank
Facilities is subject to the following conditions precedent,
each of which shall be satisfied on or before July 31, 1997
(unless all of the Banks, in their sole and absolute
discretion, shall agree otherwise). The occurrence of the
Closing Date is subject to and contingent upon Agent Bank
having received, in each case in form and substance
reasonably satisfactory to Agent Bank, or in the case of an
occurrence, action or event, the occurrence of, each of the
following:
Section 3.01. Credit Agreement. Executed
counterparts of this Credit Agreement in sufficient
duplicate originals for Borrowers and each of the Banks.
Section 3.02. The Notes.
a. The Revolving Credit Note duly executed
by the Borrowers, payable to the order of Agent Bank, on
behalf of the Lenders.
b. The Swingline Note duly executed by the
Borrowers, payable to the order of Swingline Lender.
Section 3.03. Security Documentation. The
Security Documentation duly executed by each applicable
Borrowers or other party thereto, consisting of the
following:
With Respect to the CPI Hotel/Casino
Facilities
a. CPI Deed of Trust;
b. CPI Financing Statements;
c. CPI Assignment of Spaceleases,
Contracts, Rents and Revenues;
d. CPI Assignment of Permits, Licenses and
Contracts;
With Respect to the ACLVI Hotel/Casino
Facility
e. ACLVI Deed of Trust;
f. ACLVI Financing Statements;
g. ACLVI Assignment of Spaceleases,
Contracts, Rents and Revenues;
h. ACLVI Assignment of Permits, Licenses
and Contracts;
With Respect to the ACCBI Riverboat/Hotel
Facilities
i. ACCBI Deed of Trust;
j. ACCBI Ship Mortgage;
k. ACCBI Financing Statements;
l. ACCBI Assignment of Permits, Licenses
and Contracts;
m. ACCBI Assignment of Spaceleases,
Contracts, Rents and Revenues;
n. ACCBI Hotel Attornment Agreement;
o. ACCBI IDNR Attornment Agreement;
p. Restated GECC Intercreditor Agreement
(only required if the GECC Ship Note is not fully paid
concurrently or substantially concurrently with the Closing
Date);
q. Restated Equipment Intercreditor
Agreement (only required if the ACCBI Equipment Loan is not
fully paid concurrently or substantially concurrently with
the Closing Date);
With Respect to the ACVI Casino Facility
r. ACVI Casino Deed of Trust;
s. ACVI Hotel Deed of Trust;
t. ACVI Ship Mortgage;
u. ACVI Casino Financing Statements;
v. ACVI Hotel Financing Statements;
w. ACVI Assignment of Permits, Licenses and
Contracts;
x. ACVI Assignment of Spaceleases,
Contracts, Rents and Revenues;
x. Xxxxx/Xxx Estoppel Certificate;
z. Magnolia Estoppel Certificate;
aa. Xxxxxxxx Estoppel Certificate;
bb. Trustmark Nondisturbance Agreement.
Section 3.04. Other Loan Documents. The
following Loan Documents duly executed by Borrowers and each
other applicable party thereto consisting of the following:
a. Environmental Certificate.
b. Stock Pledge of all issued and
outstanding stock of CPI, together with the delivery to
Agent Bank, or into an escrow pending approval of the Nevada
Gaming Authorities, of all stock certificates which are
pledged thereunder;
c. Stock Pledge of all issued and
outstanding stock of ACLVI, together with the delivery to
Agent Bank, or into an escrow pending approval of the Nevada
Gaming Authorities, of all stock certificates which are
pledged thereunder;
d. Stock Pledge of all issued and
outstanding stock of ACCBI, together with the delivery to
Agent Bank, or into an escrow pending approval of the Iowa
Gaming Authorities, if such approval is required, of all
stock certificates which are pledged thereunder;
e. Stock Pledge of all issued and
outstanding stock of ACVI, together with the delivery to
Agent Bank, or into an escrow pending approval of the
Mississippi Gaming Authorities, if such approval is
required, of all stock certificates which are pledged
thereunder; and
f. Trademark Security Agreement.
Section 3.05. Articles of Incorporation, Bylaws,
Corporate Resolutions, Certificates of Good Standing and
Closing Certificate. On or before the Closing Date, Agent
Bank shall have received from each of the Borrowers: (i) a
Certificate of Good Standing issued by the Secretary of
State of the applicable state of incorporation and dated
within thirty (30) Banking Business Days of the Closing
Date, (ii) a copy of the articles of incorporation and
by-laws certified to be true and correct by a duly
Authorized Officer of each respective Borrower, (iii) an
original Certificate of Corporate Resolution and Certificate
of Incumbency executed by the Secretary of each respective
Borrower and attested to by its President, Vice President,
or Treasurer authorizing Borrowers to enter into all
documents and agreements to be executed by it pursuant to
this Credit Agreement and further authorizing and empowering
the officer or officers who will execute such documents and
agreements with the authority and power to execute such
documents and agreements on behalf of each respective
Borrower, (iv) designation by corporate certificate
("Authorized Officer Certificate"), substantially in the
form of the Authorized Officer Certificate marked
"Exhibit I", affixed hereto and by this reference
incorporated herein and made a part hereof, of the officers
of each respective Borrower who are authorized to give
Notices of Borrowing, Continuation/ Conversion Notices,
Pricing Certificates, Availability Limit Certificates,
Compliance Certificates, Notices of Swingline Advances,
Construction Disbursement Requests and all other notices,
requests, reports, consents, certifications and
authorizations on behalf of each of the Borrowers and the
Borrower Consolidation, each individually an "Authorized
Officer" and collectively the "Authorized Officers", and
(v) an original closing certificate ("Closing Certificate"),
substantially in the form of the Closing Certificate marked
"Exhibit J", affixed hereto and by this reference
incorporated herein and made a part hereof, duly executed by
an Authorized Officer of Borrowers.
Section 3.06. Opinion of Counsel. One or more
opinions of counsel to the Borrowers, dated as of the
Closing Date and addressed to the Agent Bank on behalf of
itself and each of the Banks, together with their respective
successors and assigns, substantially in the form of the
legal opinion marked "Exhibit M", affixed hereto and by this
reference incorporated herein and made a part hereof.
Section 3.07. Title Insurance Policies. As of
the Closing Date, the Title Insurance Policies (or proforma
commitment for the issuance thereof) consistent with the
requirements of the Closing Instructions.
Section 3.08. Survey. Subject to exceptions
approved by Lenders prior to the Closing Date, a current
boundary and location survey for the ACLVI Real Property
delivered to Agent Bank no less than ten (10) Banking
Business Days prior to the Closing Date, which must (a) be
certified to Agent Bank and the Title Insurance Company, (b)
show the ACLVI Real Property to be free of encroachments,
overlaps, and other survey defects, (c) show the courses and
distances of the lot lines for the ACLVI Real Property, (d)
show that all existing improvements are located within said
lot and building lines, and (e) show the location of all
above and below ground easements, improvements,
appurtenances, utilities, rights-of-way, water rights and
ingress and egress, by reference to book and page numbers
and/or filed map reference. On or before the Closing Date,
all other survey requirements of Title Insurance Company for
the issuance of the ACLVI Title Insurance Policy.
Section 3.09. Payment of Taxes. Evidence
satisfactory to Agent Bank that all past and current real
and personal property taxes and assessments which are
presently due and payable applicable to the Collateral
Properties have been paid in full.
Section 3.10. Insurance. Copies of declaration
pages of each insurance policy, certified to be true and
correct in all respects by an Authorized Officer of
Borrowers, together with original binders evidencing
Borrowers as the named insured, and original certificates of
insurance, loss payee and mortgagee endorsements naming
Agent Bank as mortgagee, loss payee and additional insured
as required by the insurance provisions set forth in
Section 5.09 of this Credit Agreement.
Section 3.11. Payment of Fees and Existing Bank
Loan and Occurrence of Senior Subordinated Notes Effective
Date. Payment by Borrowers of that portion of the Upfront
Fee and Agency Fee as provided in Sections 2.10(a) and
2.10(c). Payment in full of the Existing Bank Loan from the
Closing Disbursement under the Credit Facility. As of the
Closing Date, all Existing Bank Loan Security Documents and
all Existing Intercompany Security Documents shall be fully
released and reconveyed. The Senior Subordinated Notes
Effective Date shall have occurred and Agent Bank
shall have received a fully executed copy of the Indenture.
Section 3.12. Reimbursement for Expenses and
Fees. Reimbursement by Borrowers for all reasonable fees
and out-of-pocket expenses incurred by Agent Bank in
connection with the Bank Facilities, including, but not
limited to, escrow charges, title insurance premiums,
environmental examinations, recording fees, appraisal fees,
reasonable attorney's fees of Xxxxxxxxx & Xxxxxx and Iowa,
Mississippi and maritime co-counsel retained by them and
insurance consultant fees, and all other like fees and
expenses remaining unpaid as of the Closing Date to the
extent then due and payable on the Closing Date, provided
that the amount then invoiced shall not thereafter preclude
Borrowers' obligation to pay such costs and expenses
relating to the closing of the Bank Facilities following the
Closing Date or to reimburse Agent Bank for the payment
thereof.
Section 3.13. Schedules of Spaceleases and
Equipment Leases and Contracts. The Schedules of
Spaceleases (Schedules 4.18(A) through (D)) and Equipment
Leases and Contracts (Schedule 4.19(A) through (D)) in each
instance setting forth the name of the other party thereto,
a brief description of each spacelease, equipment lease and
contract and the commencement and ending date thereof.
Section 3.14. Phase I Environmental Site
Assessments.
a. A Phase I Environmental Site Assessment
or Assessments of the ACLVI Real Property prepared in
conformance with the scope and limitations of ASTM Standard
Designation E1527-93 and approved by Agent Bank. Any
recommended action shall have been completed by Borrowers.
b. Borrowers hereby confirm the
representations contained in Sections 2.1 and 2.2 of the
Environmental Certificate are true and correct in all
respects.
Section 3.15. Evidence of Right to Occupancy of
Collateral Properties. A copy of the permanent certificate
of occupancy issued by each applicable Governmental
Authority, evidencing the right of the Borrower
Consolidation to use and hold open for the use and occupancy
of the public of the CPI Hotel/Casino Facilities, ACVI
Casino Facility and ACCBI Riverboat/Hotel Facilities.
Section 3.16. Gaming Permits. Copies of those
Gaming Permits issued by each applicable Gaming Authority
evidencing the right of the Borrower Consolidation to
conduct gaming activities and games of chance at the CPI
Hotel/Casino Facility, ACVI Casino Facility and the ACCBI
Riverboat/Hotel Facility.
Section 3.17. Financial Statements. Audited
financial statements of the Borrower Consolidation for the
most recently ended Fiscal Year, to the extent the same have
been prepared and are available.
Section 3.18. Schedule of all Significant
Litigation. A Schedule of Significant Litigation
(Schedule 3.18) involving any member of the Borrower
Consolidation, in each instance setting forth the names of
the other parties thereto, a brief description of such
litigation, whether or not such litigation is covered by
insurance and, if so, whether the defense thereof and
liability therefor has been accepted by the applicable
insurance company indicating whether such acceptance of such
defenses with or without a reservation of rights, the
commencement date of such litigation and the amount sought
to be recovered by the adverse parties thereto or the amount
which is otherwise in controversy.
Section 3.19. No Injunction or Other Litigation.
No law or regulation shall prohibit, and no order, judgment
or decree of any Governmental Authority shall, and no
litigation shall be pending or threatened which in the
reasonable judgment of the Agent Bank would or would
reasonably be expected to, enjoin, prohibit, limit or
restrain the execution and delivery of this Credit Agreement
or the making of any advance under the Bank Facilities.
Section 3.20. Additional Documents and
Statements. As of the Closing Date such additional
documents, affidavits, certificates and opinions as
Requisite Lenders may reasonably require to insure
compliance with this Credit Agreement. The statements set
forth in Section 3.25 shall be true and correct.
Section 3.21. Availability Limit Certificates.
An Availability Limit Certificate executed by an Authorized
Officer and prepared with reference to the Borrower
Consolidation as of the Fiscal Quarter ended March 31, 1997.
Section 3.22. Subsidiary Stock. Original stock
certificates of CPI, ACLVI, ACVI and ACCBI shall be
delivered to Agent Bank on behalf of Lenders or into an
escrow pending approval of the applicable Gaming
Authorities, as may be required.
Section 3.23. Gem Settlement Agreement. Copies
of the Gem Settlement Agreement and, if issued, the Gem
Settlement Notes in the form approved by Agent Bank and
authorized by the Nevada Gaming Authorities.
B. Conditions Precedent to all Borrowings. The
obligation of each Lender and Agent Bank to make any
Borrowing requested to be made on any Funding Date, except
Borrowings made upon the demand of Agent Bank for the
purpose of funding repayment of Swingline Outstandings, is
subject to the occurrence of each of the following
conditions precedent as of such Funding Date:
Section 3.24. Notice of Borrowing. With respect
to any Borrowing (other than in connection with a
Construction Disbursement), the Agent Bank shall have
received in accordance with Section 2.03 on or before such
Funding Date an original and duly executed Notice of
Borrowing or facsimile copy thereof, to be promptly followed
by an original. Borrowings requested to be made under the
Construction Loan Subfacility shall be made in accordance
with the terms and procedures set forth in Section 2.09 and
Article IX.
Section 3.25. Certain Statements. On the
Closing Date and as of the Funding Date the following
statements shall be true and correct:
a. The representations and warranties
with respect to the Borrowers contained in Article IV hereof
(other than representations and warranties which expressly
speak only as of a different date which shall be true and
correct as of such date) are true and correct on and as of
the Funding Date and as of the Closing Date in all material
respects as though made on and as of that date, except to
the extent that such representations and warranties are not
true and correct as a result of a change which is permitted
by this Credit Agreement or by any other Loan Document, or
which is otherwise consented to by Requisite Lenders;
b. The representations and certifications
contained in the Environmental Certificate are true and
correct in all material respects (other than representations
and warranties which expressly speak only as of a
different date which shall be true and correct as of such
date);
c. Since the date of the most recent
financial statements referred to in Section 3.17 and
5.08(b), no Material Adverse Change shall have occurred; and
d. No event has occurred or as a result of
any Borrowings contemplated hereby would occur and is
continuing, or would result from the making thereof, which
constitutes a Default or Event of Default hereunder.
Section 3.26. Gaming Permits. The Borrower
Consolidation shall have all Gaming Permits material to or
required for the conduct of its gaming businesses and the
conduct of games of chance at the CPI Hotel/Casino Facility,
the ACVI Casino Facility, the ACCBI Riverboat/Hotel
Facilities and, on and after the Completion Date, the ACLVI
Hotel/Casino Facility and such Gaming Permits shall not then
be suspended, enjoined or prohibited (for any length of
time) by any Gaming Authority or any other Governmental
Authority.
C. Conditions Precedent to Initial Construction
Disbursement. In addition to the requirements set forth in
Sections 2.01(d), 2.09 and Article IX, the obligation of
each Lender and Agent Bank to advance the Initial
Construction Disbursement is subject to Agent Bank having
received, in each case in form and substance reasonably
satisfactory to Agent Bank, Lenders and Lenders' Consultant,
each of the following:
Section 3.27. Construction Schedule, Structural
Plans and Specifications and Construction Budgets. The
Construction Schedule, the Structural Plans and
Specifications, General Contractor's Budget, Borrower
Construction Budget and the Project Development Budget, each
approved by Lenders' Consultant and Agent Bank as
substantially final and complete and acceptable for the
Initial Construction Disbursement.
Section 3.28. Construction Agreements. The
Existing General Contractor's Agreement and New General
Contractor's Agreement, each duly executed by the General
Contractor and ACLVI.
Section 3.29. Architect's Contract and Interior
Designer's Contract. The Architect's Contract duly executed
by ACLVI and the Architect. The Interior Designer's
Contract duly executed by ACLVI and the Interior Designer.
Section 3.30. Major Subcontractor's Construction
Contracts. A copy of all Major Subcontractor's construction
contracts then executed by and between ACLVI and the Major
Subcontractors or by and between the General Contractor and
the Major Subcontractors.
Section 3.31. Evidence of Availability of
Utilities for ACLVI Project. Evidence of the availability
of water, sewer, electric, gas and telephone service to the
ACLVI Project adequate for the use and occupation of the
ACLVI Project as the ACLVI Hotel/Casino Facility.
Section 3.32. Regulatory Approvals, Permits,
Consents, Etc. Copies of all material permits, approvals or
consents by all Governmental Authorities permitting the
construction of the ACLVI Project in accordance with the
Plans and Specifications or evidence that same can be
obtained, together with all supporting documents and
materials reasonably requested by Agent Bank.
Section 3.33. Assignment of Architect's
Contract. The Assignment of Architect's Contract duly
executed by ACLVI and Architect and the Architect's Consent
duly executed by Architect.
Section 3.34. Assignment of General Contractor's
Agreement. The Assignment of Existing General Contractor's
Agreement and New General Contractor's Agreement duly
executed by ACLVI and General Contractor and the Existing
General Contractor's Consent and New General Contractor's
Consent duly executed by General Contractor.
Section 3.35. Assignment of Interior Designer's
Contract. The Assignment of Interior Designer's Contract
duly executed by ACLVI an the Interior Designer and the
Interior Designer's Consent duly executed by the Interior
Designer.
Section 3.36. Major Subcontractor Assignments.
A Major Subcontractor Agreement and Major Subcontractor
Consent for each Assigned Major Subcontract which has been
executed as of the Initial Construction Disbursement Date.
Section 3.37. Soil Test Report. A soil test
report reasonably acceptable to Agent Bank, indicating the
suitability of the ACLVI Real Property for the construction
of the ACLVI Project thereon.
D. Conditions Precedent to Option Disbursement.
In addition to the requirements set forth in Sections
2.01(d), 2.09 and Article IX, the obligation of each Lender
and Agent Bank to advance an Option Disbursement is subject
to Agent Bank having received, in each case in form and
substance reasonably satisfactory to Agent Bank, Lenders and
Lenders' Consultant, each of the following:
Section 3.38. Legal Description and Parcel Map.
A complete legal description of that portion of the Option
Property to be acquired together with a true, complete and
correct copy of the parcel map recorded in the Official
Records of Xxxxx County establishing such portion as a
separate legal parcel under Chapter 278 of the Nevada
Revised Statutes.
Section 3.39. Environmental Site Assessment.
a. A Phase I Environmental Site Assessment
of the portion of the Option Property to be acquired by
ACLVI, prepared in conformance with the scope and
limitations of ASTM Standard Designation E1527-93 and
approved by Agent Bank. Any recommended action shall have
been completed by ACLVI.
b. ACLVI shall confirm in writing that the
representations contained in Sections 2.1 and 2.2 of the
Environmental Certificate are true and correct in all
respects as to the property to be acquired.
Section 3.40. Title Policy or Endorsement.
ACLVI shall cause, at its expense, concurrently with the
funding of such Option Disbursement, the Title Insurance
Company to either: (a) issue a title insurance policy in
favor of Agent Bank insuring the ACLVI Deed of Trust as a
first priority lien encumbering the portion of the Option
Property acquired with such Option Disbursement, subject
only to ACLVI Permitted Encumbrances, or (ii) issue an
endorsement to the ACLVI Title Insurance Policy insuring the
ACLVI Deed of Trust as a first priority lien encumbering the
portion of the Option Property acquired with such Option
Disbursement, subject only to ACLVI Permitted Encumbrances.
Section 3.41. Certification of Construction
Completion Costs. ACLVI shall certify to the reasonable
satisfaction of Agent Bank and Lenders' Consultant that the
Available Borrowings, after giving effect to the advance of
the Option Disbursement, will be equal to or in excess of
the
Construction Completion Costs as of the requested
Funding Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
To induce Banks to enter into this Credit
Agreement, Borrowers make the following representations and
warranties:
Section 4.01. Organization; Power and Author
ization. ACI, CPI and ACLVI are each a corporation duly
organized and validly existing under the laws of the State
of Nevada. ACVI is a corporation duly organized and validly
existing under the laws of the State of Mississippi. ACCBI
is a corporation duly organized and validly existing under
the laws of the State of Iowa. Each Borrower (i) has all
requisite corporate power, authority and legal right to
execute and deliver each document, agreement or certificate
to which it is a party or by which it is bound in connection
with the Bank Facilities, to consummate the transactions and
perform its obligations hereunder and thereunder, and,
except with respect to ACLVI and the ACLVI Hotel/Casino
Facility prior to the Completion Date, to own its properties
and assets and to carry on and conduct its business as
presently conducted or proposed to be conducted, and (ii)
has taken all necessary corporate action to authorize the
execution, delivery and performance of this Credit Agreement
and the other Loan Documents to which it is a party or by
which it is bound and to consummate the transactions
contemplated hereunder and thereunder.
Section 4.02. No Conflict With, Violation of or
Default Under Laws or Other Agreements. Neither the
execution and delivery of this Credit Agreement, the
Revolving Credit Note, the Swingline Note, or any other Loan
Document, or any other agreement, certificate or instrument
to which any Borrower is a party or by which it is bound in
connection with the Bank Facilities, nor the consummation of
the transactions contemplated hereunder or thereunder, nor
the compliance with or performance of the terms and
conditions herein or therein, is prevented by, limited by,
conflicts in any material respect with, or will result in a
material breach or violation of, or a material default (with
due notice or lapse of time or both) under, or the creation
or imposition of any lien, charge, or encumbrance of any
nature whatsoever upon any of their respective property or
assets by virtue of, the terms, conditions or provisions of
(a) any indenture, evidence of
indebtedness, loan or financing agreement, or other
agreement or instrument of whatever nature to which any
Borrower is bound, or (b) any provision of any existing law,
rule, regulation, order, writ, injunction or decree of any
court or Governmental Authority to which Borrowers are
subject.
Section 4.03. Litigation. Except as disclosed
on the Schedule of Significant Litigation delivered in
connection with Section 3.18, to the best knowledge of
Borrowers, after due inquiry and investigation, there is no
action, suit, proceeding, inquiry, hearing or investigation
pending or threatened, in any court of law or in equity, or
before any Governmental Authority, which reasonably would be
expected to (a) result in any Material Adverse Event in the
Casino Operations or in the construction and development of
the ACLVI Facilities or in its business, financial
condition, properties or operations, (b) materially
adversely affect the Borrowers' ability to perform their
respective obligations under the Credit Agreement and the
other Loan Documents, or (c) materially adversely affect the
validity or enforceability of this Credit Agreement and the
other Loan Documents. To the best knowledge of Borrowers,
after due inquiry and investigation, no Borrower is in
violation of or default with respect to any order, writ,
injunction, decree or demand of any Governmental Authority.
Section 4.04. Agreements Legal, Binding, Valid
and Enforceable. This Credit Agreement, the Revolving
Credit Note, the Swingline Note, the Security Documentation
and all other Loan Documents, when executed and delivered by
Borrowers in connection with the Bank Facilities will
constitute legal, valid and binding obligations of
Borrowers, enforceable against Borrowers in accordance with
their respective terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium and other
laws of general application relating to or affecting the
enforcement of creditors' rights and the exercise of
judicial discretion in accordance with general principles of
equity (regardless of whether enforcement is considered in a
proceeding in equity or at law).
Section 4.05. Information and Financial Data
Accurate; Financial Statements; No Adverse Event. All
information and financial and other data previously
furnished in writing by Borrowers in connection with the
Bank Facilities was true, correct and complete in all
material respects as of the date furnished (unless
subsequently corrected prior to the date hereof), and there
has been no Material Adverse Event
with respect thereto to the date of this Credit
Agreement since the dates thereof. No information has been
omitted which would make the information previously
furnished in such financial statements to Banks misleading
or incorrect in any material respect to the date of this
Credit Agreement. Any and all financial statements
heretofore furnished to Banks by Borrowers: (a) present
fairly the financial position of Borrowers as of their
respective dates and the results of operations and changes
in financial position for the periods to which they apply,
and (b) have been prepared in conformity with GAAP applied
on a consistent basis throughout the periods involved.
Since the date of the financial statements referred to in
this Section 4.05, there has been no Material Adverse Event
in the financial condition, assets, liabilities, business or
operations of Borrowers.
Section 4.06. Governmental Approvals. All
timely consents, approvals, orders or authorizations of, or
registrations, declarations, notices or filings with any
Governmental Authority which are required in connection with
the valid execution and delivery of this Credit Agreement
and the other Loan Documents by Borrowers and the carry-out
or performance of any of the transactions required or
contemplated hereunder, or thereunder, by Borrowers, have
been obtained or accomplished and are in full force and
effect, or can be obtained or accomplished by Borrowers.
All timely consents, approvals, orders or authorizations of,
or registrations, declarations, notices or filings with any
Governmental Authority which are required by Borrowers in
connection with the use and operation of the CPI
Hotel/Casino Facility, ACVI Casino Facility and ACCBI
Riverboat/Hotel Facility have been obtained or accomplished
and are in full force and effect.
Section 4.07. Payment of Taxes. Borrowers have
duly filed or caused to be filed all federal, state and
local tax reports and returns which are required to be filed
by them and have paid or made provisions for the payment of,
all material taxes, assessments, fees and other governmental
charges which have or may have become due pursuant to said
returns or otherwise pursuant to any assessment received by
Borrowers except such taxes, assessments, fees or other
governmental charges, if any, as are being contested in good
faith by Borrowers by appropriate proceedings and for which
Borrowers have maintained adequate reserves for the payment
thereof in accordance with GAAP.
Section 4.08. Title to Properties. Borrowers
shall have good and marketable title to the Collateral
Properties (other than the ACVI Leased Parcels and the IDNR
Parcel) as of the Closing Date and at all times during the
term of the Credit Facility. ACVI shall have a good and
marketable leasehold interest in the ACVI Leased Parcels,
and ACCBI shall have a good and marketable right to use the
IDNR Parcel, all as of the Closing Date and at all times
during the term of the Credit Facility. Except with respect
to the ACVI Leased Parcels and the IDNR Parcel, each of the
Borrowers has good and marketable title to: (a) all of its
properties and assets reflected in the most recent financial
statements referred to in Section 4.05 hereof as owned by
them (except those properties and assets disposed of since
the date of said financial statements in the ordinary course
of business or those properties and assets which are no
longer used or useful in the conduct of its businesses),
including, but not limited to, Borrowers' interest in
patents, trademarks, tradenames, servicemarks, and licenses
relating to or pertaining to the Collateral Properties or
the Casino Facilities, and (b) all properties and assets
acquired by them subsequent to the date of the most recent
financial statements referred to in Section 4.05 hereof.
