SECOND AMENDED AND RESTATED CREDIT AGREEMENT Dated as of October 24, 2005 among
EXECUTION
VERSION
SECOND
AMENDED AND RESTATED
Dated
as of October 24,
2005
among
ISLE
OF CAPRI BLACK HAWK,
L.L.C.,
as
Borrower,
THE
LENDERS LISTED HEREIN,
as
Lenders,
CANADIAN
IMPERIAL BANK OF COMMERCE,
as
Administrative Agent,
XXXXX
FARGO BANK, N.A.,
as
Syndication Agent,
HIBERNIA
NATIONAL BANK and
THE
CIT GROUP/EQUIPMENT FINANCING, INC.,
as
Co-Documentation Agents,
and
CIBC
WORLD MARKETS CORP.,
as
Lead Arranger
LA1:1086583.7
TABLE
OF
CONTENTS
Page
No.
SECTION
1. DEFINITIONS
2
1.1
Certain
Defined Terms 2
1.2
Accounting
Terms; Utilization of GAAP for Purposes of Calculations
Under Agreement
31
1.3
Other
Definitional Provisions and Rules of Construction
32
SECTION 2. AMOUNTS
AND TERMS OF COMMITMENTS AND LOANS 33
2.1
Commitments;
Making of Loans; Optional Notes 33
2.2
Interest
on the Loans 40
2.3
Fees
44
2.4
Repayments,
Prepayments
and Reductions in Revolving Loan
Commitments; General Provisions Regarding Payments; Application of
Proceeds
of Collateral and
Payments Under Subsidiary Guaranty 44
2.5
Use
of
Proceeds
52
2.6 Special
Provisions Governing LIBOR Loans 52
2.7 Increased
Costs; Taxes; Capital Adequacy
54
2.8 Obligation
of Lenders and Issuing Lenders to Mitigate
59
2.9
Replacement
of Lenders 59
SECTION 3. LETTERS
OF CREDIT 60
3.1
Issuance
of Letters of Credit and Lenders’ Purchase of Participations
Therein 60
3.2 Letter
of
Credit Fees 63
3.3
Drawings
and Reimbursement of Amounts Paid Under Letters of Credit
64
3.4
Obligations
Absolute 66
3.5
Indemnification;
Nature of Issuing Lenders’ Duties 67
3.6 Increased
Costs and Taxes Relating to Letters of Credit
68
SECTION
4. CONDITIONS
TO LOANS AND LETTERS OF CREDIT 70
4.1 Conditions
to Occurrence of the Effective Date 70
4.2
Conditions
to All Loans 76
4.3
Conditions
to Letters of Credit 77
SECTION
5. BORROWER’S
REPRESENTATIONS AND WARRANTIES 77
5.1
Organization,
Powers, Qualification, Good Standing, Business and
Subsidiaries 78
5.2
Authorization
of Borrowing, etc. 78
5.3
Financial
Condition 80
5.4
No
Material Adverse Change; No Restricted Junior Payments of
Permitted Tax
Distributions
80
5.5 Title
to
Properties; Liens; Real Property; Intellectual Property
81
5.6
Litigation;
Adverse Facts 82
5.7 Payment
of Taxes 82
5.8 Performance
of
Agreements; Materially Adverse Agreements; Material
Contracts
83
5.9 Governmental
Regulation; OFAC; Patriot Act; Foreign Corrupt Practices
Act
83
5.10 Securities
Activities 84
5.11 Employee
Benefit Plans 84
5.12 Certain
Fees 85
5.13 Environmental
Protection 85
5.14 Employee
Matters 86
5.15 Solvency 86
5.16 Matters
Relating to Collateral 86
5.17 Disclosure
88
5.18
Mortgage
Taxes, Etc. 88
SECTION
6. BORROWER’S
AFFIRMATIVE
COVENANTS
89
6.1 Financial
Statements and Other Reports 89
6.2 Existence,
etc. 95
6.3 Payment
of Taxes and Claims; Tax Consolidation 95
6.4 Maintenance
of Properties; Insurance 96
6.5 Inspection
Rights 97
6.6 Compliance
with Laws, etc. 97
6.7 Environmental
Matters
97
6.8 Execution
of Subsidiary Guaranty and Personal Property Collateral
Documents
After the Effective Date
100
6.9 Matters
Relating to Additional Real Property Collateral
101
6.10
Deposit
Accounts and Cash Management Systems
101
6.11 Post-Closing
Matters
102
SECTION
7. BORROWER’S
NEGATIVE COVENANTS
102
7.1
Financial
Statements and Other Reports 103
7.2
Liens
and
Related Matters 104
7.3 Investments;
Acquisitions 105
7.4 Contingent
Obligations 106
7.5 Restricted
Junior Payments 106
7.6 Financial
Covenants 107
7.7
Restriction
on Fundamental Changes; Asset Sales 108
7.8 Capital
Expenditures 109
7.9 Sales
and
Lease-Backs
110
7.10
Transactions
with Shareholders and Affiliates 110
7.11
Disposal
of Subsidiary Stock 110
7.12 Conduct
of Business
111
7.13 Fiscal
Year
111
7.14
Operating
Leases 111
7.15 Amendments
or Waivers of Certain Agreements; Amendments of
Documents Relating to Subordinated PIK Indebtedness; Amendments of
Management Agreements; Amendments of Expansion Agreements
111
SECTION 8. EVENTS
OF
DEFAULT 112
8.1 Failure to Make Payments
When
Due
112
8.2 Default
in Other Agreements 112
8.3 Breach
of
Certain Covenants
112
8.4 Breach
of
Warranty 112
8.5
Other
Defaults Under Loan Documents 113
8.6 Involuntary
Bankruptcy; Appointment of Receiver, etc. 113
8.7 Voluntary
Bankruptcy; Appointment of Receiver, etc. 113
8.8 Judgments
and Attachments 114
8.9
Dissolution
114
8.10 Employee
Benefit Plans
114
8.11 Change
in
Control 114
8.12
Invalidity
of Subsidiary Guaranty; Failure of Security; Repudiation of
Obligations 114
8.13 Loss
of
Gaming Licenses
115
8.14 Consent
to Substitute Member 115
SECTION 9. ADMINISTRATIVE
AGENT 116
9.1 Appointment 116
9.2 Powers
and Duties; General Immunity 117
9.3
Representations
and Warranties; No Responsibility For Appraisal of
Creditworthiness 119
9.4 Right
to
Indemnity 119
9.5 Successor
Administrative Agent 120
9.6 Collateral
Documents and Subsidiary Guaranty 120
9.7 Administrative
Agent May File Proofs of Claim 121
SECTION 10.
MISCELLANEOUS
122
10.1
Assignments
and Participations in Loans and Letters of Credit 122
10.2
Expenses 125
10.3
Indemnity 126
10.4
Set-Off;
Security Interest in Deposit Accounts 127
10.5
Ratable
Sharing 128
10.6
Amendments
and Waivers 128
10.7
Independence
of Covenants
130
10.8
Notices;
Effectiveness of Signatures 130
10.9
Survival
of Representations, Warranties and Agreements
131
10.10
Failure
or Indulgence Not Waiver; Remedies Cumulative 131
10.11
Marshalling;
Payments Set Aside 132
10.12
Severability
132
10.13
Obligations
Several; Independent Nature of Lenders’ Rights 132
10.14
Release
of Security Interest or Guaranty 132
10.15
Applicable
Law 133
10.16
Successors
and Assigns 133
10.17
Consent
to Jurisdiction and Service of Process 133
10.18
Waiver
of Jury
Trial 134
10.19
Confidentiality
135
10.20
Co-Documentation
Agents, Lead Arranger and Syndication Agent 135
10.21
Counterparts;
Effectiveness 136
10.22
Gaming
Laws
136
10.23
Amendment
and Restatement
136
10.24
USA
Patriot Act 137
ISLE
OF CAPRI BLACK HAWK,
L.L.C.
SECOND
AMENDED AND RESTATED CREDIT AGREEMENT
This
SECOND
AMENDED AND RESTATED CREDIT AGREEMENT
is dated
as of October 24, 2005 and entered into by and among ISLE
OF CAPRI BLACK HAWK,
L.L.C.,
a
Colorado limited liability company (“Borrower”),
THE
FINANCIAL INSTITUTIONS LISTED ON THE SIGNATURE PAGES HEREOF OR PARTY FROM TIME
TO TIME HERETO,
as
lenders, CANADIAN
IMPERIAL BANK OF COMMERCE (“CIBC”),
as
administrative agent for Lenders (in such capacity, “Administrative
Agent”)
and as
issuing lender with respect to any Letter of Credit issued hereunder,
XXXXX
FARGO BANK, N.A.,
as
syndication agent (in such capacity, “Syndication
Agent”),
and
HIBERNIA
NATIONAL BANK
and
THE
CIT GROUP/EQUIPMENT FINANCING, INC.
as
co-documentation agents (each in such capacity, “Co-Documentation
Agent”;
collectively in such capacity the “Co-Documentation
Agents”).
R
E C I T A L S
WHEREAS,
Borrower is the borrower under that certain First Amended and Restated Credit
Agreement (the “Existing
Credit Agreement”)
dated
as of April 22, 2003 among Borrower, CIBC, as administrative agent, the agents
named therein and certain other lenders party from time to time thereto
(collectively, the “Existing
Lenders”);
WHEREAS, Borrower
desires to (i) refinance Borrower’s indebtedness under the Existing Credit
Agreement and (ii) amend and restate the Existing Credit Agreement
(collectively, the “Transactions”);
WHEREAS, (i)
the
Existing Lenders which are not Lenders hereunder will transfer and assign all
of
their Commitments and Loans under the Existing Credit Agreement to
Administrative Agent, (ii) each Existing Lender which is a Lender hereunder
will
transfer and assign its Commitments and Loans under the Existing Credit
Agreement to Administrative Agent and acquire the Commitments and Loans under
this Agreement as set forth in the allocations provided to such Lender by
Administrative Agent, (iii) each new Lender hereunder proposes to acquire the
Commitments and Loans as set forth in the allocations provided to such Lender
by
Administrative Agent, and (iv) concurrently therewith, Borrower, the Lenders
and
the Administrative Agent desire, subject to the terms and conditions set forth
herein, to amend and restate the Existing Agreement in its entirety as set
forth
herein;
WHEREAS,
Borrower desires to continue to secure all of the Obligations hereunder and
under the other Loan Documents by continuing and confirming the grant to
Administrative Agent, on behalf of Lenders, of a First Priority Lien on all
of
its real property and substantially all of its personal and mixed property,
including a pledge of all of the Capital Stock of its Subsidiaries;
WHEREAS,
the
domestic Subsidiaries of Borrower have agreed to continue to guarantee the
Obligations hereunder and under the other Loan Documents and to continue to
secure their guaranties by continuing and confirming the grant to Administrative
Agent, on behalf of Lenders, a First Priority Lien on substantially all of
their
real, personal and mixed property, including a pledge of all of the Capital
Stock of their Subsidiaries; and
WHEREAS,
for
ease of reference and clarity, Borrower, Administrative Agent, the Existing
Lenders and Lenders that are not Existing Lenders desire to amend and restate
the Existing Credit Agreement in its entirety (i) to provide for new credit
facilities to Borrower and (ii) to make certain other amendments to the terms
and provisions of the Existing Credit Agreement, all on the terms and conditions
set forth in this Agreement.
NOW,
THEREFORE,
in
consideration of the premises and the agreements, provisions and covenants
herein contained, Borrower, Lenders, and Administrative Agent agree that the
Existing Credit Agreement is hereby amended and restated in its entirety as
follows:
Section
1. DEFINITIONS
| 1.1 |
Certain
Defined Terms.
|
The
following terms used in this Agreement shall have the following
meanings:
“Acknowledgement
and Consent”
means
the Acknowledgement and Consent to be executed and delivered by Borrower and
the
other Loan Parties on the Effective Date, substantially in the form of
Exhibit
XV
annexed
hereto.
“Act”
has the
meaning assigned to that term in subsection 10.24.
“Additional
Mortgaged Property”
has the
meaning assigned to that term in subsection 6.9B.
“Additional
Mortgages”
has the
meaning assigned to that term in subsection 6.9B.
“Adjusted
LIBOR”
means,
for any Interest Rate Determination Date with respect to an Interest Period
for
a LIBOR Loan, the rate per annum obtained by dividing
(x) the
rate of interest equal to (a) the rate per annum determined on the basis
of
the rate for deposits in Dollars for a period equal to such Interest Period
commencing on the first day of such Interest Period and appearing on the
Telerate Screen 3750 at or about 11:00 A.M., London time, two Business Days
prior to the commencement of such Interest Period, or (b) if such a
rate
does not appear on the Telerate Screen 3750, the average of the rates per annum
at which Dollar deposits in immediately available funds are offered to CIBC
in
the interbank LIBOR market as at or about 10:00 A.M. (New York City time) two
Business Days prior to the beginning of such Interest Period for delivery on
the
first day of such Interest Period, and for a period approximately equal to
such
Interest Period, by
(y) a
percentage equal to 100% minus
the
stated maximum rate (expressed as a percentage) of all reserve requirements
(including any marginal, emergency, supplemental, special or other reserves)
applicable on such Interest Rate Determination Date to any member bank of the
Federal Reserve System in respect of “Eurocurrency liabilities” as defined in
Regulation D (or any successor category of liabilities under Regulation
D).
“Administrative
Agent”
has the
meaning assigned to that term in the introduction to this Agreement and also
means and includes any successor Administrative Agent appointed pursuant to
subsection 9.5.
“Administrative
Agent’s Office”
means
(i) the office of Administrative Agent located at CIBC, 000 Xxxxxxx
Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, or (ii) such other office of Administrative
Agent
as may from time to time hereafter be designated as such in a written notice
delivered by Administrative Agent to Borrower and each Lender.
“Affected
Lender”
has the
meaning assigned to that term in subsection 2.6C.
“Affected
Loans”
has the
meaning assigned to that term in subsection 2.6C.
“Affiliate”,
as
applied to any Person, means any other Person directly or indirectly
controlling, controlled by, or under common control with, that Person. 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. For purposes of this definition, a Person shall be deemed to be
“controlled by” a Person if such Person possesses, directly or indirectly, power
to vote 10% or more of the Securities having ordinary voting power for the
election of directors of such Person. Notwithstanding the foregoing, neither
Administrative Agent nor any Lender shall be deemed to be an Affiliate of any
of
the Loan Parties.
“Agreement”
means
this Second Amended and Restated Credit Agreement dated as of October 24,
2005.
“Applicable
Base Rate Margin”
means,
as at any date of determination, with respect to any Type of Loan that is a
Base
Rate Loan, a percentage per annum equal to the Applicable LIBOR Margin for
such
Type of Loan less
1.00%.
“Applicable
LIBOR Margin”
means
(a) with respect to Term Loans that are LIBOR Loans, 2.00% per annum,
and
(b) with respect to Revolving Loans that are LIBOR Loans, a percentage
per
annum as set forth below opposite the applicable Consolidated Total Leverage
Ratio:
|
|
Consolidated
Total
Leverage
Ratio
|
Applicable
LIBOR Margin for
Revolving
Loans
|
|
|
|
Less
than or equal to 3.00:1.00
|
1.50%
|
|
|
Greater
than 3.00:1.00 but less than or equal to 3.50:1.00
|
1.75%
|
||
|
Greater
than 3.50:1.00 but less than or equal to 4.00:1.00
|
2.00%
|
||
|
Greater
than 4.00:1.00
|
2.25%
|
;
provided that until the first Margin Reset Date, the Applicable LIBOR Margin
for
Revolving Loans that are LIBOR Loans shall be 2.25%. As set forth in subsection
2.2A, and except as provided for therein, the Applicable LIBOR Margin shall
be
adjusted as necessary on each Margin Reset Date.
“Approved
Fund”
means
any Fund that is managed or advised by a Lender, the same investment advisor
as
such Lender or by an Affiliate of such Lender or investment
advisor.
“Asset
Sale”
means
the sale (in any single transaction or related series of transactions) by
Borrower or any of its Subsidiaries to any Person other than Borrower or any
of
its wholly-owned Subsidiaries of (i) any of the Capital Stock of any
Subsidiary of Borrower, (ii) substantially all of the assets of any
division or line of business of Borrower or any of its Subsidiaries, or
(iii) any other assets (whether tangible or intangible) of Borrower
or any
of its Subsidiaries (other than (a) gaming equipment sold in the ordinary
course of business to the extent the proceeds of such sale are promptly
reinvested in other gaming equipment, (b) any such other assets to the
extent that the aggregate value of such assets sold in any single transaction
or
related series of transactions is equal to $250,000 or less, and (c) Capital
Stock of Borrower).
“Assignment
Agreement”
means
an Assignment Agreement in substantially the form of Exhibit
X
annexed
hereto.
“Bankruptcy Code”
means
Title 11 of the United States Code entitled “Bankruptcy”.
“Base
Rate”
means,
at any time, the higher of (i) the Reference Rate or (ii) the
rate
which is 0.50% in excess of the Federal Funds Effective Rate.
“Base
Rate Loans”
means
Loans bearing interest at rates determined by reference to the Base Rate as
provided in subsection 2.2A.
“Borrower”
has the
meaning assigned to that term in the introduction to this
Agreement.
“Business
Day”
means
(i) any day excluding Saturday, Sunday and any day which is a legal
holiday
under the laws of the State of New York or is a day on which banking
institutions located in such state are authorized or required by law or other
governmental action to close, and (ii) with respect to all notices,
determinations, fundings and payments in connection with the Adjusted LIBOR
or
any LIBOR Loan, any day that (a) is a Business Day described in clause
(i)
above, and (b) is a day for trading by and between banks in Dollar deposits
in the London Interbank Market.
“Capital
Lease”,
as
applied to any Person, means any lease of any property (whether real, personal
or mixed) by that Person as lessee that, in conformity with GAAP, is accounted
for as a capital lease on the balance sheet of that Person.
“Capital
Stock”
means
(i) in the case of a corporation, capital stock, (ii) in the case of an
association or business entity, any and all shares, interests, participations,
rights or other equivalents (however designated) of capital stock, (iii) in
the
case of a partnership, partnership interests (whether general or limited),
(iv)
in the case of a limited liability company, membership interests, and (v) any
other interest or participation that confers on a Person the right to receive
a
share of the profits and losses of, or distributions of assets of, the issuing
Person.
“Cash”
means
money, currency or a credit balance in a Deposit Account.
“Cash
Equivalents”
means,
as at any date of determination, (i) marketable securities (a) issued
or directly and unconditionally guaranteed as to interest and principal by
the
United States Government or (b) issued by any agency of the United States
the obligations of which are backed by the full faith and credit of the United
States, in each case maturing within one year after such date;
(ii) marketable direct obligations issued by any state of the United
States
of America or any political subdivision of any such state or any public
instrumentality thereof, in each case maturing within one year after such date
and having, at the time of the acquisition thereof, the highest rating
obtainable from either S&P or Xxxxx’x; (iii) commercial paper maturing
no more than one year from the date of creation thereof and having, at the
time
of the acquisition thereof, a rating of at least A-1 from S&P or at least
P-1 from Xxxxx’x; (iv) certificates of deposit or bankers’ acceptances
maturing within one year after such date and issued or accepted by any Lender
or
by any commercial bank organized under the laws of the United States of America
or any state thereof or the District of Columbia that (a) is at least
“adequately capitalized” (as defined in the regulations of its primary Federal
banking regulator) and (b) has Tier 1 capital (as defined in such
regulations) of not less than $100,000,000; and (v) shares of any money
market mutual fund that (a) has at least 95% of its assets invested
continuously in the types of investments referred to in clauses (i) and (ii)
above, (b) has net assets of not less than $500,000,000, and (c) has
the highest rating obtainable from either S&P or Xxxxx’x.
“CCSC”
means
CCSC Blackhawk, Inc., a Colorado corporation.
“CCSC
Property”
means
the real property, including the Gaming Facility and all other buildings,
fixtures, parking spaces and other improvements located thereon, located on
the
Northwest corner of Mill and Main Streets in Black Hawk, Colorado.
“Certificate
re: Non-Bank Status”
means a
certificate substantially in the form of Exhibit XVI annexed hereto delivered
by
a Lender to Administrative Agent pursuant to subsection 2.7B(iii).
“Change
in Control”
means
any of the following: (i) Isle of Capri Casinos, Inc. shall sell, transfer
or otherwise dispose of (including by means of foreclosure) any issued and
outstanding Capital Stock of Borrower at any time owned by Isle of Capri
Casinos, Inc. and (ii) the failure at any time of Isle of Capri Casinos, Inc.,
to directly or indirectly beneficially own and control at least 57% of the
issued and voting outstanding Capital Stock of Borrower. As used herein, the
term “beneficially own” or “beneficial ownership” shall have the meaning set
forth in the Exchange Act and the rules and regulations promulgated
thereunder.
“CIBC”
has the
meaning assigned to that term in the introduction to this
Agreement.
“Co-Documentation
Agents”
has the
meaning assigned to that term in the introduction to this
Agreement.
“Collateral”
means,
collectively, all of the real, personal and mixed property (including Capital
Stock) in which Liens are purported to be granted pursuant to the Collateral
Documents as security for the Obligations.
“Collateral
Documents”
means
the Security Agreement, the Mortgages, the Deposit Account Control Agreements,
the Acknowledgement and Consent and all other instruments or documents delivered
by any Loan Party pursuant to this Agreement or any of the other Loan Documents
in order to grant to Administrative Agent, on behalf of Lenders, a Lien on
any
real, personal or mixed property of that Loan Party as security for the
Obligations.
“Commitments”
means
the commitments of Lenders to make Loans as set forth in
subsection 2.1A.
“Compliance
Certificate”
means a
certificate substantially in the form of Exhibit VII
annexed
hereto delivered to Administrative Agent and Lenders by Borrower pursuant to
subsection 6.1(iv).
“Confidential
Information Memorandum”
means
that certain Confidential Information Memorandum relating to Borrower dated
September, 2005.
“Conforming
Leasehold Interest”
means
any Recorded Leasehold Interest as to which the lessor has agreed in writing
for
the benefit of Administrative Agent (which writing has been delivered to
Administrative Agent), whether under the terms of the applicable lease, under
the terms of a Landlord Consent and Estoppel, or otherwise, to the matters
described in the definition of “Landlord Consent and Estoppel,” which interest,
if a subleasehold or sub-subleasehold interest, is not subject to any contrary
restrictions contained in a superior lease or sublease.
“Consolidated
Capital Expenditures”
means,
for any period, the sum of (i) the aggregate of all expenditures (whether paid
in cash or other consideration or accrued as a liability and including that
portion of Capital Leases which is capitalized on the consolidated balance
sheet
of Borrower and its Subsidiaries) by Borrower and its Subsidiaries during that
period that, in conformity with GAAP, are included in “additions to property,
plant or equipment” or comparable items reflected in the consolidated statement
of cash flows of Borrower and its Subsidiaries plus (ii) to the extent not
covered by clause (i) of this definition, the aggregate of all expenditures
of
Borrower and its Subsidiaries during that period to acquire (by purchase or
otherwise) the business, property or fixed assets of any Person, or the Capital
Stock of any Person that, as a result of such acquisition, becomes a Subsidiary
of Borrower.
“Consolidated
EBITDA”
means,
for any period, the sum, without duplication, of the amounts for such period
of
(i) Consolidated Net Income, (ii) Consolidated Interest Expense,
(iii) total depreciation expense, (iv) total amortization expense,
(v)
Management Fees, (vi) other non-recurring and non-cash items reducing
Consolidated Net Income but not requiring the expenditure of cash, (vii)
Transaction Costs, (viii) provisions for taxes based on income, and
(ix) pre-opening expense less
the sum
of (x) interest income and (y) other non-recurring items increasing
Consolidated Net Income but not constituting the receipt of cash, all of the
foregoing as determined on a consolidated basis for Borrower and its
Subsidiaries in conformity with GAAP.
“Consolidated
Excess Cash Flow”
means,
for any period, an amount (if positive) equal to (i) the sum, without
duplication, of the amounts for such period of Consolidated EBITDA (determined
by adding back thereto any amounts deducted in the calculation of Consolidated
Net Income that were paid, incurred or accrued in violation of any of the
provisions of this Agreement) minus
(ii) the sum, without duplication, of the amounts for such period of
(a) scheduled repayments of principal of Consolidated Total Debt,
(b) Consolidated Capital Expenditures (net of any proceeds of any related
financings with respect to such expenditures), (c) Cash interest expense,
(d) Management Fees, and (e) Permitted Tax Distributions made by
Borrower.
“Consolidated
Fixed Charges”
means,
for any period, the sum (without duplication) of the amounts for such period
of
(i) Consolidated Interest Expense paid in cash plus capitalized interest
less interest income, (ii) all scheduled repayments of principal of Consolidated
Total Debt required to be made by Borrower or any of its Subsidiaries (whether
or not such payments are actually made), (iii) Permitted Tax Distributions
made
(or permitted to be made) by Borrower and (iv) all Restricted Junior
Payments made by Borrower or any of its Subsidiaries, all of the foregoing
as
determined on a consolidated basis for Borrower and its Subsidiaries in
conformity with GAAP.
“Consolidated
Interest Expense”
means,
for any period, total interest expense (including that portion attributable
to
Capital Leases in accordance with GAAP) of Borrower and its Subsidiaries on
a
consolidated basis with respect to all outstanding Indebtedness of Borrower
and
its Subsidiaries, including all commissions, discounts and other fees and
charges owed with respect to letters of credit and bankers’ acceptance financing
and net costs under Interest Rate Agreements, but excluding, however, any
amounts referred to in subsection 2.3 payable to Administrative Agent,
Lead
Arranger and Lenders on or before the Effective Date.
“Consolidated
Net Income”
means,
for any period, the net income (or loss) of Borrower and its Subsidiaries on
a
consolidated basis for such period taken as a single accounting period
determined in conformity with GAAP; provided
that
there shall be excluded (i) the income (or loss) of any Person accrued prior
to
the date it becomes a Subsidiary of Borrower or is merged into or consolidated
with Borrower or any of its Subsidiaries or that Person’s assets are acquired by
Borrower or any of its Subsidiaries and (ii) the income of any Subsidiary of
Borrower to the extent that the declaration or payment of dividends or similar
distributions by that Subsidiary of that income is not at the time permitted
by
operation of the terms of its charter or any agreement, instrument, judgment,
decree, order, statute, rule or governmental regulation applicable to that
Subsidiary.
“Consolidated
Rental Payments”
means,
for any period, the aggregate amount of all rents paid or payable by Borrower
and its Subsidiaries on a consolidated basis during that period under all
Operating Leases (other than Excluded Leases) to which Borrower or any of its
Subsidiaries is a party as lessee.
“Consolidated
Total Debt”
means,
as at any date of determination, an aggregate amount equal to (a) the aggregate
principal amount of all Indebtedness of Borrower and its Subsidiaries plus
(b)
the aggregate amount of Contingent Obligations of Borrower and its Subsidiaries
where the primary obligation of such Contingent Obligation constitutes
Indebtedness or a makewell, keepwell or other similar agreement (but excluding
Contingent Obligations under Hedge Agreements) plus (c) the face amount of
any
outstanding letters of credit (including Letters of Credit) less (d) the
aggregate amount of Cash and Cash Equivalents of Borrower and its Subsidiaries
(including funds escrowed by Borrower or one of its Subsidiaries to pay the
costs of constructing the Public Improvements) in excess of $7,500,000 and
less
(e) the aggregate principal amount of Indebtedness incurred pursuant to
subsection 7.1(vii), in each case determined on a consolidated basis in
accordance with GAAP.
“Consolidated
Total Leverage Ratio”
means,
as at the last day of any Fiscal Quarter, the ratio of (a) Consolidated
Total Debt as of the last day of the Fiscal Quarter for which such determination
is being made, to (b) Consolidated EBITDA, after giving effect on a pro forma
basis to any acquisitions of any assets or any Persons pursuant to transactions
permitted under this Agreement or Expansion Capital Expenditures permitted
under
subsection 7.8B and/or Asset Sales permitted under subsection 7.7, for the
consecutive four Fiscal Quarters ending on the last day of the Fiscal Quarter
for which such determination is being made.
“Contingent
Obligation”,
as
applied to any Person, means any direct or indirect liability, contingent or
otherwise, of that Person (i) with respect to any Indebtedness, lease,
dividend or other obligation of another if the primary purpose or intent thereof
by the Person incurring the Contingent Obligation is to provide assurance to
the
obligee of such obligation of another that such obligation of another will
be
paid or discharged, or that any agreements relating thereto will be complied
with, or that the holders of such obligation will be protected (in whole or
in
part) against loss in respect thereof, (ii) with respect to any letter
of
credit issued for the account of that Person or as to which that Person is
otherwise liable for reimbursement of drawings, or (iii) under Hedge
Agreements. Contingent Obligations shall include (a) the direct or indirect
guaranty, endorsement (otherwise than for collection or deposit in the ordinary
course of business), co-making, discounting with recourse or sale with recourse
by such Person of the obligation of another, including, without limitation,
any
credit support agreements, makewell agreements, keepwell agreements and any
other agreements evidencing similar obligations, (b) the obligation to make
take-or-pay or similar payments if required regardless of non-performance by
any
other party or parties to an agreement, and (c) any liability of such Person
for
the obligation of another through any agreement (contingent or otherwise)
(X) to purchase, repurchase or otherwise acquire such obligation or
any
security therefor, or to provide funds for the payment or discharge of such
obligation (whether in the form of loans, advances, stock purchases, capital
contributions or otherwise) or (Y) to maintain the solvency or any balance
sheet item, level of income or financial condition of another if, in the case
of
any agreement described under subclauses (X) or (Y) of this sentence, the
primary purpose or intent thereof is as described in the preceding sentence.
The
amount of any Contingent Obligation shall be equal to the amount of the
obligation so guaranteed or otherwise supported or, if less, the amount to
which
such Contingent Obligation is specifically limited. The obligations so
guaranteed or otherwise supported (if other than Indebtedness), including,
without limitation, guarantees of minimum room rates or occupancy levels, shall
be in form and substance satisfactory to Administrative Agent.
“Contractual
Obligation”,
as
applied to any Person, means any provision of any Security issued by that Person
or of any Material Contract to which that Person is a party or by which it
or
any of its properties is bound or to which it or any of its properties is
subject.
“Credit
Agreement”
means
this Agreement.
“Currency
Agreement”
means
any foreign exchange contract, currency swap agreement, futures contract, option
contract, synthetic cap or other similar agreement or arrangement to which
Borrower or any of its Subsidiaries is a party.
“Deposit
Account”
means a
demand, time, savings, passbook, brokerage or similar account maintained with
a
Person or securities intermediary engaged in the business of banking, including
a savings bank, savings and loan association, credit union or trust company,
other than an account evidenced by a negotiable certificate of
deposit.
“Deposit
Account Control Agreement”
means
(i) a Deposit Account Control Agreement executed and delivered by Borrower,
Administrative Agent and the financial institution at which a Deposit Account
is
maintained, substantially in the form of Exhibit
XVII
annexed
hereto or (ii) an agreement, satisfactory in form and substance to
Administrative Agent and executed by the financial institution at which a
Deposit Account is maintained, pursuant to which such financial institution
confirms and acknowledges Administrative Agent’s First Priority security
interest in, and sole dominion and control over, such Deposit Account, agrees
that such financial institution will comply with instructions originated by
Administrative Agent as to disposition of funds in the Deposit Account, without
further consent by Borrower or any Subsidiary, and waives its right to set
off
with respect to amounts in the Deposit Account, with customary limited
exceptions acceptable to Administrative Agent.
“Dollars”
and the
sign “$”
mean
the lawful money of the United States of America.
“Effective
Date”
means
the date on or prior to October 24, 2005 on which the conditions precedent
set
forth in Section 4.1 have been satisfied or waived.
“Effective
Date Mortgaged Property”
has the
meaning assigned to that term in subsection 4.1F(i).
“Effective
Date Mortgage Policies”
has the
meaning assigned to that term in subsection 4.1F(ii).
“Effective
Date Mortgages”
has the
meaning assigned to that term in subsection 4.1F(i).
“Effective
Date Title Endorsements”
has the
meaning assigned to that term in subsection 4.1F(ii)
“Eligible
Assignee”
means a
Person that is (I) to the extent required under applicable Gaming Laws,
registered or licensed with, approved or found suitable by, or not disapproved,
denied a license or approval or found unsuitable by (whichever may be required
under applicable Gaming Laws), any applicable Gaming Authorities, and (II)(A)
(i) a commercial bank organized under the laws of the United States
or any
state thereof; (ii) a savings and loan association or savings bank
organized under the laws of the United States or any state thereof; (iii) a
commercial bank organized under the laws of any other country or a political
subdivision thereof (provided
that
(x) such bank is acting through a branch or agency located in the United
States or (y) such bank is organized under the laws of a country that
is a
member of the Organization for Economic Cooperation and Development or a
political subdivision of such country); or (iv) any other entity which
is
an “accredited investor” (as defined in Regulation D under the Securities Act)
which extends credit or buys loans as one of its businesses including insurance
companies, mutual funds, lease financing companies and investment funds;
(B) a Lender, an Affiliate of a Lender, or an Approved Fund; or (C)
any
other Person (other than a natural Person) approved by (1) Administrative Agent,
(2) in the case of any assignment of a Revolving Loan, each Issuing Lender,
and
(3) the Borrower unless (x) such Person is taking delivery of an assignment
in
connection with physical settlement of a credit derivatives transaction, or
(y)
an Event of Default or Potential Event of Default has occurred and is continuing
(each such approval not to be unreasonably withheld or delayed); provided
that no
Affiliate of Borrower shall be an Eligible Assignee.
“Employee
Benefit Plan”
means
any “employee benefit plan” as defined in Section 3(3) of ERISA which is or was
maintained or contributed to by Borrower, any of its Subsidiaries or any of
their respective ERISA Affiliates.
“Environmental
Claim”
means
any investigation, notice, notice of violation, claim, action, suit, proceeding,
demand, abatement order or other order or directive (conditional or otherwise),
by any Government Authority or any other Person, arising (i) pursuant
to or
in connection with any actual or alleged violation of any Environmental Law,
(ii) in connection with any Hazardous Materials or any actual or alleged
Hazardous Materials Activity, or (iii) in connection with any actual
or
alleged damage, injury, threat or harm to health, safety, natural resources
or
the environment.
“Environmental
Laws”
means
any and all current or future statutes, ordinances, orders, rules, regulations,
guidance documents, judgments, Governmental Authorizations, or any other
requirements of any Government Authority relating to (i) environmental
matters, including those relating to any Hazardous Materials Activity,
(ii) the generation, use, storage, transportation or disposal of Hazardous
Materials, or (iii) occupational safety and health, industrial hygiene,
land use or the protection of human, plant or animal health or welfare, in
any
manner applicable to Borrower or any of its Subsidiaries or any Facility,
including the Comprehensive Environmental Response, Compensation, and Liability
Act (42 U.S.C. § 9601 et seq.),
the
Hazardous Materials Transportation Act (49 U.S.C. § 1801 et seq.),
the
Resource Conservation and Recovery Act (42 U.S.C. § 6901 et seq.),
the
Federal Water Pollution Control Act (33 U.S.C. § 1251 et seq.),
the
Clean Air Act (42 U.S.C. § 7401 et seq.),
the
Toxic Substances Control Act (15 U.S.C. § 2601 et seq.),
the
Federal Insecticide, Fungicide and Rodenticide Act (7 U.S.C. §136 et seq.),
the
Occupational Safety and Health Act (29 U.S.C. § 651 et seq.),
the
Oil Pollution Act (33 U.S.C. § 2701 et
seq.)
and the
Emergency Planning and Community Right-to-Know Act (42 U.S.C. § 11001
et seq.),
each
as amended or supplemented, any analogous present or future state or local
statutes or laws, and any regulations promulgated pursuant to any of the
foregoing.
“Environmental
Indemnity Agreement”
means
the Amended and Restated Environmental Indemnity Agreement executed by the
Loan
Parties substantially in the form of Exhibit
XVIII
annexed
hereto.
“ERISA”
means
the Employee Retirement Income Security Act of 1974.
“ERISA
Affiliate” means,
as
applied to any Person, (i) any corporation that is a member of a controlled
group of corporations within the meaning of Section 414(b) of the Internal
Revenue Code of which that Person is a member; (ii) any trade or business
(whether or not incorporated) that is a member of a group of trades or
businesses under common control within the meaning of Section 414(c) of the
Internal Revenue Code of which that Person is a member; and (iii) any
member of an affiliated service group within the meaning of Section 414(m)
or
(o) of the Internal Revenue Code of which that Person, any corporation described
in clause (i) above or any trade or business described in clause (ii) above
is a
member. Any former ERISA Affiliate of a Person or any of its Subsidiaries shall
continue to be considered an ERISA Affiliate of such Person or such Subsidiary
within the meaning of this definition with respect to the period such entity
was
an ERISA Affiliate of such Person or such Subsidiary and with respect to
liabilities arising after such period (but attributable to the period such
entity was an ERISA Affiliate of such Person or such Subsidiary) for which
such
Person or such Subsidiary could be liable under the Internal Revenue Code or
ERISA.
“ERISA
Event”
means
(i) a “reportable event” within the meaning of Section 4043 of ERISA and
the regulations issued thereunder with respect to any Pension Plan (excluding
those for which the provision for 30-day notice to the PBGC has been waived
by
regulation); (ii) the failure to meet the minimum funding standard of
Section 412 of the Internal Revenue Code with respect to any Pension Plan
(whether or not waived in accordance with Section 412(d) of the Internal Revenue
Code) or the failure to make by its due date a required installment under
Section 412(m) of the Internal Revenue Code with respect to any Pension Plan
or
the failure to make any required contribution to a Multiemployer Plan;
(iii) the provision by the administrator of any Pension Plan pursuant
to
Section 4041(a)(2) of ERISA of a notice of intent to terminate such plan in
a
distress termination described in Section 4041(c) of ERISA; (iv) the
withdrawal by Borrower, any of its Subsidiaries or any of their respective
ERISA
Affiliates from any Pension Plan with two or more contributing sponsors or
the
termination of any such Pension Plan resulting in liability pursuant to Section
4063 or 4064 of ERISA; (v) the institution by the PBGC of proceedings
to
terminate any Pension Plan, or the occurrence of any event or condition which
might constitute grounds under ERISA for the termination of, or the appointment
of a trustee to administer, any Pension Plan; (vi) the imposition of
liability on Borrower, any of its Subsidiaries or any of their respective ERISA
Affiliates pursuant to Section 4062(e) or 4069 of ERISA or by reason of the
application of Section 4212(c) of ERISA; (vii) the withdrawal of Borrower,
any of its Subsidiaries or any of their respective ERISA Affiliates in a
complete or partial withdrawal (within the meaning of Sections 4203 and 4205
of
ERISA) from any Multiemployer Plan if there is any potential liability therefor,
or the receipt by Borrower, any of its Subsidiaries or any of their respective
ERISA Affiliates of notice from any Multiemployer Plan that it is in
reorganization or insolvency pursuant to Section 4241 or 4245 of ERISA, or
that
it intends to terminate or has terminated under Section 4041A or 4042 of ERISA;
(viii) the occurrence of an act or omission which could give rise to
the
imposition on Borrower, any of its Subsidiaries or any of their respective
ERISA
Affiliates of fines, penalties, taxes or related charges under Chapter 43 of
the
Internal Revenue Code or under Section 409, Section 502(c), (i) or (l), or
Section 4071 of ERISA in respect of any Employee Benefit Plan; (ix) the
assertion of a material claim (other than routine claims for benefits) against
any Employee Benefit Plan other than a Multiemployer Plan or the assets thereof,
or against Borrower, any of its Subsidiaries or any of their respective ERISA
Affiliates in connection with any Employee Benefit Plan; (x) receipt from the
Internal Revenue Service of notice of the failure of any Pension Plan (or any
other Employee Benefit Plan intended to be qualified under Section 401(a) of
the
Internal Revenue Code) to qualify under Section 401(a) of the Internal Revenue
Code, or the failure of any trust forming part of any Pension Plan to qualify
for exemption from taxation under Section 501(a) of the Internal Revenue Code;
or (xi) the imposition of a Lien pursuant to Section 401(a)(29) or 412(n) of
the
Internal Revenue Code or pursuant to ERISA with respect to any Pension Plan.
“Event
of Default”
means
each of the events set forth in Section
8.
“Exchange
Act”
means
the Securities Exchange Act of 1934.
“Excluded
Leases”
has the
meaning assigned to that term in subsection 7.14.
“Existing
Credit Agreement”
has the
meaning assigned to that term in the Recitals.
“Existing
Lenders”
has the
meaning assigned to that term in the Recitals.
“Existing
Loan Documents”means
the
“Loan Documents” as defined in the Existing Credit Agreement.
“Expansion
Agreements”
means,
collectively, the Isle-Riviera Agreement and the Subordinated PIK Indebtedness
Agreement.
“Expansion
Capital Expenditures”
means
any Consolidated Capital Expenditures by Borrower or any of its Subsidiaries
(a)
which are made with respect to any Related Business that is, or after giving
effect to such expenditures will be, owned by Borrower or any of its
Subsidiaries, or (b) which further expand or enhance any Gaming Facility owned,
leased, operated or used by Borrower or any of its Subsidiaries existing or
under construction as of the Effective Date, including the Expansion Project,
and which are not properly characterized as Maintenance Capital Expenditures
or
Public Improvement Capital Expenditures.
“Expansion
Project”
means
the expansion project that includes additions to and renovations of the casinos
currently located on the Isle-Black Hawk Property and the CCSC Property, a
new
parking garage with approximately 1,300 spaces, additional food, beverage and
entertainment amenities, connecting skywalks between the Isle-Black Hawk
Property and the CCSC Property and approximately 162 additional hotel
rooms.
“Facilities”
means
all real property (including all buildings, fixtures or other improvements
located thereon and all Gaming Facilities) now, hereafter or heretofore owned,
leased, operated or used by Borrower or any of its Subsidiaries or any of their
respective predecessors or Affiliates.
“Federal
Funds Effective Rate”
means,
for any period, a fluctuating interest rate equal for each day during such
period to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers, as published for such day (or, if such day is not a Business
Day,
for the next preceding Business Day) by the Federal Reserve Bank of New York,
or, if such rate is not so published for any day which is a Business Day, the
average of the quotations for such day on such transactions received by
Administrative Agent from three Federal funds brokers of recognized standing
selected by Administrative Agent.
“Financial
Condition Certificate”
means
the Financial Condition Certificate executed and delivered by Borrower on the
Effective Date, substantially in the form of Exhibit XI
annexed
hereto.
“First
Priority”
means,
with respect to any Lien purported to be created in any Collateral pursuant
to
any Collateral Document, that (i) such Lien is perfected and has priority
over any other Lien on such Collateral (other than Permitted Encumbrances which
as a matter of law have priority over any other Lien irrespective of the prior
perfection or filing of such other Lien) and (ii) such Lien is the only
Lien (other than Liens permitted pursuant to subsection 7.2)
to
which such Collateral is subject.
“Fiscal
Quarter”
means a
fiscal quarter of any Fiscal Year.
“Fiscal
Year”
means
the fiscal year of Borrower and its Subsidiaries as determined on the basis
of a
four consecutive Fiscal Quarter period ending on the last Sunday in April where
(x) in the case of every Fiscal Year other than the 2006 Fiscal Year, each
such
Fiscal Quarter consists of two four-week monthly periods and one five-week
monthly period or thirteen total weeks for each such Fiscal Quarter and such
Fiscal Year shall consist of a total of fifty-two weeks, and (y) in the case
of
the 2006 Fiscal Year, each of the first three such Fiscal Quarters shall be
for
a period of thirteen total weeks, the last such Fiscal Quarter shall be for
a
period of fourteen total weeks consisting of one four-week monthly period and
two five-week monthly periods and such Fiscal Year shall consist of a total
of
fifty-three weeks.
“Flood
Hazard Property”
means
any Effective Date Mortgaged Property or any Additional Mortgaged Property
if
such property is located in an area designated by the Federal Emergency
Management Agency as having special flood or mud slide hazards.
“Fund”
means
any Person (other than a natural Person) that is (or will be) engaged in making,
purchasing, holding or otherwise investing in commercial loans and similar
extensions of credit in the ordinary course of its business.
“Funding
Date”
means
the date of the funding of a Loan.
“GAAP”
means,
subject to the limitations on the application thereof set forth in subsection
1.2,
generally accepted accounting principles set forth in opinions and
pronouncements of the Accounting Principles Board of 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 approved by a significant segment of the accounting profession, in each
case as the same are applicable to the circumstances as of the date of
determination.
“Gaming
Authority”
means
any Government Authority that holds regulatory, licensing or permit authority
over gambling, gaming or Gaming Facility activities conducted by Borrower or
any
of its Subsidiaries within its jurisdiction.
“Gaming
Authorizations”
means
any and all Governmental Authorizations (i) necessary to enable Borrower or
any
of its Subsidiaries to engage in the casino, gambling or gaming business or
otherwise continue to conduct its business as it is conducted on the Effective
Date, or (ii) required by any Gaming Authority or under any Gaming
Law.
“Gaming
Facility”
means
any gaming establishment and other property or assets directly ancillary thereto
or used in connection therewith, including, any casinos, hotels, resorts, race
tracks, theaters, parking facilities, recreational vehicle parks, timeshare
operations, retail shops, restaurants, other buildings, land, golf courses
and
other recreation and entertainment facilities, marinas, vessels, barges, ships
and related equipment.
“Gaming
Laws”
means
all statutes, rules, regulations, ordinances, codes, administrative or judicial
orders or decrees or other laws pursuant to which any Gaming Authority possesses
regulatory, licensing or permit authority over gambling, gaming or Gaming
Facility activities conducted by Borrower or any of its Subsidiaries within
its
jurisdiction.
“Governing
Body”
means
the board of directors or other body having the power to direct or cause the
direction of the management and policies of a Person that is a corporation,
partnership, trust or limited liability company.
“Government
Authority”
means
any governmental or regulatory body, agency, commission, central bank, board,
bureau, department, office, organ or instrumentality, or any court and any
political subdivision or department thereof, in each case whether federal,
state, local or foreign, including any Gaming Authority.
“Governmental
Authorization”
means
any permit, license, registration, authorization, plan, directive, consent,
order or consent decree of or from, or notice to, any Government
Authority.
“Greenshoe
Option”
has the
meaning assigned to that term in subsection 2.1A(iii).
“Hazardous
Materials”
means
(i) any chemical, material or substance at any time included in the
definition of “hazardous substances”, “hazardous wastes”, “hazardous materials”,
“extremely hazardous waste”, “acutely hazardous waste”, “radioactive waste”,
“biohazardous waste”, “pollutant”, “toxic pollutant”, “contaminant”, “restricted
hazardous waste”, “infectious waste”, “toxic substances”, in any Environmental
Law or any other term or expression intended to define, list or classify
substances by reason of properties harmful to health, safety or the indoor
or
outdoor environment (including harmful properties such as ignitability,
corrosivity, reactivity, carcinogenicity, toxicity, reproductive toxicity,
“TCLP
toxicity” or “EP toxicity” or words of similar import under any applicable
Environmental Laws); (ii) any oil, petroleum, petroleum fraction or
petroleum derived substance; (iii) any drilling fluids, produced waters
and
other wastes associated with the exploration, development or production of
crude
oil, natural gas or geothermal resources; (iv) any flammable substances
or
explosives; (v) any radioactive materials; (vi) any
asbestos-containing materials; (vii) urea formaldehyde foam insulation;
(viii) electrical equipment which contains any oil or dielectric fluid
containing polychlorinated biphenyls; (ix) pesticides; and (x) any
other chemical, material or substance, exposure to which is prohibited, limited
or regulated by any Government Authority or which may or could pose a hazard
to
the health and safety of the owners, occupants or any Persons in the vicinity
of
any Facility or to the indoor or outdoor environment.
“Hazardous
Materials Activity”
means
any past, current, proposed or threatened activity, event or occurrence
involving any Hazardous Materials, including the use, manufacture, possession,
storage, holding, presence, existence, location, Release, threatened Release,
discharge, placement, generation, transportation, processing, construction,
treatment, abatement, removal, remediation, disposal, disposition or handling
of
any Hazardous Materials, and any corrective action or response action with
respect to any of the foregoing.