All such properties and assets are not subject to any liens,
encumbrances or restrictions except Permitted Encumbrances.
All roads, easements and rights of way necessary for the
full utilization of the Collateral Properties have been
completed and/or obtained.
Section 4.09. No Untrue Statements. All
statements, representations and warranties made by Borrowers
in this Credit Agreement, any other Loan Document and any
other agreement, document, certificate or instrument
previously furnished or to be furnished by Borrowers to
Banks pursuant to the provisions of this Credit Agreement,
at the time they were made and on and as of the Closing
Date: (a) are and shall be true, correct and complete in all
material respects, (b) do not and shall not contain any
untrue statement of a material fact, and (c) do not and
shall not omit to state a material fact, the absence of
which makes the information contained herein or therein
materially misleading or incomplete. Borrowers understand
that all such statements, representations and warranties
shall be deemed to have been relied upon by Banks as a
material inducement to establish the Bank Facilities.
Section 4.10. Brokerage Commissions. No person
is entitled to receive any brokerage commission, finder's
fee or similar fee or payment in connection with the
extensions of
credit contemplated by this Credit Agreement. No
brokerage or other fee, commission or compensation is to be
paid by Banks with respect to the extensions of credit
contemplated hereby and Borrowers agree to indemnify Banks
against any such claims for brokerage fees or commissions
and to pay all expenses including, without limitation,
reasonable attorney's fees incurred by Banks in connection
with the defense of any action or proceeding brought to
collect any such brokerage fees or commissions.
Section 4.11. No Defaults. Borrowers are not in
violation of any applicable law and/or regulations, the
violation of which materially and adversely affects the
business, financial condition or operations of the
Collateral Properties or the Casino Operations. Borrowers
are not in violation or default (nor is there any waiver in
effect which, if not in effect, would result in a violation
or default) in any material and adverse respect under any
indenture, evidence of indebtedness, loan or financing
agreement or other agreement or instrument of whatever
nature to which they are a party or by which they are bound
(except for any defaults previously brought to Banks'
attention in writing, for which Borrowers have received a
waiver from Requisite Lenders), a default under which would
reasonably be expected to have a Material Adverse Effect.
Section 4.12. Employee Retirement Income
Security Act of 1974. No Reportable Event has occurred and
is continuing with respect to any Pension Plan under ERISA,
that gives rise to liabilities that would constitute a
Material Adverse Effect.
Section 4.13. Availability of Utility Services.
All utility services and facilities necessary for the Casino
Facilities and the Collateral Properties including, without
limitation, electrical, water, gas and sewage services and
facilities are available at the boundaries of the Collateral
Properties.
Section 4.14. Policies of Insurance. As of the
Closing Date, each of the copies of the declaration pages,
original binders and certificates of insurance evidencing
the Policies of Insurance relating to the Casino Facilities
and the ACLVI Project delivered to Agent Bank by Borrowers
(i) is a true, correct and complete copy of the respective
original thereof as in effect on the date hereof, and no
amendments or modifications of any of said documents or
instruments not included in such copies have been made, and
(ii) has not been
terminated and is in full force and effect. Borrowers
are not in default in the observance or performance of their
respective obligations under said documents and instruments,
and Borrowers have done all things required to be done as of
the Closing Date to keep unimpaired their respective rights
thereunder.
Section 4.15. Spaceleases. Schedules of all
executed Spaceleases pertaining to the Casino Facilities, or
any portion thereof, in existence as of the Closing Date,
are set forth on Schedules 4.15(A) through (D) attached
hereto.
Section 4.16. Equipment Leases and Contracts.
Schedules of all executed Equipment Leases and Contracts
pertaining to the Casino Facilities or any portion thereof,
in existence as of the Closing Date, are set forth on
Schedules 4.16 (A) through (D) attached hereto.
Section 4.17. Gaming Permits and Approvals. All
Gaming Permits required to be held by Borrowers are current
and in good standing and Borrowers presently hold all Gaming
Permits necessary for the continued operation of the CPI
Hotel/Casino Facility, ACVI Casino Facility and ACCBI
Riverboat/Hotel Facility.
Section 4.18. Environmental Certificate. The
representations and certifications contained in the
Environmental Certificate are true and correct in all
material respects.
Section 4.19. ACVI Land Leases. The copies of
each of the ACVI Land Leases delivered to Agent Bank by
Borrowers is a true, correct and complete copy of the
original thereof, as in effect on the date hereof, and no
amendments or
modifications thereto which are not included in such copy
have been made. None of the ACVI Land Leases have been
terminated and each of the ACVI Land Leases is in full force
and effect. ACVI is not in default in the observance or
performance of its obligations under any of the ACVI Land
Leases, except and to the extent, such default reasonably
would not be expected to have a Material Adverse Effect.
ACVI has done all things required to be done as of the date
of this Credit Agreement to keep unimpaired its rights under
the ACVI Land Leases.
Section 4.20. ACCBI Land Use Agreement. The
copy of the ACCBI Land Use Agreement delivered to Agent Bank
by Borrowers is a true, correct and complete copy of the
original thereof, as in effect on the date hereof, and no
amendments or
modifications thereto which are not included in such
copy have been made. The ACCBI Land Use Agreement has not
been terminated and is in full force and effect. The
interest of Xxxx under the ACCBI Land Use Agreement has been
duly assigned to ACCBI and ACCBI is not in default in the
observance or performance of its obligations under the ACCBI
Land Use Agreement, except and to the extent, such default
reasonably would not be expected to have a Material Adverse
Effect. ACCBI has done all things required to be done as of
the date of this Credit Agreement to keep unimpaired its
rights under the ACCBI Land Use Agreement.
Section 4.21. Investment Company Act. Each
Borrower is neither an "investment company" nor a company
"controlled" by an "investment company," within the meaning
of the Investment Company Act of 1940, as amended.
Section 4.22. Public Utility Holding Company
Act. Each Borrower is neither a "holding company," nor a
"subsidiary company" of a "holding company," nor an
"affiliate" of a "holding company" nor of a "subsidiary
company" of a "holding company," within the meaning of the
Public Utility Holding Company Act of 1935, as amended.
Section 4.23. Labor Relations. There is no
strike or work stoppage in existence, or to the best
knowledge of Borrowers threatened, involving any Borrower or
the Casino Facilities or the ACLVI Project that reasonably
would be expected to have a Material Adverse Effect.
Section 4.24. Trademarks, Patents, Licenses,
Franchises, Formulas and Copyrights. Except as disclosed in
Schedule 4.24, each of the Borrowers owns all the patents,
trademarks, permits, service marks, trade names, copyrights,
licenses, franchises and formulas, or has a valid license or
sublicense of rights with respect to the foregoing, and has
obtained assignments of all leases and other rights of
whatever nature, necessary for the present conduct of its
respective businesses, without any known conflict with the
rights of others which, or the failure to obtain which, as
the case may be, could reasonably be expected to result in a
Material Adverse Effect on the business, operations,
property, assets or condition (financial or otherwise) of
Borrowers. Each of the patents, trademarks, servicemarks,
tradenames and copyrights owned by Borrowers which is
registered with any Governmental Authority is set forth on
Schedule 4.24, attached hereto.
Section 4.25. Contingent Liabilities. As of the
Closing Date, Borrowers have incurred no material Contingent
Liabilities (any Contingent Liability in excess of One
Million Dollars ($1,000,000.00) being deemed material) other
than those described on Schedule 4.25.
Section 4.26. Subsidiaries. As of the Closing
Date, no member of the Borrower Consolidation has any
Subsidiaries that are not members of the Borrower
Consolidation, other than the ACVI Hotel Subsidiary,
Ameristar Casino Lawrenceberg, an Indiana corporation,
Nevada AG Air, Ltd., a Nevada limited liability company,
Kid's Quest of Council Bluffs, LLC, an Iowa limited
liability company and AC Food Services, Inc., a Nevada
corporation.
Section 4.27. Construction Permits. All permits
and authorizations by all applicable Governmental
Authorities for the construction of the ACLVI Project have
been issued in favor of and received by ACLVI and a true and
correct copy thereof delivered to Lender.
Section 4.28. The ACLVI Project. The ACLVI
Project will be carried out and undertaken by ACLVI in
complete compliance with all applicable zoning,
environmental protection, use and building codes, laws,
rules, regulations and ordinances, including, without
limitation, the Americans with Disabilities Act. The
General Contractor Budget and the Borrower Construction
Budget, as aggregated in the Project Development Budget, set
forth all Construction Completion Costs as of the Closing
Date.
Section 4.29. General Contractor Agreement,
Architect Contract and Interior Designer's Contract. The
copies of each of the General Contractor Agreement,
Architect's Contract and Interior Designer's Contract
relating to the ACLVI Project delivered to Lenders by
Borrowers is a true, correct and complete copy of the
respective original thereof as in effect on the date hereof,
and no amendments or modifications of any of said documents
or instruments not included in such copies have been made.
Each of the General Contractor Agreement, the Architect's
Contract and Interior Designer's Contract has not been
terminated and is in full force and effect. ACLVI is not in
default in the observance or performance of its obligations
under said documents and instruments, except and to the
extent, such default reasonably would not be expected to
have a Material Adverse Effect. ACLVI has done all things
required to be done as of the date
of this Credit Agreement to keep unimpaired its rights
thereunder.
ARTICLE V
GENERAL COVENANTS OF BORROWERS
To induce the Banks to enter into this Credit
Agreement, Borrowers covenant to Banks as follows:
A. General Covenants.
Section 5.01. FF&E. The Borrower Consolidation
shall furnish, fixture and equip the Casino Facilities with
FF&E it reasonably deems appropriate for the operation of
the Casino Facilities. All FF&E that is purchased and
installed in the Casino Facilities shall be purchased free
and clear of any liens, encumbrances or claims, other than
Permitted Encumbrances. If Borrowers should sell, transfer,
convey or otherwise dispose of any FF&E and not replace such
FF&E with purchased items of equivalent value and utility or
replace said FF&E with leased FF&E of equivalent value and
utility, within the permissible leasing and purchase
agreement limitation set forth herein, to the extent such
non-replaced FF&E exceeds a cumulative aggregate value of
One Hundred Thousand Dollars ($100,000.00) as to any one of
the Collateral Properties during the term of the Credit
Facility, Borrowers shall be required to immediately,
permanently reduce the Maximum Permitted Balance of the
Credit Facility by the amount of the Capital Proceeds of the
FF&E so disposed of in excess of such One Hundred Thousand
Dollars ($100,000.00), subject, however, to the right of
Agent Bank to verify to its reasonable satisfaction the
amount of said Capital Proceeds; in the event Agent Bank and
Borrowers do not agree as to the value of the FF&E disposed
of and the amount of the Capital Proceeds, then Borrowers,
at their sole cost and expense, shall obtain a written
appraisal of the FF&E disposed of, in excess of such One
Hundred Thousand Dollars ($100,000.00) from an appraiser
reasonably satisfactory to Agent Bank, setting forth said
values and amounts, and Lenders agree to accept the results
of said appraisal. The Maximum Permitted Balance shall
immediately be reduced without duplication by the amount of
such appraisal.
Section 5.02. Permits; Licenses and Legal
Requirements. Borrowers shall comply in all material
respects with and keep in full force and effect, as and when
required, all Gaming Permits and all material permits,
licenses and
approvals obtained from any Governmental Authorities
which are required for the operation and use of the
Collateral Properties as the Casino Facilities. Borrowers
shall comply in all material respects with all applicable
material existing and future laws, rules, regulations,
orders, ordinances and requirements of all Governmental
Authorities, and with all recorded restrictions affecting
the Collateral Properties.
Section 5.03. Protection Against Lien Claims.
Borrowers shall promptly pay and discharge or cause to be
paid and discharged all claims and liens for labor done and
materials and services supplied and furnished in connection
with the ACLVI Project and the Casino Facilities in
accordance with this Section 5.03, except such claims and
liens, if any, as: (a) are being contested in good faith by
Borrowers by appropriate proceedings and for which Borrowers
have maintained adequate reserves for the payment thereof in
accordance with GAAP, and (b) are junior in priority to the
applicable Deed of Trust or the Title Insurance Company has
insured the applicable Deed of Trust with priority over such
claims and liens, except with respect to the ACCBI Permitted
Encumbrances which are shown as exceptions on Schedule B of
the ACCBI Title Insurance Policy. If any mechanic's lien or
materialman's lien shall be recorded, filed or suffered to
exist against the Collateral Properties or any interest
therein by reason of work, labor, services or materials
supplied, furnished or claimed to have been supplied and
furnished in connection with the ACLVI Project or the Casino
Facilities, upon Borrowers receipt of written notice from
Agent Bank demanding the release and discharge of such lien,
said lien or claim shall be paid, released and discharged of
record within one hundred eighty (180) days following its
receipt of such notice with respect to liens and/or claims
against the ACCBI Riverboat/Hotel Facilities and within
sixty (60) days following its receipt of such notice with
respect to any of the other Casino Facilities.
Section 5.04. Full Payment of Existing Bank Loan
and WFB Loan. On or before the Closing Date, Borrowers
shall pay in full or cause to be fully paid all sums of
principal and interest owing under the Existing Bank Loan
and WFB Loan and shall cause all Existing Bank Loan Security
Documents and Existing Intercompany Security Documents to be
fully released, discharged and reconveyed.
Section 5.05. No Change in Character of Business
or Location of Chief Executive Office. At all times
throughout the term of the Credit Facility (a) the chief
executive office of Borrowers shall be located at 0000
Xxxxxx Xxxxxx Xxxxxxx, Xxx Xxxxx, Xxxxxx 00000; provided,
however, Borrowers shall be entitled to move their chief
executive office to another location within the State of
Nevada upon no less than thirty (30) days prior written
notice to Agent Bank, (b) the Casino Facilities shall be
operated by the Borrower Consolidation, and (c) Borrowers
shall not effect a material change in the nature and
character of the business at the Casino Facilities as
presently conducted and as presently contemplated and
disclosed to Banks.
Section 5.06. Preservation and Maintenance of
Properties and Assets. At all times throughout the term of
the Credit Facility, (a) the Borrower Consolidation shall
operate, maintain and preserve all rights, privileges,
franchises, licenses, Gaming Permits and other properties
and assets necessary to conduct its businesses and the
Casino Facilities, in accordance with all applicable
governmental laws, ordinances, approvals, rules and
regulations and requirements, including, but not limited to,
zoning, sanitary, pollution, building, environmental and
safety laws and ordinances, rules and regulations
promulgated thereunder, and (b) Borrowers shall not
consolidate with, remove, demolish, materially alter,
discontinue the use of, sell, transfer, assign, hypothecate
or otherwise dispose of to any Person, any part of its
properties and assets necessary for the continuance of its
business, as presently conducted and as presently
contemplated, other than in the normal course of business,
alterations or modifications as are reasonably expected to
increase the value of the Collateral, or as otherwise
permitted pursuant to this Credit Agreement. Furthermore,
in the event any Borrower, or any Affiliate and/or Related
Entity thereof, shall acquire any other real property or
rights to the use of real property which is: (a) adjacent to
any of the Collateral Properties and used in a material
manner in connection with the use and/or operation at the
Collateral Properties, the Casino Facilities, or any of
them, or (b) if not so adjacent, necessary and required for
the use and operation of such Collateral Property, Casino
Facilities, or any of them, Borrowers shall concurrently
with the acquisition of such real property or the rights to
the use of such real property, execute or cause the
execution of such documents as may be necessary to add such
real property or rights to the use of real property as
Collateral under the Credit Facility.
Section 5.07. Repair of Properties and Assets.
At all times throughout the term of the Credit Facility,
Borrowers shall, at their own cost and expense, (a)
maintain, preserve and keep in a manner consistent with
hotel and gaming casino operating practices, as the case may
be, applicable to hotel/casino operations operating in the
jurisdictions in which such properties are located, its
assets and properties, including, but not limited to, the
Collateral Properties and all FF&E owned or leased by
Borrowers in good and substantial repair, working order and
condition, ordinary wear and tear excepted, (b) from time to
time, make or cause to be made, all necessary and proper
repairs, replacements, renewals, improvements and
betterments thereto, and (c) from time to time, make such
substitutions, additions, modifications and improvements as
may be necessary and as shall not impair the structural
integrity, operating efficiency and economic value of said
assets and properties. All alterations, replacements,
renewals, or additions made pursuant to this Section 5.07
shall become and constitute a part of said assets and
property and subject, inter alia, to the provisions of
Section 5.01 and subject to the lien of the Loan Documents.
Section 5.08. Financial Statements; Reports;
Certificates and Books and Records. Until Bank Facility
Termination, Borrowers shall, unless the Agent Bank (with
the written approval of the Requisite Lenders) otherwise
consents, at Borrowers' sole expense, deliver to the Agent
Bank and each of the Lenders a full and complete copy of
each of the following and shall comply with each of the
following financial requirements:
a. As soon as practicable, and in any event
within forty-five (45) days after the end of each Fiscal
Quarter (including the fourth (4th) Fiscal Quarter in any
Fiscal Year), the consolidated and consolidating balance
sheet, income statement, operating statement setting forth
average daily room rate, hotel occupancy rate, win per slot
and win per table game, patron admission counts at the
Casino Facilities to the extent available and statement of
retained earnings and cash flows (in each case reconciled
with year end audited statements and compared to budget and
prior year period) of the Borrower Consolidation as at the
end of such Fiscal Quarter and for the portion of the Fiscal
Year ended with such Fiscal Quarter, all in reasonable
detail. Such financial statements shall be certified by an
Authorized Officer of the Borrower Consolidation as fairly
presenting the financial condition, results of operations
and cash flows of the Borrower Consolidation in accordance
with GAAP (other than footnote disclosures) as at such date
and for such periods,
subject only to normal year-end accruals and audit
adjustments;
b. As soon as practicable, and in any event
within forty-five (45) days after the end of each Fiscal
Quarter (including the fourth (4th) Fiscal Quarter in any
Fiscal Year), a pricing certificate in the form marked
"Exhibit G", affixed hereto and by this reference
incorporated herein and made a part hereof (the "Pricing
Certificate") setting forth a preliminary calculation of the
Leverage Ratio as of the last day of such Fiscal Quarter,
and providing reasonable detail as to the calculation
thereof, which calculations shall be based on the
preliminary unaudited financial statements of the Borrower
Consolidation for such Fiscal Quarter, and as soon as
practicable thereafter, in the event of any material
variance in the actual calculation of the Leverage Ratio
from such preliminary calculation, a revised Pricing
Certificate setting forth the actual calculation thereof;
provided, however, that in the event that Borrowers do not
deliver a Pricing Certificate when due, then until (but only
until) such Pricing Certificate is delivered as provided
herein, the Leverage Ratio shall be deemed, for the purpose
of determining the Applicable Margin, to be greater than 4.0
to 1.0 and the Applicable Margin determined with respect
thereto.
c. As soon as practicable, and in any event
within ninety (90) days after the end of each Fiscal Year,
(i) the consolidated and consolidating balance sheet, income
statement, statement of retained earnings and cash flows
(reconciled with year end audited statements) of the
Borrower Consolidation as at the end of such Fiscal year,
all in reasonable detail. Such financial statements shall
be prepared in accordance with GAAP and shall be accompanied
by a report of independent public accountants of recognized
standing selected by ACI and reasonably satisfactory to the
Agent Bank (it being understood that any "Big 6" accounting
firm shall be automatically deemed satisfactory to the Agent
Bank), which report shall be prepared in accordance with
generally accepted auditing standards as at such date, and
shall not be subject to any qualifications or exceptions as
to the scope of the audit nor to any other qualification or
exception determined by the Requisite Lenders in their good
faith business judgment to be adverse to the interests of
the Banks. Such accountants' report shall be accompanied by
a certificate stating that, in making the examination
pursuant to generally accepted auditing standards necessary
for the certification of such financial statements and such
report,
such accountants have obtained no knowledge of any
Default or, if, in the opinion of such accountants, any such
Default shall exist, stating the nature and status of such
Default, and stating that such accountants have reviewed the
Financial Covenants as at the end of such Fiscal Year (which
shall accompany such certificate) under Sections 6.01
through 6.07, have read such Sections (including the
definitions of all defined terms used therein) and that
nothing has come to the attention of such accountants in the
course of such examination that would cause them to believe
that the same were not calculated by the Borrower
Consolidation in the manner prescribed by this Credit
Agreement. Such financial statements shall be certified by
an Authorized Officer of the Borrower Consolidation in the
same manner as required with respect to financial statements
delivered pursuant to Section 5.08(a);
d. As soon as practicable, and in any event
no later than fifteen (15) days prior to the commencement of
each Fiscal Year, a budget (including a Capital Expenditure
budget) and projection by Fiscal Quarter for that Fiscal
Year and by Fiscal Year for the next four (4) succeeding
Fiscal Years, including for the first such Fiscal Year,
projected consolidated and consolidating balance sheets,
statements of operations and statements of cash flow and,
for the second (2nd) and third (3rd) such Fiscal Years,
projected consolidated and consolidating condensed balance
sheets and statements of operations and cash flows, of the
Borrower Consolidation, all in reasonable detail;
e. Concurrently with the financial
statements and reports required pursuant to Sections 5.08(a)
and 5.08(c), Compliance Certificate signed by an Authorized
Officer;
f. As soon as practicable, and in any event
within forty-five (45) days after the end of each Fiscal
Quarter (including the fourth (4th) Fiscal Quarter in any
Fiscal Year) an Availability Limit Certificate in the form
marked "Exhibit H", affixed hereto and by this reference
incorporated herein and made a part hereof (the
"Availability Limit Certificate") setting forth the
calculation of EBITDA as of the last day of such Fiscal
Quarter, together with the immediately three (3) preceding
Fiscal Quarters on a four (4) Fiscal Quarter basis, and
providing reasonable detail as to the calculation thereof
and setting forth the Availability Limit as of the
Availability Determination Date as a multiple of three and
one-quarter (3.25) times (x) the aggregate EBITDA for such
four (4) Fiscal Quarters; and
g. Promptly after the same are available,
copies of each annual report, proxy or financial statement
or other report or communication that shall have been sent
to the stockholders of ACI, and copies of all annual,
regular, periodic and special reports (including, without
limitation, each 10Q and 10K report) and registration
statements which ACI shall have filed or be required to file
with the Securities and Exchange Commission under Section 13
or 15(d) of the Securities Exchange Act of 1934, as amended,
and not otherwise required to be delivered to the Banks
pursuant to other provisions of this Section 5.08.
h. Until Bank Facility Termination,
Borrowers, and each of them, shall keep and maintain
complete and accurate books and records in accordance with
GAAP, consistently applied. Borrowers, and each of them,
shall permit Banks and any authorized representatives of
Banks to have reasonable access to and to inspect, examine
and make copies of the books and records, any and all
accounts, data and other documents of Borrowers at all
reasonable times upon the giving of reasonable notice of
such intent. In addition: (i) in the event of the
occurrence of any Default or Event of Default, or (ii) in
the event any Material Adverse Change occurs, Borrowers
shall promptly, and in any event within three (3) days after
actual knowledge thereof, notify Agent Bank in writing of
such occurrence.
i. Until Bank Facility Termination,
Borrowers, and each of them, shall furnish to Agent Bank,
with sufficient copies for distribution to each of the
Banks, any financial information or other information
bearing on the financial status of the Borrowers, or any of
them, which is reasonably requested by Agent Bank or
Requisite Lenders.
Section 5.09. Insurance. Until Bank Facility
Termination, Borrowers shall obtain, or cause to be
obtained, and shall maintain or cause to be maintained with
respect to the Collateral, including without limitation, the
Vessels, at their own cost and expense, and shall deposit
with Agent Bank on or before the Closing Date:
a. Property Insurance. Borrowers shall
maintain a special causes of loss (ISO form or equivalent),
perils policy covering the buildings and improvements, and
any other permanent structures for one hundred percent
(100%) of the replacement cost. Borrowers shall maintain a
Ten Million Dollar ($10,000,000.00) limit of coverage for
the perils of flood and earthquake covering the Collateral.
Upon the
request of Agent Bank, replacement cost for insurance
purposes will be established by an independent appraiser
mutually selected by Borrowers and Agent Bank. The policy
will include Agreed Amount (waiving co-insurance),
replacement cost valuation and building ordinance
endorsements. The policy will include a standard mortgagee
clause (ISO form or equivalent) and provide that all losses
in excess of Five Hundred Thousand Dollars ($500,000.00) be
adjusted with the Agent Bank. The Borrowers waive any and
all rights of subrogation against Banks resulting from
losses to property.
b. Personal Property (including machinery,
equipment, furniture, fixtures, stock). Borrowers shall
maintain a special causes of loss perils "All Risk" property
coverage for all personal property owned, leased or for
which Borrowers are legally liable. The coverage will
include a lenders' loss payable endorsement in favor of
Agent Bank.
The policy providing real property and
personal property coverages, as specified in 5.09(a) and (b)
hereinabove, may include a deductible of no more than One
Hundred Thousand Dollars ($100,000.00) for any single
occurrence. Flood and earthquake deductibles can be no more
than Two Hundred Fifty Thousand Dollars ($250,000.00), if a
separate deductible applies.
c. Business Interruption/Extra Expense.
Borrowers shall maintain combined Business
Interruption/Extra Expense coverage with a limit
representing no less than Eighty percent (80%) of the
projected annual net profit plus continuing expenses
(including debt service) for the Casino Facilities with
respect to all land-based facilities. Such coverage shall
include an extensions for off premises power losses at One
Million Dollars ($1,000,000.00) and extended period of
indemnity of sixty (60) days endorsement. These coverages
may have deductible of no greater than forty-eight (48)
hours, or One Hundred Thousand ($100,000.00), if a separate
deductible applies.
d. Boiler and Machinery. Borrowers shall
maintain a Boiler and Machinery policy for the Casino
Facilities written on a Comprehensive Form with a combined
direct and indirect limit of no less than Twenty Million
Dollars ($20,000,000.00). The policy shall include
extensions for Agreed Amount (waiving co-insurance) and
Replacement Cost Valuation. The policy may contain
deductibles of no greater than Fifty Thousand Dollars
($50,000.00) direct and forty-eight (48) hours indirect.
e. Crime Insurance. Borrowers shall obtain
a comprehensive crime policy, including the following
coverages:
(i) employee dishonesty - Two Million
Dollars ($2,000,000.00);
(ii) money and securities (inside) - Five
Hundred Thousand Dollars ($500,000.00);
(iii) money and securities (outside) - Five
Hundred Thousand Dollars ($500,000.00);
(iv) depositor's forgery - One Million
Dollars ($1,000,000.00);
(v) computer fraud - One Million Dollars
($1,000,000.00).
The policy must be amended so that money is
defined to include "tokens and chips" (as defined in
Regulation 12.010 of the Nevada Gaming Authorities). The
policy may contain deductibles of no greater than Two
Hundred Thousand Dollars ($200,000.00) for employee
dishonesty and Fifty Thousand Dollars ($50,000.00) for all
coverages listed above.
f. Commercial General Liability (1996 Form
or Equivalent). Borrowers shall maintain a Commercial
General Liability policy with a One Million Dollar
($1,000,000.00) combined single limit for bodily injury and
property damage, including Products Liability, Contractual
Liability, and all standard policy form extensions. The
policy must provide a Two Million Dollar ($2,000,000.00)
general aggregate (per location, if multi-location risk) and
be written on an "occurrence form". The policy will be
extended to provide watercraft Liability for permanently
moored barges while stationary. The policy will also
include extensions for Liquor Legal Liability and Employee
Benefits Legal Liability, Innkeepers Legal and Safe Deposit
Box Legal coverages. If the general liability policy
contains a self-insured retention, it shall be no greater
than Fifty Thousand Dollars ($50,000.00) per occurrence.
The policy shall be endorsed to include Agent
Bank as an additional insured on behalf of the Banks.
Definition of additional insured shall include all officers,
directors, employees, agents and representatives of the
additional insured. The coverage for additional
insured shall apply on a primary basis irrespective of any
other insurance whether collectible or not.
g. Automobile. Borrowers shall maintain a
comprehensive Automobile Liability Insurance Policy written
under coverage "symbol 1", providing a One Million Dollar
($1,000,000.00) combined single limit for bodily injury and
property damage covering all owned, non-owned and hired
vehicles of the Borrowers. If the policy contains a self
insured retention it shall be no greater than Fifty Thousand
Dollars ($50,000.00) per occurrence. The following
additional coverages must be purchased by Borrowers:
(i) Garage Liability. A One Million Dollar
($1,000,000.00) combined single limit for bodily
and property damage for the garage operation.
(ii) Garagekeepers Legal Liability. Five
Hundred Thousand Dollar ($500,000.00) limit for
comprehensive and collision coverages for physical
damage to vehicles in the Borrowers' care, custody
and control. The policy can be subject to a
deductible of no greater than Five Thousand
Dollars ($5,000.00) for each auto and Twenty-Five
Thousand Dollars ($25,000.00) for each loss.
h. Workers Compensation and Employers
Liability Insurance. Borrowers shall maintain a standard
workers compensation policy covering the states of Nevada,
Mississippi, Iowa and any other state where the company is
operating, including employers liability coverage subject to
a limit of no less than One Million Dollars ($1,000,000.00)
each employee, One Million Dollars ($1,000,000.00) each
accident, One Million Dollars ($1,000,000.00) policy limit.
The policy shall include endorsements for Voluntary
Compensation, Stop Gap Liability, Long-Shoreman's and
Harbors Workmans Compensation Act and Maritime Coverages (as
applicable). If the Borrowers have elected to self-insure
Workers Compensation coverage in the State of Nevada (or any
other state), the Agent Bank must be furnished with a copy
of the certificate from the state(s) permitting self-
insurance and evidence of a Stop Loss Excess Workers
Compensation policy with a specific retention of no greater
than Three Hundred Thousand Dollars ($300,000.00) per
occurrence.
i. Marine Insurance (for all vessels that
are owned or leased by any Borrower or for which any of the
Borrowers are legally liable).
(i) Hull and Machinery Coverage. This
policy will provide the broadest possible scope of
property coverage available including all
Traditional Commercial Hull insuring conditions,
American Institute clauses (including liner
negligence and SR&CC clauses) covering the vessel
for physical damage at a value that represents one
hundred percent (100%) of the replacement cost for
each Vessel. The policy will include Agreed
Amount (waving co-insurance) and replacement cost
valuation endorsements. The policy may contain a
deductible of no greater than Two Hundred Fifty
Thousand Dollars ($250,000.00) per occurrence.
(ii) Casino Boat Business Interruption.
Borrowers will purchase business interruption
coverage under a "comprehensive facility form"
indemnifying each vessel operation for loss of net
profits and continuing expenses (including debt
service) for loss arising from casualty to the
vessel and any other cause beyond the control of
the Borrowers. The limit purchase must represent
no less than fifty percent (50%) of the annual net
profit plus continuing expenses. The policy may
have a deductible of no greater than twenty-one
(21) days for each vessel.
(iii) Protection and Indemnity. Protection
and Indemnity coverage will be written through a
combination of Primary and Excess coverage with a
Twenty-Five Million Dollar ($25,000,000.00)
combined single limit for bodily injury and
property damage, including all standard policy
form extensions. The policy shall be written on
an occurrence form. The Agent Bank and Banks will
be included as additional insureds under the
policy.
(iv) Comprehensive Pollution Liability.
Borrowers shall purchase Comprehensive Pollution
Liability coverage with a limit of no less than
Twenty-Nine Million Dollars ($29,000,000.00) per
incident covering any loss or damage resulting
from any discharge, admission, spillage or leakage
on or into water, including governmental mandated
clean
up. The limits can be secured through the
purchase of primary and excess policies, as long
as all coverages follow form. The Agent Bank and
Banks will be included as additional insureds
under the policy.
j. Aircraft Policy. Borrowers shall
maintain aircraft liability coverage with a limit of no less
than Fifty Million Dollars ($50,000,000.00) on all aircraft
that are owned, operated or leased by any of the Borrowers.
The policy shall also provide physical damage coverage for
all "owned" aircrafts with a deductible of no greater than
Fifty Thousand Dollars ($50,000.00).
k. Underground Storage Tank Liability.
Borrowers shall maintain an underground storage tank
liability policy providing first party (property damage) and
third party (bodily/property damage) coverages for
environmental claims resulting from underground storage
tanks at the Casino Facilities. The policy will include
coverage for all governmental and regulatory agency mandated
clean ups. The policy shall provide limits of no less than
Five Million Dollars ($5,000,000.00) each incident, Five
Million Dollars ($5,000,000.00) in the aggregate, with a
sublimit of One Million Two Hundred Fifty Thousand Dollars
($1,250,000.00) for covering defense expenses for first and
third party claims. The policy may contain a deductible of
no greater than Five Hundred Thousand Dollars ($500,000.00)
for first and third party claims. This provision may be
satisfied in part by CPI's and ACLVI's participation in and
compliance with NRS 590.700 through 590.920, inclusive, and
the regulations promulgated thereunder. Borrowers shall
provide Agent Bank proof of registration of all regulated
underground storage tanks.
l. If Borrowers' general liability and
automobile policies include a self-insured retention, it is
agreed and fully understood that Borrowers are solely
responsible for payment of all amounts due within said self-
insured retentions. Any Indemnification/Hold Harmless
provision is extended to cover all liabilities associated
with said self-insured retentions.
m. Umbrella/Bumbershoot Liability. An
Umbrella/Bumbershoot Liability policy shall be purchased
with a limit of not less than One Hundred Million Dollars
($100,000,000.00) providing excess coverage over all limits
and coverages indicated in paragraphs (f), (g), (h),
(i)(iii)
and (iv) above. Excess Umbrella/Bumbershoot policies
can be obtained by a combination of Primary and Excess
Umbrella/Bumbershoot policies, provided that all layers
follow form with the underlying policies indicated in (f),
(g), (h) and (i)(iii) and (iv) and are written on an
"occurrence" form. This policy shall be endorsed to include
the Agent Bank as an additional insured on behalf of the
Banks.
n. All policies indicated above shall be
written with insurance companies licensed and admitted to do
business in all states where the Borrower Consolidation, or
any of them, is operating and shall be rated no lower than
"A XII" in the most recent addition of A.M. Best's and "AA"
in the most recent edition of Standard & Poor's, or such
other carrier reasonably acceptable to Agent Bank. All
policies discussed above shall be endorsed to provide that
in the event of a cancellation, non-renewal or material
modification, Agent Bank shall receive thirty (30) days
prior written notice thereof. The Borrowers shall furnish
Agent Bank with Certificates of Insurance executed by an
authorized agent evidencing compliance with all insurance
provisions discussed above on an annual basis. Certificates
of Insurance executed by an authorized agent of each carrier
providing insurance evidencing continuation of all coverages
will be provided on the Closing Date and annually on or
before ten (10) days prior to the expiration of each policy.
All certificates and other notices related to the insurance
program shall be delivered to Agent Bank concurrently with
the delivery of such certificates or notices to such carrier
or to Borrowers, or any of them, as applicable.
o. Construction Insurance Coverages.
Borrowers shall obtain, or cause to be obtained and shall
maintain, or caused to be maintained with respect to the
ACLVI Project until the occurrence of the Completion Date,
at their own cost and expense, the following policies:
(i) Builders Risk. All Risk Builders Risk
form providing property coverage during
construction on a completed value form
(representing one hundred percent (100%) of the
anticipated construction cost). The policy will
include endorsements extending coverage for
(a) Delay of Opening (Business Interruption);
(b) Soft Costs; (c) Property in Transit;
(d) Offsite Storage. The policy can be subject to
a deductible of no greater than Twenty-Five
Thousand Dollars ($25,000.00) for Property Damage
and ten (10) days for Delay of Opening.
Agent Bank must be included as mortgagee.
(ii) Owners/Contractors Protective Liability
Policy ("OCP"). During the Construction Period,
OCP policies will be purchased and maintained by
owner, or owners general contractor, providing
separate liability coverage for owner and Agent
Bank. The policy limit of liability will be no
less than Five Million Dollars ($5,000,000.00).
(iii) Contractors/Sub-Contractors Insurance
Requirements. ACLVI shall require that the
General Contractor and each Subcontractor party to
a Major Subcontract with an expected or stated
costs in excess of One Million Dollars
($1,000,000.00) performing work at the ACLVI
Project comply with the minimum insurance
requirements per Schedule 5.09(o) attached hereto
and by this reference incorporated herein and made
a part hereof.
(iv) On and after the Completion Date, the
ACLVI Project shall be protected by the insurance
coverages required under Section 5.09 a through j,
k, l and m.
p. Any other insurance reasonably
requested by Agent Bank or Requisite Lenders in such amount
and covering such risks as may be reasonably requested.
Section 5.10. Taxes. Throughout the term of the
Credit Facility, Borrowers shall prepare and timely file or
cause to be prepared and timely filed all federal, state and
local tax returns required to be filed by it, and Borrowers
shall pay and discharge prior to delinquency all taxes,
assessments and other governmental charges or levies imposed
upon it, or in respect of any of any of its properties and
assets except such taxes, assessments and other governmental
charges or levies, if any, as are being contested in good
faith by Borrowers in the manner which is set forth for such
contests by Section 4.07 herein.
Section 5.11. Permitted Encumbrances Only. At
all times throughout the term of the Credit Facility,
Borrowers shall not create, incur, assume or suffer to exist
any mortgage, deed of trust, pledge, lien, security
interest, encumbrance, attachment, levy, distraint, or other
judicial
process and burdens of every kind and nature except
the Permitted Encumbrances on or with respect to the
Collateral, except (a) with respect to matters described in
Sections 5.03 and 5.10 such items as are being contested in
the manner described therein, and (b) with respect to any
other items, if any, as are being contested in good faith by
appropriate proceedings and for which Borrowers have
maintained adequate reserves for the payment thereof.
Section 5.12. Advances. At any time during the
term of the Credit Facility, if Borrowers should fail (a) to
perform or observe, or (b) to cause to be performed or
observed, any covenant or obligation of Borrowers under this
Credit Agreement or any of the other Loan Documents, then
Agent Bank, upon the giving of reasonable notice may (but
shall be under no obligation to) take such steps as are
necessary to remedy any such non-performance or non-
observance and provide for payment thereof. All amounts
advanced by Agent Bank or Lenders pursuant to this Section
5.12 shall become an additional obligation of Borrowers to
Lenders secured by the Deeds of Trust and other Loan
Documents, shall reduce the amount of Available Borrowings
and shall become due and payable by Borrowers on the next
interest payment date, together with interest thereon at a
rate per annum equal to the Default Rate (such interest to
be calculated from the date of such advancement to the date
of payment thereof by Borrowers).
Section 5.13. Further Assurances. Borrowers will
do, execute, acknowledge and deliver, or cause to be done,
executed, acknowledged and delivered, such amendments or
supplements hereto or to any of the Loan Documents and such
further documents, instruments and transfers as Requisite
Lender or Agent Bank may reasonably require for the curing
of any defect in the execution or acknowledgement hereof or
in any of the Loan Documents, or in the description of the
Collateral Properties or other Collateral or for the proper
evidencing of giving notice of each lien or security
interest securing repayment of the Credit Facility.
Further, upon the execution and delivery of the Deeds of
Trust and each of the Loan Documents and thereafter, from
time to time, Borrowers shall cause the Deeds of Trust and
each of the Loan Documents and each amendment and supplement
thereto to be filed, registered and recorded and to be
refiled, re-registered and re-recorded in such manner and in
such places as may be reasonably required by the Requisite
Lenders or Agent Bank, in order to publish notice of and
fully protect the liens of the Deeds of Trust and the Loan
Documents and to protect or
continue to perfect the security interests created by
the Deeds of Trust and Loan Documents in the Collateral
Properties and Collateral and to perform or cause to be
performed from time to time any other actions required by
law and execute or cause to be executed any and all
instruments of further assurance that may be necessary for
such publication, perfection, continuation and protection.
Section 5.14. Indemnification. Borrowers agree
to and do hereby jointly and severally indemnify, protect,
defend and save harmless Agent Bank and each of the Banks
and their respective trustees, officers, employees, agents,
attorneys and shareholders (individually an "Indemnified
Party" and collectively the "Indemnified Parties") from and
against any and all losses, damages, expenses or liabilities
of any kind or nature from any suits, claims, or demands,
including reasonable counsel fees incurred in investigating
or defending such claim, suffered by any of them and caused
by, relating to, arising out of, resulting from, or in any
way connected with this Credit Agreement, with any other
Loan Document or with the transactions contemplated herein
and thereby; provided, however, Borrowers shall not be
obligated to indemnify, protect, defend or save harmless an
Indemnified Party if, and to the extent, the loss, damage,
expense or liability was caused by (a) the gross negligence
or intentional misconduct of such Indemnified Party, or (b)
the breach of this Credit Agreement or any other Loan
Document by such Indemnified Party or the breach of any
laws, rules or regulation by such Indemnified Party (other
than those breaches of laws arising from any Borrowers'
default). In case any action shall be brought against any
Indemnified Party based upon any of the above and in respect
to which indemnity may be sought against Borrowers, Agent
Bank shall promptly notify Borrowers in writing, and
Borrowers shall assume the defense thereof, including the
employment of counsel selected by Borrowers and reasonably
satisfactory to Indemnified Party, the payment of all costs
and expenses and the right to negotiate and consent to
settlement upon the consent of the Indemnified Party. Upon
reasonable determination made by Indemnified Party that such
counsel would have a conflict representing such Indemnified
Party and Borrowers, the applicable Indemnified Party shall
have the right to employ separate counsel in any such action
and to participate in the defense thereof. Borrowers shall
not be liable for any settlement of any such action effected
without their consent, but if settled with Borrowers'
consent, or if there be a final judgment for the claimant in
any such action, Borrowers agree to indemnify, defend and
save harmless such Indemnified
Parties from and against any loss or liability by
reason of such settlement or judgment. The provisions of
this Section 5.14 shall survive the termination of this
Credit Agreement and the repayment of the Credit Facility
and the assignment or subparticipation of all or any portion
of the Syndication Interest held by any Lender pursuant to
Section 11.10.
Section 5.15. Inspection of the Collateral and
Appraisal. At all times during the term of the Credit
Facility, Borrowers shall provide or cause to be provided to
Banks and any authorized representatives of Banks,
accompanied by representatives of Borrowers, the reasonable
right of entry and free access to the Collateral Properties
to inspect same on reasonable prior notice to Borrowers. If
at any time any Qualified Appraisal of the Collateral
Properties, or any of them, is required to be made by any
banking regulatory authority or determined to be necessary
by Agent Bank or Requisite Lenders after the occurrence of
an Event of Default, Borrowers agree to pay all fees, costs
and expenses incurred by Agent Bank in connection with the
preparation of such Qualified Appraisal.
Section 5.16. Compliance With Other Loan
Documents. Borrowers shall comply with each and every term,
condition and agreement contained in the Loan Documents.
Section 5.17. Suits or Actions Affecting
Borrowers. Throughout the term of the Credit Facility,
Borrowers shall promptly advise Agent Bank in writing within
ten (10) days after Borrowers obtain knowledge of (a) any
claims, litigation, proceedings or disputes (whether or not
purportedly on behalf of Borrowers) against, or to the
actual knowledge of Borrowers, threatened or affecting
Borrowers which, if adversely determined, would have a
Material Adverse Effect on the Collateral Properties or the
business, operations or financial conditions of Borrowers,
(b) any material labor controversy resulting in or
threatening to result in a strike against any of the
Collateral Properties or Casino Facilities, or (c) any
proposal by any Governmental Authority to acquire any of the
material assets or business of Borrowers.
Section 5.18. Occurrence of Senior Subordinated
Notes Effective Date, Designation of Senior Debt and
Required Payments from Proceeds of Senior Subordinated
Notes. As of the Closing Date, Lenders do hereby consent to
the issuance of the Senior Subordinated Notes by ACI in
accordance with and pursuant to the Indenture, in the form
of the Senior
Subordinated Notes and Indenture reviewed and approved
by Lenders (with such changes as do not materially and
adversely affect the Banks), up to the aggregate outstanding
amount at any time of One Hundred Twenty-Five Million
Dollars ($125,000,000.00). The Senior Subordinated Notes
Effective Date shall occur on or before July 31, 1997.
Either (i) pursuant to the terms of the Indenture, the Bank
Facilities shall be designated as senior debt or (ii) on or
before ten (10) Banking Business Days following the Senior
Subordinated Notes Effective Date, Borrowers shall cause the
Bank Facilities to be designated as senior debt pursuant to
an officers' certificate in accordance with such procedure,
if any, as may be set forth in the Indenture. On or before
ten (10) Banking Business Days following the Senior
Subordinated Notes Effective Date, Borrowers shall pay or
cause to be paid the following Indebtedness:
a. no less than Seventy Million Dollars
($70,000,000.00) in the aggregate of the outstanding
principal then owing under the Revolving Credit Note, the
Existing Bank Loan and/or the WFB Loan;
b. all Indebtedness owing under the terms
of the GECC Ship Note and ACCBI Equipment Loan and shall
additionally cause the release and reconveyance of the GECC
Ship Mortgage, the ACCBI Equipment Ship Mortgage and other
security instruments encumbering the ACCBI Riverboat or any
equipment, furniture, fixtures or gaming devices located on
the ACCBI Riverboat other than the ACCBI Ship Mortgage and
related security interests in favor of Agent Bank on behalf
of the Lenders; and
c. other Indebtedness of the Borrower
Consolidation as determined by Borrowers.
Section 5.19. Consents of and Notice to Gaming
Authorities.
a. ACI shall make all necessary
applications to and pursue in good faith and obtain with
reasonable diligence (but in no event later than ninety (90)
days following the Closing Date) all necessary consents and
approvals of the applicable Gaming Authorities to the:
(i) pledge of the stock of CPI, ACLVI, ACCBI and ACVI
pursuant to the Stock Pledges, (ii) the restrictions on
transfer and hypothecation of the stock of CPI, ACLVI, ACCBI
and ACVI contained in Sections 6.10 and 7.01(u), and
(iii) the terms set forth in the Credit Agreement and each
of the Loan
Documents, to the extent which may be required by the
Iowa Gaming Authorities; and
b. Borrowers shall comply in all material
respects with all applicable statutes, rules and regulations
requiring reports and disclosures to all applicable Gaming
Authorities, including, but not limited to, reporting this
Credit Facility transaction, within the time period required
by Regulation 8.130(2) of the Regulations of Nevada Gaming
Commission and State Gaming Control Board and Regulation
II.I. Section 11(b) of the Regulations of the Mississippi
Gaming Commission.
Section 5.20. Tradenames, Trademarks and
Servicemarks. Borrowers shall not assign or in any other
manner alienate their respective interests in any material
tradenames, trademarks or servicemarks relating or
pertaining to the Casino Facilities during the term of the
Credit Facility. No Borrower shall change its name without
first giving at least thirty (30) days prior written notice
to Agent Bank.
Section 5.21. Notice of Hazardous Materials.
Within ten (10) days after an executive officer of any of
the Borrowers shall have obtained actual knowledge thereof,
Borrowers shall promptly advise Agent Bank and each of the
Lenders in writing of and deliver a copy of: (a) any and all
enforcement, clean-up, removal or other governmental or
regulatory actions instituted or threatened by any
Governmental Agency pursuant to any applicable federal,
state or local laws, ordinances or regulations relating to
any Hazardous Materials (as defined in the Environmental
Certificate) affecting the Collateral Properties ("Hazardous
Materials Laws"); (b) all written claims made or threatened
by any third party against Borrowers, the Collateral
Properties, the Casino Facilities, or any of them, relating
to damage, contribution, cost recovery compensation, loss or
injury resulting from any Hazardous Materials (the matters
set forth in clauses (a) and (b) above are hereinafter
referred to as "Hazardous Materials Claims"); and (c) the
discovery of any occurrence or condition on any real
property adjoining or in the vicinity of the Collateral
Properties, the Casino Facilities, or any of them, that
could cause any Borrower or any part thereof to be held
liable under the provisions of, or to be otherwise subject
to any restrictions on the ownership, occupancy,
transferability or use of the Collateral Properties or the
Casino Facilities under, any Hazardous Materials Laws.
Section 5.22. Compliance with ACVI Land Leases
and ACCBI Land Use Agreement.
a. Until Bank Facilities Termination,
Borrowers shall fully perform and comply with or cause to be
performed and complied with all of the respective material
covenants, material terms and material conditions imposed or
assumed by them, or any of them, as lessee under each of the
ACVI Land Leases and under the ACCBI Land Use Agreement.
Except the exercise of renewal and purchase options under
the Xxxxx/Xxx Lease and the Xxxxxxxx Lease in accordance
with subsections (b) and (c) below, none of the Borrowers
shall amend, modify or terminate, or enter into any
agreement to amend, modify or terminate any of the ACVI Land
Leases or the ACCBI Land Use Agreement without the prior
written consent of Requisite Lenders.
b. At least six (6) months prior to
expiration of the Primary Term under the Xxxxx/Xxx Lease (as
defined therein) and at least six (6) months prior to each
Renewal Term under the Xxxxx/Xxx Lease (as also defined
therein), ACVI shall either: (i) exercise its option to
extend the Xxxxx/Xxx Lease for a Renewal Term in accordance
with the terms and conditions set forth therein; or
(ii) provide written notice to the lessor under the
Xxxxx/Xxx Lease of its intention to exercise the Purchase
Option (as also defined therein) (a "Purchase Option
Notice") and thereafter diligently pursue the closing for
such purchase on, or before, expiration of the then current
term of the Xxxxx/Xxx Lease. Concurrently with all notices
to the lessor under the Xxxxx/Xxx Lease which are required
under this subsection (b), ACVI shall deliver copies of such
notices to Agent Bank, and if ACVI delivers a Purchase
Option Notice, ACVI shall from time to time provide Agent
Bank with such information as Agent Bank may reasonably
request, regarding actions taken by ACVI in pursuit of
closing in accordance with said Purchase Option Notice.
c. At least six (6) months prior to
expiration of the Primary Term under the Xxxxxxxx Lease (as
defined therein), ACVI shall provide written notice to the
lessor under the Xxxxxxxx Lease of its intention to exercise
the Purchase Option (as also defined therein) and thereafter
diligently pursue the closing for such purchase on, or
before, expiration of the Primary Term under the Xxxxxxxx
Lease. Concurrently with such notice, ACVI shall deliver a
copy thereof to Agent Bank, and from time to time shall
provide Agent Bank with such information as Agent Bank may
reasonably
request, regarding actions taken by ACVI in pursuit of
closing in accordance with the Purchase Option under the
Xxxxxxxx Lease.