“Hedge
Agreement”
means
(i) an Interest Rate Agreement designed to hedge against fluctuations in
interest rates, (ii) any Currency Agreement designed to hedge against
fluctuations in currency values, and (iii) any other agreement or arrangement
to
which Borrower or any of its Subsidiaries is a party which xxxxxx against or
is
based upon fluctuations in the value of the equity Securities of any Person,
or
any equity forward agreements or similar agreements or
arrangements.
“Increasing
Lender”
has the
meaning assigned to that term in subsection 2.1A(iii).
“Indebtedness”,
as
applied to any Person, means, without duplication, (i) all indebtedness
for
borrowed money, (ii) that portion of obligations with respect to Capital
Leases that is properly classified as a liability on a balance sheet in
conformity with GAAP, (iii) notes payable and drafts accepted representing
extensions of credit whether or not representing obligations for borrowed money,
(iv) any obligation owed for all or any part of the deferred purchase
price
of property or services (excluding any such obligations incurred under ERISA),
which purchase price is (a) due more than six months from the date of
incurrence of the obligation in respect thereof or (b) evidenced by
a note
or similar written instrument, (v) all obligations in respect of any
preferred Capital Stock of such Person subject to mandatory sinking fund
payments, redemption or other acceleration, (vi) all indebtedness secured
by any Lien on any property or asset owned or held by that Person regardless
of
whether the indebtedness secured thereby shall have been assumed by that Person
or is nonrecourse to the credit of that Person, (vii) the face amount
of
all letters of credit or bankers’ acceptances that such Person is obligated to
reimburse the related letter of credit bank for (a) the principal balance
outstanding under any synthetic lease, tax retention operating lease,
off-balance sheet loan or similar off-balance sheet financing product, and
(b) the Indebtedness of any partnership or unincorporated joint venture
in
which such Person is a general partner or a joint venturer, and (viii) all
Contingent Obligations of such Person in respect of the foregoing. Obligations
under Interest Rate Agreements and Currency Agreements constitute (1) in the
case of Hedge Agreements, Contingent Obligations, and (2) in all other cases,
Investments, and in neither case constitute Indebtedness. For the avoidance
of
doubt, the Excluded Leases are not Indebtedness.
“Indemnitee”
has the
meaning assigned to that term in subsection 10.3.
“Intellectual
Property”
means
all patents, patent rights, patent applications, licenses, inventions, trade
secrets, trademarks, tradenames, service marks, copyrights, technology,
software, know-how and proprietary techniques (including processes and
substances) used in or necessary for the conduct of the business of Borrower
and
its Subsidiaries as currently conducted that are material to the condition
(financial or otherwise), business or operations of Borrower and its
Subsidiaries, taken as a whole.
“Interest
Payment Date”
means
(i) with respect to any Base Rate Loan, the last Business Day of each
March, June, September and December of each year, commencing on the first such
date to occur after the Effective Date, and (ii) with respect to any
LIBOR
Loan, the last day of each Interest Period applicable to such Loan; provided
that in
the case of each Interest Period of six months, “Interest Payment Date” shall
also include the date that is three months after the commencement of such
Interest Period.
“Interest
Period”
has the
meaning assigned to that term in subsection 2.2B.
“Interest
Rate Agreement”
means
any interest rate swap agreement, interest rate cap agreement, interest rate
collar agreement or other similar agreement or arrangement to which Borrower
or
any of its Subsidiaries is a party.
“Interest
Rate Determination Date”
means,
with respect to any Interest Period, the second Business Day prior to the first
day of such Interest Period.
“Internal
Revenue Code”
means
the Internal Revenue Code of 1986.
“Investment”
means
(i) any direct or indirect purchase or other acquisition by Borrower
or any
of its Subsidiaries of, or of a beneficial interest in, any Securities of any
other Person (including any Subsidiary of Borrower), (ii) any direct
or
indirect redemption, retirement, purchase or other acquisition for value, by
any
Subsidiary of Borrower from any Person other than Borrower or any of its
Subsidiaries, of any equity Securities of such Subsidiary, (iii) any
direct
or indirect loan, advance (other than advances to employees for moving,
entertainment and travel expenses, drawing accounts and similar expenditures
in
the ordinary course of business) or capital contribution by Borrower or any
of
its Subsidiaries to any other Person (other than a wholly-owned Subsidiary
of
Borrower), including all Indebtedness and accounts receivable from that other
Person that are not current assets or did not arise from sales to that other
Person in the ordinary course of business, or (iv) Interest Rate Agreements
or Currency Agreements not constituting Hedge Agreements. The amount of any
Investment shall be the excess of (x) the original cost of such Investment
plus
(y) the
cost of all additions thereto, without any adjustments for increases or
decreases in value, or write-ups, write-downs or write-offs with respect to
such
Investment, less
(z) the
aggregate amount of all distributions of Cash or Cash Equivalents constituting
a
return of capital on such Investment.
“Investment
Account” has
the
meaning set forth in subsection 2.4B(iv)(d).
“IP
Collateral”
means,
collectively, the Collateral consisting of rights in or to Intellectual Property
under the Security Agreement.
“Isle-Black
Hawk Property” means
the
approximately 10.1 acre real property, together with the Gaming Facility,
237-room hotel, restaurants, parking structure, event structure and all other
buildings, fixtures or other improvements located thereon, located on the
Southeast corner of Mill and Main Streets in Black Hawk, Colorado.
“Isle-Riviera
Agreement”
means
the agreement between Borrower and Riviera, in form and substance satisfactory
to Administrative Agent, whereby the terms and conditions of the design and
construction of improvements related to the Expansion Project and the use of
proceeds from the issuance of certain assessment or similar bonds are set
forth.
“Issuing
Lender”
means,
with respect to any Letter of Credit, the Lender that agrees or is otherwise
obligated to issue such Letter of Credit, determined as provided in subsection
3.1B(iii).
“Joint
Venture”
means a
joint venture, partnership or other similar arrangement, whether in corporate,
partnership or other legal form; provided
that in
no event shall any corporate Subsidiary of any Person be considered to be a
Joint Venture to which such Person is a party.
“Landlord
Consent and Estoppel” means,
with respect to any Leasehold Property, a letter, certificate or other
instrument in writing from the lessor under the related lease, satisfactory
in
form and substance to Administrative Agent, pursuant to which such lessor
agrees, for the benefit of Administrative Agent, (i) that without any further
consent of such lessor or any further action on the part of the Loan Party
holding such Leasehold Property, such Leasehold Property may be encumbered
pursuant to a Mortgage and may be assigned to the purchaser at a foreclosure
sale or in a transfer in lieu of such a sale (and to a subsequent third party
assignee if Administrative Agent, any Lender, or an Affiliate of either so
acquires such Leasehold Property), (ii) that such lessor shall not terminate
such lease as a result of a default by such Loan Party thereunder without first
giving Administrative Agent notice of such default and at least 60 days (or,
if
such default cannot reasonably be cured by Administrative Agent within such
period, such longer period as may reasonably be required) to cure such default
and (iii) to such other matters relating to such Leasehold Property as
Administrative Agent may reasonably request.
“LC
Reimbursement Amount”
has the
meaning assigned to that term in subsection 3.3B.
“Lead
Arranger” means
CIBC World Markets Corp.
“Leasehold
Property”
means
any leasehold interest of any Loan Party as lessee under any lease of real
property, other than any such leasehold interest designated from time to time
by
Administrative Agent in its sole discretion as not being required to be included
in the Collateral.
“Lender”
and
“Lenders”
means
the Persons identified as “Lenders” and listed on the signature pages of this
Agreement, together with their successors and permitted assigns pursuant to
subsection 10.1;
provided
that the
term “Lenders”, when used in the context of a particular Commitment, shall mean
Lenders having that Commitment.
“Letter
of Credit”
or
“Letters
of Credit”
means
any standby letter of credit or similar instrument issued by Issuing Lender
pursuant to subsection 3.1 for the purpose of supporting
(i) Indebtedness of Borrower or any of its Subsidiaries in respect of
industrial revenue or development bonds or financings, (ii) workers’
compensation liabilities of Borrower or any of its Subsidiaries, (iii) the
obligations of third party insurers of Borrower or any of its Subsidiaries
arising by virtue of the laws of any jurisdiction requiring third party
insurers, (iv) obligations with respect to Capital Leases or Operating
Leases of Borrower or any of its Subsidiaries, and (v) performance,
payment, deposit or surety obligations of Borrower or any of its Subsidiaries,
in any case if required by law or governmental rule or regulation or in
accordance with custom and practice in the industry; provided
that
Letters of Credit may not be issued for the purpose of supporting (a) trade
payables or (b) any Indebtedness constituting “antecedent debt” (as that
term is used in Section 547 of the Bankruptcy Code).
“Letter
of Credit Usage”
means,
as at any date of determination, the sum of (i) the maximum aggregate
amount that is or at any time thereafter may become available for drawing under
all Letters of Credit then outstanding plus
(ii) the aggregate amount of all drawings under Letters of Credit honored
by Issuing Lenders and not theretofore reimbursed by Borrower in any manner,
either directly or out of the proceeds of Revolving Loans pursuant to subsection
3.3B
or
otherwise.
“LIBOR
Loans”
means
Loans bearing interest at rates determined by reference to the Adjusted LIBOR
as
provided in subsection 2.2A.
“License
Revocation”
means
the revocation, failure to renew or suspension of, or the appointment of a
receiver, supervisor or similar official with respect to, any Gaming
Authorization or other casino, gambling or gaming license issued by any Gaming
Authority covering any Gaming Facility owned, leased, operated or used by
Borrower or any of its Subsidiaries.
“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”
or
“Loans”
means
one or more of the Term Loans or Revolving Loans or any combination
thereof.
“Loan
Documents”
means
this Agreement, the Notes, the Letters of Credit (and any applications for,
or
reimbursement agreements or other documents or certificates executed by Borrower
in favor of an Issuing Lender relating to, the Letters of Credit), the
Subsidiary Guaranty, the Acknowledgement and Consent, the Environmental
Indemnity Agreement and the Collateral Documents.
“Loan
Party”
means
Borrower and any of Borrower’s Subsidiaries from time to time executing a Loan
Document, and “Loan
Parties”
means
all such Persons, collectively.
“Maintenance
Capital Expenditures”
means
any Consolidated Capital Expenditures by Borrower or any of its Subsidiaries
that are made to maintain, restore or refurbish the condition or usefulness
of
property of Borrower or any of its Subsidiaries, or otherwise to support the
continuation of such Person’s day-to-day operations as then conducted, but that
are not properly chargeable to repairs and maintenance in accordance with GAAP;
provided,
however, that such term shall not include any Consolidated Capital Expenditures
to restore the condition or usefulness of property to the extent funded from
Net
Insurance/Condemnation Proceeds delivered to Borrower or any of its Subsidiaries
in accordance with the terms of the Loan Documents.
“Management
Agreements”
means
(i) that certain Management Agreement dated as of April 25, 1997,
by
and between Borrower and Isle of Capri Casinos, Inc., as amended April 22,
2003,
pursuant to which Isle of Capri Casinos, Inc. manages the casino located on
the
Isle-Black Hawk Property and the other Gaming Facilities owned by the Loan
Parties (other than the CCSC Property), as in effect on the date hereof, and
(ii) that certain Management Agreement dated as of April 22, 2003, by
and
between Borrower and Isle of Capri Casinos, Inc., pursuant to which Isle of
Capri Casinos, Inc. manages the CCSC Property, as in effect on the date
hereof.
“Management
Fees” means
any
fees paid with respect to a Management Agreement.
“Margin
Determination Certificate” means
an
Officer’s Certificate of Borrower delivered (a) with respect to each Fiscal
Quarter (other than each fourth Fiscal Quarter), together with the most recent
financial statements required to be delivered pursuant to subsection
6.1(ii),
and
(b) with respect to each fourth Fiscal Quarter, within 50 days after
the
last day of such fourth Fiscal Quarter, setting forth in reasonable detail
the
Consolidated Total Leverage Ratio that is applicable as of the last day of
the
fiscal period for which such financial statements and Officer’s Certificate are
being delivered provided that each Margin Determination Certificate to be
delivered pursuant to clause (b) shall be included as part of the Compliance
Certificates for each such Fiscal Quarter.
“Margin
Reset Date”
means
each January 1, April 1, July 1 and October 1 of each year commencing on April
1, 2006.
“Margin
Stock”
has the
meaning assigned to that term in Regulation U of the Board of Governors of
the
Federal Reserve System as in effect from time to time.
“Material
Adverse Effect”
means
(i) a material adverse effect upon the business, operations, properties,
assets, condition (financial or otherwise) or prospects of Borrower and its
Subsidiaries taken as a whole or (ii) the impairment of the ability
of
Borrower and its Subsidiaries taken as a whole to perform, or of Administrative
Agent or Lenders to enforce, the Obligations.
“Material
Contract”
means
any contract, indenture, mortgage, deed of trust, understanding, agreement,
instrument or other arrangement, whether written or oral, to which Borrower
or
any of its Subsidiaries is a party (other than the Loan Documents), for which
breach, nonperformance, cancellation or failure to renew could reasonably be
expected to result in a Material Adverse Effect.
“Material
Leasehold Property”
means a
Leasehold Property reasonably determined by Administrative Agent to be of
material value as Collateral or of material importance to the operations of
Borrower or any of its Subsidiaries.
“Material
License”
means
any Gaming Authorization and any other license, authorization or permit
reasonably determined by Administrative Agent in good faith consultation with
Borrower to be of material importance to the operations of Borrower and its
Subsidiaries.
“Moody’s”
means
Xxxxx’x Investors Service, Inc.
“Mortgage”
means
(i) a security instrument (whether designated as a deed of trust or
a
mortgage or by any similar title) executed and delivered by any Loan Party,
substantially in the form of Exhibit
XIV
annexed
hereto or in such other form as may be approved by Administrative Agent in
its
reasonable discretion, in each case with such changes thereto as may be
reasonably recommended by Administrative Agent’s or Borrower’s local counsel
based on local laws or customary local mortgage or deed of trust practices,
or
(ii) at Administrative Agent’s option, in the case of an Additional
Mortgaged Property, an amendment to an existing Mortgage, in form reasonably
satisfactory to Administrative Agent, adding such Additional Mortgaged Property
to the Real Property Assets encumbered by such existing Mortgage. “Mortgages”
means
all such instruments, including the Effective Date Mortgages, and any Additional
Mortgages, collectively.
“Multiemployer
Plan”
means
any Employee Benefit Plan that is a “multiemployer plan” as defined in Section
3(37) of ERISA.
“Net
Asset Sale Proceeds” means,
with respect to any Asset Sale, Cash payments (including any Cash received
by
way of deferred payment pursuant to, or by monetization of, a note receivable
or
otherwise, but only as and when so received) received from such Asset Sale,
net
of any bona fide direct costs incurred in connection with such Asset Sale,
including (i) income taxes reasonably estimated to be actually payable
within two years of the date of such Asset Sale as a result of any gain
recognized in connection with such Asset Sale; (ii) payment of the
outstanding principal amount of, premium or penalty, if any, and interest on
any
Indebtedness (other than the Loans) that is secured by a Lien on the stock
or
assets in question and that is required to be repaid under the terms thereof
as
a result of such Asset Sale; and (iii) any reasonable brokerage fees,
commissions and other similar expenses relating to such Asset Sale.
“Net
Debt Proceeds”
means
the Cash proceeds (net of underwriting discounts and commissions and other
reasonable costs and expenses associated therewith, including reasonable legal
fees and expenses) from the incurrence of Indebtedness by Borrower or any of
its
Subsidiaries.
“Net
Insurance/Condemnation Proceeds”
means
any Cash payments or proceeds received by Borrower or any of its Subsidiaries
(i) under any business interruption or casualty insurance policy in
respect
of a covered loss thereunder or (ii) as a result of the taking of any
assets of Borrower or any of its Subsidiaries by any Person pursuant to the
power of eminent domain, condemnation or otherwise, or pursuant to a sale of
any
such assets to a purchaser with such power under threat of such a taking, in
each case net of any actual and reasonable documented costs incurred by Borrower
or any of its Subsidiaries in connection with the adjustment or settlement
of
any claims of Borrower or such Subsidiary in respect thereof.
“Net
Proceeds Amount”
has the
meaning assigned to that term in subsection 2.4B(iii)(e).
“New
Lender”
has the
meaning assigned to that term in subsection 2.1A(iii).
“Non-US
Lender”
has the
meaning assigned to that term in subsection 2.7B(iii)(a).
“Notes”
means
one or more of the Term Notes or Revolving Notes or any combination
thereof.
“Notice
of Borrowing”
means a
notice substantially in the form of Exhibit I
annexed
hereto delivered by Borrower to Administrative Agent pursuant to subsection
2.1B
with
respect to a proposed borrowing.
“Notice
of Conversion/Continuation”
means a
notice substantially in the form of Exhibit II
annexed
hereto delivered by Borrower to Administrative Agent pursuant to subsection
2.2D
with
respect to a proposed conversion or continuation of the applicable basis for
determining the interest rate with respect to the Loans specified
therein.
“Notice
of Issuance of Letter of Credit”
means a
notice substantially in the form of Exhibit III
annexed
hereto delivered by Borrower to Administrative Agent pursuant to subsection
3.1B(i)
with
respect to the proposed issuance of a Letter of Credit.
“Obligations”
means
all obligations of every nature of each Loan Party from time to time owed to
Administrative Agent, Lenders or any of them under the Loan Documents, whether
for principal, interest, reimbursement of amounts drawn under Letters of Credit,
fees, expenses, indemnification or otherwise, whether contingent, direct or
otherwise, including post-petition interest on such amounts accruing subsequent
to, and interest that would have accrued but for, the commencement of a
proceeding under the Bankruptcy Code (whether or not such interest is allowed
as
a claim in such proceeding).
“Officer”
means
the president, chief executive officer, general counsel, general manager,
controller, a vice president, chief financial officer, treasurer, general
partner (if an individual), managing member (if an individual) or other
individual appointed by the Governing Body or the Organizational Documents
of a
corporation, partnership, trust or limited liability company to serve in a
similar capacity as the foregoing.
“Officer’s
Certificate,”
as
applied to any Person that is a corporation, partnership, trust or limited
liability company, means a certificate executed on behalf of such Person by
one
or more Officers of such Person or one or more Officers of a general partner
or
a managing member if such general partner or managing member is a corporation,
partnership, trust or limited liability company.
“Operating
Lease,”
as
applied to any Person, means any lease to which such Person is a party
(including leases that may be terminated by the lessee at any time) of any
property (whether real, personal or mixed) that is not a Capital Lease other
than any such lease under which that Person is the lessor.
“Organizational
Documents”
means
the documents (including bylaws, if applicable) pursuant to which a Person
that
is a corporation, partnership, trust or limited liability company is
organized.
“Participant”
has the
meaning assigned to that term in subsection 10.1C.
“Partners”
means
Isle of Capri Casinos, Inc. and its wholly-owned subsidiary Casino America
of
Colorado, Inc., and Nevada Gold & Casinos, Inc. and its wholly-owned
subsidiary Black Hawk Gold, Ltd.
“PBGC”
means
the Pension Benefit Guaranty Corporation or any successor thereto.
“Pension
Plan”
means
any Employee Benefit Plan, other than a Multiemployer Plan, which is subject
to
Section 412 of the Internal Revenue Code or Section 302 of ERISA.
“Permitted
Encumbrances”
means
the following types of Liens (excluding any such Lien imposed pursuant to
Section 401(a)(29) or 412(n) of the Internal Revenue Code or by ERISA, any
such
Lien relating to or imposed in connection with any Environmental Claim, and
any
such Lien expressly prohibited by any applicable terms of any of the Collateral
Documents):
(i) Liens
for
taxes, assessments or governmental charges or claims the payment of which is
not, at the time, required by subsection 6.3;
(ii) statutory
Liens of landlords, statutory Liens and rights of set-off of banks, statutory
Liens of carriers, warehousemen, mechanics, repairmen, workmen and materialmen,
and other Liens imposed by law, in each case incurred in the ordinary course
of
business (a) for amounts not yet overdue or (b) for amounts that are overdue
and
that (in the case of any such amounts overdue for a period in excess of 5 days)
are being contested in good faith by appropriate proceedings, so long as (1)
such reserves or other appropriate provisions, if any, as shall be required
by
GAAP shall have been made for any such contested amounts, and (2) in the case
of
a Lien with respect to any portion of the Collateral, such contest proceedings
conclusively operate to stay the sale of any portion of the Collateral on
account of such Lien;
(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, performance and return
of
money bonds, trade contracts and other similar obligations (exclusive of
obligations for the payment of borrowed money), so long as no foreclosure,
sale
or similar proceedings have been commenced with respect to any portion of the
Collateral on account thereof;
(iv) any
attachment or judgment Lien not constituting an Event of Default under
subsection 8.8;
(v) leases
or
subleases granted to third parties in accordance with any applicable terms
of
the Collateral Documents and not interfering in any material respect with the
ordinary conduct of the business of Borrower or any of its Subsidiaries or
resulting in a material diminution in the value of any Collateral as security
for the Obligations;
(vi) easements,
rights-of-way, navigational servitudes, restrictions, encroachments, and other
minor defects or irregularities in title, in each case which do not and will
not
interfere in any material respect with the ordinary conduct of the business
of
Borrower or any of its Subsidiaries or result in a material diminution in the
value of any Collateral as security for the Obligations;
(vii) any
(a) interest or title of a lessor or sublessor under any lease permitted
by
subsection 7.14 or otherwise permitted by this Agreement, (b) restriction
or encumbrance that the interest or title of such lessor or sublessor may be
subject to, or (c) subordination of the interest of the lessee or sublessee
under such lease to any restriction or encumbrance referred to in the preceding
clause (b), so long as the holder of such restriction or encumbrance agrees
to
recognize the rights of such lessee or sublessee under such lease;
(viii) Liens
arising from filing UCC financing statements relating solely to leases permitted
by this Agreement;
(ix) Liens
in
favor of customs and revenue authorities arising as a matter of law to secure
payment of customs duties in connection with the importation of
goods;
(x) any
zoning or similar law or right reserved to or vested in any governmental office
or agency to control or regulate the use of any real property;
(xi) Liens
securing obligations (other than obligations representing Indebtedness for
borrowed money) under operating, reciprocal easement or similar agreements
entered into in the ordinary course of business of Borrower and its
Subsidiaries; and
(xii) licenses
of patents, trademarks and other intellectual property rights granted by
Borrower or any of its Subsidiaries in the ordinary course of business and
not
interfering in any material respect with the ordinary conduct of the business
of
Borrower or such Subsidiary; and
(xiii)
liens and encumbrances described in the title insurance policy obtained pursuant
to subsection 4.1F.
“Permitted
Tax Distributions”
means
distributions that are to be paid by Borrower to its Partners on a quarterly
basis after the Effective Date, which amount shall constitute 40% of the taxable
income (if positive) of Borrower and its Subsidiaries for the related Fiscal
Quarter.
“Person”
means
and includes natural persons, corporations, limited partnerships, general
partnerships, limited liability companies, limited liability partnerships,
joint
stock companies, Joint Ventures, associations, companies, trusts, banks, trust
companies, land trusts, business trusts or other organizations, whether or
not
legal entities, and governments (whether federal, state or local, domestic
or
foreign, and including political subdivisions thereof) and agencies or other
administrative or regulatory bodies thereof.
“Pledged
Collateral”
means,
collectively, the “Pledged Collateral” as defined in the Security
Agreement.
“Potential
Event of Default”
means a
condition or event that, after notice or lapse of time or both, would constitute
an Event of Default.
“Prepayment
Dates” has
the
meaning set forth in subsection 2.4B(iv)(d).
“Proceedings”
means
any action, suit, proceeding (whether administrative, judicial or otherwise),
governmental investigation or arbitration.
“Pro
Rata Share”
means:
(i) with
respect to all payments, computations and other matters relating to the Term
Loan Commitment or the Term Loan of any Lender, the percentage obtained by
dividing
(x) the Term Loan Exposure of that Lender by
(y) the aggregate Term Loan Exposure of all Lenders;
(ii) with
respect to all payments, computations and other matters relating to the
Revolving Loan Commitment or the Revolving Loans of any Lender or any Letters
of
Credit issued or participations therein purchased by any Lender, the percentage
obtained by dividing
(x) the Revolving Loan Exposure of that Lender by
(y) the aggregate Revolving Loan Exposure of all Lenders; and
(iii) for
all
other purposes with respect to each Lender, the percentage obtained by
dividing
(x) the sum of the Term Loan Exposure and the Revolving Loan Exposure
of
that Lender by
(y) the sum of the aggregate Term Loan Exposure and Revolving Loan Exposure
of all Lenders, in any such case as the applicable percentage may be adjusted
by
assignments permitted pursuant to subsection 10.1.
“PTO”
means
the United States Patent and Trademark Office or any successor or substitute
office in which filings are necessary or, in the opinion of Administrative
Agent, desirable in order to create or perfect Liens on any IP
Collateral.
“Public
Improvement Capital Expenditures”
means
those Consolidated Capital Expenditures (which are not otherwise classified
as
Maintenance Capital Expenditures or Expansion Capital Expenditures) attributable
to constructing the Public Improvements associated with the Expansion
Project.
“Public
Improvements”
means
the following improvements to be constructed by
Borrower and dedicated to the City
of
Black
Hawk, or
other governmental or quasi-governmental entity designated by the City of Black
Hawk, in
connection with the Expansion Project: The extension of Main Street South to
intersect with Highway 119,
utilities, public
areas of pedestrian overpass connections
and
other improvements identified in the Subdivision Agreement, dated
August 13, 2003, between the City of Black Hawk and Borrower, as amended
on
January 14, 2004.
“Real
Property Asset”
means,
at any time of determination, any interest then owned by any Loan Party in
any
real property.
“Recorded
Leasehold Interest” means
a
Leasehold Property with respect to which a Record Document (as hereinafter
defined) has been recorded in all places necessary or desirable, in
Administrative Agent’s reasonable judgment, to give constructive notice of such
Leasehold Property to third-party purchasers and encumbrancers of the affected
real property. For purposes of this definition, the term “Record
Document”
means,
with respect to any Leasehold Property, (a) the lease evidencing such
Leasehold Property or a memorandum thereof, executed and acknowledged by the
owner of the affected real property, as lessor, or (b) if such Leasehold
Property was acquired or subleased from the holder of a Recorded Leasehold
Interest, the applicable assignment or sublease document, executed and
acknowledged by such holder, in each case in form sufficient to give such
constructive notice upon recordation and otherwise in form reasonably
satisfactory to Administrative Agent.
“Reference
Rate”
means
the rate that CIBC announces from time to time as its prime lending rate, as
in
effect from time to time. The Reference Rate is a reference rate and does not
necessarily represent the lowest or best rate actually charged to any customer.
CIBC or any other Lender may make commercial loans or other loans at rates
of
interest at, above or below the Reference Rate.
“Register”
has the
meaning assigned to that term in subsection 2.1D.
“Regulation D”
means
Regulation D of the Board of Governors of the Federal Reserve System, as in
effect from time to time.
“Reimbursement
Date”
has the
meaning assigned to that term in subsection 3.3B.
“Related
Businesses”
means
the gaming businesses (including pari-mutuel betting) conducted of Borrower
and
its Subsidiaries as of the Effective Date and any and all reasonably related
businesses necessary for, in support or anticipation of and ancillary to or
in
preparation for, the gaming businesses, including without limitation, the
development, expansion or operation of any Gaming Facility (including any
land-based, dockside, riverboat or other type of Gaming Facility).
“Release”
means
any release, spill, emission, leaking, pumping, pouring, injection, escaping,
deposit, disposal, discharge, dispersal, dumping, leaching or migration of
Hazardous Materials into the indoor or outdoor environment (including the
abandonment or disposal of any barrels, containers or other closed receptacles
containing any Hazardous Materials), including the movement of any Hazardous
Materials through the air, soil, surface water or groundwater.
“Remediation”
means
any or all of the following activities to the extent they relate to or arise
from the presence of Hazardous Materials in the soil or groundwater or both:
(i)
monitoring, investigation, cleanup, containment, remediation, removal,
mitigation, response or restoration work; (ii) obtaining any permits, consents,
approvals or authorizations of any Government Authority necessary to conduct
any
such work; (iii) preparing and implementing any plans or studies for such work;
(iv) obtaining a written notice from a Government Authority with jurisdiction
over the Facility under Environmental Laws that no material additional work
is
required by such Government Authority; and (v) any other activities necessary
or
appropriate or required under Environmental Laws to address the presence of
Hazardous Materials in the soil or groundwater or both at the
Facility.
“Requisite
Lenders”
means
Lenders having or holding more than 50% of the sum of the aggregate Term Loan
Exposure of all Lenders plus the aggregate Revolving Loan Exposure of all
Lenders.
“Restricted
Junior Payment”
means
(i) any dividend or other distribution, direct or indirect, on account
of
any shares of any class of Capital Stock of Borrower or any of its Subsidiaries
now or hereafter outstanding, except (x) a dividend payable solely in shares
of
that class of stock to the holders of that class, (y) a dividend payable to
Borrower by any of its Subsidiaries, or (z) a Permitted Tax Distribution,
(ii) any redemption, retirement, sinking fund or similar payment, purchase
or other acquisition for value, direct or indirect, of any shares of any class
of Capital Stock of Borrower or any of its Subsidiaries now or hereafter
outstanding, except Capital Stock owned by Borrower or a Subsidiary Guarantor,
(iii) any payment made to retire, or to obtain the surrender of, any
outstanding warrants, options or other rights to acquire shares of any class
of
Capital Stock of Borrower or any of its Subsidiaries now or hereafter
outstanding, except Capital Stock owned by Borrower or a Subsidiary Guarantor,
(iv) any payment of Management Fees or any other similar fees by Borrower
or any of its Subsidiaries to any Partner or any of its Subsidiaries (other
than
any Subsidiary of Borrower) and (v) any payment or prepayment of principal
of, premium, if any, or interest on, or redemption, purchase, retirement,
defeasance (including in-substance or legal defeasance), sinking fund or similar
payment with respect to the Subordinated PIK Indebtedness.
“Revolving
Lender”
means a
Lender that has a Revolving Loan Commitment and/or that has an outstanding
Revolving Loan, together with its successors and permitted assigns pursuant
to
subsection 10.1.
“Revolving
Loan Commitment”
means
the commitment of a Lender to make Revolving Loans to Borrower pursuant to
subsection 2.1A(ii),
and
“Revolving
Loan Commitments”
means
such commitments of all Lenders in the aggregate. The Revolving Loan Commitments
shall be recorded by Administrative Agent in the Register.
“Revolving
Loan Commitment Termination Date”
means
the earlier of October 24, 2010 or such date as the Term Loans are repaid in
full.
“Revolving
Loan Exposure” means,
with respect to any Lender, as of any date of determination (i) prior
to
the termination of the Revolving Loan Commitments, that Lender’s Revolving Loan
Commitment, and (ii) after the termination of the Revolving Loan
Commitments, the sum of (a) the aggregate outstanding principal amount
of
the Revolving Loans of that Lender plus
(b) if Lender is an Issuing Lender, the aggregate Letter of Credit Usage
in
respect of all Letters of Credit issued by that Lender (in each case net of
any
participations purchased by other Lenders in such Letters of Credit or in any
unreimbursed drawings thereunder) plus
(c) the aggregate amount of all participations purchased by that Lender
in
any outstanding Letters of Credit or any unreimbursed drawings under any Letters
of Credit.
“Revolving
Loans”
means
the Loans made by Lenders to Borrower pursuant to subsection 2.1A(ii).
“Revolving
Notes”
means
(i) the promissory notes of Borrower issued pursuant to
subsection 2.1E(b)
on
or after the Effective Date (or any replacements thereof), (ii) any promissory
notes of Borrower issued pursuant to the last paragraph of subsection 2.1E
relating to any increase in Revolving Loan Commitments made pursuant to
subsection 2.1A(iii), and (iii) any promissory notes issued by Borrower
pursuant to subsection 10.1B(i)
in
connection with assignments of the Revolving Loan Commitments and Revolving
Loans of any Lenders, and any replacements thereof, in each case substantially
in the form of Exhibit VI
annexed
hereto.
“Riviera”
means
Riviera Black Hawk, Inc., a Colorado corporation.
“S&P”
means
Standard & Poor’s, a division of The XxXxxx-Xxxx Companies,
Inc.
“Securities”
means
any stock, shares, partnership interests, membership interests, voting trust
certificates, certificates of interest or participation in any profit-sharing
agreement or arrangement, options, warrants, bonds, debentures, notes, or other
evidences of indebtedness, secured or unsecured, convertible, subordinated,
certificated or uncertificated, or otherwise, or in general any instruments
commonly known as “securities” or any certificates of interest, shares or
participations in temporary or interim certificates for the purchase or
acquisition of, or any right to subscribe to, purchase or acquire, any of the
foregoing.
“Securities
Act”
means
the Securities Act of 1933.
“Security
Agreement”
means
the Amended and Restated Security Agreement executed and delivered by each
of
the Loan Parties on the Effective Date, substantially in the form of
Exhibit
XIII
annexed
hereto.
“Sewer
District Purchase”
means
the purchase by Borrower or any of its Subsidiaries from the Black Hawk/Central
City Sanitation District of property located across from the Isle-Black Hawk
Property.
“Solvent”
means,
with respect to any Person, that as of the date of determination both (A)
(i) the then fair saleable value of the property of such Person is
(y) greater than the total amount of liabilities (including contingent
liabilities) of such Person and (z) not less than the amount that will
be
required to pay the probable liabilities on such Person’s then existing debts as
they become absolute and matured considering all financing alternatives and
potential asset sales reasonably available to such Person; (ii) such
Person’s capital is not unreasonably small in relation to its business or any
contemplated or undertaken transaction; and (iii) such Person does not
intend to incur, or believe (nor should it reasonably believe) that it will
incur, debts beyond its ability to pay such debts as they become due; and (B)
such Person is “solvent” within the meaning given that term and similar terms
under applicable laws relating to fraudulent transfers and conveyances. For
purposes of this definition, the amount of any contingent liability at any
time
shall be computed as the amount that, in light of all of the facts and
circumstances existing at such time, represents the amount that can reasonably
be expected to become an actual or matured liability.
“Subordinated
PIK Indebtedness”
means
up to $25,000,000 in original principal amount of Indebtedness provided by
Isle
of Capri Casinos, Inc. on terms and conditions satisfactory to Administrative
Agent, provided that (i) such Indebtedness is subordinated in right of payment
to the Obligations on terms and conditions satisfactory to Administrative Agent,
(ii) any interest payable on such Indebtedness is paid solely in additional
payment-in-kind indebtedness unless the Consolidated Total Leverage Ratio is
less than 2.50 to 1.00, (iii) the maturity of such Indebtedness is at least
six
months longer than the Term Loan Maturity Date, and (iv) after giving effect
to
the incurrence of such Indebtedness and the application of the proceeds thereof,
Borrower is in pro forma compliance with subsection 7.6 and no Potential Event
of Default or Event of Default has occurred and is continuing or would arise
as
a result of the incurrence of such Indebtedness.
“Subordinated
PIK Indebtedness Agreement”
means
the agreement between Borrower and Isle of Capri Casinos, Inc. in form and
substance satisfactory to Administrative Agent whereby Isle of Capri Casinos,
Inc. agrees to purchase up to $10,000,000 of Subordinated PIK Indebtedness
if
the costs and expenses of the Expansion Project exceed $80,000,000 in the
aggregate.
“Subsidiary”
means,
with respect to any Person, any corporation, partnership, limited liability
company, association, joint venture or other business entity of which more
than
50% of the total voting power of shares of stock or other ownership interests
entitled (without regard to the occurrence of any contingency) to vote in the
election of the Person or Persons (whether directors, managers, trustees or
other Persons performing similar functions) having the power to direct or cause
the direction of the management and policies thereof is at the time owned or
controlled, directly or indirectly, by that Person or one or more of the other
Subsidiaries of that Person or a combination thereof.
“Subsidiary
Guarantor”
means
any domestic Subsidiary of Borrower that has executed and delivered a
counterpart of the Subsidiary Guaranty and has not been released from its
obligations thereunder as permitted by this Agreement.
“Subsidiary
Guaranty”
means
the Amended and Restated Subsidiary Guaranty executed and delivered by the
existing Subsidiaries of Borrower on the Effective Date and to be executed
and
delivered by additional domestic Subsidiaries of Borrower from time to time
thereafter in accordance with subsection 6.8,
substantially in the form of Exhibit
XII
annexed.
“Supplemental
Collateral Agent”
has the
meaning assigned to that term in subsection 9.1A.
“Syndication
Agent”
has the
meaning assigned to that term in the introduction to this
Agreement.
“Tax”
or
“Taxes”
means
any present or future tax, levy, impost, duty, charge, fee, deduction or
withholding of any nature and whatever called, by whomsoever, on whomsoever
and
wherever imposed, levied, collected, withheld or assessed, including interest,
penalties, additions to tax and any similar liabilities with respect thereto;
except that, in the case of a Lender, there shall be excluded (1) taxes that
are
imposed on the overall net income or net profits (including franchise taxes
imposed in lieu thereof) (i) by the United States, (ii) by any
other
Government Authority under the laws of which such Lender is organized or has
its
principal office or maintains its applicable lending office, or (iii) by any
jurisdiction solely as a result of a present or former connection between such
Lender (other than any such connection arising solely from such Lender having
executed, delivered or performed its obligations or received a payment under,
or
enforced any of the Loan Documents) and such jurisdiction, and (2) any branch
profits taxes imposed by the United States or any similar tax imposed by any
other jurisdiction in which such Lender is located.
“Term
Loan Commitment”
means
the commitment of a Lender to make a Term Loan to Borrower pursuant to
subsection 2.1A(i), and “Term Loan Commitments” means such commitments of all
Lenders in the aggregate.
“Term
Loan Exposure”,
with
respect to any Lender, means, as of any date of determination, (i) prior
to
the funding of the Term Loans, that Lender’s Term Loan Commitment, and (ii),
after the funding of the Term Loans, the outstanding principal amount of the
Term Loans of that Lender.
“Term
Loan Maturity Date”
means
October 24, 2011.
“Term
Loans”
means
the Loans made by Lenders to Borrower pursuant to subsection
2.1A(i).
“Term
Notes”
means
(i) the promissory notes of Borrower issued pursuant to subsection
2.1E
to
evidence the Term Loans of any Lenders, (ii) any promissory notes of Borrower
issued pursuant to the last paragraph of subsection 2.1E relating to any
increase in the Term Loans made pursuant to subsection 2.1A(iii), and
(iii) any promissory notes issued by Borrower pursuant to subsection
10.1B(i)
in
connection with assignments of the Term Loan Commitments or Term Loans of any
Lenders and any replacements thereof, in each case substantially in the form
of
Exhibit V
annexed
hereto.
“Title
Company”
means
one or more title insurance companies reasonably satisfactory to Administrative
Agent.
“Total
Utilization of Revolving Loan Commitments”
means,
as at any date of determination, the sum of (i) the aggregate principal
amount of all outstanding Revolving Loans plus
(ii) the Letter of Credit Usage.
“Transactions”
has the
meaning assigned to that term in the Recitals.
“Transaction
Costs”
means
the fees, costs and expenses payable by Borrower in connection with the
Transactions and the other transactions contemplated by the Loan
Documents.
“Type”
means,
with respect to any Loan, a Term Loan or a Revolving Loan (each of which is
a
“Type”
of
Loan).
“UCC”
means
the Uniform Commercial Code (or any similar or equivalent legislation) as in
effect in any applicable jurisdiction.
| 1.2 |
Accounting
Terms; Utilization of GAAP for Purposes of Calculations Under
Agreement.
|
Except
as
otherwise expressly provided in this Agreement, all accounting terms not
otherwise defined herein shall have the meanings assigned to them in conformity
with GAAP. Financial statements and other information required to be delivered
by Borrower to Lenders pursuant to clauses (i),
(ii),
(iii)
and
(xiii)
of
subsection 6.1
shall be
prepared in accordance with GAAP as in effect in the United States of America
at
the time of such preparation (other than an absence of footnotes with respect
of
financial statements and other information delivered pursuant to clauses (i)
and
(ii) of subsection 6.1 and delivered together with the reconciliation statements
provided for in subsection 6.1(v)).
Calculations in connection with the definitions, covenants and other provisions
of this Agreement shall utilize GAAP as in effect in the United States of
America on the date of determination, applied in a manner consistent with that
used in preparing the financial statements referred to in subsection
5.3.
| 1.3 |
Other
Definitional Provisions and Rules of Construction.
|
A. Any
of
the terms defined herein may, unless the context otherwise requires, be used
in
the singular or the plural, depending on the reference.
B. References
to “Sections” and “subsections” shall be to Sections and subsections,
respectively, of this Agreement unless otherwise specifically provided. Section
and subsection headings in this Agreement are included herein for convenience
of
reference only and shall not constitute a part of this Agreement for any other
purpose or be given any substantive effect.
C. The
use
in any of the Loan Documents of the word “include” or “including”, when
following any general statement, term or matter, shall not be construed to
limit
such statement, term or matter to the specific items or matters set forth
immediately following such word or to similar items or matters, whether or
not
nonlimiting language (such as “without limitation” or “but not limited to” or
words of similar import) is used with reference thereto, but rather shall be
deemed to refer to all other items or matters that fall within the broadest
possible scope of such general statement, term or matter.
D. Each
of
the parties hereto acknowledges that (i) it has been represented by
counsel
in the negotiation and documentation of the terms of this Agreement and the
other Loan Documents to be executed on or prior to the Effective Date,
(ii) it has had full and fair opportunity to review and revise the terms
of
this Agreement and such other Loan Documents, (iii) this Agreement and
such
other Loan Documents have been drafted jointly by all of the parties hereto,
and
(iv) neither Administrative Agent nor any Lender has any fiduciary
relationship with or duty to Borrower arising out of or in connection with
this
Agreement or any of the other Loan Documents, and the relationship between
Administrative Agent and Lenders, on one hand, and Borrower, on the other hand,
in connection herewith or therewith is solely that of debtor and creditor.
Accordingly, each of the parties hereto acknowledges and agrees that the terms
of this Agreement shall not be construed against or in favor of another
party.
E. (i) Any
reference in this Agreement or any other Loan Document to any agreement means
such agreement as it may be amended, restated, supplemented or otherwise
modified from time to time; (ii) any reference in this Agreement or
any
other Loan Document to any law, statute, regulation, rule or other legislative
action shall mean such law, statute, regulation, rule or other legislative
action as amended, supplemented, restated or otherwise modified from time to
time and any successor thereto, and shall include any rule or regulation
promulgated thereunder; and (iii) any reference in this Agreement or
any
Loan Document to a Person shall include the successor or assignee of such
Person.
Section
2. AMOUNTS
AND TERMS OF COMMITMENTS AND LOANS
| 2.1 |
Commitments;
Making of Loans; Optional Notes.
|
A. Commitments.
Subject
to the terms and conditions of this Agreement and in reliance upon the
representations and warranties of Borrower herein set forth, each Lender hereby
severally agrees to make the Loans as described in subsections 2.1A(i)
and
2.1A(ii).
(i) Term
Loans.
Each
Lender that has a Term Loan Commitment severally agrees to purchase and assume
from Administrative Agent and to lend to Borrower on the Effective Date Term
Loans in an amount not exceeding its Pro Rata Share of the aggregate amount
of
the Term Loan Commitments. Proceeds of Term Loans will be used for the purposes
identified in subsection 2.5A.
The
amount of each Lender’s Term Loan Commitment will be set forth in an allocation
letter delivered to such Lender by Administrative Agent and the aggregate amount
of the Term Loan Commitments on the Effective Date is $190,000,000; provided
that the amount of the Term Loan Commitment of each Lender shall be adjusted
to
give effect to (1) any increase in Term Loans pursuant to subsection
2.1A(iii) and (2) any assignment of such Term Loan Commitment pursuant to
subsection 10.1B.
Borrower shall deliver to Administrative Agent a Notice of Borrowing no later
than 12:00 Noon (New York City time) at least one Business Day prior to the
Effective Date, requesting a borrowing of the Term Loans. The Notice of
Borrowing shall specify (i) the proposed Funding Date (which shall be a Business
Day), (ii) the amount of the borrowing, and (iii) that such Loans shall be
Base
Rate Loans. Subject to subsection 2.1A(iii), Borrower may make only one
borrowing under the Term Loan Commitments. Amounts borrowed under this
subsection 2.1A(i)
and
subsequently repaid or prepaid may not be reborrowed.
(ii) Revolving
Loans.
Each
Revolving Lender severally agrees, subject to the limitations set forth below
with respect to the maximum amount of Revolving Loans permitted to be
outstanding from time to time, to purchase and assume from Administrative Agent
on the Effective Date Revolving Loan Commitments and Revolving Loans in, and
to
lend to Borrower from time to time from and after the Effective Date to but
excluding the Revolving Loan Commitment Termination Date, an aggregate amount
not exceeding its Pro Rata Share of the aggregate amount of the Revolving Loan
Commitments to be used for the purposes identified in subsections 2.5A and
2.5B.
The original amount of each Revolving Lender’s Revolving Loan Commitment will be
set forth in an allocation letter delivered to such Lender by Administrative
Agent. The aggregate original amount of the Revolving Loan Commitments is
$50,000,000; provided
that the
Revolving Loan Commitments of Lenders shall be adjusted to give effect to (1)
any increase in Revolving Loan Commitments pursuant to subsection 2.1A(iii),
and
(2) any assignments of the Revolving Loan Commitments pursuant to subsection
10.1B; and provided further
that the
amount of the Revolving Loan Commitments shall be reduced from time to time
by
the amount of any reductions thereto made pursuant to subsection 2.4B. Each
Lender’s Revolving Loan Commitment shall expire immediately and without further
action on the Revolving Loan Commitment Termination Date and all Revolving
Loans
and all other amounts owed hereunder with respect to the Revolving Loans and
the
Revolving Loan Commitments shall be paid in full no later than that date.
Amounts borrowed under this subsection 2.1A(ii)
may be
repaid and reborrowed to but excluding the Revolving Loan Commitment Termination
Date.
Anything
contained in this Agreement to the contrary notwithstanding, the Revolving
Loans
and the Revolving Loan Commitments shall be subject to the limitation that
in no
event shall the Total Utilization of Revolving Loan Commitments at any time
exceed the Revolving Loan Commitments then in effect.
(iii) Increases
of the Term Loans or Revolving Loan Commitments.
(a) At
the
mutual discretion of Borrower and Lead Arranger, Borrower may request in writing
at any time that (x) the then effective aggregate principal amount of the Term
Loans be increased, and/or (y) the then effective aggregate principal amount
of
Revolving Loan Commitments be increased; provided
that (1)
the principal amount of the increases for any reason in Term Loans and/or
Revolving Loan Commitments pursuant to this subsection 2.1A(iii) shall not
exceed $25,000,000 in the aggregate (the “Greenshoe
Option”),
(2)
Borrower may not make more than one request for such increases in Term Loans
and/or Revolving Loan Commitments pursuant to the Greenshoe Option, and (3)
no
Event of Default or Potential Event of Default shall have occurred and be
continuing or occur as a result of such increases in Term Loans and/or Revolving
Loan Commitments. Any request under this subsection 2.1A(iii) shall be submitted
by Borrower to Administrative Agent (and Administrative Agent shall promptly
forward copies to Lenders), specify the proposed effective date and amount
of
such increase and be accompanied by an Officer’s Certificate certifying that no
Event of Default or Potential Event of Default exists or will occur as a result
of such increase. Borrower shall specify any fees offered to those Lenders
(the
“Increasing
Lenders”)
that
agree to increase the principal amount of their Term Loans or Revolving Loan
Commitments, as the case may be, which fees may be variable based upon the
amount by which any such Lender is willing to increase the principal amount
of
its Term Loans or Revolving Loan Commitment, as the case may be. No Lender
shall
have any obligation, express or implied, to offer to increase the aggregate
principal amount of its Term Loans or Revolving Loan Commitment, as the case
may
be. Only the consent of each Increasing Lender shall be required for an increase
in the aggregate principal amount of the Term Loans or Revolving Loan
Commitments, as the case may be, pursuant to this subsection 2.1A(iii). No
Lender that elects not to increase the principal amount of its Term Loan or
Revolving Loan Commitment, as the case may be, may be replaced in respect of
its
existing Term Loans or Revolving Loan Commitment, as the case may be, as a
result thereof without such Lender’s consent.
(b) Each
Increasing Lender shall as soon as practicable specify the amount of the
proposed increase that it is willing to assume. Borrower may accept some or
all
of the offered amounts or designate new lenders that qualify as Eligible
Assignees and that are reasonably acceptable to Administrative Agent as
additional Lenders hereunder in accordance with this subsection 2.1A(iii) (each
such new lender being a “New
Lender”),
which
New Lenders may assume all or a portion of the increase in the aggregate
principal amount of the Term Loans or Revolving Loan Commitments, as the case
may be. Borrower and Administrative Agent shall have discretion jointly to
adjust the allocation of the increased aggregate principal amount of the Term
Loans or Revolving Loan Commitments, as the case may be, among Increasing
Lenders and New Lenders.
(c) Each
New
Lender designated by Borrower and reasonably acceptable to Administrative Agent
shall become an additional party hereto as a New Lender concurrently with the
effectiveness of the proposed increase in the aggregate principal amount of
the
Term Loans or Revolving Loan Commitments.
(d) Subject
to the foregoing, any increase requested by Borrower shall be effective upon
delivery to Administrative Agent of each of the following documents: (i) an
originally executed copy of an Instrument of Joinder signed by a duly authorized
Officer of each New Lender, substantially in the form attached hereto as
Exhibit XIX-A;
(ii) a
notice to the Increasing Lenders and New Lenders, substantially in the form
attached hereto as Exhibit XIX-B,
signed
by a duly authorized officer of Borrower; (iii) an Officer’s Certificate of
Borrower, substantially in the form attached hereto as Exhibit XIX-C;
and
(iv) any other certificates or documents that Administrative Agent shall
reasonably request, in form and substance satisfactory to Administrative Agent.
Any increase shall be in the principal amount equal to (A) the principal amount
that Increasing Lenders are willing to assume as increases to the principal
amount of their Term Loans or Revolving Loan Commitments, as the case may be,
plus
(B) the
principal amount offered by New Lenders with respect to the Term Loans or
Revolving Loan Commitments, as the case may be, in either case as adjusted
by
Borrower and Administrative Agent pursuant to this subsection 2.1A(iii). Upon
effectiveness of any such increase, (i) the Pro Rata Share of each Lender will
be adjusted to give effect to the increase in the Term Loans or Revolving Loan
Commitments, as the case may be, (ii) if
necessary, in respect of an increase in Revolving
Loan Commitments and/or Term Loans,
at such
time and in such manner as Borrower and Administrative Agent shall agree, the
Increasing Lenders and New Lenders who have in their sole discretion agreed
to
provide such additional Revolving
Loan Commitments and/or Term Loans
shall
purchase and assume outstanding Loans and participations in outstanding Letters
of Credit so as to cause the amount of such Loans and participations in Letters
of Credit held by each Lender to conform to the respective percentages of the
applicable
Revolving Loan Commitments or Loans
of the
Lenders as so adjusted and (ii) Borrower shall execute and deliver any
additional Notes as any Lender may reasonably request or other amendments or
modifications to this Agreement or any other Loan Document as Administrative
Agent may reasonably request. In connection with the additional Revolving Loan
Commitments and Term Loans provided for in this subsection 2.1A(iii),
conforming
amendments shall be made to this Agreement and the other Loan Documents to
reflect such additional Revolving
Loan Commitments and/or Term Loans
without
the consent of any Lender not a lender of such additional Revolving
Loans Commitments and/or Term Loans,
including, without limitation, if applicable, conforming amendments: (i) to
provide for the additional Revolving
Loan Commitments and/or Term Loans
to share
ratably in the benefits of this Agreement and the other Loan Documents
(including the accrued interest in respect thereof) with the other Loans made
under this Agreement, (ii) to Sections 1 and 2 to provide, among other
things, for the additional Revolving
Loan Commitments and/or Term Loans
to share
ratably with the applicable Loans in the application of prepayments,
(iii) to provide an amortization schedule for any additional Term
Loans,
and
(iv) to include Increasing Lenders and New Lenders in any determination
of
Lenders, Requisite Lenders and Pro Rata Share. Notwithstanding anything in
this
Agreement expressed or implied to the contrary (including, without limitation
in
subsection 10.6), nothing herein shall be construed to require consent from
Lenders that are not Increasing Lenders or New Lenders to the incurrence of
the
additional Revolving
Loan Commitments and/or Term Loans
in
compliance with this subsection 2.1A(iii), and shall supersede any provisions
in
subsection 10.6 to the contrary. To the extent that the adjustment of Pro Rata
Shares provided for in this Section 2.1A(iii) results in losses or expenses
to
any Lender as a result of the prepayment of any LIBOR Loan on a date other
than
the scheduled last day of the applicable Interest Period, Borrower shall be
responsible for such losses or expenses pursuant to subsection
2.6D.
B. Borrowing
Mechanics.
Revolving Loans made on any Funding Date shall be in an aggregate minimum amount
of $250,000 and integral multiples of $100,000 in excess of that amount;
provided
that
Revolving Loans made on any Funding Date as LIBOR Loans with a particular
Interest Period shall be in an aggregate minimum amount of $500,000 and integral
multiples of $500,000 in excess of that amount. Whenever Borrower desires that
Lenders make Revolving Loans or Term Loans the Borrower shall deliver to
Administrative Agent a Notice of Borrowing no later than 11:00 A.M. (New York
City time) (x) at least three Business Days in advance of the proposed Funding
Date (in the case of a LIBOR Loan) or (y) on the proposed Funding Date (in
the
case of a Base Rate Loan). The Notice of Borrowing shall specify (i) the
proposed Funding Date (which shall be a Business Day), (ii) the amount
and
Type of Loans requested, (iii) in the case of Revolving Loans not made
on
the Effective Date, whether such Loans shall be Base Rate Loans or LIBOR Loans,
(iv) in the case of any Loans requested to be made as LIBOR Loans, the
initial Interest Period requested therefor and (v) information about
the
account of Borrower to be credited. Loans may be continued as or converted
into
Base Rate Loans and LIBOR Loans in the manner provided in subsection
2.2D.
All
Loans made on the Effective Date shall be made as Base Rate Loans. In lieu
of
delivering the above-described Notice of Borrowing for any Loans not made on
the
Effective Date, Borrower may give Administrative Agent telephonic notice by
the
required time of any proposed borrowing under this subsection 2.1B;
provided
that
such notice shall be promptly confirmed in writing by delivery of a Notice
of
Borrowing to Administrative Agent on the date such notice was
given.
Neither
Administrative Agent nor any Lender shall incur any liability to Borrower in
acting upon any telephonic notice referred to above that Administrative Agent
believes in good faith to have been given by a duly authorized Officer or other
Person authorized to borrow on behalf of Borrower or for otherwise acting in
good faith under this subsection 2.1B,
and
upon funding of Loans by Lenders, in accordance with this Agreement pursuant
to
any such telephonic notice Borrower shall have effected Loans
hereunder.
Borrower
shall notify Administrative Agent prior to the funding of any Loans if any
of
the matters to which Borrower is required to certify in the applicable Notice
of
Borrowing is no longer true and correct as of the applicable Funding Date,
and
the acceptance by Borrower of the proceeds of any Loans shall constitute a
re-certification by Borrower, as of the applicable Funding Date, as to the
matters to which Borrower is required to certify in the applicable Notice of
Borrowing.
Except
as
otherwise provided in subsections 2.6B,
2.6C
and
2.6G,
a
Notice of Borrowing for a LIBOR Loan (or telephonic notice in lieu thereof)
shall be irrevocable once Administrative Agent receives such notice, and
Borrower shall be bound to make a borrowing in accordance
therewith.
C. Disbursement
of Funds. Subject
to subsection 2.1A(iii), all Term Loans and Revolving Loans under this Agreement
shall be made by Lenders having a Commitment of that Type simultaneously and
proportionately to their respective Pro Rata Shares, it being understood that
neither Administrative Agent nor any Lender shall be responsible for any default
by any other Lender in that other Lender’s obligation to make a Loan requested
hereunder nor shall the Commitment of any Lender to make the particular Type
of
Loan requested be increased or decreased as a result of a default by any other
Lender in that other Lender’s obligation to make a Loan requested hereunder.
Promptly after receipt by Administrative Agent of a Notice of Borrowing pursuant
to subsection 2.1B
(or
telephonic notice in lieu thereof), Administrative Agent shall notify each
Lender for that Type of Loan of the proposed borrowing. Each such Lender shall
make the amount of its Loan available to Administrative Agent not later than
Noon (New York City time) on the applicable Funding Date, in same day funds
in
Dollars, at the Administrative Agent’s Office. Except as provided in subsection
2.1A(ii)
or
subsection 3.3B
with
respect to Revolving Loans used to reimburse any Issuing Lender for the amount
of a drawing under a Letter of Credit issued by it, upon satisfaction or waiver
of the conditions precedent specified in subsections 4.1
(in the
case of Loans made on the Effective Date) and 4.2
(in the
case of all Loans), Administrative Agent shall promptly upon receipt make the
proceeds of such Loans available to Borrower on the applicable Funding Date
by
causing an amount of same day funds in Dollars equal to the proceeds of all
such
Loans received by Administrative Agent from Lenders to be wire transferred
to
the account of Borrower as specified in the applicable Notice of
Borrowing.
Unless
Administrative Agent shall have been notified by any Lender prior to a Funding
Date for any Loans that such Lender does not intend to make available to
Administrative Agent the amount of such Lender’s Loan requested on such Funding
Date, Administrative Agent may assume that such Lender has made such amount
available to Administrative Agent on such Funding Date and Administrative Agent
may, in its sole discretion, but shall not be obligated to, make available
to
Borrower a corresponding amount on such Funding Date. If such corresponding
amount is not in fact made available to Administrative Agent by such Lender,
Administrative Agent shall be entitled to recover such corresponding amount
on
demand from such Lender together with interest thereon, for each day from such
Funding Date until the date such amount is paid to Administrative Agent, at
the
customary rate set by Administrative Agent for the correction of errors among
banks for three Business Days and thereafter at the Base Rate. If such Lender
does not pay such corresponding amount forthwith upon Administrative Agent’s
demand therefor, Administrative Agent shall promptly notify Borrower and
Borrower shall immediately pay such corresponding amount to Administrative
Agent
together with interest thereon, for each day from such Funding Date until the
date such amount is paid to Administrative Agent, at the rate payable under
this
Agreement for Base Rate Loans for such Type of Loans. Nothing in this subsection
2.1C
shall be
deemed to relieve any Lender from its obligation to fulfill its Commitments
hereunder or to prejudice any rights that Borrower may have against any Lender
as a result of any default by such Lender hereunder.
D. The
Register.
(i) Administrative
Agent shall maintain, at its address referred to in subsection 10.8,
a
register for the recordation of the names and addresses of Lenders and the
Commitments and Loans of each Lender from time to time (the “Register”).
The
Register shall be available for inspection by Borrower at any reasonable time
and from time to time upon reasonable prior notice.
(ii) Administrative
Agent shall record in the Register the Term Loan Commitment and Revolving Loan
Commitment and the Term Loans and Revolving Loans from time to time of each
Lender, and each repayment or prepayment in respect of the principal amount
of
the Term Loans or Revolving Loans of each Lender. Any such recordation shall
be
conclusive and binding on Borrower and each Lender, absent manifest error;
provided
that
failure to make any such recordation, or any error in such recordation, shall
not affect any Lender’s Commitments or Borrower’s Obligations in respect of any
applicable Loans.
(iii) Each
Lender may record on its internal records (including the Notes held by such
Lender) the amount of the Term Loans and each Revolving Loan made by it and
each
payment in respect thereof. Any such recordation shall be conclusive and binding
on Borrower, absent manifest error; provided
that
failure to make any such recordation, or any error in such recordation, shall
not affect any Lender’s Commitments or Borrower’s Obligations in respect of any
applicable Loans; and provided further
that in
the event of any inconsistency between the Register and any Lender’s records,
the recordations in the Register shall govern (absent manifest
error).
(iv) Borrower,
Administrative Agent and Lenders shall deem and treat the Persons listed as
Lenders in the Register as the holders and owners of the corresponding
Commitments and Loans listed therein for all purposes hereof, and no assignment
or transfer of any such Commitment or Loan shall be effective, in each case
unless and until an Assignment Agreement effecting the assignment or transfer
thereof shall have been accepted by Administrative Agent and recorded in the
Register as provided in subsection 10.1B(ii).
Prior
to such recordation, all amounts owed with respect to the applicable Commitment
or Loan shall be owed to the Lender listed in the Register as the owner thereof,
and any request, authority or consent of any Person who, at the time of making
such request or giving such authority or consent, is listed in the Register
as a
Lender shall be conclusive and binding on any subsequent holder, assignee or
transferee of the corresponding Commitments or Loans.
(v) Borrower
hereby designates CIBC to serve as Borrower’s agent solely for purposes of
maintaining the Register as provided in this subsection 2.1D,
and
Borrower hereby agrees that, to the extent CIBC serves in such capacity, CIBC
and its officers, directors, employees, agents and Affiliates shall constitute
Indemnitees for all purposes under subsection 10.3.
E. Optional
Notes.
If so
requested by any Lender by written notice to Borrower (with a copy to
Administrative Agent) at least two Business Days prior to the Effective Date
or
at any time thereafter, Borrower shall execute and deliver on the Effective
Date
or within three Business Days after receipt of a written request therefor to
the
requesting Lender (or to Administrative Agent for that Lender if requested
by
such Lender) (a) a Term Note substantially in the form of Exhibit
V
annexed
hereto to evidence that Lender’s Term Loan, in the principal amount of that
Lender’s Term Loan and with other appropriate insertions, and/or (b) a Revolving
Note substantially in the form of Exhibit
VI
annexed
hereto to evidence that Lender’s Revolving Loans, in the principal amount of
that Lender’s Revolving Loan Commitment and with other appropriate insertions;
provided
that any
Existing Lender requesting a Note must deliver any Note or Notes issued in
its
favor under the Existing Credit Agreement or deliver a lost note affidavit
satisfactory to Administrative Agent and Borrower stating that such Note or
Notes have been lost and providing for indemnification of Borrower prior to
delivery of a new Note hereunder.
Administrative
Agent may deem and treat the payee of any Note (or Loan) as the owner thereof
for all purposes hereof unless and until an Assignment Agreement effecting
the
assignment or transfer thereof shall have been accepted by Administrative Agent
as provided in subsection 10.1B(ii).
Any
request, authorization or consent of any Person who, at the time of making
such
request or giving such authority or consent, is the holder of any Note (or
Loan)
shall be conclusive and binding on any subsequent holder, assignee or transferee
of that Note (or Loan) or of any Note or Notes issued in exchange
therefor.
If
Borrower increases the aggregate principal amount of the Term Loans or Revolving
Loan Commitments, as the case may be, pursuant to subsection 2.1A(iii), Borrower
shall issue replacement Term Notes or Revolving Notes, as the case may be,
to
each Increasing Lender (or to Administrative Agent for such Increasing Lender)
that requested a Note in accordance with the terms hereof and new Term Notes
or
Revolving Notes, as the case may be, to each New Lender (or to Administrative
Agent for such New Lender) that requested a Note in accordance with the terms
hereof.
| 2.2 |
Interest
on the Loans.
|
A. Rate
of Interest.
Subject
to the provisions of subsections 2.6
and
2.7,
each
Term Loan and each Revolving Loan shall bear interest on the unpaid principal
amount thereof from the date made through maturity (whether by acceleration
or
otherwise) at a rate determined by reference to the Base Rate or Adjusted LIBOR.
The applicable basis for determining the rate of interest with respect to any
Term Loan or any Revolving Loan shall be selected by Borrower initially at
the
time a Notice of Borrowing is given with respect to such Loan pursuant to
subsection 2.1B,
and the
basis for determining the interest rate with respect to any Term Loan or any
Revolving Loan may be changed from time to time pursuant to
subsection 2.2D.
If on
any day a Term Loan or Revolving Loan is outstanding with respect to which
notice has not been delivered to Administrative Agent in accordance with the
terms of this Agreement specifying the applicable basis for determining the
rate
of interest, then for that day that Loan shall bear interest determined by
reference to the Base Rate.
Subject
to the provisions of subsections 2.2E and 2.7,
the
Term Loans and the Revolving Loans shall bear interest through maturity as
follows:
(i) if
a Base
Rate Loan, then at the sum of the Base Rate plus
the
Applicable Base Rate Margin for such Type of Loans; or
(ii) if
a
LIBOR Loan, then at the sum of Adjusted LIBOR plus
the
Applicable LIBOR Margin for such Type of Loans.
Upon
delivery of the Margin Determination Certificate by Borrower to Administrative
Agent pursuant to subsection 6.1(xviii),
the
Applicable Base Rate Margin and Applicable LIBOR Margin shall automatically
be
adjusted in accordance with such Margin Determination Certificate, such
adjustment to become effective on the next succeeding Margin Reset Date;
provided
that (1)
at any time a Margin Determination Certificate is not delivered at the time
required pursuant to subsection 6.1(xviii),
from
the time such Margin Determination Certificate was required to be delivered
until delivery of such Margin Determination Certificate, the Applicable Base
Rate Margin shall be 1.25% for each Revolving Loan, and the Applicable LIBOR
Margin shall be 2.25% for each Revolving Loan, and (2) if a Margin Determination
Certificate erroneously indicates an applicable margin (x) more favorable to
Borrower than should be afforded by the actual calculation of the Consolidated
Total Leverage Ratio, Borrower shall promptly pay additional interest and letter
of credit fees to correct for such error and (y) less favorable to Borrower
than
should be afforded by the actual calculation of the Consolidated Total Leverage
Ratio, so long as no Event of Default or Potential Event of Default has occurred
and is continuing, Lenders shall promptly reimburse Borrower an amount equal
to
such excess interest and letter of credit fees to correct for such
error.
B. Interest
Periods. In
connection with each LIBOR Loan, Borrower may, pursuant to the applicable Notice
of Borrowing or Notice of Conversion/Continuation, as the case may be, select
an
interest period (each, an “Interest
Period”)
to be
applicable to such Loan, which Interest Period shall be, at Borrower’s option,
either a one, two, three or six month period (or with respect to clause (vi)
below only, such shorter period acceptable to Administrative Agent);
provided
that:
(i) the
initial Interest Period for any LIBOR Loan shall commence on the Funding Date
in
respect of such Loan, in the case of a Loan initially made as a LIBOR Loan,
or
on the date specified in the applicable Notice of Conversion/Continuation,
in
the case of a Loan converted to a LIBOR Loan;
(ii) in
the
case of immediately successive Interest Periods applicable to a LIBOR Loan
continued as such pursuant to a Notice of Conversion/Continuation, each
successive Interest Period shall commence on the day on which the next preceding
Interest Period expires;
(iii) if
an
Interest Period would otherwise expire on a day that is not a Business Day,
such
Interest Period shall expire on the next succeeding Business Day; provided
that, if
any Interest Period would otherwise expire on a day that is not a Business
Day
but is a day of the month after which no further Business Day occurs in such
month, such Interest Period shall expire on the next preceding Business
Day;
(iv) any
Interest Period that begins on the last Business Day of a calendar month (or
on
a day for which there is no numerically corresponding day in the calendar month
at the end of such Interest Period) shall, subject to clause (v) of this
subsection 2.2B,
end on
the last Business Day of a calendar month;
(v) no
Interest Period with respect to any portion of the Term Loans shall extend
beyond the Term Loan Maturity Date, and no Interest Period with respect to
any
portion of the Revolving Loans shall extend beyond the Revolving Loan Commitment
Termination Date;
(vi) no
Interest Period with respect to any portion of any Term Loans shall extend
beyond a date on which Borrower is required to make a scheduled payment of
principal of such Term Loans unless the sum of (a) the aggregate principal
amount of such Term Loans that are Base Rate Loans plus
(b) the
aggregate principal amount of such Term Loans that are LIBOR Loans with Interest
Periods expiring on or before such date equals or exceeds the principal amount
required to be paid on such Term Loans on such date;
(vii) there
shall be no more than twelve (12) Interest Periods outstanding at any
time;
(viii) if
Borrower fails to specify an Interest Period for any LIBOR Loan in the
applicable Notice of Borrowing or Notice of Conversion/Continuation, Borrower
shall be deemed to have selected an Interest Period of one month;
and
(ix) no
Interest Period with respect to any portion of the Revolving Loans shall extend
beyond the date on which a permanent reduction of the Revolving Loan Commitments
is scheduled to occur unless the sum of (a) the aggregate principal
amount
of Revolving Loans that are Base Rate Loans plus
(b) the aggregate principal amount of Revolving Loans that are LIBOR
Loans
with Interest Periods expiring on or before such date plus
(c) the excess of the Revolving Loan Commitments then in effect over
the
aggregate Total Utilization of Revolving Loan Commitments then outstanding
equals or exceeds the permanent reduction of the Revolving Loan Commitments
that
is scheduled to occur on such date.
C. Interest
Payments. Subject
to the provisions of subsection 2.2E, interest on each Loan shall be payable
in
arrears on and to each Interest Payment Date applicable to that Loan, upon
any
prepayment of that Loan (to the extent accrued on the amount being prepaid)
and
at maturity (including final maturity) provided
that if
any Revolving Loans that are Base Rate Loans are prepaid pursuant to subsection
2.4B(i),
interest accrued on such Loans through the date of such prepayment shall be
payable on the next succeeding Interest Payment Date applicable to Base Rate
Loans (or, if earlier, at final maturity).
D. Conversion
or Continuation.
(i) Subject
to the provisions of subsection 2.6, Borrower shall have the option (a) to
convert at any time all or any part of its outstanding Term Loans or Revolving
Loans from Loans bearing interest at a rate determined by reference to one
basis
to Loans bearing interest at a rate determined by reference to an alternative
basis, in each case in the minimum amount of $1,000,000 and integral multiples
of $1,000,000 and (b) upon the expiration of any Interest Period applicable
to a
LIBOR Loan, to continue all or any portion of such Loan in the minimum amount
of
$2,500,000 and integral multiples of $1,000,000 in excess of that amount as
a
LIBOR Loan; provided, however, that a LIBOR Loan may only be converted into
a
Base Rate Loan on the expiration date of an Interest Period applicable
thereto.
(ii) Borrower
shall deliver a Notice of Conversion/Continuation to Administrative Agent no
later than 10:00 AM (New York City time) at least three Business Days in advance
of the proposed conversion/continuation date of any Loan. With respect to any
LIBOR Loan, (a) if Borrower fails to deliver a Notice of Conversion/Continuation
as described above, Borrower shall be deemed to have elected to continue such
LIBOR Loan as a LIBOR Loan with an interest period of one month on the last
day
of the then-expiring Interest Period; provided
that if
such continuation is not permitted under the terms of this Agreement, then
clause (b) of this subsection 2.2D(ii) shall apply, or (b) if any proposed
conversion/continuation under this subsection 2.2D is not permitted hereunder,
Borrower shall be deemed to have elected to convert such LIBOR Loan to a Base
Rate Loan on the last day of the then-expiring Interest Period.
(iii) A
Notice
of Conversion/Continuation shall specify (a) the proposed
conversion/continuation date (which shall be a Business Day), (b) the amount
and
Type of the Loan to be converted/continued, (c) the nature of the proposed
conversion/continuation, (d) in the case of a conversion to, or a continuation
of, a LIBOR Loan, the requested Interest Period, and (e) in the case of a
conversion to, or a continuation of, a LIBOR Loan, that no Potential Event
of
Default or Event of Default has occurred and is continuing. In lieu of
delivering the above-described Notice of Conversion/Continuation, Borrower
may
give Administrative Agent telephonic notice by the required time of any proposed
conversion/continuation under this subsection 2.2D, provided that Administrative
Agent shall receive a Notice of Conversion/Continuation to confirm such
telephonic notice no later than 2:00 P.M. (New York City time) on the day on
which such telephonic notice is given. Upon receipt of written or telephonic
notice of any proposed conversion/continuation under this subsection 2.2D,
Administrative Agent shall promptly transmit such notice by telefacsimile or
electronic mail (or by telephone promptly confirmed by telefacsimile or
electronic mail) to each Lender.
(iv) Neither
Administrative Agent nor any Lender shall incur any liability to Borrower in
acting upon any telephonic notice referred to above that Administrative Agent
believes in good faith to have been given by a duly authorized Officer or other
Person authorized to act on behalf of Borrower or for otherwise acting in good
faith under this subsection 2.2D, and upon conversion or continuation of the
applicable basis for determining the interest rate with respect to any Loans
in
accordance with this Agreement pursuant to any such telephonic notice Borrower
shall have effected a conversion or continuation, as the case may be,
hereunder.
(v) Except
as
otherwise provided in subsections 2.6B, 2.6C and 2.6G, a notice of a proposed
conversion to, or continuation of, a LIBOR Loan (whether by delivery of a Notice
of Conversion/Continuation or telephonic notice) shall be irrevocable once
Administrative Agent receives such notice, and Borrower shall be bound to effect
a conversion or continuation in accordance therewith.
E. Post-Maturity
Interest.
Any
principal payments on the Loans (whether Base Rate Loans or LIBOR Loans) not
paid when due and, to the extent permitted by applicable law, any interest
payments on the Loans or any fees or other amounts owed hereunder not paid
when
due, in each case whether at stated maturity, by notice of prepayment, by
acceleration or otherwise, shall thereafter bear interest (including
post-petition interest in any proceeding under the Bankruptcy Code or other
applicable bankruptcy laws) payable on demand at a rate that is 2.00% per annum
in excess of the highest interest rate otherwise payable under this Agreement
for Base Rate Loans; provided
that, in
the case of LIBOR Loans, upon the expiration of the Interest Period in effect
at
the time any such increase in interest rate is effective such LIBOR Loans shall
thereupon become Base Rate Loans and shall thereafter bear interest (including
post-petition interest in any proceeding under the Bankruptcy Code or other
applicable bankruptcy laws) payable upon demand at a rate that is 2.00% per
annum in excess of the highest interest rate otherwise payable under this
Agreement for Base Rate Loans. Payment or acceptance of the increased rates
of
interest provided for in this subsection 2.2E is not a permitted
alternative to timely payment and shall not constitute a waiver of any Event
of
Default or otherwise prejudice or limit any rights or remedies of Administrative
Agent or any Lender.
F. Computation
of Interest. Interest
on the Loans and other Obligations shall be computed (i) in the case
of
Base Rate Loans, on the basis of a 365-day year or 366-day year, as the case
may
be, and (ii) in the case of LIBOR Loans and other Obligations (other
than
Base Rate Loans), on the basis of a 360-day year, in each case for the actual
number of days elapsed in the period during which it accrues. In computing
interest on any Loan, the date of the making of such Loan or the first day
of an
Interest Period applicable to such Loan or, with respect to a Base Rate Loan
being converted from a LIBOR Loan, the date of conversion of such LIBOR Loan
to
such Base Rate Loan, as the case may be, shall be included, and the date of
payment of such Loan or the expiration date of an Interest Period applicable
to
such Loan or, with respect to a Base Rate Loan being converted to a LIBOR Loan,
the date of conversion of such Base Rate Loan to such LIBOR Loan, as the case
may be, shall be excluded; provided
that if
a Loan is repaid on the same day on which it is made, one day’s interest shall
be paid on that Loan.
G. Maximum
Rate. Notwithstanding
the foregoing provisions of this subsection 2.2,
in no
event shall the rate of interest payable by Borrower with respect to any Loan
exceed the maximum rate of interest permitted to be charged under applicable
law.
| 2.3 |
Fees.
|
A. Revolving
Loan Commitment Fees. Borrower
agrees to pay to Administrative Agent, for distribution to each Lender in
proportion to that Lender’s Pro Rata Share of the Revolving Loan Commitments,
commitment fees for the period from and including the Effective Date to and
excluding the Revolving Loan Commitment Termination Date equal to the average
of
the daily excess of the Revolving Loan Commitments over the Total Utilization
of
Revolving Loan Commitments multiplied
by
0.50%
per annum, such commitment fees to be calculated on the basis of a 360-day
year
and the actual number of days elapsed and to be payable quarterly in arrears
on
the last Business Day of each March, June, September and December of each year
commencing on the first such date to occur after the Effective Date, and on
the
Revolving Loan Commitment Termination Date.
B. Other
Fees. Borrower
agrees to pay to Lead Arranger and Administrative Agent such fees in the amounts
and at the times separately agreed upon between Borrower, Lead Arranger and
Administrative Agent.
| 2.4 |
Repayments,
Prepayments and Reductions in Revolving Loan Commitments; General
Provisions Regarding Payments; Application of Proceeds of Collateral
and
Payments Under Subsidiary Guaranty.
|
A. Scheduled
Payments of Term Loans.
(i) Scheduled
Payments of Term Loans.
Borrower shall make principal payments on the Term Loans in installments on
the
last Business Day of each of the months and in the amounts set forth
below:
|
Date
|
Scheduled
Repayment
|
|
December,
2005
|
$
475,000
|
|
March,
2006
|
$
475,000
|
|
June,
2006
|
$
475,000
|
|
September,
2006
|
$
475,000
|
|
December,
2006
|
$
475,000
|
|
March,
2007
|
$
475,000
|
|
June,
2007
|
$
475,000
|
|
September,
2007
|
$
475,000
|
|
December,
2007
|
$
475,000
|
|
March,
2008
|
$
475,000
|
|
June,
2008
|
$
475,000
|
|
September,
2008
|
$
475,000
|
|
December,
2008
|
$
475,000
|
|
March,
2009
|
$
475,000
|
|
June,
2009
|
$
475,000
|
|
September,
2009
|
$
475,000
|
|
December,
2009
|
$
475,000
|
|
March,
2010
|
$
475,000
|
|
June,
2010
|
$
475,000
|
|
September,
2010
|
$
475,000
|
|
December,
2010
|
$
45,125,000
|
|
March,
2011
|
$
45,125,000
|
|
June,
2011
|
$
45,125,000
|
|
September,
2011
|
$
45,125,000
|
;
provided
that the
scheduled installments of principal of the Term Loans set forth above shall
be
reduced in connection with any voluntary or mandatory prepayments of the Term
Loans in accordance with subsection 2.4B(iv); and provided,
further
that the
Term Loans and all other amounts owed hereunder with respect to the Term Loans
shall be paid in full no later than the Term Loan Maturity Date, and the final
installment payable by Borrower in respect of the Term Loans on such date shall
be in an amount, if such amount is different from that specified above,
sufficient to repay all amounts owing by Borrower under this Agreement with
respect to the Term Loans.
B. Prepayments
and Unscheduled Reductions in Revolving Loan Commitments.
(i) Voluntary
Prepayments and Repayments.
Borrower may, upon not less than one Business Day’s irrevocable prior written or
telephonic notice, in the case of Base Rate Loans, and three Business Days’
irrevocable prior written or telephonic notice, in the case of LIBOR Loans,
in
each case given to Administrative Agent by 12:00 Noon (New York City time)
on
the date required and, if given by telephone, promptly confirmed in writing
to
Administrative Agent (which written or telephonic notice Administrative Agent
will promptly transmit by telefacsimile or electronic mail to each Lender for
the Loans to be prepaid), prepay any Term Loans and repay Revolving Loans on
any
Business Day in whole or in part in an aggregate minimum amount of $1,000,000
and integral multiples of $1,000,000 in excess of that amount; provided,
however, that a LIBOR Loan may only be prepaid or repaid on the expiration
of
the Interest Period applicable thereto. Notice of prepayment or repayment having
been given as aforesaid, the principal amount of the Loans specified in such
notice shall become due and payable on the prepayment or repayment date
specified therein. Any such voluntary prepayment shall be applied as specified
in subsection 2.4B(iv).
(ii) Voluntary
Reductions of Revolving Loan Commitments.
Borrower may, upon not less than three Business Days’ irrevocable prior written
or telephonic notice to Administrative Agent (and if given by telephone,
promptly confirmed in writing to Administrative Agent) (which written or
telephonic notice Administrative Agent will promptly transmit to each Lender),
at any time and from time to time terminate in whole or permanently reduce
in
part, without premium or penalty, the Revolving Loan Commitments in an amount
up
to the amount by which the Revolving Loan Commitments exceed the Total
Utilization of Revolving Loan Commitments at the time of such proposed
termination or reduction; provided
that any
such partial reduction of the Revolving Loan Commitments shall be in an
aggregate minimum amount of $1,000,000 and integral multiples of $1,000,000
in
excess of that amount. Borrower’s notice to Administrative Agent shall designate
the date (which shall be a Business Day) of such termination or reduction and
the amount of any partial reduction, and such termination or reduction of the
Revolving Loan Commitments shall be effective on the date specified in
Borrower’s notice and shall reduce the Revolving Loan Commitment of each
Revolving Lender proportionately to its Pro Rata Share.
(iii) Mandatory
Prepayments and Mandatory Reductions of Revolving Loan
Commitments.
The
Loans shall be prepaid and/or the Revolving Loan Commitments shall be
permanently reduced in the amounts and under the circumstances set forth below,
all such prepayments and/or reductions to be applied as set forth below or
as
more specifically provided in subsection 2.4B(iv):
(a) Prepayments
and Reductions From Net Asset Sale Proceeds.
No
later than the first Business Day following the date of receipt by Borrower
or
any of its Subsidiaries of any Net Asset Sale Proceeds in respect of any Asset
Sale, (1) Borrower shall prepay the Loans and/or (2) the Revolving
Loan Commitments shall be permanently reduced in an aggregate amount equal
to
100% of the amount of such Net Asset Sale Proceeds;
provided,
however, that such Net Asset Sale Proceeds received by Borrower or any of its
Subsidiaries from any Asset Sales permitted under subsection 7.7 shall be
excluded from the requirements of this subsection 2.4B(iii)(a) to the extent
such proceeds are reinvested or Borrower has committed to the Administrative
Agent and the Lenders in writing to reinvest such proceeds in a Related Business
within 180 days after receipt of such proceeds; provided further
that, if
any such Net Asset Sale Proceeds are not so reinvested or Borrower has not
committed in writing to reinvest such proceeds within such 180 day period,
then
such proceeds shall be applied as required by this subsection
2.4B(iii)(a).
(b) Prepayments
and Reductions from Net Insurance/Condemnation Proceeds.
No
later than the first Business Day following the date of receipt by
Administrative Agent or by Borrower or any of its Subsidiaries of any Net
Insurance/Condemnation Proceeds that are required to be applied to prepay the
Loans and/or reduce the Revolving Loan Commitments pursuant to the provisions
of
any Effective Date Mortgage or any Additional Mortgage, as the case may be,
Borrower shall prepay the Loans and/or the Revolving Loan Commitments shall
be
permanently reduced in an aggregate amount equal to the amount of such Net
Insurance/Condemnation Proceeds; provided, however, that such Net
Insurance/Condemnation Proceeds shall be excluded from the requirements of
this
subsection 2.4B(iii)(b)
to the
extent (i) Borrower or such Subsidiary determines to utilize such Net
Insurance/Condemnation Proceeds to replace, rebuild or repair the asset damaged,
destroyed or taken, (ii) Borrower or such Subsidiary so utilizes or has
committed to the Administrative Agent and the Lenders in writing to so utilize
such Net Insurance/Condemnation Proceeds within 180 days after the receipt
of
such proceeds, and (iii) such Net Insurance/Condemnation Proceeds do not exceed
$20,000,000 in the aggregate and Borrower has the financial capacity to complete
such replacement, rebuilding or repair; provided further that, if any such
Net
Insurance/Condemnation Proceeds are not so utilized or committed in writing
to
be utilized within such 180 day period, then such proceeds shall be applied
as
required by this subsection 2.4B(iii)(b).
(c) Prepayments
and Reductions Due to Issuance of Indebtedness.
On the
date of receipt by Borrower or any of its Subsidiaries of the Net Debt Proceeds
from the issuance of any Indebtedness of Borrower or any of its Subsidiaries,
other than pursuant to subsection 7.1(i),
(ii),
(iii),
(iv),
(vi)
or
(vii), Borrower shall prepay the Loans and/or the Revolving Loan Commitments
shall be permanently reduced in an aggregate amount equal to 100% of such Net
Debt Proceeds.
(d) Intentionally
Omitted.
(e) Calculations
of Net Proceeds Amounts; Additional Prepayments and Reductions Based on
Subsequent Calculations.
Concurrently with any prepayment of the Loans and/or reduction of the Revolving
Loan Commitments pursuant to subsections 2.4B(iii)(a)-(c),
Borrower shall deliver to Administrative Agent an Officer’s Certificate
demonstrating the calculation of the amount (the “Net
Proceeds Amount”)
of the
applicable Net Asset Sale Proceeds, Net Insurance/Condemnation Proceeds or
Net
Debt Proceeds, as the case may be, that gave rise to such prepayment and/or
reduction. If Borrower subsequently determines that the actual Net Proceeds
Amount was greater than the amount set forth in such Officer’s Certificate
(including if any actual taxes to be paid as a result of an Asset Sale are
less
than the estimated taxes to be paid as a result of such Asset Sale), Borrower
shall promptly make an additional prepayment of the Loans (and/or, if
applicable, the Revolving Loan Commitments shall be permanently reduced) in
an
amount equal to the amount of such excess, and Borrower shall concurrently
therewith deliver to Administrative Agent an Officer’s Certificate demonstrating
the derivation of the additional Net Proceeds Amount resulting in such
excess.
(f) Repayments
Due to Reductions or Restrictions of Revolving Loan Commitments.
Borrower shall from time to time repay the Revolving Loans and, to the extent
that the Revolving Loans have been paid in full, cash collateralize all
outstanding Letters of Credit, to the extent necessary so that the Total
Utilization of Revolving Loan Commitments shall not at any time exceed the
Revolving Loan Commitments then in effect.
(iv) Application
of Prepayments.
(a) Application
of Voluntary Prepayments by Type of Loans and Order of Maturity.
Subject
to the provisions of subsection 2.4D,
any
voluntary prepayments pursuant to subsection 2.4B(i)
shall be
applied to repay the Term Loans; after the Term Loans are repaid in full the
Revolving Loan Commitments shall terminate and all outstanding Revolving Loans
shall be paid in full and all Letters of Credit shall be terminated or cash
collateralized in a manner satisfactory to Issuing Lender. Any voluntary
prepayments of the Term Loans pursuant to subsection 2.4B(i) shall be applied
to
reduce the scheduled installments of principal of the Term Loans set forth
in
subsection 2.4A(i), in inverse order of maturity; provided,
however, that Borrower, at its option, may apply such voluntary prepayments
first
to
reduce the immediately succeeding two scheduled installments of principal of
the
Term Loans set forth in subsection 2.4A(i), and second,
to the
extent of any remaining portion of such voluntary prepayments, to reduce the
scheduled installments of principal of the Term Loans set forth in subsection
2.4A(i), in inverse order of maturity.
(b) Application
of Mandatory Prepayments by Type of Loans.
Subject
to the provisions of subsection 2.4D,
any
amount required to be applied as a mandatory prepayment of the Loans and/or
a
reduction of the Revolving Loan Commitments pursuant to subsections 2.4B(iii)(a)-(c)
shall be
applied first
to
prepay the Term Loans to the full extent thereof and second,
to the
extent of any remaining portion of such amount, to prepay the Revolving Loans
in
full; after the Term Loans are repaid in full, the Revolving Loan Commitments
shall terminate and all outstanding Revolving Loans shall be paid in full and
all Letters of Credit shall be terminated or cash collateralized in a manner
satisfactory to Issuing Lender. If an Event of Default has occurred and is
continuing, any amount required to be applied as a mandatory prepayment shall
be
applied as set forth in subsection 2.4D.
(c) Application
of Mandatory Prepayments of Term Loans to the Scheduled Installments of
Principal Thereof.
Any
mandatory prepayments of the Term Loans pursuant to subsection 2.4B(iii),
subject
to the provisions of subsection 2.4D,
shall
be applied to reduce the scheduled installments of principal of the Term Loans,
set forth in subsection 2.4A(i), in inverse chronological order of maturity.
(d) Application
of Prepayments to Base Rate Loans and LIBOR Loans.
Considering Term Loans and Revolving Loans being prepaid separately, any
prepayment thereof shall be applied first to Base Rate Loans to the full extent
thereof before application to LIBOR Loans, in each case in a manner which
minimizes the amount of any payments required to be made by Borrower pursuant
to
subsection 2.6D.
If on
any day on which Loans would otherwise be required to be prepaid pursuant to
subsection 2.4B(iii), but for the operation of this subsection 2.4B(iv)(d)
(each a “Prepayment
Date”),
the
amount of such required prepayment exceeds the then outstanding aggregate
principal amount of the Loans which consist of Base Rate Loans, and no Event
of
Default or Potential Event of Default has occurred and is continuing or would
occur as a result thereof, then on such Prepayment Date, Borrower may, at its
option, deposit Cash into an investment account with Administrative Agent (the
“Investment
Account”)
in an
amount equal to such excess; provided
that (x)
Borrower shall grant to Administrative Agent, on behalf of Lenders, a First
Priority security interest in such Investment Account and shall execute and
deliver such agreements and instruments as Administrative Agent may reasonably
request in order to perfect such security interest, and (y) Administrative
Agent
shall invest such Cash in Cash Equivalents only. If Borrower makes such deposit
(a) only the outstanding Base Rate Loans shall be required to be prepaid on
such
Prepayment Date and the LIBOR Loans shall be deemed to be outstanding and accrue
interest until prepaid, and (b) on the last day of each Interest Period in
effect after such Prepayment Date, Administrative Agent is irrevocably
authorized and directed to apply funds held in the Investment Account (and
liquidate investments held in the Investment Account as necessary) to prepay
the
LIBOR Loans for which the Interest Period is then ending until the aggregate
of
such prepayments equals the prepayment which would have been required on such
Prepayment Date but for the operation of this subsection 2.4(iv)(d). So long
as
no Event of Default or Potential Event of Default has occurred and is continuing
or would occur as a result thereof, at such time as the aggregate prepayments
made pursuant to the immediately preceding sentence equals the prepayment which
would have been required on such Prepayment Date but for the operation of this
subsection 2.4B(iv)(d) (and excluding any amounts which would otherwise have
been required to be paid under subsection 2.6D),
any
amounts remaining in the Investment Account after such prepayments, which
amounts are attributable to the deposit made on the applicable Prepayment Date
or to net income earned on such deposit, shall be remitted to an account
designated by Borrower.
C. General
Provisions Regarding Payments.
(i) Manner
and Time of Payment.
All
payments by Borrower of principal, interest, fees and other Obligations shall
be
made in Dollars in same day funds, without defense, setoff or counterclaim,
free
of any restriction or condition, and delivered to Administrative Agent not
later
than 12:00 Noon (New York City time) on the date due at Administrative Agent’s
Office for the account of Lenders; funds received by Administrative Agent after
that time on such due date shall be deemed to have been paid by Borrower on
the
next succeeding Business Day. Notwithstanding the foregoing, payments of amounts
deposited in the Investment Account pursuant to the proviso to subsection
2.4B(iv)(d)
shall be
deemed to have been paid by Borrower on the applicable date or dates such
amounts are applied to prepay LIBOR Loans. Borrower hereby authorizes
Administrative Agent to charge its accounts with Administrative Agent in order
to cause timely payment to be made to Administrative Agent of all principal,
interest, fees and expenses due hereunder (subject to sufficient funds being
available in its accounts for that purpose).
(ii) Application
of Payments.
Prior
to any payments being applied to principal or interest under this Agreement
or
under the Notes, such payments shall first be applied to any Obligations (other
than principal or interest due under the Loan Documents) then due and payable,
as determined in the reasonable opinion of Administrative Agent.
(iii) Application
of Payments to Principal and Interest.
Except
as provided in subsection 2.2C,
all
payments in respect of the principal amount of any Loan shall include payment
of
accrued interest on the principal amount being repaid or prepaid, and all such
payments (and, in any event, any payments in respect of any Loan on a date
when
interest is due and payable with respect to such Loan) shall be applied to
the
payment of interest before application to principal.
(iv) Apportionment
of Payments.
Aggregate principal and interest payments in respect of Term Loans and Revolving
Loans shall be apportioned among all outstanding Loans to which such payments
relate, in each case proportionately to Lenders’ respective Pro Rata Shares.
Administrative Agent shall promptly distribute to each Lender, at its primary
address set forth in the Register or at such other address as such Lender may
request, its Pro Rata Share of all such payments received by Administrative
Agent and the commitment fees of such Lender, if any, when received by
Administrative Agent pursuant to subsection 2.3.
Notwithstanding the foregoing provisions of this subsection 2.4C(iv),
if,
pursuant to the provisions of subsection 2.6C,
any
Notice of Conversion/Continuation is withdrawn as to any Affected Lender or
if
any Affected Lender makes Base Rate Loans in lieu of its Pro Rata Share of
any
LIBOR Loans, Administrative Agent shall give effect thereto in apportioning
payments received thereafter.
(v) Payments
on Business Days.
Whenever any payment to be made hereunder shall be stated to be due on a day
that is not a Business Day, such payment shall be made on the next succeeding
Business Day and such extension of time shall be included in the computation
of
the payment of interest hereunder or of the commitment fees hereunder, as the
case may be.
(vi) Notation
of Payment.
Each
Lender agrees that before disposing of any Note held by it, or any part thereof
(other than by granting participations therein), that Lender will use reasonable
efforts to make a notation thereon of all Loans evidenced by that Note and
all
principal payments previously made thereon and of the date to which interest
thereon has been paid; provided
that the
failure to make (or any error in the making of) a notation of any Loan made
under such Note shall not limit or otherwise affect the obligations of Borrower
hereunder or under such Note with respect to any Loan or any payments of
principal or interest on such Note or result in any liability for such Lender;
and provided, however, further, that in the event of any inconsistency the
Register shall govern (absent manifest error).
D. Application
of Proceeds of Collateral and Payments after Event of
Default.
Upon
the
occurrence and during the continuation of an Event of Default, (a) all payments
received on account of the Obligations, whether from Borrower, from any
Subsidiary Guarantor or otherwise, shall be applied by Administrative Agent
against the Obligations and (b) all proceeds received by Administrative Agent
in
respect of any sale of, collection from, or other realization upon all or any
part of the Collateral under any Collateral Document may, in the discretion
of
Administrative Agent, be held by Administrative Agent as Collateral for, and/or
(then or at any time thereafter) applied in full or in part by Administrative
Agent against, the applicable Secured Obligations (as defined in such Collateral
Document), in each case in the following order of priority:
(i) To
the
payment of all costs and expenses of such sale, collection or other realization,
including the reasonable fees and expenses of Administrative Agent and its
agents and counsel, and all other expenses, liabilities and advances made or
incurred by Administrative Agent in connection therewith, and all amounts for
which Administrative Agent is entitled to compensation (including the fees
described in subsection 2.3), reimbursement and indemnification under any Loan
Document and all advances made by Administrative Agent thereunder for the
account of the applicable Loan Party, and to the payment of all costs and
expenses paid or incurred by Administrative Agent in connection with the Loan
Documents, all in accordance with subsections 9.4, 10.2 and 10.3 and the other
terms of this Agreement and the other Loan Documents;
(ii) thereafter
to the payment of all other Secured Obligations (as defined in such Collateral
Document) or Guarantied Obligations (as defined in the Subsidiary Guaranty)
for
the ratable benefit of the holders thereof (subject to the provisions of
subsection 2.4C(ii)); and
(iii) thereafter
to the payment to or upon the order of such Loan Party or to whosoever may
be
lawfully entitled to receive the same or as a court of competent jurisdiction
may direct.
| 2.5 |
Use
of Proceeds.
|
A. Term
Loans and Revolving Loans.