Section 5.23. Compliance with Access Laws.
a. Borrowers agree that Borrowers, the
Casino Facilities and the Collateral Properties shall at all
times strictly comply with the requirements of the Americans
with Disabilities Act of 1990; the Fair Housing Amendments
Act of 1988; and other federal, state or local laws or
ordinances related to disabled access; or any statute, rule,
regulation, ordinance, order of Governmental Authorities, or
order or decree of any court adopted or enacted with respect
thereto, as now existing or hereafter amended or adopted
(collectively, the "Access Laws"). At any time, Agent Bank
may require a certificate of compliance with the Access Laws
and indemnification agreement in a form reasonably
acceptable to Agent Bank. Agent Bank may also require a
certificate of compliance with the Access Laws from an
architect, engineer, or other third party acceptable to
Agent Bank.
b. Notwithstanding any provisions set
forth herein or in any other document, Borrowers shall not
alter or permit any tenant or other person to alter the
Casino Facilities or the Collateral Properties in any manner
which would increase Borrowers' responsibilities for
compliance with the Access Laws without the prior written
approval of Agent Bank. In connection with such approval,
Agent Bank may require a certificate of compliance with the
Access Laws from an architect, engineer or other person
acceptable to Agent Bank.
c. Borrowers agree to give prompt written
notice to Agent Bank of the receipt by Borrowers of any
claims of violation of any of the Access Laws and of the
commencement of any proceedings or investigations which
relate to compliance with any of the Access Laws.
d. Borrowers shall indemnify, defend and
hold harmless Indemnified Parties from and against any and
all claims, demands, damages, costs, expenses, losses,
liabilities, penalties, fines and other proceedings
including, without limitation, reasonable attorneys' fees
and expenses arising directly or indirectly from or out of
or in any way connected with any failure of the Casino
Facilities or the Collateral Properties to comply with any
of the Access Laws. The obligations and liabilities of
Borrowers under this
section shall survive Bank Facility Termination, any
satisfaction, assignment, judicial or nonjudicial
foreclosure proceeding, or delivery of a deed in lieu of
foreclosure.
Section 5.24. ACVI Hotel Provisions.
a. ACVI may convey the ACVI Hotel Property
to the ACVI Hotel Subsidiary at any time subsequent to the
Closing Date. Upon such conveyance ACVI shall give written
notice thereof to Agent Bank and shall promptly deliver to
Agent Bank a conformed copy of the conveyance instrument.
b. Upon the closing of the ACVI Hotel
Construction Loan in accordance with the provisions set
forth in Section 6.08(d), Agent Bank shall subordinate the
lien priority of the ACVI Hotel Deed of Trust and ACVI Hotel
Financing Statements to the ACVI Hotel Construction Deed of
Trust and ACVI Hotel Construction Financing Statements,
without further authorization or consent of the Lenders.
c. Upon completion of the ACVI Hotel, ACVI
and the ACVI Hotel Subsidiary may enter into a management
agreement under the terms of which ACVI will operate and
manage the ACVI Hotel so long as:
(i) the terms of such management
agreement are first approved in writing by Agent
Bank, and
(ii) all costs, expenses, fees and
other charges incurred by ACVI in connection with
the operation and management of the ACVI Hotel
will be fully reimbursed to ACVI by the ACVI Hotel
Subsidiary no less frequently than as of the end
of each Fiscal Quarter.
B. Construction Covenants.
Section 5.25. Commencement and Completion of the
ACLVI Project. ACLVI will commence the ACLVI Project and
shall complete the ACLVI Project with due diligence (i) in
accordance and compliance with the Plans and Specifications
prepared by the Architect and the Interior Designer in all
material respects and (ii) in accordance and compliance with
the terms and conditions of this Credit Agreement, and all
material requirements of all Governmental Authorities acting
in or for the locality in which the ACLVI Real Property is
situated. The Completion Date shall be no later than
June 30, 1998.
Section 5.26. Master Set of Plans and
Specifications.
a. A master set of the final Structural
Plans and Specifications shall be furnished to Agent Bank
and Lenders' Consultant at least ten (10) Banking Business
Days prior to the Initial Construction Disbursement and
shall be held by Agent Bank throughout the term of the
Credit Facility, and said set of Structural Plans and
Specifications shall govern all matters that may arise with
respect to the construction and completion of the structural
and exterior components of the ACLVI Project.
b. A master set of the final Interior
Plans and Specifications shall be furnished to Agent Bank
and Lenders' Consultant at least ten (10) Banking Business
Days prior to the advance of any Construction Disbursement
relating to the payment of any amounts not set forth on the
General Contractor's Budget and shall be held by Agent Bank
throughout the term of the Credit Facility, and said set of
Interior Plans and Specifications shall govern all matters
that may arise with respect to the construction and
completion of the interior components, equipment and
furnishing of the ACLVI Project.
Section 5.27. Construction of the ACLVI Project
Entirely on the ACLVI Real Property. The ACLVI Project
shall be constructed entirely on the ACLVI Real Property and
shall not encroach upon or overhang any real property,
easement (other than Permitted Encumbrances) or restriction
rights owned by any other person or entity unless such other
person or entity has consented or waived such encroachment
to the reasonable satisfaction of Agent Bank and Requisite
Lenders.
Section 5.28. List and Assignment of Major
Subcontracts.
a. ACLVI shall furnish to Agent Bank from
time to time during the Construction Period, within a
reasonable time after written request by Agent Bank to
ACLVI, in a form reasonably acceptable to Agent Bank, a then
current correct list and copy of all contracts, subcontracts
and material suppliers, including, without limitation, all
Major Subcontracts executed by any Borrower and/or General
Contractor in connection with the ACLVI Project. Borrowers
agree that Agent Bank or Lenders' Consultant may
contact any such contractor, subcontractor or material
supplier to verify any facts disclosed in the lists.
b. Concurrently with the execution of each
Major Subcontract requiring payment thereunder in excess of
Five Million Dollars ($5,000,000.00) in the aggregate (each
individually an "Assigned Major Subcontract" and
collectively the "Assigned Major Subcontracts"), ACLVI shall
cause such Assigned Major Subcontract to be assigned to
Agent Bank on behalf of Lenders as additional security for
the Credit Facility and the Subcontractor party thereto to
consent to such assignment, each in substantially the form
of the Assignment of General Contractor's Agreement and
General Contractor's Consent, or as otherwise reasonably
required by Agent Bank.
Section 5.29. Project Sign. During the
construction of the ACLVI Project, Agent Bank may require
the Borrowers to erect a sign at the ACLVI Project at
ACLVI's expense. The size, design, wording and location of
such a sign shall be subject to Agent Bank's approval. The
sign may be erected as soon as practical following the Agent
Bank's request.
Section 5.30. Inspection of Construction Progress
and Lenders' Consultant. Designated representatives of
Agent Bank, Lenders and Lenders' Consultant, shall, at all
times during the Construction Period, have the right of
reasonable entry and free access to the ACLVI Real Property
and the right to inspect all work done, labor performed and
materials furnished in connection with the ACLVI Project and
the right of reasonable inspection to inspect all books,
contracts and records of Borrowers relating to the ACLVI
Project. In performing such inspection, Agent Bank, Lenders
and Lenders' Consultant shall cooperate with Borrowers in
making suitable arrangements to minimize disruption of the
construction work, and pursuant to Borrowers' insurance
policies and safety and security requirements.
ARTICLE VI
FINANCIAL COVENANTS
Until payment in full of all sums owing hereunder
and under the Notes and the occurrence of Bank Facilities
Termination, Borrowers agree, as set forth below, to comply
or cause compliance with the following Financial Covenants.
Section 6.01. Minimum Capital Expenditures.
During each Fiscal Year, commencing with the Fiscal Year
commencing January 1, 1998, Borrowers shall make or cause to
be made, Capital Expenditures to the Collateral Properties
in a minimum aggregate amount equal to or greater than two
percent (2%) of net revenues derived from the Collateral
Properties by the Borrower Consolidation during the
immediately preceding Fiscal Year.
Section 6.02. Minimum Tangible Net Worth. The
Borrower Consolidation shall maintain as of the last day of
each Fiscal Quarter a Tangible Net Worth equal to or greater
than the sum of (a) Fifty Million Dollars ($50,000,000.00),
plus (b) ninety percent (90%) of Net Income after taxes
realized as of each Fiscal Quarter end occurring on and
after March 31, 1997 (without reduction for any net losses),
plus (c) ninety percent (90%) of the proceeds received in
Cash or Cash Equivalents (net of reasonable expenses) of any
and all additional Equity Offerings made after the Closing
Date, other than proceeds of any Equity Offerings that are
required to be paid to Xxxxxx or Xxxxxxxxxxx pursuant to the
terms of the Gem Merger Agreement.
Section 6.03. Leverage Ratio. Commencing as of
the first Fiscal Quarter ending subsequent to the Closing
Date and continuing as of each Fiscal Quarter end until Bank
Facilities Termination, the Borrower Consolidation shall
maintain a Leverage Ratio no greater than the ratios
described hereinbelow to be calculated as of the end of each
Fiscal Quarter in accordance with the following schedule:
Fiscal Quarter End Leverage Ratio
As of the Closing Date through
the Fiscal Quarter ending
December 31, 1998 5.00 to 1.00
As of the Fiscal Quarter ending
March 31, 1999, through the
Fiscal Quarter ending
December 31, 1999 4.50 to 1.00
As of the Fiscal Quarter ending
March 31, 2000, through Bank
Facilities Termination 4.00 to 1.00
Section 6.04. Gross Fixed Charge Coverage Ratio.
Commencing as of the first Fiscal Quarter ending subsequent
to
the Closing Date and continuing as of each Fiscal
Quarter end until Bank Facilities Termination, the Borrower
Consolidation shall maintain a Gross Fixed Charge Coverage
Ratio no less than 1.50 to 1.00.
Section 6.05. Adjusted Fixed Charge Coverage
Ratio. Commencing as of the first Fiscal Quarter ending
subsequent to the Closing Date and continuing as of each
Fiscal Quarter end until Bank Facilities Termination, the
Borrower Consolidation shall maintain an Adjusted Fixed
Charge Coverage Ratio no less than 1.10 to 1.00.
Section 6.06. Contingent Liability(ies). The
Borrower Consolidation shall not directly or indirectly
incur any Contingent Liability(ies) in excess of the
cumulative aggregate amount of Five Million Dollars
($5,000,000.00) without the prior written consent of
Requisite Lenders.
Section 6.07. Investment Restrictions. Other
than Investments permitted herein or approved in writing by
Requisite Lenders, the Borrower Consolidation shall not make
any Investments (whether by way of loan, stock purchase,
capital contribution, or otherwise) other than the
following:
(a) Cash, Cash Equivalents and direct
obligations of the United States Government;
(b) Prime commercial paper (AA rated or
better);
(c) Certificates of Deposit or Repurchase
Agreement issued by a commercial bank having capital surplus
in excess of One Hundred Million Dollars ($100,000,000.00);
(d) Money market or other funds of
nationally recognized institutions investing solely in
obligations described in (a), (b) and (c) above;
(e) Loans and advances to employees in the
ordinary course of business not exceeding Two Hundred
Thousand Dollars ($200,000.00) in the aggregate at any one
time; and
(f) In addition to Investments permitted
under clause (g) below, Investments, including Investments
in Subsidiaries which are not members of the Borrower
Consolidation, at the discretion of Borrowers up to the
maximum cumulative aggregate amount of Two Million Dollars
($2,000,000.00);
(g) In addition to Investments permitted
under clause (f) above, investment by ACVI in the ACVI Hotel
Subsidiary up to the maximum cumulative aggregate amount of
Two Million Dollars ($2,000,000.00), together with
conveyance of title to the ACVI Hotel Property by ACVI to
the ACVI Hotel Subsidiary following the Closing Date; and
(h) Capital Expenditures for the Casino
Facilities.
Section 6.08. Total Liens. The Borrower
Consolidation shall not directly or indirectly, create,
incur, assume or permit to exist any Lien on or with respect
to any of the Collateral, whether now owned or hereafter
acquired, or any income or profits therefrom, or file or
permit the filing of, or permit to remain in effect, any
financing statement or other similar notice of any Lien with
respect to any of the Collateral under the Uniform
Commercial Code of any State or under any similar recording
or notice statute, except:
(a) Permitted Encumbrances;
(b) Liens granted or permitted pursuant to
the Security Documentation;
(c) Liens on the FF&E and other goods
securing Indebtedness to finance the purchase price thereof;
provided that (i) such Liens shall extend only to the
equipment and other goods so financed and the proceeds
thereof, (ii) such Liens shall not secure Indebtedness in
excess of Fifteen Million Dollars ($15,000,000.00) in the
aggregate at any time, and (iii) Agent Bank, upon the
written request of an Authorized Officer, shall confirm the
priority of such Liens as paramount to the Security
Documentation to the extent such Liens are permitted under
this Section 6.08(c);
(d) The ACVI Hotel Construction Security
Documents and any Liens created thereunder, so long as each
of the following conditions are true and correct in all
respects:
(i) that the ACVI Hotel Construction
Loan and the ACVI Hotel Construction Date evidence
Indebtedness owing by the ACVI Hotel Subsidiary to
the ACVI Hotel Construction Lender in an aggregate
principal amount of no greater than Seven Million
Five Hundred Thousand Dollars ($7,500,000.00);
(ii) that the ACVI Hotel Construction
Loan and ACVI Hotel Construction Note be non-
recourse as to ACVI and each other member of the
Borrower Consolidation, except for Contingent
Liabilities that will be subject to the limitation
set forth in Section 6.06; and
(iii) that the proceeds of the ACVI
Hotel Construction Loan be used to finance the
construction and development of a hotel on the
ACVI Hotel Property containing no less than one
hundred forty (140) rooms to be constructed in
accordance with plans and specifications which are
first approved in writing by Agent Bank; and
(e) Liens described on Schedule 6.08 annexed
hereto.
Section 6.09. No Merger. No Borrower shall
merge, consolidate with or sell all or substantially all of
its assets.
Section 6.10. No Transfer of Ownership. ACI
shall not transfer or hypothecate its ownership interests in
CPI, ACLVI, ACCBI or ACVI except in connection with the
Security Documentation. This provision shall not be
effective as to ACVI until it is approved by the Mississippi
Gaming Authorities.
Section 6.11. Dividend Restriction. ACI shall
not pay or declare any dividends or Distributions on capital
stock during any period in which the most recently
calculated Leverage Ratio of the Borrower Consolidation is
greater than 2.00 to 1.00.
Section 6.12. ERISA. No Borrower shall:
a. At any time, permit any Pension Plan
which is maintained by any Borrower or to which any Borrower
is obligated to contribute on behalf of its employees, in
such case if to do so would constitute a Material Adverse
Effect, to:
(i) engage in any non-exempt
"prohibited transaction", as such term is defined
in Section 4975 of the Code;
(ii) incur any material "accumulated
funding deficiency", as that term is defined in
Section 302 of ERISA; or
(iii) suffer a termination event to
occur which may reasonably be expected to result
in liability of any Borrower to the Pension Plan
or to the Pension Benefit Guaranty Corporation or
the imposition of a lien on the Collateral
pursuant to Section 4068 of ERISA.
b. Fail, upon any Borrower becoming aware
thereof, promptly to notify the Agent Bank of the occurrence
of any Reportable Event with respect to any Pension Plan or
of any non-exempt "prohibited transaction" (as defined in
Section 4975 of the Code) with respect to any Pension Plan
which is maintained by any Borrower or to which Borrowers
are obligated to contribute on behalf of their employees or
any trust created thereunder which Reportable Event or
prohibited transaction would constitute a Material Adverse
Effect.
c. At any time, permit any Pension Plan
which is maintained by any Borrower or to which any Borrower
is obligated to contribute on behalf of its employees to
fail to comply with ERISA or other applicable laws in any
respect that would result in a Material Adverse Effect.
Section 6.13. Margin Regulations. No part of the
proceeds of the Credit Facility or Swingline Facility will
be used by Borrowers to purchase or carry any Margin Stock
or to extend credit to others for the purpose of purchasing
or carrying any Margin Stock. Neither the making of such
loans, nor the use of the proceeds of such loans will
violate or be inconsistent with the provisions of
Regulations G, T, U or X of the Board of Governors of the
Federal Reserve System.
Section 6.14. Transactions with Affiliates. No
Borrower shall engage in any transaction with any Affiliate
of Borrowers which is not a member of the Borrower
Consolidation, other than arms length transactions for fair
market value, except to the extent more favorable to the
Borrower Consolidation.
Section 6.15. Change in Accounting Principles.
Except as otherwise provided herein, if any changes in
accounting principles from those used in the preparation of
the most recent financial statements delivered to Agent Bank
pursuant to the terms hereof are hereinafter required or
permitted by the rules, regulations, pronouncements
and opinions of the Financial Accounting Standards Board or
the American Institute of Certified Public Accountants (or
successors thereto or agencies with similar functions) and
are adopted by the Borrowers with the agreement of their
independent certified public accountants and such changes
result in a change in the method of calculation of any of
the financial covenants, standards or terms found herein,
the parties hereto agree to enter into negotiations in order
to amend such provisions so as to equitably reflect such
changes with the desired result that the criteria for
evaluating the financial condition of Borrowers shall be the
same after such changes as if such changes had not been
made; provided, however, that no change in GAAP that would
affect the method of calculation of any of the financial
covenants, standards or terms shall be given effect in such
calculations until such provisions are amended, in a manner
satisfactory to Agent Bank and Requisite Lenders, to so
reflect such change in accounting principles.
ARTICLE VII
EVENTS OF DEFAULT
Section 7.01. Events of Default. Any of the
following events and the passage of any applicable notice
and cure periods shall constitute an Event of Default
hereunder:
a. Any representation or warranty made by
Borrowers pursuant to or in connection with this Credit
Agreement, the Notes, the Environmental Certificate, or any
other Loan Document or in any report, certificate, financial
statement or other writing furnished by Borrowers in
connection herewith, shall prove to be false, incorrect or
misleading in any materially adverse aspect as of the date
when made;
b. Borrowers shall have defaulted in the
payment of any principal or interest on the Notes when due,
and such default continues for a period of more than five
(5) days;
c. Borrowers shall have defaulted under the
terms of any other obligation owing Agent Bank, which
default continues beyond any applicable grace period therein
contained;
d. Borrowers shall have defaulted in the
payment of any late charge, Nonusage Fees, Agency Fees,
expenses, indemnities or any other amount owing under any
Loan Document for a period of five (5) days after notice
thereof to Borrowers from Agent Bank;
e. Borrowers shall fail duly and punctually
to perform or comply with: (i) any term, covenant, condition
or promise contained in Sections 6.01, 6.02, 6.03, 6.04,
6.05, 6.06, 6.07, 6.08 or 6.09, or (ii) any other term,
covenant, condition or promise contained in this Credit
Agreement, the Notes, the Deeds of Trust or any other Loan
Document and, in the case of any term, covenant, condition
or promise covered by this clause (ii), such failure shall
continue thirty (30) days after written notice thereof is
delivered to Borrowers by Agent Bank or any Lender of such
failure;
f. Any of the Security Documentation or any
provision thereof: (i) shall cease to be in full force and
effect in any material respect and such cessation has a
Material Adverse Effect, or (ii) shall cease to give the
Agent Bank in any material respect the liens, rights, powers
and privileges purported to be created thereby, or (iii) the
Borrowers shall default in the due performance or observance
of any term, covenant or agreement on their part to be
performed or observed pursuant to the Security Documentation
for a period of thirty (30) days after written notice
thereof is delivered to Borrowers by Agent Bank of such
failure (or such shorter period following such notice as may
be specifically required in any Loan Document);
g. Any Borrower shall commence a voluntary
case or other proceeding seeking liquidation, reorganization
or other relief with respect to it or its debts under the
Bankruptcy Code or any bankruptcy, insolvency or other
similar law now or hereafter in effect or seeking the
appointment of a trustee, receiver, liquidator, custodian or
other similar official, for all or substantially all of its
property, or shall consent to any such relief or to the
appointment or taking possession by any such official in any
involuntary case or other proceeding against it;
h. An involuntary case or other proceeding
shall be commenced against any Borrower seeking liquidation,
reorganization or other relief with respect to itself or its
debts under the Bankruptcy Code or any bankruptcy,
insolvency or other similar law now or hereafter in effect
or seeking the appointment of a trustee, receiver,
liquidator, custodian or
other similar official, for all or substantially all
of its property, and such involuntary case or other
proceeding shall remain undismissed and unstayed for a
period of ninety (90) days;
i. Any Borrower makes an assignment for the
benefit of its creditors or admits in writing its inability
to pay its debts generally as they become due;
j. Borrowers shall fail to make any payment
when due (whether by scheduled maturity, required
prepayment, offer to purchase, redemption, acceleration,
demand or otherwise, in each case beyond the grace period
provided with respect to such Indebtedness) on any
Indebtedness (other than any Indebtedness under this Credit
Agreement or under the Gem Settlement Notes), if the
aggregate amount of such Indebtedness is One Million Dollars
($1,000,000.00), or more, or any breach, default or event of
default shall occur, or any other event shall occur or
condition shall exist, under any instrument, agreement or
indenture pertaining thereto if the effect thereof is to
accelerate, the maturity of any such Indebtedness; or any
such Indebtedness shall be declared to be due and payable or
shall be required to be prepaid, purchased or redeemed
(other than by a regularly scheduled required prepayment)
prior to the stated maturity thereof, or the holder of any
lien in any amount, shall commence foreclosure of such lien
upon property of Borrowers having a value in excess of One
Million Dollars ($1,000,000.00) and such foreclosure shall
continue against such property to a date less than thirty
(30) days prior to the date of the proposed foreclosure
sale;
k. The occurrence of any event of default,
beyond any applicable grace period, under the terms of any
agreement with any Lender in connection with a Secured
Interest Rate Hedge relating to the Credit Facility;
l. Any Borrower shall be voluntarily or
involuntarily divested of title or possession of any
Collateral Property or shall lease or in any other manner,
voluntarily or involuntarily alienate any of its interest in
any Collateral Property or Casino Facility, other than the
Permitted Encumbrances and as permitted in Section 5.01;
m. The occurrence of any Reportable Event
with respect to a Pension Plan which Agent Bank determines
in good faith constitutes proper grounds for the termination
of any Pension Plan by the Pension Benefit Guaranty
Corporation
or for the appointment by an appropriate United States
District Court of a trustee to administer any such plan that
would constitute a Material Adverse Effect, should occur and
should continue for thirty (30) days after written notice of
such determination shall have been given to Borrowers by
Agent Bank;
n. Commencement against any Borrower, any
time after the execution of this Credit Agreement, of any
litigation which is not stayed, bonded, dismissed,
terminated or disposed of to the satisfaction of Agent Bank
within ninety (90) days after its commencement, and which
(i) has a reasonable probability of success, and could, if
successful, in the reasonable opinion of Agent Bank,
materially and adversely affect the priority of the Liens
granted Agent Bank by the Deeds of Trust in the Collateral
Properties, or (ii) results in the issuance of a preliminary
or permanent injunction which is not dissolved or stayed
pending appeal within sixty (60) days of its issuance and
which preliminary or permanent injunction materially
adversely affects any Borrower's right to use the Collateral
Properties as the Casino Facilities;
o. Any Borrower shall fail to perform, in a
timely manner, any material obligation which such Borrower
has under any of the ACVI Land Leases or ACCBI Land Use
Agreement and does not cure such failure prior to the
expiration of any applicable grace period;
p. The loss or suspension, other than on
account of forces majeure, of any Borrower's unrestricted
Gaming Permits or the failure of any Borrower to maintain
gaming activities at the Casino Facilities other than on
account of forces majeure at least to the same general
extent as is presently conducted thereon or in the case of
the ACLVI Project as presently contemplated thereon for a
period in excess of thirty (30) consecutive days;
q. Any money judgment, writ or warrant of
attachment or similar process involving (i) in any
individual case an amount in excess of One Million Dollars
($1,000,000.00) or (ii) in the aggregate at any time an
amount in excess of Two Million Dollars ($2,000,000.00) (in
either case not adequately covered by insurance as to which
a solvent and unaffiliated insurance company has
acknowledged coverage) shall be entered or filed against any
Borrower or any of their respective assets and shall remain
undischarged, unvacated, unbonded or unstayed for a period
of sixty (60) days (or in
any event later than five (5) days prior to the date
of any proposed sale thereunder);
r. Any order, judgment or decree shall be
entered against any Borrower decreeing its involuntary
dissolution or split up and such order shall remain
undischarged and unstayed for a period in excess of thirty
(30) days, or Borrowers shall otherwise dissolve or cease to
exist;
s. The occurrence of any Change of Control
or the occurrence of any "Change of Control" as defined in
the Indenture which causes any holder or holders of the
Senior Subordinated Notes to require ACI to repurchase all
or any part of such holder's or holders' Senior Subordinated
Notes;
t. Any redemption, repurchase, defeasance
or pre-payment of principal owing under the Senior
Subordinated Notes, or any portion thereof, is made by any
Borrower prior to the occurrence of Bank Facility
Termination;
u. The Completion Date does not occur on or
before June 30, 1998;
v. ACI sells, transfers, assigns,
hypothecates or otherwise alienates its interest in all or
any portion of the common voting stock of CPI, ACLVI, ACCBI
or ACVI (subject to this provision being first approved by
all necessary Gaming Authorities), other than in connection
with the Stock Pledges; or
w. The failure of the Iowa Gaming
Authorities to grant all necessary approvals and consents in
connection with the execution by ACCBI of the Credit
Agreement and each of the Loan Documents to be executed by
ACCBI.
Section 7.02. Default Remedies. Upon the
occurrence of any Event of Default, Agent Bank, upon the
consent or direction of Requisite Lenders, shall declare the
unpaid balance of the Notes, together with the interest
thereon, to be fully due and payable, and Agent Bank shall,
upon the consent or direction of Requisite Lenders, exercise
any or all of the following remedies:
a. Terminate the obligation of Lenders to
make any advances for Borrowings and/or Construction
Disbursements and may declare all outstanding unpaid
Indebtedness hereunder and under the Revolving Credit Note
and
other Loan Documents together with all accrued
interest thereon immediately due and payable without
presentation, demand, protest or notice of any kind. This
remedy will be deemed to have been automatically exercised
on the occurrence of any event set out in Sections 7.01 (g),
(h) or (i).
b. Terminate the obligation of Swingline
Lender to make any advances under the Swingline Facility and
may declare all outstanding unpaid Indebtedness hereunder
and under the Swingline Note, together with all accrued
interest thereon immediately due and payable without
presentation, demand, protest or notice of any kind. This
remedy will be deemed to have been automatically exercised
on the occurrence of any event set out in Sections 7.01 (g),
(h) or (i).
c. The Banks and/or Agent Bank may exercise
any and all remedies available to Banks or Agent Bank under
the Loan Documents.
d. In the event Borrowers have failed to
provide any insurance required under Section 5.09, Agent
Bank may elect at its discretion to purchase such insurance.