The
proceeds of the Term Loans and the Revolving Loans made on the Effective Date
shall be applied by Borrower to consummate
the Transactions and pay Transaction Costs.
B. Revolving
Loans.
The
proceeds of any Revolving Loans made after the Effective Date shall be applied
by Borrower for working capital and other general corporate purposes, including
capital expenditures, refinancings, acquisitions and investments made in
accordance with the terms hereof.
C. Margin
Regulations.
No
portion of the proceeds of any borrowing under this Agreement shall be used
by
Borrower or any of its Subsidiaries in any manner that might cause the borrowing
or the application of such proceeds to violate Regulation T, Regulation U or
Regulation X of the Board of Governors of the Federal Reserve System
or any
other regulation of such Board or to violate the Exchange Act, in each case
as
in effect on the date or dates of such borrowing and such use of
proceeds.
| 2.6 |
Special
Provisions Governing LIBOR Loans.
|
Notwithstanding
any other provision of this Agreement to the contrary, the following provisions
shall govern with respect to LIBOR Loans as to the matters covered:
A. Determination
of Applicable Interest Rate. As
soon
as practicable after 12:00 Noon (New York City time) on each Interest Rate
Determination Date, Administrative Agent shall determine (which determination
shall, absent manifest error, be final, conclusive and binding upon all parties)
the interest rate that shall apply to the LIBOR Loans for which an interest
rate
is then being determined for the applicable Interest Period and shall promptly
give notice thereof (in writing or by telephone confirmed in writing) to
Borrower and each Lender.
B. Inability
to Determine Applicable Interest Rate.
If
Administrative Agent shall have determined (which determination shall be final
and conclusive and binding upon all parties hereto), on any Interest Rate
Determination Date with respect to any LIBOR Loans, that by reason of
circumstances affecting the interbank Eurodollar market adequate and fair means
do not exist for ascertaining the interest rate applicable to such Loans on
the
basis provided for in the definition of Adjusted LIBOR, Administrative Agent
shall on such date give notice (by telefacsimile or by telephone confirmed
in
writing) to Borrower and each Lender of such determination, whereupon
(i) no Loans may be made as, or converted to, LIBOR Loans until such
time
as Administrative Agent notifies Borrower and Lenders that the circumstances
giving rise to such notice no longer exist and (ii) any Notice of Borrowing
or Notice of Conversion/Continuation given by Borrower with respect to the
Loans
in respect of which such determination was made shall be deemed to be for a
Base
Rate Loan.
C. Illegality
or Impracticability of LIBOR Loans.
If on
any date any Lender shall have determined (which determination shall be final,
conclusive and binding upon all parties hereto but shall be made only after
consultation with Borrower and Administrative Agent) that the making,
maintaining or continuation of its LIBOR Loans (i) has become unlawful
as a
result of compliance by such Lender in good faith with any law, treaty,
governmental rule, regulation, guideline or order (or would conflict with any
such treaty, governmental rule, regulation, guideline or order not having the
force of law even though the failure to comply therewith would not be unlawful)
or (ii) has become impracticable, or would cause such Lender material
hardship, as a result of contingencies occurring after the date of this
Agreement which materially and adversely affect the interbank Eurodollar market
or the position of such Lender in that market, then, and in any such event,
such
Lender shall be an “Affected
Lender”
and it
shall on that day give notice (by telefacsimile or by telephone confirmed in
writing) to Borrower and Administrative Agent of such determination (which
notice Administrative Agent shall promptly transmit to each other Lender).
Thereafter (a) the obligation of the Affected Lender to make Loans as,
or
to convert Loans to, LIBOR Loans shall be suspended until such notice shall
be
withdrawn by the Affected Lender, (b) to the extent such determination
by
the Affected Lender relates to a LIBOR Loan then being requested by Borrower
pursuant to a Notice of Borrowing or a Notice of Conversion/Continuation, the
Affected Lender shall make such Loan as (or convert such Loan to, as the case
may be) a Base Rate Loan, (c) the Affected Lender’s obligation to maintain
its outstanding LIBOR Loans (the “Affected
Loans”)
shall
be terminated at the earlier to occur of the expiration of the Interest Period
then in effect with respect to the Affected Loans or when required by law,
and
(d) the Affected Loans shall automatically convert into Base Rate Loans
on
the date of such termination. Notwithstanding the foregoing, to the extent
a
determination by an Affected Lender as described above relates to a LIBOR Loan
then being requested by Borrower pursuant to a Notice of Borrowing or a Notice
of Conversion/Continuation, Borrower shall have the option, subject to the
provisions of subsection 2.6D,
to
rescind such Notice of Borrowing or Notice of Conversion/Continuation as to
all
Lenders by giving notice (by telefacsimile or by telephone confirmed in writing)
to Administrative Agent of such rescission on the date on which the Affected
Lender gives notice of its determination as described above (which notice of
rescission Administrative Agent shall promptly transmit to each other Lender).
Except as provided in the immediately preceding sentence, nothing in this
subsection 2.7C
shall
affect the obligation of any Lender other than an Affected Lender to make or
maintain Loans as, or to convert Loans to, LIBOR Loans in accordance with the
terms of this Agreement.
D. Compensation
For Breakage or Non-Commencement of Interest Periods. Borrower
shall compensate each Lender, upon written request by that Lender (which request
shall set forth the basis for requesting such amounts), for all reasonable
losses, expenses and liabilities (including any interest paid by that Lender
to
lenders of funds borrowed by it to make or carry its LIBOR Loans and any loss,
expense or liability sustained by that Lender in connection with the liquidation
or re-employment of such funds) which that Lender may sustain: (i) if
for
any reason (other than a default by that Lender) a borrowing of any LIBOR Loan
does not occur on a date specified therefor in a Notice of Borrowing or a
telephonic request for borrowing, or a conversion to or continuation of any
LIBOR Loan does not occur on a date specified therefor in a Notice of
Conversion/Continuation or a telephonic request for conversion or continuation,
(ii) if any prepayment (including any prepayment or conversion occasioned
by the circumstances described in subsection 2.6C)
or
other principal payment or any conversion of any of its LIBOR Loans occurs
on a
date prior to the last day of an Interest Period applicable to that Loan,
(iii) if any prepayment of any of its LIBOR Loans is not made on any
date
specified in a notice of prepayment given by Borrower, (iv) as a
consequence of any other default by Borrower in the repayment of its LIBOR
Loans
when required by the terms of this Agreement, or (v) as a consequence of
becoming a Replaced Lender pursuant to subsection 2.9B.
E. Booking
of LIBOR Loans.
Any
Lender may make, carry or transfer LIBOR Loans at, to, or for the account of
any
of its branch offices or the office of an Affiliate of that Lender.
F. Assumptions
Concerning Funding of LIBOR Loans.
Calculation of all amounts payable to a Lender under this subsection
2.6
and
under subsection 2.7A
shall be
made as though that Lender had actually funded each of its relevant LIBOR Loans
through the purchase of a Eurodollar deposit bearing interest at the rate
obtained pursuant to clause (i) of the definition of Adjusted LIBOR in an amount
equal to the amount of such LIBOR Loan and having a maturity comparable to
the
relevant Interest Period and through the transfer of such Eurodollar deposit
from an offshore office of that Lender to a domestic office of that Lender
in
the United States of America whether or not its LIBOR Loans had been funded
in
such manner; provided,
however, that each Lender may fund each of its LIBOR Loans in any manner it
sees
fit and the foregoing assumptions shall be utilized only for the purposes of
calculating amounts payable under this subsection 2.6
and
under subsection 2.7A.
G. LIBOR
Loans After Default.
After
the occurrence of and during the continuation of a Potential Event of Default
or
an Event of Default, (i) Borrower may not elect to have a Loan be made
or
maintained as, or converted to, a LIBOR Loan after the expiration of any
Interest Period then in effect for that Loan and (ii) subject to the
provisions of subsection 2.6D,
any
Notice of Borrowing or Notice of Conversion/Continuation given by Borrower
with
respect to a requested borrowing or conversion/continuation that has not yet
occurred shall be deemed to be rescinded by Borrower.
| 2.7 |
Increased
Costs; Taxes; Capital Adequacy.
|
A. Compensation
for Increased Costs and Taxes. Subject
to the provisions of subsection 2.7B
(which
shall be controlling with respect to the matters covered thereby), if any Lender
(including any Issuing Lender) shall determine (which determination shall,
absent manifest error, be final and conclusive and binding upon all parties
hereto) that any law, treaty or governmental rule, regulation or order, or
any
change therein or in the interpretation, administration or application thereof
(including the introduction of any new law, treaty or governmental rule,
regulation or order), or any determination of a court or Government Authority,
in each case that becomes effective after the date hereof, or compliance by
such
Lender with any guideline, request or directive issued or made after the date
hereof by any central bank or other Government Authority or quasi-Government
Authority (whether or not having the force of law):
(i) subjects
such Lender (or its applicable lending office) to any additional Tax with
respect to this Agreement or any of its obligations hereunder (including with
respect to issuing or maintaining any Letters of Credit or purchasing or
maintaining any participations therein or maintaining any Commitment hereunder)
or any payments to such Lender (or its applicable lending office) of principal,
interest, fees or any other amount payable hereunder;
(ii) imposes,
modifies or holds applicable any reserve (including any marginal, emergency,
supplemental, special or other reserve), special deposit, compulsory loan,
insurance charge or similar requirement against assets held by, or deposits
or
other liabilities in or for the account of, or advances or loans by, or other
credit extended by, or any other acquisition of funds by, any office of such
Lender (other than any such reserve or other requirements with respect to LIBOR
Loans that are reflected in the definition of Adjusted LIBOR); or
(iii) imposes
any other condition (other than with respect to a Tax matter) on or affecting
such Lender (or its applicable lending office) or its obligations hereunder
or
the interbank Eurodollar market;
and
the
result of any of the foregoing is to increase the cost to such Lender of
agreeing to make, making or maintaining its Loans or Commitments or agreeing
to
issue, issuing or maintaining any Letter of Credit or agreeing to purchase,
purchasing or maintaining any participation therein or to reduce any amount
received or receivable by such Lender (or its applicable lending office) with
respect thereto; then, in any such case, Borrower shall promptly pay to such
Lender, upon receipt of the statement referred to in the next sentence, such
additional amount or amounts (in the form of an increased rate of, or a
different method of calculating, interest or otherwise as such Lender in its
sole discretion shall determine) as may be necessary to compensate such Lender
on an after-tax basis for any such increased cost or reduction in amounts
received or receivable hereunder. Such Lender shall deliver to Borrower (with
a
copy to Administrative Agent) a written statement, setting forth in reasonable
detail the basis for calculating the additional amounts owed to such Lender
under this subsection 2.7A, which statement shall be conclusive and binding
upon
all parties hereto absent manifest error; provided,
however, that Borrower shall be liable for such additional amounts only if
such
Lender shall have delivered such written statement to Borrower within 90 days
after such Lender shall have made such determination of any such increased
costs; and provided further
that if
such Lender delivers such written statement after such 90 day period, then
Borrower shall be liable only for such additional amounts arising after delivery
to Borrower of such written statement.
B. Withholding
of Taxes.
(i) Payments
to Be Free and Clear.
All
sums payable by Borrower under this Agreement and the other Loan Documents
shall
(except to the extent required by law) be paid free and clear of, and without
any deduction or withholding on account of, any Tax imposed, levied, collected,
withheld or assessed by or within the United States of America or any political
subdivision in or of the United States of America or any other jurisdiction
from
or to which a payment is made by or on behalf of Borrower or by any federation
or organization of which the United States of America or any such jurisdiction
is a member at the time of payment.
(ii) Grossing-up
of Payments.
If
Borrower or any other Person is required by law to make any deduction or
withholding on account of any such Tax from any sum paid or payable by Borrower
to Administrative Agent or any Lender under any of the Loan
Documents:
(a) Borrower
shall notify Administrative Agent of any such requirement or any change in
any
such requirement as soon as Borrower becomes aware of it;
(b) Borrower
shall pay any such Tax before the date on which penalties attach thereto, such
payment to be made (if the liability to pay is imposed on Borrower) for its
own
account or (if that liability is imposed on Administrative Agent or such Lender,
as the case may be) on behalf of and in the name of Administrative Agent or
such
Lender;
(c) the
sum
payable by Borrower in respect of which the relevant deduction, withholding
or
payment is required shall be increased to the extent necessary to ensure that,
after the making of that deduction, withholding or payment, Administrative
Agent
or such Lender, as the case may be, receives on the due date a net sum equal
to
what it would have received had no such deduction, withholding or payment been
required or made; and
(d) within
30
days after paying any sum from which it is required by law to make any deduction
or withholding, and within 30 days after the due date of payment of any Tax
which it is required by clause (b) above to pay, Borrower shall deliver to
Administrative Agent and the affected Lenders evidence satisfactory to
Administrative Agent and the affected Lenders of such deduction, withholding
or
payment and of the remittance thereof to the relevant taxing or other
authority;
provided
that no
such additional amount shall be required to be paid to any Lender under clause
(c) above (i) to the extent such additional amount relates to a portion of
any
sums paid or payable to such Lender under any of the Loan Documents with respect
to which such Lender does not act for its own account or (ii) except to the
extent that any change after the date on which such Lender became a Lender
in
any such requirement for a deduction, withholding or payment as is mentioned
therein shall result in an increase in the rate of such deduction, withholding
or payment from that in effect on the date on which such Lender became a Lender,
in respect of payments to such Lender.
(iii) Evidence
of Exemption from U.S. Withholding Tax.
(a) Each
Lender that is organized under the laws of any jurisdiction other than the
United States or any state or other political subdivision thereof (for purposes
of this subsection 2.7B(iii),
a
“Non-US
Lender”)
shall
deliver to Administrative Agent and to Borrower, on or prior to the Effective
Date (in the case of each Lender listed on the signature pages hereof) or on
or
prior to the date of the Assignment Agreement pursuant to which it becomes
a
Lender (in the case of each other Lender), and at such other times as may be
necessary in the determination of Borrower or Administrative Agent (each in
the
reasonable exercise of its discretion), two original copies of Internal Revenue
Service Form W-8BEN or W-8ECI (or any successor forms) properly completed and
duly executed by such Non-US Lender, or, in the case of a Non-US Lender claiming
exemption from United States federal withholding tax under Section 871(h) or
881(c) of the Internal Revenue Code with respect to payments of “portfolio
interest”, a Form W-8BEN, and, in the case of a Non-US Lender that has certified
in writing to Administrative Agent that it is not a “bank” (as defined in
Section 881(c)(3)(A) of the Internal Revenue Code), a certificate (the
“Certificate
re: Non-Bank Status”)
of
such Non-US Lender certifying that such Non-US Lender is not (i) a “bank”
for purposes of Section 881(c) of the Internal Revenue Code, (ii) a
ten-percent shareholder (within the meaning of Section 871(h)(3)(B) of the
Internal Revenue Code) of Borrower, or (iii) a controlled foreign
corporation related to Borrower (within the meaning of Section 864(d)(4) of
the
Internal Revenue Code) in each case together with any other certificate or
statement of exemption required under the Internal Revenue Code or the
regulations issued thereunder to establish that such Non-US Lender is not
subject to United States withholding tax with respect to any payments to such
Non-US Lender of interest payable under any of the Loan Documents.
(b) Each
Non-US Lender, to the extent it does not act or ceases to act for its own
account with respect to any portion of any sums paid or payable to such Lender
under any of the Loan Documents (for example, in the case of a typical
participation by such Lender), shall deliver to Administrative Agent and to
Borrower, on or prior to the Effective Date (in the case of each Non-US Lender
listed on the signature pages hereof), on or prior to the date of the Assignment
Agreement pursuant to which it becomes a Lender (in the case of each other
Non-US Lender), or on such later date when such Non-US Lender ceases to act
for
its own account with respect to any portion of any such sums paid or payable,
and at such other times as may be necessary in the determination of Borrower
or
Administrative Agent (each in the reasonable exercise of its discretion), (1)
two original copies of the forms or statements required to be provided by such
Non-US Lender under subsection 2.8B(iii)(a),
properly completed and duly executed by such Non-US Lender, to establish the
portion of any such sums paid or payable with respect to which such Non-US
Lender acts for its own account that is not subject to United States withholding
tax, and (2) two original copies of Internal Revenue Service Form W-8IMY (or
any
successor forms) properly completed and duly executed by such Non-US Lender,
together with any information, if any, such Non-US Lender chooses to transmit
with such form, and any other certificate or statement of exemption required
under the Internal Revenue Code or the regulations issued thereunder, to
establish that such Non-US Lender is not acting for its own account with respect
to a portion of any such sums payable to such Non-US Lender.
(c) Each
Non-US Lender hereby agrees, from time to time after the initial delivery by
such Non-US Lender of such forms, whenever a lapse in time or change in
circumstances renders such forms, certificates or other evidence so delivered
obsolete or inaccurate in any material respect or if, by virtue of a change
in
law or regulations, such forms are no longer valid evidence of a Person’s
exemption from withholding tax which is reasonably satisfactory to Borrower,
that such Non-US Lender shall promptly (1) deliver to Administrative
Agent
and to Borrower two original copies of renewals, amendments or additional or
successor forms, properly completed and duly executed by such Non-US Lender,
together with any other certificate or statement of exemption required in order
to confirm or establish that such Non-US Lender is not subject to United States
withholding tax with respect to payments to such Non-US Lender under the Loan
Documents and, as the case may be, that such Non-US Lender does not act for
its
own account with respect to any portion of any such payments, or (2) notify
Administrative Agent and Borrower of its inability to deliver any such forms,
certificates or other evidence.
(d) Borrower
shall not be required to pay any additional amount to any Non-US Lender under
clause (c) of subsection 2.7B(ii)
with respect to any Tax required to be deducted or withheld (1) on the
basis of the information, certificates or statements of exemption such Lender
chooses to transmit with an Internal Revenue Service Form W-8IMY pursuant to
subsection 2.7B(iii)(b)(2) or (2) as a result of such Non-US Lender’s failure to
satisfy the requirements of clause (a), (b) or (c)(1) of this subsection
2.7B(iii);
provided
that if
such Non-US Lender shall have satisfied the requirements of subsection
2.7B(iii)(a)
on the date such Non-US Lender became a Lender, nothing in this subsection
2.7B(iii)(d)
shall relieve Borrower of its obligation to pay any amounts pursuant to
subsection 2.7B(ii)(c)
if, as a result of any change in any applicable law, treaty or governmental
rule, regulation or order, or any change in the interpretation, administration
or application thereof, such Non-US Lender is no longer properly entitled to
deliver forms, certificates or other evidence at a subsequent date establishing
the fact that such Non-US Lender is not subject to withholding as described
in
subsection 2.7B(iii)(a).
C. Capital
Adequacy Adjustment.
If any
Lender shall have determined that the adoption, effectiveness, phase-in or
applicability after the date hereof of any law, rule or regulation (or any
provision thereof) regarding capital adequacy, or any change therein or in
the
interpretation or administration thereof by any Government Authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by any Lender (or its applicable lending office) with
any
guideline, request or directive regarding capital adequacy (whether or not
having the force of law) of any such Government Authority, central bank or
comparable agency, has or would have the effect of reducing the rate of return
on the capital of such Lender or any corporation controlling such Lender as
a
consequence of, or with reference to, such Lender’s Loans or Commitments or
Letters of Credit or participations therein or other obligations hereunder
with
respect to the Loans or the Letters of Credit to a level below that which such
Lender or such controlling corporation could have achieved but for such
adoption, effectiveness, phase-in, applicability, change or compliance (taking
into consideration the policies of such Lender or such controlling corporation
with regard to capital adequacy), then from time to time, within five Business
Days after receipt by Borrower from such Lender of the statement referred to
in
the next sentence, Borrower shall pay to such Lender such additional amount
or
amounts as will compensate such Lender or such controlling corporation on an
after-tax basis for such reduction. Such Lender shall deliver to Borrower (with
a copy to Administrative Agent) a written statement, setting forth in reasonable
detail the basis of the calculation of such additional amounts, which statement
shall be conclusive and binding upon all parties hereto absent manifest
error.
| 2.8 |
Obligation
of Lenders and Issuing Lenders to Mitigate.
|
Each
Lender and Issuing Lender agrees that, as promptly as practicable after the
officer of such Lender or Issuing Lender responsible for administering the
Loans
or Letters of Credit of such Lender or Issuing Lender, as the case may be,
becomes aware of the occurrence of an event or the existence of a condition
that
would cause such Lender to become an Affected Lender or that would entitle
such
Lender or Issuing Lender to receive payments under subsection 2.7
or
subsection 3.6,
it
will, to the extent not inconsistent with the internal policies of such Lender
or Issuing Lender and/or any applicable legal or regulatory restrictions, use
reasonable efforts (i) to make, issue, fund or maintain the Commitments
of
such Lender or the affected Loans or Letters of Credit of such Lender or Issuing
Lender through another lending or letter of credit office of such Lender or
Issuing Lender, or (ii) take such other measures as such Lender or Issuing
Lender may deem reasonable, if as a result thereof the circumstances which
would
cause such Lender to be an Affected Lender would cease to exist or the
additional amounts which would otherwise be required to be paid to such Lender
or Issuing Lender pursuant to subsection 2.7
or
subsection 3.6
would be
materially reduced and if, as determined by such Lender or Issuing Lender in
its
sole discretion, the making, issuing, funding or maintaining of such Commitments
or Loans or Letters of Credit through such other lending or letter of credit
office or in accordance with such other measures, as the case may be, would
not
otherwise be disadvantageous to such Lender or Issuing Lender or materially
adversely affect such Commitments or Loans or Letters of Credit or the interests
of such Lender or Issuing Lender; provided
that
such Lender or Issuing Lender will not be obligated to utilize such other
lending or letter of credit office pursuant to this subsection 2.8
unless
Borrower agrees to pay all incremental expenses incurred by such Lender or
Issuing Lender as a result of utilizing such other lending or letter of credit
office as described in clause (i) above. A certificate as to the amount of
any
such expenses payable by Borrower pursuant to this subsection 2.8
(setting
forth in reasonable detail the basis for requesting such amount) submitted
by
such Lender or Issuing Lender to Borrower (with a copy to Administrative Agent)
shall be conclusive absent manifest error.
| 2.9 |
Replacement
of Lenders.
|
If
Borrower receives a notice pursuant to subsection 2.6C,
2.7A,
2.7C or 3.6 or a notice from any applicable Gaming Authority that a Lender
is no
longer qualified or suitable to make Loans to Borrower under the applicable
Gaming Laws (and such Lender is notified by Borrower and Administrative Agent
in
writing of such disqualification), including because such Lender has been denied
a license, qualification or finding of suitability or has failed to deliver
information required under applicable Gaming Laws, Borrower shall have the
right, if no Potential Event of Default or Event of Default then exists, to
replace such Lender (a “Replaced
Lender”)
with
one or more Eligible Assignees (collectively, the “Replacement
Lender”)
acceptable to Administrative Agent; provided
that
(i) at the time of any replacement pursuant to this subsection 2.9,
the
Replacement Lender shall enter into one or more Assignment Agreements pursuant
to subsection 10.1B (and with all fees payable pursuant to such subsection
10.1B
to be paid by the Replacement Lender) pursuant to which the Replacement Lender
shall acquire all of the outstanding Loans and Commitments of, and in each
case
participations in Letters of Credit by, the Replaced Lender and, in connection
therewith, shall pay to (x) the Replaced Lender in respect thereof an amount
equal to the sum of (A) an amount equal to the principal of all outstanding
Loans of the Replaced Lender and (B) an amount equal to all unpaid drawings
with
respect to Letters of Credit that have been funded by (and not reimbursed to)
such Replaced Lender, and (y) the appropriate Issuing Lender an amount equal
to
such Replaced Lender’s Pro Rata Share of any unpaid drawings with respect to
Letters of Credit (which at such time remains an unpaid drawing) issued by
it to
the extent such amount was not theretofore funded by such Replaced Lender,
and
(ii) all obligations (including, without limitation, all such amounts, if any,
owing under subsection 2.6D) of Borrower owing to the Replaced Lender (other
than those specifically described in clause (i) above in respect of which the
assignment purchase price has been, or is concurrently being, paid), shall
be
paid in full to such Replaced Lender concurrently with such replacement. All
accrued but unpaid interest, commitment fees and letter of credit fees and
other
amounts payable to the Replaced Lender shall be paid in accordance with the
terms set forth in the respective Assignment Agreement. Upon the execution
and
delivery of the respective Assignment Agreements, the payment of amounts
referred to in clauses (i) and (ii) above and delivery to the Replacement Lender
of the appropriate Note or Notes executed by Borrower, the Replacement Lender
shall become a Lender hereunder and the Replaced Lender shall cease to
constitute a Lender hereunder except with respect to indemnification and
confidentiality provisions under this Agreement which by the terms of this
Agreement survive the termination of this Agreement, which indemnification
and
confidentiality provisions shall survive as to such Replaced Lender.
Notwithstanding anything to the contrary contained above, no Issuing Lender
may
be replaced hereunder at any time while it has Letters of Credit outstanding
hereunder unless arrangements satisfactory to such Issuing Lender (including
the
furnishing of a Letter of Credit in form and substance, and issued by an issuer,
satisfactory to such Issuing Lender or the furnishing of cash collateral in
amounts and pursuant to arrangements satisfactory to such Issuing Lender or
the
cancellation and return of such outstanding Letter of Credit) have been made
with respect to such outstanding Letters of Credit.
Section
3. LETTERS
OF CREDIT
| 3.1 |
Issuance
of Letters of Credit and Lenders’ Purchase of Participations
Therein.
|
A. Letters
of Credit. In
addition to Borrower requesting that Revolving Lenders make Revolving Loans
pursuant to subsection 2.1A(ii),
Borrower may request, in accordance with the provisions of this subsection
3.1,
from
time to time during the period from the Effective Date to but excluding the
Revolving Loan Commitment Termination Date, that one or more Revolving Lenders
issue Letters of Credit for the account of Borrower for the purposes specified
in the definition of Letters of Credit. Subject to the terms and conditions
of
this Agreement and in reliance upon the representations and warranties of
Borrower herein set forth, any one or more Revolving Lenders may, but (except
as
provided in subsection 3.1B(iii))
shall
not be obligated to, issue such Letters of Credit in accordance with the
provisions of this subsection 3.1;
provided
that
Borrower shall not request that any Revolving Lender issue (and no Revolving
Lender shall issue):
(i) any
Letter of Credit if, after giving effect to such issuance, the Total Utilization
of Revolving Loan Commitments would exceed the Revolving Loan Commitments then
in effect;
(ii) any
Letter of Credit if, after giving effect to such issuance, the Letter of Credit
Usage would exceed $15,000,000;
(iii) any
Letter of Credit having an expiration date later than the earlier of
(a) ten days prior to the Revolving Loan Commitment Termination Date
and
(b) the date which is one year from the date of issuance of such Letter
of
Credit; provided
that the
immediately preceding clause (b) shall not prevent any Issuing Lender (but
subject to clause (a) above) from agreeing that a Letter of Credit will
automatically be extended for one or more successive periods not to exceed
one
year each unless such Issuing Lender elects not to extend for any such
additional period; and provided,
further
that
such Issuing Lender shall elect not to extend such Letter of Credit if it has
knowledge that an Event of Default or Potential Event of Default has occurred
and is continuing (and has not been waived in accordance with subsection
10.6)
at the
time such Issuing Lender must elect whether or not to allow such
extension;
(iv) any
Letter of Credit for the purposes of supporting (a) trade payables or (b) any
Indebtedness constituting “antecedent debt” (as that term is used in Section 547
of the Bankruptcy Code);
(v) any
Letter of Credit denominated in a currency other than Dollars; or
(vi) any
Letter of Credit that is otherwise unacceptable to the applicable Issuing Lender
in its reasonable discretion.
B. Mechanics
of Issuance.
(i) Notice
of Issuance.
Whenever Borrower desires the issuance of a Letter of Credit, it shall deliver
to Administrative Agent a Notice of Issuance of Letter of Credit substantially
in the form of Exhibit
III
annexed
hereto no later than 11:00 A.M. (New York City time) at least three Business
Days, or in each case such shorter period as may be agreed to by the Issuing
Lender in any particular instance, in advance of the proposed date of issuance.
The Notice of Issuance of Letter of Credit shall specify (a) the proposed
date of issuance (which shall be a Business Day), (b) the face amount
of
the Letter of Credit, (c) the expiration date of the Letter of Credit,
(d) the name and address of the beneficiary, and (e) either the
verbatim text of the proposed Letter of Credit or the proposed terms and
conditions thereof, including a precise description of any documents to be
presented by the beneficiary which, if presented by the beneficiary prior to
the
expiration date of the Letter of Credit, would require the Issuing Lender to
make payment under the Letter of Credit and in the event CIBC is the Issuing
Lender, such Notice of Issuance of Letter of Credit shall attach a current
application form from CIBC with respect to the issuance of such Letter of
Credit; provided
that the
Issuing Lender, in its reasonable discretion, may require changes in the text
of
the proposed Letter of Credit or any such documents; and provided,
further
that no
Letter of Credit shall require payment against a conforming draft to be made
thereunder on the same Business Day (under the laws of the jurisdiction in
which
the office of the Issuing Lender to which such draft is required to be presented
is located) that such draft is presented if such presentation is made after
10:00 A.M. (in the time zone of such office of the Issuing Lender) on such
Business Day.
(ii) Update
of Certifications.
Borrower shall notify the applicable Issuing Lender (and Administrative Agent,
if Administrative Agent is not such Issuing Lender) prior to the issuance of
any
Letter of Credit if any of the matters to which Borrower is required to certify
in the applicable Notice of Issuance of Letter of Credit is no longer true
and
correct as of the proposed date of issuance of such Letter of Credit, and upon
the issuance of any Letter of Credit Borrower shall be deemed to have
re-certified, as of the date of such issuance, as to the matters to which
Borrower is required to certify in the applicable Notice of Issuance of Letter
of Credit.
(iii) Determination
of Issuing Lender.
Upon
receipt by Administrative Agent of a Notice of Issuance of Letter of Credit
pursuant to subsection 3.1B(i)
requesting the issuance of a Letter of Credit, if Administrative Agent elects
to
issue such Letter of Credit, Administrative Agent shall promptly so notify
Borrower, and Administrative Agent shall be the Issuing Lender with respect
thereto. If Administrative Agent, in its sole discretion, elects not to issue
such Letter of Credit, Administrative Agent shall promptly so notify Borrower,
whereupon Borrower may request any other Revolving Lender to issue such Letter
of Credit by delivering to such Revolving Lender a copy of the applicable Notice
of Issuance of Letter of Credit. Any Revolving Lender so requested to issue
such
Letter of Credit shall promptly notify Borrower and Administrative Agent whether
or not, in its sole discretion, it has elected to issue such Letter of Credit,
and any such Revolving Lender that so elects to issue such Letter of Credit
shall be the Issuing Lender with respect thereto.
If all
other Revolving Lenders shall have declined to issue such Letter of Credit,
notwithstanding the prior election of Administrative Agent not to issue such
Letter of Credit, Administrative Agent shall be obligated to issue such Letter
of Credit and shall be the Issuing Lender with respect thereto, notwithstanding
the fact that the Letter of Credit Usage with respect to such Letter of Credit
and with respect to all other Letters of Credit issued by Administrative Agent,
when aggregated with Administrative Agent’s outstanding Revolving Loans, may
exceed Administrative Agent’s Revolving Loan Commitment then in
effect.
(iv) Issuance
of Letter of Credit.
Upon
satisfaction or waiver (in accordance with subsection 10.6)
of the
conditions set forth in subsection 4.3,
the
Issuing Lender shall issue the requested Letter of Credit in accordance with
the
Issuing Lender’s standard operating procedures.
(v) Notification
to Lenders.
Upon
the issuance of or amendment to any Letter of Credit, the applicable Issuing
Lender shall promptly notify Administrative Agent of such issuance or amendment
in writing and such notice shall be accompanied by a copy of such Letter of
Credit or amendment. Promptly after receipt of notice of any issuance of a
Letter of Credit (or, if Administrative Agent is the Issuing Lender, together
with such notice), Administrative Agent shall notify each Revolving Lender
of
the amount of such Revolving Lender’s respective participation in such Letter of
Credit, determined in accordance with subsection 3.1C.
C. Revolving
Lenders’ Purchase of Participations in Letters of Credit.
Immediately upon the issuance of each Letter of Credit, each Revolving Lender
shall be deemed to, and hereby agrees to, have irrevocably purchased from the
Issuing Lender a participation in such Letter of Credit and any drawings honored
thereunder in an amount equal to such Revolving Lender’s Pro Rata Share of the
maximum amount which is or at any time may become available to be drawn
thereunder.
| 3.2 |
Letter
of Credit Fees.
|
Borrower
agrees to pay the following amounts with respect to Letters of Credit issued
hereunder:
(i) with
respect to each Letter of Credit, (a) a fronting fee, payable to
Administrative Agent for the account of the applicable Issuing Lender, equal
to
0.25% per annum of the daily amount available to be drawn under such Letter
of
Credit, and (b) a letter of credit fee, payable to Administrative Agent
for
the account of Revolving Lenders, equal to the daily amount available to be
drawn under such Letter of Credit multiplied
by
the
Applicable LIBOR Margin for Revolving Loans, each such fronting fee or letter
of
credit fee to be payable in arrears on and to (but excluding) the last Business
Day of each March, June, September and December of each year commencing on
the
first such date to occur after the Effective Date, and computed on the basis
of
a 360-day year for the actual number of days elapsed; and
(ii) with
respect to the issuance, amendment or transfer of each Letter of Credit and
each
payment of a drawing made thereunder (without duplication of the fees payable
under clause (i) above), documentary and processing charges payable directly
to
the applicable Issuing Lender for its own account in accordance with such
Issuing Lender’s standard schedule for such charges in effect at the time of
such issuance, amendment, transfer or payment, as the case may be.
For
purposes of calculating any fees payable under clauses (i) and (ii) of
this
subsection 3.2,
the
daily amount available to be drawn under any Letter of Credit shall be
determined as of the close of business on any date of determination. Promptly
upon receipt by Administrative Agent of any amount described in clause (i)
or
(ii) of this subsection 3.2,
Administrative Agent shall distribute to each Revolving Lender its Pro Rata
Share of such amount.
| 3.3 |
Drawings
and Reimbursement of Amounts Paid Under Letters of
Credit.
|
A. Responsibility
of Issuing Lender With Respect to Drawings.
In
determining whether to honor any drawing under any Letter of Credit by the
beneficiary thereof, the Issuing Lender shall be responsible only to examine
the
documents delivered under such Letter of Credit with reasonable care so as
to
ascertain whether they appear on their face to be in accordance with the terms
and conditions of such Letter of Credit.
B. Reimbursement
by Borrower of Amounts Paid Under Letters of Credit.
If an
Issuing Lender has determined to honor a drawing under a Letter of Credit issued
by it, such Issuing Lender shall immediately notify Borrower and Administrative
Agent, and Borrower shall reimburse such Issuing Lender on or before the third
Business Day immediately following the date on which such drawing is honored
(the “Reimbursement
Date”)
in an
amount in Dollars and in same day funds equal to the amount of such honored
drawing plus interest thereon as provided in subsection 3.3D(i) for the period
from the date of drawing to the date on which such Revolving Loans are made
(the
“LC
Reimbursement Amount”);
provided that, anything contained in this Agreement to the contrary
notwithstanding, (i) unless Borrower shall have notified Administrative Agent
and such Issuing Lender prior to 12:00 P.M. (New York City time) on the date
such drawing is honored that Borrower intends to reimburse such Issuing Lender
for the LC Reimbursement Amount with funds other than the proceeds of Revolving
Loans, Borrower shall be deemed to have given a timely Notice of Borrowing
to
Administrative Agent requesting Revolving Lenders to make Revolving Loans that
are Base Rate Loans on the Reimbursement Date in an amount in Dollars equal
to
the LC Reimbursement Amount (and Administrative Agent shall promptly give notice
thereof to each Lender by telefacsimile or electronic mail or by telephone
promptly confirmed by telefacsimile or electronic mail) and (ii) subject to
satisfaction or waiver of the conditions specified in subsection 4.2B, Revolving
Lenders shall, on the Reimbursement Date, make Revolving Loans that are Base
Rate Loans in an amount equal to the LC Reimbursement Amount, the proceeds
of
which shall be applied directly by Administrative Agent to reimburse such
Issuing Lender in an amount equal to the LC Reimbursement Amount; and provided,
further that if for any reason proceeds of Revolving Loans are not received
by
Administrative Agent on the Reimbursement Date in an amount equal to the LC
Reimbursement Amount, Borrower shall reimburse Administrative Agent, on demand,
in an amount in same day funds equal to the excess of (x) the LC Reimbursement
Amount over (y) the aggregate amount of such Revolving Loans, if any, which
are
so received. Nothing in this subsection 3.3B shall be deemed to relieve any
Revolving Lender from its obligation to make Revolving Loans on the terms and
conditions set forth in this Agreement, and Borrower shall retain any and all
rights it may have against any Revolving Lender resulting from the failure
of
such Revolving Lender to make such Revolving Loans under this subsection 3.3B.
The Issuing Lender may honor or dishonor any drawing in accordance with the
terms of any Letter of Credit without regard to any instruction of
Borrower.
C. Payment
by Revolving Lenders of Unreimbursed Amounts Paid Under Letters of
Credit.
(i) Payment
by Revolving Lenders.
If
Borrower shall fail for any reason to reimburse any Issuing Lender (or
Administrative Agent) as provided in subsection 3.3B in an amount equal to
the
amount of any drawing honored by such Issuing Lender under a Letter of Credit
issued by it, Administrative Agent shall promptly notify each other Revolving
Lender of the unreimbursed amount of such honored drawing and of such other
Revolving Lender’s respective participation therein based on such Revolving
Lender’s Pro Rata Share of the Revolving Loan Commitment by telefacsimile or by
telephone promptly confirmed by telefacsimile. Each Revolving Lender shall
make
available to Administrative Agent for the account of such Issuing Lender an
amount equal to its respective participation, in Dollars and in same day funds,
at the Administrative Agent’s Office, not later than 2:00 P.M. (New York City
time) on the Business Day notified by Administrative Agent. If any Revolving
Lender fails to make available to Administrative Agent for the account of such
Issuing Lender on such Business Day the amount of such Revolving Lender’s
participation in such Letter of Credit as provided in this subsection 3.3C,
Administrative Agent and/or such Issuing Lender shall be entitled to recover
such amount on demand from such Revolving Lender together with interest thereon
at the rate customarily used by such Issuing Lender for the correction of errors
among banks for three Business Days and thereafter at the Base Rate. Nothing
in
this subsection 3.3C shall be deemed to prejudice the right of any Revolving
Lender to recover from any Issuing Lender any amounts made available by such
Revolving Lender to such Issuing Lender pursuant to this subsection 3.3C if
it
is determined by the final judgment of a court of competent jurisdiction that
the payment with respect to a Letter of Credit by such Issuing Lender in respect
of which payment was made by such Issuing Lender constituted gross negligence
or
willful misconduct on the part of such Issuing Lender.
(ii) Distribution
to Revolving Lenders of Reimbursements Received From Borrower.
If
Administrative Agent for the account of any Issuing Lender shall have been
reimbursed by other Revolving Lenders pursuant to subsection 3.3C(i) for all
or
any portion of any drawing honored by such Issuing Lender under a Letter of
Credit issued by it, Administrative Agent shall promptly distribute to each
other Revolving Lender that has paid all amounts payable by it under subsection
3.3C(i) with respect to such honored drawing such other Revolving Lender’s Pro
Rata Share of the Revolving Loan Commitment of all payments subsequently
received by Administrative Agent for the account of such Issuing Lender from
Borrower in reimbursement of such honored drawing when such payments are
received. Any such distribution shall be made to a Revolving Lender at its
primary address set forth below its name in the Register or at such other
address as such Revolving Lender may request.
D. Interest
on Amounts Paid Under Letters of Credit.
(i) Payment
of Interest by Borrower.
Borrower agrees to pay to Administrative Agent for the account of each Issuing
Lender, with respect to drawings honored under any Letters of Credit issued
by
it, interest on the amount paid by such Issuing Lender in respect of each such
honored drawing from the date a drawing is honored to but excluding the date
such amount is reimbursed by Borrower (including any such reimbursement out
of
the proceeds of Revolving Loans pursuant to subsection 3.3B)
at a
rate equal to (a) for the period from the date such drawing is honored
to
but excluding the Reimbursement Date, the rate then in effect under this
Agreement with respect to Revolving Loans that are Base Rate Loans and
(b) thereafter, a rate that is 2.00% per annum in excess of the rate
of
interest otherwise payable under this Agreement with respect to Revolving Loans
that are Base Rate Loans. Interest payable pursuant to this subsection
3.3D(i)
shall be
computed on the basis of a 365-day or 366-day year, as the case may be, for
the
actual number of days elapsed in the period during which it accrues and shall
be
payable on demand or, if no demand is made, on the date on which the related
drawing under a Letter of Credit is reimbursed in full.
(ii) Distribution
of Interest Payments by Administrative Agent.
Promptly upon receipt by Administrative Agent for the account of any Issuing
Lender of any payment of interest pursuant to subsection 3.3D(i) with respect
to
a drawing honored under a Letter of Credit issued by it, (a) Administrative
Agent shall distribute to each Revolving Lender, out of the interest received
by
Administrative Agent in respect of the period from the date such drawing is
honored to but excluding the date on which such Issuing Lender is reimbursed
for
the amount of such honored drawing (including any such reimbursement out of
the
proceeds of Revolving Loans pursuant to subsection 3.3B), the amount that such
other Revolving Lender would have been entitled to receive in respect of the
letter of credit fee that would have been payable in respect of such Letter
of
Credit for such period pursuant to subsection 3.2 if no drawing had been honored
under such Letter of Credit, and (b) if such Issuing Lender shall have been
reimbursed by other Revolving Lenders pursuant to subsection 3.3C(i) for all
or
any portion of such honored drawing, such Issuing Lender shall pay to
Administrative Agent for the account of each such other Revolving Lender that
has paid all amounts payable by it under subsection 3.3C(i) with respect to
such
honored drawing such other Revolving Lender’s Pro Rata Share of the Revolving
Loan Commitment of any interest received by such Issuing Lender in respect
of
that portion of such honored drawing so reimbursed by other Revolving Lenders
for the period from the date on which such Issuing Lender was so reimbursed
by
other Revolving Lenders to but excluding the date on which such portion of
such
honored drawing is reimbursed by Borrower. Any such distribution shall be made
to a Revolving Lender at its primary address set forth below its name on the
appropriate signature page hereof or at such other address as such Revolving
Lender may request.
| 3.4 |
Obligations
Absolute.
|
The
obligation of Borrower to reimburse each Issuing Lender (or Administrative
Agent
for the account of such Issuing Lender) for drawings honored under the Letters
of Credit issued by it and to repay any Revolving Loans made by Revolving
Lenders pursuant to subsection 3.3B
and the
obligations of Revolving Lenders under subsection 3.3C(i)
shall be
unconditional and irrevocable and shall be paid strictly in accordance with
the
terms of this Agreement under all circumstances including any of the following
circumstances:
(i) any
lack
of validity or enforceability of any Letter of Credit;
(ii) the
existence of any claim, set-off, defense or other right which Borrower or any
Revolving Lender may have at any time against a beneficiary or any transferee
of
any Letter of Credit (or any Persons for whom any such transferee may be
acting), any Issuing Lender or other Lender or any other Person or, in the
case
of a Lender, against Borrower, whether in connection with this Agreement, the
transactions contemplated herein or any unrelated transaction (including any
underlying transaction between Borrower or any of its Subsidiaries and the
beneficiary for which any Letter of Credit was procured);
(iii) any
draft
or other document presented under any Letter of Credit proving to be forged,
fraudulent, invalid or insufficient in any respect or any statement therein
being untrue or inaccurate in any respect;
(iv) payment
by the applicable Issuing Lender under any Letter of Credit against presentation
of a draft or other document which does not substantially comply with the terms
of such Letter of Credit;
(v) any
adverse change in the business, operations, properties, assets, condition
(financial or otherwise) or prospects of Borrower or any of its
Subsidiaries;
(vi) any
breach of this Agreement or any other Loan Document by any party
thereto;
(vii) any
other
circumstance or happening whatsoever, whether or not similar to any of the
foregoing; or
(viii) the
fact
that an Event of Default or a Potential Event of Default shall have occurred
and
be continuing;
provided,
in each
case, that payment by the applicable Issuing Lender under the applicable Letter
of Credit shall not have constituted gross negligence or willful misconduct
of
such Issuing Lender under the circumstances in question (as determined by a
final judgment of a court of competent jurisdiction).
| 3.5 |
Indemnification;
Nature of Issuing Lenders’ Duties.
|
A. Indemnification. In
addition to amounts payable as provided in subsection 3.6,
Borrower hereby agrees to protect, indemnify, pay and save harmless each Issuing
Lender, Administrative Agent, Lead Arranger and each other Lender from and
against any and all claims, demands, liabilities, damages, losses, costs,
charges and expenses (including reasonable fees, expenses and disbursements
of
counsel and allocated costs of internal counsel) which such Person may incur
or
be subject to as a consequence, direct or indirect, of (i) the issuance
or
honoring of any Letter of Credit by such Issuing Lender, other than as a result
of (a) the gross negligence or willful misconduct of such Issuing Lender
as
determined by a final judgment of a court of competent jurisdiction or (b)
subject to the following clause (ii), the wrongful dishonor by such Issuing
Lender of a proper demand for payment made under any Letter of Credit issued
by
it or (ii) the failure of such Issuing Lender to honor a drawing under
any
such Letter of Credit as a result of any act or omission, whether rightful
or
wrongful, of any present or future de jure or de facto Government Authority
(all
such acts or omissions herein called “Governmental
Acts”).
B. Nature
of Issuing Lenders’ Duties. As
between Borrower and any Issuing Lender, Borrower assumes all risks of the
acts
and omissions of, or misuse of the Letters of Credit issued by such Issuing
Lender by, the respective beneficiaries of such Letters of Credit. In
furtherance and not in limitation of the foregoing, such Issuing Lender shall
not be responsible for: (i) the form, validity, sufficiency, accuracy,
genuineness or legal effect of any document submitted by any party in connection
with the application for and issuance of any such Letter of Credit, even if
it
should in fact prove to be in any or all respects invalid, insufficient,
inaccurate, fraudulent or forged; (ii) the validity or sufficiency of
any
instrument transferring or assigning or purporting to transfer or assign any
such Letter of Credit or the rights or benefits thereunder or proceeds thereof,
in whole or in part, which may prove to be invalid or ineffective for any
reason; (iii) failure of the beneficiary of any such Letter of Credit
to
comply fully with any conditions required in order to draw upon such Letter
of
Credit; (iv) errors, omissions, interruptions or delays in transmission
or
delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether
or not they be in cipher; (v) errors in interpretation of technical
terms;
(vi) any loss or delay in the transmission or otherwise of any document
required in order to make a drawing under any such Letter of Credit or of the
proceeds thereof; (vii) the misapplication by the beneficiary of any
such
Letter of Credit of the proceeds of any drawing under such Letter of Credit;
or
(viii) any consequences arising from causes beyond the control of such
Issuing Lender, including any Governmental Acts, and none of the above shall
affect or impair, or prevent the vesting of, any of such Issuing Lender’s or any
other Lender’s rights or powers hereunder.
In
furtherance and extension and not in limitation of the specific provisions
set
forth in the first paragraph of this subsection 3.5B,
any
action taken or omitted by any Issuing Lender under or in connection with the
Letters of Credit issued by it or any documents and certificates delivered
thereunder, if taken or omitted in good faith, shall not put such Issuing Lender
or any other Lender under any resulting liability to Borrower.
Notwithstanding
anything to the contrary contained in this subsection 3.5,
Borrower shall retain any and all rights it may have against any Issuing Lender
for any liability to the extent arising out of the gross negligence or willful
misconduct of such Issuing Lender, as determined by a final judgment of a court
of competent jurisdiction.
| 3.6 |
Increased
Costs and Taxes Relating to Letters of Credit.
|
Subject
to the provisions of subsection 2.7B
(which
shall be controlling with respect to the matters covered thereby), if any
Issuing Lender or Revolving Lender shall determine (which determination shall,
absent manifest error, be final and conclusive and binding upon all parties
hereto) that any law, treaty or governmental rule, regulation or order, or
any
change therein or in the interpretation, administration or application thereof
(including the introduction of any new law, treaty or governmental rule,
regulation or order), or any determination of a court or Government Authority,
in each case that becomes effective after the date hereof, or compliance by
any
Issuing Lender or Revolving Lender with any guideline, request or directive
issued or made after the date hereof by any central bank or other Government
Authority or quasi-Government Authority (whether or not having the force of
law):
(i) subjects
such Issuing Lender or Revolving Lender (or its applicable lending or letter
of
credit office) to any additional Tax (other than any Tax on the overall net
income of such Issuing Lender or Revolving Lender) with respect to the issuing
or maintaining of any Letters of Credit or the purchasing or maintaining of
any
participations therein or any other obligations under this Section
3,
whether
directly or by such being imposed on or suffered by any particular Issuing
Lender;
(ii) imposes,
modifies or holds applicable any reserve (including any marginal, emergency,
supplemental, special or other reserve), special deposit, compulsory loan,
FDIC
insurance or similar requirement in respect of any Letters of Credit issued
by
any Issuing Lender or participations therein purchased by any Revolving Lender;
or
(iii) imposes
any other condition (other than with respect to a Tax matter) on or affecting
such Issuing Lender or Revolving Lender (or its applicable lending or letter
of
credit office) regarding this Section
3
or any
Letter of Credit or any participation therein;
and
the
result of any of the foregoing is to increase the cost to such Issuing Lender
or
Revolving Lender of agreeing to issue, issuing or maintaining any Letter of
Credit or agreeing to purchase, purchasing or maintaining any participation
therein or to reduce any amount received or receivable by such Issuing Lender
or
Revolving Lender (or its applicable lending or letter of credit office) with
respect thereto; then, in any case, Borrower shall promptly pay to such Issuing
Lender or Revolving Lender, upon receipt of the statement referred to in the
next sentence, such additional amount or amounts as may be necessary to
compensate such Issuing Lender or Revolving Lender for any such increased cost
or reduction in amounts received or receivable hereunder. Such Issuing Lender
or
Revolving Lender shall deliver to Borrower a written statement, setting forth
in
reasonable detail the basis for calculating the additional amounts owed to
such
Issuing Lender or Revolving Lender under this subsection 3.6,
which
statement shall be conclusive and binding upon all parties hereto absent
manifest error, provided,
however, that Borrower shall be liable for such additional amounts only if
such
Revolving Lender shall have delivered such written statement to Borrower within
90 days after such Revolving Lender shall have made such determination of any
such increased costs, and provided
further
that if such Revolving Lender delivers such written statement after such 90
day
period, then Borrower shall be liable only for such additional amounts arising
after delivery to Borrower of such written statement.
Section
4. CONDITIONS
TO LOANS AND LETTERS OF CREDIT
The
obligations of Lenders to make Loans and an Issuing Lender to issue Letters
of
Credit hereunder are subject to the prior or concurrent satisfaction of the
following conditions.
| 4.1 |
Conditions
to Occurrence of the Effective Date.
|
The
obligations of Lenders to make the Loans to be made on the Effective Date are,
in addition to the conditions precedent specified in subsection 4.2,
subject
to prior or concurrent satisfaction of the following conditions on or before
the
Effective Date unless otherwise noted:
A. Loan
Party Documents.
On or
before the Effective Date, Borrower shall, and shall cause each other Loan
Party
to, deliver to Lenders (or to Administrative Agent for Lenders) the following
with respect to Borrower or such Loan Party, as the case may be, each, unless
otherwise noted, dated the Effective Date:
(i) (a) either
(1) copies of the Organizational Documents of such Person, certified
by the
Secretary of State of its jurisdiction of organization or, if such document
is
of a type that may not be so certified, certified by the secretary or similar
Officer of the applicable Loan Party, to the extent that such Organizational
Documents have been modified, amended or supplemented since April 22,
2003
or have not been previously delivered to Administrative Agent, or (2) a
certification by the secretary or similar Officer of the applicable Loan Party
that such Organizational Documents of such Person have not been modified,
amended or supplemented since April 22, 2003 and (b) a good standing
certificate from the Secretary of State of its jurisdiction of organization
and
each other state in which such Person is qualified to do business and, to the
extent generally available, a certificate or other evidence of good standing
as
to payment of any applicable franchise or similar taxes from the appropriate
taxing authority of each of such jurisdictions, each dated a recent date prior
to the Effective Date;
(ii) Resolutions
of the Governing Body of such Person approving and authorizing the execution,
delivery and performance of the Loan Documents to which it is a party, certified
as of the Effective Date by the secretary or similar Officer of such Person
as
being in full force and effect without modification or amendment;
(iii) Signature
and incumbency certificates of the Officers of such Person executing the Loan
Documents to which it is a party;
(iv) Executed
originals of the Loan Documents to which such Person is a party;
and
(v) Such
other documents as Administrative Agent may reasonably request.
B. No
Material Adverse Effect.
Since
April 24, 2005, no Material Adverse Effect (in the sole opinion of
Administrative Agent) shall have occurred.
C. Corporate
and Capital Structure.
(i) Organizational
Structure.
The
organizational structure of Borrower and its Subsidiaries shall be as set forth
on Schedule
4.1C
annexed
hereto.
(ii) Capital
Structure, Ownership and Jurisdiction of Organization.
The
capital structure, ownership and jurisdiction of organization of Borrower and
its Subsidiaries shall be as set forth on Schedule
4.1C
annexed
hereto.
D. [Intentionally
Omitted.]
E. Necessary
Governmental Authorizations and Consents; Expiration of Waiting
Periods,
Etc. Borrower
shall have obtained all Governmental Authorizations and all consents
of
other Persons, in each case that are necessary or advisable in connection with
the Transactions and the other transactions contemplated by the Loan Documents
and the continued operation of the business conducted by Borrower and its
Subsidiaries in substantially the same manner as conducted by Borrower and
its
Subsidiaries prior to the Effective Date. Each such Governmental Authorization
or consent shall be in full force and effect, except in a case where the failure
to obtain or maintain a Governmental Authorization or consent, either
individually or in the aggregate, could not reasonably be expected to result
in
a Material Adverse Effect. All applicable waiting periods shall have expired
without any action being taken or threatened by any competent authority that
would restrain, prevent or otherwise impose adverse conditions on the
transactions contemplated by the Loan Documents or the other Transactions.
No
action, request for stay, petition for review or rehearing, reconsideration,
or
appeal with respect to any of the foregoing shall be pending, and the time
for
any applicable Government Authority to take action to set aside its consent
on
its own motion shall have expired.
F. Mortgage;
Mortgage Policy; Etc. Administrative
Agent shall have received from Borrower
on or before the Effective Date:
(i) Mortgages.
Fully
executed and notarized Mortgages or amendments to the Mortgages executed and
delivered under the Existing Credit Agreement, as applicable, (each an
“Effective
Date Mortgage”
and,
collectively, the “Effective
Date Mortgages”),
in
proper form for recording in all appropriate places in all applicable
jurisdictions, encumbering each Real Property Asset listed in Schedule 4.1F
annexed
hereto (each an “Effective
Date Mortgaged Property”
and,
collectively, the “Effective
Date Mortgaged Properties”);
(ii) Opinion
of Local Counsel.
An
opinion of counsel (which counsel shall be reasonably satisfactory to
Administrative Agent) in the State of Colorado with respect to the
enforceability of each Effective Date Mortgage and such other matters as
Administrative Agent may reasonably request, in substantially the form set
forth
in Exhibit VIII-C
annexed
hereto, in each case in form and substance reasonably satisfactory to
Administrative Agent;
(iii) Title
Insurance.
(a) Either
(1) to the extent not previously delivered, ALTA mortgagee title insurance
policy or unconditional commitment therefor (the “Effective
Date Mortgage Policies”)
issued
by the Title Company with respect to the Effective Date Mortgaged Properties,
in
an amount not less than the amount designated therein, insuring fee simple
and/or leasehold title to each Effective Date Mortgaged Property vested in
Borrower or the applicable Subsidiary Guarantor and assuring Administrative
Agent that each Effective Date Mortgage creates a valid and enforceable First
Priority mortgage Lien on the applicable Effective Date Mortgaged Property,
such
Effective Date Mortgage Policies (i) shall include the following
endorsements to the extent available in the State of Colorado: comprehensive,
mechanics’ lien, variable rate, street address, separate tax lot, survey,
contiguity, zoning (ALTA 3.1), street access, usury, subdivision map act,
revolving credit, tie-in, creditors’ rights, doing business, first loss and last
dollar and any other matters reasonably requested by Administrative Agent and
(ii) shall provide for affirmative insurance and such reinsurance as
Administrative Agent may reasonably request, all of the foregoing in form and
substance reasonably satisfactory to Administrative Agent; or (2) 110.5
or
other similar endorsements to any existing ALTA mortgagee title insurance
policies covering any Effective Date Mortgaged Property in form and substance
reasonably satisfactory to Administrative Agent (the “Effective
Date Title Endorsements”)
and
(b) evidence satisfactory to Administrative Agent that Borrower has
(i) delivered to the Title Company all certificates and affidavits required
by the Title Company in connection with the issuance of the Effective Date
Mortgage Policies and the Effective Date Title Endorsements and (ii) paid
to the Title Company or to the appropriate Government Authorities all expenses
and premiums of the Title Company in connection with the issuance of the
Effective Date Mortgage Policies or the Effective Date Title Endorsements and
all recording and stamp taxes (including mortgage recording and intangible
taxes) payable in connection with recording the Effective Date Mortgages and
any
amendments to the existing mortgages in the appropriate real estate
records;
(iv) Title
Reports.
With
respect to each Effective Date Mortgaged Property, a title report issued by
the
Title Company with respect thereto, dated not more than 30 days prior to the
Effective Date and satisfactory in form and substance to Administrative
Agent;
(v) Copies
of Documents Relating to Title Exceptions.
To the
extent not previously provided, copies of all recorded documents listed as
exceptions to title or otherwise referred to in the Effective Date Mortgage
Policies or in the title reports delivered pursuant to subsection
4.1F(iv);
(vi) Matters
Relating to Flood Hazard Properties.
(a) To the extent not previously provided, evidence, which may be in
the
form of a letter from an insurance broker or a municipal engineer, as to whether
(1) any Effective Date Mortgage Property is a Flood Hazard Property
and
(2) the community in which any such Flood Hazard Property is located
is
participating in the National Flood Insurance Program, (b) if there
are any
such Flood Hazard Properties, such Loan Party’s written acknowledgement of
receipt of written notification from Administrative Agent (1) as to
the
existence of each such Flood Hazard Property and (2) as to whether the
community in which each such Flood Hazard Property is located is participating
in the National Flood Insurance Program, and (c) if any such Flood Hazard
Property is located in a community that participates in the National Flood
Insurance Program, evidence that Borrower has obtained flood insurance in
respect of such Flood Hazard Property to the extent required under the
applicable regulations of the Board of Governors of the Federal Reserve System;
and
(vii) Landlord
Consents and Estoppels.
In the
case of any Effective Date Mortgaged Property consisting of a Material Leasehold
Property and to the extent not previously delivered, (a) a Landlord Consent
and
Estoppel with respect thereto, and (b) evidence that such Material
Leasehold Property is a Recorded Leasehold Interest.
G. Security
Interests in Personal and Mixed Property. To
the
extent not otherwise satisfied pursuant to subsection 4.1F,
on or
before the Effective Date, Administrative Agent shall have received evidence
satisfactory to it that Borrower and Subsidiary Guarantors have taken or shall
have taken or caused to be taken all such actions, executed and delivered or
caused to be executed and delivered all such agreements, documents and
instruments, and made or caused to be made all such filings and recordings
(other than the filing or recording of items described in clauses (iii), (iv)
and (v) below) that may be necessary or, in the opinion of Administrative Agent,
desirable in order to create and/or continue in favor of Administrative Agent,
for the benefit of Lenders, a valid and (upon such filing and recording) First
Priority security interest in the entire personal and mixed property Collateral.
Such actions shall include the following:
(i) Schedules
to Collateral Documents.
Delivery to Administrative Agent of accurate and complete schedules to all
of
the applicable Collateral Documents;
(ii) Stock
Certificates and Instruments.
To the
extent not previously delivered to Administrative Agent, delivery to
Administrative Agent of (a) certificates (which certificates shall be
accompanied by irrevocable undated stock powers, duly endorsed in blank and
otherwise satisfactory in form and substance to Administrative Agent)
representing all Capital Stock pledged pursuant to the Security Agreement and
(b) all promissory notes or other instruments (duly endorsed, where
appropriate, in a manner satisfactory to Administrative Agent) evidencing any
Collateral;
(iii) Lien
Searches and UCC Termination Statements.
Delivery to Administrative Agent of (a) the results of a recent search,
by
a Person satisfactory to Administrative Agent, of all effective UCC financing
statements and fixture filings and all judgment and tax lien filings which
may
have been made with respect to any personal or mixed property of any Loan Party,
together with, to the extent not previously delivered, copies of all such
filings disclosed by such search, and (b) UCC termination statements
duly
executed by all applicable Persons for filing in all applicable jurisdictions
as
may be necessary to terminate any effective UCC financing statements or fixture
filings disclosed in such search (other than any such financing statements
or
fixture filings in respect of Liens permitted to remain outstanding pursuant
to
the terms of this Agreement).
(iv) UCC
Financing Statements and Fixture Filings.
To the
extent not previously delivered to Administrative Agent, delivery to
Administrative Agent of UCC financing statements and/or amendments thereto
and,
where appropriate, fixture filings and/or amendments thereto, with respect
to
all personal and mixed property Collateral of such Loan Party, for filing in
all
jurisdictions as may be necessary or, in the opinion of Administrative Agent,
desirable to perfect or continue the perfection of the security interests
created in such Collateral pursuant to the Collateral
Documents;
(v) PTO
Terminations, Cover Sheets, Etc.
To the
extent not previously delivered to Administrative Agent, delivery to
Administrative Agent of (a) PTO termination statements duly executed
by all
applicable Persons for filing in all applicable jurisdictions as may be
necessary to terminate any effective PTO filings in respect of IP Collateral
(other than any such PTO filings in respect of Liens permitted to remain
outstanding pursuant to the terms of this Agreement), and (b) all cover sheets,
amendments to cover sheets or other documents or instruments required to be
filed with the PTO in order to create or continue, or perfect or continue to
perfect Liens in respect of, any IP Collateral;
(vi) Agreements
with Deposit Account Banks.
To the
extent not previously delivered, a Deposit Account Control Agreement between
Administrative Agent and each of the financial institutions with which Borrower
or any of its Subsidiaries maintains a Deposit Account with a principal balance
in excess of $2,000,000 sufficient to perfect the security interests created
in
such Collateral pursuant to the Collateral Documents;
H. Environmental
Reports.
Administrative
Agent shall have received a reliance letter for the Phase 1 environmental site
assessments (and any updates thereto) previously delivered to Administrative
Agent in connection with the Existing Credit Agreement, duly executed by the
environmental consultant preparing such reports, certifying such reports to
Administrative Agent and Lenders, in form and substance satisfactory to
Administrative Agent.
I. Financial
Statements. On
or
before the Effective Date, Administrative Agent shall have received from
Borrower (a) Audited financial statements of Borrower and its Subsidiaries
for Fiscal Year 2005, consisting of a consolidated balance sheet and the related
consolidated statements of income, stockholders’ equity and cash flows for such
fiscal year, and (b) unaudited financial statements of Borrower and
its
Subsidiaries for the first Fiscal Quarter of Fiscal Year 2006, consisting of
a
consolidated balance sheet and the related consolidated statements of income,
stockholders’ equity and cash flows for the three- month period ending on such
date, all in reasonable detail and, with respect to the financial statements
of
Borrower and its Subsidiaries, certified by the senior director of finance
or
vice president of finance of Borrower that such statements fairly present the
financial condition of Borrower and its Subsidiaries as at the dates indicated
and the results of their operations and their cash flows for the periods
indicated, subject to changes resulting from audit and normal year-end
adjustments.
J. Evidence
of Insurance. Administrative
Agent shall have received a certificate from Borrower’s insurance broker or
other evidence satisfactory to it that
all
insurance required to be maintained pursuant to subsection 6.4
is in
full force and effect and that Administrative Agent on behalf of Lenders has
been named as additional insured and/or loss payee thereunder to the extent
required under subsection 6.4.
K. Opinions
of Counsel to Loan Parties.
Lenders
shall have received originally executed copies of one or more favorable written
opinions of Xxxxx X. Xxxxxxx, general counsel to Loan Parties, Xxxxxxxxxx Hyatt
& Xxxxxx, P.C., special Colorado counsel to the Loan Parties, and Mayer,
Brown, Xxxx & Maw LLP, counsel for Loan Parties in form and substance
reasonably satisfactory to Administrative Agent and its counsel, dated as of
the
Effective Date and setting forth substantially the matters in the opinions
designated in Exhibit VIII-A,
Exhibit
VIII-B
and
Exhibit
VIII-C
annexed
hereto and as to such other matters as Administrative Agent acting on behalf
of
Lenders may reasonably request (this Credit Agreement constituting a written
request by Borrower to such counsel to deliver such opinions to
Lenders).
L. Fees.
Borrower shall have paid to Administrative Agent, for distribution (as
appropriate) to Administrative Agent and Lenders, the fees payable on the
Effective Date referred to in subsection 2.3.
M. Representations
and Warranties; Performance of Agreements. Borrower
shall have delivered to Administrative Agent an Officer’s Certificate, in form
and substance satisfactory to Administrative Agent, to the effect that the
representations and warranties in Section 5 hereof are true, correct and
complete in all material respects on and as of the Effective Date to the same
extent as though made on and as of that date (or, to the extent such
representations and warranties specifically relate to an earlier date, that
such
representations and warranties were true, correct and complete in all material
respects on and as of such earlier date) and that Borrower shall have performed
in all material respects all agreements and satisfied all conditions which
this
Agreement provides shall be performed or satisfied by them on or before the
Effective Date except as otherwise disclosed to and agreed to in writing by
Administrative Agent and Requisite Lenders.
N. No
Litigation.
There
shall not be pending or, to the knowledge of Borrower, threatened, any
Proceeding, against or affecting Borrower or any of its Subsidiaries or any
property of Borrower or any of its Subsidiaries that has not been disclosed
by
Borrower in writing pursuant to subsection 5.6 or 6.1(x) prior to the execution
of this Agreement, and there shall have occurred no development not so disclosed
in any such Proceeding, so disclosed, that, in either event, in the opinion
of
Administrative Agent or of Requisite Lenders, could reasonably be expected
to
result in a Material Adverse Effect; and no injunction or other restraining
order shall have been issued and no hearing to cause an injunction or other
restraining order to be issued shall be pending or noticed with respect to
any
Proceeding seeking to enjoin or otherwise prevent the consummation of, or to
recover any damages or obtain relief as a result of, the transactions
contemplated by this Agreement or the making of Loans hereunder.
O. Completion
of Proceedings.
All
corporate and other proceedings taken or to be taken in connection with the
transactions contemplated hereby and all documents incidental thereto not
previously found acceptable by Administrative Agent, acting on behalf of
Lenders, and its counsel shall be satisfactory in form and substance to
Administrative Agent and such counsel, and Administrative Agent and such counsel
shall have received all such counterpart originals or certified copies of such
documents as Administrative Agent may reasonably request.
P. Solvency
Assurances.
On the
Effective Date, Administrative Agent and Lenders shall have received an
Officer’s Certificate of Borrower dated the Effective Date, substantially in the
form of Exhibit XI
annexed
hereto and with appropriate attachments, demonstrating that, after giving effect
to the consummation of the Transactions and the transactions contemplated by
the
Loan Documents, Borrower and its Subsidiaries, on a consolidated basis, will
be
Solvent.
Q. Subordination
of Management Agreements.
Administrative Agent shall have received a copy of each Management Agreement
and
confirmations of the subordination of each Management Agreement, in form and
substance satisfactory to Administrative Agent.
R. Existing
Credit Agreement.
Borrower shall have paid all fees, expenses and other costs due and owing under
the Existing Credit Agreement and the other Existing Loan
Documents.
S. Subordinated
PIK Indebtedness Agreement.
Administrative Agent shall have received a fully executed copy of the
Subordinated PIK Indebtedness Agreement or a satisfactory amendment to the
substantially similar agreement executed and delivered in connection with the
Existing Credit Agreement.
| 4.2 |
Conditions
to All Loans.
|
The
obligations of Lenders to make the Loans on each Funding Date, including the
Effective Date, are subject to the following further conditions
precedent:
A. Administrative
Agent shall have received before that Funding Date, in accordance with the
provisions of subsection 2.1B,
an
originally executed Notice of Borrowing, in each case signed by a duly
authorized Officer of Borrower.
B. As
of
that Funding Date:
(i) The
representations and warranties contained herein and in the other Loan Documents
shall be true, correct and complete in all material respects on and as of that
Funding Date to the same extent as though made on and as of that date, except
to
the extent such representations and warranties specifically relate to an earlier
date, in which case such representations and warranties shall have been true,
correct and complete in all material respects on and as of such earlier
date;
(ii) No
event
shall have occurred and be continuing or would result from the consummation
of
the borrowing contemplated by such Notice of Borrowing and the application
of
proceeds thereof that would constitute an Event of Default or a Potential Event
of Default;
(iii) No
order,
judgment or decree of any arbitrator or Government Authority shall purport
to
enjoin or restrain any Lender from making the Loans to be made by it on that
Funding Date; and
(iv) Each
Loan
Party shall have performed in all material respects all agreements and satisfied
all conditions which this Agreement provides shall be performed or satisfied
by
it on or before that Funding Date.
| 4.3 |
Conditions
to Letters of Credit.
|
The
issuance of any Letter of Credit hereunder (whether or not the applicable
Issuing Lender is obligated to issue such Letter of Credit) and the renewal
of
any Letter of Credit is subject to the following conditions
precedent:
A. On
or
before the date of issuance of the initial Letter of Credit pursuant to this
Agreement, the initial Loans shall have been made.
B. On
or
before the date of issuance of such Letter of Credit, Administrative Agent
shall
have received, in accordance with the provisions of subsection 3.1,
an
originally executed Notice of Issuance of Letter of Credit (or a facsimile
copy
thereof) in each case signed by a duly authorized Officer of Borrower, together
with all other information specified in subsection 3.1
and such
other documents or information as the applicable Issuing Lender may reasonably
require in connection with the issuance of such Letter of Credit.
C. On
the
date of issuance of such Letter of Credit, all conditions precedent described
in
subsection 4.2B
shall be
satisfied to the same extent as if the issuance of such Letter of Credit were
the making of a Loan and the date of issuance of such Letter of Credit were
a
Funding Date.
Section
5. BORROWER’S
REPRESENTATIONS AND WARRANTIES
In
order
to induce Lenders to enter into this Agreement and to make the Loans, to induce
Issuing Lenders to issue Letters of Credit and to induce other Lenders to
purchase participations therein, Borrower represents and warrants to each
Lender, on the date of this Agreement, on each Funding Date and on the date
of
issuance of each Letter of Credit and the renewal of any Letter of Credit
hereunder that the following statements are true, correct and
complete:
| 5.1 |
Organization,
Powers,
Qualification,
Good Standing,
Business and Subsidiaries.
|
A. Organization
and Powers.
Each
Loan Party is a corporation, partnership, trust or limited liability company
duly organized, validly existing and in good standing under the laws of its
jurisdiction of organization as specified in Schedule
5.1
annexed
hereto. Each Loan Party has all requisite power and authority to own and operate
its properties, to carry on its business as now conducted and as proposed to
be
conducted, to enter into the Loan Documents to which it is a party and to carry
out the transactions contemplated thereby.
B. Qualification
and Good Standing.
Each
Loan Party is qualified to do business and in good standing in every
jurisdiction where its assets are located and wherever necessary to carry out
its business and operations, except in jurisdictions where the failure to be
so
qualified or in good standing has not had and could not reasonably be expected
to result in a Material Adverse Effect.
C. Conduct
of Business.
Borrower and its Subsidiaries are engaged only in the businesses permitted
to be
engaged in pursuant to subsection 7.12.
D. Subsidiaries.
All of
the Subsidiaries of Borrower and their jurisdictions of organization are
identified in Schedule 5.1
annexed
hereto, as said Schedule
5.1
may be
supplemented from time to time pursuant to the provisions of subsection
6.1(xvi).
The
Capital Stock of each of the Subsidiaries of Borrower identified in Schedule 5.1
annexed
hereto (as so supplemented) is duly authorized, validly issued, fully paid
and
nonassessable and none of such Capital Stock constitutes Margin Stock. Each
of
the Subsidiaries of Borrower identified in Schedule 5.1
annexed
hereto (as so supplemented) is a corporation, partnership, trust or limited
liability company duly organized, validly existing and in good standing under
the laws of its respective jurisdiction of organization set forth therein,
has
all requisite power and authority to own and operate its properties and to
carry
on its business as now conducted and as proposed to be conducted, to enter
into
the Loan Documents to which it is a party and to carry out the transactions
contemplated thereby, and is qualified to do business and in good standing
in
every jurisdiction where its assets are located and wherever necessary to carry
out its business and operations, in each case except where failure to be so
qualified or in good standing or a lack of such power and authority has not
had
and could not reasonably be expected to result in a Material Adverse Effect.
Schedule 5.1
annexed
hereto correctly sets forth, as of the Effective Date, the ownership interest
of
Borrower and each of its Subsidiaries in each of the Subsidiaries of Borrower
identified therein.
| 5.2 |
Authorization
of Borrowing,
etc.
|
A. Authorization
of Borrowing.
The
execution, delivery and performance of the Loan Documents have been duly
authorized by all necessary action on the part of each Loan Party that is a
party thereto.
B. No
Conflict.
The
execution, delivery and performance by Loan Parties of the Loan Documents to
which they are parties and the consummation of the transactions contemplated
by
the Loan Documents do not and will not (i) violate any provision of
any law
or any governmental rule or regulation or any Gaming Law applicable to Borrower
or any of its Subsidiaries, the Organizational Documents of Borrower or any
of
its Subsidiaries or any order, judgment or decree of any court or other
Government Authority binding on Borrower or any of its Subsidiaries (other
than
any violation of any such law, governmental rule or regulation, or Gaming Law
or
any such order, judgment or decree, in each case which could not reasonably
be
expected to result in a Material Adverse Effect or cause any liability to any
Lender), (ii) conflict with, result in a breach of or constitute (with
due
notice or lapse of time or both) a default under any Contractual Obligation
of
Borrower or any of its Subsidiaries (other than any such conflict, breach,
or
default which could not reasonably be expected to result in a Material Adverse
Effect), (iii) result in or require the creation or imposition of any
Lien
upon any of the properties or assets of Borrower or any of its Subsidiaries
(other than any Liens created under any of the Loan Documents in favor of
Administrative Agent on behalf of Lenders), or (iv) require any approval
of
stockholders or any approval or consent of any Person under any Contractual
Obligation of Borrower or any of its Subsidiaries, except for such approvals
or
consents which will be obtained on or before the Effective Date and disclosed
in
writing to Lenders.
C. Governmental
Consents; Gaming Authorizations.
(i) Except
for such authorizations, approvals, consents or notices (a) obtained or
delivered as of the Effective Date, (b) subsequently required in connection
with
the addition of any Subsidiary Guarantor pursuant to subsection 6.8, or (c)
set
forth on Schedule
5.2C
annexed
hereto, the execution, delivery and performance by Loan Parties of the Loan
Documents to which they are parties and the consummation of the transactions
contemplated by the Loan Documents do not and will not result in any License
Revocation or require any registration with, consent or approval of, or notice
to, or other action to, with or by, any Government Authority, including any
Gaming Authority. Other than the filings or recordings contemplated by
subsection 5.16A, all authorizations, approvals, consents, notices,
registrations or filings required to be obtained, delivered, filed or made
as of
the Effective Date, for the execution, delivery and performance by Loan Parties
of the Loan Documents to which they are parties and the consummation of the
transactions contemplated by the Loan Documents have been obtained from or
registered or filed with the applicable Government Authority, including any
applicable Gaming Authority.
(ii) All
Gaming Authorizations have been duly obtained and are in full force and effect
without any known conflict with the rights of others and free from any unduly
burdensome restrictions, except where any such failure to obtain such Gaming
Authorizations or any such conflict or restriction could not reasonably be
expected to result in, either individually or in the aggregate, a Material
Adverse Effect. Neither Borrower nor any of its Subsidiaries has received any
written notice or other written communications from any Gaming Authority
regarding (i) any revocation, withdrawal, suspension, termination or
modification of, or the imposition of any material conditions with respect
to,
any Gaming Authorizations, or (ii) any other limitations on the conduct of
business by Borrower or any of its Subsidiaries, except where any such
revocation, withdrawal, suspension, termination, modification, imposition or
limitation could not reasonably be expected to result in, either individually
or
in the aggregate, a Material Adverse Effect.
D. Binding
Obligation.
Each of
the Loan Documents has been duly executed and delivered by each Loan Party
that
is a party thereto and is the legally valid and binding obligation of such
Loan
Party, enforceable against such Loan Party in accordance with its respective
terms, except as may be limited by bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance or similar laws relating to or limiting
creditors’ rights generally or by equitable principles relating to
enforceability.
E. Compliance
with Laws.
Borrower and its Subsidiaries are in compliance with all presently existing
applicable statutes, laws, regulations, rules, ordinances and orders of any
kind
whatsoever (including, without limitation, any zoning and building laws or
ordinances, subdivision laws or ordinances, any Environmental Laws or Gaming
Laws, or any presently existing rules, regulations or orders of any Government
Authority), and with all present existing covenants and restrictions of record
relating to the use and occupancy of any of their respective properties, except
where the failure to so comply could not reasonably be expected to result in
a
Material Adverse Effect.
| 5.3 |
Financial
Condition.
|
Borrower
has heretofore delivered to Lenders, at Lenders’ request, the following
financial statements and information: (i) the audited consolidated balance
sheet of Borrower and its Subsidiaries as of April 24, 2005 and the
related
consolidated statements of income, stockholders’ equity and cash flows of
Borrower and its Subsidiaries for the Fiscal Year then ended, and (ii) the
unaudited consolidated balance sheet of Borrower and its Subsidiaries as of
July
24, 2005 and the related unaudited consolidated statements of income of Borrower
and its Subsidiaries for the three months then ended. All such statements were
prepared in conformity with GAAP and fairly present, in all material respects,
the financial position (on a consolidated basis) of the entities described
in
such financial statements as at the respective dates thereof and the results
of
operations (on a consolidated basis) of the entities described therein for
each
of the periods then ended, subject, in the case of any such unaudited financial
statements, to changes resulting from audit and normal year-end adjustments.
No
Loan Party has (and will not have following the funding of the initial Loans)
any Contingent Obligation, contingent liability or liability for taxes,
long-term lease or unusual forward or long-term commitment that, as of the
Effective Date, is not reflected in the foregoing financial statements or the
notes thereto and which in any such case is material in relation to the
business, operations, properties, assets, condition (financial or otherwise)
or
prospects of Borrower or any of its Subsidiaries.
| 5.4 |
No
Material Adverse Change; No Restricted Junior Payments of Permitted
Tax
Distributions.
|
Since
April 24, 2005, no event or change has occurred that has resulted in
or
evidences, either in any case or in the aggregate, a Material Adverse Effect.
Except as set forth on Schedule
5.4
annexed
hereto, during the period from April 24, 2005 through and including
the
Effective Date, neither Borrower nor any of its Subsidiaries has directly or
indirectly declared, ordered, paid or made, or set apart any sum or property
for, any Restricted Junior Payment or agreed to do so except as permitted by
subsection 7.5
or made
any Permitted Tax Distribution.
| 5.5 |
Title
to Properties; Liens; Real Property; Intellectual
Property.
|
A. Title
to Properties; Liens. Borrower
and its Subsidiaries have (i) good, sufficient and legal title to (in
the
case of fee interests in real property), (ii) valid leasehold interests
in
(in the case of leasehold interests in real or personal property), or
(iii) good title to (in the case of all other personal property), all
of
their respective properties and assets reflected in the financial statements
referred to in subsection 5.3
or in
the most recent financial statements delivered pursuant to subsection
6.1,
in each
case except for assets disposed of since the date of such financial statements
in the ordinary course of business or as otherwise permitted under subsection
7.7.
All
such properties and assets are free and clear of Liens, other than Permitted
Encumbrances. Since April 22, 2003 through the Effective Date, to Borrower’s
best knowledge (but without performing searches of real or personal property
records), other than any Liens in favor of Administrative Agent and Liens
granted in favor of lessors pursuant to equipment leases entered into in the
ordinary course of business, no material Liens have been filed against Borrower
or any of its Subsidiaries or any of their respective assets other than as
set
forth on Schedule 5.5A
or
permitted by Section 7.2A.
B. Real
Property. As
of the
Effective Date, (i) Schedule
5.5B (Part 1)
annexed
hereto contains a true, accurate and complete list of all Real Property Assets
constituting fee properties and (ii) Schedule
5.5B (Part 2)
annexed
hereto contains a true, accurate and complete list of all leases, subleases
or
assignments of leases (together with all amendments, modifications, supplements,
renewals or extensions of any thereof) affecting any Real Property Asset of
the
Loan Parties, regardless of whether a Loan Party is the landlord or tenant
(whether directly or as an assignee or successor in interest) under such lease,
sublease or assignment. Each agreement listed in Schedule
5.5B (Part 2)
pursuant
to the immediately preceding sentence is in full force and effect, there is
no
default by any Loan Party thereunder, and Borrower does not have knowledge
of
any default by any other party thereto that has occurred and is continuing
thereunder, and each such agreement constitutes the legally valid and binding
obligation of each applicable Loan Party, enforceable against such Loan Party
in
accordance with its terms, except as enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws relating to or limiting
creditors’ rights generally or by equitable principles.
C. Intellectual
Property.
As of
the Effective Date, Borrower and its Subsidiaries own or have the right to
use
all Intellectual Property used in the conduct of their business, except where
the failure to own or have such right to use, individually or in the aggregate
could not reasonably be expected to result in a Material Adverse Effect. No
claim has been asserted and is pending by any Person challenging or questioning
the use of any such Intellectual Property or the validity or effectiveness
of
any such Intellectual Property, nor does Borrower know of any valid basis for
any such claim except for such claims that, individually or in the aggregate,
could not reasonably be expected to result in a Material Adverse Effect. The
use
of such Intellectual Property of Borrower and its Subsidiaries does not infringe
on the rights of any Person, except for such claims and infringements that,
individually or in the aggregate, could not reasonably be expected to result
in
a Material Adverse Effect. All federal and state and all foreign registrations
of and applications for Intellectual Property, and all unregistered Intellectual
Property, that are owned or licensed by Borrower or any of its Subsidiaries
on
the Effective Date are described on Schedule
5.5C
annexed
hereto.
| 5.6 |
Litigation;
Adverse Facts.
|
A. Proceedings,
Investigations and Violations.
There
are no Proceedings (whether or not purportedly on behalf of Borrower or any
of
its Subsidiaries) at law or in equity (including any Environmental Claims),
or
before or by any court or other Government Authority that are pending or, to
the
knowledge of Borrower or any of its Subsidiaries, threatened against or
affecting Borrower or any of its Subsidiaries or any property of Borrower or
any
of its Subsidiaries and that, individually or in the aggregate, could reasonably
be expected to result in a Material Adverse Effect. Neither Borrower nor any
of
its Subsidiaries (i) is in violation of any applicable laws (including
Environmental Laws) that, individually or in the aggregate, could reasonably
be
expected to result in a Material Adverse Effect, or (ii) is subject
to or
in default with respect to any final judgments, writs, injunctions, decrees,
rules or regulations of any court or other Government Authority, that,
individually or in the aggregate, could reasonably be expected to result in
a
Material Adverse Effect. Since April 22, 2003 to the Effective Date, except
as
set forth on Schedule 5.6A,
no
material Proceedings (whether or not purportedly on behalf of Borrower or any
of
its Subsidiaries) at law or in equity, or before or by any court or other
Government Authority (including any Environmental Claims) are currently pending
or, to the knowledge of Borrower or any of its Subsidiaries, threatened against
or affecting Borrower or any of its Subsidiaries or any property of Borrower
or
any of its Subsidiaries.
B. Land
Use Proceedings.
Except
as set forth on Schedule
5.6B,
there
are no material pending condemnation, zoning or other land use Proceedings
or
special assessment Proceedings with respect to the Real Property Assets or
the
use thereof, and neither Borrower nor any of its Subsidiaries has received
written notice from any Government Authority threatening any such proceeding.
Except as set forth on Schedule
5.6B,
no Loan
Party has entered into any agreements or commitments with any Government
Authority that will be binding on the Real Property Assets after the Effective
Date and that would (i) materially affect the operations of or the entitlements
applicable to such property, (ii) require the owner of such property to make
improvements to such property or make dedications or off-site improvements
for
the benefit of adjoining properties, or (iii) make additional expenditures
with
respect to the operation of the Real Property Assets.
| 5.7 |
Payment
of Taxes.
|
Except
to
the extent permitted by subsection 6.3,
all tax
returns and reports of Borrower and its Subsidiaries required to be filed by
any
of them have been timely filed, and all Taxes shown on such tax returns to
be
due and payable and all assessments, fees and other governmental charges upon
Borrower and its Subsidiaries and upon their respective properties, assets,
income, businesses and franchises that are due and payable have been paid when
due and payable. Borrower knows of no proposed tax assessment against Borrower
or any of its Subsidiaries that has not been paid when due or is not being
actively contested by Borrower or such Subsidiaries in good faith and by
appropriate proceedings; provided
that
such reserves or other appropriate provisions, if any, as shall be required
in
conformity with GAAP shall have been made or provided therefor.
| 5.8 |
Performance
of Agreements; Materially Adverse Agreements; Material
Contracts.
|
A. Neither
Borrower nor any of its Subsidiaries is in default in the performance,
observance or fulfillment of any of the obligations, covenants or conditions
contained in any of its Contractual Obligations, and no condition exists that,
with the giving of notice or the lapse of time or both, would constitute such
a
default, except where the consequences, direct or indirect, of such default
or
defaults, if any, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect.
B. Neither
Borrower nor any of its Subsidiaries is a party to or is otherwise subject
to
any agreements or instruments or any charter or other internal restrictions
or
any provision of any applicable law, rule or regulation which, individually
or
in the aggregate, could reasonably be expected to result in a Material Adverse
Effect.
C. Schedule
5.8
contains
a true, correct and complete list of all the Material Contracts in effect on
the
Effective Date. All such Material Contracts are in full force and effect and
no
defaults currently exist thereunder, except for defaults that, individually
or
in the aggregate, could not reasonably be result in a Material Adverse
Effect.
D. Neither
Borrower nor any of its Subsidiaries has entered into any currently effective
contracts for the sale of any Effective Date Mortgaged Property, nor do there
exist any currently effective rights of first refusal or options to purchase
such property.
| 5.9 |
Governmental
Regulation; OFAC; Patriot Act; Foreign Corrupt Practices
Act.
|
A. Governmental
Regulation.
Except
for the Gaming Laws described in Schedule
5.9
annexed
hereto, neither Borrower nor any of its Subsidiaries is subject to regulation
under the Public Utility Holding Company Act of 1935, the Federal Power Act,
the
Interstate Commerce Act or the Investment Company Act of 1940 or under any
other
federal or state statute or regulation that may limit its ability to incur
Indebtedness or that may otherwise render all or any portion of the Obligations
unenforceable.
B. Foreign
Asset Control Regulations.
Neither
the making of the Loans to, or issuance of Letters of Credit on behalf of,
Borrower nor its use of the proceeds thereof will violate the Trading with
the
Enemy Act, as amended, or any of the foreign assets control regulations of
the
United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended)
or
any enabling legislation or executive order relating thereto. Without limiting
the foregoing, neither Borrower nor any of its Subsidiaries or Affiliates (a)
is
or will become a Person whose property or interests in property are blocked
pursuant to Section 1 of Executive Order 13224 of September 23, 2001 Blocking
Property and Prohibiting Transactions With Persons Who Commit, Threaten to
Commit, or Support Terrorism (66 Fed. Reg. 49079 (2001)) or (b) engages or
will
engage in any dealings or transactions, or be otherwise associated, with any
such Person. Borrower and its Subsidiaries and Affiliates are in compliance,
in
all material respects, with the Uniting And Strengthening America By Providing
Appropriate Tools Required To Intercept And Obstruct Terrorism (USA Patriot
Act
of 2001).
| 5.10 |
Securities
Activities.
|
A. Neither
Borrower nor any of its Subsidiaries is engaged principally, or as one of its
important activities, in the business of extending credit for the purpose of
purchasing or carrying any Margin Stock.
B. Following
application of the proceeds of each Loan, not more than 25% of the value of
the
assets (of Borrower or of Borrower and its Subsidiaries on a consolidated basis)
subject to the provisions of subsections 7.2
and
7.7
or
subject to any restriction contained in any agreement or instrument, between
Borrower and any Lender or any Affiliate of any Lender, relating to Indebtedness
and within the scope of subsection 8.2, will be Margin Stock.
| 5.11 |
Employee
Benefit Plans.
|
A. Borrower,
each of its Subsidiaries and each of their respective ERISA Affiliates are
in
compliance with all applicable provisions and requirements of ERISA and the
regulations and published interpretations thereunder with respect to each
Employee Benefit Plan, and have performed all of their obligations under each
Employee Benefit Plan. Each Employee Benefit Plan that is intended to qualify
under Section 401(a) of the Internal Revenue Code is so qualified.
B. No
ERISA
Event has occurred or is reasonably expected to occur.
C. Except
to
the extent required under Section 4980B of the Internal Revenue Code, no
Employee Benefit Plan provides health or welfare benefits (through the purchase
of insurance or otherwise) for any retired or former employee of Borrower,
any
of its Subsidiaries or any of their respective ERISA Affiliates.
D. As
of the
most recent valuation date for any Pension Plan, the amount of unfunded benefit
liabilities (as defined in Section 4001(a)(18) of ERISA), individually or in
the
aggregate for all Pension Plans (excluding for purposes of such computation
any
Pension Plans with respect to which assets exceed benefit liabilities), does
not
exceed $1,000,000.
E. As
of the
most recent valuation date for each Multiemployer Plan for which the actuarial
report is available, the potential liability of Borrower, its Subsidiaries
and
their respective ERISA Affiliates for a complete withdrawal from such
Multiemployer Plan (within the meaning of Section 4203 of ERISA), when
aggregated with such potential liability for a complete withdrawal from all
Multiemployer Plans, based on information available pursuant to Section 4221(e)
of ERISA, does not exceed $1,000,000.
| 5.12 |
Certain
Fees.
|
No
broker’s or finder’s fee or commission will be payable with respect to this
Agreement or any of the transactions contemplated by the Loan Documents, and
Borrower hereby indemnifies Administrative Agent, Lead Arranger and Lenders
against, and agrees that it will hold Administrative Agent, Lead Arranger and
Lenders harmless from, any claim, demand or liability for any non-disclosed
broker’s or finder’s fees alleged to have been incurred in connection herewith
or therewith and any expenses (including reasonable fees, expenses and
disbursements of counsel) arising in connection with any such claim, demand
or
liability.
| 5.13 |
Environmental
Protection.
|
Except
as
set forth in Schedule 5.13
annexed
hereto:
(i) neither
Borrower nor any of its Subsidiaries nor any of their respective Facilities
or
operations are subject to any outstanding written order, consent decree or
settlement agreement with any Person relating to (a) any Environmental
Law,
(b) any Environmental Claim, or (c) any Hazardous Materials Activity
that, individually or in the aggregate, could reasonably be expected to result
in a Material Adverse Effect or impose any liability on the Lenders,
Administrative Agent or Lead Arranger;
(ii) neither
Borrower nor any of its Subsidiaries has received any material letter
or
request for information under Section 104 of the Comprehensive
Environmental Response, Compensation, and Liability Act (42 U.S.C. § 9604)
or any comparable state law;
(iii) there
are
no and, to Borrower’s knowledge, have been no conditions, occurrences, or
Hazardous Materials Activities which could reasonably be expected to form the
basis of an Environmental Claim against Borrower or any of its Subsidiaries
that, individually or in the aggregate, could reasonably be expected to result
in a Material Adverse Effect or impose any liability on the Lenders,
Administrative Agent or Lead Arranger;
(iv) neither
Borrower nor any of its Subsidiaries nor, to Borrower’s knowledge, any
predecessor of Borrower or any of its Subsidiaries has filed any notice under
any Environmental Law indicating past or present treatment of Hazardous
Materials at any Facility, and none of Borrower’s or any of its Subsidiaries’
operations involves the generation, transportation, treatment, storage or
disposal of hazardous waste, as defined under 40 C.F.R. Parts 260-270 or any
state equivalent;
(v) compliance
with all current or reasonably foreseeable future requirements pursuant to
or
under Environmental Laws will not, individually or in the aggregate, be
reasonably expected to result in a Material Adverse Effect or impose any
liability on the Lenders, Administrative Agent or Lead Arranger;
and
(vi) except
as
set forth on Schedule 5.13,
since
April 22, 2003 to the Effective Date, there are no and, to Borrower’s
actual knowledge, have been no conditions, occurrences, or Hazardous Materials
Activities which could reasonably be expected to form the basis of a material
Environmental Claim against Borrower or any of its Subsidiaries.
Notwithstanding
anything in this subsection 5.13
to the
contrary, no event or condition has occurred or is occurring with respect to
Borrower or any of its Subsidiaries relating to any Environmental Law, any
Release of Hazardous Materials, or any Hazardous Materials Activity, including
any matter disclosed on Schedule
5.13
annexed
hereto, which individually or in the aggregate has had or could reasonably
be
expected to result in a Material Adverse Effect or could reasonably be expected
to impose any liability on the Lenders, Administrative Agent or Lead
Arranger.
| 5.14 |
Employee
Matters.
|
There
are
no collective bargaining agreements covering the employees of Borrower and
its
Subsidiaries except as set forth on Schedule 5.14. There is no strike or work
stoppage in existence or threatened involving Borrower or any of its
Subsidiaries that could reasonably be expected to result in a Material Adverse
Effect, and there are no strikes or walkouts in progress, pending or to
Borrower’s knowledge contemplated, relating to any labor contracts to which
Borrower or any of its Subsidiaries is a party, relating to any labor contracts
being negotiated, or otherwise, that could reasonably be expected to result
in a
Material Adverse Effect.
| 5.15 |
Solvency.
|
Each
Loan
Party is and Borrower and its Subsidiaries, taken as a whole, are and, upon
the
incurrence of any Obligations by such Loan Party on any date on which this
representation is made, will be, Solvent.
| 5.16 |
Matters
Relating to Collateral.
|
A. Creation,
Perfection and Priority of Liens. The
execution and delivery of the Collateral Documents by Loan Parties, together
with (i) the actions taken on or prior to the date hereof pursuant to
subsections 4.1F,
4.1G,
6.8
and
6.9
and the
filing of any UCC financing statements and/or amendments and PTO filings and/or
amendments delivered to Administrative Agent for filing (but not yet filed)
and
(ii) the delivery to Administrative Agent of any Pledged Collateral
not
delivered to Administrative Agent at the time of execution and delivery of
the
applicable Collateral Document (all of which Pledged Collateral has been so
delivered) are effective to create or to continue in favor of Administrative
Agent for the benefit of Lenders, as security for the respective Secured
Obligations (as defined in the applicable Collateral Document in respect of
any
Collateral), a valid First Priority security interest on all of the Collateral,
and all filings and other actions necessary or desirable to perfect and maintain
the First Priority status of such Liens have been duly made or taken and remain
in full force and effect, other than the filing of any UCC financing statements
delivered to Administrative Agent for filing (but not yet filed) and the
periodic filing of UCC continuation statements in respect of UCC financing
statements filed by or on behalf of Administrative Agent.