All payments made by Agent Bank for the purpose of providing
the insurance coverages required under Section 5.09 shall be
deemed amounts advanced under Section 5.12 of this Credit
Agreement.
e. The Banks and/or Agent Bank may exercise
any other remedies available to Banks or Agent Bank at law
or in equity, including requesting the appointment of a
receiver to perform any acts required of Borrowers under
this Credit Agreement, and Borrowers hereby specifically
consent to any such request by Banks.
For the purpose of carrying out this section and
exercising these rights, powers and privileges, Borrowers
hereby irrevocably constitute and appoint Agent Bank as
their true and lawful attorney-in-fact to execute,
acknowledge and deliver any instruments and do and perform
any acts such as are referred to in this paragraph in the
name and on behalf of Borrowers. Agent Bank on behalf of
Lenders may exercise one or more of Lenders' remedies
simultaneously and all its remedies are nonexclusive and
cumulative. Agent Bank and Lenders shall not be required to
pursue or exhaust any Collateral or remedy before pursuing
any other Collateral or remedy. Agent Bank and Lenders'
failure to exercise any remedy for a particular default
shall not be deemed a waiver of (i) such remedy, nor their
rights to exercise any other
remedy for that default, nor (ii) their right to
exercise that remedy for any subsequent default.
Section 7.03. Application of Proceeds. All
payments and proceeds received and all amounts held or
realized from the sale or other disposition of the Real
Collateral Properties and/or Collateral, which are to be
applied hereunder towards satisfaction of Borrowers'
obligations under the Credit Facility, shall be applied in
the following order of priority:
a. First, to the payment of all reasonable
fees, costs and expenses (including reasonable attorney's
fees and expenses) incurred by Agent Bank and Banks, their
agents or representatives in connection with the realization
upon any of the Collateral;
b. Next, to the payment in full of any
other amounts due under this Credit Agreement, the Deed of
Trust, or any other Loan Documents (other than the Notes);
c. Next, to the balance of interest
remaining unpaid on the Notes;
d. Next, to the balance of principal
remaining unpaid on the Notes;
e. Next, the balance, if any, of such
payments or proceeds to whomever may be legally entitled
thereto.
Section 7.04. Notices. In order to entitle
Agent Bank and/or Banks to exercise any remedy available
hereunder, it shall not be necessary for Agent Bank and/or
Banks to give any notice, other than such notice as may be
required expressly herein or by applicable law.
Section 7.05. Agreement to Pay Attorney's Fees
and Expenses. Subject to the provisions of Section 11.14,
upon the occurrence of an Event of Default, as a result of
which Agent Bank shall require and employ attorneys or incur
other expenses for the collection of payments due or to
become due or the enforcement or performance or observance
of any obligation or agreement on the part of Borrowers
contained herein, Borrowers shall, on demand, pay to Agent
Bank the reasonable fees of such attorneys and such other
reasonable expenses so incurred by Agent Bank.
Section 7.06. No Additional Waiver Implied by
One Waiver. In the event any agreement contained in this
Credit Agreement should be breached by either party and
thereafter waived by the other party, such waiver shall be
limited to the particular breach so waived and shall not be
deemed to waive any other breach hereunder.
Section 7.07. Licensing of Agent Bank and
Lenders. In the event of the occurrence of an Event of
Default hereunder or under any of the Loan Documents and it
shall become necessary, or in the opinion of Requisite
Lenders advisable, for an agent, supervisor, receiver or
other representative of Agent Bank and Banks to become
licensed under the provisions of the laws and/or regulations
of any applicable Gaming Authority as a condition to
receiving the benefit of any Collateral encumbered by the
Deeds of Trust or other Loan Documents for the benefit of
Lenders or otherwise to enforce their rights hereunder,
Borrowers hereby give their consent to the granting of such
license or licenses and agree to execute such further
documents as may be required in connection with the
evidencing of such consent.
Section 7.08. Exercise of Rights Subject to
Applicable Law. All rights, remedies and powers provided by
this Article VII may be exercised only to the extent that
the exercise thereof does not violate any applicable
provision of the laws of any Governmental Authority and all
of the provisions of this Article VII are intended to be
subject to all applicable mandatory provisions of law that
may be controlling and to be limited to the extent necessary
so that they will not render this Credit Agreement invalid,
unenforceable or not entitled to be recorded or filed under
the provisions of any applicable law.
Section 7.09. Discontinuance of Proceedings. In
case Agent Bank and/or Banks shall have proceeded to enforce
any right, power or remedy under this Credit Agreement, the
Notes, the Deeds of Trust or any other Loan Document by
foreclosure, entry or otherwise, and such proceedings shall
have been discontinued or abandoned for any reason or shall
have been determined adversely to Banks, then and in every
such case Borrowers, Agent Bank and/or Banks shall be
restored to their former positions and rights hereunder with
respect to the Collateral, and all rights, remedies and
powers of Agent Bank and Banks shall continue as if such
proceedings had not been taken, subject to any binding rule
by the applicable court or other tribunal in any such
proceeding.
ARTICLE VIII
DAMAGE, DESTRUCTION AND CONDEMNATION
Section 8.01. No Abatement of Payments. If all or
any part of the Collateral Properties shall be materially
damaged or destroyed, or if title to or the temporary use of
the whole or any part of any of the Collateral Properties
shall be taken or condemned by a competent authority for any
public use or purpose, there shall be no abatement or
reduction in the amounts payable by Borrowers hereunder or
under the Notes, and Borrowers shall continue to be
obligated to make such payments.
Section 8.02. Distribution of Capital Proceeds
Upon Occurrence of Fire, Other Perils or Condemnation. All
monies received from "All Risk" including flood and
earthquake insurance policies covering any of the Collateral
Properties or from condemnation or similar actions in regard
to said Collateral Properties, shall be paid directly to
Agent Bank. However, in the event the amount paid to Agent
Bank is equal to or less than Five Hundred Thousand Dollars
($500,000.00), such amount shall be paid directly to
Borrowers unless an Event of Default shall have occurred and
then be continuing. In the event the amount paid to Agent
Bank is greater than Five Hundred Thousand Dollars
($500,000.00), then at the option of Borrowers, unless an
Event of Default has occurred hereunder and is then
continuing, in which case at the option of Requisite
Lenders, such amount may be applied to pay the outstanding
balance of the Credit Facility or the entire amount so
collected, or any part thereof, may be released to Borrowers
for repair or replacement of the property destroyed or
condemned or to reimburse Borrowers for the costs of such
repair or replacement incurred prior to the date of such
release. In the event the amount so collected is applied to
reduce the outstanding balance of the Credit Facility, the
entire amount received shall reduce the Maximum Principal
Balance and Borrowers shall not be entitled to any further
disbursements or Borrowings hereunder. In the event the
Borrowers elect to, or Lenders are required to, release all
or a portion of the collected funds to Borrowers for such
repair or replacement of the property destroyed or
condemned, such release of funds shall be made in accordance
with the following terms and conditions:
a. The repairs, replacements and rebuilding
shall be made in accordance with plans and specifications
approved by Requisite Lenders and in accordance with all
applicable laws, ordinances, rules, regulations and
requirements of Governmental Authorities;
b. Borrowers shall provide Agent Bank with
a detailed estimate of the costs of such repairs or restora
tions;
c. Borrowers shall satisfy the Requisite
Lenders that after the reconstruction is completed, the
value of the Collateral Properties, as determined by the
Requisite Lenders in their reasonable discretion, will not
be less than the value of the Collateral Properties prior to
such destruction or condemnation as determined by the
Requisite Lenders pursuant to this Credit Agreement;
d. In the Requisite Lenders' sole
reasonable opinion, any undisbursed portion of the Available
Borrowings contemplated hereunder, after deposit of such
proceeds, is sufficient to pay all costs of reconstruction
of the Casino Facility or other Collateral Property damaged,
destroyed or condemned; or if the undisbursed portion of
such Credit Facility is not sufficient, Borrowers shall
deposit additional funds with the Agent Bank, sufficient to
pay such additional costs of reconstructing the Collateral
Property;
e. Borrowers have delivered to the Agent
Bank a construction contract for the work of reconstruction
in form and content, including insurance requirements,
acceptable to the Requisite Lenders with a contractor
acceptable to the Requisite Lenders;
f. The Requisite Lenders in their
reasonable discretion have determined that after the work of
reconstruction is completed, the Casino Facilities or
Collateral Property damaged, destroyed or condemned will
produce income sufficient to pay all costs of operations and
maintenance of the applicable Collateral Property with a
reasonable reserve for repairs, and service all debts
secured by the applicable Collateral Property;
g. No Default or Event of Default has
occurred and is continuing hereunder;
h. Borrowers have deposited with the Agent
Bank that amount reasonably determined by the Requisite
Lenders (taking into consideration the amount of Borrowings
available and the amount of proceeds, if any, of insurance
policies covering property damage and business interruption,
loss or rental income in connection with the Casino
Facility or Collateral Property damaged, destroyed or
condemned accruing and immediately forthcoming to the Agent
Bank) to be sufficient to service the Indebtedness secured
hereby during the period of reconstruction, as reasonably
estimated by the Requisite Lenders;
i. Before commencing any such work,
Borrowers shall, at their own cost and expense, furnish
Agent Bank with appropriate endorsements, if needed, to the
"All Risk" insurance policy which Borrowers are then
presently maintaining, and course of construction insurance
to cover all of the risks during the course of such work;
j. Such work shall be commenced by
Borrowers within one hundred twenty (120) days after (i)
settlement shall have been made with the insurance companies
or condemnation proceeds shall have been received, and (ii)
all the necessary governmental approvals shall have been
obtained, and such work shall be completed within a
reasonable time, free and clear of all liens and
encumbrances so as not to interfere with the lien of the
Deeds of Trust;
k. Disbursements of such insurance or
condemnation proceeds shall be made in the customary manner
used by Agent Bank for the disbursement of construction
loans; and
l. That in the event the insurance or
condemnation proceeds are inadequate to repair or replace
the property destroyed or condemned and Requisite Lenders
elect to, or are required to release all or a portion of the
funds collected for such repair or replacement, Borrowers
agree to deposit with Agent Bank sufficient funds to cover
the difference between the costs of repair or replacement
and the funds released by Requisite Lenders to Borrowers for
such repair or replacement of the property destroyed.
ARTICLE IX
CONSTRUCTION DISBURSEMENT PROCEDURES
Upon the satisfaction of all the terms and
conditions set forth in Article III A of this Credit
Agreement, on the Closing Date, and satisfaction of all
terms and conditions set forth in Article III B and C of
this Credit Agreement on or before the applicable Initial
Disbursement Date and Article III D with respect to Option
Disbursements,
Construction Disbursements shall be disbursed or
approved for payment by Lenders in the manner and subject to
the conditions provided hereunder.
Section 9.01. Advance of Construction
Disbursements. The Plans and Specifications and
Construction Budgets shall be reviewed and approved by Agent
Bank and Lenders' Consultant as provided herein.
Construction Disbursements shall be made to Borrowers in
accordance with the Construction Budgets for work performed
or materials supplied to the ACLVI Project or suitably
stored in bonded warehouses located in Xxxxx County, Nevada,
which are first approved by Agent Bank in connection with
the ACLVI Project. Construction Disbursements for Soft
Costs and Hard Costs shall be disbursed in no event more
than once a month in anticipation of the completion of the
ACLVI Project by the end of the Construction Period. For
each Construction Disbursement, Borrowers shall submit:
(a) a Construction Disbursement Request, to Agent Bank,
Lenders' Consultant and each of the Lenders accompanied by
invoices or statements totalling the amount for which each
Construction Disbursement is requested, and (b) a line item
reconciliation of each of the Construction Budgets setting
forth for each line item the amount paid to date, the
amounts due and owing but not yet paid by Borrowers and
budgeted amounts which have not been paid and are not due
and owing. Lenders shall disburse such funds monthly in
payment of such approved Construction Disbursement Requests,
bills and invoices in a timely manner, but in no event later
than ten (10) days following the date such proper request is
approved by Agent Bank and Lender's Consultant in accordance
with the requirements of Article IX. If the tenth (10th) day
following the date of such proper request is not a Banking
Business Day, the date for payment shall be the next Banking
Business Day.
Section 9.02. Disbursement for Soft Costs. All
Construction Disbursements made hereunder for Soft Costs of
the ACLVI Project, including those portions of the cost of
purchased FF&E, shall be made by Lenders in accordance with
Section 9.01 as the work progresses upon written application
and certificate of Borrowers to Agent Bank as set forth in a
Construction Disbursement Request.
Section 9.03. Disbursement for Hard Costs. Each
Construction Disbursement Request for Hard Costs shall be
certified by ACLVI and General Contractor with respect to
components of the Structural Plans and Specifications and by
ACLVI with respect to components of the Interior Plans and
Specifications prior to submission to Agent Bank and
the Lenders. Each Construction Disbursement Request for
Hard Costs shall be further supported by invoices,
statements and other forms reasonably requested by Agent
Bank (AIA Forms G702 or forms substantially similar thereto
if first approved by Agent Bank). Each Subcontractor,
material and labor supplier for whose labor or work of
improvement such Construction Disbursement is made, together
with the General Contractor, shall, prior to the
Construction Disbursement next requested, execute and
deliver labor and/or materialmen mechanics lien releases in
favor of Borrowers, Agent Bank and Lenders releasing all
lien rights and claims as of the date of such prior
Construction Disbursement to the extent of payment received.
Each Construction Disbursement Request shall be submitted to
Lenders' Consultant at the address set forth in the Lenders'
Consultant Contract and to Agent Bank and each of the
Lenders in accordance with Section 11.03.
Section 9.04. A Construction Disbursement Does
Not Mean Approval of Work or Materials. Each Construction
Disbursement Request shall be subject to the approval of
Agent Bank and Lenders' Consultant, but the making of any
Construction Disbursement or part thereof shall not
constitute an approval or acceptance of the work or
material, nor be binding upon Agent Bank, Lenders and
Lenders' Consultant, except to the extent that the facts
actually are as so represented when so approved, nor shall
such approval give rise to any liability or responsibility
related to:
(i) the quality of the work, the quantity of
the work, the rate or progress in completion of the work, or
the sufficiency of materials or labor being supplied in
connection therewith; and
(ii) any errors, omissions, inconsistencies
or other defects of any nature in the Plans and
Specifications. Any inspection of the work that Agent Bank,
Lenders and Lenders' Consultant may choose to make, whether
through any consulting engineer, agent or employee or
officer, during the progress of the work shall be solely for
Agent Bank's and Lenders' information and under no
circumstances will any such inspection be deemed to have
been made for the purpose of supervising or superintending
the work, or for the information or protection of any right
or interest of any Persons or entities other than Agent Bank
and Lenders.
Section 9.05. Method of Disbursement. All
Construction Disbursements for payment of approved Hard
Costs
and for approved Soft Costs shall be payable to ACLVI
or in the sole and absolute discretion of Agent Bank jointly
to ACLVI and the Person to whom payment is due. However, in
no event shall Banks be liable for any liens or encumbrances
which may be filed against the ACLVI Real Property, and
ACLVI agrees to remove any liens or encumbrances filed
against the ACLVI Real Property in accordance with Section
5.03.
Section 9.06. Changes in the Construction Budgets
and Work to be Performed Under the Plans and Specifications.
The Project Development Budget shall be a detailed line item
construction budget for the ACLVI Project (inclusive of all
items shown on the General Contractor's Budget and the
Borrower Construction Budget), which budget shall include a
contingency reserve ("Contingency Reserve") as of the
Closing Date in the amount of Three Million One Hundred
Ninety-One Thousand Four Hundred Twenty-Eight Dollars
($3,191,428.00). Borrowers may make usual and ordinary
changes in the work to be performed under the Plans and
Specifications during the Construction Period provided
Borrowers shall not approve any single change order to the
General Contractor's Agreement or to any Major Subcontract
exceeding the amount of One Hundred Thousand Dollars
($100,000.00) without the prior written consent of Agent
Bank. All increases to a line item amount as shown on the
Project Development Budget shall be deducted from the
Contingency Reserve. Any decreases to a line item amount as
shown on the Project Development Budget shall be added to
the Contingency Reserve. Borrowers shall be entitled to
utilize savings in any completed line item by adding such
savings to the Contingency Reserve which shall be reported
monthly on a Contingency Transaction Ledger to be prepared
in connection with the ACLVI Project. In this regard,
Borrowers shall prepare a "Contingency Transaction Ledger"
each month which shall detail increases and decreases to
budget line items and the Contingency Reserve as shown on
the Project Development Budget. All change orders to the
General Contractor's Agreement or to any Major Subcontract
and changes to budget line items and the Contingency Reserve
shall be detailed on the Contingency Transaction Ledger and
Borrowers shall further provide Agent Bank with copies of
all change orders for the portions of the ACLVI Project to
which such Construction Disbursement relates. When the
aggregate of all change orders to the General Contractor's
Agreement or to any Major Subcontract and changes to budget
line items in connection with the ACLVI Project results in a
net decrease to the Contingency Reserve in the amount of One
Million Dollars ($1,000,000.00) or more, Borrowers shall not
approve any further change orders to the General
Contractor's Agreement or
any Major Subcontract or any further changes to budget
line items, regardless of amount, without the prior written
consent of Agent Bank and all additional costs shall be
first approved in writing by Agent Bank. When the aggregate
of all change orders to the General Contractor's Agreement
or to any Major Subcontracts and changes to budget line
items results in a net decrease to the Contingency Reserve
in the amount of Three Million Dollars ($3,000,000.00), or
more, Borrowers shall not approve any further change orders
of further changes to budget line items, regardless of
amount, without the prior written consent of Requisite
Lenders. Further, all re-allocations of line items on the
Project Development Budget greater than ten percent (10%) of
any budgeted line item shall be first consented to by Agent
Bank upon the approval of Requisite Lenders.
Notwithstanding the foregoing, no structural changes to the
Structural Plans and Specifications (other than minor
changes not inconsistent with the Plans and Specifications
taken as a whole) shall be made without the prior written
consent of Agent Bank. Subject to the provisions set forth
hereinabove, within the foregoing limitations, the amounts
allocated on the Project Development Budget for Contingency
Reserve may be allocated amongst the other line item
categories at the discretion of Borrowers.
Section 9.07. Conditions Precedent to
Construction Disbursement. No Construction Disbursement
shall be made to Borrowers with respect to the ACLVI Project
until:
a. Agent Bank and Lenders' Consultant
shall have completed Construction Cost Analysis as of the
applicable Funding Date and have reviewed and approved as
adequate the Plans and Specifications and all engineering
reports and any subsequent change orders to the General
Contractor's Agreement or to any Major Subcontract or
modification to the Plans and Specifications, and the
Project Development Budget, each review of which shall be
completed on or before ten (10) Banking Business Days after
receipt of such Plans and Specifications and/or engineering
reports or on or before five (5) Banking Business Days with
respect to change orders to the General Contractor's
Agreement or any Major Subcontract;
b. Borrowers shall have actually paid for,
other than the work of improvement for which the
Construction Disbursement Request relates, all of the costs
of the ACLVI Project as set forth on the itemized Project
Development Budget (other than such costs incurred as:
(i) have not been billed or invoiced to Borrowers, or (ii)
for which Borrowers have received such billing or invoice
within fifteen (15) days
of such Construction Disbursement Request, or (iii)
Borrowers dispute or contest such costs in good faith) for
work completed on the ACLVI Project to the date of
commencement of the period covered by such Construction
Disbursement Request, less the Retainage required hereby;
c. Borrowers and Lenders' Consultant shall
have certified to Agent Bank that to the date of such
Construction Disbursement Request the ACLVI Project has been
constructed in substantial compliance with the approved
Plans and Specifications and any change orders theretofore
issued and in substantial compliance with all necessary
Governmental Authorities, ordinances and regulations;
d. ACLVI, to the best of its knowledge,
the General Contractor and Lenders' Consultant shall have
certified to Agent Bank that the portion of the ACLVI
Project to be constructed by the General Contractor under
the General Contractor's Agreement can be completed in
overall compliance with the General Contractor's Budget and
that portion of the Project Development Budget allocated for
payment to the General Contractor;
e. ACLVI shall have certified to Agent
Bank, to the best of its knowledge, and Lenders' Consultant
shall have approved such certification, that the ACLVI
Project can be completed in substantial compliance with the
Plans and Specifications and the Project Development Budget
for an aggregate amount of Construction Completion Costs
equal to or less than the amount of Available Borrowings for
Construction Disbursement under the Construction Loan
Subfacility;
f. Additionally, no Construction
Disbursement shall be made to Borrowers if, in the opinion
of Lenders' Consultant, the value of the construction in
place on the site and materials delivered and suitably
stored on site or in a warehouse acceptable to Agent Bank
and insured for at least the value of such material in a
manner satisfactory to Agent Bank is less than the total of
all costs disbursed in connection with the construction of
the ACLVI Project. However, Construction Disbursements
shall resume when said value exceeds the total of all costs
disbursed. If at any time Lenders' Consultant or Agent Bank
determine as a result of a Construction Cost Analysis that
as of the date of such determination the aggregate amount of
Construction Completion Costs exceeds the then amount of
Available Borrowings for Construction Disbursement under the
Construction Loan Subfacility (the amount of such excess, as
the same may exist
at any time or from time to time, being herein
referred to as a "Construction Overage"), Borrowers shall
have ten (10) days from written notice thereof from Agent
Bank in which to: (i) increase the Available Borrowings by
reducing the Aggregate Outstanding by the amount of such
Construction Overage, (ii) deposit in an interest bearing
account with Agent Bank, Cash in the amount of such
Construction Overage, which Cash shall be disbursed by Agent
Bank for the payment of such Construction Overages prior to
the making of any further Construction Disbursements, or
(iii) make alternative arrangements satisfactory to
Requisite Lenders for the payment of Borrower Construction
Expenditures in the amount of such Construction Overage. In
the event of (ii) above, Borrowers shall have the right to
select the type of interest bearing account so as to
maximize the interest to be earned which shall accrue to the
benefit of Borrowers. In the event of a Construction
Overage, all Construction Disbursements for the ACLVI
Project shall cease until Borrowers shall have complied with
the requirements set forth in Subsections 9.07(f)(i), (ii)
or (iii) hereinabove; and
g. Agent Bank and Lenders' Consultant
shall have approved each Construction Disbursement Request
and/or payments made by Borrowers for items as shown on the
Project Development Budget.
By Borrowers requesting Construction Disbursements
under this Article IX, Borrowers shall be deemed to have
reaffirmed all representations and warranties contained in
Article IV and confirmed that Borrowers are in full
compliance with each covenant contained in Article V
concurrently with the making of each Construction
Disbursement Request.
Section 9.08. No Obligation to See to Proper
Application of Construction Disbursements. Nothing
contained herein or in any other documents and agreements
contemplated hereby or executed approximately simultaneously
herewith shall impose upon Banks any obligation to see to
the proper application of any Construction Disbursements by
Borrowers, the Architect, the General Contractor or
Subcontractors, and nothing shall prevent Lenders, at their
option, from deducting from any Construction Disbursements
any sums owed to Banks by Borrowers for unpaid interest or
principal, or for sums paid and expended by Lenders for
taxes, assessments, insurance and other like payments (after
the expiration of any applicable notice and cure period),
pursuant to their rights under the terms of this Credit
Agreement, the Notes or the Deeds of Trust.
Section 9.09. No Construction Disbursements
Required in Event of Default. Lenders shall not be required
to make any Construction Disbursements hereunder if, at the
time when a Construction Disbursement Request is made, there
exists an Event of Default hereunder or under any of the
other Loan Documents; provided, however, Lenders may, in
their sole discretion upon the approval of Requisite
Lenders, make Construction Disbursements notwithstanding the
existence of an Event of Default and any Construction
Disbursements so made shall be deemed to have been made
pursuant to this Credit Agreement.
Section 9.10. No Construction Disbursements
Required if Cloud on Title Exists. Lenders shall not be
obligated to make any Construction Disbursements while there
is any lien or encumbrance upon the Collateral Properties,
other than the Permitted Encumbrances or as provided in
Sections 5.03 and 5.10 hereof, which, in the reasonable
opinion of counsel for Lenders, may invalidate or have
priority over the encumbrance, liens and security interests
granted pursuant to the Deeds of Trust.
Section 9.11. Indorsement from Title Insurance
Company. Title Insurance Company shall update the Title
Insurance Policy issued as of the Closing Date in favor of
Lenders concurrently with each Construction Disbursement at
Borrowers' expense insuring Agent Bank on behalf of Lenders
against any further liens, encumbrances or exceptions to the
state of title to the ACLVI Real Property as of the date of
each advance. Each such update shall be in the form of a
written 122 Indorsement (except for the final indorsements
as provided in Section 9.15) to the ACLVI Title Insurance
Policy together with any other indorsements which Lenders
reasonably require. Additionally, Borrowers shall cause
Title Insurance Company to issue its 102.5 Foundation
Indorsement to the ACLVI Title Insurance Policy upon
completion of the foundations for the ACLVI Project as set
forth in the Plans and Specifications and shall deliver or
cause to be delivered an "as built" survey of the ACLVI
Project within ninety (90) days following the Completion
Date.
Section 9.12. Ownership of all Materials Used on
the ACLVI Project. All materials incorporated into the
construction of the ACLVI Project, other than ACLVI FF&E
leased by Borrowers in accordance with this Credit
Agreement, shall have been purchased and paid for in a
timely manner so that the absolute ownership thereof shall
have vested in Borrowers, subject to any purchase money
security or leasehold
interest allowed under Section 6.08 herein, and
Borrowers shall have furnished to Agent Bank, if required by
Agent Bank, copies of the contracts, bills of sale, lease or
other agreements under which title or possession thereto is
claimed.
Section 9.13. Accuracy of Representations and
Warranties. Lenders shall not be required to make any
Construction Disbursements unless and until the
representations and warranties contained in Article IV of
this Credit Agreement are true and correct in all material
respects on and as of the date of such Construction
Disbursement, as though made on and as of such date.
Section 9.14. Waiver of Requirements by Requisite
Lenders. Lenders reserve the right, in their sole
discretion upon the approval of Requisite Lenders, from time
to time to make any Construction Disbursements without
regard to any condition herein. The Lenders further reserve
the right to withhold any payment of any statements or
invoices, payment of which is requested, if, in the opinion
of the Agent Bank or Lenders' Consultant, the percentage of
completion is less than indicated by such statement or
invoice.
Section 9.15. Disbursement of Retainage During
Construction Period. Lenders shall retain (collectively the
"Retainage") from the gross amount approved for each
Construction Disbursement for Hard Costs made from the
proceeds of the Construction Loan Subfacility, ten percent
(10%) of the amount of each such Construction Disbursement
for Hard Costs until fifty percent (50%) of the Hard Cost
component of the Project Development Budget has been
expended for work performed and has been verified by the
Lenders' Consultant. Thereafter, so long as no Event of
Default shall have occurred and be continuing no further
Retainage shall be retained from Construction Disbursements
thereafter made unless Lenders are otherwise instructed by
Borrowers. Retainage withheld by Lenders from the proceeds
of the Construction Loan Subfacility shall not bear interest
and shall be deemed not disbursed under the Construction
Loan Subfacility until released as provided hereinbelow.
Notwithstanding the foregoing, Lenders agree to release all
Retainage for construction costs relating to excavation,
footings and structural steel at such time as the respective
work is 100% complete and upon such additional conditions
and requirements as may be required by Agent Bank, to Agent
Bank's reasonable satisfaction including, without
limitation, final lien releases and other evidence that such
work will be, with the release of such retention, fully
paid. All remaining
funds held for Retainage by Lenders shall be released
at such time as:
a. The ACLVI Project has been
substantially completed with only "Punch List" items
remaining to be completed which do not materially impair the
ability of Borrowers to occupy and operate the ACLVI Project
for its intended purpose, no single item exceeding a
completion cost in excess of One Hundred Thousand Dollars
($100,000.00) and the aggregate of such "Punch List" items
not exceeding One Million Dollars ($1,000,000.00) in
substantial compliance with the Plans and Specifications and
the terms and requirements of all Governmental Authorities,
including, without limitation, compliance with the Americans
with Disabilities Act, compliance with which shall be
certified to the best knowledge of the Architect, after due
inquiry and investigation;
b. The ACLVI Project has been accepted by
Borrowers as substantially complete and certified
substantially completed and the "Punch List" shall be
prepared by the Architect, the General Contractor, Interior
Designer and Lenders' Consultant after an inspection which
shall be made within ten (10) days of the filing of the
notice of completion;
c. The General Contractor has made a
satisfactory account that all Hard Costs covered by the
General Contractor's Agreement and Borrowers have made a
satisfactory account that all other Hard Costs shown on the
Borrower Construction Budget and all Soft Costs have been
paid in full, with the exception of the unreleased
Retainage, including, but not by way of limitation, all
material and labor costs and have delivered copies of all
lien releases to Agent Bank and have certified that no
claims with respect to the ACLVI Project remain outstanding,
including any claims which might give rise to a lien or
liens against the ACLVI Project, except for work described
in the "Punch List" or as to which Borrowers are contesting
the validity or amount;
d. The Occupancy Date shall have occurred
and a copy of the temporary or final Certificate of
Occupancy (if temporary, ACLVI agrees to promptly deliver a
copy of the final Certificate of Occupancy to Agent Bank
when received by ACLVI) has been issued to ACLVI by the
appropriate Governmental Authority and a copy thereof
delivered to Agent Bank and ACLVI has taken beneficial
occupancy of the entire ACLVI Project, including, without
limitation, all public areas
which shall be open for the use and occupancy by the
public; and
e. Borrowers have delivered an "as-built"
survey of the ACLVI Project and an "as-built" set of plans
and specifications of the ACLVI Project to Agent Bank.
From the amounts released as provided
hereinabove, one hundred fifty percent (150%) of the
Architect, Interior Designer and Lender's Consultants'
reasonable estimate of the cost of completing the "Punch
List" shall be withheld. Such amounts shall be released
monthly upon Construction Disbursement Request submitted by
Borrowers. Within forty-five (45) days following final
completion of the ACLVI Project, Borrowers shall cause (i)
Lender's Consultant to certify completion of the "Punch
List"; (ii) a notice of completion to be posted on the ACLVI
Real Property and recorded in the Office of the County
Recorder of Xxxxx County at final completion, and
(iii) Title Insurance Company to issue its final 100, 101.2,
102.5 and 103.1 indorsements to the title policy showing no
liens, claims or encumbrances on the ACLVI Real Property
except those approved by Requisite Lenders.
Section 9.16. Construction Disbursements if a
Lender Fails to Provide Funds. Borrowers acknowledge and
agree that each of the Lenders shall only be responsible for
its respective Pro Rata Share of any Construction
Disbursement. In the event any of the Lenders fail to
provide its Pro Rata Share of any Construction Disbursement,
then the remaining Lenders' obligations to provide their
respective Pro Rata Share shall not terminate nor shall
Borrowers' obligation to comply with the terms of this
Credit Agreement and each of the Loan Documents terminate.
If any Lender defaults in providing its Pro Rata Share of
any Construction Disbursement, then Agent Bank and Borrowers
shall use their best efforts to find a replacement lender.
Section 9.17. Possession and Completion of
Construction. Upon the occurrence of any Event of Default,
Borrowers agree, upon the request of Agent Bank at the
direction of Requisite Lenders, to vacate the ACLVI Real
Property and permit Lenders:
a. To enter directly, or through a
receiver or other designated representative, into possession
of the ACLVI Project;
b. To perform or cause to be performed any
and all work and labor necessary, in the discretion of Agent
Bank, to complete the ACLVI Project in accordance with the
Plans and Specifications;
c. To employ security watchmen to protect
the ACLVI Project; and
d. To advance any portion of the
Construction Loan Subfacility not previously advanced
(including any retainage and any reserved funds) to the
extent necessary or desirable, in the sole discretion of
Agent Bank, to complete construction of the ACLVI Project
without substantial departure from the Plans and
Specifications, and if the completion requires a larger sum
than the unadvanced portion of the Construction Loan
Subfacility, to advance such additional funds, all of which
funds so advanced by Lenders shall be deemed to have been
advanced to Borrowers and shall be part of the Indebtedness
evidenced by the Revolving Credit Note and secured by the
Security Documentation. For this purpose, Borrowers
constitute and appoint Agent Bank the true and lawful
attorney-in-fact for Borrowers, with full power of
substitution, to complete the construction of the ACLVI
Project in the name of Borrowers, and hereby empower Agent
Bank as such attorney to take all actions that Agent Bank
considers necessary or desirable in connection therewith,
including but not limited to the following: (i) to use any
funds of Borrowers, including any balance that may be held
in escrow and any funds that may remain unadvanced under
this agreement, for the purpose of completing the ACLVI
Project in substantially the manner called for by the Plans
and Specifications; (ii) to make such additions, changes and
corrections in the Plans and Specifications as Agent Bank
may consider necessary or desirable to complete the ACLVI
Project in substantially the manner contemplated by the
Plans and Specifications; (iii) to employ such contractors,
subcontractors, agents, engineers, architects, inspectors,
attorneys and other Persons as Agent Bank may consider
necessary or desirable for such purposes; (iv) to pay,
settle or compromise all existing or future bills and claims
that are or may be or become liens against the ACLVI Real
Property, or may be necessary or desirable for the
completion of the ACLVI Project or the clearance of title to
the ACLVI Real Property; (v) to execute in the name of
Borrowers all applications and certificates that may be
required by any construction contract; and (vi) to do any
act with respect to the construction of the ACLVI Project
that Borrowers or ACLVI could do on their own behalf. This
power of attorney is a
power coupled with an interest and cannot be revoked
by death or otherwise. Such attorney-in-fact shall also
have power to prosecute and defend all actions or
proceedings in connection with the construction of the ACLVI
Project and to take such action and require such performance
as Agent Bank considers necessary.
ARTICLE X
AGENCY PROVISIONS
Section 10.01. Appointment.
a. Each Lender hereby (i) designates and
appoints WFB as the Agent Bank of such Lender under this
Credit Agreement and the Loan Documents, (ii) authorizes and
directs Agent Bank to enter into the Loan Documents other
than this Credit Agreement for the benefit of Lenders, and
(iii) authorizes Agent Bank to take such action on its
behalf under the provisions of this Credit Agreement and the
Loan Documents and to exercise such powers as are set forth
herein or therein, together with such other powers as are
reasonably incidental thereto, subject to the limitations
referred to in Sections 10.10(a) and 10.10(b). Agent Bank
agrees to act as such on the express conditions contained in
this Article X.
b. The provisions of this Article X are
solely for the benefit of Agent Bank and Lenders, and
Borrowers shall not have any rights to rely on or enforce
any of the provisions hereof (other than as set forth in the
provisions of Sections 10.03, 10.09 and 11.10), provided,
however, that the foregoing shall in no way limit Borrowers'
obligations under this Article X. In performing its
functions and duties under this Credit Agreement, Agent Bank
shall act solely as Agent Bank of Lenders and does not
assume and shall not be deemed to have assumed any
obligation toward or relationship of agency or trust with or
for Borrowers or any other Person.
Section 10.02. Nature of Duties. Agent Bank
shall not have any duties or responsibilities except those
expressly set forth in this Credit Agreement or in the Loan
Documents. The duties of Agent Bank shall be administrative
in nature. Subject to the provisions of Sections 10.05 and
10.07, Agent Bank shall administer the Bank Facilities in
the same manner as it administers its own loans. Promptly
following the effectiveness of this Credit Agreement, Agent
Bank shall send to each Lender a duplicate executed
original, to the extent
the same are available in sufficient numbers, of the
Credit Agreement and a copy of each other Loan Document in
favor of Lenders and a copy of the filed or recorded
Security Documentation, with the originals of the latter to
be held and retained by Agent Bank for the benefit of all
Lenders. Agent Bank shall not have by reason of this Credit
Agreement a fiduciary relationship in respect of any Lender.
Nothing in this Credit Agreement or any of the Loan
Documents, expressed or implied, is intended or shall be
construed to impose upon Agent Bank any obligation in
respect of this Credit Agreement or any of the Loan
Documents except as expressly set forth herein or therein.
Each Lender shall make its own independent investigation of
the financial condition and affairs of the Borrowers and the
Collateral in connection with the making and the continuance
of the Credit Facility hereunder and shall make its own
appraisal of the creditworthiness of the Borrowers and the
Collateral, and, except as specifically provided herein,
Agent Bank shall not have any duty or responsibility, either
initially or on a continuing basis, to provide any Lender
with any credit or other information with respect thereto,
whether coming into its possession before the Closing Date
or at any time or times thereafter.
Section 10.03. Disbursement of Borrowings.
a. Not later than the next Banking
Business Day following receipt of a Notice of Borrowing,
Agent Bank shall send a copy thereof by facsimile to each
other Lender and shall otherwise notify each Lender of the
proposed Borrowing and the Funding Date. Each Lender shall
make available to Agent Bank (or the funding bank or entity
designated by Agent Bank), the amount of such Lender's Pro
Rata Share of such Borrowing in immediately available funds
not later than the times designated in Section 10.03(b).
Unless Agent Bank shall have been notified by any Lender not
later than the close of business (San Francisco time) on the
Banking Business Day immediately preceding the Funding Date
in respect of any Borrowing that such Lender does not intend
to make available to Agent Bank such Lender's Pro Rata Share
of such Borrowing, Agent Bank may assume that such Lender
shall make such amount available to Agent Bank. If any
Lender does not notify Agent Bank of its intention not to
make available its Pro Rata Share of such Borrowing as
described above, but does not for any reason make available
to Agent Bank such Lender's Pro Rata Share of such
Borrowing, such Lender shall pay to Agent Bank forthwith on
demand such amount, together with interest thereon at the
Federal Funds Rate. In any case where a Lender does not for
any reason make available to Agent
Bank such Lender's Pro Rata Share of such Borrowing,
Agent Bank, in its sole discretion, may, but shall not be
obligated to, fund to Borrowers such Lender's Pro Rata Share
of such Borrowing. If Agent Bank funds to Borrowers such
Lender's Pro Rata Share of such Borrowing and if such Lender
subsequently pays to Agent Bank such corresponding amount,
such amount so paid shall constitute such Lender's Pro Rata
Share of such Borrowing. Nothing in this Section 10.03(a)
shall alter the respective rights and obligations of the
parties hereunder in respect of a Defaulting Lender or a Non-
Pro Rata Borrowing.
b. Requests by Agent Bank for funding by
Lenders of Borrowings will be made by telecopy. Each Lender
shall make the amount of its Pro Rata Share of such
Borrowing available to Agent Bank in Dollars and in
immediately available funds, to such bank and account, in
San Francisco, California as Agent Bank may designate, not
later than 9:00 A.M. (San Francisco time) on the Funding
Date designated in the Notice of Borrowing with respect to
such Borrowing.
c. Nothing in this Section 10.03 shall be
deemed to relieve any Lender of its obligation hereunder to
make its Pro Rata Share of Borrowings on any Funding Date,
nor shall any Lender be responsible for the failure of any
other Lender to perform its obligations to advance its Pro
Rata Share of any Borrowing hereunder, and the Pro Rata
Share of the Aggregate Commitment of any Lender shall not be
increased or decreased as a result of the failure by any
other Lender to perform its obligation to advance its Pro
Rata Share of any Borrowing.
Section 10.04. Distribution and Apportionment of
Payments.
a. Subject to Section 10.04(b), payments
actually received by Agent Bank for the account of Lenders
shall be paid to them promptly after receipt thereof by
Agent Bank, but in any event within one (1) Banking Business
Day, provided that Agent Bank shall pay to Lenders interest
thereon, at the Federal Funds Rate from the Banking Business
Day following receipt of such funds by Agent Bank until such
funds are paid in immediately available funds to Lenders.
Subject to Section 10.04(b), all payments of principal and
interest in respect of Funded Outstandings, all payments of
the fees described in this Credit Agreement, and all
payments in respect of any other Obligations shall be
allocated among such other Lenders as are entitled thereto,
in proportion to their respective Pro Rata Shares or
otherwise as provided
herein. Agent Bank shall promptly distribute, but in
any event within one (1) Banking Business Day, to each
Lender at its primary address set forth on the appropriate
signature page hereof or on the applicable Assignment and
Assumption Agreement, or at such other address as a Lender
may request in writing, such funds as it may be entitled to
receive, provided that Agent Bank shall in any event not be
bound to inquire into or determine the validity, scope or
priority of any interest or entitlement of any Lender and
may suspend all payments and seek appropriate relief
(including, without limitation, instructions from Requisite
Lenders or all Lenders, as applicable, or an action in the
nature of interpleader) in the event of any doubt or dispute
as to any apportionment or distribution contemplated hereby.
The order of priority herein is set forth solely to
determine the rights and priorities of Lenders as among
themselves and may at any time or from time to time be
changed by Lenders as they may elect, in writing in
accordance with Section 11.01, without necessity of notice
to or consent of or approval by Borrowers or any other
Person. All payments or other sums received by Agent Bank
for the account of Lenders (including, without limitation,
principal and interest payments, the proceeds of any and all
insurance maintained with respect to any of the Collateral,
and any and all condemnation proceeds with respect to any of
the Collateral) shall not constitute property or assets of
the Agent Bank and shall be held by Agent Bank, solely in
its capacity as administrative and collateral agent for
itself and the other Lenders, subject to the Loan Documents.
b. Notwithstanding any provision hereof to
the contrary, until such time as a Defaulting Lender has
funded its Pro Rata Share of Borrowing which was previously
a Non Pro Rata Borrowing, or all other Lenders have received
payment in full (whether by repayment or prepayment) of the
principal due in respect of such Non Pro Rata Borrowing, all
principal sums owing to such Defaulting Lender hereunder
shall be subordinated in right of payment to the prior
payment in full of all principal, in respect of all Non Pro
Rata Borrowing in which the Defaulting Lender has not funded
its Pro Rata Share. This provision governs only the
relationship among Agent Bank, each Defaulting Lender, and
the other Lenders; nothing hereunder shall limit the
obligation of Borrowers to repay all Borrowings in
accordance with the terms of this Credit Agreement. The
provisions of this section shall apply and be effective
regardless of whether an Event of Default occurs and is then
continuing, and notwithstanding (i) any other provision of
this Credit Agreement to the
contrary, (ii) any instruction of Borrowers as to
their desired application of payments or (iii) the
suspension of such Defaulting Lender's right to vote on
matters which are subject to the consent or approval of
Requisite Lenders or all Lenders. No Nonusage Fee shall
accrue in favor of, or be payable to, such Defaulting Lender
from the date of any failure to fund Borrowings or reimburse
Agent Bank for any Liabilities and Costs as herein provided
until such failure has been cured, and Agent Bank shall be
entitled to (A) withhold or setoff, and to apply to the
payment of the defaulted amount and any related interest,
any amounts to be paid to such Defaulting Lender under this
Credit Agreement, and (B) bring an action or suit against
such Defaulting Lender in a court of competent jurisdiction
to recover the defaulted amount and any related interest.
In addition, the Defaulting Lender shall indemnify, defend
and hold Agent Bank and each of the other Lenders harmless
from and against any and all Liabilities and Costs, plus
interest thereon at the Default Rate, which they may sustain
or incur by reason of or as a direct consequence of the
Defaulting Lender's failure or refusal to abide by its
obligations under this Credit Agreement.
Section 10.05. Rights, Exculpation, Etc. Neither
Agent Bank, any Affiliate of Agent Bank, nor any of their
respective officers, directors, employees, agents, attorneys
or consultants, shall be liable to any Lender for any action
taken or omitted by them hereunder or under any of the Loan
Documents, or in connection herewith or therewith, except
that Agent Bank shall be liable for its gross negligence or
willful misconduct. In the absence of gross negligence or
willful misconduct, Agent Bank shall not be liable for any
apportionment or distribution of payments made by it in good
faith pursuant to Section 10.04, and if any such
apportionment or distribution is subsequently determined to
have been made in error the sole recourse of any Person to
whom payment was due, but not made, shall be to recover from
the recipients of such payments any payment in excess of the
amount to which they are determined to have been entitled.
Agent Bank shall not be responsible to any Lender for any
recitals, statements, representations or warranties herein
or for the execution, effectiveness, genuineness, validity,
enforceability, collectibility or sufficiency of this Credit
Agreement, any of the Security Documentation or any of the
other Loan Documents, or any of the transactions
contemplated hereby and thereby; or for the financial
condition of the Borrowers or any of their Affiliates.
Agent Bank shall not be required to make any inquiry
concerning either the performance or observance of any
of the terms, provisions or conditions of this Credit
Agreement or any of the Loan Documents or the financial
condition of the Borrowers or any of their Affiliates, or
the existence or possible existence of any Default or Event
of Default.
Section 10.06. Reliance. Agent Bank shall be
entitled to rely upon any written notices, statements,
certificates, orders or other documents, telecopies or any
telephone message believed by it in good faith to be genuine
and correct and to have been signed, sent or made by the
proper Person, and with respect to all matters pertaining to
this Credit Agreement or any of the Loan Documents and its
duties hereunder or thereunder, upon advice of legal counsel
(including counsel for Borrowers), independent public
accountant and other experts selected by it.
Section 10.07. Indemnification. To the extent
that Agent Bank is not reimbursed and indemnified by
Borrowers, Lenders will reimburse, within ten (10) Banking
Business Days after notice from Agent Bank, and indemnify
and defend Agent Bank for and against any and all
Liabilities and Costs which may be imposed on, incurred by,
or asserted against it in any way relating to or arising out
of this Credit Agreement, the Security Documentation or any
of the other Loan Documents or any action taken or omitted
by Agent Bank or under this Credit Agreement, the Security
Documentation or any of the other Loan Documents, in
proportion to each Lender's Pro Rata Share; provided that no
Lender shall be liable for any portion of such Liabilities
and Costs resulting from Agent Bank's gross negligence or
willful misconduct. The obligations of Lenders under this
Section 10.07 shall survive the payment in full of all
Obligations and the termination of this Credit Agreement.
In the event that after payment and distribution of any
amount by Agent Bank to Lenders, any Lender or third party,
including Borrowers, any creditor of Borrowers or a trustee
in bankruptcy, recovers from Agent Bank any amount found to
have been wrongfully paid to Agent Bank or disbursed by
Agent Bank to Lenders, then Lenders, in proportion to their
respective Pro Rata Shares, shall reimburse Agent Bank for
all such amounts. Notwithstanding the foregoing, Agent Bank
shall not be obligated to advance Liabilities and Costs and
may require the deposit by each Lender of its Pro Rata Share
of any material Liabilities and Costs anticipated by Agent
Bank before they are incurred or made payable.
Section 10.08. Agent Individually. With respect
to its Pro Rata Share of the Aggregate Commitment hereunder
and the Borrowings made by it, Agent Bank shall have
and may exercise the same rights and powers hereunder and is
subject to the same obligations and liabilities as and to
the extent set forth herein for any other Lender. The terms
"Lenders", "Requisite Lenders" or any similar terms may
include Agent Bank in its individual capacity as a Lender or
one of the Requisite Lenders, but Requisite Lenders shall
not include Agent Bank solely in its capacity as Agent Bank
and need not necessarily include Agent Bank in its capacity
as a Lender. Agent Bank and any Lender and its Affiliates
may accept deposits from, lend money to, and generally
engage in any kind of banking, trust or other business with
Borrowers or any of their Affiliates as if it were not
acting as Agent Bank or Lender pursuant hereto.
Section 10.09. Successor Agent Bank; Resignation
of Agent Bank; Removal of Agent Bank.
a. Agent Bank may resign from the
performance of all its functions and duties hereunder at any
time by giving at least thirty (30) Banking Business Days'
prior written notice to Lenders and Borrowers, and shall
automatically cease to be Agent Bank hereunder in the event
a petition in bankruptcy shall be filed by or against Agent
Bank or the Federal Deposit Insurance Corporation or any
other Governmental Authority shall assume control of Agent
Bank or Agent Bank's interests under the Bank Facilities.
Further, Lenders (other than Agent Bank) may unanimously
remove Agent Bank at any time upon the occurrence of gross
negligence or wilful misconduct by Agent Bank by giving at
least thirty (30) Banking Business Days' prior written
notice to Agent Bank, Borrowers and all other Lenders. Such
resignation or removal shall take effect upon the acceptance
by a successor Agent Bank of appointment pursuant to clause
(b) or (c).
b. Upon any such notice of resignation by
or removal of Agent Bank, Requisite Lenders shall appoint a
successor Agent Bank which appointment shall be subject to
Borrowers' consent (other than upon the occurrence and
during the continuance of any Event of Default), which shall
not be unreasonably withheld or delayed. Any successor
Agent Bank must be a bank (i) the senior debt obligations of
which (or such bank's parent's senior unsecured debt
obligations) are rated not less than Baa-2 by Xxxxx'x
Investors Services, Inc. or a comparable rating by a rating
agency acceptable to Requisite Lenders and (ii) which has
total assets in excess of Ten Billion Dollars
($10,000,000,000.00).
c. If a successor Agent Bank shall not
have been so appointed within said thirty (30) Banking
Business Day period, the retiring or removed Agent Bank,
with the consent of Borrowers (other than upon the
occurrence and during the continuance of any Event of
Default) (which may not be unreasonably withheld or
delayed), shall then appoint a successor Agent Bank who
shall meet the requirements described in subsection (b)
above and who shall serve as Agent Bank until such time, if
any, as Requisite Lenders, with the consent of Borrowers
(other than upon the occurrence and during the continuance
of any Event of Default), appoint a successor Agent Bank as
provided above.
Section 10.10. Consent and Approvals.
a. Each consent, approval, amendment,
modification or waiver specifically enumerated in this
Section 10.10(a) shall require the consent of Requisite
Lenders:
(i) Approval of Borrowings with less
than full compliance with requirements of Article
IIIB and C or Article IX (Section 2.04);
(ii) Consent to modification to
financial reporting requirements or production of
additional financial or other information (Section
5.08);
(iii) Approval of Investments
(Section 6.07);
(iv) Approval of a change in the
method of calculation of any financial covenants,
standards or terms as a result of a change in
accounting principle (Section 6.14);
(v) Direct Agent Bank to declare the
unpaid balance of the Credit Facility fully due
and payable (Section 7.02);
(vi) Direct the disposition of
insurance proceeds or condemnation awards under
certain circumstances (Section 8.02);
(vii) Approval of change orders to the
General Contractor's Agreement and Major
Subcontracts and re-allocations of line items on
the Project Development Budget after the
Contingency Reserve has been reduced by more
than Three Million Dollars ($3,000,000.00) or a
line item of the Project Development Budget
increases by more than ten percent (10%) of the
amount of such line item (Section 9.06);
(viii) Approval of Construction
Disbursements notwithstanding the existence of an
Event of Default (Section 9.09);
(ix) Approval of Construction
Disbursement without regard to any condition
(Section 9.14);
(x) Approve possession of the ACLVI
Project and Completion of Construction upon the
occurrence of an Event of Default (Section 9.17);
(xi) Approval of appointment of
successor Agent Bank (Section 10.09);
(xii) Approval of certain Protective
Advances (Section 10.11(a));
(xiii) Approval of a Post-Foreclosure
Plan and related matters (Section 10.11(e));
(xiv) Consent to action or proceeding
against Borrowers or the Collateral by any Lender
(Section 10.12);
(xv) Except as referred to in
subsection (b) below, approval of any amendment,
modification or termination of this Credit
Agreement, or waiver of any provision herein
(Section 11.01).
b. Each consent, approval, amendment,
modification or waiver specifically enumerated in
Section 11.01 shall require the consent of all Lenders.
c. In addition to the required consents or
approvals referred to in subsection (a) above, Agent Bank
may at any time request instructions from Requisite Lenders
with respect to any actions or approvals which, by the terms
of this Credit Agreement or of any of the Loan Documents,
Agent Bank is permitted or required to take or to grant
without instructions from any Lenders, and if such
instructions are
promptly requested, Agent Bank shall be absolutely
entitled to refrain from taking any action or to withhold
any approval and shall not be under any liability whatsoever
to any Person for refraining from taking any action or
withholding any approval under any of the Loan Documents
until it shall have received such instructions from
Requisite Lenders. Without limiting the foregoing, no
Lender shall have any right of action whatsoever against
Agent Bank as a result of Agent Bank acting or refraining
from acting under this Credit Agreement, the Security
Documentation or any of the other Loan Documents in
accordance with the instructions of Requisite Lenders or,
where applicable, all Lenders. Agent Bank shall promptly
notify each Lender at any time that the Requisite Lenders
have instructed Agent Bank to act or refrain from acting
pursuant hereto.
d. Each Lender agrees that any action taken
by Agent Bank at the direction or with the consent of
Requisite Lenders in accordance with the provisions of this
Credit Agreement or any Loan Document, and the exercise by
Agent Bank at the direction or with the consent of Requisite
Lenders of the powers set forth herein or therein, together
with such other powers as are reasonably incidental thereto,
shall be authorized and binding upon all Lenders, except for
actions specifically requiring the approval of all Lenders.