B. Governmental
Authorizations. No
Governmental Authorization, or other action by, and no notice to or filing
with,
any Government Authority is required for either (i) the pledge or grant
by
any Loan Party of the Liens purported to be created in favor of Administrative
Agent pursuant to any of the Collateral Documents or (ii) the exercise
by
Administrative Agent of any rights or remedies in respect of any Collateral
(whether specifically granted or created pursuant to any of the Collateral
Documents or created or provided for by applicable law), except for such
Governmental Authorizations, or other actions set forth on Schedule
5.2C
annexed
hereto and filings or recordings contemplated by subsection 5.16A
and
except as may be required, in connection with the foreclosure or disposition
of
any Pledged Collateral, by laws generally affecting the offering and sale of
securities.
C. Absence
of Third-Party Filings. Except
(x) such as may have been filed in favor of Administrative Agent as contemplated
by subsection 5.16A,
(y) for
Permitted Encumbrances, and (z) for Liens that shall be terminated pursuant
to
UCC termination statements delivered to Administrative Agent for filing (but
not
yet filed), such Liens to be terminated upon the filing or recording of such
UCC
termination statements, (i) no effective UCC financing statement, fixture
filing or other instrument similar in effect covering all or any part of the
Collateral is on file in any filing or recording office and (ii) no
effective filing covering all or any part of the IP Collateral is on file in
the
PTO.
D. Margin
Regulations. The
pledge of the Pledged Collateral pursuant to the Collateral Documents does
not
violate Regulation T, U or X of the Board of Governors of the Federal Reserve
System.
E. Information
Regarding Collateral. All
information supplied to Administrative Agent by or on behalf of any Loan Party
with respect to any of the Collateral (in each case taken as a whole with
respect to any particular Collateral) is accurate and complete in all material
respects.
F. Conditions
Affecting the Real Property Assets.
There
are no (i) defects, facts or conditions affecting any Effective Date Mortgaged
Property that would make it unsuitable for the current use of such property
or
contemplated use after completion of the Expansion Project, (ii) abnormal
hazards (including earth movement, slippage or flood damage) affecting any
Effective Date Mortgaged Property, except for defects, facts or conditions
which
could not reasonably be expected to result in a Material Adverse
Effect.
G. Permits
and Approvals; Licenses.
(i) Except
as
set forth on Schedule
5.16G(i), Borrower
has obtained or caused its Subsidiaries to obtain, all Governmental
Authorizations, including, without limitation, all liquor licenses, Gaming
Authorizations, sewer and water permits, elevator permits, certificates of
occupancy, subdivision approvals, environmental approvals, zoning and land
use
entitlements which are necessary for the current operation of its business
and
any Effective Date Mortgaged Property and any other real property owned or
leased by Borrower, and there are no uncured violations thereof, except for
Governmental Authorizations where the failure to obtain, and violations thereof,
could not reasonably be expected to result in a Material Adverse
Effect.
(ii) Each
of
the Loan Parties has, and is in all material respects in compliance with respect
to, all licenses, permits, approvals and authorizations of any Government
Authority necessary to conduct its business as presently conducted and to own
or
lease and operate its business located on any Effective Date Mortgaged
Property.
(iii) As
of the
Effective Date, Schedule
5.16G(iii)
is a
complete and correct list of each Material License granted or assigned to any
Loan Party. The Material Licenses listed on Schedule
5.16G(iii)
include
all material authorizations, licenses and permits that are required or necessary
in order to operate the casino located on the Isle-Black Hawk Property and
the
business located on any other Effective Date Mortgaged Property, as now
conducted or proposed to be conducted. As of the Effective Date, each Material
License listed on Schedule
5.16G(iii)
is
validly issued and in full force and effect.
| 5.17 |
Disclosure.
|
No
representation or warranty of Borrower or any of its Subsidiaries contained
in
the Confidential Information Memorandum or in any Loan Document or in any other
document, certificate or written statement furnished to Lenders by or on behalf
of Borrower or any of its Subsidiaries for use in connection with the
transactions contemplated by this Agreement contains any untrue statement of
a
material fact or omits to state a material fact (known to Borrower, in the
case
of any document not furnished by it) necessary in order to make the statements
contained herein or therein not misleading in light of the circumstances in
which the same were made. Any projections and pro forma financial information
contained in such materials are based upon good faith estimates and assumptions
believed by Borrower to be reasonable at the time made, it being recognized
by
Lenders that such projections as to future events are not to be viewed as facts
and that actual results during the period or periods covered by any such
projections may materially differ from the projected results. There are no
facts
known (or which should upon the reasonable exercise of diligence be known)
to
Borrower (other than matters of a general economic nature) that, individually
or
in the aggregate, could reasonably be expected to result in a Material Adverse
Effect and that have not been disclosed herein or in such other documents,
certificates and statements furnished to Lenders for use in connection with
the
transactions contemplated hereby.
| 5.18 |
Mortgage
Taxes,
Etc.
|
All
mortgage, note, transfer, documentary, stamp, intangible and other similar
taxes
and impositions which may be required to be paid in connection with the Loans,
the Mortgages and the other Loan Documents have been (or concurrently with
the
closing of the Loans and recording of the Mortgages, will be) paid in full
by
Borrower or its Subsidiaries.
Section
6. BORROWER’S
AFFIRMATIVE COVENANTS
Borrower
covenants and agrees that, so long as any of the Commitments hereunder shall
remain in effect and until payment in full of all of the Loans and other
Obligations and the cancellation or expiration of all Letters of Credit, unless
Requisite Lenders shall otherwise give prior written consent, Borrower shall
perform, and shall cause each of its Subsidiaries to perform, all covenants
in
this Section
6.
| 6.1 |
Financial
Statements and Other Reports.
|
Borrower
will maintain, and cause each of its Subsidiaries to maintain, a system of
accounting established and administered in accordance with sound business
practices to permit preparation of financial statements in conformity with
GAAP.
Borrower will deliver to Administrative Agent (with copies for each Lender,
which copies shall be promptly distributed by Administrative
Agent):
(i) Monthly
Financials:
as soon
as available and in any event within 30 days after the end of each February,
March, May, June, August, September, November and December ending after the
Effective Date, (a) the consolidated balance sheet, as applicable, of
Borrower and its Subsidiaries as at the end of such fiscal period and the
related consolidated statements of income of Borrower and its Subsidiaries
and
separate statements of income of each Gaming Facility of Borrower and its
Subsidiaries, in each case for such month and for the period from the beginning
of the then current Fiscal Year to the end of such month, setting forth in
each
case in comparative form the corresponding figures for the corresponding periods
of the previous Fiscal Year and the corresponding figures from the Financial
Plan for the current Fiscal Year, to the extent prepared on a monthly basis,
all
in reasonable detail and certified by the senior director of finance or vice
president of finance of Borrower that they fairly present, in all material
respects, the financial condition of Borrower and its Subsidiaries as at the
dates indicated and the results of their operations for the periods indicated,
subject to changes resulting from audit and normal year-end adjustments, and
(b) if requested by Administrative Agent, a narrative report describing
the
operations of Borrower and its Subsidiaries in the form prepared for
presentation to senior management for such fiscal period and for the period
from
the beginning of the then current Fiscal Year to the end of such fiscal
period;
(ii) Quarterly
Financials:
as soon
as available and in any event within (x) 45 days after the end of each Fiscal
Quarter (other than each fourth Fiscal Quarter), or (y) 90 days after the end
of
each fourth Fiscal Quarter, (a) the consolidated balance sheet of Borrower
and
its Subsidiaries as at the end of such Fiscal Quarter and the related
consolidated statements of income, stockholders’ equity of Borrower and its
Subsidiaries for such Fiscal Quarter and for the period from the beginning
of
the then current Fiscal Year to the end of such Fiscal Quarter, setting forth
in
each case in comparative form the corresponding figures for the corresponding
periods of the previous Fiscal Year and the corresponding figures from the
Financial Plan for the current Fiscal Year, all in reasonable detail and
certified by the senior director of finance or vice president of finance of
Borrower that they fairly present, in all material respects, the financial
condition of Borrower and its Subsidiaries as at the dates indicated and the
results of their operations for the periods indicated, subject to changes
resulting from audit and normal year-end adjustments,and (b) if requested
by Administrative Agent, a narrative report describing the operations of
Borrower and its Subsidiaries in the form prepared for presentation to senior
management for such Fiscal Quarter and for the period from the beginning of
the
then current Fiscal Year to the end of such Fiscal Quarter;
(iii) Year-End
Financials:
as soon
as available and in any event within 90 days after the end of each Fiscal Year,
(a) the consolidated balance sheet of Borrower and its Subsidiaries
as at
the end of such Fiscal Year and the related consolidated statements of income,
stockholders’ equity and cash flows of Borrower and its Subsidiaries for such
Fiscal Year setting forth in each case in comparative form the corresponding
figures for the previous Fiscal Year and the corresponding figures from the
Financial Plan for the Fiscal Year covered by such financial statements, all
in
reasonable detail and certified by the senior director of finance or vice
president of finance of Borrower that they fairly present, in all material
respects, the financial condition of Borrower and its Subsidiaries as at the
dates indicated and the results of their operations and their cash flows for
the
periods indicated, (b) if requested by Administrative Agent, a narrative
report describing the operations of Borrower and its Subsidiaries in the form
prepared for presentation to senior management for such Fiscal Year, and
(c) in the case of such consolidated financial statements, a report
thereon
of a nationally recognized “big 4” accounting firm or other independent
certified public accountants of recognized national standing selected by
Borrower and satisfactory to Administrative Agent, which report shall be
unqualified, shall express no doubts about the ability of Borrower and its
Subsidiaries to continue as a going concern, and shall state that such
consolidated financial statements fairly present, in all material respects,
the
consolidated financial position of Borrower and its Subsidiaries as at the
dates
indicated and the results of their operations and their cash flows for the
periods indicated in conformity with GAAP applied on a basis consistent with
prior years (except as otherwise disclosed in such financial statements) and
that the examination by such accountants in connection with such consolidated
financial statements has been made in accordance with generally accepted
auditing standards;
(iv) Officer
and Compliance Certificates:
together with each delivery of financial statements of Borrower and its
Subsidiaries pursuant to subdivisions (ii) and (iii) above, (a) an
Officer’s Certificate of Borrower stating that the signers have reviewed the
terms of this Agreement and have made, or caused to be made under their
supervision, a review in reasonable detail of the transactions and condition
of
Borrower and its Subsidiaries during the accounting period covered by such
financial statements and that such review has not disclosed the existence during
or at the end of such accounting period, and that the signers do not have
knowledge of the existence as at the date of such Officer’s Certificate, of any
condition or event that constitutes an Event of Default or Potential Event
of
Default, or, if any such condition or event existed or exists, specifying the
nature and period of existence thereof and what action Borrower has taken,
is
taking and proposes to take with respect thereto; and (b) a Compliance
Certificate demonstrating in reasonable detail compliance during and at the
end
of the applicable accounting periods with the restrictions contained in
6.11,
in each
case to the extent compliance with such restrictions is required to be tested
at
the end of the applicable accounting period, together with a description
(including amounts) of all Investments and Consolidated Capital Expenditures
made during such period, and with respect to each construction or expansion
project of Borrower and its Subsidiaries, a report setting forth the budgeted
and/or projected total cost of such project, the costs incurred to date for
such
project and the expenditures made to date for such project;
(v) Reconciliation
Statements:
(a) if,
as a result of any change in accounting principles and policies from those
used
in the preparation of the audited financial statements referred to in subsection
5.3,
the
consolidated financial statements of Borrower and its Subsidiaries delivered
pursuant to subdivisions (ii), (iii) or (xiii) of this subsection 6.1
will
differ in any material respect from the consolidated financial statements that
would have been delivered pursuant to such subdivisions had no such change
in
accounting principles and policies been made, then (a) together with
the
first delivery of financial statements pursuant to subdivision (ii), (iii)
or
(xiii) of this subsection 6.1
following such change, consolidated financial statements of Borrower and its
Subsidiaries for (y) the current Fiscal Year to the effective date of
such
change and (z) the two full Fiscal Years immediately preceding the Fiscal
Year in which such change is made, in each case prepared on a pro forma basis
as
if such change had been in effect during such periods, and (b) together
with each delivery of financial statements pursuant to subdivision (ii), (iii)
or (xiii) of this subsection 6.1
following such change, a written statement of the chief accounting officer
or
senior director of finance or vice president of finance of Borrower setting
forth the differences (including any differences that would affect any
calculations relating to the financial covenants set forth in subsection
7.6)
which
would have resulted if such financial statements had been prepared without
giving effect to such change; and (b) Borrower shall deliver to the
Administrative Agent at the same time as the delivery of any annual or quarterly
financial statements given in accordance with the provisions of this subsection
6.1, (i) a description in reasonable detail of any material change in
the
application of accounting principles employed in the preparation of such
financial statements from those applied in the most recently preceding quarterly
or annual financial statements as to which no objection shall have been made
in
accordance with the provisions above, and (ii) a reasonable estimate
of
such effect on the financial statements on account of such changes in
application;
(vi) Accountants’
Certification:
together with each delivery of consolidated financial statements of Borrower
and
its Subsidiaries pursuant to subdivision (iii) above, a written statement by
the
independent certified public accountants giving the report thereon
(a) stating that their audit examination has included a review of the
terms
of this Agreement and the other Loan Documents as they relate to accounting
matters, (b) stating whether, in connection with their audit examination,
any condition or event that constitutes an Event of Default or Potential Event
of Default has come to their attention and, if such a condition or event has
come to their attention, specifying the nature and period of existence thereof;
provided
that
such accountants shall not be liable by reason of any failure to obtain
knowledge of any such Event of Default or Potential Event of Default that would
not be disclosed in the course of their audit examination, and (c) stating
that based on their audit examination nothing has come to their attention that
causes them to believe either or both that the information contained in the
certificates delivered therewith pursuant to subdivision (iv) above is not
correct or that the matters set forth in the Compliance Certificate delivered
therewith pursuant to clause (b) of subdivision (iv) above for the applicable
Fiscal Year are not stated in accordance with the terms of this
Agreement;
(vii) Accountants’
Reports:
promptly upon receipt thereof (unless restricted by applicable professional
standards), copies of all reports submitted to Borrower by independent certified
public accountants in connection with each annual, interim or special audit
of
the financial statements of Borrower and its Subsidiaries made by such
accountants, including any comment letter submitted by such accountants to
management in connection with their annual audit;
(viii) SEC
Filings and Press Releases:
promptly upon their becoming available, copies of (a) all financial
statements, reports, notices and proxy statements sent or made available
generally by Borrower to its Security holders or by any Subsidiary of Borrower
to their Security holders other than Borrower or another Subsidiary of Borrower,
(b) all regular and periodic reports and all registration statements
(other
than on Form S-8 or a similar form) and prospectuses, if any, filed by Borrower
or any of its Subsidiaries with any securities exchange or with the Securities
and Exchange Commission or any governmental or private regulatory authority,
and
(c) all press releases and other statements made available generally
by
Borrower or any of its Subsidiaries to the public concerning material
developments in the business of Borrower or any of its
Subsidiaries;
(ix) Events
of Default, etc.:
promptly upon any officer of Borrower obtaining knowledge (a) of any
condition or event that constitutes an Event of Default or Potential Event
of
Default, or becoming aware that any Lender has given any notice (other than
to
Administrative Agent) or taken any other action with respect to a claimed Event
of Default or Potential Event of Default, (b) that any Person has given
any
notice to Borrower or any of its Subsidiaries or taken any other action with
respect to a claimed default or event or condition of the type referred to
in
subsection 8.2, (c) of any resignation or dismissal of Borrower’s
independent accountant, (d) of any Change in Control, (e) of
any
individual or series of related Asset Sales, issuances of Capital Stock or
receipt of Net Insurance/Condemnation Proceeds aggregating in excess of
$1,000,000, or (f) of the occurrence of any event or change that could
reasonably be expected to result in, either individually or in the aggregate,
a
Material Adverse Effect, an Officer’s Certificate specifying the nature and
period of existence of such condition, event or change, or specifying the notice
given or action taken by any such Person and the nature of such claimed Event
of
Default, Potential Event of Default, default, event or condition, and what
action Borrower has taken, is taking and proposes to take with respect
thereto;
(x) Litigation
or Other Proceedings:
(a)
promptly upon any officer of Borrower obtaining knowledge of (1) the institution
of, or non-frivolous threat of, any Proceeding against or affecting Borrower
or
any of its Subsidiaries or any property of Borrower or any of its Subsidiaries
not previously disclosed in writing by Borrower to Lenders or (2) any material
development in any Proceeding that, in any case:
(x) if
adversely determined could reasonably be expected to result in a Material
Adverse Effect; or
(y) seeks
to
enjoin or otherwise prevent the consummation of, or to recover any damages
or
obtain relief as a result of, the transactions contemplated hereby;
written
notice thereof together with such other information as may be reasonably
available to Borrower to enable Lenders and their counsel to evaluate such
matters; and (b) within twenty days after the end of each Fiscal Quarter,
a
schedule of all Proceedings (other than any Proceeding as to which a solvent
and
unaffiliated insurance company has acknowledged coverage) involving an alleged
liability of, or claims against or affecting, Borrower or any of its
Subsidiaries equal to or greater than $2,000,000, and promptly after request
by
Administrative Agent such other information as may be reasonably requested
by
Administrative Agent to enable Administrative Agent and its counsel to evaluate
any such Proceedings;
(xi) ERISA
Events:
promptly upon becoming aware of the occurrence of or forthcoming occurrence
of
any ERISA Event, a written notice specifying the nature thereof, what action
Borrower, any of its Subsidiaries or any of their respective ERISA Affiliates
has taken, is taking or proposes to take with respect thereto and, when known,
any action taken or threatened by the Internal Revenue Service, the Department
of Labor or the PBGC with respect thereto;
(xii) ERISA
Notices:
with
reasonable promptness, copies of (a) each Schedule B (Actuarial Information)
to
the annual report (Form 5500 Series) filed by Borrower, any of its Subsidiaries
or any of their respective ERISA Affiliates with the Internal Revenue Service
with respect to each Pension Plan; (b) all notices received by Borrower, any
of
its Subsidiaries or any of their respective ERISA Affiliates from a
Multiemployer Plan sponsor concerning an ERISA Event; and (b) copies
of
such other documents or governmental reports or filings relating to any Employee
Benefit Plan as Administrative Agent shall reasonably request;
(xiii) Financial
Plans:
as soon
as practicable and in any event no later than 30 days following the beginning
of
each Fiscal Year, a consolidated plan and financial forecast for such Fiscal
Year (the “Financial
Plan”
for
such Fiscal Years), including (a) forecasted consolidated balance sheets and
a
forecasted consolidated statement of income of Borrower and its Subsidiaries
for
each such Fiscal Year, (b) forecasted consolidated statements of income
of
Borrower and its Subsidiaries for each month of each such Fiscal Year, together
with an explanation of the assumptions on which such forecasts are based, and
(c) such other information and projections as any Administrative Agent may
reasonably request;
(xiv) Insurance:
(a) as soon as practicable and in any event by the last day of each
Fiscal
Year, a report in form and substance satisfactory to Administrative Agent
outlining all material insurance coverage required under this Agreement to
be
maintained as of the date of such report of Borrower and its Subsidiaries and
all material insurance coverage planned to be maintained of Borrower and its
Subsidiaries in the immediately succeeding Fiscal Year as required under this
Agreement and (b) as soon as practicable after any material change in
insurance coverage maintained of Borrower and its Subsidiaries notice thereof
to
Administrative Agent specifying the changes and reasons therefor;
(xv) Governing
Body:
with
reasonable promptness, written notice of any change in the Governing Body of
Borrower;
(xvi) New
Subsidiaries:
promptly upon any Person becoming a Subsidiary of Borrower, a written notice
setting forth with respect to such Person (a) the date on which such
Person
became a Subsidiary of Borrower and (b) all of the data required to
be set
forth in Schedule
5.1
annexed
hereto with respect to a Subsidiary of Borrower (it being understood that such
written notice shall be deemed to supplement Schedule
5.1
annexed
hereto for all purposes of this Agreement);
(xvii) Material
Contracts:
promptly, and in any event within ten Business Days after any Material Contract
of Borrower or any of its Subsidiaries is terminated or amended in a manner
that
is materially adverse to Borrower or such Subsidiary, as the case may be, or
any
new Material Contract is entered into, a written statement describing such
event
with copies of such material amendments or new contracts, and an explanation
of
any actions being taken with respect thereto;
(xviii) Margin
Determination Certificate:
commencing with the Fiscal Quarter ending on or about January 22, 2006, together
with each delivery of financial statements for each Fiscal Quarter (other than
each fourth Fiscal Quarter) pursuant to subdivision (ii) above, and within
45
days of the last day of each fourth Fiscal Quarter, a Margin Determination
Certificate demonstrating in reasonable detail the calculation of the
Consolidated Total Leverage Ratio for the four consecutive Fiscal Quarters
ending on the day of the accounting period covered by such financial
statements;
(xix) License
Revocation:
promptly upon any Officer of Borrower obtaining knowledge of a License
Revocation, written notice thereof together with such other information as
may
be reasonably available to Borrower to enable Lenders and their counsel to
evaluate such License Revocation, and such other information as may be
reasonably requested by Administrative Agent;
(xx) Real
Property:
if
Borrower or any of its Subsidiaries acquires any additional Real Property Assets
after the Effective Date, an updated Schedule 5.5B.
(xxi) Revisions
or Updates to Schedules:
should
any of the information or disclosures provided on any of the Schedules
originally attached to any of the Loan Documents become outdated or incorrect
in
any material respect, as part of the next quarterly Officer’s Certificate
required pursuant to subsection 6.1(iv),
such
revisions or updates to such Schedules as may be necessary or appropriate to
update or correct such Schedules, provided
that no
such revisions or updates to any Schedules shall be deemed to have amended,
modified or superseded such Schedules immediately prior to the submission of
such revised or updated Schedules unless such revisions or updates were made
to
reflect changes made in accordance with the terms of this Agreement, or to
have
cured any breach of warranty or representation resulting from the inaccuracy
or
incompleteness of any such Schedules, unless and until the Requisite Lenders
in
their sole and absolute discretion, shall have accepted in writing such
revisions or updates to such Schedules; and
(xxii) Other
Information:
with
reasonable promptness, such other information and data with respect to Borrower
or any of its Subsidiaries as from time to time may be reasonably requested
by
any Lender.
| 6.2 |
Existence,
etc.
|
Except
as
permitted under subsection 7.7,
Borrower will, and will cause each of its Subsidiaries to, at all times preserve
and keep in full force and effect its existence in the jurisdiction of
organization specified on Schedule 4.1C
and all
rights and franchises material to its business; provided,
however
that neither Borrower nor any of its Subsidiaries shall be required to preserve
any such right or franchise if the Governing Body of Borrower or such Subsidiary
shall determine that the preservation thereof is no longer desirable in the
conduct of the business of Borrower or such Subsidiary, as the case may be,
and
that the loss thereof is not disadvantageous in any material respect to
Borrower, such Subsidiary or Lenders.
| 6.3 |
Payment
of Taxes and Claims; Tax Consolidation.
|
A. Borrower
will, and will cause each of its Subsidiaries to, pay all Taxes, and other
governmental charges imposed upon it or any of its properties or assets or
in
respect of any of its income, businesses or franchises before any penalty
accrues thereon, and all claims (including claims for labor, services, materials
and supplies) for sums that have become due and payable and that by law have
or
may become a Lien upon any of its properties or assets, prior to the time when
any penalty or fine shall be incurred with respect thereto; provided
that no
such Tax, charge or claim need be paid if it is being contested in good faith
by
appropriate proceedings promptly instituted and diligently conducted, so long
as
(i) such reserve or other appropriate provision, if any, as shall be
required in conformity with GAAP shall have been made therefor and (ii) in
the case of a Tax, charge or claim which has or may become a Lien against any
of
the Collateral, such contest proceedings conclusively operate to stay the sale
of any portion of the Collateral to satisfy such charge or claim.
B. Borrower
will not, nor will it permit any of its Subsidiaries to, file or consent to
the
filing of any consolidated income tax return with any Person (other than
Borrower or any of its Subsidiaries).
| 6.4 |
Maintenance
of Properties; Insurance.
|
A. Maintenance
of Properties. Borrower
will, and will cause each of its Subsidiaries to, maintain or cause to be
maintained in good repair, working order and condition, ordinary wear and tear
excepted, all material properties (including, without limitation, all Gaming
Facilities) used or useful in the business of Borrower and its Subsidiaries
(including all Intellectual Property) and from time to time will make or cause
to be made all appropriate repairs, renewals and replacements
thereof.
B. Insurance. Borrower
will maintain or cause to be maintained, with financially sound and reputable
insurers, such public liability insurance, third party property damage
insurance, business interruption insurance and casualty insurance with respect
to liabilities, losses or damage in respect of the assets, properties and
businesses of Borrower and its Subsidiaries as may customarily be carried or
maintained under similar circumstances by corporations of established reputation
engaged in similar businesses, in each case in such amounts (giving effect
to
self-insurance, to the extent companies (and for such purpose, including Isle
of
Capri Casinos, Inc.) of similar size and in similar businesses self-insure),
with such deductibles, covering such risks and otherwise on such terms and
conditions as shall be customary for corporations similarly situated in the
industry. Without limiting the generality of the foregoing, Borrower will
maintain or cause to be maintained (i) flood insurance with respect
to each
Flood Hazard Property that is located in a community that participates in the
National Flood Insurance Program, in each case in compliance with any applicable
regulations of the Board of Governors of the Federal Reserve System, and
(ii) replacement value casualty insurance on the Collateral under such
policies of insurance, with such insurance companies, in such amounts, with
such
deductibles, covering such risks, and having other terms and conditions as
are
at all times satisfactory to Administrative Agent in its commercially reasonable
judgment. Each such policy of insurance shall (a) name Administrative
Agent
for the benefit of Lenders as an additional insured thereunder as its interests
may appear and (b) in the case of each business interruption and casualty
insurance policy, contain a loss payable clause or endorsement, satisfactory
in
form and substance to Administrative Agent, that names Administrative Agent
for
the benefit of Lenders as the loss payee thereunder for any covered loss in
excess of $500,000 and provides for at least 30 days prior written notice to
Administrative Agent of any modification or cancellation of such
policy.
6.5 Inspection
Rights.
Borrower shall, and shall cause each of its Subsidiaries to, permit any
authorized representatives designated by Administrative Agent to visit and
inspect any of the properties of Borrower or any of its Subsidiaries, to
inspect, copy and take extracts from Borrower’s and its Subsidiaries’ financial
and accounting records, and to discuss its and their affairs, finances and
accounts with its and their officers and independent public accountants
(provided that Borrower may, if it so chooses, be present at or participate
in
any such discussion), all upon reasonable notice and at such reasonable times
during normal business hours and as often as may reasonably be
requested.
| 6.6 |
Compliance
with Laws,
etc.
|
A. Compliance
with Laws.
Borrower shall comply, and shall cause each of its Subsidiaries and all other
Persons on or occupying any Facilities to comply, with the requirements of
all
applicable laws, rules, regulations and orders of any Government Authority
(including all Environmental Laws and Gaming Laws), noncompliance with which
could reasonably be expected to result in, individually or in the aggregate,
a
Material Adverse Effect.
B. Maintenance
of Material Licenses.
Borrower shall, and shall cause each of its Subsidiaries to, maintain (i) such
valid Gaming Authorizations, registrations and findings of suitability in all
jurisdictions as may be necessary to operate each of its Gaming Facility
businesses, including, when completed, the Expansion Project, and (ii) all
liquor licenses and registrations as may be necessary to sell alcoholic
beverages from and in its Gaming Facilities, including, when completed, the
Expansion Project.
| 6.7 |
Environmental
Matters.
|
A. Environmental
Investigations.
Borrower agrees that Administrative Agent may, from time to time and in its
reasonable discretion, (i) retain, at Borrower’s expense, an independent
professional consultant to review any environmental audits, investigations,
analyses and reports relating to Hazardous Materials prepared by or for Borrower
and (ii) if (a) Administrative Agent reasonably believes that
Borrower
has breached any representation, warranty or covenant contained in subsection
5.6,
5.13,
6.6,
6.7B
or
6.7C
in any
material respect or that there has been a material violation of Environmental
Laws at any Facility or by Borrower or any of its Subsidiaries at any other
location or (b) an Event of Default has occurred and is continuing,
conduct
its own investigation of any Facility; provided
that, in
the case of any Facility no longer owned, leased, operated or used by Borrower
or any of its Subsidiaries, Borrower shall only be obligated to use all
commercially reasonable efforts to obtain permission for Administrative Agent’s
professional consultant to conduct an investigation of such Facility. For
purposes of conducting such a review and/or investigation, Borrower hereby
grants to Administrative Agent and its agents, employees, consultants and
contractors the right to enter into or onto any Facilities currently owned,
leased, operated or used by Borrower or any of its Subsidiaries and to perform
such tests on such property (including taking samples of soil, groundwater
and
suspected asbestos-containing materials) as are reasonably necessary in
connection therewith. Any such review and/or investigation of any Facility
shall
be conducted, unless otherwise agreed to by Borrower and Administrative Agent,
upon reasonable notice during normal business hours and, to the extent
reasonably practicable, shall be conducted so as not to interfere with the
ongoing operations at such Facility or to cause any damage or loss to any
property at such Facility. Borrower and Administrative Agent hereby acknowledge
and agree that any report of any investigation conducted at the request of
Administrative Agent pursuant to this subsection 6.7A
will be
obtained and shall be used by Administrative Agent and Lenders for the purposes
of Lenders’ internal credit decisions, to monitor the Loans and to protect
Lenders’ security interests, if any, created by the Loan Documents.
Administrative Agent agrees to deliver a copy of any such report to Borrower
with the understanding that Borrower acknowledges and agrees that (x) it
will indemnify and hold harmless Administrative Agent, Lead Arranger and each
Lender from any costs, losses or liabilities relating to Borrower’s use of or
reliance on such report, (y) neither Administrative Agent nor any Lender
makes any representation or warranty with respect to such report, and
(z) by delivering such report to Borrower, neither Administrative Agent,
Lead Arranger nor any Lender is requiring or recommending the implementation
of
any suggestions or recommendations contained in such report.
B. Environmental
Disclosure. Borrower
will deliver to Administrative Agent and Lenders:
(i) Environmental
Audits and Reports.
As soon
as practicable following receipt thereof, copies of all environmental audits,
investigations, analyses and reports of any kind or character, whether prepared
by personnel of Borrower or any of its Subsidiaries or by independent
consultants, Government Authorities or any other Persons, with respect to
significant environmental matters at any Facility that, individually or in
the
aggregate, could reasonably be expected to result in a Material Adverse Effect
or with respect to any Environmental Claims that, individually or in the
aggregate, could reasonably be expected to result in a Material Adverse
Effect;
(ii) Notice
of Certain Releases, Remedial Actions, Etc.
Promptly
upon the occurrence thereof, written notice describing in reasonable detail
(a) any Release required to be reported to any federal, state or local
governmental or regulatory agency under any applicable Environmental Laws,
(b) any remedial action taken by Borrower or any other Person in response
to (1) any Hazardous Materials Activities the existence of which has
a
reasonable possibility of resulting in one or more Environmental Claims
resulting in, individually or in the aggregate, a Material Adverse Effect,
or
(2) any Environmental Claims that, individually or in the aggregate,
could
reasonably be expected to result in a Material Adverse Effect, and
(c) Borrower’s discovery of any occurrence or condition on any real
property adjoining or in the vicinity of any Facility that could reasonably
be
expected to result in, individually or in the aggregate, a Material Adverse
Effect.
(iii) Written
Communications Regarding Environmental Claims, Releases, Etc. As
soon
as practicable following the sending or receipt thereof by Borrower or any
of
its Subsidiaries, a copy of any and all written communications with respect
to
(a) any Environmental Claims that, individually or in the aggregate,
could
reasonably be expected to result in a Material Adverse Effect, (b) any
Release required to be reported to any Government Authority, and (c) any
request for information from any Government Authority that suggests such
Government Authority is investigating whether Borrower or any of its
Subsidiaries may be potentially responsible for any Hazardous Materials
Activity.
(iv) Notice
of Certain Proposed Actions Having Environmental Impact.
Prompt
written notice describing in reasonable detail (a) any proposed acquisition
of stock, assets, or property by Borrower or any of its Subsidiaries that could
reasonably be expected to (1) expose Borrower or any of its Subsidiaries to,
or
result in, Environmental Claims that could reasonably be expected to result
in,
individually or in the aggregate, a Material Adverse Effect or (2) affect the
ability of Borrower or any of its Subsidiaries to maintain in full force and
effect all material Governmental Authorizations required under any Environmental
Laws for their respective operations and (b) any proposed action to
be
taken by Borrower or any of its Subsidiaries to commence manufacturing or other
industrial operations or to modify current operations in a manner that could
reasonably be expected to subject Borrower or any of its Subsidiaries to any
material additional obligations or requirements under any Environmental Laws
that could reasonably be expected to result in, individually or in the
aggregate, a Material Adverse Effect.
(v) Other
Information.
With
reasonable promptness, such other documents and information as from time to
time
may be reasonably requested by Administrative Agent in relation to any matters
disclosed pursuant to this subsection 6.7.
C. Borrower’s
Actions Regarding Hazardous Materials Activities,
Environmental Claims and Violations of Environmental Laws.
(i) Remedial
Actions Relating to Hazardous Materials Activities.
Borrower shall, in compliance with all applicable Environmental Laws, promptly
undertake, and shall cause each of its Subsidiaries promptly to undertake,
any
and all investigations, studies, sampling, testing, abatement, cleanup, removal,
remediation or other response actions necessary to remove, remediate, clean
up
or xxxxx any Hazardous Materials Activity on, under or about any Facility that
is in violation of any Environmental Laws or that presents a material risk
of
giving rise to an Environmental Claim. If Borrower or any of its Subsidiaries
undertakes any such action with respect to any Hazardous Materials, Borrower
or
such Subsidiary shall conduct and complete such action in compliance with all
applicable Environmental Laws and in accordance with the policies, orders and
directives of all federal, state and local Government Authorities except when,
and only to the extent that, Borrower’s or such Subsidiary’s liability with
respect to such Hazardous Materials Activity is being diligently contested
in
good faith and by appropriate proceedings by Borrower or such Subsidiary.
(ii) Actions
with Respect to Environmental Claims and Violations of Environmental
Laws.
Borrower shall promptly take, and shall cause each of its Subsidiaries promptly
to take, any and all actions necessary to (i) cure any material violation
of applicable Environmental Laws by Borrower or its Subsidiaries that could
reasonably be expected to result in, individually or in the aggregate, a
Material Adverse Effect and (2) make an appropriate response to any
Environmental Claim against Borrower or any of its Subsidiaries and discharge
any obligations it may have to any Person thereunder where failure to do so
could reasonably be expected to result in, individually or in the aggregate,
a
Material Adverse Effect.
(iii) Confirmation
of Completion of Work At Colorado Central Station Casino. Borrower shall use
its
best efforts to obtain and deliver to Administrative Agent and Lenders written
notice from the Government Authority exercising jurisdiction under Environmental
Laws over the Remediation performed pursuant to the Administrative Order on
Consent between the Environmental Protection Agency and Anchor Coin, signed
August 20, 1993, for the Colorado Central Station Casino property, 000 Xxxx
Xxxxxx, Xxxxx Xxxx Colorado, that no additional material Remediation pursuant
to
such administrative order is required at that time by such Government
Authority.
| 6.8 |
Execution
of Subsidiary Guaranty and Personal Property Collateral Documents
After
the Effective Date.
|
A. Execution
of Subsidiary Guaranty and Personal Property Collateral
Documents.
If any
Person becomes a Subsidiary of Borrower after the date hereof, Borrower will
promptly notify Administrative Agent of that fact and cause such Subsidiary,
if
a domestic Subsidiary, to execute and deliver to Administrative Agent a
counterpart of the Subsidiary Guaranty and Security Agreement and to take all
such further actions and execute all such further documents and instruments
(including actions, documents and instruments comparable to those described
in
subsection 4.1G) as may be necessary or, in the opinion of Administrative Agent,
desirable to create in favor of Administrative Agent, for the benefit of
Lenders, a valid First Priority Lien on all of the personal and mixed property
assets of such Subsidiary described in the applicable forms of Collateral
Documents.
B. Subsidiary
Organizational Documents,
Legal Opinions,
Etc.
Borrower shall deliver to Administrative Agent, together with such Loan
Documents, (i) certified copies of such Subsidiary’s Organizational
Documents, together with a good standing certificate from the Secretary of
State
of the jurisdiction of its organization and each other state in which such
Person is qualified to do business and, to the extent generally available,
a
certificate or other evidence of good standing as to payment of any applicable
franchise or similar taxes from the appropriate taxing authority of each of
such
jurisdictions, each to be dated a recent date prior to their delivery to
Administrative Agent, (ii) a copy of such Subsidiary’s bylaws, if any, certified
by its corporate secretary or an assistant secretary as of a recent date prior
to their delivery to Administrative Agent, (iii) a certificate executed
by
the secretary or similar Officer of such Subsidiary as to (a) the fact
that
the attached resolutions of the Governing Body of such Subsidiary approving
and
authorizing the execution, delivery and performance of such Loan Documents
are
in full force and effect and have not been modified or amended and (b) the
incumbency and signatures of the Officers of such Subsidiary executing such
Loan
Documents, and (iii) a favorable opinion of counsel to such Subsidiary,
addressed to Administrative Agent and Lenders, as to (a) the due
organization and good standing of such Subsidiary, (b) the due
authorization, execution and delivery by such Subsidiary of such Loan Documents,
(c) the enforceability of such Loan Documents against such Subsidiary
and
(d) such other matters (including matters relating to the creation and
perfection of Liens in any Collateral pursuant to such Loan Documents) as
Administrative Agent may reasonably request, all of the foregoing to be
satisfactory in form and substance to Administrative Agent and its
counsel.
| 6.9 |
Matters
Relating to Additional Real Property Collateral.
|
A. Conforming
Leasehold Interests.
If
Borrower or any Subsidiary of Borrower acquires any Material Leasehold Property,
Borrower shall, or shall cause such Subsidiary, use commercially reasonable
best
efforts (without requiring Borrower or such Subsidiary to relinquish any
material rights or incur any material obligations or to expend more than a
nominal amount of money over and above the reimbursement, if required, of the
landlord’s out-of-pocket costs, including attorneys fees) to cause such Material
Leasehold Property to be a Conforming Leasehold Interest.
B. Additional
Mortgages,
Etc. From
and
after the Effective Date, if (i) Borrower or any Subsidiary Guarantor
acquires any fee interest in real property or any Material Leasehold Property
or
(ii) at the time any Person becomes a Subsidiary Guarantor, such Person
owns or holds any fee interest in real property or any Material Leasehold
Property, in either case excluding any such Real Property Asset the
encumbrancing of which requires the consent of any applicable lessor or
then-existing senior lienholder, where Borrower and its Subsidiaries have
attempted in good faith, but are unable, to obtain such lessor’s or senior
lienholder’s consent after use of their commercially reasonable efforts (any
such non-excluded Real Property Asset described in the foregoing clause (i)
or
(ii) being an “Additional
Mortgaged Property”),
Borrower or such Subsidiary shall deliver to Administrative Agent, as soon
as
practicable after such Person acquires such Additional Mortgaged Property or
becomes a Subsidiary Guarantor, as the case may be, a fully executed and
notarized Mortgage (an “Additional
Mortgage”),
in
proper form for recording in all appropriate places in all applicable
jurisdictions, encumbering the interest of such Loan Party in such Additional
Mortgaged Property; and such opinions, appraisals, documents, title insurance
and environmental reports that would have been delivered on the Effective Date
if such Additional Mortgaged Property were an Effective Date Mortgaged Property
or that may be reasonably required by Administrative Agent.
C. Real
Estate Appraisals. Borrower
shall, and shall cause each of its Subsidiaries to, permit an independent real
estate appraiser satisfactory to Administrative Agent, upon reasonable notice,
to visit and inspect any Additional Mortgaged Property for the purpose of
preparing an appraisal of such Additional Mortgaged Property satisfying the
requirements of any applicable laws and regulations (in each case to the extent
required under such laws and regulations as determined by Administrative Agent
in its discretion).
| 6.10 |
Deposit
Accounts and Cash Management Systems.
|
Borrower
shall, and shall cause each of its Subsidiaries to, use and maintain its Deposit
Accounts and cash management systems in a manner reasonably satisfactory to
Administrative Agent, and deliver information regarding these Deposit Accounts,
including (a) the name and address of the financial institutions maintaining
the
Deposit Accounts, and (b) the Deposit Account numbers, shall be set forth on
Schedule
6.10
annexed
hereto. Except with respect to payroll accounts for which only funds related
to
the payment of employees are deposited and jackpot accounts to the extent the
pledge of any such jackpot account would violate applicable Gaming Laws,
Borrower shall not permit any such Deposit Account at any time to have a
principal balance in excess of $2,000,000 unless Borrower or such Subsidiary,
as
the case may be, has (i) delivered to Administrative Agent a Deposit Account
Control Agreement and (ii) taken all other steps necessary or, in the opinion
of
Administrative Agent, desirable to ensure that Administrative Agent will have
sole dominion and control over such Deposit Account at all times while such
agreement is in effect; provided that if Borrower or such Subsidiary is unable
to obtain such agreement from such financial institution Borrower shall, or
shall cause such Subsidiary to, within 30 days after receiving a written request
by Administrative Agent to do so, transfer all amounts in the applicable Deposit
Account to a Deposit Account maintained at a financial institution from which
such Borrower or such Subsidiary has obtained such an agreement. Borrower shall
not permit the aggregate amount on deposit in all Deposit Accounts of Borrower
and of its Subsidiaries (other than Deposit Accounts maintained with
Administrative Agent or Deposit Accounts for which a Deposit Account Control
Agreement described above has been executed and delivered) at any time to exceed
$5,000,000.
| 6.11 |
Post-Closing
Matters.
|
A. Tax
Good Standing Certificates. To
the
extent not delivered on or prior to the Effective Date, Borrower shall use
commercially reasonable efforts to deliver to Administrative Agent within sixty
(60) days after the Effective Date each certificate or other evidence of good
standing as to payment of any applicable franchise or similar taxes required
to
be delivered pursuant to subsection 4.1A(i).
B. Deposit
Account Control Agreements.
Within
sixty (60) days after the Effective Date, Borrower shall, or shall cause the
applicable Subsidiary to, deliver to Administrative Agent a fully executed
Deposit Account Control Agreement, or an amendment to an existing Deposit
Account Control Agreement, with respect to each Deposit Account for which a
Deposit Account Control Agreement is required to be delivered pursuant to
subsection 6.10 to the extent no such agreement has been previously delivered
to
Administrative Agent. In connection with the delivery of any such Deposit
Account Control Agreements, or amendments thereto, Borrower shall deliver,
or
cause to be delivered, such opinions, certificates and other documents
reasonably requested by Administrative Agent.
C. Insurance
Endorsements.
Borrower shall use commercially reasonable efforts to deliver to Administrative
Agent within sixty (60) days after the Effective Date endorsements to the
liability and property insurance policies covering Borrower and its Subsidiaries
indicating that Administrative Agent on behalf of Lenders has been named as
additional insured and/or loss payee thereunder to the extent required under
subsection 6.4.
Section
7. BORROWER’S
NEGATIVE COVENANTS
Borrower
covenants and agrees that, so long as any of the Commitments hereunder shall
remain in effect and until payment in full of all of the Loans and other
Obligations and the cancellation or expiration of all Letters of Credit, unless
Requisite Lenders shall otherwise give prior written consent, Borrower shall
perform, and shall cause each of its Subsidiaries to perform, all covenants
in
this Section 7.
| 7.1 |
Indebtedness.
|
Borrower
shall not, and shall not permit any of its Subsidiaries to, directly or
indirectly, create, incur, assume or guaranty, or otherwise become or remain
directly or indirectly liable with respect to, any Indebtedness,
except:
(i) Borrower
may become and remain liable with respect to the Obligations;
(ii) Borrower
and its Subsidiaries may become and remain liable with respect to Contingent
Obligations permitted by subsection 7.4
and,
upon any matured obligations actually arising pursuant thereto, the resulting
Indebtedness corresponding to the Contingent Obligations so
extinguished;
(iii) Borrower
may become and remain liable with respect to unsecured Indebtedness to any
Subsidiary Guarantor, and any wholly-owned domestic Subsidiary of Borrower
may
become and remain liable with respect to unsecured Indebtedness to Borrower
or
any Subsidiary Guarantor; provided
that
(a) a Lien on all such intercompany Indebtedness shall be granted to
Administrative Agent for the benefit of Lenders and (b) to the extent
the
aggregate principal amount of such Indebtedness is equal to or greater than
$250,000, if such intercompany Indebtedness is evidenced by a promissory note
or
other instrument, such promissory note or instrument shall have been pledged
to
Administrative Agent pursuant to the Security Agreement;
(iv) Borrower
and its Subsidiaries, as applicable, may remain liable with respect to
Indebtedness described in Schedule 7.1
annexed
hereto (including any refinancing, thereof);
(v) Borrower
and its Subsidiaries may become and remain liable with respect to other
Indebtedness; provided
that the
maximum aggregate liability, contingent or otherwise, of Borrower and its
Subsidiaries in respect of all such Indebtedness and Contingent Obligations
permitted pursuant to subsection 7.4(v)
shall at
no time exceed $2,000,000;
(vi) Borrower
may, if the costs and expenses of the Expansion Project exceed $80,000,000
in
the aggregate, incur and remain liable with respect to the Subordinated PIK
Indebtedness in an aggregate principal amount not to exceed the lesser of (x)
the amount of such expenses in excess of $80,000,000 and (y)
$25,000,000;
and
(vii) Borrower
and its Subsidiaries may incur and remain liable with respect to Indebtedness
arising from obligations to fund the repayment of public improvement bonds
issued by the Black Hawk Business Improvement District with respect to the
Public Improvements provided that (a) the terms of such issuance are acceptable
to Administrative Agent, (b) Borrower or one of its Subsidiaries is the owner
of
such bonds on terms acceptable to Administrative Agent, and (c) the aggregate
principal amount of such Indebtedness does not exceed the result of $22,000,000
less the amount incurred as Public Improvement Capital Expenditures pursuant
to
subsection 7.8(D).
| 7.2 |
Liens
and Related Matters.
|
A. Prohibition
on Liens. Borrower
shall not, and shall not permit any of its Subsidiaries to, directly or
indirectly, create, incur, assume or permit to exist any Lien on or with respect
to any property or asset of any kind (including any document or instrument
in
respect of goods or accounts receivable) of Borrower or any of its Subsidiaries,
whether now owned or hereafter acquired, or any income or profits therefrom
or
proceeds thereof, 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 such property, asset, income or profits or proceeds under the UCC of
any
State or under any similar recording or notice statute, except:
(i) Permitted
Encumbrances;
(ii) Liens
granted pursuant to the Collateral Documents;
(iii) Existing
liens described in Schedule 7.2A(iii)
annexed
hereto (including any replacement Liens resulting from any refinancing of the
underlying obligations of such Liens; provided
that
such replacement Liens do not extend to any property not listed on Schedule
7.2A(iii)
and such
refinancing is permitted by subsection 7.1
hereof);
(iv) Other
Liens securing Indebtedness, Capital Leases and Contingent Obligations permitted
under subsections 7.1
and
7.4,
respectively;
(v) Liens
described on Schedule 7.2A(v) annexed hereto related to the Expansion Project;
provided
that
such Liens, either individually or in the aggregate, could not reasonably be
expected to impair in any material respect the use, operation or value of the
Expansion Project;
(vi) Liens
in
favor of the City of Black-Hawk and the Black Hawk Business Improvement District
on funds escrowed by Borrower or one of its Subsidiaries to pay the costs of
constructing the Public Improvements provided that such escrowed funds do not
exceed $22,000,000 less the aggregate principal amount of Indebtedness incurred
pursuant to subsection 7.1(vii).