All communications from Agent Bank to Lenders requesting
Lenders' determination, consent, approval or disapproval (i)
shall be given in the form of a written notice to each
Lender, (ii) shall be accompanied by a description of the
matter or thing as to which such determination, approval,
consent or disapproval is requested, or shall advise each
Lender where such matter or thing may be inspected, or shall
otherwise describe the matter or issue to be resolved,
(iii) shall include, if reasonably requested by a Lender and
to the extent not previously provided to such Lender,
written materials and a summary of all oral information
provided to Agent Bank by Borrowers in respect of the matter
or issue to be resolved, and (iv) shall include Agent Bank's
recommended course of action or determination in respect
thereof. Each Lender shall reply promptly, but in any event
within ten (10) Banking Business Days (the "Lender Reply
Period"). Unless a Lender shall give written notice to
Agent Bank that it objects to the recommendation or
determination of Agent Bank (together with a written
explanation of the reasons behind such objection) within the
Lender Reply Period, such Lender shall be deemed to have
approved of or consented to such recommendation or
determination. With respect to decisions requiring the
approval of Requisite Lenders or all Lenders, Agent Bank
shall
submit its recommendation or determination for
approval of or consent to such recommendation or
determination to all Lenders and upon receiving the required
approval or consent shall follow the course of action or
determination recommended to Lenders by Agent Bank or such
other course of action recommended by Requisite Lenders, and
each non-responding Lender shall be deemed to have concurred
with such recommended course of action.
Section 10.11. Agency Provisions Relating to
Collateral.
a. Agent Bank is hereby authorized on
behalf of all Lenders, without the necessity of any notice
to or further consent from any Lender, from time to time
prior to an Event of Default, to take any action with
respect to any Collateral or Loan Document which may be
necessary to perfect and maintain Liens of the Security
Documentation upon the Collateral granted pursuant to the
Loan Documents. Agent Bank may make, and shall be
reimbursed by Lenders (in accordance with their Pro Rata
Shares), to the extent not reimbursed by Borrowers, for,
Protective Advance(s) during any one (1) calendar year with
respect to the Collateral up to the sum of (i) amounts
expended to pay real estate taxes, assessments and
governmental charges or levies imposed upon such Collateral,
(ii) amounts expended to pay insurance premiums for policies
of insurance related to such Collateral, and (iii) One
Hundred Thousand Dollars ($100,000.00). Protective Advances
in excess of said sum during any calendar year for any
Collateral shall require the consent of Requisite Lenders.
In addition, Agent Bank is hereby authorized on behalf of
all Lenders, without the necessity of any notice to or
further consent from any Lender, to waive the imposition of
the late fees provided for in Section 2.09(a) up to a
maximum of two (2) times per calendar year, including any
extensions.
b. Lenders hereby irrevocably authorize
Agent Bank, at its option and in its discretion, to release
any Security Documentation granted to or held by Agent Bank
upon any Collateral (i) upon Bank Facilities Termination and
repayment and satisfaction of all Borrowings, and all other
Obligations and the termination of this Credit Agreement, or
(ii) if approved, authorized or ratified in writing by Agent
Bank at the direction of all Lenders. Agent Bank shall not
be required to execute any document to evidence the release
of the Security Documentation granted to Agent Bank for the
benefit of Lenders herein or pursuant hereto upon any
Collateral if, in Agent Bank's opinion, such document would
expose Agent Bank to liability or create any
obligation or entail any consequence other than the release
of such Security Documentation without recourse or warranty,
and such release shall not in any manner discharge, affect
or impair the Obligations or any Security Documentation upon
(or obligations of Borrowers in respect of) any property
which shall continue to constitute part of the Collateral.
c. Except as provided in this Credit
Agreement, Agent Bank shall have no obligation whatsoever to
any Lender or to any other Person to assure that the
Collateral exists or is owned by Borrowers or is cared for,
protected or insured or has been encumbered or that the
Security Documentation granted to Agent Bank herein or in
any of the other Loan Documents or pursuant hereto or
thereto have been properly or sufficiently or lawfully
created, perfected, protected or enforced or are entitled to
any particular priority.
d. Should Agent Bank (i) employ counsel for
advice or other representation (whether or not any suit has
been or shall be filed) with respect to any Collateral or
any part thereof, or any of the Loan Documents, or the
attempt to enforce any security interest or Security
Documentation on any of the Collateral, or (ii) commence any
proceeding or in any way seek to enforce its rights or
remedies under the Loan Documents, irrespective of whether
as a result thereof Agent Bank shall acquire title to any
Collateral, either through foreclosure, deed in lieu of
foreclosure or otherwise, each Lender, upon demand therefor
from time to time, shall contribute its share (based on its
Pro Rata Share) of the reasonable costs and/or expenses of
any such advice or other representation, enforcement or
acquisition, including, but not limited to, fees of
receivers or trustees, court costs, title company charges,
filing and recording fees, appraisers' fees and fees and
expenses of attorneys to the extent not otherwise reimbursed
by Borrowers; provided that Agent Bank shall not be entitled
to reimbursement of its attorneys' fees and expenses
incurred in connection with the resolution of disputes
between Agent Bank and other Lenders unless Agent Bank shall
be the prevailing party in any such dispute. Any loss of
principal and interest resulting from any Event of Default
shall be shared by Lenders in accordance with their
respective Pro Rata Shares. It is understood and agreed
that in the event Agent Bank determines it is necessary to
engage counsel for Lenders from and after the occurrence of
an Event of Default, said counsel shall be selected by Agent
Bank.
e. In the event that all or any portion of
the Collateral is acquired by Agent Bank as the result of a
foreclosure or the acceptance of a deed or assignment in
lieu of foreclosure, or is retained in satisfaction of all
or any part of Borrowers' obligations, title to any such
Collateral or any portion thereof shall be held in the name
of Agent Bank or a nominee or subsidiary of Agent Bank, as
agent, for the ratable benefit of Agent Bank and Lenders.
Agent Bank shall prepare a recommended course of action for
such Collateral (the "Post-Foreclosure Plan"), which shall
be subject to the approval of the Requisite Lenders. Unless
a Lender shall give written notice to Agent Bank that it
objects to the recommended Post-Foreclosure Plan or any
alternative Post-Foreclosure Plan as set forth below, within
the Lender Reply Period, such Lender shall be deemed to have
approved such Post-Foreclosure Plan. In the event that
Requisite Lenders do not approve such Post-Foreclosure Plan,
any Lender shall be permitted to submit an alternative Post-
Foreclosure Plan to Agent Bank, and Agent Bank shall submit
any and all such additional Post-Foreclosure Plans to the
Lenders for evaluation and the approval of Requisite
Lenders. In accordance with the approved Post-Foreclosure
Plan, Agent Bank shall manage, operate, repair, administer,
complete, construct, restore or otherwise deal with the
Collateral acquired and administer all transactions relating
thereto, including, without limitation, employing a
management agent, leasing agent and other agents,
contractors and employees, including agents of the sale of
such Collateral, and the collecting of rents and other sums
from such Collateral and paying the expenses of such
Collateral; actions taken by Agent Bank with respect to the
Collateral, which are not provided for in the approved Post-
Foreclosure Plan or reasonably incidental thereto, shall
require the consent of Requisite Lenders by way of
supplement to such Post-Foreclosure Plan. Upon demand
therefor from time to time, each Lender will contribute its
share (based on its Pro Rata Share) of all reasonable costs
and expenses incurred by Agent Bank pursuant to the Post-
Foreclosure Plan in connection with the construction,
operation, management, maintenance, leasing and sale of such
Collateral. In addition, Agent Bank shall render or cause
to be rendered by the managing agent, to each of the
Lenders, monthly, an income and expense statement for such
Collateral, and each of the Lenders shall promptly
contribute its Pro Rata Share of any operating loss for such
Collateral, and such other expenses and operating reserves
as Agent Bank shall deem reasonably necessary pursuant to
and in accordance with the Post-Foreclosure Plan. To the
extent there is net operating income from such Collateral,
Agent Bank shall, in
accordance with all applicable Gaming Laws and the
Post-Foreclosure Plan, determine the amount and timing of
distributions to Lenders. All such distributions shall be
made to Lenders in accordance with their respective Pro Rata
Shares. Lenders acknowledge that if title to any Collateral
is obtained by Agent Bank or its nominee, such Collateral
will not be held as a permanent investment but will be
liquidated as soon as practicable. Agent Bank shall
undertake to sell such Collateral, at such price and upon
such terms and conditions as the Requisite Lenders shall
reasonably determine to be most advantageous. Any purchase
money mortgage or deed of trust taken in connection with the
disposition of such Collateral in accordance with the
immediately preceding sentence shall name Agent Bank, as
agent for Lenders, as the beneficiary or mortgagee. In such
case, Agent Bank and Lenders shall enter into an agreement
with respect to such purchase money mortgage defining the
rights of Lenders in the same Pro Rata Shares as provided
hereunder, which agreement shall be in all material respects
similar to this Article X insofar as the same is appropriate
or applicable.
Section 10.12. Lender Actions Against
Collateral. Each Lender agrees that it will not take any
action, nor institute any actions or proceedings, against
Borrowers or any other obligor hereunder, under the Security
Documentation or under any other Loan Documents with respect
to exercising claims against or rights in any Collateral
without the consent of Requisite Lenders.
Section 10.13. Ratable Sharing. Subject to
Section 10.03 and 10.04, Lenders agree among themselves that
(i) with respect to all amounts received by them which are
applicable to the payment of the Obligations, equitable
adjustment will be made so that, in effect, all such amounts
will be shared among them ratably in accordance with their
Pro Rata Shares, whether received by voluntary payment, by
counterclaim or cross action or by the enforcement of any or
all of the Obligations, or the Collateral, (ii) if any of
them shall by voluntary payment or by the exercise of any
right of counterclaim or otherwise, receive payment of a
proportion of the aggregate amount of the Obligations held
by it which is greater than its Pro Rata Share of the
payments on account of the Obligations, the one receiving
such excess payment shall purchase, without recourse or
warranty, an undivided interest and participation (which it
shall be deemed to have done simultaneously upon the receipt
of such payment) in such Obligations owed to the others so
that all such recoveries with respect to such Obligations
shall be applied ratably in
accordance with their Pro Rata Shares; provided, that
if all or part of such excess payment received by the
purchasing party is thereafter recovered from it, those
purchases shall be rescinded and the purchase prices paid
for such participations shall be returned to that party to
the extent necessary to adjust for such recovery, but
without interest except to the extent the purchasing party
is required to pay interest in connection with such
recovery. Borrowers agree that any Lender so purchasing a
participation from another Lender pursuant to this Section
10.13 may, to the fullest extent permitted by law, exercise
all its rights of payment with respect to such participation
as fully as if such Lender were the direct creditor of
Borrowers in the amount of such participation. No Lender
shall exercise any setoff, banker's lien or other similar
right in respect to any Obligations without the prior
written approval by Agent Bank.
Section 10.14. Delivery of Documents. Agent
Bank shall as soon as reasonably practicable distribute to
each Lender at its primary address set forth on the
appropriate counterpart signature page hereof, or at such
other address as a Lender may request in writing, (i)copies
of all documents to which such Lender is a party or of which
is executed or held by Agent Bank on behalf of such Lender,
(ii) all documents of which Agent Bank receives copies from
Borrowers pursuant to Article VI and Section 11.03,
(iii) all other documents or information which Agent Bank is
required to send to Lenders pursuant to the terms of this
Credit Agreement, (iv) other information or documents
received by Agent Bank at the request of any Lender, and
(v) all notices received by Agent Bank pursuant to Section
5.20. In addition, within fifteen (15) Banking Business
Days after receipt of a request in writing from a Lender for
written information or documents provided by or prepared by
Borrowers, Agent Bank shall deliver such written information
or documents to such requesting Lender if Agent Bank has
possession of such written information or documents in its
capacity as Agent Bank or as a Lender.
Section 10.15. Notice of Events of Default.
Agent Bank shall not be deemed to have knowledge or notice
of the occurrence of any Default or Event of Default (other
than nonpayment of principal of or interest on the Credit
Facility) unless Agent Bank has received notice in writing
from a Lender or Borrowers referring to this Credit
Agreement or the other Loan Documents, describing such event
or condition and expressly stating that such notice is a
notice of a Default or Event of Default. Should Agent Bank
receive such notice of the occurrence of a Default or Event
of Default, or should
Agent Bank send Borrowers a notice of Default or Event
of Default, Agent Bank shall promptly give notice thereof to
each Lender.
Section 10.16. Servicing Compensation. As
compensation for collecting the payments and otherwise
providing services to Lenders under the Loan Documents,
Agent Bank shall retain for itself from all payments of
interest on the Credit Facility and the Revolving Credit
Note hereunder an amount (the "Servicing Fee") equal to one-
eighth of one percent (0.125%) per annum of the principal
amount of the Credit Facility and the Revolving Credit Note
to which such interest payments relate. The Servicing Fee
shall be deducted from the interest actually paid by
Borrowers in each payment, so that the effective rates of
interest to the respective Lenders shall be:
a. with respect to Base Rate Loans, the
Base Rate plus the Applicable Base Rate Margin, less one-
eighth of one percent (0.125%) with the deducted one-eighth
of one percent (0.125%) to be retained by Agent Bank as a
Servicing Fee; and
b. with respect to LIBOR Loans, the LIBO
Rate plus the Applicable LIBO Rate Margin, less one-eighth
of one percent (0.125%) with the deducted one-eighth of one
percent (0.125%) to be retained by Agent Bank as a Servicing
Fee.
In the event Agent Bank receives less than the
full amount of interest due with respect to any installment
of interest, the amount of the applicable Servicing Fee
shall be proportionately reduced.
ARTICLE XI
GENERAL TERMS AND CONDITIONS
The following terms and conditions shall be
applicable throughout the term of this Credit Agreement:
Section 11.01. Amendments and Waivers. (a) No
amendment or modification of any provision of this Credit
Agreement shall be effective without the written agreement
of Requisite Lenders (after notice to all Lenders) and
Borrowers (except for rights and priorities of Lenders as
amongst themselves as provided in Section 10.04(a) which do
not require the consent of Borrowers), and (b) no
termination or waiver of any provision of this Credit
Agreement, or consent
to any departure by Borrowers therefrom (except as
expressly provided in Section 10.11(a) with respect to
waivers of late fees), shall in any event be effective
without the written concurrence of Requisite Lenders (after
notice to all Lenders), which Requisite Lenders shall have
the right to grant or withhold at their sole discretion,
except that the following amendments, modifications or
waivers shall require the consent of all Lenders:
(i) modify any requirement hereunder that
any particular action be taken by all the Lenders or by the
Requisite Lenders, modify this Section 11.01 or change the
definition of "Requisite Lenders", or remove Agent Bank
under Section 10.09(a), shall be effective unless consented
to by all of the Lenders, without regard to the vote of
Agent Bank as a Lender;
(ii) increase the Aggregate Commitment or the
Syndication Interest of any Lender, release any Collateral
except as specifically provided in the Credit Agreement,
extend the Maturity Date or change any provision expressly
requiring the consent of all Lenders shall be made without
the consent of each Lender; or
(iii) reduce any fees described in
Section 2.10 or extend the due date for, or reduce or
postpone the amount of, any Scheduled Reductions on the
Credit Facility, or reduce the rate of interest or postpone
the payment of interest on the Credit Facility, shall be
made without the consent of all of the Lenders.
No amendment, modification, termination or waiver of any
provision of Article X or any other provision referring to
Agent Bank shall be effective without the written
concurrence of Agent Bank, but only if such amendment,
modification, termination or waiver alters the obligations
or rights of Agent Bank. Any waiver or consent shall be
effective only in the specific instance and for the specific
purpose for which it was given. No notice to or demand on
Borrowers in any case shall entitle Borrowers to any other
further notice or demand in similar or other circumstances.
Any amendment, modification, termination, waiver or consent
effected in accordance with this Section 11.01 shall be
binding on each assignee, transferee or recipient of Agent
Bank's or any Lender's Syndication Interest under this
Credit Agreement or the Credit Facility at the time
outstanding. No modification of Section 2.08 or the
Swingline Note shall be made without the consent of the
Swingline Lender.
Section 11.02. Failure to Exercise Rights.
Nothing herein contained shall impose upon Banks or
Borrowers any obligation to enforce any terms, covenants or
conditions contained herein. Failure of Banks or Borrowers,
in any one or more instances, to insist upon strict
performance by Borrowers or Banks of any terms, covenants or
conditions of this Credit Agreement or the other Loan
Documents, shall not be considered or taken as a waiver or
relinquishment by Banks or Borrowers of their right to
insist upon and to enforce in the future, by injunction or
other appropriate legal or equitable remedy, strict
compliance by Borrowers or Banks with all the terms,
covenants and conditions of this Credit Agreement and the
other Loan Documents. The consent of Banks or Borrowers to
any act or omission by Borrowers or Banks shall not be
construed to be a consent to any other or subsequent act or
omission or to waive the requirement for Banks' or
Borrowers' consent to be obtained in any future or other
instance.
Section 11.03. Notices and Delivery. Unless
otherwise specifically provided herein, any consent, notice
or other communication herein required or permitted to be
given shall be in writing and may be personally served,
telecopied 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 telecopy (or
on the next Banking Business Day if such telecopy is
received on a non-Banking Business Day or after 5:00 p.m. on
a Banking Business Day) or four (4) Banking Business Days
after deposit in the United States mail (registered or
certified, with postage prepaid and properly addressed).
Notices to Agent Bank pursuant to Articles II and IX shall
not be effective until received by Agent Bank. For the
purposes hereof, the addresses of the parties hereto (until
notice of a change thereof is delivered as provided in this
Section 11.03) shall be as set forth below each party's name
on the signature pages hereof, or, as to each party, at such
other address as may be designated by such party in an
Assignment and Assumption Agreement or in a written notice
to all of the other parties. All deliveries to be made to
Agent Bank for distribution to the Lenders shall be made to
Agent Bank at the addresses specified for notice on the
signature page hereto and in addition, a sufficient number
of copies of each such delivery shall be delivered to Agent
Bank for delivery to each Lender at the address specified
for deliveries on the signature page hereto or such other
address as may be designated by Agent Bank in a written
notice.
Section 11.04. Modification in Writing. This
Credit Agreement and the other Loan Documents constitute the
entire agreement between the parties and supersede all prior
agreements whether written or oral with respect to the
subject matter hereof, including, but not limited to, any
term sheets furnished by any of the Banks to Borrowers.
Neither this Credit Agreement, nor any other Loan Documents,
nor any provision herein, or therein, may be changed,
waived, discharged or terminated orally, but only by an
instrument in writing signed by the party against whom
enforcement of the change, waiver, discharge or termination
is sought.
Section 11.05. Other Agreements. If the terms
of any documents, certificates or agreements delivered in
connection with this Credit Agreement are inconsistent with
the terms of the Loan Documents, Borrowers shall use their
best efforts to amend such document, certificate or
agreement to the satisfaction of Agent Bank to remove such
inconsistency.
Section 11.06. Counterparts. This Credit
Agreement may be executed by the parties hereto in any
number of separate counterparts with the same effect as if
the signatures hereto and hereby were upon the same
instrument. All such counterparts shall together constitute
but one and the same document.
Section 11.07. Rights, Powers and Remedies are
Cumulative. None of the rights, powers and remedies
conferred upon or reserved to Agent Bank, Banks or Borrowers
in this Credit Agreement are intended to be exclusive of any
other available right, power or remedy, but each and every
such right, power and remedy shall be cumulative and not
alternative, and shall be in addition to every right, power
and remedy herein specifically given or now or hereafter
existing at law, in equity or by statute. Any forbearance,
delay or omission by Agent Bank, Banks or Borrowers in the
exercise of any right, power or remedy shall not impair any
such right, power or remedy or be considered or taken as a
waiver or relinquishment of the right to insist upon and to
enforce in the future, by injunction or other appropriate
legal or equitable remedy, any of said rights, powers and
remedies given to Agent Bank, Banks or Borrowers herein.
The exercise of any right or partial exercise thereof by
Agent Bank, Banks or Borrowers shall not preclude the
further exercise thereof and the same shall continue in full
force and effect until specifically waived by an instrument
in writing executed by Agent Bank or Banks, as the case may
be.
Section 11.08. Continuing Representations. All
agreements, representations and warranties made herein shall
survive the execution and delivery of this Credit Agreement,
the making of the Credit Facility hereunder and the
execution and delivery of each other Loan Document until and
final payment of all sums owing under the Bank Facilities
and each of the Bank Facilities have been irrevocably
terminated.
Section 11.09. Successors and Assigns. All of
the terms, covenants, warranties and conditions contained in
this Credit Agreement shall be binding upon and inure to the
sole and exclusive benefit of the parties hereto and their
respective successors and assigns.
Section 11.10. Assignment of Loan Documents by
Borrowers or Syndication Interests by Lenders.
a. This Credit Agreement and the other Loan
Documents to which Borrowers are a party will be binding
upon and inure to the benefit of Borrowers, the Agent Bank,
each of the Banks, and their respective successors and
assigns, except that, Borrowers may not assign their rights
hereunder or thereunder or any interest herein or therein
without the prior written consent of all the Lenders. Any
attempted assignment or delegation in contravention of the
foregoing shall be null and void. Any Lender may at any
time pledge its Syndication Interest in the Credit Facility,
the Credit Agreement and the Loan Documents to a Federal
Reserve Bank, but no such pledge shall release that Lender
from its obligations hereunder or grant to such Federal
Reserve Bank the rights of a Lender hereunder absent
foreclosure of such pledge.
b. Each Lender may assign all or any part
of its Syndication Interest in the Credit Facility to any
Affiliate of such Lender which is an Eligible Assignee or to
any other Lender without consent and to one or more
financial institutions that are Eligible Assignees with the
prior consent of the Agent Bank and Borrowers (so long as no
Event of Default has occurred and remains continuing), which
consents shall not be unreasonably withheld or delayed;
provided, however, that the minimum amount of each such
assignment shall be Ten Million Dollars ($10,000,000.00), or
such lesser amount as constitutes the remaining amount of a
Lender's Syndication Interest in the Credit Facility (except
that there shall be no minimum assignment among the Lenders
or to their Affiliates), and each assignee Lender (or
assignor if so agreed between the assignee Lender and such
assignor) shall pay to the Agent Bank an assignment fee of
Two Thousand Five
Hundred Dollars ($2,500.00) with respect to each such
assignment. Each such assignment shall be evidenced by an
assignment substantially in the form of the Assignment and
Assumption Agreement. Upon any such assignment, the
assignee financial institution shall become a Lender for all
purposes under the Credit Agreement and each of the Loan
Documents and the assigning Lender shall be released from
its further obligations hereunder to the extent of such
assignment. Agent Bank agrees to give prompt notice to
Borrowers of each assignment made under this
Section 11.10(b) and to deliver to Borrowers each revision
to the Schedule of Lenders' Proportions in Credit Facility
made as a consequence of each such assignment.
c. Each Lender may sell participations for
all or any part of its Syndication Interest in the Credit
Facility; provided, however, that (i) such Lender shall
remain responsible for its total obligations under the
Credit Agreement and each of the Loan Documents, (ii) the
Borrowers and the Agent Bank shall continue to deal solely
with such Lender in connection with such Lender's rights and
obligations under the Credit Agreement and each of the Loan
Documents, and (iii) such Lender shall not sell any
participation under which the participant would have rights
to approve any amendment or waiver relating to the Credit
Agreement or any Loan Document except to the extent any such
amendment or waiver would (w) extend the final Maturity Date
or the date for the payment or any installments of fees,
principal or interest due in respect of the Credit Facility,
(x) reduce the amount of any Scheduled Reduction in respect
to the Credit Facility, (y) reduce the interest rates or
fees applicable to the Credit Facility or (z) release any
material portion of the Collateral. Notwithstanding the
foregoing, the rights of the Lenders to make assignments and
to grant participations shall be subject to the approval by
the Gaming Authorities of the assignee or participant, to
the extent required by applicable Gaming Laws, and to
applicable securities laws.
Section 11.11. Action by Lenders. Whenever
Banks shall have the right to make an election, or to
exercise any right, or their consent shall be required for
any action under this Credit Agreement or the Loan
Documents, then such election, exercise or consent shall be
given or made for all Banks by Agent Bank in accordance with
the provisions of Section 11.01. Notices, reports and other
documents required to be given by Borrowers to Banks
hereunder may be given by Borrowers to Agent Bank on behalf
of Banks, with sufficient copies for distribution to each of
the Banks, and the delivery
to Agent Bank shall constitute delivery to Banks. In
the event any payment or payments are received by a Lender
other than Agent Bank, Borrowers consent to such payments
being shared and distributed as provided herein.
Section 11.12. Time of Essence. Time shall be
of the essence of this Credit Agreement.