B. Equitable
Lien in Favor of Lenders. If
Borrower or any of its Subsidiaries shall create or assume any Lien upon any
of
its properties or assets, whether now owned or hereafter acquired, other than
Liens excepted by the provisions of subsection 7.2A,
Borrower or such Subsidiary shall make or cause to be made effective provision
whereby the Obligations will be secured by such Lien equally and ratably with
any and all other Indebtedness secured thereby as long as any such Indebtedness
shall be so secured; provided
that,
notwithstanding the foregoing, this covenant shall not be construed as a consent
by Requisite Lenders to the creation or assumption of any such Lien not
permitted by the provisions of subsection 7.2A.
C. No
Further Negative Pledges. Except
with respect to specific property encumbered to secure payment of particular
Indebtedness or to be sold pursuant to an executed agreement with respect to
an
Asset Sale permitted by this Agreement, neither Borrower nor any of its
Subsidiaries shall enter into any agreement prohibiting the creation or
assumption of any Lien upon any of its properties or assets, whether now owned
or hereafter acquired.
D. No
Restrictions on Subsidiary Distributions to Borrower or Other
Subsidiaries. Borrower
shall not, and shall not permit any of its Subsidiaries to, create or otherwise
cause or suffer to exist or become effective any consensual encumbrance or
restriction of any kind on the ability of any such Subsidiary to (i) pay
dividends or make any other distributions on any of such Subsidiary’s Capital
Stock owned by Borrower or any other Subsidiary of Borrower, (ii) repay
or
prepay any Indebtedness owed by such Subsidiary to Borrower or any other
Subsidiary of Borrower, (iii) make loans or advances to Borrower or
any
other Subsidiary of Borrower, or (iv) transfer any of its property or
assets to Borrower or any other Subsidiary of Borrower.
| 7.3 |
Investments;
Acquisitions.
|
Borrower
shall not, and shall not permit any of its Subsidiaries to, directly or
indirectly, make or own any Investment in any Person, including any Joint
Venture, or acquire, by purchase or otherwise, all or substantially all the
business, property or fixed assets of, or Capital Stock of any Person, or any
division or line of business of any Person except:
(i) Borrower
and its Subsidiaries may make and own Investments in Cash
Equivalents;
(ii) Borrower
and its Subsidiaries may continue to own the Investments owned by them as of
the
Effective Date in any Subsidiaries of Borrower;
(iii) Borrower
and its Subsidiaries may make intercompany loans to the extent permitted under
subsection 7.1(iii);
(iv) Borrower
and its Subsidiaries may make Consolidated Capital Expenditures permitted by
subsection 7.8;
(v) Borrower
and its Subsidiaries may continue to own the Investments owned by them and
described in Schedule
7.3
annexed
hereto;
(vi) Borrower
and its Subsidiaries may make and own other Investments in an aggregate amount
not to exceed at any time $5,000,000;
(vii) Borrower
and its Subsidiaries may make Investments to acquire public improvement bonds
issued by the Black Hawk Business Improvement District with respect to the
Public Improvements, provided that (a) Borrower or one of its Subsidiaries
is
the owner of such bonds, (b) the aggregate amount of such Investments does
not
exceed the result of $22,000,000 less the amount incurred as Public Improvement
Capital Expenditures pursuant to subsection 7.8(D) and (c) the terms
of
such bonds are acceptable to Administrative Agent; and
(viii) Borrower
and its Subsidiaries may receive and hold promissory notes and other non-cash
consideration received in connection with any Asset Sale permitted by subsection
7.7.
| 7.4 |
Contingent
Obligations.
|
Borrower
shall not, and shall not permit any of its Subsidiaries to, directly or
indirectly, create or become or remain liable with respect to any Contingent
Obligation, except:
(i) Subsidiaries
of Borrower may become and remain liable with respect to Contingent Obligations
in respect of the Subsidiary Guaranty;
(ii) Borrower
may become and remain liable with respect to Contingent Obligations under Hedge
Agreements with respect to the Loans;
(iii) Borrower
and its Subsidiaries may become and remain liable with respect to Contingent
Obligations in respect of customary indemnification and purchase price
adjustment obligations incurred in connection with Asset Sales or other sales
of
assets;
(iv) Borrower
and its Subsidiaries, as applicable, may remain liable with respect to
Contingent Obligations described in Schedule 7.4
annexed
hereto; and
(v) Borrower
and its Subsidiaries may become and remain liable with respect to other
Contingent Obligations; provided
that the
maximum aggregate liability, contingent or otherwise, of Borrower and its
Subsidiaries in respect of all such Contingent Obligations and Indebtedness
permitted pursuant to subsection 7.1(v)
shall
at no
time exceed $2,000,000.
| 7.5 |
Restricted
Junior Payments.
|
Borrower
shall not, and shall not permit any of its Subsidiaries to, directly or
indirectly, declare, order, pay, make or set apart any sum for any Restricted
Junior Payment; provided
that so
long as (a) no Event of Default or Potential Event of Default shall
have
occurred and be continuing or shall be caused thereby and (b) Borrower
will
be in pro forma compliance with the financial covenants set forth in subsection
7.6 after giving effect thereto, Borrower may (i) pay Management Fees,
(ii) pay interest on Subordinated PIK Indebtedness in the form of
additional Subordinated PIK Indebtedness, (iii) pay cash interest on
Subordinated PIK Indebtedness; provided that, after giving effect to such
payment, the Consolidated Total Leverage Ratio of Borrower shall be less than
2.5:1.00, (iv) repay principal on the Subordinated PIK Indebtedness in an amount
equal to any cash reimbursements received by Borrower or any Guarantor in
connection with the Public Improvements and (v) upon completion of the Expansion
Project and the Public Improvements, make other Restricted Junior Payments
in
the following amounts: (a) if, after giving effect to the contemplated
Restricted Junior Payment, the Consolidated Total Leverage Ratio of Borrower
is
equal to or greater than 4.00:1.00, 25% of Consolidated Excess Cash Flow for
the
immediately preceding Fiscal Year, (b) if, after giving effect to the
contemplated Restricted Junior Payment, the Consolidated Total Leverage Ratio
of
Borrower is greater than or equal to 3.00:1.00 and less than 4.00:1.00, 50%
of
Consolidated Excess Cash Flow for the immediately preceding Fiscal Year and
(c)
if, after giving effect to the contemplated Restricted Junior Payment, the
Consolidated Total Leverage Ratio of the Borrower is less than 3.00:1.00, 75%
of
Consolidated Excess Cash Flow for the immediately preceding Fiscal
Year.
| 7.6 |
Financial
Covenants.
|
A. Minimum
Fixed Charge Coverage Ratio.
Borrower shall not permit the ratio of (i) Consolidated EBITDA less
Maintenance Capital Expenditures to (ii) Consolidated Fixed Charges
for any
four-Fiscal Quarter period to be less than 1.25:1.00.
B. Maximum
Consolidated Total Leverage Ratio.
Borrower shall not permit the Consolidated Total Leverage Ratio as of the last
day of the most recently ended Fiscal Quarter ending during any of the periods
set forth below to exceed the correlative ratio indicated:
|
Period
|
Maximum
Total Leverage Ratio
|
|
|
2nd
Fiscal Quarter, Fiscal Year 2006
3rd
Fiscal Quarter, Fiscal Year 2006
4th
Fiscal Quarter, Fiscal Year 2006
|
5.00
: 1.00
5.00
: 1.00
5.00
: 1.00
|
|
|
1st
Fiscal Quarter, Fiscal Year 2007
2nd
Fiscal Quarter, Fiscal Year 2007
3rd
Fiscal Quarter, Fiscal Year 2007
4th
Fiscal Quarter, Fiscal Year 2007
|
4.75
: 1.00
4.50
: 1.00
4.25
: 1.00
4.00
: 1.00
|
|
|
1st
Fiscal Quarter, Fiscal Year 2008
2nd
Fiscal Quarter, Fiscal Year 2008
3rd
Fiscal Quarter, Fiscal Year 2008
4th
Fiscal Quarter, Fiscal Year 2008
|
3.75
: 1.00
3.75
: 1.00
3.50
: 1.00
3.50
: 1.00
|
|
|
1st
Fiscal Quarter, Fiscal Year 2009
2nd
Fiscal Quarter, Fiscal Year 2009
3rd
Fiscal Quarter, Fiscal Year 2009
4th
Fiscal Quarter, Fiscal Year 2009
|
3.25
: 1.00
3.25
: 1.00
3.00
: 1.00
3.00
: 1.00
|
|
|
1st
Fiscal Quarter, Fiscal Year 2010
2nd
Fiscal Quarter, Fiscal Year 2010
3rd
Fiscal Quarter, Fiscal Year 2010
and
each Fiscal Quarter thereafter
|
2.75
: 1.00
2.75
: 1.00
2.50
: 1.00
|
|
| 7.7 |
Restriction
on Fundamental Changes; Asset Sales.
|
Borrower
shall not, and shall not permit any of its Subsidiaries to, alter the corporate,
capital or legal structure of Borrower or any of its Subsidiaries, or enter
into
any transaction of merger or consolidation, or liquidate, wind-up or dissolve
itself (or suffer any liquidation or dissolution), or convey, sell, lease or
sub-lease (as lessor or sublessor), transfer or otherwise dispose of, in one
transaction or a series of transactions, all or any part of its business,
property or assets (including its notes or receivables and Capital Stock of
a
Subsidiary, whether newly issued or outstanding), whether now owned or hereafter
acquired, or acquire by purchase or otherwise all or substantially all the
business, property or fixed assets of, or stock or other evidence of beneficial
ownership of, any Person or any division or line of business of any Person
(other than purchases or other acquisitions of Inventory, materials and
equipment in the ordinary course of Borrower’s, or any of its Subsidiaries’
business) except:
(i) any
Subsidiary of Borrower may be merged with or into Borrower or any wholly-owned
Subsidiary Guarantor, or be liquidated, wound up or dissolved, or all or any
part of its business, property or assets may be conveyed, sold, leased,
transferred or otherwise disposed of, in one transaction or a series of
transactions, to Borrower or any wholly-owned Subsidiary Guarantor; provided
that,
(i) in the case of such a merger, Borrower or such wholly-owned Subsidiary
Guarantor shall be the continuing or surviving Person and (ii) in the
case
of such a liquidation, winding up or dissolution, all of the assets of such
wholly-owned Subsidiary Guarantor are transferred to Borrower or a Subsidiary
Guarantor that is wholly-owned, directly or indirectly, by Borrower or as
otherwise expressly permitted under this Agreement;
(ii) Borrower
and its Subsidiaries may make Consolidated Capital Expenditures permitted under
subsection 7.8;
(iii) Borrower
and its Subsidiaries may sell or otherwise dispose of assets in transactions
that do not constitute Asset Sales; provided
that the
consideration received for such assets shall be in an amount at least equal
to
the fair market value thereof;
(iv) Borrower
and its Subsidiaries may dispose of obsolete, worn out or surplus property
in
the ordinary course of business;
(v) Borrower
and its Subsidiaries may make Asset Sales of assets having a fair market value
not in excess of $2,000,000; provided
that
(a) the consideration received for such assets shall be in an amount
at
least equal to the fair market value thereof; (b) the sole consideration
received shall be cash and/or promissory notes, which notes shall be pledged
to
Administrative Agent pursuant to the applicable Collateral Documents and/or
other replacement assets; and (c) the proceeds of such Asset Sales shall
be
applied as required by subsection 2.4B(iii)(a)
or
subsection 2.4D;
and
(vi) Borrower
may dispose of portions of property in connection with the Expansion Project
in
order to complete the Expansion Project; provided
that
such dispositions do not impair in any material respect the use, operation
or
value of the Expansion Project.
| 7.8 |
Capital
Expenditures.
|
A. Borrower
shall not, and shall not permit its Subsidiaries to, make or incur Maintenance
Capital Expenditures, in any Fiscal Year, in an aggregate amount in excess
of
the greater of (i) $10,000,000 and (ii) 5% of the gross revenues
of
Borrower and its Subsidiaries in such Fiscal Year (the “Maximum
Maintenance CapEx Amount”);
provided,
however, that the Maximum Maintenance CapEx Amount may be increased by an amount
equal to the excess, if any, of the Maximum Maintenance CapEx Amount (as
adjusted in accordance with this proviso) for the previous Fiscal Year over
the
actual amount of the Maintenance Capital Expenditures for such previous Fiscal
Year, up to a maximum increase of $4,000,000 in any Fiscal Year.
B. Borrower
shall not, and shall not permit its Subsidiaries to, make or incur Expansion
Capital Expenditures unrelated to the Expansion Project or the Sewer District
Purchase, in any Fiscal Year, in an aggregate amount in excess of $3,000,000
(the “Maximum
Other Expansion CapEx Amount”);
provided,
however, that the Maximum Other Expansion CapEx Amount may be increased by
an
amount equal to the excess, if any, of the Maximum Other Expansion CapEx Amount
(as adjusted in accordance with this proviso) for the previous Fiscal Year
over
the actual amount of the Expansion Capital Expenditures unrelated to the
Expansion Project for such previous Fiscal Year, up to a maximum increase of
$3,000,000 in any Fiscal Year.
C. Borrower
shall not, and shall not permit its Subsidiaries to, make or incur Expansion
Capital Expenditures in connection with the Expansion Project (excluding the
Sewer District Purchase) in an aggregate amount in excess of (a) $80,000,000
plus (b) the amount of Capital Expenditures permitted to be made or incurred
pursuant to subsection 7.8D (without giving effect to clause (b) of subsection
7.8D), but not so made or incurred; provided, however, Borrower may, and may
permit its Subsidiaries to, make or incur Expansion Capital Expenditures in
excess of the sum of clauses (a) and (b) above to pay for cost overruns incurred
in connection with the Expansion Project to the extent of the net proceeds
received by Borrower in connection with the incurrence of the Subordinated
PIK
Indebtedness.
D. Borrower
shall not, and shall not permit its Subsidiaries to, make or incur Public
Improvement Capital Expenditures in connection with the Expansion Project in
an
aggregate amount in excess of (a) $22,000,000 plus (b) the amount of Capital
Expenditures permitted to be made or incurred pursuant to subsection 7.8C
(without giving effect to clause (b) of subsection 7.8C) but not so made or
incurred, less (c) the aggregate principal amount of Indebtedness incurred
pursuant to subsection 7.1(vii); provided, however, Borrower may, and may permit
its Subsidiaries to, make or incur Public Improvement Capital Expenditures
in
excess of the result of clauses (a), (b) and (c) above to pay for cost overruns
incurred in connection with the Expansion Project to the extent of the net
proceeds received by Borrower in connection with the incurrence of the
Subordinated PIK Indebtedness.
E. Borrower
shall not, and shall not permit its Subsidiaries to, make or incur Expansion
Capital Expenditures in connection with the Sewer District Purchase in an
aggregate amount in excess of $15,000,000; provided that after giving effect
to
the Sewer District Purchase (i) Borrower and Guarantors are in pro forma
compliance with the financial covenants set forth in subsection 7.6 and (ii)
Borrower and Guarantors maintain sufficient liquidity, in the reasonable
judgment of Administrative Agent, to complete the Expansion Project and the
Public Improvements.
| 7.9 |
Sales
and Lease-Backs.
|
Borrower
shall not, and shall not permit any of its Subsidiaries to, directly or
indirectly, become or remain liable as lessee or as a guarantor or other surety
with respect to any lease, whether an Operating Lease or a Capital Lease, of
any
property (whether real, personal or mixed), whether now owned or hereafter
acquired, (i) that Borrower or any of its Subsidiaries has sold or
transferred or is to sell or transfer to any other Person (other than to
Borrower or any of its Subsidiaries) or (ii) that Borrower or any of
its
Subsidiaries intends to use for substantially the same purpose as any other
property that has been or is to be sold or transferred by Borrower or any of
its
Subsidiaries to any Person (other than to Borrower or any of its Subsidiaries)
in connection with such lease.
| 7.10 |
Transactions
with Shareholders and Affiliates.
|
Borrower
shall not, and shall not permit any of its Subsidiaries to, directly or
indirectly, enter into or permit to exist any transaction (including the
purchase, sale, lease or exchange of any property or the rendering of any
service) with any holder of 5% or more of any class of equity Securities of
Borrower or with any Affiliate of Borrower or of any such holder, on terms
that
are less favorable to Borrower or that Subsidiary, as the case may be, than
those that might be obtained at the time from Persons who are not such a holder
or Affiliate; provided
that the
foregoing restriction shall not apply to (i) any transaction between
Borrower and any Subsidiary Guarantors or between any Subsidiary Guarantors,
(ii) reasonable and customary fees paid to members of the Governing
Bodies
of Borrower and its Subsidiaries or (iii) the Subordinated PIK
Indebtedness.
| 7.11 |
Disposal
of Subsidiary Stock.
|
Except
for (x) any pledge or encumbrance of the Capital Stock of any of its
Subsidiaries required under this Agreement and the applicable Collateral
Documents and (y) any sale of 100% of the Capital Stock of any of its
Subsidiaries in compliance with the provisions of subsection 7.7(i), Borrower
shall not directly or indirectly sell, assign, pledge or otherwise encumber
or
dispose of any shares of Capital Stock of any of its Subsidiaries, except to
qualify directors if required by applicable law; or permit any of its
Subsidiaries directly or indirectly to sell, assign, pledge or otherwise
encumber or dispose of any shares of Capital Stock of any of its Subsidiaries
(including such Subsidiary), except to Borrower, another wholly owned Subsidiary
of Borrower that is a Subsidiary Guarantor, or to qualify directors if required
by applicable law.
| 7.12 |
Conduct
of Business.
|
From
and
after the Effective Date, Borrower shall not, and shall not permit any of its
Subsidiaries to, engage in any business other than the Related
Businesses.
| 7.13 |
Fiscal
Year.
|
Borrower
shall not change its Fiscal Year-end from the last Sunday in April without
the
prior written consent of Administrative Agent.
| 7.14 |
Operating
Leases.
|
Borrower
shall not permit any of its Subsidiaries to enter into any Operating Leases
or
become liable in any way under any Operating Lease, other than any Operating
Leases described in Schedule
7.14
annexed
hereto (collectively, the “Excluded
Leases”),
unless after giving effect to the incurrence of liability under such Operating
Leases, the Consolidated Rental Payments in effect during the then-current
Fiscal Year does not exceed $1,000,000.
| 7.15 |
Amendments
or Waivers of Certain Agreements; Amendments of Documents Relating
to
Subordinated PIK Indebtedness; Amendments of Management Agreements;
Amendments of Expansion Agreements.
|
A. Amendments
of Documents Relating to Subordinated PIK Indebtedness.
From
and after the date the Subordinated PIK Indebtedness is incurred, Borrower
shall
not, and shall not permit any of its Subsidiaries to, amend or otherwise change
the terms of any Subordinated PIK Indebtedness, or make any payment consistent
with an amendment thereof or change thereto, if the effect of such amendment
or
change is to increase the interest rate on such Subordinated PIK Indebtedness,
change (to earlier dates) any dates upon which payments of principal or interest
are due thereon, change any event of default or condition to an event of default
with respect thereto (other than to eliminate any such event of default or
increase any grace period related thereto), change the redemption, prepayment
or
defeasance provisions thereof, change the subordination provisions thereof
(or
of any guaranty thereof), or change any collateral therefor (other than to
release such collateral), or if the effect of such amendment or change, together
with all other amendments or changes made, is to increase materially the
obligations of the obligor thereunder or to confer any additional rights on
the
holders of such Subordinated PIK Indebtedness (or a trustee or other
representative on their behalf) which would be adverse to Borrower or
Lenders.
B. Amendments
of Management Agreements.
Borrower
shall not agree to any amendment of any Management Agreement, that causes an
increase of, or advances the date of payment of, the Management Fees payable
under such agreement, without obtaining the prior written consent of
Administrative Agent to such amendment.
C. Amendments
of Expansion Agreements.
Neither
Borrower nor any of its Subsidiaries will amend or otherwise change the terms
of
any Expansion Agreement if such amendment could reasonably be expected to result
in a Material Adverse Effect without prior written consent of Administrative
Agent to such amendment.
Section
8. EVENTS
OF DEFAULT
If
any of
the following conditions or events (“Events
of Default”)
shall
occur:
| 8.1 |
Failure
to Make Payments When Due.
|
Failure
by Borrower to pay any installment of principal of any Loan when due, whether
at
stated maturity, by acceleration, by notice of voluntary prepayment, by
mandatory prepayment or otherwise; failure by Borrower to pay when due any
amount payable to an Issuing Lender in reimbursement of any drawing under a
Letter of Credit; or failure by Borrower to pay any interest on any Loan or
any
fee or any other amount due under this Agreement or any other Loan Document
within five days after the date due; or
| 8.2 |
Default
in Other Agreements.
|
(i) Failure
of Borrower or any of its Subsidiaries to pay when due any principal of or
interest on or any other amount payable in respect of one or more items of
Indebtedness (other than Indebtedness referred to in subsection 8.1) or
Contingent Obligations in an aggregate principal amount of $2,500,000 or more,
in each case beyond the end of any grace period provided therefor; or (ii)
breach or default by Borrower or any of its Subsidiaries with respect to any
other material term of (a) one or more items of Indebtedness or Contingent
Obligations in the individual or aggregate principal amounts referred to in
clause (i) above or (b) any loan agreement, mortgage, indenture or other
agreement relating to such item(s) of Indebtedness or Contingent Obligation(s),
if the effect of such breach or default is to cause, or to permit the holder
or
holders of that Indebtedness or Contingent Obligation(s) (or a trustee on behalf
of such holder or holders) to cause, that Indebtedness or Contingent
Obligation(s) to become or be declared due and payable prior to its stated
maturity or the stated maturity of any underlying obligation, as the case may
be
(upon the giving or receiving of notice, lapse of time, both, or otherwise);
or
| 8.3 |
Breach
of Certain Covenants.
|
Failure
of Borrower to perform or comply with any term or condition contained in
subsections 2.5,
6.2,
or
Section 7 of this Agreement; or
| 8.4 |
Breach
of Warranty.
|
Any
representation, warranty, certification or other statement made by Borrower
or
any of its Subsidiaries in any Loan Document or in any statement or certificate
at any time given by Borrower or any of its Subsidiaries in writing pursuant
hereto or thereto or in connection herewith or therewith shall be false in
any
material respect on the date as of which made; or
| 8.5 |
Other
Defaults Under Loan Documents.
|
Any
Loan
Party shall default in the performance of or compliance with any term contained
in this Agreement or any of the other Loan Documents, other than any such term
referred to in any other subsection of this Section 8, and such default
shall not have been remedied or waived within 30 days after receipt by Borrower
and such Loan Party of notice from Administrative Agent or any Lender of such
default; or
| 8.6 |
Involuntary
Bankruptcy; Appointment of Receiver,
etc.
|
(i) A
court
having jurisdiction in the premises shall enter a decree or order for relief
in
respect of Borrower or any Subsidiary Guarantor in an involuntary case under
the
Bankruptcy Code or under any other applicable bankruptcy, insolvency or similar
law now or hereafter in effect, which decree or order is not stayed; or any
other similar relief shall be granted under any applicable federal or state
law;
or
(ii) an
involuntary case shall be commenced against Borrower or any Subsidiary Guarantor
under the Bankruptcy Code or under any other applicable bankruptcy, insolvency
or similar law now or hereafter in effect; or a decree or order of a court
having jurisdiction in the premises for the appointment of a receiver,
liquidator, sequestrator, trustee, custodian or other officer having similar
powers over Borrower or any Subsidiary Guarantor, or over all or a substantial
part of its property, shall have been entered; or there shall have occurred
the
involuntary appointment of an interim receiver, trustee or other custodian
of
Borrower or any Subsidiary Guarantor for all or a substantial part of its
property; or a warrant of attachment, execution or similar process shall have
been issued against any substantial part of the property of Borrower or any
Subsidiary Guarantor, and any such event described in this clause (ii) shall
continue for 60 days unless dismissed, bonded or discharged; or
| 8.7 |
Voluntary
Bankruptcy; Appointment of Receiver,
etc.
|
(i) Borrower
or any Subsidiary Guarantor shall have an order for relief entered with respect
to it or commence a voluntary case under the Bankruptcy Code or under any other
applicable bankruptcy, insolvency or similar law now or hereafter in effect,
or
shall consent to the entry of an order for relief in an involuntary case, or
to
the conversion of an involuntary case to a voluntary case, under any such law,
or shall consent to the appointment of or taking possession by a receiver,
trustee or other custodian for all or a substantial part of its property; or
Borrower or any Subsidiary Guarantor shall make any assignment for the benefit
of creditors; or
(ii) Borrower
or any Subsidiary Guarantor shall be unable, or shall fail generally, or shall
admit in writing its inability, to pay its debts as such debts become due;
or
the Governing Body of Borrower or any Subsidiary Guarantor (or any committee
thereof) shall adopt any resolution or otherwise authorize any action to approve
any of the actions referred to in clause (i) above or this clause (ii);
or
| 8.8 |
Judgments
and Attachments.
|
Any
money
judgment, writ or warrant of attachment or similar process involving (i) in
any individual case an amount in excess of $2,000,000 or (ii) in the
aggregate at any time an amount in excess of $4,000,000 (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 Borrower
or
its Subsidiaries or any of their respective assets and shall remain
undischarged, unvacated, unbonded or unstayed for a period of 60 days (or in
any
event later than five days prior to the date of any proposed sale thereunder);
or
| 8.9 |
Dissolution.
|
Any
order, judgment or decree shall be entered against Borrower or any Subsidiary
Guarantor decreeing the dissolution or split up of Borrower or that Subsidiary
Guarantor and such order shall remain undischarged or unstayed for a period
in
excess of 30 days; or
| 8.10 |
Employee
Benefit Plans.
|
There
shall occur one or more ERISA Events which individually or in the aggregate
results in or might reasonably be expected to result in liability of Borrower,
any of its Subsidiaries or any of their respective ERISA Affiliates in excess
of
$1,000,000 during the term of this Agreement; or there shall exist an amount
of
unfunded benefit liabilities (as defined in Section 4001(a)(18) of ERISA),
individually or in the aggregate for all Pension Plans (excluding for purposes
of such computation any Pension Plans with respect to which assets exceed
benefit liabilities), which exceeds $1,000,000; or
| 8.11 |
Change
in Control.
|
A
Change
in Control shall have occurred; or
| 8.12 |
Invalidity
of Subsidiary Guaranty; Failure of Security; Repudiation of
Obligations.
|
At
any
time after the execution and delivery thereof, (i) any Subsidiary Guaranty
for any reason, other than the satisfaction in full of all Obligations, shall
cease to be in full force and effect (other than in accordance with its terms
or
as otherwise permitted under this Agreement) or shall be declared to be null
and
void, (ii) any Collateral Document shall cease to be in full force and
effect (other than by reason of a release of Collateral thereunder in accordance
with the terms hereof or thereof, the satisfaction in full of the Obligations
or
any other termination of such Collateral Document in accordance with the terms
hereof or thereof) or shall be declared null and void, or Administrative Agent
shall not have or shall cease to have a valid First Priority Lien on any
material Collateral purported to be covered thereby in each case for any reason
other than the failure of Administrative Agent or any Lender to take any action,
or (iii) any Loan Party shall contest the validity or enforceability
of any
Loan Document in writing or deny in writing that it has any further liability,
including with respect to future advances by Lenders, under any Loan Document
to
which it is a party; or
| 8.13 |
Loss
of Gaming Licenses.
|
The
occurrence of a License Revocation by any Gaming Authority in a jurisdiction
in
which Borrower or any of its Subsidiaries owns or operates a Gaming Facility;
provided
that
such License Revocation continues for at least fifteen (15) consecutive days;
or
| 8.14 |
Consent
to Substitute Member.
|
At
any
time (i) Casino America of Colorado, Inc. shall consent to any transferee of
Capital Stock of Borrower becoming a “substitute member” (as defined in that
certain Second Amended and Restated Operating Agreement of Borrower as in effect
on the Effective Date (the “Operating
Agreement”))
without the prior written consent of the Requisite Lenders, or (ii) any
transferee, other than Casino America of Colorado, Inc. or Black Hawk Gold,
Ltd., has rights as a member other than those set forth in Section 13.6 of
the
Operating Agreement,
THEN
(i)
upon the occurrence of any Event of Default described in subsection 8.6 or
8.7,
each of (a) the unpaid principal amount of and accrued interest on the Loans,
(b) an amount equal to the maximum amount that may at any time be drawn under
all Letters of Credit then outstanding (whether or not any beneficiary under
any
such Letter of Credit shall have presented, or shall be entitled at such time
to
present, the drafts or other documents or certificates required to draw under
such Letter of Credit) and (c) all other Obligations shall automatically become
immediately due and payable, without presentment, demand, protest or other
requirements of any kind, all of which are hereby expressly waived by Borrower,
and the obligation of each Lender to make any Loan, the obligation of
Administrative Agent to issue any Letter of Credit and the right of any Lender
to issue any Letter of Credit hereunder shall thereupon terminate, and (ii)
upon
the occurrence and during the continuation of any other Event of Default,
Administrative Agent shall, upon the written request or with the written consent
of Requisite Lenders, by written notice to Borrower, declare all or any portion
of the amounts described in clauses (a) through (c) above to be, and the same
shall forthwith become, immediately due and payable, and the obligation of
each
Lender to make any Loan, the obligation of Administrative Agent to issue any
Letter of Credit and the right of any Revolving Lender to issue any Letter
of
Credit hereunder shall thereupon terminate; provided that the foregoing shall
not affect in any way the obligations of Revolving Lenders under subsection
3.3C(i).
Any
amounts described in clause (b) above, when received by Administrative Agent,
shall be held by Administrative Agent pursuant to the terms of the Security
Agreement and shall be applied as therein provided.
Notwithstanding
anything contained in the second preceding paragraph, if at any time within
60
days after an acceleration of the Loans pursuant to clause (ii) of such
paragraph Borrower shall pay all arrears of interest and all payments on account
of principal which shall have become due otherwise than as a result of such
acceleration (with interest on principal and, to the extent permitted by law,
on
overdue interest, at the rates specified in this Agreement) and all Events
of
Default and Potential Events of Default (other than non-payment of the principal
of and accrued interest on the Loans, in each case which is due and payable
solely by virtue of acceleration) shall be remedied or waived pursuant to
subsection 10.6, then Requisite Lenders, by written notice to Borrower, may
at
their option rescind and annul such acceleration and its consequences; but
such
action shall not affect any subsequent Event of Default or Potential Event
of
Default or impair any right consequent thereon. The provisions of this paragraph
are intended merely to bind Lenders to a decision which may be made at the
election of Requisite Lenders and are not intended, directly or indirectly,
to
benefit Borrower, and such provisions shall not at any time be construed so
as
to grant Borrower the right to require Lenders to rescind or annul any
acceleration hereunder or to preclude Administrative Agent or Lenders from
exercising any of the rights or remedies available to them under any of the
Loan
Documents, even if the conditions set forth in this paragraph are met. Lenders
hereby acknowledge that any foreclosure under this Agreement or any other Loan
Document of any Gaming Facility, any Persons owning, leasing, operating or
using
such Gaming Facility or any gaming equipment or alcoholic beverages may be
subject to any prior approvals or exemptions required under any applicable
Gaming Laws or liquor laws.
Section
9. ADMINISTRATIVE
AGENT
| 9.1 |
Appointment.
|
A. Appointment
of Administrative Agent. CIBC
is
hereby appointed Administrative Agent hereunder and under the other Loan
Documents and each Lender hereby authorizes Administrative Agent to act as
its
administrative agent in accordance with the terms of this Agreement and the
other Loan Documents. Administrative Agent agrees to act upon the express
conditions contained in this Agreement and the other Loan Documents, as
applicable. The provisions of this Section
9
are
solely for the benefit of Administrative Agent and Lenders and no Loan Party
shall have rights as a third party beneficiary of any of the provisions thereof.
In performing its functions and duties under this Agreement, Administrative
Agent shall act solely as an administrative agent of Lenders and does not assume
and shall not be deemed to have assumed any obligation towards or relationship
of agency or trust with or for Borrower or any of its Subsidiaries.
B. Appointment
of Supplemental Collateral Agents. It
is the
purpose of this Agreement and the other Loan Documents that there shall be
no
violation of any law of any jurisdiction denying or restricting the right of
banking corporations or associations to transact business as agent or trustee
in
such jurisdiction. It is recognized that in case of litigation under this
Agreement or any of the other Loan Documents, and in particular in case of
the
enforcement of any of the Loan Documents, or in case Administrative Agent deems
that by reason of any present or future law of any jurisdiction it may not
exercise any of the rights, powers or remedies granted herein or in any of
the
other Loan Documents or take any other action which may be desirable or
necessary in connection therewith, it may be necessary that Administrative
Agent
appoint (with notice to Borrower) an additional individual or institution as
a
separate trustee, co-trustee, collateral agent or collateral co-agent (any
such
additional individual or institution being referred to herein individually
as a
“Supplemental
Collateral Agent”
and
collectively as “Supplemental
Collateral Agents”).
If
Administrative Agent appoints a Supplemental Collateral Agent with respect
to
any Collateral, (i) each and every right, power, privilege or duty
expressed or intended by this Agreement or any of the other Loan Documents
to be
exercised by or vested in or conveyed to Administrative Agent with respect
to
such Collateral shall be exercisable by and vest in such Supplemental Collateral
Agent to the extent, and only to the extent, necessary to enable such
Supplemental Collateral Agent to exercise such rights, powers and privileges
with respect to such Collateral and to perform such duties with respect to
such
Collateral, and every covenant and obligation contained in the Loan Documents
and necessary to the exercise or performance thereof by such Supplemental
Collateral Agent shall run to and be enforceable by either Administrative Agent
or such Supplemental Collateral Agent, and (ii) the provisions of this
Section
9
and of
subsections 10.2
and
10.3
that
refer to Administrative Agent shall inure to the benefit of such Supplemental
Collateral Agent and all references therein to Administrative Agent shall be
deemed to be references to Administrative Agent and/or such Supplemental
Collateral Agent, as the context may require.
Should
any instrument in writing from Borrower or any other Loan Party be required
by
any Supplemental Collateral Agent so appointed by Administrative Agent for
more
fully and certainly vesting in and confirming to him or it such rights, powers,
privileges and duties, Borrower shall, or shall cause such Loan Party to,
execute, acknowledge and deliver any and all such instruments promptly upon
request by Administrative Agent. In case any Supplemental Collateral Agent,
or a
successor thereto, shall die, become incapable of acting, resign or be removed,
all the rights, powers, privileges and duties of such Supplemental Collateral
Agent, to the extent permitted by law, shall vest in and be exercised by
Administrative Agent until the appointment of a new Supplemental Collateral
Agent.
| 9.2 |
Powers
and Duties; General Immunity.
|
X. Xxxxxx;
Duties Specified.
Each
Lender irrevocably authorizes Administrative Agent to take such action on such
Lender’s behalf and to exercise such powers, rights and remedies hereunder and
under the other Loan Documents as are specifically delegated or granted to
Administrative Agent by the terms hereof and thereof, together with such powers,
rights and remedies as are reasonably incidental thereto. Administrative Agent
shall have only those duties and responsibilities that are expressly specified
in this Agreement and the other Loan Documents. Administrative Agent may
exercise such powers, rights and remedies and perform such duties by or through
its agents or employees. Administrative Agent shall not have, by reason of
this
Agreement or any of the other Loan Documents, a fiduciary relationship in
respect of any Lender; and nothing in this Agreement or any of the other Loan
Documents, expressed or implied, is intended to or shall be so construed as
to
impose upon Administrative Agent any obligations in respect of this Agreement
or
any of the other Loan Documents except as expressly set forth herein or
therein.
B. No
Responsibility for Certain Matters.
Administrative Agent shall not be responsible to any Lender for the execution,
effectiveness, genuineness, validity, enforceability, collectibility or
sufficiency of this Agreement or any other Loan Document or for any
representations, warranties, recitals or statements made herein or therein
or
made in any written or oral statements or in any financial or other statements,
instruments, reports or certificates or any other documents furnished or made
by
Administrative Agent to Lenders or by or on behalf of Borrower to Administrative
Agent or any Lender in connection with the Loan Documents and the transactions
contemplated thereby or for the financial condition or business affairs of
Borrower or any other Person liable for the payment of any Obligations, nor
shall Administrative Agent be required to ascertain or inquire as to the
performance or observance of any of the terms, conditions, provisions, covenants
or agreements contained in any of the Loan Documents or as to the use of the
proceeds of the Loans or the use of the Letters of Credit or as to the existence
or possible existence of any Event of Default or Potential Event of Default.
Anything contained in this Agreement to the contrary notwithstanding,
Administrative Agent shall not have any liability arising from confirmations
of
the amount of outstanding Loans or the Letter of Credit Usage or the component
amounts thereof unless any such liability results from the gross negligence
or
willful misconduct of Administrative Agent.
C. Exculpatory
Provisions.
Neither
Administrative Agent nor any of its officers, directors, employees or agents
shall be liable to Lenders for any action taken or omitted by Administrative
Agent under or in connection with any of the Loan Documents except to the extent
caused by Administrative Agent’s gross negligence or willful misconduct.
Administrative Agent shall be entitled to refrain from any act or the taking
of
any action (including the failure to take an action) in connection with this
Agreement or any of the other Loan Documents or from the exercise of any power,
discretion or authority vested in it hereunder or thereunder unless and until
Administrative Agent shall have received instructions in respect thereof from
Requisite Lenders (or such other Lenders as may be required to give such
instructions under subsection 10.6)
and,
upon receipt of such instructions from Requisite Lenders (or such other Lenders,
as the case may be), Administrative Agent shall be entitled to act or (where
so
instructed) refrain from acting, or to exercise such power, discretion or
authority, in accordance with such instructions. Without prejudice to the
generality of the foregoing, (i) Administrative Agent shall be entitled
to
rely, and shall be fully protected in relying, upon any communication,
instrument or document believed by it to be genuine and correct and to have
been
signed or sent by the proper Person or Persons, and shall be entitled to rely
and shall be protected in relying on opinions and judgments of attorneys (who
may be attorneys for Borrower and its Subsidiaries), accountants, experts and
other professional advisors selected by it; and (ii) no Lender shall
have
any right of action whatsoever against Administrative Agent as a result of
Administrative Agent acting or (where so instructed) refraining from acting
under this Agreement or any of the other Loan Documents in accordance with
the
instructions of Requisite Lenders (or such other Lenders as may be required
to
give such instructions under subsection 10.6).
D. Administrative
Agent Entitled to Act as Lender.
The
agency hereby created shall in no way impair or affect any of the rights and
powers of, or impose any duties or obligations upon, Administrative Agent in
its
individual capacity as a Lender hereunder. With respect to its participation
in
the Loans and the Letters of Credit, Administrative Agent shall have the same
rights and powers hereunder as any other Lender and may exercise the same as
though it were not performing the duties and functions delegated to it
hereunder, and the term “Lender” or “Lenders” or any similar term shall, unless
the context clearly otherwise indicates, include Administrative Agent in its
individual capacity. Administrative Agent and its Affiliates may accept deposits
from, lend money to, acquire equity interests in and generally engage in any
kind of commercial banking, investment banking, trust, financial advisory or
other business with Borrower or any of its Affiliates as if it were not
performing the duties specified herein, and may accept fees and other
consideration from Borrower for services in connection with this Agreement
and
otherwise without having to account for the same to Lenders.
| 9.3 |
Representations
and Warranties; No Responsibility For Appraisal of
Creditworthiness.
|
Each
Lender represents and warrants that it has made its own independent
investigation of the financial condition and affairs of Borrower and its
Subsidiaries in connection with the making of the Loans and the issuance of
Letters of Credit hereunder and that it has made and shall continue to make
its
own appraisal of the creditworthiness of Borrower and its Subsidiaries.
Administrative Agent shall not have any duty or responsibility, either initially
or on a continuing basis, to make any such investigation or any such appraisal
on behalf of Lenders or to provide any Lender with any credit or other
information with respect thereto, whether coming into its possession before
the
making of the Loans or at any time or times thereafter, and Administrative
Agent
shall not have any responsibility with respect to the accuracy of or the
completeness of any information provided to Lenders.
| 9.4 |
Right
to Indemnity.
|
Each
Lender, in proportion to its Pro Rata Share, severally agrees to indemnify
Administrative Agent, Lead Arranger and their officers, directors, employees,
agents, attorneys, professional advisors and affiliates of each of them to
the
extent that any such Person has not been reimbursed by Borrower, for and against
any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses (including counsel fees and disbursements
and
fees and disbursements of any financial advisor engaged by Administrative Agent)
or disbursements of any kind or nature whatsoever which may be imposed on,
incurred by or asserted against Administrative Agent or such other Persons
in
exercising its powers, rights and remedies or performing its duties of an
Administrative Agent or Lead Arranger hereunder or under the other Loan
Documents or otherwise in its capacity as Administrative Agent or Lead Arranger
in any way relating to or arising out of this Agreement or the other Loan
Documents; provided
that no
Lender shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from Administrative Agent’s or Lead Arranger’s gross negligence or
willful misconduct as determined by a final judgment of a court of competent
jurisdiction. If any indemnity furnished to Administrative Agent or any other
such Person for any purpose shall, in the opinion of Administrative Agent,
be
insufficient or become impaired, Administrative Agent and/or Lead Arranger
may
call for additional indemnity and cease, or not commence, to do the acts
indemnified against until such additional indemnity is furnished.
| 9.5 |
Successor
Administrative Agent.
|
Administrative
Agent may resign at any time by giving 30 days’ prior written notice thereof to
Lenders and Borrower, and Administrative Agent may be removed at any time with
or without cause by an instrument or concurrent instruments in writing delivered
to Borrower and Administrative Agent and signed by Requisite Lenders. Upon
any
such notice of resignation or any such removal, Requisite Lenders shall have
the
right, upon five Business Days’ notice to Borrower, to appoint a successor
Administrative Agent. Upon the acceptance of any appointment as Administrative
Agent hereunder by a successor Administrative Agent, that successor
Administrative Agent shall thereupon succeed to and become vested with all
the
rights, powers, privileges and duties of the retiring or removed Administrative
Agent and the retiring or removed Administrative Agent shall be discharged
from
its duties and obligations under this Agreement. After any retiring or removed
Administrative Agent’s resignation or removal hereunder as Administrative Agent,
the provisions of this Section
9
shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was Administrative Agent under this Agreement.
| 9.6 |
Collateral
Documents and Subsidiary Guaranty.
|
Each
Lender hereby further authorizes Administrative Agent, on behalf of and for
the
benefit of Lenders, to enter into each Collateral Document as secured party
and
to be Administrative Agent for and representative of Lenders under the
Subsidiary Guaranty, and each Lender agrees to be bound by the terms of each
Collateral Document and the Subsidiary Guaranty; provided
that
Administrative Agent shall not (i) enter into or consent to any material
amendment, modification, termination or waiver of any provision contained in
any
Collateral Document or the Subsidiary Guaranty or (ii) release any
Collateral or Subsidiary Guarantor (except as otherwise expressly permitted
or
required pursuant to the terms of this Agreement or the applicable Collateral
Document), in each case without the prior consent of Requisite Lenders (or,
if
required pursuant to subsection 10.6,
all
Lenders); provided further,
however, that, without further written consent or authorization from Lenders,
Administrative Agent may execute any documents or instruments necessary to
(a) release any Lien encumbering any item of Collateral that is the
subject
of a sale or other disposition of assets permitted by this Agreement or to
which
Requisite Lenders have otherwise consented, or (b) release any Subsidiary
Guarantor from the Subsidiary Guaranty if all of the Capital Stock of such
Subsidiary Guarantor is sold to any Person (other than an Affiliate of Borrower)
pursuant to a sale or other disposition permitted hereunder or to which
Requisite Lenders have otherwise consented or (c) subordinate the Liens
of
Administrative Agent, on behalf of Lenders, to any Liens permitted by subsection
7.2. Anything contained in any of the Loan Documents to the contrary
notwithstanding, Borrower, Administrative Agent and each Lender hereby agree
that (X) no Lender shall have any right individually to realize upon any of
the
Collateral under any Collateral Document or to enforce the Subsidiary Guaranty,
it being understood and agreed that all powers, rights and remedies under the
Collateral Documents and the Subsidiary Guaranty may be exercised solely by
Administrative Agent for the benefit of Lenders in accordance with the terms
thereof, and (Y) in the event of a foreclosure by Administrative Agent on any
of
the Collateral pursuant to a public or private sale, Administrative Agent or
any
Lender may be the purchaser of any or all of such Collateral at any such sale
and Administrative Agent, as administrative agent for and representative of
Lenders (but not any Lender or Lenders in its or their respective individual
capacities unless Requisite Lenders shall otherwise agree in writing) shall
be
entitled, for the purpose of bidding and making settlement or payment of the
purchase price for all or any portion of the Collateral sold at any such public
sale, to use and apply any of the Obligations as a credit on account of the
purchase price for any Collateral payable by Administrative Agent at such
sale.
| 9.7 |
Administrative
Agent May File Proofs of Claim.
|
In
case
of the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to Borrower or any of its Subsidiaries, Administrative
Agent
(irrespective of whether the principal of any Loan shall then be due and payable
as herein expressed or by declaration or otherwise and irrespective of whether
Administrative Agent shall have made any demand on Borrower) shall be entitled
and empowered, by intervention in such proceeding or otherwise
(i) to
file
and prove a claim for the whole amount of principal and interest owing and
unpaid in respect of the Loans and any other Obligations that are owing and
unpaid and to file such other papers or documents as may be necessary or
advisable in order to have the claims of Lenders, Administrative Agent and
Lead
Arranger (including any claim for the reasonable compensation, expenses,
disbursements and advances of Lenders, Administrative Agent and Lead Arranger
and their agents and counsel and all other amounts due Lenders, Administrative
Agent and Lead Arranger under subsections 2.3
and
10.2)
allowed
in such judicial proceeding; and
(ii) to
collect and receive any moneys or other property payable or deliverable on
any
such claims and to distribute the same;
and
any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by each
Lender to make such payments to Administrative Agent and, if Administrative
Agent shall consent to the making of such payments directly to Lenders, to
pay
to Administrative Agent any amount due for the reasonable compensation,
expenses, disbursements and advances of Administrative Agent and Lead Arranger
and their agents and counsel, and any other amounts due Administrative Agent
and
Lead Arranger under subsections 2.3
and
10.2.
Nothing
herein contained shall be deemed to authorize Administrative Agent to authorize
or consent to or accept or adopt on behalf of any Lender any plan of
reorganization, arrangement, adjustment or composition affecting the Obligations
or the rights of any Lenders or to authorize Administrative Agent to vote in
respect of the claim of any Lender in any such proceeding.
Section
10. MISCELLANEOUS
| 10.1 |
Assignments
and Participations in Loans and Letters of Credit.
|
A. General. Subject
to subsections 10.1B
and
10.1C,
each
Lender shall have the right at any time to (i) sell, assign or transfer
to
any Eligible Assignee, or (ii) sell participations to any Person in,
all or
any part of its Commitments or any Loan or Loans made by it or its Letters
of
Credit (or participations in Letters of Credit) or any other interest herein
or
in any other Obligations owed to it; provided
that no
such sale, assignment, transfer or participation shall, without the consent
of
Borrower, require Borrower to file a registration statement with the Securities
and Exchange Commission or apply to qualify such sale, assignment, transfer
or
participation under the securities laws of any state; provided,
further,
that no
such sale, assignment, or transfer described in clause (i) above shall be
effective unless and until an Assignment Agreement effecting such sale,
assignment or transfer shall have been accepted by Administrative Agent and
recorded in the Register as provided in subsection 10.1B(ii);
and
provided,
further,
that no
such sale, assignment, or transfer of any Letter of Credit or any participation
therein may be made separately from a sale, assignment, transfer or
participation of a corresponding interest in the Revolving Loan Commitment
and
the Revolving Loans of the Lender effecting such sale, assignment, transfer
or
participation. Except as otherwise provided in this subsection 10.1,
no
Lender shall, as between Borrower and such Lender, be relieved of any of its
obligations hereunder as a result of any sale, assignment or transfer of, or
any
granting of participations in, all or any part of its Commitments or Loans,
or
Letters of Credit or participations therein, or the other Obligations owed
to
such Lender, and such Lender shall remain solely responsible for the performance
of such Obligations, and Borrower shall continue to deal solely and directly
with such Lender in connection with such Lender’s rights and obligations under
this Agreement.
B. Assignments.
(i) Amounts
and Terms of Assignments.
Each
Commitment, Loan, Letter of Credit or participation therein, or other Obligation
may (a) be assigned in any amount to another Lender, or to an Affiliate
or
Approved Fund of the assigning Lender or another Lender, with the giving of
notice to Borrower and Administrative Agent or (b) be assigned in an
aggregate amount of not less than $1,000,000 (or such lesser amount as shall
constitute the aggregate amount of the Commitments, Loans, Letters of Credit
and
participations therein, and other Obligations of the assigning Lender) to any
other Eligible Assignee (treating any two or more Approved Funds with the same
investment advisor as a single Eligible Assignee) with the consent of Borrower
(unless a Potential Event of Default or an Event of Default has occurred and
is
continuing) and Administrative Agent (such consent of Borrower and
Administrative Agent shall not be unreasonably withheld or delayed);
provided
that
each partial assignment shall be made as an assignment of a proportionate part
of all the assigning Lender’s rights and obligations under this Agreement. To
the extent of any such assignment in accordance with either clause (a) or (b)
above, the assigning Lender shall be relieved of its obligations with respect
to
its Commitments, Loans, Letters of Credit and participations therein, or other
Obligations or the portion thereof so assigned. The parties to each such
assignment shall execute and deliver to Administrative Agent, for its acceptance
and recording in the Register, an Assignment Agreement, together with a
processing and recordation fee of $3,500 (provided that (i) no such processing
and recordation fee shall be payable if the assignee is an Affiliate of the
assignor or a Person under common management with the assignor, and (ii) only
one such fee shall be required in connection with a simultaneous assignment
to a
group of Approved Funds with the same investment advisor) and such forms
(including an administrative questionnaire if the Eligible Assignee is not
a
Lender), certificates or other evidence, if any, with respect to United States
federal income tax withholding matters as the assignee under such Assignment
Agreement may be required to deliver to Administrative Agent pursuant to
subsection 2.7B(iii)(a).
Upon such execution, delivery, acceptance and recordation, from and after the
effective date specified in such Assignment Agreement, (y) the assignee
thereunder shall be a party hereto and, to the extent that rights and
obligations hereunder have been assigned to it pursuant to such Assignment
Agreement, shall have the rights and obligations of a Lender hereunder, and
(z) the assigning Lender thereunder shall, to the extent that rights
and
obligations hereunder have been assigned by it pursuant to such Assignment
Agreement, relinquish its rights (other than any rights that survive the
termination of this Agreement under subsection 10.9B)
and be
released from its obligations under this Agreement (and, in the case of an
Assignment Agreement covering all or the remaining portion of an assigning
Lender’s rights and obligations under this Agreement, such Lender shall cease to
be a party hereto; provided
that,
anything contained in any of the Loan Documents to the contrary notwithstanding,
if such Lender is the Issuing Lender with respect to any outstanding Letters
of
Credit such Lender shall continue to have all rights and obligations of an
Issuing Lender with respect to such Letters of Credit until the cancellation
or
expiration of such Letters of Credit and the reimbursement of any amounts drawn
thereunder). The Commitments hereunder shall be modified to reflect the
Commitment of such assignee and any remaining Commitment of such assigning
Lender and, if any such assignment occurs after the issuance of any Notes
hereunder, the assigning Lender shall, upon the effectiveness of such assignment
or as promptly thereafter as practicable, surrender its applicable Notes, if
any, to Administrative Agent for cancellation, and thereupon new Notes shall,
if
so requested by the assignee and/or the assigning Lender in accordance with
subsection 2.1D,
be
issued to the assignee and/or to the assigning Lender, substantially in the
form
of Exhibit
IV,
Exhibit
V
or
Exhibit
VI
annexed
hereto, as the case may be, with appropriate insertions, to reflect the new
Commitments and/or outstanding Revolving Loans and/or outstanding Term Loans,
as
the case may be, of the assignee and/or the assigning Lender. Any assignment
or
transfer by a Lender of rights or obligations under this Agreement that does
not
comply with this subsection 10.1B
shall be
treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with subsection
10.1C.
(ii) Acceptance
by Administrative Agent; Recordation in Register.
Upon
its receipt of an Assignment Agreement executed by an assigning Lender and
an
assignee representing that it is an Eligible Assignee, together with the
processing and recordation fee (if so required) referred to in subsection
10.1B(i)
and any
forms, certificates or other evidence with respect to United States federal
income tax withholding matters that such assignee may be required to deliver
to
Administrative Agent pursuant to subsection 2.8B(iii)(a),
Administrative Agent shall, if Administrative Agent (and if necessary, Borrower)
has consented to the assignment evidenced thereby (in each case to the extent
such consent is required pursuant to subsection 10.1B(i)),
(a) accept such Assignment Agreement by executing a counterpart thereof
as
provided therein (which acceptance shall evidence any required consent of
Administrative Agent to such assignment), (b) record the information
contained therein in the Register, and (c) give prompt notice thereof
to
Borrower. Administrative Agent shall maintain a copy of each Assignment
Agreement delivered to and accepted by it as provided in this subsection
10.1B(ii).
C. Participations. Any
Lender may, without the consent of, or notice to, Borrower or Administrative
Agent, sell participations to one or more banks or other entities (a
“Participant”)
in all
or a portion of such Lender’s rights and/or obligations under this Agreement
(including all or a portion of its Commitment and/or the Loans owing to it);
provided
that
(i) such Lender’s obligations under this Agreement shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations, and (iii) Borrower,
Administrative Agent and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender’s rights and
obligations under this Agreement. Any agreement or instrument pursuant to which
a Lender sells such a participation shall provide that such Lender shall retain
the sole right to enforce the Loan Documents and to approve any amendment,
modification or waiver of any provision of the Loan Documents; provided
that
such agreement or instrument may provide that such Lender will not, without
the
consent of such Participant, agree to any amendment, modification or waiver
that
affects such Participant if such amendment, modification or waiver requires
the
unanimous written consent of all Lenders pursuant to subsection 10.6.
Subject
to subsection 10.1E,
Borrower agrees that each Participant shall be entitled to the benefits of
subsections 2.7D,
2.8,
and 3.6
to the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to this subsection 10.1C;
provided,
however, that in no event shall Borrower be obligated to make any payment with
respect to such subsections which is greater than the amount that Borrower
would
have paid to the Lender had no such participation been sold. To the extent
permitted by law, each Participant also shall be entitled to the benefits of
subsection 10.4
as
though it were a Lender, provided such Participant agrees to be subject to
subsection 10.5
as
though it were a Lender. If any amounts outstanding under this Agreement are
due
and unpaid, or shall have been declared or shall have become due and payable
upon the occurrence of an Event of Default, each participant shall be deemed
to
have the right of set-off in respect of its participating interest in amounts
owing under this Agreement to the same extent as if the amount of its
participating interest were owing directly to it as a Lender under this
Agreement.
D. No
Greater Payments to Participants.
A
Participant shall not be entitled to receive any greater payment under
subsections 2.6D,
2.7,
and 3.6
than the applicable Lender would have been entitled to receive with respect
to
the participation sold to such Participant, unless the sale of the participation
to such Participant is made with Borrower’s prior written consent. A Participant
that would be a Non-US Lender if it were a Lender shall not be entitled to
the
benefits of subsection 2.7 unless
Borrower is notified of the participation sold to such Participant and such
Participant agrees, for the benefit of Borrower, to comply with subsection
2.8B(iii)
as
though it were a Lender.
E. Assignments
to Secured Parties and Trustees.
In
addition to the assignments and participations permitted under the foregoing
provisions of this subsection 10.1, (a)
any
Lender may assign and pledge all or any portion of its Loans, the other
Obligations owed to such Lender and its Notes to any creditor, including any
Federal Reserve Bank, as collateral security pursuant to Regulation A of the
Board of Governors of the Federal Reserve System and any operating circular
issued by such Federal Reserve Bank; provided
that
(i) no Lender shall, as between Borrower and such Lender, be relieved
of
any of its obligations hereunder as a result of any such assignment and pledge
and (ii) in no event shall such creditor be considered to be a “Lender” or
be entitled to require the assigning Lender to take or omit to take any action
hereunder, (b) any Lender that is a Fund may pledge its Loans and/or Notes
to
its trustee for the benefit of its investors, provided that any foreclosure
or
similar action by such trustee or other representative shall be subject to
the
provisions of subsection 10.1B
concerning assignments (including any required consents); provided further
that no
Lender shall, as between Borrower and such Lender, be relieved of any of its
obligations hereunder as a result of any such pledge.
F. Information. Each
Lender may furnish any information concerning Borrower and its Subsidiaries
in
the possession of that Lender from time to time to assignees and participants
(including prospective assignees and participants), subject to subsection
10.19.
G. Representations
of Lenders. Each
Lender listed on the signature pages hereof hereby represents and warrants
(i) that it is and at all times shall be an Eligible Assignee described
in
clause (A) of the definition thereof; (ii) that it has experience and
expertise in the making of loans such as the Loans; and (iii) that it
will
make its Loans for its own account in the ordinary course of its business and
without a present view to distribution of such Loans within the meaning of
the
Securities Act or the Exchange Act or other federal securities laws (it being
understood that, subject to the provisions of this subsection 10.1,
the
disposition of such Loans or any interests therein shall at all times remain
within its exclusive control). Each Lender that becomes a party hereto pursuant
to an Assignment Agreement shall be deemed to agree that the representations
and
warranties of such Lender contained in such Assignment Agreement are
incorporated herein by this reference.
| 10.2 |
Expenses.
|
Whether
or not the transactions contemplated hereby shall be consummated, Borrower
agrees to pay promptly (i) all the actual and reasonable costs and expenses
of the Administrative Agent in connection with preparation of the Loan Documents
and any consents, amendments, waivers or other modifications thereto;
(ii) all the costs of furnishing all opinions by counsel for Borrower
(including any opinions requested by Lenders as to any legal matters arising
hereunder) and of Borrower’s performance of and compliance with all agreements
and conditions on its part to be performed or complied with under this Agreement
and the other Loan Documents including with respect to confirming compliance
with environmental, insurance and solvency requirements; (iii) the
reasonable fees, expenses and disbursements of counsel to Administrative Agent
(including allocated costs of internal counsel) in connection with the
negotiation, preparation, execution and administration of the Loan Documents
and
any consents, amendments, waivers or other modifications thereto and any other
documents or matters requested by Borrower; (iv) all the actual costs
and
reasonable expenses of creating and perfecting Liens in favor of Administrative
Agent on behalf of Lenders pursuant to any Collateral Document, including filing
and recording fees, expenses and taxes, stamp or documentary taxes, search
fees,
title insurance premiums, and reasonable fees, expenses and disbursements of
counsel to Administrative Agent and of counsel providing any opinions that
Administrative Agent or Requisite Lenders may request in respect of the
Collateral Documents or the Liens created pursuant thereto; (v) all
the
actual costs and reasonable expenses (including the reasonable fees, expenses
and disbursements of any auditors, accountants or appraisers and any
environmental or other consultants, advisors and agents employed or retained
by
Administrative Agent or its counsel) of obtaining and reviewing any appraisals
provided for under subsection 4.1H and any environmental audits or reports
provided for under subsections 4.1I and 6.7; (vi) all the actual costs and
expenses incurred by Administrative Agent in connection with the custody or
preservation of any of the Collateral; (vii) all other actual and
reasonable costs and expenses incurred by Administrative Agent in connection
with the syndication of the Commitments and the negotiation, preparation and
execution of the Loan Documents and any consents, amendments, waivers or other
modifications thereto and the transactions contemplated thereby; and
(viii) after the occurrence and during the continuation of an Event
of
Default and an acceleration of the Obligations, all costs and expenses,
including reasonable attorneys’ fees (including allocated costs of internal
counsel) and costs of settlement, incurred by Administrative Agent and Lenders
in enforcing any Obligations of or in collecting any payments due from any
Loan
Party hereunder or under the other Loan Documents by reason of such acceleration
(including in connection with the sale of, collection from, or other realization
upon any of the Collateral or the enforcement of the Subsidiary Guaranty) or
in
connection with any refinancing or restructuring of the credit arrangements
provided under this Agreement in the nature of a “work-out” or pursuant to any
insolvency or bankruptcy proceedings; provided that Borrower shall not be
responsible for expenses relating to assignments between Lenders made pursuant
to subsection 10.1.
| 10.3 |
Indemnity.
|
In
addition to the payment of expenses pursuant to subsection 10.2,
whether
or not the transactions contemplated hereby shall be consummated, Borrower
agrees to defend (subject to Indemnitees’ selection of counsel), indemnify, pay
and hold harmless Administrative Agent and Lenders, and the officers, directors,
employees, counsel, agents, representatives, trustees, advisors and affiliates
of Administrative Agent and Lenders (collectively called the “Indemnitees”),
from
and against any and all Indemnified Liabilities (as hereinafter defined);
provided
that
Borrower shall not have any obligation to any Indemnitee hereunder with respect
to any Indemnified Liabilities to the extent such Indemnified Liabilities arise
solely from the gross negligence or willful misconduct of that Indemnitee as
determined by a final judgment of a court of competent
jurisdiction.
As
used
herein, “Indemnified
Liabilities”
means,
collectively, any and all liabilities, obligations, losses, damages (including
natural resource damages), penalties, actions, judgments, suits, claims
(including Environmental Claims and Releases), costs (including the costs of
any
investigation, study, sampling, testing, abatement, cleanup, removal,
remediation or other response action necessary to remove, remediate, clean
up or
xxxxx any Hazardous Materials Activity), expenses and disbursements of any
kind
or nature whatsoever (including the reasonable fees and disbursements of counsel
for Indemnitees in connection with any investigative, administrative or judicial
proceeding commenced or threatened by any Person, whether or not any such
Indemnitee shall be designated as a party or a potential party thereto, and
any
fees or expenses incurred by Indemnitees in enforcing this indemnity), whether
direct or indirect and whether based on any federal, state or foreign laws,
statutes, rules or regulations (including securities and commercial laws,
statutes, rules or regulations and Environmental Laws), on common law or
equitable cause or on contract or otherwise, that may be imposed on, incurred
by, or asserted against any such Indemnitee, in any manner relating to or
arising out of (i) this Agreement or the other Loan Documents or the
Transactions or the other transactions contemplated hereby or thereby (including
Lenders’ agreement to make the Loans hereunder or the use or intended use of the
proceeds thereof or the issuance of Letters of Credit hereunder or the use
or
intended use of any thereof, or any enforcement of any of the Loan Documents
(including any sale of, collection from, or other realization upon any of the
Collateral or the enforcement of the Subsidiary Guaranty), (ii) the
statements contained in the commitment letter delivered by any Lender to
Borrower or Administrative Agent with respect thereto, or (iii) any
Environmental Claim or any Hazardous Materials Activity relating to or arising
from, directly or indirectly, any past or present activity, operation, land
ownership, or practice of Borrower or any of its Subsidiaries.
To
the
extent that the undertakings to defend, indemnify, pay and hold harmless set
forth in this subsection 10.3
may be
unenforceable in whole or in part because they are violative of any law or
public policy, Borrower shall contribute the maximum portion that it is
permitted to pay and satisfy under applicable law to the payment and
satisfaction of all Indemnified Liabilities incurred by Indemnitees or any
of
them.
| 10.4 |
Set-Off;
Security Interest in Deposit Accounts.
|
In
addition to any rights now or hereafter granted under applicable law and not
by
way of limitation of any such rights, upon the occurrence and during the
continuance of any Event of Default each Lender is hereby authorized by Borrower
at any time or from time to time, without prior notice to Borrower or to any
other Person, any such notice being hereby expressly waived, to set off and
to
appropriate and to apply any and all deposits or other amounts held by any
Lender (or any Affiliate of that Lender) for the credit or account of Borrower
(general or special, time or demand, provisional or final, including
Indebtedness evidenced by certificates of deposit, whether matured or unmatured,
but not including trust accounts) and any other Indebtedness at any time held
or
owing by that Lender or any Affiliate of such Lender to or for the credit or
the
account of Borrower and each other Loan Party against and on account of the
Obligations of Borrower and each other Loan Party to that Lender (or any
Affiliate of such Lender) or to any other Lender (or any Affiliate of any other
Lender) under this Agreement, the Letters of Credit and participations therein
and the other Loan Documents, including all claims of any nature or description
arising out of or connected with this Agreement, the Letters of Credit and
participations therein or any other Loan Document, irrespective of whether
or
not (i) that Lender shall have made any demand hereunder or (ii) the
principal of or the interest on the Loans or any amounts in respect of the
Letters of Credit or any other amounts due hereunder or under any of the other
Loan Documents shall have become due and payable pursuant to Section
8
and
although said obligations and liabilities, or any of them, may be contingent
or
unmatured. Borrower hereby further grants to Administrative Agent and each
Lender a security interest in all deposits and accounts maintained with
Administrative Agent or such Lender as security for the
Obligations.
| 10.5 |
Ratable
Sharing.
|
Lenders
hereby agree among themselves that if any of them shall, whether by voluntary
payment (other than a voluntary prepayment of Loans made and applied in
accordance with the terms of this Agreement), by realization upon security,
through the exercise of any right of set-off or banker’s Lien, by counterclaim
or cross action or by the enforcement of any right under the Loan Documents
or
otherwise, or as adequate protection of a deposit treated as cash collateral
under the Bankruptcy Code, receive payment or reduction of a proportion of
the
aggregate amount of principal, interest, amounts payable in respect of Letters
of Credit, fees and other amounts then due and owing to that Lender hereunder
or
under the other Loan Documents (collectively, the “Aggregate
Amounts Due”
to such
Lender) that is greater than the proportion received by any other Lender in
respect of the Aggregate Amounts Due to such other Lender hereunder, then the
Lender receiving such proportionately greater payment shall (i) notify
Administrative Agent and each other Lender of the receipt of such payment and
(ii) apply a portion of such payment to purchase participations (which
it
shall be deemed to have purchased from each seller of a participation
simultaneously upon the receipt by such seller of its portion of such payment)
in the Aggregate Amounts Due to the other Lenders so that all such recoveries
of
Aggregate Amounts Due shall be shared by all Lenders in proportion to the
Aggregate Amounts Due to them hereunder; provided
that if
all or part of such proportionately greater payment received by such purchasing
Lender is thereafter recovered from such Lender upon the bankruptcy or
reorganization of Borrower or otherwise (and whether by litigation, demand,
settlement or otherwise), those purchases shall be rescinded and the purchase
prices paid for such participations shall be returned to such purchasing Lender
ratably to the extent of such recovery, but without interest. Borrower expressly
consents to the foregoing arrangement and agrees that any holder of a
participation so purchased may exercise any and all rights of banker’s Lien,
set-off or counterclaim with respect to any and all monies owing by Borrower
to
that holder with respect thereto as fully as if that holder were owed the amount
of the participation held by that holder.
| 10.6 |
Amendments
and Waivers.
|
No
amendment, modification, termination or waiver of any provision of this
Agreement or of the Notes or of any of the other Loan Documents, and no consent
to any departure by Borrower herefrom or therefrom, shall in any event be
effective without the written concurrence of Requisite Lenders; unless otherwise
provided elsewhere in this Agreement; provided that in addition:
(a) any
such
amendment, modification, termination, waiver or consent which:
(i) postpones
the date or reduces the amount of any scheduled payment (but not any prepayment)
of principal of any of the Loans;
(ii) postpones
the date on which any interest (other than interest at the default rate pursuant
to subsection 2.2E)
or any
fees are payable or reduces the amount of any interest (other than interest
at
the default rate pursuant to subsection 2.2E)
or any
fees payable hereunder;
(iii) changes
in any manner the definition of “Pro Rata Share” or the definition of “Requisite
Lenders”;
(iv) changes
in any manner any provision of this Agreement which, by its terms, expressly
requires the approval or concurrence of all Lenders;
(v) releases
any Lien granted in favor of Administrative Agent with respect to all or
substantially all of the Collateral other than in accordance with the terms
of
the Credit Agreement;
(vi) releases
any material Subsidiary Guarantor from its obligations under the Subsidiary
Guaranty, in each case other than in accordance with the terms of the Loan
Documents;
(vii) changes
in any manner the provisions contained in subsection 8.1
or this
subsection 10.6;
or
(viii) an
assignment by the Borrower of its Obligations under this Agreement or any of
the
other Loan Documents;
shall
be
effective only if evidenced by the written concurrence of all Lenders directly
affected thereby.
In
addition,
(a) no
amendment, modification, termination or waiver of any provision of any Note
shall be effective without the written concurrence of the Lender which is the
holder of that Note;
(b) no
amendment, modification, termination or waiver of any provision of subsection
2.1A(i)-2.1A(ii)
or of any other provision of this Agreement relating to the Term Loan
Commitments or the Revolving Loan Commitments shall increase the Commitments
of
any Lender over the amount thereof then in effect without the consent of such
Lender (it being understood that amendments, modifications or waivers of
conditions precedent, representations and warranties, covenants or Events of
Default or of a mandatory reduction in the Commitments shall not constitute
an
increase of the Commitment of any Lender, and that an increase in the available
portion of any Commitment of any Lender shall not constitute an increase in
the
Commitment of such Lender);
(c) no
amendment, modification, termination or waiver of any provision of Section
9
or of
any other provision of this Agreement which, by its terms, expressly requires
the approval or concurrence of Administrative Agent shall be effective without
the written concurrence of Administrative Agent; and
(d) (i)
any
election by Administrative Agent to make a credit bid at a public or private
foreclosure sale of the Collateral and (ii) after the acquisition by
Administrative Agent of any of the Collateral at a public or private sale,
a
subsequent sale of the Collateral by the Administrative Agent where (A) the
purchase price is paid in a form other than Cash, or (B) the purchase price
is
less than the amount necessary to pay the Lenders the whole amount of principal,
interest and other amounts owing and unpaid in connection with the Loans and
any
other Obligations shall be effective only if evidenced by the written
concurrence of Requisite Lenders.
Administrative
Agent may, but shall have no obligation to, with the concurrence of any Lender,
execute amendments, modifications, waivers or consents on behalf of that Lender.
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 Borrower
in any case shall entitle Borrower to any other or further notice or demand
in
similar or other circumstances. Any amendment, modification, termination, waiver
or consent effected in accordance with this subsection 10.6
shall be
binding upon each Lender at the time outstanding, each future Lender and, if
signed by Borrower, on Borrower. Notwithstanding anything contained herein
to
the contrary, as among Lenders and Administrative Agent in connection with
the
exercise of remedies under any of the Loan Documents, the written concurrence
of
Requisite Lenders shall be required for Administrative Agent to exercise proxy
rights in the election of the Governing Body of any Loan Party owning real
property or to acquire any ownership interest in real property of any Loan
Party.
Notwithstanding
anything in this subsection 10.6 to the contrary, this Agreement and the other
Loan Documents may be amended (or amended and restated) with the written
approval of Administrative Agent, Borrower and any Increasing Lenders or New
Lenders to implement the additional Revolving Loan Commitments and/or Term
Loans
incurred pursuant to and in accordance with subsection 2.1A(iii).
| 10.7 |
Independence
of Covenants.
|
All
covenants hereunder shall be given independent effect so that if a particular
action or condition is not permitted by any of such covenants, the fact that
it
would be permitted by an exception to, or would otherwise be within the
limitations of, another covenant shall not avoid the occurrence of an Event
of
Default or Potential Event of Default if such action is taken or condition
exists.
| 10.8 |
Notices;
Effectiveness of Signatures.
|
A. Notices.
Unless
otherwise specifically provided herein, any notice or other communication herein
required or permitted to be given shall be in writing and may be personally
served, telexed or sent by telefacsimile or United States mail or courier
service and shall be deemed to have been given when delivered in person or
by
courier service, upon receipt of telefacsimile or telex, or three Business
Days
after depositing it in the United States mail with postage prepaid and properly
addressed; provided
that
notices to Administrative Agent shall not be effective until received. For
the
purposes hereof, the address of each party hereto shall be as set forth under
such party’s name on the signature pages hereof or (i) as to Borrower and
Administrative Agent, such other address as shall be designated by such Person
in a written notice delivered to the other parties hereto and (ii) as
to
each other party, such other address as shall be designated by such party in
a
written notice delivered to Administrative Agent. Electronic mail may be used
to
distribute routine communications, such as financial statements and other
information; provided,
however, that no signature with respect to any notice, request, agreement,
waiver, amendment or other document or any notice that is intended to have
binding effect may be sent by electronic mail, other than in the Adobe Portable
Document format.
B. Effectiveness
of Signatures.
Loan
Documents and notices under the Loan Documents may be transmitted and/or signed
by facsimile. The effectiveness of any such documents and signatures shall,
subject to applicable law, have the same force and effect as an original copy
with manual signatures and shall be binding on all Loan Parties, Administrative
Agent, Lead Arranger and Lenders. Administrative Agent may also require that
any
such documents and signature be confirmed by a manually-signed copy thereof;
provided,
however, that the failure to request or deliver any such manually-signed copy
shall not affect the effectiveness of any facsimile document or
signature.
| 10.9 |
Survival
of Representations,
Warranties and Agreements.
|
A. All
representations, warranties and agreements made herein shall survive the
execution and delivery of this Agreement and the making of the Loans and the
issuance of the Letters of Credit hereunder.
B. Notwithstanding
anything in this Agreement or implied by law to the contrary, the agreements
of
Borrower set forth in subsections 2.6D,
2.7,
3.5A,
3.6,
10.2,
10.3,
10.4,
10.17
and
10.18
and the
agreements of Lenders set forth in subsections 9.2C,
9.3,
9.4,
10.5
and
10.18
shall
survive the payment of the Loans, the cancellation or expiration of the Letters
of Credit and the reimbursement of any amounts drawn thereunder, and the
termination or expiration of this Agreement.
| 10.10 |
Failure
or Indulgence Not Waiver; Remedies Cumulative.
|
No
failure or delay on the part of Administrative Agent or any Lender in the
exercise of any power, right or privilege hereunder or under any other Loan
Document shall impair such power, right or privilege or be construed to be
a
waiver of any default or acquiescence therein, nor shall any single or partial
exercise of any such power, right or privilege preclude other or further
exercise thereof or of any other power, right or privilege. All rights and
remedies existing under this Agreement and the other Loan Documents are
cumulative to, and not exclusive of, any rights or remedies otherwise
available.
| 10.11 |
Marshalling;
Payments Set Aside.
|
Neither
Administrative Agent nor any Lender shall be under any obligation to marshal
any
assets in favor of Borrower or any other party or against or in payment of
any
or all of the Obligations. To the extent that Borrower makes a payment or
payments to Administrative Agent or Lenders (or to Administrative Agent for
the
benefit of Lenders), or Administrative Agent or Lenders enforce any security
interests or exercise their rights of setoff, and such payment or payments
or
the proceeds of such enforcement or setoff or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside and/or
required to be repaid to a trustee, receiver or any other party under any
bankruptcy law, any other state or federal law, common law or any equitable
cause (whether by litigation, demand, settlement or otherwise), then, to the
extent of such recovery, the obligation or part thereof originally intended
to
be satisfied, and all Liens, rights and remedies therefor or related thereto,
shall be revived and continued in full force and effect as if such payment
or
payments had not been made or such enforcement or setoff had not
occurred.
| 10.12 |
Severability.
|
In
case
any provision in or obligation under this Agreement or the Notes shall be
invalid, illegal or unenforceable in any jurisdiction, the validity, legality
and enforceability of the remaining provisions or obligations, or of such
provision or obligation in any other jurisdiction, shall not in any way be
affected or impaired thereby.
| 10.13 |
Obligations
Several; Independent Nature of Lenders’ Rights.
|
The
obligations of Lenders hereunder are several and no Lender shall be responsible
for the obligations or Commitments of any other Lender hereunder. Nothing
contained herein or in any other Loan Document, and no action taken by Lenders
pursuant hereto or thereto, shall be deemed to constitute Lenders, or Lenders
and Borrower, as a partnership, an association, a joint venture or any other
kind of entity. The amounts payable at any time hereunder to each Lender shall
be a separate and independent debt, and each Lender shall be entitled to protect
and enforce its rights arising out of this Agreement and it shall not be
necessary for any other Lender to be joined as an additional party in any
proceeding for such purpose.
| 10.14 |
Release
of Security Interest or Guaranty.
|
Upon
the
proposed sale or other disposition of any Collateral that is permitted by this
Agreement or to which Requisite Lenders have otherwise consented, or the sale
or
other disposition of all of the Capital Stock of a Subsidiary Guarantor to
any
Person (other than to a Subsidiary Guarantor) permitted by this Agreement or
to
which Requisite Lenders have otherwise consented, for which a Loan Party desires
to obtain a security interest release or a release of the Subsidiary Guaranty
from Administrative Agent, such Loan Party shall deliver an Officer’s
Certificate (i) stating that the Collateral or the Capital Stock subject to
such
disposition is being sold or otherwise disposed of in compliance with the terms
hereof and (ii) specifying the Collateral or Capital Stock being sold or
otherwise disposed of in the proposed transaction. Upon the receipt of such
Officer’s Certificate, Administrative Agent shall, at such Loan Party’s expense,
so long as Administrative Agent (a) has no reason to believe that the facts
stated in such Officer’s Certificate are not true and correct and (b) if the
sale or other disposition of such item of Collateral or Capital Stock
constitutes an Asset Sale, shall have received evidence satisfactory to it
that
arrangements satisfactory to it have been made for delivery of the Net Asset
Sale Proceeds if and as required by subsection 2.4, execute and deliver such
releases of its security interest in such Collateral or such Subsidiary
Guaranty, as may be reasonably requested by such Loan Party.
| 10.15 |
Applicable
Law.
|
THIS
AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE
GOVERNED BY,
AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH,
THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401 OF THE
GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK),
WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
| 10.16 |
Successors
and Assigns.
|
The
provisions of this Agreement shall be binding upon and inure to the benefit
of
the parties hereto and their respective successors and assigns and shall inure
to the benefit of the parties hereto and the successors and assigns of Lenders
(it being understood that Lenders’ rights of assignment are subject to
subsection 10.1). Borrower may not assign or otherwise transfer any of its
rights or obligations hereunder without the prior written consent of each Lender
(and any attempted assignment or transfer by Borrower without such consent
shall
be null and void). Nothing in this Agreement, expressed or implied, shall be
construed to confer upon any Person (other than the parties hereto, their
respective successors and assigns permitted hereby and, to the extent expressly
contemplated hereby, Affiliates of Administrative Agent and Affiliates of
Lenders) any legal or equitable right, remedy or claim under or by reason of
this Agreement.
| 10.17 |
Consent
to Jurisdiction and Service of Process.
|
ALL
JUDICIAL PROCEEDINGS BROUGHT AGAINST BORROWER ARISING OUT OF OR RELATING TO
THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT,
OR ANY OBLIGATIONS THEREUNDER,
MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN XXX
XXXXX,
XXXXXX XXX XXXX XX XXX XXXX.
BY EXECUTING AND DELIVERING THIS AGREEMENT,
BORROWER,
FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES,
IRREVOCABLY
(I) ACCEPTS
GENERALLY AND UNCONDITIONALLY THE NONEXCLUSIVE JURISDICTION AND VENUE OF SUCH
COURTS;
(II) WAIVES
ANY DEFENSE OF FORUM
NON CONVENIENS;
(III) AGREES
THAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH COURT MAY BE
MADE
BY REGISTERED OR CERTIFIED MAIL,
RETURN RECEIPT REQUESTED,
TO SUCH BORROWER AT ITS ADDRESS PROVIDED IN ACCORDANCE WITH SUBSECTION
10.8;
(IV) AGREES
THAT SERVICE AS PROVIDED IN CLAUSE (III) ABOVE IS SUFFICIENT TO CONFER PERSONAL
JURISDICTION OVER BORROWER IN ANY SUCH PROCEEDING IN ANY SUCH
COURT,
AND OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY
RESPECT;
(V) AGREES
THAT LENDERS RETAIN THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED
BY
LAW OR TO BRING PROCEEDINGS AGAINST BORROWER IN THE COURTS OF ANY OTHER
JURISDICTION; AND
(VI) AGREES
THAT THE PROVISIONS OF THIS SUBSECTION 10.17
RELATING TO JURISDICTION AND VENUE SHALL BE BINDING AND ENFORCEABLE TO THE
FULLEST EXTENT PERMISSIBLE UNDER NEW YORK GENERAL OBLIGATIONS LAW SECTION 5-1402
OR OTHERWISE.
| 10.18 |
Waiver
of Jury Trial.
|
EACH
OF
THE PARTIES TO THIS AGREEMENT HEREBY AGREES TO WAIVE ITS RESPECTIVE RIGHTS
TO A
JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS
AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR ANY DEALINGS BETWEEN THEM
RELATING TO THE SUBJECT MATTER OF THIS LOAN TRANSACTION OR THE LENDER/BORROWER
RELATIONSHIP THAT IS BEING ESTABLISHED. The scope of this waiver is intended
to
be all-encompassing of all disputes that may be filed in any court and that
relate to the subject matter of this transaction, including contract claims,
tort claims, breach of duty claims and all other common law and statutory
claims. Each party hereto acknowledges that this waiver is a material inducement
to enter into a business relationship, that each has already relied on this
waiver in entering into this Agreement, and that each will continue to rely
on
this waiver in their related future dealings. Each party hereto further warrants
and represents that it has reviewed this waiver with its legal counsel and
that
it knowingly and voluntarily waives its jury trial rights following consultation
with legal counsel. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE
MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL WRITTEN WAIVER
SPECIFICALLY REFERRING TO THIS SUBSECTION 10.18
AND
EXECUTED BY EACH OF THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY
SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT
OR ANY OF THE OTHER LOAN DOCUMENTS OR TO ANY OTHER DOCUMENTS OR AGREEMENTS
RELATING TO THE LOANS MADE HEREUNDER. In the event of litigation, this Agreement
may be filed as a written consent to a trial by the court.
| 10.19 |
Confidentiality.
|
Each
Lender shall hold all non-public information obtained pursuant to the
requirements of this Agreement that has been identified in writing as
confidential by Borrower in accordance with such Lender’s customary procedures
for handling confidential information of this nature and, in the case of banks,
and in accordance with safe and sound banking practices, it being understood
and
agreed by Borrower that in any event a Lender may make disclosures
(a) to its Affiliates and to its Affiliates’ directors, officers, employees
and agents, including accountants, legal counsel and other advisors (it being
understood that the Persons to whom such disclosure is made will be informed
of
the confidential nature of such information and instructed to keep such
information confidential), (b) to the extent requested by any Government
Authority, (c) to the extent required by applicable laws or regulations
or
by any subpoena or similar legal process, (d) to any other party to
this
Agreement, (e) in connection with the exercise of any remedies hereunder
or
any suit, action or proceeding relating to this Agreement or the enforcement
of
rights hereunder, (f) subject to an agreement containing provisions
substantially the same as those of this subsection 10.19,
to
(i) any Eligible Assignee of or Participant in, or any prospective Eligible
Assignee of or Participant in, any of its rights or obligations under this
Agreement or (ii) any direct or indirect contractual counterparty or
prospective counterparty (or such contractual counterparty’s or prospective
counterparty’s professional advisor) to any credit derivative transaction
relating to obligations of Borrower, (g) with the consent of Borrower,
(h) to the extent such information (i) becomes publicly available
other than as a result of a breach of this subsection 10.19,
or
(ii) becomes available to Administrative Agent or any Lender on a
nonconfidential basis from a source other than Borrower, or (i) to the
National Association of Insurance Commissioners or any other similar
organization or any nationally recognized rating agency that requires access
to
information about a Lender’s or its Affiliates’ investment portfolio in
connection with ratings issued with respect to such Lender or its Affiliates
and
that no written or oral communications from counsel to an Agent and no
information that is or is designated as privileged or as attorney work product
may be disclosed to any Person unless such Person is a Lender or a participant
hereunder; provided
that,
unless specifically prohibited by applicable law, regulation or court order,
each Lender shall notify Borrower of any request by any Government Authority
or
representative thereof (other than any such request in connection with any
examination of the financial condition of such Lender by such Government
Authority) for disclosure of any such non-public information prior to disclosure
of such information; and provided,
further,
that in
no event shall any Lender be obligated or required to return any materials
furnished by Borrower or any of its Subsidiaries. Notwithstanding anything
contained herein to the contrary, Borrower understands and agrees that
Administrative Agent and the institution identified as “Lead Arranger” on the
title page to this Agreement may make customary disclosures for advertising
and
“league table” purposes.
| 10.20 |
Co-Documentation
Agents,
Lead Arranger and Syndication Agent.
|
None
of
the institutions identified as “Lead Arranger,”“Co-Documentation Agents” or
“Syndication Agent” on the title page to this Agreement shall have any
obligations, liabilities or duties under this Agreement other than those
applicable to a Lender (but only if such institution is a Lender) as such,
and
no such institution shall have or be deemed to have any fiduciary relationship
with any Lender. Each Lender acknowledges that it has not relied, and will
not
rely, on any such institution in deciding to enter into this Agreement or in
taking or not taking any action hereunder.
| 10.21 |
Counterparts;
Effectiveness.
|
This
Agreement and any amendments, waivers, consents or supplements hereto or in
connection herewith may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument; signature pages
may
be detached from multiple separate counterparts and attached to a single
counterpart so that all signature pages are physically attached to the same
document. This Agreement shall become effective upon the execution of a
counterpart hereof by each of the parties hereto and receipt by Borrower and
Administrative Agent of written or telephonic notification of such execution
and
authorization of delivery thereof.
| 10.22 |
Gaming
Laws.
|
A. This
Agreement and the other Loan Documents are subject to the Gaming Laws and laws
involving the sale, distribution and possession of alcoholic beverages (the
“Liquor
Laws”).
Without limiting the foregoing, each of the Administrative Agent, Lead Arranger,
Syndication Agent, Co-Documentation Agents, each Lender and each Participant
acknowledges that (i) it is subject to being called forward by the Gaming
Authority or Government Authority enforcing the Liquor Laws (the “Liquor
Authorities”),
in
their discretion, for licensing or a finding of suitability or to file or
provide other information, and (ii) all rights, remedies and powers under this
Agreement and the other Loan Documents, including with respect to the entry
into
and ownership and operation of the Facilities, and the possession or control
of
gaming equipment, alcoholic beverages or a gaming or liquor license, may be
exercised only to the extent that the exercise thereof does not violate any
applicable provisions of the Gaming Laws and Liquor Laws and only to the extent
that required approvals (including prior approvals) are obtained from the
requisite Government Authorities.
B. Each
of
the Administrative Agent, Lead Arranger, Syndication Agent and Co-Documentation
Agents, Lenders and Participants agrees to cooperate with the Gaming Authority
(or be subject to the provisions of subsection 2.9) in connection with the
provision of such documents or other information as may be requested by such
Gaming Authority or Liquor Authorities relating to the Borrower and its
Subsidiaries or to the Loan Documents.
| 10.23 |
Amendment
and Restatement.
|
On
the
Effective Date and upon satisifaction of the conditions set forth in subsection
4.1 hereof, the Lenders shall purchase and assume from Administrative Agent,
at
par, without recourse, and/or make, as the case may be, the Term Loan
Commitments, the Term Loans, the Revolving Loan Commitments, the outstanding
Revolving Loans and participations in outstanding Letters of Credit, in each
case as set forth in an allocation letter delivered to such Lender by
Administrative Agent, which Term Loan Commitments, Term Loans, Revolving Loan
Commitments, Revolving Loans, Letter of Credit participations shall thereuon
immediately amend and restate the loans and commitments under the Existing
Credit Agreement in their entirety as Term Loan Commitments, Term Loans,
Revolving Loan Commitments, Revolving Loans and Letter of Credit participations
hereunder and shall be governed by the terms of this Agreement all as more
particularly described herein and the Existing Credit Agreement shall be
immediately amended and restated in its entirety as more particularly described
herein. The Lenders are not subject to or bound by any of the terms or
provisions of the Existing Credit Agreement. The parties acknowledge and agree
that this Agreement and the other Loan Documents do not constitute a novation,
payment and reborrowing, or termination of any of the obligations of Borrower
under the Existing Credit Agreement and that all such obligations are in all
respects continued and outstanding as obligations under this Agreement and
the
Notes with only the terms being modified from and after the Effective Date
as
provided in this Agreement, the Notes and the other Loan Documents. In addition,
this Agreement shall not release, limit or impair in any way the priority of
any
security interests and liens held by Administrative Agent for the benefit of
the
Lenders against any assets of Borrower or any of Borrower’s Subsidiaries arising
under the Existing Credit Agreement or the other Existing Loan Documents.
| 10.24 |
USA
Patriot Act
|
Each
Lender hereby notifies Borrower that pursuant to the requirements of the USA
Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001))
(the “Act”),
it is
required to obtain, verify and record information that identifies Loan Parties,
which information includes the name and address of each Loan Party and other
information that will allow such Lender to identify such Loan Party in
accordance with the Act.
[Remainder
of page intentionally left blank]
LA1:1086583.7
IN
WITNESS WHEREOF,
the
parties hereto have caused this Agreement to be duly executed and delivered
by
their respective officers thereunto duly authorized as of the date first written
above.
BORROWER:
ISLE
OF CAPRI BLACK HAWK,
L.L.C.
By:
/s/
XXXXXXX X. XXXXXXX
Xxxxxxx
X.
Xxxxxxx
Senior
Vice
President, Chief Financial
Officer,
Treasurer and Assistant Secretary
Notice
Address:
ISLE
OF
CAPRI BLACK HAWK, L.L.C.
0000
Xxxxx Xxxxx Xxxx, Xxxxx X-0
Xxxxxx,
XX 00000
With
a
Copy to:
ISLE
OF
CAPRI BLACK HAWK, L.L.C.
000
Xxxx
Xxxxxx
Xxxxx
Xxxx, XX 00000
S-CREDIT
AGREEMENT
LA1:1086583.7
ADMINISTRATIVE
AGENT:
CANADIAN
IMPERIAL BANK OF COMMERCE,
as
Administrative Agent
By: /s/
XXXX
X. XXXXXX
Xxxx
X.
Xxxxxx
Managing
Director
CIBC
World
Markets Corp., AS AGENT
By:
/s/
XXXXXXXX X. XXXXXXXXX, XX.
Xxxxxxxx
X. Xxxxxxxxx, Xx.
Executive
Director
CIBC
World Markets Corp., AS AGENT
Notice
Address:
CANADIAN
IMPERIAL BANK OF COMMERCE
000
Xxxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn.:
Agency Services Dept.
Facsimile
No.: (000) 000-0000
With
a
Copy to:
CIBC
WORLD MARKETS CORP.
00000
Xxxxxxxx Xxxxxxxxx, 00xx
Xxxxx
Xxx
Xxxxxxx, Xxxxxxxxxx 00000
Facsimile
No.: (000) 000-0000
S-CREDIT
AGREEMENT
LA1:1086583.7
SYNDICATION
AGENT:
XXXXX
FARGO BANK, N.A., as
Syndication Agent
and
Lender
By:
/s/ PEITTY CHOU
Name: Peitty
Chou
Title:
Vice
President
Notice
Address:
XXXXX
FARGO BANK, N.A.
0000
Xxxxxx Xxxxxx Xxxxxxx, 0xx
Xxxxx
Xxx
Xxxxx, Xxxxxx 00000
Facsimile
No.: (000) 000-0000
S-CREDIT
AGREEMENT
LA1:1086583.7
HIBERNIA
NATIONAL BANK, as
Co-Documentation
Agent and Lender
By:
/s/
XXXXX
XXXXXX
Name:
Xxxxx
Xxxxxx
Title:
Senior
Vice President
Notice
Address:
HIBERNIA
NATIONAL BANK
000
Xxxxxx Xxxxxx, 0xx
Xxxxx
Xxxxxxxxxx,
Xxxxxxxxx 00000
Facsimile
No.: (000) 000-0000
S-CREDIT
AGREEMENT
LA1:1086583.7
THE
CIT GROUP/EQUIPMENT FINANCING, INC.,
as
Co-Documentation Agent and Lender
By:
/s/
XXXXXX XXXXX
Name:
Xxxxxx
Xxxxx
Title:
Vice
President
Notice
Address:
THE
CIT
GROUP/EQUIPMENT FINANCING, INC.
Xxx
XXX
Xxxxx
Xxxxxxxxxx,
Xxx Xxxxxx 00000
Facsimile
No.: (000) 000-0000
S-CREDIT
AGREEMENT
LA1:1086583.7
LENDERS:
CIBC
INC., as
a
Lender
By:
/s/
XXXX
X. XXXXXX
Xxxx X. Xxxxxx
Managing Director
CIBC World Markets Corp., AS AGENT
Notice
Address:
CIBC
INC.
000
Xxxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn.:
Agency Services Dept.
Facsimile
No.: (000) 000-0000
With
a
Copy to:
CIBC
WORLD MARKETS CORP.
00000
Xxxxxxxx Xxxxxxxxx, 00xx
Xxxxx
Xxx
Xxxxxxx, Xxxxxxxxxx 00000
Facsimile
No.: (000) 000-0000
S-CREDIT
AGREEMENT
LA1:1086583.7
LA1:1086583.7
EXHIBITS
I
FORM
OF
NOTICE OF BORROWING
II
FORM
OF
NOTICE OF CONVERSION/CONTINUATION
III
FORM
OF
REQUEST FOR ISSUANCE
IV
INTENTIONALLY
OMITTED
V
FORM
OF
TERM NOTE
VI
FORM
OF
REVOLVING NOTE
VII
FORM
OF
COMPLIANCE CERTIFICATE
VIII
FORM
OF
OPINION OF BORROWER COUNSEL
IX
INTENTIONALLY
OMITTED
X
FORM
OF
ASSIGNMENT AGREEMENT
XI
FORM
OF
FINANCIAL CONDITION CERTIFICATE
XII
FORM
OF
SUBSIDIARY GUARANTY
XIII
FORM
OF
SECURITY AGREEMENT
XIV FORM
OF
MORTGAGE
XV
FORM
OF
ACKNOWLEDGEMENT AND CONSENT
XVI
FORM
OF
CERTIFICATE RE: NON-BANK STATUS
XVII
FORM
OF
DEPOSIT ACCOUNT CONTROL AGREEMENT
XVIII
FORM
OF
ENVIRONMENTAL INDEMNITY
XIX-A FORM
OF
INSTRUMENT OF JOINDER
XIX-B FORM
OF
NOTICE TO LENDERS
XIX-C FORM
OF
OFFICER’S CERTIFICATE
LA1:1086583.7
SCHEDULES
4.1C
CORPORATE
AND CAPITAL STRUCTURE; OWNERSHIP;
MANAGEMENT;
JURISDICTION OF ORGANIZATION
4.1F EFFECTIVE
DATE MORTGAGED PROPERTIES
5.1
SUBSIDIARIES
OF BORROWER
5.2C GOVERNMENTAL
CONSENTS
5.4 CERTAIN
RESTRICTED JUNIOR PAYMENTS AND TAX
DISTRIBUTIONS
5.5A NEW
LIENS
SINCE APRIL 22, 2003
5.5B
REAL
PROPERTY
5.5C
INTELLECTUAL
PROPERTY
5.6A
NEW
PROCEEDINGS SINCE APRIL 22, 2003
5.6B LAND
USE
PROCEEDINGS
5.8 MATERIAL
CONTRACTS
5.9 GAMING
LAWS
5.13
ENVIRONMENTAL
MATTERS
5.14
EMPLOYEE
MATTERS
5.16G(i)
PERMITS
AND APPROVALS
5.16G(iii)
MATERIAL
LICENSES
6.10
DEPOSIT
ACCOUNTS
7.1
CERTAIN
EXISTING INDEBTEDNESS
7.2A(iii)
CERTAIN
EXISTING LIENS
7.2A(v)
EXPANSION
PROJECT LIENS
7.3
CERTAIN
EXISTING INVESTMENTS
7.4
CERTAIN
EXISTING CONTINGENT OBLIGATIONS
7.14
CERTAIN
OPERATING LEASES