Section 11.13. Choice of Law and Forum. This
Credit Agreement shall be governed by and construed in
accordance with the internal laws of the State of Nevada
without regard to principles of conflicts of law, except as
otherwise required by mandatory provisions of applicable
Gaming Laws and except to the extent that the perfection of
any security interests or remedies hereunder in respect of
any particular Collateral are governed by the laws of a
jurisdiction other than the State of Nevada. Borrowers
further agree that the full and exclusive forum for the
determination of any action relating to this Credit
Agreement, the Loan Documents, or any other document or
instrument delivered in favor of Banks pursuant to the terms
hereof shall be either an appropriate Court of the State of
Nevada or the United States District Court or United States
Bankruptcy Court for the District of Nevada, except that
(a) an action to foreclose the Mississippi Deed of Trust or
other ACVI Security Documents, may be brought in any state
or federal court in Xxxxxx County, Mississippi, and the
Borrowers hereby irrevocably submit to the jurisdiction
thereof, and (b) an action to foreclose the Iowa Mortgage or
other ACCBI Security Documents may be brought in any state
or federal court in Pottawattamie County, Iowa, and the
Borrowers hereby irrevocably submit to the jurisdiction
thereof.
Section 11.14. Arbitration.
a. Upon the request of any party, whether
made before or after the institution of any legal
proceeding, any action, dispute, claim or controversy of any
kind (e.g., whether in contract or in tort, statutory or
common law, legal or equitable) ("Dispute") now existing or
hereafter arising between the parties in any way arising out
of, pertaining to or in connection with the Credit
Agreement, Loan Documents or any related agreements,
documents, or instruments (collectively the "Documents"),
may, by summary proceedings (e.g., a plea in abatement or
motion to stay further proceedings), bring an action in
court to compel arbitration of any Dispute.
b. All Disputes between the parties shall
be resolved by binding arbitration governed by the
Commercial Arbitration Rules of the American Arbitration
Association. Judgment upon the award rendered by the
arbitrators may be entered in any court having jurisdiction.
c. No provision of, nor the exercise of any
rights under this arbitration clause shall limit the rights
of any party, and the parties shall have the right during
any Dispute, to seek, use and employ ancillary or
preliminary remedies, judicial or otherwise, for the
purposes of realizing upon, preserving, protecting or
foreclosing upon any property, real or personal, which is
involved in a Dispute, or which is subject to, or described
in, the Documents, including, without limitation, rights and
remedies relating to: (i) foreclosing against any real or
personal property collateral or other security by the
exercise of a power of sale under the Security Documentation
or other security agreement or instrument, or applicable
law, (ii) exercising self-help remedies (including setoff
rights) or (iii) obtaining provisional or ancillary remedies
such as injunctive relief, sequestration, attachment,
garnishment or the appointment of a receiver from a court
having jurisdiction before, during or after the pendency of
any arbitration. The institution and maintenance of an
action for judicial relief or pursuit of provisional or
ancillary remedies or exercise of self-help remedies shall
not constitute a waiver of the right of any party, including
the plaintiff, to submit the Dispute to arbitration nor
render inapplicable the compulsory arbitration provision
hereof.
Section 11.15. Waiver of Jury Trial. TO THE
MAXIMUM EXTENT PERMITTED BY LAW, BORROWERS AND EACH OF THE
BANKS EACH MUTUALLY HEREBY EXPRESSLY WAIVE ANY RIGHT TO
TRIAL BY JURY OF ANY ACTION, CAUSE OF ACTION, CLAIM, DEMAND,
OR PROCEEDING ARISING UNDER OR WITH RESPECT TO THIS CREDIT
AGREEMENT, THE NOTES OR ANY OF THE LOAN DOCUMENTS, OR IN ANY
WAY CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE
DEALINGS OF BORROWERS AND BANKS WITH RESPECT TO THIS CREDIT
AGREEMENT, THE NOTES OR ANY OF THE LOAN DOCUMENTS, OR THE
TRANSACTIONS RELATED HERETO, IN EACH CASE WHETHER NOW
EXISTING OR HEREAFTER ARISING, AND IRRESPECTIVE OF WHETHER
SOUNDING IN CONTRACT, TORT, OR OTHERWISE. TO THE MAXIMUM
EXTENT PERMITTED BY LAW, BORROWERS AND EACH OF THE BANKS
EACH MUTUALLY AGREE THAT ANY SUCH ACTION, CAUSE OF ACTION,
CLAIM, DEMAND, OR PROCEEDINGS SHALL BE DECIDED BY A COURT
TRIAL WITHOUT A JURY AND THAT THE DEFENDING PARTY MAY FILE
AN ORIGINAL COUNTERPART OF THIS SECTION WITH ANY COURT OR
OTHER TRIBUNAL AS WRITTEN EVIDENCE
OF THE CONSENT OF THE COMPLAINING PARTY TO THE WAIVER
OF ITS RIGHT TO TRIAL BY JURY.
Section 11.16. Scope of Approval and Review.
Any inspection of the Casino Operations or other documents
shall be deemed to be made solely for Banks' internal
purposes and shall not be relied upon by the Borrowers or
any third party. In no event shall Lenders be deemed or
construed to be joint venturers or partners of Borrowers.
Section 11.17. Severability of Provisions. In
the event any one or more of the provisions contained in
this Credit Agreement shall be invalid, illegal or
unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein
shall not in any way be affected or impaired thereby.
Section 11.18. Cumulative Nature of Covenants.
All covenants contained herein are cumulative and not
exclusive of each other covenant. Any action allowed by any
covenant shall be allowed only if such action is not
prohibited by any other covenant.
Section 11.19. Costs to Prevailing Party. If
any action or arbitration proceeding is brought by any party
against any other party under this Credit Agreement or any
of the Loan Documents, the prevailing party shall be
entitled to recover such costs and attorney's fees as the
court in such action or proceeding may adjudge reasonable.
Section 11.20. Expenses.
a. Generally. Borrowers agree upon demand
to pay, or reimburse Agent Bank for, all of Agent Bank's
documented reasonable out-of-pocket costs and expenses of
every type and nature (including travel expenses incurred by
Agent Bank both before and after the Closing Date in
connection with the sale of Syndication Interests in the
Credit Facility) incurred by Agent Bank at any time (whether
prior to, on or after the date of this Credit Agreement) in
connection with (i) any requests for consent, waiver or
other modification of any Loan Document made by Borrowers;
(ii) the negotiation, preparation and execution of this
Credit Agreement (including, without limitation, the
satisfaction or attempted satisfaction of any of the
conditions set forth in Article III), the Security
Documentation and the other Loan Documents and the advance
of Borrowings; (iii) the subordination of any Collateral,
including title charges,
recording fees and reasonable attorneys' fees and
costs incurred in connection therewith; (iv) any appraisals
performed after the occurrence of an Event of Default; (v)
the creation, perfection or protection of the Security
Documentation on the Collateral (including, without
limitation, any fees and expenses for title and lien
searches, local counsel in various jurisdictions, filing and
recording fees and taxes, duplication costs and corporate
search fees); (vi) all reasonable costs and expenses
incurred by Agent Bank in connection with the sale of
Syndication Interests in the Credit Facility; and (vii) the
protection, collection or enforcement of any of the
Obligations or the Collateral, including Protective
Advances.
b. After Event of Default. Borrowers
further agree to pay, or reimburse Agent Bank and Lenders,
for all reasonable out-of-pocket costs and expenses,
including without limitation reasonable attorneys' fees and
disbursements incurred by Agent Bank or Lenders after the
occurrence of an Event of Default (i) in enforcing any
Obligation or in foreclosing against the Collateral or
exercising or enforcing any other right or remedy available
by reason of such Event of Default; (ii) in connection with
any refinancing or restructuring of the credit arrangements
provided under this Credit Agreement in the nature of a
"work-out" or in any insolvency or bankruptcy proceeding;
(iii) in commencing, defending or intervening in any
litigation or in filing a petition, complaint, answer,
motion or other pleadings in any legal proceeding relating
to Borrowers and related to or arising out of the
transactions contemplated hereby; (iv) in taking any other
action in or with respect to any suit or proceeding (whether
in bankruptcy or otherwise); (v) in protecting, preserving,
collecting, leasing, selling, taking possession of, or
liquidating any of the Collateral; or (vi) in attempting to
enforce or enforcing any lien in any of the Collateral or
any other rights under the Security Documentation.
Section 11.21. Setoff. In addition to any
rights and remedies of the Agent Bank provided by law, if
any Event of Default exists, Agent Bank is authorized at any
time and from time to time, without prior notice to any
Borrower, any such notice being waived by the Borrowers to
the fullest extent permitted by law, to set-off and apply
any and all deposits (general or special, time or demand,
provisional or final) at any time held by Agent Bank to or
for the credit or the account of Borrowers against any and
all obligations of Borrowers under the Credit Facilities,
now or hereafter
existing, irrespective of whether or not the Agent
Bank shall have made demand under this Credit Agreement or
any Loan Document and although such amounts owed may be
contingent or unmatured. Agent Bank agrees promptly to
notify the Borrowers (and Agent Bank shall promptly notify
each other Lender) after any such setoff and application
made by Agent Bank; provided, however, that the failure to
give such notice shall not affect the validity of such set-
off and application. The rights of Agent Bank under this
Section 11.21 are in addition to the other rights and
remedies which Agent Bank may have.
Section 11.22. Borrower Waivers and Consents.
a. Each Borrower shall be jointly and
severally liable for the repayment of all sums owing under
the terms of this Credit Agreement and each the Loan
Documents.
b. Each Borrower agrees that neither the
Agent Bank nor any Bank shall have any responsibility to
inquire into the apportionment, allocation or disposition of
any Borrowings, Construction Disbursements or Swingline
Advance as among the Borrowers or within the Borrower
Consolidation.
c. For the purpose of implementing the
joint borrower provisions of this Credit Agreement and each
of the Loan Documents, each Borrower and the Collateral
Affiliate hereby irrevocably appoints each Authorized
Officer as its agent and attorney-in-fact for all purposes
of this Credit Agreement and each of the Loan Documents,
including without limitation the giving and receiving of
notices and other communications, the making of requests
for, or conversions or continuations of, Borrowings, the
execution and delivery of certificates and the receipt and
allocation of disbursements from the Banks.
d. Each Borrower acknowledges that the
handling of the Bank Facilities on a joint borrowing basis
as set forth in this Credit Agreement is solely an
accommodation to Borrowers and is done at their request.
Each Borrower agrees that neither the Agent Bank, nor any
Lender, shall incur any liability to any Borrower as a
result thereof. To induce the Agent Bank and the Lenders to
enter into this Credit Agreement, and in consideration
thereof, in accordance with the provisions set forth in
Section 5.14 of this Credit Agreement, each Borrower hereby
agrees to indemnify the Agent Bank and each Lender and hold
each such entity harmless from and against any and all
liabilities, expenses, losses, damages
and/or claims of damage or injury asserted against
such entity by any Borrower or by any other Person arising
from or incurred by reason of the structuring of the Bank
Facilities as herein provided, reliance by the Agent Bank or
the Lenders on any requests or instructions from any
Borrower or any Authorized Officer, or any other action
taken by the Agent Bank or a Lender under the terms of this
Credit Agreement or any of the Loan Documents at the request
of any Borrower or Authorized Officer. This Section
11.22(d) shall survive termination of this Credit Agreement.
e. Each Borrower represents and warrants to
the Agent Bank and the Lenders that (i) it has established
adequate means of obtaining from each Borrower on a
continuing basis financial and other information pertaining
to the business, operations and condition (financial and
otherwise) of each of the Borrowers and its respective
property, and (ii) each Borrower now is and hereafter will
be completely familiar with the business, operations and
condition (financial and otherwise) of each Borrower, and
its property. Each Borrower hereby waives and relinquishes
any duty on the part of the Agent Bank or any Lender to
disclose to such Borrower any matter, fact or thing relating
to the business, operations or condition (financial or
otherwise) of any Borrower, or the property of any Borrower,
whether now or hereafter known by the Agent Bank or any
Lender at any time through Bank Facilities Termination.
f. Each Borrower acknowledges that the
Aggregate Outstandings, or portions thereof, may derive from
value provided directly to another Borrower and, in full
recognition of that fact, each Borrower consents and agrees
that the Agent Bank and any Lender may, at any time and from
time to time, without notice or demand, and without
affecting the enforceability or security of the Loan
Documents:
(i) accept partial payments on the Bank
Facilities;
(ii) receive and hold additional security or
guaranties for the Bank Facilities or any part
thereof;
(iii) release, reconvey, terminate, waive,
abandon, subordinate, exchange, substitute,
transfer and enforce any security or guaranties,
and apply any security and direct the order or
manner of sale thereof, as the Agent Bank or
Requisite Lenders in their sole and absolute
discretion may determine;
(iv) release any party or any guarantor from
any personal liability with respect to the Bank
Facilities or any part thereof;
(v) settle, release on terms satisfactory to
the Agent Bank or Requisite Lenders or by
operation of applicable laws or otherwise
liquidate or enforce the Bank Facilities and any
security or guaranty in any manner, consent to the
transfer of any security and bid and purchase at
any sale; and/or
(vi) consent to the merger, change or any
other restructuring or termination of the
corporate existence of any other Borrower or any
other Person, and correspondingly restructure the
Bank Facilities, continuing existence of any lien
or encumbrance under any other Loan Document to
which any Borrower is a party or the
enforceability hereof or thereof with respect to
all or any part of the Bank Facilities.
Each Borrower expressly waives any right to
require the Agent Bank or any Lender to marshal
assets in favor of any Borrower, any other party
or any other Person or to proceed against any
other Borrower or any other party or any
Collateral provided by any Borrower or any other
party, and agrees that the Agent Bank and Lenders
may proceed against Borrowers and/or the
Collateral in such order as they shall determine
in their sole and absolute discretion. The Agent
Bank and Lenders may file a separate action or
actions against any Borrower, whether action is
brought or prosecuted with respect to any other
security or against any other Person, or whether
any other Person is joined in any such action or
actions. Each Borrower agrees that the Agent Bank
or Lenders and any other Borrower may deal with
each other in connection with the Bank Facilities
or otherwise, or alter any contracts or agreements
now or hereafter existing between any of them, in
any manner whatsoever, all without in any way
altering or affecting the obligations of such
Borrower under the Loan Documents or the
perfection of the Security
Documentation. Each Borrower expressly
waives any and all defenses now or hereafter
arising or asserted by reason of: (a) any
disability or other defense of any Borrower or any
other party with respect to any Bank Facilities,
(b) the unenforceability or invalidity as to any
Borrower, or any other party of the Bank
Facilities, (c) the unenforceability or invalidity
of any security or guaranty for the Bank
Facilities or the lack of perfection or continuing
perfection or failure of priority of any security
for the Bank Facilities, (d) the cessation for any
cause whatsoever of the liability of any Borrower
or any other party (other than by reason of the
full payment and performance of all Bank
Facilities and the occurrence of Bank Facility
Termination), (e) any failure of the Agent Bank or
any Lender to give notice of sale or other
disposition to any Borrower or any defect in any
notice that may be given in connection with any
sale or disposition, (f) any act or omission of
the Agent Bank or any Lender or others that
directly or indirectly results in or aids the
discharge or release of any Borrower or any other
Person or the Bank Facilities or any other
security or guaranty therefor by operation of law
or otherwise, (g) 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, (h) any
failure of the Agent Bank or any Lender to file or
enforce a claim in any bankruptcy or other
proceeding with respect to any Person, (i) the
election by the Agent Bank or any Lender, in any
bankruptcy proceeding of any Person, of the
application or non-application of
Section 1111(b)(2) of the United States Bankruptcy
Code, (j) any extension of credit or the grant of
any lien or encumbrance under Section 364 of the
United States Bankruptcy Code, (k) any use of cash
collateral under Section 363 of the United States
Bankruptcy Code, (l) any agreement or stipulation
with respect to the provision of adequate
protection in any bankruptcy proceeding of any
Person, (m) the avoidance of any lien or
encumbrance in favor of the Agent Bank or any
Lender for any reason, (n) any bankruptcy,
insolvency, reorganization, arrangement,
readjustment of debt, liquidation or
dissolution proceeding commenced by or against any
Person, including any discharge of, or bar or stay
against collecting, all or any of the obligations
(or any interest thereon) in or as a result of any
such proceeding, or (o) any election of remedies
by the Agent Bank or any Lender, even if the
effect thereof is to destroy or impair any
Borrower's right to subrogation, reimbursement,
exoneration, indemnification or contribution.
g. Each Borrower authorizes the Agent Bank
and any Lender, upon the occurrence of any Default Notice
Recording and the acceleration of the Indebtedness then
owing under the Bank Facilities, at their sole option,
without any other notice or demand and without affecting any
of the Bank Facilities or the validity or enforceability of
any liens or encumbrance in favor of the Agent Bank or any
Lender on any Collateral, to foreclose any or all of the
Deeds of Trust by judicial or nonjudicial sale. To the
extent permitted by applicable law, each Borrower expressly
waives any defenses to the enforcement of the Loan Documents
or any liens or encumbrances created or granted under the
Loan Documents or to the recovery by the Agent Bank or any
Lender against any other Borrower or any guarantor or any
other Person liable therefor of any deficiency after a
judicial or nonjudicial foreclosure or sale, even though
such a foreclosure or sale may impair the subrogation rights
of a Borrower and may preclude a Borrower from obtaining
reimbursement or contribution from any other Borrower.
h. Notwithstanding anything to the contrary
elsewhere contained herein or in any other Loan Document to
which any Borrower is a party, each Borrower hereby
expressly agrees with respect to the Borrowers and their
successors and assigns (including any surety) and any other
Person which is directly or indirectly a creditor of the
other Borrowers or any surety for any other Borrower, not to
exercise, until Bank Facility Termination has irrevocably
occurred, any rights at law or in equity to subrogation, to
reimbursement, to exoneration, to contribution, to setoff or
to any other rights that could accrue to a surety against a
principal, to a guarantor against a maker or obligor, to an
accommodation party against the party accommodated, or to a
holder or transferee against a maker, and which such
Borrower may have or hereafter acquire against any of the
Borrowers or any other such Person in connection with or as
a result of such Borrower's execution, delivery and/or
performance of this
Credit Agreement or any other Loan Document to which
such Borrower is a party.
Section 11.23. Agreement to Subordinate Liens on
ACVI Hotel Property and ACCBI Riverboat. Each of the Banks
hereby agree that upon receipt of written request from
Borrowers Agent Bank shall subordinate, without further
consent or authorization of the Banks, the ACVI Hotel Deed
of Trust and applicable ACVI Financing Statements to the
ACVI Hotel Construction Security Documents so long as
Borrowers are in compliance with Section 6.08(d) in all
material respects.
Section 11.24. Designation of Revolving Credit
Note and Credit Agreement as Senior Indebtedness Under Gem
Notes. The undersigned Borrowers hereby designate, with
respect to the Gem Settlement Agreement and each of the Gem
Settlement Notes, all Indebtedness evidenced by the
Revolving Credit Note and this Credit Agreement as Senior
Indebtedness, as such term is defined in the Gem Settlement
Agreement and Gem Settlement Notes.
Section 11.25. Schedules Attached. Schedules
are attached hereto and incorporated herein and made a part
hereof as follows:
Schedule 2.01(a) - Schedule
of Lenders' Proportions in
Credit Facility
Schedule 2.01(c) - Aggregate
Commitment Reduction Schedule
Schedule 3.11(a) - Schedule
of Existing Bank Loan Security
Documents
Schedule 3.11(b) - Schedule
of Intercompany Security
Documents
Schedule 3.18 - Schedule
of Significant Litigation
Schedule 4.15 - Schedules
of Spaceleases
(A)
ACCBI Schedule of
Spaceleases
(B)
ACVI Schedule of
Spaceleases
(C)
CPI Schedule of
Spaceleases
(D)
ACLVI Schedule of
Spaceleases
Schedule 4.16 - Schedules
of Equipment Leases and
Contracts
(A)
ACCBI Schedule of
Equipment Leases and
Contracts
(B)
ACVI Schedule of
Equipment Leases and
Contracts
(C)
CPI Schedule of Equipment
Leases and Contracts
(D)
ACLVI Schedule of
Equipment Leases and
Contracts
Schedule 4.24 - Schedule
of Trademarks, Patents,
Licenses, Franchises, Formulas
and Copyrights
Schedule 4.25 - Schedule
of Contingent Liabilities
Schedule 5.09(o) - Schedule
of General Contractor Minimum
Insurance Requirements
Schedule 6.08 - Schedule
of Liens
Schedule A-1 - ACCBI Fee
Property -Description
Schedule A-2 - IDNR
Parcel - Description
Schedule B-1 - ACVI Fee
Property - Description
Schedule B-2 - Magnolia
Parcel - Description
Schedule B-3 - Xxxxx/Xxx
Parcel - Description
Schedule B-4 - Xxxxxxxx
Parcel - Description
Schedule B-5 - ACVI Hotel
Property -Description
Schedule C-1 - CPI Real
Property - Description
Schedule D-1 - ACLVI Real
Property -Description
Schedule D-2 - Option
Property - Description
Section 11.26. Exhibits Attached. Exhibits are
attached hereto and incorporated herein and made a part
hereof as follows:
Exhibit A - Revolving Credit Note
Exhibit B - Swingline Note
Exhibit C - Notice of Borrowing
- Form
Exhibit D -
Continuation/Conversion Notice -
Form
Exhibit E - Notice of Swingline
Advance - Form
Exhibit F - Compliance
Certificate - Form
Exhibit G - Pricing Certificate
- Form
Exhibit H - Availability Limit
Certificate -Form
Exhibit I - Authorized Officer
Certificate -Form
Exhibit J - Closing Certificate
Exhibit K - Construction
Disbursement Request - Form
Exhibit L - Assignment and
Assumption Agreement - Form
Exhibit M - Legal Opinion -
Form
Exhibit N - Project Development
Budget
IN WITNESS WHEREOF, the parties hereto
have caused this Credit Agreement to be executed as of the
day and year first above written.
BORROWERS:
AMERISTAR CASINOS, INC.,
a Nevada corporation
By /s/ Xxxxxx Xxxxxxxxxx
Xxxxxx Xxxxxxxxxx,
Senior Vice President
Address:
0000 Xxxxxx Xxxxxx Xxxxxxx
Xxxxx 000X
Xxx Xxxxx, Xxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
CACTUS PETE'S, INC.,
a Nevada corporation
By /s/ Xxxxxx Xxxxxxxxxx
Xxxxxx Xxxxxxxxxx,
Vice President
Address:
0000 Xxxxxx Xxxxxx Xxxxxxx
Xxxxx 000X
Xxx Xxxxx, Xxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
AMERISTAR CASINO
VICKSBURG,
INC., a Mississippi
corporation
By /s/ Xxxxxx Xxxxxxxxxx
Xxxxxx Xxxxxxxxxx,
Vice President
Address:
0000 Xxxxxx Xxxxxx Xxxxxxx
Xxxxx 000X
Xxx Xxxxx, Xxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
AMERISTAR CASINO COUNCIL
BLUFFS, INC., an Iowa
corporation
By /s/ Xxxxxx Xxxxxxxxxx
Xxxxxx Xxxxxxxxxx,
Vice President
Address:
0000 Xxxxxx Xxxxxx Xxxxxxx
Xxxxx 000X
Xxx Xxxxx, Xxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
AMERISTAR CASINO LAS
VEGAS,
INC., a Nevada corporation
By /s/ Xxxxxx Xxxxxxxxxx
Xxxxxx Xxxxxxxxxx,
Vice President
Address:
0000 Xxxxxx Xxxxxx Xxxxxxx
Xxxxx 000X
Xxx Xxxxx, Xxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
BANKS:
XXXXX FARGO BANK,
National Association,
Agent Bank, Lender and
Swingline Lender
By /s/ Xxxxx Xxxxxx
Xxxxx Xxxxxx,
Vice President
Address:
Xxx Xxxx Xxxxx Xxxxxx
Xxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
U.S. BANK,
Lender
By /s/ Xxxx Xxxxxxx
Name Xxxx Xxxxxxx
Title Senior Vice President
Address:
Xxx Xxxx Xxxxxxx
Xxxx, XX 00000
Attn: Xxxx Xxxxxxx, S.V.P.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
DEPOSIT GUARANTY NATIONAL
BANK,
Lender
By /s/ Xxxxx X. Xxxxxxxx
Name Xxxxx X. Xxxxxxxx
Title Senior Vice President
Address:
000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Attn: Xxxxx Xxxxxxxx, V.P.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
FIRST NATIONAL BANK OF
CHICAGO,
Lender
By /s/ Xxxx Xxxxx
Name Xxxx Xxxxx
Title Vice President
Address:
000 X. Xxxxxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxxxxx, XX 00000-0000
Attn: Xxxxx Xxxxxx, V.P.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
BANKERS TRUST COMPANY,
Lender
By /s/ Xxxxxxx X. Xxxxxxx
Name Xxxxxxx X. Xxxxxxx
Title Vice President
Address:
Xxx Xxxxxxx Xxxxx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxxxx, V.P.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
FIRST NATIONAL BANK OF
COMMERCE,
Lender
By /s/ Xxxxxx X. Xxxxxx
Name Xxxxxx X. Xxxxxx
Title Vice President
Address:
000 Xxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxxx, V.P.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
TRUSTMARK NATIONAL BANK,
Lender
By /s/ Xxxxx X. Xxxxxx
Name Xxxxx X. Xxxxxx
Title Vice President
Address:
000 X. Xxxxxxx Xxxxxx, Xxx. 000
Xxxxxxx, XX 00000-0000
Attn: Xxxxx Xxxxxx, V.P.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
IMPERIAL BANK,
Lender
By /s/ Xxxxxx X. Xxxxxxx
Name Xxxxxx X. Xxxxxxx
Title Senior Vice President
Address:
000 X. Xx Xxxxxxx Xxxxxxxxx
Xxxxx 0000
Xxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxx, S.V.P.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
NORWEST BANK OF NEBRASKA,
N.A.,
Lender
By /s/ Xxxxxxx X. Xxxxxxxx
Name Xxxxxxx X. Xxxxxxxx
Title Vice President
Address:
0000 Xxxxxxx
Xxxxx, XX 00000
Attn: Xxxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
